1. This petition under Article 226 of the Constitution of India is directed against an order passed by the State Government against the petitioner on June 18, 1971 informing him that the Government has decided to retire him prematurely in public interest in view of his attaining the age of 50 years. Under the said order he was advised to retire voluntarily by giving three months' notice in terms of the Bombay Civil Services (Seventh Amendment) Rules of 1971. He was also informed that in the event of his not choosing to retire voluntarily, Government itself would issue necessary order, directing his retirement.
2. This Special Civil Application was filed in this Court on July 19, 1971 and rule was granted on July 26, 1971. During the pendency of this Special Civil Application, another notice dated August 6, 1971 was served on him retiring him from service in public interest. The petitioner made an application soliciting leave to amend the petition so as to challenge also the order dated August 6, 1971. The respondent did not object, and we accordingly granted the leave as the amendment had become necessary due to the subsequent orders. It is really of a formal nature.
3. The petitioner was born on March 31, 1920. He was appointed as Sub-Inspector of Police in Class III service in the erstwhile State of Bombay on or about January 1, 1942. He was promoted as Inspector of Police on March 20, 1957 and as Deputy Superintendent of Police on July 25, 1966. He was then transferred to Poona on or about October 6, 1970 where he has been posted as Assistant Commissioner of Police, which post is equivalent to the Deputy Superintendent of Police in the districts. He claims to have earned 50 to 55 rewards during the period of his service and letters of appreciation from the Collector of Satara, Deputy Inspector Generals of Police, Poona Range and Bombay Range, for having done commendable work. In the year 1958 some adverse remarks were made against him by District Superintendent of Police, Sholapur. However, according to him, the said remarks were not made bona fide as the said District Superintendent of Police thought that the petitioner was going to expose him for his malpractices. He then says that in fact an offence of misappropriation was registered against the District Superintendent of Police by the Anti-Corruption Branch and the petitioner was cited as a witness. He was working as Sub-Divisional Police Officer at Chalisgaon in Jalgaon District. On May 8, 1970, there were communal riots at Jalgaon. The petitioner was suspended from service with effect from June 25, 1970 pending enquiry into his conduct during these riots. However, he was reinstated with effect from September 24, 1970 as the enquiry could not be proceeded with in view of the pendency of Madon Commission, yet the salary of suspension period and the increments earned were not awarded. According to him, he was enjoying sound health and had not taken any long leave during the period of his service on medical grounds. On June 5, 1971, a warning was communicated to him by the Home Department for his failure to verify the correctness of the averments in a certain notice issued under Section 59 of the Bombay Police Act against one Kaniram Sidram Chavan of Malegaon, while the petitioner was working as Sub-Divisional Officer, Sholapur some time in the year 1966. The sum and substance of the grievance of the petitioner is that the compulsory retirement of the petitioner in exercise of the powers under the amended Rule 161(c-1) of the Bombay Civil Services (Seventh Amendment) is not legal inasmuch as he has been discharging his duties satisfactorily without any blemish whatsoever and he does not suffer from any defect in his health. He has also challenged the legality and validity of the said order on several constitutional and legal grounds.
4. On behalf of the State one Mr. Dandekar, Under Secretary to the Government of Maharashtra, has filed an affidavit. The contents of the petitioner's petition have been all denied. In the petition the adverse remarks of the District Superintendent of Police, Sholapur were alleged to be of the year 1958, though at the time of the arguments yesterday, Mr. Singhvi, the learned advocate appearing for the petitioner, stated before us that the year 1958 was a mistake for the year 1968. In the counter affidavit the deponent has disclaimed any knowledge of the said remarks of 1958 and he could not obviously say anything about the 1968 remarks. It is asserted that apart from the said remarks, there were other remarks also recorded in the record sheet of the petitioner and the statement in the petition that there were no other adverse remarks or that his record was clean or satisfactory or was without any blemish was denied. Reference is then made specifically to the adverse remarks conveyed by the Inspector General of Police to him on August 16, 1968, a copy of which is enclosed along with the said affidavit. Reference is also made to four major and two minor punishments awarded to him during the period of his service and also to the petitioner's suspension for his conduct during the communal riots at Jalgaon, as also to the warning conveyed to him on Jun 5, 1971. It is, however, made clear in the counter affidavit that the order of compulsory retirement was not based either on the four major and two minor punishments or on his failure to verify the averments in the notice against Kaniram or on his conduct during the riots at Jalgaon.
5. Before we proceed to examine the contentions of Mr. Singhvi, it is necessary to bear in mind the background against which the impugned order of compulsory retirement is passed. Under Rule 161(a) of the Bombay Civil Services Rules, all Government servants are liable to retire ordinarily on reaching the age of 58, excepting Class IV servants, who are liable to retire at the age of 60. It, however, appears from the Circular dated September 30,1969 and some subsequent Circulars that Government had decided to retire such Government servants even earlier whose record of service and health was unsatisfactory or below average plus. In exercise of the powers possessed by the Government under Article 309 of the Constitution, Rule 161 of the Bombay Civil Services Rules was amended with this object by Notification dated September 21, 1970, The Government proceeded to give effect to the said rule and some of the Government servants so affected had challenged the validity of the amended rule, among others, on the ground that it involved change in the conditions of service, without complying with Section 115(7) of the States Re-organisation Act of 1956 and Section 81(6) of the Bombay Re-organisation Act, 1960. The Government then moved the Central Government for the necessary approval, as required under those enactments, and repealed the Notification dated September 21, 1970 and amended Rule 161 afresh by a fresh Notification dated April 26, 1971. Under the amended rule the Government has assumed absolute power to compulsorily retire some of the Government servants covered by the said amended Rule 161(c-1), if the appropriate authority concerned is satisfied that it is in the public interest to do so. The amended rule did not by itself lay down any criteria for this purpose. This criteria, however, has been laid down in the Circulars indicating that only such public servants are intended to be retired compulsorily whose record of service and health is unsatisfactory or below average plus. Different Review Committees are appointed consisting of Secretaries to the Government to examine the five years' confidential records of the public servants from time to time to determine as to who are so liable to be compulsorily retired. The appropriate authority is guided by the advice of the Review Committee before finally recording the decision. According to the State, the petitioner has been compulsorily retired by the appropriate authority as in its opinion his retirement was in the public interest and this decision was reached after considering the advice of the concerned. Review Committee.
