UNION OF INDIA ETC. versus M. E. REDDY AND ANR.

UNION OF INDIA ETC.

M. E. REDDY AND ANR.

September 19, 1979

[S, MURTAZA FAZAL ALI AND A. P. SEN, JJ]

Compulsory retiten1ent-Order passed in terms of Section 16(3) of tTte All India Services (Death-cu1n-Retirement) Rules, 1958, whether in violatfon of Articles 311(2) of the Constitution.

The responde.nt in the two appeals was compulsorily. retired by an order dated 20-4-74 under Rule 16(3) of the All ]ndia Services (Death-cnm-Retlre-ment) Rules, 1958. The respondent challenged the said order by filing Writ Petition before the Andhra Pradesh High Court. single Judge Oil' !bat Court allowed the petition. The said decision was affirmed by the Division Bench in appeal.

Allowing the appeals by certificate the Court,

HELD: 1. An aoalysis of Rule '16(3) of the All India Services (Death· cum-Retirement) Rules, 1958 clearly shows that the following essential in-gredients of the Rule mnst be satisfied before an order of compulsorily retir-ing Government servant is passed : (i) that the member of the service must have completed 30 years of qualifying service or the age of 50 years (as modified by notification dated 16-7-1969); (ii) that the Government has an: absolute right to retire the Government servant concerned because the word "require" confers an unqualified right on the Central Government servant; (iii) that the order must be passed in public interest; and (iy) that three months' previous notice in writing shall be given to the Government servant concerned before the order is passed. [742 G·H, 743 A-Bl

The provision gives an absolute right to the GOvemment and not merely discretion, and, therefore impliedly it excludes the rules of natural justice.

[743 B] ,

2. Compulsory retirement after the employee has put in sufficient number of years of service having qualified for full pension is neither pnnishment nor stigma so as to attract the provisions of Article 311(2) of the Consti-tution. In fact, after an employee bas served for 25 or 30 years 'II!d is retired on full pensionary benefits, it cannot be said that be suffered any real prejudU:e.

[743 C..D]

3. The objecl of Rule 16(3) is to weed out the dead wood in order I<> maintain high standard of efficiency and initiative in the State service. It is aot necessary that good officer may continue to be efficient for all times to come. It may be that there may be some officers who may possess betlel' initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement. .In such case conipufsory retirement of an officer who fulfils the conditions of Rule 16(3) is undoubted!,. in pliblic interest and is not passed by way of punishment. Sjn11Iarly, :may be cases of officers who are corrupt or of doubtful integrity and ,v<b& may be considered fit for being compulsorily retired in public interest. Siilce

Sjn11Iarly, ~

the¥ have almost reached the fag end of their career ~d their retirement would not cast any aspersion, nor does it entail any civil consequences. Of course~ it may be said that if such officers \Vere allowed to continue they would have drawn their salary until the usual date of retirement. But, this is not an absolute right which can be claimed by an officer who has put in 30 years of service or attained the age of 50 years. Rule 16(3) does nothing of the sort of attaching stigma. (743 D-H]

4. The jurisprudential philosophy of Rule 16(3) and other similarly worded provisions like F.R. 56(j) and Other rules relating to G0vemment servants is noteworthy. Rule 16(3) as it stands is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311. If the order of retirement under Rule 16(3) does not attract Article 311(2), it is manifest that no stigma of punishment is inv~lved. The order is passed by d:l.e highest authority, namely, the Central Government: in the name of the President and expressly excludes the application of rules of natural justice~ [744A-C]

The safety valve of public interest iS the most powerful and the strongest safegu~rd a~ainst any abuse or colourable exercise of power under this Rule. Moreover, when the Court is satisfied that the exercise of power under the rule amounts to colourable exercise of jurisdiction or is arbitrary or malafide, it can always be struck down. While examining this aspect of the matter the Court would have to act only on the affidavits, documents annexures, notifica-tions and other papers produced before it by th"e parties. It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or malafide. The court, has, however, the undoubted power subject to any privilege or claim tha-t may be made by the State, to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence. (744 C-E] The nrain object of Rule 16(3) is to instil spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the services are one of the pillars of our great democracy. .A..ny element or constituent of the service which is found to be lax or corrupt, inefficient or not up to the work or has outlived his utility has to be weeded out. Rule 16(3) provides the methodology for achieving the object. [744 E-G] Before the Central Government invokes the power under Rule· 16(3), it must take particular care that the· rule is not used as ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to sub-serve. If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with. [744 G-HJ Compulsory retirement contemplated by Rule 16(3) is designed to infuse the administration with initiative and activism so that it is made poignant and .H piquaht, specious and stibtle so -as to meet the expailding needs of the nation which require explanation of "fields and pastures now». Such retirement

