Civil Appeal No 13901978
Appeal by special leave from the Judgment  Order dated 26 3 1976 of the Punjab  Haryana High Court in Civil Writ Petition No 50676
Baldev Raj in person
UR Lalit and Miss A Subhashini for the Respondent
432 The Judgment of the Court was delivered by KRISHNA IYER J
The appellant an Accounts Officer compulsorily retired betimes appearing in person has painstakingly and proficiently presented his case which calls for mercy if not justice obsession with one s own case and inability to see things in perspective are often a frailty of a party who spends the enormity and anguish of his superannuated leisure on the main pursuit of his litigative points and this makes for prolixity and subjectivity of submissions which are not the persuasive but the provocative part of the art of advocacy
Even so we have listened with sympathy to the studious orality and read with patience the manuscript arguments emanating from the appellant
He was an Accounts officer since December 30 1961 having been so promoted and appointed by the Comptroller and Auditor General of India C  AG
The story of his career was snapped when he was compulsorily retired in the public interest  on August 27 1975 under FR 56ji by the Accountant General AG
Had he run his full course his continuance until April 1980 would have been sure
Finding himself an uneasy casualty when the easy axe of FR 56ji fell on him the appellant challenged the premature retirement in the High Court only to be greeted with a dismissal in limine
Here he has arrived by special leave and argued before us that his forced retirement is dubious and violative in many ways of FR 56ji
The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service
But potential compulsory retirement under FR 56ji haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid the efficient tremble and almost everyone genuflect not a happy prospect for a civil servant too young to sit idle and too old to get a new job
A jetsam has no option but to become driftwood or join the other profession where everyone desirable and undesirable has a chance
We stress his deleterious latency of FR 56ji to underscore the unwitting harm to public interest it does in the name of public interest
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim
The grounds on which the order of retirement has been challenged by the appellant may be formulated immediately after quoting the rule itself 56j Notwithstanding anything contained in this rule the appropriate authority shall if it is of the opinion that it is the public interest to do so have the absolute right to retire any 433 Government servant by giving him notice of not less than three months in writing or three months  pay and allowances in lieu of such notice
i If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years after he has attained the age of fifty years
Note 1 Appropriate authority means the authority which has the power to make substantive appointment to the post or service from which the Government servants is required or wants to retire
A break down of the provision brings out the basic components
The order to retire must be passed only by the appropriate authority 
That authority must form the requisite opinion not subjective satisfaction but objective and bona fide and based on relevant material
The requisite opinion is that the retirement of the victim is in public interest  not personal political or other interest but solely governed by the interest of public service
The right to retire is not absolute though so worded
Absolute power is anathema under our constitutional order Absolute  merely means wide not more
Naked and arbitrary exercise of power is bad in law
These essentials once grasped the appellant s submissions become self evident
His principal contentions not all the secondary details alone need detain us
His first challenge is to the competence of the Accountant General compulsorily to retire him because according to the appellant he is not the appropriate authority  within the meaning of the rule
The appointing authority who actually appointed the appellant was the C  AG but the AG retired him on the assumption that he had the requisite power
Article 3111 insists that a civil servant shall not be dismissed or removed by an authority subordinate to that by which he was appointed
The appellant by parity of reasoning argues that the AG being subordinate to the C  AG has no power to retire him
The fallacy in the argument lies in the confusion between dismissal  and compulsory retirement 
The two cannot he equated and the constitutional bar cannot be operative
Therefore we have to find on an independent enquiry as to who is the appropriate authority under r 56ji
Under Note 1 to FR 56 the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said rules
From this Note which is virtually a part of the rule the respondents contend that the power of the appropriate authority in respect of 434 Accounts Officers like the appellant has been vested in the AG by Notification of the Ministry of Finance dated 29 11 1972
Since the AG has been clothed from that date with power to appoint substantively Accounts Officers he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the  AG prior to 29 11 1972
In the light of the note which is part of the rule read with the notification delegating the power to the AG we see no flaw in the order impugned
No doubt ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered
There the specific provision in the Note to FR 56 must hold good and article 311 is not violated either
Nor is there any discrimination as contended for because retirement is a category different from the punishments covered by article 311
