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S.S. Pasupathy Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 370 of 1968
Reported inILR1970Delhi883
ActsFundamental Rules - Rule 56; Constitution of India - Article 4
AppellantS.S. Pasupathy
RespondentThe Union of India and ors.
Advocates: P.P. Rao,; K.C. Dua and; R.L. Tandon, Advs
Cases ReferredAjit Singh v. Union of India
.....servant who is thought to be inefficient would form a class separate from the rest of the public servants who are not thought to be inefficient. as the object of this classification is the efficiency of the public service, the classification is reasonable one and rule 56(j) is not contrary to articles 14 and 16 of the constitution. - - the retirement was thereforeemala fide and bad. it cannot,however be said that the confidential report of 1967was so good that it wiped out the effect of the confidential reports of 1965 and 1966. it is only the existenceof the circumstances constituting public interest whichis to be seen by this court. in view of the existence of the bad reports for 1965 and1966 i am unable to say that the circumstances constituting public interest did not..........but when article 310 and f.r. 56(j) alreadygive absolute power to the government to retire a publicservant, it cannot be said that a guideline more definitethan the words 'public interest' is required to make thepower of retirement valid. i thereforee find that f.r.56(j) is valid and is not vitiate either by any vaguenessin the expression 'public interest' or by any arbitrariness involved in it. as the retirement of a government servant under f.r.56(j) is to be based on the consideration of his individual merit judged by his confidentialreports, a government servant who is though to beinefficient would form a class separate from the restof the public servants who are not thought to be inefficient. as the object of this classification is theefficiency of the public service, the.....

V.S. Deshpande, J.

(1) The petitioner, born on17-3-1913, was ordered to be retired on attainmentof the age of 55 years under F.R. 56(j) by the impugnedorder dated 16/02/1968 at Annexure 1' tothe writ petition. F.R.56(j) is as follows-

'NOTWITHSTANDINGanything contained in thisRule, the appropriate authority shall, if it is ofthe opinion that it is in the public interest to doso have the absolute right to retire any Government servant after he has attained the age offifty-five years by giving him notice of not lessthan three months in writing.'

(2) The impugned order runs as follows:-

'UNDERthe provisions of F.R. 56(j), the President hereby gives notice to Shri S.S. Pasupathy,a permanent Stenographer of Central SecretariatStenographers' Service (Grade II) in the Ministryof Finance, Department of Economic Affairs thathe shall stand retired from service with effectfrom the date of expiry of three months' from thedate of service of this notice on him.'

(3) The petitioner has challenged the order of his retirement on the following grounds, namely-

(1)That circumstances constituting 'publicinterest' did not exist at all and hence the government had no power to retire him under F.R. 56(j)(2) The decision to retire him was based onan adverse confidential report written againsthim by Shri R.S. Nakara who was inimical towardsthe petitioner. The retirement was thereforeemala fide and bad.(3) The opinion requisite under F.R.56(j) wasformed by an authority other than the Presidentwho alone was competent to retire the petitioner.(4) The expression 'public interest' is vagueand does not provide any objected standard ornorm of guidance and therefoie F.R. 56(j) isitself arbitrary and unconstitutional as it suffersfrom the vice of excessive delegation. It is alsocontrary to Articles 14 and 16 of the Constitution.

(4) The petition was resisted on the ground that thewhole of the service of the petitioner was placed beforethe departmental promotion committees and the FinanceMinister (as the petitioner was serving in the FinanceMinistry) who decided that the petitioner should beretired under F.R.56(j). Shri R.S. Nakra bore noonemity towards the petitioner. F.R.56(j)is valid andthe retirement of the petitioner could not thereforee bechallenged.

(5) Let us consider the grounds urged by the petitioner to challenge the order of retirement Serialtum.

