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Judgment
Kamat, J.—The petitioner was compulsorily retired under Rule (4) (a) of the Maharashtra Civil Services (Pension) Rules, 1982 by an order dated 20th September 1994 made by the Honourable the Chief Justice while the petitioner was working as Section Officer on the establishment of the office of the Prothonotary and Senior Master of this Court. He challenges the order of compulsory retirement on the ground that the petitioner''s service record was reasonably good and in the absence of any material adverse to him being ever communicated, the impugned order is unsustainable. It is also contended that whatever material was taken into consideration for prematurely retiring the petitioner was not such so as to serve public interest and, in any event, even in the affidavit filed opposing the petition, the material disposed is not sufficient to take such drastic action against the petitioner and lastly, that in as much as there is no application of mind to tangible material, the order made suffers from legal malice. In that it was urged that the petitioner was neither warned, nor cautioned to improve his performance, and, therefore, the order of compulsory retirement in effect amounts to imposition of penalty without hearing him and not an order simplicitor under Rule 10(4) (a) (1) of the Maharashtra Civil Services (Pension) Rules.
The service record of the petitioner suggests that the petitioner joined as a clerk in the High Court on the 1st July 1968. Sometime in the year 1984, the petitioner was promoted as Assistant Superintendent. He was further promoted as Superintendent/Section Officer in 1985. It is not disputed that during all these years, the petitioner had not been communicated any adverse remarks though he had worked in different Departments under different officials.
It appears that the petitioner having joined the service before the age of 35 ears and when completed 500 years of age, his case along with several other Officers of this Court was taken for review to consider about his continuance in service. A Review Committee consisting of four Judges had been appointed by the Honourable the Chief Justice which met on 19th July 1993. The case of the petitioner along with others was taken for review and the Review Committee found that though the attendance record of the petitioner was satisfactory, the confidential record indicated the need for improvement in the work. The Review Committee, therefore, deferred the case of the petitioner for re-consideration after a period of one year.
The Prothonotary and Senior Master was directed to communicate to the petitioner that he should improve his performance with a further direction that the Prothonotary and Senior Master should make a report to the Review Committee at the end of one year which should be independent of the entries made in the confidential record.
As directed by the Review Committee, the then Prothonotary and Senior Master, Shri Macwan addressed a memorandum to the petitioner dated 2nd September 1993 bringing to his notice that the Review Committee has not found confidential record of the petitioner to be satisfactory and that his case for review has been deferred for a period of one year and further cautioned the petitioner to improve his performance.
On finding that the decision of the Review Committee has been approved by the Honourable the Chief Justice, the petitioner made a representation addressed to the Honourable the Chief Justice dated 30th July 1994 wherein he listed that he had a long spotless past record. He also eulogised his work during the years and pleaded that his representation be considered sympathetically and he be allowed to continue in service.
As directed by the Review Committee, Shri Macwan, the then Prothonotary and Senior Master, submitted his special report on 29th December 1993 for the period covering from July 1993 to December 1993. Shri Macwan was to demit his office on 31st December 1993. For the period covering January 1994 to 30th June 1994, Shri Bapat, the next incumbent in the office of the Prothonotary and Senior Master, submitted his special report dated 7th July 1994 to the Review Committee. The Review Committee met on 1st of August 1994 to consider cases which were deferred for a period of one year in 1993 not only in the case of the petitioner but also some more officers and upon re-considering the material including the special reports found that the petitioner had not shown any improvement in the work despite caution issued to him based on the earlier meeting of the Review Committee in the year 1993. It was also found against him that the petitioner did not take interest in his work, nor performed the same with responsibility. On appreciation of the two reports of two different Prothonotary and Senior Masters, one covering the period from July 1993 to December 1993 and the other from January 1994 to June 1994 held that the petitioner''s improvement in the performance is beyond his capacity, his understanding is limited and he lacks supervisory power as he was not able to help or guide juniors working under him. Certain aspects from the second report were highlighted which suggest that despite oral warnings issued by Shri Bapat, the petitioner did not take steps to carry out the directions given to him. The Review Committee, therefore, was of the unanimous opinion that continuation of the officer in service is not in public interest and, therefore, it was necessary to compulsorily retire him.
