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

JUDGMENT :

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

2. The petitioner herein 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 27.10.1986 and was serving in 18 Bn., Assam Rifles. In due course, he was promoted as Havildar (GD). It is not in dispute that the petitioner is medically fit and is in SHAPE-I category. On 07.04.2016, the Deputy Commandant 18 Bn., Assam Rifles had issued a W.T. message where the petitioner was ordered to retire w.e.f. 31.10.2016. Thereafter an impugned order dated 05.05.2016 was passed thereby informing the petitioner that he would not be retained in service beyond 30 (thirty) years of service as he had failed to fulfill the criteria laid down in the advisory dated 21.08.2015.

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, 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 constituted for the purpose of determining whether or not to retain the service of the petitioner 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 05.05.2016. 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. Assam Rifles for the year 2014-15 was expunged. It was further submitted that even the petitioner was the victim of uncommunicated adverse remarks in his ACRs. It was further submitted that in order to be promoted to the next higher rank and/ or continuing in service beyond 30 years of service, the petitioner should have got more than “average” in the ACRs for last five years, but the remark of “average” or “below”, though not adverse remarks, but as it remain un-communicated, the petitioner had suffered his compulsory retirement and therefore, the petitioner was made to suf