NISHA PRIYA BHATIA versus UNION OF INDIA & ANR.

[2020] 10 S.C.R. 596

[2020] 10 S.C.R.

NISHA PRIYA BHATIA

UNION OF INDIA & ANR.

(Civil Appeal No. 2365 of 2020)

APRIL 24, 2020

[A. M KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Constitutionality of – Held: r.135 isvalid and does not suffer from the vice of unconstitutionality.

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Appellant was posted in Research& Analysis Wing (R&AW) as Director at Headquarters, New Delhi– Complained of sexual harassment against two officers workingas Secretary (R) and Joint Secretary at that time – She reportedlyDattempted to commit suicide – Her identity and association withR&AW became subject of public discourse – She was declaredunemployable due to exposure as an intelligence officer – Order ofcompulsory retirement passed u/r.135 – Appellant’s challenge upheldby Tribunal, reinstatement directed – Decision reversed by HighECourt – On appeal, held: Impugned order of compulsory retirementagainst the appellant is valid and legal – Grant of pension to theappellant to be computed in accordance with the date of notionalsuperannuation as directed by High Court and not from the date ofactual compulsory retirement – Compensation of Rs.1,00,000/- bepaid to the appellant for violation of her fundamental rights to lifeFand dignity as result of improper handling of her complaint ofsexual harassment – Constitution of India – Arts.13, 14, 21, 309-311 – Doctrine of pleasure; Doctrine of necessity – Principles ofnatural justice –Central Civil Services (Classification, Control andAppeal) Rules, 1965 – The Sexual Harassment of Women atGWorkplace Act, 2013 – Service Law.

Constitution of India – Art.311 – Operation of – Discussed.

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135(2) – Held: “may” occurring in sub-Rule (2) of r.135 be read as “shall” – Interpretation of Statutes.H

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Compulsory retirement under –Safeguards of Art.311, if attracted – Held: Compulsory retirementwithout anything more does not attract Art.311(2) – Action u/r.135is not governed by Art.311 nor it offends the same – Thus, an actiontaken u/r.135 need not be preceded by the safeguards providedu/Art.311 as such – Principles of natural justice – Constitution ofIndia – Art.311.

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Compulsory retirement under, ifsame as dismissal/removal – Held: Effect of any action takenu/r.135 does not entail any penal consequence for the employee –Therefore, it cannot be put at the same pedestal as an action ofdismissal or removal – Service Law.

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Action of compulsory retirement, ifviolates Art.14 – Held: No – Constitution of India – Art.14.

Service Law – Deputationist and direct recruit – Differencebetween – Discussed – Research and Analysis Wing (Recruitment,Cadre and Services) Rules, 1975 – r.135.

Research and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Challenge in reference to Art.309 –Held: Rules framed u/Art.309 governing conditions of service aresubject to other provisions of the Constitution including Art.311 –However, this subjection clause shall not operate upon the rulesgoverning compulsory retirement – Constitution of India – Arts.309,311.

Constitution of India – Art.309, 311 – Scope of – Discussed.

Interpretation of Statutes – “security” used in r.135 asdistinguished from “security of the State” used in Art.311 – Purportof – Discussed – Constitution of India – Art. 311.

Fundamental Rule 56(j)– Distinction between FR.56(j) andr.135, 1975 Rules – Discussed – Research and Analysis Wing(Recruitment, Cadre and Services) Rules, 1975.

ACentral Civil Services (Pension) Rules, 1972 – r.9 – Raisond’etre of – Discussed – Research and Analysis Wing (Recruitment,Cadre and Services) Rules, 1975 – r.135 – Constitution of India –Art.309.

Central Civil Services (Pension) Rules, 1972 – r.9, if overlapsBwith r.135 – Held: No – Research and Analysis Wing (Recruitment,Cadre and Services) Rules, 1975 – r.135.

Intelligence Organisations (Restriction of Rights) Act, 1985– Held: It restricts certain rights conferred by Part III in theirapplication to intelligence officers – However, it does not curb theCright to livelihood of an officer, that too when the officer is beingcompulsorily retired u/r.135 – Research and Analysis Wing(Recruitment, Cadre and Services) Rules, 1975 – r.135 – Constitutionof India – Art.33 – Central Civil Services (Pension) Rules, 1972 –r.40.

DResearch and Analysis Wing (Recruitment, Cadre andServices) Rules, 1975 – r.135 – Held: Officers compulsorily retiredu/r.135 must be furnished with the copy of the stated Rules alongwiththe order of compulsory retirement.

The Sexual Harassment of Women at Workplace Act, 2013 –EEnquiry under 2013 Act vis-à-vis departmental enquiry – Scopeand nature of – Discussed – Central Civil Services (Classification,Control and Appeal) Rules, 1965.

Compensation – Complaint of sexual harassment – Inaction/procrastination – Violation of right to life – Held: Denial of timelyFinquiry and by competent forum, inevitably results in denial ofjustice and violation of fundamental right – In the present case, theappellant faced exceedingly insensitive and undignifiedcircumstances due to improper handling of her complaint of sexualharassment, impinging her fundamental rights – Compensation ofRs.1,00,000/- awarded for violation of her right to life and dignityG– Constitution of India – Arts.14, 21.

Words & Expressions – ‘Conditions of Service’ – Meaning of– Explained.

Disposing of the matters, the Court

HELD : 1.1 Determination of the challenge toconstitutionality

Article 13 of the Constitution would get attracted if any lawis inconsistent with or in derogation of the fundamental rights. Inthat case, such law would be void to the extent of inconsistency.By virtue of clause (3), the word “law”, used in Article 13, alsoencompasses statutory “rule” and thus the constitutionality ofRule 135, as being violative of Article 14 read with Article 311,could legitimately be tested on the anvil of standard tenets fordetermining the constitutionality of statutes. Article 311 of theConstitution is manifestation of the essential principles of naturaljustice in matters of dismissal, removal or reduction in rank ofpublic servants and imposes duty upon the Government toensure that any such decision against the public servant ispreceded by an inquiry, coupled with an opportunity of being heardand making representation against such decision. Theabovementioned principles of natural justice are also generallyimplicit under Article 14, as denial of the same to the publicservant in question would taint the decision with the vice ofarbitrariness and deprive the public servant of equal protectionof the law. perusal of the text of Article 311 reveals that thisArticle comes into operation when public servant is beingsubjected to dismissal, removal or reduction in the rank. Theusage of words “dismissal”, “removal” or “reduction in rank”clearly points towards an intent to cover situations where publicservant is being subjected to penal consequence. Thus, untiland unless the action taken against public servant is in thenature of punishment, the need for conducting an inquiry coupledwith the grant of an opportunity of being heard, as envisagedunder Article 311, does not arise at all. Succinctly put, the actioncontemplated against the public servant must assume thecharacter of ‘punishment’ in order to attract the safeguards underArticle 311. [Paras 26, 27 & 29][630-A-D; 632-C, D-E]

1.2 The question is: whether the action taken under Rule135 of the 1975 Rules is in the nature of penalty or dismissalclothed as compulsory retirement so as to attract the safeguardsunder Article 311 of the Constitution? The real test for thisexamination is to see whether the order of compulsory retirement

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Ais occasioned by the concern of unsuitability or as punishmentfor misconduct. In the present case, the appellant has beensubjected to the order of compulsory retirement simpliciter, andno action in the nature of dismissal, removal or reduction in rank,as envisaged under Article 311, has been taken against theappellant. The fundamental source of compulsorily retiring anBemployee is derived from the “doctrine of pleasure”, as acceptedin India, which springs from Article 310 of the Constitution. Rule135 merely sets out certain grounds to act as quintessence fortaking such decision and the source of power vests in Article309 read with Article 310 of the Constitution. Rule 135 has beenCcarved out as special provision and is premised on the doctrineof necessity. This stand alone provision forms small subset ofthe genus of Article 309 and deals strictly with cases of “exposure”of “intelligence officers” who become unemployable in theResearch & Analysis Wing (“the Organisation” or “theDepartment”) for reasons of security. Sub-rule (1) of Rule 135Dindicates that an order of compulsory retirement could be passedonly on the exhaustive grounds specified therein, that is –exposure as an intelligence officer or his becoming unemployablein the Organisation due to reasons of security or disability/injuriesreceived by an officer in the performance of his duties. ThusEunderstood, the stipulation is objective, well-articulated andintelligible. Moreover, the stated reason(s) make it amply clearthat Rule 135 covers situations, the existence of which wouldhave an adverse impact, direct or indirect, on the integrity of theOrganisation if the officer is exposed as an intelligence officerand becomes unemployable in the Organisation for reasons ofFsecurity. priori, it would neither be case of misconduct orinefficiency or the like so as to attract penal consequences. It isin no way reflection on the employee regarding his conduct assuch but solely on account of public interests in reference to thenature of sensitivity of operations undertaken by the Organisation.GTherefore, the order under Rule does not entail any charge,stigma or imputation against the appellant. Rule 135 envisages acertain chronology and gets triggered when an intelligence officerstands exposed or is rendered unemployable for reasons of(individual, organisational or national) security. The expressions“exposure”, “unemployability” and “security” constitute the keyHingredients of this Rule and are to be understood in achronological and natural order to discern their true essence andeffect. Further, it is pertinent to note that the grounds referredto in Rule 135 nowhere contemplate it as consequence of anyfault or wrongful action on the part of the officer and unlike penalactions, do not stigmatise the outgoing officer or involve loss ofbenefits already earned by him and there is no element ofpunishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce thisview as the same provide for appropriate benefits such as pension,gratuity, lump sum amount etc. for the public servant who hasbeen subjected to compulsory retirement. Thus, the employeeis not faced with any loss of benefits already earned. Theexamination of the characteristics of such rule is not focussedaround the motive or underlying intent behind its enactment,rather, it lies in the consequence and effect of the operation ofsuch rule on the outgoing employee. compulsory retirementwithout anything more does not attract Article 311(2). At par withother departments, in case of dismissal of an employee of thisOrganisation (R & AW) also, the CCS (CCA) Rules, coupled withthe procedure under Article 311, could be and are expected tobe ordinarily resorted to. Therefore, Rule 135 of the 1975 Ruleshas been enacted as special provision dealing strictly with thenon-penal domain of compulsory retirement and that too againstintelligence officer under specific circumstances referred to inclauses (a) and (b) of sub-Rule (1) thereof. Whereas, the cases ofdismissal/removal/reduction in rank or any other penal action oftermination of service involving stigmatisation of the employeeis separately covered by the CCS (CCA) Rules. [Paras 30, 32-35][633-A-C; 634-D-H; 635-A-G; 636-D]

State of U.P. v. Sri Shyam Lal Sharma (1971) 2 SCC514; State of Bombay v. Saubhagchand M. Doshi AIR1957 SC 892 : [1958] SCR 571; Dalip Singh v. Stateof Punjab AIR 1960 SC 1305 : [1961] 1 SCR 88; Unionof India and Others v. Dulal Dutt (1993) 2 SCC 179 :[1993] 1 SCR 853 – relied on.

1.3 priori, the irresistible conclusion is that the effect ofany action taken under Rule 135 does not entail any penalconsequence for the employee and, therefore, it cannot be put at

Athe same pedestal as an action of dismissal or removal, and noinquiry or opportunity of hearing as envisaged under Article 311is required while taking an action under this Rule. Mere loss ofsome future career prospects per se is no ground for invalidatingan order of compulsory retirement as it may be in given case aninevitable consequence of any such order. What needs to beBdelineated to attract the vice of invalidity to statutory order isillegality, at least of minimum standard to trigger the conscienceof the Court. The action under Rule 135 is not governed by Article311 nor it offends the same - as these two provisions operate inseparate spheres and thus an action taken under the impugnedCRule (Rule 135 of the 1975 Rules) need not be preceded by thesafeguards provided under Article 311 of the Constitution as such.Since the action under Rule 135 is exclusive and is invoked inthe specified situations in public interest in reference to theOrganization and at the highest level by the head of theGovernment, the question of violation of Article 14 on account ofDthe denial of equal protection of law does not arise. [Paras 36,37][636-E-H; 637-A]1.4 deputationist is an employee who has been assignedto another department from his/her parent department. Bysending back the person to his parent department, any adverseEeffect on the Organisation (R&AW) including of reasons of securitywould be averted. Therefore, deputationist stands on analtogether different footing than direct recruit of theOrganisation/Department who is exposed as an intelligence officeror his/her becoming unemployable in the Organisation for reasonsFof security. deputationist can be repatriated back to his/herparent department and in cases of misconduct, necessary actioncan also be initiated against him/her as per the conditions ofservice governing his/her parent department. In that sense, adeputationist and direct recruit are not stricto sensu similarly

placed and thus the plea of differential treatment meted out toGthem is unavailable. It would not entail discrimination nor beviolative of Article 14. Accordingly, the challenge to constitutionalvalidity of Rule 135 is negated. Additionally, the rule does notprohibit any inquiry and is in general line with the orders ofcompulsory retirement wherein the right of outgoing employeeHto participate in the process of formation of such decision is not

envisaged in law, as the underlying basis of such action is thelarger public interest and security of the Organisation; and notany culpable conduct of the employee. Moreover, Rule 135incorporates language that is self-guiding in nature. The usageof words “exposure” and “unemployability for reasons ofsecurity” are not insignificant, rather, they act as quintessentialstimulants for the competent authority in passing such order. Themandatory determination of what amounts to an exposure or whatrenders an employee unemployable due to reasons of securityunder Rule 135, is both pre-condition and safeguard, andincorporates within its fold the subjective satisfaction of thecompetent authority in that regard. In order to reach its ownsatisfaction, the authority is free to seek information from its ownsources. Thus, in cases when the ingredients of Rule 135 standsatisfied in light of the prevalent circumstances, the need forgiving opportunity to the officer concerned by way of an inquiryis done away with because the underlying purpose of such inquiryis not the satisfaction of the principles of natural justice or of theconcerned officer, rather, it is to enable the competent authorityof the Organisation to satisfy itself in subjective manner asregards the fitness of the case to invoke the rule. Therefore, theprocedure underlying Rule 135 cannot be shackled by the rigidityof the principles of natural justice in larger public interest inreference to the structure of the Organisation in question, beinga special Rule dealing with specified cases. [Paras 39, 40][637-E,G-H; 638-A-B, C-G]

State of U.P. & Ors. v. Ram Naresh Lal (1970) 3 SCC173 Kunal Nanda v. Union of India & Anr. (2000) 5SCC 362 : [2000] 3 SCR 214 – relied on.

1.5 Reverting to the challenge in reference to Article 309,suffice it to observe that the 1975 Rules fall under the “conditionsof service” governing the appellant and have been framed underthe proviso to Article 309 of the Constitution. The phrase“conditions of service” is not phrase of mathematical precisionand is to be understood with its wide import. The natural, logicaland grammatical meaning of the phrase “conditions of service”would encompass wide range of conditions relating to salary, timeperiod of payment, pay scales, dearness allowance, suspension

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Aand even termination of service. The appellant’s argument thatsince Article 311 covers the field of dismissal, removal andreduction in rank of an employee, it automatically implies theexclusion of these matters from Article 309, does not commend.A conjoint reading of Articles 309 and 311 reveals that Article311 is confined to the cases wherein an inquiry has beenBcommenced against an employee and an action of penal nature issought to be taken. Whereas, Article 309 covers the broadspectrum of conditions of service and holds wider ground ascompared to Article 311. That would also include conditions ofservice beyond mere dismissal, removal or reduction in rank. ItCholds merit to state that this wide ground contemplated underArticle 309 also takes in its sweep the conditions regardingtermination of service including compulsory retirement. Generallyit is correct to say that the rules governing conditions of service,framed under Article 309, are subject to other provisions of theConstitution, including Article 311. The opening words of ArticleD309 - “Subject to the provisions of this Constitution”- pointtowards the same analogy. However, this subjection clause shallnot operate upon the rules governing compulsory retirement.For, the legal concept of compulsory retirement is non-penalmeasure of the government and steers clear from the operationEof Article 311, unless it is case of removal or dismissal clothedas compulsory retirement. Had there been rule providing forremoval, dismissal or reduction in rank, it would have beencontrolled by the safeguards under Article 311. The validity of arule shall be hit by Article 311 only if it seeks to affect theprotection offered by Article 311, and not otherwise as in theFpresent case. [Paras 41-43][638-H; 639-A-D, F-H; 640-A]

Pradyat Kumar Bose v. The Hon’ble The Chief Justiceof Calcutta High Court AIR 1956 SC 285 : [1955] SCR 1331; State of U.P. & Ors. v. Babu Ram UpadhyaAIR 1961 SC 751 : [1961] 2 SCR 679 – relied on.G

1.6 The words used in statute are to be understood in thelight of that particular statute and not in isolation thereto. Theexpression used in Rule 135 is “security”, as distinguished fromthe more commonly used expression “security of the State” usedin Article 311. This deliberate widening of the expression by theH

enacting body points towards the inclusive intent behind theexpression. The word “security” emanates from the word“secure” which, as per the Law Lexicon, means to put somethingbeyond hazard. It is understood that the exposure of anintelligence officer could be hazardous not only for theOrganisation but also for the officer concerned and the expression“security”, therefore, is to be understood as securing theOrganisational and individual interests beyond hazard andsquarely covers the security of the Organisation as well as thesecurity of the State. Similarly, the expression “exposure” refersto the revelation of the identity of an intelligence officer as suchto the public, in manner that renders such officer unemployablefor the Organisation for reasons of security. duly enacted lawcannot be struck down on the mere ground of vagueness unlesssuch vagueness transcends in the realm of arbitrariness. However,challenge to Rule 135 on the ground of vagueness, could only besustained if the Rule does not provide person of ordinaryintelligence with reasonable opportunity to know the scope ofthe sphere in which the Rule would operate. In the present case,the test of reasonable man is to be applied from the point of viewof member working in the Organisation as an intelligence officer.The members working in the Organisation, more particularly aClass-I Intelligence Officer, ought to know the scope, specificcontext and import of the expressions – “exposed as anintelligence officer”, “becoming unemployable in theOrganisation” or “reason of security”, as the case may be. Amember working in the Organisation would certainly be aware ofthe transnational repercussions emerging from the exposure ofthe identity of an intelligence officer. Thus, there is no inherentvagueness or arbitrariness in the usage of above expressions soas to attach the vice of unconstitutionality to the Rule. However,whether or not an executive act of exercising the power underthe Rule reeks of arbitrariness is matter of separate examination,to be conducted on case to case basis and does not call for ageneral declaration by the Court. To conclude, the challenge onthis ground is rejected and the impugned judgment is, therefore,held to have answered this challenge correctly. However, themeaning placed by the High Court on the expression “security”,in the impugned judgment, is of wide import. This observation

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Ashall stand effaced in light of the interpretation of Rule 135 andshall not be operative for any precedentiary purpose, orotherwise. [Paras 45-47][640-C-H; 641-A-D and F]

Municipal Committee, Amritsar & Ors. v. State of Punjab& Ors. (1969) 1 SCC 475 : [1969] 3 SCR 447 – reliedBon.