6. Mr. Singhvi contends that the impugned order of compulsory retirement violates the protection afforded to the petitioner under Article 311(2) of the Constitution. This Article prevents the Government, from dismissing, removing or reducing in rank any Government servant without giving him an opportunity to show cause against the proposed action. In the present case, the impugned order by itself does not make any imputation nor does it contemplate dismissing, removing or reducing the rank of the petitioner. It only proceeds to compulsorily retire him indicating that such retirement is, in its opinion, in the public interest. It is by now well settled that compulsory retirement in accordance with the valid rules framed in this behalf does not amount to dismissal, removal or reduction in rank within the meaning of Clause (2) of Article 311 of the Constitution. It will be enough to refer to the judgments of the Supreme Court in (1) Shyam Lal v. The State of Uttar Pradesh and The Union of India : (1954)IILLJ139SC , and (2) The State of Bombay v. Saubhagchand M. Doshi : 1SCR571 . This view has been reiterated in a series of subsequent judgments of the Supreme Court, the latest one being in the case of Batahari Jena v. State, of Orissa : (1971)ILLJ422SC . The reasoning adopted is that the word 'removal' in Article 311 used synonymously with the term 'dismissal' generally implies that the officer is in some manner blameworthy or deficient. There is, however, no such element of charge or imputation directly in the case of compulsory retirement. Secondly, dismissal or removal is a punishment and involves loss of benefit already earned. The officer dismissed or removed does not get pension which he has earned. In the event of compulsory retirement, the officer is entitled to the pension that he has actually earned and there is no diminution of the accrued benefits.
7. In the case of Saubhagchand M. Doshi, supra, the petitioner was compulsorily retired in accordance with Rule 165A of the Bombay Civil Services Rules, as adapted and amended for the State of Saurashtra. Under the adapted rule the Government retained an absolute right to retire, any Government servant, after he has completed twenty-five years qualifying service or 50 years of age, without giving any reason. The right, however, was to be exercised only when it was necessary in the public interest on account of inefficiency or dishonesty. This retirement was challenged on the ground that the said rule violated Article 311(2) of the Constitution, as it enabled the Government to retire compulsorily on the ground of inefficiency without giving any opportunity to show cause. The Supreme Court distinguished the order of compulsory retirement from the order of dismissal and removal in the following words (p. 578):.An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit.
Their Lordships, a little further, observed (p. 578):.Thus, the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying this test, an order under Rule 165A (of Saurashtra State) cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services.
9. While explaining how such retirement even on the ground of misconduct or inefficiency of the Government servant makes a difference to the order of removal and dismissal, their Lordships observed (p. 579):.The fact to be noted is that while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311(2).
It is accordingly held that compulsory retirement as per the Rules, authorising such retirement even on the ground of misconduct or inefficiency without any enquiry, does not violate Article 311(2) of the Constitution. The learned Judges, however, struck a note of 'caution' indicating that even such compulsory retirement may amount to removal within the meaning of Article 311(2) in the following words (p. 579):.It should be added that questions of the above character could arise only when the rules fix both an age of superannuation and an age for compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Article 311(2).
Underlying reasoning behind this approach has got to be traced to the English doctrine of the service tenure being during the pleasure of the Crown, as applied to India, and evolution of the law in India in regard to the protection afforded to the Government servants in modification of this doctrine. It is enough to refer to Shyam Lal's case to show how the said doctrine of pleasure has now been incorporated in Article 310 of the Constitution and how the said doctrine is modified to the extent of the protection afforded to the Government servants under Clause (2) of Article 311 of the Constitution. There is, however, a large area in the administrative field beyond the ring of protection encircled by Sub-clause (2) of Article 311, where the doctrine of pleasure operates subject only to such limitations as may flow from the requirements of rule of law enshrined in other Articles of the Constitution. It is thus clear that the order of compulsory retirement does not become invalid merely because no show cause notice was given and no inquiry was held, though such retirement indirectly deprives such Government servant of the future emoluments and the quantum of pension as also exposes him to the impression that such retirement is due to his record of service being unsatisfactory.
10. It was next argued that retirement, in the facts and circumstances of this case, really amounts to removal within the meaning of Article 311 and hence non-compliance with Article 311(2) is fatal. Reliance was placed on:
(a) pendency of the enquiry as to his conduct in Jalgaon riot;
(b) failure of the State to pay him full salary during the period of his suspension with accrued increments;
(c) warning dates June 5, 1971 as to his acts of omission in regard to notice under Section 59 of the Bombay Police Act; while he was Sub Divisional Officer at Sholapur; and
(d) admitted allegation that his record of service and health was not satisfactory.
Mr. Singhvi contends that lable of retirement against this background is a misnomer and is resorted to deliberately to avoid compliance with the Article 311(2) of the Constitution. In support of his proposition, reliance was placed on the judgment reported in State of U.P. v. Madan Mohan A.I.R. S.C. 1260. In that case the Supreme Court held that where the order of retirement itself contains stigma on the character of the Government servant, the order amounts to removal and such retirement is invalid, if procedure under Article 311(2) is not shown to have been followed. We do not find any substance in this contention in view of the wording of the impugned order which does not refer to any of these facts and does not contain any stigma by itself. Above facts have been disclosed in this Court to meet the case made out in the petition that his record was without blemish. The ratio of the above judgment cannot assist the petitioner. This case was considered subsequently in another case in I.N. Saksena v. State of M.P. : (1976)IILLJ154SC . Reference to the following observations in paras. 6 and 7 at p. 1266 is sufficient to meet Mr. Singhvi's contention:.This Court has consistently held that where the order directing compulsory retirement expressly contains words which cast a stigma on a Government servant, the order is equivalent to an order of removal and action under Article 311 is necessary. But we asked learned Counsel for the appellant to point out any case of this Court where in the absence of any express words in the order itself casting stigma on a Government servant, this Court has held that the order of compulsory retirement amounts to removal. Learned Counsel was unable to refer to any such case. But what he argues is that though the order in question in this case contains no words from which any stigma can be inferred to have been cast on the appellant, we should look to the memorandum, which is referred to in the order and then infer that a stigma was cast on the appellant because the memorandum at the end of Para. 5 says that the power to retire will normally be exercised to weed out unsuitable employees after they attain the age of 55 years. It is urged that we should read those words in the order retiring the appellant from December 31, 1963.
