Holding

The recommendation and consequent order of compulsory retirement are invalid as the adverse confidential reports were not communicated and contradictory reports were ignored; the matter must be reconsidered.

Summary

Brij Bihari Lal Agarwal, a District and Sessions Judge of Madhya Pradesh, was compulsorily retired under Fundamental Rule 56(3) of the Madhya Pradesh Shiksha Sevak (Adhivashikya Ayu) Sanshodhan Adhiniyam, 1976. He challenged the order, arguing that the High Court's recommendation was based on confidential reports that were never communicated to him and that the reports were contradictory. The Supreme Court held that the power to retire must be exercised with due regard to natural justice; adverse confidential reports must be communicated to the employee, and recent reports carry greater weight. Since the High Court relied on undisclosed and conflicting reports, its recommendation and the subsequent retirement order were invalid. The Court quashed the retirement order and directed the High Court to reconsider the matter afresh.

Issues considered

The validity of a compulsory retirement order under Fundamental Rule 56(3) when adverse confidential reports are not communicated to the employee.
Whether the High Court's recommendation for retirement, based on undisclosed and contradictory confidential reports, is legally sound.
The appropriate weight to be given to confidential reports, especially recent ones, in exercising the power of compulsory retirement.
Whether the exercise of the power of compulsory retirement was arbitrary or mala fide.

Legislation cited

Fundamental Rules (Union of India)s. Rule 56(j)
Madhya Pradesh Shiksha Sevak (Adhivashikya Ayu) Sanshodhan Adhiniyam, 1976s. Fundamental Rule 56(3)

Subjects

compulsory retirementconfidential reportsFundamental Rule 56natural justicepublic interestjudicial serviceadministrative lawprocedural fairness

Judgment

297

BRIJ BIHARI LAL AGARWAL A
v.
HIGH COURT OF MADHYA PRADESH & ORS.
November 26, 1980
[R. S. PATHAK AND 0. CHINNAPPA REDDY, JJ.] B

Compuh.ory retirenient-Fundamental Rule 56(3) of the Madhya Pradesh
Shashikya Sewak (Adhiwarshikya Ayu) Sanshodhnn Adhinlyam-Cotnpulsory
retirement n1ade on the confidential reports froni the early years of service and
also those not co1nmunicated at all to the employee, order of compulsory re-
tiren1ent is invalid-Value of confidential report, further explaint!d. C
- Allowing. the ~.ppeal by special leave, the Court

• HELD : (1) The recommendation by the High Court regarding its satis-
faction that the appellant should be compulsorily retired, and the consequent
order of the State Government, acting on that recommendation is invalid. The-
ccpy of an order-sheet dated 24th January, 1978 in Criminal Appeal No. 1021
of 1972 containing serious criticism of the manner in which the· apJ>ellant had D
disposed of the sessions case was not communicated to him at all, although
placed on the personal confidential file of the appellant. Further the two
confidential reports made by two successive Chief Justices in respect of the
appellant for OYerlapping periods ex facie do not agree with each other. One
report dated 24th February, 1978 pertains to the year ending February, 1978
and contains general observations favourable to the appellant or other dated
12th July, 1978 pertains to the period 4th November, 1977 to March, 1978- E
a good part of which period is covered by the first report-and the detailed
evaluation shows that the appellant was an undesirable officer. [300E-H, 301A-D]

( 2) The power to compulsory retire a Government servant is a po\.ver
which may be exercised in various contingencies. [299B-CJ

[Jnion of India v. Col. J. N. Sinha, [1971] 1 S.C.R. 791 and State of VIiar F
Pradesh v. Chandra Mohan Nigam [1978] 1 S.C.R. 521, referred to.

( 3) Vv'hcn consid_ering the question of compulsory retirement, while it is

. ,. no doubt de~ir<tblc to make an overall assessment of the: Government servant's
record, more than ordinary value should be attached to the confidential reports
pertaining to the years immediately preceding such consideration. It is possible
that a Government servant rr1ay possess a somewhat erratic record in the early G
years of ser\'ice, but with the passage of time he may have so greatly improved
that it v,rould be of advantage to continue him in service up to the statutory
age of superannuation. Whatever value the confidential reports of earlier years
may possess, those pertaining to the later years are not only of direct relevance
but also of utmost importance. [300C-E]

R. L. Butail v. Union of India, (1971] 2 S.C.R. 55; Gurdial Singli Fiji v. H

-
State of Punjab, [1979] 3 S.C.R. p. 518 and Union of India v. M. R. Reddy,
[19801 J S.C.R. p. 736, followed.
298 SUPREME COURT REPORTS [1981] 2 S.C.R.

