As per case facts, the appellant, a former Indian Trade Service officer with a long record of outstanding performance and recent promotion, was compulsorily retired from service less than five ...
2026 INSC 980
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3215 OF 2026
[ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 1265/2025]
S.S. DAS … APPELLANT
VS.
UNION OF INDIA … RESPONDENT
J U D G M E N T
DIPANKAR DATTA, J.
THE APPEAL
1. In this appeal, by special leave, the appellant [a former Indian Trade
Service (ITS) officer] has mounted a challenge to the judgment and
order dated 18
th
January, 2024
1
of a Division Bench of the High Court
of Delhi
2
declining interference with the judgment and order dated 2
nd
July, 2021 of the Central Administrative Tribunal, Principal Bench, New
Delhi
3
. The order passed by the competent authority of the
respondent, compulsorily retiring the appellant from service a little less
1
impugned judgment
2
High Court
3
CAT
2
than 5 (five) years prior to his date of superannuation, was upheld by
the CAT.
FACTS
2. A brief narration of facts, falling within a short compass, will throw
light on the real issue that emerges for our decision. At the centre of
the controversy is the order of compulsory retirement dated 10
th
May
2018, issued under purported exercise of power conferred by
Fundamental Rule
4
56(j). The legality, correctness and propriety of
such order is questioned by the appellant, by referring to the events
antecedent thereto woven around the tapestry of his service records.
3. A glimpse of the service career of the appellant would reveal that he
was appointed to the Indian Trade Service
5
in the year 1989. He was
promoted as Deputy Director General of Foreign Trade in 1994 and ,
thereafter, as Joint Director General of Foreign Trade in 2001. In 2006,
he was granted promotion on a non-functional Selection Grade basis.
He was selected for Central deputation under the Central Staffing
Scheme in 2008 and was accorded a further non-functional
upgradation in 2011. In 2014, he was appointed as an Additional
Director in the Directorate General of Anti-Dumping
6
. He was posted
as Regional Joint Director General of Foreign Trade, Guwahati and
Shillong, in 2017. On 16
th
November, 2017, he was placed in the Senior
4
FR
5
ITS
6
DGAD
3
Administrative Grade of the ITS at the level of Joint Secretary and was
promoted thereto on a regular basis on 27
th
February, 2018.
4. This being the appellant’s track record, he claims that the order dated
10
th
May, 2018 of compulsory retirement came without any
forewarning. The competent authority directed his premature
retirement from service in exercise of the power under FR 56(j), before
he attained the age of superannuation without any complaint of worth.
A detailed representation dated 1
st
June, 2018, preferred by him,
challenging the order 10
th
May, 2018 partially succeeded. The matter
was remanded by the Representation Committee to the Review
Committee, which maintained the earlier order and rejected the
appellant’s challenge on 13
th
June, 2019. Such order upon being placed
before the Representation Committee once again was not disturbed.
PROCEEDINGS BEFORE THE CAT AND THE HIGH COURT AND THE OUTCOME
5. Appellant challenged the order compulsorily retiring him as well as the
order of rejection of the representation by instituting an original
application
7
before the CAT. By its judgment and order dated 2
nd
July,
2021
8
, the CAT dismissed the original application. While so dismissing,
the CAT relied on decisions of this Court holding that once there exists
some material before the competent authority warranting the exercise
of power under FR 56(j), judicial review does not extend to an
examination of the adequacy or sufficiency of such material. The CAT
7
Original Application No. 2640 of 2019
8
order of the CAT
4
took note of the undisputed position that the appellant had never been
subjected to disciplinary proceedings, had earned promotions at
regular intervals, and had consistently received commendable
performance appraisals throughout his service career. However, it then
adverted to the findings of the Review Committee which recorded,
inter alia, that the appellant's handling of official files and his dealings
with clients had been obstructive, that his reputation for integrity was
not beyond reproach, and that he had, on one occasion, been
proceeded against for insubordination. According to the CAT, these
observations assumed significance having regard to the sensitive
nature of the post held by the appellant and the serious national
implications attached thereto. Proceeding further, the CAT observed
that the remarks of the Review Committee were neither casual nor
abstract. It reasoned that the very object underlying FR 56(j) is to
enable the administration, in appropriate cases involving sensitive
assignments, to retire an officer in public interest even where
misconduct may not be capable of bei ng established. The CAT also
placed reliance on the averments contained in the counter-affidavit of
the respondent, wherein allegations were made that the appellant,
while serving in the Directorate General of Anti-Dumping, had sought
certain favours. Although it acknowledged the absence of proof
substantiating such allegations, the CAT held that the standard of proof
applicable to disciplinary proceedings is not attracted in proceedings
under FR 56(j). The challenge to the order rejecting the appellant’s
5
representation was also repelled, the CAT observing that the grounds
urged by the appellant had duly been considered before affirming the
decision of premature retirement. Consequently, the original
application came to be dismissed.
6. Aggrieved by the same, the appellant challenged the order of the CAT
by presenting the writ petition which too has failed.
7. Before the High Court, the appellant assailed the order of compulsory
retirement on diverse grounds, placing reliance on various Office
Memorandum
9
issued from time to time and contending that the
essential preconditions for invocation of FR 56(j) had not been
satisfied. It was further urged that the decision was unsupported by
any credible material and that the process stood vitiated by bias with
respect to the composition of the committees. The High Court
examined these contentions in the backdrop of the OM dated 11
th
September, 2015, which governed the field at the relevant time.
Noticing that the appellant was an officer appointed through the
Appointments Committee of the Cabinet
10
, the High Court observed
that the Review Committee was required to be headed by the
Secretary of the concerned Ministry, being the cadre controlling
authority. The Court found substance in the appellant’s contention that
the Secretary of the concerned Ministry had not been a part of the
Review Committee. However, save and except this objection, the
9
OM
10
ACC
6
remaining submissions advanced on behalf of the appellant were
rejected, each being considered separately and on its own merits.
8. Since some of these findings have a direct bearing on the controversy
before us, it would be appropriate to notice them in brief. The High
Court first repelled the contention that the Second Review Committee,
constituted to reconsider the recommendation of the First Review
Committee, substantially comprised the same set of officers and,
therefore, lacked independence. According to the High Court, the
participation of the concerned officers was necessitated by the
requirements of the 2015 OM, they being representatives of the cadre
controlling authority and the Secretary of the concerned Ministry.
9. The High Court next considered the challenge to reliance placed upon
a confidential note prepared by Shri *** during his brief tenure as
Additional Secretary and DGAD. It was argued that the note was
founded on unverified allegations, lacked corroboration and, at best,
constituted hearsay material which ought not to have influenced the
decision-making process. The High Court did not accept this
submission. It observed that the confidential note drew upon
complaints received against the appellant as well as allegations voiced
by representatives of the domestic industry. Coupled with the adverse
entries recorded in the appellant’s Annual Performance Appraisal
Reports
11
, particularly the APAR for the year 2014–2015, the note
11
APAR
7
constituted relevant material which could legitimately be taken into
account.
10. The High Court also noticed that, while reconsidering the matter, the
Second Review Committee had interacted with Shri *** to better
appreciate the contents of his note before reiterating its earlier
recommendation. The High Court further recorded that the Second
Review Committee had examined the entirety of the relevant material,
including certain APARs wherein observations had been made casting
doubt on the appellant’s integrity. Particular emphasis was placed on
the APAR for the year 2014–2015, wherein it had been remarked in
the integrity column that “there was room for improvement”. The High
Court attached significance to the fact that such remark had never
been challenged by the appellant. In the view of the High Court, the
Committee was justified in concluding that an officer occupying a
position of such responsibility must possess integrity that is beyond
reproach and that, in the larger public interest, the recommendation
for compulsory retirement deserved reaffirmation.
11. The High Court also rejected the appellant’s contention that his
subsequent promotion to the post of Joint Secretary rendered the
order of compulsory retirement unsustainable. The Court observed
that the considerations governing promotion and compulsory
retirement operate in distinct fields. While promotion ordinarily
involves an assessment of the officer’s performance during the
immediately preceding years, compulsory retirement requires a
8
holistic evaluation of the officer’s entire service record. Consequently,
the appellant’s promotion could not, by itself, dilute the relevance of
the material considered for the purpose of FR 56(j) or invalidate the
recommendation for compulsory retirement.
12. Based upon these cumulative reasons, the High Court ultimately
dismissed the writ petition. Aggrieved by the same, the appellant has
carried it in appeal before us which we propose to dispose of by this
judgment.
CRUX OF THE LIS
13. This takes us to the crux of the lis, viz., whether on the peculiar facts
of the case, bearing out demonstrably striking chronology, the power
to compulsorily retire under FR 56(j) was exercised on the basis of a
material capable of sustaining the satisfaction and whether the record
discloses a rational nexus between the material relied upon and the
conclusion that the appellant’s compulsory retirement was warranted
in furtherance of the public interest.
14. Rival contentions now fall for being considered.
CONTENTIONS OF THE PARTIES
15. Mr. Ghose, learned senior counsel for the appellant, has urged multiple
points to have the impugned order of compulsory retirement nullified,
and by extension, the order of the CAT as well as the impugned
judgment upholding the same. For brevity, we refrain from cataloguing
each of the points urged. If the point we propose to consider hereafter
9
does commend acceptance, the need to deal with the other points may
not arise.
