V. Ramaswani, J.
1. The petitioner was directly recruited to the Administrative section of the then Women's Branch of the Madras Educational Service and posted as Superintendent on the 13th March, 1950. On completion of probation she was confirmed as Permanent Inspectress of Schools, Madurai, with effect from the date of her appointment. Subsequently there was an amalgamation of the Men's Branch of the Madras Educational Service with the Women's Branch and the Madias Educational Service was reconstituted in 1955 In 1962 some officers who were juniors to the petitioner were promoted to the cadre of Deputy Director of Education and Divisional Inspector of Schools. She was protesting against this overlooking of her seniority. Subsequently on 25th July, 1966 she was promoted to the combined cadre of Deputy Director and Divisional Inspector of Schools. The next promotional post was that of Joint Director of Public Instruction. Her claim for promotion to this post was not considered and some other officer was appointed as Joint Director of Public Instruction in G.O. Ms. No. 1615, Education dated 25th October, 1969. At this stage the petitioner filed two writ petitions, W.P. No. 3886 of 1970 for a direction to fix her seniority over those who were promoted earlier than her as Deputy Directors and W.P. No. 3885 of 1970 for quashing the order of appointment as Joint Director of Public Instruction and to consider her claim to that post. By an order dated 24th September, 1974, this Court held that her claim for seniority over those who were promoted as Deputy Directors earlier to her promotion on 25th July, 1966 cannot be accepted though the persons who were promoted earlier were juniors to the petitioner in the cadre of Inspectors. But all the same, this Court held that though she is junior to the others her claim for promotion as Joint Director has to be considered along with the claims of other persons who are eligible for appointment as Joint Directors and since the Government conceded that her claim was not considered at the time when the Joint Director was appointed in G.O. Ms. No. 1615, Education dated 25th October, 1969, the writ petition for quashing of that order was allowed. This Court directed that the promotion made in the Government Order dated 25th October, 1969 cannot be treated as final and that the Government should consider her case also for promotion along with the other officers who were considered at the time of passing the said Government Order. The ultimate result was, the writ petition relating to claim of seniority was dismissed but the one relating to the claim to be considered for promotion as Joint Director along with the other persons was allowed. Subsequent to this order of this Court, the Government in G.O. Ms. No. 624, Education dated 19th April, 1975 have stated that they have reconsidered the claim of the petitioner along with the other officers in service who were eligible under the rules for promotion to the post of Joint Director of School Education as on 25th October, 1969 and that they have decided after a careful consideration that the petitioner was not fit for promotion and the promotion already made in G.O. Ms. No. 1615 dated 25th October, 1969 need not be modified. The petitioner appears to have: been making her representations against this-Government Order as not following the directions of this Court, but in the meantime, in G.O. Ms. No. 1674, Education dated 1st October, 1975, the petitioner was compulsorily retired from service under Fundamental Rule 56(d). The petitioner has filed Writ Petition No. 7493 of 1975 for the issue of a writ of certiorari to quash the order of the Government dated 1st October, 1975 in G.O. Ms. No. 1674 compulsorily retiring her from service. She has also filed Writ Petition No. 7494 of 1975 praying for a certiorari filed mandamus to quash the Government Order No. 624 Education dated 19th April, 1975 and to direct the Government to appoint her in the cadre of Joint Director of Education with effect from 25th October, 1969 with all the concommitant emoluments and benefits.
