The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.9554 OF 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India ……………… Pratap Kumar Samal Petitioner …. -versus- State of Odisha & Another …. Opposite Parties For Petitioner : M/s. B. Routray, Senior Advocate along with Mr. P.K. Behera, Advocate For Opp. Parties : M/s. S. Das, ASC Mr. N.K. Mishra, Sr. Adv. (for O.P. No.2) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ------------------------------------------------------------------ Date of Hearing: 21.08.2025 and Date of Judgment: 28.10.2025- -------------------------------------------------------------------- ---------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode. // 2 // 2. The present Writ Petition has been filed inter alia challenging order dtd.18.11.2021 so issued under Annexure-3 and with a further direction on the Opp. Party-Corporation to re-instate the Petitioner in his services with all consequential service and financial benefits. 3. It is the case of the Petitioner that Petitioner was appointed as an ad-hoc Junior Engineer in the establishment of Opp. Party No.2 vide order dt.12.04.1988 under Annexure-1. In terms of the said order, Petitioner joined as an ad-hoc Jr. Engineer on 14.04.1988 and while so continuing, he was regularized in the cadre of Jr. Engineer/Asst. Project Manager vide order dt.23.09.1991. 3.1. It is contended that after being so regularized, Petitioner was deputed to IDCO vide order dtd. 23.09.1991 and subsequently brought back to the Corporation vide Order dt.11.07.1994. Petitioner accordingly once again rendered his duty in the Corporation w.e.f 12.07.1994. Page 2 of 39 // 3 // 3.2. It is contended that Petitioner while so continuing, vide order dt.19.06.2007 under Annexure-2 was promoted to the rank of Dy. Manager. However, while so continuing, Petitioner vide the impugned Office Order dt.18.11.2021 under Annexure-3 was given pre-mature retirement, relying on the provision contained under clause (a) of Rule 71 of the Orissa Service Code (in short, “the Code”). Petitioner was so given pre-mature retirement w.e.f 18.11.2021 vide the impugned order under Annexure-3, by allowing him 3 (three) months’ pay and allowance in lieu of 3(three) months’ notice. 3.3. Learned Sr. Counsel appearing for the Petitioner contended that vide its resolution dt.24.09.2019 under Annexure-4, Government in the G.A and P.G. Department prescribed the guideline for pre-mature retirement of Government servants and to weed out Officers and employees of doubtful integrity or inefficiency from public service to ensure efficiency in administration. Page 3 of 39 // 4 // 3.4.
Legal Reasoning
It is contended that as provided under pargraphs-4 & 7 of the guideline dt.24.09.2019, a Group-B and Group-D Officer on completing 30 years of qualifying service or attaining 50 years of age and on attaining 55 years of age, as the case may be, on the 31st March, 30th June, 30th September and 31st December of a year shall be reviewed by the Review Committee, constituted in pursuance of the Instructions, is to take a decision as to whether an employee can be given pre-mature retirement. It is further contended that as provided under Para-7 of the Guideline, cases of Government servants covered under Para-4, should be reviewed 6 (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 time schedule enclosed thereto. Para 4 & 7 of the guideline reads as follows: 4. The cases of Group-A & Group-B Officers on their completing 30 years qualifying service or attaining 50 years of age and on their attaining 55 years of age the case may be, on the 31 March, 30th June, 30th September and the 31 December a year shall be reviewed by the Review Committees constituted instructions. Similarly, the cases of Group-C Officers and Group- in pursuance of the Page 4 of 39 // 5 // D employees shall be reviewed on the 30th June and the 31st December of the year by the relevant Review Committee. xxx xxx xxx 7. The cases of Govt. 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. Sl.no 1 2. 3. 4. In Quarte r which review is to be made of Cases officer/employee completing 30 years of qualifying service or attaining 50 years of age and ther on attaining 55 years of age of Dateline furnishing the report to the G.A & P.G Deptt. Jan.to March July. To Sept. of the same year 15th April AA April to June Oct. to Dec. of the 15th July same year July to Sept Jan. to March of 15th October the next year t Oct. to Dec. April to June of the next year 15th Jan. of the next year A register of officers/employees who are completing 30 years of qualifying service or attaining 50 years of age and on their attaining 55 years of age is to be maintained. The register should be scrutinized at the beginning of every quarter by a senior officer in the Department/ Office and the review undertaken according to the above schedule. In addition to the above, the Secretary of the Administrative Department is also empowered to constitute internal Committees to scrutinize all the cases required to be reviewed in each quarter and finalize the specific cases to be reviewed. These Internal Committees will ensure that the service record of the employees being reviewed, along with Page 5 of 39 // 6 // a summary bringing out all relevant information, is submitted to the review committees at least one month before the due date of review. The administrative Departments shall furnish reports of every review conducted quarterly in respect of their own offices as well as all the offices functioning under their administrative control to the G.A & P.G Department in the format prescribed in Annexure-VI 3.5. It is contended that by the time, Petitioner was given such pre-mature retirement vide the impugned order under Annexure-3, he had already attained the age of 53 years and in view of the provisions contained under para-4 read with para-7 of the Instruction dt.24.09.2019, Petitioner’s claim could not have been taken up by the Review Committee for consideration and consequential passing of the impugned order in giving pre- mature retirement to the Petitioner. 