16. Per contra, Mr. Kaushik, the learned Additional Solicitor General
12
representing the respondent, has vehemently argued that the scope
of interference with an order of compulsory retirement passed under
FR 56(j) is very narrow and limited; and, this particular case is not
such that the impugned judgment as well as the judgment of the CAT
can be assailed and interdicted on any of the points raised by his
adversary.
17. A detailed written note of submissions was placed on record by the
learned ASG. His submissions qua each of the propositions advanced
are extracted seriatim:
a. FR 56(j) IS ADMINISTRATIVE AND NON -PUNITIVE IN CHARACTER AND
IS INTENDED TO ENSURE EFFICIENCY , INTEGRITY AND UTILITY IN PUBLIC
ADMINISTRATION
“2. At the outset, it is important to note that this Hon’ble Court
has consistently held that there is a difference between
compulsory retirement and dismissal/removal, with the former
having ‘no stigma or implication of misbehaviour or
incapacity’.
3. In this regard, dealing with a provision similar to FR 56(j),
the Constitution Bench of this Hon’ble Court in Shyam Lal v
State of UP (1955) 1 SCR 26 concluded that compulsory
retirement ‘does not attract the provisions of Article 311’,
observing that:
‘…There is no such element of charge or imputation in the
case of compulsory retirement. The two requirements for
compulsory retirement are that the officer has completed
twenty-five years’ service and that it is in the public interest
to dispense with his further services. It is true that this power
of compulsory retirement may be used when the authority
exercising this power cannot substantiate the misconduct
12
ASG
10
which may be the real cause for taking the action but what is
important to note is that the directions in the last sentence in
Note 1 to Article 465-A make it abundantly clear that an
imputation or charge is not in terms made a condition for the
exercise of the power. In other words, a compulsory
retirement has no stigma or implication of misbehaviour or
incapacity.’ (emphasis added)
This Hon’ble Court went further to explain that:
‘…It is said that compulsory retirement, like dismissal or
removal, deprives the officer of the chance of serving and
getting his pay till he attains the age of superannuation and
thereafter to get an enhanced pension and that is certainly a
punishment. It is true that in that wide sense the officer may
consider himself punished but there is a clear distinction
between the loss of benefit already earned and the loss of
prospect of earning something more. In the first case it is a
present and certain loss and is certainly a punishment but the
loss of future prospect is too uncertain, for the officer may die
or be otherwise incapacitated from serving a day longer and
cannot, therefore, be regarded in the eye of the law as a
punishment. The more important thing is to see whether by
compulsory retirement the officer loses the benefit he has
earned as he does by dismissal or removal. The answer is
clearly in the negative. The second element for determining
whether a termination of service amounts to dismissal or
removal is, therefore, also absent in the case of termination
of service brought about by compulsory retirement.’
Residuary rule: for times when allegations cannot be
substantiated
4. Importantly, as highlighted above, this Hon’ble Court
acknowledged a core purpose underlying provisions like FR
56(j), i.e. the authority to act in circumstances where there
are reasons but not sufficient evidence to discontinue the
services of employee: ‘this power of compulsory retirement
may be used when the authority exercising this power cannot
substantiate the misconduct which may be the real cause for
taking the action’.
5. Similarly, in Union of India v. M.E. Reddy, (1980) 2 SCC 15,
this Hon’ble Court acknowledged that: ‘17. …It will indeed be
difficult if not impossible to prove by positive evidence that a
particular officer is dishonest but those who have had the
opportunity to watch the performance of the said officer from
close quarters are in a position to know the nature an d
character not only of his performance but also of the
reputation that he enjoys…’.
11
6. This Hon’ble Court repeated similar observations in
Rajendra Singh Verma v. Lt. Governor (NCT of Delhi), (2011)
10 SCC 1: ‘…Sometimes, if the general reputation of an
employee is not good though there may not be any tangible
material against him, he may be compulsorily retired in public
interest…’.”
b. PRINCIPLES OF NATURAL JUSTICE CANNOT BE READ INTO FR 56(j)
“10. This Hon’ble Court in Baikuntha Nath Das v. District
Medical Officer, (1992) 2 SCC 299 clarified that principles of
natural justice cannot be read into FR 56(j) or similar
provisions:
‘34… (iii) Principles of natural justice have no place in the
context of an order of compulsory retirement. This does not
mean that judicial scrutiny is excluded altogether. While the
High Court or this Court would not examine the matter as an
appellate court, they may interfere if they are satisfied that
the order is passed (a) mala fide or (b) that it is based on no
evidence or (c) that it is arbitrary – in the sense that no
reasonable person would form the requisite opinion on the
given material; in short, if it is found to be a perverse order.’
Uncommunicated Adverse Entries can be relied upon
11. As discussed above, these decisions can be based on
material which might not be sufficient to justify disciplinary
proceedings. In the same vein, these decisions can also be
based on uncommunicated adverse entries. In this regard, this
Hon’ble Court has clarified that:
a. the appointing authority could rely on uncommunicated
adverse entries in support of its decision;
b. promotion ‘does not wipe out earlier adverse entry’
13
and that the entire record must be considered.
12. It further observed that ‘[c]ompulsory retirement involves
no civil consequences. The aforementioned Rule 56(j) is not
intended for taking any penal action against the government
servants. That rule merely embodies one of the facets of the
pleasure doctrine embodied in Article 310 of the Constitution’.”
13
Paragraph 183 of Baikuntha Nath Das seems to be a printing error; Paragraph 183 does
not exist. Also, see Paragraph 17 of Arun Kumar Gupta v State of Jharkhand (2020) 13
SCC 355.
12
c. THE “WASHED-OFF” THEORY DOES NOT APPLY TO COMPULSORY
RETIREMENT – RECENT PROMOTION DOES NOT RESULT IN ADVERSE
REMARKS BEING EFFACED
“17. The submission of the appellant that the recent promotion
to the Senior Administrative Grade (SAG) in 2017/2018 wiped
his service record clean, preventing the authorities from
relying on the 2017 Confidential Note or previous adverse
APAR entries is not tenable.
18. While old adverse entries may lose their relevance when
considering an officer for further promotion, they remain
completely relevant when the Government is assessing
whether an officer is fit to be retained in public service,
inasmuch as FR 56(j) mandates a holistic evaluation of the
entire service record.
19. In this regard, a 3-Judge Bench of this Hon'ble Court in
Pyare Mohan Lal v. State of Jharkhand (2010) 10 SCC
693, after examining the conflicting judgments in this regard,
was pleased to observe as under:
‘24. ... the washed-off theory does not have universal
application. It may have relevance while considering the case
of government servant for further promotion but not in a case
where the employee is being assessed by the reviewing
authority to determine whether he is fit to be retained in
service or requires to be given compulsory retirement, as the
Committee is to assess his suitability taking into consideration
his 'entire service record'.’
20. The Court in Pyare Mohan Lal further clarified that even a
single adverse entry regarding integrity from the past is
sufficient to justify compulsory retirement. Therefore, the
Review Committee was fully justified in considering the
Appellant's 2014-15 APAR which explicitly noted ‘room for
improvement’ in integrity alongside the 2017 Confidential Note
detailing unprofessional/unacceptable conduct.
21. Moreover, the appellant was a senior officer of the Indian
Trade Service (ITS) holding the Senior Administrative Grade
(SAG) and occupied a position of substantial public trust,
economic sensitivity, and administrative importance. At such
high position of Public Interest, the standards of integrity,
efficiency, and professional conduct are exceptionally
stringent. A recent promotion cannot operate as a blanket
amnesty to efface past adverse entries, particularly those
casting doubt on an officer's integ rity or professional
demeanour. The overarching public interest demands that the
13
entire service record of such senior officials remains open for
a holistic evaluation under FR 56(j) to ensure they remain fit
to discharge their critical public duties.”
d. THE PURPOSE OF FR 56(j)] IS TO “CHOP OFF” THE DEADWOOD
“22. The fundamental objective of FR 56(j) is to maintain high
standard of efficiency, integrity, and vitality in public
administration. The rule functions as a mechanism
empowering the Government to chop off ‘dead wood’ i.e., such
officers whose continued retention would have an adverse
impact on public interest. It is an administrative tool designed
not to punish, but to ensure that the administrative machinery
remains robust and strictly aligned with the public good and
as such orders of compulsory retirement do not entail any
stigma.
***
24. At the outset, it submitted that the Appellant’s contention
that the review should have occurred upon his attaining the
age of 50 or 55years, and conducting the review at 55.6 years
was statutorily impermissible, is untenable in as much as it
follows from a plain statutory language. FR 56(j), that
attaining the age of 50 or 55years merely triggers the eligibility
for periodic review, but it does not place an outer time limit on
the Government's power to exercise its discretion on a
subjective satisfaction that the continuation in service of an
officer would not be in public interest. [Rajendra Singh
Verma v. Lt. Governor (NCT of Delhi) (2011) 10 SCC 1,
paragraph 60; Union of India v. M.E. Reddy, (1980) 2 SCC
1, paragraph 8 - 12]”.
e. AN ORDER UNDER 56(J) DOES NOT ATTACH ANY STIGMA
“25. Compulsory retirement under FR 56(j) is not a
punishment. It is a purely administrative mechanism designed
to maintain efficiency and integrity in public administration by
chopping off dead wood.
