ORDER This Rule is directed against an order of compulsory retirement of the petitioner dated 25th October, 1976 passed by the Inspector General of Police under Rule 75(aa) of the West Bengal Service Rules, Part-I. 2. The petitioner entered into police service as directly recruited Sub-Inspector of Police and was promoted as Inspector of Police sometime in 1961. On 23rd of May, 1967, he was suspended in connection with the arrest of one Md. Elias. Against the order of suspension, he moved this Court and obtained Civil Rule No. 115(W) of 1967. An order of injunction was also issued. It is alleged that the order of injunction was disobeyed by the State Government and a Rule for contempt was issued being C.R. No. 1157(W) of 1967. The State Government filed an appeal against the order of injunction. But that appeal was dismissed. On 7th August, 1961(7), the petitioner was summarily dismissed under Art. 311(2)(c) of the Constitution. He again moved this Court challenging the order of dismissal and obtained Civil Rule No. 6396(W) of 1969 and also an interim order. On June 16, 1970, the said Rule was made absolute, the order of dismissal was quashed. On September 18, 1970 the petitioner was reinstated and posted as Inspector-in-Charge, Alipore Control Room. It appears from the Police Gazette that he had been superseded in the matter of promotion to the post of D.S.P. On January 17, 1974, he sent a memorial to the Chief Minister alleging mala fide against the then Inspector (General ?) of Police. After the petitioner submitted the said memorial, on 4th of March, 1974, he was served in a lump extract from adverse remarks entered in his confidential character roll for the years 1967-68, 1968-69 and 1969-70. It is alleged that on 7th of April, 1974, the then I.G. called the petitioner at his residence and assured the petitioner that the adverse remarks would be expunged. On 23rd of April, 1974, he made a written representation to the I.G. of Police, West Bengal to expunge the adverse remarks. On 18th of September, 1974, the petitioner joined Enforcement Branch West Bengal. On 7th November, 1974, the petitioner again wrote to the I.G. of Police drawing his attention to his earlier representation for expunging the adverse remarks. On 5th of March, 1974, the petitioner was transferred as Inspector of Police, D.E.B. Howrah. On 18th of September, 1974, the petitioner joined Enforcement Branch West Bengal. On 7th November, 1974, the petitioner again wrote to the I.G. of Police drawing his attention to his earlier representation for expunging the adverse remarks. On 5th of March, 1974, the petitioner was transferred as Inspector of Police, D.E.B. Howrah. On 24th of June, 1975, he received a memorandum informing him that his representation for expunging remarks was being processed. He was asked to submit a specific explanation in respect of each adverse remarks. On 30th of October, 1975, the petitioner pointed out that if he had received those adverse remarks in due time, he could have made out his best case for expunging those remarks. He, however, gave specific explanation for each year. On 31st of March, 1976, the petitioner completed 55 years. On 25th of May, 1976, the Review Committee held its sitting and, recommended premature retirement of the petitioner. On the 17 of June, 1976 another adverse remarks was communicated to the petitioner by the D.I.G. Headquarters from the annual confidential report for the year 1975-76 after the Review Committee made the recommendation. On 16th of August, 1976, the petitioner was informed by the S.P., Howrah that his representation for expunging adverse remarks in the confidential roll had been rejected by the Additional I.G., West Bengal. On 25th of October, 1976, the petitioner received the impugned order of compulsory retirement under Rule 75(aa) of the West Bengal Service Rules, Part-I and was given a cheque for 3 months salary. On 8th of November, 1976, he submitted a representation praying for withdrawal of the impugned order demanding justice. Thereafter on the 17th of November, 1976, he moved this Court under Art. 226 of the Constitution and obtained the present Rule. 3. An affidavit-in-opposition has been filed on behalf of the respondents and affirmed by Shib Kinkar Moitra, the present Additional Inspector (General ?) of Police, West Bengal who was one of the members of the Review Committee who reviewed the petitioner's case. In the affidavit, it is stated that on the basis of the broad-sheets and in consideration of the entire service records, with reference to last five years, the Review Committee, reviewed the case of the petitioner and recommended the retirement of the petitioner. In the affidavit, it is stated that on the basis of the broad-sheets and in consideration of the entire service records, with reference to last five years, the