WP(C) No.2494/2003 Page 1 of 23 IN THE HIGH COURT OF DELHI AT NEW DELHI +WP(C) No.2494/2003 Date of Decision: 03.05.2008 # Director General, Indian Council of Agricultural Research …..Petitioner ! Through: Mr.B.S. Mor Versus $Shakti Teivedi …..Respondent ^ Through Dr.Shaymla Pappu, Senior Advocate with Mr.S.C. Luthra CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE VIPIN SANGHI 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? VIPIN SANGHI, J. : 1. The petitioner herein, namely, Indian Council of Agricultural Research (in short the ‘ICAR’), resorted to the provisions of Fundamental Rule 56(j) and took the action of retiring the respondent herein compulsorily from service vide orders dated 4.1.1990. The respondent challenged this action of the petitioner in the Central Administrative Tribunal (hereinafter referred to as the ‘Tribunal’) by WP(C) No.2494/2003 Page 2 of 23 means of an application filed under Section 19 of the Administrative Tribunals Act, 1985, which was registered as OA No.2215/90. The learned Tribunal disposed of the said application vide orders dated 31.7.1997 directing the petitioner to re-consider the representation of the respondent herein against his premature release. The representation of the petitioner was accordingly reconsidered and dismissed. The respondent approached the Tribunal again in April 2001 in the form of OA No.1062/2001. He has succeeded this time inasmuch as, the learned Tribunal vide its judgment dated 26.9.2002 has allowed the said application of the respondent herein and quashed the orders dated 4.1.1990 retiring the respondent compulsorily from service. Feeling aggrieved, ICAR has preferred this petition under Article 226 of the Constitution of India. 2. The basic facts of the matter, in so far as service career of the respondent is concerned, are not in dispute and therefore, we will take note of those facts which have a bearing on the issue: the date of birth of the respondent is 5.1.1936. He entered into the service of the petitioner in the year 1963. For the years 1985-87, adverse remarks in respect of the respondent were recorded in his Annual Confidential Report (ACR) and were communicated to him in December, 1988. On 5.5.1987 he was even placed under suspension WP(C) No.2494/2003 Page 3 of 23 alleging his involvement in a criminal case. While he was under suspension, his case for compulsory retirement was considered by a committee which recommended his compulsory retirement under FR 56(j) and consequently, he was retired from service with effect from 4.1.1990. The respondent herein submitted his representations dated 19.1.1990 and 27.2.1990 against the order of compulsory retirement. After consideration of these representations same were rejected and he was informed that the competent authority had taken a decision not to interfere with the orders dated 4.1.1990, which was communicated to him vide memo dated 11.4.1990. At this stage, the respondent approached the Tribunal and filed OA No.2215/1990 against the order of compulsory retirement. This was disposed of vide orders dated 31.7.1997. Though the Tribunal did not interfere with the impugned order of retirement dated 4.1.1990, at the same time the OA was partly allowed by quashing the decision contained in memo dated 11.4.1990 whereby representation of the respondent was rejected against the order of compulsory retirement. Direction was also given to the petitioners herein to reconsider the representation of the respondent by a Representation Committee constituted in accordance with the rules and instructions on the subject and thereafter, dispose of the representations of the WP(C) No.2494/2003 Page 4 of 23 respondent after giving him a reasonable opportunity of being heard in person. He was also given liberty to raise additional grounds, which were raised in the OA, but were contained in his representations. The petitioners accepted that order. However, the respondent did not feel satisfied with the aforesaid directions and thus, filed civil writ in this Court against the orders dated 31.7.1997. This writ petition was, however, dismissed. In these circumstances, acting on the directions issued by the Tribunal a Representation Committee was constituted, which held its meetings on 9.3.1999 and 16.3.1999. The respondent appeared before the Representation Committee and made his submissions. The said Representation Committee, however, came to the conclusion that since the ACRs of the respondent had been uniformally ‘average’ or at the highest ‘good’ for some years, and further that in the last five years he had earned average reports for 4 years and only one ACR had been ‘very good/good’, the decision to compulsorily retire him should be maintained. The discussion of the said Committee is contained in the order dated 26.3.1990 whereby the respondent’s representation was rejected again. The relevant portion of the said order is reproduced below:- “4. Accordingly, a Representation Committee was constituted with nomination from Minister WP(C) No.2494/2003 Page 5 of 23 for State for Agriculture and the Cabinet Secretary. The Representation Committee met on 9th March 1999. Shri Shakti Trivedi was given a chance to present his case before the Representation Committee on 9.3.99. All the official records were presented before the Committee and it was decided by the Committee that next meeting may be held on 15th March 1999 to take a decision in the instant case. The second meeting could not be held on 15th March 1999 due to non-availability of one of the members. The second and final meeting of the Representation Committee was held on 16th March 1999. The Committee after going through all the records stated “the applicant had stated that his case was taken