Surat Singh Verma vs High Court of Himachal Pradesh and Others

V.K Mehrotra, J.—Petitioner Shri Sutra Singh Verma was born on April 15, 1927. He joined the Ministry of Education, Government of India, on August 14, 1948. He was transferred to the office of the District Judge on June 29, 1953. He was later transferred to the Judicial Commissioner''s Court on August 20, 1953, and confirmed as a clerk with effect from that date. Thereafter, he was transferred to the Delhi High Court on May 1, 1967 and promoted as an Assistant, on December 3, 1968/ He was confirmed on that post on. May 1, 1971. He was promoted as Reader to the Registrar on August 8, 1974, and confirmed in that post on September 4, 1979. The Petitioner was considered for promotion to the post of Superintendent (Judicial) by a Selection Committee consisting; of the Chief Justice and Justice C.R. Thakur of this Court on August 28, 1978. He was promoted to that post on October 1, 1978. He continued on the post of Superintendent (Judicial), till he was retired prematurely by an order of the Chief Justice with effect from May 31, 1983, except during the period from May 29, 1980 to September 19, 1981, when he worked as Reader to Justice T.R. Handa of this Court. In the normal course, Petitioner Verma would have retired on attaining the age of superannuation on April 30, 1985.

In the present, writ petition the order of premature retirement dated May 30, 1983 (Annexure-P 8 to the write petition) has been assailed by the Petitioner. This order says that:

Whereas the Hon''ble Chief Justice, High Court of Himachal Pradesh is of the opinion that it is in public interest to retire prematurely Shri Surat Singh Verma, Superintendent, in the High Court of Himachal Pradesh.

Now, therefore, in exercise of the powers conferred by Rule 3(1) of the High Court of Himachal Pradesh Officers and Servants (Premature Retirement) Rules, 1978, the Hon''ble Chief Justice High Court of Himachal Pradesh hereby orders the retirement of the said Shri Surat Singh Verma, having completed 30 years of service and 50 years of age, with effect from the after-noon of 31st May, 1983, after paying him three months pay and allowances in lieu of notice....

A copy of the High Court of Himachal Pradesh Officers and Servants (Premature Retirement) Rules, 1978 (for brief, "the Retirement Rules"), framed by the Chief Justice in exercise of the powers conferred by Article 229(2) of the Constitution of India and all other powers enabling him that behalf is Annexure-P 1 to the writ petition. Rule 3(1), relating to premature retirement, is in the following terms:

Premature retirement-(1)The appropriate authority shall, if it is of opinion that it is in the public interest to do so, have the absolute right to retire any court servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice:

(a) on completion of 30 years of qualifying service or (h) on attaining the age of:

(i) 50 years in respect of Class I and Class JJ Court Servants who have entered the service before attaining the age of 35 years;

(ii) 55 years in the case of all other Class I. Class 11 and Class III Court servants; and

(iii) 55 years in the case of such class IV Court Servants who entered in the service after 23rd July, 1966:

Provided that where three months'' notice is not given or notice for a period less than, three months is given, the Court Servant shall be entitled to claim a sum equivalent to the amount of his pay and allowances at the same rates at which he was drawing them immediately before the date of retirement for a period of three months or as the case may be, for the period by which such notice falls short of three months, provided further that the appropriate authority may at any time before the expiry of the whole or part of the unexpired period of notice , pay in lieu thereof and retire the court servant forthwith.

Rule 5 says that the provisions of these Rules shall have effect notwithstanding anything inconsistent therewith contained in any other rules for the time being in force.

The case of Petitioner Verma is that his work and conduct had been satisfactory all through. He was never conveyed any adverse report except for the period ending March 31, 1982 for which took the remarks were not such as to warrant his premature retirement. He had been granted promotions, selection grade and confirmation and there were no complaints against his honesty and integrity there was no justification for retiring him prematurely. It appeared to him that the order of retirement had been passed by the Chief Justice on matters and Circumstances which were irrelevant and foreign to the consideration to be weighed at the time of exercise of powers under Rule 3(1) of the Retirement Rules.

