I.K. MISHRAversusUNION OF INDIA AND ORS.

                                                                                (
A                                I.K. MISHRA
                                   v.
                        UNION OF INDIA AND ORS.

                                JULY 11, 1997

B             (SUJATA V. MANOHAR AND V.N. KHARE, JJ.]
                                                                •
         Seivice Law: C.C.S. pension Rules-1972--Rule 48 (b)-Compulsory
  retirement order made after conside1ing the se1vice record is valid-Adverse
  remarks in character roll continue when no promotion is given-Allegation of
C malafides cannot be considered in the absence of full facts in the plaint.

        The challenge in this case was against an order of Compulsory
  retirement and the High Court reversed the decision of two lower Courts
  which had decreed in favour of the appellant. The contention of the
  Appellant was that the order of compulsory retirement was arbitrary; that
D on his having passed the S.A.S. Part II Civil Examination, the adverse
  entries in the Character roll lost their impact and could not be made a
  ground for compulsory retirement; and that the order of the AG was
  malafide.

E         Dismissing the Appeal, this Court

         HELD : 1. The adverse remarks in th~ annual confidential report
  and the minor punishment inflicted upon the appellant clearly demolishes
  the contention that the appellant's service record was unblemished. It is
  not .disputed that the entire service record including (good and bad)
F entries of the appellant were placed before the Review Committee and the
  Review Committee after considering the aforesaid reports mainly con-
  fidential report/character roll, both favourable and adverse, recommended
  to the appointing authority for compulsory retirement of the appellant
  from service. The adverse materials placed before the Review Committee
G and the appointing authority show that the order compulsorily retiring the
  appellant was based on material on record and by no stretch of imagina-
  tion it can be branded as arbitrary. [264-G-H; 265-A]

        2. No doubt the appellant was sent by the respondents to appear in
  S.A.S. examination in the year 1972-73 after having been found that the
H appellant complied with the conditions for appearing in the said examina-
                                       260
                                                          •
                      I.K. MISHRA v. U.O.I. [V.N. KHARE, J.]                  261
    tion and further the appellant passed the S.A.S. Part II examination, but A
    merely the fact that the appellant was sent to appear in the examination
    aud was declared successful in the said examination are not the end of the
    matter. In fact passing of the S.A.S. examination entitles an auditor to be
    considered for promotion to the higher post by the Departmental Promo-
    tion Committee. In the present case after the appellant was declared B
    successful in the S.A.S. examination, the Departmental Promotion Com-
    mittee after considering the service record of the appellant did not recom-
    mend his case for further promotion. Appiying the principle in the case of



-   Baikuntha Nath Das the appellant having not been promoted to the higher
    post the adverse remarks in his character roll remined intact. Since the
    appellant was not promoted to the higher post by the Departmental C
    Promotion Committee it is not correct to contend that the adverse
    materials in the annual confidential report of the appellant lost their sting .
    and those materials could not form the basis of order of compulsorily
    retiring the appellant from service. (265-C-F]

         Bailamtha Das and another v. Chief Dist1ict Medical Officer, Baripada D
    and another, (1992] 2 sec 299, relied on.

           3. It cannot be said that the order compulsorily retiring the appellant
    was a mala fide order as.the same was passed at the instance of the
    Accountant General, M.P., who bore grudge against the appellant. It may          E
    be noticed that the record before the Court does not show that the
    Accountant General, M.P., was party to the suit. In fact he was not
    impleaded by name in the suit. Further, the allegations against him were
    totally vague. No inference of ma/a fide could be drawn from such allega-
    tions. In the 'absence of full facts and particulars in the plaint in respect
    of allegation of mala fides the order comP,ulSorily retiring the appellant       F
    cannot be held to be mala fide order. (265-G-H; 266.:A] ·

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3137 of
    1986.
                                                                                     G
         From the Judgment and Order dated 9.7.85 of the Madhya Pradesh
    High Court at Gwaliar in C.S.A. No. 127 of 1981.

            Ravindra Bana. for the Appellant.

            M.L. Jain, Rao Ranjit for C.V. Subba Rao for the Respondents.            H
                                                                                   [
    262                  SUPREME COURT REPORTS [1997) SUPP. 2 S.C.R.

