Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.12265 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Laxman Kumar Pradhan Aged about 56 years Son of Late Jagabandhu Pradhan At: Bhaskarganj (A) Sailesh Lane, Station Road Balasore – 756 001 Town & District: Balasore. … -VERSUS- 1. State of Odisha Petitioner Represented through Secretary to Government of Odisha Forest & Environment Department Lok Seva Bhawan, Odisha Secretariat Bhubaneswar – 751 001 District: Khurda. Principal Chief Conservator of Forests Odisha, At: Aranya Bhawan Plot No.G.A.-42/D, Chandrasekharpur Bhubaneswar – 751 023 District: Khurda. The Field Director Similipal Tiger Reserve-cum-RCCF Baripada, At/P.O.: Baripada District: Mayurbhanj. … 2. 3. W.P.(C) No.12265 of 2021 Opposite Parties. Page 1 of 163 Counsel appeared for the parties: For the Petitioner : M/s. Sidheswar Mallik, Prahallad Chandra Das, Mamata Mallik, Sidharth Mallick Advocates For the Opposite parties : Ms. Sailaza Nandan Das, Additional Standing Counsel P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 05.07.2024 :: Date of Judgment : 04.11.2024 J UDGMENT The petitioner has come up before this Court craving to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by way of filing this writ petition with the following prayer(s): “On the aforesaid facts and circumstances, the Hon‟ble Court may graciously be pleased to: (i) Quash the impugned Order dated 20.01.2021 as at Annexure-7 with a concurrent direction the petitioner shall be allowed to continue in service with all consequential service and monetary benefits; W.P.(C) No.12265 of 2021 Page 2 of 163 (ii) Pass such other orders/direction as the Hon‟ble Court may deem fit and proper in the interest of justice. And for this act of kindness, the petitioner as in duty bound shall ever pray.” Facts: 2. The writ petitioner disclosed that he was promoted to the rank of Assistant Conservator of Forests, OFS, Group-A (Junior Branch) on ad hoc basis while he was working as Forest Ranger by virtue of Forest and Environment Department Notification No.20844— FE- FE2-FE-0025-2018/F&E, dated 26.09.2018. 2.1. While he was posted as Assistant Conservators of Forests, In-Charge of Kuldiha Wildlife Range, Balasore Wildlife Division a Memorandum of Charge vide Memo No.19407/F&E, dated 17.10.2019 was served with a proposal to conduct inquiry under Rule 15 of the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (―OCS (CCA) Rules‖, for brevity) against him on the charges of negligence in duty, suppression of facts and disobedience of instruction of higher authorities for being violation of the provisions of the Odisha Government Servants‘ Conduct Rules, 1959. 2.2. By Office Order dated 20.02.2020 the petitioner for such alleged charges was placed under suspension in Page 3 of 163 W.P.(C) No.12265 of 2021 exercise of power under Rule 12 of the OCS (CCA) Rules. 2.3. Subsequent thereto, while he was under suspension, the petitioner was served with another Memorandum of Charge vide Memo No.3912, dated 19.11.2020 with proposal to hold inquiry under Rule 15 of the OCS (CCA) Rules on the charges of failure to maintain absolute integrity and dereliction in duty. 2.4. A criminal case registered as Balasore Vigilance P.S. Case No.13 of 2020 under Section 13(2) read with Section 13(1)(b) and Section 12 of the Prevention of Corruption Act, 1988 was initiated. 2.5. While the matter stood thus, invoking provisions of Rule 71(a) of the Odisha Service Code (―OSC‖, for short) the Forest and Environment Department has issued Office Order vide No.1354— FE-FE2-FE-0001- 2021/F&E, dated 20.01.2021 retiring the petitioner from service with effect from 21.01.2021 on attaining 56 years of age allowing three months‘ pay and allowances in lieu of three months‘ notice. 2.6. Said order of premature retirement is subject matter of challenge in the instant writ petition. Counter affidavit of the opposite parties: W.P.(C) No.12265 of 2021 Page 4 of 163 3. Laying stress on the Minutes of Meeting of the Review Committee held on 18.01.2021 comprising Principal Chief Conservator of Forests & HoFF, Odisha, Representative of General Administration and Public Grievance Department, Joint Secretary to Government (in-Charge of the Establishment) and Under Secretary, Forest and Environment Department under the Chairmanship of Additional Chief Secretary to Government of Odisha in Forest and Environment Department, the opposite parties sought to justify the recourse to exercise power under Rule 71 of the OSC to get the petitioner retired prematurely. 3.1. The contents of the minutes run as follows: “Laxman Pradhan, ACF: 1. A Lokayukta Case 30/2019 was registered against Sri Laxman Pradhan Pradhan based on a complaint alleging serious corruption by him. In pursuance to Order dated 17.09.2019 of Hon‟ble Lokayukta, Odisha, Balasore Vigilance File No.47, dated 04.10.2019 was initiated against him. He was placed under suspension vide Office Order No.3976/F&E, dated 20.02.2020. Basing on the report of Superintendent of Police, Vigilance, Balasore and on the recommendation of General Administration a disciplinary proceeding was initiated against him for acquisition of costly immovable/movable assets without obtaining prior permission from the Department, (Vigilance) W.P.(C) No.12265 of 2021 Page 5 of 163 competent authority wherein the following charges were framed: (1) Failure to maintain absolute integrity, (2) Dereliction in Duty. 2. During his In-Charge, incumbency as ACF, Kuldiha Wildlife Range of Balasore Wildlife Division the putrefied carcass one male elephant was detected in his range where the tusks were removed from the body. For this irregularity a Disciplinary Proceeding was drawn up against him No.19406/F&E, dt.17.10.2019 wherein the following charges were framed against him Memorandum vide 1- 2- Severe negligence in duty, Suppression of facts 3- Disobedience of instruction of higher authorities. 3. He has already completed 56 years of age. Sri Laxman Kumar Pradhan has many complaints against him for corruption misconduct and his integrity is highly doubtful. His continuance in service will be detrimental to public interest. 4. *** While deliberating on the above cases in light of proviso to clause (a) of Rule 71 of the Odisha Service Code the Committee also took into account paragraph 13(iii) of the General Administration & Public Grievance issued on 24.09.2019 which Department Circular W.P.(C) No.12265 of 2021 Page 6 of 163 explains that reports of conduct unbecoming of a Government servant may also form the basis for pre- mature retirement. This constitutes the basis for consideration of premature retirement of the above two officers on the grounds that their conduct is highly unbecoming of a Government servant. Their further continuance will not be in public interest as it lowers the image of Government in the eyes of public, thereby compromising efficiency in public service. the above, In view of the Review Committee recommended for premature retirement of the above officers on paying three months‟ pay allowances in lieu of statutory notice of three months.” 3.2. Refuting the averments and contentions of the petitioner as set up in the writ petition, the opposite parties affirmed that there was adequate and sufficient material available before the Review Committee to come to conclude that the case of the petitioner was a fit one to invoke provisions of Rule 71 of the OSC. Hearing: 4. Since at the age of 56 years, the petitioner was made to retire prematurely and the pleadings are completed, at the stage of admission, on consent of learned counsel for respective parties, this matter is taken up for final hearing. W.P.(C) No.12265 of 2021 Page 7 of 163 4.1. Heard Sri Sidheswar Mallik, learned Advocate for the petitioner and Sri Sailaza Nandan Das, learned Additional Standing Counsel. 4.2. On conclusion of hearing on 05.07.2024, the matter is reserved for preparation and pronouncement of judgment. Contentions and submissions of respective parties: 5. Sri Sidheswar Mallik, learned Advocate appearing for the petitioner submitted that though on two different contexts departmental proceedings were initiated, till date no enquiry got concluded. He further submitted that in the criminal case, though preliminary investigation is stated have been completed, final investigation is in progress. 5.1. He, therefore, asserted that undue haste has been shown by the opposite parties in taking a decision to recommend the Government of Odisha to invoke provisions of Rule 71 of the OSC. The Order of premature retirement dated 20.01.2021 is unwarranted and the petitioner, who was under suspension, is liable to be restored in service. 5.2. Sri Sidheswar Mallik, learned Counsel argued on the following points: W.P.(C) No.12265 of 2021 Page 8 of 163 i. Since the petitioner had crossed the age of 55 years on the date of review by the Committee, as it is apparent from the record that the petitioner had already attained the age of 56 years, the decision could not have been taken being contrary to paragraph 8 of the Guidelines for premature retirement of Government servants to weed out officers and employees of doubtful integrity or inefficiency from public service to ensure efficiency in administration vide File No.27037-GAD-SC-GCS-0089-2016/Gen., dated 24.09.2019 (for short, ―Guidelines‖). ii. Since departmental proceedings had already been instituted and the investigation in criminal case was set in motion, invocation of Rule 71(a) of the OSC is premature, being subterfuge device adopted by the Government of Odisha inconsistent with paragraph 9 of the Guidelines. iii. Since investigation in the vigilance case was in progress, branding the petitioner having ―lack of integrity‖, no action could have been taken under Rule 71 of the OSC. Such power being exercised, the same is contradictory to paragraph 15 of the Guidelines. W.P.(C) No.12265 of 2021 Page 9 of 163 iv. The Review Committee was supposed to take into consideration entire service record and inasmuch as no adverse remarks had ever been communicated to the petitioner, the decision taken for retiring him prematurely being on the basis of extraneous material, the same cannot be sustained in the eye of law. v. No reason being assigned by the Review Committee, the Office Order dated 20.01.2021 (Annexure-7) accepting the recommendation of the Review Committee is liable to be set aside vi. As pay and allowance in lieu of three months‘ notice contemplated under Rule 71 of the OSC was not paid simultaneously with issue of the Office Order dated 20.01.2021 (Annexure-7), the same gets vitiated and is liable to be treated non est in the eye of law.