involves no stain or stigma nor does it entail any penalty or civil eonse-quences. In fact the rule merely seeks to strike just balance bet¥;een the _ termination of the completed career of tired employee and maintenance of top efficiency in-the diverse activities of the administration. [745 A-BJ An order of compulsory retirement on one had causes no prejudice to the Government servant Who is made -to lead r~tful life enjoying full pen-sionary and other benefits and on the other gives new animatiou. and equanimity to the services. The employees should try to understand the true spirit behind the role \vhich is not to penalise them but amounts just to fruitful incident of the service made in the larger interest of the country. Even, . if the employee feels that he bas suffered, he should derive sufficient 6ollce and consolation from· the fact that this is bis small contribution to the country for every good cause claims its martyr. [745 B-D] Shyam Lal v. State of U.P., [1955] S.C.R. 26; T. G. Sfh·acl1ara11a Sfngfi a11d Ors. v. The State of Haryana A.I.R. 196S S.C. 2SO; Union of India v. Col. I. N. Sinha and A11r., [1971] 1 SCR 791; M. V. P11ttabha11a v. The Srrrte of Mysore and .Anr., [1973] 1 SCR 304; State of Assam & A11r. etc.-v;· Prttslllrla Kumar Das etc. [19731 3 S.C.R. ·1ss @ 167; Tara Singh etc. v. State of Raja.sthan and Ors. [1975J 3 SCR 1002; Mayenglioa1i Rahamohan Sing'' v. The Commisioner (Admn.), Ma11ip1_1r and Ors., [1977] 1 _SCR 1022; applied.-Bef~re passing an order under. Rule 16(3), it is not -an entry here or an entry there which has to be taken into consideration by the G6vernment but the overall picture of ·the officer during the long years of his service thM be puts in has .to be considered from the point cf view of achieving higher standards of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service. _[750 C-D] ·

Under the various rules on the subject. it is-not every adverse entry'or re-mark that has to be communicated to the officer concerned. The superior officer may make certain remarks while assessing the \VOrk and conduct of the subordinate officer based on bis personal supervision or contact. Some of these remarks may be purely innocuous or may be connected \vith generai reputation of honesty or integrity that particular officer enjoys. It will in-deed be difficult if not possible to prove by. positive evidence that a. parti-cular officer is dishonest but . those who have had the opportunity ta watch the performance of the said officer from close quarters are in pmition to . kno\v the nature and character; not only of his performance but also of the reputation he enjoys. Therefore on the ground of non communicatioD. of adverse remarks, the impugned orders cannot be set aside. [748 G-H. 7.t.'.1 A]

R. L. Butail v. Union of India and Ors., [197i] 2 SCR SS and Union of India v. Col.'/. N. Sinlza and Anr., (1971] 1 SCR 791; applied.

State of Uttar Pradesh v. Chandra Mohan Nigam & Ors., (1978] I SCR. 721; referred to.

Mada~ Mohan Prasa4 v. State of Bihar and Ors., (1973] 4 S.C.C. 166= [1973] 1 SCR 630; distinguished.

All that is necessary is that the Government of India, before passing :m order under Rale 16(3) should consider the rei;l\¥'t of the Review Committee

wb.iCh is based on full and complete analysis of the history of the service of the employee concerned. [753 F-G] .

Irt the instant case, it \V3S clearly pl1~aded by the appellants in tho High Court that the report of the Revie\v Committee was in fact considered by the Govenmicnt of India before passing th.e impugned order. An examination -0f the confidential file also confirms this. [753 G-H, 754 A]

Srate of U.P. v. Chandra J:ohan Nig<>m and Ors. [1978] 1 SCR 721 ancL S. R. Ve11katan11nan v. Union of India and A11r., [19i9] 2 SCR 202; distinguished.

Cln'.tf Security Officer, Eastern Railway & Anr. v. Ajay Chandra Bagchi (191'.fl 2 SLR 660 (Calcutta); overruled.

Jn: the instaat case (a) ~here is no legal error in the- impugned order passed by Che Government of India, retiring Mr. Reddy. The onfer is not arbitrary as cOdld. be seen from the material on the reconf. The Government of India acir4 <Ht the orders passed by the Home· Ministel' concerned who had consi-dere4 die report of the Review. Committee in its various aspects. There is nodlli!g to show that Reddy was victimis·ed . ia any way. On the other hand, the history of his service shows that be 'vas always given his due. lie wrui takan to the I.P.S. and allotted the year 1952. He was promoted to the selec-tion grade also at the proper time. The order of suspension was withdrawn and the departmental enquiry was dropped and the officer was reinstated and Jatec pronioted as D.I.G. These facts completely militate against the concept of victimisation .. [756 .F-H, 757 A]

(b} The impugned order is bonafide order •and does not suffer fron1 any legal infumity. [757 GJ

ClvIL APPELLATE JURISDICTJON : Civil Appeal Nos. 12 and 13 of 1977.

From the Judgment and Order dated 17-11-1976 of the Andhra Prad~h High Court in Writ Appeal Nos. 591-592/76.

U. R. Lali.t, R. N. Sachthey and Girish Chandra for the Appellant in C. A. 12/77.

M. Abdul Khadar and G. Narayana Rao for the Appellant in

C.A. 13/177 ..

T. S. Krishna Murthy Iyer and A. Subba Rao for the Respondent.

The Judgment of the Court was delivered by

FAZAL ALI, J.-These two appeals (one by the State of Anrlbra Pradel;h and the other by the Union of India) by certificate are dlrected against Division Bench Jucl'gmerit of the Andhra Pradesh High Court dated 17-11-1977 confirming the decision of Single Judge by which an order passed by the Central Government compul-£Clli'ly retiring M. E. Reddy, respondent No. 1 (hereinafter referred to

as Reddy) from service in public interest was quashed in writ peti-tion filed before the High Court.

