Whereas you, Sisir Kumar Chowdhury, Project Officer, Industries Project, Malda entered Government service before attaining the age of thirty-five years;
And whereas you have already attained the age of fifty years.
And whereas the Governor being the appointing authority in respect of your service under the Government, is of the opinion that it is in the public interest so to do;
Now therefore, in exercise of the power-conferred by Sub-rule (aa) of rule 75 of the West Bengal Service Rules, Part I, the Governor retires you, Shri Sisir Kumar Chowdhuri, from Government service with effect from the 1st day of April, 1976.
8. The petitioner has challenged the said order in this writ petition.
9. The petitioner has made various personal allegations against the respondent No. 2 including corruption, conspiracy with political parties, diverse criminal activities such as theft, embezzlement, of Government funds interpolations in books and records through his proteges substantial part whereof were committed at Tamluk while the petitioner was working there as Project Officer. The petitioner is stated to have made various complaints and representation to the higher authorities against the respondent No. 2 citing documentary evidence in support of the charges made against him but without any result or effect. The petitioner has also challenged the order dated 19th May, 1975 whereby several District Industrial Officers were made permanent in disregard of the petitioner's claim thereto and position in the seniority list.
10. Mr. Prowat Kumar Sengupta learned advocate for the petitioner contended that the impugned order was procured by the machinations of the respondent No. 2 and at his instance. The petitioner has made serious allegations as against the respondent No. 2 which have not been denied and no affidavit has been filed by the respondent No. 2 denying or disputing any of the said allegations. The said allegations should, therefore, be taken as true and correct.
11. Mr. Sengupta referred to the recommendation dated the 27th March, 1957 made by the Public Service Commission, West Bengal for recruitment of eight of the fifteen temporary Gazetted Distrct Industrial Officer by selection from amongst the temporary non gazetted District Industrial Officers which included the name of petitioner and the petitioner was Sixth in the list of such selections. Mr. Sengupta submitted that after such selection, since 1st June, 1957 the- petitioner for over 8 years worked as a gazetted District Industrial Officer until he was promoted as Project Officer on the 24th March, 1966. By the order dated the 19th May, 1975 several temporary District Industrial Officers, all juniors to the petitioner were made permanent. There were no reasons for not making the petitioner permanent nor any reasons have been disclosed by any of the respondents why the officers junior to the petitioner and serving in the same post as the petitioner were made permanent but the petitioner was not. Mr. Sengupta contended that by the said order the petitioner suffered reduction in rank in that the officers so made permanent when promoted as project officers would enjoy higher status as Permanent Project Officers while the petitioner as a temporary Project Officer had no position or status in the promotional channel.
12. Mr. Sengupta next referred to the Memorandum No. 510-G.A.C. dated the 16th May, 1973, issued by the Government of West Bengal laying down the criteria and procedure for compulsory retirement of officers under Rule 75(aa) of the West Bengal Services Rules Part-I, relevant Portions whereof are set out below:
Under Rule 75(aa) of the W.B.S.R. Part I all appointing authorities under the State Government, have the power to retire, if they are of opinion that it is in the public interest to do so, 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.
(i) If it is in Class I or Class II service of post and had entered Government service before attaining the age of 35 years - after he had attained the age of 50 years; and
2. In order to give effect to the above provisions of the rule, the following procedure should be followed:
(i) A review should be conducted twice a year in the months of January and July to determine the suitability for continuance or otherwise of all officers, who will attain the age of 50 or 55 years as the case may be in the half years, beginning with the following July and January respectively.
(ii) There should be a Review Committee consisting of three senior officers for reviewing the cases of officers as in (i) above. The Committee's recommendations should be submitted to the appointing authority and the decision may be made with the approval of the Minister-in-charge of the Department concerned. Where it is proposed to retire an officer of Class I or Class II service after he has attained 50/55 years of age the case should be placed before the Chief Minister through the Chief Secretary after the Minister-in-charge has approved.
3. The following criteria may be followed in considering proposal for retiring a person under Rule 75(aa) of WBSR, Part I:
(i) In a case where there is a reasonable cause to believe that the officer concerned is lacking in integrity, it would be appropriate to consider him for premature retirement under the rule, irrespective of an assessment of his ability or efficiency in work.
(ii) In a case where the officers integrity is not in doubt, but his physical or mental condition is such as to render him unfit for continuance in Government service it would be appropriate to consider him for premature retirement under this rule. However, in such a case, it will be desirable first to advise the officer to opt to retire voluntarily under Rule 75(aa), and in the event the officer fails to avail himself of such advice, action under Sub-rule (aa) may be taken.