3.6. It is contended that once something has been prescribed to be done in a particular manner, the same should be done in that manner or not at all. Since in terms of paragraphs-4 & 7 of the Instruction, a review can be taken up on completion of 30 years of qualifying service or attaining the age of 50 years and/or 55 years, and such review has to be made 6 (six) months before Page 6 of 39 // 7 // completion of 30 years of qualifying service or attaining the age of 50 years and/or 55 years, the review undertaken in the case of the Petitioner at the age of 53 years, is not at all permissible. In support of his submission, reliance was placed to the following decisions: 1. Bernard Francis Joseph Vs. Government of Karnataka. 2. Independent Sugar Corporation Limited Vs. Girish Sriram Juneja 3 Checkmate Service Pvt. Ltd. Vs. Commissioner of Income Tax. 3.7. In the case of Bernard Francis Joseph, Hon’ble Supreme Court in Paragraph-33 has held as under:- xxx xxx xxx 33. It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. xxx xxx xxx 3.8. In the case of Girish Sriram Juneja, Hon’ble Supreme Court in Paragraph-54 & 83 has held as under:- xxx xxx xxx 54.In the present interpretive exercise, one also needs to be mindful of the legal principle which says that where a Page 7 of 39 // 8 // statute requires one to do a certain thing in a certain manner, it must be done in that particular manner or not done at all. xxx xxx xxx 83. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. to a leads xxx xxx xxx 3.9. In the case of Checkmate Services P. Ltd., Hon’ble Supreme Court in Paragraph-26 has held as under:- 26. xxx xxx xxx It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. Xxx xxx xxx 3.10. It is also contended that since the provisions contained under Paragraphs-4 & 7 of the Instruction dt.24.09.2019 were never followed, in view of the decisions as cited (supra), the impugned order passed under Annexure-3 in giving pre-mature retirement to the Petitioner, is not sustainable in the eye of law. Page 8 of 39 // 9 // 3.11. It is also contended that pre-mature retirement of an employee, was the subject matter before the Hon’ble Apex Court in the case of State of Gujarat Vs. Umedbhai M. Patel, AIR 2001 SC 1109. Hon’ble Apex Court in Paragraph-11 of the said judgment prescribed the guideline to be followed with regard to giving compulsory retirement to an employee. Para 11 of the judgment reads as follows:- 11. The law relating to compulsory retirement has now crystallized 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 deadwood, 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 doe 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. Page 9 of 39 // 10 // (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. (vii) Compulsory retirement shall not be imposed as a punitive measure. 3.12. It is contended that taking into account the law decided by the Hon’ble Apex Court in the case of Umed bhai M. Patel vide Paragraph-11, Petitioner’s case does not fall within any of the parameter, as prior to giving such pre- mature retirement, Petitioner was not having any adverse CCR and all through he was having an unblemished service career. It is accordingly contended that the impugned order of pre-mature retirement so issued under Annexure-3, is not sustainable in the eye of law and requires interference of this Court. 4. Mr. N.K. Mishra, learned Sr. Counsel appearing on behalf Opp. Party No.2 on the other hand made his submission basing on the stand taken in the counter affidavit so filed. Basing on the counter affidavit, learned Sr. Counsel appearing on behalf of the Corporation contended that in terms of the Instruction issued by the G.A and P.G Department on 24.09.2019 under Anexure- 4, the employer is having the power to review the Page 10 of 39 // 11 // performance of an employee and the Review Committee is competent to take up the issue in terms of the provisions contained under Para-6 of the Instruction. Para-6 of the Instruction reads as follows: 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 identifying such employees consideration the fitness/ competence of should be employees to continue in the post which he/she is holding in the ineffectiveness (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 if his service during the of 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 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. Page 11 of 39 // 12 // 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. 4.1. Reliance was also placed to the stipulation contained under Para-9 & 10 of the Instruction which reads as follows: 9. 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 Orissa 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 Orissa 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 prescribed procedure and thereby extinguishing the employee’s right of defending himself against the charge of misconduct or negligence. Pre mature retirement can only be ordered where it is obvious that retention of the employee in service will not be in public interest. 10. It will not be in public interest to retain an employee in service if- (a) he is clearly lacking in integrity, or Page 12 of 39 // 13 // (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. 