'While F R 56(j) gives a discretion to theGovernment to retire a Government servant prematurelyon the attainment of the age of 55, that discretion hasto be exercised only in 'public interests' In accordance with the principle laid down by the SupremeCourt in Barium Chemicals Ltd v. Company LawBoard ( : [1967]1SCR898 and Rohtas Industries Ltd.,v. S.D. Agarwal ( : [1969]3SCR108 , the petitioneris entitled to challenge the existence of the circumstancesconstituting the public interest though the Government is to be the judge as to the sufficiency of thosecircumstances, that is to say, whether the totality ofthem amounts to public interest or not. The defenseto the writ petition is that the total record of the serviceof the petitioner was placed before the departmental promotion committee and the Finance Minister. Therecord consists of the annual confidential reports writtenon the work of the petitioner by his superiors. Thelearned counsel for the respondents produced the original file containing the confidential reports of the petitioner before me. it is found that the confidentialreports for the years 1965 and 1966 were written byShri R.S. Nakra. Both of them were adverse to the petitioner. The Departmental Promotion Committeewhich met on 30-9-1967 was of the opinion that the petitioner was not fit to continue in service beyond theage of 55 years. As Sbri Pasupathy had, however, toput in one more year of service, the department rightlythought that the final decision as to his retirementshould be taken after the confidential report of the workfor the year 1967 was considered. Thereafter thedepartmental Promotion Committee which met on9-1-1968 considered the confidential report of the work of the petitioner for the year 1967 also. After goingthrough the said report, the said Committee felt thatthere were no grounds for revising the view alreadytaken by it in the petitioner's case. The Committeetherefore reiterated its previous recommendation thatthe petitioner was not fit for continuance in servicebeyond 55 years of age. A self-contained note wasprepared by the Deputy Secretary Shri R K. Gangulyon 13-2-1968 in which the full particulars of the servicerecord of the petitioner were given. The confidentialreports on the basis of which the Departmental Promotion Committee had come to the conclusion thatthe petitioner has ceased to be efficient were also placedalong with the self-contained note. The whole filewas then put up to the Joint Secretary who stated thatthe recommendation of the Departmental PromotionCommittee was for approval of the Finance Minister.The Finance Minister Shri Morarji Desai wrote on thefile in 14-2-1968. 'He should be retired'.

(6) The adverse reports on the work of the petitionerfor the years 1965 and 1966 constitute the main circumstances showing that it was in public interest toretire him. It is true that the confidential repoit for theyear 1967 is favorable to the petitioner. It cannot,however be said that the confidential report of 1967was so good that it wiped out the effect of the confidential reports of 1965 and 1966. It is only the existenceof the circumstances constituting public interest whichis to be seen by this Court. Once the circumstances areshown to have existed, the sufficiency of the circumstances is for the Government to decide. It is not forthis Court to say that the confidential report of 1967should wipe out the effect of 1965 and 1966 reports.That is essentially for the Government to consider.In view of the existence of the bad reports for 1965 and1966 I am unable to say that the circumstances constituting public interest did not exist. The Governmenthas to take into consideration not only the last confidential report but the service record of the petitioneras a whole. As his record for two years, i.e., 1965and 1966, was not good, it was for the Government toconsider whether it was in public interest or not toretire the petitioner. The merits of the Governmentdecision are not open to review by this Court. I, thereforee, find that the circumstances constituting the publicinterest within the meaning of F.R.56(j) existed andtheir existence enabled the Government to take actionunder F.R.56(j) against the petitioner. I am fortifiedin the above view by the decision of the Supreme Courtin Western U.P. Electric Power and Supply Co. Ltd. v.State of U.P. and others : [1969]3SCR865 (Q. In thatcase, the power conferred by the statute on the Government to supply electrical energy in an area in respectof which a license had already been granted was to beexercised only if the State Government deemed suchsupply to be necessary 'in public interest'. The HighCourt had thought that the subjective opinion of theGovernment was final in the matter. The SupremeCourt however observed that they were unable to agreewith that view. Their Lordships further observed inparagraph (11) of the judgment as follows:

'IFchallenged, the Government must showthat exercise of the power was necessary in publicinterest. The Court is thereby not intended to sitin appeal over the satisfaction of the Government.If there be prima facie evidence on which a reasonable body of persons may hold that it is in the publicinterest to supply energy directly to the consumers,the requirements of the statute are fulfillled.'