2. On mala fide exercise of powerA mala fide exercise ofpower is essentially fraud on the power. For an exercise of powerto steer away from the taint of mala fides, such power ought to beexercised within the contours of the statute/law bestowing suchCpower. Any exercise which exceeds the limits laid down by law;or is driven by factors extraneous or irrelevant to such exercise;or guided by malicious intent or personal animosity; or reeks ofarbitrariness must fall foul in the eyes of law. The fact situation inthe present case does not attract any of the above stated factors.Notably, the appellant has not impleaded the concerned personsDagainst whom allegations of mala fides are made, as partyrespondent. Hence, those allegations cannot be taken forward.Resultantly, the ground of mala fide action in fact does not survivefor consideration. [Paras 51, 52][643-B-E and G]S. Partap Singh v. State of Punjab AIR 1964 SC 72:E[1964] 4 SCR 733; Express Newspapers Pvt. Ltd. &Ors. v. Union of India & Ors. (1986) 1 SCC 133 :[1985] 3 Suppl. SCR 382 J.D. Srivastava v. State ofM.P. and Others (1984) 2 SCC 8 : [1984] 2 SCR 466;Jaichand Lal Sethia v. State of West Bengal AIR 1967FSC 483 : [1966] Suppl. SCR 464; Purushottam KumarJha v. State of Jharkhand & Ors. (2006) 9 SCC 458 :[2006] 1 Suppl. SCR 215 – relied on.

3. On non-application of mindThe scope of judicial reviewis very limited in cases of compulsory retirement and isGpermissible on the limited grounds such as non-application ofmind or mala fides. The pre-requisite of due application of mindseems to be fulfilled as the decision has been reached in theaftermath of series of discussions, exchanges and consultationsbetween the Organisation and the PMO over the course of 15months from 22.9.2008 to 18.12.2009 (order of compulsoryH

retirement). Thus, the appellant has not been able to establishthe factum of non-application of mind in material terms andespecially because the final decision has been taken at the highestlevel by the head of the Government in the aftermath of unfurlingof successive events of exposure of appellant to the public andmedia in particular. Even if the argument of personal animositybetween the appellant and the then Secretary (R) was to beaccepted it does not help the appellant’s case as the final authorityon the decision of compulsory retirement was vested in the PMOand there is no tittle of evidence regarding exercise of influenceby the then Secretary (R) in the PMO. In an allegation of thisnature, de-facto prejudice needs to be proved by evidence andthis requirement of law fails to garner support from the factualposition emanating in this case. Having said thus, it is deemedessential to emphasize upon the approach of the court inscrutinising the decisions taken at the highest levels andconstitutional challenge thereto. Indeed, there can be no ipsofacto presumption of validity in favour of actions taken at higherpedestals of the dispensation. However, constitutional offices,like that of the PMO, are entrusted with constitutional trust bythe people of India through the holy Constitution. Suchconstitutional trust absorbs within itself an inherent expectationthat actions emerging out of such functionaries are driven by bonafide considerations of public interest and constitutional propriety.Constitutional trust, as concept of constitutional application,has been duly accepted by this Court in string of judgments.[Paras 54, 56, 57][646-D-E and F; 647-C-H]

Pyare Mohan Lal v. State of Jharkhand and Others(2010) 10 SCC 693 : [2010] 11 SCR 216; ManojNarula v. Union of India (2014) 9 SCC 1 : [2014] 9SCR 965; Govt. Of NCT of Delhi v. Union of India 2019(3) SCALE 107; Kihota Hollohon v. Zachilhu andOthers (1992) 1 SCC 309 – relied on.

4. On Fundamental Rule 56(j) and Rule 9 of the Pension

RulesThe next examination relates to the allegation of failure toproceed in accordance with FR 56(j). In normal parlance,compulsory retirement of public servant is governed by theprocedure laid down in FR 56(j) as Fundamental Rule - 2 provides

Athat “the Fundamental Rules apply to all Government servantswhose pay is debitable to Civil Estimates and to any other classof Government servants to which the President may, by generalor special order, declare them to be applicable”. Thus, FR 56(j)is rule of general application. FR 56(j) incorporates twinelements- first, the absolute right of the Government to retire anBemployee and second, the specific circumstance in which suchright could be exercised i.e., the necessity of public interest. Therule also provides for prior notice of at least three months tothe outgoing employee. Rule 135 of the 1975 Rules, on the otherhand, deviates from this dispensation. It is special provisionCdealing with clan of intelligence officers in the Organisation inquestion. The fundamental distinction between FR 56(j) and Rule135 lies in the usage of expressions “public interest” and“security” respectively. The concern of security finds special placein an exclusive provision that gets triggered for reasons of

security. On the other hand, FR 56(j) is in reference to publicDinterest generally. Framed in 1975, during the existence of FR56(j), Rule 135 was carved out as special provision. Rule 135recognises the presence of vested and inherent right in thegovernment to compulsorily retire an employee and explicitlyspecifies certain exclusive grounds for taking such action.ETherefore, Rule 135 presents deliberate deviation from FR56(j) and covers special circumstances of ‘exposure’ or‘unemployability for reasons of security’ as pre-requisites for itsinvocation. Indubitably, Rule 135 is not exhaustive of allcircumstances and matters of compulsory retirement ofintelligence officer of the Organisation. For, it holds noFoperatibility beyond the specified situations therein. All othersituations (not covered by Rule 135) warranting compulsoryretirement would, therefore, continue to be governed by FR 56(j)in reference to public interest. Thus, Rule 135 is specialprovision and operates independent of the grounds and procedureGlaid down in FR 56(j). Once the ingredients of Rule 135 aresatisfied, then, within the meaning of Article 309, Rule 135 willget activated as ‘condition of service’ of the intelligence officerof the Organisation and FR 56(j), being general provision, couldbe invoked on the grounds transcending beyond the stipulationin Rule 135 in public interest. Thus, the general provision suchH

as FR 56(j) must give way to the special provision (Rule 135).Though it has already been stated in clear terms that Rule 135 ofthe 1975 Rules is not bound by the rigidity of the principles ofnatural justice, it is deemed necessary to add that natural justiceis not an all-pervasive pre-condition in all the executive decisionsand its extent of applicability varies in myriad set of situations. Amechanical extension of the principles of natural justice wouldbe against the proprieties of justice. The order of compulsoryretirement in the present case was preceded by chain ofpreliminary inquiry, commencing from 8.8.2008, in the highestechelons of the government and such preliminary inquiry isadvisable. For, it is only after preliminary inquiry that thecompetent authority can satisfy itself about the existence of theprescribed ground in particular case. However, it is reiteratedthat the participation of the concerned officer in such inquiry isneither mandated by the jurisprudential essence of compulsoryretirement or the rigid observance of the principles of naturaljustice.[Paras 58-60, 62][649-A-C, D-H; 650-A-C, D-E; 651-B-C; 653-G-H; 654-A-B]S.C. Jain v. State of Haryana and Another (1985) 4SCC 645 : [1985] 3 Suppl. SCR 727; New PrakashTransport Co. Limited v. New Suwarna Transport Co.Limited AIR 1957 SC 232 : [1957] SCR 98; Union ofIndia v. Col. J.N. Sinha & Anr. (1970) 2 SCC 458 :[1971] 1 SCR 791; A.K. Kraipak & Ors. v. Union ofIndia & Ors. (1969) 2 SCC 262 : [1970] 1 SCR457; Managing Director, ECIL, Hyderabad and Othersv. B. Karunakar and Others (1993) 4 SCC 727 : [1993]2 Suppl. SCR 576; Ex-Armymen’s Protection ServicesPrivate Limited v. Union of India and Others (2014) 5SCC 409 : [2014] 3 SCR 359; State of Rajasthan v.Leela Jain & Ors. AIR 1965 SC 1296; Sri Nasiruddinv. State Transport Appellate Tribunal AIR 1976 SC 331: [1976] 1 SCR 505 – relied on.

Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC248 : [1978] 2 SCR 621 – referred to.

5.1 Re: Pension claimThe appellant may be right incontending that the power to withhold or withdraw pension of anofficer is circumscribed by Rule 9, Central Civil Services

A(Pension) Rules, 1972. The exercise of power of modification ofpension under Rule 9 is subject to the finding of misconduct ornegligence against the employee, reached after conductingdepartmental or judicial proceedings. The raison d’etre of Rule 9is to provide for an additional safeguard on the pensionary rightof an employee by vesting the power of reduction/modification inBthe President of India. However, it is general rule and not anoverarching provision of pervasive application. Framed underArticle 309 of the Constitution, this rule operates in the areaspecified for it and cannot override other special rules such asRule 135. Rule 9 does not and cannot control Rule 135 of theC1975 Rules, which derives its own independent authority fromArticle 309. As both the rules emanate from Article 309, thequestion of illegality of one rule cannot be premised on theargument that it acts in deviation from another rule albeitconcerning the same subject of pension. Rule 135 operates as aself-contained code covering certain aspects of termination andDpost-termination benefits in an exclusive manner as specialdispensation and is not controlled by any other rule much lessgeneral provisions. There is no overlapping between Rule 135and Rule 9. As regards the grant of pension to appellant, theappellant shall be entitled to all the benefits under clauses (2)-E(4) of Rule 135 in their true letter and spirit. The impugnedjudgment has directed the respondents to secure various benefitsto the appellant, including the benefit of promotion and fixationof date of pension as per the date of notional superannuation in2023. That direction has not been challenged by the respondents.The pension of an employee retired under Rule 135 is to beFdetermined in accordance with the date of notional superannuationand not in accordance with the date of actual retirement. Thisreflects the beneficial, balancing and protective outlook of theRule as it seeks to deal with the competing considerations ofpublic interest including security (of the Organisation or the State)Gand individual interest of the outgoing employee. [Paras 67-69][655-F; 656-G-H; 657-A-F]

D.V. Kapoor v. Union of India and Others (1990) 4SCC 314 : [1990] 3 SCR 697– relied on.

5.2 The decision to retire an officer compulsorily is purelyan executive function exercised in light of the prevailingcircumstances. The scrutiny by the Court is restricted to anexamination of whether such order is smitten by mala fides orextraneous considerations. Once such order is upheld in Courtof law in its entirety, as the High Court rightly did, there is noquestion of altering or modifying the technical aspects of suchorder, including the date from which it should be given effect.The usage of words “immediate effect” makes it amply clear thatthe order of compulsory retirement was meant to take effectimmediately and the date of such order could not have beenpostponed by Court of law in the garb of exercising power ofjudicial review. Even if it is assumed that the Court intended it asan equitable measure, the same could have been achieved withoutpostponing the date of retirement. Sub-rule (2) of Rule 135 ofthe 1975 Rules categorically provides for the calculation ofpension as per the date of notional superannuation as well as forthe earned promotions. However, despite disapproval for thisapproach, in the peculiar facts of this case, the Court stops shortof modifying the High Court’s order as regards postponement ofdate of retirement as the same has not been assailed by therespondents and instead has been complied with sans any demur.Further, Rule 2(h) of the Pension Rules explicitly predicates thatthe said rules (Pension Rules) shall not apply to persons whoseterms and conditions of service are regulated by or under anyother law for the time being in force. Rule 135 forms part of the‘conditions of service’ governing the officers serving in theOrganisation and thus, in the field covered by Rule 135, thePension Rules would be inapplicable. However, the areas thatfall outside the purview of Rule 135 would and must be governedas per the CCS Rules, as is restated in the departmental orderdated 10.5.2010 sanctioning the provisional pension of theappellant under Rule 69 of the Pension Rules. Thus, there is noconflict between the two. [Paras 71 and 73][658-C-G; 659-B-D]

5.3 It is cardinal that pension is valuable statutory rightof an employee and is not controlled by the sweet will or pleasureof the Government. In the absence of express exceptions to thesame, any provision resulting in denial thereof ought to be

DEF

Asubjected to strict judicial scrutiny. Indeed, clauses (2) and (3) ofRule 135 of the 1975 Rules, posit that the grant of pension to acompulsorily retired employee under this rule is preceded byexpression “may”. That gives an impression that the grant ofpension to the outgoing employee is subject to the discretion ofthe competent authority. The setting in which expressionB“may”has been placed in this provision, it must be read as “shall”.Lest, it could be argued that compulsorily retired officer underRule 135 can be denuded of pensionary benefits. That would resultin not only loss of job for the employee concerned due to fortuitoussituation referred to in Rule 135, but also deprive him/her of theCsource of his livelihood (even though the action against him/heris not to inflict civil consequences). In fact, Rule 135 is cast inthe form of beneficial, balancing and protective provision forthe nature of action against the employee concerned. IntelligenceOrganisations (Restriction of Rights) Act, 1985, enacted by theParliament under Article 33, provides for restriction of certainDrights conferred by Part III in their application to intelligenceofficers. However, the same is confined to restrictions respectingright to form associations, freedom of speech etc. and does notstretch its sweep to curb the right to livelihood of an officer, thattoo when the officer is being compulsorily retired under RuleE135. This could not have been the object and intent of the statedlegislation. Even in the Pension Rules, Rule 40 is the onlyprovision which subjects the pension of compulsorily retiredofficer to discretionary “may” provision. However, this rulecomes into play when the said retirement is ordered as penaltyand thus, it stands on different footing than Rule 135 of theF1975 Rules which is not linked to the conduct of the officer nordoes it entail any consequence, either civil or penal. [Paras 75-77][659-F; 660-C-E, H; 661-A-C]

D.S. Nakara and Others v. Union of India (1983) 1SCC 305 : [1983] 2 SCR 165 – followed.G

5.4 It is the duty of the Court to give effect to the objectsought to be achieved by the legislature through the enactedprovision and to prevent its defeat. In the present case, the usageof “may” provision in discretionary manner could lead to highlyiniquitous results and leave scope for arbitrary exercise ofH

discretion. Thus, keeping in mind the context, object, legislativeintent and the general policy of resolving ambiguities of beneficialprovisions in favour of the employees, the expression “may”occurring in Rule 135 needs to be construed as “shall” and tomake it mandatory upon the competent authority to grantspecified pension benefits, in line with the spirit of the rule, tothe compulsorily retired officer without exception. Further, theofficers whose services are being terminated under Rule 135,ought to be provided with at least the extract of relevant applicablerules alongwith the order of compulsory retirement so that theconcerned employee would know about the entitlement andbenefits under the governing Rule for pursuing claim thereunderin accordance with the law. [Paras 78-80][661-C; 662-E-F, H; 663-A]

D.K. Basu v. State of West Bengal & Ors. (2015) 8 SCC744 : [2015] 7 SCR 814 – followed.

Kehar Singh & Ors. v. State (Delhi Administration)(1988) 3 SCC 609 : [1988] 2 Suppl. SCR 24 – relied

6. Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668

of 2015. The order refusing to accord sanction against the privaterespondents has not been assailed by the appellant and absentany challenge thereto, it continues to operate in law. This appealis dismissed. [Paras 85, 87][665-B-C and E]

Inspector of Police and Another v. Battenapatla VenkataRatnam and Another (2015) 13 SCC 87 : [2015] 4SCR 609 – held inapplicable.

7. Writ Petition (Criminal) No. 24 of 2012The legal

machinery to deal with the complaints of sexual harassment atworkplace is well delineated by the enactment of The SexualHarassment of Women at Workplace Act, 2013 and the Rulesframed thereunder. There can be no departure whatsoever fromthe procedure prescribed under the 2013 Act and SexualHarassment of Women at Workplace (Prevention, Prohibition andRedressal) Rules, 2013, either in matters of complaint or of inquirythereunder. The sanctity of such procedure stands undisputed.The inquiry under the 2013 Act is separate inquiry of fact-

Afinding nature. Post the conduct of fact-finding inquiry underthe 2013 Act, the matter goes before the department for adepartmental inquiry under the relevant departmental rules [CCS(CCA) Rules in the present case] and accordingly, action follows.The said departmental inquiry is in the nature of an in-housemechanism wherein the participants are restricted and concernsBof locus are strict and precise. The ambit of such inquiry is strictlyconfined between the delinquent employee and the concerneddepartment having due regard to confidentiality of the procedure.The two inquiries cannot be mixed up with each other and similarprocedural standards cannot be prescribed for both. In mattersCof departmental inquiries, prosecution, penalties, proceedings,action on inquiry report, appeals etc. in connection with theconduct of the government servants, the CCS (CCA) Rulesoperate as self-contained code for any departmental action andunless an existing rule is challenged before this Court onpermissible grounds, it is unnecessary for this Court to dilateDany further. The factual matrix in this case relates to the pre 2013Act era and was solely governed by the guidelines issued by thisCourt in Vishaka. The subject matter or issues raised by thepetitioner in this petition have no bearing on the case in hand.The stated relief claimed in this writ petition, is devoid of merit.E[Paras 95, 97][669-C-H; 670-D-E]

8. Constitutional compensation for violation of right to lifeIt is not in dispute that the petitioner’s complaints of sexualharassment were met with incidents showcasing proceduralignorance and casual attitude of her seniors in the department.FThe scheme of the 2013 Act, Vishaka Guidelines and Conventionon Elimination of All Forms of Discrimination Against Women(CEDAW) predicates that non-hostile working environment isthe basic limb of dignified employment. The approach of law asregards the cases of sexual harassment at workplace is notconfined to cases of actual commission of acts of harassment, butGalso covers situations wherein the woman employee is subjectedto prejudice, hostility, discriminatory attitude and humiliation inday to day functioning at the workplace. Taking any other viewwould defeat the purpose of the law. priori, when inaction orprocrastination (intentionally or otherwise) is meted out inHresponse to the attempt of setting the legal machinery in motion,what is put to peril is not just the individual cries for the assistanceof law but also the foundational tenets of society governed bythe rule of law, thereby threatening the larger public interests.The denial of timely inquiry and by competent forum, inevitablyresults in denial of justice and violation of fundamental right. Thefactual matrix of the present case is replete with lack of sensitivityon the part of Secretary (R) qua the complaint of sexualharassment. To wit, time taken to process the stated complaintand improper constitution of the first Complaints Committee(intended or unintended) in violation of the Vishaka Guidelines,constitute an appalling conglomeration of undignified treatmentand violation of the fundamental rights of the petitioner, moreparticularly Articles 14 and 21 of the Constitution. In the presentcase, the petitioner had faced exceedingly insensitive andundignified circumstances due to improper handling of hercomplaint of sexual harassment. Regardless of the outcome ofthe inquiry into the stated complaint, the fundamental rights ofthe petitioner had been clearly impinged. This is fit case toaward compensation to the petitioner for the stated violation ofher right to life and dignity, quantified at Rs.1,00,000/-.[Paras 101, 102 and 104][671-H; 672-A, C-F; 673-C-D]

S. Nambi Narayanan v. Siby Mathews & Ors. (2018)10 SCC 804 : [2018] 12 SCR 51; Nilabati Behera (Smt)Alias Lalita Behera (Through the Supreme Court LegalAid Committee) v. State of Orissa & Ors. (1993) 2 SCC746 : [1993] 2 SCR 581; Rudul Sah v. State of Bihar &Anr. (1983) 4 SCC 141 : [1983] 3 SCR 508 – relied on.