4.2. It is contended that Petitioner while continuing in the Corporation, since he was trapped in a Vigilance case vide Bhubaneswar Vigilance P.S. Case No.34 dt.10.11.2021 and he remained in custody on being forwarded, Petitioner vide order dt.11.11.2021 under Annexure-A/2 was initially placed under suspension. It is contended that because of such arrest and remand to custody in the Vigilance case, in terms of the provisions contained under Para-6 r/w Para-10 of the Instruction dt.24.09.2019, Petitioner’s case was referred to the Review Committee and the Review Committee in its proceeding dt.13.11.2021 under Annexure-B/2 while holding continuance of the Petitioner not in public interest, recommended to give pre-mature retirement to the Petitioner. The Committee also found that Petitioner lacks integrity and efficiency as required to discharge his official duties. The Committee also took into Page 13 of 39 // 14 // consideration various acts of omission and commission of the Petitioner starting from his initial engagement till the Committee took such a decision in its proceeding dt.13.11.2021. Learned Sr. Counsel accordingly contended that taking into account the conduct of the Petitioner all through and his implication in the Vigilance case, where the Petitioner was remanded to custody, the Review Committee rightly took the decision while making recommendation to give pre-mature retirement to the Petitioner. 4.3. It is contended that in terms of the Circular issued by the G.A Department on 24.09.2019 under Annexure- 4, an Officer with doubtful integrity and inefficiency, is required to be given pre-mature retirement in public interest after having completed 30 years of qualifying service or attaining the age of 50 years and/or 55 years. It is accordingly contended that no illegality or irregularity can be found with the recommendation made under Annexure-B/2 so acted upon by Opp. Party No.2 with issuance of the impugned order dt.18.11.2021 under Annexure-3. Page 14 of 39 // 15 // 4.4. In support of his submission, reliance was placed to the decision in the case of Umed Bhai M. Patel so relied on by the learned Sr. Counsel appearing for the Petitioner as well as the following decisions: 1. Baikuntha Nath Das Vs. CDMO, Baripada 1992 (2) SCC 299. 2. S. Ramachandran Raju Vs. State of Orissa, 1994 (Suppl.) 3 SCC 424. 3. State of U.P and Others Vs. Bijay Kumar Jain, AIR 2002 SC 1348. 4. State of Orissa, Vs. Rama Chandra Das 1996 (5) SCC 331. 5. K. Kandaswamy V. Union of India, AIR 1996 SC 277. 4.5. In the case of Baikuntha Nath Das, Hon’ble Supreme Court in Paragraph-32 has held as under:- if any, submitted by 32. We may not be understood as saying either that adverse remarks need not be communicated or that the the representations, 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 communicated, the representation received in that behalf are pending consideration. On Page 15 of 39 // 16 // to that they are not communicated 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 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 indeed present, may be unlikely situation, indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguarded. Even with its well-known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. if 4.6. In the case of S. Ramachandra Raju, Hon’ble Supreme Court in Paragraph-9 has held as under:- 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 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 Page 16 of 39 // 17 // for to be compulsorily retired consideration by the Review Committee or menace in public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the the backdrop material Government 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 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 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 total evaluation of the entire record of service if the Government or the governmental authority forms the opinion that in the public interest the officer needs to be 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 the government officer in arbitrary compulsorily from service. interest. On individual retiring the 4.7. In the case of Vijay Kumar Jain, Hon’ble Supreme Court in Paragraph-16 has held as under:- 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 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory Page 17 of 39 // 18 //
Decision
retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by 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 from the State service, was duly Government and the said single adverse entry in itself was sufficient the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the Government while considering a case for compulsory retirement of a government servant. for his compulsory retirement to compulsorily retire considered by 4.8. In the case of Ram Chandra Das, Hon’ble Supreme Court in Paragraph-7 has held as under:- to compulsorily retire 7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient 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 retire a government servant consideration compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the to Page 18 of 39 // 19 // 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. 