(7) 2. The only concrete ground on which the petitioner alleged that Shri R.S. Nakra was inimical tohim was that an application had been made by the petitioner and some other stenographers against ShriR.S. Nakara. Shri R.S. Nakra has denied this allegation. It is thereforee the word of the petitioner againstthe word of Shri R.S. Nakra. I cannot say thereforeewhether Shri R.S. Nakra was inimical towards the petitioner or not. Shri Nakra has written two confidential reports against the petitioner in 1965 and 1966.The petitioner alleged that Shri Nakra was not entitledto write his confidential report for 1966 as he did notwork with him at all. Shri Nakra in his affidavit hasexplained that he had to write the confidential report ofthe petitioner because the officers with whom the petitionerworked had stated that the petitioner was not generallyavailable and these officers could not take any work fromhim and they were thereforee unable to write his confidential report. Shri Nakra was in overall charge ofthe stenographers and thereforee he had to write the confidentinl report of the work of the petitioner. I toldthe learned counsel for the respondents during The argument that it would be proper if these other officersalso were to file affidavits as to whether the petitioneiwas really not available to them for work and if theyreally expressed their inability to write confidential report on that ground. The respondents thereupon filedtwo affidavits one sworn by Shri B.P. Kapooi and theother by Sbii Lachman Dev. Both of them supportthe Explanationn given by Shri Nakra that the petitionerwas not generally available when he was required forwork and thereforee they could not write his confidentialreport. The third officer to whom the petitioner wasattached, rarnely, Shii K.V.R. Advani was said to beon leave and his affidavit could not thereforee be filed.Three responsible officers have thus sworn that the petitioner was notavailable for work when he was wanted.The petitionei has no Explanationn why Sarvshri LachmanDev and B.P. Kapoor should support Shri R.S. Nakraagainst him. I am, thereforee, of the view that theexplanation given by Shii Nakra as to why he had to'wiite the confidential ieport of the petitioner was correct.

(8) The petitioner has further objected to The mannerin which the confidential reports For the years 1965and 1966 were written by Shri Nakra. The form inwhich the confidential reports are to be written containsa number of specific heads such as (1) Regularityand punctuality in attendance: (2) Proficiency andaccuracy in stenographic work: (3) Intelligence, keennessand industry; (4) Trust-worthiness in handling Secretand Top Secret matters and papers: (5) Maintenanceof engagement diary and timely submission of necessarypapers for meetings, interviews etc., (6) general assistancein ensuring that matters requiring attention are notlost sight of: (7) initiative and tact in dealing with telephone called and visitors: (8) nature of other duties,if any, on which employed and whether carried them outsatisfactorily (9) fitness for promotion to the next highergrade, etc. But Shri Nakra did not divide the confidentialreport into these headings and thereforee did not stateanything specific against each of these headings. Hewrote general confidential reports in which he statedthat the petitioner was not able to discharge his dutiesefficiently and was indifferent to work because of badhealth which included high blood pressure and defectivehearing. The petitioner contends that his blood pressurenever came in the way of his work and he did not sufferfrom defective hearing at all. Shri Nakra explains thathis knowledge about these defects of the petitioner wasgathered by him from the petitioner himself. Shri Nakrafurther explained that he had to write the confidentialreport of the petitioner in such general terms because the petitioner was not available to do the work and his confidential report divided into several headings couldnot, thereforee, be written. If the petitioner wasnot, available, for work as is stated by Shri Nakra, ShriKapoor and Shri Lachman Dev, then such a generalconfidential report against him was justified. It is alsonot denied by the petitioner that he had the complaintof high blood pressure, The petitioner may not be hardof hearing though Shri Nakra had thought so. Thequestion is whether the confidential reports for 1965and 1966 written by Shri Nakra amount to a mis-representation of facts. If the answer is in the affirmativethen the decision taken by the authorities on the strengthof these reports would be vitiated. It would have thento be said that there were no circumstances constitutingpublic interest for the retirement of the petitioner atall. If on the other hand the confidential reports weresubstantially correct, then the decision to retire the petitioner could not be said to have been vitiated bythe absence of the circumstances constituting 'publicinterest'. In the confidential report for the year 1965it is said that the petitioner 'is not able to dischargehis duties as efficiently as is expected from a stenographer of his seniority'. In the confidential reportfor the year 1966 it is stated that the petitioner 'hasnot achieved any position of responsibility. . . . He isbeing tolerated and suffered'. These reports are justified by the affidavits sworn by Shri Nakra, Shri Kapoorand Shri Lachman Dev that the petitioner was notgenerally available for any work. Whether the petitioner was avoiding to work or whether he was unableto do the work due to his ill-health is not material.Whatever be the reason, the result is the same. Theefficiency of the petitioner was reduced due to his unwillingness or inability to do the work. This is what theconfidential reports arrived at. Even if, thereforee, IT is assumed that the petitioner was not hard of hearingor that his blood pressure did not disable him fromdoing the work, the petitioner was actually not availablefor work and that is all that mattered in judging hisefficiency.