9. Writ Petition (Criminal) No. 1 of 2016Being acompulsorily retired government servant, the entitlement of thepetitioner to post-retirement benefits must be confined to theprovisions under the service rules applicable to her. The petitionerhas been paid various post-retirement benefits including pensionon the basis of the date of notional superannuation in accordancewith the letter and spirit of Rule 135 of the 1975 Rules. Thepetitioner, relying upon the order of the High Court in W.P. (C)3704 of 2012, contended that various Court orders on recordprove the commission of criminal intimidation and wrongful

Arestraint against the petitioner by the officers of the respondents.This inference purportedly deduced from the stated order isoutrightly rejected. The question of criminal liability of the officershas not been adjudicated in any preceding case so far. Thus, noadditional compensation under the pretext of the allegations underconsideration can be granted to the petitioner. Therefore, thisBpetition must fail and is disposed of in the aforementioned terms.[Paras 108, 109][674-G-H; 675-B-D]

10. The batch of four cases is disposed of in the followingterms and directions: -

C1. Rule 135 of the 1975 Rules is valid and does not sufferfrom the vice of unconstitutionality. Further, the expression “may”occurring in sub-Rule (2) of Rule 135 must be read as “shall”,for giving true effect to the object of the provision.

2. The impugned order of compulsory retirement passedDunder Rule 135 against the appellant/petitioner is valid and legaland the decision of the High Court in this regard stands confirmedsubject, however, to modification thereof to the extent indicatedin the present judgment.

3. The grant of pension to the appellant/petitioner hereinEshall be computed in accordance with the date of notionalsuperannuation as directed by the High Court and not from thedate of actual compulsory retirement.

4. The respondent(s) (Union of India) is to paycompensation quantified at Rs.1,00,000/- (Rupees one lakh only)Fto the appellant/petitioner for violation of her fundamental rightsto life and dignity - as result of the improper handling of hercomplaint of sexual harassment.

5. The appellant/petitioner is granted time to vacate andhand over peaceful possession of her official quarter for periodof three months from today. Further, no penal house rent chargesGbe levied or recovered from the petitioner upto next threemonths from today. [Para 112][676-F]

Satyavir Singh and Others v. Union of India and Others(1985) 4 SCC 252 : [1985] 2 Suppl. SCR 791;Divisional Manager, Aravali Golf Club & Anr. v.

Chander Hass & Anr. (2008) 1 SCC 683 : [ 2007] 12 SCR 1084; Social Action Forum for Manav Adhikarand Another v. Union of India, Ministry of Law andJustice & Ors. (2018) 10 SCC 443 : [2018] 12 SCR 19– relied on.

Vishaka and Others v. State of Rajasthan and Others(1997) 6 SCC 241 : [1997] 3 Suppl. SCR 404; KartarSingh v. State of Punjab (1994) 3 SCC 569 : [ 1994] 2 SCR 375; Union of India & Anr. v. Tulsiram Patel(1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131;Baikuntha Nath Das & Anr. v. Chief District MedicalOfficer, Baripada & Anr. (1992) 2 SCC 299 : [1992] 1SCR 836; Vineet Narain & Ors. v. Union of India &Anr. (1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 –referred to.

Case Law Reference

618SUPREME COURT REPORTS

[2020] 10 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2365of 2020.

From the Judgment and Order dated 07.01.2019 of the High Courtof Delhi at New Delhi in W.P. (C) No. 2735 of 2010.

With

Criminal Appeal No. 413 of 2020, Writ Petition (Criminal) No. 24of 2012, Writ Petition (Criminal) No. 1 of 2016.

Ms. Nisha Priya Bhatia, (Petitioner-in-Person).

Atma Ram Nadkarni, ASG, P.S. Patwalia, Sr. Adv., Sudhir Walia,Ms. Niharika Ahluwalia, Ms. Akanksha Kaul, Arvind Kumar Sharma,Mukesh Kumar Maroria, Vijay Prakash, Ms. Charuwali Khanna,Ms. Suhasani Shamra, Santosh Rebello, Ms. Saudamini Sharma, andMs. Charu Walikhanna, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This lis throws up questions regarding striking legal balancebetween the State-citizen intercourse in the context of relationship of anemployer and employee.The nature of employment under the umbrellaof the State is complex and is often determinative of the nature of dutyto be performed and the rights to be enjoyed by those must be correlatedthereto. To wit, higher the position and responsibilities, the extent andquality of individual rights ought to be inversely proportional in the largerpublic interest. Thereby giving rise to situations like the present casewherein the ultimate balance between security of State organisationdealing with sensitive matters of security of the nation and individualinterest of person employed thereat as an intelligence officer, is beingput to legal scrutiny in light of the fundamental constitutional values ofjustice, liberty, equality and fraternity.

2. This common judgment shall dispose of all the four casespertaining to and emanating from the action of compulsory retirement ofthe appellant under Rule 135 of the Research and Analysis Wing(Recruitment, Cadre and Services) Rules, 1975 (for short, “the 1975Rules”) on the ground of “exposure”. Civil Appeal No.2365/2020 arisingout of SLP(C) No. 2307/2019 has been dealt with as lead matter involvingthe main grievance of the appellant.

ACivil Appeal No. 2365/2020 @ SLP (Civil) No. 2307 of 2019

3. Leave granted.

4. The primary challenge is to the judgment dated 7.1.2019 (forshort, ‘the impugned judgment’) passed in W.P. (C) No. 2735 of 2010filed by the respondents, whereby the High Court of Delhi at New DelhiB(for short, ‘the High Court’) upheld the order of compulsory retirementof the appellant, thereby reversing the order dated 16.3.2010 passed bythe Central Administrative Tribunal (for short, ‘the Tribunal’) in O.A.No. 50 of 2010 quashing the order of compulsory retirement and directingreinstatement of the appellant back in service.C

5. Briefly stated, on 22.2.1988, the appellant joined the Research& Analysis Wing (for short “the Organisation” or “the Department”) as“Directly Recruited” under the Research & Analysis Service (RAS).She was assigned various portfolios during the term of service includingthe post of Director, Training Institute (Gurgaon) where she remainedDposted from 2.7.2004 to August, 2007. On 3.8.2007, the appellant wasposted as Director at Headquarters in New Delhi. Whilst posted atGurgaon and Delhi, the appellant had to interact with Shri AshokChaturvedi and Shri Sunil Uke respectively, who were working in theOrganisation in various capacities at that time.

E6. On 7.8.2007, the appellant filed complaint of sexualharassment against Shri Ashok Chaturvedi, working as Secretary (R) -Incharge of the Organisation and Shri Sunil Uke, working as JointSecretary in the Organisation at that time. The appellant alleged that thecharged officers subjected her to harassment by asking her to join thesex racket running inside the Organisation for securing quicker promotionsFand upon refusal to oblige, she was subjected to persecution. Thus beganthe series of allegations regarding acts of commission and omission whichculminated into litigation continuing upto the present batch of four cases.

7. The Organisation responded to the allegations of sexualharassment after gap of almost three months by constituting aGComplaints Committee in accordance with the guidelines laid down inVishaka and Others vs. State of Rajasthan and Others[1 ]and appointedMs. Shashi Prabha, female officer in the Organisation, as Chairpersonof three-member Complaints Committee. The Complaints Committeeso constituted did not consist of “third party as representative of an

H1 (1997) 6 SCC 241

NGO or other body who is familiar with the issue of sexual harassment”,as predicated by the guidelines given in Vishaka (supra). Resultantly,the Committee was re-constituted on 1.11.2007 with the addition of Dr.Tara Kartha, Director, National Security Council Secretariat (NSCS).

8. It is noteworthy that, despite multiple reminders, the appellantrefused to participate in the stated proceedings before the Committeeand cited the following reasons for such refusal:

(i) Need to constitute the Departmental Committee as perVishakha guidelines; and,

(ii) The committee had no mandate to proceed against Shri AshokChaturvedi, as Chairperson of the committee was not senior enough toinquire into allegations against him.

9. The departmental Complaints Committee, in its ex-parte report,concluded that no allegations of sexual harassment could be provedagainst Shri Sunil Uke. This report was followed by ‘widely reported’incident at the Prime Minister’s Office (for short, “the PMO”) wherethe appellant reportedly attempted to commit suicide on 19.8.2008. Weare not required to dilate on the factual aspect of this incident at thePMO, but for the purpose of present litigation, suffice it to mention thatdue to this incident, the name and designation of the appellant was widelyreported in the media. Further, the criminal case against the appellantevolving out of this incident came to be dropped vide order dated 21.9.2013passed by the Metropolitan Magistrate, Patiala House Courts, New Delhi.10. It was in the aftermath of this incident that another committeewas constituted by the then Prime Minister under the Chairmanship ofMs. Rathi Vinay Jha, retired officer of the Indian Administrative Serviceto look into the complaints against Shri Ashok Chaturvedi. The Committeedealt with two aspects of allegations against Shri Ashok Chaturvedi –firstly, allegation of not acting in accordance with the Vishaka (supra)Guidelines on receipt of the complaint of the appellant; secondly, allegationsof actually indulging in acts falling within the ambit of sexual harassment.We, at this juncture, are concerned only with the former allegation, thatis, the lapse committed by the Secretary (R) to act in accordance withthe elaborate Guidelines passed by this Court in Vishaka (supra). For,Rathi Vinay Jha Committee concluded the enquiry with the finding thatno case of sexual harassment of the appellant at the hands of hercolleagues was made out on the basis of evidence on record. However,

Athe Committee recorded series of crucial observations. The same shallbe adverted to at an appropriate stage in the later part of this judgment.11. Furthermore, in the aftermath of the above-mentioned incidentat PMO, the Cabinet Secretariat, through the Press Information Bureau,released press note dated 19.8.2008 carrying the title “Fact Sheet onBSuicide Attempt by Ms. Nisha Priya Bhatia”. This press note carriedinformation pertaining to the incident, her complaints against hercolleagues within the Department and the state of her mental health andpsychological condition. It is pertinent to note that the observationsregarding the disturbed mental state of the appellant were based on an‘informal opinion’ sought by Secretary (R) from the Head of theCDepartment of Psychiatry, All India Institute of Medical Sciences(AIIMS). Notably, this press note dated 19.8.2008 has been quashed bythis Court in W.P. (Crl.) No. 24 of 2012, vide order dated 15.12.2014, asbeing in gross violation of human rights and individual dignity of theappellant. The relevant part of the order notes thus:

D“On proper appreciation of the aforesaid, it can definitely be statedthat the foundation and the fulcrum on which the press note wasissued has no basis. The press note, as we perceive, creates aconcavity in the reputation of citizen and indubitably against anofficer whatever rank he/she holds. There was no reason to issueEa press note. We can understand that the press note is issued thata crime has been registered against the person concerned as it isa cognizable crime but we cannot appreciate issuance of such apress note which affects the dignity, reputation and privacy of anofficer.

FIn view of the aforesaid, we quash the press note dated 19.08.2008.Needless to emphasise, when we quash press note or anything,it does not exist in the eye of law and it has to be understood thatit had never existed for any purpose at any point of time.”

12. The incident dated 19.8.2008 at the PMO had attractedGimmense media attention across national and international portals andculminated into series of media reports whereby the appellant’s identity,including her association with the Organisation, became subject ofpublic discourse. This incident acted as the pivot around which subsequentevents of exposure took shape, eventually leading to the ‘exposure’ ofthe appellant within the ambit of Rule 135. In light of aforementionedHdevelopments, the appellant was declared as “exposed”. This exposure,

furthermore, led the respondents to declare the appellant asunemployable, having regard to the nature of work of the Organisationof which confidentiality and secrecy are inalienable elements.

13. The declaration of unemployability of the appellant due toexposure as an intelligence officer was made by way of an order ofcompulsory retirement dated 18.12.2009 passed under Rule 135 of the1975 Rules. The appellant took exception to this order before the Tribunalin O.A. No. 50/2010 on the grounds of mala fides and manifestarbitrariness in the actions of the respondents. The appellant’s challengeto this order was upheld by the Tribunal and, vide order dated 16.3.2010,reinstatement of the appellant back in service was directed. The Tribunalhad observed thus:

“15. We had gone through the materials that had been placed bythe parties. After hearing them, we are of the confirmed opinionthat the applicant has been treated with large doze of arbitrarinessand her statutory as well as constitutional rights stand violated.Resort to Rule 135 (1)(a) could not have been supported.Resultantly, we are of the view that the applicant is entitled to thereliefs as might be admissible, namely, reinstatement. We maygive below our reasons for coming to the said conclusion.”

14. After the retirement of the appellant, the provisional pensionof the appellant was fixed under Rule 69 of CCS (Pension) Rules,1972(for short, ‘the Pension Rules’) vide order dated 10.5.2010 with effectfrom the date of retirement till regularization of her period of unauthorizedabsence from 29.8.2008 to 26.11.2009. The provisional pension wasauthorized on the last pay drawn by her on 28.8.2008. Thereafter, theperiod of unauthorized absence was regularized by the High Court videorder dated 21.10.2013 passed in W.P. (C) No. 3704 of 2012, as upheldby this Court in S.L.P. (Civil) C.C. No. 6762 of 2014, thereby entitlingthe appellant to complete pension benefits with effect from 19.12.2009.

15. Be that as it may, the Tribunal held that the order of compulsoryretirement was violative of Articles 14 and 311 of the Constitution andfell short of declaring Rule 135 as unconstitutional. It was content withthe following words:

“20. …..A subsidiary rule, we feel, is insufficient to annihilate theguaranteed rights as are available to an officer, who had put inconsiderable years of service. As we have found that the applicant

624SUPREME COURT REPORTS

Ahas been denied protection of law, which is fundamental rightunder Article 14 of the Constitution, it may not be necessary forus to further deliberate on the constitutionality of Rule 135 (1)(a)of the R&AW (RCS) Rules or declare that the rule invoked isvoid, since it operates to contravene clause (2) of Article 311.”

B16. The aforementioned order of the Tribunal was impugned bythe respondents in W.P. (C) 2735/2010 before the High Court, whereinthe High Court, by an elaborate judgment, reversed the decision of theTribunal vide impugned judgment dated 7.1.2019 and upheld the order ofcompulsory retirement issued under Rule 135. The challenge to theconstitutional validity of Rule 135 of the 1975 Rules was also examinedCand negatived by the High Court. At the outset, we deem it apposite todeal with the issue whether Rule 135 of 1975 Rules could be assailed asunconstitutional.

Submissions re: Constitutionality of Rule 135

D17. It has been contended by the appellant before us that Rule135 is in direct contravention of Article 311 of the Constitution whichdeals with “dismissal, removal or reduction in rank of personsemployed in civil capacities under the Union or the State”, as thestated Rule modifies that right to the detriment of the employee. Inextension of the same argument, it has been contended that failure toEfollow the procedural safeguards prescribed under Article 311 amountsto denial of equal protection of law to the appellant, thereby violatingArticle 14 of the Constitution. Furthermore, it has also been argued thatRule 135 cannot be saved by Article 309 of the Constitution, as Article309 covers separate field of recruitment and conditions of service ofFpublic servants, whereas the legal procedure to be followed during thetermination of service is exclusively covered by Article 311 of theConstitution. Additionally, the stated Rule 135 suffers from the vice ofvagueness.

18. To buttress this submission, the appellant has placed relianceGon the principles expounded by this Court on voidness of enactments inKartar Singh vs. State of Punjab[2] in the following terms:

“130. It is the basic principle of legal jurisprudence that anenactment is void for vagueness if its prohibitions are not clearlydefined. Vague laws offend several important values. It is insisted

H2 (1994) 3 SCC 569

or emphasised that laws should give the person of ordinaryintelligence reasonable opportunity to know what is prohibited,so that he may act accordingly. Vague laws may trap the innocentby not providing fair warning. Such law impermissibly delegatesbasic policy matters to policemen and also judges for resolutionon an ad hoc and subjective basis, with the attendant dangers ofarbitrary and discriminatory application. More so uncertain andundefined words deployed inevitably lead citizens to “steer farwider of the unlawful zone ... than if the boundaries of the forbiddenareas were clearly marked.”

19. In further submissions, the appellant has also grounded herarguments against the constitutionality of the Rule on the basis of theTribunal’s observation that the Rule does not provide for its publicationnor satisfies the cardinal requirement of fair play of prior notice aboutthe existence of such Rules to the employees serving in the Organisation.It is urged that the appellant was not aware of the existence of the ruleand even after procuring the copy of the rule, she was required to keepit as secret.

20. The respondents, on the other hand, have submitted that Article311 of the Constitution has no application to case of compulsory orpremature retirement, as Article 311 is confined to cases involvingdismissal, removal or reduction in rank. Stated in nutshell, therespondents contend that Article 311 is attracted in cases involvingtermination as punishment. Whereas, an order of compulsory retirementunder Rule 135 of the 1975 Rules, per se, does not entail punishment.