Who is the retiring authority on a given date This is answered by the Note which in substance says that he who is empowered to appoint the Accounts officer is also the appropriate authority to retire compulsorily on that date
In this view we cannot nullify the retirement of the appellant for want of competence
This takes us to the meat of the matter viz whether the appellant was retired because and only because it was necessary in the public interest so to do
It is an affirmative action not a negative disposition a positive conclusion not a neutral attitude
It is a terminal step to justify which the onus is on the Administration not a matter where the victim must make out the contrary
Security of tenure is the condition of efficiency of service
The Administration to be competent must have servants who are not plagued by uncertainty about tomorrow
At the age of 50 when you have family responsibility and the sombre problems of one s own life s evening your experience accomplishments and fullness of fitness become an asset to the Administration if and only if you are not harried or worried by what will happen to me and my family  Where will I go if cashiered  How will I survive when I am too old to be newly employed and too young to be superannuated  These considerations become all the more important in departments where functional independence
fearless scrutiny and freedom to expose evil or error in high places is the task
And the ombudsmanic tasks of the office or audit vested in the C  AG and the entire army of monitors and minions under him are too strategic for the nation s financial health and discipline
that immunity from subtle threats and oblique overawing is very much in public interest
So it is that we must emphatically state that 435 under the guise of public interest  if unlimited discretion is regarded acceptable for making an order of premature retirement it will be the surest menace to public interest and must fail for unreasonableness arbitrariness and disguised dismissal
To constitutionalise the rule we must so read it as to free it from the potential for the mischiefs we have just projected
The exercise of power must be bona fide and promote public interest
There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in
public interest
When an order is challenged and its validity depends on its being supported by public interest the State must disclose the material so that the court may be satisfied that the order is not bad for want of any material whatever which to a reasonable man reasonably instructed in the law is sufficient to sustain the grounds of public interest  justifying forced retirement of the public servant
Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations
The limitations on judicial power in this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in public interest
We will consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties
The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by article 311 of the Constitution
After all administration to be efficient must not be manned by drones do nothings incompetents and unworthies
They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive insufficient unintelligent or dubious conduct impede the flow or promote stagnation in a country where speed sensitivity probity
and non irritative public relations and enthusiastic creativity are urgently needed but paper logged processes and callous cadres are the besetting sin of the Administration
It is in public interest to retire a never do well but to juggle with confidential reports when a man s career is at stake is a confidence trick contrary to public interest
Moreover confidential reports are often subjective impressionistic and must receive sedulous checking as basis for decision making
The appropriate authority not the court makes the decision but even
so a caveat is necessary to avoid misuse We are inclined to ignore the case that the appellant was retired because he had declined to proceed on leave forcibly in September 1974 
While it is reprehensible for Government or any in the higher 436 echelons to compel a civil servant to go on leave on pain of being suspended retired or transferred to a far off place or indifferent post and the court may readily infer mala fides in the subsequent order if there is proof of antecedent pressure to take forced leave we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deserving victims
Let us look at the facts from these broad lines of Law
The AG has in vindication of his action submitted that the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee constituting the following officers 1
Accountant General 2
Senior Deputy Accountant General IC 3
Senior Deputy Accountant General Administration Punjab 4
Deputy Accountant General Administration Office of the Accountant General Haryana
The said Committee reviewed the service record of the appellant and found adverse entries in various confidential reports and inter alia held that the appellant was unable to perform his duty efficiently and effectively in the post held by him and recommended compulsory retirement under FR 56ji
The appellant was accordingly retired by the Accountant General on 27 8 1975
We are not inclined to agree with the appellant that the Reviewing Committee is an illegal body and taking its recommendations into consideration vitiates the AG s order
On the other hand it is clear that the decision to retire is surely that of the AG and the Reviewing Committee s presence is persuasive not decisive and prevents the opinionatedness of one by the collective recommendations of a few
Now we will enter the substantive dispute and search for the presence of public interest as the basis of the impugned order