26. Since it is not a penal/punitive action, the retired officer
does not lose any of their earned pensionary or retiral benefits.
Therefore, the action does not carry any civil consequences.
This principle was clearly laid down by this Hon'ble Court in
Union of India v. Col. J.N. Sinha (1970) 2 SCC 458:
‘9. ... Compulsory retirement involves no civil consequences.
The aforementioned Rule 56(j) is not intended for taking any
penal action against the Government servants. That rule
merely embodies one of the facets of the pleasure doctrine
embodied in Article 310 of the Constitution’."
14
f. UNDISPOSED OR PENDING REPRESENTATIONS DO NOT INVALIDATE THE
ORDER UNDER FR 56(J)
“28. The Appellant has further alleged that his comprehensive
representation dated 30.08.2018 was not considered and that
this procedural lapse vitiates the entire retirement process and
violates the principles of natural justice. It is submitted that
the law in this regard is well-settled that an authority can pass
an order of compulsory retirement even if a representation
against an adverse entry is pending, undisposed, or if the
opportunity to make one was denied. Principles of natural
justice do not apply in the context of FR 56(j).
***
30. Furthermore, the Representation Committee in this matter
acted with the utmost fairness. By initially remanding the case
back for a fresh second review instead of mechanically
affirming the decision, the Committee demonstrated
independent application of mind and a complete absence of
institutional bias.”
g. PRIOR APPROVAL OF THE ACC AND CONSULTATION WITH CVC ARE NOT
REQUIRED
“34. The Appellant’s reliance on an archaic Office
Memorandum (OM) of 1974 to claim that approval from the
Appointments Committee of the Cabinet (ACC) and
consultation with the Central Vigilance Commission (CVC)
were mandatory for his retirement.
35. On the date of the Appellant's retirement (10.05.2018),
the consolidated DoPT OMs dated 21.03.2014 and 11.09.2015
were in vogue. The 2014 and 2015 OM streamlined the
procedure and deliberately omitted any requirement for prior
ACC approval to retire an officer.
36. The above position further fortified by the Government of
India (Transaction of Business) Rules, 1961, which explicitly
outlines the functions of the ACC. These functions are limited
to appointments, empanelment, and upgradations. They do
not extend to administrative retirements. The competent
Appointing Authority (the President, exercised through the
Union Minister) is the final authority for FR 56(j).
37. As regards vigilance scrutiny, the 2015 OM modernized the
safeguard by replacing external CVC consultation with internal
association. It requires the Chief Vigilance Officer (CVO),
acting as the CVC's representative, to be associated directly
15
with the Review Committee. In the Appellant's case, the CVO
actively participated in the Review Committee meetings,
ensuring complete compliance with the prescribed vigilance
procedure.”
h. THE COMPOSITION OF THE REVIEW AND REPRESENTATION COMMITTEES
IS NOT VITIATED
“38. It is submitted that that the presence of common
members in the successive Review Committees and the
Representation Committee does not vitiate the decision -
making process nor does it establish any legally sustainable
inference of bias. The composition of these committees was
strictly in conformity with the consolidated instructions of the
2015 OM, which governed the field at the time.
39. As mentioned afore, under the 2015 OM, the Review
Committee for Group ‘A’ officers and ACC appointees is
required to be headed by the Secretary of the concerned
Ministry/Department acting as the Cadre Controlling Authority.
The instructions further stipulate that the CVO and a
representative of the cadre management authority must be
associated with the Review Committee.
***
41. In any case, departmental bias cannot be countenanced
for the simple reason that the Representation Committee,
despite the presence of the DGFT, initially acted in the
appellant’s favour by remanding the case for fresh
consideration rather than mechani cally affirming the
retirement. Furthermore, the committees only provide
recommendations; the final decision was taken by the Union
Minister of Commerce & Industry as the Appointing Authority.
The appellant has raised no allegations against the Minister,
who exercised independent mind in approving the retirement
in the public interest. The High Court, at paras 105, 123, and
125, affirmed their presence in the Review and Representation
Committees, dismissing the allegations of bias contended by
the appellant.”
i. THE SCOPE OF JUDICIAL REVIEW UNDER FR 56(J) IS LIMITED
“42. The locus classicus on Rule 56(j) is this Hon’ble Court’s
judgment in JN Sinha (1970) 2 SCC 458, which held that:
a. ‘If that authority bona fide forms that opinion [that it is in
public interest to compulsory retire the officer], the
correctness of that opinion cannot be challenged before
courts’;
16
b. ‘It is open to an aggrieved party to contend that the
requisite opinion has not been farmed or the decision is based
on collateral grounds or that it is an arbitrary decision.’
43. Based on JN Sinha, this Hon’ble Court noted that
‘[w]hether the order is correct or not is not to be gone into by
the court”
14
and that an ‘aggrieved civil servant can challenge
an order of compulsory retirement on any of the following
grounds as settled by several decisions of this Court: (i) that
the requisite opinion has not been formed; or (ii) that the
decision is based on collateral grounds; or (iii) that it is an
arbitrary decision’
15
.
44. The Appellant’s challenge proceeds on the erroneous
premise that judicial review of a decision taken under FR 56(j)
entails reassessment of the sufficiency or correctness of the
material considered by the competent authority, which is
contrary to the law settled by this Hon’ble Court.
45. The power conferred under FR 56(j) authorizes the
Appropriate Authority to retire a Government servant in the
public interest upon forming a bona fide opinion regarding his
continued utility in service. The satisfaction of the competent
authority is essentially subjective, and judicial review is strictly
confined to examining whether the decision is vitiated by mala
fides, arbitrariness, or is based on no material.
46. The scope of interference in such administrative acts has
come up for consideration in several judgments of this Hon’ble
Court. For ease of reference, the view taken by this Hon’ble
Court in Ram Murti Yadav v. State of U.P. (2020) 1 SCC
801, is reproduced hereunder:
‘6. ... The scope for judicial review of an order of compulsory
retirement based on the subjective satisfaction of the
employer is extremely narrow and restricted. Only if it is
found to be based on arbitrary or capricious grounds, vitiated
by mala fides, overlooks relevant materials, could there be
limited scope for interference. The court, in judicial review,
cannot sit in judgment over the same as an appellate
authority.’
***
48. Unlike departmental enquiries, the scope of enquiry under
FR 56(j) is limited. An enquiry under FR 56(j) is predicated on
public policy and the standard of adjudication is prima facie
subjective opinion as to his suitability for continuing in service
the requirement of the officer in public interest; it is for this
14
Paragraph 8 of Mayongbam Radhamohan Singh v. Chief Commr. (1976) 4 SCC 709.
15
Paragraph 8 of C.D. Ailawadi v. Union of India (1990) 2 SCC 328.
17
reason that no stigma is attached to an employee who is
compulsorily retired, such employee is entitled to all retiral
benefits and is also entitled to be considered for such other
appointments.
49. In the present case, the Review Committee meticulously
examined the Appellant's complete service dossier, including
APARs, vigilance inputs, confidential reports, and integrity-
related material. Following the Appellant's representation, the
matter was remitted for fresh consideration, whereupon the
Second Review Committee independently reassessed the
entire record before reiterating its recommendation.
Therefore, the decision was founded on relevant material,
reflects independent application of mind at multiple stages,
and satisfies the legal threshold of a bona fide subjective
satisfaction.”
18. In substance, therefore, learned ASG submitted that the challenge to
the order dated 10
th
May, 2018 seeks, under the guise of judicial
review, a reassessment of the service record and a substitution of the
Court's view for that of the competent authority. Such an exercise,
according to him, would run counter to the settled parameters
governing judicial review of an order passed under FR 56(j). He ,
accordingly, urged that the challenge be rejected.
ANALYSIS AND REASONS
19. Before we venture to consider the erudite arguments advanced before
us and look into the canvas of precedents cited as well as a few of
those, not cited, we need to put the matter in perspective by seeing,
verifying and ascertaining how the appellant was graded by his
superiors while he continued in service for nearly two dozen of years.
18
20. The relevant file produced before us by the learned ASG contains the
appellant’s Annual Confidential Report
16
booklets from 1994-95 to
2008-09 and APAR booklets from 2009 -10 to 2015-16 (drawn on 9
th
January, 2017). The ACR booklets required grading of an officer as
either Outstanding/Very Good/Good/Average/Below Average with an
instruction that an “officer should not be graded as outstanding unless
exceptional qualities and performance have been noticed; grounds for
giving such a grading should be clearly brought out”. The booklet on
APAR required “(N)umerical grading to be awarded by reporting and
reviewing authority which should be on a scale of 1-10, where 1 refers
to the lowest grade and 10 to the highest”.