Review Committee, reviewed the case of the petitioner and recommended the retirement of the petitioner. The former Inspector General, West Bengal, had merely accepted the recommendation of the Review Committee and forwarded the same to the State Government for approval. There is no time limit in the provisions of Police Regulation, Bengal, 1943 to communicate the adverse remarks. A supplementary affidavit-in-opposition has also been filed by Sunil Chandra Chowdhury, the present Inspector General of Police, wherein it is stated that on June 30, 1976, Sri R.K. Gupta, the respondent No.3 after duly considering the said recomendation of the said Review Committee had given a note on the note sheet of the office file which is set out below: "CHIEF SECRETARY: "Separately on the strength of the recommeniation of the Review Committee I have forwarded the names of Inspector of Traffic and Railway Range in which compulsory retirement of Inspector D.M. Banerjee who is more than 55 years old now has been recommended. He has had a mixed record. But as he is above 55 I am strongly of the opinion that he should retire. The standard for retirement as we look at it in the force below the age of 55 is that the officer in question should have consistenly bad record or bad reputation for 2/3 years. Officers of and above the age of 55 needs, in our opinion, one bad record because his value to the service has gone down and he has by then had a chance of acquiring assets and earning reasonable pension. Continued observation after 55 should not be necessary. In any case the lapse on the part of Inspector Banerjee appears to be beyond correction." 4. The records of the Review Committee was produced before this Court by the respondents. The Review Committee consisting of Sri B.C. Mazumdar, Additional Inspector (General ?) of Police, West Bengal, Sri S.K. Mitra, I.P.S., Additional Inspector (General ?) of Police West Bengal, and Sri R.K. Trivedi, Deputy Inspector (General ?) of Police, (H.Q.) met on 25-5-76 to consider the records of Inspectors of Police in regard to their suitability for continuance in service beyond the age of 50/55 years. Regarding the petitioner, it is recorded in the minutes "his records of service are poor, the committee is of opinion that he is unsuitable for continuance in service and recommends that he should be made to retire. 5. Following remarks appear in the Annual Confidential Report of Shri Dwijendra Mohan Banerjee, Inspector of Police, DEB Howrah, for the year ending 31-3-76 (1975-76). "A self-centered and egotist officer. Took very little interest in his work unless asked for. Has a tendency to defy the orders of superiors and criticises the superiors. Does not bother to take permission for leaving headquarters and some time acts against the interest of administration. Sd/-S. Bhattacharyya, Superintendent of Police, Howrah, 7-5-76. No comments. Sd/-Illegible, District Magistrate, Howrah, 13-5-76. Disgruntled, could have done better. Sd/- N.C. Pal, D.I.G. E.B. West Bengal, 20.5.76. I agree with the S. P. S/d- R.N. Bhattacharyya, 24.5.76 D.I.G. (T & R) Seen. Copy of S.P.'s & D.I.G. EB's remarks to be communicated to the officer. Sd/- S.K. Mitra, 17.6.76. Addl.-Inspector General of Police West Bengal. I agree with the S.P. & D.I.G. He had some good points in the past but now through his disloyalty to the force and indiscipline he certainly has wiped out his credit. I regret to note that his demeanour of discipline towards the head of the force is quite different from his near subversive attitude to the organisation. He along with Inspector Nagendra Nath Roy, who has been recommended for compulsory retirement, certainly did considerable damage to Howrah Police Force. Sd/- R.K. Gupta, 30.6.76. Inspector General of Police, West Bengal. 6. To appreciate the arguments, it is necessary to refer to the criteria and procedure required to be followed by the Appointing Authorities and the guidelines issued from time to time by the State Government for exercising powers under Rule 75(aa) of the West Bengal Service Rules, Part-I. Government of West Bengal Home (Genl.-Admn.) Deptt. MEMORANDUM No. 510-G.A.C. Calcutta, The 16th May, 1973 Sub:-Premature retirement of State Government Officers under rule 75(aa) of the W.B.S.R., Part-I, Criteria and Procedure to be followed. MEMORANDUM No. 510-G.A.C. Calcutta, The 16th May, 1973 Sub:-Premature retirement of State Government Officers under rule 75(aa) of the W.B.S.R., Part-I, Criteria and Procedure to be followed. 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 his notice of not less than three months' in writing or three months' pay and allowances in lieu of such notice :- (i) If he is in Class I or Class 11 service or post and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; and (ii) In all other cases, after he has attained the age of 55 years. 