(9) Learned counsel for the petitioner argued that itwas unbelievable that the petitioner should himselfinform Shri Nakra that he was suffering from bloodpressure or he was hard of hearing. It is true thatone does not ordinarily inform his superior officer of hisown defects. But it is not improbable that the petitioner may have told or hinted about the existence ofthese defects by way of an excuse for not being ableto do his work. Firstly, thereforee, I do not find thesestatement in the confidential reports to be unbelievable.Secondly even if they may not be strictly accurate, theydo not vitiate the main conclusion in the confidentialreports that the petitioner was no longer efficient.The general form in which the reports are written isalso justifiable by the fact that it was not possible forspecific answers to be noted against the different headingsgiven in the confidential reports inasmuch as the petitionerwas not available for work at all. I thereforee find that the petitioner has not proved any mala fides on the part ofShri Nakra. On the contrary, the adverse reports againstthe petitioner were justified and Shri Nakia is supportedby two other officers against whom the petitioner cannotalleg any enemity.

(10) 3. It is well known that the President himself doesnot govern. He is aided and advised by the Council ofMinisters who are themselves in the general charge oftheir ministries and departments and under whom manyother civil servants work. The Departmental Promotion Committees and the Deputy Secretary and theJoint Secretary-in-charge of administration in the Ministryof Finance were the civil servants who were specificallydoing the work of assessing the efficiency of the petitionerand other stenographers in the Ministry of Finance. It isthey who had to express their opinions on the efficiencyof the petitioner as judged objectively by confidentialreports of his work by his superiors. This was whatwas done. The Finance Minister was the highestauthority being the head of the Ministry of Financeand he also apparently applied his mind to the case ofthe petitioner. The order of the retirement of the petitioner is issued in the name of the President and is signedby an authorised officer, namely. Deputy Secretary-in-charge of administration. It must be held, thereforee,that the decision that the retirement of the petitioner wasin public interest was taken by the President, namely, bythe appropriate authorities concerned.

(11) 4. What is the meaning of 'public interest'' as used inF.R. 56(j) In paragraph (2) of the self-contained noteput up to the Finance Minister regarding the retirement ofthe petitioner it has been stated that the ground of'Public interest' enabled the Government to retire aGovernment servant on the ground that the officer hasceased to be efficient. The primary object of publicservice is efficiency, it is thereforee in public interestthat a Government servant should be efficient. It wouldalso follow that it would be in public interest to retire aGovernment servant who has ceased to be efficient. Theefficiency of a Government servant has to be assessed byofficers under whom he has worked and this is why theannual confidential reports of the work of a Governmentservant constitute the chief material on which the assessment is based. It may be asked then why 'efficiency'and not 'Public interest' was made the test for retirement under F.R. 56(j). The answer to this questionmay be found in the observations made by the SupremeCourt in the recent decision in Union of India v. Col.J.N. Sinha (Civil Appeal No. 381 of 1970 decided on12-8-1970). Speaking of F.R. 56(j) the court observedas follows :-

'THATrule merely embodies one of the factsof the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations mayweigh with the appropriate authority while exercising the power conferred under the rule. Insome cases, the government may feel that aparticular post may be more usefully held inpublic interest by an officer more competent thanthe one who is holding it. It may be that theofficer who is holding the post is not inefficient butthe appropriate authority may prefer to have amore efficient officer. It may further be that incertain key posts public interest may requirethat a person of undoubted ability and integrityshould be there. 'There is no denying the factthat in all organisations and more so in Government organisations, there is good deal of deadwood. It is in public interest to chop off the same.Fundamental Rule 56(J) holds the balance between the rights of the individual government servant and the interests of the public. While aminimum service is guaranteed to the governmentservant, the government is given power to energise its machinery and make it more efficient bycompulsorily retiring those who in its opinionshould not be there in public interest.'

