Prataprai Nanjibhai Arya (Dr.) vs Municipal Corporation of Greater Bombay and Others

N.D. Vyas, J.—The petitioner has, by the present petition, challenged the decision taken by the Respondents to compulsorily retire him with effect from 31st December 1992.

The petitioner was appointed as Inoculators by the 1st Respondent in the month of June 1972. Thereafter he was promoted as Medical Officer in January 1982. As there was no chance for further promotion from the post of Medical Officer, Dispensary, the petitioner applied for change over of his duties from the Medical Officer Dispensary to the Administrative side of the Health Department of the First Respondent which request was granted and in January 1979 he was posted as Medical Assistant to Medical Officer of Health at Ward level. This is how he was promoted as Medical Officer of Health in January 1982 and he was given charge of ''F'' South Ward. He was subsequently transferred from ''F'' South Ward to ''S'' Ward and at his request was transferred to ''H'' Ward in July 1983. It is an admitted position that certain adverse remarks were made in his service record for the year 1987 which adverse remarks the petitioner sought to have expunged but failed. However, for the years 1988, 1989 and 1990 there was no adverse remarks in the service record of the petitioner. As far as 1992 is concerned. There is some controversy as to the interpretation of the remarks made in the service record of the petitioner. The petitioner completed 55 years on 5th August 1991. However on 30th September 1992, a communication was sent by the 1st Respondent to the Petitioner inter alia intimating to him that as he had completed the age of 55 years, as per Rule 67 of the Municipal Service Regulations, his case was placed before the Committee under the Chairmanship of the Deputy Municipal Commissioner for deciding his continuation in Municipal Service beyond the age of 55 years and that on 18th September 1992 orders have been passed to retire him from Municipal Service with effect from 31st December 1992, and that accordingly the petitioner stood retired from Municipal Service from 31st December 1992. The petitioner by his letter dated 14th October 1992 addressed to the 2nd Respondent intimated to the 2nd Respondent his shock of having received such communication and placed on record that none of the officers under whom he worked had ever complained against him or served any memo on him for not working or for any non-performance and that he failed to understand why such injustice was being done to him. Having not received any response to his representation, the present petition has been filed.

Mr. Kochar, the learned counsel appearing for the petitioner submitted that the decision taken by the 1st Respondent was based on no evidence and was, therefore, required to be set aside. It was his submission that decision taken was under Rule 67 of the Municipal Service Regulations which provided that the normal age of retirement of a Municipal employee would be 58 years and that a Municipal servant on attaining the age of 55 years may voluntarily retire after giving 3 months'' notice. However, the Municipal Corporation if it was of the opinion that it was in the public interest to do so, was to retire after he attained the age of 55 years by giving notice of three months. It was the submission that the power granted to the 1st Respondent to be exercised fully in the interest of public, it had to be demonstrated in the sense that sufficient material had to before the 1st Respondent to come to the conclusion that it was in the interest of public, that the said power was being exercised. It was his further submission that the satisfaction thus arrived at by the 1st Respondent had to be subjective satisfaction capable of being objectively tested. In his submission in fact there was no material before the 1st Respondent to have come to the conclusion much less any sufficient material to show that it was in public interest. Thus, it was his submission that the order compulsorily retiring the petitioner required to be quashed.

Mr. Murthy, learned counsel appearing for the Respondents handed over service record of the petitioner in respect of relevant years viz., 1987 to 1992 and emphasised that the remarks in the service record spoke for themselves inasmuch as as far as 1987 was concerned, the adverse remarks although sought to be expunged, remained on record and in respect of 1992, the adverse remarks were there to enable the Committee appointed to review such situation to come to the conclusion to which it arrived to compulsorily retire the petitioner. It was his submission that the Committee was a high powered Committee made of the Senior Officers of the 1st Respondent and there was no question of any malafides and in fact there was no allegation of any malafides. It was his further submission that the 1st Respondent received a circular bearing No. MOM/6977 dated 1-2-1991 for continuation of employees of Municipal Corporation after attaining the age of 55 years which inter alia provided that the performance of such employee should not be ''Below Average'' so as to entitle him to continue in the Municipal Service. On the basis of the service record, it was submitted by Mr. Murthy that the service record show the performance of the petitioner to be below average and that the Committee had, therefore, rightly come to the conclusion to retire the petitioner on attaining the age of 55 years.

