WA 344/2008 BEFORE THE HON’BLE MR JUSTICE I A ANSARI THE HON’BLE MR JUSTICE B D AGARWAL All the aforesaid five writ appeals are arising out of a common Judgment passed by a learned Single Judge, dismissing five writ petitions, upholding their compu lsory retirement from service. Being aggrieved by the impugned Judgment of the l earned Single Judge dated 25.06.2008, passed in WP(C) No. 5914 of 2004, 4750 of 2004, 2610 of 2005, 2616 of 2005, 3027 of 2005 the writ petitioners are challeng ing the said Judgment in these appeals. 2. We have heard Sri A C Borbora, learned Senior Counsel for the appellants as well as Sri S N Sarma, learned Senior Counsel for th e Publication Board, Assam, and Sri A K Phookan, learned Advocate General for the State. We have also gone through the impugned Judgment and the pleadi ngs of both the parties. Learned counsel for the Board also produced the relevan t files and Resolution registers, as per our order, and those have also been per used. 3. Facts necessary for disposal of the writ appeals are that the Pu blication Board, Assam, had 53 (fifty-three) employees on its roll. It came into existence in the year 1958, inter alia, to extend its services for the purpose of publication of historical manuscripts, publishing literatures in different la nguages, compiling and publishing Anglo-Assamese dictionary, historical books et c. Due to various factors the Publication Board turned to be a non-profitable a nd the situation came to such a pass that it could not pay regular salaries of t he employees for 20 (twenty) months and it also could not contribute Provident F und subscriptions and LIC premiums of the employees nearly for 6 (six) years. To overcome the financial crunch it approached the Government of Assam, who agreed to provide necessary fund to introduce Voluntary Retirement Scheme (’VRS’ in sh ort). On receipt of requisite fund the Board decided to prune the employees stre ngth to 15 (fifteen). As per its Resolution dated 23.2.2004 the Board took a po licy decision to introduce VRS Scheme. In the next meeting held on 8.5.2000 the Board approved both the VRS as well as compulsory retirement of its employees an d authorized the Executive Committee to take appropriate action and advise the B oard in this regard under Resolution Nos. 3.01 and 3.02. 4. Pursuant to the aforesaid Resolutions of the Board the Executive Committee took a general decision in its meeting held on 28.5.2000 that the emp loyees may be sent on compulsory retirement, as may be required and deemed neces sary. 5. The Resolution registers reveal that both the Board as well as t he Executive Committee of the Board sat quite over the matter and the Resolution s, pertaining to VRS & CRS, were not pursued for few years. 6. Suddenly, the Secretary of the Board issued a general notice on 19.03.2004, inviting options from the employees, willing to accept VRS. Soon the reafter the Secretary himself took a decision on 5.4.2004 that five persons (app ellants herein) do not deserve to be retained in service as their service record s reveal that these employees are not furthering the interest of the Board and, as such, these employees should be sent on compulsory retirement. Consequent to this decision another notice was published on 29.04.2004, intimating the employe es that those who have not offered for VRS may also be considered for compulsory retirement. Finally, 27 (twenty-seven) persons were retired under VRS and the w rit petitioners/ appellant (5 nos.) were given compulsory retirement. Being aggr ieved by their compulsory retirement the writ petitions were filed and having lo st in the writ petitions the present set of appeals have been filed. 7. It is the settled position of law that writ appeal is not a stat utory appeal. Essentially, it is an in-house method of scrutinizing Single Judge ’s judgments on the motion of aggrieved parties. However, Single Judges’ judgmen ts are interfered with only if the findings are perverse and/or reasoning is not based on record. In other words, the writ appellants are required to make a str ong case of perversity or patent error in the impugned judgments. 8. With regard to the contours of judicial review of an order of co mpulsory retirement the legal principles have been succinctly laid down in the c ase of Baldev Raj Chadha -Vs- Union of India, reported in (1980) 4 SCC 321. In t his case, the Hon’ble Supreme Court has held that the orders of compulsory retir ement are not immune from judicial review and the onus is on the State to furnis h materials before court to justify its action in public interest in the followi ng words: 8 & &..When an order is challenged and its validity depends on its being supporte d 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 t he grounds of ’public interest’ justifying forced retirement of the public serva nt. Judges cannot substitute their judgment for that of the Administrator but th ey are not absolved form the minimal review well settled in administrative law a nd founded on constitutional obligations. The limitations on judicial power in t his area are well known and we are confined to an examination of the material me rely to see whether a rational mind may conceivably be satisfied that the compul sory retirement of the officer concerned is necessary in public interest. 