Supreme Court of India
CAPTAIN PRAMOD KUMAR BAJAJversusUNION OF INDIA AND ANOTHER
- Citation
- 2023 INSC 204
- Decided
- 3 March 2023
- Disposal
- Appeal(s) allowed
- Bench
- A S BOPANNA
Holding
The order of compulsory retirement of Captain Pramod Kumar Bajaj was arbitrary, punitive and not in public interest, and is therefore quashed and set aside.
Summary
Captain Pramod Kumar Bajaj, a senior Income Tax officer, was selected for appointment as a Member of the Income Tax Appellate Tribunal (ITAT) but his appointment never materialised due to the respondents withholding his vigilance clearance and placing his name on a suspect list. Despite multiple favourable orders from the Central Administrative Tribunal and the Allahabad High Court directing the government to forward his name for appointment, the respondents instead initiated disciplinary proceedings and, three months before his scheduled superannuation, compulsorily retired him under Fundamental Rule 56(j). The appellant challenged the retirement, arguing that his service record was impeccable, the complaints against him were largely closed, and the retirement was punitive and not in public interest. The Supreme Court examined the service records, the status of complaints, and the procedural history, finding no material justification for the retirement and concluding that the order was arbitrary, punitive, and failed the public‑interest test. Consequently, the Court quashed the retirement order and allowed the appeal.
Issues considered
- The validity of the compulsory retirement order under Fundamental Rule 56(j) – whether it was bona fide, in public interest, or punitive.
- Whether the respondents complied with the Tribunal and High Court orders to forward the appellant's name for ITAT appointment and to provide vigilance clearance.
- Whether the pending complaints and disciplinary proceedings justified the invocation of FR 56(j).
- Whether the retirement order amounts to a punitive action attracting Article 311 protection.
- Whether the respondents acted with bias or malafide, violating principles of natural justice.
Subjects
service lawcompulsory retirementFundamental Rule 56(j)public interestdisciplinary proceedingsbiaspunitive retirementadministrative lawITAT appointmentvigilance clearance
Judgment
30 [2023]
SUPREME COURT 2 S.C.R. 30
REPORTS [2023] 2 S.C.R.
A CAPTAIN PRAMOD KUMAR BAJAJ
v.
UNION OF INDIA AND ANOTHER
(Civil Appeal No. 6161 of 2022)
B MARCH 03, 2023
[A. S. BOPANNA AND HIMA KOHLI, JJ.]
Service Law: Compulsory retirement – Quashing of, when –
Appellant selected and empanelled for appointment as a Member
of ITAT by the Selection Committee – However, his appointment did
C
not mature – Respondent withheld his appointment on various counts,
however, tribunal and all superior courts directed the respondents
forward the name of the appellant to the appropriate Authority for
selection/appointment to the post of Member, ITAT – Respondents
did not comply with the orders and in the meantime initiated
D disciplinary proceedings against the appellant which never reached
to its logical conclusion – Instead, the appellant was compulsorily
retired three months short of the date of his superannuation –
Challenged to, however both the tribunal and the High Court
dismissed the same – On appeal, held: Service record of the appellant
is impeccable – Complaints made against him are either closed or
E
has been settled, and this was well within the knowledge of the
respondents – Nothing placed on record to show a sudden decline
in the work conduct of the appellant so as to have compulsory retire
him – It is not shown what transpired the respondents to resort to
FR 56(j) and invoke public interest doctrine to compulsorily retire
F him with just three months left for his service – Order of retirement
is punitive in nature and was passed to short circuit the disciplinary
proceedings – It failed to satisfy the underlying test of serving the
interest of the public – Thus, the order of compulsory set aside –
Fundamental Rules – r.56(j).
G Allowing the appeal, the Court
HELD: 1.1 As per the material placed on record, the
APARs of the appellant reflect that over the past several years,
his integrity was being regularly assessed as “Beyond doubt”
and this remained the position till as late as 31st July, 2019, when
H his work performance was assessed for the period from 1st April,
30
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 31
AND ANOTHER
2018 to 31st March, 2019 and found to be upto the mark. In his A
APARs for the past one decade, till the period just prior to the
order of his premature retirement, the respondents were
consistently grading the appellant as “Outstanding”. No adverse
entries were made by his superiors in the APARs of the appellant
insofar as his work performance was concerned. No aspersion
B
was cast either on his conduct or character during all this period.
As per the service records, his efficiency and integrity remained
unimpeachable throughout his career. The inference drawn from
the above is that the appellant’s service record being impeccable
could not have been a factor that went against him for the
respondents to have compulsorily retired him. [Para 26][48-C- C
E]
1.2 The respondents have referred to nine complaints
against the appellant, stated to be pending in the Vigilance
Directorate. Out of the said nine complaints, except one all have
been closed or rejected. As regards, the complaint at Sr. No.9, D
which was made by the appellant’s ex-wife alleging bigamy, moral
turpitude etc. against the appellant. In the remarks column, the
respondents stated that necessary information in respect of the
said court proceedings between the parties was sought by the
department. The appellant clarified that a decree of divorce was
granted to the parties by the concerned Court and a copy of the E
said order was duly supplied to the department against receipt
on 21st March, 2018. [Paras 27, 28][49-F; 52-F; 53-B-C]
1.3 In the teeth of the series of orders passed by the tribunal
and the High Court in favour of the appellant, the respondents
elected to withhold his vigilance clearance, thereby compelling F
the appellant to file contempt petitions against the concerned
officers for non-compliance of the orders passed. Both, the High
Court as well as the tribunal, issued notices for wilful disobedience
of the orders passed. In the proceedings before the High Court,
on the one hand, the respondents kept seeking adjournments on G
the ground that steps were being taken to forward the appellant’s
name to the ACC for being processed for his appointment as
Member, ITAT, till as late as on 31st May 2019 on which date
they were granted one last opportunity for making compliances
H
32 SUPREME COURT REPORTS [2023] 2 S.C.R.
A and at their request, the matter was adjourned to 9th July 2019
and on the other hand, the respondents slapped the appellant
with a Charge Memorandum dated 17th June 2019 and suspended
him on 1st July, 2019. [Para 36][56-C-E]
1.4 Having regard to the fact that the respondents did not
B take the disciplinary proceedings initiated against the appellant
to its logical conclusion and instead issued an order compulsorily
retiring him, it is not expedient to delve into the allegations
levelled in the said Charge Memorandum; all the same, the
Charge Memorandum have gone through cursorily that mentions
three charges – one alleging that the appellant failed to seek
C permission from the department to purchase a flat in relation to
the matrimonial dispute between him and his estranged wife and
the second one is in respect of the allegation of bigamy levelled
against him by his estranged wife. It is already noted that during
the course of the matrimonial dispute, the parties had arrived at
D a settlement and the flat that was agreed to be given to the wife,
was not purchased by the appellant but by his brother, which fact
is amply borne out from the documents placed on record. The
matrimonial dispute between the parties stood closed on a decree
of divorce being granted on the basis of mutual consent. That the
respondents were also cognizant of the said fact, is apparent from
E the contents of O.M. dated 15th July, 2015 which records inter
alia that the said allegations levelled by the wife had not been
established. The third charge was relating to the appellant having
attended Court hearings without sanctioned leave. However, the
disciplinary proceedings initiated against the appellant on 17th
F July, 2019 were abandoned by the respondents on the order of
compulsory retirement being passed against him in less than
three months reckoned therefrom, on 27th September, 2019.