(7) We are not prepared to extend the decisions of this Court on this aspect of the matter in the manner contended for by the appellant. Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Article 311. But where there are no express words in the order itself which would throw any stigma on the Government servant, we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research. Besides, Para. 5 of the memorandum is obviously in two parts. The first part lays down that 'notwithstanding anything contained in the foregoing paragaraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reason'. There is no stigma here. The second part to which the appellant refers is nothing more than a direction from Government to the appointing authority that it will not use the above power except to weed out unsuitable employees after they have attained the age of 55 years. When, therefore, the order in question refers to the memorandum it really refers to the first part of Para. 5 wherein power is given to the appointing authority to retire a Government servant after he attains the age of 55 years on three months' notice without assigning any reason. It may be mentioned that the order assigns no reason. In the circumstances we hold that as the order does not expressly contain any words from which any stigma can be inferred it cannot amount to an order of removal.
11. Reliance on the judgment of the Supreme Court in the case of State of Bihar v. S.B. Mishra : (1970)IILLJ440SC is misconceived as that case is one of reversion and not of compulsory retirement in which case different considerations weigh.
12. It was also faintly contended that the order of retirement in this case amounts to removal within the meaning of Article 311(2) as the minimum period of service prescribed under Rule 161(c-1)(i) is not reasonable. Reliance was placed on the judgments of the Supreme Court in the cases reported in (1) Moti Ram v. N.E. Frontier Railway : (1964)IILLJ467SC , and (2) Gurdev Singh v. State of Punjab : (1965)ILLJ323SC . There is an attempt to prescribe a minimum period of service under the impugned rule at 20 years ordinarily for different categories of servants. Secondly, no Government servant is intended to be retired unless he reaches the age of 50 or 55. It is true that such servant is deprived of the full retirement benefits to which he would have been entitled on running the scheduled course. But any such consequence is implicit in any scheme of compulsory retirement and cannot by itself be said to be fatal. That is what Doshi's case (supra) lays down and that is what is in terms affirmed in para. 36 of the majority judgment of the Supreme Court in Moti Ram's case (supra). The Pepsu Government Rule was struck down in Gurudev Singh's case by the Supreme Court because the minimum period of service prescribed thereunder was only of ten years and that too without reference to the age. The impugned Sub-clause (a) of Rule 161(c-1) secures ordinarily minimum service of 20 years by seeking to retire such Government servant at the age of 50 who could not have been ordinarily more than 30 at the date of his initial appointment. Rule framers appear to have the upper age limits of 25 or 30 in their mind, when they referred in this clause to the upper age limit of 'less than thirtyfive', as, for the majority of such posts, maximum age limits are either 25, 30 or 35 years with some upward relaxation in favour of exempted candidates. Even if upper age limit happens to be 34 in any rare case, such Government servant gets the minimum period of 16 years tenure when he is sought to be retired at the age of 50. Servant covered by Clause (b) also ordinarily gets the minimum tenure of 20 years before he is retired at the age of 55. This cannot be said to be unreasonable. The impugned rule does not suffer from any vice referred to in the two judgments of the Supreme Court. It is pertinent to note that the impugned rule in Doshi's case and even in J.N. Sinha's case (infra) provided for compulsory retirement at the age of 50, The impugned rule in the present case is more beneficial inasmuch as reaching of age of 50 or 55 is not made an alternative condition and Government servant is not made to retire merely on serving the minimum period unless he reaches the age of 50 or 55 excepting where his service is not pensionable.
13. Mr. Singhvi then contends that there was no material on which the petitioner's record of service or health could be held to have been unsatisfactory to warrant his compulsory retirement. It seems from the affidavit of the respondent that the petitioner's confidential service records of five years prior to the date of the decision, viz. July 7, 1970 were scrutinised by the Review Committee at which head of the petitioner's department was also invited. At the request of Mr. Singhvi, Mr. Setalvad, the learned advocate for the respondents, produced a copy of the minutes of the said meeting. It is true that the said minutes do not indicate as to what precise material from the confidential records weighed on the minds of the members of this Review Committee or the appropriate authority. It would certainly have been better if some such indication were available from the minutes or from the final order of the appropriate authority. In the absence thereof it becomes difficult for this Court to have a judicial review of such administrative action. When a citizen approaches this Court complaining that his legal rights have been invaded or that he has been dealt with by the State arbitrarily, capriciously or maliciously, or that there does not exist any material to warrant such an action, this Court is under a constitutional obligation to satisfy itself about the truth of the grievance. This Court cannot be the judge of the correctness or propriety of the action or sufficiency or adequacy of the material. But the Court shall have to satisfy itself that there existed some material and that order is not actuated by any irrelevant consideration, even when the case is outside the purview of Article 311(2), Reference to cases of (1) Union of India v. J.N. Sinha : (1970)IILLJ284SC and (2) Barium Chemicals Ltd. v. Co. Law Board : 1SCR898 will be enough in this context. In cases like these, the burden to indicate that there was some material, obviously is on the State. How this burden is to be discharged must depend on facts of each case. Mr. Singhvi had requested for the production of the confidential records in the Court and Mr. Setalvad asked for time to file an affidavit claiming privilege for the production thereof. It is unnecessary for the purpose of this case to decide the question of the privilege or consider whether production of the confidential record is necessary. The extracts of the adverse remarks communicated to the petitioner on August 16, 1968 and October 7, 1971 by the Inspector General of Police, filed by the State before us, are sufficient to hold that the respondent had material with them on the basis of which the record of service of the petitioner could have been found to be unsatisfactory and the petitioner could have been asked to retire compulsorily in accordance with Rule 161(c-1) and the Circulars of the Government in this behalf. The adverse remarks can conveniently be quoted here:
(1) Easy-going and slack. Excitable temperamentally. Has lost grip over crime and criminals.
