Union of India, New Delhi v. Anand Swaroop — 1975 DIGILAW 509 (ALL)

JUDGMENT Gulati, J. - Respondent Anand Swaroop was an employee in the Post and Telegraph Department. He was compulsorily retired under clause (j) (i) of Fundamental Rule 56 under which a Government servant can be retired in public interest on attaining the age of 50 years. He moved this Court under Article 226 of the Constitution by means of a writ petition No. 299 of 1973. This petition has been allowed by Hon'ble D.N. Jha, J. and the order of compulsory retirement of the respondent has been quashed. The Union of India, the Post and Telegraph Board and the Director Postal Services (Central) U.P., Lucknow are aggrieved and have preferred the present Special Appeal. 2. The respondent Anand Swaroop entered the service of the Government of India in the Post and Telegraph Department in the year 1938. He passed departmental examinations and was promoted as Inspector and was later appointed as Assistant Superintendent, Post Offices. He was confirmed on that post. Thereafter on 5th January, 1963, the Director General Indian Posts and Telegraphs Department appointed him in Class II service in the grade of Postal Superintendents. With effect from 11th October, 1972, he was promoted as Assistant Director Postal Services (Enquiries) in U. P. Circle. He was holding that post when the order of compulsory retirement was passed against him. 3. It appears that the Government of India constituted a Review Committee consisting of the Secretary of Communications as Chairman and Sri R. N. Chopra, Additional Secretary, Cabinet Secretariat, to review the cases of Class I and Class II (Gazetted Officers) in the Ministry of Communications for retention beyond the age of 50 years. The Review Committee met on 25th July, 1972, and it considered the cases of 81 officers belonging to Posts and Telegraphs Department and recommended that they should be retired in public interest. The respondent was one of such officers. The recommendations of the Review Committee were approved by the Chairman on behalf of the Posts and Telegraphs Board and the same were also approved by the Minister of Communications on 14th November, 1972. It was contended on behalf of the respondent that he had unblemished record of 34 years service except for a stray entry of censure which was awarded to him in September, 1971. As a result of this entry he was held up at the efficiency bar which fell due on 5th January. It was contended on behalf of the respondent that he had unblemished record of 34 years service except for a stray entry of censure which was awarded to him in September, 1971. As a result of this entry he was held up at the efficiency bar which fell due on 5th January. 1971, but by a subsequent order dated 8th August, 1972, he was allowed to cross the efficiency bar with retrospective effect, namely, with effect from 5th January, 1971 and thereafter with effect from 11-10-1972, he was promoted as Assistant Director, Postal Services. The contention of the respondent was that the punishment of censure awarded to him stood wiped out as in spite of that punishment he was allowed to cross the efficiency bar and was given promotion. It was further contended on his behalf that the Review Committee although recommended his compulsory retirement in public interest yet it had not disclosed any material on the basis of which such an opinion was formed and as such the opinion formed by the Review Committee was arbitrary. These contentions prevailed with the learned single Judge and he set aside the order of compulsory retirement. He expressed the opinion, relying upon certain decided cases including a decision of the Supreme Court, that the opinion to retire a Government servant prematurely in public interest must be based upon some material germane to the question of public interest and if no such material existed or disclosed, the decision to retire a Government servant could be struck down. 4. On behalf of the appellants it was contended that the Post Master General U. P. who is an authority subordinate to the Post and Telegraphs Board had allowed the petitioner to cross the efficiency bar in ignorance of the decision taken by the Review Committee and, as such, no importance should be attached to that fact. 5. According to the learned single Judge, the averment that the respondent had been allowed to cross the efficiency bar by the Post Master General, U. P. in ignorance of the decision taken by the Review Committee could not be accepted. He thought that the decision of the Review Committee must have been known by all concerned. 5. According to the learned single Judge, the averment that the respondent had been allowed to cross the efficiency bar by the Post Master General, U. P. in ignorance of the decision taken by the Review Committee could not be accepted. He thought that the decision of the Review Committee must have been known by all concerned. Even if we accept that the Post Master General, U. P. was not aware of the decision taken by the Review Committee, who retired the respondent prematurely, there is another serious infirmity in the impugned order which the learned Single Judge did not notice. The Posts and Telegraphs Department had issued a notification dated 8th September, 1970, laying down a guideline for pre-mature retirement of Government servants in that department. Paragraph 2 of that notification provided that only those Government servants should be