[Para 37][56-E-H; 57-A-B]
1.5 There is no doubt that rule of law is the very foundation
G of a well-governed society and the presence of bias or malafides
in the system of governance would strike at the very foundation
of the values of a regulated social order. Any exercise of power
that exceeds the parameters prescribed by law or is motivated
on account of extraneous or irrelevant factors or is driven by
H
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 33
AND ANOTHER
malicious intent or is on the face of it, so patently arbitrary that it A
cannot withstand judicial scrutiny, must be struck down. In the
instant case, though the appellant levelled allegations of
institutional bias and prejudice against the respondents,
particularly against the then Chairman, CBDT who was a Member
of the Review Committee, the said officer was not joined by the
B
appellant as a party before the tribunal or the High Court, for
him to have had an opportunity to clarify his stand by filing a
counter affidavit. Hence, these allegations cannot be looked into
by this Court. [Para 38][57-C-D, E, F]
1.6 Though FR 56(j) contemplates that the respondents
have an absolute right to retire a government servant in public C
interest and such an order could have been passed against the
appellant any time after he had attained the age of fifty years, the
respondents did not take any such decision till the very fag end
of his career. The impugned order of compulsory retirement was
passed on 27.09.2019 whereas the appellant was to superannuate D
in ordinary course in January, 2020. There appears an apparent
contradiction in the approach of the respondents who had till as
late as in July, 2019 continued to grade the appellant as
‘Outstanding’ and had assessed his integrity as ‘Beyond doubt’.
But in less than three months reckoned therefrom, the
respondents had turned turtle to arrive at the conclusion that he E
deserved to be compulsorily retired. If the appellant was worthy
of being continued in service for little short of a decade after he
had attained the age of 50 years and of being granted an overall
grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been
shown as to what had transpired thereafter that made the F
respondents resort to FR 56(j) and invoke the public interest
doctrine to compulsorily retire him with just three months of
service left for his retirement, in routine. In such a case, the
order of compulsory retirement in the given facts and
circumstances of the case cannot be sustained. The said order is
punitive in nature and was passed to short-circuit the disciplinary G
proceedings pending against the appellant and ensure his
immediate removal. The impugned order passed by the
respondents does not pass muster as it fails to satisfy the
underlying test of serving the interest of the public. The impugned
H
34 SUPREME COURT REPORTS [2023] 2 S.C.R.
A judgment and the order compulsorily retiring the appellant is
quashed and set aside. [Paras 39, 40][58-A-F]
Allahabad Bank Officers’ Association and Another v.
Allahabad Bank and Others (1996) 4 SCC 504 : [1996]
2 Suppl. SCR 172; Union of India v. Col. J.N. Sinha
B and Another (1970) 2 SCC 458 : [1971] 1 SCR 791;
Swami Saran Saxena v. State of U.P. (1980) 1 SCC 12
: [1980] 1 SCR 923; Baldev Raj Chadha v. Union of
India (1980) 4 SCC 321 : [1981] 1 SCR 430; Ram Ekbal
Sharma v. State of Bihar and Another (1990) 3 SCC
504 : [1990] 2 SCR 679; State of Orissa and Others v.
C Ram Chandra Das (1996) 5 SCC 331 : [1996] 2 Suppl.
SCR 559; State of Gujarat and Another vs. Suryakant
Chunilal Shah (1999) 1 SCC 529 : [1998] 3 Suppl.
SCR 293; State of Gujarat v. Umedbhai M. Patel (2001)
3 SCC 314 : [2001] 2 SCR 170; Nand Kumar Verma v.
D State of Jharkhand and Others (2012) 3 SCC 580 :
[2012] 1 SCR 504; Nisha Priya Bhatia v. Union of India
(2020) 13 SCC 56 : [2020] 10 SCR 596; State of
Bombay v. Saubhag Chand M. Doshi AIR 1957 SC 892
: [1958] SCR 571; S. Pratap Singh v. State of Punjab
AIR 1964 SC 72 : [1964] SCR 733; Jaichand Lal Sethia
E v. State of W. B AIR 1967 SC 483 : [1966] Suppl. SCR
464; J. D. Srivastava v. State of M.P And Others (1984)
2 SCC 8 : [1984] 2 SCR 466; Express Newspapers Pvt.
Ltd. And Others v. Union of India and Others (1986) 1
SCC 133 : [1985] 3 Suppl. SCR 382 – referred to.
F Case Law Reference
[1996] 2 Suppl. SCR 172 referred to Para 16
[1971] 1 SCR 791 referred to Para 17
[1980] 1 SCR 923 referred to Para 18
G
[1981] 1 SCR 430 referred to Para 19
[1990] 2 SCR 679 referred to Para 20
[1996] 2 Suppl. SCR 559 referred to Para 21
H
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 35
AND ANOTHER
[1998] 3 Suppl. SCR 293 referred to Para 22 A
[2001] 2 SCR 170 referred to Para 23
[2012] 1 SCR 504 referred to Para 24
[2020] 10 SCR 596 referred to Para 25
[1958] SCR 571 referred to Para 25 B
[1964] SCR 733 referred to Para 38
[1966] Suppl. SCR 464 referred to Para 38
[1984] 2 SCR 466 referred to Para 38
C
[1985] 3 Suppl. SCR 382 referred to Para 38
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6161
of 2022.
From the Judgment and Order dated 31.05.2022 of the High Court
of Judicature at Allahabad, Lucknow Bench in WA No. 24856 of 2020. D
Appellant-in-person
Sanjay Jain, A.S.G., Zoheb Hussain, Padmesh Mishra, Apoorv
Kurup, Sunita Sharma, Rajat Nair, Ms. Tanya Aggarwal, Shivam Shukla,
Raj Bahadur Yadav, Advs. for the Respondents. E
The Judgment of the Court was delivered by
HIMA KOHLI, J.
1. The appellant is aggrieved by the judgment dated 31st May,
2022 passed by the High Court of Judicature at Allahabad, Lucknow F
Bench upholding the order dated 9th December, 2020 passed by the
Central Administrative Tribunal1, Principal Bench, that had turned down
the challenge laid by him to an order dated 27th September, 2019, passed
by the Central Board of Direct Taxes, Department of Revenue, Ministry
of Finance, Government of India communicating the decision of the
G
President of India to compulsorily retire him, in exercise of powers
conferred under Rule 56(j) of the Fundamental Rules2.