The facts of the cas~ lie within very narrow compass particular~

in view of the fact that we have decided not to go into the question of malafide alleged against respondent No. 3, Mr. K. Brahmimind ~ Reddy before the High Court because Reddy "in previous Writ filed in the Hig)i Court against the order of suspension had express! y withdrawn all the allegations against Mr. K. Brahmanand Reddy, respondent No. 3 in the High Court. We shall, however, touch the fringes of this question so far as it directly affects the ·order impugned passed by the Government of India_. Reddy started his career in the Police Service as Deputy Superin-tendent of Police in the year 1948. In the year 1958 Reddy· ',was appointed to the Indian Police Service and 1952 was the year .of his allotment. On 31-7-1958 Reddy was promoted as Superintendent of Police in the State of Andhra Pradesh and held charge of number of Districts from time to time. Reddy was also awarded the Presfdetil Police Medal near about the 14th August, 1967, but the award. of the President Police Medal was withheld as Reddy was placed under suspensilln by the Government on 11-8-1967 pending department~. enquiry into number of allegations made against him. It is not necessary for us to detail those allegations which are not germane for the purpose of deciding these appeals.

In 1969 Reddy filed writ petition in the Andhra Pradesh High Court praying that the order of suspension passed against him dated 11-8-1967 may be quashed as it was passed on false allegations and at the instance of Mr. K. Brahmanand Reddy who was the Cbief Minister of Andhra Pradesh at that time. large number of allega-tions in support of the plea of malice were made by Reddy. Th,e writ petition was admitted by the High Court which passed an order dated 17-7-1969 staying all further proceedings including the written statement by Reddy to the six charges framed against him by the d.,,_ partment. When the writ came up for hearing before the single Judge, the State Government represented to the High Court that it had de-cided to withdraw the order of suspension and reinstate the respon-dent No. 1, Reddy. The State Government accordingly withdrew the order of suspension and directed that the period of suspension may be treated as on duty. Thereafter Reddy .filed an application before the High Court seeking permission to withdraw the petition as· all!o the allegations made in the petition against the Chief Minister, ~s,. pondent No. 3 in the High Court. The High Court accepted the

prayer of Reddy and allowed the petition to be withdrawn and passed the following order :-

"It seems that orders reinstating the petitioner and virtually cancelling the suspension order are being issued. The learned Advocate for the petitioner therefore desires to withdraw the writ petition. The writ petition is therefore dismissed as withdrawn".

As result of these developments the departmental proceedings against Reddy were dropped and he was given Selection Grade which appears to have been withheld because of the order of suspension -f.issed against Reddy. On 27-4-1971 Reddy was given the Selection Grade with retrospective effect from 6-6-1969. Thereafter by an order dated 28-4-1971 Reddy was promoted to the Rank of Deputy Inspector-General of Police by th<i State Government. It appears that during the course of the departmental enquiry the following entry appears to have been made in the Annual Confidential Report of Reddy:-D

"He is under suspension. Allegation against him is that he concocted case against Venugopala Reddy (attempt to rape) to please the Inspector-General of Police K. K. Nambiar. There is also strong suspicion about his integ-rity. The Anti-corruption Branch are enquiring into the allegations. In this enquiry allegations are proved''.

Afte.r the proceedings were dropped and Reddy was promoted as Deputy Inspector-General of Police he made representatio,n to the Government that the adverse entry contained in· the Annual Confi-dential Report may be expunged. The Government of . Andhra Pradesh after considering the representation of Re<ldy passed the · following order dated 20-4-197 4 :

"The Government, after careful consideration, have d.e-cided that as the statements are factual it would be suffi-cien~ if suitable entry is made in the said confidential report to the effect that the suspension was subsequently lifted and the period was treated duty and that further action was stayed as there were no gocd grounds to hold him guilty of any of the charges levelled against him.

(3) suitable entry has accordingly been made in the confidential report for the y~ar ending 31-3-1968".

We have expressly referred to this order of the . Government to show that it completely demolishes the case of malafide pleaded by 11~25SCI/79

Reddy against Mr. K. Brahmanand Reddy, respondent No. 3 in the High Court because if Mr. K. Brahmanand Reddy had auy animus against the . officer he would 'not have accepted his representation and denuded the effect of the adverse entry made at the time when Reddy was suspended. According to the allegations made by the State of Andhra Pradesh on the 7th Angust, 1975 Review Com-mittee consisting of the Chief Secretary, Home Secretary and the Inspector-General of Police considered various cases of police officers including the case of Reddy ~nd made their recommendations. On 11th September, 1975 the Government of India after considering the report of the Review Committee ordered compulsory ·retirement of Reddy in public interest on the expiry of three months' notice from the date of service of order on him. This order was passed by the Central Government in consultation with the State Government (hereinafter referred to as the impugned order) as may be extracted thus :-

"In exercise of the powers conferred by Sub-rule 3 of Rule 16 of the All India Service (Death-cum-Retirement) Rules, 1958, the President, in consultation with the Govern-ment of Andhra Pradesh, is pleased to order the retirement of Sri M. E. Reddy member of the Indian Police Service borne on the cadre of Andhra Pradesh, in the public interest, on the expiry of three months from the date of service of this order on him".

This order purports to have been passed under sub-rule (3) of Rule 16 of the All India Service (Death-cum-Retirement) Rules, 1958 which reads as follows :-

" 16 ( 3) The Central Govermnent, in consultation with the State Government, may require member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 yean; to retire in the public interest provided that at least three months' previous notice in writing will be given to the member concerned".

