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Gujarat Housing Board Vs. C.G. Desai - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberF.A. No. 473 of 1980 C.A. 55 of 1981
Judge
Reported in(1982)2GLR489; (1983)ILLJ387Guj
ActsIndustrial Disputes Act, 1974 - Sections 16 and 66; Gujarat Housing Board Act, 1951 - Sections 73; Bombay Housing Board Act, 1948 - Sections 67; Gujarat Housing Board (Amendment) Act, 1957 - Sections 86(4); Gujarat Housing Board (Amendment) Act, 1961 - Sections 7 and 13; Bomaby Civil services Rules, 1959 - Rule 161, 161(1) and 161(1)(1); ;Gujarat Housing Board Rules, 1977 - Rules 5, 5(5), 10(1), 10(2), 16(3) and 19(2); ;Constitution of India - Articles 14 and 16
AppellantGujarat Housing Board
RespondentC.G. Desai
Cases ReferredBrij Behari Lal Agarwal v. Hon
Excerpt:
labour and industrial - compulsory retirement - rule 161 (1) (aa) (1) of bombay civil services rules, 1959 - compulsory retirement of respondent - retirement on account of report of review committee - head of concerned department not made member of review committee - no valid reason given by review committee - compulsory retirement of respondent untenable. - - the plaintiff had some grievance regarding his non-promotion to a higher post and hence he has approached the industrial tribunal functioning under the industrial disputes act, 1974. ultimately, promotion came to be given to him with effect from september 1, 1973. thereafter, the plaintiff's case was reviewed for retirement by the recruitment and establishment committee of the appellant board which by its resolution dated.....1. the gujarat housing board has filed this appeal against the respondent-plaintiff being aggrieved by the judgment and decree passed by the learned judge at the city civil court, court no. 15 on 13.3.1980 by which the respondent plaintiff's suit was decreed and it was declared that the suit resolution dated december 19, 1978 at exhibit 19 recommending the plaintiff's premature retirement from service and the consequential order dated june 5, 1979 at exhibit 20 retiring the plaintiff prematurely from service are illegal and invalid and of no consequence whatsoever. it was declared that the plaintiff continued to be in service irrespective of the suit resolution at exhibit 19 and the suit order at exhibit 20 and was entitled to all benefits of service with effect from the date of the suit.....
Judgment:

1. The Gujarat Housing Board has filed this appeal against the respondent-plaintiff being aggrieved by the judgment and decree passed by the learned Judge at the City Civil Court, Court No. 15 on 13.3.1980 by which the respondent plaintiff's suit was decreed and it was declared that the suit resolution dated December 19, 1978 at Exhibit 19 recommending the plaintiff's premature retirement from service and the consequential order dated June 5, 1979 at Exhibit 20 retiring the plaintiff prematurely from service are illegal and invalid and of no consequence whatsoever. It was declared that the plaintiff continued to be in service irrespective of the suit resolution at Exhibit 19 and the suit order at Exhibit 20 and was entitled to all benefits of service with effect from the date of the suit order at Exhibit 20, that is, with effect from June 5, 1979 and a mandatory injunction was also issued directing the respondent to reinstate the plaintiff in service with immediate effect.

2. A few facts leading to this appeal deserve to be noted at the outset. The respondent-plaintiff joined the service of the then Bombay Housing Board and his services came to be allocated to the State of Gujarat from May 1, 1960 and he was serving as a Superintendent with effect from September 1, 1973 in the Gujarat Housing Board. The plaintiff had some grievance regarding his non-promotion to a higher post and hence he has approached the Industrial Tribunal functioning under the Industrial Disputes Act, 1974. Ultimately, promotion came to be given to him with effect from September 1, 1973. Thereafter, the plaintiff's case was reviewed for retirement by the Recruitment and Establishment Committee of the appellant Board which by its resolution dated December 19, 1978 recommended that the plaintiff should be retired from service after the age of 50 years. Pursuant to the said recommendations of the Recruitment and Establishment committee of the appellant, the suit order came to be passed. The decision of the learned trial Judge rested on the following points which he found in favour of the plaintiff.

1. The impugned orders were violative of Rule 161(1)(aa)(1) of the relevant Rules read with Government Circular Exhibit 17 inasmuch as the plaintiff was made to retire a few months after he had already crossed the age of 50 years when his case was reviewed by the review committee and such a procedure was de hors the scheme of the aforesaid rule and the clear mandate of the Government Resolution Exhibit 17 under which the appellant was required to review the plaintiff's case six months before the plaintiff actually reached the age of 50 and as the review in question and the consequential orders were passed a few months after the plaintiff having actually reached the age of 50 years, the entire exercise was null and void.

2. As per the Government Circular Exhibit 17 which was binding on the Board, review committee was not properly constituted. As the head of the department under whom the plaintiff was working was not a member of the review committee, the recommendations of the review committee became invalid and inoperative at law and consequently the impugned orders also would fall through.

3. As per para 2(5) of the Circular Exhibit 17 the Review Committee concerned was required to record fully and clearly the considerations and reasons for their conclusion to retire prematurely an officer as a result of the examination of his service record. The Review Committee in the present case has not followed the said mandatory requirements of the circular and has not properly recorded the reasons as laid down in the said circular and therefore the impugned orders passed on such recommendations of the Review Committee had no legal efficacy and were liable to be quashed.

4. Even considering the confidential reports which the Review Committee considered before recommending premature retirement of the plaintiff at the age of 50 the conclusions of the Review Committee were totally perverse and were quite contrary to the requirements of the circular Exhibit 17 as the plaintiff was not mentioned as below average in the concerned confidential reports scrutinised by the review committee and therefore the review committee had no power to recommend his premature retirement and even on that ground also the impugned orders were null and void.

3. The aforesaid are the four main grounds on which the learned trial Judge decreed the suit of the plaintiff and he also based his decision on an additional point as under :

5. The confidential reports as maintained by the appellant Board were not in accordance with Government Resolution dated 8th March, 1969, Exhibit 30. Therefore the opinion of the review committee based on such improperly maintained confidential reports had no legal efficacy and hence also the impugned orders were liable to be quashed.

As stated above, the learned trial Judge having found in favour of the plaintiff on the aforesaid five points decreed the suit of the plaintiff.

4. xx xx xx

5. It is now time for me to enumerate the main submissions raised by Mr. Raval, the learned advocate for the appellant Board. Mr. Raval has submitted as under :

1. The learned trial Judge had apparently erred in taking the view that the impugned orders are ultra vires and de hors the provisions of rule 161(1)(aa)(i) of the Rules as well as the relevant provisions of the Government Circular Exhibit 17 and in holding that no review was possible after the concerned servant had actually reached the age of 50 years. Mr. Raval submitted in that connection that by a series of judgments of this Court a view contrary tot he one taken by the learned trial Judge has been taken and such a view has stood now well established and therefore the decision rendered by the learned trial Judge on point No. 1 is liable to be reversed.

2. So far as the Constitution of the Review Committee is concerned, Mr. Raval submitted that the review Committee was properly constituted and the head of the department, namely, the Housing Commissioner was very much there in the said committee and even otherwise the Chairman being the highest executive authority of the Board was also the Chairman of the Review Committee and consequently there was no question of the Constitution of the said review Committee being contrary to the provisions of Government Circular, Exhibit 17. In continuation of the said contention, Mr. Raval alternatively submitted that even assuming that the review committee was not properly consituted as alleged by the plaintiff as the requirements of the Government 's Circular Exhibit 17 were substantially complied with and as the plaintiff could not have proved any prejudice to have been caused to him, the alleged improper constitution of the Review Committee cannot have any nullifying consequences so far as the impugned orders are concerned especially in view of the fact that a bona fide and objective opinion was given by the review committee having considered the pros and cons of the situation and especially when the plea of factual mala fides even though earlier taken was expressly given up by the plaintiff at the stage of trial.

3. Mr. Raval next contended that the learned trial Judge was in error when he held that the impugned orders were violative of the directions contained in para 2(5) of Ex. 17 and that sufficient reasons were clearly recorded by the review committee as seen from Ex. 10, the resolution. Hence the learned trial Judge was in error when (he) held to the contrary.

4. Mr. Raval further contended that the learned trial Judge was obviously in the error when he held that the plaintiff was not found to be below average in the concerned confidential reports considered by the review committee and that an overall view of the matter had to be taken and having taken the overall view the recommendations were made by the review committee to retire the plaintiff having found him to be not up to the standard and such an exercise of power cannot be said to be arbitrary or perverse in any manner and the Civil Court cannot sit in appeal over the domestic decision of the review committee as adopted and accepted by the Board.

5. Mr. Raval then contended that the concerned confidential reports were properly maintained by the Board and there was no clear pleading about the plaintiff's challenge to the system of maintaining the confidential reports and consequently the learned trial Judge ought not to have held that the confidential reports in question which were considered by the review which were considered by the review committee were kept contrary to law and could not furnish any material for the review committee to sustain its conclusion thereon.

6. Mr. Joshi, the learned advocate for the respondent refuted the aforesaid contentions raised by Mr. Raval for the appellant and supported the judgment and decree of the trial Court on all the points decide by the learned trial Judge in favour of the respondent.

7. I will now proceed to consider the aforesaid contentions raised in support of the appeal in the same sequence in which they were raised before me.

1. The impugned resolution and the order being in violation of Rule 161(1)(aa)(1) of paragraph 2 of Circular Ex. 17.

8. On order to appreciate the controversy centering around this contention, it is necessary to have a look at the concerned rules and the relevant provisions of Government Circular, Ex. 17. Rule 161(1)(aa)(1) contained in Chapter IX-Compulsory retirement of B.C.S.R. reads as under :

'161. (1) (a) Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV servant is the date on which he attains the age of 58 years :

Provided -

(i) He may be retained in service after the date of compulsory retirement only with the previous sanction of Government, on public grounds which must be recorded in writing.