The High Court, in its return, has given out the circumstances in which the order of premature retirement was passed in paragraph 6) in the following words:

The averments made in paragraphs 6 and 7 of the petition are substantially correct so far as his performances in the lower posts are concerned. However, his performance as a Superintendent (Judicial) was that of an ''Average'' worker, and he was not even confirmed in the post of Superintendent (Judicial.) due to his unsatisfactory performance. His probation period was extended till further orders of the Hon''ble the Chief Justice on 30-9-1980 and 9-11-1982.the letter was conveyed to him on 11-11-1982 vide letter dated 11-11-1982 (Copy Annexure R-l-B). It may further be submitted that the Petitioner was also due to cross the efficiency bar on 1-10-1978, but he was not allowed to cross the same and vide orders of the Hon''ble Chief Justice dated 30-9-1980, it was desired to watch him for another six months and thereafter vide orders dated 6-4-1981, the Hon''ble the Chief Justice remarked that the Petitioner was not yet fit to cross the efficiency bar. But in 1982, when the new scales came into force and by virtue of that the pay of the Petitioner was fixed above the efficiency bar and as such no orders were required for him to cross the efficiency bar. However, again the Petitioner was to cross the efficiency bar in the revised scale w.e.f. 1-10-1982, but again the Hon''ble the Chief Justice vide his orders dated 9-11-1982 found the Petitioner not fit to cross the efficiency bar and his probation was again extended, and by virtue of his record, the Petitioner was not confirmed but was retired prematurely. Furthermore, the orders dated 9-11-1982 were conveyed to the Petitioner vide letter dated 11-11 -1982 (Annexine R-1 B)....

In paragraph 7 of the Return it has further been said that:

...It is denied that the orders of premature retirement could not have been passed by the Hon''ble Chief Justice after the Petitioner had completed 50 years of age. It is also denied that the orders had been passed on irrelevant or foreign considerations. The adverse remarks were conveyed to the Petitioner on 5-5-1982 and thereafter there was no improvement in his work and as such the Hon''ble Chief Justice formed the opinion, that it was in public interest to retire the Petitioner prematurely after completion of his 30 years of service and after he had attained the age of 50 years....

As desired, a copy of the order passed by the Chief Justice on May 4, 1983, directing the premature retirement of Petitioner Verma was made available to the Court. It reads thus:

I have gone through the A.C. Rs. He is an ''Average worker and has not shown any improvement. It is a fit case where he should be prematurely retired under Rule 3(1) of the High Court of H.P. officers and Servants (Premature Retirement) Rules, 1978. He is retired under the Rule with effect from 31st May, 1983 afternoon. Three months pay in lieu, of notice be given to him.

Sd/- VYAS DEVMISRA" 4-5-83.

This order was issued and served upon Petitioner Verma on May 31, 1983 in the morning.

The first submission made by Shri K.D. Sood, appearing for the Petitioner, was that, inasmuch as, Petitioner Verma had attained the age of 50 years on April 14, 1977, and had completed 30 years of service on August 14,1978, the power of premature retirement could not have been exercised by the Chief Justice at anytime thereafter. The power, according to the submission, could have been, only exercised at or about the time when Petitioner Verma attained the age of 50 years and completed 30 years of service.

This submission is only to be stated to be rejected. On Its terms, the power to retire a court servant can be exercised on completion of 30 years of qualifying service or on attaining the age of 50 years in. respect of Class I and Class II court servants who entered the service before attaining the age of 35 years. The exercise of power need not coincide with the completion of the qualifying period of service or attaining of the age of 50 years. A. construction to that effect would hedge in the exercise of powers with impracticable constraints. It is not necessary to consider the matter any further in view of what a Constitution Bench of the Supreme Court said in T.G. Shivacharana Singh and Others Vs. The State of Mysore, , while dealing with, challenge to the validity of note 1 to Rule 285 of the Mysore Civil Services Rules, 1958.

Rule 95(a) of those Rules provided that the normal age of retirement was 55 years. Rule 285, dealing with the retiring pension, provided that, in special, cases, the Government could require any government servant to retire any time after he has completed 25 years'' qualifying service or en attaining 50 years of age if such retirement was considered necessary in the public interest by a notice, in writing at least, three months before the date on which the Government servant was required to retire. The Supreme Court observed (in paragraph 4 of the report) that:

It would thus be clear that though the normal age of retirement under Rule 95(a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest. The power can, however, be exercise d only in cases where the government servant has completed 25 years qualifying service or has attained 50 years of age. In other words, ordinary retirement by superannuation occurs after attaining 55 years or completing 30 years service, while premature retirement can be forced on the government Servant if he has either completed 25 years of service, or has attained 50 years of age. In the case of premature compulsory retirement, the government servant is entitled to pension as indicated in note to Rule 285".

Dealing with the scope of similar power contained in Fundamental Rule 56(j) the Supreme Court observed in Union of India (UOI) Vs. Col. J.N. Sinha and Another, (in Para graph 8) that:

...One of the conditions of the 1st Respondent''s service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so....

