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Judgment
Ashok Agarwal, J.—An order passed by the learned Chief Justice on 27th August, 1993, prematurely retiring the petitioner with effect from 1st September, 1993 is impugned in the present petition.
The short facts leading to the filing of the petition may be summarised :-
The petitioner joined the service of this High Court on 11th October, 1968 as a clerk. On 1st November, 1976 he was promoted as an Assistant Superintendent. On 16th August, 1984 he was promoted as a Superintendent and in October 1990 he was promoted as a senior Superintendent.
On 14th February, 1992, a show cause notice was issued against the petitioner. The notice pertained to missing of certain documents and records in Suit No. 753 of 1976 from the Board Department where the petitioner was Senior Superintendent. The missing documents could be traced belatedly only on 6th November 1991. By a reply dated 27th February, 1992, the petitioner admitted that the papers had been misplaced and apologised for the inconvenience caused. By an office order passed on 31st March, 1992, a minor penalty of stoppage of increments of two years was imposed upon the petitioner.
In 1992 after the petitioner had attained the age of 50 years, a Review Committee consisting of three judges considered the case of the petitioner for continuation in service beyond the period of 50 years. The Review Committee found that the confidential record of the petitioner was not very satisfactory. It, however, instead of retiring the petitioner, decided to defer the consideration of his case for premature retirement for one year after giving direction to the petitioner to improve his performance. After one year, the Review Committee, which now consists of four judges of this Court, once again considered the question and by its report dated 19th July 1993, recommended that the petitioner be prematurely retired. The recommendation was placed before the learned Chief Justice who by the impugned order passed on 27th August, 1993 compulsorily retired the petitioner prematurely with effect from 1st September, 1993 after paying him his pay and allowance for the notice period of three months. On 21st September 1993, the petitioner submitted an appeal/representation to the learned Chief Justice. By an order passed on 12th November, 1993, the learned Chief Justice rejected the representation and the same was communicated to the petitioner by the Prothonotary and Senior Master by his Communication dated 24th November, 1993. Hence the present petition.
It is contended by Shri Kochar the learned counsel appearing in support of the petition that there is no power vested in the Chief Justice to retire an employee prematurely. He has submitted that no rules in regard to the power to retire prematurely have been framed. Hence the impugned decision deserves to be set aside.
Article 229 of the Constitution of India provides that appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the court as he may direct. In our view the power of appointment conferred on the Chief Justice under Article 229 includes the power to compulsorily retire prematurely an employee of the High Court. The Supreme Court in the case of Chief Justice of Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, of its judgment observed as follows :
"Now, let us see what is the ambit and scope of the power of "appointment" in Article 229(1). In the context of Article 229, read as a whole this power is of wide amplitude. The word "appointment" in Article 229(1) is to be construed according to the axiom that the greater includes the less. This cardinal canon of interpretation underlies Sec. 16 of the General Clauses Act which has been made applicable by Article 317(1) of the Constitution. Construed in the light of this juristic principle, the power of "appointment" conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the provisos. In conferring such exclusive and supreme powers on the Chief Justice, the object which the Founding Fathers had in view, was to ensure independence of the High Court."
In view of the above decision, the contention that Chief Justice has no power to compulsorily retire the petitioner prematurely is without any merit and the same is rejected.
In regard to the contention that there are no rules framed under Article 229(2) of the Constitution of India, the Prothonotary and Senior Master in his affidavit dated 17th February 1994, has stated that the Hon''ble Chief Justice in exercise of power conferred by Article 229(2) had on 21st January 1984, ordered that the Maharashtra Civil Service Rules would be made applicable to the officers and members of the High Court staff. The said decision/order had been communicated to the State Government by the High Court''s letter dated 14th February 1984, and the Governor''s approval had been sought only in respect of the matters referred to in the proviso to Article 229(2) of the Constitution of India namely where the same involves financial implications. It has further been averred the right from 1984 the officers and staff of the High Court have in fact been governed by the aforesaid Rules in respect of the matters covered thereby including inter alia in the matter of Voluntary retirement under the Maharashtra Civil Service (Pension) Rules, Commutation of leave under the Maharashtra Civil Services (Leave) Rules, grant of maternity leave under the Maharashtra Civil Services (Leave) Rules, and pay and allowance during suspension under the Maharashtra Civil Services (Joining time, Foreign Services and Payments during suspension, dismissal and removal) Rules. It has further been pointed out that in April 1992, the post of Senior Superintendent and Superintendent were amalgamated and redesignated as "Section Officer" and concerned staff including the petitioner were required to opt either for the revised grades or the original grades as provided for by Rule 11(2) of the Maharashtra Civil Services (Pay) Rules 1981.
Shri Chinai, the learned Counsel appearing on behalf of the High Court, has pointed out that the petitioner has not only signed his option but has also adopted for the new pay scales in exercise of his option under the Maharashtra Civil Services (Pay) Rules 1981.
In view of the aforesaid material, the contention of Shri Kochar that there are no Rules stands rejected.
Shri Kochar next contended that no material has been placed before us to indicate whether the approval of the Governor has or has not been accorded in response to the letter of the High Court issued to the Government on 14th February, 1984. As far as the present petitioner is concerned, he seeks to impugn the order of compulsory retirement. The same does not involve any financial implication. The petitioner merely challenges the legality and validity of the order of compulsory retirement. Hence whether sanction has been accorded or not is not relevant for the decision of the present petition.
