V.S. Deshpande, C.J.
(1) THIS. appeal brings out sharply the difference between two different theories governing the termination of the services of a civil servant, namely, (a) termination simplicities because the service is held during the pleasure of the President or the Governor under Article 310, and (b) termination by way of a punishment after compliance with the rules of natural justice embodied in Article 311 of the Constitution.
(2) The services of the appellant was terminated by way of premature compulsory retirement by the impugned order of 10th May, 1978 under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, which is as follows :
'THECentral Government may, in consultation with the State Government concerned and after giving the member of the service at least three months' previous notice in writing or three months' pay and allowances in lieu of such notice, require that member to retire in public interest, from service on the date on which such member completes 30 years of qualifying service or attains 50 years of age or on any date thereafter to be specified in the notice.'
THEappellant, a member of the Indian Forest Service allotted to the State of Uttar Pradesh, attained the age of 50 years on 4th July, 1976. This Screening Committee or the Review Committee consisting of Shri M. Butt, Chief Secretary, Shri N.P. Tripathy, Forest Secretary, and Shri B. P. Srivastava, Chief Conservator of Forest, Uttar Pradesh, considered the case of the appellant for compulsory premature retirement under Rule 16(3) on the 18th November, 1976 and recommended his retirement to the Central Government. This recommendation was based on a consideration of the confidential roll of the appellant from 1966-67 to 1975-76 including some complaints against him which had led to disciplinary proceedings or enquiry by the vigilance against him. The conclusion of the Committee was that the Officer had out-lived his utility and was a fit case for being retired compulsorily.
(3) On 10th January, 1978 the Central Establishment Board met and Shri B. P. Srivastava, Inspector-General of Forests who was present explained the proposal to the Board. The Central Board perused the proceedings of the State Screening Committee or the Review Committee and also the confidential roll of the officer. Taking into consideration the facts stated and also the record of the Officer the Board agreed to the retirement of the appellant under Rule 16(3). In view of the pending proceedings the representative of the Ministry was advised to consult the Ministry of Law before serving the usual notice of retirement on the Officer. Subsequently, the Officer was retired by the impugned order which is as follows :
'NO.A. 38017/1/77-IAS Government of India Ministry of Agriculture & Irrigation (Department of Agriculture) New Delhi, dated 10th May, 1978 Order
INexercise of the powers conferred by sub-rule (3) of rule 16 of the All India Services (Death-cum-Relirement Benefits) Rule?. 1958. the President, in consultation with* the Government of Uttar Pradesh, hereby requires Shri Mahesh Kumar, a member of the Indian Forest Service borne on the State Cadre of Uttar Pradesh and who has already attained the age of 50 years, to retire with immediate effect, in the public interest, from service.
2.A cheque for a sum equivalent to the aggregate amount of his pay and allowances for a period of three months calculated at the same rates which he was drawing immediately before the date of this order, is enclosed.
3.By order and in the name of the President. sd/- (U. S. Pande), Under Secretary to the Govt. of India.'
(4) The appellant filed a writ petition challenging the validity of the retirement on various grounds, such as
(1)Invalidity of Rule 16(3) as permitting arbitrary action with guidelines;
(2)Malafides on the part of respondent No. 4, Shri M. P. Tripathy, resulting in adverse entries in the confidential reports of the appellant;
(3)Illegality of review proceedings held by the Union of India and Shri B. P. Srivastava, Inspector-General of Forests;
(4)Illegality of the order of retirement as being without notice; and
(5)Departmental proceedings/enquiries were initiated against the petitioner, the C.I.D. enquiry had been completed in the petitioner's favor long ago, but two vigilance enquiries were going on, and the petitioner has been served with a charge-sheet on the basis of several reports made by Shri Tripathy as Conservator of Forests which was subsequently cancelled by the Government of Uttar Pradesh, but Shri Tripathy has further recommended the drawing up of a fresh charge-sheet.
