Advocate v. THE COMMISSIONER, SOUTH DELHI MUNICIPAL CORPORATION ANR

Judgment

1. These writ petitions involve a similar challenge, and were argued together. They are, therefore, being decided by this common judgment. WP (C) 1823/2021 [Ajay Kumar Sharma v Commissioner, SDMC & anr] The lis

2. The petitioner Ajay Kumar Sharma approached the Central Administrative Tribunal1 by way of OA 238/2020, challenging Office Orders dated 13 September 2019 and 13 December 2019 issued by the office of the Additional Commissioner (Engg.), South Delhi Municipal Corporation2. By the first Office Order dated 13 September 2019, the petitioner was compulsorily retired from service under FR 56(j)3 read with Rule 48(1)(b)4 of the Central Civil Services (Pension) Rules, 19725. The representation preferred by the petitioner seeking review of the said decision was rejected by the second Office Order 1 “the Tribunal”, hereinafter 2 “the SDMC”, hereinafter 3 (j) The Appropriate Authority shall, if it 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 notice of not less than three months in writing or three months’ pay and allowances in lieu of such notice:- (a) if he is in Group ‘A’ or Group ‘B’ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (b) Retirement on completion of 30 years’ qualifying service – (1) Any time after a Government servant has completed thirty years’ qualifying service – in any other case after he has attained the age of 55 years. 4 48. ***** he may be required by the appointing authority to retire in the public interest, (b) and in the case of such retirement the Government servant shall be entitled to a retiring pension: Signature Not Verified 5 “CCS(Pension) Rules”, hereinafter WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 dated 13 December 2019.

3. The petitioner, therefore, prayed that the aforesaid Office Orders compulsorily retiring him from service and rejecting the representation preferred by him thereagainst be set aside and he be reinstated in service with all consequential benefits.

4. Case of petitioner before the Tribunal in the OA

4.1 Before the Tribunal, the petitioner contended thus.

4.2 Having joined the services of the Municipal Corporation of Delhi6 prior to its trifurcation in 1993, the petitioner was promoted as Assistant Engineer7 on ad hoc basis on 23 July 2009. Consequent on trifurcation of the MCD in 2012, the services of the petitioner were assigned to the SDMC. The petitioner had therefore completed 26 years of service. The overall grading assigned to the petitioner in his Annual Confidential Reports throughout the 26 years of his service were either ‘very good’ or ‘outstanding’.

4.3 During the course of his service career, the petitioner was visited with two charge-sheets which culminated in punishment orders of stoppage of two increments for two years with future effect, issued on 8 June 2007, and reduction to lower scale in the time scale of pay by one stage for a period of two years with cumulative effect, issued on 11 June 2019. An appeal against the latter punishment had been Signature Not Verified 6 “the MCD”, hereinafter 7 “AE” hereinafter WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 preferred by the petitioner before the Hon’ble Lieutenant Governor8 as the appellate authority.