The law as to compulsory retirement can be taken as well settled. The apex Court in the decision of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, inter alia has laid down the principals on which compulsory retirement could be effected. In fact the Apex Court, after considering the entire law on the subject, very succinctly laid down following principles which are at para 32 :-

"(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 the opinion that it is in the public interest to retire a government on forming the 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 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 arbitrary in the sense that no reasonable person would from the requisite opinion on the given material in short, if it is found to be 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 compulsorily 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.

Again the Supreme Court in the matter of State of U.P. and another v. Biharilal, reported in 1995 1 CLR 55, inter alia laid down that the entire service record should be considered before taking a decision to compulsorily entire a Government servant exercising the power under Rule 56(j) of the Fundamental Rules, that it was not necessary that adverse remark should be communicated or every remark, which may sometimes be categorised as adverse, be communicated, that it was on an all overall assessment of the record, the authority would reach a decision whether the Government servant should be compulsorily retired in public interest, that in an appropriate case, there may not be tangible material but the reputation of the officer built around him could be such that his further continuance would imperil the efficiency of the public service and would breed indiscipline among other public servants and that it was further laid down in the said decision that the Court had to see whether before the exercise of the power, the authority had taken into consideration the overall record even including some of the adverse remarks, through for technical reasons might be expunged on appeal or revision and that what was needed to be looked into was the bona fide decision taken in the public interest to augment efficiency in the public service. A Division Bench of this Court has an occasion to consider Rule 67 which had been pressed into service by the 1st Respondent by compulsorily retiring the petitioner. This was in the matter of the Municipal Corporation of Greater Bombay and others v. Dr. Jawahar Chhatram Bijiani, an unreported judgment of this Court in Appeal No. 447 of 1992, decided on 17th January 1994. The Court had inter alia laid down that the power under the said rule can be exercised only when it was found that continuation of an employee was not in the public interest and that in fact it is not possible in every case to gather evidence when the allegation is of ''doubtful integrity'' or ''doubtful character'' and that even though the evidence may not be available for holding a departmental enquiry if consistent complaints are received and the confidential record reflected that the conduct of the employee was not above board, then it was open for the assessing committee to recommend that continuation of the employee was not in the public interest.

The decisions cited above make imperative for the Court hearing the matter of compulsory retirement to make an objective test and scrutinise the material which was before the committee which came to the conclusion to compulsorily retire the petitioner. Mr. Murthy, the learned Counsel appearing for the Respondents relied on the Minutes of the Meeting of the Committee held on 29th August 1992 where inter alia the impugned decision was taken. The Committee consisted of four persons who were Executive Health Officer, Personnel Officer, Labour Officer and Deputy C.A. (Estt.) - I. The Minutes start with the observation that the criteria for fitness for continuation in municipal service beyond the age of 55 years for the category equivalent to Head Clerks and above, was his physical ability, integrity beyond doubt and record ''Not Below Goods. Several cases appeared to have been considered by the said Committee. As far as the petitioner''s case is concerned, the decision arrived at is reproduced below :-

"Dr. Arya has attained the age of 55 years as on 5-8-91. The complete dossier of C.H. Sheets as made available for scrutiny. There are some adverse remarks in his C.H. Sheets for the year 1987 and 1991-92. The overall record of Dr. Arya is ''Below Good''. The Committee has, therefore, decided that he may be made to retire from municipal service from 31-12-92 after office hours by giving him 3 months notice."