Arguments
6. Sri Sailaza Nandan Das, learned Additional Standing Counsel, would submit that: i. As per Guidelines dated 24.09.2019, Review could be conducted at three stages, viz.: a. after completion of 30 years of service; or b. on attaining 50 years of age; and c. on attaining 55 years of age. W.P.(C) No.12265 of 2021 Page 10 of 163 In the instant case, the Review Committee took decision for premature retirement on the petitioner having attained 55 years. ii. Since the allegations of grave nature are against the petitioner as is apparent from the Memorandum of Charges as also the vigilance case, in the public interest decision has been taken by the Review Committee that his retention in service would be detrimental and his integrity being doubtful appropriate decision has been taken to get the petitioner retired prematurely. iii. Paragraph 17 of the Guidelines does not interdict payment of three months‘ pay and allowances after order of premature retirement is made effective. In fact the petitioner was given three months‘ pay and allowances which is manifest from Annexure-A/1 series enclosed to the counter affidavit. 6.1. Sri Sailaza Nandan Das, learned Additional Standing Counsel vehemently contended that no reason need be assigned in the Office Order directing premature retirement of the petitioner. He further submitted that other legal issues raised by the counsel for the petitioner need no elaborate argument as the law in this regard has been settled. W.P.(C) No.12265 of 2021 Page 11 of 163 Relevant provisions: 7. Rule 71 of the Odisha Service Code reads as under: “71. Retirement of Government servant.— (a) Except as otherwise provided in the other clause of this Rule the date of compulsory retirement of Government servant, except a ministerial servant who was in Government servant on the 31st March, 1939 and Class-IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55 years of the age in order to determine whether he or she should be allowed to remain in service up to the date of the completion of the age of 58 years or retired on completing the age of 55 years in public interest: Provided that a Government servant may be retired from service any time after completing 30 years‟ qualifying service OR on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date of which he wishes to retire or by giving the said notice to the said authority before such shorter period as Government may allow in any case. It shall be open to the appropriate authority to withhold permission to a Government servant who seek to retire under this rule, if he is under suspension or if enquiries against him are in progress. W.P.(C) No.12265 of 2021 Page 12 of 163 The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years‟ qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months‟ pay and allowances in lieu of such notice: Provided further that the Allopathy Medical Officers belonging both periphery and Teaching Cadre under Health and Family Welfare Department shall be retained in service up to the age of sixty years.” 7.1. Rules 13 and 15 of the OCS(CCA) Rules stand thus: “13. Nature of penalties.— following penalties may, for good and The sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: (i) (ii) fine; censure; (iii) withholding of increments (without cumulative effect) (iii-A) withholding of promotion; (iv) recovery from pay of the whole, or part of any pecuniary loss caused to Government, or to a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by Government, or to a local Page 13 of 163 W.P.(C) No.12265 of 2021 authority set up by an Act of Parliament or of the Legislature of a State, by negligence or breach of orders. suspension; reduction to a lower service, grade or post or to a lower time-scale or to a lower stage in a time scale; (v) (vi) (vi-A) withholding of increments (with cumulative effect) (vii) compulsory retirement; (viii) removal from service which shall not be a disqualification for future employment; (ix) dismissal from service which shall ordinarily be a disqualification for future employment: Provided that the penalty of fine shall be imposed only on Group-D Government servants. Explanation.— The following shall not amount to a penalty within the meaning of this Rule— (a) Withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment. (b) Stoppage of a Government servant at the efficiency bar in the time scale on the ground of his unfitness to cross the bar. W.P.(C) No.12265 of 2021 Page 14 of 163 (c) Non-promotion, whether in a substantive or officiating capacity, of a Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible. (d) Reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post, or on administrative grounds unconnected with his conduct. (e) Reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his rules and orders appointment or governing probation. the (f) Replacement of the services of a Government servant whose services have been borrowed from the Central or State Government or an authority under the control or a State Government at the disposal of the authority which had lent his services. (g) Compulsory retirement of a Government servant in accordance with the provision relating to his superannuation or retirement. (h) Termination of the services— W.P.(C) No.12265 of 2021 Page 15 of 163 (i) of a Government servant appointed on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; or (ii) of a temporary Government servant in terms of his accordance with appointment; or the (iii) of a Government servant employed under an agreement in accordance with the terms of such agreement. 15. Procedure for imposing penalties.— (1) Without prejudice to the provisions of the Public Servant (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (vi) to (ix) of Rule 13 shall be passed except after an inquiry held as far as may be in the manner hereinafter provided. (2) The disciplinary authority shall the basis of frame definite charges on the allegations on which the inquiry is to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant and he shall be required to submit, within such time as may be specified by the disciplinary authority, not ordinarily exceeding one month a written W.P.(C) No.12265 of 2021 Page 16 of 163 statement of his defence and also to state whether he desires to be heard in person. Explanation.— In this sub-rule and in sub-rule (3) the expression Disciplinary Authority shall include the authority competent under these rules to impose upon the Government servant of the penalties specified in Clauses (i) to (v) of Rule 13. (3) The Government servant shall, for the purpose of preparing his defence, be supplied with all the records on which the allegations are based. He shall also be permitted to inspect and take extracts from such other official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing in the opinion of the disciplinary authority such records are not relevant for the purpose or it is against interest of the pubic to allow him access thereto. (4) On receipt of the written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself enquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a board of inquiry or an enquiring officer for the purpose. Provided that if, after considering the written statement of defence, the disciplinary authority is of the view that the facts of the W.P.(C) No.12265 of 2021 Page 17 of 163 case do not justify the award of a major penalty, it shall determine after recording thereof, what other penalty or reasons penalties, if any, as specified in Clauses (i) to (v) of Rule 13 should be imposed and shall after consulting the Commission, where such consultation is necessary, pass appropriate order. (5) The disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the The Government „inquiring authority‟). servant shall have the right to engage a legal practitioner to present his case if the person nominated by the disciplinary authority, as aforesaid, legal practitioner. The inquiring authority may also having regard to the circumstances of the case, permit the Government servant to be represented by a legal practitioner. is a (6) The inquiring authority shall, in the course of inquiry, consider such documentary the evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges the shall be entitled Government servant and the witnesses examined in his defence. If the inquiring to cross-examine to W.P.(C) No.12265 of 2021 Page 18 of 163 authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reason in writing. of opinion such authority, (7) At the conclusion of the inquiry the inquiring authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons thereof. If, in the the proceedings of the inquiry establish charges different from those originally framed, it may record its findings on such charges, provided that the findings on such charges shall not be recorded, unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. The inquiring authority may recommend the punishment to be inflicted when the charges are establishment on the findings. (8) The record of inquiry shall include— (i) charges framed against the the Government servant and the statement of allegations furnished to him under sub-rule (2); (ii) his written statement of defence, if any; (iii) the oral evidence taken in the course of the inquiry; (iv) the documentary evidence considered in the course of the inquiry; W.P.