(aa) Notwithstanding anything contained in clause (a) (ii) An appointing Authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom clause (a) applies by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice :-

(1) if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years, and xxx xxx xxx xxx

It is agreed between the parties that the aforesaid rule applied to the facts of the present case. A combined reading of rule 161(1)(a) with the relevant provisions or Rule 161(1)(aa) makes it clear that normally a Government servant other than a Class IV servant retires at the age of 58 years. The plaintiff admittedly was a Class II servant at the time of impugned orders. Hence his normal age of superannuation is 58 years. But as per the provisions of Rule 161(1)(aa)(ii), if the appointing authority is of the opinion that it is in the public interest to retire a government servant, he has the absolute right to retire any Government servant to whom clause (a) of this rule applies by giving him notice of not less than three months' in writing or three months pay and allowances in lieu of such notice. It is the case of the plaintiff that even though the notice of not less than 3 months was not given it is true that three months' pay and allowances were given to him by the appellant Board. Thus, the procedural requirement of Rule 161(1)(aa) has been complied with. But the plaintiff's main grievance is that he could not have been so retired in exercise of powers by the appointing authority as the exercise of that power has been canalised and compartmentalised by a Government Circular Exhibit 17 which lays down certain mandatory conditions to be fulfilled before such an order under Rule 161(aa) can be passed against the concerned government servant. It is therefore necessary for me to turn to the consideration of the relevant Government circular, Ex. 17. The said circular Ex. 17 seeks to lay down certain guidelines regarding premature retirement of all Government servants under Rules 161(a). The procedure and criteria to be followed in such cases have been laid down in the said circular issued by the Government of Gujarat in the General Administration Department. It is also not in dispute between the parties before me that the provisions of the said circular would apply to the facts of the present case. The preamble of the said circular reads that under sub-clause (i) (1) of clause (aa) of Rule 161(1) of the Bomaby Civil services Rules, 1959, as inserted by Government Notification Finance Department No. G.N. 2 PEN-1070-625-J, dated 28th April, 1970, an appointing Authority may, if it is of the opinion that it is in the public interest so to do retire any Government servant to whom clause (a) applies, by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, if he is in Class I or Class II service or post of in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below thirty-five years on or after the date on which he attains the age of retirement of Government servant continues to be 58 years. Paragraph 2 of the said circular lays down certain criteria to be followed by the concerned authority before it can exercise its powers under Rule 161(aa) of B.C.S.R. Paragraph 2 of the said circular says that the Government has considered the question as to what criteria and procedure should be prescribed to ensure uniform and equitable application of this provision and it has been decided that the following criteria and procedure should be observed for the purpose. In the present case, sub-paragraphs (1) to (8) of paragraph 2 of the circular Exhibit 17 are relevant and I therefore deem it fit to reproduce them in extenso :

'2. (1) Six months before a government servant attains the age of 50 years his record should be carefully examined by the authority competent to make an appointment to the post which he is holding, whether in an officiating or substantive capacity and the question whether he should be retained in service or retired on his attaining the age of 50 years should be placed before the review committee referred to in sub-paragraph (2) below.

(2) For reviewing the case of gazetted officers for their retention in service or premature retirement, the following Committees should be constituted :

(i) For class I Officers -

A committee consisting of the Secretary of the Administrative Secretariat Department and the Head of Department concerned, and

(ii) For Class II Officers -

a committee consisting of the Head of Department concerned and a senior Class I officer from the Administrative Secretariat Department concerned. (3) The aforesaid Committee should carefully examine the cases and should submit their recommendations to Government on the point whether the Government Servants under review should be retained in service or retired on their attaining the age of 50 years. The recommendations of the Committees should be forwarded to the Administrative Secretariat Departments for obtaining the final orders of Government.

(4) where it is proposed to retain a Government servant in service beyond the age of 50 years, the respective Secretarial Departments should themselves decide finally the cases pertaining to Class II officers. Similarly, the cases of Class I officers should be decided by the respective Secretariat Departments after obtaining the concurrence of the Chief Secretary (of) the General Administration Department. In the case of Section Officers and gazetted officers in the Secretariat, the decision should be taken by the General Administration Department.

(5) Where the Committee concerned comes to the conclusion, as a result of the examination of the government Servant's record that he should be retired prematurely they should record fully and clearly the considerations and reasons for their conclusion. The respective Secretariat Department, on receipt of the recommendations of the Committee, should decide such case after consulting the General Administration Department. It is necessary that this process should be completed in each case in about three months' time, so that in the event of retirement being finally decided upon, it is possible to serve a notice on the Government Servant concerned at least three months before the date on which he attains the age of 50 years. In all such cases, it is necessary that a notice in which the date of the proposed retirement of the government Servant concerned should be specified is served on him after the aforesaid process is gone through. A final decision as to the premature retirement of a Government Servant on or after his attaining the age of 50 years, has to be taken by Government on the basis of the recommendations made by Review Committee.

(6) In the case of a Government Servant whose integrity is in doubt, it would be appropriate to consider him for premature retirement, irrespective of an assessment of his ability or efficiency in work.

(7) In a case in which an officer's integrity is not in doubt, but his physical or mental condition is such as to affect adversely his efficiency or ability for further service, it would be appropriate to consider him for premature retirement. However, in such cases, it is desirable, once it has been decided to retire Government Servant prematurely, that the authority concerned should first advise the Government Servant to opt to retire under sub-clause (ii) of clause (aa) of Rule 161(1) of the Bombay Civil Services Rules, 1959 and action to give him notice under clause (aa)(i) should be taken, only if the Government Servant files to act according to this advice.

As to the point whether or not physical and/or mental condition of the Government Servant nearing the age of 50 years should be assumed to be good, the clarification made in Government Circular, General Administration Department No. CRA-1063 G, dated the 10th March, 1964 holds good in the cases covered under this Circular also.

(8) subject to the consideration mentioned in sub-paragraphs (6) and (7) above, a Government Servant with a satisfactory record of service should not be retired prematurely. It is only when a Government Servant falls below the average standard that he should be proposed for retirement on his attaining the age of 50 years. The detailed clarifications made in this behalf in sub-paragraph (f) in para 2 of Government Circular, General Administration Department No. CRA-1063-C, dated the 25th October, 1963 also hold good, mutatis mutandis in the cases covered by this Circular.'

So far as the first contention raised by mr. Raval is concerned, the consideration thereof will centre round the interpretation of sub-para (1) of paragraph 2 of the said circular, Ex. 17 which says clearly that six months before a Government Servant attains the age of 50 years his record should be carefully examined by the authority competent to make an appointment to the post which he is holding, whether in an officiating or substantive capacity, and the question whether he should be retained in service or retired on his attaining the age of 50 years should be placed before the Review Committees referred in sub-paragraph (2). Thus this circular shows that six months before the Government Servant attains the age of 50 years his record should be carefully examined by the review authority. Mr. Joshi tired to make a capital out of the words mentioned in this paragraph contending that as the appellant Board had not placed before the review Committee the records of the plaintiff, six months before the plaintiff attained the age of 50 years, for getting them duly examined, it was not open to the appellant Board to exercise such powers under Rule 161(aa) at a subsequent stage. Mr. Joshi submitted that in the present case it is an admitted position that the Review Committee has considered the case of the plaintiff after three months of the plaintiff's reaching the age of 50 and therefore the proceedings of the Review Committee did not satisfy the condition precedent as required by paragraph 2(1) of Ex. 17 and hence the proceedings were null and void. In this connection Mr. Joshi invited my attention to a later circular Ex. 35 which has clarified the earlier circular Ex. 17. The later circular Ex. 35 is dated 15th September, 1970. Mr. Joshi contended that by the time B.C.S.R. Rule 161 (aa) was brought on the Statute book on 28th April, 1970, there would be a number of Government Servents who might have actually reached the age of 50 years. In their cases it would have been physically impossible to have nay review of the respective case six months prior to their actually reaching the age of 50 years. Consequently, in order to make the provisions of para 2(2) of the Government Circular dated 15th May, 1970 workable, the Government of Gujarat issued a clarificatory circular dated 15th September, 1970, Ex. 35. It has been state in that circular as under :

'Pursuant to the instructions issued in Government Circular, General Administration Department No. AIS-3667-1089-37-G, dated the 15th May, 1970 a few points have arisen which require clarification. The aforesiad instructions are accordingly amplified as under :-

(i)-(ii) xx xx xx xx (iii) B.C.S.R. 161(1) as amended by Government Notification, Finance Department No. G.N. 2 PEN-1070/625-J, dated the 28th April, 1970 admits of premature retirement of a gazetted Government servant on or after the date on which he attains the age of 50 years. Cases of the officers who might have already completed 50 years or more at the time of issue of the aforesaid Notification are also therefore covered by the Notification and should accordingly be reviewed as envisaged in Government Circular, General Administration Department, No. AIS-3667-1089(37)-G dated the 15th May, 1970 unless they have already been reviewed for deciding retention or otherwise of the officers concerned beyond 55 years.'

