ivil Appeal No 3050 of 1989
From the Judgment and Order dated 211287 of the Orissa Administrative Tribunal in TA No 161 of 1987
PP Rao and CSS Rao for the Appellant
PN Misra and AK Panda for the Respondents
The Judgment of the Court was delivered by SINGH J
Leave granted
This appeal is directed against the judgment of the Orissa Administrative Tribunal Bhubaneswar dated 2112
1987 dismissing the appellant s suit challenging his pre mature retirement from service
The appellant a qualified Electrical Engineer with training in West Germany joined service of Orissa Govern ment as an Assistant Engineer Electrical in 1955
In 1961 he was promoted to the rank of Executive Engineer Electri cal and deputed to the Orissa State Electricity Board
In March 1976 he was promoted to the post of Superintending Engineer Electrical on the basis of merit
In 1979 while working on the post of Superintending Engineer Electrical he was allowed to cross the Efficiency Bar with effect from 111979
He also officiated on the post of Chief Engineer Electrical in Orissa State Electricity Board
Since he had completed 50 years of age a Review Committee constituted by the Government of Orissa considered his service record in October 1983 for determining his suitability for retention in service in accordance with the first proviso to Rule 71a of the Orissa Service Code
On the recommendation of the 806 Review Committee the State Government by its order dated 10111983 pre maturely retired the appellant from service
He filed a civil suit before the Subordinate Judge Bhuba neswar challenging the validity of his pre mature retirement on a number of grounds
On the Constitution of the Orissa Administrative Tribunal the suit was transferred to the Administrative Tribunal Bhubaneswar under Section 29 of the Administrative Tribunals Act
The Tribunal by its order dated 21121987 dismissed the suit and upheld the validity of appellant s pre mature retirement
Hence this appeal
The Tribunal held that the Review Committee on an as sessment of the overall performance of the appellant s conduct had bona fide made recommendations to the State Government that the appellant s retention in service was not in public interest and in pursuance thereof the State Government retired the appellant pre maturely
The Tribunal further held that the order of pre mature retirement does not suffer from any legal infirmity
Learned counsel for the appellant urged that the Tribunal committed serious error in upholding the order of pre mature retirement as the recom mendation of the Review Committee was vitiated as it was rounded on irrelevant and inadmissible material
In this connection he urged that the Review Committee had consid ered a number of adverse remarks contained in the appel lant s service record for the remote past years which had no relevance and it had further considered adverse entries relating to the recent years although those adverse entries had not become final as the representations against those adverse entries had not been considered of by the State Government
He urged that while considering overall perform ance of the appellant the Review Committee was influenced by the entries of remote past which had lost their signifi cance as inspite of those entries the appellant had been promoted to higher post on merit and he had also been per mitted to cross Efficiency Bar
Before we consider these submissions it would be pertinent to refer of the recommen dations of the Review Committee which are as under From the year 1969 70 to 1982 83 Shri Bai dyanath Mohapatra has got adverse remarks for the years 1969 70 1970 71 1972 73 1975 76 1976 77 1981 82 and 1982 83
Although he was an intelligent officer he did not apply his mind and did not bestow adequate zeal in his work
He did neither assume responsibility nor did he work hard for which the Chief Engineer had to deal with his Executive Engineers and Assistant Engineers directly
He was found to be too cursory in dealing with the problems and adept in 807 putting the responsibilities for deficiencies on others
His performance during most of the years was found to be of average standard
The Committee considering his overall perform ance was of the view that his continuance in service is not desirable in public interest and that he be retired prematurely
This officer would have retired on superannuation on 3091989 No exception can be taken to the Government s opinion in retiring the appellant pre maturely on the basis of the aforesaid recommendation of the Review Committee as it clearly indicated that the appellant s retention in service was not in public interest
The purpose of the Rule confer ring power on the Government to retire Government servants pre maturely is to energise its machinery by chopping of the dead wood as held by this Court in Union of India vs JN Sinha 1971 1 SCR 791
The question which falls for consideration is whether the Review Committee was justified in making its recommendations on the basis of adverse en tries awarded to the appellant in remote past especially when the appellant had been promoted to the post of Superin tending Engineer in 1976 and he had further been permitted to cross Efficiency Bar in 1979
The adverse entries relat ing to the years 1969 70 1970 71 1972 73 and 1975 76 had lost all significance because inspite of those entries the appellant was considered to be an intelligent and efficient officer and in that view he was promoted to the post of Superintending Engineer
If those entries did not reflect deficiency in appellant s work and conduct for the purpose of promotion it is difficult to comprehend as to how those adverse entries could be pressed into service for retiring him pre maturely