9. In a plethora of judgments it has also been held that an order o f compulsory retirement does not amount to punishment and hence principles of na tural justice is not required to be observed, while asking an Officer to go on c ompulsory retirement (Judgments reported in AIR 1991 SC 534 and AIR 1992 SCC 102 0: (1992) 2 SCC 299 may be referred). Similarly, in the case Madhya Pradesh Stat e Co-operative Diary Federation Limited -Versus- Rajnesh Kumar Jamindar & Others ; reported in (2009) 15 SCC 221, the Apex Court has reiterated the principles g overning the field of compulsory retirement . Their Lordships have held that th is provision has been made in the service jurisprudence to weed out dead wood an d an order of compulsory retirement, being not panel in nature, can be subject t o judicial review, if it is found that- i) it is based on no material; ii) it is arbitrary; iii) it is without application of mind; iv) there is no evidence in support of the case. 10. In the aforesaid case, the earlier Judgments of the Hon’ble Supr eme Court rendered in the case of Baikuntha Nath Das -Vs Chief District Medical Officer, reported in (1992) 2 SCC 299: AIR 1992 SCC 1020, Umed Bhai M Patel -Vs- State of Gujarat, reported in (2001) 3 SCC 314 were followed, wherein their Lor dships laid certain guidelines for reviewing an order of compulsory retirement. 11. In the case of Baikuntha Nath Das (supra), the Apex Court culled -out the following principles in respect to compulsory retirement. The guideline s given in the case are as below: 34. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The orde r is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded alt ogether. (emphasis is ours) While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or ( c) that it is arbitrary-in the sense that no reasonable person would form the re quisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later y ears. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a governme nt servant is promoted to a higher post notwithstanding the adverse remarks, suc h remarks lose their sting, more so, if the promotion is based upon merit (selec tion) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court mer ely on the showing that while passing it uncommunicated adverse remarks were als o taken into consideration. That circumstance by itself cannot be a basis for in terference. 12. In State of Gujarat v. Umedbhai M. Patel (supra), the Apex Court ha s reiterated the law of compulsory retirement as below: 11. The law relating to compulsory retirement has now crystallised into definit e principles, which could be broadly summarised thus: (i) Whenever the services of a public servant are no longer useful to the genera l administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a pu nishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the enti re service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken int o consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to av oid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the c onfidential record that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure. 13. In view of the aforesaid authorities from the Apex Court the Hig h Court would be well within its limit and jurisdiction to scrutinize the justic iability of the compulsory retirement of the appellants, albeit, keeping in mind that the learned Single Judge has upheld such orders. 14. Sri Borbora, learned senior counsel for the appellants advanced his arguments almost verbatim, what was argued before the learned Single Judge, while assailing the impugned judgment. In other words, learned counsel for the a ppellants submitted that the impugned orders of compulsory retirement were illeg al, invalid and nonest in law inasmuch as the orders were passed by an authority not empowered under the relevant rules. The learned counsel also contended, alt hough in feeble voice, that the appellants could not have been compulsorily reti red with the aid of FR 56 (b). Sri Borbora also submitted that instead of retain ing few employees, who had opted for VRS the respondents picked up the appellant s for compulsory retirement and this amounts to malafide action. 