4.4 On 3 July 2019, the Hon’ble LG wrote to the Commissioner, SDMC, with respect to removal of corruption in Government functioning. Following this, the Central Establishment Department in the SDMC issued Circular dated 26 July 2019. The said circular noted the importance of FR 56(j) and Rule 48 of the CCS (Pension) Rules as important administrative tools to weed out the “dead wood” and “dark sheep”. All Supervisory Officers in the SDMC, including Additional Commissioners, Deputy Commissioners, Heads of Departments and Cadre Controlling Authorities were requested to take requisite steps under FR 56(j) and Rule 48 of the CCS (Pension) Rules and to send an Action Taken Report within a month. The officers were directed to review the cases of the officers who had joined service before the age of 35 years and had attained the age of 50 years in the case of Category A and B officers and 55 years in the case of Category C and D officers and, in terms of Rule 48(i)(b) of the CCS (Pension) Rules, to review the cases of all categories of Government servants, who had completed 30 years of qualifying service. Para 2 of the Circular noted that if the contract of a Government employee became unbecoming to public interest or obstructed efficiency in public service, Government had an absolute right to compulsorily retire such an employee in public interest. The circular also sets out the criteria to be followed by the Committee while considering the case of such officers, thus : Signature Not Verified 8 “the Hon’ble LG”, hereinafter WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 The criteria to be followed by the Committee in asking their “5. recommendations would be as follows: (a) Government employees whose integrity is doubtful will be retired. (b) Government employees who are found to be ineffective will also be retired. The basic consideration in employee identifying fitness/competence of the employee to continue in the post which he/she is holding. should (c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 year period, his service in the highest post has been found satisfactory. Consideration is ordinarily to be confined to the preceding 5 years or the period in the higher post, in case of promotion within the period of 5 years, only when retirement to be made on grounds of ineffectiveness. There is no such stipulation, however, where the employee is to be retired on grounds of doubtful integrity. is sought (d) No employee should ordinarily be retired on ground of ineffectiveness if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case. Ordinarily no employee should be retired on grounds of ineffectiveness if he is retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and step fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement. The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public interest cold be marginal if an old employee, in the last year of service is found ineffective, but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform.” Additionally, para 7 of the Circular noted the guidelines to be Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 followed while exercising jurisdiction under FR 56(j) or Rule 48 of the CCS (Pension) Rules, as per Office Memoranda9 dated 21 March 2014 and 11 September 2015 issued by the Department of Personnel & Training10 : “7. As per DoPT OM dated 11.09.2015 the Cadre Controlling Authority will constitute Review Committee consisting of two members at appropriate level in terms of DOPT OMs dated 21.03.2014and 11.09.2015 on periodical review under FR 56 or Rule 48 of CCS (Pensions) Rules, review of officers is broadly covered under the following guidelines: If service of an officer in not useful one can be a) compulsorily retired in public. b) Review in after having de regard to the entire service record of the officers vz. ACR/PAR dossier, personal file work and performance of the officer in files/reports prepared. Adverse entries including un-communicated entries c) in CRs should be taken note of and give due weightage. d) Integrity: Actions/decisions which do not appear to be above board, complaints received suspicious property transactions not sufficient evidence to initiate departmental proceedings. Conduct unbecoming to the public interest or e) obstructs efficiency in public services. Not a short cut to avoid disciplinary proceedings f) and should not be resorted to as a punitive measure. Promotion despite adverse entries in ACRs is a fact g) in favour of the Officer. h) In cases of officers promoted during the last 5 years, the previous entries in ACRs may be taken into account if the officer was promoted on non-selection and not on selection. Signature Not Verified 9 “OMs” hereinafter 10 “DOPT” hereinafter WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 i) While considering integrity, action and decisions of the officer which do not appear above board, complaints received against him suspicious property transactions for which there may not be sufficient evidence to initiate disciplinary proceedings may be taken into account. Reports of conduct unbecoming of a Govt. servant j) may also form a basis for compulsory retirement.”

4.5 The Committee constituted by the aforesaid Circular dated 26 July 2019 apparently considered the case of the petitioner for compulsorily retirement under FR 56(j) read with Rule 48 of the CCS (Pension) Rules, which resulted in the passing of the following Office Order dated 13 September 2019, compulsorily retiring the petitioner from service: “SOUTH DELHI MUNICIPAL CORPORATION OFFCE OF THE ADDITIONAL COMMISSIONER 6TH FLOOR, DR. S.P. MUKHERJEE CIVIC CENTRE J.L. NEHRU MARG, MINTO ROAD, NEW DELHI - 110002. No. D-179/ADDL. COM/SDMC/2019 dated: 13.09.2019. OFFICE ORDER Whereas a Committee has been constituted to ensure probity of Government Servants strengthening of Administration by undertaking periodic review of all categories of Govt. servants under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972 as applicable to the employees of a Corporation.

And whereas the Committee constituted for the above purpose has recommended Shri Ajay Kumar Sharma S/o Shri J.P. Sharma, Assistant Engineer (Civil) to consider his compulsory retirement under provisions contained in FR 56 (j) and Rule 48 of CCS Pension Rules, 1972. And whereas the Competent Authority has considered all the facts and circumstances in its entirety and satisfied with the recommendation of the Committee. And is of the opinion that it is in the public interest not to retain Shri Ajay Kumar Sharma in Municipal Services and retire him compulsorily with immediate Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 effect under Fundamental Rule 56 (j) and Rule 48 0 (b) of CCS Pension Rules 1972. Now, therefore, in exercise of powers conferred under provisions contained in FR 56 (j) and Rule 48 of CCS Pension Rules 1972, Shri Ajay Kumar Sharma is compulsorily retired from Municipal Services with immediate effect and order that three months' pay and allowances shall be paid in lieu thereof three months notice period. . Distribution Sd/- (Ramesh Verma) Additional Commissioner (Engineering) Shri Ajay Kumar Sharma S/o Shri J.P. Sharma, Assistant Engineer (Civil)”