And (in paragraph. 9) that:

If is true that a compulsory retirement is bound to have sheen adverse effect on the Government, servant who is compulsorily retired but then, as the rule provides that such retirement can, be do I only after the officer attains the prescribed age. Further a. compulsorily rolled Government servant does not lose any of the benefits earned by him till the date of his retirement....

(Emphasis mine)

All the-''G abstentions she is beyond doubt that the power can be exercised a! anytime .after the qualifying penied of is service or the prescribed age has hoc-1, completed by the court is cravat and that the exercise of power cannot be invalidated on the ground that it was not so exercised at or about the time when the qualifying period of service has been, completed of the prescribed age attained by the employee.

Tire second submission of Shri Sood was that Petitioner Verma was a confirmed Reader the-ugh he was working on probation in the post of Superintendent when the order of premature retirement was passed. If it was felt that, his performance on the post of Superintendent was not up to the mark so as to confirm him in that post or to let him continue thereon, the Petitioner should have been given an option to revert to his substantive post. He should not have been retired prematurely.... Reliance was placed by Shri Sood, for this submission, upon a decision of the Delhi High Court in K.R. Tahiliani v. Union of India and anal her 1978 (1) SLR 815. This decision, was affirmed by the Supreme Court in Union of India etc. v. K. R. Tahiliani and Anr. MR 1980 SC 953.

Tehiliani was retired compulsorily under Fundamental Rule 56 (y)(?) on. Attaining the ape of 50 years The order of retirement was made on July 17. 1975. On that date Tahiliani held, in a substantive capacity, the post of Section Officer (Civil). He had been working as Asstt. Engineer, a Class II post, in an. officiating capacity since May 20. 1968 on being appointed, as such, on ad hoc basis. A single Judge of the Delhi High Court set-aside the order of retirement on the ground that having regard to the language, of the Rule. Shiite could only be prematurely retired from service, after he attained the age of 50 years, if he has been absorbed in Class I or Class II service or permanently held a Class I or Class II pest. An. employee who did not belong to any Class I or Class II service or permanently hold such post, could not have been dealt with under Sub-clause (i) of Clause (j) of Rule 56 and could not be made to retire before he attained the age of 55 years. The order of retirement was held to be premature.

The Supreme Court said (in paragraph 5) that:

...when a Government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, Rule 56 (j)(i) comes to the rescue of the Government. But if he is only a temporary hand he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have reached an inevitable conclusion that Rule 56(j)(i) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not an officiating basis only.

A perusal of these decisions shows that they turn on the language of Rule 56(j) and that the Supreme Court eventually found that Sub-clause (i) under which Tahiliani was sought to be retired was meant to covet only those who belonged to a Class I or Class II service or post on a regular basis and did rot cover the case of a person who had been officiating therein.

The Retirement Rules applicable to Petitioner verma, however, do not make a distinction of the nature read in Fundamental Rule 56(j) by the Delhi High Court and the Supreme Court, [n any case, the order of premature retirement was made in the case of the Petitioner on May 30, 1983, after he had completed 55 years of age (On. April 14, 1982). Even if it be assumed that the same interpretation is permissible in respect of Rule 3(1) of the Retirement Rules, framed by the Chief Justice the exercise of power by the Chief Justice will be ascribed to the correct source, that is, Sub-clause (ii) of Rule 3 (I).

Another facet of the same submission of Shri Sood was that, in any case, the Petitioner should have been given an option to go back to his substantive post of Reader." It was urged that no deficiency in the work and conduct of Petitioner Verma was noticed in relation to the post of a Reader. The only deficiency attributable to him was in respect of his work on the post of Superintendent in which post his period of probation was extended more than once and he was not confirmed therein.

The basis for the plea that Petitioner Verma should have been given an option to revert to his substantive post was sought by Shri Sood from a similar requirement in the case of a Government servant who is prematurely retired under Fundamental Rule 56.

Shri Sood pointed out that Rule 3(1) of the Retirement Rules was akin to Fundamental Rule 56 (j) as it existed in the year 1978 and was, as it were, bodily lifted there from. Fundamental Rule 56 (j) was amended with effect from September 11, 1981, and the following provision was made, by adding a proviso, saying that:

provided further that a Government servant who is in a Group ''C post or service in a substantive capacity, but is holding a Group ''A'' or Group ''B'' post or service in an officiating capacity shall, in case it is decided to retire him from the Group ''A'' or Group ''B'' post or service in the public interest, be allowed on his request in writing to continue in service in the Group ''C post or service which he holds in a substantive capacity.