21. The respondents have also submitted that the power underRule 135 to retire compulsorily flows from the proviso to Article 309 ofthe Constitution, dealing with the conditions of service; and Article 310,dealing with the doctrine of pleasure. It is further submitted that Rule135, being provision for compulsory retirement, does not involve anypenal consequence as is the case of Fundamental Rule 56(j) (for short“FR 56(j)”). Additionally, reliance is placed on the exposition of this Courtin Union of India vs. Col. J.N. Sinha & Anr.[3 ]in the following terms:

“9. Now coming to the express words of Fundamental Rule 56(j),it says that the appropriate authority has the absolute right to retirea government servant if it is of the opinion that it is in the public

3 1970 (2) SCC 458

Ainterest to do so. The right conferred on the appropriate authorityis an absolute one. That power can be exercised subject to theconditions mentioned in the rule, one of which is that the concernedauthority must be of the opinion that it is in public interest to do so.If that authority bona fide forms that opinion, the correctness ofthat opinion cannot be challenged before courts. It is open to anBaggrieved party to contend that the requisite opinion has not beenformed or the decision is based on collateral grounds or that it isan arbitrary decision…….. One of the conditions of the 1strespondent’s service is that the government can choose to retirehim any time after he completes fifty years if it thinks that it is inCpublic interest to do so. Because of his compulsory retirement hedoes not lose any of the rights acquired by him before retirement.Compulsory retirement involves no civil consequences. Theaforementioned rule 56(j) is not intended for taking any penal actionagainst the government servants. That rule merely embodies oneof the facets of the pleasure doctrine embodied in Article 310 ofDthe Constitution. Various considerations may weigh with theappropriate authority while exercising the power conferred underthe rule. In some cases, the government may feel that particularpost may be more usefully held in public interest by an officermore competent than the one who is holding. It may be that theEofficer who is holding the post is not inefficient but the appropriateauthority may prefer to have more efficient officer. It may furtherbe that in certain key posts public interest may require that aperson of undoubted ability and integrity should be there. There isno denying the fact that in all organizations and more so ingovernment organizations, there is good deal of dead wood, it is inFpublic interest to chop off the same. Fundamental Rule 56(j) holdsthe balance between the rights of the individual government servantand the interests of the public. While minimum service isguaranteed to the government servant, the government is givenpower to energise its machinery and make it more efficient byGcompulsorily retiring those who in its opinion should not be therein public interest.”

Analysis of submissions and conclusions in ImpugnedJudgment

22. In the impugned judgment, the argument against non-publicationof Rule 135 of the 1975 Rules and subsequent inability of the appellantto acquire notice thereof was rejected in the following words:

“61. It is undoubtedly true that there are some authorities (B.K.Srinivasan & Another vs. State of Karnataka AIR 1987 SC 1054being one such), which indicate that norm should be publishedfor it to operate. However, in the present case peculiar situationhas arisen, inasmuch as the organization- R&AW is involved inintelligence work; during arguments, its counsel preferred to referit as wing under the Cabinet Secretariat. Publication of theconditions of service, organizational structure and possibly lettingout the work flow of different officers and employees, wasperceived as compromise of the confidentiality that theorganization fights to maintain at all times. Given thesecompulsions, this court is of the opinion that the wide kind ofpublicity of R&AW’s cadre structure was not in public interest.What is apparent from the record, however is that the applicantwas aware of the rule and did not state in her application to CATthat she was kept in the dark; what is stated in the applicationmade – challenging the rule is that for the first time, she becameaware at the time of her compulsory retirement and that the ruleswere kept under lock and key. The UOI’s response is that“Rules of 1975 are kept in all the offices of R&AW, all overthe country and in different sections of the Head Quarters. Allofficials of R&AW have access to these Rules; however thesame are not available to the public in general as they aresecret.”

62. It seems from the above facts that the petitioner was awareof the Rules, especially Rule 135. She chose to challenge it ina separate writ petition, much after the order of compulsoryretirement. Though estoppel on this score cannot be invoked,the court is of opinion that the lack of publicity to the rulecannot be valid ground, given the character of R&AW andthe compulsions that impelled it not to publish the said rule.”

23. The challenge to the constitutional validity of Rule 135 is furtherbased on an apprehension of abuse due to the usage of vague and open-ended terms like “exposed” and “security”. The High Court, relying

Aupon Union of India & Anr. vs. Tulsiram Patel[4], rejected the attributionof words like ‘vague’ and ‘open-ended’ to the term “security of theState”. The High Court construed the meaning of this term, in referenceto the following dictum in Tulsiram Patel (supra):

“141 …The expression “security of the State” does not meanBsecurity of the entire country or whole State. It includes securityof part of the State. It also cannot be confined to an armedrebellion or revolt. There are various ways in which security ofthe State can be affected. It can be affected by State secrets orinformation relating to defence production or similar matters beingpassed on to other countries, whether inimical or not to our country,Cor by secret links with terrorists. It is difficult to enumerate variousways in which security of the State can be affected. The way inwhich security of the State is affected may be either open orclandestine…..”

24. The Court reiterated that R&AW is an organization engagedDin intelligence activities that concern security interests of the nation andthus, the width of the expression “security of the State” ought to beperceived in light of the specific activities undertaken by the Organisation.In this context, the impugned judgment, in para 65, records thus:

“65. The applicant’s arguments are that the expression “security”Eis vague term and does not have any meaning. It is argued byher that the use of the term without the use of any other expressionrenders it vague and capable of misuse. In this context, the courtwould reiterate that the R&AW is an organization concededlyengaged in intelligence activities that concern security interestsFof the nation. In the absence of any other expression, the naturalmeaning of the expression “security” would be – in the context ofRule 135 if the activities of the employee or the officer are suchthat it is considered reasonably as threat to the security of theorganization or the country, the Rule can apply. In this context,the above observations in Tulsi Ram Patel (supra) are relevant.GThe court had underlined that it is difficult to enumerate the variousways in which the security of the State can be affected. Thecourt had also highlighted that security of the State included thesecurity of part of the State. If one sees these observations in the

context of the fact that members of the R&AW are covered byArticle 33 of the Constitution (as amended by the 50[th] AmendmentAct, 1984), it is obvious to the court that any act, to fall within themischief of Rule 135, should be of such nature as to pose threatto the security of the nation or security of R&AW. Furthermore,the organization comprises of its members and personnel.Therefore, if in given case, any member of R&AW indulges inbehaviour that is likely to prejudice its overall morale or lead todissatisfaction, it may well constitute threat to its security.”25. In order to further assail the constitutionality of Rule 135 ofthe 1975 Rules, challenge was raised by the appellant against the term“exposure” on the ground of vagueness and open-endedness. Whiledealing with this objection, the High Court adopted plain interpretationof the expression and rejected the objection in the following terms:

“66. As regards, the applicant’s objection to the term “exposure”,here again upon plain interpretation, it is evident that if the identityof any member of R&AW, which ought not to be known widely,is so made known or published, and that incident or rationale is acause of threat – real or apprehended, to its security or the securityof its personnel or the security of the state, the rule can beattracted. It is difficult to visualize the various situations in whichexposure of R&AW personnel might lead to security threat.For instance, identity of someone, who is known to head seniorposition, per se, may not pose threat to the security or to R&AW.However, the disclosure of identity through any incident, of itsofficers who are involved in sensitive functions or operations, inany manner whatsoever, can lead to compromise of the securityof R&AW or the state. One of the ways this can happen is that ifthe truth of such an individual is known, he or she can be open toscrutiny by forces hostile and on occasions even subjected to threatswhich might lead to disclosures- voluntary or otherwise- withregard to the secrets of the organization which can be threat tothe security of the country. Therefore, the use of the expressions“security” and “exposure”, are not vague or arbitrary but, havingregard to the context and the underlying objectives of the R&AW,mean security of the State or security of R&AW and exposure ofthe identity of the concerned individual.”

ADetermination of the challenge to constitutionality

26. Article 13 of the Constitution would get attracted if any law isinconsistent with or in derogation of the fundamental rights. In that case,such law would be void to the extent of inconsistency. By virtue ofclause (3), the word “law”, used in Article 13, also encompasses aBstatutory “rule” and thus the constitutionality of Rule 135, as being violativeof Article 14 read with Article 311, could legitimately be tested on theanvil of standard tenets for determining the constitutionality of statutes.

27. Article 311 of the Constitution is manifestation of the essentialprinciples of natural justice in matters of dismissal, removal or reductionCin rank of public servants and imposes duty upon the Government toensure that any such decision against the public servant is preceded byan inquiry, coupled with an opportunity of being heard and making arepresentation against such decision. The abovementioned principles ofnatural justice are also generally implicit under Article 14, as denial ofthe same to the public servant in question would taint the decision withDthe vice of arbitrariness and deprive the public servant of equal protectionof the law. Article 311 reads thus:

“Article 311 - Dismissal, removal or reduction in rank ofpersons employed in civil capacities under the Union or aState.-(1) No person who is member of civil service of theEUnion or an all India service or civil service of State or holdsa civil post under the Union or State shall be dismissed or removedby an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed orreduced in rank except after an inquiry in which he has beenFinformed of the charges against him and given reasonableopportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to imposeupon him any such penalty, such penalty may be imposed on thebasis of the evidence adduced during such inquiry and it shall notGbe necessary to give such person any opportunity of makingrepresentation on the penalty proposed:

Provided further that this clause shall not apply-

(a) where person is dismissed or removed or reduced in rankon the ground of conduct which has led to his conviction on aHcriminal charge; or

(b) where the authority empowered to dismiss or remove aperson or to reduce him in rank is satisfied that for some reason,to be recorded by that authority in writing, it is not reasonablypracticable to hold such inquiry; or

(c) where the President or the Governor, as the case may be,is satisfied that in the interest of the security of the State it isnot expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, question ariseswhether it is reasonably practicable to hold such inquiry as isreferred to in clause (2), the decision thereon of the authorityempowered to dismiss or remove such person or to reduce him inrank shall be final.”

28. For further analysis, it is also apposite to advert to the text ofRule 135 of the 1975 Rules, which reads as follows:

“135. Terminal benefits on compulsory retirement:

(1) Any officer of the Organization may be compulsorily retiredon any of the following grounds namely

(a) his being exposed as an intelligence officer or his becomingunemployable in the Organization, for reasons of security, or

(b) disability or injuries received by him in the performance ofhis duties.

(2) On the retirement of an officer under sub-rule (1), he may begranted

(i) pension based on the emoluments which he would havedrawn had he remained in service until the normal age ofsuperannuation and earned promotion, other than promotionby selection, due to him under these rules or the maximumemoluments he would have drawn in the grade in which hewas permanent or regularly appointed at the time of hisretirement had he continued to serve in that grade till the ageof superannuation, provided that in no case such pension shallbe less than twelve hundred and seventy-five rupees.

(ii) Family pension and death-cum-retirement gratuity admissibleunder the rules for the time being in force.

A(3) In addition to the pension, death-cum-retirement gratuity andfamily pension admissible under sub-Rule (2), the person concernedmay also be paid resettlement grant not exceeding twelve timesthe monthly pay drawn by him immediately before his compulsoryretirement.

B(4) The Head of Organization may at his discretion permit theofficer concerned to exchange the entire pension due to him undersub-rule (2) for lump-sum which shall be equal to the commutedvalue of that amount admissible to person retiring on attainingthe normal age of superannuation.”

C29. perusal of the text of Article 311 reveals that this Articlecomes into operation when public servant is being subjected to dismissal,removal or reduction in the rank. The usage of words “dismissal”,“removal” or “reduction in rank” clearly points towards an intent to coversituations where public servant is being subjected to penalconsequence. Thus, until and unless the action taken against publicDservant is in the nature of punishment, the need for conducting an inquirycoupled with the grant of an opportunity of being heard, as envisagedunder Article 311, does not arise at all. Succinctly put, the actioncontemplated against the public servant must assume the character of‘punishment’ in order to attract the safeguards under Article 311. TheEpolicy, object and scope of Article 311 has been clarified by this Court inState of Bombay vs. Saubhagchand M. Doshi[5], wherein the Courtobserved thus:“10. Now, the policy underlying Article 311(2) is that when it isproposed to take action against servant by way of punishmentFand that will entail forfeiture of benefits already earned by him,he should be heard and given an opportunity to show cause againstthe order. But that consideration can have no application wherethe order is not one of punishment and results in no loss of benefitsalready accrued, and in such case, there is no reason why theterms of employment and the rules of service should not be givenGeffect to. Thus, the real criterion for deciding whether an orderterminating the services of servant is one of dismissal or removalis to ascertain whether it involves any loss of benefits previouslyearned. Applying this test, an order under Rule 165-A cannot be

held to be one of dismissal or removal, as it does not entailforfeiture of the proportionate pension due for past services.”

30. The question is: whether the action taken under Rule 135 ofthe 1975 Rules is in the nature of penalty or dismissal clothed ascompulsory retirement so as to attract the safeguards under Article 311of the Constitution? The real test for this examination is to see whetherthe order of compulsory retirement is occasioned by the concern ofunsuitability or as punishment for misconduct. In the present case, theappellant has been subjected to the order of compulsory retirementsimpliciter, and no action in the nature of dismissal, removal or reductionin rank, as envisaged under Article 311, has been taken against theappellant. In Saubhagchand M. Doshi (supra),the distinction betweenan order of dismissal and that of compulsory retirement was expoundedin the following terms:

“9. …..Under the rules, an order of dismissal is punishment laidon Government servant, when it is found that he has been guiltyof misconduct or inefficiency or the like, and it is penal in character,because it involves loss of pension which under the rules wouldhave accrued in respect of the service already put in. An order ofremoval also stands on the same footing as an order of dismissal,and involves the same consequences, the only difference betweenthem being that while servant who is dismissed is not eligible forre-appointment, one who is removed is. An order of retirementdiffers both from an order of dismissal and an order ofremoval, in that it is not form of punishment prescribed bythe rules, and involves no penal consequences, inasmuch asthe person retired is entitled to pension proportionate to theperiod of service standing to his credit.”

31. This Court, in State of U.P. vs. Sri Shyam Lal Sharma[6], alsolaid down various propositions regarding the implication and effect ofthe orders of compulsory retirement in the following terms:

“13. The following propositions can be extracted from thesedecisions. First, in ascertaining whether the order of compulsoryretirement is one of punishment it has to be ascertained whetherin the order of compulsory retirement there was any element ofcharge or stigma or imputation or any implication of misbehaviour

6 (1971) 2 SCC 514

Aor incapacity against the officer concerned. Secondly, the orderfor compulsory retirement will be indicative of punishment orpenalty if the order will involve loss of benefits already earned.Thirdly, an order for compulsory retirement on the completion of25 years of service or an order of compulsory retirement made inthe public interest to dispense with further service will not amountBto an order for dismissal or removal as there is no element ofpunishment. Fourthly, an order of compulsory retirement will notbe held to be an order in the nature of punishment or penalty onthe ground that there is possibility of loss of future prospects,namely that the officer will not get his pay till he attains the age ofCsuperannuation, or will not get an enhanced pension for not beingallowed to remain few years in service and being compulsorilyretired.”32. In the light of the settled legal position governing compulsoryretirement referred to above, let us embark upon the width of Rule 135Din order to address the challenge against it under Article 311 read withArticle 14. The fundamental source of compulsorily retiring an employeeis derived from the “doctrine of pleasure”, as accepted in India, whichsprings from Article 310 of the Constitution. Rule 135 merely sets outcertain grounds to act as quintessence for taking such decision and thesource of power vests in Article 309 read with Article 310 of theEConstitution. Rule 135 has been carved out as special provision and ispremised on the doctrine of necessity. This standalone provision forms asmall subset of the genus of Article 309 and deals strictly with cases of“exposure” of “intelligence officers” who become unemployable in theOrganisation for reasons of security. Sub-rule (1) of Rule 135 indicatesFthat an order of compulsory retirement could be passed only on theexhaustive grounds specified therein, that is – exposure as an intelligenceofficer or his becoming unemployable in the Organisation due to reasonsof security or disability/injuries received by an officer in the performanceof his duties. Thus understood, the stipulation is objective, well-articulated

and intelligible. Moreover, the stated reason(s) make it amply clear thatGRule 135 covers situations, the existence of which would have an adverseimpact, direct or indirect, on the integrity of the Organisation if the officeris exposed as an intelligence officer and becomes unemployable in theOrganisation for reasons of security. priori, it would neither be caseof misconduct or inefficiency or the like so as to attract penalHconsequences. It is in no way reflection on the employee regarding his

conduct as such but solely on account of public interests in reference tothe nature of sensitivity of operations undertaken by the Organisation.Therefore, the order under Rule 135 falls in line with the first propositionexpounded in Shyam Lal (supra) and does not entail any charge, stigmaor imputation against the appellant.

33. To recapitulate, Rule 135 envisages certain chronology andgets triggered when an intelligence officer stands exposed oris renderedunemployable for reasons of (individual, organisational or national)security. The expressions “exposure”, “unemployability” and “security”constitute the key ingredients of this Rule and are to be understood in achronological and natural order to discern their true essence and effect.

34. Further, it is pertinent to note that the grounds referred to inRule 135 nowhere contemplate it as consequence of any fault orwrongful action on the part of the officer and unlike penal actions, do notstigmatise the outgoing officer or involve loss of benefits already earnedby him and there is no element of punishment. Sub-rules (2), (3) and (4)of Rule 135 reinforce this view as the same provide for appropriatebenefits such as pension, gratuity, lump sum amount etc. for the publicservant who has been subjected to compulsory retirement. Thus, theemployee is not faced with any loss of benefits already earned. We sayso because the examination of the characteristics of such rule is notfocussed around the motive or underlying intent behind its enactment,rather, it lies in the consequence and effect of the operation of such arule on the outgoing employee. The rule does not result into deprivationof the retired employee of any benefit whatsoever in lieu of such orderof compulsory retirement and thus, attracts no stigma or any civilconsequence to the retired employee for his/her future. The invocationof this Rule, therefore, falls in sync with the second proposition in ShyamLal (supra) which looks down upon any loss of profits in non-stigmaticorder of compulsory retirement. Succinctly put, compulsory retirementwithout anything more does not attract Article 311(2). We may usefullyrefer to Dalip Singh vs. State of Punjab[7] and Union of India andOthers vs. Dulal Dutt[8] to bring home the stated position of law.35. To concretize further, we now advert to the third limb of thedictum in Shyam Lal (supra) that necessitates the absence of any elementof punishment in just order of compulsory retirement. In order to

7 AIR 1960 SC 1305

8 (1993) 2 SCC 179

Aundertake this examination, we deem it crucial to expound the true schemeand effect of rules governing the employees of the Organisation by makinga brief reference to the decision in Satyavir Singh and Others vs.Union of India and Others[9], wherein this Court upheld the dismissal oftwo employees of the Organisation on the grounds of misconduct,indiscipline, intimidation and insubordination under Rule 19 of the CentralBCivil Services (Classification, Control and Appeal) Rules, 1965 (for short“CCS (CCA) Rules”),without holding any inquiry under Article 311 byvirtue of the proviso attached to the Article. Thus, it becomes amplyclear that, at par with other departments, in case of dismissal of anemployee of this Organisation also, the CCS (CCA) Rules, coupled withCthe procedure under Article 311, could be and are expected to be ordinarilyresorted to. Therefore, Rule 135 of the 1975 Rules has been enacted asa special provision dealing strictly with the non-penal domain ofcompulsory retirement and that too against intelligence officer underspecific circumstances referred to in clauses (a) and (b) of sub-Rule (1)thereof. Whereas, the cases of dismissal/removal/reduction in rank orDany other penal action of termination of service involving stigmatisationof the employee is separately covered by the CCS (CCA) Rules, asdiscussed above.