(12) The Government has to take into account all possibleconsiderations before coming to the. conclusion thatthe retirement of a public servant is in public interest.As the Supreme Court has observed, the individualpublic servant may be efficient but some other moreefficient public servant may have to be preferred overhim. Similarly, an individual public servant may havesomething against him which makes it undesirable forhim to continue in service. This something may not beefficiency but some defect of character or some consideration of the security of the State etc. This is whya comprehensive term 'public interest' is used in F.R.56(j).

(13) Learned counsel for the petitioner relied upon theSupreme Court decision in Harakchand RatanchandBanthia v. Union of India (1970) T. S.C.R. 479, for theproposition that the expression 'public interest' isvague and is not a sufficiently definite guideline for theexercise of executive power. The decision of the SupremeCourt was followed by the Rajasthan High Court inM/s Gem Palace v. Union ofIndia (Civil Writ No. 823 of1968 decided on 4-12-1969). The contact in whichthese decisions were given was one of fundamental rights.The fundamental right of a citizen to trade or practicean avocation is given by Article 19(1)(g) of the Constitution. Article 19(6) of the Constitution enables theGovernment to impose reasonable restrictions on thesaid right in the interest of general public. But this isonly the general framework within which the restrictionsmust operate. The Constitution is the basic law layingdown the standards for legislation. It does not meanhowever that the legislation which follows this standardcan be as wide as the Constitution itself. Article 19(6)applies to a wide variety of occupations and businesses.It would depend upon the nature of the business andoccupation as to what kind of restriction would bereasonable and in the interest of the general public.It cannot be said that the same restriction would hold goodin respect of different kinds of occupations. Proviso (g)to section 27(6) of the Gold Control Act, 1968 laid down'public interest' as one of the considerations to whichthe administrator was to have regard in issuing or renewinga license. The right to trade in gold was a fundamentalright. Could it be restricted on such a widely wordedground as 'public interest' Almost anything could beincluded in 'public interest' in that context and it wouldbe giving a wide discretion to the administrator torefuse to renew a license because he thought it to beopposed to public interest. This was why their Lordshipsof the Supreme Court thought that the words 'publicinterest' do not provide any objective standard or normor guidance by which a fundamental right could berestricted.

(14) The contest in which the words 'Public interest'are used in F.R. 56(j' is entirely different. Under Article 310, a civil servant holds his office during the pleasureof the President. The only limitation on the exerciseof this pleasure is imposed by Article 311 of the Constitution. It has been established by a serious of decisionsof the Supreme Court that the compulsory retirementof a Government servant does not attract Article 311 and does not contravene Articles 14 and 16 of the Constitution. The validity ofF.R.56(j) was not, thereforee, allowedto be challenged by the Supreme Court in T.G. Shiva-charana Singh v. The State of Mysore, : (1967)IILLJ246SC . In paragraph (55) of their judgment in Moti RamDeka v. General Manager, N.E.F.R. I : (1964)IILLJ467SC their Lordships of the Supreme Court noted thesubmissions made by the learned Solicitor-Genera] thatin dispensing with the services of a government servantunder the impugned rule 'the appropriate authoritywould be .to take into account all the relevant circumstances in regard to the nature and the quality of thework of the Railway servant in question and will haveto decide whether there are circumstances which requirethat the services of the said servant should be terminated.In dealing with such a question, it is plain that the appropriate authority would naturally have regard for considerations of public interest'. It was, thereforee, arguedthat the rule could not be struck down on the groundthat it conferred absolute, unguided and uncanalisedpower on the appropriate authority. It is to be notedthat the impugned rule in that case did not expresslylay down this guideline inasmuch as the expressing'public interest' was not used in it. Nevertheless The argument was that 'public interest' would have to beconsidered in dispensing with the services of a govern-ment servant. The Supreme Court was not requitedto decide the question whether, even in the absence ofsuch a definite guideline, the Government was bound toconsider the public interest before dispensing with theservices of an individual Government servant. In thepresent case, on the contrary, F.R. 56(j) expressly laysdown the guideline of 'public interest' which has tobe followed by the Government in retiring a particularGovernment servant. F.R. 56(j) is thereforee immunefrom the attack which was made on the rule governingthe Railway servants in Moti Ram Deka's case. Evenin the absence of such a guideline, the Supreme Courtdid not hold that the rule relating to the railway servantsin Moti Ram Deka's case was bad for excessive delegation. A fortiori, F.R.56(j) cannot be challenged onthe ground of excessive delegation in as much as it laysdown definitely the guideline of 'public interest' inretiring a Government servant.