4.9. In the case of K. Kandaswamy, this Court in Paragraphs-8 to 10 has held as under:- 8. As seen in the light of documents and in the light of the specific permission sought by the appellant himself on the basis of the special report submitted by the State Government, the Government of India through its appropriate committee reached the conclusion that in view of the doubtful integrity it would not be desirable in the public interest to retain the appellant in service. Accordingly, they have compulsorily retired the appellant from service. Compulsory retirement does not amount to dismissal or removal from service within the meaning of Article 311 of the Constitution. It is neither punishment nor visits with loss of retiral benefits; nor does it cast stigma. The officer would be entitled to the pension that he has actually earned and there is no diminution of the accrued benefits. The object of Page 19 of 39 // 20 // compulsory retirement of the government employee is public interest. If the appropriate authority bona fide forms that opinion, the correctness thereof on merits cannot be challenged before courts, though it may be open to the aggrieved employee to impugn it. But the same may be challenged on the ground that requisite opinion is based on no evidence or has not been formed or the decision is based for collateral grounds or that it is an arbitrary decision. that in public to energise the employee requires retired is given power 9. While exercising the power under Rule 56(j) of the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the to be conclusion interest. The compulsorily Government its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest, court would not interfere with the order. In S. Ramachandra Raju v. State of Orissa [1994 Supp (3) SCC 424 : 1995 SCC (L&S) 74 : (1994) 28 ATC 443] , a Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, considered the entire case law and held that: (SCC pp. 430-31, para 9) “… 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 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. 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 Page 20 of 39 // 21 // the opinion that the government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, 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 officer.” 10. Higher the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty. Work culture and self-discipline augment his experience. Security of service gives fillip to accelerate assiduity to stay in line and measure up to the expected standards of efficiency by the government employee. Thereby, they ultimately aid to achieve excellence in public service. The security of service provided by Article 311 of the Constitution and the statutory rules made under proviso to Article 309 would thus ensure to remove deficiency and incompetence and augment efficiency of public rights — constitutional or administration. The statutory — carry with them corollary duty to maintain efficiency, integrity and dedication to public service. Unfortunately, the latter is being overlooked and neglected and former unduly gets the emphasised. The appropriate Government or the authority would, therefore, need to consider the totality of the facts and circumstances appropriate in each case and would form the opinion whether compulsory retirement of a government employee would be in the public interest. The opinion must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power. 4.10. Placing reliance on the stand taken in the counter affidavit and the implication of the Petitioner in the Vigilance Proceeding where assets to the tune of Rs.14,88,91,194.16p. was found disproportionate to the known source of income of the Petitioner, Petitioner taking into account the Guideline issued under Page 21 of 39 // 22 // Annexure-4 and the Guideline issued by the Hon’ble Apex Court in the case of Umed Bhai M Patel has been rightly given pre-mature retirement which requires no interference. 4.11. It is also contended that even though by the time the Writ Petition was filed challenging the impugned order dt.18.11.2021, Petitioner was already placed under suspension because of his implication in the Vigilance case vide order dt.11.11.2021 under Annexure-A/2, but the said fact was never brought to the notice of this Court and it amounts to suppression of material facts. Since the Petitioner has not approached this Court in disclosing his implication in the Vigilance Proceeding, it is to be held that Petitioner has not approached this Court with clean hands, and accordingly not eligible and entitled to get any relief as prayed for. 5. To the submission made by the learned Sr. Counsel appearing on behalf of the Corporation, Mr. B. Routray, learned Sr. Counsel appearing on behalf of the Page 22 of 39 // 23 // Petitioner made further submission basing on the stand taken in the rejoinder affidavit so filed. 5.1. While reiterating his submission that question of premature retirement can only be taken into consideration prior to 6(six) months of attaining 30 years of qualifying service or attaining the age of 50 years and/or 55 years and case of the Petitioner was taken up for such consideration while the Petitioner had already attained the age of 53 years, learned Sr. Counsel made further submission contending inter alia that, even though Petitioner was implicated in the Vigilance case and was placed under suspension, but by the time Petitioner was given pre-mature retirement vide the impugned order, neither final form had been submitted nor cognizance had been taken by the competent Court. Petitioner because of his mere implication, when was arrested, Petitioner was placed under suspension vide order dt.11.11.2021 under Annexure-A/2. It is accordingly contended that non- disclosure of the said fact while filing the Writ Petition, cannot be taken as suppression of material fact. Since Petitioner has not yet Page 23 of 39 // 24 // been charge-sheeted in the Vigilance Proceeding, it cannot be held that integrity of the Petitioner is doubtful. 5.2. It is also contended that the incidents taken into consideration by the Review Committee in its proceeding under Annexure-B/2 were never communicated to the Petitioner at any point of time. Not only that, on the face of such conduct of the Petitioner starting from 1990 which was taken into consideration by the Review Committee, Petitioner was extended with the benefit of promotion vide order dt.19.06.2007 under Annexure-2. 