IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 103 of 2010 Union of India and others ………….Appellants. Versus Lalit Kumar ………Respondent. Mr. T.A. Khan, Advocate for the appellants. Mr. Pawan Mishra, Advocate for the respondent. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. The present special appeal has been filed against the judgment and order of the learned Single Judge dated 23.4.2010, whereby the learned Single Judge has allowed the writ petition of the respondent by quashing the order dated 21.8.1995 by which the respondent was prematurely retired from service. Brief facts of the case are as follows :- The petitioner was appointed in the year 1965 as a Sepoy Pioneer and later confirmed vide an order dated 5.9.1971 (with effect from 20.11.1969). He was consequently promoted as a motor driver with effect from 1.11.1984 and since then he was driving the vehicle of the Department with full satisfaction of the superiors. Unfortunately, in the year 1990 while working in the workshop of the department, a mishap occurred which resulted in the damage of the left eye of the petitioner (the respondent in the present special appeal and for the sake of convenience addressed hereinafter as the petitioner). The petitioner had to remain in hospital for some time and after his discharge from the hospital, the petitioner continued to work as a driver and also posted in Maintenance and Repairing Department. Pursuant to the injury an enquiry was also conducted by the appellants in which it was found that the petitioner was not at fault for the injury 2 and the cause of accident was attributable to the service condition and in fact compensation was also given to the petitioner as per the Workmen’s Compensation Act. However, by the impugned order dated 21.8.1995 the petitioner has been prematurely retired from service. Aggrieved as such, he had filed a writ petition challenging the order of his compulsory retirement or more precisely stated his premature retirement. In service jurisprudence the law relating to premature retirement is by now settled. The employer has a right to prematurely retire an employee, in accordance with the rules but what is important is that before passing the order of premature retirement, there must be some adverse material before the employer in order to pass an order of premature retirement. The appellants have not been able to show before this Court as to whether there was any adverse material before the department or the Appointing Authority which could justify the premature retirement of the petitioner. The only ground taken for prematurely retiring the petitioner is that because of the injury sustained by the petitioner his efficiency has gone down. Although under the facts and circumstances of the case, this itself cannot be a ground for passing the impugned order, inasmuch as, the injury sustained by the petitioner was not due to his fault but was attributable to his service condition. What is also important is that there is no material available on record which shows that due to the injury sustained by the petitioner his working efficiency has already gone down. It is an admitted case that consequent to the injury sustained by the petitioner his nature of work had changed and he was largely working in the workshop. The Annual Confidential Reports of the petitioner have been perused by the learned Single Judge as well as by this Court, where the work of the petitioner is satisfactory with no adverse entry. It is for this reason that the learned Single Judge has gone through the rules relevant for the purposes, namely, Rule 48 of the Central Civil Services (Pension) Rules, 1972 as well as the relevant law on the matter, namely, Registrar, High Court of Madras Vs. R. Rajiah 1998 (3) SCC 211 and Madan Mohan 3 Choudhary Vs. State of Bihar & others 1999 (3) SCC 396 and, therefore, has come to the conclusion that “in the light of the aforesaid, this Court is of the opinion that the action of the respondents in compulsory retiring the petitioner was wholly arbitrary and was not based on any adverse material against the petitioner. The ACR of the petitioner clearly indicates that the petitioner had not outlived his utility. The order for compulsory retirement cannot be sustained.” This Court is in total unreserved agreement with the views expressed by the learned Single Judge. While dealing with the issue of compulsory retirement Justice V.R. Krishna Iyer in the case of Baldev Raj Chadha v. Union of India (AIR 1981 SC 70) had given voice to the genuine fear and apprehensions of a Government servant in such matters when he said that “It (compulsory retirement) is an affirmative action, not a negative disposition, a position 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 of audit vested in the C. & A.G. 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 over-aweing is very much in public interest. So 4 it is that we must emphatically state that 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.” In view of aforesaid, this Court finds no force in the special appeal. The special appeal is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 14.7.2010 Avneet