rary to principles of natural justice to retire prematurely a government employee on the basis of adverse entries which are either not commu nicated to him or if communicated representations made against those entries are not considered and disposed of
In the instant case the appellant had submitted his represen tations against adverse entries for the year 1971 72 and 1972 1973 and admittedly those representations were not considered and disposed of and yet the appropriate authority considered those entries in forming opinion that the appel lant s premature retirement was in public interest
There fore the order of the state Government is not sustainable in law
593E G  CIVIL APPELLATE JURISDICTION Civil Appeal No 7427 of 1983
From the Judgment and Order dated 581981 of the Punjab and Haryana High Court in Civil Writ No 1384 of 1981
PP Rao and KK Mohan for the Appellant
RS Sodhi for the Respondent
The Judgment of the Court was delivered by 587 SINGH J
This appeal is directed against the Order of the High Court of Punjab and Haryana dismissing the appel lant s petition made under article 226 of the Constitution challenging validity of the Punjab Government s Order dated 19380 retiring the appellant prematurely from service
The appellant after having obtained 1st Class MSc
Technology degree from Banaras Hindu University in 1950 was awarded Gandhi Memorial Scholarship by the Govt
for study and training in France for a period of three years
On his return from abroad he was appointed as Superintendent Quality Marking Centre Scientific Instruments of the Government of Punjab
In 1963 he was promoted to the post of Deputy Director Technical
In 1968 he was promoted to the post of Joint Director Industries which post he continued to hold till he was prematurely retired by Government order dated 19th March 1980 issued in exercise of power under rule 3 of the
Punjab Civil Services Premature Retirement Rules 1975 hereinafter referred to as the Rules
The appellant made a representation against the order of prema ture retirement to the Government but the same was rejected thereupon the appellant challenged the validity of the Government order by means of a writ petition under Article 226 of the Constitution before the High Court which was dismissed in limine by the High Court on August 5 1981
The learned counsel for the appellant contended that the Government decision to retire the appellant prematurely was arbitrary and unreasonable as the appellant s service record has all along been good and there was no material before the appropriate authority on the basis of which the requisite opinion that the appellant s premature retirement was neces sary in public interest could be formed
He urged that the appellant had earned consistent good entries for the last 5 years but the competent authority relied on some adverse entries of remote past to retire the appellant
Learned counsel further urged that appellant s representation against some of the adverse entries which had been consid ered against him was pending and the same had not been considered and disposed of
Those entries should not have been considered against the appellant
On the other hand learned counsel appearing for the State urged that the appellant s work and conduct was not satisfactory and the State Government having considered the over all service record of the appellant formed the requisite opinion bona fide that the appellant s premature retirement was necessary in public interest
In support of his contention he placed the service record before the Court and referred to a number of adverse entries 588 earned by the appellant during his service career to which we shall make reference at a later stage
The purpose and object of premature or compulsory re tirement of Government employee is to weed out the ineffi cient corrupt dishonest or dead wood from the Government service
This fight of the Government is well established which is generally exercised in accordance with relevant service Rules
The scope and ambit of exercise of this absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations
In the instant case the appellant was prematurally retired in exercise of power under Rule 3 of the Punjab Civil Services Premature retirement Rules 1975 it would therefore be necessary to have a look at these provisions
Rule 3 reads as under 3
Premature retirement 1a The appropriate authority shall if it is of the opinion that it is in public inter est to do so have the absolute right by giving an employee prior notice in writing to retire that employee on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice
b The period of such notice shall not be less than three months
Provided that where at least three month s notice is not given or notice for a period less than three months is given the employee shall be entitled to claim a sum equivalent to the amount of his pay and allow ances at the same rate at which he was draw ing them immediately before the date of re tirement for a period of three months or as the case may be for the period by which such notice falls short of three months
2 Any Govt
employee may after giving at least three month s previous notice in writing to the appropriate authority retire from service on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice
589 Provided that no employee under suspension shall retire from service except with the specific approval of the appropriate authority
 The above rule invests absolute right in the appropriate authority to retire an employee prematurely on his comple tion of 25 years of qualifying service or 50 years of age
The appropriate authority as defined by rule 2 means the authority which has the power to make substantive appoint ment to the post or service from which the Govt
employee is required to retire
Before a Govt
employee is retired in exercise of power under this rule it is necessary that the Govt
servant must have completed 25 years of qualifying service or he must have attained 50 years of age and further he must be given three month s notice in writing
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 administra tion 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 ineffi cient corrupt or dead wood which would subserve the public interest
Since the rule does not contain any further guidelines the State Government issued a Government Order on September 26 1975 laying down the guidelines and the procedure neces sary to be followed in exercising powers under rule 3 for premature retirement of a Government employee