1
For short ‘Tribunal’
2
For short ‘FR 56(j)’
H
36 SUPREME COURT REPORTS [2023] 2 S.C.R.
A FACTS OF THE CASE
2. The present case has a chequered history with multiple rounds
of litigations spewed between the appellant and the respondents. To
have an overview of the matter, we may briefly refer to some facts
relevant for deciding the present Appeal. The appellant was a Permanent
B Commissioned Officer in the Indian Army, inducted in the year 1980.
Due to a physical disability suffered by him in the course of Army
operations, he was demobilized and released from service. In the year
1989, the appellant qualified the Civil Services Examination. He was
appointed as an Officer and allocated to the 1990 Batch in the Indian
Revenue Service. In due course of his service, the appellant was promoted
C to higher posts and on 12th January, 2012, he was promoted to the rank
of Commissioner, in the Department of Income Tax. On 7th July, 2014,
the appellant was selected and empanelled for appointment as a Member
of the Income Tax Appellate Tribunal3 by the Selection Committee
headed by a sitting Judge of the Supreme Court nominated by the then
D Chief Justice of India. On 15th July, 2015, the respondents forwarded
the name of the appellant to the Appointments Committee of the Cabinet4
along with his vigilance clearance for appointment as Member
(Accountant), ITAT. In the year 2016, the appellant was empanelled by
the ACC for appointment as Joint Secretary to the Government of India.
From the year 2017 onwards, started a saga of litigations between the
E appellant and the respondents, as a result whereof, his appointment as a
Member of the ITAT, did not mature.
3. The first hurdle he faced was an adverse Intelligence Bureau 5
report. This made the appellant approach the Tribunal for relief. Vide
judgment dated 10th February, 2017, the Tribunal disposed of the Original
F Application filed by the appellant with a direction issued to the respondents
to resubmit his adverse IB Report to the Selection Committee for it to
take a final view on his appointment to the subject post. The said judgment
passed by the Tribunal was assailed by the respondents in a writ petition
before the High Court, which came to be dismissed on 30th May, 2017,
G with further directions issued to make the entire process of reconsideration
of the appellant’s candidature by the Selection Committee, timebound.
The Petition for Special Leave to Appeal preferred by the respondent –
3
For short ‘ITAT’
4
For short ‘ACC’
5
H For short ‘IB’
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 37
AND ANOTHER [HIMA KOHLI, J.]
Union of India against the order dated 30th May, 2017 passed by the A
High Court, was also dismissed by this Court on 15th November, 2017.
4. On 29th November, 2017, a vigilance inspection was carried out
in the office of the appellant. Based on the said vigilance inspection, the
respondents issued a show cause notice to him on 31st January, 2018.
Ten days before that, on 21st January, 2018, the vigilance clearance earlier B
granted in favour of the appellant, was withheld by the respondents.
Both the aforesaid orders were assailed by the appellant by filing separate
Original Applications before the Tribunal. Initially, an interim order was
passed by the Tribunal observing that the show cause notice issued by
the respondents would not impede the appellant’s consideration for
appointment to the post of Member, ITAT. On 4th May 2018, another C
interim order was passed by the Tribunal, observing that withholding of
the vigilance clearance of the appellant will not come in his way for
appointment to the subject post. In the interregnum, on 11th April, 2018,
the appellant was placed in the “Agreed List”, which is a list of Gazetted
Officers of suspect integrity prepared by the Department. Pertinently, a D
second Petition for Special Leave to Appeal filed by the respondents
against the interim relief granted by the Tribunal in favour of the appellant
and duly confirmed by the High Court in WP (C) No. 22179-22187 of
2018 on 06.08.2018, was dismissed by this Court on 29.03.2019.
5. Aggrieved by the aforesaid action taken by the respondents of E
placing his name in the Suspect List, the appellant approached the Tribunal
for a third time and in the said proceedings, an interim order was granted
in his favour. Finally, vide common judgment dated 6th March, 2019, the
Tribunal allowed two Original Applications filed by the appellant [O.A.
No.137 of 2018 and O.A. No.279 of 2018], quashing inclusion of his
name in the “Agreed List” and the consequential proceedings as also F
the decision taken by the respondents to deny him vigilance clearance.
The Tribunal also directed the respondents to forward the name of the
appellant to the appropriate Authority for selection/appointment to the
post of Member, ITAT. However, the respondents did not comply with
the said order and filed a writ petition before the High Court. Admittedly, G
no interim order was passed by the High Court staying the operation of
the judgment dated 06th March, 2019, passed by the Tribunal.
6. Aggrieved by the non-compliance of the order dated 30th May,
2017, passed by the High Court in his favour, the appellant filed a contempt
petition before the High Court. Vide order dated 13th August, 2019, the H
38 SUPREME COURT REPORTS [2023] 2 S.C.R.
A High Court permitted impleadment of the then Chairman of the Central
Board of Direct Taxes6 in the contempt petition and issued him a notice
to show cause as to why he should not be punished for wilful disobedience
of the order dated 30th May, 2017, passed in the writ proceedings.
7. Similar notices were issued by the Tribunal on two contempt
B petitions filed by the appellant against the respondents for non-compliance
of the orders dated 30th May, 2017 and 6th March, 2019. In the meantime,
the respondents initiated disciplinary proceedings against the appellant
by issuing him a chargesheet on 17 th June, 2019. In July 2019, a
Departmental Promotion Committee7 was convened by the Union Public
Service Commission8 to consider promoting the appellant to the post of
C Principal Commissioner but the decision taken qua him, was placed in
the sealed cover due to the pending disciplinary proceedings. The appellant
had filed a writ petition before the High Court against the charge
memorandum issued to him wherein the High Court granted stay orders
in his favour. While the said proceedings were still pending, the
D respondents proceeded to compulsorily retire the appellant on 27th
September, 2019, which was about three months short of the date of his
superannuation in January 2020. The list of promotions made to the post
of Principal Commissioner was declared on 11.11.2019, by which date
the appellant was no longer in the reckoning.
E 8. It may be noted here that the mechanism in place within the
department for arriving at a conclusion as to who amongst the Group-A
Officers in the CBDT deserve to be prematurely retired, starts with an
assessment to be conducted by the Internal Committee that identifies
and recommends the names of the officers and places it before the
Review Committee. The next stage is before the Review Committee
F that includes the Chairman, CBDT and the Revenue Secretary as
Members. If satisfied by the records and comments forwarded by the
Internal Committee that the pre-mature retirement of a Group-A Officer
is desirable in public interest, the Review Committee makes a
recommendation to the Appointing Authority in this regard. The
G Appointing Authority is then required to examine the recommendations
of the Review Committee and if satisfied, pass an order of pre-mature
retirement of the concerned Officer. Once the Competent Authority
6
For short ‘CBDT’
7
For short ‘DPC’
8
H For short ‘UPSC’
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 39
AND ANOTHER [HIMA KOHLI, J.]
passes an order of pre-mature retirement under FR 56(j), the aggrieved A
Officer is entitled to submit a representation to the Representation
Committee. As per the records, the appellant had submitted a
representation to the Representation Committee, which was turned down
on 2nd January 2020.