When a Government servant is promoted to a higher post on the basis of merit and selection adverse entries if any contained in his service record lose their significance and those remain on record as part of past history
It would be unjust to curtail the service career of Government servant on the basis of those entries in the absence of any significant fall in his performance after his promotion
The adverse entries for the years 1969 70 1970 71 1972 73 and 1975 76 were communicated in a lot to the appel lant in 1978 although under the instructions issued by the State Government the adverse entries must be communicated by December of each year
The purpose of communicating adverse entries to the Government servant is to inform him regarding his deficiency in work and conduct and to afford him an opportunity to make amend and improvement in his work and further if the entries are not justified the communication 808 affords him an opportunity to make representation
If the adverse remarks awarded to a Government servant are communi cated to him after several years the object of communicat ing entries is defeated
It is therefore imperative that the adverse entries awarded to a Government servant must be communicated to him within a reasonable period to afford him opportunity to improve his work and conduct and also to make representation in the event of the entry being unjustired
In the instant case adverse entries relating to a number of years were communicated to the appellant in one 101 under a letter dated 2721978 contrary to the instructions issued by the State Government as contained in Circular No 29 dated 1921953
Belated communication of the entries re sulted into denial of reasonable opportunity to the appel lant to improve his performance
Further since adverse remarks for several years were communicated with inordinate delay it was impossible for the appellant to make an effec tive representation against the same
The appellant s repre sentation against the aforesaid entries was rejected on 1231981 on the ground that the representation was barred by time
Since the communication of the adverse entries was itself highly belated the representation against those adverse remarks should have been considered on merits and the same could not be rejected on the alleged ground of delay as the Government itself was guilty of inordinate delay in communicating the adverse remarks to the appellant
Adverse remarks relating to the years 1981 82 and 1982 83 were taken into account by the Review Committee in formu lating its opinion against the appellant s retention in service
The appellant s representation against those en tries had not been considered yet the Review Committee placed reliance on those entries
In fact the adverse remarks for the year 1981 82 were communicated to the appel lant under the letter dated 2161983 which was received by him on 571983 and as regards the adverse remarks for the year 1982 83 these were communicated to the appellant under the letter dated 2971983 which was received by him on 981983
He made representation to the Government against the aforesaid adverse remarks on 1111983 but before the representation could be considered by the Government the impugned order of pre mature retirement was made on 10111983
These facts make it amply clear that the appel lant s representation against the aforesaid adverse remarks for the years 1981 82 and 1982 83 was pending and the same had not been considered or disposed of on the date the impugned order was issued
It is settled view that it is not permissible to pre maturely retire a Government servant on the basis of adverse entries representations against 809 which are not considered and disposed of
Brij Mohan Chopra vs State of Punjab  When this aspect was pressed before the Tribunal it took a peculiar view in holding that since the representation had not been made before the date on which the Review Committee had considered the appellant s case the Committee need not have waited for the disposal of the appellant s representation and it was free to take into account the adverse remarks awarded to the appellant in the years 1981 82 and 1982 83
The appellant placed reliance on the decision of this Court in Brij Mohan Chopra s case but the Tribunal by some in volved logic avoided giving effect to the law laid down by this Court
It is not disputed that in the State of Orissa a Government servant has right to make representation within six months from the date of communication of the adverse remarks
The appellant had right to make representation against the adverse entries within six months period there fore the adverse entries awarded to him in the years 1981 82 and 1982 83 could not be taken into account either by the Review Committee or by the State Government in forming the requisite opinion as contemplated by Rule 711a of the Orissa Service Code before the expiry of the period of six months
Since the period prescribed for making representa tion against the adverse remarks for the years 1981 82 and 1982 83 had not expired the proper course for the Review Committee should have been not to consider those entries or in the alternative the Review Committee should have waited for the decision of the Government on the appellant s repre sentation
The view taken by the Tribunal is not sustainable in law
There is a disturbing feature of this case which viti ates Tribunal s order
Shri Gian Chand Chairman of the Tribunal ex Chief Secretary of the State of Orissa was member of the Review Committee which made recommendation against the appellant for his pre mature retirement and in pursuance thereof the State Government had issued the im pugned order