up for review at 54 years and CRs of 1985 and 1986 were taken into account and that is not correct. He also mentioned that another ground for his compulsory retirement, i.e. his involvement in a criminal case is no longer valid because he has already been acquitted by the court in 1994. The Committee feels that though the review should have been done in time, there is no bar in taking up the review ever after 50 years provided the CRs of the period only upto his age of attaining 50, is taken into account for arriving at the decision. It is seen from the proceedings of the review committee held on 23.11.89 that his CRs upto the years 1985-86 were taken into consideration. Shri Trivedi was born on 5.1.1936 and hence his CRs upto 1985 should have been taken into account while arriving at a decision. Except for a few years, the CRs of Shri Trivedi, have been uniformally ‘Average’ or maximum ‘good’. The last five years CRs i.e. from 1980 to 1985, four years have been ‘Average’ i.e. from 1981-1985 and only one has been ‘Very Good/Good’. In fact, the same reporting officer who have given him very good in 1980 has been giving him ‘Average’ in subsequent years. As the function of review at the age of 50/55 years is basically to remove the WP(C) No.2494/2003 Page 6 of 23 deadwood from the Government, the lackluster performance of Shri Trivedi except for few years during his service career seems to have been done fairly and impartially taking the overall picture into account. His acquittal subsequently in a criminal case does not effect our decision in the case. The Representation Committee sees no reason to interfere in this decision.” 5. The proceedings of the Representation Committee were put up to the Minister of State for Agriculture for passing final orders as per the rules and instructions on the subject. Minister of State for Agriculture has given its approval to the proceedings of the Representation Committee wherein it has been decided that the decision of the review committee to prematurely retire Shri Trivedi under the provisions of FR 56(j) was in order.” 3. As pointed out in the beginning, the respondent challenged this order by filing another OA being OA No.1062/2001, which has been allowed by the Tribunal vide its impugned decision dated 26.9.2002. A reading of the said judgment of the Tribunal would reveal that the Tribunal noticed the following irregularities committed by the petitioners herein in prematurely retiring the respondent vide impugned order dated 4.1.1990:- “(i) The aforesaid provisions of FR 56(j) and Para II (i) of the Appendix 10 of CCS(Pension) Rules, 1972 prescribes the time schedule to review the cases of premature retirement. The date of birth of the applicant being 4.1.1936, he was to complete 50 years on 4.1.1986 and review for premature retirement ought to have been done in July-September, 1985 by the WP(C) No.2494/2003 Page 7 of 23 Screening Committee but in applicant’s case, review was done after 4 years of due date. (ii) Again as per FR 56(j), the appropriate authority can retire a government servant either by giving him a notice of not less than 3 months in writing or three months’ pay and allowances in lieu of such notice. Admittedly, in the instant case, neither any notice of three months was given to the applicant nor his salary for three months was paid to him simultaneously. Thus, the order of compulsory retirement is faulted. (iii) The representation committee erred in holding that there was no bar in taking up the review even after 50 years. As per rules, if no review had been done before 50 years of age by the government, an employee gets a further lease of 5 years and the next review can only be done at the age of 55 years and not at the age of 54 years as has been done in the case of applicant. (iv) Para II(3) (c) of OM dated 5.1.1978 issued by MHA contains instructions relating to premature retirement which reads as follows:- “While the entire service record of an officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years, or where he has been promoted to a higher post during that 5 years’ period, his service in the highest post, has been found satisfactory.” Admittedly, the applicant was promoted from grade T-7 to the grade T-8 w.e.f. 1.1.84 on the basis of his performance from 1.1.79 to 31.12.83. If his performance was unsatisfactory, he could not have been WP(C) No.2494/2003 Page 8 of 23 promoted on 1.1.84. Therefore, having regard to the instructions contained in para II (3) (c) mentioned above, the applicant could not have been retired prematurely. (v) In the counter reply filed by the respondent to applicant’s earlier OA 2215/1990, it was stated that “the applicant’s compulsory retirement has been recommended by the Review Committee on the basis of his performance after taking into consideration his CRs and also keeping in view the fact he is involved in a criminal case of moral turpitude.” Though there is no bar to institute disciplinary proceedings on the basis of criminal charge, respondent chose to invoke FR 56(j) on the above basis, when the fact remains that on the basis of the same performance the applicant was recommended for promotion to the grade of T-8. Thus, there is no doubt that the respondent has adopted short cut method to prematurely retire the applicant at the age of 54.” 