21. Culled out from the original service records submitted before us by the
learned ASG, the following table bears out the gradings of the
appellant’s performance as given by his reporting officer as well as his
reviewing officer:
Year Grading/Remarks by the
Reporting Officer
Grading/Remarks
by the Reviewing
Officer
1994-95 Outstanding Agreed
1995-96 Outstanding Agreed
1996-97 Outstanding Agreed
1997-98 Outstanding Agreed
1998-99 Outstanding Agreed
1999-2000 Outstanding Agreed
2000-01 Outstanding Agreed
2001-02 Outstanding -
2002-03 Under Training -
2003-04 Outstanding Agreed
2004-05 Outstanding Agreed
2005-06 Outstanding Agreed
16
ACR
19
2006-07 Part- I: Feb 06 to Sept 06 –
Outstanding
Part- II: Oct 06 to March 07 –
Very Good
Agreed
Disagreed;
graded
“outstanding”
2007-08 Very Good Agreed
2008-09 Outstanding Agreed
2009-10
01.08.2009
to
31.01.2010
7.9
8.23
2010 to
31.03.2011
8.0
8.5
01.04.2011
to
31.12.2011
8.0
8.06
Jan to
March 2012
8.5 Review could not be
recorded
01.04.2012
to
31.01.2013
8.6 Review could not be
recorded
2013-14 9.8 Agreed
2014-
31.03.2015
8.75 (“There is room for
improvement”)
Agreed
2015-16 9.6 Agreed
2016-17 8.12 7.28
(emphasis ours, to signify the reviewing officer’s disagreements with the
reporting officer)
22. For all the OUTSTANDING gradings given to the appellant, the reporting
and the reviewing officers indicated special reasons therefor. The
reporting year 1998-99, as the discussion unfolds, would assume some
importance. That was the period when the appellant had completed
barely 5 (five) years in service. Against Sl. No.3A requiring comment
on the appellant’s knowledge of sphere of work, the remark of the
reporting authority read “Encyclopaedic knowledge of rules,
regulations, related instructions and their applications”. The reviewing
officer did not take a different view. The same trend continued.
20
23. What does not escape our notice is that the order compulsorily retiring
the appellant was passed on May 10
th
, 2018 despite the assessment
as borne out from the table hereinabove and a couple of months after
he earned a regular promotion on February 27
th
, 2018 as Joint
Secretary. As things stood thus, the question does emerge, could the
appellant’s record preceding the order of compulsory retirement be
fairly characterised as one of persistent ineptitude, deteriorating
performance or recurring misconduct? This provided the reason for us
to call for and look into the two decisions of the Review Committee and
those of the Representation Committee. Undisputedly, the material
adduced before us records repeated assessments qua various heads
including competence, knowledge, leadership and integrity, as well as
high gradings of OUTSTANDING/VERY GOOD coupled with gradings of 8+
on all but one occasion and high assessments of 9.8 and 9.6 on two
occasions, and also a favourable assessment in the realm of anti -
dumping, in which the alleged professional misconduct is now said to
have occurred.
24. As noted above, the appellant was found suitable for promotion to
Senior Administrative Grade upon acceptance of the recommendation
of the Union Public Service Commission
17
and with the approval of the
ACC, was promoted on November 16
th
, 2017. His promotion was later
regularised in February 2018.
17
UPSC
21
25. The Review Committee met shortly after the selection and consequent
promotion: on 27
th
November, 2017, to be precise . There is no
identifiable intervening alleged act of misdemeanour occurring
between the promotion and the retirement , which could reasonably
explain this dramatic reversal. The relevant findings of the Review
Committee dated 27
th
November, 2017, qua the appellant, bears out
as follows:
"f. Shri S. S. Das (ITS-1989) — The Committee noted that intent and
conduct of Shri Das, while dealing with files as well as with clients,
has been obstructive and questionable. He does not hold a good
reputation in terms of integrity. This fact is borne out by
entries in his APAR dossier. On few occasions, during different
spells of his posting in DGAD, his unprofessional conduct has
been taken on record also . In one case Shri Das was charged
with insubordination. In other case, it has been reported that the
officer’s approach in handling the cases has been
unprofessional and of questionable integrity.
The Committee noted that the officer was recently promoted to
the post of Additional DG. However, it was observed that as at the
time of the promotion, the officer was technically clear from
vigilance angle (in terms of extent instructions of DoP&T on
granting vigilance clearance for promotion), the officer was
promoted.
The Committee recommended premature retirement of the
officer in public interest, taking into account the questionable
reputation arid conduct of the officer."
(emphasis ours)
26. Based on such recommendation, the appellant was informed by a
communication dated 10
th
May, 2018 of the Joint Director General of
Foreign Trade, Department of Commerce, Government of India as
follows:
WHEREAS the President is of the opinion that it is in the public
interest to do so;
22
NOW THEREFORE, in exercise of the powers conferred by clause (j)
pof the Fundamental Rules, the President hereby retires Shri S.S.
Das, Development Commissioner, with immediate effect, he having
already attained the age of 50 years. The President also directs that
Shri Das shall be paid a sum equivalent to the amount of his pay plus
allowances for a period of three months calculated at the same rate
at which he was drawing them immediately before his retirement.
27. Appellant submitted a detailed representation on 1
st
June, 2018 urging
several grounds. Sub-paragraphs (37) and (38) of paragraph 2, inter
alia, capture the essence of the appellant’s contentions; hence, they
are quoted hereunder:
37. All the APARs, including the last one in December, 2017, show
that my integrity for the entire period has been beyond doubt.
Nothing adverse has been recorded by any reporting officer in any of
the APARs.
38. It appears that the Review Committee has completely
disregarded the brilliant track record as outlined above and treated
me as deadwood. It may be appreciated from the above records
placed before the Representation Committee, neither incompetency
or integrity can be a reason for the action against me under 56(j),
whereas these are the only two grounds for action unde r this
provision.
28. At this juncture, we may notice that the veracity of the averments
made by the appellant in the representation, extracted hereinabove,
can be inferred in light of the ACRs and APARs, over the years spanning
his service, a part whereof is extracted in the table in paragraph 34
(infra).
29. The Representation Committee in its meeting dated 7
th
September,
2018 proceeded to consider the appellant’s representation. Relevant
findings of the Representation Committee qua the appellant are set
out as follows:
7.1. The Representation Committee perused the representation of
Shri S.S. Das along with other relevant records including his personal
23
life, confidential note from the Director General of Anti-Dumping &
Allied Duties (now DGTR) and overall APAR grading. The Committee
has noted that, in a Confidential Note dated 30.03.2017, Shri Inder
Jit Singh, former AS & DGAD, has highlighted the ‘unprofessional’
approach of Shri Das in handling cases with calculations and
conclusions varying several times and pushing for some principles
which as per existing rules/conventions of DGAD are not allowed. The
Committee was informed that the applicant does not hold a good
reputation in terms of integrity. However, the Committee noted that
Shri Das had been recently promoted to the post of Additional
Director General of Foreign Trade on 16.11.2017, based on the
recommendation of UPSC.
8. In view of the above detailed examination of the representations,
the Representation Committee decided to uphold the decision of the
Department of Commerce for premature retirement in respect of Shri
***, Shri *** and Shri *** under FR 56(j), as it does not find any
merit in the representation of these officers.
9. However in the case of Shri S.S. Das, the Representation
Committee recommends that the case be remanded back to the
Department for taking it back to the designated Review Committee
for re-examination of their recommendation and then placing it
before the competent authority for appropriate decision.
(emphasis ours)
30. The decision was entirely justified, having regard to the appellant’s
brilliant track record. Post the remand by the Representation
Committee, the Review Committee was re -convened on 3
rd
May, 2019
with two common and two new members. The Review Committee,
after making certain introductory remarks in the first 5 (five)
paragraphs noted the grounds urged by the appellant in paragraph 6.
Paragraphs 7 to 9 were devoted to consideration of circulars issued by
the Department of Personnel & Training
18
. Thereafter, in paragraphs 10
to 15, this is what the Committee recorded:
“10. The Committee examined the APAR dossier of Shri Das and
noted that in a few APARs of Shri Das, there are remarks that cast
18
DoPT
24
doubts on the integrity of the officer. In APAR of 1998-1999, the
reporting officer has recorded in Integrity column that “a few
complaints received - no substance found”. In APAR of 2014-15, the
reporting officer has recorded in the integrity column that “There is
room for improvement”. The APAR of 2014-15 was disclosed to the
officer. However, Shri Das did not submit any representation.
11. The Committee noted that during the posting of Shri Das as
Addl DGFT in DGAD (now DGTR), a Confidential Note dated
30.03.2017 from the then Additional Secretary & DGAD was received
by DGFT, through the Commerce Secretary, which, inter alia, stated
as under, in respect of Shri Das:
‘His overall approach in handling a recent case was unprofessional,
with calculations and conclusions varying several times. During the
processing of this case, he tried to push for some principles, which,
as per existing rules/conventions of DGAD, are not allowable, and
have not been allowed in the past in any other case.
Yesterday (29.03.2017), some of the representatives of domestic
industry applicants in this case met me and made serious
allegations against Shri Das, including demand of some favours in
return for doing something in this case. However, considering the
nature of allegations, they were reluctant to give written complaint
regarding this.
Notwithstanding that there is no evidence in support of the
allegations, and not even a written complaint, considering various
aspects, and the way Sh. Das has been handling this case, in the
interest of organization, and in public interest, it appears desirable
that not only he is disassociated from this cases investigations, but
immediately transferred out of DGAD and posted in some non
sensitive post. I understand Sh. Das is one of the longest serving
officers in DGAD.’