Mr. Joshi seeking the assistance of the circular Exhibit 35 while reading the main provisions of Circular Exhibit 17 submitted that the mandatory requirements contained in para 2(1) of the circular Exhibit 17 would be relaxed only in cases where the concerned Government servant has already reached the age of 50 years by the time Rule 161(aa) was brought on the statute book but for those Government Servants who had not reached that age of 50 years by that time and who reached that age subsequent to the coming into force of Rule 161(aa) on April 20, 1970 the strict procedure required by paragraph 2(1) of the circular Exhibit 17 has got to be followed. Mr. Joshi contended that in the present case the plaintiff reached the age of 50 years at least 8 years after the coming in to force of B.C.S.R. Rule 161(aa) as well as the circular Exhibit and consequently in this case there was no option left with the appellant but to follow the strict time table as to review as laid and as admittedly the said strict time table was not followed the review that took place a few months after the plaintiff reached the age of 50 years was null and void and the consequential orders were accordingly liable to be set aside. Mr. Joshi submitted that accordingly the decision of the learned trial Judge on this point deserves to be maintained. Mr. Raval, the learned advocate appearing for the appellant Board pressed in service various aspects of the matter so far as this question is concerned. Firstly he submitted that under rule 161(aa)(1) there is no restriction on the powers of the appointing authority to press in service the provisions of the aforesaid rule at any time after the concerned Government servant had reached the age of 50m years. He placed emphasis on the words employed in Rule 161(aa)(1) to the effect that the appointing authority shall if he is of the opinion that it is in the public interest so to do, have the asbolute right to retire any Government servant to whom clause (a) applied by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years and submitted that the only effect to these words is that before a Government servant reached the age of 50 years the power under Rule 161(aa) would not be available to the concerned authority but once a Government servant reaches the age of 50 years then thereafter at any time the appointing authority can excercise the powers laid down in Rule 161(1)(aa)(1), be it some time after the date of such Government servant attaining the age of 50 years or immediately after such attainment. The second aspect on which Mr. Raval placed great emphasis was that even assuming that a detailed time-table has been laid down in paragraph 2(1) of the Government Circular Exhibit 17 and even assuming that the time-table is an additional procedural safeguard available to the concerned Government employees who are sought to be dealt with under Rule 161(1)(aa), even then the provisions of having a review six months immediately prior to the date on which the concerned Government servant reached the age of 50 years as laid down in paragraph 2(1) of the said circular are procedural ones and not mandatory and consequently any violation thehreof cannot have any nullifying consequences if the said timetable has been substantially complied with. Mr. Raval submitted that it is not as if now or never so far as the said provision is concerned and a few months' delay in reviewing the plaintiff's case after the actually reached the age of 50 years cannot be said to be total non-compliance with the time-table prescribed by paragraph 2(1) of Exhibit 17. It was therefore contended by Mr. Raval that the learned trial Judge was patently in error when he took the view that the review of the plaintiff's case by the Review Committee on the expiry of a few months after the plaintiff actually reached the age of 50 years was nullified. Having considered the rival submissions of the learned advocates on this point, I have come to the conclusion that the submission of Mr. Raval on this point is well justified. So far as the first aspect of the matter is concerned, the clear language employed in Rule 161(1) (aa) makes it clear that it is not as if after the Government servant reaches the age of 50 years not a day thereafter his case can be reviewed for the purpose of continuing him in Government service beyond 50 years of age, till his next time for review arise, that is, 55 years of age. In fact, Mr. Raval is on a very strong ground on this aspect as his contention is supported by a Division Bench judgment of this Court in Special Civil Application No. 501 of 1971 decided on 19th October, 1972 (ILR (1973) Gujrat 804) by the then Chief Justice P. N. Bhagwati, and D. A. Desai, J. The very question which has been posed for my consideration on the scope and ambit of Rule 161(1)(aa)(i) of Bombay Civil Services Rules came to be examined in that case. One of the contentions raised by the petitioner, concerned Government servant in the aforesaid case, was as to whether any review can be made in the case of a Government servant for continuing him in Government service after he reached the age of 50 years at any time after that age limit was actually reached. The said contention got reflected into two points for determination, namely, points (C) and (I) in the said Division Bench Judgment. The question raised for consideration at point (C) was as to the effect of the words 'on or after' in sub-clause (1) of clause (i) of Rule 161(1)(aa) and as to whether the said words would mean 'on or immediately thereafter' or 'on or at any time thereafter'. The question raised for consideration at point (I) was as to whether the policy adopted in the Circular dated 15th may, 1972 was that there should be review only at the stage when the Government servant reaches the age of 50 years and there should be no review thereafter until he reached the age of 55 years. It may be stated at this juncture that in the present appeal I am not concerned with the effect of Government circular dated 15th May, 1972 but I may mention that the discussion on Points (C) and (I) in the Division Bench Judgment directly touches upon the question which is raised for my consideration in the present appeal. The Division Bench speaking through P. N. Bhagwati, C.J. (as he then was) answered both the aforesiad points against the petitioner concerned Government servant who was sought to be prematurely retired after he reached the age of 50. Negativing the contention based on the interpretation of the words 'on or after' as employed in Rule 161(1)(aa)(i), it was held that the words 'on or after' imply the words 'on or at any time after'. The Government servant can therefore be compulsorily retired on the date on which he attains the age of 50 years or at any time after such date. There is no warrant for refusing to give full effect to the plain natural construction of the words 'on of after'. It would be contrary to every principle of construction to narrow down the ordinary natural meaning of the words 'on or after' by interpolating'. It was further observed that the object of the rule-making authority clearly was and that is amply and effectively carried out by the use of the words 'on or after' that the Government servant may be compulsorily retired on the date on which he attains the age of 50 years or at any time after such date before he reaches the age of superannuation. Sub-clause (1) of Clause (i) of Rule 161(1)(aa) could therefore be legitimately availed of for the purpose of compulsorily retiring the petitioner, even though he was past the age of 50 years when the order of compulsory retirement was passed against him. On the aspect of the review of the petitioner's case after he reached the age of 50 years, the Division Bench while considering point (I) observed that the Government Circular was not intended to provide and its language is not susceptible of that construction that there should be no review at all of the case of a Government servant after he has crossed the age of 50 years even if his case has not been reviewed at all at any time in the past. It is quite possible that when clause (i) of Rule 161(1)(aa) was introduced, a Government servant might have already croseed the age of 50 and he might be running his 51st, 52nd, 53rd and 54th year. The Government could certainly review his case for the purpose of deciding whether he should be continued in service. This first review of the case of a Government servant was not sought to be taken away by the Government circular. It is only where as a result of first review it was decided to continue a Government servant in service beyond the age of 50. that a second review at the age of 53 which was provided by the Circular dated 1st July, 1971 was sought to be eliminated by the circular dated 15th May, 1972. The aforesaid Division Bench judgment of this Court clearly rules that under the main scheme of Rule 161(1)(aa)(i) at least one review is permissible in crossed the age of 50 years to enable the competent authority to decide whether such a Government servant should be continued till the age of superannuation or not. Consequently, the decision rendered by the learned trial Judge on this aspect will have to be reversed by holding that the appellant Board was justified in resorting to first reivew even though the plaintiff had already reached the age of 50 years.

9. That takes me to the second aspect of the present contention. The learned trial Judge has placed great reliance on Exhibit 17, paragraph 2(1) thereof wherein a time-table is laid down according to which in case a review of a Government servant is to take place, it should take place at least six months before the concerned Government servant reaches the age of 50 years. The learned trial Judge therefore held that by necessary implication there cannot be such a review of a case of an employee who has already crossed the age of 50 years. Thus, according to the learned trial Judge, the aforesaid provisions of Exhibit 17 lay down a strict time-table to be observed by the review committee on the basis of 'now or never'. Even this reasoning of the learned trial Judge and his ultimate decision thereon run counter to another Division Bench judgment of this Court consisting of S. Obul Reddi, C.J. (as he then was) and N. H. Bhatt, J. in Special Civil Application No. 1142 of 1976 on 30th November, 1976. A reference to the said decision found in the case of V. C. Shroff v. Gujarat Electricity Board reported in [1978-II L.L.J. 450] (HC Gujarat) wherein another Division Bench of this Court consisting of B. J. Divan, C.J. (as he then was) and N. H. Bhatt, J. had to consider the question of the legality of the order of premature retirement as passed by the Gujarat Electricity Board under Regulation 72 against the concerned employee who was the petitioner before this Court. N. H. Bhatt, J. who spoke for the Division Bench had extracted Regulation 72 as framed by the Gujarat Electricity Board. The said Regulation 72 laid down that an employee will be liable to compulsory retirement on the date of his completion of 58 years of age unless specifically re-employed by the Board for a specific period. A proviso was added to the said regulation empowering the appointing authority to retire an employee without assigning any reason by giving him notice of not less than three months in writing or three months' salary in lieu of such notice if he is a workman as defined in the I.D. Act or after the date on which he attains the age of 55 years and if he falls in categories other than those mentioned above, on or after the date on which he attains the age of 50 years. Thus this regulation represented a paralleal scheme like Rule 161(1)(a) and 161(1)(aa) of B.C.S.R. A note was appended to the said Regulation 72 which stated that the following criteria and procedure should be observed to ensure uniform and equitable application of this provision. Sub-paragraph (i) of the said notes says that six months before an employee of the Board attains the age of 50/55 years his record should be carefully examined by the authority competent to make appointment to the post which he is holding whether in an officiating or substantive capacity and a decision should be taken as to whether he should be retired on attaining the age of 50/55 years. As the other sub-paragraphs of the note would be relevant for consideration of other points raised by Mr. Raval in support of the Appeal I deem it fit to briefly refer to the other sub-paragraphs of the note below Regulation 72. Sub-paragraph (ii) provided that in a case in which the competent authority concerned has reasonable cause to believe that the employee of the Board is lacking in integrity, it would be appropriate to consider him for premature retirement. Sub-paragraph (iii) provided that in a case in which an employee's integrity is not in doubt, but his physical or mental condition is such as to affect adversely his efficiency or ability for further service, it should be appropriate to consider him for premature retirement. Sub-paragraph (iv) provided that subject to the consideration mentioned in sub-paragraphs (ii) and (iii) above, an employee with a satisfactory record of service should not be retired prematurely. Sub-paragraph (v) of the said note is not relevatn for our purpose. From the aforesaid Regulation 72 along with the appended note thereto it will be found that sub-paragraph (i) of the note represents a scheme which is parallel to Government Circular Exhibit 17 paragraph 2(1) with which we are concerned in the present case. Regulation 72, like Exhibit 17 paragraph 2(1), enjoined upon the Electricity Board to undertake the review of the case of the concerned employee who had reached the age of 50 years and such a review had to be undertaken six months prior to the time the concerned employee attained the age of 50 or 55 years as the case may be. In para 6 of the reported judgment in V. C. Shroff's case (supra) N. H. Bhatt, J. speaking for the Division Bench reproduced judgment in Special Civil Application No. 1142 of 1976 on 30th November, 1976 as follows :

'Firstly, the ambit of the main provision providing for the compulsory retirement cannot be in any way circumscribed or narrowed down by recourse to a provision made in the note or a procedural provision made ........ To this extent Mr. Mehta is on a firmer foundation, but the fact remains that what has been provided for in these notes is only the procedural aspect to facilitate the implementation of the main provision, which as said above, cloths the appointing authority with a power to retire an officer either on his attaining the age of 50 years or any time thereafter.'