9. The appellant challenged the final order of compulsory B
retirement issued against the appellant on 27th September, 2019 and the
subsequent order dated 2nd January, 2020, passed by the Representation
Committee declining to interfere in the order of compulsory retirement,
before the Tribunal. The said petition was dismissed, vide judgment dated
9th December, 2020 and upheld by the High Court by the impugned
judgment dated 31st May, 2022. C
THREEFOLD CHALLENGE
10. A threefold challenge has been laid by the appellant to the
impugned judgment. Firstly, on the ground of serious prejudice caused to
him due to the active participation of the Additional Director General D
(Vigilance) as a Member of the Internal Committee when he had a bias
against the appellant and the participation of the then Chairman of the
CBDT in the meeting of the Review Committee, convened to examine
the recommendations of the Internal Committee for pre- maturely retiring
him, when he ought to have recused himself knowing that he was facing
three contempt notices, one issued by the High Court on 13th August, E
2019 [Contempt Petition No.2681/2017] and two notices issued by the
Tribunal [CCP No.15/2019 and CCP No.25/2019] for failing to forward
the appellant’s vigilance clearance required for processing his case for
appointment as Member, ITAT, to the Selection Committee. Secondly, it
has been argued that the impugned order of his pre-mature retirement is F
punitive in nature and has been passed solely to deprive him of an
opportunity to be appointed as Member ITAT, a post for which he was
selected by the Selection Committee headed by a sitting Judge of the
Supreme Court and his name was placed at Serial No.1 in the All India
Ranking, as long back as in the year 2014. This selection of the appellant
was reiterated by a subsequently constituted Selection Committee in the G
year 2018, but did not reach fruition due to persistent obstructions created
by the respondents, who withheld his vigilance clearance without a valid
reason and subsequently placed his name in the “Agreed List”, followed
by initiation of a disciplinary enquiry against him on baseless charges
which was not taken to its logical conclusion, as he was prematurely H
40 SUPREME COURT REPORTS [2023] 2 S.C.R.
A retired in September, 2019. Lastly, it was urged that the High Court has
completely overlooked the fact that all the Annual Performance
Assessment Reports9 of the appellant over the past 30 years were
blemishless. In fact, the appellant was graded as ‘Outstanding’ and his
integrity was assessed as ‘Beyond Doubt’ for the immediately preceding
10 years’ APARs, after he was promoted to the post of Commissioner,
B
Income Tax in the year 2012.
SUBMISSIONS MADE BY THE COUNSEL FOR THE
UNION OF INDIA
11. Refuting the allegations levelled by the appellant and defending
C the impugned judgment, Mr. Sanjay Jain, learned Additional Solicitor
General10 who appeared for the respondents – Union of India urged that
the impugned judgment is a well-reasoned one and does not deserve
interference; that the order of compulsory retirement was passed in the
case of the appellant after duly considering his entire service record;
that the material relied upon by the respondents for passing an order
D under FR 56(j), was carefully considered by the Tribunal before dismissing
the Original Application filed by the appellant, as meritless and that the
allegations of institutional malice and bias levelled by the appellant are
ill-founded. Learned ASG contended that unlike departmental enquiries,
the scope of an enquiry under FR 56(j) is fairly limited and the standard
E of adjudication is prima facie a subjective opinion as to the suitability of
an officer to continue in service, keeping in mind public interest. No
stigma can be attached to an employee who is compulsorily retired, as
compulsory retirement does not amount to dismissal or removal. The
appellant is still entitled to all retiral benefits and also entitled to be
considered for other appointments. It was stated that a chargesheet
F was pending against the appellant for major penalty proceedings which
had been unsuccessfully challenged by him before the Tribunal. Citing
several decisions of this Court on the limited scope of interference in an
order of compulsory retirement, it was submitted on behalf of the
respondents – Union of India that courts should ordinarily refrain from
G returning findings on merits of the allegations against the concerned
officer. Once an order of compulsory retirement has been passed bona
fide and without any extraneous motive, there is no justification for
interference.
9
For short ‘APAR’
10
H For short ‘ASG’
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 41
AND ANOTHER [HIMA KOHLI, J.]
ANALYSIS AND CASE LAWS RELATING TO A
COMPULORY RETIREMENT
12. We have given our thoughtful consideration to the arguments
advanced by learned counsel for the parties, perused the records and
the judgments cited by both sides.
13. The provision of Fundamental Rule 56(j) reads as under: B
“FR 56(j) :- The Appropriate Authority shall, if it is of the
opinion that it is in the public interest so to do, have the
absolute right to retire any Government servant by giving
him notice of not less than three months in writing or three
months’ pay and allowances in lieu of such notice :- C
(i) If he is, in Group ‘A’ or Group ‘B’ service or post in a
substantive, quasi- permanent or temporary capacity and
had entered Government service before attaining the age
of 35 years, after he has attained the age of 50 years;
D
(ii) In any other case after he has attained the age of 55
years.
14. As is apparent from a perusal of the aforesaid provision, it
takes in its fold two elements – the first one is the absolute right of the
Government to retire an employee and the second is the requirement of
E
meeting the condition of public interest for doing so. The provision also
provides for a prior notice of at least three months to the outgoing
employee and mandates that the said provision can be invoked to retire
a government servant only after he has attained the age of 55 years.
15. We are conscious of the fact that the scope of judicial review
F
in respect of an order of compulsory retirement from the service, is
fairly limited. The law relating to compulsory retirement has been the
subject matter of discussion in a number of cases where certain settled
legal principles have been laid down which are being elucidated
hereinbelow.
16. The object of compulsory retirement of a government servant G
was highlighted by this Court in Allahabad Bank Officers’ Association
and Another vs. Allahabad Bank and Others11 in the following
words:-
11
1996(4) SCC 504 H
42 SUPREME COURT REPORTS [2023] 2 S.C.R.
A “5. The power to compulsorily retire a government servant
is one of the facets of the doctrine of pleasure incorporated
in Article 310 of the Constitution. The object of compulsory
retirement is to weed out the deed wood in order to maintain
efficiency and initiative in the service and also to dispense
with the services of those whose integrity is doubtful so as
B
to preserve purity in the administration. Generally speaking,
Service Rules provide for compulsory retirement of a government
servant on his completing certain number of years of service or
attaining the prescribed age. His service record is reviewed at
that stage and a decision is taken whether he should be
C compulsorily retired or continued further in service. There is no
levelling of a charge or imputation requiring an explanation from
the government servant. While misconduct and inefficiency are
factors that enter into the account where the order is one of
dismissal or removal or of retirement, there is this difference that
while in the case of retirement they merely furnish the background
D
and the enquiry, if held – and there is no duty to hold an enquiry –
is only for the satisfaction of the authorities who have to take
action, in the case of dismissal or removal they form the very
basis on which the order is made, as pointed out by this Court in
Shyam Lal v. State of U.P. and State of Bombay v.