12. To corroborate the context of the above mentioned
confidential note, the concerned file of DGAD was also examined. It
was noted by the Committee that in a particular case of anti-dumping
investigation, Shri Das had presented his calculations based on
certain principles, which were inconsistent w ith established
norms/conventions. The then AS&DGAD had then noted on the file,
as under:
‘Freight Adjustments - we go by existing practice. The issue will be
examined separately as a general issue and then whatever
decision is taken will be followed for all cases……’
13. The Committee also interacted with the said former AS &
DGAD, to further understand the case referred to in his confidential
note. He observed that while the general reputation of the officer was
anyway not good in terms of integrity, in the case under reference,
the industry representatives confided before him in person that Shri
Das demanded certain favours from industry for dealing the case in
a particular manner. He stated that it is on record that the officer
deviated from the existing rules/convention s, and submitted a
proposal in favour of the firm, on a principle, which is neither
allowable and nor has been allowed in the past. He observed that,
prima facie, the noting of Shri Das in the file on this case was
motivated to favour few firms.
25
14. The Committee noted that in the year 2014 -15, the then
reporting officer of Shri Das had explicitly observed in the integrity
column “there is room for improvement”. As mentioned in the above
paragraphs, the then AS & DGAD also questioned the integrity of Shri
Das in 2017 through his confidential note. The Committee noted that
Shri Das, thus, did not improve his conduct, even after he was made
aware of the impression about his integrity, through the remarks in
the “integrity column” in APAR of 2014-15.
15. The Committee noted that, it was also a fact that, the officer
had been promoted to the post of Additional DG in November 2017.
The Committee examined the issue and noted that, as the officer was
technically clear from vigilance angle in terms of the exta nt
instructions of DoPT, on granting vigilance clearance for promotion
(DoPT OM No. 22011/4/91-Estt (A) dated 14.09.92), the officer could
not have been denied the promotion.”
(italics in original)
Thereafter, the Review Committee reverted and referred to circulars of
the DoPT as well as decisions of this Court, viz. State of Gujarat v.
Umedbhai M. Patel
19
, S Ramachndra Raju v. State of Orissa
20
,
Shri K. Kandaswamy v. Union of India
21
, State of UP & Others
v. Vijay Kumar Jain
22
, Shyam Lal v State of UP
23
, Baikuntha Nath
Das v. District Medical Officer
24
, Col. J.N. Sinha (supra) and
Shivcharan Singh v. State of Mysore
25
, in paragraphs 16 to 23; and
ultimately, it recorded its findings in paragraphs 24 and 25, reading as
follows:
“24. In view of the reasons given above, the Committee did not find
the contentions of Shri Das tenable. Further, the Committee did not
find any new fact, which could have a bearing on changing the earlier
recommendation on compulsory retirement, notwithstandin g the
claims made by Shri Das in his representation, including the fact that
he had been promoted to a higher post recently. On the other hand,
the Committee strongly felt that at senior levels of bureaucracy, the
19
(2001) 3 SCC 314
20
(1994) 3 SCC 424
21
(1995) 6 SCC 162
22
Civil Appeal No. 2083 of 2002
23
(1955) 1 SCR 26
24
(1992) 2 SCC 299
25
AIR 1965 SC 280
26
integrity of the officer in terms of his conduct and action is of
paramount importance. The Committee noted that the instructions of
DoPT and judgments of the Supreme Court also emphasize on the
integrity of the officer in review under FR 56(j).
25. The Committee, after careful consideration of the
representation of Shri Das and all the relevant facts presented before
the Committee, observed that integrity of a public servant and, that
too, at such high levels of decision-making, has to be above board.
The Committee observed that continuation of the officer in the
Government would be injurious to public interest. The Committee,
therefore, decided in public interest to reaffirm the earlier
recommendation of compulsory retirement in respect of Shri S.S Das,
ITS.”
31. The matter, thereafter, was once again placed before the
Representation Committee in its meeting held on 28
th
May, 2019. One
of the members of the Representation Committee happened to be the
officer who had issued the order of compulsory retirement dated 10
th
May, 2018, on behalf of the President. It was recorded inter alia in the
decision as follows:
“22. The Committee was informed that the Review Committee did
not find any new fact, which could have a bearing on changing the
earlier recommendation on compulsory retirement, notwithstanding
the claims made by Shri Das in his representation, including the fact
that he had been promoted to a higher post recently. On the other
hand, the Review Committee strongly felt that at senior levels of
bureaucracy, the integrity of the officer in terms of his conduct and
action is of paramount importance. The Committee not ed that the
instructions of DoPT and judgments of the Supreme Court also
emphasize on the integrity of the officer in review under FR 56(j).
23. The Committee was informed that, in view of the reasons given
above, the Review Committee did not find the contentions of Shri Das
tenable and after careful consideration of the representation of Shri
Das and all the relevant facts, the Review Committee observed that
integrity of a public servant and, that too, at such high levels of
decision-making, has to be above board. The Committee was
informed that the Review Committee observed that continuation of
the officer in the Government would be injurious to public interest
and, therefore, decided in public interest to reaffirm the earlier
recommendation of compulsory retirement in respect of Shri S.S.
Das, ITS.
24. The Committee was informed that the competent authority in
the Department of Commerce has accepted the recommendation of
27
the Review Committee to uphold, in public interest, the compulsory
retirement of Shri S.S. Das, under FR 56(j).
25. The Committee, after detailed deliberations on all the facts
relating to the dubious integrity of Shri Das, the instructions of DoPT
and court judgments thereon, the relevant records of Shri Das and
the considered view of the Department after re-examination of the
case, decided to uphold the decision of the Department of Commerce
on premature retirement of Shri S.S. Das (ITS:89). The
representation of Shri Das was rejected as being devoid of merit.”
32. The Review Committee, on remand, appears not to have left any stone
unturned to maintain its earlier decision. As is evident, on a bare
reading thereof, the Review Committee referred to and drew support
from several decisions of this Court to ex post facto justify its
conclusion. The Representation Committee though had applied its
mind on the first occasion while ordering a remand, with two common
members and a new member (the officer who passed the impugned
order) mechanically upheld the decision of the Review Committee
without proper application of mind which would be apparent from the
discussions to follow.
33. An officer of doubtful integrity ought not to be retained in service. We
had, thus, specifically called upon the learned ASG to point out from
the ACR and the APAR booklets the instances when either the
Reporting Officer or the Reviewing Officer of the appellant commented
adversely against his integrity. Candidly, he submitted that apart from
what are recorded in paragraphs 10 to 14 of the decision of the Review
Committee, on remand, there is no other adverse comment.
34. To satisfy our conscience, we once again looked into the ACR and APAR
booklets. Our scrutiny reveals the following startling results:
28
Year Remarks on Integrity by
the Reporting Officer
Remarks on quality
of output by the
Reporting Officer
1994-95 Nothing adverse
known/reported
The quality of output
was excellent
1995-96 Nothing adverse
known/reported
The quality of output
was excellent
1996-97 Very honest The performance has
been excellent both
quantitatively as
qualitatively.
1997-98 Above doubt The quality of his
output has been of
very high standard at
all times.
1998-99 A few complaints received –
no substance found.
Consistently high
quality of output
1999-2000 Nothing against Generally of very high
order.
2000-01 No complaints Excellent at all times.
2001-02 Nothing against The quality of his
work has been
consistently high.
2002-03 Under Training – No ACR
required
Under Training – no
remarks
2003-04 Integrity beyond doubt. The work load has
been increasing in the
DGAD. Sri Das’s
quality of
performance was of a
very high order. All
the findings finalised
by him were
approved.
2004-05 Integrity beyond doubt. He has demonstrated
his abilities and high
standard of work
during the period of
reporting. He has
completed all the
investigation work
entrusted to him. The
quality of the analysis
and findings was
excellent.
29
1.4.2005-3.1.2006
Integrity is beyond doubt. The quality of work
done by Mr. Das is of
a very high standard.
He has fulfilled all the
objectives within the
time frame without
any dilution of
quality. Very
commendable work
was done during this
period.
2006-07 Part- I: Feb 06 to Sept 06 –
Very Good
Part- II: Oct 06 to March 07 –
Nothing serious has come to
my knowledge. Hence
integrity is certified.
Excellent. The officer
is very hard-working
and his standard of
work is excellent.
The quality of his
output has been very
good inspite of time
constraints.
2007-08 His integrity is certified. I rate him as very
good for quality of his
output.
2008-09 Integrity is beyond doubt. Shri Das has
demonstrated his
abilities and high
standards of work
during this period. He
has been able to
collect, collate,
analyse and present
all suggestions, views
and data on various
issues in respect of
financial crisis and
provided effective
assistance to the
committee of officers
in its day-to-day
work.
2009-10
01.08.2009
to
31.01.2010
Sound
Overall grading on
work output: 8
2010-11 Nothing adverse has come to
my notice, so integrity
certified.
Overall grading on
work output: 8
30
01.04.2011
to
31.12.2011
Nothing adverse came to my
notice, so integrity certified.
Overall grading on
work output: 8
Jan to
March 2012
Nothing adverse has come to
my notice
Overall grading on
work output: 8.6
01.04.2012
to
31.01.2013
Nothing adverse has come to
my notice, hence certified.
Overall grading on
work output: 8.9
2013-14 Nothing adverse came to
notice during the period under
report. Beyond doubt.
Overall grading on
work output: 9.75
2014-
31.03.2015
There is room for
improvement.
To be noted: all other
comments hitherto were
handwritten; this comment
is pasted after printing.