The matter, however, did not end there and it appears that the petitioner made a representation addressed to the Honourable the Chief Justice who forwarded the same to the Review Committee for reconsideration. The Review Committee met on 29th of August 1994 in deference to the wishes of the Chief Justice and upon considerating the same expressed an unanimous opinion that there is no reason to alter the decision already taken on 1st of August 1994 and conveyed to the Honourable the Chief Justice by letter dated 3rd August 1994. Needless to say that based upon these reports of the Committee, the impugned order was made by the Honourable the Chief Justice purportedly under the provisions of Rule 10(4)(a)(1) of the Maharashtra Civil Services (Pension) Rules, 1992.
To buttress the submission, Shri Kochar, learned counsel appearing for the petitioner, contended that in the entire tenure of the petitioner, the petitioner had not been communicated anything adverse in so far as the performance of the duties. That for the first time, the petitioner was informed that the Review Committee had not found his performance and service record satisfactory and cautioned to improve his performance by the memorandum of the Prothonotary and Senior Master dated 2nd September 1993. Shri Kochar says that regard being had to the contents of this memorandum, the same is vague and nothing was pin-pointed to the petitioner as to where exactly his performance was lacking and during what period. Shri Kochar then says that even in the return filed by Shri Bapat, the Prothonotary and Senior Master, in opposing the present petition, no specific adverse material has been disclosed. According to him, such a disclosure was necessary so that the petitioner knows his exact position in the matter and in the absence thereof Shri Kochar urged that the petitioner cannot be condemned and made to retire before his superannuation in normal course.
He says that the Division Bench of this Court has clearly laid down in the decision of Arvind H. Shah v. High Court of Judicature at Bombay and others reported in 1994 2 C.L.R. 1156 that it is necessary to disclose material. Shri Kochar says that applying the ratio of this case and, in as much as, the Prothonotary and Senior Master has not disclosed material in the counter affidavit, the impugned order cannot be sustained.
We are afraid that the decision in Arvind N. Shah''s case can in any manner assist the petitioner. We are also not able to read that any such ratio can be carved out from that Precision that the High Court is required to disclose material in the affidavit and in its absence the order made gets vitiated. On the contrary, we are fortified in the view that the decision in Arvind Shah''s case was peculiar to facts of its own. Shri Shah had been a Judge of the City Civil and Sessions Court, Bombay. Having found that his record was fairly good right from 1985, Shri Shah was promoted as Additional Principal Judge in the City Civil and Sessions Court, Greater Bombay and that was as late as in November 1993. However, when the question came as to whether Shri Shah be given extension of service after reaching the age of superannuation (58 years) for two more years in the light of the decision of the Apex Court in the All India Judges'' Association''s case reported in 1991 2 C.L.R. 927, the Administrative Committee of the High Court had denied him such extension. The Division Bench found that there was no material which was adverse to the Officer so as to deny him the benefit of extension of two years in the light of the Apex Court decision in All India Judges'' Association case.
Shri Kochar now says that the decisions of the Review Committee and Administrative Committee of the High Court are justifiable when such decisions affect the services of the members of the subordinate judiciary and employees of the judiciary including that of the High Court. He also says that when there is no material either about the honesty or the integrity, there is no question of weeding out officials merely because something adverse might be found against them. In other words, the argument of Shri Kochar is that only dead wood, inefficient and corrupt officials are required to be compulsorily retired in public interest and resort to power of compulsorily retiring employees must be sparingly used so that the services of the officials are not abruptly terminated and they are thrown on the streets and the resultant economic plight of their families needs to be considered.