5.3. Therefore, in view of the decision in the case of Umed Bhai M. Patel as cited supra, after giving such benefit of promotion vide order dt.19.06.2007 under Annexure-2, all the omission and commission so taken into consideration by the Review Committee automatically stand lapsed and those conduct could not have been taken into consideration by the Review Committee, while recommending to give pre-mature retirement to the Petitioner. Page 24 of 39 // 25 // 5.4. It is contended that the incidents taken note of by the Review Committee starting from Sl. No.1 to 42 come within the period and prior to extension of the benefit of promotion vide order dt.19.04.2007. Therefore, in view of the guideline issued by the Hon’ble Apex Court in the case of Umed Bhai M. Patel, all his past conduct till 19.04.2007 goes into oblivion, in view of the benefit of promotion extended in favour of the Petitioner in the year 2007. 5.5. It is also contended that no such proceeding was ever initiated with due communication to the Petitioner, as has been indicated in Sl. No.45 of Annexure-B/2. It is accordingly contended that the Review Committee took the decision contrary to the provisions contained under Paragraphs-4 & 7 of the Instruction dtd.24.09.2019 under Annexure-4 and on the face of the promotion extended vide order dt.19.06.2007 under Annexure-2, there was material available to recommend the case of the Petitioner with issuance of the impugned order of pre- mature retirement vide the impugned order under Annexure-3. Page 25 of 39 // 26 // 5.6. In support of his submission, reliance was placed to the following decisions: 1. Brundaban Sahu Vs. The Orissa State of Road Transport Corporation Company Ltd. & Others, Second Appeal No.208 of 1989, decided on 16.08.2002. 2. Epari Basudev Rao, Vs. State of Odisha, 2014(II) ILR-, CUT 297. 3. Sanjaya Ku. Sahoo Vs. State of Odisha and Others, W.P.(C ) No.11654 of 2022, decided on 11.07.2025. 4. Ajit Kumar Mohapatra Vs. State of Odisha and Others, W.P.(C ) No.37932 of 2021, decided on 31.10.2023. 5.7. In the case of Brundaban Sahu, this Court in Paragraphs-10 to 12 has held as under:- 10. In the case of State of Gujarat v. MANU/SC/0140/2001: AIR 2001 SC 1109, the Apex Court again laid down 8 guidelines to be observed before an order of premature retirement is passed. The said guidelines are as follows: (i) When 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 the order of chop off dead-wood, but compulsory retirement can be passed after having due regard to the entire service record of the officer. Page 26 of 39 // 27 // (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 the confidential record can also be taker into consideration. in (vi) The order of compulsory retirement shall t avoid not be passed as a short cut departmental enquiry when such course is more desirable. (vii) If the officer is 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. 11. From the analysis of the guidelines given by the Apex Court in both the (vii) If the officer is 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. 11. From the analysis of the guidelines given by the Apex Court in both the cases referred to above it is clear that when 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 and such compulsory retirement shall not be done as a punitive pressure. The purpose of passing an order of premature retirement for better ministration and it is necessary to chop off dead-wood. Now coming to the past C.C.Rs, of the Plaintiff as quoted above. I do not find single adverse entry and on the other hand services rendered by the Plaintiff has been appreciated at some places. The only ground on which the order of premature retirement is based appears to be pendency of a vigilance enquiry which culminated in a final report in favour of the Plaintiff after the impugned order was passed. In connection with the above reference may be made to a decision of this Court in the case of Bhaskar Padhi v. The Orissa Road Transport Co. Ltd. and Ant reported in 7387 (1) is Page 27 of 39 // 28 // OLR 219. In the said case the delinquent officer was put under compulsory retirement while he was working as a Traffic Supervisor in the year 1982. One of the considerations for passing the order of compulsory retirement was pendency of a vigilance enquiry on certain allegations. This Court while dealing with the said question observed that if some allegation had been made and a case started by vigilance department was pending that could not be a ground to hold that the Petitioner lacked integrity. After all the matter had remained at the stage of adjudication and it had not been established that the Petitioner was dishonest. The Apex Court in the case of M.S. Bindra v. Union of India and Ors. reported in MANU/SC/0565/1998 AIR 1998 SC 3058 also dealt with the question in reference to "doubtful integrity". The Apex Court held as follows: The Appellant Director of Anti Evasion Wing had established in unblemished reputation and earned encomiums from all concerned for having conducted series of raids on business houses to unearth huge amount of concealed excise duty. He was dubbed as an officer of doubtful integrity and ordered to compulsory retire. Out of the three instances on which the Screening Committee relied to dub the officer as a case of "doubtful integrity" the first was his action against a business house. The fact is that it was the Appellant who headed the operation. A task which unearthed huge sum of concealed excise duty would normally evoke appreciation for his work. But what was noted against him in that affair was that he wilfully created lacuna in the confiscation proceedings