(2) A shirker. Untidy.
Mr. Singhvi contended that the officer passing these remarks was actuated by malice and that there was some criminal case against the said officer and the petitioner was appearing as witness against him. There is absolutely no material on the record to support this grave allegation and the same is denied by the respondent. The calibre of the officer passing such remarks also must be known to the Members of the Committee and appropriate authority who happened in this case to be officers of higher standing.
14. It was contended that, at any rate, unsatisfactory health cannot be a matter of subjective opinion of any superior officer and the State Government could have checked the health of the petitioner by referring him to any Medical Officer. This assumes that the appropriate authority must find both, the record of service and the health to be unsatisfactory before the Government servant can be compulsorily retired. The words 'record of work and health' really in the context mean 'record of work or health'. This phraseology is not employed in the Rules but is only referred in the Circulars indicating guide lines for the members of the Review Committee and the appropriate authorities. While in some of the letters words used are unsatisfactory record of service and health, in others reference is made to the unsatisfactory record or health. Even otherwise mere health of a Government servant can have no relevance in such matters excepting when it affects directly or indirectly his record of service. If the record of service itself is found to be unsatisfactory, it is unnecessary to further find out whether his health also is unsatisfactory or not. No mala fides are alleged against any Member of the Review Committee or the appropriate authority. There is no material to infer that the order is passed capriciously or arbitrarily. In fact, the machinery evolved under the Circulars and the length of the years of which the record is scrutinised goes a long way to eliminate the possibility of any arbitrary or capricious order.
15. Mr. Singhvi then contends that the maintenance of the confidential record itself is not warranted by any provision of law and as such reliance thereon by the Review Committee or the appropriate authority for such a drastic action militates against the rule of law. It is true that such remarks are made by the superiors ordinarily without any knowledge of such Government servant. Such remarks are not conveyed to him unless the same are considered to be adverse and its communication is considered necessary for his improvement. The Government servant has no opportunity to demonstrate that the remarks are wrong or false or made dishonestly. It is, therefore, urged that tenure of no Government servant can be safe and secure, if such decision is founded on such one sided subjective remarks, correctness of which was never put to test. This submission is attractive as some element of unfairness is involved on the face of it. It is, however, not possible to ignore that the relation between the State and the public servant essentially is that of a master and servant. Any master in the ordinary course of the employment has to make some estimate of his servant's calibre and he is guided by this estimate while exploiting servant's talents for his own end. Such estimate is inevitably subjective and is bound to operate effectively in his dealing with his servants, excepting in fields where the servant is statutorily protected against its adverse effects. Where a master is an individual or a small group of individuals, even a mental note of the calibre, capacity, aptitude, abilities, talents, habits and the character, etc. of the servant can meet such requirement. Where, however, the master happens to be a vast institution like the Government and a servant has to work under a floating army of several superiors, such estimate, so essential for the functioning of the administrative machinery and putting the talents of the servant to maximum possible use, cannot be made available unless written record is maintained by the superiors under whom he has occasion to work. Maintenance of such records ordinarily is regulated by administrative rules or instructions. Such record is maintained regularly and in the ordinary course of duties by the superiors in the prescribed form. Copies are required to be gent to the Head of the Department who is also required to verify such remarks and require the author of the remarks to reconsider the same if the Head of the Department thinks it so necessary. This itself tends to ensure the truthfulness of the remarks. It is true that such estimate is subjective and one sided and is open to the infirmities implicit in such procedure. It is also true that possibility of some dishonest superior abusing his position and damaging the record of such servant maliciously cannot be totally ruled out. But further guarantee of the genuineness is afforded by the record being maintained lay successive superiors from time to time. It is inconceivable that all the successive superiors of the same servant would commit error or continue to bear malice against him and make unfavourable remarks without any rhyme or reason. Thus the over-all picture of such record maintained during the long period of service by several superiors is more likely than not to reflect the real personality of such servant. It is true that such records are kept secret and the servant cannot have any access to it, excepting when adverse remarks are communicated. But this is essential for two reasons. This enables the superior to express freely and fearlessly. Secondly, this secrecy avoids embarrassment to the servant himself while dealing with his colleagues or juniors. This record is primarily and predominantly intended for keeping the Government informed of the required material about the servant, for deciding how best to exploit his talents for the administration of the State, though incidentally it may affect the servant adversely. It is this record which enables the Government, like any other master, to make up its mind while allotting work, places and promotions and in various other administrative fields. It is difficult to conceive of any administration functioning without such record. Maintenance of such record is not contrary to any provision of law. On the other hand, it is required to be maintained out of sheer need in public interest. It is also an ordinary incident of the relationship of master and servant. Whatever unfairness is involved in allowing the remarks to be made behind the back of such servant, is out-weighed by the mode in which it is maintained and the public interest as a whole, which can ill-afford to dispense with such record. This is the only way to strike a balance between the rights of the citizen and the public interest.