(C) No.12265 of 2021 Page 19 of 163 (v) if any, made by the orders, the disciplinary authority and the inquiring authority in regard to the inquiry; (vi) a report setting out the findings on each charge and the reasons therefor; and (vii) the recommendations of the inquiring the if any, regarding authority, punishment to be inflicted. (9) The disciplinary authority, may, for reasons to be recorded by it in writing, remit the case to inquiring authority for further inquiry and report, and the inquiring authority shall there upon proceed to hold the further inquiry according to the provisions of sub-rule (6) of Rule 15 as far as may be. (9A) The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. (10) (i) (a) authority, If the inquiring officer is not the the disciplinary disciplinary authority shall furnish to the delinquent Government servant a copy of the report of the inquiring officer and give him registered post or notice by otherwise calling upon him to submit within a period of fifteen days such representation as he may wish to make against findings of the Inquiring Authority. W.P.(C) No.12265 of 2021 Page 20 of 163 to the authority (b) On receipt of the representation referred to in Sub-clause (a) the having disciplinary regard to the findings on the charges, is of the opinion that any in the penalties specified of Clauses (vi) to (ix) of Rule 13 imposed, he shall should be furnish delinquent Government servant a statement of its findings along with brief reasons for disagreement, if any, with the findings of the inquiring officer and give him a notice by Registered post or otherwise stating the penalty proposed to be imposed on him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed penalty: under Provided that in every case in which it is necessary to consult the the Commission provision of the Constitution of the Odisha Public India and Service Commission (Limitation of Functions) Regulation, 1989 the record of Inquiry together with a copy of the notice given under sub- clause (a) and the representation the if any, specified time in response to such notice shall be forwarded by the received within W.P.(C) No.12265 of 2021 Page 21 of 163 disciplinary authority Commission for its advice. to the the shall (c) On receipt of the advice from the disciplinary Commission the authority representation, if any, made by the Government Servant and the advice given by the Commission and shall pass appropriate orders in the case. consider (d) In any case in which it is not necessary to consult the Odisha Public Service Commission, the shall disciplinary if consider any, made by the Government servant in response to the notice under sub-clause (b) and pass appropriate order in the case. authority the representation, under Provided that in every case in which it is necessary to consult the the Commission provision of the Constitution of India and the Odisha Public Service Commission (Limitation of functions) Regulation, 1989, the record of inquiry together with copies of the notices given under Sub-clauses (a) and (b) and the representations, if any, received in response the specified time shall be forwarded thereto within W.P.(C) No.12265 of 2021 Page 22 of 163 by the disciplinary authority to the Commission for its advice. (ii) The orders passed by the disciplinary authority shall be communicated to the Government servant, who shall also be supplied with a copy of the report of inquiring authority and where the the is not disciplinary authority inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority, as well as a copy of the advice of the Commission, where the Commission had been consulted, and brief statement of the reasons advice of the disciplinary authority has not accepted such advice. for non-acceptance of if the Commission, (11) [***] (12) [***] for retirement of premature Guidelines Government servants to weed out officers and employees of doubtful integrity or inefficiency from public service to ensure efficiency in administration vide File No.27037-GAD-SC-GCS- 0089-2016/Gen., dated 24.09.2019: “*** 2. the meanwhile, In judicial pronouncements have been delivered based upon new ideas and principles to consider premature different W.P.(C) No.12265 of 2021 Page 23 of 163 retirement on the ground of doubtful integrity or inefficiency. It is accordingly decided by the Government to prescribe the following instructions afresh by superseding the instructions issued earlier in General Administration and Public Grievance Department Circular No.30495 dated 24.11.1987. in the public interest, there 3. With a view to ascertain whether the Government servant would be retained in service or retired is from service absolute need for periodical review of performance of Government servants. Provisions in this regard are contained under proviso to clause (a) of Rule 71 of Odisha Service Code. Government have accordingly following decided that shall henceforth be instructions/procedures followed by the authorities empowered to conduct reviews or issue orders retiring an employee prematurely as provided in the Proviso to Clause (a) of Rule 71 of the Odisha Service Code, on his completing 30 years of qualifying service of attaining 50 years of age and on his attaining 55 years of age. the 4. The cases of Group-A & Group-B Officers on their completing 30 years of qualifying service or attaining 50 years of age and on their attaining 55 years of age, as the case may be, on the 31st March, 30th June, 30th September and the 31st December of a year shall be reviewed by the Review Committees constituted in pursuance of these instructions. Similarly the cases of Group-C Officers and Group-D employees shall be reviewed W.P.(C) No.12265 of 2021 Page 24 of 163 on the 30th June and the 31st December of the year by the relevant Review Committee. *** 6. The criteria to be followed by the Committee in making their 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 identifying such employees should be the fitness/competence of the employees to continue in the post which he/she is holding. (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 higher post, has been found satisfactory. Consideration is ordinarily to be confined to the preceding 5 years or to the period in the higher post, in case of promotion within the period of 5 years, only when retirement is sought to be made on grounds of ineffectiveness. (d) Ordinarily no employee should be retired on grounds of ineffectiveness if he is retiring on W.P.(C) No.12265 of 2021 Page 25 of 163 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 steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement in the year preceding 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 could 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. 7. The cases of Government servants covered under paragraph 4 above should be reviewed six months before their completing 30 years of qualifying service or attaining 50 years of age and on their attaining 55 years of age, as the case may be as per the following time schedule. *** 8. Once an employee‟s case has been reviewed and he has been found by the competent authority to be deserving of continued employment after attaining 50 years of age, there shall be no further review of his case till he attains 55 years of age. Similarly, the case of an employee who was not prematurely retired in pursuance of the review conducted on his attaining 55 years of age shall not be reviewed thereafter. If, however, review W.P.(C) No.12265 of 2021 Page 26 of 163 9. was deferred or not conducted, the case may be reviewed in the meeting held after records were available. Premature retirement can be ordered in public interest only and not as a penalty to the employee concerned. Compulsory retirement is one of the major penalties listed under Rule 13 of the Odisha Civil Services (Classification, Control & Appeal) Rules, 1962 and before it is imposed on any employee, the procedure outlined in the said Rules for imposition of major penalties must be complied with. Premature retirement under Clause (a) of Rule 71 of the Odisha Service Code is not and must not be used as a substitute that can be resorted to more conveniently. In other words, where it appears that any employee is guilty of misconduct or negligence in duty and that he would probably have been compulsorily retired had disciplinary proceedings been initiated against him, the proper course would be to initiate such proceeding instead of trying to circumvent the thereby extinguishing the employee‟s right of defending himself against the charge of misconduct or negligence. Premature retirement can only be ordered where it is obvious that retention of the employee in service will not be in public interest. prescribed procedure and 10. It will not be in public Interest to retain an employee in service if— (a) he is clearly lacking in integrity, or W.P.(C) No.12265 of 2021 Page 27 of 163 (b) although his integrity is not in doubt, his physical or mental condition is such as to make him inefficient for further service, or (c) even though his work in a lower grade was satisfactory, he clearly lacks in standard of efficiency required to discharge the duties of the post he presently holds. 11. The objective of the review is to weed out persons of doubtful integrity or inefficiency from public service. In order however that no such decision is taken arbitrarily or without very careful appraisal of facts, the Review Committee shall, wherever it recommends premature retirement of an employee, record the reasons of its findings in adequate detail. *** 13. (i) record‟ „service In every review, the Committee in each case shall consider the entire service record. The implies all expression relevant records and hence the review need not be confined to the consideration of ACR/PAR dossier. The personal file of the Officer may contain relevant materials. Similarly the work and performance of an Officer can also be assessed by taking into account the files dealt with by him or any papers or reports prepared and submitted by him. (ii) As far as considering integrity of an employee is concerned, actions or decisions taken by the employee which do not appear W.P.