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2005 Supreme(Bom) 1219
IN THE HIGH COURT OF BOMBAY
PARAMJEET SINGH BHOGAL
Versus
UNION OF INDIA
Decided Date: 12/09/05
Headnote:Constitution Of India, 1950 - Articles 311 and 16 - All India Services (Death-Cum-Retirement Benefits) Rules, 1958, Rule 16(3) - Compulsory retirement. - Un-communicated adverse remarks can be looked into for forming an opinion to retire Government servants compulsorily in public interest. 1998 SCC (L and S) 152, (1992) 2 SCC 299, Foll.
Constitution Of India, 1950 - Articles 311 and 16 - All India Services (Death-Cum-Retirement Benefits) Rules, 1958, Rule 16(3) - Order of compulsory retirement. - Where order of compulsory retirement of petitioner, an IAS Officer from service in public interest was not challenged on ground of mala fide therefore order is not invalid. (1980) 2 SCC 15 - Relied
Constitution Of India, 1950 - Articles 311 and 16 - All India Services (Death-cum-Retirement Benefits) Rules, 1958, Rule 16(3) - Order of compulsory retirement at age of 50 years. - Since an order of compulsory retirement implies no stigma nor any suggestion of misbehaviour hence such an order not attracts Article 311(2) of Constitution. - A plain reading of the Rule 16(3) of All India Service (Death-cum-Retirement Benefit) Rules, 1958 would show that the following essential ingredients must be satisfied before an order compulsorily retiring a Government servant is passed. Firstly, the member of the service must have completed 30 years of qualifying service "or" the age of 50 years; secondly, the order must be passed in public interest, and thirdly, three months previous notice in writing shall be given to the government servant concerned or three months pay and allowances in lieu of such notice before the order is passed. The Government has an absolute right to retire the government servant concerned which is not disputed. The premature retirement can be forced on the government servant if he has either completed 30 years of service or has attained 50 years of age. Taking into consideration, minimum age and maximum age for recruitment for IAS cadre, which is 21 years and 28 years respectively, prescribing 50 years of age for compulsory retirement for All India Service Officers is sufficiently long period. Moreover, an order of compulsory retirement implies no stigma nor any suggestion of misbehaviour. It cannot be said to be removal from service nor punishment so as to attract the provisions of Article 311(2) of the Constitution. In the instant case, the petitioner has completed sufficient number of years of service and has been retired on full pensionary benefits and has not suffered any real prejudice. In the result, the submission that Rule 16(3) is arbitrary and invalid must be rejected. AIR 1964 SC 600, AIR 1965 SC 280 - Referred. (1980) 2 SCC 15, AIR 1970 SC 143 - Relied.
All India Services (Death-cum-Retirement Benefits) Rules, 1958 - Rule 16(3) Compulsory Retirement. In public interest, un-communicated remarks can be considered for forming an opinion to retire an officer.
D. B. BHOSALE, J.
( 1 ) THIS writ petition under Article 226 of the constitution of India challenges the judgment and order dated 8-12-1999 rendered by the Central Administrative Tribunal, Mumbai Bench, Mumbai dismissing the Original Application No. 577/98 filed by the petitioner challenging the order of compulsory retirement issued on 10-6-1998. The said action against the petitioner was taken under Rule 16 (3) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 (for short, "the Rules") in public interest on his attaining 50 years of age.
( 2 ) THE petitioner was an IAS officer of 1967 batch allotted to Maharashtra cadre. He completed 30 years of service on 17-7-1997. He had not been given selection Grade and Super Time Scale. He was awarded minor punishment in 1975-1976. A departmental enquiry was instituted against him in 1988 at the instance of his estranged wife which ended in exoneration of the petitioner. It appears that on several occasions between 1967-68 and 1994-95 adverse remarks were made in his confidential reports. In 1987-88, in response to his representation against the adverse remarks entered in that year, the adverse remarks were expunged. In 1995 the service record and other material of 13 officers including the petitioner was placed before the High Level Committee consisting of the Chief Secretary and the two Addl. Chief Secretaries, The said committee reviewed the cases of all 13 officers. Two officers, viz. the petitioner and one Mr. D. B. S. Sohal, were found to be unsuitable to continue in service and hence on the recommendation of the committee the impugned order of compulsory retirement under Rule 16 (3) of the Rules was approved by the committee of the Cabinet. The order of compulsory retirement was served on the petitioner on 30-6-1998 and he was relieved of his post on that day. This order of compulsory retirement was the subject matter of the said original application.
( 3 ) WE heard the learned counsel for the parties for quite some time, perused the impugned order and other material placed before us as also the judgments relied upon by the parties in support of their contentions. Mr. Shivramkrishnan, learned counsel for the petitioner, challenged the impugned order on the following grounds. Firstly, Rule 16 (3) is totally arbitrary and invalid since it does not qualify the minimum period of service and also violates the principles of natural justice. The said rule empowers the Central Government to compulsorily retire an officer in public interest who has completed 30 years of qualifying service or when he attains the age of 50 years. It was, therefore, submitted that the officer, who may not be having qualifying service of 30 years at the age of 50, cannot be retired compulsorily at the age of 50 years since it amounts to removal from service which cannot be done without having recourse to Article 311 (2) of the Constitution of India. In short, the rule is invalid since it does not qualify for minimum period of service. In support of this contention, heavy reliance was placed on the judgment of the Apex Court in Motiram Deka vs. General Manager, N. E. Frontier Railway, AIR 1964 SC 600. Secondly, Mr. Shivramkrishnan submitted that in any case uncommunicated adverse remarks cannot be taken into consideration while deciding whether an officer should be retired compulsorily in public interest. It is a clear case of violation of principles of natural justice and, therefore, the order is bad for non-compliance of the requirements of Article 311 (2) of the Constitution of India. The impugned action is also a colourable exercise to avoid departmental enquiry. Lastly, it was submitted that the immediate past record of the petitioner was not considered by the Review Committee which clearly shows that the petitioner had improved his performance, rendered meritorious and unblemished service during last few years and, therefore, the order of compulsory retirement is bad.