The order stated that the appropriate authority should utilise the power under rule 3 in a judicious manner to retire a Govern ment employee on formulating its opinion by scrutiny of the confidential reports of the employee and by taking into consideration any other substantial material it may have before it
The order further stated that it was not feasible to lay down any absolute terms as to how many adverse en tries about inefficiency or lack of integrity would justify the premature retirement but it laid stress that the service record as a whole would determine the merit of each case
Paragraph 6 of the letter further stated that remoteness of an adverse entry the scrutiny of the service record of the employee concerned such as crossing of efficiency bar confirmation and promotion to a higher post or any other meritorious service rendered by the employee would have their relative importance
The order emphasizes that the appropriate authority may consider premature retirement of a Government employee if it has reasonable cause to believe that the employee con 590 cerned was lacking in integrity irrespective of the assess ment of ability and efficiency in work
It further provides that the appropriate authority should review the cases of employees on their completing 25 years of qualifying service or their attaining 50 years of age
The Government issued another order on August 4 1978 pointing out that while exercising power under rule 3 the service of an employee as a whole would determine the merit of each case but if there was a single entry describing the employee concerned as a person of doubtful integrity that would justify the prema ture retirement under the rules
The executive instructions issued as contained in these two Govt
orders provide suffi cient guidance for the exercise of power under rule 3
According to these instructions the service record of an employee has necessarily to be considered while taking decision for the premature retirement of an employee and if there was a single entry casting doubt on the integrity of an employee the premature retirement of such an employee would be in public interest
In the absence of any details by which the question of public interest could be determined in the rules it was open to the State Govt
to issue execu tive instructions for the guidance of the appropriate au thority to exercise the power of premature retirement and the instructions so issued as contained in the aforesaid Govt
orders have binding character
In the counter affidavit filed on behalf of the State of Punjab it is asserted that the appellant during his service with the industries department earned adverse remarks in the annual confidential reports on his work and conduct for the years 1960 61 1963 64 1964 65 1969 70 1970 71 1971 72 1972 73 and 1975 76 which indicate that the overall service record of the appellant was bad and his integrity was fre quently challenged
It was been further stated that these entries were taken into consideration in retiring the appel lant
No other material was considered against the appel lant
According to the respondents the appellant s service record as a whole was taken into consideration and thereupon it was found that he had earned a number of adverse entries which indicated his inefficiency and for that reason it was considered necessary to retire him prematurely in public interest
We have been taken through the adverse entries by the learned counsel appearing for the State as he placed the service record before us
On a perusal of the same we find that the respondents took into consideration some of the adverse entries which related to remote past prior to the promotion of the appellant to the post of Joint Director Industries
It is now settled that adverse entries if any awarded to an employee lose their significance on or after his promotion to a higher post
The adverse entries awarded to the appellant prior to 1968 could not be taken into 591 consideration and therefore the adverse entries for the years 1960 61 1963 64 and 1964 65 could not legally be taken into consideration in forming the requisite opinion to retire the appellant prematurely from service
It is now well settled that while considering the question of prema ture retirement it may be desirable to make an overall assessment of the Government servant s record but while doing that more value should be attached to the confiden tial reports pertaining to the years immediately preceding such consideration
It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into consideration for prematurely retiring a Government employee then perhaps no employee would be safe even though he may have brilliant record of service in later years
This aspect was emphasised by this Court in a number of cases namely Baldev Raj Chadha vs Union of India  Ors   Briij Bihari Lal Agarwal vs High Court of MP  Ors   Amar Kant Choudhary vs State of Bihar  Ors  and JD Srivastava vs State of MP  Ors  This Court has consistently taken the view that old and stale entries should not be taken into account while consid ering the question of premature retirement instead the entries of recent past of five to ten years should be con sidered in forming the requisite opinion to retire a Govern ment employee in public interest
It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past
We are therefore of the opinion that if entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee
In view of this we would confine our scrutiny to the appellant s record of service for the last 10 years prior to the date on which he prematurely retired
We would now examine the appellant s service record for the last 10 years
On a perusal of the same we find that the appellant was awarded adverse remarks for the year 1971 72 and 1972 73 and for the rest of the years he was not awarded any adverse remarks
On the other hand for the years 1974 75 and 1975 76 the reporting officer rated him as a very good  officer although the reviewing officer treated him as ave rage 
In 1976 77 the reporting officer rated him as a good  officer while the reviewing officer rated him as an average 
For the year 1977 78 1978 79 and 1979 80 the reviewing officer assessed his work and conduct good 
During the last 5 years of his service the appellant had earned good entries which are commendable in nature
Except the two entries awarded to him for the years 1971 72 1972 73 592 the appellant has not earned any adverse entry reflecting upon his work and conduct
It is significant to note that in none of those entries his integrity was doubted