Overall grading on
work output: 8.7
2015-16 Heard nothing against him. Overall grading on
work output: 9.75
2016-17 Heard nothing adverse
against him
Overall grading on
work output: 8.25
(emphasis ours, signifying a departure from earlier and future entries)
35. Having taken note of the recommendations/observations from the
relevant departmental file, it is appropriate to remind ourselves that
the scope of judicial review in matters of compulsory retirement is
limited and the Court is duty bound to examine in each case as to what
extent such order is justiciable. We consider the stage to be ripe to
draw guidance from precedents in this behalf.
36. We begin with the granular proposition, positioned beyond the pale of
any controversy, that compulsory retirement in public interest is not
per se punitive. The authorities, including Shyam Lal (supra) and Col.
J.N. Sinha (supra), heavily relied upon by the ASG for the respondent,
map out the broad contours of that power.
31
37. Baikuntha Nath Das (supra) is a three-Judge Bench decision,
reliance whereon has been placed both by the learned ASG and the
Review Committee. The controversy mainly re lated to the effect of
reliance placed on uncommunicated adverse remarks ; whether it is
fatal to the sustainability of an order of compulsory retirement. This
appeal does not involve uncommunicated adverse remarks because
hardly any adverse remark is traceable in the appellant’s ACR/APAR.
However, this decision highlights to what extent judicial review of an
order of compulsory retirement is permissible. It also adumbrates the
effect of a promotion earned on merit, and not seniority, resulting in
taking the sting out of previous adverse remarks. Relevant passages
from such decision capturing the law on the point read as follows:
32. We may not be understood as saying either that adverse remarks
need not be communicated or that the representations, if any,
submitted by the government servant (against such remarks) need
not be considered or disposed of. The adverse remarks ought to be
communicated in the normal course, as required by the rules/orders
in that behalf. Any representations made against them would and
should also be dealt with in the normal course, with reasonable
promptitude. All that we are saying is that the action under F.R. 56(j)
(or the rule corresponding to it) need not await the disposal or final
disposal of such representation or representations, as the case may
be. In some cases, it may happen that some adverse remarks of the
recent years are not communicated or if communica ted, the
representation received in that behalf are pending consideration. On
this account alone, the action under F.R. 56(j) need not be held back.
There is no reason to presume that the Review Committee or the
government, if it chooses to take into consideration such
uncommunicated remarks, would not be conscious or cognizant of
the fact that they are not communicated to the government servant
and that he was not given an opportunity to explain or rebut the
same. Similarly, if any representation made by the government
servant is there, it shall also be taken into consideration. We may
reiterate that not only the Review Committee is generally composed
32
of high and responsible officers, the power is vested in government
alone and not in a minor official. It is unlikely that adverse remarks
over a number of years remain uncommunicated and yet they are
made the primary basis of action. Such an unlikely situation, if indeed
present, may be indicative of malice in law. We may mention in this
connection that the remedy provided by Article 226 of the
Constitution is no less an important safeguard. Even with its well
known constraints, the remedy is an effective check against mala
fide, perverse or arbitrary action.
33. At this stage, we think it appropriate to append a note of
clarification. What is normally required to be communicated is
adverse remarks — not every remark, comment or observation made
in the confidential rolls. There may be any number of remarks,
observations and comments, which do not constitute adverse
remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule
corresponding to it. The object and purposes for which this power is
to be exercised are well stated in J.N. Sinha and other decisions
referred supra.
34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies
no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the
opinion that it is in the public interest to retire a government servant
compulsorily. The order is passed on the subjective satisfaction of the
government.
(iii) Principles of natural justice have no place in the context of an
order of compulsory retirement. This does not mean that judicial
scrutiny is excluded altogether. While the High Court or this Court
would not examine the matter as an appellate court, they m ay
interfere if they are satisfied that the order is passed (a) mala fide or
(b) that it is based on no evidence or (c) that it is arbitrary — in the
sense that no reasonable person would form the requisite opinion on
the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be)
shall have to consider the entire record of service before taking a
decision in the matter — of course attaching more importance to
record of and performance during the later years. The record to be
so considered would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
government servant is promoted to a higher post notwithstanding
the adverse remarks, such remarks lose their sting, more so, if the
promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by
a Court merely on the showing that while passing it uncommunicated
33
adverse remarks were also taken into consideration. That
circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in ( iii)
above. This aspect has been discussed in paras 30 to 32 above.
(emphasis ours)
38. Another three-Judge Bench in State of Punjab v. Gurdas Singh
26
considered whether uncommunicated adverse entries in service
records could be relied on by the employer to compulsorily retire an
employee. Answering in the affirmative, the Bench held:
11. … It is not necessary for us to again reiterate the principles where
the Court will interfere in the order of premature retirement of an
employee as these have been accurately set down by various
pronouncements of this Court and particularly in Baikuntha Nath Das
case. Before the decision to retire a government servant prematurely
is taken the authorities are required to consider the whole record of
service. Any adverse entry prior to earning of promotion or crossing
of efficiency bar or picking up higher rank is not wiped out and can
be taken into consideration while considering the overall performance
of the employee during whole of his tenure of service whether it is in
public interest to retain him in the service. The whole record of
service of the employee will include any uncommunicated adverse
entries as well.
(emphasis ours)
39. Soon followed the decision of a coordinate Bench in Umedbhai M.
Patel (supra), which had the occasion to observe that the law relating
to compulsory retirement had crystallised into definite principles. The
relevant passage reads as follows:
11. The law relating to compulsory retirement has now crystallised
into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to
the general administration, the officer can be compulsorily retired for
the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated
as a punishment coming under Article 311 of the Constitution.
26
(1998) 4 SCC 92
34
(iii) For better administration, it is necessary to chop off dead wood,
but the order of compulsory retirement can be passed after having
due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be
taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also
be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short
cut to avoid departmental enquiry when such course is more
desirable.
(vii) If the officer was given a promotion despite adverse entries
made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive
measure.
(emphasis ours)
40. Moving further, we observe that another coordinate Bench in
Rajasthan SRTC v. Babu Lal Jangir
27
was of the following opinion:
23. … this “washed-off theory” will have no application when the case
of an employee is being assessed to determine whether he is fit to
be retained in service or requires to be given compulsory retirement.
The rationale given is that since such an assessment is based on
“entire service record”, there is no question of not taking into
consideration the earlier old adverse entries or record of the old
period. We may hasten to add that while such a record can be taken
into consideration, at the same time, the service record of the
immediate past period will have to be given due credence and
weightage. For example, as against some very old adverse entries
where the immediate past record shows exemplary performance,
ignoring such a record of recent past and acting only on the basis of
old adverse entries, to retire a person will be a clear example of
arbitrary exercise of power. However, if old record pertains to
integrity of a person then that may be sufficient to justify the order
of premature retirement of the government servant.
(emphasis ours)
41. Our understanding of the law is this. The proposition that an order of
compulsory retirement in public interest is non-punitive does not
elevate itself into a mantra which, by its mere invocation, can validate
27
(2013) 10 SCC 551
35
such order and repel all challenges laid to it. Exercise of power, which
is non-punitive, nevertheless remains bound by the precincts of a
public power. The object of compulsory retirement is to enable the
administration to dispense with the services of public servants who,
when viewed in the prism of public interest, have been rendered dead
wood and, thus, outlived their utility. Either the public servant who is
ordered compulsory retirement has, by passage of time, become
inefficient to perform the duties and functions entrusted to him or his
integrity is doubtful – these are the prime criteria triggering the need
for such an order. However, a promotion earned on merits, and not by
dint of seniority alone, immediately prior to such order of compulsory
retirement being made would, by itself, render the order susceptible
to invalidity. This is for the reason that the merit-based promotion, not
long ago, would stand as proof of a recent and objective assessment
of the entire service record and a finding that the servant is fit for
shouldering higher responsibilities, which is irreconcilable with the
finding and thus negates the very foundation of the order, namely, that
the servant has become dead wood, or is of doubtful integrity, and has
outlived his utility. Any order of compulsory retirement partaking the
character of a backdoor disciplinary proceeding, clandestinely avoiding
the safeguards embodied in Article 311 of the Constitution, would be
indefensible.
42. The sentiment which animates our consideration herein finds eloquent
and prescient expression in the judgment of Hon’ble Krishna Iyer, J. in
36
Baldev Raj Chadha v. Union of India
28
, where the learned Judge
aptly observed:
9. We will consider this question to the extent disclosed by the record
and in the light of the submissions made by both the parties. The
whole purpose of the rule is to weed out the worthless without the
punitive extremes covered by Article 311 of the Constitution. After
all, Administration, to be efficient, must not be manned by drones,
do nothings, incompetents and unworthies . They may not be
delinquent who must be punished but may be a burden on the
Administration if by insensitive, insouciant, unintelligent or dubious
conduct impede the flow or promote stagnation, in a country where
speed, sensitivity, probity, and non-irritative public relations and
enthusiastic creativity are urgently needed but paperlogged
processes and callous cadres are the besetting sin of the
Administration. It is in public interest to retire a never-do-well, but
to juggle with confidential reports when a man's career is at stake is
a confidence trick contrary to public interest. Moreover, confidential
reports are often subjective, impressionistic and must receive
sedulous checking as basis for decision-making. The appropriate
authority, not the court, makes the decision, but, even so, a caveat
is necessary to avoid misuse.