A         The Ju!fgment of the Court was delivered by

          V.N. KHARE, J. The appellant before us, started his service career
    as a Sub-Auditor in the erstwhile Holkar Estate, Indore with effect from
    5th February, 1943. Subsequently on reorganisation of states in the year
B   1956 the appellant continued to serve in the office of Accountant General,
    Madhya Pradesh, Gwalior. The appellant while working as Auditor was
    accorded selection grade. However, subsequently the appellant was com-
    pulsorily retired from service by notice dated 23rd of August, 1974 issued
    under Rule 48(b) of C.C.S. Pension Rules, 1972 hereinafter referred to as
    the Rules.
c
           The appellant challenged the impugned notice compulsorily retiring
    him from service by filing a Civil Suit in the Court of Sub-Judge, Gwalior
    for a declaration that the order compulsorily retiring him from service is
    illegal and inoperative, being arbitrary and mala fide. The Trial Court
D   decreed the suit and the aforesaid decree was affirmed by the First Lower
    Appellate Court. The High Court in the Second Appeal filed at the
    instance of the respondents set aside the decree and judgments of the Trial
    Court and the First Appellate Court holding that the order compulsorily
    retiring the appellant from service did not suffer from infirmity either on
    account of arbitrariness or mala fides. That is how the plaintiff appellant
E   has come up in appeal before us.

          Counsel for the appellant reiterated the argument advanced before
   the Court below characterising the order compulsorily retiring the appel-
   lant from service as arbitrary and mala fide. It was urged that the service
F record of the appellant being unblemished, the impugned order compul-
   sorily retiring the appellant deserves to be held as arbitrary. The law in
   regard to the compulsory retirement of the government servants in terms
   of service rule is almost settled by now by number of decisions of this
   Court. Repeatedly it has been held that the power to retire compulsorily a
   government servant in terms of the service rules is absolute provided the
G concerned authority forms an opinion bona fide that it is necessary to pass
   order of compulsory retirement in the public interest. This Court in the
   case of Baikuntha Das and another v. Chief District Medical Officer,
  ·Bmipada and another, [1992) 2 S.C.C. 299 after considering the number of
   decisions of the apex Court referred the following principles for testing the
H validity of order of compulsory retirement.
        l.K. MISHRA v. U.0.1. [V.N. KHARE, J.]                   263

   "34. The following principles emerge from the above discus-          A
SIOn:


   (i) An order of compulsory retirement is not a punishment. It
implies no stigma nor any suggestion of misbehaviour.

    (ii) The order has to be passed by the government on forming        B
the opinion that it is in the public interest to retire a government
servant compulsorily. The order is passed on the subjective satis-
faction of the government.

    (iii) Principles of natural justice have no place in the context C
of an order of compulsory retirement. This does not mean that
judicial scrutiny is excluded altogether. While the High Court or
this Court would not examine the matter as an appellate court,
they may interfere if they are satisfied that the order is passed (a)
mala fide or (b) that it is based on no evidence or (c) that it is D
arbitrary - in the sense that no reasonable person would form the
requisite opinio~ on the given material; in short, if it is found to
be a perverse order.

    (iv) The government (or the Review Committee, as the case
may be) shall have to consider the entire record of service before      E
taking a decision in the matter - of courf;e attaching more impor-
tance t.o record of and performance during the later years. The
record to be so considered would naturally include the entries in
the confidential records/character rolls, both favourable and ad-
verse. If a government servant is promoted to a higher post not-        p
withstanding the adverse remarks, such remarks lose their sting,
more so, if the promotion is based upon merit (selection) and not
upon seniority.

    (v) An order of compulsory retirement is not liable to be           G
quashed by a Court merely on the showing that while passing it
uncommunicated adverse remarks were also taken into considera-
tion. That circumstance by itself cannot be a basis for interference.

     Interference is permissible only on the grounds mentioned in
(iii) above. This aspect has been discussed in paras 30 to 32 above." H
    264                  SUPREME COURT REPORTS [1997] SUPP. 2 S.C.R.