2. As regards the claim for promotion, the contention of the learned Counsel for the petitioner is that the order of the Government had not given any reason, much less a valid reason, for rejecting her claim and as a non-speaking order, it is liable to be quashed. In the impugned order, after referring to the filing of the writ petitions and orders of this Court, the Government have stated that they have reconsidered the claim of the petitioner along with the other officers in service for promotion to the post of Joint Director, School Education, as on 25th October, 1969 as directed by this Court. It further stated that the Government decided after a careful consideration that the petitioner was not fit for promotion. In the counter-affidavit filed by the Government it has been stated that the petitioner was not one of the senior most of persons holding the post of Deputy Director when the vacancy arose in the post of Joint Director, that the senior persons of the category of Chief Educational Officer and Deputy Director of School Education were found suitable and that therefore they were appointed. The learned Counsel contended that these reasons are also erroneous and not valid. This Court had already held that the petitioner was not the senior in the category of Chief Educational Officer/Deputy Director of School Education over the other persons who were promoted as Joint Directors. It is now stated in the impugned Government Order that the petitioner's claim was reconsidered along with the other persons who are eligible for promotion, that the officers who were senior to the petitioner were found suitable and that the petitioner was not fit for promotion. This ground cannot be stated to be extraneous or irrelevant for consideration of promotion. As to whether the petitioner was fit for promotion as on 25th October, 1969, the authority competent to decide is the Government and this Court could not substitute its opinion on the same. Apart from the question whether the petitioner was fit for promotion or not, since her seniors were found to be fit and their merit was found not in any way inferior to that of the petitioner even as per the rules relating to promotion, there has been a strict compliance with the rules. The relevant rule only requires, where promotion shall be made on the ground of merit and ability, seniority being considered only where the merit and ability are approximately equal. For one thing, in this case, the merits of the petitioner and her seniors were found not equal and secondly the persons who were promoted were seniors to the petitioner. The impugned Government Order, therefore suffers from no infirmity and calls for no interference. Writ Petition No. 7494 of 1975 is therefore dismissed.
3. The validity of compulsory retirement is questioned in the affidavit on various grounds. The scope and validity of Rule 56 (d) of the Fundamental Rules was raised in a number of writ petitions. These petitions along with W.P. No. 7493 were posted before a Division Bench. The Division Bench took into consideration only those questions which raised a common issue and after deciding those common issues, relegated the writ petitions to be disposed of on merits with reference to each individual writ petition. That is how this writ petition has again come up before me for consideration.
4. The learned Advocate-General contended that the petitioner shall not be permitted to raise this question of validity of compulsory retirement on the ground that this point was not pressed before the Bench when they dealt with the validity of Rule 56(d). I am unable to agree with this contention of the learned Advocate-General. As already stated the question raised before the Bench related to common points arising in all the writ petitions and with reference to the validity of Rule 56(d). The merits of each individual case was not considered and in fact it is only for the said purpose, the cases were directed to be posted before a single Judge. Except the points that were covered by the decision of the Bench, all other points were left open. Therefore no question of res judicata or barring the consideration of the validity of the impugned Government Order compulsorily retiring the petitioner from service arises. This objection of the learned Advocate-General is therefore overruled.
5. The contention of the learned Counsel for the petitioner in this case is that since the petitioner had attained the age of 50 years on 14th February, 1974, her date of birth being 14th February, 1924, her case should have been sent to the Review Committee before the first of July, 1973 as required by the guidelines and instructions issued by the Government in respect of compulsory retirements under Rule 56(d), but her case was not referred to the Review Committee till about the end of August, 1975. In the further affidavit filed in W.M.P. No. 3996 of 1977, the petitioner had further stated:
I reliably understand and believe the same to be true that my case was referred to the Review Committee only sometime in August, 1975 and I have been served with the order of compulsory retirement dated 1st October, 1975. This will make it very clear that my case was never thought of to be referred to the Review Committee earlier at the appropriate time till the judgment in my earlier writ petition was delivered, viz., 24th September, 1974. Only consequent on the result of the writ petition the respondent would appear to have decided to refer my case to the Review Committee out of spite and vindictiveness.
No counter-affidavit was filed to this additional affidavit though it was served on the respondent, but the learned Advocate-General who appeared on behalf of the Government represented that the proposal to consider the case of the petitioner was sent to fee Review Committee only on 4th September, 1975 and that the Review Committee considered the claim on 5th September, 1975. On receipt of the recommendation of the Review Committee, the Government issued the impugned order on 1st October, 1975. Therefore, there is no dispute about the fact that the case of the petitioner was not referred to the Review Committee, six months prior to her attaining the age of 50 years. The question for consideration is whether in the circumstances, the compulsory retirement of the petitioner could be said to be in accordance with Rule 56(d) of the Fundamental Rules and the relevant guidelines and instructions issued by the Government in the matter of compulsory retirement.
6. The Santhanam Committee on Prevention of Corruption set up by the Government of India has recommended that:
The Government should have the power to retire compulsorily a Government servant who has completed 25 years of qualifying service or has attained 50 years of age without giving any reason and without any liability for compensation. There should be a Committee with the Central Vigilance Commissioner as the Chairman and two Secretaries to Government as Members to review the cases of all Gazetted Officers who are due to complete 25 years of qualifying service or to attain 50 years of age during the ensuing year to recommend the names of the Officers who are to be compulsorily retired.