The amendment gave statutory effect to the provision contained in the Government of India, Ministry of Home Affairs, Office Memorandum No. 250! 3/14/77-Estt. (A) dated January 5, 1978, which said that the Committee constituted in the Department while considering the case of an officer with a view to determine whether he should be retired from service in public interest or be retained there, would also, while making its recommendations, keep in mind the fact that where the employee is not found fit to continue in his present post, his fitness/competence to continue in the lower post, from where he had been previously promoted, should be considered. And, further, in case the employee indicates his willingness to work in the lower post and gives a written request for being so reverted, he may be retained in service and continued in the lower post.

It was canvassed by Shri Sood that what was considered reasonable, on account of what has been said in the Office Memorandum and later given statutory recognition, for a large body of Government servants should also be treated as reasonable for the employees of the High Court. In other words, Petitioner Verma was entitled to be given an option to continue in the lower substantive post of a Reader instead of being prematurely retired from the higher post of Superintendent on which he was on probation.

Attractive though it is, the submission loses sight of the fact that there is no provision in the Retirement Rules for the Court servants for such an option being given to him. The Retirement Rules framed by the Chief Justice have been given an over-riding effect in Rule 5, which says that the provisions of the Rules will have effect notwithstanding anything inconsistent therewith contained in any other rules for the time being in force. Besides, while framing the Retirement Rules, which were notified on December 10, 1979, the Chief Justice would be deemed to be cognizant of the existence of the Office Memorandum dated January 5, 1978. Yet, in his discretion, he did not incorporate a similar provision in the Rules nor issue any administrative instructions in that regard.

Since there is no provision, either in the Retirement Rules or by way of an administrative instruction, for a Court servant to be given an option to revert to his substantive post. in the event of a decision to retire him prematurely while he is officiating in a higher post or is working on it on probation, the plea to that effect made on behalf of Petitioner Verma cannot be sustained. ''The third submission of Shri Kapil Dev Sood was that, inasmuch as, the order of the Chief Justice shows that the Petitioner was an ''Average'' worker and had not shown any improvement, which observation could only relate to his work on the post of Superintendent alone, the decision to retire Petitioner Verma could not be upheld as no consideration was made by the Chief Justice of the record of his service as a whole. More so, when nothing had been found wanting in the Petitioner''s conduct or integrity nor had he been found to have suffered some physical incapacity for the work that he was doing. The precise submission, was that in a situation like this, the Petitioner could not be treated to be "dead wood" nor could his premature retirement be held to be in public interest.

In Union of India (UOI) Vs. Col. J.N. Sinha and Another, the Supreme Court, referring to the express words of Fundamental Rule 56(j), said (in paragraph 8) that:

...the right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. 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.... Various considerations may weigh with the appropriate authority while exercising the powers conferred under the rule, in some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate are authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood, ft is in public interest to chop off the same....

In Union of India (UOI) Vs. M.E. Reddy and Another, it was observed that:

...it is not. an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he puts in has to be considered from the point of view of achieving higher standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service....

Likewise, in Gian Singh Mann Vs. High Court of Punjab and Haryana and Another, it was said, in the context of the expression ''public interest'' in the Premature Retirement Rules (in paragraph 7) that:

...In our opinion, the expression in the contest of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the government service to which he belongs....

In Brij Mohan Singh Chopra Vs. State of Punjab, it was reiterated that:

...the rule does not lay down any criteria, guidelines for the exercise of power, although public interest is specified in the rule, which means power has to be exercised in the public interest only. The public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient, dead- wood or corrupt and dishonest. Therefore the rule contemplates premature retirement of the inefficient, corrupt or dead-wood which would subservient the public interest.

The question is as to who is ''dead-wood'', for purposes of premature compulsory retirement, where -the order to that effect t is not founded upon any lack of integrity or for reason of physical incapacity in the employee for the purpose of his duties. In other words, what is the criterion for determining that a person can be characterised as ''dead-wood'' in relation to work. The submission on behalf of the Petitioner is that dead - wood'' can only be that officer whose work invites adverse entries and not one who is ''average'' and fails to improve upon it. That is, the officer should be ''below average''.