An analysis of this Rule clearly shows that the following es•ential ingredients of the Rule must be satisfied before an order compulsorily retiring Government servant is passed :

1. That the member of the Service must have completed 30 years of qualifying service or the age of 50 years (as modified by notification dated 16-7-1969),

2. That the Gove=ent has an absolute right to retire the Government servant concerned because the word "require" clearly confers an unqualified right on the Central Government;

3. That the order must be passed in public interest;

4. That three months' previous notice in writing shall be given to the Government servant concerned before the order is passed.

It may be noted here that the provision gives an absolute right to the Government and not merely discretion, and, therefore, impliedly it excludes the rnles of natural justice. It is also not disputed in the present case that all the conditions mentioned in Rule referred to above have been complied with. It is different matter that the· argument of Reddy is based on the ground that the order is arbitrary and ma/a fide with which we shall deal later.

On perusal of the impugned o.rder passed by the Government of India it wonld appear that the order fully conforms to all the condi-tions mentioned in Rule 16 (3). It is now well settled by long catena of authorities of this Court that compulsory retirement after the employee has put in sufficient number of years of service having qualified for full pension is neither punishment nor stigma so as to attract the provisions of Art. 311 (2) of the Constitution. In fact, after an employee has served for 25 to 30 years and is retired on fnlI pensionary benefits, it cannot be said that he suffers any real pre-judice. The object of the Rnle is to weed out the dead wood in order to maintain high standard of efficiency and initiative in the State Services. It is not necessary that good officer may continue to be efficient for all times to come. It may be that there may be some officers who may possess better initiative and higher standard of efliciency and if given chance the work of the Government might show marked improvement. In such case compulsory retirement of an officer who fulfils the conditions of Rule 16 (3) is undoabtedly in public interest and is not passed by way of punishment. Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in pub-lic interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences. Of course, it may be said that if such officers were allowed to continue they would have drall'n their salary until the usual date of retirement. But this is not an absolute right which can be claimed by an officer who has put in 30 years of service or has. attained the age of 50 years. Thus, the general im-pression which is carried by most of the employees that compulsory retirement under these conditions invol.ves some sort of stigma must he completely removed because rule 16 (3) does nothing of the sort.

Apart from the aforesaid considerations we would like\ to illustr~ the jurisprudential philosophy of rule 16 (3) and other similarly worded provisions like Rule 5 6 (j) and other rules relating to the Government servants. It cannot be doubted that rule 16 ( 3) as it stands is but one of the facets of the doctrine; of pleasure incorporated in Article 310 of the Constitution and is controlled only by those; contingencies which are expressly mentioned in Article 311. If the order of retirement under rule 16 ( 3) does not attract Article 311 (2) it is mainfest that no stigma of punishment is irivolved. The order is passed by the highest authority, namely, the central Govern-ment in the name of the President and expressly excludes the appli· cation of rules of natural justic~ as indicated above. The safety, valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule. Moreover, when the Court is satisfied that the exercise of power under the rule amounts to colourable exercise of jurisdiction or is arbitrary or 111illa fide it can always be struck down. While examin-ing this aspect of the matter the Court would have to act only on the affidavits, documents, annexures, notifications and other papers pro-duced before it by the parties. It cannot delve deep into the confi-dential or secret recQl:ds .of the Government to fish out materials to prove that the order is arbitrary or mala fide. The Court has, how-ever, the undoubted power subject to any privilege or claim that may be made by the State, to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.

It seems to us that the main obj~t of this Rule is to instil spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as' the Services are one of the- pillars of our great democracy. Any element or constituent of the Service which is found to be lax or corrupt, inefficient or not up to the mark or has outlived his utility has to be weeded out. Rule 16 (3) pro-vides the methodology for achieving this object. We must, however, hasten to add that before the Central Government invokes the power urider Rule 16 ( 3) , it must take particular care that the rule is not used as ruse for victimisation by getting rid of honest and unoblig-ing officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the Service and defeat the laudabl~ object which the rule seeks to sub-serve. If ariy such ca8e comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt

with. Compulsory retirement contemplated by the aforesald rule is designed to infuse the administration with iuitiative and activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require exploration of "fields and pastures now". Such retirement involves no stain or stigma nor does it entail any penalty or civil consequences. In fact, the rule merely seeks to strike just balance between the termination of the completed career of tired employee and maintenance of top efficiency in the diverse activities of the administration. An order of compulsory retirement on one hand causes no pre-judice to the Government servant who is made to lead restful life renjoying full pensionary and other benefits and on the other gives new animation and equanimity to the Services. The employees should try to understand the true spirit behind the rule which is not to penalise them but amourits just to fruitful incident of the Service made in thei larger interest 0£ the country. Even if the employee feels that he has suffered, he should derive sufficient solace and consola-tion from the fact that this is his small contribution to his couutry for every good cause claims its martyr.

These principles are clearly enunciated by 1l series of decisions of this C-Ourt starting from Shyam Lal's(') case to Nigam's (') case which will be referred to hereafter.