7. This recommendation was accepted by the Government of Tamil Nadu and in G.O. Ms. No. 546 Public (Services-A) dated 1st March, 1972 directed that the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him a notice of not less than three months in writing or three months' pay and allowances in lieu of such notice after he has attained the age of 50 years or after he has completed 25 years of qualifying service. In pursuance of this Government Order, the Fundamental Rules also were amended by introducing Clause (d) of Rule 56 by G.O. Ms. No. 1537, Finance (FR) dated 30th November, 1972. Clause (d) of Rule 56 reads as follows:
Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained the age of fifty years or after he has completed twenty-five years of qualifying service. Any Government servant who has attained the age of fifty years or who has completed twenty-five years of qualifying service may retire giving notice of not less than three months in writing to the appropriate authority.
8. In G.O. Ms. No. 761, Public (Services-A) dated 19th March, 1973, Government decided to constitute the Review Committees for the State and the Subordinate Services and the procedure to be followed in the scrutiny and implementation of the recommendation relation to compulsory retirement. Paragraphs 3 and 4 of this Government Order which are relevant for our purpose may usefully be extracted:
3. The Government direct that to start with, cases of Government servants who will complete 25 years of qualifying service or who will attain the age of 50 years between 1st January, 1973 and 31st December, 1973 shall be sent up to the Review Committee so as to reach it by 1st April, 1973.
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 cases of persons who are due for review in the second half of any year shall be sent before the 1st January of the year.
Clauses VI and VII relating to the procedure to be followed for review of cases found in Annexure II to the said G.O. are also extracted below as they have a bearing, on the question to be considered:
VI. In respect of Government servants whose services are placed on foreign service or on deputation, the recommendations of the borrowing Governments or bodies concerned may be got before putting up their cases before the Review Committee if they attain the age of 50 years or complete 25 years of qualifying service at the time of review.
VII. Once it is decided to retain an officer beyond the age of 50 years be should be allowed to continue upto the normal age of retirement viz., 55 years, without any fresh review unless this is justified for any exceptional reasons, such as his subsequent work or conduct or the state of his physical health which may necessitate his earlier retirement.
The other Clauses in Annexure II relate to the grounds on which the cases may be referred to the Review Committee for consideration. Periodically there are certain amendments relating to these grounds and since they have no bearing on the case under consideration, they need not be noted here. One other Government Order which has to be noted is G.O. Ms. No. 775 Personal and Administrative -Reforms (Per. R) dated 4th July, 1978. In this Government Order, it was provided that the cases of all Government servants and those of Public Sector Undertakings, autonomous bodies etc., should be reviewed for a second time when they attain the age of 53 years. It was further provided that when the entire service record of an officer is considered at the time of review, no officer should ordinarily be retired on the ground of inefficiency if his service during the preceding five years or where he has been promoted to a higher post during the period of these five years of his service in the higher post, has been found satisfactory.
9. Rule 2 of the fundamental Rules enables the State Government, in relation to service under their administrative control to make rules modifying or replacing any of the Fundamental Rules. The Fundamental Rules which were framed originally under Section 96(b) of the Government of India Act, 1919 and later coming under Article 313 of the Constitution of India, have statutory force and as such Rule 56(d) is a statutory rule. The power of the Government to make Fundamental Rule 56(d) was questioned in this writ petition along with other writ petitions and in the judgment of the Division Bench dated 13th October, 1977 which was referred to earlier, it was held to be valid.