prematurely retired whose integrity was doubtful or who are unfit and incapable of holding the post held by them. 6. Now, this notification, no doubt, contains merely instructions, but it cannot be brushed aside as a waste paper. It lays down the criterion as to what can be considered to be in public interest while determining the question of compulsory retirement of a Government servant. In other words, it defines 'public interest for purposes of Fundamental Rule 56 (J) (i). Unless the case of a Government servant is covered by the notification, his premature retirement cannot be said to be in `public interest'. Of course, the notification may not be exhaustive and there might be other grounds upon which a Government servant may be prematurely retired in public interest, but such a ground must be disclosed when the aggrieved Government servant challenges his premature retirement so that the Courts can judge as to whether or not the circumstances or grounds taken into consideration are germane to public interest. 7. In Santram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : ( AIR 1967 SC 1910 ) the Supreme Court made the following observations with regard to the status of such instructions and notifications issued by the various Departments with regard to the applicability of Fundamental Rule 56 (J) (i). 7. In Santram Sharma v. State of Rajasthan, (1968) 1 SCR 111 : ( AIR 1967 SC 1910 ) the Supreme Court made the following observations with regard to the status of such instructions and notifications issued by the various Departments with regard to the applicability of Fundamental Rule 56 (J) (i). "It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." The Supreme Court took the same view in Guman Singh v. State of Rajasthan, (1971) 2 SCC 452 at page 470 : (1972 Lab IC 1295 at p. 1307). This Court in Hardwari v. Divisional Engineer, Telegraphs, Allahabad, 1972 Serv LR 279 (All) also pointed out that the directions with respect to the Fundamental Rules given by the Government of India provided the safeguard against the arbitrary exercise of powers. The Government instructions do not supplant the rules, on the contrary, they supplement the rules as they make provisions for matters about which the rules are silent. 8. Now the fundamental Rule 56 (J) (i) merely permits a Government servant to be prematurely retired in public interest, but `public interest' has not been defined in the Rules. It was thus open to the Government to issue notifications and instructions to lay down the criterion for judging the public interest. One of the criteria is the integrity of the Government servant concerned. If his integrity is doubtful, certainly it is public interest to retire him. The second criterion is that it should be found that the Government servant concerned would not be fit or competent to continue in the post which he was holding at the time of review. We are of the opinion that it was necessary for the review committee to have kept these two instructions in view before taking a decision with regard to the compulsory retirement of a Government servant. Now it is not clear as to what exactly the Review Committee stated in its opinion but Mr. B.C. Saxena, the learned counsel, has invited our attention to a decision of the Calcutta High Court in A.C. Bose v. Union of India, 1975 Serv LJ 144 (Cal). Now it is not clear as to what exactly the Review Committee stated in its opinion but Mr. B.C. Saxena, the learned counsel, has invited our attention to a decision of the Calcutta High Court in A.C. Bose v. Union of India, 1975 Serv LJ 144 (Cal). That was also a case of an employee of the Posts and Telegraph Department of the Government of India. In para. 9 the exact words in which the Review Committee made its recommendations are quoted. The recommendation is in the following words: - "In respect of the remaining 6 officers, the Committee recommended as follows:- (1) As overall assessment of the confidential records of the following officers does not justify their continuance in service and therefore, they should be retired in public interest." 9. The learned Judges of the Calcutta High Court stated that they asked the learned counsel for the respondents to apprise them of the grounds and the material upon which the Review Committee had formed the opinion quoted above. But the learned counsel stated that he had no instructions other than those appearing in the aforesaid minutes. On these facts the Calcutta High Court held that it was not possible to examine whether any grounds or material germane to the issue existed for the formation of the opinion referred to in Fundamental Rule 56 (J) (i). We are in respectful agreement with this observation. To say that a Government servant is not fit to continue in service on the basis of overall assessment of record, in our opinion, is not enough. We might state here that the respondent was one of the six officers in respect of which the Review Committee expressed the opinion quoted above. The respondent has been compulsorily retired on the ground that an overall assessment of confidential record do not justify his continuance in service. Obviously the Review Committee did not keep in view the Notification dated 8th September, 1970, referred to above. It was necessary for the review committee to have stated either that the respondents integrity was doubtful or that he was inefficient or incompetent to hold the post which he was occupying. The Review Committee did nothing of the sort. It merely stated that an overall assessment of the service records of the six officers including the respondent indicated that they were not fit to be retained in service. The Review Committee did nothing of the sort. It merely stated that an overall assessment of the service records of the six officers including the respondent indicated that they were not fit to be retained in service. It is clear that the review committee did not discharge its duty properly inasmuch as it did not apply its mind to the requirement contained in the notification dated 8th September, 1970. 