A CIVIL APPELLATE JuRISDICT!ON : Civil Appeal No. 3272 of
1979.
Appeal by Special Leave from the Judgment and Order dated
12-10-1979 of the Madhya Pradesh High Court in Misc. Petition
No. 227 /79.
B R.K. Garg, Miss Manisha Gupta -and M.S. Gupta for the Appe-
llant.
K.K. Venugopal, Mrs. A.K. Verma and K.J. John for Respondent
No. 1. '
S.K. Gambhir for Respondent No. 2. )
c The Judgment of the Conrt was delivered by •
PATHAK, J..-This appeal by special leave 1s directed agamst
the judgment of the High Court of Madhya Pradesh upholding an
order compulsorily retiring the appellant from the post of District
and Sessions Judge.
•
D
The appellant, a member of the judicial service of Madhya Pmdesh,
was promoted to the post of District and Sessions Judge in April,
1969. On 6th October, 1977 an order was made appointing him to •
a Selection Grnde post. He was thereafter appointed temporarily as
Presiding Judge, State Transport Appellate Tribunal, Madhya Pra-
E
desh, Gwalior. On 28th September, 1979 the State Government
made an order under Fundameni'al Rule 56(3) of the M.P. Shashkiya
Scwak (Adhiwarshika Ayu) Sanshodhan Adhiniyam, 1976 purpor-
ting to retire the appellant in the public interest.

The appellant filed a writ petition in the High Court of Madhya
F Pradesh -against the retirement order, but the writ petition was dis-
missed by the High Court on 12th October, 1979. Before the High
Court the appellant did not dispute that there was power to compul-
sorily retire him under Fundamental Rule 56(3) but he contended
that there was no material before the High Court to lead to the con-
G clusion that his retirement would be in the public interest and he des-
cribed the order as mala fide and arbitrary. The High Court noted
that the petitioner had attained the age of 55 years and held that his
retirement was in accordance with the terms and conditions of service
and in consonance with Fundamental Rule 56, and rejected the con-
tention that the impugned order was mala fide or arbitrary.
H The appellant contends that the High Court ms not justified in ..
relying on adverse confidential reports which had not been communicated
to 11lm and respecting which, therefore, he had had no opportnnity to
BRIJ BIHARI v. HIGH COURT (Pathak, J.) 299

make his representation. Now the counter-affidavit filed on behalf A
of the High Court shows that at the time of deciding whether the
appellant should be compulsorily retired the High Court took into
account the confidential reports of the petitioner from the year he
entered service. It appears further from the counter-affidavit that some
only of the confidential reports were communicated to the appellant,
the last being for the period ending 31st March, 1966. It does not B
appear that subsequent confidential reports containing adverse entries
were communicated to the appellant.
The power to compulsorily retire a Government servant is a power
which may be exercised in various contingencies. Considering a com-
parable provision, Rule 56(j) of the Fundamental Rules in Union of C
Tndia v. Col. J. N. Sinha(•) this Court observed:
"Various considerations may weigh with the appropriate
authority while exercising the power conferred under the rule.
In some cases, the government may feel that a particular
post may be more usefully held in public interest by an D
officer more competent than the one who is holding. It may
be that the officer who is holding the post is not inefficient

- but the appropriate authority may prefer to have a more
etlicient officer. It may further be that in certain key posts
public interest may require that a person of undoubted ability
and integrity should be there. There is no denying the fact E
that in all organisations and more so in government orga-
nisations, there is good deal of dead wood. It is in public
interest to chop off the same. Fundamental Rules 56(j)
holds the balance between the rights of the individual govern-
ment servant and the interests of the public. While a mini-
mum service is guaranteed to the government servant, the F
government is given power to eliergis~ its machinery and
make it more efficient by compulsorily retiring those who in its
opinion should not be there in public interest."
Jn Stale of Uttar Ptudesh v. Chandra Mohl!ll Nigam(') the Court
said:
G
"Compulsory retirement nndcr rule 16(3) is a salutary
safeguard in the armoury of the Government for mainte-
nance of the services in trim and fitness. Rule 16(3) is a
constant reminder to the slacker, the sluggish and the ineffic
cicnt, not to speak of those who may bg dishonest or un-