(emphasis ours)
43. Learned ASG submitted, on the anvil of the rulings in Pyare Mohan
Lal v. State of Jharkhand
29
and Central Industrial Security Force
v. Om Prakash
30
that the “washed-off” theory does not automatically
apply in cases of compulsory retirement and that the entire service
record may be considered eve n subsequent to promotion. This
proposition is unexceptionable. However, there is a difference between
saying that earlier material may be considered and saying that earlier
isolated materials must necessarily yield to a consistent and long-
28
(1980) 4 SCC 321
29
(2010) 10 SCC 693
30
(2022) 5 SCC 100
37
standing stellar record. The following passage from Pyare Mohan Lal
(supra), as relied upon by the respondents, illumines the position as
thus:
24. In view of the above, the law can be summarised to state that in
case there is a conflict between two or more judgments of this Court,
the judgment of the larger Bench is to be followed. More so, the
washed-off theory does not have universal application. It may have
relevance while considering the case of government servant for
further promotion but not in a case where the employee is being
assessed by the reviewing authority to determine whether he is fit to
be retained in service or requires to be given compulsory retirement,
as the Committee is to assess his suitability taking into consideration
his “entire service record”.
44. The passage extracted hereinbelow from the decision in Om Prakash
(supra) lends clarity to the proposition sought to be enunciated herein:
13. There are numerous other judgments upholding the orders of
premature retirement of judicial officers inter alia on the ground that
the judicial service is not akin to other services. A person discharging
judicial duties acts on behalf of the State in discharge of its sovereign
functions. Dispensation of justice is not only an onerous duty but has
been considered as discharge of a pious duty, therefore, it is a very
serious matter. This Court in Ram Murti Yadav v. State of U.P. [Ram
Murti Yadav v. State of U.P., (2020) 1 SCC 801 : (2020) 1 SCC (L&S)
245] held as under : (SCC p. 805, para 6)
“6. … The scope for judicial review of an order of compulsory
retirement based on the subjective satisfaction of the employer is
extremely narrow and restricted. Only if it is found to be based on
arbitrary or capricious grounds, vitiated by mala fides, overlooks
relevant materials, could there be limited scope for interference. The
court, in judicial review, cannot sit in judgment over the same as an
appellate authority. Principles of natural justice have no application
in a case of compulsory retirement.”
14. Thus, we find that the High Court has … wrongly applied the
principles laid down therein. The adverse remarks can be taken into
consideration as mentioned in the number of judgments mentioned
above. …
15. The entire service record is to be taken into consideration which
would include the ACRs of the period prior to the promotion . The
order of premature retirement is required to be passed on the basis
38
of entire service records, though the recent reports would carry their
own weight.
(emphasis ours)
45. The common thread which runs through all the precedents is not that
a promotion wipes out the past; rather, while the promotion on its own
footing does not simpliciter erase the past, yet, the past must be
posted in the prism of the entire service record, with appropriate
accord being ascribed to the immediate past.
46. We hasten to observe that the authorities, referred to and/or relied
upon by the Review Committee, as detailed in paragraph 30, however,
appear to have been invoked with a degree of selectivity that is difficult
to reckon with the wider body of jurisprudence governing the exercise
of the power of compulsory retirement. The Review Committee placed
its reliance upon those propositions which supported the power to take
into account past adverse material, thereby skirting from meaningfully
engaging with the equally material limitations and qualifications
embedded in the same line of authority, particularly the requirement
that the entire service record be considered, that the immediate past
be accorded due weight, and that promotion notwithstanding earlier
adverse material is a factor inuring in favour of the officer. Such a
selective bureaucratic reliance only on a particular subset of
precedents favouring the department, divorced from the qualifications
and balancing principles which accompany the propositions relied
upon, cannot furnish a rational basis for the exercise of power under
FR 56(j). The vice, therefore, is not in the propositions canvassed by
39
the Review Committee, but rather, in their selective invocation and
application, to justify, ex post facto, a decision already taken.
47. Even assuming, for the sake of argument, that the submissions
advanced by the respondent are correct, the same falter considerably
when tested on the very principles so canvassed qua the case of the
appellant.
48. Respondent-department was certainly entitled to review the services
of the appellant, notwithstanding his promotion. But where the very
same departmental machinery had, after consideration of his record,
found him fit for a higher post of Joint Secretary, the subsequent
conclusion that his continuance was no longer in public interest
required more than a general invocation of the expression
“questionable integrity”. The question, therefore, is not whether
promotion offers carte blanche immunity against review of earlier
service records, rather the question is whether the promotion, coupled
with the subsequent record, constitutes relevant material which the
reviewing authority has to meaningfully weigh. In our considered view,
it does.
49. The order retiring the appellant compulsorily taking the aid of FR 56(j)
suffers from a manifest contradiction and is not sustainable, being
thoroughly vitiated by malice in law. We may again refer to the decision
in Baikuntha Nath Das (supra) wherein this Court held that while
judicial review is generally impermissible against the orders of
compulsory retirement, nevertheless, where the order evinces
40
manifest arbitrariness, perversity or mala fides, judicial review would
not be foreclosed. We deem it fit to observe that this is a fit case, in
which, the order smacks of arbitrariness, perversity and mala fides,
warranting the case for judicial interference in full force.
50. As the gradings in his dossiers reflect, the appellant was consistently
graded as OUTSTANDING/VERY GOOD right from 1994 till 2008-09. The
system changed from ACR to APAR in due course. From 2009-10
onwards, the gradings bore assessment in figures out of a maximum
10. Here too, the appellant never fell below 8 out of 10, except on one
occasion and that too on review . A grading of 8+, if considered
equivalent to OUTSTANDING, the question of any adverse entry in the
APARs may not have arisen. Despite repeated reading, we have not
noticed any adverse comment. To repeat, the appellant was found fit
for promotion by none other than the UPSC and granted promotion to
the post of Joint Secretary barely two months prior to the order of
retirement with the approval of the ACC. Such grant of promotion was
an unequivocal recognition by the department concerned that the
appellant’s service was not only highly satisfactory and meritorious but
that he was an officer who should be entrusted higher responsibilities.
Having promoted the appellant, barely a couple of months later, the
superior officers in the department could not have branded him, so to
say, ‘dead wood’ to justify weeding him out in purported public
interest. The two actions are mutually destructive and cannot co-exist.
41
51. Law is well-settled that FR 56(j) can neither be invoked as a shortcut
to avoid regular proceedings nor as a device to retire an officer either
without material or to wreak vengeance or to satisfy vested interests.
When ‘OUTSTANDING’ gradings are followed by a promotion, a
subsequent subjective satisfaction that the service is not up to the
required mark, without any intervening adverse material, could be
declared ex facie arbitrary, perverse and a colourable exercise of
power.
52. Let us now consider each of paragraphs 10 to 14 which form the base
of the decision of the Review Committee, on remand, for compulsorily
retiring the appellant.
53. Consideration of paragraphs 10 and 14 are taken up together, since
they are inter-linked. Paragraph 10 starts with the observation that
examination of the APAR dossier of the appellant reveals remarks in a
few APARs which cast doubts on the appellant’s integrity. The opening
statement of paragraph 10, if viewed in isolation, could be a damning
statement for the appellant. However, fortunately for the appellant,
this statement stands qualified by reference being made to the
appellant’s APAR of 1998-99 (it was not the APAR then, but the ACR
that the members of the Review Committee were referring to) and the
APAR of 2014-15. Apart from these two instances referred to by the
Review Committee, there is not even a slight hint of the appellant’s
integrity being questionable.
42
54. Reverting to the column on ‘Integrity’ in the appellant’s ACR of 1998-
99, where the Reporting Officer recorded having received complaints
but not finding substance in such complaints, the question that we
posed to the learned ASG was whether this at all a relevant
consideration? Apart from the fact that the ACR related to a period 20
(twenty) years prior to the order of compulsory retirement, n o
importance was given by the Review Committee to the comment that
the complaints lack substance; on the contrary, what appeared to be
important to the members was that complaints were received, not that
such complaints lacked substance. If this does not amount to
arbitrariness, we wonder what would!
55. Next, what appears to have weighed with the members of the Review
Committee was the reporting officer’s remark in the column on
Integrity in the APAR of 2014-15 that “there is room for improvement”
and the appellant’s omission in not submitting any representation
thereagainst. Several questions were posed, which remain
unanswered because a befitting reply was simply not available. Would
any officer be graded as high as 8.75 if the said comment were
regarded as an adverse remark of the reporting officer? Could this
remark, by itself, evince a lack of integrity on the part of the appellant?
Regrettably, the Review Committee failed to consider that d uring
2014-15, the appellant was graded 8.75. Since 10 was the highest
grade, effectively what it could mean is that the range for improvement
was between 8.75 and 10, i.e., the appellant fell short by 1.25. Having
43
been graded as high as 8.75, could there be any real reason for an
officer to make a representation? Did the members of the Review
Committee notice that in the previous year, i.e., 2013-14, the appellant
was graded 9.8 which fell to 8.75 in 2014-15? Could this not have been
the reason for the reporting officer to record that there was room for
improvement? Is the sincerity of the appellant too not evident from
the facts that when his grading fell from 9.8 in 2013-14 to 8.75 in
2014-15, instead of making a representation, the appellant took the
criticism in the right spirit, introspected and raised his performance to
secure a grading of 9.6 in the very next year, i.e., 2015 -16? The
materials on record bear true reflection of what can be associated with
the appellant, that is, nothing short of an exceptional and blemish less
track record. Since the entire service record has to be seen with
greater emphasis on the ACRs/APARs of the years immediately
preceding the order of compulsory retirement, bare perusal of the
ACRs/APARs for the last twenty years would vouch for the fact that,
except for 2002-03 when there was no grading since the appellant was
undergoing training and for 2 periods [1
st
October, 2006 till 31
st
March,
2008 and April to July of 2009] when the appellant was graded as VERY
GOOD, he has consistently been graded as OUTSTANDING for all the
remaining years. Having regard thereto, we have no hesitation to
record that malice is writ large on the decision of the Review
Committee while maintaining its earlier recommendation.