(5) The learned single Judge dismissed the writ petition on the ground that the material considered by the Screening Committee could sustain his premature retirement in public interest, that the retirement was not vitiated by lack of a previous notice in writing, that Rule 16(3) was not invalid, that no mala fides of Shri Tripathy vitiated any confidential reports against the petitioner appellant and that no illegality attached to the proceedings of the Screening Committee of the State Government and the Review Committee of the Central Government. The learned single Judge did not give any finding as to the pendency of disciplinary proceedings against the appellant arising out of the same material on which the compulsory retirement was based.
(6) In considerinug the admission of the appeal, we issued notice to the standing counsel for the respondents on 7-11-1978 to show cause why the appeal be not admitted because the counsel for the appellant said that enquiries into the allegations resting upon the adverse entries in his confidential reports were instituted and may still be pursued even after his retirement. The question then raised was whether the retirement can be found to be unjustified if the very adverse entries on the basis of which retirement is made are subsequently found to be incorrect. The other question whether retirement itself is vitiated thereby became particularly relevant because in ground No. Vi of the writ petition the pendency of disciplinary proceedings and vigilance proceedings against the appellant was expressly pleaded as being contemporaneous with the proceedings for his compulsory retirement and in the counter-affidavit filed by respondents 3 to 5 this allegation made in ground. Vi of the .writ petiton was admitted on page 191 of the paper-book in the following words :
'....certain vigilance enquiries and departmental proceedings are pending against the petitioner. The petitioner has not filed any documents or record substantiating the allegations made by him under ground VI. There are no such allegations in the text of the writ petition either. The obvious conclusion in a case where several departmental enquiries/proceedings vigilance enquiries are pending, would be that there is something wrong with the petitioner and what the petitioner terms to be a mountain there must at least be a mole hill. If a person has done no wrong, the whole world will not simply turn against him. The enquiries or departmental proceedings which are going on presently have to be carried on because if the petitioner is proved guilty and is liable for penal consequences, he will suffer the same in accordance with law.'
(7) After hearing the arguments of the learned counsel the foremost question of law which was presented before us was the one which was not decided by the learned single Judge, namely, as to whether on the same material two divergent actions can be taken against the petitioner, (i) compulsory retirement under Rule 16(3), and (2) disciplinary proceedings or vigilance proceedings with a view to punish him. The constitutional position is clear. The termination of the service of a civil servant can be brought about by the Government in two distinct ways for two distinct reasons. The two cannot be combined but are mutually exclusive, on the one hand is Article 310 of. the Constitution under which a civil servant holds his office during the pleasure of the Government. This means that the Government has the power to terminate the service's otherwise than by way of punishment. The compulsory retirement under Rule 16(3) is covered by this method of termination. On the other hand, the termination can be the result of punishment such as dismissal or removal which may be inflicted on the civil servant by the Government after due hearing under Article 311 of the Constitution. Disciplinary rules have also been made by the Government for inflicting punishments on civil servants which are other than dismissal or removal. But the distinction between compulsory retirement otherwise than by way of punishment and the imposition of punishment including dismissal or removal is quite clear.
(8) As observed in Samsher Singh v. State of Punjab and another, : (1974)IILLJ465SC , 'The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if Ins services are terminated without following the provisions of Art. 311(2) he can claim protection.' This passage in this decision by a seven-Judge Bench reconciles the various authorities of the Supreme Court. Some of them had held that even a termination simplicities could be by way of punishment and, thereforee, invalid if it was made in contravention of Article 311(2). In others it was held that the court could not go behind an order of termination simplicities even if the termination would not have been made but for some defects or faults on the part of the Government servant concerned; briefly, on the same facts any one of the two different kinds of action could be taken by the Government, (i) simple termination and (ii) termination by way of punishment. It is necessary, however, that the Government should make up its mind as to which of the two methods of termination it decides to adopt. Once the Government decides to compulsorily retire the appellant it must be presumed to have decided that the appellant was not to be punished for the same thing for which he was being compulsorily retired other than by way of punishment. A similar conclusion based on somewhat different reasons has also been arrived at by a Division Bench of the Allahabad High Court in G. S. Sial v. Union of India and another, 1978 Slj 88.
