N. V. PUTTABHATTA versus THE STATE OF MYSORE & ANR.

N.V.PUTIABHATIA

THE STATE OF MYSORE & ANR.

April 20, 1972

[A. N. GROVER AND G. K. MITTER, JJ.J

Mysore State Civil Service Rules, r. 285 and Note I and Mysore Civil Services (Confidential Reports) Rules, 1965, r. 3--Compu/sory retire· n1ent based on confidential reports-If could b~ challenged.

The appellant was an officer in the Mysore State Serv:ce. In 1967, when he had passed the age of 50 years he was compulsorily re\ired in terms nf r. 285 of the Mysore Civil Service Rules read with Note I there-to, as the Government was of opinion that it was necessary in the public interest to retire him. He ch_'.i~.iged the order on the ground, inter alia, that there was violation of n;.. . ...:.-JI justice in that the appellant was not informed of the evidence on which the order \Vas based and no opportu-nity was given to him for explaining a\~:ay suc:1 evidence. The respon<lent stated that the action was taken on consideration of the confidential reports submitted in respect of the appellant and that it was not based on any prejudice against him. The High Court dismissed the petitioa.

Dismissing the appeal to this Court,

HELD : ( 1) As the Confidential Reports Rules stood at the relevant time, the appellant could not have appealed against the adverse remarks, and if the opinion of the Government to retire him compulsorily was based primarily on the reports, he could only challenge the order if he was in position to show that the remarks were arbitrary or ma/a fide. If the Government bona fide formed the opinion that it was in the public interest to retire him, the correctness of that opinion could not be challenged. [310 A-CJ

(2) It is difficult to see how the appellant could have explained that it was contrary to public interest to retire him if there was no basis for attacking the order on the ground that it was made arbitrarily or ma/a fide.

[309 B-CJ

Shivacharana v. State of Mysore, A.I.R. 1965 S.C. 280; Union of • India v, !. N. Sinha, [19711 I S.C.R. 791, followed.

Orissa v. Binavani Dei, [19671 I S.C.R. 625, explained.

A. K. Kraivak v. Union, [19701 I S.C.R. 457 at 469, referred to.

(3) The fact that r. 285 was not so emphatically worded as F.R. 56 (j) considered in J. N. Sinha's case makes no difference, because, both the rules give the Government the same or similar right; and so long as the right is not qualified it must he held to be absolute. [3 l J H: 312 Al

( 4) If the confidential reports could be acted upon his promotio' could be withheld even if he was not made to retire compulsorily. If on th_e basis of the confidential reports he was asked to retire in compliance with the rule, the appellant could not complain of loss of position which he might have attained i[1]f there were no adverse remarks against him.

[312 B--C)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1835 of 1968.

Appeal from the judgment and order dated March 21, 1968 of the Mysore High Court in Writ Petition No. 2371 of 1967.

Appellant appeared in person.

M. Veerap/a, for the respondents.

The Judgment of the Court was delivered by

, Mitter, J. The only point involved in this. appeal by certi-ficate, is whether the order of compulsory retirement dated June 28, 1967 intimating the appellant that it was necessary in the pub-lic interest that he should be retired from service with effect from October 15, 1967 in terms of Rule 285 of the Mysore Civil Ser-vices Rules read with Note I thereto was inconsistent with the rules of natural justice in that the appellant was not informed of the evidence on which the order was based and no opportunity was given to him of being heard and meeting or explaining away the evidence ia support of the order, and as such was liable to be quashed. The High Court rejected the writ petition of the appel-lant in which the above and other contentions were raised by him but as the certificate is limited to the one question mentioned above the other points canvassed before the High Court do not fall for consideration.

The facts are as follows. The petitioner was Class-I Health Officer in the Department of Public Health in Mysore State Service in the year 1967. But for the order of retirement which. was ser-E ved on him he might have continued in service up to December 31, 1971 when he would have attained the age of 55 years. In June 1967 when he had passed the age of 50 years he was served with an order the text of which is as follows :~

"Whereas the Government of Mvsore is -0f opinion that it is necessary in the public interest that you, Dr. N. V. Putta Bhatta, Health Officer Class I working as District Health and Family Planning Officer, Coorg, should be retired from service with e!'Eect from the 15th October, 1967.

Now, therefore, as required by Note 1 to Rule 285 of the Mysore Civil Services Rules, you are hereby given three months' notice that you shall be retired from service with effect from the 15th October, 1967."

He filed his writ petition in the High Court of Mysore in Septem-ber 1967. The averments in the petition which are relevant for the purpose of this appeal are as follows :-

(a) Paragraph 5 of the petition:

"This order which vitally affects my right to continue till I attain the age of superannuation, namely, 55 years

with the prospect of becoming the Head of the Depart-ment should have been passed only after giving me an opportunity to show cause against it having regard to the rules of natural justice."