So far as the adverse entries for the year 1971 72 and 1972 73 are concerned the appellant has asserted that even though he had filed representations in accordance with the rules against those entries his representations had not been considered or disposed of but the appropriate authority considered those entries against him
In the counter affidavit filed on behalf of the State it is conceded that the appellant had filed representations against the aforesaid two entries but the two representations could not be disposed of as the representations were not traceable on the Government file
The fact however remains that the appellant had filed repre sentations against the aforesaid
adverse entries and the receipt of the representations is admitted by the Govt
but those representations were kept pending
The question which fails for consideration is whether the aforesaid two entries could be taken into consideration in forming the requisite opinion to retire prematurely the appellant from service
There is no doubt that whenever an adverse entry is awarded to a Government servant it must be communicated to him
The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries
If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justi fied or not
Making of a representation is a valuable right to a Govt
employee and if the representation is not consid ered it is found to affect him in his service career as in Govt
service grant of increment promotion and ultimately premature retirement all depend on the scrutiny of the service records
In Gurdial Singh Fiji vs State of Punjab  Ors the appellant therein was denied promotion on account of certain adverse entries against which he had made representation to the Govt
but for some reason or the other those representations could not be considered or disposed of
In view of those adverse entries he was not selected for promotion
This Court while consid ering the effect of non consideration of the representation observed  The principal is well settled that in accordance with the rules of natural justice an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned 593 so that he has an opportunity to improve his work and conduct or to explain the circum stances leading to the report
Such an oppor tunity is not an empty formality its object partially being to enable the superior au thorities to decide on a consideration of the explanation offered by the person concerned whether the adverse report is justified
Unfortunately for some reason or another not arising out of any fault on the part of the appellant though the adverse report was communicated to him the Government has not been able to consider his explanation and decide whether the report was justified
 After the aforesaid observation this Court directed the State Govt
to consider and dispose of the representation made by the appellant and thereafter the Selection Committee was directed to consider his case afresh
In Amar Kant Choudhary vs State of Bihar  Ors
supra the Court again emphasized that adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report
Unless the repre sentation against the adverse entry is considered and dis posed of it is not just and fair to act upon those adverse entries
These decisions lay down the principle that unless an adverse report is communicated and representation if any made by the employee is considered it cannot be acted upon to deny promotion
We are of the opinion that the same consideration must apply to a case where the advese entries are taken into account in retiring an employee prematurely from service
It would be unjust and unfair and contrary to principles of natural justice to retire prematurely a Govt
employee on the basis of adverse entries which are either not communicated to him or if communicated representation made against those entries are not considered and disposed of
The appellant had submitted his representation against adverse entries for the year 1971 72 and 1972 73 and admit tedly those representations were not considered and disposed _of and yet the appropriate authorities considered those entries in forming opinion that the appellant s premature retirement was in the public interest
We are therefore of the opinion that for this reason the order of the State Govt
is not sustainable in law
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 594 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  Ors supra this Court held that if an officer had earned no adverse entries atleast for five years immediately before the compulsory retirement he cannot be cashiered on the score that long years ago his performance had been poor
It appears that the State of Punjab realised that premature retirement of an employee on the basis of entire service record which may include stale entry would be unreasonable and it therefore issued Govt
order on June 22 1981 direct ing that under the Punjab Civil Services Premature Retire ment Rules 1975 it would not be desirable to scrutinize the entire service record of an employee and premature retire ment should not be ordered if during the last 5 years the work and conduct of the employee have been good
This direc tion was no doubt issued after the appellant was prematurely retired in March 1980 but nonetheless it is apparent that the Govt had changed its policy in accordance with the decisions of this Court and it had taken a decision not to retire a Govt
servant if his service record for the last five years did not contain any adverse remarks
The appel lant 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
We accordingly allow the appeal set aside the order of the High Court quash the Govt
order dated 1931980 and direct that the appellant shall be treated as being in service without break
He is entitled to his salary allow ances and such other benefits as may be admissible to him under the rules
The respondents shall pay the costs of this appeal to the appellant
SR Appeal allowed


Summary:
Under Rule 3 of the Punjab Civil Services Premature Retirement Rules 1975 the appropriate authority has the absolute right to retire an employee prematurely in public interest after giving three months notice in writing on his completion of 25 years of qualifying service or 50 years of age
The rule does not contain any criteria or 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 State Government issued a Government Order on September 26 1975 laying down the guidelines and the procedure necessary to be followed in exercising powers under Rule 3 for premature retirement of a Government employee
The order stated that the appropriate authority should utilise the power under Rule 3 in a judi cious manner to retire a government employee on formulating its opinion by scrutiny of the confidential reports of the employee and by taking into consideration any other substan tial material it may have before it