(C) No.12265 of 2021 Page 28 of 163 or him suspicious to be above board, complaints received against property transactions for which there may not be sufficient evidence to initiate departmental proceedings, may be taken into account. The following observations of Hon‟ble Supreme Court in the case S. Ramachandra Raju Vrs. State of Odisha1 passed while upholding compulsory retirement need to be kept in view at the time of deciding each case. 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 service and injurious to public interest.” (iii) The reports of conduct unbecoming of a Government servant may also form the basis for compulsory the judgment of Hon‟ble Supreme Court in State of U.P. and others Vrs. Vijay Kumar Jain, Appeal (Civil) 2083 of 20022: retirement. As per „If conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the to Government has an absolute compulsorily retire such an employee in public interest.‟ right 1 2 S. Ramachandra Raju Vrs. State of Odisha, (1994) Supp (3) SCC 424 = (1994) Supp.2 SCR 828. State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 = (2002) 2 SCR 439. W.P.(C) No.12265 of 2021 Page 29 of 163 *** If leads the enquiry ultimately 15. It seems to be the practice in some organizations to consult the General Administration (Vigilance) Department with a view to ascertaining if any enquiry into the integrity of employees whose cases are due for review is under way. For purposes of the review, facts already available on the date of the review should alone be taken into account. If the General Administration (Vigilance) Department has already submitted a report about any employee, that report can no doubt be taken in to account, but to consider enquires that have not been completed will amount to prejudging the issue. to a reasonable inference of lack of integrity, the employee concerned can be proceeded against either departmentally or under the criminal law, but it would not be correct to conclude that an employee is lacking in integrity merely because some allegations against him are under enquiry. In other words, allegations which have not been enquired into or in respect of which enquiry is not complete should, generally speaking, be ignored. Even in regard to allegations which have been enquired into by the Vigilance Organisation, a conclusion of lack of integrity may not be drawn straightway, the facts of the case should be carefully considered and it should be examined if the ends of justice will not be better served by a departmental proceeding. The Rule, normally should be that before any such conclusion is drawn, the explanation of the employee concerned should have been considered. It in exceptional cases, for example cases where the is only W.P.(C) No.12265 of 2021 Page 30 of 163 employee‟s lack of integrity is obvious, that the review may be conducted without considering his explanation and on the basis of an exhaustive report of enquiry by the Vigilance Organisation or any senior officer. This exception to the normal rule should be invoked only where the Committee is satisfied that the allegations are serious and beyond doubt and that public interest requires the employee‟s immediate exit from service. *** 17. Where it is decided to retire an employee prematurely, he has either to be given a notice in writing at least three months before the date on which he/she is required to retire or paid three months‟ pay and allowance in lieu of such notice (Annexures-II, III, IV and V, as the case may be). *** 19. Since no stigma is attached to an employee retired prematurely, his service should be certified as satisfactory for purposes of pension, while preparing pension documents of any such employee, the following instructions may be kept in view: (a) Where an employee is served with a notice, he will be deemed to have retired on the date following the date on which the period of 3 months from the date of the service of the notice expires, if, for example, the period of 3 months following the service of the notice expires on the 5th of any month, the W.P.(C) No.12265 of 2021 Page 31 of 163 employee would be deemed to have retired with effect from the 6th of that month. (no allowance (b) Where, in lieu of notice 3 months‟ pay and allowance than Dearness Allowance is payable) are paid, the date specified in the order shall be deemed to be the date on which the employee has retired. other (c) Since 3 months‟ pay and allowances are paid in lieu of the notice, the employee will be entitled to pension from the date specified in the order in addition to the pay and allowance paid to him. (d) The pay and allowances payable in lieu of the notice will be calculated at rates at which he/she allowances and immediately before retirement. drew pay (e) Earned leave not exceeding 300 days at the credit of the employee on the date of premature retirement shall be en-cashed. (f) The employee will be entitled to draw Travelling Allowance for journey from the last station of duty in accordance with Rule 120 of the Orissa Travelling Allowances Rules. to his home town (g) The entitlement of the employee to retain the official accommodation supplied to him will be governed by item 2(b) of the Table under Rule 107A(i) of the Odisha Service Code. W.P.(C) No.12265 of 2021 Page 32 of 163 20. issued It is held by the Hon‟ble Supreme Court that, no show cause notice need be to any Government servant before a notice of retirement is issued to him under the aforesaid provisions. The appropriate authority should bona fide form an opinion that is in the public interest to retire the Government servant in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds. Accordingly, in every case where it is proposed to retire a Government servant in exercise of the powers conferred by the appropriate authority should record in the file its opinion that it is necessary to retire the Government servant in pursuance of the aforesaid rule in the public interest. The order to be served on the Government servant would of course be on the form prescribed for the purpose. the said rule, 21. It is accordingly therefore, requested to ensure holding of Review Committee Meetings regularly as per these instructions for effective functioning of Government offices by weeding out persons of doubtful integrity or patent inefficiency from public service. Suitable instructions may also be issued to all the Offices functioning under your control to hold review meeting positively in scheduled time without failure. 22. For the the purpose of this circular, expression “Appropriate Authority” means the appointing authority.” Legal perspective: W.P.(C) No.12265 of 2021 Page 33 of 163 8. Before considering the rival contentions, averments
Decision
and contents of the writ petition as well as the counter affidavit(s) with rejoinder(s), it is apposite to take note of views expressed by Courts with regard to compulsory/premature retirement. 8.1. The observation of Hon‘ble Supreme Court of India in Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 is as under: “11. It seems to us that the main object of this rule is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the Services are one of the pillars of our great democracy. Any element or constituent of the Service which is found to be lax or corrupt, inefficient or not up to the mark or has outlived his utility has to be weeded out. Rule 16(3) provides the methodology for achieving this object. We must, however, hasten to add that before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to subserve. If any such case comes to the notice of the Government the officer responsible for advising the Government must be W.P.(C) No.12265 of 2021 Page 34 of 163 strictly dealt with. Compulsory retirement contemplated by the aforesaid rule is designed to initiative and infuse the administration with activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require exploration of “fields and pastures new”. Such a retirement involves no stain or stigma nor does it entail any penalty or civil consequences. In fact, the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration. 12. An order of compulsory retirement on one hand causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services. The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the Service made in the larger interest of the country. Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country, for every good cause claims its martyr. 28. On a consideration of the authorities mentioned above we are satisfied that there is no legal error in the impugned order passed by the Government It was, however, of contended by counsel for Reddy that reading the it contains an odour of order as a whole retiring Reddy. India W.P.(C) No.12265 of 2021 Page 35 of 163 victimisation, so as to make the order arbitrary. We are, however, unable to find any material on the record to show that the order was in any way arbitrary. The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects. There is nothing to show that Reddy was victimised in any way. On the other hand, the history of his service shows that he was always given his due. He was taken in the IPS and allotted the year 1952. He was promoted to the selection grade also at the proper time. The order of suspension was withdrawn and the departmental enquiry was dropped and the officer was reinstated and later promoted as DIG. These facts completely militate against the concept of victimisation. It appears that on an overall consideration of the entire history of the service of Reddy and the various stages through which he had passed it was considered interest of administration and to ensure better initiative and efficiency to retire him in public interest. We are also unable to find any element of arbitrariness in the impugned order. For these reasons, therefore, the first contention raised by learned counsel for Reddy must be rejected.” the in 8.2. The observation of Hon‘ble Supreme Court of India in Posts and Telegraphs Board Vrs. C.S.N. Murthy, (1992) 2 SCC 317 is as under: “It will be clear from the extracts referred to above, that though the respondent‟s conduct was quite satisfactory W.P.