A       Applying principles No. 3 and 4 to the present case, it is worthwhile
  to refer to the entries pertaining to appellant in his Annual Confidential
  Report. In the annual confidential report for the year 1960-61 the appellant
  has been described as an average worker and his further promotion was
  deferred. In the year 1961-62 the appellant was again graded as poor.
B About trustworthiness it was remarked that his work requires supervision
  as his accuracy is limited. Against column "business habits" it was
  remarked that appellant's method of working is not systematic. During the
  period 1.4.64 to 26th of December, 1964 against the column "fitness and
  further advancement of appellant", it was remarked - "question does not
C arise". During the period 1965-66 and 1966-67 as well the appellant was
  described as an average worker. By letter dated 8th of September, 1972 the
  Senior Deputy Accountant General, Administration observed that the
  appellant has not been reported good and was required to, show
  improvement in his work before he may be allowed to cross the efficiency
  bar. For the period beginning from 13.6.1971 to 30.11.1971 the Reviewing
D Officer observed in the report that the appellant is not fit for further
  advancement and is an average worker.

          Besides that by an order dated 4th February, 1970 passed by the
  Accountant General, the appellant was subjected to the minor penalty of
E .withholding next increment for the period of two years with cumulative.
   effect of postponing future increments which was reduced by the Appellate
   Authority to with holding of increments "for two years without cumulative
   effect". By letter dated 20th of November, 1973 passed by th:! Accountant
                                                                          I
   General, the appellant was further subjected to the penalty of reduction to
F the lower stage of Rs. 550 for a period of two years and further the
   appellant was denied benefit of increment during the period of subsistence
   of the penalty.

         The adverse remarks in the annual confidential report and the minor
  pu~hment inflicted upon the appellant as referred herein before clearly
G demolishes the contention that appellant's service record was unblemished.
  It is not disputed that the entire service record including (good and bad)
  entries of the appellant were placed before the Review Committee and the
  Review Committee after considering the aforesaid reports mainly
  confidential report/character roll both favourable ancl adverse
H recommended the appointing authority for compulsory retirement of the
                       I.K MISHRA v. U.O.I. [V.N. KHARE, J.)                 265

      appellant from service. The adverse materials placed before the Review A
      Committee and the appointing authority show that the order compulsorily
      retiring the appellant from ser~ce was based on material on record and at
      no stretch of imagination it can be branded as arbitrary.

              It was then contended that the appellant having passed the S.A.S. B
       Part II Civil Examination in the year 1972-73 after complying with the
       eligibility criteria. laid down in the Regulations 199 and 207, the adverse
       entries in the character roll of the appellant lost their sting and for that
       reason there was no material on record on basis of which the appointing
       authority could form an opinion to compulsorily retire the appellant from
       service. No doubt the appellant was sent by the respondents to appear in C
       SAS. examination in the year 1972-73 after having been found that the
       appellant complied with the conditions for appearing in the said
       examination and further the appellant passed the S.A.S. Part II
       examination but merely the facts that the appellant was sent to appear in
       the examination and was declared successful in the said examination are D
       not the end of the matter. In fact passing of the S.A.S. examination entitles
       an auditor to be considered for promotion to the higher post by the

..     Departmental Promotion Committee. In the present case after the
       appellant was declared successful in the S.A.S. examination, the
       Departmental Promotion Committee after considering the service record E
       of the appellant did not recommend his case for further promotion.
     . Applying the principle No. 4 as noted in the case of Baikuntha Nath Das
       (supra) the appellant having tlot been promoted to the higher post the
       adverse remarks in his character roll remained intact. Since the appellant
     ·was not promoted to the higher post by the Departmental Promotion F
       Committee it is not correct to contend that the adverse materials in the
       annual confidential report of the appellant lost their sting and those
       materials could not form the basis of order compulsorily retiring the
       appellant from service.

             Lastly it was urged that the order compulsorily retiring the appellant G
       was a mala fide order as the same was passed at the instance of Shri
       Manazure Muastafa Siddiqui, Accountant General, M.P., who bore grudge
     . against the appellant. This argument is being noted only to be rejected. It
       may be noticed that the record before us does not show that Shri Manazure
       Muastafa Siddiqui was party to the suit. In fact he was not irnpleaded by H
    266                    SUPREME COURT REPORTS [1997] SUPP. 2S.C.R.
A name in the suit. Further, the allegations against Shri Siddiqui were totally
    vague. No inference of ma/a fide could be drawn from such allegations. In
    the absence of full facts and particulars in the plaint in respect of allegation
    of malafides the order compulsorily retiring the appellant cannot be held


B
    to be mala fide order.

          For the aforesaid reasons the instant appeal has no merit and is
                                                                                       [
    accordingly dismissed. There shall be no order as to costs.

    I.M.A.                                                      Appeal dismissed.