R. M. DALAL v. STATE — 1989 DIGILAW 4 (GUJ)

P. M. CHAUHAN, J. ( 1 ) PETITIONER an Assistant Examiner Local Funds Account serving under the Director of Accounts and Treasuries was served with a notice dated 26/08/1977 informing that he should he compulsorily retired from the Government service with effect from 30/11/1977 under the provisions of Rule 161 Bombay Civil Services Rules (to be referred to as B. C. S. R.) and accordingly was made to retire from the service on 30/11/1977 as he had attained the age of 55 years. Petitioner made a representation against the order of retirement to the higher authorities but that was also rejected by the Government on 24/11/1977 Petitioner has challenged the order of premature retirement at the age of 55 years on various grounds and by this writ has prayed for declaring the order illegal and bad and violative of Arts. 14 and 16 Constitution of India. According to the petitioner he should have been given opportunity to serve in the lower grade of Class II Accounts Officer and as he was not given that opportunity the order by the Competent Authority is mala fide. According to the petitioners that order without giving him opportunity to work as Class II Officer is an outcome of malice against the petitioner by the authorities. Petitioner also contended that he is compulsorily made to retire as a part of the campaign of removing all the promotes who had attained the position of Class I Officer and replacing the posts by direct recruits. The catenation of the petitioner is that the higher authorities tried to remove the petitioner only because the petitioner was occupying the position as the Class I Officer as a promote and as such there was no ground much less the reason in the public interest for the premature retirement from the service. The petitioner also contended that he was promoted from Class II to Class I Junior Duty Officer post in the Accounts Service and was allowed to cross the Efficiency Bar and that establishes his efficiency to hold the post. It is also contended that the Competent Authority issuing the notice has not formed the requisite opinion to the effect that the petitioner should be retired in the public interest but the decision is based on collateral grounds and as such the action of the Government retiring the petitioner is mala fide. It is also contended that the Competent Authority issuing the notice has not formed the requisite opinion to the effect that the petitioner should be retired in the public interest but the decision is based on collateral grounds and as such the action of the Government retiring the petitioner is mala fide. arbitrary and on collateral grounds and therefore bad and illegal. Petitioner also states that compulsorily retiring him from the service without giving him the opportunity to serve in the lower grade offends the provision of Arts. 14 and 16. Constitution of India as it amounts to discrimination and not affording the opportunity to serve. Petitioner also contended that other tea officers belonging to the said cadre who were the promotees were also served with the notice of premature retirement with an ulterior motive to see that no promotee may occupy Class I post. ( 2 ) THE respondent-State has asserted the absolute power of the Government to retire the petitioner in the public interest as provided in Rule 161 B. C. S. R. and also contended that the decision to retire the petitioner was taken on the basis of the confidential reports and also as a result of the review of his overall performance during the last 10 years by the Review Committee constituted for the purpose. According to the respondents the petitioner was considered as below average standard and therefore it was felt his retention in the service in the lower grade i. e. Class II would have not served the purpose and therefore he was not offered the lower post. The allegation about the campaign to remove the Class I promotee officers is also denied in the affidavit filed by Shri J. P. Mehta Under Secretary to the Government Finance Department. Shri Mehta has deposed that the criteria for allowing the Government servant to cross Efficiency Bar are different from that for continuing in service beyond the age of 50-55 years. The decision was taken on the basis of the review of the overall performance of the petitioner during the period on last 10 years and it is not based on collateral grounds or extraneous circumstances. ( 3 ) AS provided in Rule 161 B. C. S. R. the date of the compulsory retirement of the Government servant other than a Class IV Servant is the date on which he attains the age of 58 years. ( 3 ) AS provided in Rule 161 B. C. S. R. the date of the compulsory retirement of the Government servant other than a Class IV Servant is the date on which he attains the age of 58 years. The proviso to Rule 161 specifically provides that an appointing authority shall if the appointing authority 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 the notice of not less than three months in writing or three months pay and allowances in lieu of