(9) When the material on the basis of which the order of retirement is passed consists of two different kinds, namely,
(I)disclosing the public interest to be served by the retirement; and
(II)alleged misconduct which could be inquired into with a view to punishment,
WHATshould we 'do' in judicial review The sufficiency of the material is not justiciable. The Court would not, thereforee, question the correctness of the retirement on the ground that the material was insufficient. The Court has to see, however, whether the Government intends to fake disciplinary or punitive action on the basis of allegations of misconduct.
(10) Unfortunately, it appears to us that the Government did not appreciate that these two methods are completely exclusive and both of them could not be simultaneously taken against the appellant. The Central Establishment Board while recommending the compulsory retirement of the appellant seems to have felt a doubt as to whether this could be done when proceedings were pending against the appellant. , They thereforee advised that the opinion of the Ministry of Jaw should be obtained before action for compulsory retirement of the appellant is taken. It is, however, not known as to what was meant by the expression 'pending proceedings' and whether they were writ petitions pending in the Allahabad High Court or the disciplinary and vigilance proceedings instituted by the Government against the petitioner. Nor is it known that advice was given by the Ministry of Law. The point is clinched by the admission by respondents 3 to 5 at page 191 of the paper-book in reply to ground Vi of the writ petition which is already quoted above. At pages 239 and 240 of the paperbook is also a letter written by Shri B. P. Srivastava, Additional Chief Conservator of Forests, U.P. to Shri K. C. Joshi, Commissioner and Secretary, sometime after 18-6-1978, that cerain charges against the petitioner existed and enquiry by Vigilance Commission be made and action against him taken. As regards other charges he says that he has already made a report to the Government.
(11) If vigilance enquiries and departmental proceedings were pending against the petitioner appellant even when title counter-affidavit was filed on 18th August, 1978 and if the learned counsel for respondents 3 to 5 could not make a statement before this court in answer to our query that no such proceedings were pending against the appellant, we must take it as admitted that disciplinary proceedings and vigilance enquiries were pending against the appellant from before and after the order of compulsory retirement was passed against him. The whole material against the petitioner appellant was summarised in para 10 which was put before the Screening Committee. On that material the appellant has been retired and on some of the items from the same material disciplinary proceedings against him were also started and are still going on.
(12) Actual disciplinary proceedings under the disciplinary rules can be taken only against a Government servant who is still in service. They cannot be taken against him after he ceases to be in service. Similarly, vigilance enquiries can be instituted at the instance of the Government only against persons in Government service. It may be that after the report of the vigilance enquiries is submitted the Government may have to decide whether to prosecute the person concerned or to institute departmental inquiry against him or exonerate him or to take some other action or no action against him. But the very continuance of the vigilance proceedings contemplates that the Government servant against whom they are taken is in service. On the other hand, if the Government wishes to pursue the disciplinary proceedings and vigilance enquiries then it implies the decision by the Government not to retire the person concerned prematurely. It is absolutely necessary that the person concerned should continue in service so that disciplinary action and action on the vigilance report may be taken against him since no disciplinary action can be taken after he ceases to be in service.
