1. In pursuance of a notice dated May 12, 1967, purporting to have been issued in exercise of the powers conferred by Clause (j). of Rule 56 of the Fundamental Rules, the petitioner, a permanent Director in the Central Water and Power Commission (Power Wing) New Delhi, was retired from service with effect from August, 15, 1967. It is this retirement which has been challenged by the petitioner on two main grounds, namely, (1) that Fundamental Rule 56 (j) was ultra virus Clause (2) of Article 311 and Articles 14 and 16 of the Constitution of India and (2) that the order of retirement was mala fide and without application of mind to the relevant circumstances o the case.
2. The petitioner was serving as an Electrical Engineer in the Simla Electricity Undertaking until 1949. On September, 7, 1949, he was selected by the Union Public Service Commission for the Class I (Senior Scale) post of a Project Officer in the Central Electricity Commission and was confirmed and became permanent on October 6, 1950. In 1950-51 the Central Electricity Commission was redesignated as the Central Water and Power Commission (Power Wing) and the post of Project Officer was redesignated as Deputy Director, On March 26, 1955, the petitioner became a Director after having been given two promotions and ho was confirmed as a permanent Director in April, 1963 with effect from August 5, 1960. In his petition, the petitioner has admitted that in respect of his performance in the years 19C4 and 1965, two adverse entries were made in the Annual Confidential Reports. In the affidavit in opposition filed on behalf of the respondents, it was stated that adverse entries were recorded in the Annual Confidential Reports of the petitioner for the years 1955, 1958, 1959, 1960 and 1962 also and these were communicated to the petitioner from time to time. Making old these adverse entries between 1955 and 1962 has nto been denied by the petitioner in his affidavit in rejoinder. But his contention is that by reason of his confirmation as permanent Director with effect from August 5, 1960, 'these adverse entries had been found as false by the Departmental Promotion Committee'. I may only state that with his affidavit in rejoinder, the petitioner has filed a statement (Annexure 'M') quoting these adverse entries.
3. It appears that the Departmental Promotion Committee, on May 30, 1965, found the petitioner unfit for promotion and the complaint of the petitioner is that the adverse entry made for the year 1964 was placed before the Departmental Promotion Committee even before it has been communicated to the petitioner in September, 1965. After receiving the communication in respect of the adverse entry for the year 1964, the petitioner asked for particulars of specific incidents, by his letter dated October 26, 1965. Particulars were nto supplied and, thereforee, the petitioner filed Civil Writ No. 608-D of 1966 in the Circuit Bench of the Punjab High Court on August 5, 1966 for quashing the aforesaid adverse entry. After this writ had been filed, the adverse entry for the year 1965 was communicated to the petitioner and because the petitioner was aggrieved by this adverse entry also, he filed Civil Writ No. 607-D of 1966 in the Circuit Bench of the Punjab High Court on August 5, 1966. It was during the pendency of these two writs that the impugned notice dated May 12, 1967, retiring the petitioner was issued and Civil Writ No. 525 of 1967 was filed in this Court challenging the petitioners retirement. These three writs had come up for hearing before us on October 26, 1967. For the reasons stated in the order of that date Civil Writ No. 525 of 1967 was dismissed as withdrawn with liberty to file a fresh writ petition and it was then that the present writ petition was filed.
4. The notice (Annexure 'A') dated May 12, 1967 states :--
'No. 2/4/66-Adm. I
Government of India Ministry of Irrigation and Power.
New Delhi, the 12th May, 1967.
Whereas the President is of the opinion that it is in the public interest so to do :
Now, thereforee, in exercise of the powers conferred by Clause (i) of Rule 56 of the Fundamental Rules, the President hereby gives notice to Shri R. L. Butail, a permanent Director in the Central Water and Power Commission (Power Wing), New Delhi, that he shall retire from service with effect from the date of expiry of three months from the date of the service of this notice on him or with effect from the forenoon of the 15th August, 1967, whichever is later.
Sd/- K. G. R. Iyer,
Joint Secretary to the Govt. of India.
Shri R. L. Butail
Central Water and Power Commission,
(Power Wing), New Delhi'.
This notice was received by the petitioner on the same date. It has been issued in exercise of the powers conferred by Clause (j) of Rule 56 of the Fundamental Rules. It is necessary to set out the necessary clauses of this rule and these clauses are:--
'56 (a) Except as otherwise provided in this rule, every Government servant shall retire on the day he attains the age of fifty-eight years, (d) A Government servant to whom Clause (a) applies ........ may be granted extension of service after he attains the age of fifty-eight years with the sanction of the appropriate authority if such extension is in the public interest and the grounds thereforee are recorded in writing:
Provided that no extension under this clause shall be granted beyond the age of sixty years except in very special circumstances.