Shri Kochar next submitted that as far as the adverse confidential reports are concerned, the same have not been communicated to the petitioner. This was in terms of the averment contained in the petition. However, in the affidavit in reply dated 1st February, 1994, the details regarding the communication of the adverse remarks reports were furnished. In the affidavit in rejoinder, the petitioner has conceded that the remarks were communicated; but has stated that they were communicated; but has stated that they were not communicate immediately but the were communicated belatedly. In this context it has to be borne in mind that ordinarily when the entries relate to specific instances leading to adverse entries, the communication thereof is sent to the officer concerned with a view of providing an opportunity for improvement of performance (See Jayanti Kumar Sinha (J.K. Sinha) Vs. Union of India (UOI) and Others, ). In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , the Supreme Court held thus :
"What is normally required to be communicated is adverse remarks, not every remark comment or observation made in the confidential rolls. These may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of FR 56 (j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well settled."
In the present case the Petitioner''s Confidential Reports for 1986-87 and 1987-88 noted that the petitioner lacked initiative, that he was not upto the mark as a Superintendent and that he had shown no improvement. These remarks were communicated to the petitioner by an office Memorandum dated 21st June 1989. By an office memorandum dated 1st September 1992, the petitioner was informed that the Review Committee had found his Confidential Records to be not very satisfactory but had decided to defer consideration of his case for continuance in service for a period of one year and that he should improve his performance. Prothonotary and Senior Master had been directed to watch his performance to determine whether he was making efforts to improve. The case of the petitioner was once again considered by the Review Committee in 1993 when his confidential report indicated that his performance was poor and that he had not shown any improvement. The Review Committee comprising of four Judges of this court unanimously opined that the continuation of the petitioner in service was not in the public interest and that it was therefore necessary to compulsorily retire the petitioner. Based on the recommendation of the Review Committee the Chief Justice has passed the impugned order, compulsorily retiring the petitioner prematurely.
Shri Kochar next submitted the petitioner has been promoted as Senior Superintendent in 1989. Hence, it was not open either to the Review Committee or to the Chief Justice to consider his adverse confidential reports prior to his promotion in 1989. Shri Kochar further contended that as far as the order of compulsory retirement is concerned, the same is a major penalty and amounts to a stigma. According to him, since the order has been passed without following the principles of natural justice, the same stands vitiated.
In this context Shri Kochar relied upon the case of Mohammed Mominuddin v. Government of Andhra Pradesh reported in 1971 (1) S. L. R . and the case of The State of Rajasthan and Another Vs. Shri Rajender Singh, . In our view neither of the cases can have any application to the present case. In the case of Mohammad Mominuddin the right to retire a person was sought to be exercised before completion of 25 years of service. In the case of State of Rajasthan and Another the termination was sought to be effected prior to the age of superannuation and there was no provision for premature retirement. Shri Kochar has further relied upon the case of Sunil Batra Vs. Delhi Administration and Others etc., wherein of its judgment, the Supreme Court observed as follows :
"One of the paramount requirements of valid law is that it must be within the cognizance of the community if a competent search for it were made. It is worthwhile recalling the observations of Bose J. made in a different context but has a philosophic import :
"Natural Justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men know what it say..... The through that a decision reached in the secret recess of a chamber to which the public have no access and of which they can normally know nothing can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized men. It shocks conscience. Harla Vs. The State of Rajasthan, ."
It may be noted that the Supreme Court in the case Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., in paragraph 50 of his judgment inter alia observed as follows :-
"Apart from that, we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so called retirement ordered under the said Rule amount to removal of the civil servant within the meaning of Article 311(2).
In the case of Baikuntha Natha Das and Another v. Chief District Medical Officer, Baripada supra, the Supreme Court in paragraph 32 of its judgment observed as follows :-
"The following principles emerge from the above discussion :
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
(ii) The order has to be passed by the Government on forming the opinion that it is the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not 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) malafide, or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to 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 adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
In the instant case, the petitioner is being sought to be retired after attaining his age of 50 years. Hence, the retirement cannot be termed to be a dismissal from service and cannot attach a stigma on the petitioner. As far as the promotion of the petitioner to the post of Senior Superintendent is concerned, the same is purely on seniority basis and not on the basis of merit. Hence, the submission, that the confidential record prior to the promotion of the petitioner in 1989 should not have been looked into, is rejected.
In view of our finding that the relevant rules to the knowledge of the employees and staff of the High Court have been consistently followed right from the year 1984 and in view of the further fact that the petitioner himself has taken advantage of the rules, the contention that the rules have not been duly published or have not been duly publicized, does not deserve acceptance.
Shri Kochar lastly submitted that the adverse material, if any, found against the petitioner is of trifle nature. A severe order of compulsory retirement which virtually imposes a penalty of civil death upon the petitioner should not have been passed. We are not court of appeal. Even then we have perused the confidential reports and we do not find any fault with in the order of compulsory retirement recommended by the Review Committee and passed by the learned Chief Justice.
For the foregoing reasons we find that the petition is devoid of merit and the same is summarily dismissed.
Expedite the issue of certified copy.