36. priori, the irresistible conclusion is that the effect of anyaction taken under Rule 135 does not entail any penal consequence forEthe employee and, therefore, it cannot be put at the same pedestal as anaction of dismissal or removal, and no inquiry or opportunity of hearingas envisaged under Article 311 is required while taking an action underthis Rule. Equally, it holds merit to note that mere loss of some futurecareer prospects per se is no ground for invalidating an order ofFcompulsory retirement as it may be in given case an inevitableconsequence of any such order. What needs to be delineated to attractthe vice of invalidity to statutory order is illegality, at least of minimumstandard to trigger the conscience of the Court. The exposition in ShyamLal (supra) and Saubhagchand M. Doshi (supra) would squarely apply.G37. To put it differently, the action under Rule 135 is not governedby Article 311 nor it offends the same - as these two provisions operatein separate spheres and thus an action taken under the impugned Rule(Rule 135 of the 1975 Rules) need not be preceded by the safeguardsprovided under Article 311 of the Constitution as such. Since the action

H9 (1985) 4 SCC 252

under Rule 135 is exclusive and is invoked in the specified situations inpublic interest in reference to the Organization and at the highest levelby the head of the Government, the question of violation of Article 14 onaccount of the denial of equal protection of law does not arise.

38. Assailing the constitutionality of this Rule, the appellant hasalso contended that the non-application of this Rule to deputationists isdiscriminatory and falls foul of Article 14. The impugned judgment rejectedthis submission and observed thus:

“67. ….A deputationist’s services stand on footing unlike that ofthe official in department, who is bound by its terms andconditions. In case deputationist – hypothetically- is “exposed”or “exposes” himself and that constitutes security threat, surelythe Central Government can resort to other mechanisms: includingcompulsory retirement (provided the employee fulfils the conditionsunder Rule 56 (j); it may also resort- if the employee is culpablefor the “incident” and the facts so warrant, invocation of Article311 (2) (c) and summary dismissal or penalty of similar nature.The possibility of other officers not being governed by the rule, orthat in other cases it was not invoked, therefore, cannot be aground to hold it arbitrary or invalid.”

39. deputationist is an employee who has been assigned toanother department from his/her parent department. The law regardingemployees on deputation is well settled. As regards the matter ofdisciplinary control, this Court, in State of U.P. & Ors. vs. Ram NareshLal[10] has observed that deputationist continues to be governed by therules of his/her parent department and is deemed to be under thedisciplinary control of his/her parent department unless absorbedpermanently in the transferee department. In Kunal Nanda vs. Unionof India& Anr.[11], it was further observed that the basic principleunderlying deputation is that the person concerned can always and atany time be repatriated back to his parent department. By sending backthe person to his parent department, any adverse effect on theOrganisation (R&AW) including of reasons of security would be averted.Therefore, deputationist stands on an altogether different footing thana direct recruit of the Organisation/Department who is exposed as anintelligence officer or his/her becoming unemployable in the Organisation

10 (1970) 3 SCC 17311 (2000) 5 SCC 362

Afor reasons of security. deputationist can be repatriated back to his/her parent department and in cases of misconduct, necessary action canalso be initiated against him/her as per the conditions of service governinghis/her parent department. In that sense, deputationist and directrecruit are not stricto sensusimilarly placed and thus the plea ofdifferential treatment meted out to them is unavailable. It would notBentail discrimination nor be violative of Article 14. Accordingly, we mustnegate the challenge to constitutional validity of Rule 135.

40. We also deem it necessary, at this juncture, to note that themere fact of non-prescription of inquiry under Rule 135 of the 1975Rules, before making the order of compulsory retirement, does not goCagainst the constitutionality of the Rule. Additionally, the rule does notprohibit any inquiry and is in general line with the orders of compulsoryretirement wherein the right of outgoing employee to participate in theprocess of formation of such decision is not envisaged in law, as theunderlying basis of such action is the larger public interest and securityDof the Organisation; and not any culpable conduct of the employee.Moreover, Rule 135 incorporates language that is self-guiding in nature.The usage of words “exposure” and “unemployability for reasons ofsecurity” are not insignificant, rather, they act as quintessential stimulantsfor the competent authority in passing such order. The mandatorydetermination of what amounts to an exposure or what renders anEemployee unemployable due to reasons of security under Rule 135, isboth pre-condition and safeguard, and incorporates within its fold thesubjective satisfaction of the competent authority in that regard. In orderto reach its own satisfaction, the authority is free to seek informationfrom its own sources. Thus, in cases when the ingredients of Rule 135Fstand satisfied in light of the prevalent circumstances, the need for givingopportunity to the officer concerned by way of an inquiry is done awaywith because the underlying purpose of such inquiry is not the satisfactionof the principles of natural justice or of the concerned officer, rather, it isto enable the competent authority of the Organisation to satisfy itself in

subjective manner as regards the fitness of the case to invoke the rule.GTherefore, the procedure underlying Rule 135 cannot be shackled bythe rigidity of the principles of natural justice in larger public interest inreference to the structure of the Organisation in question, being specialRule dealing with specified cases.

41. Reverting to the challenge in reference to Article 309, sufficeHit to observe that the 1975 Rules fall under the “conditions of service”

governing the appellant and have been framed under the proviso to Article309 of the Constitution. The phrase “conditions of service” is not phraseof mathematical precision and is to be understood with its wide import.The natural, logical and grammatical meaning of the phrase “conditionsof service” would encompass wide range of conditions relating to salary,time period of payment, pay scales, dearness allowance, suspension andeven termination of service. The appellant’s argument that since Article311 covers the field of dismissal, removal and reduction in rank of anemployee, it automatically implies the exclusion of these matters fromArticle 309, does not commend us.

42. conjoint reading of Articles 309 and 311 reveals that Article311 is confined to the cases wherein an inquiry has been commencedagainst an employee and an action of penal nature is sought to be taken.Whereas, Article 309 covers the broad spectrum of conditions of serviceand holds wider ground as compared to Article 311. That would alsoinclude conditions of service beyond mere dismissal, removal or reductionin rank. It holds merit to state that this wide ground contemplated underArticle 309 also takes in its sweep the conditions regarding terminationof service including compulsory retirement. In Pradyat Kumar Bosevs. The Hon’ble The Chief Justice of Calcutta High Court[12], thisCourt touched upon the ambit and scope of Article 309 of the Constitutionand expounded that the expression “conditions of service” takes withinits sweep the cases of dismissal or removal from service.

43. We further note that generally it is correct to say that the rulesgoverning conditions of service, framed under Article 309, are subject toother provisions of the Constitution, including Article 311. The openingwords of Article 309 - “Subject to the provisions of this Constitution” -point towards the same analogy. However, this subjection clause shallnot operate upon the rules governing compulsory retirement. For, thelegal concept of compulsory retirement, as discussed above, is non-penal measure of the government and steers clear from the operation ofArticle 311, unless it is case of removal or dismissal clothed ascompulsory retirement. Had there been rule providing for removal,dismissal or reduction in rank, it would have been controlled by thesafeguards under Article 311. It has also been observed in State of U.P.&Ors. vs. Babu Ram Upadhya[13 ]that the validity of rule shall be hit by

12 AIR 1956 SC 285

13 AIR 1961 SC 751

AArticle 311 only if it seeks to affect the protection offered by Article 311,and not otherwise as in the present case.

44. Let us now address the next ground of challenge against Rule135 of the 1975 Rules, that is - the expressions “security” and “exposure”used in Rule 135 are of wide import and their usage attracts the vice ofBvagueness and arbitrariness to the Rule. The appellant has relied uponthe prior-quoted extract of Kartar Singh (supra) to set up this challengeon the ground of vagueness.

45. It is settled principle of interpretation of statutes that thewords used in statute are to be understood in the light of that particularCstatute and not in isolation thereto. The expression used in Rule 135 is“security”, as distinguished from the more commonly used expression“security of the State” used in Article 311. This deliberate widening ofthe expression by the enacting body points towards the inclusive intentbehind the expression. The word “security” emanates from the word“secure” which, as per the Law Lexicon, means to put something beyondDhazard. It is understood that the exposure of an intelligence officer couldbe hazardous not only for the Organisation but also for the officerconcerned and the expression “security”, therefore, is to be understoodas securing the Organisational and individual interests beyond hazardand squarely covers the security of the Organisation as well as theEsecurity of the State. Similarly, the expression “exposure” refers to therevelation of the identity of an intelligence officer as such to the public,in manner that renders such officer unemployable for the Organisationfor reasons of security.

46. It is noteworthy that in Indian constitutional jurisprudence, aFduly enacted law cannot be struck down on the mere ground of vaguenessunless such vagueness transcends in the realm of arbitrariness. We mayusefully refer to the exposition of this court in Municipal Committee,Amritsar & Ors. vs. State of Punjab &Ors.[14] However, challenge toRule 135 on the ground of vagueness, could only be sustained if the Ruledoes not provide person of ordinary intelligence with reasonableGopportunity to know the scope of the sphere in which the Rule wouldoperate. In the present case, the test of reasonable man is to be appliedfrom the point of view of member working in the Organisation as anintelligence officer. The members working in the Organisation, more

H14 (1969) 1 SCC 475

particularly Class-I Intelligence Officer, ought to know the scope,specific context and import of the expressions – “exposed as anintelligence officer”, “becoming unemployable in the Organisation” or“reason of security”, as the case may be. member working in theOrganisation would certainly be aware of the transnational repercussionsemerging from the exposure of the identity of an intelligence officer.Thus, there is no inherent vagueness or arbitrariness in the usage ofabove expressions so as to attach the vice of unconstitutionality to theRule. However, whether or not an executive act of exercising the powerunder the Rule reeks of arbitrariness is matter of separate examination,to be conducted on case to case basis and does not call for generaldeclaration by the Court. To conclude, the challenge on this ground isrejected and the impugned judgment is, therefore, held to have answeredthis challenge correctly. However, despite upholding the order of theHigh Court as regards the constitutionality of Rule 135, we are of theview that the meaning placed by the High Court on the expression“security”, in the impugned judgment, is of wide import. As regardswhat would constitute threat to security, so as to invoke Rule 135, theimpugned judgment, in para 65, notes thus:

“….. Therefore, if in given case, any member of R&AWindulges in behaviour that is likely to prejudice its overall moraleor lead to dissatisfaction, it may well constitute threat to itssecurity.”

47. We hold that this observation does not guide us towards thetrue scope of the usage of the expression “reasons of security” or whatwould constitute security threat and opens the contours of Rule 135 touncontemplated areas. Thus, this observation shall stand effaced in lightof the interpretation of Rule 135 by us hitherto and shall not be operativefor any precedentiary purpose, or otherwise.

Legality of the order of compulsory retirement

48. Having answered the challenge to the constitutional validityof Rule 135 in negative and settling the question of existence of powerto retire compulsorily, we embark upon the determination of the nextissue, whether the power of compulsory retirement exercised by therespondents in the fact situation of the present case is just and legal.According to the appellant, the respondents have acted in mala fidemanner and the invocation of Rule 135 is an act of victimisation of the

ABC

Aappellant due to her refusal to accede to the illegitimate demands of hersuperiors. The appellant has also contended that the power to retirecompulsorily could be exercised in accordance with the FR 56(j) only.

49. The contentions of the appellant find an answer in the impugnedjudgment in the following terms: -B

“78. Therefore, as long as public employee’s services aredispensed with prematurely for reasons which are germane tothe concerned body’s service rules and terms and conditions, andare not mala fide or do not suffer from any grave proceduralimpropriety, the courts would not interfere with the decision.CConsidering the circumstances of this case from this perspective,it is evident that at the higher levels of the UOI i.e. at the stage ofCabinet Secretary, the PMO and the Ministry of Law and Justice,various options were explored. It is not as if the option to invokeRule 135 was the only choice pursued at the highest echelons ofthe government. The notings disclose that the Prime Minister hadDdesired to consider the impact of the decision from all perspectives.Evidently, the concern was not only with respect to the impactupon the employee/officer i.e. the applicant but also upon theservice as whole. Significantly, the Prime Minister also desired– after the adverse remarks were noticed, in the Shashi PrabhaECommittee’s recommendations, that prompt triggering of complaintmechanisms should be ensured at all government levels. One ofthe notings of the Cabinet Secretary suggested the option ofpursuing disciplinary proceedings under Rule 9 of the Central CivilServices (Pension) Rules, 1972 against the retired Secretary levelR&AW Head, Mr. Tripathi. Given all these facts and materialsFon record, it cannot be held that the government acted in malafide manner, in choosing what it considered to be inevitable optioni.e. invoking Rule 135.”

On mala fide exercise of power

G50. Reliance has also been placed upon Baikuntha Nath Das&Anr. vs. Chief District Medical Officer, Baripada & Anr.[15 ]in orderto support the claim of mala fides by asserting that decision ofcompulsory retirement has to be made under detailed formal procedureand in light of the past performance records.

51. Indubitably, in society governed by Rule of Law, the presenceof mala fides or arbitrariness in the system of governance strikes at thefoundational values of the social order. Every public functionary, includingthe three organs of government, are bound to discharge their functionsin bona fide, unvitiated and reasonable manner. mala fide exerciseof power is essentially fraud on the power. The law regarding malafide exercise of power, running across catena of cases, is well settled.For an exercise of power to steer away from the taint of mala fides,such power ought to be exercised within the contours of the statute/lawbestowing such power. Any exercise which exceeds the limits laid downby law; or is driven by factors extraneous or irrelevant to such exercise;or guided by malicious intent or personal animosity; or reeks ofarbitrariness must fall foul in the eyes of law. This legal position isconsistently expounded by this Court in S. Partap Singh vs. State ofPunjab[16], Express Newspapers Pvt. Ltd. & Ors. vs. Union of India& Ors.[17], J.D. Srivastava vs. State of M.P. and Others[18 ]and JaichandLal Sethia vs. State of West Bengal[19]. The fact situation in the presentcase does not attract any of the above stated factors.

52. Notably, the appellant has not impleaded the concerned personsagainst whom allegations of mala fides are made, as party respondent.Hence, those allegations cannot be taken forward. We may usefullyadvert to the exposition in Purushottam Kumar Jha vs. State ofJharkhand & Ors.[20 ]which records the above-stated position of law,while addressing the allegations of mala fide exercise of power, in thefollowing words:-

“22. As to mala fide exercise of power, the High Court held thatneither sufficient particulars were placed on record nor the officerswere joined as party respondents so as to enable them to makethe position clear by filing counter affidavit. In the absence ofspecific materials and in the absence of officers, the Court wasright in not upholding the contention that the action was mala fide.”

Resultantly, the ground of mala fide action in fact does not survivefor consideration.

16 AIR 1964 SC 7217 (1986) 1 SCC 133

18 (1984) 2 SCC 8

19 AIR 1967 SC 483

20 (2006) 9 SCC 458

AOn non-application of mind

53. In order to analyse the challenge of non-application of mind,we deem it worthwhile to trace the timeline of relevant events tounderstand the chain of proceedings.

16.12.2009 PMO communication conveying approval of the Prime Minister to the recommendation of compulsory retirement. 18.12.2009 Order of compulsory retirement issued by Cabinet Secretariat in the name of the President of India.

* - Incidents of Exposure ** - Procedural steps

54. Given the factual matrix of the present case, we deem it properto carve out some important events from the aforementioned chain. Theaforementioned sequence of events reveals the chain of internalCcommunications in the aftermath of which the order dated 18.12.2009was eventually passed. The secret note sent by Secretary (R) to P.M.O.,dated 11.5.2009, opinion of the then Solicitor General of India by letterdated 21.7.2009, opinion of the Department of Legal Affairs, UnionMinistry of Law and Justice and the PMO note in which the invocationof Rule 135 was determined as the only viable option, constitute togetherDa complete chain of inquiry revealing due application of mind by therespondents into the question of compulsory retirement. It is settled lawthat the scope of judicial review is very limited in cases of compulsoryretirement and is permissible on the limited grounds such as non-application of mind or mala fides. Regard can be had to Pyare MohanELal vs. State of Jharkhand and Others[21]. The above-quoted set ofevents are so eloquent that it leaves us with no other conclusion but tohold that the action of compulsory retirement was the just option. Assumingthat some other option was also possible, it would not follow that thedecision of the competent authority to compulsorily retire the appellantwas driven by extraneous, malicious, perverse, unreasonable or arbitraryFconsiderations. The pre-requisite of due application of mind seems to befulfilled as the decision has been reached in the aftermath of series ofdiscussions, exchanges and consultations between the Organisation andthe PMO over the course of 15 months from 22.9.2008 to 18.12.2009.

55. Moreover, the preliminary inquiry conducted against theGappellant, commencing 8.8.2008, forms crucial building block in thechain of events and calls for our attention. This inquiry was ordered inthe aftermath of series of complaints made against the appellant bythe fellow officers. Such complaints pertained to misbehaviour,

H21 (2010) 10 SCC 693

unauthorised communication, vulgar SMSes, media contact etc. noticeof this inquiry was communicated to the appellant on 19.8.2008 (the dayof the PMO incident), seeking her participation in the inquiry. However,the appellant refused to participate, thereby leading to an ex-parte reportof the inquiry, which concluded that most of the allegations against theappellant stood substantiated. This report was submitted to Secretary(R) on 11.9.2008 and the first proposal for invocation of Rule 135 againstthe appellant was made on 22.9.2008 by Secretary (R) i.e. 11 (eleven)days after the receipt of the report. The continuity of the abovetransactions be lies the allegation of non-application of mind, as theproposal seems to have been made strictly in light of the materials onrecord.56. Thus, in the present case, the appellant has not been able toestablish the factum of non-application of mind in material terms andespecially because the final decision has been taken at the highest levelby the head of the Government in the aftermath of unfurling of successiveevents of exposure of appellant to the public and media in particular. Inother words, even if we were to accept the argument of personal animositybetween the appellant and the then Secretary (R), Shri Ashok Chaturvedi,it does not help the appellant’s case as the final authority on the decisionof compulsory retirement was vested in the PMO and there is no tittle ofevidence regarding exercise of influence by the then Secretary (R) inthe PMO. In an allegation of this nature, de-facto prejudice needs to beproved by evidence and this requirement of law fails to garner supportfrom the factual position emanating in this case.

57. Having said thus, we deem it essential to emphasize upon theapproach of the court in scrutinising the decisions taken at the highestlevels and constitutional challenge thereto. Indeed, there can be no ipsofacto presumption of validity in favour of actions taken at higher pedestalsof the dispensation. However, constitutional offices, like that of the PMO,are entrusted with constitutional trust by the people of India throughthe holy Constitution. Such constitutional trust absorbs within itself aninherent expectation that actions emerging out of such functionaries aredriven by bona fide considerations of public interest and constitutionalpropriety. Constitutional trust, as concept of constitutional application,has been duly accepted by this Court in string of judgments. In ManojNarula v. Union of India[22], five-Judge bench of this Court observedthus: -

22 (2014) 9 SCC 1

[2020] 10 S.C.R.