15. We would like to make it clear that our focus would be more to see whether compulsory retirement of the appellants was in public interest or wa s it a mere subjective satisfaction of the Secretary of the Publication Board. Be that as it may, we would like to mention here that in the case of Chairman an d M.D, Indian Overseas Bank -vs- Tribhuwan Nath Srivastava (Civil Appeal No. 118 6 of 2005-D/O on 4.2.2011), the Supreme Court has held that it is the employers legitimate discretion whether to accept an offer of voluntary retirement and the courts ordinarily should not question such legitimate exercise of discretion. I n this way, the submissions of the learned counsel for the appellants that inste ad of accepting offers of voluntary retirement by few other employees and sendin g the appellants to go on compulsory retirement is illegal and unjust cannot be accepted by us. In our considered opinion the Publication Board will be within i ts jurisdiction to send its employees on voluntary retirement under FR (b) and F R (j) and in larger interest of the Board. 16. During the course of hearing Shri Sarma, learned counsel for the Board, produced the Rules of the Publication Board. Rule 5 deals with the busin ess of the Board; Rule 7 details the business of the Executive Committee and Rul e 9 stipulates duties and powers of the Secretary. Under Rule 5(1), the Publicat ion Board shall sit, at least, twice in a year and, inter alia, to decide all po licy matters of the Board. Rule 6 is about the Constitution of the Executive Com mittee. Under Rule 7, the Executive Committee shall sit, at least, once in every three months. Under Rule 8, the Executive Committee has been delegated certain powers, which shall be subject to the approval of the Board. Under Rule 9, it ha s been provided that the Secretary shall carry out the decisions of the Board an d that of the Executive Committee and perform certain other functions. The Secre tary has to, therefore, carry out the decisions of the Board and of its Executiv e Committee and cannot act beyond what may have been so decided. For ready refer ence Rule 9(ii), (v) and (vi) are extracted below: 9. Duties and powers of the Secretary: (i) ***** ***** ***** (ii) To carry out the decisions of the Board and of the Executive Committee. (iii) & (iv) ***** ***** ***** (v) To perform all other functions as may be required for carrying out the purp oses of the Board. (vi) To appoint Lower Division Assistants and 4th Grade employees and to recomm end action against the employees to the Executive Committee. (Upper Divisions As sistants shall be appointed by the Executive Committee.). (vii) (viii) (ix) (x) and (xi) ***** ***** 17. As noted earlier, the Resolution registers are totally silent to show that any meeting of the Board was held after 8.5.2000 and that of Executiv e Committee after 28.5.2000 till the Secretary of the Board, on his own, issued general notice of VRS on 19.3.2004 and his decision taken on 5.4.2004 to send th e appellants on compulsory retirement. 18. Apparently, the Secretary was not delegated with the power or au thority to finalise the list of employees, who may be allowed to avail VRS nor w as the Secretary delegated the power and/ or authority to send employees on comp ulsory retirement. Under Rule 9(vi), the Secretary can, at best, recommend to th e Executive Committee, if he wishes any action to be taken against its employees . However, in the present case, the Secretary has sent as many as five persons, including a Circulation officer, Accountant, Library Assistant etc., on compulso ry retirement, which is per-se not in conformity to Rule 9(vi) and other provisi ons of the said Rule. As per Resolution Nos. 3.01 and 3.02, the Executive Commi ttee was also asked to advise the Publication Board as to how to implement the V RS and its decision on compulsory retirement of its employees. To put it differe ntly, even the Executive Committee was not given absolute power to take decision s under VRS and CRS. 19. Although the Writ Petitioner had specifically raised the questio n of authority and jurisdiction of the Secretary to issue orders of compulsory r etirement, the learned Single Judge has rejected the contention holding that the Secretary had just carried out the decision of the Board and the Executive Comm ittee. However, after going through the relevant files and the Resolution regist ers, we do not find anything on record that the Secretary had at all apprised th e Executive Committee of the names of the persons, who had opted for VRS, far le ss any decision by the Executive Committee to recommend to the Board about compu lsory retirement of the appellants. 20. In view of the above, we hold that the orders of compulsory ret irement of the appellants are bad in law and consequentially, unsustainable. As a corollary, the impugned orders of compulsory retirement vis-à-vis the judgment of the learned Single Judge are hereby set aside. All the five writ appeals sta nd allowed. However, instead of passing any order for re-instatement of the appe llants, we direct the Publication Board to reconsider compulsory retirement of t he appellants and pass appropriate orders in accordance with its rules and bye l aws, if any. This exercise shall be done within four months from the date of rec eipt of a copy of this judgment. 21. In the facts and circumstances of the case, we leave both the pa rties to bear their own expenses of the proceedings.