In the case of Shyam Lal v. The State of Uttar Pradesh & Anr.C) This Court clearly held that compulsory retirement does not amount to removal or termination nor does it involve any stigma. In this con-nection, Bench of 5 Hon'ble Judges of this Court observed as follows:-

"There is no such element of charge or imputation in the case of compulsory retirement. The two require-ments for compulsory retirement are that the officer has completed twentyfive 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 substan-tiate the. misconduct which may be the real cause for taking the act10n but what is important to note is that the directions in the last sentence in Note 1 to article 465-A

{1) [1955] S. C. R. 26.

(2) [1978] 1 S. C. R. 521.

make it abundantly clear that an imputation or charge is not in terms made condition for the exercise of the power. In other words, compulsory retirement has no stigma or implication of misbehaviour or incapacity".

"The more important thing is to see whether by com-pulsory 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 or determining whe-ther termination of se.rvice amounts to dismissal or renfo-val is, therefore, also absent in the case of termination of service brought about by compulsory retirement.

The foregoing discussion necessarily leads us to the con-clusion that compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the pro-visions of Article 311 of the Constitution or of rule 55".

The same principle was reiterated by another Bench of 5 Hon'ble Judges of this Court in the case of T. G. Shivacharana Singh & Ors. v. The State of Mysore.(') In this case, the Court was considering the scope of rule 285 which was almost in the same terms as rule 16 (3) and provided that Government servant could be retired after completing qualifying service of 30 years or on attaining the age of 50 years if such retirement was considered in public interest. In this connection, the Court observed as follows:-"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 .. .............. Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes Art. 14 as well as Art. 16 (1) of the Constitotion. In our opinion, this contention can no longer be entertained; because it is concluded by Jong series of decisions of this Court".

Even the constitotionality of the provisions concerned was up-held by this Conrt.

The leading case on the subject which has been decided some years before and has been consistently followed by latter decisions

(I) A. I. 4l. 1965 S. C. 280.

• of Ibis Court is the case of Union of India v. Col. J. N. Si.•1ha Anr.('). This Court was considering the scope and ambit of rule 56 (i) which is also worded in the same terms as rule 16 (3). Rule 56 (j) runs thus:-

"Notwithstanding anything contained in this Rule the appropri~te 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.

(i) if he is in Class I or Class II Service or post the age for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years.

(ii) In any other case after he has attained the age of 55 years.

Provided that nothing in Ibis clause shall apply to Government seniint referred to in clause ( e) who entered Government service on or before 23rd July 1966 and to Government servant .referred to in clause (f)".

Aftdr considering the various shades, aspects, purpose and object of such provision this Court observed as follows:-

"But if on the other hand statutory provision either specifically or by necessary implication excludes the appli-cation of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles -of natural justice".

"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 it is in public inte.rest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not beeu [orn;fd or the decision is based on collateral grounds or that it is

(I) [1971] 1 S. C. R. 791.

an arbitrary decision .......... : •..................•. Compulsory retirement involves no civil consequences. The aforementioned rule 56 (j) is not intended for takmg any penal action against the government servant. That rule ·merely embodies one of the facets of the pleasure doctrine embodied in Article 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 parti-cular post may be more usefully held in public iuterest by an officer more competent than the one who is holding. It may be that the officer who is holcling the post is not inefficient but the appropriate authority may prefer to have more efficient officer. It may further be that m certain key posts public interest may require that person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in government organisations, there is good deal of dead wood. It is in public interest to chop off the same. Funda-mental Rule 56 (j) holds the balance between the rights of the individual government servant and the interests of the public. While minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by com-pulsorily retiring those who in its opinion should not be there in public interest".

The observations made above clearly reveal the object of this rule and lay down that where an officer concerned is of doubtful integrity he can be compulsorily retired under this rule.

Mr. Krishnamurthy Iyer appearing for Reddy submitted that the order impugned is passed on materials which are non-existent in-asmuch as there are no adverse remarks against R~ddy .who had spotless career throughout and if such remarks would have been made in his confidential reports they should .have .been communicated to him under the rules. This argument, in our opinion,· appears to be based on serious misconception. In the first place,. under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned. The superior officer may make c;ertain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence

that particular officer is dishonest but those who has had the opportu-nity to watch the performance of the said officer from close quarters are in position to know the nature and character not o_t;ly of his per-formance but also of the reputation that he enjoys. The High Court has also laid great stress on the fact that as adverse entries had not been co=unicated to Reddy, therefore, the order impugned is illegal. We find ourselves unable to agree with the view taken by the High Court or the argument put forward by learned counsel for Reddy. Moreover, the appellant had denied in their counter-affida:vit ;!t pilge 59 Vol. II that there was no adverse entry against the officer concerned prior to 1968. This averment is contained in para 6 of the counter affidavit filed by Under Secretary to the Government of India in the High Court. This aspect as considered by this Court in the case of R. L. Butail v. Union of India & Ors.(') and the matter is concluded by the very apt observations, made by Hidaya-tullah, C.J. who spoke for the Court and observed as follows :-"These rules abundantly sh()w that confidential report is intended to be ge11eral assessment of work performed by Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc. arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as result of any specific incident censure or warning is issued 1and when such warning is by an order to be kept in the personal file of the Government servant. In such case the officer making the order has to give rea>onable opportunity to the Government servant to pr~sent his case. The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the 'corolli;ry that because of that omission the appellant could not make an adeqnate representation and that there-fore the confidential reports are vitiated". "It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the hi~tory of the appellant's entire service and confidential reports through-out the period of his service, upon which the appropriate authority may still decide to order appellant's retirement under F.R. 56 (j)".

