1996 JTR(SC) 900
1996 73 FLR 1644 ; 1996 5 JT 477 ; 1996 2 OLR 69 ; 1996 4 Scale 605 ; 1996 5 SCC 103 ; 1996 SCC(L&S) 1141 ; 1996 Supp2 SCR 287 ; 1996 3 SCT 613 ; 1996 2 SLJ 3 ; 1996 4 SLR 8 ; 1996 2 UJ 153 ; 1996 KHC 1502 ; 1996 4 Supreme 756
1996(4) Supreme 756
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Sukhdeo -Appellant
versus
Commissioner, Amravati Division and Anr. -Respondents
Civil Appeal No.8805 of 1996
(Arising out of SLP(C) No.2766/94)
Decided on 2-5-1996
IMPORTANT POINT
The Controlling Officer while writing confidential and character roll report, should show objectivity, impartiality and fair assessment without any prejudice.
Act
Referred
:MAHARASHTRA CIVIL SERVICES PENSION RULES : R.65(1)(b)
SERVICE LAW : .
A) The exercise of power under Rule 65(1)(b) of the Maharashtra Civil Services (Pension) Rules, 1982, read in conjunction with the safeguards under Rule 10(4)(b), contemplates compulsory retirement of a Government Servant in Class III service only after the requisite age of fifty-five years is attained, and such power is to be exercised strictly for the public interest to weed out inefficient or corrupt personnel after a fair assessment of service record. The present impugned order of compulsory retirement, based on vague and self-contradictory remarks that failed to appreciate the appellants thirty years of qualifying service, good relationship with colleagues, integrity, and overall satisfactory performance, is not supported by sufficient or bonafide grounds and vitiates the decision.
B) Key legal principles include: (i) Compulsory retirement under Rule 65(1)(b) is an extraordinary power exercisable only for public interest; (ii) The service record must be scrutinised objectively and consistently, especially adverse remarks which must be specific, bona fide, and based on due diligence; (iii) Vague, inconsistent, or extra-judicial remarks are unsustainable; (iv) Prior specific notice of deficiency and opportunity to improve must be given before adverse action; (v) The controlling authority must be a superior officer and must act with objectivity and responsibility.
Facts of the case:
The appellant completed thirty years of qualifying service in Class III service but had not attained the age of fifty-five years. The Government, relying on adverse remarks for the years 1987-88 and 1988-89 that highlighted poor technical ability, unsatisfactory administrative ability, and a general assessment of irregular attendance and poor public image, issued an order for compulsory retirement under Rule 65(1)(b). The appellant challenged the order before the competent Authority, which dismissed the petition. The record showed that the remarks were mutually inconsistent and not made in good faith, and the appellant had qualities such as good relationship with colleagues, integrity, and capacity to get work done.
Findings of Court:
The Court found that the conclusion drawn by the Government was not in public interest and the remarks were neither specific nor based on due diligence. The controlling officer had not exercised sufficient care or given prior specific notice of the alleged deficiencies or a reasonable opportunity to improve. The adverse remarks were characterised as self-serving and mala fide, and the exercise of power was held illegal.
Issues:
i) Whether the Government was entitled to compulsorily retire the appellant under Rule 65(1)(b) without attaining the age of fifty-five years; (ii) Whether the adverse remarks forming the basis of retirement were specific, bona fide, and supported by the record; (iii) Whether the procedure followed by the controlling authority was legally valid; (iv) Whether the order was in the public interest and aimed at augmenting efficiency in public service.
Ratio Decidendi:
Compulsory retirement under Rule 65(1)(b) must be predicated on a fair, objective, and bonafide assessment of service record, with specific and reasoned adverse remarks issued after giving a reasonable opportunity to the servant to improve. Where remarks are vague, self-contradictory, and mala fide, the exercise of power is illegal and the order must be set aside, with reinstatement and consequential benefits granted.
Result:
The appeal is allowed. The order of compulsory retirement is set aside. The appellant is entitled to reinstatement with all consequential benefits. Exemplary costs of Rs. 10,000 are awarded against the officer who made the adverse remarks.
A) The exercise of power under Rule 65(1)(b) of the Maharashtra Civil Services (Pension) Rules, 1982, read in conjunction with the safeguards under Rule 10(4)(b), contemplates compulsory retirement of a Government Servant in Class III service only after the requisite age of fifty-five years is attained, and such power is to be exercised strictly for the public interest to weed out inefficient or corrupt personnel after a fair assessment of service record. The present impugned order of compulsory retirement, based on vague and self-contradictory remarks that failed to appreciate the appellants thirty years of qualifying service, good relationship with colleagues, integrity, and overall satisfactory performance, is not supported by sufficient or bonafide grounds and vitiates the decision.
B) Key legal principles include: (i) Compulsory retirement under Rule 65(1)(b) is an extraordinary power exercisable only for public interest; (ii) The service record must be scrutinised objectively and consistently, especially adverse remarks which must be specific, bona fide, and based on due diligence; (iii) Vague, inconsistent, or extra-judicial remarks are unsustainable; (iv) Prior specific notice of deficiency and opportunity to improve must be given before adverse action; (v) The controlling authority must be a superior officer and must act with objectivity and responsibility.
Facts of the case:
The appellant completed thirty years of qualifying service in Class III service but had not attained the age of fifty-five years. The Government, relying on adverse remarks for the years 1987-88 and 1988-89 that highlighted poor technical ability, unsatisfactory administrative ability, and a general assessment of irregular attendance and poor public image, issued an order for compulsory retirement under Rule 65(1)(b). The appellant challenged the order before the competent Authority, which dismissed the petition. The record showed that the remarks were mutually inconsistent and not made in good faith, and the appellant had qualities such as good relationship with colleagues, integrity, and capacity to get work done.