(j) Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of fifty-five years by giving him notice of nto less than three months in writing'.
5. The Scheme of this Rule seems to be that the age of superannuation has been fixed at fifty-eight years by clause (a) but this fixation is 'except as otherwise provided in this rule'. In exercise of the power conferred by Clause (d) of this Rule, an extension of service can be given to a Government servant on attaining the age o fifty-eight years but such extension is to be granted by the appropriate authority if it is in the public interest to do so and the grounds thereforee are recorded in writing. Clause (j), which starts with the non obstinate clause gives an absolute right to retire any Government servant after he has attained the age of fifty-five years by giving him notice of nto less than three months provided the appropriate authority is of the opinion that it is in the public interest to do so. thereforee, while the age of superannuation or the normal age of retirement has been fixed at fifty-eight years, such fixation is subject to extension under Clause (d) and curtailment under Clause (j) provided it is in the public interest to do so. In fact the power of retiring at the age of fifty-five years -- in other words the power to retire compulsorily -- if it is exercised for the reasons and in the manner mentioned in Clause (j) overrides the right of the Government servant to remain in service until ho attains the age of fifty-eight years.
6. The validity of Clause (j) of the Rule in so far as challenge to it on the basis of Article 14 of the Constitution, is concerned, is questioned on the ground that this clause gives arbitrary power to the appropriate authority because the expression in the public interest' has nto been defined and, thereforee, there are no well defined limits within which this power can be exercised. The fact that the power to retire compulsorily can be exercised only if it is in the public interest to do so is a sufficient safeguard against the arbitrary exercise of this power. Public interest is nto a new concept. It is true that it has nto been defined but the reason for that is that it is incapable of precise definition. Nevertheless, it is nto possible to say that it is a vague concept. What is included in public purpose may differ from time to time and from place to place. In the context in which it has been used it means the proper functioning of the public service. I, thereforee, do nto find any substance in the plea that Clause (j) of Rule 56 confers arbitrary power which is repugnant to Article 14 of the Constitution.
7. No argument was addressed to us as to how Clause (j), of this Rule is hit by Article 16 of the Constitution nor are any grounds relevant to Article 16 mentioned in the petition and, thereforee, nothing more need be said in so far as the bare challenge on the ground of Article 16 is concerned.
8. In so far as the challenge under Clause (2) of Article 311 is concerned, the first argument is that the curtailment, by compulsory -retirement of the ago of retirement fixed under Clause (a) of this rule, amounts to dismissal or removal and, thereforee, Clause (j), of this Rule is unconstitutional. This argument has no substance in view of the various decisions of the Supreme Court which were considered in Deka's case reported in : (1964)IILLJ467SC . With regard to the decision In Sham Lal's case, : (1954)IILLJ139SC , it was observed :--
'Confining itself to the special features of compulsory retirement which was effected under Article 465A and Note 1 appended thereto, the Court came to the conclusion that compulsory retirement was nto removal. We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout and so, that Branch of the law must be held to be concluded by the series of decisions to which we shall presently refer'.
The Supreme Court then considered another of its decision relating to compulsory retirement reported in : 1SCR571 , State of Bombay v. Saubhag Chand M. Doshi. In this case Venkatarama Aiyar J. had observed :--
'Question of the said 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)'.
With regard to this observation, it was stated:--
'It would be noticed that the rule providing for compulsory retirement was upheld on the ground that such compulsory retirement does nto amount to removal under Article 311(2) because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in. If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to judgment, would violate Article 311(2) and though the termination of a servant's services may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of Article 311(2). With respect, we think that this statement correctly represents the true position of law'.
It is needless to refer to the other cases noticed in Deka's case and it will be quite enough to state that the ultimate conclusion at which the Supreme Court arrived was that compulsory retirement does nto per se amount to dismissal or removal. There is, thereforee, no force in the broad contention of the petitioner that the mere fact that the normal period of service is curtailed by compulsory retirement amounts to dismissal or removal.