It was also observed by N. H. Bhatt, J. that before the earlier division bench consisting of Obul Reddi, C.J. (as he then was) and himself an argument was advanced that in view of the note (i) appended to the Regulation No. 72 an enquiry during six months preceding the completion of 50 years of age of the employee was a condition precedent to taking action of retiring an employee prematurely. It was also urged by Mr. Mehta in that case that because of some observations made in note (v), the force of the proviso was considerably toned down. It was further observed by N. H. Bhatt, J. that dealing with the scope of the notes (i) and (v) the above-mentioned observations had come to be made by the Division Bench. N. H. Bhatt, J. in Shroff's case (supra) clearly laid down the difference between the procedural provisions of the various sub-paragraphs of the note appended to Regulation 72 and it was observed that the provision under sub-para (i) was purely a procedural provision while the provisions under sub-paragraphs (ii), (iii) and (iv) dealt with substantive parts of the regulation and did not deal with the procedural requirements. It is therefore obvious that in the earlier decision in Special Civil Application No. 1142 of 1976 decided on 30.11.1976 the Division Bench of this Court consisting of S. Obul Reddi, C.J. (as he then was) and N. H. Bhatt, J. had in terms held that the time schedule provided for the review of the case of the concerned employee, that is, six months before the concerned employee reached the age of 50 years as found in para (i) of the note to Regulation 72 was a procedural provision and any lapse in compliance with the same did not whittle down the power that was vested in the Gujarat Electricity Board to prematurely retire the concerned employee. It is therefore obvious that the time schedule provided is a procedural aspect of the matter and substantial compliance therewith would be enough for sustaining the impugned action against the concerned employee. The said procedural provision was not required to be strictly complied with. In view of the aforesaid two Division Bench judgments of this Court must be held that the learned trial Judge was in error when he took the view that the Gujarat Housing Board was not entitled to review the case of the plaintiff for the purpose of deciding whether he should be continued in the Board service after he attained the age of 50 years as the said review was held a few months after the plaintiff already reached the age of 50 years. The decision rendered by the learned trial Judge on point no. 1 will therefore have to reversed, by holding that the appellant Board was justified in resorting to the first and only review in the case of the plaintiff for deciding whether he was entitled to be continued in service beyond the age of 50 years and only because the said review took place a few months after the plaintiff reached the age of 50 years it had not resulted in any nullifying consequences.

10. That takes me to the consideration of the second contention raised by Mr. Raval in support of the appeal. Mr. Raval contended that the constitution of the review committee was wrongly found fault with by the learned trial Judge. In order to appreciate this contention it would be necessary to have a look at the relevant provisions of Government circular, Exhibit 17. paragraph 2(2) of Exhibit 17 which has been extracted in the earlier part of the judgment provides that for reviewing the cases of gazetted officer for their retention in service or premature retirement, the following Committee should be constituted : (i) For class I officers, a committee consisting of the Secretary of the Administrative Secretariat Department and the Head of Department concerned, and (ii) for Class II officers, a Committee consisting of the Head of Department concerned, and a senior Class I officer from the Administrative Secretariat Department concerned Mr. Joshi for the respondent contended that the review committee in the case of the plaintiff who was a Class II officer was required to include as an effective member of the committee the head of the department under whom the plaintiff worked at the relevant time. My attention was invited to Exhibit 36 which is an order passed by the Government of Gujarat in exercise of the powers conferred under Rule 5 of the Gujarat Housing Board Rules, 1977 made under S. 73 of the Gujarat Housing Board Act, 1951 by which the Government of Gujarat has approved the appointment of various committees by Gujarat Housing Board. So far as the Recruitment and Establishment Committee is concerned, it provides that the Committee shall consist of (1) Chairman, Gujarat Housing Board, (2) Secretary to Government, Panchayat, Housing and Urban Development Department and Member, Gujarat Housing Board (3) Member, Gujarat Housing Board (4) Member Gujarat Housing Board (sic) (5) Housing Commissioner, Gujarat Housing Board - Nonmember Secretary. Mr. Joshi for the respondent submitted that in the present case the said Committee, namely, Recruitment and Establishment Committee did not include the head of the department under whom the respondent plaintiff was actually working at the relevant time when he was sought to be compulsorily retired. In order to bring home his point, he invited my attention to the impugned order, Exhibit 20 signed by the Housing Commissioner, Gujarat Housing Board, Ahmedabad the covering letter of which has been signed by the Financial Adviser and Chief Accounts Officer. Gujarat Housing Board. The impugned order recites that Shri C. G. Desai Superintendent in the office of Financial Adviser and Chief Accounts Officer, Gujarat Housing Board, Ahmedabad has completed the age of 50 years on 20.7.1978. The matter regarding continuing Shri C. G. Desai beyond the age of 50 years or otherwise was put to Gujarat Housing Board for its consideration in the Board's meeting on 20.12.1978 and the Board after carefully considering all the aspects decided as per Board's Resolution No. 54/78 dated 20.12.1978 not to retain the services of Shri C. G. Desai after 50 years of age and accordingly the plaintiff was sought to be retired from the Board's service in accordance with the provisions contained in B.C.S. Rule 16(1)(aa)(i). The said order was also served on the plaintiff through the Financial Adviser and Chief Accounts Officer, Gujarat Housing Board, Ahmedabad. It is therefore clear that at the relevant time when the plaintiff's case was considered by the review committee he was working as a Superintendent in the office of the Financial Adviser and Chief Accounts Officer. That is the reason why the impugned premature retirement order was despatched from office of the Housing commissioner to the office of the Financial Adviser and Chief Accounts Officer, Gujarat Housing Board, Ahmedabad for being served to the plaintiff. Mr. Joshi was therefore perfectly right when he submitted that the head of the department under whom the plaintiff was working at the relevant time was the Financial Adviser and Chief Accounts Officer, Gujarat Housing Board and (plaintiff) was under his administrative control. The constitution of the review committee at exhibit 36 clearly indicates that the Financial Adviser and the Chief Accounts Officer under whom the plaintiff was working and who was the head of the department where the plaintiff worked was not a member of the review committee, namely Recruitment and Establishment Committee of the Board. In fact, Mr. Raval made it clear that it was not his case that the Financial Adviser and the Chief Accounts Officer had acted as a member of the Review Committee at the relevant time, but his contention was that the head of the department was not the Financial Adviser and the Chief Accounts Officer so far as the plaintiff was concerned, but the Housing Commissioner. He further stated that even the Chairman of the Board was the Chairman of the review committee and the overall control over the entire administrative set up would squarely vest in the Chairman Mr. Raval therefore contended that there was substantial compliance with the requirements of the provisions of Government Circular Exhibit 17, paragraph 2(2). Before proceeding further it is necessary at this stage to mention one more aspect of the matter as pointed out by Mr. Joshi for the plaintiff which has resulted in the filing of additional evidence application by the appellant Board and to which I made a reference earlier. My attention was invited by Mr. Joshi to regulations relating to the remuneration and conditions of services of the Secretary, Housing Commissioner and other officers and servants of the Bombay Housing Board which were framed under S. 67(c) of the Bombay Housing Board Act. 1948 and which regulations even after the formation of the Gujarat Housing Board continued in force by virtue of S. 86(4) of the Gujarat Housing Board Act. 1957. He has invited my attention to the relevant regulation which read as under :

'Regulation 1 : All the staff, the officers and other servants employed and to be employed in the Housing Organisation including the Estate Manager and his staff, but excluding the Chief Accounts Officer and his staff shall be under the administrative control and orders of the Housing Commissioner. The Chief Accounts Officer and his staff shall be responsible to the Housing Board (to the Chairman if authorised by the Board) and independent of the Housing Commissioner.'

'Regulation 7 : The duties of the Chief Accounts Officer will include :

1. Maintenance of the initial accounts of the Board in accordance with the prescribed rules, the directions of the Board etc. and compilation of the monthly and annual accounts and their submission to the Board on the prescribed due date.

2. Check of Budget estimates.

3. (a) Internal audit of all transactions of the Board and

(b) inspection of the initial accounts maintained at the divisional and sub-divisional offices the Estate Managers' Office and other offices of the Board. 4. Pre-audit of bills preferred by competent office (officers) of the Board's offices (including Divisional and Sub-Divisional offices situated in Bombay. ** ** **