• • scrupulous by reputation, beyond redemption. At a reason-
(1) (t971] t S.C.R. 791.
(2) [1978] I S.C.R. 511
H
300 SUPREME COURT REPORTS [1981] 2 S.C.R.

A able point of service a stage is reached when the Government
reserves its undoubted right to have a second look at the
officers whether their retention in employment would be use-
ful in the public interest. That is the role of rule 16(3).
Rule 16(3), with the instructions, is a warning poster for
every Government servant to conduct himself properly,
B diligently and efficiently throughout his service career."
The circumstances in which it is necessary to commnnicate ad-
verse entries made in confidential reports to the Government servant
concerned have been considered by this Conrt in R. L. Butail v.
Union of India( I) in Gurdial Singh Fijji v. State of Punjab(') and more
recently in Union of India v. M. E. Reddy('). What we would
like to add is that when considering the question of compulsory retire-
ment, while it is no donbt desirable to make an overall assessment of
the Government servant's recprd, more than ordinary value should be
attached to the confidential reports pertaining to the years immediately
preceding such consideration. It is po"Ssible that a Government servant
D may possess a somewhat erratic record in the early years of service,
but with the passage of time he may have so greatly improved that it
would be of advantage to continue him in service up to the statutory
age of superannuation. Whatever value the confidential reports of
earlier years may possess, those pertaining to the later years are not
only of direct relevance but als_o of utmost importance.
E
The High Court c.onsidered several confidential reports, and on
the impression gathered from them it concluded that the appellant
should be compulsorily retired. The record, however, includes a copy
of an order-sheet dated 24th January, 1978 in Criminal Appeal No.
1012 of 1972 Bipata v. State of Madhya Pradesh. The order-sheet
contains an order in which while disposing of a criminal appeal a
Division Bench of the High Conrt has recorded serious criticism of
the manner in which the appellant had disposed of the sessions case.
It does not appear that a copy of the remarks made in the order-
sheet, although placed on the perso'nal confidential file of the appel-
lant, was ever communicated to him.
[G
The record also discloses that two confidential reports were made
by two successive Chief Justices in respect of the appellant for over-
lapping periods. One report dated 24th February, 1978 pertains to
the year ending February, 1978 and contains general observations
favourable to the appellant. The other dated 12th July. 1978 pertains
B (I) [1971] 2 S.C.R.55.
•
(2) [1979) 3 S.C.R. 518
r(J) [1980] 1 S.C.R. 736.
(
BRIJ BIHARI v. HIGH COURT (Pathak,!.) 301

to the period 4th November, 1977 to March, 1978-a good part of
which period is covered by the first report-and the detailed evalua-
tion shows that the appellant was an undesirable officer. The two
reports ex facie do not agree with each other. This appears to have
escaped the attention of the High Court when it considered the ques-
tion whether the appellant should be compulsorily retired.
In the circumstances, it seems to us that the recommendation by
the High Court recording its satisfaction that the appellant should be
compulsorily retired, and the consequent order of the State Govern-
ment acting on that recommendation, must be regarded as invalid. It
will now be for the High Court to consider the c~s·e again and take a
fresh decision on the question whether it should recommend the com- c
pulsory retirement of the appellant, and for the State Government to
act on that recommendation if it is made.
We consider it unneces,sary to consider the further submission of
the appellant that his compulsory retirement was not accompanied by
payment of salary for the statutory period of three months. D·
In the result, the appeal is allowed, the order dated 20th Septem-
ber, 1979 made by the State Government compulsorily retiring the
appellant from service, and the recommendation of the High Court on
which the order is based, are quashed. It is open to the High Court
and the State Government to consider the matter afresh. There is no E
order as to costs.

S.R. Appeal allowed.

,

•