1. These writ appeals filed by the State are directed against the common judgment of Sathiadev, J., dated 24th January, 1983 in W.P.Nos. 3990, 3991 and 3992 of 1978 holding that the order of compulsory retirement passed under Rule 56(d) of the Fundamental Rules is invalid in law and that the adverse remarks made in his confidential sheet by the second respondent cannot properly form the basis for the order compulsorily retiring him from service.
2. The circumstances under which the said three writ petitions came to be filed may briefly be stated. The first respondent in these appeals joined the police service as a Sub-Inspector in 1948. He was elevated to the post of Inspector in the year 1964. Later in the year 1974 he was promoted as Deputy Superintendent of Police. In the usual course he was posted as Deputy Superintendent of Police, Uthamapalayam. While serving at Uthamapalayam, an adverse remark had been made on 21.12.1976 for the period ending 30.9.1976 by the second respondent in these writ appeals who was the Deputy Inspector General of Police, Madurai Range, under whose jurisdiction the first respondent was working. When the said adverse remarks were communicated to the first respondent, he filed an appeal to the second appellant, namely, Inspector General of Police, and sought for expunction of the said remarks. But the said appeal has been rejected. An over adverse remark was made by the second respondent on 10.5.1977 for the period ending 31.3.77. As against this adverse remark, the first respondent again filed an appeal seeking the expunction; but the said appeal was also rejected by the second appellant. Based on the said two adverse remarks, the first appellant has passed an order dated 13.10.1977 compulsorily retiring the first respondent from service under Rule 56 (d). After the said order of compulsory retirement had been passed, on 24.5.1978 the first respondent was declared, to have satisfactorily completed the probation as Deputy Superintendent of Police. It is in these circumstances the first respondent chose to file the above three writ petitions. W.P.No.3990 of 1978 has been filed for quashing the adverse remark dated 10.5.1977 and W.P. No. 3992 is for quashing the adverse remark dated 21.12.1976 and W.P.No. 3991 of 1978 is for the issue of a writ of certiorarified mandamus to quash the order of compulsory retirement dated 20.7.1978 and for a direction to continue him in service as and from 13.10.1977. The substantial contentions urged by the first respondent in the writ petitions are as follows: (i) that the second respondent had no justification for making such adverse remarks in question and (ii) that the adverse remarks have no factual basis and that in any event the said adverse remarks cannot form the basis for an order of compulsory retirement under Rule 56(d). Subsequently by filing an additional affidavit the first respondent questioned the order of compulsory retirement on the ground that the order of compulsory retirement having been passed on a belated review of his case, the same should be held to be invalid. The above contentions of the first respondent were met by the appellants contending that the second respondent as a superior and who is empowered to make entries in the confidential files had made the entries in the course of carrying out his duties and therefore they are entitled to be given due weight and that the appeals filed against the said adverse remarks having been rejected by the second respondent, the first respondent cannot now question the action taken by the first appellant to compulsorily retire him from service based on the said remarks. As regards the complaint of the first respondent that the reference to Review Committee is belated and therefore the review should be held to be bad, the supplemental counter-affidavit filed on behalf of the appellants proceeds oh the basis that the belated review by the Review Committee cannot be a bar for compulsorily retiring a Government servant and that the orders passed by the Review Committee are only recommendatory in nature and that therefore the belated review by the Review Committee could not by itself have the effect of vitiating the order of compulsory retirement passed by the Government in exercise of the power vested with them as per the decision of this Court in V.B. Manavarajan v. State of Tamil Nadu, W.P.No. 4523 of 1980. After considering these rival contentions, Sathiadev, J., has held that the adverse remarks have no factual basis and therefore they cannot form the basis for the order of compulsory retirement against the first respondent. The learned Judge has not, however, gone into the question as to whether the review was in time and whether the belated review, if any, could vitiate the order of compulsory retirement. As regards the prayers sought for in the two writ petitions directed against two sets of adverse remarks; the learned Judge directed the Appellate Authority, the second appellant, to dispose of the appeal filed by the first respondent for expunction of the remarks afresh after giving an opportunity to the first respondent to put forward his objections as regards .the additional material that was brought in in the report of the second respondent with reference to the appeal filed by the first respondent. Writ Appeals Nos. 188 and 190 of 1983 have been filed by the State against the order of the single Judge remitting the appeal filed by the first respondent seeking expunction of adverse remarks. Having regard to the fact that the learned single Judge has merely directed a fresh disposal of the appeals filed by the first respondent against the adverse remarks, there is considerable justification for the learned Judge to direct a fresh disposal of those appeals in view of the fact that the second respondent has brought in new materials in his remarks sent to the second appellant, we do not think that any interference is called for with the order of the learned Judge on this aspect of the case. Hence, W.A.Nos.188 and 190 of 1983 are dismissed.