for providing an escape route to the defaulter. One lacuna was that the confiscation order contained nearly 100 pages and the period was too short for preparing such an order. Another lacuna was that he imposed a huge penalty show cause notice. Normally it is an achievement and fine without issuing that an order of 100 pages was made during such a short period. It cannot be frowned at by inferring that he would have caused it to be written by somebody else. Similarly to say that be imposed penalty without notice, in order to held the defaulter is too fetched. The second instance was that investigation against some business houses was kept in abeyance by the Deputy Director allegedly at behest of Appellant. The minimum things expected of the screening committee was to ascertain from the Deputy Director, the circumstances under which instructions were issued Page 28 of 39 // 29 // investigation by him to keep the in abeyance. Attributing a sinister motive to the Appellant for what his deputy had done was seemingly unfair, without adopting the minimum precautions. The third instance was a statement by a owner of a business house that a third person has told them that Appellant was to be paid Rs. 10 lakhs to save them from the proceedings. Neither the Appellant or with the third person who had made it. truthfulness was checked with its Held, there was utter dearth of evidence for the Screening Committee to conclude that Appellant had doubtful integrity. Order by which premature compulsory retirement was imposed on the Appellant was liable to be set aside. 12. In view of the decision referred to above. I am of the opinion that there being no adverse entry in the C.C.Rs, of the Plaintiff and the Review Committee having recommended twice for his continuance in service, there was no reason for the Defendants to retire the Plaintiff prematurely. Mere pendency of a vigilance investigation was not enough to say that the Plaintiff had a doubtful integrity. On the other hand from the record it appears that the said vigilance enquiry ended in final report in favour of the Plaintiff. I therefore, agree with trial Court that the materials the Plaintiff’s to hold were not sufficient retirement was necessary in public interest. that 5.8. In the case of Epari Basudev Rao, this Court in Paragraphs-32 & 51 has held as under:- 32. Now, what is to be examined is the overall performance on the basis of entire service record to come to the conclusion as to whether the petitioner has become a dead wood and it is in public Interest to retire him compulsorily. Perusal of CCR extracted above does not show that at any point of time the petitioner was found inefficient to discharge his judicial duty and has become a dead wood. He is in almost all the time rated as an efficient judicial officer. In the year 1981 the remark is that he is industrious; in the year 1982 the remark is "he is industrious and cope with heavy work"; in 1983 Page 29 of 39 // 30 // remark is, "he is sincere and hard-working", but for the next six months, l.e., from 2.1.1984 to 11.6.1984 the remark is "Industrious but needs improvement to deal with heavy work. From 18.6.1984 to 3.12.1984 the remark was, he is industrious and cope with heavy work, for the year 1985 "he was industrious and giving better yardstick; for the years 1987 to 1996 the remarks was he is industrious and cope with heavy work. For the year 1998 to 2001 his quality of work has been rated as "good/very good". For the years 2004 and 2005, his quality of work is rated as "good". For the period the C.C.R. entry 7.11.2005 shows that he is very capable, competent, sincere, dedicated and hard working officer. He has very good and sound legal knowledge and outstanding performance. His general reputation and honesty is very good, as an outstanding officer. For to 23.3.2010 remark is that "he is a sincere worker". For the period 25.3.2010 to 26.06.2010 remark is "he is sincere, dedicated officer with full of zeal and drive to work and taking responsibility also". from 4.12.2009 to 31.12.2007, the period So far his knowledge of law and Judicial capacity, remarks for the period from 1981 to November, 1996 given is either good, fairly good, satisfactory, better, a capable judicial officer, a competent judicial officer. Remarks about his promptness in disposal of cases as given in the CCR during the period 1981 to November, 1996 in almost all the years is either prompt, very prompt, good except the year 1981 that he is improving gradually and in the year 1984 he "needs improvement". in promptness His pronouncing judgment/order/award the remarks during the year 1998 to October, 2005 is either good or to for prompt except 31.12.2001 he "needs improvement" the period 5.9.2001 With regard to his punctuality and regularity the remarks given for the period 1998 to June, 2005 is that he is punctual and regular. Page 30 of 39 // 31 // to the petitioner’s ability, With regard the remarks given for the period 4.12.2009 to 23.03.2010 is that "he has knowledge of rules and amendments etc." and for the period from 25.3.2010 to 26.6.2010 the remarks is "able and capable officer and very alert, noting and drafting is good, he is skilled and able to take decision and maintains cordial relationship with his colleagues and subordinate officers and employees". Xxx xxx xxx the 8.8.2008, 51. On petitioner was substantially appointed to the cadre of OSJS (Sr. Branch). On 19.8.2009 the petitioner was permitted to hold Selection Grade at the age of 55 years. It is relevant to note here that after 2009 the petitioner earned "very good" CCR for two years i.e. during the year 2009 and 2010 and "good" CCR for the part of the 2009. On 3.8.2010 the petitioner was granted Super Time