Point of Law : Compulsory retirement from service is not considered to be a punishment.

JUDGMENT :

Heard Mr. T.N. Srinivasan and Mr. N. Baruah, learned counsel for the petitioner. Also heard Mrs. A. Gayan, learned CGC appearing for the respondents.

2. The petitioner therein was compulsorily retired on completion of 30 years of service and upon attaining the age of 55 years. The legality of the orders by which the petitioner was respectively retired, is under challenge in this writ petition filed under Article 226 of the Constitution of India. The petitioner has also prayed to direct the respondent authorities to allow him to continue in service up to the normal age of superannuation, i.e. up to 60 years. It may be mentioned that by virtue of interim order passed in the writ petition, the operation of the impugned order was suspended/ kept in abeyance.

3. In brief, the case of the petitioner is that he was enrolled as Rifleman (General Duty) on 02.07.1986 and was serving in 18 Bn., Assam Rifles. In due course, he was promoted as Havildar (GD). It was not in dispute that the petitioner is medically fit and is in SHAPE-I category. On 14.09.2015, the Commandant 18 Bn., Assam Rifles had issued a show-cause notice to inform the petitioner that the said authority had provisionally come to a conclusion that he was not fit to be retained in Assam Rifles service beyond 30 years of service or on attaining 55 years of age whichever is earlier. The reason assigned therein was that the petitioner was found to be ineffective which seriously questioned his fitness/ competence, unjustified unwillingness for physically assuming the next rank, revealing his reluctance to assume greater responsibility and accountability, which had caused confusion and misguidance amongst subordinates besides road blocking his promotion aspects in the battalion, lackadaisical attitude for which Commandant had arrived at a provisional conclusion that the petitioner was not fit to be retained in the Assam Rifles. In this regard, reference was made to the Central Civil Service (Pension) Rules, 1972 and ROI 1/2004.

4. The learned counsel for the petitioner has meticulously referring to the statements made and documents appended to the writ petition as well as affidavit-in-reply and it was submitted that before issuance of the impugned order of compulsory retirement, the mandatory procedure prescribed under Rule 48 of the Fundamental Rules and Rule 56(j) of the Central Civil Service (Pension) Rules, 1972 [CCS (Pension) Rules for short] was not followed. It was also submitted that while passing the impugned order, the entire service record of the petitioner was not looked into by the Court/ committee constituted for the purpose of determining whether or not to retain his service beyond 30 years. It was further submitted that the respondent authorities had not followed the prescribed procedure and guidelines as laid down in advisory no. I.31019/AR/2015/Adm-III/227 dated 21.08.2015, before issuing the impugned order dated 31.03.2016. It was further submitted that the impugned order was absolutely misleading because it was mention therein that the petitioner was “permitted to retire”, whereas at no point of time, the petitioner had given notice to the respondents of his intention to retire. Accordingly, it was submitted that by the impugned order, it was sought to be projected by the respondents as if the petitioner was being compulsorily retired as per his own request. By referring to an order appended to affidavit-in-reply as Annexure-I, it was submitted that the Brigadier (Personnel) on behalf of Director General, Assam Rifles had arrived at a conclusion that adverse report given by the Commandant 18 Bn., Assam Rifles in respect of 51 Non-commissioned Officers (NCO) was in non-adherence to the policy instructions issued vide ROI 5/1997 and deal with appropriate to review all such ACRs of affected NCOs. Accordingly, the adverse ACRs of 51 NCOs of 18 Bn. A