Findings of Court:
The Court found that the conclusion drawn by the Government was not in public interest and the remarks were neither specific nor based on due diligence. The controlling officer had not exercised sufficient care or given prior specific notice of the alleged deficiencies or a reasonable opportunity to improve. The adverse remarks were characterised as self-serving and mala fide, and the exercise of power was held illegal.
Issues:
i) Whether the Government was entitled to compulsorily retire the appellant under Rule 65(1)(b) without attaining the age of fifty-five years; (ii) Whether the adverse remarks forming the basis of retirement were specific, bona fide, and supported by the record; (iii) Whether the procedure followed by the controlling authority was legally valid; (iv) Whether the order was in the public interest and aimed at augmenting efficiency in public service.
Ratio Decidendi:
Compulsory retirement under Rule 65(1)(b) must be predicated on a fair, objective, and bonafide assessment of service record, with specific and reasoned adverse remarks issued after giving a reasonable opportunity to the servant to improve. Where remarks are vague, self-contradictory, and mala fide, the exercise of power is illegal and the order must be set aside, with reinstatement and consequential benefits granted.
Result:
The appeal is allowed. The order of compulsory retirement is set aside. The appellant is entitled to reinstatement with all consequential benefits. Exemplary costs of Rs. 10,000 are awarded against the officer who made the adverse remarks.
ORDER
Leave granted.
2. We have heard the counsel on both sides. This appeal by special leave arises from an order of compulsory retirement of the appellant dated March 23, 1990 made in exercise of Rule 65(1)(b) of the Maharashtra Civil Services (Pension) Rules, 1982. The appellant had completed 30 years of service in Class III service but he had not completed 55 years of age. The Government relying upon the adverse remarks in the reports for the years 1987-88 and 1988-89 exercised the above power to compulsorily retire the appellant from service. When he impugned the order in a writ petition which was subsequently transferred to the Maharashtra Administrative Tribunal at Nagpur Bench at TA No.198/92 by order dated April 20, 1993, the Tribunal dismissed the application. Thus this appeal by special leave.
3. The Government preserved power under Rule 10(4)(b) to retire Government Servant which reads thus :
"any Government Servant who holds a post in Class III service of the State, either pensionable or non-pensionable, after he has attained the age of fifty five years."
The object of the compulsory retirement is to see that the inefficient and corrupt persons but no sufficient evidence was available to dismiss or remove him from service after enquiry, are weeded out from service with a view to secure efficiency in public service and to maintain honesty and integrity among the service personnel. The question is: whether the respondents have exercised the said power to serve the above public purpose? Rule 65(1)(b) reads as under :
"65. Retirement on completion of 30 years qualifying service.
(1) At any time after a Government servant has completed thirty years qualifying service, he may retire from service, or he may be required by the appointing authority to retire in the public interest.
Provided that .........
(a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire;
(b) the appointing authority shall give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest, or three months pay and allowances in lieu of such notice.
4. It is seen that when the compulsory retirement was sought to be made under Rule 65(1) (b) as indicated earlier, the Government exercise the power only for public purpose, namely, to augment efficiency in public service. We have called for the record and the same has been placed before us. The entries for the years 1987-88 and same remarks verbatim repeated for 1988-89 by the same officer would indicate that the appellant is an "industrious" man, "his capacity to get work done by subordinates is good" ; his "relationship with the colleagues and the public is good" ; general intelligence is "satisfactory". However, in the column on technical ability (where relevant), is reported as "not satisfactory", "special attitude is good", "administrative ability including judgment, initiative and drive-not satisfactory", "integrity and character are good", fit to continue in service, "fit for promotion, if due" and general assessment; "irregular, rarely found at Head quarter, poor performance in a recovery work, bad in public image". On the basis of this last remark of general assessment, notice was given to him and he was compulsorily retired from service on that basis. The question is : whether the said exercise of power, as has been stated earlier, is in the public interest and whether the appellant is not found to augment the efficiency in the service.
5. In view of the above remarks made by the officer, the conclusion reached is obviously incorrect and it is not in public interest. A man does not become poor in public image when his relationship with the public and subordinates is good and he is a man of integrity and honesty and he has got the intelligence satisfactory in discharging of his duties and fit for promotion. How can in such circumstances his performance would be unsatisfactory when he is capable to coordinate with subordinates and get the work done. How his technical ability is not satisfactory. The remarks are mutually inconsistent and reasons are self-evident of lack of bonafides in making these remarks. Under these circumstances, it could be characterised that the remarks were not bona fide made in public interest but a self-serving statement to weed him out from service.
6. It is settled law that when the Government resorts to compulsorily retire a Government servant, the entire record of service, particularly, in the last period of service required to be closely scrutinised and the power would be reasonably exercised. In State Bank of India etc. v. Kashinath Kher & Ors. etc.1, this Court has held that the controlling officer while writing confidential and character role report, he should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer s devotion to duty, honesty and integrity so as to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected of from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew of making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutory that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in waiting for improvement and yet was not availed of so that it would from part of the record. The power exercised by the controlling officer is per se illegal. The Tribunal has not considered this aspect of the matter in dismissing the petition. The appellant is entitled to reinstatement with all consequential benefits. The appeal is accordingly allowed with exemplary costs quantified at Rs.10,000/- recoverable by the State from the officer who made the remarks.
Appeal accordingly allowed.
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