It appears that Sh
Gian Chand had later been appointed as Chairman of the Administrative Tribunal
Shri Gian Chand participated in the proceedings of the Tribunal and he is party to the decision of the Tribunal
These facts show that Mr Gian Chand who had administratively taken a decision against the appellant considered the matter judi cially as a Chairman of the Tribunal thereby he acted as a Judge of his own cause
While it is true that there is no allegation of personal bias against Sh
Gian Chand he may have acted bona fide nonetheless the principles of natural justice fair play and judicial discipline required that he should have abstained from hearing the appellant s case
While considering the appellant s case the Tri 810 bunal exercised judicial powers and it was required to act judicially as the jurisdiction of the Civil Court and High Court have been excluded and vested in the Administrative Tribunal
The Members of the Tribunal must follow rules of natural justice in administering justice like Judges they should not sit in judgment on their own decisions
Gian Chand was disqualified to hear the appellant s case
The order of the Tribunal is vitiated on this ground but as the appellant had not raised any objection before the Tribunal against the participation of Sh
Gian Chand we do not consider it necessary to grant relief to the appellant on this ground
For the aforesaid reasons we hold that the order of pre mature retirement is vitiated and the Tribunal committed error in upholding the same
We accordingly allow the ap peal set aside the order of the Tribunal dated 21121987 and also the order of the State Government dated 1011
The appellant is entitled to reinstatement with all consequential benefits of service in addition to the costs
RSS Appeal allowed


Summary:
Appellant joined the Military Engineering Service as Assistant Executive Engineer upon his selection by the Union Public Service Commission through the combined Engi neering Service Examination held in 1960
He represented that his previous service in Central Government should be considered in fixing his seniority
in the seniority list published the appellant s name was shown at 483rd position
The appellant made a representation against the lower place ment
Departmental Promotion Committee did not consider him for promotion because of the lower placement
Challenging the lower placement the appellant filed a suit before the Civil Court which was dismissed
His first appeal before the District Judge as also the second appeal before the High Court met the same fate
This appeal by special leave is against the judgment of the High Court
The respondents resisted the appeal on grounds of limitation and res judicata
Allowing the appeal HELD 11
There has been no dispute in the Courts below and here too that the appellant has been legally recruited to the service
The Union of India accepted the position that recruitment through the Union Public Service Commission had been regularly made and the post was not a temporary one but as the performance of the appellant had not been of a high order he had been placed below treating him to be temporary a position for which there is not much of legal support
770B C E F 12
Strictly speaking Janardhana s decision may not have the effect of res judicata for the present litigation but in a dispute of the present dimension where hundreds of employees are concerned it would not be proper for the employees to litigate over the same issue 768 from time to time
If it would be open to members of the service from time to time to raise disputes of the same nature and introduce uncertainty into the service that would affect the efficiency of the service and would be against public interest
That also would call into jeopardy the guarantees of public service and expose the officers into an atmosphere of insecurity
A seniority list of a cadre should not be made the subject matter of debate too often
771B D A Janardhana vs Union of India  Ors   affirmed
The plea of limitation raised by the respondents should not have been upheld in the facts of the case
The seniority list was being changed from time to time
The appellant had represented against the 1967 seniority list
The dispute was already pending before this Court in Bachan Singh s case
In fact without waiting for the judgment of this Court in that case the plaintiff came to Court on 2231971
The appellant was entitled to make a representa tion against the seniority list and rejection of the repre sentation actually would have given him the cause of action
In these circumstances non suiting him on the plea of limitation would not at all be justified
772E G Bachan Singh vs Union of India   referred to
Individual claims could not have been barred from consideration if by the time Janardhana s case came to be disposed of claims were pending adjudication before the Court
Appellant s case was already before the High Court by the time Janardhana s appeal was disposed of by this Court
The stand taken by Respondent No 1 that it was open to the appellant to appear in the competitive examination in the succeeding year to better his position is no justification for depriving him of his legitimate claim to a higher place ment in the seniority in the cadre
Appellant s position shall be shown below the recuirts of 1960 and above those of 1961 and he may be bracketed with one who has been assigned that position and an appropriate rectification shall be made in the seniority list of 1967 on the basis of the placement in terms of this judgment
His entitlement to promotion on the basis of such position shall be considered by the re spondents within four months hence
772H 773A D