(iv) In the case of officers coining under Clause (i) of Rule 75(aa), there should be review at two stages, viz., at the age of 50 years and again at the age of 55 years. In the case of officers governed by Clause (ii), the review will be at the age of 55 years. Once it is decided to retain an officer beyond the age of 55 years he should normally be allowed to continue upto the age of 58 years without any fresh review unless this be justified by any exceptional reasons, e.g., his subsequent work or conduct or the state of health which may make earlier retirement desirable.
13. Mr. Sengupta urged that the criteria and procedure for retirement under Rule 75(aa) were embedded in the conditions of service of the petitioner and were binding on the respondents and could not be violated by them to the prejudice of the petitioner. Mr. Sengupta contended that there was no review by any review committee of the service records of the petitioner at any time either before the petitioner attaine the age of 55 years or thereafter. The authorities having decided to retain the petitioner beyond 55 years of age were bound to allow the petitioner to continue in service up to the age of 58 years, unless there were exceptional reasons, namely his subsequent work or conduct or state of health beyond 55 years was such which made his earlier retirement desirable. Mr. Sengupta urged that there has never been any allegation against the petitioner by any of the respondents that the petitioner lacked in integrity or became unfit to continue in service due to his physical or mental condition. The petitioner has categorically stated in the petition that he was never informed of any adverse remarks in his confidential character roll but on the contrary his confidential character roll was brilliant and without any blemish, which have not been controverted by any of the respondents and the same should, therefore, be taken as admitted. Mr. Sengupta further urged that the petitioner was a Class I officer and the procedure laid down in Clause 3(iv) of the said Memorandum should have been followed in retiring the petitioner as there were no reviews at the two stages at the age of 50 years and again at the age of 55 years, which was mandatory.
14. In support of his contentions Mr. Sengupta cited a decision of this Court in Dijendra Mohan Benerjee v. State of West Bengal and Ors. (1978) 1 C.L.J. 517. In this case the. petitioner Dijendra Mohan Benerjee was originally appointed as Inspector of Police in 1961. The petitioner was served with an extract of the adverse remarks entered in his confidential character roll. The Inspector General of Police having assured the petitioner that the said adverse remarks would be expunged the petitioner made representations for expunging the same and ultimately received a reply that his said representation was being processed and he was asked thereby to submit specific explanation in respect of each adverse remarks. The petitioner gave some explanation which might not have been sufficient. On the 31st March, 1976 the petitioner completed the age of 55 years. On the 26th May, 1976 the review committee held a sitting and recommended premature retirement of the petitioner. On the 17th June, 1976 the petitioner was furnished with another adverse remarks. Thereafter the petitioner was informed that his representations for expunging the earlier adverse remarks had been rejected. On 25th October, 1976 the petitioner received an order compulsorily retiring him from service under Rule 75(aa) of the West Bengal Service Rules Part-I and he was given three months salary in lieu of notice. After making representations for withdrawal of the said impugned order the petitioner made a writ petition in this Court challenging the said order. This Court considered the effect and applicability of the directives issued by the State Government under Memorandum No. 510-G.A.C. dated 16th May, 1973 with regard to action under Rule 75(aa) and observed as follows:
It is now well-settled that the right conferred under Rule 75(aa) of the West Bengal Service Rules, Part-I on the appointing authority to retire a Government servant compulsorily is an absolute one. But that right or power can be exercised only subject to the conditions mentioned in the directives issued by the Government. Since Rule 75(aa) does not contain any guidelines, directions or criteria, the instructions have been issued by the Government to supplement the rules as they make provisions for matters about which the rules are silent. In Chandra Mohan's case 1978-I L.L.J. 6, the Supreme Court observed that 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.