(13) The vitiating element in simultaneously pursuing the action of retirement as also the vigilance and disciplinary proceedings is not that the disciplinary proceedings and the vigilance proceedings become illegal after the retirement but rather that the intention of the Government in passing the order of retirement was to punish the appellant and not simply to retire him otherwise than by way of punishment. We are not, thereforee, concerned about the illegality of the vigilance and disciplinary proceedings. On the other hand, our view is that the retirement itself is illegal because the foundation of the retirement is the punishment of the appellant. It is not a mere motive. Had it not been the foundation and only a motive then the actual departmental proceedings and the vigilance enquiries would not have been instituted against him. In fact, the matter has gone beyond not only motive but also beyond the foundation and has actually manifested itself in disciplinary action against the petitioner. In these circumstances, the retirement cannot be regarded as being otherwise than by way of punishment. This conclusion is reinforced by a perusal of the whole of the material against the appellant contained in ten paragraphs which are reproduced in the judgment of the learned single Judge and which had been placed before the State Review Committee as also the Central Establishment Board. The material itself consists of two parts. On the one hand, it consists of departmental action already in progress and vigilance enquiries also in progress. That part of the material on which departmental and vigilance enquiries were instituted could not be regarded as proper material on which retirement action could be based. For, once the material is used for punitive purpose, it cannot be considered for a non-punitive purpose. The compulsory premature retirement of the appellant has to be regarded as punitive 'since punitive action has been instituted on a part of the material on which retirement order is based. That part of the material on which punitive action is instituted has not been separated from the rest of the material on which retirement could be based as being not by way of punishment. In these circumstances, the retirement has to be regarded as being by way of punishment and since the procedure laid down by Article 311(2) of the Constitution has not been followed before passing the order of retirement by way of punishment the impugned order of retirement is invalid.
(14) Our findings on the other questions of law are against the appellant. Rule 16(3) is not invalid because it properly fixes the lower age limit without attaining which the appellant could not have been retired. Once that age is attained the Government has the discretion to retire him at any time. No arbitrary power is conferred on the Government because the appellant has no absolute right to continue in service after he attains the age of 50 years, if the Government considers his retirement to be in public interest.
(15) It is true that no notice was given to the appellant before. his retirement as required by rule 16(3). But no prejudice was caused to him because the pay cheque for three months' salary was sent to the petitioner with the order of retirement itself. The object of the notice is to give time to the petitioner appellant to seek some other means of livelihood during the three months period, while he is getting his pay. Since the pay for three months is paid to him this object has been achieved. The requirement of notice in this sense is only directory and not mandatory.
(16) The pension and gratuity payable to the appellant on retirement is calculated on the basis of the length of service divided into six monthly Installments. If notice of three months had been given to the appellant he would have been able to serve for three months after 10th May, 1978, namely till 10th August, 1978. The six-monthly period in which his service is divided begins with the month of April so that these periods are April to October and October to April. It was immaterial, thereforee, whether the appellant retired in May, 1978 or August, 1978 inasmuch as both these points of time are comprised within the six-months from April to October, 1978. The appellant has got the benefit of service till April, 1978. He would not get the benefit of service for the rest of the three months unless he were to serve till October, 1978. The period of service of the appellant would not have been extended to October, 1978 even if notice of three months had been given to him in May, 1978. It is thus clear that the amounts of pension and gratuity payable to him on retirement were not affected by the absence of notice of three months.
(17) It was then said that according to the administrative instructions the State Review Committee should have considered the case of the appellant for retirement six months before he attained the age of 50 years. These guidelines are meant to be obeyed by the civil servants concerned as a matter of internal administration and with a view to avoid hardship to those against whom orders of retirement are passed. But they do not create any right in the person against whom an order of retirement is passed (G. J. Fernandez v. State of Mysore, : 3SCR636 . Further, extracts of notes and orders appearing on page 4 of file No. 30(18)/76 of the Forest Department (1) of the Government of Uttar Pradesh concerning the screening of the Indian Forest Service Officers have been seen by us from the original file which is in Hindi. An English translation of the same has been filed by the respondents. Reasons are given there why the screening could not be done of the batch of Officers which included the appellant before they attained the age of 50 years. The reason was that the confidential rolls of these officers for the period 1975-76 were not received from the office of the Chief Conservator of Forests till October, 1976. The State Review Committee meeting was held in November, 1976 as soon as the confidential rolls were received. Rule 16(3) itself does not require such a review to be done six months before the appellant attained the age of 50 years. The argument that such review six months prior to the attaining the age of 50 years was necessary was based on the Supreme Court decision in State of Uttar Pradesh v. Chandra Mohan Nigam, : (1978)ILLJ6SC . But rule 16(3) relevant in that case was the unamended one. At that time the Government could retire a member of the service to retire when he had completed 30 years of qualifying service or attained the age of 55 years. Rule 16(3) with which we are concerned is the amended one reproduced above. Under the amended rule a member of the service can be retired on completion of 30 years of service or attaining the age of 50 years or 'on any date thereafter to be specified in the notice'. The discretion is now given to the Government to keep under observation the performance of a member of the service after he attains the age of 50 years so that whenever it appears to the Government that his retirement would be in public interest the order of retirement may be passed.