The AG Mr Khanna has in his affidavit in this court sworn In this connection I respectfully submit that the Petitioner s work was found to be below average and that fact was noted by the appropriate authority in the confidential reports of the 437 petitioner as per details given below ____________________________________________________________ Period of Adverse Remarks Date of Report Communication ____________________________________________________________ 1961 62 Yes
An Average Officer
Though he did try to tackle the arrears in the GAD section under his charge
I was unhappy to observe that he was trying to shield those who shirked work
I also noticed that while he was anxious to bring to my notice persons who did their duties well he was willing to play down the lapse on their part if any without adequate justification
5121962 141264 A mediocrity who should take more Adverse to interest in the work remarks 20365 noted on 15166 29769 Industry and application
Poor to 151170 Ability to organise and manage Poor sections competently
Adverse remarks communica ted on May 1970
General AssessmentAn average officer who would do better if he showed more initiative and resourcefulness
1470 1Technical abilityBelow average to 3a Ability to organise and manage 91270 sections competently
Poor b Ability to control subrodi nates and get the best out of them
Poor 10
General AssessmentBelow Adverse Average
My remarks against remarks 13ab and 10 may be seen
communica The performance of Shri ted on Chaddha as the officer in 29th Sept charge of the Account Current 1971
sections was not upto the mark and consequently he had to be given a change
This officer is definitely below average
438 The aforementioned adverse remarks in the confidential reports of the petitioner were communicated in all the cases to the Petitioner and the Petitioner made representation which was rejected by the competent authority after due consideration
At the time of the review of the retention of the petitioner and other accounts officers a Committee consisting of Accountant General Senior Deputy Accountant General IC Senior Deputy Accountant General Admn Office of the Accountant General Haryana was constituted to review the cases of the Accounts officers for their retention on their attaining the age of 50 years
The said Committee was constituted on 23 8 1975
The said Committee after careful assessment of the performance of the employees concerned depicted in their confidential reports found that the persons including the Petitioner who were not able to perform their duty efficiently and effectively in the posts held by them at that time and the Committee therefore recommended to retire the Petitioner among others under FR 56ji
A copy of the minutes of the meeting held is annexed herewith as Annexure Y The Reviewing Committee report runs thus The Committee after a careful assessment of the performance of the employees concerned as depicted in their confidential reports have come to the conclusion that the persons mentioned below are not able to perform efficiently and effectively the duties of the posts held by them
1 Shri Baldev Raj Chadda Accounts Officer
 A bare glance at the confidential reports of the appellant brings out the striking fact that they relate to 1961 62 to the end of 1970
The appellant was promoted only in 1961 and was regularly drawing increment for well over a decade without let or hindrance
What is far more significant is the further fact that the Reviewing Committee and the AG appear to have ignored entries in yearlyhalf yearly reports in the seventies
The appellant states categorically A perusal of the extract from the Confidential reports would show that there were no adverse remarks in the Confidential Reports of the Appellant for the year 1971 72 1972 73 1973 74 1974 75 and 1975 76 till the date of his retirement from service on 27 8 75 He further rightly points out that the stand of the AG before the High Court was that the impugned order was not grounded on the adverse entries Since the adverse entries in the Confidential Reports of the petitioner were not in terms stated to be the ground for exer 439 cising the powers under FR 56j it was not necessary for the Respondent to deal with the various allegations levelled by the petitioner against the higher authorities in this regard
We must read these materials against the further background set out by the appellant If I was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both oldrevised without being held up or even delayed at EB or for increment then the proper course open to the authorities was to take action against me under CCS CCA Rules 1965 to revert me and not to retire me by taking shelter under FR 56ji to avoid initiating disciplinary action
This is thus a clear case of vindictive misuse of powers by the Appointing Authority under FR 56j
One wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement could be cashiered on the score that long years ago his performance had been poor although his superiors had allowed him to cross the efficiency bar without qualms
A short cut may often be a wrong cut
The order of compulsory retirement fails because vital material relevant to the decision has been ignored and obsolete material less relevant to the decision has influenced the decision
Any order which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts bearing on the decision is bad in law
Likewise any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon cannot be sustained
Legality depends on regard or the totality of material facts viewed in a holistic perspective
For these reasons the order challenged is obviously bad and we quash it