4.6 The petitioner represented against the Office Order dated 13 September 2019 to the Competent Authority to re-examine/review his case. The request was rejected by the Competent Authority in the SDMC and communicated vide Office Order dated 13 December 2019, passed by the Additional Commissioner, SDMC, which read as under : “SOUTH DELHI MUNICIPAL CORPORATION OFFCE OF THE ADDITIONAL COMMISSIONER 6TH FLOOR, DR. S.P. MUKHERJEE CIVIC CENTRE J.L. NEHRU MARG, MINTO ROAD, NEW DELHI - 110002. No. South DMC/Addl. Cm. (AAT)/SDMC/2019/227 dated: 13.12.2019. OFFICE ORDER Whereas a Committee was constituted for the purpose to ensue probity Government Servants and strengthening of Administration by undertaking periodic review of all categories of Government servants under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972 as applicable to the employees of a Corporation. Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 And whereas the Competent Authority had considered all the facts and circumstances in its entirety and satisfied with the recommendation of the Committee. And was of opinion that it was in the public interest not to retain Shri Ajay Kumar Sharma in Municipal Services and retired him compulsorily with immediate effect under Fundamental Rules 56 (j) and Rule 48 (i) (b) of CCS Pension Rules, 1972. And whereas aggrieved by the said penalty order, Shri Ajay Kumar Sharma, AE (C) has made representation before Competent Authority to re-examine/review his case of compulsory retirement. And whereas a Representation Committee has been constituted for consideration of representation of Ajay Kumar Sharma, AE Compulsorily Retired under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972. And whereas representation Committee is of the opinion that neither any new material fact nor any point of law was brought before the Committee by the appellant Shri Ajay Kumar Sharma for consideration of representation as per instructions and that the representation is liable to be dismissed. Now, therefore, the Competent Authority, SDMC has considered the submissions made by the appellant, all other records relevant of the case & recommendation of Representation Committee and reject the representation and uphold the order dated 13.09.2019. This issues with the approval of Competent Authority. To Sd/Addl. Commissioner (AAT) Shri Ajay Kumar Sharma, Retired AE (C) through AO (Engg.)/HQ”

4.7 Before the Tribunal, the petitioner submitted respondents were required to consider the entire service record of an officer while assessing whether he was required to be compulsorily retired under FR 56(j). The petitioner also relied on OM dated 11 September 2015 issued by the DOPT which envisaged periodical Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 review of cases of compulsory retirement under FR 56(j) and Rule 48 of the CCS (Pension) Rules, of which paras 1 to 6 may be reproduced thus : “The undersigned is directed to refer to this Department's OM NO. 25013/1/2013-Estt.(A) dated 21/03/2014 on the periodical review under Fundamental Rule 56 or Rul3 48 of CCS (Pension) Rules.

2. Various instructions issued on the subject deal with compulsory retirement under the above mentioned provisions. The Supreme Court has observed in State of Gujarat v Umedbhai M. Patel11, as follows: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. "For better administration, it is necessary to chop (iii) off dead wood but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer". (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. Even un-communicated entries in the confidential (v) record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid Departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. Signature Not Verified 11 2001 (3) SCC 314 WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55

3. In every review, the entire service records should be considered. The expression 'service record' will take in all relevant records and hence the review should got be confined to the consideration of the ACR/APAR dossier'. The personal file of the officer may contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. It would be useful if the Ministry/Department puts together all the data available about the officers and prepares a comprehensive brief for consideration by the Review Committee. Even uncommunicated remarks in the ACRs/APARs may be taken into consideration.

4. In the case of those officers who have been promoted during the last five years, the previous entries in the ACRs may be taken into account if the officer was promoted on the basis of seniority-cum-fitness, and not on the basis of merit. As far as integrity is concerned, the following observations

5. of the Hon’ble Supreme Court may, while upholding compulsory retirement in a case, may be kept in view: “The officer would live by reputation built around him in an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public servant and injurious to public interest. S. Ramachandra Raju v State of Orissa12 Thus while considering integrity of an employee, actions or decisions taken by the employee which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings may be taken into account. Judgement of the Apex Court in the case of Shri K. Kandaswamy, LP.S. (TN.1966) in K. Kandaswamy v Union of India & Anr13. is relevant here. There were persistent reports of Shri Kandaswamy acquiring large assets and of his getting money from his subordinates. He also indulged in property transactions which gave rise to suspicion about his bonafides. The Hon'ble Supreme Court upheld his compulsory retirement under provisions of the relevant Rules. Signature Not Verified 12 1994 Supp (3) SCC 424 13 1996 AIR 277 WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55

6. Similarly, reports of conduct unbecoming of a Government servant may also form basis for compulsory retirement. As per the Hon'ble Supreme Court in State of U.P. And Others v Vijay Kumar Jain, Appeal (Civil) 2083 of 200214. If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right compulsorily retire such an employee in public interest.”

4.8 The petitioner contended the eight considerations enumerated in para 2 of the aforesaid OM dated 11 September 2015, extracted supra, had not been borne in mind, while issuing the order compulsorily retiring him from service.

4.9 It was submitted that the orders dated 13 September 2019 and 13 December 2019 did not cite any specific reason for holding that the petitioner’s integrity was doubtful or that he was fit for compulsory retirement.