A“92. Centuries back what Edmund Burke had said needs to berecapitulated:

“All persons possessing position of power ought to be stronglyand awfully impressed with an idea that they act in trust andare to account for their conduct in that trust to the one greatBMaster, Author and Founder of Society.”

93. This Court, in Delhi Laws Act, 1912, In re, AIR 1951 SC332, opined that the doctrine of constitutional trust is applicable toour Constitution since it lays the foundation of representativedemocracy. The Court further ruled that accordingly, theCLegislature cannot be permitted to abdicate its primary duty, viz.to determine what the law shall be. Though it was stated in thecontext of exercise of legislative power, yet the same hassignification in the present context, for in representativedemocracy, the doctrine of constitutional trust has to beenvisaged in every high constitutional functionary.”D

(emphasis supplied)

The constitutional faith invested in such functionaries has alsobeen reverberated in Govt. Of NCT of Delhi v. Union of India[23] andKihota Hollohon v. Zachilhu and Others[24] wherein this Court, inEreference to the constitutional trust imposed in the office of Speaker/Chairmen of the Houses of Parliament while exercising powers underthe Tenth schedule, observed thus:

“J] That contention that the investiture of adjudicatory functionsin the Speakers/Chairmen would by itself vitiate the provision onFthe ground of likelihood of political bias is unsound and is rejected.The Speakers/Chairmen hold pivotal position in the scheme ofparliamentary democracy and are guardians of the rights andprivileges of the House. They are expected to and do take farreaching decisions in the functioning of parliamentary democracy.Vestiture of power to adjudicate questions under the TenthGSchedule in such constitutional functionary should not beconsidered exceptionable.”

23 2019 (3) SCALE 107H24 (1992) 1 SCC 309

On Fundamental Rule 56(j) and Rule 9 of the Pension Rules

58. The next examination relates to the allegation of failure toproceed in accordance with FR 56(j). In normal parlance, compulsoryretirement of public servant is governed by the procedure laid down inFR 56(j) as Fundamental Rule - 2 provides that “the Fundamental Rulesapply to all Government servants whose pay is debitable to Civil Estimatesand to any other class of Government servants to which the Presidentmay, by general or special order, declare them to be applicable”. Thus,FR 56(j) is rule of general application. To analyse this contention, it isimperative to reproduce the relevant portion of this rule, which readsthus:

“F.R. 56(j). Notwithstanding anything contained in this Rule, theappropriate authority shall, if it is of the opinion that it is in thepublic interest to do so, have the absolute right to retire anyGovernment servant after he has attained the age of fifty-fiveyears by giving him notice of not less than three months inwriting….”

59. It is clear that FR 56(j) incorporates twin elements- first, theabsolute right of the Government to retire an employee and second, thespecific circumstance in which such right could be exercised i.e., thenecessity of public interest. The rule also provides for prior notice of atleast three months to the outgoing employee. Rule 135 of the 1975 Rules,on the other hand, deviates from this dispensation. It is special provisiondealing with clan of intelligence officers in the Organisation in question.The fundamental distinction between FR 56(j) and Rule 135 lies in theusage of expressions “public interest” and “security” respectively. Theconcern of security finds special place in an exclusive provision thatgets triggered for reasons of security. On the other hand, FR 56(j) is inreference to public interest generally. Framed in 1975, during the existenceof FR 56(j), Rule 135 was carved out as special provision. It is pertinentto note that Rule 135 recognises the presence of vested and inherentright in the government to compulsorily retire an employee and explicitlyspecifies certain exclusive grounds for taking such action. Therefore,Rule 135 presents deliberate deviation from FR 56(j) and covers specialcircumstances of ‘exposure’ or ‘unemployability for reasons of security’as pre-requisites for its invocation. Indubitably, Rule 135 is not exhaustiveof all circumstances and matters of compulsory retirement of intelligenceofficer of the Organisation. For, it holds no operatibility beyond the

Aspecified situations therein. All other situations (not covered by Rule135) warranting compulsory retirement would, therefore, continue to begoverned by FR 56(j) in reference to public interest. Thus, Rule 135 is aspecial provision and operates independent of the grounds and procedurelaid down in FR 56(j). In other words, once the ingredients of Rule 135are satisfied, then, within the meaning of Article 309, Rule 135 will getBactivated as ‘condition of service’ of the intelligence officer of theOrganisation and FR 56(j), being general provision, could be invokedon the grounds transcending beyond the stipulation in Rule 135 in publicinterest. Thus, the general provision such as FR 56(j) must give way tothe special provision (Rule 135) as predicated in S.C. Jain vs. State ofCHaryana and Another[25].60. Taking cue from the procedural standards prescribed in FR56(j), the appellant would urge that non-observance of the principles ofnatural justice in invoking Rule 135 had rendered the final order dated18.12.2009 arbitrary. Though we have already stated in clear terms thatDRule 135 of the 1975 Rules is not bound by the rigidity of the principlesof natural justice, we deem it necessary to add that natural justice is notan all-pervasive pre-condition in all the executive decisions and its extentof applicability varies in myriad set of situations. This Court, in NewPrakash Transport Co. Limited vs. New Suwarna Transport Co.Limited[26], succinctly observed against the absoluteness of the rules ofEnatural justice and stated that such rules vary with varying statutoryrules governing the facts of the case. Speaking on the exclusion of suchprinciples in the light of specific statutory rules, this Court, in Union ofIndia vs. Col. J.N. Sinha and Another[27], quoted A.K. Kraipak &Ors. vs. Union of India& Ors.[28 ]with approval, and observed thus: -F

“8. ...It is true that if statutory provision can be read consistentlywith the principles of natural justice, the courts should do so becauseit must be presumed that the legislatures and the statutoryauthorities intend to act in accordance with the principles of naturaljustice. But if on the other hand statutory provision eitherGspecifically or by necessary implication excludes the applicationof any or all the principles of natural justice then the court cannot

25 (1985) 4 SCC 64526 AIR 1957 SC 232

27 (1970) 2 SCC 458H28 (1969) 2 SCC262

ignore the mandate of the legislature or the statutory authorityand read into the concerned provision the principles of naturaljustice. Whether the exercise of power conferred should bemade in accordance with any of the principles of natural justiceor not depends upon the express words of the provision conferringthe power, the nature of the power conferred, the purpose forwhich it is conferred and the effect of the exercise of that power.”

priori, mechanical extension of the principles of natural justicewould be against the proprieties of justice. This has been restated in thepost Maneka Gandhi vs. Union of India& Anr.[29] era in series ofjudgments. This Court, in Managing Director, ECIL, Hyderabad andOthers v. B. Karunakar and Others[30], summarised the post Maneka(supra) position thus: -

“20. The origins of the law can also be traced to the principles ofnatural justice, as developed in the following cases: In A. KKraipak v. Union of India, (1969) 2 SCC 262, it was held thatthe rules of natural justice operate in areas not covered by anylaw. They do not supplant the law of the land but supplement it.They are not embodied rules and their aim is to secure justice orto prevent miscarriage of justice. If that is their purpose, there isno reason why they should not be made applicable to administrativeproceedings also especially when it is not easy to draw the linethat demarcates administrative enquiries from quasi- judicial ones.An unjust decision in an administrative inquiry may have morefar reaching effect than decision in quasi-judicial inquiry. Itwas further observed that the concept of natural justice hasundergone great deal of change in recent years. What particularrule of natural justice should apply to given case must depend toa great extent on the facts and circumstances of that case, theframework of the law under which the inquiry is held and theConstitution of the tribunal or the body of persons appointed forthat purpose. Whenever complaint is made before Court thatsome principle of natural justice has been contravened, the Courthas to decide whether the observance of that rule was necessaryfor just decision on the facts of that case. The rule that inquirymust be held in good faith and without bias and not arbitrarily or

29 (1978) 1 SCC 248

30 (1993) 4 SCC 727

DEF

[2020] 10 S.C.R.

unreasonably is now included among the principles of naturaljustice.

21. In Chairman, Board of Mining Examination v. Ramjee,(1977) 2 SCC 256, the Court has observed that natural justice isnot an unruly horse, no lurking land-mine, nor judicial cure-all. IfBfairness is shown by the decision-maker to the man proceededagainst, the form, features and the fundamentals of such essentialprocessual propriety being conditioned by the facts andcircumstances of each situation, no breach of natural justice canbe complained of. Unnatural expansion of natural justice,without reference to the administrative realities and otherCfactors of given case, can be exasperating. The Courtscannot look at law in the abstract or natural justice as amere artifact. Nor can they fit into rigid mould the conceptof reasonable opportunity. If the totality of circumstancessatisfies the Court that the party visited with adverse orderDhas not suffered from denial of reasonable opportunity, theCourt will decline to be punctilious or fanatical as if therules of natural justice were sacred scriptures.

22. In Institute of Chartered Accountants of India v. L.K. Ratna,(1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990)1 SCC 613(Bhopal Gas Leak Disaster Case) and C.B. Gautamv. Union of India, (1993) 1 SCC 78, the doctrine that theprinciples of natural justice must be applied in the unoccupiedinterstices of the statute unless there is clear mandate to thecontrary, is reiterated.”

(emphasis supplied)

61. Rule 135 of the 1975 Rules operates in situations of exposureof an intelligence officer and the revelation of identity of such intelligenceofficer attracts immense adverse exposure to the Organisation and couldlegitimately result into an embarrassing security breach with long lastingimpacts on the integrity of the Organisation in question, if not the country.The circumstances in which Rule 135 operates incorporate sense ofurgency. Indisputably, continued presence of an exposed officer in theOrganisation in the name of participation in inquiry could seriouslyjeopardize the institutional and national security interests. We deem itessential to highlight that such consequence could ensue even without

the knowledge or connivance of the exposed officer. Further, no stigmaor fault is imputed upon such officer in any manner by the mere factumof such exposure. Therefore, Rule 135 clearly excludes the observanceof these principles by necessary implication. In other words, rigidadherence to the principles of natural justice could defeat the very objectof carving out this special provision. We may usefully refer to theexposition in Ex-Armymen’s Protection Services Private Limited vs.Union of India and Others[31], wherein it is observed thus:

“16. What is in the interest of national security is not question oflaw. It is matter of policy. It is not for the court to decide whethersomething is in the interest of State or not. It should be left to theExecutive. To quote Lord Hoffman in Secy. of State for HomeDeptt. vs. Rehman, (2003) 1 AC 153:

“...in the matter of national security is not question of law. Itis matter of judgment and policy. Under the Constitution ofthe United Kingdom and most other countries, decisions as towhether something is or is not in the interest of national securityare not matter for judicial decision. They are entrusted to theexecutive.”

17. Thus, in situation of national security, party cannotinsist for the strict observance of the principles of naturaljustice. In such cases it is the duty of the Court to read intoand provide for statutory exclusion, if not expressly providedin the rules governing the field. Depending on the facts of theparticular case, it will however be open to the court to satisfyitself whether there were justifiable facts, and in that regard, thecourt is entitled to call for the files and see whether it is casewhere the interest of national security is involved. Once the Stateis of the stand that the issue involves national security, the courtshall not disclose the reasons to the affected party.”

(emphasis supplied)

62. Be it noted that the order of compulsory retirement in thepresent case was preceded by chain of preliminary inquiry, commencingfrom 8.8.2008, in the highest echelons of the government (as indicatedabove) and such preliminary inquiry, in our view, is advisable. For, it isonly after preliminary inquiry that the competent authority can satisfy

31 (2014) 5 SCC 409

Aitself about the existence of the prescribed ground in particular case.However, we reiterate that the participation of the concerned officer insuch inquiry is neither mandated by the jurisprudential essence ofcompulsory retirement or the rigid observance of the principles of naturaljustice. Such principles cannot be offered free ride at the peril of largerpublic interests bordering on reasons of security of the Organisation orBthe State. Despite being harsh at times, unambiguous provisions of theRule under consideration offer no space for infusing any element ofjudicial creativity against the legislative intent [see State of Rajasthanvs. Leela Jain & Ors.[32] and Sri Nasiruddin vs. State TransportAppellate Tribunal[33]]. We hold that Rule 135 of the 1975 Rules, excludesCany requirement of prior noticeor abiding by principles of natural justice.

Re: Pension claim

63. The appellant had assailed the retirement order before theHigh Court in reference to the Pension Rules, on diverse counts. However,by this appeal, the appellant has raised the following question only:D

“(b) Whether the President of India can delegate his power, underRule 9(1) of the CCS (Pension) Rules, 1972, to modify pension ofan employee to any other authority? It is evident that the Presidentof India cannot delegate this power. It means that where anemployee’s pension is to be modified, the decision is to be takenEby the President on case to case basis. There cannot possibly bea generic rule like Rule 135 which can govern pension of certainset of employees overlooking the CCS (Pension) Rules, 1972.Existence of Rule 135 is, in fact, case where few officers ofR&AW got together to bestow on their own selves the power toremove R&AW officers at their whims and fancies.”F

64. This question emanates from the order dated 10.5.2010,whereby the respondents granted provisional pension to the appellantinstead of full pension. The appellant contends that this order amountedto withholding of the appellant’s final pension and part of her provisionalGpension, without adopting the route prescribed by Rule 9 of the PensionRules. It is further submitted that clauses (2)-(4) of Rule 135 deviatefrom the pension provisions of the retired officer and are in derogationto Rule 9(1) of the Pension Rules whereunder only the President of

32 AIR 1965 SC 1296H33 AIR 1976 SC 331

India can exercise such power on case to case basis. Therefore, Rule135 of the 1975 Rules is bad and cannot be sustained.

65. The respondents would contend that Rule 9 of the PensionRules does not apply to the case of appellant and that provision wouldapply only to an employee who has been found guilty of misconduct ornegligence during the period of service in any departmental or judicialproceeding. Thus, contend respondents that grant of pension was justlymade in terms of provisions of Rule 135 of the 1975 Rules.

66. In order to examine the rival contentions, we deem it appositeto first advert to Rule 9(1), which reads thus:

“9. Right of President to withhold or withdraw pension.

(1) The President reserves to himself the right of withholding apension or gratuity, or both, either in full or in part, or withdrawinga pension in full or in part, whether permanently or for specifiedperiod, and of ordering recovery from pension or gratuity of thewhole or part of any pecuniary loss caused to the Government, if,in any departmental or judicial proceedings, the pensioner is foundguilty of grave misconduct or negligence during the period ofservice, including service rendered upon re-employment afterretirement :

......”

67. The appellant may be right in contending that the power towithhold or withdraw pension of an officer is circumscribed by Rule 9.Indeed, it is settled law that the exercise of power of modification ofpension under Rule 9 is subject to the finding of misconduct or negligenceagainst the employee, reached after conducting departmental or judicialproceedings. This Court in D.V. Kapoor vs. Union of India andOthers[34], had observed thus: -

“8. It is seen that the President has reserved to himself the rightto withhold pension in whole or in part therefore whetherpermanently or for specified period or he can recover frompension of the whole or part of any pecuniary loss caused by theGovernment employee to the Government subject to the minimum.The condition precedent is that in any departmental enquiry or the34 (1990) 4 SCC 314

Ajudicial proceedings, the pensioner is found guilty of gravemisconduct or negligence during the period of his service of theoriginal or on re-employment. The condition precedent thereto isthat there should be finding that the delinquent is guilty of gravemisconduct or negligence in the discharge of public duty in office,as defined in Rule 8(5), explanation (b) which is an inclusiveBdefinition, i.e. the scope is wide of mark dependent on the factsand circumstances in given case. Myriad situation may arisedepending on the ingenuity with which misconduct or irregularityis committed. It is not necessary to further probe into the scopeand meaning of the words ‘grave misconduct or negligence’ andCunder what circumstances the findings in this regard are heldproved. It is suffice that charges in this case are that the appellantwas guilty of wilful misconduct in not reporting to duty after histransfer from Indian High Commission at London to the Office ofExternal Affairs Ministry, Government of India, New Delhi. TheInquiry Officer found that though the appellant derelicted his dutyDto report to duty, it was not wilful for the reason that he could notmove due to his wife’s illness and he recommended tosympathetically consider the case of the appellant and the Presidentaccepted this finding, but decided to withhold gratuity and paymentof pension in consultation with the Union Public ServiceECommission.9. As seen the exercise of the power by the President is hedgedwith condition precedent that finding should be recorded eitherin departmental enquiry or judicial proceedings that the pensionercommitted grave misconduct or negligence in the discharge of hisduty while in office, subject of the charge. In the absence of sucha finding the President is without authority of law to impose penaltyof withholding pension as measure of punishment either in wholeor in part permanently or for specified period, or to orderrecovery of the pecuniary loss in whole or in part from the pensionof the employee, subject to minimum of Rs.60.”

68. The raison d’etre of Rule 9 is to provide for an additionalsafeguard on the pensionary right of an employee by vesting the powerof reduction/modification in the President of India. However, it is ageneral rule and not an overarching provision of pervasive application.Framed under Article 309 of the Constitution, this rule operates in theHarea specified for it and cannot override other special rules such as Rule

135. Succinctly put, this rule (Rule 9)does not and cannot control Rule135 of the 1975 Rules, which derives its own independent authority fromArticle 309. As both the rules emanate from Article 309, the question ofillegality of one rule cannot be premised on the argument that it acts indeviation from another rule albeit concerning the same subject of pension.As aforementioned, in cases where the action taken is of compulsoryretirement, in exercise of power under Rule 135, there is no contemplationof any finding of misconduct or negligence against the employee as such.It is not preceded by departmental or judicial proceedings. Rule 135operates as self-contained code covering certain aspects of terminationand post-termination benefits in an exclusive manner as specialdispensation and is not controlled by any other rule much less generalprovisions. There is no overlapping between Rule 135 and Rule 9.

69. As regards the grant of pension to appellant, the appellantshall be entitled to all the benefits under clauses (2)-(4) of Rule 135 intheir true letter and spirit. The impugned judgment has directed therespondents to secure various benefits to the appellant, including thebenefit of promotion and fixation of date of pension as per the date ofnotional superannuation in 2023. That direction has not been challengedbefore us by the respondents. The pension of an employee retired underRule 135 is to be determined in accordance with the date of notionalsuperannuation and not in accordance with the date of actual retirement.This, in our view, reflects the beneficial, balancing and protective outlookof the Rule as it seeks to deal with the competing considerations ofpublic interest including security (of the Organisation or the State) andindividual interest of the outgoing employee. Thus, we direct therespondents to abide by the stipulations contained in clauses (2)-(4), andin particular the benefit extended to the appellant by the High Courtreferred to above, in their true letter and spirit and in right earnest, ifalready not done.