Scale. Here it is pertinent to mention that although Rule 5 of Rules, 2007 requires the District Judges to put three years service in Selection Grade in order to be granted Super Time Scale, the petitioner considering his merit though he did not complete three years such promotion was given relaxing Rule 5 of Rules, 2007. As per Rules 4 and 5 the promotions are based on seniority-cum-merit. If the petitioner was found meritorious in 2009 and 2010, it is difficult on our part to accept the contention of Mr. Sahoo that the petitioner 2012 more became particularly on the face of the CCR, wherein he was rated "very good" during interregnum period, as per the observation of His Excellency in Note Sheets the Governor of Odisha (Annexure--9) non-meritorious the case of in in 5.9. In the case of Sanjaya Ku. Sahoo, this Court in Paragraphs-4 has held as under:- 4. As to punitive nature of impugned order and violation of principles of natural justice: Page 31 of 39 // 32 // (a) Learned State Counsel vehemently controverted the submission of petitioner’s counsel the is not only arbitrary but has impugned order abundant elements of punitive nature. Let us examine this: The order ex facie looks innocuous, is true. However, a deeper examination would reveal its true nature & effect, because of the following stand taken up by the opposite parties: that (i) Petitioner had thrown some caste aspersions on and used filthy words against a Night Watchman of the Court in Jharsuguda. (ii) Petitioner had shown unruly behaviour qua Bar Members, and that he was asking them to arrange for women & money for penning favourable orders, and that he was receiving cash & kind. At least, the above allegations are as wild as can be, is not disputable. Along with other the said allegations too entered the decision making process that eventually culminated into the impugned order of premature retirement, stands obviated. In fact, in the written submissions dated 24.06.2025 filed on behalf of opposite parties, the said allegations are specifically mentioned at pages 2 & 3. We repeat that these being wild allegations against a sitting Judicial Officer, ought to have been enquired into by constituting a disciplinary proceeding. (b) While adjudging the nature of orders of impugned kind, one can lift the veil to see the true picture. Reference to above allegations abound in the records furnished to us in the sealed cover. Even otherwise, these allegations are specifically pleaded by the opposite parties, as already mentioned above. A compulsory retirement is no substitute for holding a disciplinary inquiry and that such decisions cannot be taken as a punitive measure vide Umedbhai supra. Be that as it may, once an action is punitive then the question arises as to whether such an order could have been passed without giving an opportunity of hearing to the official. The answer has to be in the negative. Records do not reveal any reasons as to why no disciplinary inquiry was initiated nor was any opportunity afforded. We hasten to add that the requirement of hearing arises only because of imperative principles of natural justice, and not on account of requirement of a 3-month notice prescribed in Rule 38. It hardly needs to be stated that payment Page 32 of 39 // 33 // of three months emoluments dispenses with such a notice. Admittedly, they are paid in this case. 5.10. In the case of Ajit Kumar Mohapatra, this Court in Paragraphs-43 has held as under:- in the that that 43. In the aforesaid judgment of the Hon’ble Supreme Court in Umedbhai M Patel’s case (supra), the Hon’ble Supreme Court has also cautioned the termination of service on compulsory retirement shall not be used as a punitive measure coming under Article 311 of the Constitution. On a conspectus of the entire background facts as well as record, this Court is of the view that the authorities have deliberately resorted to a short-cut to avoid departmental enquiry and accordingly the review committee without any justifiable ground has recommended for compulsory retirement of the Petitioner. This Court is in complete agreement with the view expressed by the Hon’ble Supreme Court interest of better administration dead woods in the public services are required to be chopped off by resorting to compulsory retirement while reviewing their cases periodically. Such appraisal by the review committee is subject to a rider that there must be enough ground to terminate the service of a Government Servant by giving him compulsory retirement. In the present case, the review committee has cited two disciplinary proceedings and a vigilance case which have been discussed in detail hereinabove, moreover after conclusion of the Disciplinary Proceedings the Petitioner was given promotion. Therefore, applying clause-7 of para-11 of Umedbhai M Patel’s case (supra), once the Petitioner has been given promotion despite adverse entries made in the confidential record, an inference to be drawn in favour of the Petitioner not in favour of the department. On a overall analysis of the service career as is evident from the materials on record, this Court is convinced that the Departmental Authorities have taken resort to a short-cut to remove the Petitioner from service by suggesting compulsorily retirement initiating a Departmental Proceeding against the Petitioner. Therefore, the conduct of the Review Committee in recommending compulsory retirement fails to pass the test of law as laid down by the Hon’ble Supreme Court in Umedbhai instead of Page 33 of 39 // 34 // M Patel’s case (supra). Therefore, the decision taken by the review committee in the present case calls for interference by this Court. 