4.10 The Minutes of the Review Committee, which convened on 13 September 2019, and on the basis of the recommendations of which, the decision to compulsorily retire the petitioner was taken, recorded thus : 1 2. 3. 4. 5. 6. 7.

8. Father's Name Designation Group BMID No. Category Date of Birth Date of Appointment Age as on : Shri J.P. Sharma : Assistant Engineer (Civil) : ‘B’ : 10040474 : General : 24.02.1996 : 04.05.1993 : 53 years. Signature Not Verified 14 (2002) 3 SCC 641 WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55

9. 10.

01.07.2019 Date of retirement Present place of posting Penalty imposed 1 RDA No. 1/53/2012. Charge sheet issued 05.04.2016

2. RDA No. 1/409/2006 Charge sheet issued 23.08.2016 : 28.02.2026 : EE (M)-IV/CNZ : Reduction to a lower stage in the time scale of pay by one stage for a period of two years with cumulative OO effect No.1/53/2012/Vig/P/2019/479 dated 11.06.2019. Stoppage of two increments with future effect vide office order No. 1/409/06/ Vg./P/NK/2007/2739 dated 08.06.2007.

3. RDA No. Pending case) 1/14/2004 (CVC Charge sheet not issued.

4. RDA No. Pending Pending 1/27/2018 case) (CVC Charge sheet not issued. Recommendations Review Committee

12. Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 50 completed : The Service record of the official has been reviewed. He has entered in the Municipal Service prior to attaining the age of 35 years and mandatory age for review as per provisions of FR 56 (j). As per entries recorded in his service book & Personal File, aforesaid penalties have been imposed during his service. In view of aforesaid penalties, his integrity is indeed doubtful and, therefore, he is a fit case for premature retirement and, therefore, Committee recommends that the official be retired prematurely as per F 56 (j) with immediate effect by giving three months pay and allowances in lieu of three months notice. Thus, the only basis for compulsorily retiring the petitioner from service were the two punishments awarded to him consequent on charge-sheets dated 5 April 2016 and 23 August 2006. It was submitted that both the charge-sheets had culminated in orders of punishment, one of which had been passed as far back as on 8 June

2007. Even though compulsorily retirement itself could have been awarded as punishment, the authorities issuing the charge-sheets did not deem it appropriate to do so. In these circumstances, the petitioner contended that the decision to compulsorily retire him from service was vitiated by non-application of mind and unjustified in the facts and circumstances of the case.

5. Stand of respondents in counter-affidavit before the Tribunal

5.1 The respondents filed a counter affidavit before the Tribunal, by way of response to the OA.

5.2 It was submitted in the counter affidavit, that the decision to compulsorily retire the petitioner from service was taken pursuant to directions issued by the Hon’ble LG, on the basis of which a Review Committee, consisting of five Members headed by the Additional Commissioner (Estt.) had been convened to examine the cases of all officers working under their administrative control, for compulsory retirement. Consequent to the deliberations of the Review Committee, eight officers, of which the petitioner was one, were found fit for Signature Not Verified WP(C) 1823/2021 & WP(C) 6590/2021 Digitally Signed By:AJIT KUMAR Signing Date:28.05.2025 14:21:55 compulsory retirement in accordance with FR 56(j) and Rule 48(1)(b) of the CCS (Pension) Rules. Para (iv) of the preliminary submissions in the counter affidavit is relevant and may be reproduced thus : “(iv) That the case of the applicant was considered by the Committee. It was found that following punishments were imposed upon him:- (a) RDA No. 1/53/2012, Charge sheet issued on 05.04.2016. Reduction to a lower stage in the time scale of pay by one stage for a period of two years with cumulative effect, vide OO No. 1/ 53/2012/Vig./P/Vig./2019 /479 dt. 11.06.2019. (b) RDA No. 1/409/2006, Charge sheet issued on 23.08.2006. Stoppage of two increments with future effect, vide OO No.1/409/2006/Vig/P/NK/2007/2739 dt. 08.06.2007. RDA No. 1/14/2004 (CVC Case), Charge sheet not (c) issued. Pending (d) RDA No. 1/27/2018 (CVC Case), Charge sheet not issued. Pending.” (Emphasis supplied) According to the averments in the counter affidavit, the decision to compulsorily retire the petitioner from service was based on the afore- noted four punishments imposed upon him. The application submitted the petitioner for re-examination/review of the order of compulsorily retirement had also been examined and found to be bereft of merit. The respondents placed reliance on the judgments of the Supreme Court in Posts and Telegraphs Board v C.S.N. Murthy15 , which relied on Baikuntha Nath Das v Chief District Medical Officer16. Signature Not Verified