4. It is clear from the above that the main reasons, which swayed the Tribunal in quashing the order, are: (a) Though the respondent had completed 50 years of service on 4.1.1986, the review for premature retirement should have been at that time but it was done after 4 years of the said ‘due date’ and therefore, the same was bad in law. The Tribunal opined that once review is not undertaken at the age of 50 years, the government servant gets further lease of five years and such a review could be done only at the age of 55 years. WP(C) No.2494/2003 Page 9 of 23 (b) Three months’ notice in writing or pay and allowances in lieu thereof was to be given simultaneously with the order of premature retirement, which was not done. (c) The respondent was promoted from Grade T-7 to T-8 with effect from 1.1.1984 and therefore, his performance could not have been treated as unsatisfactory and thus, in view of instructions contained in part II (3)(c) of OM dated 5.1.1978 as per which, entire service record of the officer is to be considered, the respondent could not have been retired prematurely. Further, the petitioners had adopted short cut method to prematurely retire him instead of instituting disciplinary proceedings on the basis of criminal charge. 5. Learned counsel for the petitioners assailed the aforesaid reasoning. His submission was that there was no bar in undertaking this review at the age of 54 years and the observations of the Tribunal that if the review for the purpose of compulsory retirement was not done at the age of 50 years, the government employee automatically gets lease of life upto 55 years was totally erroneously. He also submits that, admittedly, three months’ pay and allowances was given in lieu of notice, which was even encashed by the respondent and therefore, the order did not suffer from any such illegality, as held by WP(C) No.2494/2003 Page 10 of 23 the Tribunal and it was not necessary that such notice/pay has to be given simultaneously with the order of compulsory retirement. It was also argued that OM dated 5.1.1978 was wrongly interpreted and invoked inasmuch as, the respondent was promoted with effect from 1.1.1984 and he was compulsorily retired on 4.1.1990, i.e. after six years, while on the other hand the OM dated 5.1.1978 only mandated that if a person has been promoted to a higher post during the preceding five years, in that case his service record for last five years is to be seen and he is not to be retired if the same is found satisfactory, which was not the case here. It was also argued that the involvement in a criminal case was only an additional ground which the review committee took into consideration and there was no basis for arriving at the conclusion that it was a short cut adopted by the petitioners to prematurely retire him rather than instituting disciplinary proceedings against the respondent. 6. Dr.Shaymla Pappu, learned senior counsel for the respondent, on the other hand, supported the judgment of the Tribunal by stressing that the irregularities found by the Tribunal were perfectly in order and there was no force in any of the submissions made by the learned counsel for the petitioner. In this behalf, she referred to the judgment of the Supreme Court in the case of State of U.P. v. WP(C) No.2494/2003 Page 11 of 23 Chandra Mohan, AIR 1977 SC 2411 wherein it was held that the Government instructions on the subject of compulsory retirement and prescribing time schedule of 50/55 years to undertake the review of cases of the employees, who are to be compulsorily retired, is to be strictly followed. She also referred to the judgment of the Supreme Court in the case of M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679. She submitted that the petitioners in their reply to OA had also clearly stated that the respondent was retired keeping in view the fact that he was involved in a criminal case of moral turpitude and the Tribunal rightly gave this as a ground to quash the impugned order following the judgment of the Supreme Court in the case of State of Gujarat v. Umesh Bhai M. Patel, (2001) SCC 314. Referring to the judgment of the Apex Court in Union of India v. R.C. Mishra, (2003) 9 SCC 217, learned senior counsel argued that as the respondent was promoted to higher rank with effect from 1.1.1984, there should have been an attempt made by the petitioner to retain the respondent in lower post even if his work was not found exemplary on higher post and therefore, the order of compulsory retirement was bad even on this ground as no such attempt was made. WP(C) No.2494/2003 Page 12 of 23 7. We have already taken note of, at the earlier stage, the reasons which prevailed with the learned Tribunal in quashing the order of compulsory retirement. We would proceed to discuss the validity of these reasons in the same order in which we have noted. 8. The first reason given by the Tribunal was that the respondent completed 50 years of service on 4.1.1986 but the review for premature retirement was not taken done at that time and it was, in fact, done four years thereafter and as such, the same is bad in law. We are afraid that this reason given by the Tribunal is not sustainable in law. There is no such principle of law that the consideration under Section 56(j) of the Fundamental Rules has to take place only at the stage of 50/55 years. One can, for this purpose, usefully refer to the judgment of the Apex Court in Government of Tamil Nadu v. P.A.Manickam, AIR 1996 SC 2250, wherein it was opined that the screening can be done after the age of 50 years, and it is not necessary that the record should be examined six month before attaining the age of 50 years. The Apex Court made following pertinent observations: “The High Court posed the question: what is the effect of not referring the matter of his compulsory retirement to the review committee six months before the employee attains the age of 50 years or completes 25 WP(C) No.2494/2003 Page 13 of 23 years of service. It held that there was a duty cast on the heads of departments to consider every one of the cases of employees who were due for review in accordance with the instructions and, in such circumstances it shall be presumed that it an officer's name had not been sent up to the review committee, the Heads of Departments and the Government considered that there were no grounds for sending up the proposal to the review committee in respect of that officer….We are, therefore, of the opinion that if an officer's name who is due to attain the age of 50 years or has completed 25 years of service had not been sent to the review committee it shall be presumed that there was no ground for sending his name for consideration for compulsory retirement and that it is in those circumstances the competent authority had not referred the matter to the review committee. 