9. The second argument in this connection which has been urged by the petitioner is based upon the following observation of the Supreme Court in Deka's case :--
'Apart from date, we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Art 311(2)'.
and the argument is that since no limitation has been imposed in Clause (j) of Rule 56 that the civil servant concerned should have put in a minimum period of service, it is ultra virus Clause (2) of Article 311 of the Constitution. According to the petitioner, the fixation of the age at which compulsory retirement can be ordered does nto amount to fixation of the 'minimum period of service' and what was required was to specify the number of years of service. The argument of the learned Solicitor General on the other hand is that fixation of the age o| compulsory retirement is specification of the minimum period of service and the only safeguard that has to be observed is that such age should nto be fixed at a very early stage of the career. He relies upon the following observation of the Supreme Court in Deka's case :--
'At this stage, we ought to make it clear that in the present appeals, we are nto called upon to consider whether a rule of compulsory retirement would be valid, if, having fixed a proper age of superannuation it permits a permanent servant to be retired at a very early stage of his career'.
It has to be remembered that the age of 55 years for compulsorily retiring a civil servant which has been fixed by Clause (j) of Fundamental Rule 56 was the age of superannuation fixed by Fundamental Rule 56 (a) prior to its amendment in 1965. Prior to its amendment this rule provided :--
'except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the Local Government on public grounds, which must be recorded in writing, but he must nto be retained after the age of 60 years except in very special circumstances'.
The scheme of tie pre-existing Rule wag that every Government servant must retire on attaining the age of 55 years and power was given to the Local Government to retain him up to the age of 60 years on public grounds. The scheme of the amended R. 58 is that the age of superannuation or retirement for everybody is fixed by Clause (a) at 58 years and it is subject to extension under Clause (d) and to curtailment under Clause (j). Taking this historical background into consideration, it is nto possible to accept the contention that fixation of the age of compulsory retirement at 55 years as has been done by Clause (j) of Fundamental Rule 56 would be retirement at a very early stage of the career of a Government servant.
10. I may here refer to another decision of the Supreme Court reported in : (1967)IILLJ246SC , T. G. Shivacharana Singh v. State of Mysore. Their Lordships of the Supreme Court considered Rule 95 (a) and Note I to Rule 285 of the Mysore Civil Services Rules, 1958. Rule 95 (a) provided that the date of Superannuation of a Government servant would be the date on which he attains the age of 55 years and it authorised the Government to retain the Government servant in service even after the date of superannuation if he was physically fit and if his continuance in Government service was found to be in public interest. Rule 285 dealt with retiring pension and provided that a retiring pension would be granted to a Government servant who was permitted to retire after completing qualifying service for 30 years or such less time as may be prescribed. Note I to this Rule provided, inter alia, that Government may, in special cases, require any Government servant to retire any time after he had completed 25 years qualifying service or on attaining 50 years of age if such retirement was considered necessary in the public interest and provided that the appropriate authority would give a notice in writing at least three months before the date on which the Government servant was required to retire. It will, thereforee, be seen that power was given to the Government by Note I to Rule 285 to compulsorily retire a Government servant before the age of superannuation fixed at 55 years if he had completed 25 years qualifying service or on attaining 50 years of age. The validity of Note I to Rule 285 was challenged upon the ground that it contravened Articles 14 and 16(1) of the Constitution. It was observed by the learned Chief Justice :--
'Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes Article 14 as well as Article 16 of the Constitution. In our opinion this contention can no longer be entertained; because it is concluded by a long series of decisions of this Court. Recently, a Special Bench of this Court had occasion to consider the validity of Rules 148 (3) and 149 (3) contained in the Indian Railway Establishment Code in Moti Ram Deka v. General Manager, North East Frontier Railway, Civil Appeals Nos. 711 to 713 of 1962; 714 of 1962 and 837 to 889 of 1963, D/-5-12-1963 = : (1964)IILLJ467SC .
In dealing with the problem raised in that case, this Court has made it perfectly clear that so far as the question of compulsory retirement is concerned, it must be taken to be concluded by several decisions of this Court. This Court then examined the relevant decisions on this point beginning with the case of 1955 Scr 26 = : (1954)IILLJ139SC and it has observed that the law in relation to the validity of the Rules permitting compulsory premature retirement or Government servants must be held to be well settled by those decisions and need nto be reopened.
The only exception the majority Judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does nto arise in the present case, because, as we have already seen, Note 1 to R. 285 requires that the Government servant against whom an order of compulsory retirement is proposed to be passed must nave completed either 25 years of active service or attained 50 years of age. We are, thereforee, satisfied that the point which Mr. Venkataranga Iyengar wants to raise before us in the present petition is clearly concluded by the decisions of this Court and cannto be allowed to be reopened'.