He now relies upon the decision in K. Kandaswamy v. Union of India & Anr. reported in 1995 2 C.L.R. 996. This was a case where it appears that the order of compulsory retirement was challenged by a Senior Police Officer (Additional D.I.G.). The fact disclosed that the Additional D.I.G. had amassed large assets and had acquired estate disproportionate to his known sources of income. The Supreme Court while upholding the order of dismissal of the Additional D.I.G. from service, in the first place, held that the order of compulsory retirement under Rule 56(j) of Fundamental Rules does not amount to dismissal or removal within Article 311 of the Constitution of India, nor it is a punishment, nor does it affect the loss of retirement benefits and further that there is no stigma. The Supreme Court also held that there must be a bona fide formation of opinion on the part of the authority which takes such decision that it is desirable to do so in public interest. Needless to say that the Supreme Court also held that the correctness of the formation of the opinion of compulsory retirement can be challenged before the Court by an aggrieved person, however, on the rider that the requisite opinion must be based on evidence and material and that the decision is not based on extraneous or collateral grounds so that the decision taken is not arbitrary.
Shri Kochar now relies upon the decision in the State of U.P. and Another Vs. Bihari Lal, . This case again related to Government servant working as Assistant Commissioner (Assessments) in the Sales Tax Department of U.P. He was compulsorily retired from service on the ground that inspite of awarding adverse remarks for several years, the Assistant Commissioner had not improved and, therefore, he was found to be an officer of bad category. He challenged the order of compulsory retirement in the writ petition which petition was allowed by the High Court and that too on the spacious ground by evaluating the evidence and held that the order of compulsory retirement was by way of punishment which, therefore, amounted to his removal from service thereby violating Article 311 of the Constitution of India. It appears that the respondent had filed representation against adverse remarks of 1989-90 which was pending consideration and without its disposal, the High Court found that those adverse remarks had been taken into consideration and further that when the disciplinary proceedings were pending, initiation of proceedings of compulsory retirement amounted to arbitrary and illegal exercise of power.
The Apex Court observed in this case that before the exercise of the power, the authority has to take into consideration the overall record including adverse remarks, though for technical reasons might be expunged on appeal or revision but what is needed to be looked into is whether the decision is bona fide taken in public interest to augment efficiency in the public service. It was also further observed that in absence of any mala fide or arbitrary exercise or power, a possible different conclusion would not be a ground for interference by the Court in exercise of its judicial review.
We do not believe that these decisions or any number of decisions will assist the petitioner in the present case. It must be also borne in mind that every case is an authority for its own facts. What is, however, necessary to bear in mind is that when the Review Committee or the Administrative Committee of a High Court or for that matter any authority exercises power to compulsorily retire a subordinate official/employee the exercise of such a power must be bona fide and is to sub-serve public interest to weed out inefficiency and corruption. It is also mandatory that overall service record of the concerned official/employees is required to be taken into Consideration including his reputation.
We have already highlighted the decisions of the Review Committee in the present case and that the same was based on Annual Confidential Records and the special report called from the Prothonotary and Senior Master which were admittedly adverse to the petitioner. The argument of Shri Kochar is that the impugned order is tainted with malice. In our view, this is not only misconceived but also ill-conceived as rightly pointed out by Shri Chinoy, the learned counsel appearing for the respondents. In that Shri Chinoy justifiably pointed out that for two consecutive years prior to 1993, the petitioner was rated as ''very poor'' and ''poor'' and not suitable and fit. He was also found to be slow, lacked understanding and found to be not capable of performing supervisory duty. The Annual Confidential Records are written by two different incumbents of the office of the Prothonotary and Senior Master. In addition, Shri Chinoy rightly pointed out that the petitioner''s case for continuation in service was deferred for one year by the Review Committee when it met in July 1993 and what is more, the petitioner was given a memo to improve his performance. The petitioner, despite the receipt of caution, could not come to the mark, with the result the two Prothonotary and Senior Masters gave special reports as directed by the Review Committee during their respective tenures which needless to say were highly adverse to him. We, therefore, fail to understand as to how it is open to the petitioner to challenge the same on the ground that there was no tangible material before the Review Committee to compulsorily retire the petitioner.