E Saubhagchand M. Doshi. Thus, by its very nature the power to
compulsorily retire a government servant is dismissal etc. for
misconduct. A government servant who is compulsorily retired
does not lose any part of the benefit that he has earned during
service. Thus, compulsory retirement differs both from dismissal
and removal as it involves no penal consequences.”
F
“………………
17. The above discussion of case-law makes it clear that if the
order of compulsory retirement casts a stigma on the Government
servant in the sense that it contains a statement casting aspersion
G on his conduct or character, then the court will treat that order as
an order of punishment, attracting provisions of Article 311(2) of
the Constitution. The reason is that as a charge or imputation is
made the condition for passing the order, the court would infer
therefrom that the real intention of the Government was to punish
the government servant on the basis of that charge or imputation
H
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 43
AND ANOTHER [HIMA KOHLI, J.]
and not to exercise the power of compulsory retirement. But mere A
reference to the rule, even if it mentions grounds for compulsory
retirement, cannot be regarded as sufficient for treating the order
of compulsory retirement as an order of punishment. In such a
case, the order can be said to have been passed in terms of the
rule and, therefore, a different intention cannot be inferred. So
B
also, if the statement in the order refers only to the assessment of
his work and does not at the same time cast an aspersion on the
conduct or character of the Government servant, then it will not
be proper to hold that the order of compulsory retirement is in
reality an order of punishment. Whether the statement in the order
is stigmatic or not will have to be judged by adopting the test of C
how a reasonable person would read or understand it.”
[emphasis added]
17. In Union of India v. Col. J.N. Sinha and Another12 it has
been observed that :
D
“Fundamental Rule 56(j) does not in terms require that any
opportunity should be given to the concerned government servant
to show cause against his compulsory retirement. It says that the
appropriate authority has the absolute right to retire a government
servant if it is of the opinion that it is in the public interest to do so.
If that authority bona fide forms that opinion the correctness of E
that opinion cannot be challenged before courts though it is open
to an aggrieved party to contend that the requisite opinion has not
been formed or the decision is based on collateral grounds or that
it is an arbitrary decision.”
18. On similar lines were the observations made by this Court in F
Swami Saran Saxena v. State of U.P.13 :-
“3. Several contentions have been raised in this appeal by the
appellant, who appears in person. In our judgment, one of them
suffices to dispose of the appeal. The contention which has found
favour with us is that on a perusal of the material on the record G
and having regard to the entries in the personal file and character
roll of the appellant, it is not possible reasonably to come to the
conclusion that the compulsory retirement of the appellant was
12
(1970) 2 SCC 458
13
(1980) 1 SCC 12
H
44 SUPREME COURT REPORTS [2023] 2 S.C.R.
A called for. This conclusion follows inevitably from the particular
circumstances, among others, that the appellant was found worthy
of being permitted to cross the second efficiency bar only a few
months before. Ordinarily, the court does not interfere with the
judgment of the relevant authority on the point whether it is in the
public interest to compulsorily retire a government servant. And
B
we would have been even more reluctant to reach the conclusion
we have, when the impugned order of compulsory retirement was
made on the recommendation of the High Court itself. But on the
material before us we are unable to reconcile the apparent
contradiction that although for the purpose of crossing the second
C efficiency bar the appellant was considered to have worked with
distinct ability and with integrity beyond question yet within a few
months thereafter he was found so unfit as to deserve compulsory
retirement. The entries in between in the records pertaining to the
appellant need to be examined and appraised in that context. There
is no evidence to show that suddenly there was such deterioration
D
in the quality of the appellant’s work or integrity that he deserved
to be compulsorily retired. For all these reasons, we are of opinion
that the order of compulsory retirement should be quashed. The
appellant will be deemed to have continued in service on the date
of the impugned order.
E 19. In Baldev Raj Chadha v. Union of India14, emphasizing
the fact that exercise of powers under Fundamental Rule 56(j) must be
bona fide and promote public interest, this Court observed that : -
“25. The whole purpose of Fundamental Rule 56(j) is to weed out
the worthless without the punitive extremes covered by Article
F 311 of the Constitution. But under the guise of ‘public interest’ if
unlimited discretion is regarded acceptable for making an order
of premature retirement, it will be the surest menace to public
interest and must fail for unreasonableness, arbitrariness and
disguised dismissal. The exercise of power must be bona fide
G and promote public interest.”
26. “An officer in continuous service for 14 years crossing the
efficiency bar and reaching the maximum salary in the scale and
with no adverse entries at least for five years immediately before
14
H (1980) 4 SCC 321
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 45
AND ANOTHER [HIMA KOHLI, J.]
the compulsory retirement cannot be compulsorily retired on the A
score that long years ago, his performance had been poor, although
his superiors had allowed him to cross the efficiency bar without
qualms.”
20. In Ram Ekbal Sharma v. State of Bihar and Another15 it
was observed that in order to find out whether an order of compulsory B
retirement is based on any misconduct of the government servant or the
said order has been made bona fide, without any oblique or extraneous
purpose, the veil can be lifted. Following are the pertinent observations
made in the said decision:
“32. On a consideration of the above decisions the legal C
position that now emerges is that even though the order of
compulsory retirement is couched in innocuous language
without making any imputations against the government
servant who is directed to be compulsorily retired from
service, the court, if challenged, in appropriate cases can
lift veil to find out whether the order is based on any D
misconduct of the government servant concerned or the
order has been made bona fide and not with any oblique or
extraneous purposes. Mere form of the order in such case
cannot deter the court from delving into the basis of the order if
the order in question is challenged by the concerned government E
servant as has been held by this Court in ‘Anoop Jaiswal case’.
This being the position the respondent-State cannot defend the
order of compulsory retirement of the appellant in the instant case
on the mere plea that the order has been made in accordance
with the provisions of Rule 74(b)(ii) of the Bihar Service Code
which prima facie does not make any imputation or does not cast F
any stigma on the service career of the appellant. But in view of
the clear and specific averments made by the respondent-State
that the impugned order has been made to compulsorily retire the
appellant from service under the aforesaid rule as the appellant
was found to have committed grave financial irregularities leading G
to financial loss to the State, the impugned order cannot but be
said to have been made by way of punishment. As such, such an
order is in contravention of Article 311 of the Constitution of India
15
(1990) 3 SCC 504 H
46 SUPREME COURT REPORTS [2023] 2 S.C.R.
A as well as it is arbitrary as it violates principles of natural justice
and the same has not been made bona fide.
[emphasis added]
21. In State of Orissa and Others vs. Ram Chandra Das 16
this Court observed as follows: -
B
“It is needless to reiterate that the settled legal position is that the
Government is empowered and would be entitled to compulsorily
retire a government servant in public interest with a view to improve
efficiency of the administration or to weed out the people of
doubtful integrity or who are corrupt but sufficient evidence was
C not available to take disciplinary action in accordance with the
rules so as to inculcate a sense of discipline in the service. But the
Government, before taking the decision to retire a government
employee compulsorily from service, has to consider the entire
record of the government servant including the latest reports.”
D 22. In State of Gujarat and Another vs. Suryakant Chunilal
Shah17, a case where the State Government had challenged the judgment
of the Division Bench of the High Court of Gujarat that had held that the
order of compulsory retirement passed against the respondent therein
was bad, as there were no adverse entries in his Confidential Report
E and his integrity was not doubtful at any stage, this Court held thus : -
“28. There being no material before the Review Committee,
inasmuch as there were no adverse remarks in the character roll
entries, the integrity was not doubted at any time, the character
roll subsequent to the respondent’s promotion to the post of
F Assistant Food Controller (Class II) were not available, it could
not come to the conclusion that the respondent was a man of
doubtful integrity nor could have anyone else come to the conclusion
that the respondent was a fit person to be retired compulsorily
from service. The order, in the circumstances of the case, was
punitive having been passed for the collateral purpose of his
G immediate removal, rather than in public interest.”
16
(1996) 5 SCC 331
17
H (1999) 1 SCC 529
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 47
AND ANOTHER [HIMA KOHLI, J.]
23. In State of Gujarat vs. Umedbhai M. Patel18, this Court A
has delineated the following broad principles that ought to be followed in
matters relating to compulsory retirement : -
“11. The law relating to compulsory retirement has now crystallized
into a definite principle, which could be broadly summarized thus:
(i) Whenever the services of a public servant are no longer useful B
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 Constitu-
tion. C
(iii) For better administration, it is necessary to chop off dead
wood, but the order of compulsory retirement can be passed after
having the regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be D
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 E
desirable.
(vii) If the officer was given a promotion despite adverse entries
made in the confidential record, that is a fact in favour of the
officer.
(viii) Compulsory retirement shall not be imposed as a punitive F
mea- sure.
24. In Nand Kumar Verma v. State of Jharkhand and Others19
this Court has once again highlighted the permissibility of ascertaining
the existence of valid material by a Court for the authorities to pass an
order of compulsory retirement and observed thus: - G
“34. It is also well settled that the formation of opinion for
compulsory retirement is based on the subjective
18
(2001) 3 SCC 314
19
(2012) 3 SCC 580 H
48 SUPREME COURT REPORTS [2023] 2 S.C.R.
A satisfaction of the authority concerned but such satisfaction
must be based on a valid material. It is permissible 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
B
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 . “
[emphasis added]
C
25. In a recent judgment in the case of Nisha Priya Bhatia v.
Union of India20, confronted with the question as to whether action
taken under Rule 135 of the Research and Analysis Wing (Recruitment
Cadre and Service) Rules, 1975 is in the nature of “a penalty or a dismissal
clothed as compulsory retirement” so as to attract Article 311 of the
D Constitution of India, this Court has held that “the real test for this
examination is to see whether the order of compulsory retirement is
occasioned by the concern of unsuitability or as a punishment for
misconduct”. For drawing this distinction, reliance has been placed on
the judgment in State of Bombay v. Saubhag Chand M. Doshi 21,
E where a distinction was made between an order of dismissal and order
of compulsory retirement in the following words :
“9 … Under the rules, an order of dismissal is a punishment laid
on a government servant, when it is found that he has been guilty
of misconduct or inefficiency or the like, and it is penal in character,
F be- cause it involves loss of pension which under the rules would
have accrued in respect of the service already put in.
An order of removal also stands on the same footing as an order
of dismissal, and involves the same consequences, the only
difference between them being that while a servant who is
G dismissed is not eli- gible for re-appointment, one who is removed
is. An order of retire- ment differs both from an order of
dismissal and an order of re- moval, in that it is not a form
of punishment prescribed by the rules, and involves no
20
(2020) 13 SCC 56
21
H AIR 1957 SC 892
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 49
AND ANOTHER [HIMA KOHLI, J.]
penal consequences, inasmuch as the person retired is A
entitled to pension proportionate to the period of service
standing to his credit.” [emphasis added]
EXAMINATION AND ANALYSIS OF THE CASE ON
HAND
26. We may now proceed to examine the facts of the case in B
hand in the light of the case laws discussed above in order to find out as
to whether the order of compulsory retirement passed by the respondents
in respect of the appellant was based on valid material and was in public
interest. First, we propose to examine the personal file and character
roll of the appellant. As per the material placed on record, the APARs of C
the appellant reflect that over the past several years, his integrity was
being regularly assessed as “Beyond doubt” and this remained the
position till as late as 31st July, 2019, when his work performance was
assessed for the period from 1st April, 2018 to 31st March, 2019 and
found to be upto the mark. In his APARs for the past one decade, till the
period just prior to the order of his premature retirement, the respondents D
were consistently grading the appellant as “Outstanding”. No adverse
entries were made by his superiors in the APARs of the appellant insofar
as his work performance was concerned. No aspersion was cast either
on his conduct or character during all this period. As per the service
records, his efficiency and integrity remained unimpeachable throughout E
his career. The inference drawn from the above is that the appellant’s
service record being impeccable could not have been a factor that went
against him for the respondents to have compulsorily retired him.
27. Coming next to the stand taken by the respondents that several
complaints were received against the appellant that had cast a cloud on F
his integrity, it is noteworthy that the respondents have referred to nine
complaints against the appellant, stated to be pending in the Vigilance
Directorate that have been pithily summarized by the Tribunal in a
tabulated format in para 30 of its judgment dated 6th March, 2019.
Juxtaposed against the said tabulated statement of complaints listed by
the respondents, is a separate tabulation of the response of the appellant G
to each of the said complaints. For ready reference, the two tables of
contents are extracted below :-
H
50 SUPREME COURT REPORTS [2023] 2 S.C.R.
A Response of the Appellant
B
C
D
E
F
G
H
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 51
AND ANOTHER [HIMA KOHLI, J.]
Response of the Appellant A
B
C
D
E
F
G
H
52 SUPREME COURT REPORTS [2023] 2 S.C.R.
A
B
C
D
E
28. As can be seen from the above, out of the aforesaid nine
complaints, four complaints mentioned at Sr. Nos. 2, 6, 7 and 8 had
already been closed by the department in the year 2016- 2017. With
regard to the complaint listed at Sr. No.1, is stated to have been levelled
F
by another officer of the department against the appellant, relating to
harassment and interference in work. The Tribunal has noted the
submission of the appellant, which has gone unrefuted that the Anti-
Corruption Bureau of the Central Bureau of Investigation22 had at a
later date, arrested the said officer on charges of corruption. The appellant
G has also stated in the remarks column that no explanation had ever been
called for from him on the said complaint, status whereof is shown as
“Under examination”. In respect of the complaints at Sr. Nos. 3 and 4,
the respondents have stated that they are “Under examination”. In reply,
the appellant has stated that the complaint at Sr. No.3, of the year 2016
22
H For short ‘ CBI’
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 53
AND ANOTHER [HIMA KOHLI, J.]
was closed by the ADG (Vigilance)(NZ) on 10th February, 2016 and the A
complaint at Sr. No.4, made by a relative of an officer within the
Department, was rejected because the complainant did not provide his
PAN number despite being afforded two opportunities. There is no rebuttal
to the said assertions. Coming to the complaint at Sr. No. 5, the Review
Committee constituted by the respondents has recorded the status of
B
the said complaint as having been closed on 22nd January, 2019. This is
apparent from a perusal of para 26 of the judgment dated 09 th December,
2020, passed by the Tribunal. Now remains the complaint at Sr. No.9,
which was made by the appellant’s ex-wife alleging bigamy, moral
turpitude etc. against the appellant. In the remarks column, the
respondents have stated that necessary information in respect of the C
said court proceedings between the parties was sought by the department.
The appellant has clarified that a decree of divorce was granted to the
parties by the concerned Court and a copy of the said order was duly
supplied to the department against receipt on 21st March, 2018.
29. Insofar as the matrimonial dispute of the appellant is concerned, D
the material placed on record reveals that the same had attained quietus
by virtue of a settlement arrived at between him and his estranged wife,
vide Settlement Agreement dated 18th June, 2016 recorded by the learned
Mediator appointed by the Delhi High Court Mediation and Conciliation
Centre. The said Settlement Agreement was duly taken on record by
the Division Bench of the High Court of Delhi vide order dated 14th July, E
2016 passed in MAT. APP. (F.C.) Nos.148 of 2014, 34 of 2016 and 36 of
2016. Both the parties had agreed that they would take joint steps to get
their marriage dissolved by filing a petition before the concerned Family
Court. One of the terms and conditions of the Settlement was that the
appellant would arrange a residential flat for his wife, which his brother F
had agreed to purchase in her name, as a one-time settlement towards
all her claims of maintenance, alimony, stridhan, etc. This condition
was subsequently complied with and is borne out from the Sale Document
of the flat dated 3rd October, 2016 that records the fact that a sum of
` 6,00,000/- (Rupees six lakhs) was paid by the appellant’s brother to
the seller towards the sale price of the flat. G
30. Once the parties had arrived at a settlement and a decree of
divorce by mutual consent was passed by the concerned Court, the
allegations of bigamy etc. levelled by the appellant’s wife loses
significance since the case was never taken to trial for any findings to
H
54 SUPREME COURT REPORTS [2023] 2 S.C.R.
A be returned by the Court on this aspect. In the above backdrop, there
appears no justification for the respondents to have raised the spectre of
a series of complaints received against the appellant during the course
of his service that had weighed against him for compulsorily retiring him,
more so, when these complaints were to the knowledge of the respondents
and yet, his service record remained unblemished throughout. Nothing
B
has been placed on record to show a sudden decline in the work conduct
of the appellant so as to have compulsorily retired him.
31. We may now proceed to examine the background in which
vigilance clearances were initially given to the appellant and subsequently
withheld by the respondents. It is not in dispute that in the year 2013, the
C appellant had applied for the post of Member, ITAT and in the year
2014, the Selection Committee had placed him on the top of the list of 48
selected candidates. Based on the vigilance clearance issued by the
department in August, 2013 and once again on 15th July 2015, the appellant
was recommended by the respondents to the ACC for his appointment
D to the subject post.
32. However, sometime later, the respondents withheld the
vigilance clearance given earlier on the ground that there was an adverse
IB Report against the appellant. It is not out of place to mention here
that the aforesaid adverse IB report had also arisen from the complaint
E received from the appellant’s wife during the very same matrimonial
dispute which had already been amicably settled in Court. The factum
of the said settlement was well within the knowledge of the respondents,
who had stated in O.M. dated 15th July, 2015 that “the alleged acts of
bigamy against Shri Bajaj emanating from matrimonial dispute is
not established”. Aggrieved by the withholding of his vigilance report,
F the appellant had approached the Tribunal for relief in OA No.95 of
2016. Vide interim order dated 10th February, 2017, the Tribunal directed
the respondents to resubmit the adverse IB report in respect of the
appellant before the Selection Committee within one month for the said
Committee to take a view in the matter. As noted earlier, the aforesaid
G order dated 10th February, 2017, passed by the Tribunal was upheld by
the High Court, on 30th May, 2017 and affirmed by this Court, vide order
dated 15th November, 2017.
33. Undeterred by the aforesaid judicial orders, the respondents
continued to withhold the vigilance clearance of the appellant, this time
H claiming that there were some adverse findings against him in an
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 55
AND ANOTHER [HIMA KOHLI, J.]
Inspection Report dated 20th April, 2018 stated to have been prepared A
on the basis of an inspection of the office of the appellant conducted on
29th and 30th November, 2017 which was done within a few days of this
Court upholding the order dated 10th February, 2017 passed by the
Tribunal, calling upon the respondents to place his adverse IB report
before the Selection Committee, for it to take a view in the matter. It is
B
rather ironical that the irregularities noticed by the respondents in the
Inspection Report dated 20th April, 2018, that made them withhold the
vigilance clearance of the appellant were to their knowledge ten days
before and yet they had issued a letter dated 11th April, 2018, giving him
vigilance clearance.
34. It is noteworthy that the appellant had challenged the C
proceedings initiated against him by the respondents on the basis of the
inspections conducted on 29th and 30th November, 2017 in OA No.77 of
2018. In the said proceedings, the Tribunal had passed an interim order
on 2nd February, 2018 directing that the said proceedings will not come
in the way of promotion, appointment and deputation prospects of the D
appellant. Regardless of the above directions, the respondents not only
denied vigilance clearance to the appellant on 20th April, 2018 they went
a step ahead and proceeded to place his name in the “Agreed List” i.e.,
the list of suspected officers. This act of the respondents was also assailed
by the appellant before the Tribunal in O.A. No. 279 of 2018. Ultimately,
both the captioned Original Applications were collectively decided by E
the Tribunal in favour of the appellant by a detailed judgement dated 6th
March, 201, which has not been stayed by any superior Court.
35. Aggrieved by a separate Memo dated 30th January 2018 issued
by the respondents on the basis of the aforesaid inspection of his office
conducted on 29th and 30th November, 2017 calling for his explanation in F
respect of some orders passed by him in his judicial/quasi-judicial capacity
as Commissioner of Income Tax (Exemption), the appellant had to file
O.A. No.332 of 2018 that was decided by the Tribunal in his favour vide
judgment dated 28th May, 2019. In its judgment, the Tribunal relied on
the order dated 15th May 2018, passed by the High Court in W.P. No.13390 G
of 2018 (SB), declaring that the inspection conducted by the Department
was without jurisdiction and that there was no justification for withholding
the vigilance clearance of the appellant on the basis of the said inspection.