3. Coming to W.A.No. 189 of 1983 which is directed against the order of the learned single Judge quashing the order of compulsory retirement, as we have already said the learned Judge has held that the adverse remarks not being based on any factual material, no order of compulsory retirement could be passed on these adverse remarks. Though the learned Government Pleader very vehemently contends that the learned Judge has acted as if he were the Appellate Authority over the decision of the first appellant to compulsorily retire the first respondent from service and the Court having no such appellate power, the order in the writ petition could not be sustained in law, we feel that it is unnecessary to go into that question as the writ petition has to be allowed on the other ground raised by the first Respondent. As already stated one of the contentions urged by the first respondent in the additional affidavit filed by him is that there has been a belated review of his case by the Review Committee and the recommendations made on such a review cannot legally be sustained. This point has been countered by the appellants on the ground that merely because the review is belated, the recommendations made by the Review Committee and the ultimate order passed by the Government based on the recommendations of the Review Committee cannot be said to be vitiated in any manner and the counter affidavit filed by the appellants relied on a decision of this Court in V.B. Manavarajan v. State of Tamil Nadu, W.P.No. 4523 of 1980. The stand taken by the appellants that merely on the basis that the review is belated the order of compulsory retirement cannot be said to be vitiated is no longer tenable in view of the decision of the Full Bench of this Court in P.A. Manickam v. Government of Tamil Nadu (1984) W.L.R. 1 : (1984) L.I.C. 1085. The Full Bench in that case has held that the time-limit prescribed for making a review in G.O.Ms.No. 761, Public (Services-A) Department, dated 19.3.1973 is mandatory and if the review is not undertaken before the time-limit prescribed in the said Government Order, the review should be taken to be invalid. The said Government Order contains the following provisions as paragraph 4.
4. The Government also direct that cases coming up for retirement during the first half year of any year shall be sent up for review before the 1st July of the previous year. The case of persons who are due for review in the second half of any year shall be sent before the 1st January of the year.
Construing the said provisions, the Full Bench has held that it is mandatory that the review should be undertaken within the time-limit prescribed in the said paragraph and if it is not done within the time prescribed therein, it should be presumed that no grounds are made out for compulsory retirement. The reasoning of the Full Bench is as follows:
The question that arises for consideration in such circumstances is as to what is the effect of not referring the matter to the review committee six months before the officer attained the age of 50 years or completed 25 years of service. Since there is a direction to all the Heads of Departments to submit their proposals with recommendation asking for a certain officer to be retired from service to the administrative department in the secretariat six months before the date of review and the secretariat in turn to place the proposal before the review committee in accordance with the instructions for their consideration, there is a duty cast on all the Heads of Departments and the Departments of the Secretariat to consider every one of the cases of persons who are due for review in accordance with the instructions, and in such circumstances, it shall be presumed that if. an officer's name had not been sent up to the review committee, the Heads of Departments and the Government considered that there were no grounds for sending up the proposal to the review committee in respect of that officer. We cannot presume that a Head of Department had not done his duty. In fact we are directed to assume by law that official action shall be deemed to have been done unless the contrary is proved. We are therefore of opinion that if an officer's name who is due to attain the age of 50 years or has completed 25 years of service had not been sent to the review committee, it shall be presumed that there were no grounds for sending his name for consideration for compulsory retirement and that it is in those circumstances, the competent authority had not referred the matter to the review committee.
4. In this case, the first respondent completed 25 years of qualifying service in 1973 and that is not in dispute. No review was undertaken oh the basis of completion of 25 years of qualifying service. He has completed 50 years of age on 8.1.1977 and as per paragraph 4 of the Government Order referred to above, his Case should have been sent up for review before 1st July, 1976. However, the first respondent's case was referred to the Review Committee some time late in January, 1977. Therefore there is a clear violation of the time-limit prescribed in the said Government Order which has been held to be mandatory by the Full Bench. That the reference is belated has been admitted in the supplemental counter affidavit and the only stand taken therein by the appellants is that the belated reference of the first respondent's case for review will not vitiate the ultimate order passed by the first appellant compulsorily retiring him, as the recommendations of the Review Committee are only advisory in nature. Such a contention that the belated review will not vitiate the order of compulsory retirement cannot be accepted in view of the Full Bench decision referred to above. Hence the order of compulsory retirement passed against the first respondent cannot legally be sustained in view of the decision of the Full Bench of this Court. In this view, the ultimate conclusion of the learned single Judge that the order of compulsory retirement is illegal and is not valid has to be upheld but on a different ground. The result is, Writ Appeal No. 189 of 1983 has to be dismissed and it is dismissed accordingly. There will be no order as to costs.