(C) No.12265 of 2021 Page 36 of 163 till March 1970, his standard of work had declined in the last two years under review. In both these years, it was found that he was not taking adequate interest in his work and was responsible for delays of various kinds. As has already been pointed out, an order of compulsory retirement is not an order of punishment. F.R. 56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. The only suggestion of the High Court is that the record discloses no material which would justify the action taken against the respondent. We are unable to agree. In our opinion, there was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible for us to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable. The Division Bench seems to have thought that, since the adverse remarks mentioned in the earlier letter of April 29, 1971 were not repeated in the subsequent letter, it should be taken that they had been given up subsequently or that the respondent had improved in the subsequent year. We do not think that Page 37 of 163 W.P.(C) No.12265 of 2021 this is a legitimate inference, for the report for 1971-72 only shows that the respondents‟ propensity to delay matters persisted despite the warning of the previous year. But, even if one assumes that the High Court was correct on this, the adverse remarks made against the respondent in relation to the period 1971-72, standing by themselves, can constitute sufficient material for the department to come to a conclusion in the matter. It is true that the earlier record of the respondent was good but if the record showed that the standard of work of the respondent had declined and was not satisfactory, that was certainly material enabling the department to come to a conclusion under F.R. 56(j). We are of opinion that the High Court erred in setting aside the order of compulsory retirement on the basis that there was no material at all on record justifying the action against the respondent.” 8.3. The observation of Hon‘ble Supreme Court of India in Baikuntha Nath Das Vrs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 is as under: “30. On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha, (1970) 2 SCC 458 = (1971) 1 SCR 791 is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56(j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) 2 SCC 188. On one hand, it is stated that only the entries of W.P.(C) No.12265 of 2021 Page 38 of 163 therein, last ten years should be seen and on the other hand, it is stated that if there are any adverse they must not only be remarks communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation? Does it mean, disposal by the appropriate authority alone or does it include appeal as well? Even if the appeal is dismissed, the Government servant may file a revision or make a representation to a still higher authority. He may also approach a court or tribunal for expunging those remarks. Should the Government wait until all these stages are over? All that would naturally take a long time by which time, these reports would also have become stale. A Government servant so the other minded can adopt one or proceeding to keep the matter alive. This is an additional reason for holding that the principle of Union of India Vrs. M.E. Reddy, (1980) 2 SCC 15 = (1980) 1 SCR 736 should be preferred over Brij Mohan Singh Chopra Vrs. State of Punjab, (1987) 2 SCC 188 and Baidyanath Mahapatra Vrs. State of Orissa, (1989) 4 SCC 664, on the question of uncommunicated taking adverse remarks. consideration into 31. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason the authority competent to retire him will not act bona fide to presume that W.P.(C) No.12265 of 2021 Page 39 of 163 the cases and make or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine their recommendation to the Government. The Review Committee, or the Government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record— including representations, if any, made by the Government servant against the above remarks— of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a Government servant. 32. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the Government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R. 56(j) (or the rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if W.P.(C) No.12265 of 2021 Page 40 of 163 communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56(j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the Government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the Government servant is there, it shall also be taken into consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation, if indeed present, may be indicative of malice in law. We may the remedy this connection that mention provided by Article 226 of the Constitution is no less an important safeguard. Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. in *** 34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. W.P.(C) No.12265 of 2021 Page 41 of 163 (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not is excluded judicial scrutiny mean that altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) (c) that it is based on no evidence or that it is arbitrary— in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter— of course attaching of and to more performance during the later years. The record to be so considered would naturally the confidential include the entries importance record in W.P.(C) No.12265 of 2021 Page 42 of 163 If a Government servant records/character rolls, both favourable and adverse. is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. passing while that Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above. retirement. In other words, 35. *** We are concerned mainly with the question whether a facet of principle of natural justice— audi alteram partem— is attracted in the case of compulsory the is whether acting upon undisclosed question material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi- judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.” W.P.(C) No.12265 of 2021 Page 43 of 163 8.4. The observation of Hon‘ble Supreme Court of India in State of Uttar Pradesh Vrs. Raj Kishore Bhargava, 1992 Supp. (2) SCC 92 is as under: “3. The High Court seems to be too technical. Three months‟ salary in lieu of notice was sent by cheque to the respondent. The cheque was sent on April 5, 1990. There is no reason to disbelieve this fact. In the affidavit on behalf of the Government it has been stated that the cheque was sent to the respondent but it was returned. It is not in dispute that the cheque was drawn, and there is no reason why it should be disbelieved merely on the ground that some other letter has not been produced. 4. The second reason given by the High Court is equally untenable. Shri Goyal is the concerned Chief Engineer. He is also required to take a decision on the compulsory retirement of the respondent. His participation in the Committee was inevitable and could not be found fault with. Secondly, the record reveals that the respondent got adverse entries right from 1961-62 to 1973-74, 1977-78, even subsequently. In view of the poor record of service, we think that the High Court was not justified in setting aside the order of compulsory retirement.” 1979-80, 1980-81 and 8.5. The observation of Hon‘ble Supreme Court of India in Union of India Vrs. Dulal Dutt, (1993) 2 SCC 179 is as under: W.P.(C) No.12265 of 2021 Page 44 of 163 “18. It will be noticed that the Tribunal completely erred in assuming, in the circumstances of the case, that there ought to have been a speaking order for compulsory retirement. This Court, has been repeatedly emphasising right from the case of R.L. Butail Vrs. Union of India, (1970) 2 SCC 876 and Union of India Vrs. J.N. Sinha, (1970) 2 SCC 458 that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Review Committee yet fit of compulsorily retiring the respondent. The order cannot be called either mala fide or arbitrary in law.” thought it it 8.6. The observation of Hon‘ble Supreme Court of India in Union of India Vrs. V.P. Seth, (1994) SCC (L&S) 1052 is as under: 3 “3. These principles were reiterated with approval in the subsequent decision. It would, therefore, seem that an order of compulsory retirement 3
Decision
order in W.P.(C) No.12265 of 2021 Page 49 of 163 9. It is thus settled law that though the order of compulsory retirement is not a punishment and the Government employee is entitled to draw all retiral benefits including pension, the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood needs to be removed to augment efficiency. Integrity in public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by In an reputation built around him. 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 in public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire service record more particular the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a Government Page 50 of 163 W.P.(C) No.12265 of 2021 officer. When an officer reaching the age of compulsory retirement, as was pointed out by this Court, he could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly affected. Therefore, before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evaluation of the entire record of service if the Government or the Governmental authority forms the opinion that in the public interest retired compulsorily, the court may not interfere with the exercise of such bona fide exercise of power but the court has power and duty to exercise the power of judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrary in retiring the Government officer compulsorily from service. officer needs to be the 10. Keeping these principles in mind and on considering the facts extracted hereinbefore we find that the exercise of power by the Government falls in the category of arbitrary exercise of power or failure to take the total record of service into consideration objectively. It has taken only the solitary adverse report for the year 1987-88 as a foundation to compulsorily retire the appellant from service. The Review Committee W.P.