such notice if the Government servant is in Class I or Class II service or post or in any unclassified gazetted post the age limit for the purpose of direct recruitment to which is below 35 years on or after the date on which he attains the age of 50 years and if he is in any other service or post the age limit for she purpose of direct recruitment to which is below 40 year 51 or after the date on which he attains the age of 55 years. Shri G. D. Bhatt learned Assistant Government Pleader on instruction states that the age limit for the purpose of the direct recruitment of the Assistant Examiner Local Funds Account is 35 years sad therefore the petitioner can be compulsorily made to retire on or after the date on which he attains the age of 50 years. The Rule specifically provides for the absolute right of the Government or the appointing authority provided. in the opinion of the appointing authority or the Government it is in the public interest to retire the Government servant that absolute right can however be challenged on the grounds of mala fide arbitrariness or the ground of collateral purpose. The law on the point is now well settled by various judgments of the Supreme Court. In J. D. Shrivastava v. State of M. P. AIR 1984 SC 630 the Supreme Court was considering the fundamental Rule 56 (3 ). The law on the point is now well settled by various judgments of the Supreme Court. In J. D. Shrivastava v. State of M. P. AIR 1984 SC 630 the Supreme Court was considering the fundamental Rule 56 (3 ). Even though the Rule did not provide specifically about the absolute right of the Government to retire the Government servant on attaining the age of 55 years the Supreme Court after considering the various authorities of the Supreme Court in terms observed that it is now firmly settled that the power to entire a Government servant compulsorily in public interest in terms of service rule is absolute provided the authority concerned forms an opinion bona fide that it is necessary to pass such an order in public interest. It is also observed that it is equally well settled that if such decision is based on collateral grounds or if the decision is arbitrary it is liable to be interfered with by Courts. In that matter the Additional District Judge was ordered to be retired compulsorily on attaining the age of 55 year and for the purpose of ascertaining as to whether the order was arbitrary the Supreme Court considered the confidential reports and as there was no specific adverse entry in the confidential report it was held that the order of premature retirement was arbitrary. Supreme (Court in Brij Mohan Singh Chopra v. State of Punjab AIR 1987 SC 948 while considering the provisions of Rule 3 of the Punjab Civil Services (Premature Retirement) Rules which are in pari materia to the provisions of Rule 161 B. C. S. R. observed that the purpose and object of premature or compulsory retirement of the Government employee is to weed out the inefficient corrupt dishonest. or deadwood from the Government service. That right of the Government is well established which is generally exercised in sacredness with the relevant Rules. The scope and ambit of exercise of that absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations. Supreme Court has expressed similar view as expressed in case of J. D. Shrivastava (supra) in R. L. Butail v. Union of India 1970 (2) SCC 876 . The scope and ambit of exercise of that absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations. Supreme Court has expressed similar view as expressed in case of J. D. Shrivastava (supra) in R. L. Butail v. Union of India 1970 (2) SCC 876 . As the legal position about the absolute right of the Government for premature retirement of the Government servant under the sylvan Service Rules is well settled it is required to consider as to whether the Government bona fide decided to retire the petitioner on attaining the age of 55 years in the public interest or the order of the Government is arbitrary mala fide or passed on collateral considerations. Even though Shri J. P. Mehta in his short affidavit denied the allegations about the mala fide and asserted that Committee has taken the decision bona fide I called upon the learned Assistant Government Pleader to produce the confidential reports of the petitioner and also the file on which the decision was taken to retire the petitioner at the age of 55 years. It is true that the petitioner was promoted from Class II to Class I post on 3/10/1966 and was allowed to cross the Efficiency Bar on 3/10/1970 but that does not necessarily mean that the petitioner was considered efficient and it was not necessary in the public interest to retire him on attaining the age of 55 years. The confidential reports from April 196 7/03/1977 are produced and it is clear from the confidential reports from April 196 6/12/1970 that the petitioner had earned the Good remark in three confidential reports and Fair remark in four confidential reports. The adverse remark was passed in the year 1970 that the petitioner does not exercise properly the power delegated to him. Inspite of that the petitioner his allowed to cross the Efficiency Bar. By Government Circular dated 10/04/1964 the criteria for allowing to cross the Efficiency war were positive merit and reasonably efficient and good and that the service record is not merely average or tolerably good or just satisfactory. As the petitioner was allowed to cross the Efficiency Bar in October 1970 his service to that effect should be considered to be satisfactory and the Compete. As the petitioner was allowed to cross the Efficiency Bar in October 1970 his service to that effect should be considered to be satisfactory and the Compete. It Authority could not have considered the services prior to that period such as to compulsorily retire the petitioner from service I have therefore to consider the confidential reports for the period from 1971 to 1977 i. e. till the date the notice was served to the petitioner. From 1/01/197 1/08/1971 the petitioner was grad d Fair and average and in the general assessment it was stated that the petitioner is and officer with good character but wild temperament. For the period from 10/10/197 1/12/1971 and from 1/01/1972 to December 31 197 the confidential report of the petitioner was graded Good. In the year 1973 the petitioner was graded Fair From Janu 1/01/197 4/06/1974 the reporting officer graded the petitioner as Good but the reviewing authority graded him as Fair. From June 24 197 4/03/1975 the petitioner was graded as Fair and adverse remark to the effect that the petitioner has to adequate initiative and resourcefulness. For the period from April 1 197 5/03/1976 the petitioner was graded Fair and the adverse remarks to the effect that he lacks ability to participate effectively in discussions does not possess proper and adequate initiative and at limes he had shown the tendency to refer even hand of matters to the Head Office which could easily be decided by him. It was also stated that the petitioner was a very routine type of worker and did not take sufficient interest in work. For the period from June 8 197 6/03/1977 the petitioner was granted Fair and the adverse remarks were to the effect that the petitioner was finding it difficult to extract work from the subordinates and that he is not upto the mark for the duties of the grade. From the confidential therefore it is clear that right up from June 197 4/03/1977 not only that the petitioner was graded Fair hut adverse remarks were also passed against him. The adverse remarks were relation to the ability initiative and administrative capacity. As such it was also specifically stated that the petitioner was not upto the mark for the duties of the grade in which he was working. The adverse remarks were relation to the ability initiative and administrative capacity. As such it was also specifically stated that the petitioner was not upto the mark for the duties of the grade in which he was working. That being the ability of the petitioner to discharge his duties as a Class I Officer it cannot be said that the decision to compulsorily retire him from the service is not bona fide. ( 4 ) WITH a view to ascertaining the reasons for compulsory retiring the petitioner at the age of 55 years I directed the learned Assistant Government Pleader to produce the file on which the decision was taken and on behalf of the Government the copy of the nothings on the relevant files are produced and also shown to the learned Advocate for the petitioner. The Director of Accounts and Treasuries Shri P. V. Bhavsar by his letter dated 18/07/1977 addressed to the Deputy Secretary to the Government of Gujarat Finance Department referred previous confidential D. O. letter of Deputy Secretary and as desired in that letter made proposal regarding the petitioner and other three Class I Officers and also regarding four Class II Officers of the Department. So far as the petitioner was concerned he stated that the C. Rs. for last 10 years were mostly graded as Fair and there were adverse comments on various counts in different years i. e. also informed that the petitioner suffered from heart disease and had proceeded on leave on two occasions on account of his bad health during last two years. The petitioner had also complained that he was not keeping good health and applied for commuted leave for one month. Shri Bhavsar also stated that nothing adverse was noticed about the conduct of the petitioner. In view of Shri Bhavsar it was doubtful if his (petitioners) further continuance can be justified. On the basis of the proposal the Finance Department prepared note. So far as the petitioner was concerned it was commended that during the period of 10 years the petitioner was graded on number of occasions as Fair and adverse remarks were also passed against him both by the Reporting Officer as well as the Reviewing Officer. The details of the confidential reports are also specifically mentioned in it. So far as the petitioner was concerned it was commended that during the period of 10 years the petitioner was graded on number of occasions as Fair and adverse remarks were also passed against him both by the Reporting Officer as well as the Reviewing Officer. The details of the confidential reports are also specifically mentioned in it. About the health it was noted that the petitioner did not keep good health and suffered from heart disease. The penultimate observation was as the confidential records of Shri Dalal is not upon the standard and had use he is not keeping good health it is proposed to letter his prematurely on attaining the age of 55 years i. e. 18-11-1977. The noting by the Section Officer was approved by the Deputy Secretary and the Secretary Finance Department and the file was then sent to the Special Secretary General Administration Department. The Special Secretary General Administration Department recorded that out of the case of eight officers he agreed with the proposal regarding petitioner Shri R. M. Dalals premature retirement. He also recorded that the petitioner was awarded adverse remarks by different reporting officers and in recent years also and the performance of the petitioner has been definitely described as not upto the mark. He also recorded that the adverse remarks of the recent years were communicated to the petitioner The Chief Secretary accepted the recommendation regarding the petitioner and also regarding Shri Desai and Shri Parmar other two Class I Officers of the department as in view of the Chief Secretary as in view of the Chief Secretary at the 55 year stage we observe a more strict standard and had 3 positively good reports in the last two years. Shri Desai and Parmar do not came upto the standard. F. Ds. recommendations may accepted. The Minister of Finance there approved the proposal. It is therefore clear that at all levels the proposal for premature retirement of the petitioner was considered on merits and approved. The petitioner is made to retire prematurely at the age of 55 years mainly because he was not upto the desired standard and adverse remarks were passed against him and he was granted. The decision of the Government and the appointing authority therefore cannot be considered to be lacking bona files or cannot be said to be mala fide or arbitrary. The decision of the Government and the appointing authority therefore cannot be considered to be lacking bona files or cannot be said to be mala fide or arbitrary. ( 5 ) THE petitioner has mainly alleged mala fide of the appointing authority as according to him he was not given the opportunity to serve as the Class II Officer and about 10 promote officers of his rank were made to prematurely retire at the age of 55 years. To revert to Class II post would amount to taking penal action or inflicting penalty on the petitioner and such decision could not have been taken by the Government without following the proper procedure. Apart from that it would have worked more harsh to the petitioner as the retirement terminal benefits of the petitioner would have been adversely affected Merely because the petitioner was not given the opportunity of working in the lower grade that by itself does not amount to mala Sides of the appointing authority. It is true than alongwith the petitioner the proposal was made for other two Class I Officers of his rank and four Class II Officers but each individual case was considered on merits at all levels. Even the Special Secretary General Administration Department was not prepared to accept the recommendation for other officers except that of the petitioner. Merely because order officers were also made to retire that by itself is not sufficient to infer the mala fide of the appointing authority. Shri Mehta in his affidavit has categorically denied that allegation and as such there is no reason to accept it. In view of the discussion above it also cannot be said that the retirement order is arbitrary. ( 6 ) IT appears that the fact that the petitioner was suffering from heart disease and was not keeping good health and proceeded on leave for two occasions and had also applied for commuted leave for one month was considered as one of the additional grounds for retirement by the Director of Accounts and Treasuries but the Special Secretary General Administration Department has not taken into consideration that aspect and has mainly relied of the inefficiency criterion fair grading and adverse remarks passed and communicated to the petitioner. Even the Chief Secretary considered the efficiency aspect and the Minister of Finance agreed to thirty the aspect of had health of the petitioner has therefore did not foreign much with the appointing authority and therefore it cannot be said than the order is passed also on the basis of other collateral grounds Shri G. D. Bhatt learned Asstt. Government Pleader states that the ground of bad health could have been available for premature retirement only if the petitioner would have been advised to opt to retire. Admittedly no such procedure was followed and therefore in the instant case. the ground of health should be considered a collateral