10. Now, admittedly the case of the respondent is not a case of doubtful integrity. There is no such allegation in the counter-affidavit filed on behalf of the appellant. The only thing against the respondent is the punishment of censure entry awarded to him in 1971. The learned counsel has supplied to us a true copy of the letter by which this entry was communicated to the respondent. This letter is important and is reproduced below ; "While you have earned a good report on your work for the year just completed, uncomplimentary comments against some items have had to be made as noted below. They are brought to your notice in order that you should be made aware of them and so that you should make special efforts during the current year and in the following years to overcome these shortcomings. It is hoped that your work in future will be of such a character as to remove the effect of these bad entries. 2. Please acknowledge receipt of this letter and return one copy; Remarks; He has been censured vide Memo. No. VID/103 PA/1 (Loose) dated 28-9-1971. Item. 5. Discuss the general performance of the officer during the year under review and whether he has been responsible for any outstanding work or been reprimanded for unsatisfactory work or other causes with brief particulars of the same." This letter shows that the respondent had earned good report for his work, but he was censured for some reason which has not been disclosed. All one knows the punishment of censure might have been awarded to the respondent on a technical or a trivial ground. That apart, this punishment of censure lost all significance when the respondent was allowed to cross the efficiency bar with retrospective effect and thereafter promoted to a higher post. All one knows the punishment of censure might have been awarded to the respondent on a technical or a trivial ground. That apart, this punishment of censure lost all significance when the respondent was allowed to cross the efficiency bar with retrospective effect and thereafter promoted to a higher post. It is not the case of the appellant that after the respondent was allowed to cross the efficiency bar with retrospective effect and was promoted to the higher post, he earned some adverse remarks or there was some other material adverse to him. At least no such material has been brought on the record. We can, therefore. safely presume that besides the entry of censure there was nothing else against the respondent. In the circumstances we are clearly of the opinion that the decision taken by the Review Committee to retire the respondent was wholly arbitrary and capricious. The view that we are taking is fully supported by a decision of this Court in State of Uttar Pradesh v. Dr. D.N. Sharma, 1975 All LR 399. In that case the U. P. Government issued a Government order dated November 2, 1973 laying down that a Government servant will be considered for compulsory retirement only on two conditions: (1) that his integrity was doubtful and (2) that his efficiency had gone down beyond improvement. This Court held that the G.O. contained a test for determining whether or not it would be in public interest to retire a Government servant prematurely. It was also held that the G. 0., provided the definition of 'Public interest in respect of which the Fundamental Rule 56 was silent. One Dr. R. S. Gupta, Chief Medical Officer, Basti, was retired compulsorily without recording a finding either that his integrity was doubtful or that his efficiency had deteriorated beyond repairs. Certain adverse entries were given to him. This Court found that the entries given to him were such as did not reflect upon his integrity or efficiency. It was further found that in spite of those entries he was allowed to cross the efficiency bar and was also given promotions. Precisely the same circumstances prevail in the present case. The adverse entry given to the respondent in 1971 appears to us to be wholly innocuous and does not disclose a flaw in his character or efficiency. It was further found that in spite of those entries he was allowed to cross the efficiency bar and was also given promotions. Precisely the same circumstances prevail in the present case. The adverse entry given to the respondent in 1971 appears to us to be wholly innocuous and does not disclose a flaw in his character or efficiency. Moreover, in spite of the censure entry he was allowed to cross the efficiency bar with retrospective effect and was given a promotion. We are of opinion that the ratio of the case of Dr. Gupta completely covers the case of the respondent. In the result we are in full agreement with the view taken by the learned single Judge that the compulsory retirement of the respondent was wholly arbitrary and unjustified. 11. We, therefore, find no merit in this appeal and the same/is accordingly dismissed with costs.