10. G.O. Ms. No. 761 Public (Services-A) dated 19th March, 1973 above referred to and the subsequent Government order relating to the procedure to be followed for review of cases of Government servants for compulsory retirement are guidelines and instructions intended to fill up the gaps in the rules and to ensure the uniformity of operation and equitable treatment in all cases of premature retirement under Rule 56(d). The rule itself does not contain any guidelines, direction or criteria and the instructions issued by the Government are intended to furnish a uniform procedure in the application of the rule. The Supreme Court had to consider similar instructions issued under Rule 16(3) of the All India Services (Death-CMW-Retirement Benefits) Rules, 1958 in the decision reported in State of Uttar Pradesh v. Chandra Mohan : (1978)ILLJ6SC While holding that those instructions are valid and permissible and binding on the Government, the Supreme Court observed:
It is not necessary to go into this aspect in detail in this case as to whether the instructions can be elevated to the status of statutory rules or even constitutional directions as found by the learned single Judge. It is sufficient for our purpose that these instructions do not violate any provision of the Act or of the Rules. Rule 16(3), being a rigorous rule vis-a-vis a Government servant not himself willing to retire under Rule 16(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 an essential and salutary procedure for the purpose, of securing uniformity in application of the rule. These 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.
In another passage, the Supreme Court again stated:
Rule 16(3) must needs to be safeguarded by reasonable procedural guidelines in order that there may be no scope for arbitrariness or discrimination. That is how Rule 16(3), being silent, instructions speak and do vitiative service in vacuous field. The material procedure under the instructions, as if inter-woven in Rule 16(3), can on no account be held invalid or impermissible.
There could therefore be no doubt that these instructions have to be followed by the Government in the matter of compulsory retirement of Government servants.
11. As pointed out by the Supreme Court, compulsory retirement under the Rule is a salutary safeguard in the armoury of the Government for maintenance of the services in trim and fitness. The rule is a constant reminder to the slacker, the sluggish and the inefficient, not to speak of those who may be dishonest or unscrupulous by reputation beyond redemption. While purity of administration is certainly to be desired, the security and morale of the service have also to be maintained. The procedure prescribed in the said Government orders being intended to be guidelines, directions or criteria to be followed in the matter of compulsory retirement they have to be strictly complied with and should not be violated.
12. On the scope of the instructions, as already stated, the contention of the learned Counsel for the petitioner is that the petitioner's case should have been referred to the 'Review Committee before the first of July, 1973 as she had attained the age of 50 years on 14th February, 1974 and since that was not done in this case, the order of compulsory retirement had contravened the binding guidelines and therefore invalid.
13. Paragraph 4 of G.O. Ms. No. 761, dated 19th March, 1973, which has been extracted above, requires that cases coming up for retirement during the first half of any year shall be sent up for review before the 1st July of the previous year and those who are retiring in the second half of any year shall be sent before the 1st January of that year. That means, at least six months before the person attains the age of 50 years has case must be referred to the Review Committee for consideration. Paragraph 3 of the said Government Order dealt with persons who attain the age of 50 years between 1st January, 1973 and 31st December, 1973. Since the Government Order itself was made on 19th March, 1973, it could not have been possible for the Review Committee to comply with the directions of the Government in paragraph 4 and therefore a special provision was made as that contained in paragraph 3 enabling the Review Committee to consider all the cases by 1st April, 1973. These directions, in my opinion, clearly show that a case of Government servant for compulsory retirement should be referred to the Review Committee, six months before he attains the age of 50 years and he or she shall be retired on attaining the age or 50 years. In fact the recommendation of the Santhanam Committee on Prevention of Corruption was 'to review the cases of all Gazetted Officers who are due to complete 25 years of qualifying service or to attain 50 years of age during the ensuing year to recommend the names of the officers who are to be compulsorily retired' (italics is mine). This recommendation which was accepted and incorporated as Rule 56(d) thus suggests that the first consideration for compulsory retirement should be prior to his attaining the age of 50 years. Under Paragraph VII of Annexure II to G.O. No. 761 (Public Services-A)., dated 19th March, 1973 which has also been extracted above, once it is decided to retain an officer beyond the age of 50 years, he should be allowed to continue upto the normal age of retirement, namely 55 years without any fresh review unless it is justified in any exceptional reasons such as his subsequent work or conduct or the state of his physical health which may necessitate his earlier retirement. That was the rationale in my opinion, of the judgment of the Supreme Court above referred to also.