From the aforesaid regulation, Mr. Joshi contended that the office of the Housing Commissioner is entirely different from the office of the Financial Adviser and the Chief Accounts Officer and his duties are also different Mr. Joshi invited my attention to Gujarat Housing Board Rules. Rule 5(5) of the said Rules provides for a constitution of the committee in which certain members can be co-opted in the committees constituted under the said rules Mr. Joshi also invited my attention to exhibit 33 at which are found Gujarat Housing Board Service Classification and Recruitment Rules Mr. Joshi in particular invited my attention to Rule 10(2) which provides that every appointment shall be made after consultation with the recruitment committee whenever necessary as per the orders of the Board. Rule 10(1) of the said rules provides that subject to the provision of Gujarat Housing Board Service Classification and Recruitment Rules and other rules if any relating to the recruitment to services and posts and the general control of the Board an appointment to any service or post included in the sub-ordinate services and inferior service shall be made by the Housing Commissioner or where the Head of the office is empowered by the Board by a general or special order to make such appointment, by such head of office placing reliance on Rule 10(1) Mr. Joshi rightly tried to give a picture of functional difference between the Housing Commissioner and the head of office. It is therefore obvious that even though the Housing Commissioner may be the higher authority in overall control of the administrative setup of the Board, so far as the spectrum of duties is concerned the head of the department concerned would be the person who would be a separate entity. Mr. Joshi submitted that in the present case when the plaintiff was working directly under the administrative control and supervision of the Financial Adviser and the Chief accounts Officer, as a superintendent in his office, as per the requirement of Government Circular Exhibit 17 paragraph 2(2) the said Financial Adviser and Chief Accounts Officer being the head of the plaintiff's department was required to be co-opted in the review committee before such a review committee could be held to be properly constituted and could be held to be authorised to review the case of the plaintiff for premature retirement. Now is the time for me to turn to the additional evidence which has been produced by the appellant Board which additional evidence has been allowed by me to go on record in the interest of justice. Mr. Raval by way of additional evidence wanted to point out to me that the seniority list of technical and non-technical employees of the Gujarat Housing Board as on 30.4.1960 was addressed to the various authorities like Senior Superintendent, Deputy Engineer etc. including the Executive Engineer, Ahmedabad. The very fact that the final seniority list of the employees of the Gujarat Housing Board was sent by a covering letter to the different authorities including the Accounts Officer show that the Accounts Officer is the head of a separate department even though working under the same Housing Board and being part and parcel of the same organisation. Now coming to the seniority list itself. It has been mentioned therein that it is the seniority list of technical and non-technical employees of the Gujarat Housing Board as on 30.4.1960. There categories of employees namely, Technical, Clerical (Ministerial), and non-clerical-cum-non-technical employees, are mentioned in the said seniority list. In the Group 'Technical', employees like Draftsman and Tracer are shown. In the Group, 'Clerical (Ministerial)', employment like Senior Superintendent/Junior Superintendent and Assistant are shown. Mr. Raval wanted to contend that the post of Junior Superintendent in the clerical (Ministerial) cadre forms part of the entire comprehensive administrative set up of the Housing Board. So far as the group 'Clerical (Ministerial)' is concerned, at serial no. 11 category of Senior Clerks is mentioned. In that category, the plaintiff figures at serial number 10. Thus in 1960 the plaintiff was working as Senior Clerk under the common clerical administrative set up of the Housing Board and the post of Junior Superintendent was also in the same set up. In the very seniority list is found a list of various posts in the Board's service under different groups. The six groups under which the Board's service was divided were as under : (i) Technical (ii) Clerical (Ministerial) (iii) Non-clerical-cum-Non-Technical (iv) Class IV service (v) Isolated Posts (Specialised (vi) Selection Posts. Mr. Raval's endeavour was to point out that the plaintiff at the relevant time, that is, on 30th April, 1960 as shown by the seniority list was included in Group II 'Clerical (Ministerial)' and he was mentioned as one of the Senior Clerks in the set up. That appears to be so. In the sixth groups, namely, the selection Posts', the following posts are mentioned : (a) Housing Commissioner and Secretary, Gujarat Housing Board (b) Executive Engineers including Personal Assistant to Housing Commissioner (c) Works and Design Officer (d) Senior Architectural Assistant (e) Deputy Engineers (f) Overseers (g) Accounts Officer (h) Assistant Account Officer (i) Estate Manager (j) Assistant Secretary to the Board. Theses details of the groups clearly show that the Housing Commissioner is entirely a different authority and the Accounts Officer department seems to be a separate one. Consequently, the aforesaid additional evidence can be of no real assistance to Mr. Raval. At the highest, it shows that on 30th April, 1960 the plaintiff was part and parcel of the common clerical (ministerial) set up working under the Housing Board but what we are concerned with is the short question as to who was the immediate head of the department of the plaintiff at the relevant time when he was sought to be retired in the year 1979. The aforesaid seniority list showing the position of the plaintiff in the clerical (ministerial) set up on 30th April, 1960 can be of no assistance for resolving this controversy. The said additional evidence however shows that the Housing Commissioner was a different authority as compared to Accounts Officer. It must therefore be held that in 1979 when the plaintiff's case was reviewed by the review committee the plaintiff respondent was actually working under the administrative supervision and control of the Financial Adviser and Chief Accounts Officer of the Housing Board and he was working in his office and consequently the said officer was the head of the department of the plaintiff. He was admittedly not co-opted member of the review committee as shown in Exhibit 36 P.

11. Now is the time for me to consider the alternative contention raised by Mr. Raval for consideration Mr. Raval contended that even assuming that the plaintiff was working in the office of the Financial Adviser and the Chief Accounts Officer who was his head of the department at the relevant time, when the review committee did consist of the Chairman of the Housing Board who was the ultimate authority and the Housing Commissioner who was non-member Secretary the requirements of Exhibit 17 paragraph 2(2) were substantially complied with. In order to appreciate the aforesaid contention, it must be first found out as to whether the requirements regarding the constitution of the review committee as laid down by this Government circular, Exhibit 17 are mandatory in nature or they are directory in nature. Now the relevant provisions of the said circular show that proper constitution of the review committee would go to the root of the matter. The scheme of the circular shows that it is the review committee's decision which would hold the field once and for all for the concerned employees. Paragraph 2(3) of circular Exhibit 17 clearly directs that the review committee should carefully examine the case and submit the recommendations to Government on the point whether the Government servants under review should be retained in service or retired on their attaining the age of 50 years. The recommendations of the Committee should be forwarded to the Administrative Secretarial Departments for obtaining the final orders of Government. It is therefore obvious that the review committee decision and opinion would have lot of weight and a clinching effect in the matter and the ultimate decision of the appointing authority would be substantially influenced by the decision of the review committee. It is therefore apparent that the review committee is that heart of the exercise. If such a review committee is not properly constituted that will be no real and effective review in the concerned case and consequently the decision rendered by it would be void and as a direct corollary the confirmation afforded to the decision of the review committee by the appointing authority would necessarily fall through. It cannot be said that the constitution of the review committee is a procedural matter and the provision regarding the same is not mandatory. It is only on the basis of the recommendations of the committee that the appointing authority would from its opinion on the point whether the Government servant under review should be retained in serviced or retired on his reaching the age of 50 years. Therefore it must be held that the provisions of paragraph 2(ii) of Exhibit 17 regarding the constitution of committee wherein the head of the department has to be a member is of mandatory character as it is a substantial provision and not a mere procedural provision. In the context of a similar circular Exhibit 72 issued by the Gujarat Electricity Board the Divisions Bench of this Court in V. C. Shroff's case (supra) in terms considered the relevant provisions and came to the conclusion that those guidelines which are of substantive nature will have a mandatory force and they cannot be disposed of as merely procedural. It is therefore obvious that the proper constitution of the review committee is a condition precedent to the exercise of the review power of the Board and in the present case it is found that the said provision has been observed in breach. It must therefore be held that it had nullifying consequences. It is obvious that the head of the department under whom the plaintiff was working was not a member of the review committee. The others may not have a direct idea of the plaintiff's work and naturally may not be aware of the day to day progress made by the plaintiff and hence cannot be really competent to take any effective and objective decisions as the head of the department can do. In fact, his presence on the committee for the purpose of deliberation and discussion would have been of immense value and his opinion in the matter would have been a clinching factor. In fact, out of all the members of the review committee, the presence of the head of the department under whom the concerned servant worked at the relevant time would be the most essential. His say in the matter would be the most relevant and useful for arriving at an objective assessment of the working of the concerned servant and for deciding whether the concerned servant had outlived his ability and has become a dead wood requiring immediate chopping off which would in turn bring economic death to the concerned servant and his family members. It is now well settled that the slightest non-compliance with the mandatory provision has nullifying consequences on the action that result. It is only when the concerned provision is held directory and not mandatory that the question of substantial compliance survives for consideration. As I have found that the requirements of proper constitution of a review committee having in its midst the head of the department under whom the concerned employee works at the relevant time are mandatory in nature and they were required to be fully complied with. There can never arise any question of substantial compliance in such a case. If any authority is needed, it is supplied by the Supreme Court decision in the case of State of Uttar Pradesh v. Chandra Mohan Nigam [1978-I L.L.J. 6]. In the aforesaid decision the Supreme Court was concerned with a case of an employee who was made to prematurely retire on the basis of a decision of the review committee. The State of Uttar Pradesh which was the concerned State had issued certain instructions laying down the procedure to be followed in such case. Opining on the binding nature of the rule, the Supreme Court observed (Paras 26,27) :

'Rule 16(3) being a a rigorous rule vis-a-vis a Government servant not himself willing to retire under rule 19(2), has to be invoked in a fair and reasonable manner. Since rule 16(3) itself does not contain any guidelines, directions or criteria the instructions issued by the Government furnish as essential and salutary procedure for the purpose of securing uniformity in application of the rule. Theses instructions really fill up the yawning gaps in the provisions and are embedded in the conditions of service. These are binding on the Government and cannot be violated to the prejudice of the Government servant. However, one condition is absolutely imperative in the instructions, namely, that once a Review Committee has considered the case of an employee and the Central Government does not decide on the report of the Committee endorsed by the State Government to take any prejudicial action against an officer after receipt of the report of the committee endorsed by the State Government, there is no warrant for a second Review Committee under the scheme of Rule 16(3) read with the instructions to reassess his case on the same materials unless exceptional circumstances emerge in the meantime or when the next stage arrives.'

It is therefore obvious that the Supreme Court has finally ruled that the procedure laid down by the Government for compulsory retirement of any government servant has got to be strictly followed. In the case of Banarsi Das v. Cane Commissioner, Uttar Pradesh (A.I.R. 1963 S.C. 1417) the Supreme Court relied upon a passage form Maxwell's Interpretation of Statutes and observed in paragraph 18 of the report as under :

'The general rule as to which provision of law can be regarded as mandatory and which directory is stated in Maxwell on the Interpretation of Statutes at page 364 : 'It has been said that no rule can be laid down for determining whether the command (of the statute) is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice R. V. Ingall [(1876) 2 QBD 199 p. 208] per Lush, J., and, when that result would involve general inconvenience or injustice to innocent persons, or advantage of those guilty of the neglect, without promoting the real aim and object of the enactment such an intention is not to be attributed to legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.'