( b) Paragraph 18 (a) of the petition :

"I was not given any chance or opportunity to know the causes for the impugned order on which I am to be retired prematmely. In the absence of any such cause, I ass~med that some confidential report or any cause affection my health may have been considered. On this assumption I made representation to the first respondent (the State of Mysore) through the second respondent (the Director of Health Services) ........ These repre-sentations will show that I was victim of prejudice of the Directorate of Health Services ........ "

( c) Paragraph 22 of the petition :

"After the impugned order was passed I got two confidential reports. . . . . . One of these reports stated that I require guidance; that I had not initiative and not fit to hold any executive post and that I was in the habit of divulging Government information without the per-mission of the Government. The second report of 1966 stated that I was conceited, incompetent and irrespon-sible officer and that I was slow in disposing 0f the offi-cial matters and that I was not amendable 1o superior officers. . ..... These confidential reports were sent to me on 1-9-67 .......... I rad to make representation ugainst these false allegations."

Id) Paragraph 23 of the petition:

"It will thus be seen that in the background of the confidential report for 1966. that I must be retired or retired from service without any opportunity to me, the impugned order has been passed. The impugned order therefore is violative of Art. 311 of the Constitution since it is clearly· based on the 1966 confidential report. ....

I therefore submit that on vague and unsupported charges my career is soug)lt to be blocked which should ha·:e been otherwise promising."

In the counter affidavit of the State it was averred that action was taken by the Government on consideration of the confiden-tial reports submitted in respect of the petitioner and that it was not based on any prejudice or jealousy against him. No opportu-nity for hearing was contemplated under Rule 285 and the impugned order was not violative of Art. 311 of the Constitution.

The relevant part of Rule 285 of the Mysore Civil Services Rules and Note 1 thereto read as follows -

"A retiring pension is granted to Government servant who is pennitted to retire after completing quali-fying service for thirty years or such Jess time as may, for any special class of Gpvernment servants be pres-cribed.

Note 1. Government servant may retire from ser-vice any time after completing thirty years' qualifying service provided that he shall give in this behalf notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire. Government may, by order, retire any Government ser-vant after he has completed twenty five years of qualify-ing service or after he has attained fifty years of age, if such retirement is in their opinion necessary in the public interest, provided that Government servant con-cerned is given notice of three months before the date of retirement, or in lieu of such notice, sum equivalent to the amount of his salary for period of three months .. "

The validity of the above rule was attacked in this Court · ln Shivacharana v. State of Mysore(1): Upholding the validity thereof it was said by this Court (at p. 281 paragraph 4):

"It would thus be clear that though the normal age of retirement under R. 95 (a) is 55 years, under R. 285 it is competent;to the Government to retire compulsorily government servant prematurely if it is thought that such premature retirement is necessary in the public interest. This power can, however, be exercised only in cases where the Government servant has completed 25 years qualifying service or has attained 50 years of age. In order words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years' service, while premature retirement can be forced on the government servant if he has_ either completed 25 years of service, or has attained 50 years of age. In the case of premature compulsory retirement, the government. servant is entitled to pension as indicated in Note 1 to Rule 285."

In that case the appellant before this Court had urged that his record was free from blemish and Government was not justified in coming to the \:Onclusion that it was in the public interest to retire him. Turning down the said contention it was stated :

(I) A.I.R. 1965 S.C. 280.

"The allegations made by the petitioner in that behalf are very vague and unsatisfactory, and so, it would be idle to contend that if the impugned note is valid, thei order terminating the services of the petitioner can still be challenged on the ground that it is not justified on the II]erits or is illegal or arbitrary. Whether or not the peti-tioner's retirement was in the public interest, is matter for the State Government to consider, and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of mala fides.". · It may be noted that the appellant before us had challenged the order of termination of service on very similar grounds and the only additional point urged by him before us is that as the order of June 1 g67 has civil consequences it was obligatory on Govern-ment to give him notice to show cause against the order proposed before it w11s made. In support of this reliance was placed on Orissa v. Binap,·ni Dei('). There too the Government of Orissa had served the order of compulsory retirement on the first respon-dent but the main ground of attack was that whereas according to Government records she was born on 10th April, 1910 and as such would have been due for superannuation on the 10th April 1965, Government had made an enquiry as to her date of birth behind her back and asked her to show cause why certain date should not be taken as the correct date of birth. The report of the enquiry officer was not disclosed to her and the first respondent was not given an opportunity to meet the evidence used against her. This was followed by Government re-fixing her date of birth and ordering compulsory retirement. It was observed by this Court (seep. 629) :

"The State has undoubtedly authority to compulso-rily retire public servant -who is superannuated. But when that person disputes the claim he must be inform-ed of the case cf the State and the evidence in support thereof and he must have fair opportunity of meeting that case before decision adverse to him is taken."

With regard to the enquiry it was said that it was contrary to the bask concept of justice and cannot have any value. It was added that although the order was administrative in character it involved civil consequences and must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence.

-----------

It will be noticed at once that the facts of this case are not in pari materia with those of Binapani Dei's. Here there was no dispute nor any claim by the appellant that he was asked to retire before he had attained the age of 50 years. All his challenge is directed to the formation of opinion by the Government that it was in the public interest to retire him. It is difficult to see how the appellant could have explained that it was contrary to public interest to retire him if his attack on the ground that the order was made arbitr~.ily or ma/a fide could not be sustained. The counter affidavit of the State definitely alleged that in forming the opinion Government had taken note of the adverse remarks in the appel-lant's confidential report.

The appellant contends that if Government's action was moti-vated by the ad verse remarks in the reports he should have first been given notice thereof and in any event his representation against them should have been disposed of before any retirement order could have been passed on him.

Our attention was drawn to G.S.R. 597 of the General Admi-D nistration Secretariat notification of the State of Mysore dated 6th JUiy, 1965. By the said notification the Governor of the State made set of rules known as the Mysore Civil Services (Confi-dential Reports) Rules, 1965. According to r. 3 thereof :

"In respect of every Gazetted and non-Gazetted officer an Annual Confidential Reoort shall be recorded assessing as correctly as possible such officer's physical, mental and moral suitability for his office and for pro" motion, his ability to apply intelligently the law and pro-cedure prescribed to cases coming before him, his treatment of his subordinates and behaviour to his superiors and colleagues in other departments ~.nd his relations wifo the public . ., -The preparation and transmission of confidential reports are to be made in terms of r. 5 which inter alia directs that report was to· be prepared with the greatest caution and no record or remarks shall be made lightly on the spur of the moment or based on pre-judice. Under r. 8 ( 1) all adverse remarks whetlier through an ordinary or special report shall be communicated to the officer concerned, unless the adverse remarks are of such nature that the communication thereof is unlikely to result in the remedy of the defect or is considered inadvisable for any other reason. While communicating an adverse remark, the name of the officer recording the adverse remark shall not be communicated to the officer r~ported upon. Under r. 9 no appeal lay against adverse remarks made in the annual confidential reports.

Our attention was however drawn to notification dated 6th February 1970 whereby r. 9 was altered so as to give an officer

against whom adverse remarks were made right to submit representation on which decision had to be taken expeditiously and communicated to him. At the relevant time however the said amended rule was not in operation and consequently it was not .open to the appellant to challenge the correctness of the adverse remarks in his confidential reports by way of appeal. As the confidential reports rules stood at the relevant time, the appellant could not have appealed against the adverse remarks and if the opinion of Government to retire him compulsorily was based pri-marily on the said report he could only challenge the order if he was in position to show that the remarks were arbitrary or male fide.

Jt is not necessary for us to examine the rules of natural justice .

in general but we may quote observations from judgment of this Court in A. K. Kraipak v. Union([1]) to show that the particular :circumstances of case considered in the background of the law applicable must be determinative on the point. There the Court :Said :

"What particular rule of natural justice should apply to given case must d.epend to great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the consti-tution of the Tribunal or body of persons appointed 'x that purpose. Whenever complaint is made before court that some principle of natural justice had been contravened the court has to. decide whether the obser-vance of that rule was necessary for just decision on the facts of that case."

In Union of India v. J. N. Sinha(') the Court was concerned directly with the principle of natural justice in similar circumstan-ces. There the order of retirement was based on Fundamental Rule 56 (J) reading :

"Notwithstanding anything contained in . this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice."

\ ~this Court observed (see p.795):

"The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that

(2) [1971] I S.C.R. 791.

it is in public interest to do so. If that authority b,ona fide fonns that opinion, the correctness of that opirlion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion h.as not been fonned or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion fonned by the Government on the ground of ma/a fide. But that ground has failed .... The impugned order was not attacked on the ground that the required opinion was not fonned or that the opinion fonned was an arbitrary one. One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his com-pulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The afore-mentioned 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 Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have more efficient officer. . . While minimum service is guaranteed to the government ser-vant, the government is given power to energise its machinery and make it more efficient by copipulsorily retiring those who in its opinion should not be there in public interest."

The Court further noted that compulsory retirement was bound

to have some adverse effect on the Government servant but such rule of retirement could only be acted upon after the officer had attained the prescribed age and further compulsorily retired government servant did not lose any of the benefits earned by him till the date of his retirement.

All the above observations apply to the facts of the appellant's case. But the appellant ~eeks to distinguish that case because of the use of the expression "absolute rights" in F.R.56 (J), rule 285 not being so emphatically worded. But that in our opinion makes no difference.. Both .rules give the Government the same

-or similar right: so long as the right is not qualified it must be held to be absolute and no distinction can be made between r.285 and F.R.56(J) on that ground.

The last contention of the appellant that in the normal course of things he would have been superannuated at the age of 55 and would have reached the top position in the department the depri-vation whereof was civil consequence of the order, does not bear .scrutiny. If the confidential reports could be acted upon his promotion could be withheld even if he was not made to retire compulsorily. If on the basis of the confidential reports he is asked to retire in compliance with that rule he cannot complain because of loss of position which he might have attained if there were no adverse remarks against him.