14. Under G.O. Ms. No. 775 (Personal and Administrative Reforms (Per.R), dated 4th July, 1978, the competent authority is enabled to review the case for a second time when the Government servant attains the age of S3 years. This second Government Order and the extension provided for in Paragraph VII of Annexure II to G.O. Ms. No. 761 (Public), dated 19th March, 1973 which- enables the Government to have a fresh review when there is justification for any exceptional reason such as his subsequent work or conduct or the state of his physical health which may necessitate his earlier retirement, do, not in any, way affect the legal position or the need to consider the case of every Government servant six months before he attains the age of 50 years. If a case was referred to the Review Committee six months before 50 years and it was decided to retain the officer beyond the age of 50 years, the question of his case being considered subsequent to 50 years on the material available before 50 years does not arise for consideration. But in a case where, as in the petitioner's case, it was not referred to the Review Committee six months before the officer attained the age of 50 years, is it possible for the Government to consider for the first time a review subsequent to the person attaining the age of SO years? In my opinion, if the case of the Government servant was not referred to the Review Committee, six months before he attained the age of 50 years, it shall be presumed that there was an assessment in favour of further continuance of the person in service beyond the age of 50 years and any review subsequent to the attainment of the age of 50 years shall be considered to be a second review which could only be on the basis of exceptional circumstances referred in paragraph VII of Annexure II or in accordance with G.O. Ms. No. 775 (Personal and Administrative) Reforms, (Per.R.), dated 4th July, 1978 and not otherwise. In fact, in my opinion this is the ratio of the judgment of the Supreme Court in the decision cited already. That case related to an officer belonging to the Indian Administrative Service Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 enabled the Government to require a member of the service who has completed 20 years of qualifying service or who has attained the age of 55 years to retire in the public interest. Later by a notification, the figures and words '55 years' in Rule 16(3) were substituted by the figures and words '50 years'. Rules were further amended providing for a second review at the age of 55. It may be mentioned that the normal retirement age of an officer belonging to All-India Service is 58 years. The guidelines issued in pursuance of this rule which are in pari materia with paragraph VII of Annexure II of G.O. Ms. No. 761, dated 19th March, 1973, also stated that once it was decided to retain an officer beyond the age of 55 years, he should be allowed to continue up to the age of 58 without any fresh review unless it is to be justified by any exceptional reasons such as subsequent work or conduct or the slate of his personal health which may make earlier retirement really desirable. The reason for this is stated to be, in the said guidelines, that the Government felt that in order that an officer who is cleared for continuance at the age of attaining the age of 55 years can settle down to another three years of work with a sense of security and those working under him accept his control and discipline without any reservation and that an annual review between the years of 55 and 58 would not be desirable. In arriving at this view, they have among other factors taken into consideration the fact that at these stages, members of All India Services generally occupy very senior appointments on which particularly such a sense of security about their tenure is desirable in the public interest. Those considerations of the Government of India referred to in the guidelines equally apply to the State Government servants. In fact the Supreme Court pointed out that the principle behind this instruction is that the sword of Damocles must not hang over the officer every six months after he attains the age of 50 years. Rule 16(3) has now been amended enabling the Government to review the case at the age of 50 and again at the age of 55. With reference to this, the Supreme Court observes:
Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and if he is again at that point, he is free and untrammelled upto 58 which is his usual span of the service career.
This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason. In the instant case, the case of the petitioner was not considered six months before she attained the age of 50 years as conceded by the learned Advocate-General. It shall, therefore, be presumed that there was nothing at that stage to compulsorily retire the petitioner. The counter-affidavit has not shown and in fact there was not even a plea that there was any exceptional circumstance such as disclosure of fresh objectionable grounds available subsequent to the attaining of 50 years of age, in order to consider the case subsequent to the attaining of the age of 50 years. The impugned Government Order also has not referred to any subsequent work or conduct or the state of her physical health as necessitating the compulsory retirement. In these circumstances the impugned Government Order is clearly violative of the guidelines or the procedure prescribed in the matter of compulsory retirement and therefore invalid.
15. It is not necessary for me to consider the other contentions of the learned Counsel for the petitioner on merits including the plea of lack of bona fides, as also the contention that the recommendations of the borrowing department namely the Rural Development' Department have not been outlined.
16. For the foregoing reasons, W.P. No. 7493 of 1975 is allowed the rule nisi is made absolute and G.O. Ms. No. 1674, Education, dated. 1st October, 1975 compulsorily retiring the petitioner is set aside and the petitioner shall be deemed to have continued in service from the date of compulsory retirement. She will also be entitled to all the benefits and privileges as if she had continued in service without a break. . There will be no order as to costs in both the writ petitions.