Shri Chinoy, rightly placed reliance in the decision of Posts and Telegraphs Board & Ors. v. C. S. N. Murthy, reported in 1992 1 CLR 815. In this case, the Assistant Engineer in the Telecommunications Training Centre at Hyderabad was compulsorily retired vide Rule 56(j) of the Fundamental Rules. The order of compulsory retirement was challenged before the High Court by instituting a Writ Petition which was dismissed by the learned single Judge. However, the appeal preferred by the Assistant Engineer to the Division Bench succeeded. The Division Bench came to the conclusion that the impugned order of retirement was not founded on any material and, therefore, the order was arbitrary and capricious. The matter was taken in appeal before the Supreme Court. The Apex Court while referring to its earlier decision in Baikuntha Nath Das v. Chief District Medical Officer, Baripada, reported in 1992 1 CLR 610, approved the principles laid down therein which read as under :
"(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 opinion that it is in 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 a 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 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 showing that, while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference".
Upon application of those principles, the Supreme Court quashed the order of the Division Bench and upheld the order of compulsorily retiring the Assistant Engineer. For that matter, the Supreme Court held that though the earlier record of the Assistant Engineer was good for considerable time and once there was decline in the standard of work in the later years was enough to attract Fundamental Rule 56(j). The ratio that emerges from this decision is that once the exercise of power is found to be bona fide and based on material on record, it is not open for Courts to interfere.
The next authority relied upon by Shri Chinoy is the decision of C. D. Ailawadi v. Union of India & Ors. reported in 1990 2CLR 253. This was again a case of compulsory retirement under Rule 56(j) of the Fundamental Rules of an Audit Officer of Defence Services. In para 8 of the judgment, the Supreme Court observed that an aggrieved civil servant can challenge the order of compulsory retirement on any of the following grounds as settled by several decisions of the Court :
"(i) that the requisite opinion has not been formed; or
(ii) that the decision is based on collateral grounds; or
(iii) that it is an arbitrary decision".
It is, therefore, clear that an aggrieved employee can challenge the order of compulsory retirement only on three predicates as mentioned above.
We have already held that the Review Committee which considered the case of the petitioner in the year 1993 and again in year 1994 after deferring the case of the petitioner for a period of one year had enough material which was adverse to the petitioner. We are satisfied that the Review Committee of this Court which consisted of Senior Judges is a high powered body. The Committee found in year 1993 that the petitioner''s performance was not satisfactory and, therefore, needs to be cautioned and, therefore, deferred the decision for a period of one year. The petitioner was, accordingly, cautioned by the Prothonotary and Senior Master. When the Review Committee again met in the year 1994 had found, based on the two special reports and Annual Confidential Records, that the petitioner was rated as "very poor" and "poor" and had no capacity to understand, nor had control and supervision over his subordinates. The object of Rule 10(4)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982 is to weed out inefficient officials, that too, in public interest with the avowed purpose to augment efficiency in public service. This being so, we are unable to find any substance in the grievance made in this petition.
With a view to have transparency in the matter, we asked Shri Kochar, learned counsel appearing for the petitioner, to go through the Annual Confidential Records, the two special reports of different Prothonotary and Senior Masters and the minutes of the decision of the Review Committees in the years 1993 and 1994 which otherwise the Court had perused which Shri Chinoy had produced on behalf of the respondents. We also wish to make it clear that Shri Kochar has not challenged the authority of the Honourable the Chief Justice to exercise the power of compulsory retirement.
For the foregoing reasons, the petition fads and rule is discharged. We, however, award no costs as the petitioner was an ex-employee of this Court.