The contention, thereforee, that specification of the age of compulsory retirement without indicating the number of years of service is nto specification of the 'minimum period of service' cannto be entertained. In my opinion all that has to be seen is whether the right to compulsorily retire can be exercised at a very early stage of the career and it cannto be said with any justification that when the age of superannuation is fixed at 58 years, the compulsory retirement at the age of 55 years would be retirement at a very early stage of the career. The previous decisions or the Supreme Court were again reaffirmed in : (1965)ILLJ323SC , Gurdev Singh Sidhu v. State of Punjab, where Gajendragadkar, C. J., speaking for the Court has observed:--
'It is hardly necessary to emphasise that for the efficient administration of the State, it is absolutely essential that permanent public servants should enjoy a sense of security of tenure. The safeguard which Article 311 affords to permanent public servants is no more than this that in case it is intended to dismiss, remove or reduce them in rank, a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. It seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Article 311(2).
If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Article 311 does nto apply, because such retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which atone compulsory retirement can be ordered, that again may nto amount to dismissal or removal under Article 311 mainly because that is the effect of a long series of decisions of this Court'.
11. The next argument of the petitioner is that even if Clause (j) of Fundamental Rule 56 is nto ultra vires, the compulsory retirement of the petitioner in the circumstances of this case was mala fide and, thereforee, amounted to a punishment within the meaning of Clause (2) of Article 311 of the Constitution. So far as this contention is concerned, the respondents, in their counter affidavit, took the stand that it is for the appropriate authority to decide whether or nto it was in the public interest to compulsorily retire a Government servant; that its opinion on the point cannto be challenged before a Court of law and since satisfaction had to be merely subjective, it was nto necessary for the Government to specify the grounds of which the satisfaction was founded and that the matter of satisfaction was nto justiciable. During the course of arguments, however, the learned Solicitor General did nto rightly urge this extreme contention. All that he argued was that Clause (j) of Fundamental Rule 56 provides a subjective test and an order of compulsory retirement cannto be challenged unless it is shown to be mala fide or made without application of mind. This stand is in accord with the view which has been expressed by the Supreme Court in the case of Barium Chemicals Ltd. v. Company Law Board, reported in : 1SCR898 , where it has been held that if it is shown that the circumstances did nto exist or that they were such that it was impossible for any one to form an opinion there from suggestive of the aforesaid things, the opinion was challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute. It has also been held that though an order passed in exercise of power under a statute cannto be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose or on grounds which are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation.
12. Now, Annexure 'G' to the petition is a statement of mala fides relating, inter aha, to this petition, This statement contains vague and general allegations which have been denied by the respondents and in respect of which the petitioner has nto been able to produce any evidence in support. His main complaint is that although he was a very well-qualified person and had done good work he had been superseded by one Mr. Aswath and other persons who were junior to him. The respondents have, on the other hand, contended that appointments to the post of Director (Selection Grade), Deputy Chief Engineer and Chief Engineer are selection posts, promotions to which are made on the basis of merit with due regard to seniority. It is further contended that the post of Member is filled by selection by the Union Public Service Commission on an All India basis and that the petitioner was considered along with other eligible candidates. In paragraph 11 of the counter affidavit, the respondents have submitted that before retiring him, the entire record of service of the petitioner was taken into consideration right from his appointment to the Simla Municipal Committee in 1949. It is averred that it is apparent from his record of service that he is nto amenable to discipline; that there have been adverse entries against him for the years 1953 to 1955; 1958 to 1960; 1962; 1964 and 1965; which have been made, during this period, by nine different officers and that these adverse entries were based on an objective assessment of his work and conduct by his superior officers. No other material has been disclosed by the respondents as they had contended in their counter affidavit that the reasons for the decision to retire compulsorily were nto justiciable. However, with his affidavit in rejoinder, the petitioner has filed annexure 'M' quoting the adverse entries which were made in his Annual Character Roll in the years 1955, 1958, 1959, 1962, 1964 and 1965. These entries are:--
'1955: An Officer of below average capacity. His relations with the colleagues are nto happy. Notes prepared are unnecessarily long indicating confused thinking, considerable improvement is called for in his work'.
1958 : (received in 1960): 'His personal contribution has had hardly been to few drafts received from his Directorate on the codes of practice on generation and transmission on the plea that he is still engaged on the study of the various literatures on the subject at which he has been for long over a year or so.