(15) The expression 'public interest' has to be construedin F.R.56(j) in the following background. The SupremeCourt has held in Kailash Chandra v. Union of India : (1961)IILLJ639SC (') andinCol.J.N. Sinha's case referred to above that the Government servant has no absolute right to continue in service after the age of 55.For, F.R.56(j) gives the Government an absolute right toretire the Government servant on attaining the age of55. For, F.R. 56(j) gives the Government an absoluteright to retire the Government servant on attaining theage of 55. Muchless has such a Government servantany fundamental right to continue in Governmentservice. The decision of the Government as to theassessment of the work of the Government servantconcerned cannot be reviewed by this Court on meritsThis Court is thereforee concerned only to see whetherthe circumstances constituting 'public interest' existed. If they existed, then this Court cannot inquireinto their sufficiency. What the Government has thereforee to consider under F.R. 56(j) is only such 'publicinterest' as is involved in retiring an individual Government servant. This public interest is generally restrictedto the efficiency of the public servant concerned unlessthere are some exceptional considerations such as considerations of security etc. to be taken into account.In the large majority of the cases thereforee the Government would go merely by the confidential reports available to them regarding the work of a particular government servant in deciding whether he should be retiredor not. In fact even considerations like those ofsecurity of the State etc., may also be reflected in theconfidential Government in the vast majority of thesecases is the confidential reports of the governmentservants, the ambit of the expression 'public interest'is very severely restricted to the considerations of thework and character of the individual government servantonly. So restricted, the expression 'public interest'in F.R. 56(j) cannot be said to be vague or too wide.Consequently the power given to the President to retirea Government servant at the age of 55 on this consideration cannot be attacked on the ground of excessivedelegation or as enabling the President to excercisean arbitrary and uncanalized power.)

(16) As pointed out in Ajit Singh v. Union of India(Civil Writ 710-D of 1966 decided by me on 26-8-1970)( 10)the meaning of the words 'public interest' would differin defferent statutes according to the context in whichthese words are used. thereforee, it is not permissibleto think that the meaning which is given to these wordsin the Gold Control Act would be the same as themeaning which is given to them in F.R. 56(j). The twocontexts are entirely different and the meaning of thesewords is also thereforee bound to be different. Asarestriction on fundamental rights, the mere use ofwords 'public interest' could not be said to bereasonable. But when Article 310 and F.R. 56(j) alreadygive absolute power to the Government to retire a publicservant, it cannot be said that a guideline more definitethan the words 'public interest' is required to make thepower of retirement valid. I thereforee find that F.R.56(j) is valid and is not vitiate either by any vaguenessin the expression 'public interest' or by any arbitrariness involved in it. As the retirement of a government servant under F.R.56(j) is to be based on the consideration of his individual merit judged by his confidentialreports, a government servant who is though to beinefficient would form a class separate from the restof the public servants who are not thought to be inefficient. As the object of this classification is theefficiency of the public service, the classifications areasonable one and F.R.56(j) is not contrary to Articles 14 and 16 of the Constitution. (See also R.L. Butailv. Union of India 2nd 1969 Del 137 (DB) (11) Appealto Supreme Court is understood to have been dismissed.)

(17) The writ petition, thereforee, fails and is dismissedbut in the circumstances of the case there will be noorder as to costs.

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