8. The High Court went on to say that "it may even be presumed that there was an assessment in favour of further continuance of the officer and any review subsequent to the attainment of 50 years of age shall be considered to be a second review…. 9. On a plain reading of the rule and the instructions, the view taken by the High Court cannot be sustained. The rule permits the appropriate authority to retire any Government servant after he has attained the age of 50 years or after he has completed 25 years of qualifying service. The rule prescribes a starting point, which is the attaining of the age of 50 years or the completion of 25 years of service, but it does not prescribe a terminus ad quern. It is, therefore, open to the appropriate WP(C) No.2494/2003 Page 14 of 23 authority under the rule to consider the case of a Government servant for premature retirement at any time after the aforementioned starting points.” 9. The Division Bench of the Punjab and Haryana High Court in the case of Roshan Lal v. State of Haryana & Ors. (1993) 4 SLR 26 clearly laid down that it cannot be said that once the Government decides to allow a government employee to continue in service beyond the age of 55 years, it cannot review its order and retire the employee before attaining the age of 58 years. 10. The principle of law, which has come to be established by the Apex Court, is that such a review for premature retirement can take place after the concerned employee has attained the age of 50 years. It is not correct to state that once it is not done at the age of 50 years, the Government is debarred from undertaking this review thereafter till the employee attains the age of 55 years. The Government of India, Ministry of Home Affairs, has issued instructions regarding premature retirement vide its office memo No.25013/14/77-Estt.(A) dated 5.1.1978. This office memo lays down comprehensive instructions by consolidating all the instructions on the subject. Rule position, as contained in FR 56(j), is stipulated in this O.M. in the following manner:- WP(C) No.2494/2003 Page 15 of 23 “I. Rule Position (1) In accordance with the provisions of Fundamental Rule 56(j) the appropriate authority has the absolute right to retire, if it is necessary to do so in public interest, any Government employee as follows:- (i) If he is in Group ‘A’ or ‘B’ service or post in a substantive, quasi- permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years; (ii) In any other case, after he has attained the age of 55 years provided that in the case of a Group ‘D’ official, such action can b taken if he entered service after 23rd July, 1966. In other words, a Government servant belonging to Groups ‘A’ and ‘B’ who has entered Government service after attaining the age of 35 years, and officers belonging to Groups ‘C’ and ‘D’ can be prematurely retired after they have attained the age of 55 years with the exception of Group ‘A’ officials, who entered service on or before 23rd July, 1966. (2) In addition, a Government servant in Group ‘C’ service or post who is not governed by any pension rules, can also be retired after he has completed thirty years’ service, under F.R. 56(j). (3) Identical provisions exist in Article 549 of the Civil Service Regulations. WP(C) No.2494/2003 Page 16 of 23 (4) Provisions also exist in Rule 48 of the CCS (Pension) Rules, 1972, for the retirement of a Government employee by giving him three months’ notice, if it is necessary to do so in public interest, after he has completed 30 years of qualifying service for pension. In other words, a Government employee who may belong to Groups ‘A’, ‘B’, ‘C’ or ‘D’ can be prematurely retired irrespective of the age at the appropriate time, after he has completed 30 years of qualifying service. (5) Provisions exist in the relevant rules which confer reciprocal right on Government employee to seek voluntary retirement after he has attained the age of 50/55 years or has completed 30 years of service, as the case may be.” 11. The portion highlighted above makes it abundantly clear that the case of an employee under FR 56(j) can be considered “after” he has attained the age of 50 years. The language is not that it is to be done “on” attaining the age of 50 years. This O.M. also stipulates the Criteria, Procedure and Guidelines for undertaking such a review. Clause (d) under the aforesaid caption needs to be re-produced at this stage:- (d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.” WP(C) No.2494/2003 Page 17 of 23 12. It appears from clause (d) of the aforesaid OM that ordinarily a person is not to be retired within a period of one year from the date of consideration of his case. The word ‘ordinarily’ would suggest that even that is not the absolute bar. On the contrary, the Apex Court in Haryana State Electricity Board v. K.C. Gambhir, AIR 1997 SC 2403 affirmed the order of compulsory retirement which was passed nine months before superannuation. It was held that fair action was taken by the department in view of the repeated charges of misconduct