Assistance was sought by Shri Sood, for the submission in this respect, upon the observations of the Gujarat High Court in Shri V.C. Shroff v. The Gujarat Electricity Board, Baroda, [1978 (2) SLR 502] contained in paragraph 12 of the judgment. In particular, he drew the attention of the Court to the following observations:

...Mr. Patel argued that the paramount idea behind premature retirement is to chop off dead wood. When this is the guiding principles behind premature retirement, the approach to the problem assumes a different dimension and angle. While examining the case of a person what is required to be seen is whether he is bad enough to be chopped off from service an...employee may be positively good, an employee may be positively bad and an employee may be neither good nor bad. The underlying principle of regulation No. 72 is that those who are eminently efficient obviously are not liable to be removed and cannot be removed. Those who are positively bad must be chopped off. The middle class, namely, the class of those who are not, figuratively speaking dead wood, are to be allowed to live the normal tenure.... We have no doubt that the Board had examined the cases of these two Petitioners from the standard of positive merits, but they have not addressed themselves to the question of a third middle category referred to just now above. It is an admitted position before us that they were not so prematurely retired because they were lacking in integrity or because there was erosion in their physical or mental condition. Only thing that could be available to the Board was the presence of a positively bad record that would make the Petitioners unsuitable and consequently liable to be cut off from the service after 55 years of age.... Unless exceptional circumstances of the type envisaged above are there, the harsh treatment of premature retirement cannot be resorted to....

Reliance was also placed by Shri Sood upon what was said by the Supreme Court in Brij Mohan Singh Chopra Vs. State of Punjab, , particularly in paragraph 11, where it said that:

though the entire service record of an employee may be considered while considering the question of his premature retirement, but if the service record of the last 10 years of his service do not indicate any deficiency in his work and conduct it would be unjust and unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period. In Baldev Raj Chadha Vs. Union of India (UOI) and Others, this Court held that if an officer had earned no adverse entries at least for five years immediately before the compulsory retirement, he cannot be cashiered on the score that long years ago his performance had been poor.... The Appellant had not earned any adverse remarks during the last five years of service, on the other hand he had earned ''good'' and ''very good'' entries during those years. In this view the Government''s decision to retire the Appellant prematurely in exercise of the power under Rule 3 is not sustainable in law.

True it is that the object of premature compulsory retirement is to do away with ''dead wood''. For determining it, the performance of the employee during recent years preceding the date when the decision is taken is to be kept in view in particular. If there is any doubt about the integrity of the employee or he has incurred some physical deficiency, the power may be exercised without much difficulty. If the post upon which the employee is working requires the incumbent to be very efficient or of high calibre, and the employee is not found up to that mark, the power to retire him compulsorily may be exercised on the ground that he had become ''dead wood''. If the performance of the employee, on a post which does not require any particular level of efficiency, falls below average, which may be reflected by the adverse entries awarded to the employee, an. order requiring him to retire compulsorily ahead of the date of superannuation may be unexceptionable. But in a case where the post on which the employee is working at the relevant time does not require any such degree of efficiency or calibre which is not possessed by an average worker, the decision to treat the ''average'' worker as ''dead wood'' may not be justifiable. An employee who is just ''average'' cannot necessarily be characterised as ''inefficient'' unless the requirement of the job which he in asked to perform requires a higher degree of efficiency.

In the present case there is nothing, either in the Raj turn of the High Court, or in the order of the Chief Justice, to; show that the post of Superintendent on which Petitioner Verma was working at the relevant time required efficiency of an order higher than that of average performance. The fact that the period of probation of Petitioner Verma was being extended from time to time and it was noticed that he was not improving, does not, by itself, be legitimately held to imply, as canvassed by Shri Chhabil Dass on behalf of the High Court, that the post held by Petitioner Verma acquired performance of A higher order than the ''average level It is not in. dispute that Petitioner Verma was not found lacking in integrity of in his physical capacity. He also did not earn any adverse entries in the recent post. On the contrary, he was found fit for pro-'' motion to the higher post of Superintendent by a Selection Committee in the year 1978 and promoted to it. He was also deputed to attend a Foundation Course in. the year 1979 at the Public Administration Institute Mashobra, being the only officer from the High Court who was permitted to do so. The so called adverse remarks communicated to the Petitioner on May 5, 1982, through Annexure P 6 to the petition, for the year 1981-82 also assessed him as ''average''. Such an entry, even according to the High Court, does not constitute an adverse entry, as is clear from the instructions contained in the communication of the Registrar to all the Judicial Officers in Himachal Pradesh dated June 14/15, 1984 (Annexure-P 17) filed along with the affidavit-in-rejoinder.

Normally, this Court would not interfere with the administrative decision of the Chief Justice that it was in public interest to require a court servant to retire prematurely. Yet, in a case like the present, when, the Chief Justice is found to have exercised the power of directing premature retirement on an erroneous assumption about the principle and the material on the basis where of the decision that it was in public inter set to require an employee to retire prematurely could be legitimately founded, his decision, would be amenable to interference by the Court on the judicial side. The order of the Chief Justice dated May 4,1983, annexed to the petition, as Annexure P 8, deserves to be and is quashed.

The petition is allowed, as aforesaid. However, parties are left to bear their own costs.