Judgment

RANGANATH MISRA, JJ.

( 1 ) IN this application under Art. 32 of the Constitution, petitioner assails the order dated 5/09/1975, of his compulsory retirement from service with effect from 5th of December, 1975, made under S. S. 51 (j) (i) of the Fundamental Rules. The impugned order ran thus:

"whereas the Director of Audit, Defence Services, New Delhi (appropriate authority) is of the opinion that it is in the public interest to do so,

NOW, THEREFORE, in exercise of the powers conferred by Cl. G) (i) of R. 56 of the Fundamental Rules, the Director of Defence Services (appropriate authority) hereby gives notice to Shri C. D. Ailawadi, Audit Officer, Defence Services that he, having already attained the age of 50 years on the 22/11/1969, shall retire from service with effect from the forenoon of the 4th of December, 1975, or from the date of expiry of three months computed from the date of the service of this notice on him, whichever is later.

( 2 ) THE petitioner has pleaded that he was efficient and had risen from the rank of a Clerk to the post of Audit Officer in which he was confirmed with effect from 8-12-1968. According to him, he had clear and unblemished record of service. He had held independent charge of the senior post of Deputy Director of Audit and had been paid an additional amount of Rs. 100/ - per month for the period. He also alleged that his character roll entries were excellent. According to him, it was the obligation of the appropriate authority to review the petitioners case six months before he attained the age of 50 or completed thirty years of service. Since no such review had been made on the basis of review petitioner had not been retired, he was entitled to continue up to the age of 58, which is the normal age of retirement. According to him, all cases of premature compulsory retirement made during the emergency were reviewed in terms of the Government circular of 10th of August, 1978, but the representations made by the petitioner for the benefit of review in terms of the said circular were not heeded to and the petitioner was, therefore, obliged to file the present petition.

( 3 ) IN the return to the rule nisi by the Director of Audit, Defence Services, it has been contended that the order of retirement was made in public interest after review of the petitioners case. It has been stated in the said affidavit:

IN the case of Shri Ailawadi the Committee after review of his complete record of service observed that his earlier services were of a very marginal nature and he earned some adverse reports later. The Committee, therefore, considering the quality of his work on the whole, concluded that Shri Ailawadi was not fit to be retained in the public interest. The Appropriate Authority felt that his reports for the last few years were poor, colourless and indicative of steady deterioration attributed to family problems and to his state of health. The Appropriate Authority also took into account his latest report for the year 1974-75 which assessed him as barely competent to hold an officers post. "

( 4 ) THE character roll entries have also been placed before the Court at the time of hearing of this writ petition. We have checked the same and in particular those for five years prior to the date of the impugned order. In 1969-70, his ability was considered to be average. His thought and expression were said to be vague and rambling. Deterioration of his physical health was taken note of and the general assessment was that he was an average officer. In the following year the reviewing authority after treating him to be an average officer endorsed the following direction:

I am inclined to think that the entire report may be communicated to him and he must be told so to exert himself that he earns a more commendable report next year. "

THIS appears to have been shown to him and his signature had been taken on 3-9-1971.

( 5 ) DURING the years 1972-73, 1973-74 and 1974-75, he was branded as an average office