70. Our attention has been drawn to the order of postponement ofthe date of retirement of the appellant from 18.12.2009 to 31.12.2012,by the High Court vide impugned judgment. The order has been passedpresumably in the interest of justice, as is evident from paragraph 79 ofthe impugned judgment wherein the High Court records thus:

“79. …At the same time, the peculiarities and circumstances ofthis case, warrant measure of relief to the applicant, Ms. Bhatiaas well….”

AThe impugned judgment records no other reasoning for orderingsuch postponement. We are mindful of the peculiar circumstances ofthe case, however, we take exception to the measure adopted by theHigh Court as the same goes beyond the scope of Rule 135. The orderof compulsory retirement was passed in the name of the President ofIndia, the relevant part of which read thus: -B

“…Therefore, as per provisions contained in Rule 135 of theR&AW (RC&S) Rules, 1975, Ms. Nisha Priya Bhatia is herebycompulsorily retired from Government service with immediateeffect.”

(emphasis supplied)

71. The decision to retire an officer compulsorily is purely anexecutive function exercised in light of the prevailing circumstances.The scrutiny by the Court is restricted to an examination of whethersuch order is smitten by mala fides or extraneous considerations. OnceDsuch order is upheld in Court of law in its entirety, as the High Courtrightly did, there is no question of altering or modifying the technicalaspects of such order, including the date from which it should be giveneffect. The usage of words “immediate effect” makes it amply clearthat the order of compulsory retirement was meant to take effectimmediately and the date of such order could not have been postponedEby Court of law in the garb of exercising power of judicial review. Todo so without any legal basis, could lead to abhorrent consequences andresult into spiral of issues, including putting to jeopardy the principle ofconclusivity of the decision. Even if we assume that the Court intendedit as an equitable measure, we are of the view that the same could haveFbeen achieved without postponing the date of retirement. Sub-rule (2) ofRule 135 of the 1975 Rules categorically provides for the calculation ofpension as per the date of notional superannuation as well as for theearned promotions. However, despite our disapproval for this approach,in the peculiar facts of this case, we stop short of modifying the HighCourt’s order as regards postponement of date of retirement as the sameGhas not been assailed by the respondents and instead has been compliedwith sans any demur.

72. We have been informed by the respondents that in lieu of theorder of postponement of retirement, consequential benefits have alreadybeen transferred to the appellant. We, therefore, make it clear that ourHobservations as regards the order of postponement shall not affect the

benefits already transferred to the appellant in terms of the High Court’sorder, and no recovery be effected from the appellant of the excesspayment in that regard. Being mindful of the peculiar circumstances ofthe case, we are not inclined to order any restitution of the same.

73. The appellant has placed reliance on decisions relating to theapplicability of pension rules vis-a-vis the officers serving in theOrganisation. This contention of the appellant overlooks the scope ofapplicability of Rule 135 of the 1975 Rules vis-a-vis the Pension Rules.Rule 2(h) of the Pension Rules explicitly predicates that the said rules(Pension Rules) shall not apply to persons whose terms and conditionsof service are regulated by or under any other law for the time being inforce. Rule 135, as noted earlier, forms part of the ‘conditions of service’governing the officers serving in the Organisation and thus, in the fieldcovered by Rule 135, the Pension Rules would be inapplicable. However,the areas that fall outside the purview of Rule 135 would and must begoverned as per the CCS Rules, as is restated in the departmental orderdated 10.5.2010 sanctioning the provisional pension of the appellant underRule 69 of the Pension Rules. Thus, there is no conflict between thetwo.

74. Before we part with this issue, we deem it incumbent upon usto address two concerns with regard to clauses (2)-(4) of Rule 135.First, the import of the usage of expression “may” in clauses (2)-(4) andsecond, the non-availability of the copy of the rule to compulsorily retiredofficers.

75. It is cardinal that pension is valuable statutory right of anemployee and is not controlled by the sweet will or pleasure of theGovernment. In the absence of express exceptions to the same, anyprovision resulting in denial thereof ought to be subjected to strict judicialscrutiny. This position of law has been succinctly exposited by this Courtin D.S. Nakara and Others vs. Union of India[35], which reads thus:

“20. The antequated notion of pension being bounty gratuitouspayment depending upon the sweet will or grace of the employernot claimable as right and, therefore, no right to pension can beenforced through Court has been swept under the carpet by thedecision of the Constitution Bench in Deoki Nandan Prasad vs.State of Bihar, (1971) 2 SCC 330 wherein this Court

35 (1983) 1 SCC 305

[2020] 10 S.C.R.

Aauthoritatively ruled that pension is right and the payment of itdoes not depend upon the discretion of the Government but isgoverned by the rules and Government servant coming withinthose rules is entitled to claim pension. It was further held that thegrant of pension does not depend upon anyone’s discretion. It isonly for the purpose of quantifying the amount having regard toBservice and other allied matters that it may be necessary for theauthority to pass an order to that effect but the right to receivepension flows to the officer not because of any such order but byvirtue of the rules. This view was reaffirmed in State of Punjab

vs. Iqbal Singh, (1976) 2 SCC 1.”

C76. Indeed, clauses (2)and (3) of Rule 135 of the 1975 Rules,posit that the grant of pension to compulsorily retired employee underthis rule is preceded by expression “may”. That gives an impression thatthe grant of pension to the outgoing employee is subject to the discretionof the competent authority. The setting in which expression “may”hasDbeen placed in this provision, it must be read as “shall”. Lest, it could beargued that compulsorily retired officer under Rule 135 can be denudedof pensionary benefits. That would result in not only loss of job for theemployee concerned due to fortuitous situation referred to in Rule 135,but also deprive him/her of the source of his livelihood (even though theaction against him/her is not to inflict civil consequences). In fact, RuleE135 is cast in the form of beneficial, balancing and protective provisionfor the nature of action against the employee concerned. We find ithighly incongruous to permit the rule to operate in manner so as toleave the scope for denial of pensionary benefits to an officer who hasbeen retired without his/her volition for the sake of meeting organisational

Fexigencies. Notably, the rule, being special provision, does not prescribefor any minimum age or length of service of the officer concerned andthe necessities of the situation may demand the invocation of this ruleeven within short period of service. In such circumstances, subjugatingthe statutory right of pension of such officer, who is being ousted withouthis/her fault because of public interest in reference to the integrity of theGOrganisation, would be preposterous and in fact, violative of fundamentalrights under the Constitution.

77. We are mindful of the fact that Intelligence Organisations(Restriction of Rights) Act, 1985, enacted by the Parliament under Article33, provides for restriction of certain rights conferred by Part III in theirH

application to intelligence officers. However, the same is confined torestrictions respecting right to form associations, freedom of speech etc.and does not stretch its sweep to curb the right to livelihood of an officer,that too when the officer is being compulsorily retired under Rule 135.This could not have been the object and intent of the stated legislation.Even in the Pension Rules, Rule 40 is the only provision which subjectsthe pension of compulsorily retired officer to discretionary “may”provision. However, this rule comes into play when the said retirementis ordered as penalty and thus, it stands on different footing thanRule 135 of the 1975 Rules which is not linked to the conduct of theofficer nor does it entail any consequence, either civil or penal.

78. By now it is well established that it is the duty of the Court togive effect to the object sought to be achieved by the legislature throughthe enacted provision and to prevent its defeat. In order to fulfil this duty,the settled canons of interpretation enable this Court to scrutinise thetrue import of the usage of “may” and “shall” provisions, as reiteratedby this Court in D.K. Basu vs. State of West Bengal &Ors.[36]

“13. long line of decisions of this Court starting with SardarGovind Rao vs. State of Madhya Pradesh, AIR 1965 SC 1222have followed the above line of reasoning and authoritatively heldthat the use of the words ‘may’ or ‘shall’ by themselves does notnecessarily suggest that one is directory and the other mandatory,but, the context in which the said expressions have been used asalso the scheme and the purpose underlying the legislation willdetermine whether the legislative intent really was to simply conferthe power or such conferment was accompanied by the duty toexercise the same.

14. In The Official Liquidator vs. Dharti Dhan (P) Ltd., (1977)2 SCC 166, this Court summed up the legal position thus:

“7. In fact, it is quite accurate to say that the word ‘may’ byitself, acquires the meaning’ of ‘must’ or ‘shall’ sometimes.This word however, always signifies conferment of power.That power may, having regard to the context in which it occurs,and the requirements contemplated for its exercise, haveannexed to it an obligation which compels its exercise in acertain way on facts and circumstances from which the

obligation to exercise it in that way arises. In other words, it isthe context which can attach the obligation to the powercompelling its exercise in certain way. The context, bothlegal and factual, may impart to the power that obligatoriness.

8. Thus, the question to be determined in such cases always is,Bwhether the power conferred by the use of the word ‘may’has, annexed to it, an obligation that, on the fulfilment of certainlegally prescribed conditions, to be shown by evidence, aparticular kind of order must be made. If the statute leaves noroom for discretion the power has to be exercised in the mannerindicated by the other legal provisions which provide the legalCcontext. Even then the facts must establish that the legalconditions are fulfilled. power is exercised even when theCourt rejects an application to exercise it in the particular wayin which the applicant desires it to be exercised. Where thepower is wide enough to cover both an acceptance and refusalDof an application for its exercise, depending upon facts, it isdirectory or discretionary. It is not the conferment of powerwhich the word ‘may’ indicates that annexes any obligation toits exercise but the legal and factual context of it.””79. In the present case, as discussed above, the usage of “may”Eprovision in discretionary manner could lead to highly iniquitous resultsand leave scope for arbitrary exercise of discretion. Thus, keeping inmind the context, object, legislative intent and the general policy ofresolving ambiguities of beneficial provisions in favour of the employees,we hold that the expression “may” occurring in Rule 135 needs to beconstrued as “shall” and to make it mandatory upon the competentFauthority to grant specified pension benefits, in line with the spirit of therule, to the compulsorily retired officer without exception. While doingso, we are not substituting our notion of legislative intent, rather, we aremerely exercising the power to choose between two differingconstructions in order to further the intent of the legislature, in line withGthe dictum in Kehar Singh & Ors. vs. State (Delhi Administration)[37].

80. Reverting to the next aspect as to whether the officerscompulsorily retired under Rule 135 must be furnished with the copy ofthe stated Rules, we are of the considered view that the officers, whoseservices are being terminated under Rule 135, ought to be provided withH37 (1988) 3 SCC 609

atleast the extract of relevant applicable rules alongwith the order ofcompulsory retirement so that the concerned employee would know aboutthe entitlement and benefits under the governing Rule for pursuing claimthereunder in accordance with the law.

Criminal Appeal No. 413/2020 @ SLP (Crl.) No. 10668 of2015

81. Leave granted.

82. By this appeal, the appellant has assailed the final judgmentand order dated 2.11.2015 passed by the High Court in Crl.M.C. No.4497 of 2015, whereby the order dated 10.9.2015 passed by the AdditionalSessions Judge, Patiala House Courts, New Delhi in C.R. No. 18/2015and order dated 28.4.2015 passed by Metropolitan Magistrate, PatialaHouse Courts, New Delhi in C.C. No. 475/1/13, refusing to summon therespondents as accused in the absence of sanction under Section 197 ofthe Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), came tobe upheld by the High Court. The short question for consideration beforeus is whether the refusal to issue summons to the respondents withoutprior sanction under Section 197 of the Cr.P.C. is just and proper.

83. The appellant has alleged that the recording of observationson her psychological state of mind by the respondents was an act offabrication and not within their official duties as Committee members,so as to grant them the protection under Section 197 of the Cr.P.C. It isfurther alleged that the act of constitution of another committee, headedby Ms. Rathi Vinay Jha, acted as proof that the first Committeeconstituted by the respondents was without legal mandate and thus,members of such Committee could not be said to have acted within theirofficial duties. It is also urged that the sanction was deemed to be grantedas it was not refused within three months of the proposal by virtue ofRule 19 of CCS (Conduct) Rules, 1964 (for short, ‘the Conduct Rules’)and the dictum in Vineet Narain &Ors. vs. Union of India &Anr.[38].Theappellant, in her complaint, had levelled allegations against the privaterespondents of having committed offences under Section 167 of theIndian Penal Code, 1860 (for short “the IPC”) by forging the report ofthe Committee constituted to inquire into the appellant’s complaint ofsexual harassment. The trial court refused to issue summons to the private

Arespondents for the lack of sanction under Section 197 of the Cr.P.C.and the High Court upheld the order of trial court.

84. Before we go into the merits of the contentions, we note thatthe Department had already ruled on the appellant’s request for sanctionvide detailed order dated 10.2.2012. That order has been brought onBrecord by the respondents and we deem it necessary to reproduce therelevant extract thereof, which reads thus:

“13. WHEREAS, in so far as the allegations made against Smt.Shashi Prabha and Smt. Anjali Pandey, who were members ofthe Committee, regarding the finding recorded by them at Sl. No.C3 of the CONCLUSIONS, which reads as under: -

“3. Ms. Bhatia’s threat to take her own life, allegation of threatsto her from other quarters and her behaviour on subsequentoccasions (Annexure-C) appear to indicate disturbed stateof mind. As such counselling may benefit her.”

14. WHEREAS, apparently, these observations were made bythe Committee, in view of the fact, that the Applicant – Ms. NishaPriya Bhatia had threatened to take her life. It was in thisbackground, that all the seven members of the Committee hadunanimously observed, that her behaviour indicates disturbedEstate of mind and as such counselling may benefit her. Therefore,no malafides can be attributed to Smt. Shashi Prabha and Smt.Anjali Pandey, who were the two signatories along with five othermembers of the Committee, who had signed the report dated 19[th]May, 2008. In view of this, no case under Section 167 or Section44 of IPC is made out against Smt. Shashi Prabha and Smt. AnjaliFPandey.

xxxxxx

xxx

19. NOW, THEREFORE the Competent Authority afterthoroughly examining the relevant record and perusal of thecomplaint dated 10.02.2010 and also Criminal Complaint alongwiththe annexures filed in the Court of Chief Metropolitan Magistrate,District Courts, Dwarka, under Section 200 Cr.P.C. and Sections167 & 44 IPC, is satisfied that no case is made out to accordsanction under Section 197 Cr.P.C. to prosecute Smt. ShashiPrabha, Joint Secretary and Smt. Anjali Pandey, Director (nowJoint Secretary), u/s 167 and 44 of IPC as requested by Ms. Nisha

Priya Bhatia. Therefore, the request made by Ms. Nisha PriyaBhatia in her complaint dated 10.02.2010 is hereby declined.”

85. The position of law regarding the grant of sanction under Section197 is well settled. The provision is crafted to protect the public servantsfrom the vice of frivolous complaints against the acts done by them inthe course of their official duties. Sanction under Section 197 of theCr.P.C. is pre-requisite, in law, for taking cognizance against publicservants. Nevertheless, we do not wish to dilate on the merits of thequestion of sanction as the order dated 10.2.2012 refusing to accordsanction against the private respondents has not been assailed by theappellant and absent any challenge thereto, it continues to operate inlaw.

86. Additionally, the appellant has contended that the order of thisCourt dated 15.12.2014 in W.P. (Crl.) No. 24 of 2012 quashing the pressnote dated 19.8.2008 adds weight to her case against the respondents.Even this submission cannot be taken forward so long as the order dated10.2.2012 is in force.

87. Similarly, the exposition in Inspector of Police and Anothervs. Battenapatla Venkata Ratnam and Another[39] that no sanction isnecessary in cases involving allegations under Section 167 of the IPCwill be of no avail because the appellant has allowed the decision of thecompetent authority dated 10.2.2012, refusing to grant sanction againstthe private respondents to become final. Therefore, we need not dilateon the grounds urged in this appeal any further. Hence, this appeal isdismissed.

Writ Petition (Criminal) No. 24 of 2012

88. In this writ petition, the petitioner seeks to invoke the jurisdictionof this Court under Article 32 of the Constitution and prays for issuanceof appropriate directions to the respondents for bringing about necessarymodifications in the CCS (CCA) Rules in tune with the guidelines laiddown by this Court in Vishaka (supra).Primarily, the attempt of thepetitioner is to put to scrutiny the procedure laid down in the CCS (CCA)Rules with respect to the complaints of sexual harassment.

89. The petitioner contends that these rules do not provide forsufficient participation to the victim of sexual harassment during the39 (2015) 13 SCC 87

Ainquiry into her complaint. It is further contended that the charged officerhas wide rights of participation in the inquiry process, whereas the victim/complainant has no such corresponding rights. It is urged that theserules do not oblige the Complaints Committee to take into account herdocuments, her witnesses or her objections against the composition ofthe Committee, thereby leading to unfairness and denial of natural justice.B

90. It is further contended by the petitioner that the rules do notprovide for the supply of the report of Complaints Committee to thevictim/complainant and O.M. dated 2.8.2016 also falls short of remedyingthis lacunae as it comes into operation only if the Complaints Committeedoes not recommend any action against the charged officer, therebyCleaving out situations in which an action has been recommended and isfound to be inadequate. Furthermore, it is averred that as per O.M.dated 2.8.2016, the victim/complainant is entitled to such report onlyafter it has been placed before the Disciplinary Authority and the authorityhas reached the decision of not recommending any action. The specificDprayer made by the petitioner reads thus: -

“1. Issue writ or any other order directing the Respondent No.1 to amend the Central Civil Services (Classification, Control &Appeal) [CCS (CCA)] Rules, 1965 – under which enquiries areconducted against employees of the Central Government – so asEto give victim of sexual harassment her due representation inthe process of enquiry initiated into her complaint – therebycomplying with the Vishakha Guidelines, 1997 of this Hon’bleCourt.”

91. The respondents, on the other hand, have submitted that theFprovisions of O.M. dated 16.7.2015 clearly lay down the procedure tobe followed by the Complaints Committee and the victim/complainant issufficiently involved in the process. Further, the Complaints Committeehas been granted the status of an inquiring authority and the procedureoperates as provided in Rule 14 of CCS (CCA) Rules. Further, it issubmitted that O.M. dated 16.7.2015 vindicates the apprehension of biasGas regards the composition of the Complaints Committee, vide paragraph10 of the O.M., which reads thus: -

“10. As the Complaints Committee also act as Inquiring Authorityin terms of Rule 14(2) mentioned above, care has to be taken thatat the investigation stage that impartiality is maintained. Any failure

on this account may invite allegations of bias when conductingthe inquiry and may result in the inquiry getting vitiated. As perthe instructions, when allegations of bias are received against anInquiring Authority, such Inquiring Authority is required to staythe inquiry till the Disciplinary Authority is required to stay theinquiry till the Disciplinary Authority takes decision on theallegations of bias. Further, if allegations of bias are establishedagainst one member of the Committee on this basis, that Committeemay not be allowed to conduct the inquiry.”92. As regards the supply of the report of Complaints Committeeto the petitioner, the respondents submit that as per O.M. dated 2.8.2016,where Complaints Committee has not recommended any action againstthe charged officer, the Disciplinary Authority shall supply copy of thereport of the Complaints Committee to the victim/complainant and shallconsider her representation before coming to final conclusion. Notably,this submission is in line with the contention raised by the petitioner andneeds to be examined as such.