ground. As defined in Strouds Judicial Dictionary Fourth Edition page 494 Collateral is that which cometh in or adhereth to the side of anything; as collateral assurance is that which is made over and beside the deed itself. The meaning of word Collateral as provided in the Oxford English Dictionary Volume II page 616 is together with as adjective it means situated or placed side by side accompanying attendant concomitant lying aside from the main subject line of action issue purpose subordinate indirect. The ground on the health was collateral in the sense that it was together with or placed side by side or accompanying other ground but that had not weighted much with the Competent Authority in taking the decision nor was in the main ground on which decision was based. The decision was based on other grounds as discussed above. Out of various grounds for taking administrative decision or exercising absolute power if some of the grounds are in relevant that would not vitiate the decision provided the decision can be based on other relevant grounds. ( 7 ) IN view of the fact that the decision of the Government is bona fide and the petitioner has not been able to establish mala fides arbitrariness it is not necessary for me to consider the criteria laid down by the Government in premature retiring the Government servant on attaining the age of 55 years. However in short that may be considered as Shri G. D. Bhatt learned Assistant Government Pleader has learned various Government Resolutions laying down the criteria for the purpose. However in short that may be considered as Shri G. D. Bhatt learned Assistant Government Pleader has learned various Government Resolutions laying down the criteria for the purpose. By G. R. dated 25/10/1963 the Government instructed to follow specified procedure and record reasons and had directed that the Government servant (gazetted as well as non-gazetted) with atleast an average record of performance should not normally retire prematurely. It was modify by G. R. dated 1/07/1971 to the effect that the minimum standard exacted of the Government servant (gazetted as well as non-granted) for retention in service beyond the age of 55 years should be atleast a good record of performance. and that the reviewing authority should not be guided merely by the grading given; to the Government servants confidential records but an overall review of his confidential reports should be made for making recommendation. It was also directed that the Government servant retained in service beyond the age of 55 years should not be allowed to continue upto the age of 58 years as a matter of course and the yearly review should be made. By G. R. dated 4/08/1975 the same position was reiterated with the modification that while reviewing the case of the Government servants on iterating the age of 55 years or thereafter only those Government servants should be retained in service beyond that age who are graded atleast good during the last three years of their age namely 52 53 and 54. The intention in laying down that criterion was that the persons with a positive record of service only be continued beyond 55 years of age. The policy of considering confidential reports of three years was reconsidered by the G. R. dated 2/11/1976 and in modification of the G. R. dated 4/08/1975 it was directed that while reviewing cases for retention beyond 55 years of age consideration should not be restricted to the last three years but reports during the last eight to ten years should invariably be taken into account. These being criteria merely because the petitioner was allowed to cross the Efficiency Bar before the period of about seven years that by itself should effect be the reason for holding that decision is without grounds or mala fide or arbitrary. These being criteria merely because the petitioner was allowed to cross the Efficiency Bar before the period of about seven years that by itself should effect be the reason for holding that decision is without grounds or mala fide or arbitrary. ( 8 ) IT is not contended by Shri Sheth learned Advocate for the petitioner that the case of the petitioner was not reviewed at particular stages by competent authority or the committee and therefore that aspect is not required to be considered. ( 9 ) CONSIDERING the absolute right of the Government under Rule 161 B. C. S. R. to retire the Government servant on attaining the age of 55 years and the criteria laid down for that and also considering the confidential reports and the above discussed facts the decision of the Government against the petitioner cannot be considered to be without bona fides or mala fide arbitrary or based solely on collateral grounds As such this Court while exercising the jurisdiction under Art 226 of the Constitution of India does not exercise the appellate jurisdiction and can interfere or quash the order only on the above referred reasons. ( 10 ) THE result is that the petition fails and must be dismissed. Petition is dismissed. Rule is discharged with no order as to costs. Rule discharged. .