It is however open to the AG to take a fresh decision based on legal material and guided by legal principles
The appellant has by now reached the age of superannuation in the normal course
The result is that the consequence of any fresh order may only be financial
It is for the AG to consider whether in the circumstances a fresh evaluation for the purpose of compulsory retirement is called for
We merely allow the appeal quash the order of compulsory retirement and leave the law to take its course
The appellant will be entitled to costs which we quantify at Rs 2000
NKA Appeal allowed


Summary:
The appellant an accounts officer was promoted and appointed by the Comptroller and Auditor General of India
He was compulsorily retired on 27th August 1975 in the public interest under F R Rule 56ji by the Accountant General
The appellant challenged his pre mature retirement in the High Court by a Writ Petition which was dismissed in limine
In his appeal by Special Leave the appellant challenged the order of retirement and argued that i the Accountant General is not appropriate authority within the meaning of the rule and ii the retirement was not in the public interest
The respondent contended that i the power of the appropriate authority in respect of accounts officers like the appellant was vested in the Auditor General by Notification of the Ministry of Finance dated 19 1 1972 and ii the impugned order of compulsory retirement was made by the Accountant General on the basis of the recommendations dated 23 8 1975 of the Reviewing Committee
Allowing the appeal
 HELD An officer with continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be cashiered on the score that long years ago his performance had been poor although his superiors had allowed him to cross the efficiency bar without qualms
The order of compulsory retirement fails because vital material relevant to the decision has been ignored and obsolete material less relevant to the decision has influenced the decision
439D E Any order which materially suffers from the blemish of overlooking or ignoring wilfully or otherwise vital facts bearing on the decision is bad in law
Likewise any action which irrationally digs up obsolete circumstances and obsessively reaches a decision based thereon cannot be sustained
429 F The Fundamental Rules govern the Central Civil Services and ensure the career security which is the sine qua non of contended service
But potential compulsory retirement under F R 56 j i haunting the afternoon of official life injects an awesome uncertainty which makes even the honest afraid
the efficient tremble and almost everyone genuflect and is not a happy prospect for a Civil Servant too young to sit idle and too old to get a new job
A jetsam has no option but to become driftwood or join the other profession where everyone desirable and undesirable has a chance
This deleterious latency 431 of FR 56ji is stressed to underscore the unwitting harm to public interest it does in the name of public interest
Judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim
432 E G The order to retire must be passed only by the appropriate authority
That authority must form the requisite opinion not subjective satisfaction hut objective and bona fide and based on relevant material
The requisite opinion is that the retirement of the victim is in public interest not personal political or other interest but solely governed by the interest of public service
The right to retire is not absolutely though so worded
433 C D Since the AG has been clothed from 29 11 1972 with power to appoint substantively Accounts officers he has become the appropriate authority for compulsory retirement even though the appellant had been appointed by the C  AG prior to 29 11 1972
In the light of the note which is part of the rule read with the notification delegating the power to the AG there is no flaw in the order impugned
434 A B Ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered
The specific provision in the Note to FR 56 must hold good and article 311 is not violated either
Nor is there any discrimination because retirement is a category different from the punishment covered by article 311
434C Security of tenure is the condition of efficiency of service
The Administration to be competent must have servants who are not plagued by uncertainty about tomorrow At the age of 50 your experience accomplishment and fulness of fitness become an asset to the Administration if any only if you are not harried or worried
These considerations become all the more important in departments where functional independence fearless scrutiny and freedom to expose evil or error in high places is the task
And the Ombudsmanic tasks of the office of audit vested in the C  AG and the entire army of monitors and minions under him are too strategic for the nation s financial health and discipline that immunity from subtle threats and oblique overawing is very much in public interest
Under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement it will be the surest menace of public interest and must fail for unreasonableness arbitrariness and disguised dismissal
The exercise of power must be bona fide and promote public interest
434 F H 435 A B Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations
Administration to be efficient must not be manned by drones do nothings incompetents and unworthies
It is in public interest to retire a never do well but to juggle with confidential reports when a man s career is at stake is a confidence trick contrary to public interest
Confidential reports are often subjective impressionistic and must receive sedulous checking as basis for decision making
435D E G