93. The inquiry procedure adopted to deal with the complaints ofsexual harassment at workplace has assumed sacrosanct position inlaw and cannot be undermined under any pretext whatsoever. This Court,in catena of pronouncements, has made it clear that fairness andreasonableness are inalienable parts of any procedure established bylaw. In the present case, however, we are inclined to observe that therelief claimed by the petitioner is ill advised.

94. The petitioner has called upon us to issue directions to therespondents (Department of Personnel and Training) for making additionsin the CCS (CCA) Rules on certain counts. Strictly speaking, the law asregards the contours of powers to be exercised by the Court vis-a-visthe law/rule making authorities, is well settled and is premised on thetenets of judicial restraint and separation of powers. In other words, theCourt should be loath to issue direction to the law/rule making bodies toenact particular rule, more so when the alleged shortcomings in therules are not even part of the subject matter at hand. In DivisionalManager, Aravali Golf Club & Anr. vs. Chander Hass & Anr.[40], thisCourt expounded the essence of judicial powers of this Court by relyingupon Montesquieu’s The Spirit of Laws and noted thus: -

A“21. The theory of separation of powers first propounded by theFrench thinker Montesquieu (in his book `The Spirit of Laws’)broadly holds the field in India too. In chapter XI of his book `TheSpirit of Laws’ Montesquieu writes:

“When the legislative and executive powers are united in theBsame person, or in the same body of magistrates, there can beno liberty; because apprehensions may arise, lest the samemonarch or senate should enact tyrannical laws, to executethem in tyrannical manner.”

Again, there is no liberty, if the judicial power be notCseparated from the legislative and executive. Were itjoined with the legislative, the life and liberty of thesubject would be exposed to arbitrary control; for thejudge would be then the legislator. Were it joined to theexecutive power, the judge might behave with violenceand oppression.

There would be an end of everything, were the same man orthe same body, whether of the nobles or of the people, toexercise those three powers, that of enacting laws, that ofexecuting the public resolutions, and of trying the causes ofindividuals.”E

(emphasis supplied)

In Social Action Forum for Manav Adhikar and Another vs.Union of India, Ministry of Law and Justice & Ors.[41], this Court hadthe occasion to delve into the same aspect again and observed thus: -F“40. We have earlier stated that some of the directions issued inRajesh Sharma vs. State of U.P., (2018) 10 SCC 472 have thepotential to enter into the legislative field. three-Judge Bench inSuresh Seth v. Indore Municipal Corporation, (2005) 13 SCC287 ruled thus:(Suresh Seth case, SCC pp. 288-89, para 5)

G5. ... In our opinion, this is matter of policy for the electedrepresentatives of people to decide and no direction in thisregard can be issued by the Court. That apart this Court cannotissue any direction to the legislature to make any particularkind of enactment. Under our constitutional scheme Parliament

H41 (2018) 10 SCC 443

and Legislative Assemblies exercise sovereign power to enactlaws and no outside power or authority can issue direction toenact particular piece of legislation. In Supreme CourtEmployees’ Welfare Assn. v. Union of India, (1989) 4 SCC187 it has been held that no court can direct legislature toenact particular law. Similarly, when an executive authorityexercises legislative power by way of subordinate legislationpursuant to the delegated authority of legislature, suchexecutive authority cannot be asked to enact law which ithas been empowered to do under the delegated legislativeauthority. ....”

95. Be that as it may, in our opinion, the petitioner seems to haveconfused two separate inquiries conducted under two separatedispensations as one cohesive process. The legal machinery to deal withthe complaints of sexual harassment at workplace is well delineated bythe enactment of The Sexual Harassment of Women at Workplace Act,2013 (hereinafter “2013 Act”) and the Rules framed thereunder. Therecan be no departure whatsoever from the procedure prescribed underthe 2013 Act and Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Rules, 2013 (for short, “the 2013Rules”), either in matters of complaint or of inquiry thereunder. Thesanctity of such procedure stands undisputed. The inquiry under the2013 Act is separate inquiry of fact-finding nature. Post the conductof fact-finding inquiry under the 2013 Act, the matter goes before thedepartment for departmental inquiry under the relevant departmentalrules [CCS (CCA) Rules in the present case] and accordingly, actionfollows. The said departmental inquiry is in the nature of an in-housemechanism wherein the participants are restricted and concerns of locusare strict and precise. The ambit of such inquiry is strictly confinedbetween the delinquent employee and the concerned department havingdue regard to confidentiality of the procedure. The two inquiries cannotbe mixed up with each other and similar procedural standards cannot beprescribed for both. In matters of departmental inquiries, prosecution,penalties, proceedings, action on inquiry report, appeals etc. in connectionwith the conduct of the government servants, the CCS (CCA) Rulesoperate as self-contained code for any departmental action and unlessan existing rule is challenged before this Court on permissible grounds,we think, it is unnecessary for this Court to dilate any further.

96. The notifications issued by the respondent in the form of O.Ms. are in the nature of departmental instructions and are intended tosupplement the 2013 Act and Rules framed thereunder. Such notificationsdo not operate in derogation of the 2013 Act, rather, they act in furtheranceof the same. The O.M. dated 02.08.2016, for instance, reads thus: -

B“3. In accordance with Section 18(1) of the SHWW (PPR) Act,2013, it has been decided that in all cases of allegation of sexualharassment, the following procedure may be adopted...”

97. bare perusal of the aforequoted O.M. makes it amply clearthat the said notification furthers the procedure predicated under theC2013 Act and do not, in any manner, reduce the vigour thereof. It is notthe petitioner’s case that the 2013 Act itself is plagued with proceduraldrawbacks. Furthermore, if the present procedural scheme falls short ofjust, fair, equitable and reasonable procedural standards as envisaged inour constitutional jurisprudence, it may warrant intervention by the Court.Be it noted, the factual matrix in this case relates to the pre 2013 Act eraDand was solely governed by the guidelines issued by this Court in Vishaka(supra). To put it differently, the subject matter or issues raised by thepetitioner in this petition have no bearing on the case in hand. Hence,the examination of the argument under consideration at the instance ofthe petitioner would be nothing but hypothetical or an academic exerciseEin futility.

98. In light of the above,the stated relief claimed in this writ petition,we hold is devoid of merit.

Constitutional compensation for violation of right to life

F99. We shall now consider the prayer for grant of compensationfor the violation of petitioner’s fundamental rights, in light of the factualmatrix of the case. Indeed, diverse allegations and counter-allegationshave been made in the course of submissions from both the sides, weshall restrict ourselves to the established set of facts for consideration ofthis prayer. Admittedly, the petitioner filed the complaint of sexualGharassment on 7.8.2007. After entrusting the inquiry of the complaint tothe Committee headed by Ms. Shashi Prabha, the Committee was foundto be incompetent to enquire against one of the charged officers and theinquiry against that officer was finally entrusted to the Committee headedby Ms. Rathi Vinay Jha. Be it noted that this was done only after theincident at the PMO dated 19.8.2008 and the wide media coverageH

thereof. Furthermore, the complaint made in August 2007 was not referredto the Committee on Sexual Harassment before delay of over threemonths. The referral was made in December, 2007, after writtencomplaint to the PMO on 26.10.2007 regarding the inaction ofrespondents. This delay was further accentuated by the improperconstitution of the Departmental Committee. In this regard, the enquiryreport submitted by Ms. Rathi Vinay Jha Committee notes thus:

“(iii) The Departmental Committee on Sexual Harassment wasalso not properly constituted as per the Vishakha guidelines. Asper this requirement, the Complaints Committee should “have hada third party as representative of an NGO or other body who isfamiliar with the issue of sexual harassment.” While the Committeeon Sexual Harassment was re-constituted on 1.11.2007. Ms. TaraKartha, Director, National Security Council Secretariat, wasappointed as Member of this Committee only in April 2008. It isnot clear in what manner Ms. Tara Kartha qualified to representan NGO or anybody familiar with the issue of sexual harassment.

So even at this stage, it was not Committee constituted inaccordance with the Vishakha guidelines.”

100. The improper handling of the complaint of sexual harassmentis also manifested in subsequent findings of the enquiry report as producedthus:

“An examination of the Report of the Departmental Committeeon Sexual Harassment submitted in May 2008 established thatthe complaint by Ms. Nisha Priya Bhatia was not given timelyattention or proper enquiry and redressal.

The written comments by Shri Ashok Chaturvedi on file reflecthis lack of concern or respect for ensuring immediate attention tothe complaint. It also reflects Shri Ashok Chaturvedi’s lack ofknowledge of the requirements in the Vishakha guidelines.

Further even when the complaint was referred to theDepartmental Committee on Sexual Harassment, the Secretary(R) did not pay heed to the constitution of the committee as requiredin the Vishakha guidelines. The act was, therefore, in grossviolation of the Vishakha guidelines.”

101. It is, therefore, not in dispute that the petitioner’s complaintsof sexual harassment were met with incidents showcasing procedural

Aignorance and casual attitude of her seniors in the department. We alsonote that, as regards the press note dated 19.8.2008, this Court hadtaken strong exception to the unwarranted attacks on her psychologicalstatus and quashed the note in its entirety vide order dated 15.12.2014for being violative of the petitioner’s dignity, reputation and privacy.Despite such terse finding regarding violation of fundamental rights, noBrelief of compensation was given to the petitioner and presumably notpursued by her at that time.

102. The scheme of the 2013 Act, Vishaka Guidelines andConvention on Elimination of All Forms of Discrimination Against Women(CEDAW) predicates that non-hostile working environment is the basicClimb of dignified employment. The approach of law as regards thecases of sexual harassment at workplace is not confined to cases ofactual commission of acts of harassment, but also covers situationswherein the woman employee is subjected to prejudice, hostility,discriminatory attitude and humiliation in day to day functioning at theDworkplace. Taking any other view would defeat the purpose of the law.A priori, when inaction or procrastination (intentionally or otherwise) ismeted out in response to the attempt of setting the legal machinery inmotion, what is put to peril is not just the individual cries for the assistanceof law but also the foundational tenets of society governed by the ruleof law, thereby threatening the larger public interests. The denial of timelyEinquiry and by competent forum, inevitably results in denial of justiceand violation of fundamental right. The factual matrix of the presentcase is replete with lack of sensitivity on the part of Secretary (R) quathe complaint of sexual harassment. To wit, time taken to process thestated complaint and improper constitution of the first Complaints

FCommittee (intended or unintended) in violation of the Vishaka Guidelines,constitute an appalling conglomeration of undignified treatment andviolation of the fundamental rights of the petitioner, more particularlyArticles 14 and 21 of the Constitution.

103. This Court has, over the course of time, evolved the judicialGpolicy of remedying grave violations of the right to life by providingcompensation in monetary terms, apart from other reliefs. In S. NambiNarayanan vs. Siby Mathews & Ors.[42], this Court exercised its powerto invoke the public law remedy for grant of compensation for the violation

H42 (2018) 10 SCC 804

of the right to life by observing that life itself commands self-respect. Itobserved thus: -

“40. ….. The dignity of person gets shocked when psycho-pathological treatment is meted out to him. human being criesfor justice when he feels that the insensible act has crucified hisself-respect. That warrants grant of compensation under the publiclaw remedy…..”

Regard may also be had to Nilabati Behera (Smt) Alias LalitaBehera (Through the Supreme Court Legal Aid Committee) vs. Stateof Orissa & Ors.[43 ]and Rudul Sah vs. State of Bihar & Anr.[44].

104. In the present case, the petitioner had faced exceedinglyinsensitive and undignified circumstances due to improper handling ofher complaint of sexual harassment. Regardless of the outcome of theinquiry into the stated complaint, the fundamental rights of the petitionerhad been clearly impinged. Taking overall view of the circumstances,weconsider this to be fit case to award compensation to the petitioner forthe stated violation of her right to life and dignity, quantified at Rs.1,00,000/- (Rupees one lakh only). Had it been case of allegations in the statedcomplaint of the petitioner been substantiated in the duly conducted inquiry(which the petitioner had failed to do), it would have been still worst andaccentuated violation of her fundamental rights warranting suitable(higher) compensation amount. Be that as it may, the compensationamount specified hereinabove be paid to the petitioner directly or bedeposited in the Registry of this Courtand in either case, within six weeksfrom today.

Writ Petition (Criminal) No. 1 of 2016

105. The petitioner has filed this writ petition praying for theissuance of writ of mandamus directing the respondents to pay for thehigher education of her daughter as measure of compensation for thepetitioner’s sexual harassment, various criminal offences under the IPCcommitted against her and consequent violation of her fundamental rightsunder Articles 14, 15, 21 and 22 of the Constitution. The main prayer inthe petition before us reads thus:

“Issue writ of mandamus/or any other appropriate writ/order/directions that the Respondents respond to petitioner’s letter dtd.

43 (1993) 2 SCC 746

44 (1983) 4 SCC 141

A11.08.15 and pay for higher education of Petitioner’s youngerdaughter as compensation for Petitioner’s acute sexual harassmentand for criminal offences committed against her by their officersu/s 499, 500, 503, 506, 186, 339 & 341 IPC – as proved by variouscourt orders on record.”

B106. The petitioner has brought on record number of proceedingsbefore various fora to support her submission that the private respondentshave committed acts of criminal intimidation, defamation and wrongfulrestraint against her. She has also urged that her arrest dated 8.12.2009led to the violation of her fundamental right under Article 22 of theConstitution, as the arrest was illegally orchestrated by the respondents.C107. The respondents, on the other hand, have contended that thepetitioner is not entitled to any such compensation. In support of thiscontention, the respondents have advanced the following submission:-

“3. That the Petitioner had made representation on 11.08.2015Dto the Hon’ble Prime Minister of India regarding financialassistance of Rs. 26,00,000/- (Rupees Twenty Six Lakhs Only),which she required towards the payment of fee of her daughter inMBA Course at Indian School of Business, Hyderabad (Courseof 2016-17). As per the records available, PMO had forwardedher representation dated 11.08.2015 to Department of HigherEEducation, Ministry of Human Resource Development vide letterdated 18.08.2015. Thereafter, the Department of Higher Educationexamined the matter in consultation with the University GrantsCommission. UGC had informed that Indian School of Business,Hyderabad is not in the list maintained by it and not under theFpurview of UGC. Further, Department of Higher Education hadinformed that Indian School of Business, Hyderabad is privatebusiness school and there is no scheme of that Ministry to financefor admission in Indian School of Business.”108. Being compulsorily retired government servant, theGentitlement of the petitioner to post-retirement benefits must be confinedto the provisions under the service rules applicable to her. The petitionerhas been paid various post-retirement benefits including pension on thebasis of the date of notional superannuation in accordance with the letterand spirit of Rule 135 of the 1975 Rules. As regards the violation of thefundamental rights of the petitioner, we have already considered thatH

aspect in W.P. (Criminal) No. 24 of 2012 and have provided forcompensation in that regard. However, no compensation can be given tothe petitioner in reference to the cause stated in the writ petition underconsideration.

109. The petitioner, relying upon the order of the High Court inW.P. (C) 3704 of 2012, has contended that various Court orders onrecord prove the commission of criminal intimidation and wrongfulrestraint against the petitioner by the officers of the respondents. Weoutrightly reject this inference purportedly deduced from the stated order.The scope of adjudication before the High Court in the aforementionedwrit petition was limited to the regularisation of the period of absenceand grant of consequent benefits. Mere recording of observations revolvingaround procedural improprieties in following Vishaka (supra) Guidelines,consequent transfer of the petitioner and various cross allegationsbetween the parties, in no manner is an adjudication on the criminalliability of the officers. In fact, the question of criminal liability of theofficers has not been adjudicated in any preceding case so far. Thus, noadditional compensation under the pretext of the allegations underconsideration can be granted to the petitioner. Therefore, this petitionmust fail and is disposed of in the aforementioned terms.

110. In reference to I.A. No. 79011 of 2019 filed in S.L.P. (Civil)No. 2307 of 2019, having regard to the peculiar circumstances of thecase, it is ordered that no liability as to the payment of penal house rentcharges upto next three months from today shall be recovered from thepetitioner. However, with the order of compulsory retirement becomingfinal consequent to this order, the respondents are free to get thegovernment accommodation vacated in accordance with the extant rulesand follow due process of law after expiry of three months period fromtoday.

111. While parting, we need to observe that the petitioner/appellantherein appeared and argued in person and presented herself with utmostdignity and displayed dignified demeanour towards the Court. Despitethe underlying emotional appeal connected with this case, the petitioner/appellant presented her case like any other accomplished lawyer inreference to the legal principles.

112. Accordingly, we dispose of the batch of four cases before usin the following terms and directions: -

A(i)We hold that Rule 135 of the 1975 Rules is valid and doesnot suffer from the vice of unconstitutionality. Further, theexpression “may” occurring in sub-Rule (2) of Rule 135must be read as “shall”, for giving true effect to the objectof the provision.

B(ii)The impugned order of compulsory retirement passed underRule 135 against the appellant/petitioner is valid and legaland the decision of the High Court in this regard standsconfirmed subject, however, to modification thereof to theextent indicated in the present judgment.

C(iii)The grant of pension to the appellant/petitioner herein shallbe computed in accordance with the date of notionalsuperannuation as directed by the High Court and not fromthe date of actual compulsory retirement and additional sumin that regard, if any, be paid to her within six weeks fromtoday.D

(iv)The respondent(s) (Union of India) is directed to paycompensation quantified at Rs.1,00,000/- (Rupees one lakhonly) to the appellant/petitioner herein for violation of herfundamental rights to life and dignity - as result of theimproper handling of her complaint of sexual harassment.EThe compensation amount be paid to the appellant/petitionerby way of direct transfer in her bank account or be depositedin this Court and in either case, within six weeks from today.

(v)The appellant/petitioner is granted time to vacate and handover peaceful possession of her official quarter for periodFof three months from today. Further, no penal house rentcharges be levied or recovered from the petitioner upto nextthree months from today.

113. Accordingly, the appeals, writ petitions and pendinginterlocutory applications shall stand disposed of in the above terms.

Divya Pandey

Matters disposed of.