16. Mr. Singhvi, however, contends that such order is still liable to be struck down as being violative of the principles of natural justice, as the remarks in the confidential records are relied on even for such an action of far-reaching consequences without giving any opportunity to the petitioner to demonstrate to the contrary. He contends that the petitioner should not have been virtually condemned unheard when the order deprives him of the future emoluments in service and also the quantum of the pension which he could have claimed in the event of his continuing in service till the normal age of superannuation. Reliance was placed on the judgment of the Supreme Court in A.K. Kraipah v. Union of India : 1SCR457 and Anr. judgment in State of Orissa v. Binapani Dei A.I.R.  S.C. 1267 It is sufficient, in answer, to refer to the judgment of the Supreme Court in J.N. Sinha's case. J.N. Sinha's case lays down that principles of natural justice involving right of being heard before the adverse order is passed are excluded by Rules authorising such retirement. Fundamental Rule 56, with which the Supreme Court was dealing in that case, is identically worded en Rule 161(c-1) of the Bombay Civil Services Rules. It is true that pension is a property as held in the case of Deokinandan Prasad v. State of Bihar : (1971)ILLJ557SC , to which our attention was drawn by Mr. Singhvi. But such deprivation of future emoluments or larger pension is not considered to be in any manner penal in Sham Lal's and Doshi's cases (supra) to warrant any hearing, as, such action is considered by the Supreme Court to be within the domain of the doctrine of pleasure and inquiry as to the satisfactory nature of work with reference to the confidential record is made with the limited purpose of enabling the Government to make up its mind on the question of retirement. Even in a democracy, administrative matters are required to be handled administratively in a vast field, and cases can be imagined where the process of giving a hearing, before the proposed action, may defeat the very purpose of such action and the mischief sought to be avoided shall have done its full effect even before such hearing is completed. Principles of natural justice have many facets and broadly speaking it also includes acting fairly, honestly on relevant considerations. Ordinarily, however, it is equated with the right of not being condemned unheard. J.N. Sinha's ease indicates that such principles in their limited ordinary sense are inapplicable to the compulsory retirement. Judgment in Binapani Dei's case stands on a different footing inasmuch as the State had in that case disturbed the existing record with regard to the age of Dr. Binapani with a view to compulsorily retire him.
17. Mr. Singhvi then contends that the impugned order is also bad as he is wrongly assumed to have been governed by Sub-clause (a) of Clause (c-1)(i) of Rule 161 (as amended) though in fact Sub-clause (b) applies to him. The Clause (c-1)(i) reads as follows:
(c-1). Notwithstanding anything contained in Clauses (a) and (b) of this rule, the appropriate authority, if it is of the opinion that it is in the public interest so to do, by giving notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, have the absolute right to retire,-
(i) any Gazetted Government servant under the rule making control of the State Government,-
(a) if he was initially recruited to a post for which the upper age limit for recruitment was less than thirty-five years, after he has attained the age of fifty years, and
(b) in any other case, after he has attained the age of fifty five years,;
Admittedly the petitioner had completed 50 years and few months of his age on July 7, 1970 and was not 55 on the date when the Review Committee recommended his retirement or even when the impugned order dated June 18, 1971 is passed. He was initially appointed to the post of Police Sub-Inspector for which maximum age limit is 25. He was holding the post of the Deputy Superintendent of Police since June 25, 1966 for which admittedly no upper age limit is fixed. So also no upper age limit is fixed for the post of Police Inspector to which he was admittedly promoted with effect from October 29, 1964. Posts of Inspector of Police and Deputy Superintendent of Police are gazetted posts and Clause (i) of Rule 161(c-1) applies to them. Therefore, it is contended that the 'post' means either the post held on the date of retirement or any Gazetted post to which the petitioner was first promoted. The petitioner having been already recruited by promotion to such Gazetted post for which no 'upper age limit is fixed', his case, according to Mr. Singhvi, cannot fall under Sub-clause (a) but his case is one of 'any other case' covered by Sub-clause (b) and, therefore, he cannot be retired till he attains the age of 55, Answer to this contention depends on the true interpretation of the words 'initially recruited to a post for which upper age limit for recruitment was less than thirty-five years' occurring in Sub-clause (a). Sub-clause (a) will apply if this clause is construed to mean the petitioner's initial appointment to the post of Police Sub-Inspector for which admittedly upper age limit was and even now is 25 years. The words 'a post' instead of 'the post' if read with Clause (i) prima facie militate against its reference being to the Gazetted post held on the date of retirement. It can have also no reference to any other Gazetted post to which he might have been promoted earlier. In that case, the word 'initially' would become redundant. Now, it is true that the word 'recruitment' covers filling of post by direct appointments as well as by promotions. But the words 'initially recruited' in the context is suggestive of the reference to the first appointment and not to the first promotion to any of the Gazetted posts to which this Clause (i) is intended to apply. The meaning of the word 'recruited' seems to be controlled and qualified by the words 'initially' and 'a post'. Both the words appear to us meaningful and its combined effect appears to us, in the context, to be of some importance. Ordinarily, 'a post' could have meant any of the Gazetted posts and 'intially recruited' by themselves could have been construed also to mean initially promoted to any of the Gazetted posts. But read together 'a post' is suggestive of any post in hierarchy of posts in the particular line from the bottom to the top and 'initial recruitment' against the background is suggestive of the initial direct appointment to such post. The words 'for which the upper age limit for recruitment was less than thirty-five years' also go to shed light on the true intended connotation and meaning of the words 'was initially recruited to a post', Paragraph 14 of the counter affidavit filed on behalf of the State shows that for the majority of posts, maximum age limits are either 25, 30 or 35. There is some relaxation of this limit in the case of backward class candidates. It is unnecessary to refer to a few posts, upper age limit for the initial recruitment for which may vary between 30 to 35, in which case minimum tenure gets reduced between 19 to 16 years. Rule-makers seem to have the upper age limits of 25 and 30 in their minds while drafting this rule. Governing idea in employing the phraseology seems to be to ensure minimum tenure of service with attendant benefits before the Government servant is compulsorily retired on reaching the age of 50. This object could have been secured only by intending reference to upper age limit for the post to which he was initially appointed and not to the age limit of any post to which he could have been subsequently promoted. The Government servant initially appointed at the age of 30 or earlier is contemplated to retire at the age of 50 ensuring for him the minimum service of 20 years. Even in a few cases where upper age limit may vary between 31 to 34, minimum service tenure between 19 to 16 years is sought to be ensured. In Moti Ram and Gurudev Singh's cases (supra) the Supreme Court had already hinted that any rule providing for compulsory retirement without providing for minimum and reasonable security for service was liable to be struck down. All legislative bodies are presumed to know the law laid down by the Supreme Court. The provision in Sub-clause (a) seems to have been intended to eliminate this vice. Any other interpretation of this clause, though loosely worded, would render several words meaningless and redundant and defeat the object of the clause itself.