15. Mr. D.N. Lahiri, learned advocate for the respondents urged that by Memo No. 742/COT/COM/S7/74 dated 17th July, 1975 the Vigilance Commission was directed to require into certain allegations made against the petitioner by one Subrata Upadhyay on an anonymous letter. Because of the pendency of the said enquiry the question of promotion of the petitioner to the permanent post of District Industrial Officer was kept in abeyance. On the 25th July, 1975 the Review Committee submitted a report that as the enquiry against the petitioner by the Vigilance Commission was pending, and therefore, if the Vigilance Commission submitted any adverse reports against the petitioner on conclusion of the said enquiry, the petitioner might then be retired compulsorily as per rules. On the 20th September, 1975 the respondent No. 2 as one of the members of the Review Committee suggested that the petitioner be asked to go on leave from the 1st October, 1975 and if the petitioner did not do so he might be compulsorily retired by three months notice. On the 20th November, 1975 the respondent No. 2 gave another note seeking ministerial order as to whether the report of the Vigilance Commission should be awaited or action for compulsory retirement of the petitioner should be taken before receipt of such report as there was likelihood of delay in making its report by the Vigilance Commission and also pointing out that the District Magistrate, Midnapore had suspicion about the integrity of the petitioner. Thereupon, on the 21st November, 1975 an order directing compulsory retirement of the petitioner was signed by the Minister and on the 15th December, 1975 the Chief Minister approved of the same recording that the petitioner might be compulsorily retired as suggested by the Review Committee. The impugned order was made by the Governor on the basis of the said approval of the Chief Minister Mr. Lahiri contended that there was a review by the Review Committee as to the suitability of the petitioner for continuance or otherwise in his service in accordance with the provisions contained in the Memorandum No. 510-G.A.C. dated 16th May, 1973 and further as there was a report by the District Magistrate, Midnapore that he had suspicions about the integrity of the petitioner the review committee, therefore, recommended that the petitioner be compulsorily retired as he was lacking in integrity as reported by the District Magistrate. Midnapore which the review committee had no reasons to disbelieve. Mr. Lahiri urged on the above facts and circumstances the impugned order was passed lawfully and validly in terms of Rule 75(aa) of the West Bengal Services Rules- Part-I read with the said Memorandum No. 510-G.A.C. dated 16th May, 1973 The impugned order having been passed on the satisfaction of the Governor that in the public interest it was necessary to compulsory retire the petitioner under Rule 75(aa) and such right of retirement being absolute the same was not justiciable in a court of law.
16. Mr. Sengupta contended in reply that no affidavit having been filed by the respondents the petitioner had no opportunity to deal with the statements now made by Mr. Lahiri before the Court from the Government records. Mr. Sengupta urged that under Clause 2(ii) of the said Memorandum the review committee had to be constituted by three senior officers and the opinion or recommendations of such review committee should be a joint opinion or recommendations. The opinion or recommendations of one of the members of the Committee was not be and could not be deemed or treated to be the opinion or recommendations of the Committee as a body.
17. The petitioner has made grave and serious allegations against the respondents No. 2 and in particular that the respondents No. 2 bore grudge and animosity towards the petitioner which have not only been not denied by him but was also clearly proved and established from the facts now disclosed that the impugned order of compulsory retirement of the petitioner was procured by the respondent No. 2 who as a member of the Review Committee acted in the matter contrary to and in utter disregard of the recommendation of the Review Committee dated the 25th July, 1975.
18. Mr. Sengupta contended that from the facts stated by Mr. Lahiri it was clear that there was no joint opinion or recommendation for compulsory retirement of the petitioner by the Review Committee but the same was of the respondent No. 2 alone who alone moved in the matter to procure the compulsory retirement of the petitioner by any means.
19. The purported order of the minister or approval by the Chief Minister to the suggestion of the respondent No. 2 for compulsory retirement of the petitioner was given on a misapprehension of the facts and without application of mind inasmuch as both Minister and the Chief Minister proceeded on the basis as if the said suggestions of the respondent No. 2 were made by the Review Committee.
20. Mr. Sengupta further contended that the mere suspicion expressed by the District Magistrate, Midnapore was no proof and could not lead to any assumption that the petitioner in fact lacked in integrity. It was clear that the respondent No. 2 mala fide and mischievously twisted the said suspicion of the District Magistrate, Midnapore so as to make the same appear as if the petitioner was found to be lacking in integrity and thereby caused the said issue to be prejudged against the petitioner.
21. Mr. Sengupta urged that from the facts as disclosed by Mr. Lahiri before this Court it was clear that there was neither any review of the case of the petitioner by the Review Committee nor any recommendation by it for compulsory retirement of the petitioner and in any event there was no compliance at all with the procedure laid down in Clause 2(i) and (ii) of the said memorandum. Mr. Sengupta next urged the assuming but not admitting that the petitioner lacked in integrity even in that case under Clause 3(ii) of the said memorandum the petitioner should have been advised to retire voluntarily before he was purported to be retired compulsorily which was not done at all.
22. Mr. Sengupta further urged that admittedly as there was no compliance with Clauses 2 and 3 of the said memorandam in seeking to retire the petitioner compulsorily and alleged order by the Minister or approval by the Chief Minister or signing of the order by the Governor could not cure the said defects and illegalities so as to validate the impugned order.
23. Mr. Sengupta also urged that the story of the promotion of petitioner having been kept in abeyance on account of pendency of the enquiry before the Vigilance Commission was on the face of it untrue and baseless as the impugned order of promotion was made on the 19th May, 1975 while the Vigilance Commission was directed to make the enquiry on the 17th July, 1975 long after the said impugned order.
24. Mr. Sengupta lastly urged that no reasons or grounds worth the name have been disclosed as to why the report of the Review Committee dated the 25th July, 1975 was not considered and was completely brushed aside.
25. It appears that all steps for compulsory retirement of the petitioner were taken by the respondent No. 2 as a member of the Review Committee. The District Magistrate, Midhapore expressed his suspicion as to the integrity of the petitioner in 1972 but for about three years neither any steps were taken against the petitioner on that ground nor any steps were taken to ascertain the truth or otherwise of the said suspicion. The petitioner has made various personal allegation of grave and serious nature against the respondent No. 2 including that he bore grudge and animosity towards the petitioner and due to his machinations the service career of the petitioner was jeopardised whereby his promotion was stopped, juniors were given permanent appointments superseding the petitioner and ultimately he was compulsorily retired. None of which are denied by the respondent No. 2.
26. From the conduct of the respondents No. 2 and the manner in which he acted and in particular in his alluding in November, 1975 to the suspicions as to the integrity of the petitioner expressed by the District Magistrate, Midnapore in (972 it appears that he was interested in an order of compulsory retirement being passed against the petitioner. The allegations made by the petitioner against the respondent No. 2 might not be wholly without justification.
27. The case for compulsory retirement of the petitioner as made out by the respondent No. 2 in his notes dated the 20th September, 1975 and 20th November, 1975 is greatly shaken, if not demolished, why the note dated 22nd April, 1975 given by Mr. B.C. Mukherjee, Commissioner, Cottage and Small Scale Industries, recommending promotion of the petitioner.
28. The Memorandum No. 510-G. A. C. dated 16th May, 1973 lays down the criteria and procedure to be followed in compulsorily retiring a Government servant. It lays down that the review should be conducted twice a year in the months of January and July to determine the suitability for continuance or otherwise of the concerned officer. No such review appears to have been made in respect of the petitioner. If at all any review was made that was only once when the Review Committee made its report on the 25th July, 1975 that if adverse report against the petitioner was received from the Vigilance Commission then the petitioner might be compulsorily retired as per rules. Curiously enough in spite of such report by the Review Committee the respondent No. 2 alone, as one of the members of the Review Committee went out of his way to submit separate notes on the 20th September, 1975 after about two months and on the 20th November, 1975 after about four months of the said report by the Review Committee whereby the respondent No. 2 recommended compulsory retirement of the petitioner which appears to have been taken and considered by the Minister and the Chief Minister as the recommendation of the Review Committee. In my opinion, there was only one report or recommendation by the Review Committee and that was on the said 25th July, 1975 and the two notes were merely personel suggestions of the respondent No. 2 which were not and could not be treated as suggestions or recommendations of the Review Committee. The actions of the minister, the Chief Minister and ultimately of the Governor on the basis of the approval of the Chief Minister having been based on an erroneous view and on the basis that the said personel suggestions of the respondent No. 2 were suggestions or recommendation of the Review Committee, the impugned order dated 23rd December, 1975 1 compulsorily retiring the petitioner from his service was, therefore, bad, invalid and unsustainable.
29. From the facts as disclosed by Mr. Lahiri in course of his submissions before me it could not be said that there was any compliance with the provisions of Clause 2(i) and (ii) and Clause 3(iv) of the said Memorandum No. 510-G.A.C., A. C. dated 16th May, 1973. The suspicion of the District Magistrate, Mindapore could not be any proof of the petitioner lacking in integrity and if the Review Committee considered such suspicion as proof then it was clearly in error.
30. For all the above reasons the said impugned order dated the 23rd December, 1975 retiring the petitioner compulsorily from his service is quashed and the rule is made absolute to that extent.
31. I accept the contention of Mr. Sengupta that the promotion of the petitioner was not kept in abeyance because of the pendency of the enquiry by the Vigilance Commission. The impugned order of promotion was made on the 19th May, 1975 while the Vigilance Commission was directed to enquire into the allegations against the petitioner on the 17th July, 1975 long after the said impugned order.
32. It is undoubtedly a regrettable state of affair that although the Vigilance Commission was directed to enquire into the allegations against the petitioner as early as 17th July, 1975, it took over two years and a half to submit its report on the 22nd February, 1978 during the pendency of this rule recommending drawing up of departmental proceedings against the petitioner.
33. Be that as it May, as the Vigilance Commission has submitted a report recommending the drawing up of departmental proceedings against the petitioner the authorities would, therefore, be entitled to draw up such proceedings against the petitioner, if not already initiated, by the 31st July, 1979 and the same should be concluded by the 30th September, 1979.
34. S.P. Dey, the respondent No. 2 herein is directed not to take any part in such departmental proceedings initiated or to be initiated against the petitioner.
35. Upon conclusion of the said departmental proceedings or on the expiry of the 30th September, 1979, whichever is earlier the respondents will consider the case of promotion of the petitioner with reference to his position in the seniority list in accordance with law.
36. The Rule is disposed of accordingly. There will be no order as to costs.