(C) No.12265 of 2021 Page 51 of 163 to expunge that admittedly as well considered only that report, neither earlier reports nor subsequent reports were considered. It the appellant was is seen promoted as a Reader after the adverse report and the adverse comments were communicated to him and in a mechanical way they rejected the report (sic. representation) the adverse remarks, even without going into the contention of the appellant that the then Principal was actuated with mala fides by submitting wrongly or falsely in confidential reports which appear to have some foundation or suspicion for such a contention. Consistent record earlier and later periods would establish that the appellant has meritorious record of service as a teacher and that his devotion to the service is good and fair and that he maintains discipline, good relations with the students and imparts teaching to the students fairly with good knowledge as a teacher. Therefore, in that background the exercise of the power is illegal. 11. The the facts are eloquent. From 1973-74 appellant started with a commendation of his performance to be „satisfactory‟ to „fair‟ in the year 1990-91. Would it be comprehensible that in the year 1987-88 whether he would suddenly drop down and become an average or below average teacher? When he was a responsible teacher and the student he had cordial community, and was taking pains to impart lessons to the students, would it be believable that he avoids to take classes and drops down “if not watched? When anterior to or subsequent to 1987- 88 he was a man of ability and of integrity, the relations with W.P.(C) No.12265 of 2021 Page 52 of 163 confidential reports bears same would become below average only for the academic year 1987-88 without discernible reasons. It would speak volumes on the objectivity of assessment by the reporting officer i.e. the Principal. This conduct is much to be desired. This case would establish as a stark reality that writing onerous responsibility on the reporting officer to eschew his subjectivity and personal prejudices or proclivity or predilections and to make objective assessment. It is needless to emphasise that the career prospects of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy. The reporting officer is bound to lose his credibility in the eyes of his subordinates and fail to command respect and work from them. The constitutional and statutory safeguards given to largely became the Government employees responsible to display callousness and disregard of the discharge of their duties and make it impossible to the superior or controlling officers to extract legitimate work from them. The writing of the confidentials is contributing to make the to some extent. subordinates work at reports the Therefore, writing objectively and constructively and communication Page 53 of 163 confidential least W.P.(C) No.12265 of 2021 thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate-employee/officer should dedicate to do hard work and duty; assiduity in the discharge of the duty, honesty with integrity in performance thereof which alone would earn his usefulness in retention of his service. Both would contribute to improve excellence in service.” 8.8. The observation of Hon‘ble Supreme Court of India in State of Odisha Vrs. Ram Chandra Das, (1996) 5 SCC 331 is as under: “It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the Government servant on the premises that after promotion they would become irrelevant and minor penalty was imposed. It is true that the Government servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. The material question is W.P.(C) No.12265 of 2021 Page 54 of 163 whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the Government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self- same material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits.” 8.9. The observation of Hon‘ble Supreme Court of India in M.S. Bindra Vrs. Union of India, (1998) 7 SCC 310 is as under: “11. Therefore, judicial scrutiny of any order imposing premature compulsory retirement is W.P.(C) No.12265 of 2021 Page 55 of 163 permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion, the same can be obviated on the assumption that other materials alone need be looked into. turpissimus” 13. While viewing this case from the next angle for i.e., want of evidence or judicial scrutiny, material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim “nemo firut repente (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of “doubtful integrity, it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability W.P.(C) No.12265 of 2021 Page 56 of 163 for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label doubtful integrity”. 14. Here, out of the three instances on which the Screening Committee relied to dub the officer as a case of “doubtful integrity”, the first is his action against M/s. Orkay Silk Mills. The fact is that it was the appellant who headed the operation. A task which unearthed such a huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair is that he wilfully created lacunae in the confiscation proceedings for providing an escape route to the defaulter. One is that the confiscation order contains nearly 100 pages and the period was too short for preparing such an order. What is the inference to be drawn? Normally it is an achievement that an order of 100 pages was made during such a short period. So what is then to be thought of against it? Is it that he would have taken too much pains to finish his work or is it that he would have caused it to be written by somebody else? Is there not a clear possibility that the officer hearing the adjudication case for several days would have prepared its prefatory portion as well as the statement of summary of evidence during the days when arguments were proceeding and before conclusion of the hearing, leaving out the crucial discussion to be dictated after the conclusion of the hearing? That is not an objectionable course. If so, the achievement in preparing an order of confiscation within such a short span should not have been W.P.(C) No.12265 of 2021 Page 57 of 163 frowned at, there admiration for its promptitude. instead is scope to pay 19. We perused the statement of the Jains. They never said that the appellant made the above demand to them at any time. The only material before the Screening Committee was that the two accused had stated that Kapoor gave them such an impression. It must be noted that nobody had checked up the truth of it with the person to whom it was attributed. The most unfortunate feature is that nobody has checked it up even with Mr. Kapoor who is alleged to have told like that to the Jain Brothers. If the integrity of senior officers, who established unblemished earned encomiums from all concerned till then, is proclaimed as doubtful merely on the strength of statements of persons prosecuted by such officers, what is the safety of such officers, more so when they have to embark on hazardous operations risking their lives against big business houses? reputation and 21. We have no doubt that there is utter dearth of evidence for the Screening Committee to conclude that the appellant had doubtful integrity. Such a conclusion does not stand judicial scrutiny even within the limited permissible scope. We, therefore, allow this appeal and set aside the order under attack order by which premature including the compulsory retirement was appellant. The Department concerned shall now imposed on the W.P.(C) No.12265 of 2021 Page 58 of 163 work out the reliefs to be granted to the appellant as a sequel to this judgment.” 8.10. It has been propounded in State of Gujarat Vrs. Umedbhai M. Patel, (2001) 3 SCC 314 as under: “11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus: (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. (iii) For better administration, it is necessary to chop 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. (v) Even uncommunicated entries in the confidential 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. W.P.(C) No.12265 of 2021 Page 59 of 163 (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.” 8.11. The observation of Hon‘ble Supreme Court of India in State of U.P. Vrs. Vijay Kumar Jain, (2002) 3 SCC 641 is as under: “10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a Government servant under FR 56(c). In Shyamlal Vrs. State of U.P., AIR 1954 SC 369 = (1955) 1 SCR 26 it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it and it was held therein as thus : (SCR pp. 41-42) „There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that twenty-five years‟ the officer has completed service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note-1 to Article 465-A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of W.P.(C) No.12265 of 2021 Page 60 of 163 11. the power. In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.‟ order In Union of India Vrs. Col. J.N. Sinha, (1970) 2 SCC 458 = (1971) 1 SCR 791 it was held that an employee compulsorily retired does not lose any right acquired by him before retirement and that the said Rule is not intended for taking any penal action against the Government servant and that servant the compulsorily can only be challenged on the ground that either the order is arbitrary or it is not in public interest. No other ground is available to a to be Government servant who compulsorily retired the relevant rules subject to the conditions provided therein. retiring a Government from service under is sought 14. In State of Punjab Vrs. Gurdas Singh, (1998) 4 SCC 92 it was held thus: (SCC p. 99, para 11) „Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.‟ W.P.