I may also refer to a decision of N. H. Bhatt. J. in Dr. Shantilal Shah v. M. M. Raval reported in (18 Guj. L.T. 111) wherein N. H. Bhatt J. was concerned with the case of a Government servant who was compulsorily retired in breach of the relevant Government circular which laid down a procedure to be followed regarding the consideration of relevant confidential reports concerning the Government servant concerned. It was found that the order of compulsory retirement was in violation of the said circular and hence the order was declared void. It was observed by N. H. Bhatt. J. that the concerned authorities did not take into account this factor and they referred to the earlier resolutions which refer to only three years' records to be seen and passed the impugned order without taking into account the governmental guidelines which were obligatory for the competent authority to follow and consequently the order of compulsory retirement was set aside. It is therefore now well settled that Government guidelines which are required to be followed before passing a drastic order or premature retirement of the concerned employee have a mandatory effect and any breach thereof would render the action nullified. As I have already stated, the constitution of the review committee is a matter of substance and not of form. It goes to the root of exercise of powers and any tinkering with it would shake the very foundation of the exercise of power that is vested in the competent authority under Rule 161(1)(aa)(1) to prematurely retire the concerned employee. Thus constitution of proper review committee is the matter of essence and hence the doctrine of substantial compliance cannot be pressed into service. In the present case, as the review committee is found to have been not properly constituted as per the requirement of Government Circular Exhibit 17 paragraph 2(2) as the head of the department under whom the plaintiff was working at the relevant time was not a member of the committee, as rightly held by the learned trial Judge, the entire exercise must fail. That finding of the learned trial Judge will have to be upheld and Mr. Raval's contention shall stand rejected.

12. But even assuming that the constitution of the review committee is not a matter of essence or substance but is a mere formality with may require to be substantially complied with, if not strictly, even then let us see whether in the present case there is nay substantial compliance with the requirements of Government Circular, Exhibit 17 paragraph 2(2). Now in the present case the review committee which was admittedly recruitment and establishment committee comprised of the Chairman, Housing Board. Naturally, the Chairman who is in overall control of the Board will not be having any day-to-day touch with the working of the concerned employees of the Board manning various departments of the Board. Section 7 of the Gujarat Housing Board Act, 1961 does say that the Chairman would be an independent person who will not be holding any office or place of profit under the Board. Thus mostly he will be an outsider. So he will not be a person who will be knowing the pulse of various departments and the actual working of the staff and the details regarding them which can make him fully alive to the situation under which it is found necessary to decide whether an employee has become a dead-wood or deserves to be continued till he attains the age of superannuation. This type of details in the very nature of things would not be directly available to Chairman. As such this information will therefore of necessity has to be gathered from other sources so that he can form a proper opinion about the requirement of situation. So far as the Housing Commissioner is concerned, it has been clearly mentioned in Exhibit 36 itself that he is a non-member secretary. As a non-member, he would obviously have no right to vote. Consequently, the constitution of the review committee will not serve the needs of the situation in the absence of the head of the department being a co-opted member of such a committee. The other member of the Review Committee is a Secretary to Government who is also an outsider who would not know the day-to-day progress of the concerned employee. Two other members of the committee are also outsiders who are the members of the Housing Board and as such they are members of the committee. Consequently, the head of the department would be the proper person who can deliver goods and on the basis of whose opinion an objective assessment of the situation can be arrived at by the review committee. But for the head of the department being on the review committee, the constitution of the review committee would resemble an empty egg shall with its contents taken out. Consequently, on the facts of the case it cannot be said that even the requirement of circular Exhibit 17 paragraph 2(2) is substantially complied with. In fact, there is no effective compliance at all with the relevant provisions of the said circular and the entire exercise must obviously fail even on that count. The decision arrived at by the review committee therefore is no decision in the eye of law as the proper person who could have decided the matter was not not on the committee and those who were on the committee could not have arrived at nay effective objective judgment from merely looking at the cold prints of last few years' confidential reports of the concerned employee. No one was there to effectively inform the committee about the concerned person's latest performance which information would have gone a long way in influencing their final decision. It must therefore be held that in the facts and circumstances of the case there was not even substantial compliance with the requirments of the circular laying down the proper constitution of the review committee. The second contention raised by Mr. Raval therefore has got to fail.

13. Before parting with the discussion certering round this contention, it is necessary to not one or two additional aspects of the matter. Under S. 13 of the Gujarat Housing Board Act, 1961, the Board has been authorised to appoint a Secretary, one or more Assistant Housing Commissioners and a Housing Commissioner and such other officers and servants as it considers necessary for the efficient performance of its functions. It is therefore obvious that apart from the Chairman the Housing Board's day-to-day activities have to be channelised and properly looked after by appointment of statutory officers required for the due performance of the functions of the Board. It is also necessary in this connection to refer to S. 66 of the Act which enjoins upon the Board to maintain proper books of accounts and such other books as the rules may require and to prepare in accordance with the rules an annual statement of accounts. The Board shall also cause its accounts to be audited annually by such person as the State Government may direct and as soon as the accounts of the Board have been audited, the Board shall send a copy thereof together with a copy of the report of the auditor thereon to the State Government and shall cause the accounts to be published in the prescribed manner and place copies thereof on sale at a reasonable price. For theses purposes of regulating the maintenance of its accounts, necessary staff is required to be recruited by the Board. A financial adviser and chief accounts officer and the staff under him would be included in the requirement of S. 16 of the Act. Thus apart from there being a Housing Commissioner a separate accounts staff working under the supervision of the head of the department, namely, Chief Accounts Officer would be a statutory requirment envisaged by S. 16. It is also pertinent to note in this connection that even the confidential reports collectively at Exhibit 14 which are said to have been placed before the recruitment committee themselves indicate that the plaintiff at the relevant time was working not under the Housing Commissioner but under the Accounts Officer. For example, his latest confidential reports from 3.5. 1976 to 30.11.1976 exhibit 14 are signed by the Accounts Officer who is the reporting authority which means that the plaintiff was working under the Accounts Officers Certain adverse remarks are communicated to the plaintiff which were relating to his confidential reports for the period from 1.1.1976 to 31.3.1976. This communication itself shows that the plaintiff at the relevant time was working under the financial Adviser and Chief Accounts Officer. It is through him that the remarks were communicated to the plaintiff. The confidential reports for 1.1.1976 to 31.7.1977 also show that the plaintiff at the relevant time was working in the office of the Financial Adviser and the Chief Accounts Officer. It is therefore obvious that the Financial Adviser and the Chief Accounts Officer was the head of the department under whom the plaintiff was working at the relevant time, without whose presence the constitution of the review committee would be invalid.

14. That takes me to the third contention of Mr. Raval. He took objection to the decision of the learned trial Judge on the point that the Review Committee's report suffers from vagueness and the vice of non-compliance with the requirements of Government Circular Exhibit 17 paragraph 2(5). The said paragraph provides that where the Committee concerned comes to the conclusion, as a result of the examination of the Govt. servant's record that he should be retired prematurely, they should record fully and clearly the considerations and reasons for their conclusion. Mr. Joshi for the plaintiff invited my attention to Exhibit 10, the report of the Review, Committee which reads as under :

'The Committee considered the matter regarding the continuance of Shri C. G. Desai, Superintendent beyond 50 years in service and decided not to recommend to the Board to continue him beyond 50 years on the ground that his confidential reports for the last 8/10 years are not as per the required standards for being retained in the Board's service beyond 50 years.'

These are the reasons and conclusions recorded by the review committee. Mr. Joshi submitted that by no stretch of imagination can it be said that such type of recording of reasons by the review committee fulfilled by requirements of paragraph 2(5) of the Government Circular, Exhibit 17 which requires the Review Committee to record fully and clearly the reasons and considerations for their conclusion Mr. Raval submitted that the review committee was not expected to write a judgment and the precision of their expression cannot come in their way. Now it must be stated that what has been recorded under exhibit 10 is too vague. It does not show that the review committee recorded fully and clearly the consideration and reasons for their conclusion as required by paragraph 2(5) of Exhibit 17. The review committee was recommending a drastic action against the plaintiff. His services were sought to be terminated at the age of 50 years when he was really mid-stream in life and such a decision would naturally result in devastating consequences for the concerned employee and he and his family would be stranded in life half way. While taking such a drastic decision the Review Committee was required to deliberate the matter more fully and state the reasons very clearly for its conclusion which was to cause economic ruin to the concerned employee. Under these circumstances, it was incumbent on the review committee to strictly comply with the requirements of Government circular Exhibit 17, paragraph 2(5). It is obvious that what is stated in Exhibit 10 falls far short of this requirement and it renders their laconic recommendations vague, vulnerable and otiose. The recorded by them in the manner in which they are reflected by four lines as found at Exhibit 10 clearly smack of non-application of mind on the part of the review committee with the result that their recommendations to prematurely retire the plaintiff are denuded of any legal efficacy or valency. I therefore fully agree with the finding arrived at by the learned trial Judge on this aspect.

15. Regarding the requirements of recording fully the reasons in such cases while proposing drastic action against the concerned Government servant which will have pernicious adverse effect on his career, it must be stated that the strict compliance with the provisions laying down the guidelines as to how such decisions are to be expressed is the meat of the matter. In this connection, I may refer to the relevant decisions of the Supreme Court on the point. In the case of Union of India v. M. L. Capoor, [1973-II L.L.J. 504], the Supreme Court was concerned with a case of supersession of a government servant put in the select list. In that connection, the Supreme Court observed that it is incumbent on the Selection Committee to state reasons in a manner which would disclose how the record of each superseded officer stood in relation to records of others who were to be preferred. This is in the context of the effect upon the rights of aggrieved persons who are entitled to protection under Arts. 14 and 16 of the Constitution and particularly this is the only remaining visible safeguard against possible injustice and arbitrariness in making selections. In the case of Gurdial Singh Fijji v. State of Punjab [1979-II L.L.J. 194], the Supreme Court speaking through Chandrachud, C.J. pointed out the requirement and the duty of the Selection Committee to give brief reasoning while deciding the question regarding non-inclusion of a government servant in the select list Mr. Raval for the appellant-Board contended that the review committee briefly mentioned the following relevant facts : (1) The review committee did consider the case of the plaintiff (2) The review committee did reach its conclusion (3) The review committee did mention the reason which prompted it to come to that conclusion. Even if that is so, the mandatory requirements of Exhibit 17 paragraph 2(5) cannot be said to be complied with by the review committee and it cannot be said that the review committee fully considered the case of the plaintiff before taking its decision of recommending the plaintiff for not being continued beyond 50 years of age and on this additional ground also its conclusion and recommendations can be said to have been vitiated with the inevitable result that it has got to be inferred that the review committee had not applied its mind to the relevant considerations which should have informed its decision. In this connection it is also necessary to not the observations of the Division Bench of this Court in Shantilal's case (supra) decided by P. N. Bhagwati, C.J. (as he then was and D. A. Desai, J. (as he then was) on 19.10.1972 to which I had already made a detailed reference in another context. At this stage I may only note the observations of P. N. Bhagwati, C.J. in the penultimate paragraph of the said judgment. The said observations are required to be reproduced here in extenso.