(18) Lastly, departmental instructions cannot override the statutory rule. It is only because the unamended rule 16(3) could have given arbitrary power to the Government that the Supreme Court emphasised the importance of those instructions in Chandra Mohan Nigam's case (supra). But the amended Rule 16(3) is not arbitrary for the simple reason that the guideline to be kept in mind by the Government after a member of the service attains the age of 50 years is 'public interest'. In relation to the performance of a public servant the expression 'public interest' is not vague. It is only when the performance is unsatisfactory that the retirement would be made. Indeed in Union of India v. Col. J. N. Sinha and another, : (1970)IILLJ284SC , it was observed that even if the work of the particular public servant is satisfactory, chopping of the dead wood is necessary because the work of some other person may be better.
(19) A? for bona fides against Shri N. P. Tripathy, on the 14th June, 1970 the Chief Conservator of Forests, observed that the relations between Shri Tripathy and the appellant were considerably strained. This proves the allegation of the appellant that Shri Tripathy at one time had bias against him. But how far this bias could vitiate the report of the State Screening Committee against him in 1976 is doubtful. Firstly, it is not known if Shri Tripathy continued to harbour ill-feeling against the appellant from 1970 to 1978. Secondly, Shri Tripathy was only one of the three members of the Screening Committee. There is no presumption that he influenced the other two members of the Committee. It is true that in A. K. Kraipak and others v. Union of India and others, : 1SCR457 , the presence of the Conservator of Forests on the Selection Committee vitiated the proceedings of the Selection Committee. But this was because he considered the merits of his rivals even though he did not sit on the Committee when his own selection was considered. On the other hand, in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and others, (1959) Suppi. 1 Scr 860, the question before the Supreme Court was whether the report of the Privileges Committee against Shri Sharma was vitiated by the bias of Shri Sri Krishna Sinha, Chief Minister of Bihar, who was the Chairman of the said Committee, Das, C.J. speaking for the court observed as follows :
'.. . . the Chief Minister is but one of the fifteen members of the Committee and one of the three hundred and nineteen members of the House. The Committee of Privileges ordinarily includes members of all parties represented in the House and it is difficult to expect that the Committee, as a body, will be actuated by any mala fide intention against the petitioner. Further the business of the Committee is only to make a report to the House and the ultimate decision will be that of the House itself. In the circumstances, the allegation on had faith cannot be readily accepted.'
INour view, this observation of the Supreme Court is applicable to the facts of the case before us. No bias has been alleged against the Chief Secretary, who was the senior-most Officer in the Screening Coommittee, nor is any bias proved against Shri Srivastava who was the other member. Further, the material on which the Screening Committee decided to recommend the retirement of the petitioner was placed before a totally different body consisting of four senior Secretaries to the Government. They have independently come to the same conclusion. The retirement cannot, thereforee, be vitiated by any bias or mala fides.
(20) However, the compulsory retirement was vitiated because disciplinary and vigilance proceedings were taken against the appellant on the material on which it was based. The appeal is, thereforee, allowed. The judgment of the learned single Judge is set aside and the impugned order of compulsory retirement, dated 10th Mary, 1978 is set aside In the circumstances, there will be no order as to costs.