18. Now, it is true that posts of Police Sub-Inspectors can be filled by promotions of the Head Constables and for such promotion upper age limit is 35 under Rule 56(6). The said age limit is higher than the one fixed for the post filled in by the channel of direct appointment. Recruitment does not exclude appointment by promotion. Mr. Singhvi, therefore, contends that 'upper age limit' can have reference only to higher of the two limits of 25 and 35 fixed for two different channels by direct appointment and promotion, and upper age limit for the post of Police Sub-Inspector thus being 35 and not 'less than thirty-five years' envisaged under this Sub-clause (a), Government servants initially appointed to the posts of Police Sub-Inspector shall have to be excluded from this clause and should be deemed to have been covered by Clause (6). This contention is untenable. As discussed earlier, the word 'recruited' in the context can only mean direct appointment and not by promotion. Age limits prescribed for promotions are wholly irrelevant for the interpretation of this clause.
19. It is true that age limit for the direct appointment for the backward class candidates and some other candidates is 30. This age limit is still less than 35 and does not affect the position. Even if there are higher age limits for exceptional cases, that by itself cannot make any difference to the interpretation of Clause (a). The higher limits are fixed by way of exceptions with a view to give concession to candidates belonging to such classes. Clause (a) shall have to be interpreted by reference to age limits prescribed for the post generally and not by reference to exceptions. When Government servant concerned happens to belong to such excepted category, his case may not fall under Sub-clause (i)(a), upper age limit for the said post for the exempted class being not 'less than thirty-five years'.
20. We, accordingly, hold that 'initially recruited to a post' means initially appointed to the post directly. The petitioner initially having been directly appointed to the post of Police Sub-Inspector and, upper age limit for the said post being 25, i.e. less than thirty-five years, his case has rightly been assumed to have been covered by Clause (a).
21. It was also faintly suggested that Rule 56(5)(b) of the Bombay Police Manual, 1959, Volume I, refers not to any upper age limit as such, but prescribes 25 years as, being the maximum age limit. We have not been able to see how the use of the word 'maximum' in this clause makes any difference. 25 years shall be the fixed upper age limit for the direct recruitment to the post of the Police Sub-Inspector, excepting the few cases for which upper age limit is made 'reliable' to 30.
22. It is next contended that the Bombay Civil Services (7th Amendment) Rules, 1971 covering Rule 161(c-1) is invalid inasmuch as the previous approval of the Central Government is not duly obtained as required under Section 115(7) of the States Reorganisation Act, 1956, and Section 81(6) of the Bombay Reorganisation Act, 1960. It is not in dispute that the petitioner is one of the allocated Government servants within the meaning of these sections. It is true that Rule 161(c-1), as amended by Notification dated April 26, 1971, does not appear to have been placed for approval before the Central Government. Nor is there any indication in the record to suggest that draft of the said amendment as a whole was ever placed before the Central Government for approval. There is, however, nothing in these two sections to warrant the contention that previous approval of the Central Government for the precise draft of such Rules is obligatory. All that the said sections lay down is that conditions of service of the allocated Government servants should not be changed without the approval of the Central Government. If, therefore, the basic proposals involving the change in the conditions of service are approved by the Central Government, the Rules incorporating such changes cannot be said to be invalid merely because approval for the rules so framed was not in terms sought from the Central Government. Sum and substance of the impugned amended rule is the assumption of absolute power by the Government for the compulsory retirement of the public servant reaching ages of 50 or 55, when the same appears to be necessary to the State Government in public interest. Proposals involving the above change in the conditions of service were conveyed to the Central Government by the letter dated October 7, 1969 soliciting its approval under Section 115(7) of the States Reorganisation Act, and the Central Government did convey its approval by its letter dated March 16, 1970, after which Rule 161 was amended incorporating the above proposals by a Notification dated September 21, 1970. However, some of the Government servants, who were sought to be retired, challenged the validity of the Rules for lack of the approval of the Central Government under Section 81(6) of the Bombay Reorganisation Act, 1960. As some of the petitions were admitted in this Court on the strength of such challenge, the State Government moved the Central Government again by a letter dated February 3, 1970 soliciting its approval also under Section 81(6) of the Bombay Reorganisation Act, 1960. The Central Government accorded its approval afresh on February 6, 1971. We are not by any means satisfied that such fresh approval was necessary merely because in the earlier sanction dated March 16, 1970 reference to Section 81(6) was not in terms made. However, the said objection cannot now survive, when such approval under Section 81(6) of the Bombay Reorganisation Act also has now been accorded to the proposed change in the conditions of service of the allocated Government servants within the meaning of these two sections.
23. Mr. Singhvi, however, still contends that the letters of the State Government dated October 7, 1969 or February 8, 1971 do not refer to the intention of the Government to assume absolute powers to compulsorily retire the Government servants, when it is found to be in the public interest. The contention is devoid of any substance. The State Government had enclosed with its letter dated February 3, 1971 a copy of the Notification dated September 21, 1970 when approval of the Central Government was afresh solicited. It is not disputed that the said Notification contained substantially the same rules which have now been enforced under the Notification dated April 26, 1971. Approval of the Central Government dated February 6, 1971 is virtually the approval for the amendment of the said rule as incorporated in the above Notification dated September 21, 1970, which in terms refers to assumption of the absolute powers to retire Government servants compulsorily when found so to be necessary in the public interest. It needs only be added that the letter of October 7, 1969 gives an indication that the Government servants are contemplated to be compulsorily retired at the ages of 50 and 55 only in cases where their record of service and health is found to be unsatisfactory or below average plus.
Mr. Singhvi then contends that the Bombay Civil Services (7th Amendment) Rules, 1971, are ultra vires of the powers of the State Government as the provisions thereof are violative of the guarantee afforded to the citizens under Articles 14 and 16 of the Constitution. Challenges under Articles 14 and 16 of the Constitution to the corresponding Rules of the Mysore Civil Services Rules, 1958, were repelled by the Supreme Court in the judgment reported in Shivacharana v. State of Mysore : (1967)IILLJ246SC . It was found that the point was concluded, 'by a long series of decisions' of the said Court. (See para. 5 of the said judgment). Observation to the same effect is to be found in another judgment of the Supreme Court in J.N. Sinha's case (supra). Corresponding Rules of the Bombay Municipal Corporation were unsuccessfully challenged before a Division Bench of this Court (Chandrachud and Malvankar JJ.) the judgment of which is reported in Municipal Gorpn. v. Dethe (1970) 73 Bom. L.R. 733. Mr. Singhvi, however, contends that the points that he proposes to raise are not covered by either of these judgments. His contention is that the classification of the Gazetted Government servants for such compulsory retirement between Clause (a) and (b) of Sub-rule (i) of the amended Clause (c-1) is not based on any rational basis and such classification is not relevant to the object with which the scheme of compulsory retirement is introduced under these amended Rules. Now, it is true that Gazetted Government servants covered by Clause (a) are liable to be retired at the age of 50 years, while such servants covered by Clause (b) are liable to be retired at the age of 55 years. It is also true that this differential treatment is based on the upper age limit fixed for the posts to which they were initially appointed. It is, however, difficult to hold that there is no rational basis for this classification or that the said basis is not germane to the object with which such servants are sought to be retired compulsorily. As discussed in details earlier, the governing object underlying the scheme of Clauses (a) and (b) is ordinarily to ensure a minimum tenure of service of 20 years before such servants are compulsorily retired. We have already referred to the caution administered by the Supreme Court in the case of Doshi as also in the case of Moti Ram and Gurdev Singh in which the Supreme Court has adverted to the necessity of ensuring some minimum tenure of service for the Government servants without which the compulsory retirement is liable to be treated as a removal from service within the meaning of Article 311(2) of the Constitution. Thus if these two clauses seek to ensure minimum period of service tenure for the Government servant, the basis of the classification introduced for this purpose cannot be said to be irrational nor can this criteria be said to have no relevance and relation to the scheme of compulsory retirement. It is true that some of the Government servants can claim to remain in service under Clause (6), even if their service record is not satisfactory, merely because the upper age limit for the post to which they were initially recruited did not happen to be less than 85 years. But no classification can be scientifically and logically that perfect. The classification introduced in Clauses (a) and (b), therefore, cannot be said to have been hit by Articles 14 and 16 of the Constitution.
24. Mr. Singhvi also contends that the Government servants holding Class III posts and Class IV posts are placed in an advantageous position compared to the Gazetted servants covered by Clause (i) and if the criteria for compulsory retirement is 'unsatisfactory record of work and health', such classification is wholly irrelevant and unconnected with the object with which the scheme is introduced. The contention is that if compulsory retirement of a Government servant is found to be in the public interest, when record of service and health is unsatisfactory, all such Government servants should be compulsory retired without regard to whether they hold Class I, II, III or Class IV posts and without regard to their age. It is not possible to accept this contention. As already discussed, even the scheme of compulsory retirement is required to be reasonable and rational and the citizens entering into Government service are also entitled to the security of some minimum period of service. While introducing the scheme of compulsory retirement, the kind of work that the Government servants are required to perform also has got to be taken into account. Utility of a Government servant required to perform supervisory and brain work is likely in some cases to be impaired at an earlier age than the servants who are required to perform only clerical job. Similarly, utility of the menial servants involving no initiative or drive is not likely to be impaired at an early age compared to the servants, who are required to perform the clerical job. It is impossible to hold that these considerations are wholly irrelevant to the scheme of compulsory retirement. The different treatment, therefore, contemplated to be given to the Gazetted Government servants on the one hand and Class III and Class IV Government servants on the other hand, as also Class III Government servants on the one hand and Class IV Government servants on the other hand cannot be said to be irrational or irrelevant or unconnected with the object with which Government servants are contemplated to be retired compulsorily. It is pertinent to note that such classification of the Government servants was already in existence for years together and is not the creature of the impugned rule. The rule only recognises the same while fixing different ages of retirement for such each class.
25. Mr. Singhvi then contends that Rule 165A of the Bombay Civil Services Rules also deals with compulsory retirement from service. The amended Rule 161(c-1) or any other rule in the said Rules does not prescribe any guide lines as to in which contingencies Government can resort to Rule 161(c-1) and under which contingencies resort can be made to Rule 165A. Mr. Singhvi, therefore, contends that the rule confers unbridled and unfettered powers on the Government to pick and choose between servants and servants and arbitrarily compulsorily retire one under Rule 165A while apply the scheme of Rule 161(c-1) to some other Government servant according to its own sweet will and whim. Now, Rule 165A is to the following effect :
A competent authority may remove any Government servant subject to these rules from Government service, or may require him to retire from it, on the ground of misconduct, insolvency or inefficiency:
Provided that, before any such order is issued, the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed.
It is not possible to hold that Rule 161(c-1) and Rule 165A cover the same field. Rule 161(c-1) can be resorted to only when the minimum period of service is completed and the Government servant reaches the age of 50 and 53. Rule 165A, on the other hand, does not contemplate the retirement by any reference to age or minimum period of service. Rule 165A contemplates compulsory retirement on the grounds of misconduct, insolvency or inefficiency, while Rule 161(c-1) compulsorily retires a Government servant, only when it is found to be in the public interest, though decision as to the public interest is to be guided by ascertaining the record of service of the Government servant concerned. Compulsory retirement on the ground of misconduct and insolvency is wholly outside the purview of Rule 161(c-1). The ground of inefficiency, however, can be said to have been covered by the criteria of 'unsatisfactory record of service' prescribed by Circulars, for retirement under Rule 161(c-1). But the words 'unsatisfactory record' cover something far more than 'inefficiency'. Thus these two Rules cannot be said to be covering the same fields and such question of picking and choosing arbitrarily really cannot arise. Unsatisfactory record only furnishes a motive under Rule 161(c-1) while inefficiency, etc. is the foundation for action under Rule 165A. Therefore, compulsory retirement under Rule 165A contemplates inquiry under procedure under Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules, because ordinarily such compulsory retirement amounts to removal within the meaning of Note 2 of the said Rule 165A. As discussed earlier, compulsory retirement under Rule 161(c-1) does not amount to removal at all. The grievance of arbitrary choice is more imaginary than real as the question of arbitrarily choosing one of the Rules for compulsory retirement cannot conceivably arise. Therefore, the contention of Rule 161(c-1) being violative of Articles 14 and 16 fails.