Noting that the Memo dated 30th January 2018 issued by the respondents
calling for an explanation from the appellant was premised on the very
H
56 SUPREME COURT REPORTS [2023] 2 S.C.R.
A same inspection conducted by the Department, the Tribunal reiterated
the string of findings returned by it in favour of the appellant in its earlier
common judgment dated 6th March 2019 [passed in O.A. No. 137 of
2018 and O.A. No. 279 of 2018] and proceeded to quash the Memo
dated 30th January 2018 issued by the respondents. It was further held
that the said order will not adversely impact forwarding of the name of
B
the appellant as Member, ITAT, in terms of the recommendations made
by the Selection Committee in its meeting held on 26th August 2018.
36. In the teeth of the series of orders passed by the Tribunal and
the High Court in favour of the appellant, the respondents elected to
withhold his vigilance clearance, thereby compelling the appellant to file
C contempt petitions against the concerned officers for non-compliance of
the orders passed. Both, the High Court as well as the Tribunal, issued
notices for wilful disobedience of the orders passed. In the proceedings
before the High Court, on the one hand, the respondents kept seeking
adjournments on the ground that steps were being taken to forward the
D appellant’s name to the ACC for being processed for his appointment as
Member, ITAT, till as late as on 31 st May 2019 on which date they were
granted one last opportunity for making compliances and at their request,
the matter was adjourned to 9th July 2019 and on the other hand, the
respondents slapped the appellant with a Charge Memorandum dated
17th June 2019 and suspended him on 1st July, 2019.
E
37. Having regard to the fact that the respondents did not take the
disciplinary proceedings initiated against the appellant to its logical
conclusion and instead issued an order compulsorily retiring him, this
Court does not deem it expedient to delve into the allegations levelled in
the said Charge Memorandum; all the same, we have cursorily gone
F through the Charge Memorandum that mentions three charges – one
alleging that the appellant failed to seek permission from the department
to purchase a flat in relation to the matrimonial dispute between him and
his estranged wife and the second one is in respect of the allegation of
bigamy levelled against him by his estranged wife. We have already
G noted earlier that during the course of the matrimonial dispute, the parties
had arrived at a settlement and the flat that was agreed to be given to
the wife, was not purchased by the appellant but by his brother, which
fact is amply borne out from the documents placed on record. The
matrimonial dispute between the parties stood closed on a decree of
divorce being granted on the basis of mutual consent. That the respondents
H
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA 57
AND ANOTHER [HIMA KOHLI, J.]
were also cognizant of the said fact, is apparent from the contents of A
O.M. dated 15th July, 2015 which records inter alia that the said
allegations levelled by the wife had not been established. The third charge
was relating to the appellant having attended Court hearings without
sanctioned leave. However, the disciplinary proceedings initiated against
the appellant on 17th July, 2019 were abandoned by the respondents on
B
the order of compulsory retirement being passed against him in less than
three months reckoned therefrom, on 27th September, 2019.
38. The appellant has made allegations of institutional bias and
malice against the respondents on the plea that the Chairman, CBDT
who was a Member of the Review Committee, was facing three contempt
proceedings relating to the appellant’s service dispute, wherein notices C
had been issued by the High Court as well as the Tribunal. There is no
doubt that rule of law is the very foundation of a well-governed society
and the presence of bias or malafides in the system of governance
would strike at the very foundation of the values of a regulated social
order. The law relating to mala fide exercise of power has been the D
subject matter of a catena of decisions [Refer: S. Pratap Singh v. State
of Punjab23; Jaichand Lal Sethia v. State of W.B24; J.D. Srivastava
v. State of M.P And Others25; and Express Newspapers Pvt. Ltd.
And Others v. Union of India And Others26]. It has been repeatedly
held that any exercise of power that exceeds the parameters prescribed
by law or is motivated on account of extraneous or irrelevant factors or E
is driven by malicious intent or is on the face of it, so patently arbitrary
that it cannot withstand judicial scrutiny, must be struck down. In the
instant case, though the appellant has levelled allegations of institutional
bias and prejudice against the respondents, particularly against the then
Chairman, CBDT who was a Member of the Review Committee, the F
said officer was not joined by the appellant as a party before the Tribunal
or the High Court, for him to have had an opportunity to clarify his stand
by filing a counter affidavit. Hence, these allegations cannot be looked
into by this Court.
39. Dehors the aforesaid allegations of institutional bias and malice, G
having perused the material placed on record, we find merit in the other
grounds taken by the appellant. It is noticed that though FR 56(j)
23
AIR 1964 SC 72
24
AIR 1967 SC 483
25
(1984) 2 SCC 8
26
(1986) 1 SCC 133 H
58 SUPREME COURT REPORTS [2023] 2 S.C.R.
A contemplates that the respondents have an absolute right to retire a
government servant in public interest and such an order could have been
passed against the appellant any time after he had attained the age of
fifty years, the respondents did not take any such decision till the very
fag end of his career. The impugned order of compulsory retirement
was passed in this case on 27th September, 2019 whereas the appellant
B
was to superannuate in ordinary course in January, 2020. There appears
an apparent contradiction in the approach of the respondents who had
till as late as in July, 2019 continued to grade the appellant as
‘Outstanding’ and had assessed his integrity as ‘Beyond doubt’. But
in less than three months reckoned therefrom, the respondents had turned
C turtle to arrive at the conclusion that he deserved to be compulsorily
retired. If the appellant was worthy of being continued in service for
little short of a decade after he had attained the age of 50 years and of
being granted an overall grade of 9 on the scale of 1 - 10 on 31st July,
2019 it has not been shown as to what had transpired thereafter that
made the respondents resort to FR 56(j) and invoke the public interest
D
doctrine to compulsorily retire him with just three months of service left
for his retirement, in routine. In such a case, this Court is inclined to
pierce the smoke screen and on doing so, we are of the firm view that
the order of compulsory retirement in the given facts and circumstances
of the case cannot be sustained. The said order is punitive in nature and
E was passed to short-circuit the disciplinary proceedings pending against
the appellant and ensure his immediate removal. The impugned order
passed by the respondents does not pass muster as it fails to satisfy the
underlying test of serving the interest of the public.
40. In view of the above discussion, it is deemed appropriate to
F reverse the impugned judgment dated 31st May, 2022 and quash and set
aside the order dated 27th September, 2019 passed by the respondents,
compulsorily retiring the appellant. Resultantly, the adverse consequences
if any, flowing from the said order of compulsory retirement imposed on
the appellant, are also set aside. The appeal is allowed and disposed of
on the aforesaid terms while leaving the parties to bear their own costs.
G
Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)
H
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