An Officer of average ability, with set ideas. His relation with his colleagues could be happier'.
'1959 :-- (i) It has nto been found easy to deal with him because of the lack of his adaptability, mainly due to pre-set ideas.
(ii) He is inclined to making representations against orders issued in the interest of work'.
'1962: His relations with his colleagues and subordinates could have been a happier'.
'1964: A problem Director -- in that it falls to the inevitable lto of some member to have him under his charge and manage as far as practicable ....'
'I agree with the above even though the officer is intelligent and capable of good work if he wishes to apply himself wholeheartedly'.
'1965: He did nto show any improvement in regard to the defects mentioned in the previous confidential report.
His work during the year was below average, considering his senior position in the Director's grade .... Shri Butail can do good work if he likes to do so'.
The contention of the petitioner is that the adverse entries up to 1962 could nto be taken into consideration because by reason of his confirmation in April, 1963 as permanent Director with effect from August 5, 1960, these adverse entries had been as it were, washed off. He further contends that the adverse entries for 1964 and 1965 also could nto be taken into consideration for the purpose of his compulsory retirement because they had been made without complying with the procedure contained in the Home Ministry instructions dated October 31, 1961.
13. The mere fact that the petitioner was confirmed as a permanent Director in spite of the adverse entries made prior to 1963 cannto lead to the conclusion that those adverse entries had ceased to exist. The confirmation to the post of permanent Director was as a matter of course because up to that post, promotion was nto by selection. It is in evidence that the petitioner had challenged the adverse entries made against him between 1955 and 1962 by filing a writ petition, Civil Writ No. 188-D of 1965 in the Circuit Bench of the Punjab High Court. This writ petition was dismissed by the High Court in liming and the petitioner was nto granted special leave to appeal by the Supreme Court. thereforee, the petitioner himself treated these adverse entries as being alive.
14. With regard to the adverse entries for the years 1964 and 1965, it is in evidence that the petitioner made representations against them which were rejected. But, the complaint of the petitioner is that the adverse entries for the years 1964 and 1965 were nto made in accordance with the procedure that has been prescribed by the office memorandum dated October 31, 1961, issued by the Ministry of Home Affairs. This memorandum provides, inter alia, that where an adverse entry is made, whether it related to a remediable or to an irremediable defect, it should be communicated; but while doing so, the substance of the entire report, including what may have been said in praise of the officer should be communicated. This memorandum also provides that confidential reports should make a reference to specific incidents by way of illustration to support adverse comments of a general nature, e.g., inefficiency, dilatoriness, lack of initiative or judgment, etc. Further a right is given to the Government servant concerned to make representations against the adverse entries. It is contended that the adverse entry made for the year 1964 was nto communicated to the petitioner until September 1965, before which the Departmental Promotion Committee had already, on May 30, 1965, declared the petitioner unfit for promotion on the basis of this adverse entry. It is contended that the adverse entry for the year 1964 and the adverse entry for 1969 could not, thereforee, be taken into consideration for the purposes of compulsory retirement of the petitioner as the aforesaid entries have been made in breach of the terms of the memorandum dated October 31, 1961, and since they were taken into consideration, the compulsory retirement amounts to a major penalty under Rule 11 of the Central Civil Services (Classification, Control and Appeal), Rules 1965. Rule 11 provides that compulsory retirement is one of the major penalties but the Explanationn to this rule says, inter alia, that compulsory retirement of a Government servant shall nto amount to a penalty if it is in accordance with the provisions relating to his superannuation or retirement. This argument also has no substance because I have already expressed the view that the compulsory retirement was in accordance with Clause (j) of Fundamental Rule 56 and the aforesaid memorandum dated October 31, 1961, is nto relevant in so far as the compulsory retirement of the petitioner is concerned.
15. It is, thereforee, nto possible to say that the adverse entries for the years 1964 and 1965 constitute extraneous or irrelevant matter in so far as the satisfaction for the purposes of compulsory retirement is concerned. In my opinion, it is a relevant consideration and it is nto possible to say that if these adverse entries are taken into consideration, it is nto possible for any person to come to the conclusion that it would be in the public interest to compulsorily retire the petitioner.
16. I, thereforee, do nto find any substance in this petition which I hereby dismiss. In the circumstances of the case, I will make no order as to costs,
S.K. Kapur, J.
17. I agree.
18. Petition dismissed.