(C) No.12265 of 2021 Page 61 of 163 is to employee employee the public a Government 15. The aforesaid decisions unmistakably lay down that the entire service record of a Government servant could be considered by the Government while exercising the power under FR 56(c) of the Rules with emphasis on the later entries. FR 56(c) of the Rules read with Explanation (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead wood need to be removed to maintain efficiency in the service. Integrity of a Government foremost consideration in public service. If a conduct becomes of unbecoming interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest. The Government‟s right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the Government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire service record, character roll or confidential report furnishes the materials to the Screening Committee or the State Government, as the case may be, to find out whether a Government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the Government is expected to form W.P.(C) No.12265 of 2021 Page 62 of 163 its opinion whether an employee compulsorily retired or not. is to be filed by 16. Withholding of integrity of a Government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.06.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with the emphasis on character roll can be taken into account by the Government while considering a case for compulsory retirement of a Government servant. later entries the in W.P.(C) No.12265 of 2021 Page 63 of 163 17. It was not urged before us that the order compulsorily retiring the respondent was mala fide or was not in the public interest, and in the absence of such a case, we do not find any infirmity in the order compulsorily retiring the respondent from service.” 8.12. The observation of Hon‘ble Supreme Court of India in Nand Kumar Verma Vrs. State of Jharkhand, (2012) 3 SCC 580 is as under: “28. *** It is now well settled that the object of compulsory retirement from service is to weed out the dead wood in order to maintain a high standard of efficiency and honesty and to keep the judicial service unpolluted. Keeping this object in view, the contention of the appellant has to be appreciated on the basis of the settled law on the subject of compulsory retirement. *** 31. We are conscious of the fact that there is very limited scope of judicial review of an order of premature retirement from service. As observed by this Court in Rajiah‟s case4, that, „21. *** when the High Court takes the view that an order of compulsory retirement should be made against a member of the Judicial Service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are 4 High Court of Madras Vrs. R. Rajiah, (1988) 3 SCC 211. W.P.(C) No.12265 of 2021 Page 64 of 163 absolutely irrelevant to the purpose of compulsory retirement.‟ 32. We also add that when an order of compulsory retirement is challenged in a court of law, the Court has the right to examine whether some ground or material germane to the issue exists or not although, the Court is not interested in the sufficiency of the material upon which the order of compulsory retirement rests. 33. This Court in High Court of Punjab & Haryana Vrs. G. Ishwar Chand Jain, (1999) 4 SCC 579, has discussed the purpose, importance and effect of the remarks made during inspection which ultimately become the part of the ACR of the concerned Judicial officer. This Court has observed thus: „32. Since late this Court is watching the spectre of either judicial officers or the High Courts coming to this Court when there is an order prematurely retiring a judicial officer. Under Article 235 of the Constitution the High Court exercises complete control over subordinate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which the High Court performs the subordinate courts. The object of such inspection is for the purpose of assessment of the work performed by the Subordinate Judge, and competency. Since Judges are human beings and also prone to all the human failings capability, integrity control over his for W.P.(C) No.12265 of 2021 Page 65 of 163 the largely inspection provides an opportunity for pointing out mistakes so that they are c avoided in future and deficiencies, if any, in the working of the subordinate court, remedied. Inspection should act as a catalyst in inspiring Subordinate Judges to give the best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardship. A satisfactory judicial system depends satisfactory on functioning of courts at the grass-roots level. Remarks recorded by the Inspecting Judge are normally endorsed by the Full Court and the annual confidential become part of reports and are foundations on which the career of a judicial officer is made or marred. Inspection of a subordinate court is thus of vital importance. It has to be both effective and productive. It can be so only if it is well regulated and is workman-like. Inspection of subordinate courts is not a one-day or an hour or a few minutes‟ affair. It has to go on all the year round by monitoring the work of the court by the Inspecting Judge. A casual inspection can hardly be beneficial to a judicial system. It does more harm than good.‟ 34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible W.P.(C) No.12265 of 2021 Page 66 of 163 for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs. *** 36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect totality of relevant materials were not that considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service. *** W.P.(C) No.12265 of 2021 Page 67 of 163 39. In Nawal Singh Vrs. State of U.P., (2003) 8 SCC 117, this Court has observed thus: „12. *** In the present day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis.‟ ***” the performance of 8.13. The observation of Hon‘ble Supreme Court of India in Rajesh Gupta Vrs. State of J&K, (2013) 3 SCC 514 is as under: “21. The aforesaid principles have been re-examined and reiterated by this Court in Nand Kumar Verma, (2012) 3 SCC 580. *** 24. In Jugal Chandra Saikia, (2003) 4 SCC 59 this Court reiterated the principles in the following words: (SCC p. 63, para 6) „6. *** It cannot be disputed that the passing of an order of compulsory retirement depends on the the subjective satisfaction of competent authority, of course on objective consideration. Unless it is shown that the order of compulsory retirement was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse, the court cannot interfere.‟ W.P.(C) No.12265 of 2021 Page 68 of 163 Examining the record of the appellant therein and the material that was placed before the Screening Committee, the High Court as well as this Court in Jugal Chandra case, (2003) 4 SCC 59 came to the conclusion that on an objective consideration of the material on the record it was not possible to accept the argument that the Screening Committee had acted only on the basis of the report of the Rao Committee. the It was recommendations of the Screening Committee were based on relevant material. found that 25. In Allahabad Bank case, (1996) 4 SCC 504 this Court examined whether the order of compulsory retirement, passed in that case, cast a stigma on Appellant-2. The impugned order therein had recited that there was “want of application to the bank‟s work and lack of potential” and “he has also been found not dependable”. It was the case of Appellant-2 that the aforesaid expressions were stigmatic as they cast aspersions on his conduct, character and integrity. The High Court rejected the plea of Appellant-2 on the ground that the recitals do not cast any stigma but only assess the work of Appellant-2 for determining the issue of his compulsory retirement. In these circumstances, it was observed that the object of compulsory retirement is to weed out the dead wood in order to maintain efficiency in the service and also to those whose the services of dispense with integrity is doubtful, so as to preserve purity in the administration. The order of compulsory retirement was distinguished from the order of dismissal and removal, as it does not inflict any punishment on the Government W.P.(C) No.12265 of 2021 Page 69 of 163 servant. It only deprives the Government servant of the opportunity to remain in service till the age of superannuation. Therefore, the order of compulsory retirement differs from an order of dismissal or removal both in its nature and consequence. However, in case it is found that the order is stigmatic it would be treated as an order of punishment, which cannot be passed without complying with the provisions of Article 311(2) and the rules of natural justice. Upon examination of a large body of case law, it was observed that the order of compulsory retirement does not cast a stigma on the Government servant. But if the order contains a statement casting aspersion on his conduct or character, then the court will treat the order as an order of punishment, attracting the provisions of Article 311(2) of the Constitution. In the facts of that case, it was concluded that the two recitals contained in the order of premature retirement had been made in relation to the work of Appellant-2 and not for any other purpose. Therefore, the court declined to interfere with the order of the High Court. 26. Examining the fact situation in this case on the basis of the aforesaid principles, it becomes evident that the recommendation made by the indubitably High-Powered Committee was arbitrary. 29. The report also does not indicate that there is any irregularity in the bank accounts maintained by the appellant. The affidavit filed on behalf of the W.P.(C) No.12265 of 2021 Page 70 of 163 to State of Jammu and Kashmir clearly shows that according to the Vigilance Organisation, three first information reports bearing Nos. 49 of 1991, 11 of 1995 and 63 of 1994 were registered by the State Vigilance Organisation against the appellant when he was posted as Executive Engineer (REW, Kathua). Upon investigation, all the FIRs were “not proved”. However, be found recommendation was made initiate departmental action against the officer. In spite of the aforesaid recommendation, it has not been disputed before us, that no departmental action was ever initiated against the appellant. In fact, after the completion of the investigation into the FIRs, the appellant was promoted to the post of Executive Engineer on 15.12.1996. Therefore, it can be safely concluded that there were no material before the High-Powered Committee to conclude that the officer possessed assets beyond his known source of income. to recommend the sanctioning of 30. This now takes us to the other material on the basis of which the recommendation has been made by the High-Powered Committee. It has been noticed by us earlier that the appellant was required, in the performance of his official duties, technical to approval to the construction of works of various projects. The allegation with regard to issuing backdated technical sanctions was duly inquired into. The conclusion ultimately reached by the inquiry officer noticed in the earlier part of the order indicates that at best the appellant acted in a casual and haphazard manner the maintenance of records. Such negligence on the in W.P.