44
56. Paragraphs 11 to 13 dealt with the confidential note of the then
Additional Secretary & DGAD, quoted by the Review Committee. The
said note is not only bizarre, but sinister in its design. The immediate
and inevitable question that arises on its perusal is, was the then
Additional Secretary acting to protect the interest of the department
or to espouse the cause of the representatives of the domestic
industry? Had the appellant asked for any favour from the
representatives of the domestic industry, yet, they were not prepared
to lodge any written complaint, did such oral accusation deserve
cognisance, let alone credence? Was there any material before the said
Additional Secretary that the principles which the appellant was
allegedly pushing for which, according to such officer, were not
allowable as per rules/conventions of DGAD, were not intended to
subserve public revenue, but to promote private interest? Did the
appellant act in any manner involving the barest possibility of loss in
revenue generation? Was the appellant, having encyclopaedic
knowledge of the rules, regulations and departmental instructions ,
more competent than his superior and posed a risk which infuriated
him? If indeed, the appellant was known for his independence,
impeccable integrity and courage of conviction, and, as we presume,
was a hard nut to crack and, therefore, an officer whom the
representatives of the domestic industry found extremely
inconvenient, much unlike his superiors, did he deserve such
treatment for committed service much to the prejudice and detriment
45
of national interest? Learned ASG was duly questioned on these
aspects. Burdened as he was with the onerous task of defending the
indefensible, albeit ably presenting the case of the respondent, he
could offer no satisfactory answer to these core questions.
57. We conclude this part of our discussion by holding that the confidential
note of the said Additional Secretary - the basis for the impugned order
of compulsory retirement - was not worth the paper it had been written
on. One cannot help but feel aghast that such a note, bereft of any
credibility, was given credence and made the foundation for showing
the door to an excellent public servant who, by dint of his
independence, integrity and courage, stood tall to ward off pressures
from the domestic industry to protect the interest of the revenue. It
does not require great intelligence to fathom the why and what of it,
and as to who orchestrated the move for the marching orders to be
given to such an officer. If the Court were to adopt a hands -off
approach despite noticing the egregious misuse and abuse of official
power in a matter such as this, judicial non-interference would not be
restraint but abdication. The casualty would be both justice and public
interest.
58. What remains to be dealt with is the event of promotion of the
appellant as Joint Secretary (a promotion that presupposes
unblemished record and approval of his integrity ), roughly a few
months before the impugned order struck him . Having perused this
part of the discussion of the Review Committee, we plainly entertain
46
doubts in respect of the integrity of its members as well as the
members of the Representation Committee, which endorsed the
decision to compulsorily retire the appellant. One is sure to gain an
impression, reading the Review Committee’s observations, of a very
unusual, narrow and exceptionable outlook that promotion to such
high office is earned only because of clearance from the vigilance and
that merit, performance appraisals, seniority, integrity, assessment by
the Departmental Promotion Committee, reputation, etc. have no
place. A promotion to a high office is earned, brick by brick, by decades
of unblemished service. The attempt of the Review Committee to
trivialise the issue of promotion not only leaves a bitter taste in the
mouth; it manifestly betrays a determined resolve to somehow ease
the appellant out of service.
59. We need to remind the administrative officers that discretion is not a
charter for arbitrariness. Discretion vests an officer empowered to
decide fate of his subordinates with a choice between alternatives.
When the statute, rule or regulation provides guidance for its exercise,
the action must conform to it. When the statute, rule or regulation is
silent, the power cannot be exercised whimsically or arbitrarily; it must
be informed by reasonableness and fairness, as abuse or unfair use is
never the legislative intent. It is, indeed, sad and unfortunate that
these salient principles governing exercise of discretion were either not
present to the mind of the officers concerned or, even if present, were
consciously given a complete go-bye for extraneous considerations.
47
60. The manner of decision making in course whereof ‘ OUTSTANDING’
gradings are completely ignored, grant of promotion is looked upon as
if it were a ministerial exercise, followed by a vague and omnibus
finding that it is not desirable in public interest to retain the appellant
in service, discloses that the officers, entrusted to take a decision,
were determined to ensure the appellant’s ouster at any cost and
invented reasons to sustain a pre -decided conclusion. Such an
exercise, instead of being in public interest, is a sheer abuse of the
high offices such officers held.
61. To brand an officer like the appellant – who dedicated the best years
of his life to the service of the nation – as dead wood and to weed him
out from service by invoking the specious ground that it is necessary
to do so in public interest smacks of a high degree of malice and
colourable exercise of power. One would strain the eyes in vain to find
out anything to show that the impugned order of compulsory
retirement is, indeed, passed in public interest!
62. It must be remembered by all and sundry that reputation is not built
overnight. It is built by years of dedicated and selfless service. It
comes at a great cost, often at the cost of family life and personal
comfort. Such a reputation earned by sweat and toil over decades can,
however, be marred by a single stroke of a pen. That is why recourse
to FR 56(j) should not be exercised lightly or in a casual manner. It
must be founded on material which is credible, cogent and worthy of
being acted upon, and not on mere suspicion and conjecture. An order
48
passed without supporting material would be vulnerable to being
criticised as a high-handed exercise of power.
63. In fact, had the appellant arrayed the senior officers who acted in
concert with malice to prematurely retire him from service were
impleaded as respondents eo nomine, we would have definitely
questioned them as to whether it is in public interest that they should
continue in service and why should they not be held accountable for
their actions. Fortunately for them, neither did the appellant implead
them nor do they seem to be in service any longer having regard to
the time lapse since the impugned order of retirement dated 10
th
May,
2018 was passed. The matter, thus, ought to rest.
64. Before parting, we need to advert to one other aspect which we noticed
upon perusal of the file after the judgment was reserved. The officer
at the level of Joint Director General of Foreign Trade, who had issued
the order of compulsory retirement dated 10
th
May, 2018 on behalf of
the President, was also a member of the Representation Committee
which, in the second round, endorsed the decision of the Review
Committee reaffirming the recommendation for compulsory
retirement. It is possible that the appellant, while laying his challenge
on the ground of nemo judex in causa sua, was not aware of this
factual position. Learned ASG, having had no occasion to address this
aspect, could not be expected to respond to it. We notice this
circumstance only for the sake of completeness, but clarify that this
circumstance does not form the basis for our interference with the
49
impugned action, which is premised on the reasons already recorded
hereinabove.
CONCLUSION AND RELIEF
65. The High Court, in our considered opinion, erred in not appreciating
that every matter has to be viewed from the appropriate perspective.
As a constitutional court, it had the requisite authority to look into the
records and form a view as to the acceptability of the arguments
advanced by the appellant. In such pursuit, it failed. We have no
hesitation in setting aside the impugned judgment together with the
impugned order of the CAT and the impugned order of compulsory
retirement dated 10
th
May, 2018, which we hereby order.
66. In his writ petition before the High Court, the appellant inter alia
sought the relief of mandamus commanding the respondent to
reinstate him in service w.e.f. 10
th
May, 2018 with all benefits including
continuity of service, seniority, pay and allowances, etc. Appellant
having attained the age of superannuation, reinstatement in service is
not possible at this distance of time.
67. However, in view of the conclusion reached by us on the first point
itself, as argued by Mr. Ghose, we mould the relief by directing that
the appellant shall be entitled to all such service benefits as per law
had he not been fastened with the impugned order of compulsory
retirement dated 10
th
May, 2018. This would include promotion on
notional basis if any of the appellant’s juniors, during the period he
remained out of service, was granted promotion.
50
68. Also, we direct that the appellant shall be called back in office by the
Director General of Foreign Trade for being bidden farewell with full
honour and in like manner, which he would have received on the date
of his superannuation but for the unceremonious premature severance
of relationship.
69. The appeal, thus, stands allowed, with costs assessed at ₹ 6 (six) lakh
to be paid by the respondent to the appellant. For the loss of reputation
suffered by the appellant, we order the respondent to compensate him
in a further sum of ₹ 9 (nine) lakh.
70. Extending service benefits as well as p ayments with regard to
emoluments, compensation and costs be released in favour of the
appellant, within 3 (three) months from date.
71. We grant liberty to the respondent to recover, in accordance with law,
the compensation and cost component from the officers concerned
who have largely been responsible in lowering the image of the
respondent in the public eye by acting arbitrarily and in a high-handed
manner.
72. Learned ASG’s efforts and assistance are sincerely appreciated.
73. Connected applications, if pending, shall stand closed.
………………………………J.
(SHEEL NAGU)
………………………………J .
(DIPANKAR DATTA)
NEW DELHI;
SEPTEMBER 09, 2026.
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