'We may also point out one other thing which we have noticed in this case. The recommendation of the Review Committee which has been tendered in evidence as Exhibit 'A' on behalf of the respondents merely states the conclusion of the Review Committee. It does not set out what where the factors which weighed with the Review Committee in coming to its conclusion. It is said the brevity is the soul of wit but it is certainly not the soul of a recommendation made by a Review Committee on the basis of which the Government is going to take its action. We feel that when the Review Committee is making a recommendation which might affect the career of a Government servant, it would be desirable for the Review, Committee to be a little more expressive in its recommendation and to set out in brief the reasons why it is making a recommendation for compulsory retirement of a Government servant, because statement of such reasons would always be a safeguard against non-application of mind or arbitrary decision and the Appointing Authority would also be in a better position to decide whether or not to accept the recommendation of the Review Committee for the ultimate decision to compulsorily retire the Government servant is to be that of the appointing authority and not of the Review Committee.'

The aforesaid observations were made by the Division Bench is the absence of any mandatory provision as now found in the Government Circular, Exhibit 17 in the present case. Even apart from this extremely pithy and too laconic reasons given by the Review Committee would not constitute requisite reasons at all and would clearly raise an inference of non-application of mind on the part of Review Committee. It must therefore be held that Exhibit 10 in the present case which contains the reasons given by the Review Committee for recommending premature retirement of the plaintiff does not comply with the requirements of circular Exhibit 17, paragraph 2(2) and hence the said recommendations can be said to have suffered from non-application of mind and on this ground also, the impugned orders are liable to be quashed and have been rightly quashed by the learned trial Judge. The contention to the contrary as advanced by Mr. Raval has therefore got to stand rejected.

[Para 16 ** ** **]

17. That takes me to the consideration of the 4th contention of Mr. Raval. Mr. Raval submitted that the learned trial Judge was in error in holding that even on mertis the Review Committee was in error in recommending the premature retirement of the plaintiff as he was not an employee found to be 'below average'. Mr. Raval contended that it was for the Review Committee to take a proper decision on the fact of each case and the Court of law cannot sit in appeal over the same. To that extent, Mr. Raval is right. But the question is whether the mandatory requirements of 2(7) in Government Circular, Exhibit 17 sub-paragraphs 6, 7 and 8 of paragraph 2 have been complied with in the present case or not. Paragraph 2(6) provides that in the case of a Government servant whose integrity is in doubt, it would be appropriate to consider him for premature retirement, irrespective of an assessment of his ability or efficiency in work. It must be stated that Mr. Raval made it clear that the Housing Board did not propose to prematurely retire the plaintiff on the ground of doubtful integrity. Hence paragraph 2(6) of Exhibit 17 need not detain me may longer. So far paragraph 2(7) is concerned, it provides that in a case in which as officer's integrity is not in doubt, but his physical or mental condition is such as to affect adversely his efficiency or ability for further service, it would be appropriate to consider him for premature retirement. Mr. Raval promptly got up and stated that it is not even the case of the Housing Board that the physical or mental condition of the plaintiff was such as to adversely affect the efficiency or ability of the plaintiff for further service. So this paragraph 2(7) is also out of picture. Therefore what is left for consideration is paragraph 2(8) of Exhibit 17. It has been mentioned in paragraph 2(8) that subject to the consideration mentioned in sub-paragraphs (6) and (7) of paragraph 2, a Government servant with a satisfactory record of service should not be retired prematurely and it is only when a Government servant falls below the average standard that he should be proposed for retirement on his attaining the age of 50 years. It is therefore clear that apart from the cases covered by paragraph 2(6) and (7) in case of every other Government servant, no decision can be taken to prematurely retire him unless it is shown that the concerned employee is substandard, that is below the average standard. An identical question has been considered by a Division Bench of this court in V. C. Shroff's case (supra). I have already referred to this decision in another context. Now is the time for me to refer to the relevant paragraphs of that judgment concerning the point with which I am at present dealing. The Division Bench in the aforesaid judgment speaking through N. H. Bhatt, J. noted relevant requirements of Regulation 17 and the notes (ii), (iii) and (iv) appended to the said regulation which also I have reproduced earlier while considering the decision in another context. N. H. Bhatt, J. held that theses relevant requirements were substantive in nature and they lay down positive criteria for prematurely retiring a Board employee when the concerned employee was lacking in integrity or when he was physically or mentally incapacitated or when he was not having a satisfactory record of service. It would be obvious that the aforesaid provisions of the relevant notes (ii), (iii) and (iv) appended to Regulation 72 as applicable to the Gujarat Electricity Board represent a parallel sheme as envisaged by Government Circular Exhibit 17, paragraph 2(6), (7) and (8) in the present case. Bhatt, J. while interpreting the notes (ii), (iii) and (iv) thereafter observed that in the light of notes (ii) and (iii), the only import that can be given to this note (iv) is that barring these obviously reasonable criteria set out in notes (ii) and (iii) there should be no ground which should make the appointing authority retire any employee prematurely. In other words, note (iv) which is as much a substantive part of the regulation as the proviso permitting premature retirement very clearly lays down that an employee who is not lacking in integrity and who is not senile would be allowed to enjoy the recognised right of continuous service up to the age of superannuation. Therefore, the imperative language of note (iv) clearly lays down that an employee whose record of service is otherwise satisfactory cannot be retired prematurely. Considering the scheme of regulation 72 read with the relevant notes appended thereto N. H. Bhatt, J. observed : We have also rules above that none (iv) in the context of notes (ii) and (iii) and in the context of the initial provision made for the service up to 58 years of life lays down as a measure of policy that ordinarily an employee is entitled to continue till he reaches the age of superannuation on completion of 58th year of his life. The Board has laid wrong emphasis and has viewed the cases of these two petitioners from the angle of positive merits. The Board appears to have examined their cases from the angle to see whether they were good enough to get the benefit of extended service so to say. Mr. Patel, argued that the paramount idea behind premature retirement is to chop off dead wood. When this is the guiding principle behind premature retirement is to chop off dead wood. When this is the guiding principle behind premature retirement, the approach to the problem assumes a different dimension and angle. While examining the case a person what is required to be seen is whether he is bad enough to be chopped off from service. Positive merits are not to be insisted upon at this stage. There are three clear stages in such situations. An employee may be positively good, an employee may be positively bad and an employee may be neither good nor bad. The underlying principle of regulation No. 72 is that those are eminently efficient obviously are not liable to be removed and cannot be removed. Those who are positively bad must be chopped off. The middle wood, are to be allowed to live in the normal tenure. This appears to be the intention of the Board while framing regulation No. 72.'

It must be stated that the aforesaid interpretation placed by the Division Bench in V. C. Shroffs case (supra) on the relevant regulation 72 and the sub-paragraphs of the notes appended thereto would squarely apply to the facts of the present case. The scheme and the guidelines put forward by Government Circular Exhibit 17 paragraph 2 with relevant sub-paragraphs (6), (7) and (8) clearly represent a similar situation. If the concerned Government servant is not lacking in integrity, if he is not physically or mentally deficient as stated under paragraph 2(8) he should be allowed to continue till the age of 58 years unless he is shown to be sub-standard employee, namely, a dead wood. A person satisfactory record would fall in the middle category and who will be treated as fit to be continued even though he may not be very efficient. All the same, he is not dead wood. In the present case the relevant confidential reports which were the only material before the review committee and which are produced at exhibit 14 collectively clearly point out that the plaintiff was an employee with satisfactory record and he was not a sub-standard employee or a dead wood which would require to be chopped off under the relevant scheme of Government Circular, Exhibit 17. In order to find out whether the requirements of Government Circular, Exhibit 17 paragraph 2(8) were complied with or not, the court was justified in looking at the data which was available on the record. That would not amount to sitting in appeal over the decision of the Review Committee. In order to find out whether there was any material before the Review Committee which would justify the applicability of paragraph 2(8) of Exhibit 17 and whether the recommendations of the committee were ultra vires its powers from the aforesaid limited perspective, the Court was perfectly justified in looking at the material which was placed before the Review Committee. The confidential reports of the plaintiff ranging from 1st January, 1973 onwards up to 31st October, 1977 were the only material placed before the Review Committee for its scrutiny to enable it to take its decision in the plaintiffs case whether the plaintiff should be permitted to serve out his normal tenure of service up to 58 years of age or whether he was required to be prematurely retired. Mr. Raval submitted that the Review Committee had to take an overall view of the matter. Mr. Raval is quite right in that submission. But the question is whether the only data which was placed before the Review Committee by way of the confidential reports indicated that the plaintiff was a sub-standard employee or whether he was just a routine type of employee who was better than the dead wood and who was tolerable as the one falling in the middle category of employees, who according to the aforesaid Division Bench judgment in V. C. Shroffs case (supra) deserved to be continued under the scheme of parallel Regulation 72 and with that limited end in view, the learned trail Judge did consider the confidential reports at Exhibit 14 collectively and held that the concerned employee was not a dead wood or a substandard employee at all and these confidential reports could not have justified the review committee to give its recommendations the way it did and that the decision of the review committee would therefore be rendered perverse and ultra vires. I have myself perused the said confidential reports collectively at Exhibit 14. I may briefly indicate the picture which they project. The first confidential report, which is for the period from 1st January, 1973 to 31st August, 1973, shows that the plaintiff is rated as an average employee. The word (Hindi word used 'thik') used against coloumn 22 and the remarks against column 19 show that he is entitled to be promoted as per his turn. The next confidential report for the period from 1st September, 1973 to 31st December, 1973 also shows that the plaintiff is rated as an average employee (Hindi word used 'thik'). Column No. 12 thereof shows that the work of the plaintiff is ordinary. The third confidential report for the period from 1st January, 1974 to 15th June, 1974 also shows that the plaintiff is rated as an ordinary employee. In the confidential report for the period from 5th January, 1974 to 5th July, 1974 which overlaps the earlier one, the plaintiff is rated as an ordinary employee. The next confidential report is for the period from 6th July, 1974 to 31st December, 1974. Coloumn No. 13 is kept blank. His progress is shown to be fair. In general note, he is mentioned to be impolite and discourteous. Otherwise, his clarity of thought is shown to be good and his capacity to present case is shown to be good and his capacity to write notes and points in Gujarat is shown to be good. The next confidential report pertains to the period from 1st January, 1975 to 6th April, 1975 wherein he is rated as fair and most of the columns regarding various details are shown to be good and fair. The next confidential report is for the period from 7th April, 1975 to 5th December, 1975 wherein the plaintiff seems to have progressed and his rating is good. In most of the columns representing various details, the plaintiffs performance is shown to be good. Against column No. 10 it is mentioned that before promotion he is required to be given experience in other sections. The next confidential report is for the period from 1st January, 1976 to 31st March, 1977 wherein his overall rating is ordinary. Against column 16 it is mentioned that with view to continue as section officer he must have knowledge of other subjects. The last confidential report is for the period from 3rd May, 1977 to 31st October, 1977. That is the latest confidential report regarding the working of the plaintiff in the Housing Board. Coloumn 21 thereof shows that the plaintiff was rated as a good employee. Even taking an overall view of all these confidential reports, it cannot be said that the plaintiff was shown to be an employee who was below average. He has been consistently ranked as ordinary employee (Hindi word used 'thik'). It is pertinent to note that the last confidential report was for the period ending 31st October, 1977. Thereafter for 1 1/2 years there was no confidential report so far as the plaintiff work was concerned, at least, that is not available on the record and it is not the case of the Housing Board that any other confidential report after the period from 31st October, 1977 was ever put before the Review Committee. Thus the last confidential report rated the plaintiff as a good employee. The earlier confidential reports have rated him as fair and average employee. Even taking the comprehensive view of the relevant columns of confidential reports spread over the relevant years they reflect the picture of an employee who was not a dead wood, or a sub-standard employee or a good-for-nothing employee. The overall view of the relevant confidential reports placed before the Review Committee projected a picture of an average employee meaning thereby that the employee was just tolerable but in no case it can be said that a comprehensive picture which emerges on a mere reading of the relevant confidential reports is of a sub-standard employee or a dead wood so far as the plaintiff is concerned. Hence on these materials no reasonable person could have ever come to the conclusion that the plaintiff was a sub-standard employee or a below-the-average-employee. Hence the conclusion which the Review Committee arrived at on mere reading of the relevant confidential reports collectively at Exhibit 14 that he was sub-standard employee was apparently perverse. The learned trial Judge was perfectly right in taking the view that no recommendations to prematurely, retire the plaintiff on the basis of the confidential reports collectively at Exhibit 14 could have ever been given by the review committee as per the provisions of paragraph 8(2) of Government Circular, Exhibit 17 and hence the recommendations and the ultimate decision are totally vitiated in law and unauthorised and incompetent. I must here also mention one more submission of Mr. Raval. His submission is that the review committee merely recommended but the ultimate decision of the Housing Board holds the filed. The said argument is of no avail to Mr. Raval. The impugned order Exhibit 20 shows that the Housing Board has mechanically endorsed the decision of the review committee and acted according to the recommendations of the review committee. Even otherwise there is nothing on record to show that the Housing Board had considered some additional material from which it had come to its own conclusion regarding the necessity of prematurely retiring the plaintiff at the age of 50 years. On the contrary, the decision of the Housing Board at Exhibit 10 shows that the Board considered the proceedings and the conclusions reached by the Recruitment and Establishment Committee dated 19th October, 1978 and approved the same unanimously. It is therefore obvious that what the Review Committee recommended was ispo facto and mechanically adopted by the Board and consequently when the Review Committee's recommendations are found to be vitiated and non est the endorsement by the Board of the said nullified recommendations should not resurrect the exercise against the plaintiff which had remained nullity. I therefore fully endorse the reasonings of the learned trial Judge on this aspect as found in paragraph 12 of his judgment.

18. It is for me to consider a few relevant judgments placed before me by the learned advocates of both the sides. I have already referred to the decision of the Supreme Court in Chandra Mohan Nigam's case. Mr. Raval placed great reliance on the decision of the Supreme Court in the case of Union of India v. M. E. Reddy [1980-I L.L.J. 7] wherein is observed that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement under Rule 16(3) even if they are not communicated the officer concerned. The decision of the Review Committee is not binding on the Government of India. All that is necessary is that the Government of India should, before passing an order under Rule 16(3) consider the report of the Review Committee which is based on full and complete analysis of the history of the service of the employee concerned. It is further observed by the Supreme Court that it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the Officer during the long of his service that he puts in has to be considered from the point of achieving higher standard of efficiency and dedication so as to be retained even after the Officer has put in the requisite number of years of service. The aforesaid decision of the Supreme Court cannot be of any assistance to Mr. Raval for the simple reason that even taking the overall view of all the confidential reports collectively at Exhibit 14 no other conclusion is possible save and except the conclusion that the employee concerned was an average one. Of course, he was not an extraordinary employee or a brilliant one or superefficient one, but similarly the concerned reports fail to paint a picture of a substandard employee or a dead wood so far as the plaintiff is concerned. In spite of such clear situation that emerges from the bare of the confidential reports if the Review Committee thought that on the basis of these reports the plaintiff was clearly shown to be a substandard employee even though he was rated as fair and good during the relevant years, it must be held that the review committee's decision was perverse and consequently its recommendations because non est and, therefore, the observation of the Supreme Court made in M. E. Reddy's case (supra) in the special circumstances of that case cannot be of any assistance to Mr. Raval Mr. Joshi relied upon two later judgments of the Supreme Court. He first took me to the decision in the case of Baldev Raj Chadha v. Union of India (A.I.R. 1981 S.C. 70). The Supreme Court speaking through Krishna Iyer, J. held that under Fundamental Rule 56 the Central Government had power to compulsorily retire an employee in public interest. In that connection it was observed : 'When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the Court may be satisfied that the order is not bad for want of any material whatever, which to a reasonable man reasonably instructed, in the law, is sufficient to sustain the grounds of 'public interest' justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The Court is confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest. The appropriate authority, not the court, makes the decision, but even so, a caveat is necessary to avoid misuse.' It was further held by the Supreme Court that an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least of five years immediately before the compulsory retirement could not be cashiered on the score that long ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. The order of compulsory retirement failed because vital material, relevant to the decision, had been ignored and obsolete material less relevant to the decision, had influenced the decision. In the light of the aforesaid limited review which the Supreme Court held permissible to a Court of law, in the present case it must be held that the confidential reports collectively at Exhibit 14 were read in a manner in which no reasonable man could have ever read when the review committee took a decision to the effect that the plaintiff was a sub-standard or below-average-employee. My attention was also invited to a still later decision of the Supreme Court in the case of Brij Behari Lal Agarwal v. Hon'ble High Court of Madhya Pradesh [1982-I L.L.J. 1]. It was observed in the said decision of the Supreme Court as follows : (Para 6) 'It is necessary to communicate adverse entries made in confidential reports to the Govt. servants concerned. When considering the question of compulsory retirement, While it is no doubt desirable to make an overall assessment of the Government servant's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately preceding such consideration. It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may so greatly improved that it would be of advantage to continue in service to the statutory age of superannuation. Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance.' My attention was also invited to a decision of B. K. Mehta, J. in First Appeal No. 1973 decided on June 21, 1977 : (reported in 1978 Lab IC 568) which is produced at Exhibit 29 before the trial Court in the present case. In the said decision, B. K. Mehta, J. relying on various Supreme Court decisions struck down the order of premature retirement of the plaintiff on the ground that the confidential reports reefed on by the competent authority for sustaining the action of premature retirement were not properly kept and hence were incompetent in law and there was no material on which a proper order of premature retirement could be passed. In order to come to that conclusion B. K. Mehta, J. relied upon a Division Bench judgment of this Court consisting of J. B. Mehta and T. U. Mehta, JJ. in (Letters Patent Appeal No. 290 of 1974 decided on 26th March, 1976) [19789 S.L.W.R. 226 (Guj.)]. J. B. Mehta, J. who spoke for the Division Bench observed that when the confidential reports are not properly kept, the entries therein have got to be ignored for the purpose of coming to a conclusion on their basis. Mr. Joshi submitted in this connection that not only the confidential reports at Exhibit 14 do not show that the plaintiff was not a substandard employee but on the contrary the history of the case shows that the plaintiff was promoted during the relevant period. On 1st March, 1972 the plaintiff was promoted from the post of Junior Assistant to the post of Senior Assistant and on 1.9.1973 to a still higher post of Superintendent and all throughout he continued as a Superintendent till the date of his premature retirement. These facts are not controverted by the other side. It is therefore obvious that during all the relevant years, the plaintiff got promoted and his confidential reports did not indicate anything pernicious as to reduce the plaintiff into a dead wood which is required to be chopped off under the scheme of premature retirement. At the lowest, the plaintiff was an average or ordinary employee who can reasonably be expected to go on till the normal period of superannuation. Under these circumstances, the conclusion of the review committee and its resultant recommendations have got to be branched as perverse and hence the learned trial Judge was perfectly justified in arriving at the conclusion that he did on this point. The contention to the contrary as raised by Mr. Raval has therefore got to be rejected.

[Para 19 to 20 ** ** **]


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