26. It was faintly argued that depriving the petitioner of future larger pension affects his fundamental rights under Article 19(1)(f), as right to pension is right to property. The contention is too far fetched. Claim to larger pension depends on longer service. No citizen can claim to remain in service otherwise than as per Rules. If larger pension is lost on retirement as per valid Rules, no grievance of violation of right under Article 19(1)(f) can be heard. Such rule is reasonable restriction in the interest of public at large.
27. It is also urged that retirement could have been ordered only 'before or about the time' he attained the age of 50 and not after his crossing the age of 50. He alternatively contends that the petitioner should be deemed to have been cleared for continuance in service beyond the age of 50. Reliance is placed on Clauses (A) and (B) of the Circular dated December 16, 1970, to urge that the compulsory retirement is invalid. We do not find any substance in this contention. We have already quoted Sub-clauses (a) and (b) of Clause (1) of Rule 161(c-1). The Rule contemplates retirement after the Government servant 'has 'attained the age of fifty years.' The Circulars issued by the Government are, no doubt, binding on them. But while interpreting the Rules language of the Circulars always must yield to the Rules framed under Article 309 of the Constitution. This apart, retirement 'about the time of attaining the age of fifty' is ordinarily inconceivable, as the prior procedure may not necessarily co-terminate with the expiry of 40 years of the Government servant's age. Reliance on Clause (B) of the Circular is wholly unwarranted. A Government servant can be said to have been cleared for continuance only 'after considering the recommendations of the Special Review Committee'. In the present case' the order of compulsory retirement has been passed immediately after the Review Committee had so recommended. The occasion to continue in service after the recommendation of the Review Committee had never arisen.
28. Lastly, it was contended that it is the Review Committee, which has decided to retire the petitioner, though under the Rules the power of compulsory retirement is vested in the appropriate authority defined in Clause (1) of the Explanation to Rule 161(c-1). Reliance was placed on the judgments (1) of the Allahabad High Court in Nanak Saran v. State of U.P.  L I.C. 508, and (2) of the Rajasthan High Court in the case of Sripal Jain v. I.G.P., Rajasthan  11 Raj. 536. These judgments lay down that the Rules should be strictly construed. There cannot be any quarrel with the proposition laid down in these judgments. The letter dated June 18, 1971 compulsorily retiring the petitioner shows that the decision to retire him was taken by the Government and was conveyed to him by the Section Officer of the Home Department. Contents of para. 20 of the affidavit in reply show that the Government decided to retire him after considering the recommendations of the Review Committee. It is not understandable how this procedure can be said to be defective. This is not a case where the Government has yielded its judgment to the decision of some other body. Delegation of administrative functions to the Review Committee for examining the record of the petitioner cannot be said to be legally wrong inasmuch as, such delegation of work in any administrative function is inevitable. The only relevant question is as to whose decision it is which affects the retirement of the petitioner and on the material placed before us, it is not possible to say that it was not the decision of the Government or that Government is not the appropriate authority for the purposes of the petitioner.
29. To sum up:
(1). The Government does not violate Article 311(2) of the Constitution by compulsorily retiring any Government servant without giving him show cause notice, as such retirement as per Rules in this behalf does not amount to dismissal, removal or reduction in rank.
(2). It does not amount to removal and attract Article 311(2), merely because his unsatisfactory record of service happens to be the cause or motive in terms of such Rule when the retirement itself cannot be said to have been founded on such record. See The State of Bombay v. Saubhagchand M. Doshi (at p. 579).
(3). It does not amount to removal within the meaning of Article 311(2) on the ground that Rules do not provide for any reasonable minimum period of service. Impugned Rule ensures 20 years minimum service before compulsory retirement which cannot be said to be unreasonable.
(4). Even so, such order is liable to be struck down, if it is shown to be mala fide, arbitrary, capricious or passed without any material or on extraneous material. In the event of the grievance of there being no material, the burden to indicate the nature of the material is on the State. In this cane material is indicated by reference to two adverse remarks. Order, therefore, is valid.
(5). Maintenance of confidential record of the Government servant is not prohibited by any law. Its maintenance is necessary in public interest, and it is an ordinary incidence of relationship of master and servant.
(6). Principles of natural justice involving the right of being heard are excluded by the Rule and are not applicable to retirement orders passed in exercise of the powers covered by the domain of the doctrine of pleasure.
(7). Petitioner's case is covered by Sub-clause (a) of Clause (i) of Rule 161(c-1) and not by Sub-Clause (b) thereof, as ho was initially appointed to a post, upper age limit for which is 25, i.e. less than 35 years.
(8). Rule 161(c-1) is not invalid because in its final form the same was not approved by the Central Government as required under Section 115(7) of the States Reorganisation Act or Section 81(6) of the Bombay Reorganisation Act. Proposals involving change in the service conditions of the allocated Government servants were duly approved by the Central Government before April 26, 1971.
(9). The Rule does not violate Articles 14 and 16 of the Constitution because classification of Gazetted Government servants by reference to the upper age limit fixed for their direct appointment is aimed at ensuring minimum service of 20 years and fixing of higher age for class III and Class IV Government servants is based on the nature of work they are required to perform. No new classification as such is introduced. As Rules 161(c-1) and 165A do not occupy the same field, question of there being no guide lines to pick and choose does not arise.
(10). There is nothing in the rule to suggest that the retirement date must coincide with date of reaching 50. Mere crossing this age does not result in his clearance for continuing in service up to 55.
(11). There is nothing on the record to militate against averment in the affidavit of the respondents that decision to retire was reached by the appropriate authority.
The petition accordingly fails. Rule is discharged.
In the circumstances of this case, there will be no order as to costs.