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 year 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 cases where there is a resonable 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 ablity or efficiency in work. (ii) In a case where the Officer's integrity is not in doubt but his physical or mental condition is such as to render him unfit for continance 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. A Government servant who is retired on this ground may however be given all the leave that is due to him including half pay leave and leave on medical certificate prior to his compulsory retirement. (iii) If on the result of a review, it is considered that an Officer who had done well in a lower grade is not adequate to the responsibilities of the post held by him or will not be able to perform efficiently the duties of the post he is likely to hold for the next three years, it would be desirable to consider him for premature retirement under this rule. (iv) In the case of Officers coming 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, with 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. 4. All Departments are requested to take necessary action on the above basis. The above instructions will apply to all Government servants to whom rule 75 of the WBSR, Part-I, applies. The Heads of Departments/Directorates etc. may be informed. S/d-A. Niyogi. Chief Secy. to the Govt. of W.B. Government of West Bengal Home Department General Administration. MEMONANDUM No. 949-GAC. Calcutta, the 7.8.76. Sub: Strengthening of administration Review of cases of Govt. servants attaining the age of 50/55 years. The Heads of Departments/Directorates etc. may be informed. S/d-A. Niyogi. Chief Secy. to the Govt. of W.B. Government of West Bengal Home Department General Administration. MEMONANDUM No. 949-GAC. Calcutta, the 7.8.76. Sub: Strengthening of administration Review of cases of Govt. servants attaining the age of 50/55 years. Under rule 75(aa) of the WBSR, Part I, all appointing authorities under the State Government have the power to retire if they are of opinion that it is necessary in the public interest to do so, a Government servant by giving him notice of not less than three months in writing or three months pay and allowance in lieu of such notice- (i) if he is in Class I or Class II service or post and had entered service before attaining the age of 35 years after he had attained the age 50 years; and (ii) in all other cases, after he has attained the age of 55 years. 2. Instructions were issued in this Department Memorandum No.510-GAC dated the 16th May, 1973 regarding the criteria and procedure to be followed in implementing the aforesaid provisions of the rules. According to these instructions, cases of Government servants are required to be reviewed half yearly in January and July by Review Committees constituted for the purpose. 3. Keeping in view the imperative need for improving administrative efficiency of all Government offices at present time, it is considered very necessary that the adovementioned instructions for retiring Government servants who have outlived their utility or whose integrity is doubtful are strictly enforced. All Departments/Heads of Departments etc. are, therefore, requested to take the following action in respect of services/posts under their control:- (i) Review of cases of all such Govt. servants who are due to attain the age of 50/55 years during the next six months. (ii) Review the cases of Government servants who have already attained the age of 50/55 years and in whose cases no review has been made so far. (iii) Reconsideration of the question of continued retention, if the circumstances so warrant, of those Government servants in whose cases it has already been decided after a review at the appropriate time that they may be retained in service. 4. All Departments/Heads of Departments etc. are requested to initiate action immediately on the lines indicated above. (iii) Reconsideration of the question of continued retention, if the circumstances so warrant, of those Government servants in whose cases it has already been decided after a review at the appropriate time that they may be retained in service. 4. All Departments/Heads of Departments etc. are requested to initiate action immediately on the lines indicated above. It is also requested that quarterly returns indicating the total number of cases reviewed and the number of cases where it has been decided to retire persons in the public interest be sent to this Deptt. by the middle of October, January, April and July. 5. This should be circulated to all Heads of Deptt. etc. By order of the Governor, Sd/- B.R. Gupta, Chief Secy. to the Govt. of W. Bengal. 7. Mr. Roy appearing on behalf of the petitioner contended that the petitioner's case was reviewed just on the attainment of 50 years i.e. immediately before 1.4.71 and on consideration of all previous records of service he was allowed to retain in service beyond the age of 50 years. Again in January, 1976 another review committee considered his case just on the verge of attaining 55 years of age and after considering all the records upto that date the said review committee allowed the petitioner to be retained in accordance with the memorandum No. 510-6.A.C. dated 16th May, 1973. He crossed the age of 55 years on 31st of March, 1977 (?). There was nothing on the records between February and May, 1976 which warranted the review committee to reconsider the question of continued retention of the petitioner whose case has already been decided after a review at the appropriate time that he might be retained in service. 8. Reliance was placed upon the decision of the Supreme Court in State of U.P. v. Chandra Mohan, AIR 1977 SC 2411 . 9. Mr. Gooptu, appearing on behalf of the State Government contended that under clause (iii) of paragraph 3 of memorandum No. 949 dated 7.8.75 the review committee could reconsider the question even when the petitioner's case had already been decided for further retention at the appropriate time. 10. 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. 10. 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 directive issued by the Government. Since rule 75(aa) does not contain any guidelines, directions or criteria, the instructions issued by the Government supplement the rules as they make provisions for matters about which the rules are silent. In Chandra Mohan's case, AIR 1977 SC 2411 , the Supreme Court observed that these instructions really fill up the yawning gaps in the provisions and are embedded in the conditions of service. There are binding on the Government and cannot be violated to the prejudice of the Government servant. 11. Elaborate procedures and criteria have been laid down in 1973 memorandum. A review should be conducted twice a year in the months of January and July to determine the suitability for continuance of all officers who will attain the age of 50/55 years. Four criteria have been laid down. In clause (iv) it is stated that 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 up to the age of 55 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 early retirement desirable. Paragraph 3 of the 1975 memorandum says that keeping in view of imperative need for improving administrative efficiency of all government offices at the present time it is considered very necessary that the abovementioned instruction viz. instructions of 16th May, 1973, for retiring government servants who have outlived their utility or his integrity is doubtful are strictly enforced. All departments/heads of departments etc. are, therefore, requested to take the following action in respect of services/posts under their control. * * * (iii) reconsideration of the question of continued retention" if the circumstances so warranted, of those government servants in whose cases it has already been decided after a review at the appropriate time that they may be retained in service. are, therefore, requested to take the following action in respect of services/posts under their control. * * * (iii) reconsideration of the question of continued retention" if the circumstances so warranted, of those government servants in whose cases it has already been decided after a review at the appropriate time that they may be retained in service. So, 1975 memorandum does not lay down a new procedure or criterion. For the purpose of strengthening the administration, it reminded all heads of the department that even in cases where decision has already been taken with respect to an officer on his attaining the age of 55 years to retain in service, the question of continued retention might be reopened and reconsidered with respect to that government servant who has outlived his utility or whose integrity is doubtful. The exceptional circumstances have also been mentioned in clause (iv) of 1973 memorandum. Therefore, it cannot be said that in no circumstances, there could not be any fresh review after an officer attained the age of 55 years. But that fresh review is permissible only for exceptional reasons. It is true that the exceptional circumstances as referred to in clause (iv) of 1973 memorandum are not exhaustive hut illustrative. But even than, in the opinion formed by the appointing authority reference to any similar exceptional circumstances must exist. 12. In the instant case, the review committee was of opinion that the petitioner was unsuitable for continuance in service, because "his record of service was poor". The appointing authority on the basis of such recommendation of the review committee, recommended the compulsory retirement of the petitioner on the following grounds:- (a) He has-had a mixed record (b) he is above 55 (c) lapse on the part of the petitioner appears to be beyond correction. 