5.11. Making all these submissions, learned Sr. Counsel appearing for the Petitioner vehemently contended that there was no ground to give pre-mature retirement to the Petitioner and such pre-mature retirement given vide the impugned order dt.18.11.2021 under Annexure-3 is not sustainable in the eye of law as it is not only illegal but also arbitrary and outcome of malafide. 6. Having heard learned counsel appearing for the parties and considering the submission made, this Court finds that Petitioner while continuing as an ad-hoc Junior Engineer, he was regularized in the cadre of Junior Engineer/Assistant Project Manager vide order dtd.23.09.1991. It is also found that Petitioner while so continuing as an Asst. Project Manager, he was promoted to the rank of Deputy Manager vide order dt.19.06.2007 under Annexure-2. As found, Petitioner while so continuing, he was implicated in Bhubaneswar Vigilance P.S. Case No.34 of 2021 and because of such implication in the Vigilance case with his arrest, Petitioner was Page 34 of 39 // 35 // placed under suspension vide order dt.11.11.2021 under Annexure-A/2. Thereafter, the Review Committee in its proceeding dt.13.11.2021 under Annexure-B/2, recommended to give pre-mature retirement to the Petitioner which was acted upon by Opp. Party No.2 vide the impugned order dt.18.11.2021 under Annexure-3. 6.1. It is not disputed that such a decision to give pre- mature retirement to the Petitioner was taken, taking into account the Instruction issued by the Government in the G.A and P.G Department on 24.09.2019 under Annexure- 4. As provided in the said Instruction, case of Group-B and Group-C Officers can be taken to give pre-mature retirement on their completing 30 years of qualifying service or attaining the age of 50 years and/or 55 years. 6.2. As provided under Para-7 of the said Instruction, such a review is required to be made 6(six) months before completion of the 30 years of qualifying service or attaining the age of 50 years and/or 55 years of age. It is not disputed that by the time the Review Committee recommended to give pre-mature retirement to the Page 35 of 39 // 36 // Petitioner in its Proceeding dt.13.11.2021 under Annexure-B/2, Petitioner had already attained the age of 53 years. Therefore, in view of the provisions contained under Para-4 & 7 of the Instruction and the decision in the case of Bernard Francis Joseph, Girish Sriram Jeneja & Checkmate Service Pvt. Ltd. as cited supra, it is the view of this Court that case of the Petitioner could not have been taken up by the Review Committee on 13.11.2021, as by that time Petitioner had already attained the age of 53 years. Therefore, the very basis to place the matter before the Review Committee on 13.11.2021 with the recommendation so made under Annexure-B/2 and the consequential action taken by Opp. Party No.2 in issuing the impugned order dtd.18.11.2021 under Annexure-3, as per the considered view of this Court stands vitiated. 6.3. It is also found that the Review Committee while taking the decision in its proceeding dt.13.11.2021, relied on various past conduct of the Petitioner starting from 28.03.1990 to 10.11.2021. But as found, on the face of such conduct from 1990 till 08.12.2006 (Sl. No.1 to Sl. Page 36 of 39 // 37 // No.42), Petitioner was given the benefit of promotion vide order dtd.19.06.2007 under Annexure-2. Therefore, in view of the parameters fixed by the Hon’ble Apex Court in the case of Umed Bhai M. Patel in para-11, such conduct of the Petitioner till 08.12.2006, could not have been taken into consideration while recommending for premature retirement of the Petitioner. 6.4. Even though Petitioner was implicated in the Vigilance Proceeding in Bhubaneswar Vigilance P.S. Case No.34 dtd.10.11.2021 and he was placed under suspension vide order dt.11.11.2021 under Annexure- A/2, but since Petitioner has yet been charge-sheeted, it cannot be held that Petitioner has committed the mis- appropriation which is the subject matter in the Vigilance case. 6.5. In view of the aforesaid analysis, it is the view of this court that the impugned order passed on 18.11.2021 under Annexure-3 in giving pre-mature retirement to the Petitioner is not sustainable in the eye of law. Page 37 of 39 // 38 // 6.6. Placing reliance on the decisions in the case of Brundaban Sahu, Epari Vasudeva Rao, Sanjaya Kumar Sahoo and Ajit Kumar Mohapatra and the decision in the case of Umed Bhai M. Patel as cited supra, it is the view of this Court that Petitioner has been illegally given pre-mature retirement vide the impugned order dt.18.11.2021 under Annexure-3, basing on the recommendation made by the Review Committee in its proceeding dt.13.11.2021 under Annexure-B/2. The decisions relied on by the learned Sr. Counsel appearing on behalf of Opp. Party No.2, as per the considered view of this Court, are not applicable to the facts of the present case. 6.7. In view of the aforesaid analysis, this Court is inclined to quash order dt.18.11.2021 so issued under Annexure-3 by Opp. Party No.2. While quashing order dt.18.11.2021, this Court directs Opp. Party No.2 to allow the Petitioner to continue under suspension, so passed vide order dt.11.11.2021 under Annexure-A/2. Page 38 of 39 // 39 // 6.8. However, quashing of the impugned order under Annexure-3 shall not debar Opp. Party-Corporation from taking appropriate action in accordance with law and with initiation of appropriate proceeding against the Petitioner for his alleged misconduct. Petitioner is also at liberty to make appropriate application seeking revocation of the order of suspension. 6.9. The Writ Petition accordingly stands disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 28th October, 2025./sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 30-Oct-2025 18:03:15 Page 39 of 39