(I) [1971] 2 S. C. R. 55.

In this case the Court followed and endorsed the decision of this Court in the case of J. N. Sinha (supra). Here we might mention that the appellants were fair and candid enough to place the entire confidential personal file of Reddy before us starting from the date he joined the Police Servic;e and after perusing the same we are unable to agree with Mr. Krishnamurthy Iyer that the officer had spotless career. The assessment made by his superior officers from the very beginning of his service until the impugned order was passed show that at best Reddy was merely an average officer and that the reports show that he was found to be sometimes tactless, impolite, impersonated and suffered from other infirmities though not all of them were of very serious natnre so as to amount to an adverse entry which may be communicated to him. We might also mention that before passing an order under rule 16 ( 3) it is not an entry here or an entry there which has to be taken into consideration by the Government but tl)e overall picture of the officer during the Jong years of his service that he pnts in has to be considered from the point of view of achieving higher standard of efficiency and dedica-tion so as to be retained even after the officer has put in the requisite number of years of service. Even in the. last entry which was sought to be expanded through representation made by Reddy and other entries made before it appears that the integrity of Reddy was not above board.

Even in the case of State of Ut/ar Pradesh v. Chandra Mohan Nigam & Ors.(') on which great reliance has been placed by Mr. Krishnamurthy Iyer, it was observed thus :-

"We should hasten to add that when integrity of an officer is in question that will be an exceptional circums-tance for which. orders may be passed in respect of such person under rule 16(3), at any time, if other conditions of that rule are fuJfilled, apart ffom the choice of disciplin-. ary action which will also be open to Government".

Thus, even according to the decision rendered by this Court in the aforesaid case the fact that an officer is of doubtful integrity stands on separate footing and if he is compulsorily retired that neither involves any stigma nor any error in the order, We might also refer to an observation made by the Single Judge of the High Court whose judgment was confirmed by the Division Bench, who appears to have misconstrued judgment of this Court and by the process of such miscoaception seems to have ignored the later deci-sions of this Court given by small Benches on the exact question at

(1) [1978] 1 S. C. R. 521.

issue. The learned Judge relied on the decision in the case of Madan Mohan Prasad v. State of Bihar & Ors.(') in support of the view that the order of retirement even if it is in public interest violates Article 311 (2) of the Constitution even though no punishment was intended, The learned Judge observed as follows:-

"In Madan Mohan v. State of Bihar (supra) the Supreme Court considered the validity of retirement order of Judi-cial Officer who for the reason that he worked for seventeen years asserted was permanent member of the service when !tis retirement was ordered under Bihar pension Rules of 1950 questioned the order under Art. 32 of the Constitution of India that it was punishment within the meaning of Art. 311 ( 2) of the Constitution of India".

and then relies on certain observations of this Court in order to hold that the termination of service of the officer casts stigma on his character and attracts Article 311 (2) bf the Constitution. The learned Judge further relied on decision of this Court in support of the pro-position that judgment rendered by 5 Judges of the Supreme Court would prevail over judgment of smaller Bench. So far this part of the oLservation is concerned, there can be no doubt. But the learned Judge appears to have completely misconstrued the decision in Madan Mohan's case (supra) wltich was not case of compul~ory retirement at all, nor was it case where the officer concerned was retired under rule like rule 56(j) or 16(3) as we have indicated in this case. On the other hand, in that case what happened was that the officer was appointed as temporary Munsif and under the terms of the notification by which he was appointed it was provided that the appointment of temporary Munsif could be terminated by giving one month's notice. The High Court it appears, was r,ot satis-fied with the work of Munsif and accordingly decided to terminate his services. But the Cltief Minister in one of his speeches on the floor of the House had made certain observations implying that the ~ervices of the Munsif were being terminated on account of inefficiency and misconduct. In these peculiar circumstances, therefore, this Court held that the termination of the Munsif even though he was tempo-rary servant cast stigma and, therefore, attracted Article 311 of the Constitution. In this connection, the Court observed as follows :-

"It seems to us that on the facts of this case, the order dated January 15, 1972 violates Article 311 (Z) of the Constitution. The petitioner had first been holding tern-porary post and then permanent post for nearly seventeen

(I) [1973] 4 S. C. C. !66=(1973) IS. L. R. 630.

years. The Chief Minister's statement in the Assembly that his services were not satisfactory and the Government was considering serving show-cause notice and the fact that his services were terminated without any enquiry being held would inevitably lead the public to believe that his services had been terminated on account of inefficiency or miscon-duct. This did cast stigma on his character".

It is, therefore, manifest that the facts of this case and the points involved were absolutely different from the facts of the present case. The aforesaid case relied upon by the High Court would have abso::-lutely no application to the present case where Reddy was neither temporary servant nor was his service terminated. The Single Judge of the High Court was, therefore, absolutely wrong in equating the principles of compulsory retirement under rule l 6 ( 3) with termination of the services of temporary employee under the rules.

Similarly, the case of J. N. Sinha (supra) was followed and relied on by later decisions of this Court in the case of N. V. Puttabhatta v. The State Mysore & Anr. (') as also in the case of State of Assam and Anr. etc. v. Basanta Kumar Das etc. etc.(')

Again, in the case of Tara Singh etc. etc. v. State of Rajasthan & Ors.(') it was pointed out that compulsory retirement under the pro-visions similar to rule 16(3) cannot amount to stigma, and the incidents of compulsory retirement were adroitly summed up by Ray, C.J. who observed as follows :-

"The right to be in public employment is right to hold it according to rules. The right to hold is defeasible accord-ing to rules. The rules speak _of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such com-pulsory retirement. The Government servant in such case does not lose the benefits which Government servant has already earned. These orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in'~.

(I) [1973] l S. C. R. 304.

(2) [1973] 3. S. C. R. 158, 167.

(3) (19751 3 S. C. R. 1002.

"There is no stigma in any of the. impeached orders of compulsory retirement".

The learned Chief Justice pointed out that having regard to the safe-guards coutained in the rules particularly the fact that the retirement was in public interest the safety valve of safeguarding malafide or arbitrariness in the order was clearly contained in the provision itself. !. N. Sinha's case (supra) was endorsed and followed in this case also.

In recent decision of this Court in the case of Mayenghocirt 'Rahamohan Singh v. The Chief Commission~r (Admn.) Manipur & Ors.(') the Court observed as follows :-

"Compulsory retirement is not punishment.

There is

no stigma in compulsory retirement".

"The affidavit evidence is that the order of compulsory retirement was made in public interest. The absence of recital in the order of compulsory retirement that i! is made in public interest is not fatal as long as power to make com-pulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest".

In this case, the Court was considering the scope of rule 56(j) which, as already indicated, is couched in the same terms as rule 16(3).

Learned counsel for Reddy heavily relied on the decision of this Court in the case of State of Uttar Pradesh v. Chandra Mohan Nigam & Ors. (supra) and contended that as the Government of India while passing the impugued order had not considered the report of the Review Committee the ordar is vitiated by an error of Jaw. We have gone through this decision and we are unable to agree with the contentions put forward by learned counsel for Reddy. The decision referred to above is not an authority for holding that the decision of the Review Committee is binding on the Govermnent of India. All that is necessary is that the Govermnent of India should, before pass-ing an order under rule 16 (3) consider the report of the Review Committee which is based on full and completed analysis of the history of the service of the employee concerned. In the instant case, it is clearly pleaded by the appellants in the High Court that the report of the Review Committee was in fact consjdered by the Govermnent of India before passing the irnpugued order. The confidential file placed before us also clearly shows that on the note sheet the notes by the

(!) [1977] I S. C.R. 1022.

Secretary on the recommendations of the Review Committee the Home Minister, Mr. K. Brahmananda Reddy has appended his signatures and has passed the order that Reddy should be compulsorily retired. Furthermore, in Nigam's case (supra) referred to above what had weighed with the Court was that after the Review Committee had submitted its report to the Government, the Government ordered second Review Committee just in order to enable :he Review Com-mittee to give an adverse report against the officer concerned. Such course of action was condemned and deprecated by this Court. In the instant case, however, there is no allegation by Reddy that any second Committee. was ever appointed. Even so in Nigam's case (supra) this Court did not depart from the ratio laid down in Sinha's case (supra) and followed by later cases but observed as follows:-

"As _stated earlier, even in the case of compulsory retire-ment under rule 16(3), an ·order may be challenged in court if it is arbitrary or mala fide. If, however, the Gov-ernment reaches decision to prematurely retire Govern-ment servant, bona fiPe the order, per se, cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences".

The Court at page 531 of-the Report clearly pointed out that the instructions issued by the Government for constituting the Review Committee were not mandatory. We have already indicated above that this Court made it absolutely clear that where person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court wonld have no application. In the instant case, it has been clearly averred by the appellants that the integrity of Reddy was not beyond suspicion and the remarks were not expressly expunged by the Chief· Minister.

Reliance was also placed by learned counsel for Reddy on recent decision of this Court in the case of Smt. S. R. Venkataraman v. Union of India & Anr. (') The facts of this case, however, are clearly distinguishable from the facts of the present case. In that case there was finding of fact by this Court that the order of retire-ment was mala fide and amounted to victimisation and the allegation made by the appellant before this Court were not only not disputed but counsel for the Union of India went to the extent of saying that be was not in position to support the impugned order which was

(!) [1979] 2 s. c. R. 202.

that the

unfair. It was in the background of these circumstances Court held that the order was malafide and observed as follows :-

"The ap~llant has pointed out in this connection that her service record was examined in March, 1976 by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Com-mittee considered her fit for promotion to the selectio.n grade subject to clearance in the departmental proceedings v·bich were pending against her, and that she was retired because of bias and animosity. Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry. Mr. Lekhi, learned counsel for the Union of India, pro-duced the relevant record of the appellant for our perusal. While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant's pre,mature retirement. He went to the extent of saying that the Government was not in position to support that unfair order".

"The influence of extraneous matters will be undoubted where the authority making the order has admitted their in-fluence. It will therefore be gross abuse of legal power to punish person or destroy her service career in manner not warranted by law by putting rule which makes useful provision for the premature retirement of government ser-vants only in the 'public interest', to purpose wholly un-warranted by it, and to arrive at quite contradictory result. An administrative order which is based on reasons of fact which do not exist must therefore pe held to be in-fected with an abuse of power".

These observations, however, do not apply to the facts of the present case.

Lastly, Mr. Krishnamurthy lysr, learned counsel for Reddy heavily relied on decision of the Calcutta High Court in the case of Chief Security Officer, Eastern Railway &: Anr. v. Ajoy Chandra Bagchi(') On perusal of this decision we are of the opinion that this case was not correctly decided as it is directly opposed to the ratio dccidendi of l. N. Sinha's case (supra) where this Court held that the rule in question expressly excludes the principles of natural justice and, there-. fore, it is manifest that the Calcutta High Court was in error in basing

(l) (1975) 2 S. L. R. 660.

IA its decision on rules of natural justice. The Calcutta High Court in this case had observed as follows :-

"Thus even if the Railway authorities had absolute right to retire the Respondent petitioner subject to the require-ments as mentioned hereinbefore and in terms of paragraph 3 of Chapter XVII of the Regulations read with item 6 of the instructions in the Form in Appendix XVIII in the admitted position of the case, viz., certain adverse entries were taken into consideration in having him compulsorily retired, the action as taken is thus certainly against all princi-ples of natural justice and norms of fair play and as such the action so taken cannot be supported: The said right under paragraph 3 of Chapter XVII read with item 6 of the instructions in the Form in Appendix XVIII can be used and those principles can be applied or resorted to subject to the principles of natural justice, which incidentally is the restraint put on the pretended misuse of power".

The High Court seemed to rely on certain adverse entries which were taken into consideration when the order of retirement was passed. We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, C.J. that the confidential reports can certainly be considered by the appointing authority in passing the order of retire-ment even if they are not communicated to the officer concerned. · Thus, the two grounds on which the Calcutta decision was based are not supportable in law. For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled.

On consideration of the authorities mentioned above we are satisfied that there is no legal error in the impugned order passed by the Government of India retiring Reddy. It was, however, contended by connsel for Reddy that reading the order as whole it contains an odour of victimisation, so as to make the order arbitrary. We are, however, unable to find any material on the record to show that the or!ler was in any way arbitrary. The Government of India acied on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects. There is nothing to show that Reddy was victimised in any way. On the other hand, the history of his service shows that he was always given his due. He was taken in the I.P.S. and allotted the year 1952. He was promoted to the selection grade also at the proper time. The order of snspension was withdrawn and the departmental enquiry was dropped

and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation. It appears that on an overall consideration of the entire history of the ser;ice of Reddy and the various stages through which he had passed it was considered· in the interest of administration. and to ensure better initiative and efficiency to retire him in public interest. We are also unabie to find any element of arbitrariness in the impugned order. For these reasons, therefore, the first contention raised by learned counsel for Reddy must be rejected. It was then contended that the order was mala fide and passed because Respondent No. 3, the C.hicf Minister of Andhra Pradesh bore selious animus against Reddy and wanted him to do certain· things which he refused to do, hence he was compulsorily retired. Apqrt from the fact that all the allegations regarding mala fide &tood withdrawn as indicated in the earlier part of the judgment it is alleged in the counter affidavit and this averment has not been disputed before us that on 5-1-1970 the following Memo was filed on behalf of Reddy before the High Court :

"The petitioner withdraws the writ petition including the allegations against the Hon'ble Chief Minister of Andhra Pradesh. The writ petition may kindly be dismissed as with-drawn".

Furthermore, the counter affidavit at p. 73 Vol. IV contains letter . submitted by the Second Government Pleader on 5-12-1970 the rele-vant part of which runs thus :-

"I have discussed. the matter with the Advocate for the petitioner. He agrees to withdraw the writ petition as also the allegations made thereunder against the Hou'ble Chief Minister and is prepared to file· Memo. Copy of which is enclosed_ herewith".

Once Reddy had withdrawn the allegations of malafidc against respon-dent No. 3 in the High Court, it is not open to him to revive those allegations in these proceeding when the impugned order is passed.

1he impugned order as held by us .is bona fide order and does not suffer from any legal infirmity, and, therefore, we cannot permit Reddy to play game of hid_('. and seek with the Court by withdrawing the allega:ions oI ma/a fide against respondent No. 3 in the High Court and then reviving t!1em when after some time an adverse order against him was pa~sed. Moreover, if respondent No. 3 was really inimically disposed towards Reddy he would not have either dropped the depart-mental enquiry or reinstated him, or have promoted him to the· rank 12-625 SCI/79

of D.I.G. Furthermore, the Chief :Minister Mr. K. Brahmananda Reddy has himself filed personal affidavit before tl1e High Court which is contained at page 235 Vol. III wherein he has categorically denied all the allegations made against him by Reddy. The assertions made in the affidavit are fully supported by circumstantial evidence and the conduct of Reddy himself. For these reasons, therefore, the second contentiGn regarding the impugned order· being ma/a fide is also rejected.

The result is that all the contentions raised by counsel for Reddy fail. We are clearly of the opinion that the High Court committed clear error of,law in quashing the impugned order which was fully justified by rule 16(3), and did not suffer from any legal' infirmity and waif also in consonance with the law laid down by this Court starting from Shyamlal's case upt-0 Sinha's and Nigam's case (S'Upra) discussed above ..

We, therefore, allow the appeals, set aside the order of the High Court and restore the impugned order retiring Reddy. In the peculiar circumstances of the cas6 there will b6. no order as to costs.

Appeals allowed.