13. I must mention here that R.K. Gupta, I.G.'S. adverse remarks dated 30th June, 1976 viz. "disloyalty to the force and subversive attitude to the organisation" were not before the review committee which held its meeting on the 25th May. 1976. R.K. Gupta in his note did not mention any of his adverse remarks, he recorded in the confidential file of the petitioner on 30th of June. 1976. "disloyalty to the force and subversive attitude to the organisation" were not before the review committee which held its meeting on the 25th May. 1976. R.K. Gupta in his note did not mention any of his adverse remarks, he recorded in the confidential file of the petitioner on 30th of June. 1976. Those adverse remarks might have been construed to be an exceptional circumstances but the I.G. was conscious that the said remarks were not placed before the review committee and the recommendation of the review committee was not based upon those adverse remarks. 14. It is not disputed that in January 1976 a review committee sat and considered the broad-sheets and confidential character rolls of the petitioner and allowed him to retain in service beyond 55 years. Four months after in May, 1976 another review committee reconsidered the petitioner's case in terms of clause (iv) of 1975 memorandum. In Chandra Mohan's case the Supreme Court observed that there was no warrant for a second review committee to reassess one's case on the same materials unless exceptional circumstances emerged in the meantime or when the next stage arrived. When an integrity of an officer was in question that would be an exceptional circumstances for which order might be passed in respect of such a person at any time. But on the self same materials there could not be any review for the second time. 15. The correct position that emerges from clause (iv) of 1975 read with clause (iii) of paragraph 3 of 1973 memorandum is, that in case where the officer outlived his utility or his integrity is doubtful or there is any similar exceptional circumstances, a reconsideration is permissible both under 1973 and 1975 instructions and a government servant can be retired prematurely only on those exceptional grounds. 16. The opinion of the appointing authority does not indicate any of the exceptional circumstances on the grounds as laid down in the instructions. There is nothing in the confidential file to show that the petitioner's integrity was doubtful or he outlived his utility to the service. Accordingly, in my opinion, the conditions as laid down both in 1973 and 1975 instructions have not been fulfilled in the petitioner's case and as such there could not be any second review. Therefore, the impugned order of compulsory retirement cannot be sustained. 17. Mr. Accordingly, in my opinion, the conditions as laid down both in 1973 and 1975 instructions have not been fulfilled in the petitioner's case and as such there could not be any second review. Therefore, the impugned order of compulsory retirement cannot be sustained. 17. Mr. Gooptu urges that there was another memorandum No. 662-G.A.C. dated 6th April, 1976 which provides procedure for considering representation from Government servants against the order of premature retirement. According to him, without exhausting the remedy provided in that instruction, in other words, without submitting a representation against the order of compulsory retirement, the petitioner's present application under Art. 226 is not maintainable. 18. Where the decision of the appointing authority is null by reason of want of jurisdiction, it cannot be cured by any appellate proceedings. Moreover, in my view, failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. So, in my opinion, simply because provisions of making representation has been provided for in 1976 instruction, the petitioner's present writ petition cannot be thrown out where he challenged the very foundation upon which the opinion was formed by the appointing authority that he should compulsorily retire from government service in the public interest under rule 75(aa) of the West Bengal Service Rules, Part-I. 19. As I have found that the petitioner's case could not be reviewed for the second time in accordance with the instructions issued by the State Government as there was no exceptional circumstances, it is not necessary for me to decide the other point raised in the present Rule. Those points are left undecided. In the result, this Rule is made absolute. The impugned order is quashed by a Writ of Certiorari. Let a Writ of Mandamus be issued commanding the respondents not to give effect to such order. There will be no order for costs. Rule made absolute.