The order further stated that it was not feasible to lay down any absolute terms as to how many adverse entries about inefficiency or lack of integrity would justify the premature retirement but it laid stress that the service record as a whole would determine the merit of each case
Paragraph 6 of the letter further stated that remoteness of an adverse entry the scrutiny of the service record of the employee concerned such as crossing of efficiency bar confirmation and promo tion to a higher post or any other meritorious service rendered by the employee would have their relative impor tance
The order emphasizes that the appropriate authority may consider premature retirement of a government employee if it has reasonable cause to believe that the employee concerned was lacking in 584 integrity irrespective of the assessment of ability and efficiency in work
It further provides that the appropriate authority should review the cases of employees on their completing 25 years of qualifying service or their attaining 50 years of age
The government issued another order on August 4 1978 pointing out that while exercising power under Rule 3 the service of an employee as a whole would determine the merit of each case but if there was a single entry describing the employee concerned having doubtful integrity that would justify the premature retirement under the rules
Realising that premature retirement of an employ ee on the basis of entire service record which may include stale entry would be unreasonable the government issued yet another order on 22nd June 1981 directing that under the Punjab Civil Services Premature Retirement Rules 1975 it would not be desirable to scrutinize the entire service record of an employee and premature retirement should not be ordered if during the last 5 years the work and conduct of the employee have been good
The appellant who was appointed as Superintendent Quali ty Marking Centre Scientific Instruments of the Government of Punjab in 1953 was promoted to the post of Deputy Direc tor Technical in 1963 and later in 1968 to the post of Joint Director Industries which post he continued to hold till he was prematurely retired by Government Order dated 19th March 1980 issued in exercise of power under Rule 3 of the Punjab Civil Service Premature Retirement Rules 1975
The appellant made a representation against the order of premature retirement to the government but the same was rejected whereupon the appellant challenged the validity of the government order by means of a writ petition under Article 226 of the Constitution before the High Court of Allahabad which was dismissed in limine on August 5 1981
Hence the appeal by special leave
Allowing the appeal the court HELD 1
The purpose and object of premature or compul sory retirement of government employee is to weed out the inefficient corrupt dishonest of dead wood from the gov ernment service
This right of the government is well estab lished which is generally exercised in accordance with relevant service Rules
The scope and ambit of exercise of this absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations
588A C 21 The Public interest in relation to public adminis tration envisages retention of honest and efficient employ ees in service and dispens 585 ing the services of those who are inefficient dead wood or corrupt and dishonest
Therefore Rule 3 of Punjab Civil Service Premature Retirement Rules 1975 contemplates premature retirement of the inefficient corrupt or dead wood which would subserve the public interest
589D 22 The executive instructions issued as contained in the three government orders provide sufficient guidance for the exercise of power under Rule 3
According to these instructions the service record of an employee has neces sarily to be considered while taking decision for the prema ture retirement of an employee and if there was a single entry casting doubt on the integrity of an employee the premature retirement of such an employee would be in public interest
In the absence of any details by which the ques tion of public interest would be determined in the Rules it was open to the State Government to issue executive instruc tions for the guidance of the appropriate authority to exercise the power of premature retirement and the instruc tions so issued as contained in the government orders have binding character
590B D 31 It is now well settled that adverse entries if any awarded to an employee lose their significance on or after his promotion to a higher post
It is also well settled that while considering the question of premature retirement it may be desirable to make an overall assessment of the gov ernment servant s record but while doing that more value should be attached to the confidential reports pertaining to the years immediately preceding such consideration
It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early years of service are taken into consideration for prematurely retiring a govern ment employee then perhaps no employee would be safe even though he may have brilliant record of service in later years
It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good en tries of recent past
If entries for a period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against the employee
591A E 32 In the instant case adverse entries awarded to the appellant prior to 1968 could not be taken into considera tion for the reason that adverse entries for the years 1960 61 1963 64 and 1964 65 are legally non est on account of the promotion except two entries awarded to him for the years 1971 72 1972 73 the appellant has not earned any adverse entry reflection upon his work and conduct
591H 592A Baldev Raj Chadha vs Union of India  Ors   586 Brij Bihari Lal Aggarwal vs High Court of AP  Ors   Amar Kant Chowdhary vs State of Bihar  ors
  and JD Srivastava vs State of MP 41 There is no doubt that whenever an adverse entry is awarded to a government servant it must be communicated to him
The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries
If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not
Right to make representation is a valuable right to a government employee and if the representation is not considered it is bound to affect him in his service career as in government service grant of increment promotion and ultimately prema ture retirement all depend on the scrutiny of the service records
592D F Gurdial Singh Biji vs State of Punjab  Ors  applied