It is obvious on the plain reading of the above decision that the Committee came to the conclusion after perusing the service record of the petitioner, that in his C.H. Sheets for the years 1987 and 1991-92 there were some adverse remarks, and that overall record of the petitioner was "Below Good" and that was the basis on which the decision had been taken. The decision communicated to the petitioner by the communication dated 30th September 1992 does not give any reasons or any other further material. Rule 67 of the Municipal Service Regulations simply provides for exercise of such power in public interest. The affidavit in reply filed in the case relies on service record of the petitioner. The service record as mentioned earlier produced before this Court is in respect of 1987 is concerned, it is true that there are some adverse remarks, but perusal of the said remarks does not suggest any lack of integrity of dishonesty or insubordination on the part of the petitioner. At the most the some could be termed to amount lack of efficiency on the part of the petitioner. However, admittedly for the years 1988, 1989 and 1990 there were no adverse remarks against the petitioner in his service record meaning thereby that the performance of the petitioner was highly satisfactory. Coming to the year 1991-92 the remarks against performance Factors which deal with industry and application mentioned ''Industrious'', while dealing with the capacity to get work done by subordinates mentioned ''satisfactory'', and while dealing with relations with colleagues and public mentioned ''good''. As far as Intellectual Factors are concerned, dealing with general intelligence, the remark states ''above average'' and regarding technical ability, it states ''satisfactory''. The column dealing with administrative ability including judgment, initiative and drive is answered as ''good'' and as far as integrity and character are concerned, the remark is ''integrous and moral in character''. In answer to fitness to continue in the present post and fitness for promotion, the answer is ''fit''. The general assessment is answered follows :-

"The employee is sincere and he works as per the instructions of superiors."

This is signed by Dr. R. N. Kulkarni, Associate Professor & O.S.D. City Bureau. Significantly the Deputy Executive Health Officer one Dr. Kathuria in his assessment of the petitioner when asked "Do you agree with the Reporting Officer or do you wish to modify or add to his assessment has answered "I agree". Surprisingly just before the signature he has mentioned "The I.P.P.V. Project demands hard work, initiative and interest, which is lacking and needs pushing." Much is made out of these remarks made in respect of the year 1991-92. Personally I do not see anything wrong in these remarks to all. It is true that it nowhere stated that the performance of the petitioner has been excellent, at the same time, the report suggests that the performance of the petitioner was not only satisfactory but good. The question which requires to be answered is whether under the guise of public interest it is required to lay down a condition that the performance of an employee, while allowing him to continue upto the age of 58 years which is the normal age of retirement, has to be more that ''good'' and that too that the same could be laid down by any Departmental Circular ? In my view, the scrutiny of the service record which is before the Court reads no doubt that the overall record which is required to be considered is "very good" and ''satisfactory''. In fact the Supreme Court in the case of Baikuntha Nath Das (supra) has inter alia laid down that the entire record of service has to be considered before taking a decision in the matter and that more importance was to be attached to the record of and performance during the later years. After 1987 which was not a very happy year for the petitioner, as far as his service record is concerned, 1988 onwards right upto 1992 the service record is satisfactory. One wonders as to what must have weighted in the mind of the members of the Committee which had an occasion to consider the service record.

Taking an overall view, I am of the opinion that there was no material at all before the Committee concerned with the consideration as to continuation of the petitioner beyond 55 years to come to the conclusion that it was in the "public interest" to discontinue him. On the contrary the material produced before me shows no doubt that there was nothing in the record of the 1st Respondent to show that discontinuance of the petitioner was in public interest. Taking into consideration and following the guidelines laid down by the Supreme Court, the decision taken by the 1st Respondent requires to be quashed.

Had the petitioner continued in service, he would have retired by 4th August 1994. We are in June 1995, therefore. There is no question of directing the Respondents to reinstate and continue the petitioner in service till he attains 58 years. The only alternative which is available before this Court is to set aside the order compulsorily retiring the petitioner and directing the 1st Respondent to pay the salary and other benefits to the petitioner from 1-1-1993 to 4th August 1994 within three months from this day. The petition thus succeeds to that extent as this is the only order which is possible to be made under the facts and circumstances as indicated above. The 1st Respondent to pay costs of the petition.

Certified copy expedited.