(C) No.12265 of 2021 Page 71 of 163 part of the appellant cannot per se lead to the conclusion that the appellant was acting in such a manner with an ulterior motive. The conclusions reached by the High-Powered Committee also do not co-relate to the assessment of work and the annual integrity of performance report. As noticed earlier, in all the annual performance reports, the officer has been rated “Very Good”, “Excellent” and even “Outstanding”. the appellant in 31. In view of the aforesaid, the conclusion is inescapable, that the order passed by the State Government suffers from the vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High Court. In view of the settled law, it is not possible for us to uphold the judgments of the Single Judge as also of the Division Bench.” 8.14. In Rajasthan State Road Transport Corporation Vrs. Babu Lal Jangir, (2013) 10 SCC 551 the observation of the Hon‘ble Supreme Court of India runs as under: “14. In Brij Mohan case, (1987) 2 SCC 188 there were no adverse entries in the confidential records of the appellant for a period of five years prior to the impugned order of premature retirement. Within two adverse entries. five years However, remarks were not communicated to the employee. The order based on uncommunicated adverse entries was set aside on two grounds, namely: there were these adverse W.P.(C) No.12265 of 2021 Page 72 of 163 (i) It was not reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If the entries for the period of more than 10 years past are taken into account it would be an act of digging out the past to get some material to make an order against the employee. (ii) Since the adverse entries were not even communicated, it was unjust and unfair and contrary to principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which are if either not communicated communicated, made against those entries are not considered and disposed of. representations to him or 16. It clearly follows from the above that insofar as first ground in Brij Mohan Singh Chopra, (1987) 2 SCC 188, namely, consideration of adverse entries of remote past was inappropriate to compulsorily retire an employee, was not touched or discussed. In fact, on the facts of Baikuntha Nath Das, (1992) 2 SCC 299, this proposition did not arise for consideration at all. No doubt, in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661, it has been specifically remarked that the judgment in Brij Mohan Singh Chopra, (1987) 2 SCC 188 has been overruled in Baikuntha Nath Das, (1992) 2 SCC 299. It would be relevant to point out that even Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 was a case relating to uncommunicated adverse entries. Therefore, Brij Mohan Singh W.P.(C) No.12265 of 2021 Page 73 of 163 Chopra, (1987) 2 SCC 188 was overruled only on the second proposition. 18. On that basis following pertinent observations were made in Badrinath case, (2000) 8 SCC 395: It reaffirms „53. We are however concerned with the first point stated in Brij Mohan Singh Chopra case, (1987) 2 SCC 188 as explained and accepted in Principle (iv) of para 34 of the three-Judge judgment in Baikuntha Nath Das, (1992) 2 SCC 299. We have already extracted this passage in Principle (iv) of that old adverse para 34. remarks are not to be dug out and that adverse remarks made before an earlier selection for promotion are to be treated as having lost their „sting‟. This view of the three-Judge Bench, in our view, has since been not departed from. We shall, therefore, refer to the two later cases which have referred to this case in Baikuntha Nath Das, (1992) 2 SCC 299. The second of these two later cases has also to be explained. 54. In the first of these latter cases, namely, Union of India Vrs. V.P. Seth, (1994) SCC (L&S) 1052 the point related both to adverse remarks of a period before an earlier promotion but also to uncommunicated adverse remarks. It was held that the Tribunal was wrong in holding in favour of that the uncommunicated adverse remarks could not be relied upon for purposes of compulsory retirement. So far as the remarks prior to an ground officer the on W.P.(C) No.12265 of 2021 Page 74 of 163 earlier promotion, this Court did not hold that they could be given as much weight as those in later years. The Court, in fact, relied upon Baikuntha Nath Das case, (1992) 2 SCC 299 decided by a three-Judge Bench which had Proposition (iv) in para 34 (at pp. 315-16) had clearly accepted that adverse remarks prior to an earlier promotion lose their sting. 55. The second case is the one in State of Punjab Vrs. Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661. The facts that there were adverse remarks from 1978 prior to 1984 when the officer was promoted and there were also adverse remarks for the period 18.06.1984 to 31.03.1985. The compulsory retirement order was passed on 03.09.1987. The said order was quashed by the civil court on the ground that his record prior to his promotion i.e. prior to 1984 could not have been considered and two adverse entries after 1984 were not communicated and could not be relied upon. The three- Judge Bench, while clearly setting out Proposition (iv) in para 34 of Baikuntha Nath Das, (1992) 2 SCC 299 which said that adverse remarks prior to promotion lose their sting, held that they were following the said judgment and they allowed the appeal of the State. Following Baikuntha Nath Das, (1992) 2 SCC 299, the Bench felt that uncommunicated adverse remarks could be relied upon and in that case these entries related to the period after an earlier promotion. That ground alone W.P.(C) No.12265 of 2021 Page 75 of 163 was sufficient for the case. There is a further observation that an adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be while taken considering the overall performance of the employee during the whole tenure of service. consideration into to in that the effect the context of 56. The above sentence in Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 needs to be explained the Bench accepting the three-Judge Bench ruling in Baikuntha Nath Das, (1992) 2 SCC 299. Firstly, this last observation in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661 does not go against the general principle laid down in Baikuntha Nath Das, (1992) 2 SCC 299 though adverse remarks prior to an earlier promotion can be taken into account, they would have lost their „sting‟. Secondly, there is a special fact in Gurdas Singh case, (1998) 4 SCC 92 = AIR 1998 SC 1661, namely, that the adverse remarks prior to the earlier promotion related to his „dishonesty‟. In a case relating retirement therefore, the sting in adverse remarks relating to dishonesty prior to an earlier to be promotion cannot be said absolutely wiped out. The fact also remains that in Gurdas Singh case, (1998) 4 SCC 92 there were other adverse remarks the earlier promotion, also even after compulsory to W.P.(C) No.12265 of 2021 Page 76 of 163 regarding dishonesty though they were not communicated. We do not think that Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 is an authority to say that adverse remarks before a promotion, however remote, could be given full weight in all situations irrespective of whether they related to dishonesty or otherwise. As pointed in the three-Judge Bench case in Baikuntha Nath Das, (1998) 4 SCC 92 = AIR 1998 SC 1661, which was followed in Gurdas Singh, (1998) 4 SCC 92 = AIR 1998 SC 1661 they can be kept in mind but not given the normal weight which could have otherwise been given to them but their is substantially weakened strength to they unless of dishonesty.‟ course relate 19. If one were to go by the dicta in Badrinath case, (2000) 8 SCC 395, the obvious conclusion would be that even if there are adverse remarks in the service career of an employee they would lose their effect, when that employee is given promotion to the higher post and would not be taken into account when the case of that employee for compulsory for consideration, except only those adverse entries in the confidential reports of that employee which touch upon his integrity. Thus, Badrinath case, (2000) 8 SCC 395 interprets Principle (iv) in para 34 of Baikuntha Das, (1992) 2 SCC 299 to mean such adverse remarks for the period prior to promotion, unless they are related to dishonesty, would be substantially weakened after the promotion. retirement taken up is W.P.(C) No.12265 of 2021 Page 77 of 163 20. This interpretation given in Badrinath case, (2000) 8 SCC 395, which was the judgment rendered by two-member Bench, has not been accepted by three-member Bench of this Court, subsequently, in Pyare Mohan Lal Vrs. State of Jharkhand, (2010) 10 SCC 693. After discussing various judgments, including the judgments referred to by us hitherto, the Court clarified and spelled out the the earlier adverse circumstances entries/record would be wiped off and the circumstances in which the said record, even of remote past would not lose its significance. It is lucidly conceptualised under the head “Washed- off theory” as follows: (Pyare Mohan Lal case, (2010) 10 SCC 693, pp. 702-04, paras 19-22) in which Washed-off theory: 19. In State of Punjab Vrs. Dewan Chuni Lal, (1970) 1 SCC 479 = AIR 1970 SC 2086 a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the Government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar.