HIGH COURT OF CHHATTISGARH: BILASPUR VVrit Petition No.96 of 2000 K. Selvaraj Vs. The Central Industrial Security Force and others. Petitoner i Respondents Post for pronouncement of the Judgment and Order on 07 /07/2008 ,I’j ? / / . Sdl- a a Sansh Ka Wm?? Judge /‘ Respondents HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition No. 96 of 2000 Petitioner K.Selvaraj, 51 years, S/o. Late v.Krishnasamy‘ R/o. Qr. No. 3A, 11“ Street, Nandini Nagar, Durg Distt., Chhattisgarh State. Versus The Central industrial Security Force, through its Director General, Ministry of Home Affairs, CGO Complex, New Delhi-3. 2) The Inspector General (NS) Central Industrial Security Force, CISF Campus Saket, PO Malviya Nagar, New Deihi — 17. 3) The Union of India, represented Secretary to Government, Ministry of Home Affairs, North Block, New Delhi-1. 1) (Writ Petition under Article 226/227 of the Constitution of lndia) SB: Hon’ble Mr. Satish K. Agnihotri, J. Present: Shri P.S. Koshy, counselforthe petitioner. Shri S. K. Beriwal, Standing counsel with Shri Ajay Barik, counsel for the respondents. (Passed on 7 {jiday of July, 2008) By this petition, the petitioner challenges the legality and validity of the order dated 29-6-2000 (Annexure P/1), whereby the petitioner was compulsorily retired with immediate effect after attaining the’age of 50 years on 31-5-1999 and the order dated 29-10-2000 (Annexure P/2), whereby his representation against the impugned order dated 29-6-2000 was rejected by the respondent No.1. t . ‘ 2) The facts, in brief, as projected by the petitioner, are that the petitioner joined the Central industrial Security Force (for short, “CISF") in the year 1975 as Assistant Sub-Inspector (Executive). In the year 1986 he was promoted to the post of Sub- inspector (Executive). Further, he was promoted to the post of Inspector (Executive) in the year 1993. The petitioner had received eight cash awards and thirteen commendation for various activities. There was no adverse entry in his service record as nothing was communicated to him. A charge-sheet was issued in the year 1985, v resuiting into imposition of removal from service on 3-2-1986, the same was set 1“ aside by the High Court of Madras in Writ Petition No. 1659 of 1986. The imposition of withholding of one increment in the year 1996 was also quashed in'a‘p’peai by the ’ Commandant V.S.C.C., Thumba. The petitioner received the impugned order dated 29-6-2000 compulsoriiy retiring him under the provisions of the Rule 56 (j) of the Fundamental Rules (for Short, “FR”), by the respondent No.2. Being aggrieved, the petitioner made a representation to the respondent No.1. The same was rejected by the respondent No.1 under the signature of Assistant inspector General/Estt. Thus, this petition impugning the above stated orders. 3) Mr. P.S. Koshy, learned counsel appearing for the petitioner would submit that w the provisions of Rule 56 (j) of FR applies to the Government servants and not to the members of the armed forces as the petitioner is a member of CSIF which came into force under the provisions of the Central industrial Security Force Act, 1968 (for short, “the Act, 1968). Under the provisions of Section 3 of the Act, 1968 CISF would constitute as an armed force of the Union. in exercise of the power under the Act, 1968, Central industrial Security Force Rules, 1969 (for short, “the Rules 1969”) were framed. There is no provision for premature retirement on attaining the age of 50 years under the Act, 1968 and the Rules 1969. The petitioner, being holder of the post of inspector, comes in the grade “Group —C Non-gazetted”, therefore, the provision of sub-clause (ii) of FR 56 (j) would be applicable. Grade -C employees may be retired prematurely after attaining the age of 55 years. It appears that the petitioner has been classified as Grade —B., after notification dated 20-4-1998 ‘(Annexure P/5) issued by the Ministry of Personnel, Public Grievances and Pensions a came into force which provides for classification of the posts in respect of Central Civil posts. The petitioner is a promotee and has not entered into Group — B service directly. Underthe Central Government Group Insurance Saving Fund (CGGISF) the petitioner is a subscriber under Group — C and he was paying his contribution at the rate of Rs.60/- per month (Annexure P/6). The petitioner could have been considered for compulsory retirement only after he attains the age of 55 years. The petitioner could have been retired only in public interest if his service records were bad and his integrity war! doubtful. There was no adverse entry in the entire service of the petitioner. Even if a classification of the Civil posts are made applicable to the members of CISF, the petitioner would fall in Group-C as the petitioner Was working at that time on the pay scale of Rs.6500/— - 9000/-. Even if the petitioner was to retire on attaining the age of 5O years, the review must be done six months before the Government servant attains the age of 50/55 years, whichever is earlier. The date of birth ofthe petitioneris 1-6-1949. The petitioner attained the age of 5O years on 31-5-1999 and the impugned order was passed on 29-6-2000. ln case of the petitioner, his service record reviewed after he attained the age of 50 years which is not permissible under law. The respondents in their additional reply dated 16-6-2008 have admitted that the review committee to consider the case of the petitioner was held on 23-6-2000 after the petitioner crossed the age of 51 years as the petitioner attained the age of 50 years on 31-5-1999. The petitioner had received five very good entries, 2 good entries and 2 average entries in his last ten years confidential reports. The petitioner was further granted promotion in the year 1993 within a period of seven years from the date of the order. The petitioner was granted very good in the ACR for q» the year 2000. ’iearned counsel would further submit that the impugned order deserves to be quashed on account of the fact that the orders are not in conformity with the provisions of law. 4) Per contra, Shri S.K. Beriwal, learned counsel appearing for the respondents would‘submit that the petitioner attained the age 5O years on 31-5-1999 when he was holding the post of Inspector. The post of Inspector in the force including CISF has been classified as “General Central Services Group ‘B’ Non-Gazetted” as notified by the Ministry of Home Affairs dated 18-5-1999 with effect from 10-1 0-1 997. This was (® notified in the Gazette on 25-1-2000 (Annexure R/2). The respondents framed guidelines to strengthen the administration on 16-8—1 999 (Annexure R/3), wherein it was stated that in case of Inspectors of CISF, the review under FR 56 (j) is required to adjudge their suitabiiity for further continuance in service or othenNise after compietion of 3O years of qualifying service on the basis of entire service records including records of the preceding five years. The case of the petitioner was considered after he attained the age of 50 years for premature retirement with effect from 4-7-2000. Rule 7O of the CISF Rules, 1969 stipulates that the supervisory officers and members of the Force shall, in respect of all other matters regarding conditions of service for which no provision or insufficient provision has been made in these rules,‘be governed by the rules and order for the time being applicable to officers holding corresponding posts in the Central Government in respect of such matters. Learned counsel further submits that FR 56 (j) (i) provides that if the‘employee 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, he‘ in public interest, may be prematurely retired after attaining the age of 50 years. Thus, the contention of learned counsel appearing for the petitioner that services of the petitioner ought to haye been reviewed on attaining the age of 55 years, is misconceived. The petitioner ' joined service in CISF as Assistant Sub-Inspector (Executive) on 24-3-1975. The petitioner was promoted to the rank of Inspector in the year 1993. The petitioner during his service career was punished as many as seven times for his various. acts, omissions and misconducts, the details of which are as under: Ja u (i) ‘Cehsure’ was imposed for violation of CISF ,Rules 1969 for attempting to bring political influence upon the superiors for cancellation of posting on 23—4-1984 (Annexure R VI). Punishment of stoppage of increment for one year for non reporting on his duty at MAPP, Kalpakkam on 12—12-1983 and assaulting one civilian vide order dated 14-6-1984 (Annexure Vll), (iii) Punishment of stoppage of increment for one year for overstay from leave and joining time vide order dated 19—5— 1992 (Annexure RNlll). (iv) imposition of punishment of ‘Censure’ again by order dated (ii) 5 20/21-4-1 995 (Annexure R/IX). Imposition of punishment of censure again by order dated 8-5- 1997 (Annexure R/X). (vi) Imposition of punishment of pay fine equal to 2 days pay by order dated 21-10-1997 (Annexure R/Xl). Apart from the above, during the entire service career, 12 annual confidential reports of the petitioner were found average; 1975 to 1983-average, 1994-Very good, 1995- good, 1996- average. 1997— average, 1998 (1 . 1 .1998 to 30.4. 1 981) —average, 1998 (1 5.1998 to 31 .5.1981)-non-initiation certificate and 1998 (16.1998 to 31.12.1998) —Very good. 5) The petitioner was found negligent on duties. The petitioner was removed from service for serious mis-conduct, later on removal order was quashed by the High Court of Madras in Writ Petition No.1885/87 and the petitioner was re-instated in service, The representation of the petitioner was considered and it was found that premature retirement of the petitioner from service in public interest was in accordance with the provisions of FR 56 (j). Subscription towards.Group insurance Savings has nothing todo with classification of CISF Inspectors as they fall under category of “Group—B Non—Gazetted Central Services". The petitioner was prematurely retired on the basis of his service record and on the ground of ineffectiveness, and not as a measure of punishment 6) Under the provisions of FR 56 (j) the review of service was to be done ‘six months before a government servant attains the age of 50 years and as such review of the services of the petitioner became due in May, 1999. On receipt of the fresh notification the superannuation review of the petitioner was held on 23-6-2000 and the petitioner prematurel retired on 29-6-2000 at the age of 51 years , on being found unfit y / . classify the following categories of posts in the Combatised rank w.e.f. 10-10-97 as indicated against each:- k l / Sd/-“‘ 2. This issues with the concurrence of Deptt. of Personnel & Training vide their Dy.No.177/JS(E)/98 dated 24.1 1 .98. 10) The aforesaid notification was published in the Gazette notification dated 25.1.2000 in exercise of power under Article 309 of the Constitution of India (Annexure R/2). The petitioner attained the age of 50 years on 31-5-1999. The case of the petitioner could not be reviewed as till 18-5-1999 the petitioner, being Inspector, ’was classified as “Group —C" employee. For “Group —C" employees, age of compulsory retirement was 55 years. The office of the Directorate General, CISF by circular dated 18-8—1999 observed that review under FR 56 (j) in the case of Inspectors CISF was required to be rmade to adjudge their suitability for further continuance in service or otherwise after completion of 30 years of qualifying service or beyond the age of 50 years if they have entered in Government service before attaining the age 30f 35 years. However, in case, any of them has entered in Government service after attaining the age of 35 years, his suitability for continuance in service or otherwise will continue to be assessed at the age of 55 years. 11) Since the petitioner had already attained the age of 50 years before circular dated 18-5-1 999 came into force, the case of the petitioner was reviewed for adjudging his suitability for continuancerin service or otherwise. The petitioner has suppressed material facts with regard to imposition of various punishments as detailed in the return "1 S.No. Designation of Post Classification of Post (i) I Subedar Major carrying scale of pay of Rs.6500-1 0500 plus Rs.200- Apptt.pay. General Central Services Group ‘B’ Non—Gazetted. (ii) Inspector carrying scale of pay of Rs.6500-1 0500 General Central Services Group ‘B‘ Non-Gazetted. (iii) Sub-lnspector carrying scale of pay of Rs.5500-9000 General Central Services Group ‘C’. r (iv) Asstt. Sub-Inspector carrying scale of pay of Rs.4000-6000 General Central Services Group ‘C’ (v) Head Constable carrying scale of pay of Rs.3200-4900 General Central Services Group ‘C‘. ‘ (vi) Constable carrying scale of pay of Rs.3050-4500 General Central Services Group ‘C’. Ti v i ‘ filed by the respondents. After having considered various punishments imposed on the petitioner from time to time and adverse entries in his ACR, it appears that the consideration was bona fide, in public interest, and not for collateral purposes. The petitioner has failed to establish any mala fide or any error in the decision of the Review Committee which decided to retire the petitioner prematurely. The petitioner has not rebutted the averment made by the respondents in return with regard to various punishments imposed on the petitioner. "’A 12) The contention of the petitioner that Fundamental Rules are not applicable to the Inspectors of CISF as CISF is an armed force as constituted under the provisions of the Act, 1968, deserves to be rejected as Section 22 of the Act, 1968 empowers the Central Government to make rules, regulating the classes, ranks, grades, pay and remuneration of members of the Force and their conditions of service in the Force. ln exercise of power under Section 22 of the Act, 1968, Rules 1969 were framed. Rule 70, which was incorporated by amendment on 3-6-1979, reads as under: “70. Other conditions of serviCe.- The supervisory officers and members of the Force shall, in respect of all other matters regarding conditions of service for which no provision or insufficient provision has been made in these rules, be governed by the rules and order for the time being applicable to officers holding corresponding posts in the Central Government in respect of such matters.” 13) Thus, Fundamental Rules are applicable in respect of premature retirement ‘ as there is no provision under the provisions of the Act, 1968 and the Rules 1969. Rules 1969 were later on repealed by the CISF Rules 2001 with effect from 5-11- 2001. In the case in'hand, Rules 1969 would be applicable. Thus, services of the petitioner were rightly reviewed under FR 56 (j). Whether the services of the petitioner can be reviewed after he attained the age of 50 years, as in normal case, the same should be done six months before a GoVernment servant attains the age of 50/55 years. ln the present case since the petitioner Was classified in “Grade '—C", wherein the age of superannuation review was 55 years. After re-classification of the Inspector (petitioner) by order dated 18-5-1999 the age of superannuation review Was 50 years. By that time, the petitioner crossed the age of superannuation review i.e.,50 years just one month before. Thus, it was deemed proper to consider his Q/é case immediately an the impugned order dated 29-6-2000 (Annexure P/1) retiring d the petitioner prematurely was passed. In case the petitioner was not reviewed after 50 years, the case of the petitioner, being Grade ‘B’ officer, could not have been reviewed at the age of 55 years. The petitioner joined service in the year 1975 before he attained the age of 35 years. 14) I am thus, constrained to hold that there was no error in considering the case of the petitioner for superannuation review after he attained the age of 50 years. X 15) In the matter of Baldev Raj Chadha Vs. Union of India and others‘ cited by Iearned counsel appearing for the petitioner. the Hon’ble Supreme Court in respect of voluntary retirement observed (para 16) that “Any order which materially suffers from the blemish of overlooking or ignoring, willfully or othenNise, 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 of the totality of material facts viewed in a holistic perspective”. 16) The decision of Delhi High Court in the matter of V.K. Issar Vs. Union of India and othersz cited by learned counsel for the petitioner is not relevant to the facts of the present case as the High Court held that the respondents cannot be permitted to compulsorily retire the employee on the basis of remote ACRs when nothing adverse was found after 1992. ‘ i 17) ln the present case the respondents have established that the entry in the ACRs was throughout adverse in case of the petitioner and he was imposed punishment on several occasions for his ineffectiveness. 18) In the present case, the allegations leveled by the respondents in the return indicating various punishments imposed on the petitioner was not refuted by the petitioner and on the facts, it should be deemed to have been proved and correct. 1 (1,980) 4 SCC 321 2 112 (004) Delhi Law Times 150 (DB) 10 Law is well settled that Review Committee has to take overall service record in holistic approach. 19) In the matter of Union of India Vs. Colt J.N. Sinha and anothera, the Supreme Court, observed as under: “9. Now coming to the express words of Fundamental Ruie 56(1) it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona’fide forms that opinion, the correctness of that opinion canhot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of maia fide. But that ground has failed.” 20) The dictum laid down by the Hon’ble Supreme Court in the matter of Union of India Vs. Col. J.N. Sinha and another (supra), has been followed by a Constitutional Bench of the Hon’ble Supreme Court in the matter of R.L. Butail vs. Union of India and others4. The ratio laid down by the Hon’ble Supreme Court in both the cases with regard to compulsory retirement vis-a-vis applicability of FR-56 (j) have been consistently followed in several other decisions. (see, Mayongbam Radhamohan Singh Vs. The Chief Commissioner (Administrator), Manpur and others5 ) 3 21) In the matter of Union of India Vs. M.E. Reddy and anothers, the Hon’ble Supreme Court, again relying on the decision in the matter of Col. J.N. Sinha and another (supra), observed as under— “The observations made above clearly reveal the object of this rule and Iay down that where an officer concerned is of 3 1970 (2) scc 458. 4t 1970 (2) scc 876. 5 6 (1976) 4 scc 709 (1980)2scc 15 . 11 / 9'17 doubtful integrity he can be compulsorily retired under this ruie.” And‘further, “We have aiready pointed out relying on the dictum of this Court Iaid down by Hidayatullah, C.J.. that the confidential reports can ceitainiy be considered by the appointing authority in passing the order of retirement even if they are not communicated to the omcer concerned. Thus, the two grounds on which the Calcutta decision was based are not supportable in law. For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled." 22) ln the matter of C.D. Ailawadi Vs. Union of India andiothers7 the Supreme Court observed as under- “8. An aggrieved civil servant can challenge an order of compulsory retirement on any of the following grounds as settled by several decisions of this Court: (i) that the requisite opinion has not been formed; or (ii) that the decision is based ‘on collateral grounds; or (iii) that it is an arbitrary decision. ln Union of India v. Col. J.N. Sinha this Court held that if the civil servant is able to establish that the order of compulsory retirement suffered from any of the above infirmities, the court has jurisdiction to quash the same. It is not disputed that compulsory retirement under Rule 56(1) is not a punishment as it does not take away any of the past benefits. Chopping off the dead wood is one of the important considerations for invoking Rule 56(1) of the Fundamental Rules. ln the instant case, on the basis of the service record, the Committee formed the requisite opinion that the petitioner had ceased to be useful and, therefore, should be retired prematurely. We do not think petitioner has been able to place any satisfactory material for the contention that the decision was on collateral grounds. Once the opinion is reached on the basis of materials on record, the order cannot be treated to be arbitrary" 3) ln the matter of Union of India Vs. Dulal Dutta, the Supreme CoUrt observed as under- “An order of compulsory retirement as to be passed by the Government on forming the opinion that it is in the public .interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. 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 7 (1990) 2 SCC 328 s (1993) 2 SCC 179/ \ 2 h i\ 12 attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of FR 56(1) or a rule corresponding to it.” And further, “An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. Principles of natural justice have no place in the context of an order of compulsory retirement. Since the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government there is no room for importing the audr alteram partem rule of the natural justice In such a case t (see- Baikuntha Nath Das vs. Chief District Medical Officer, Baripadag ) 24). ln the matter of K. Kandasliiimy v. Union of India“), the Hon’ble Supreme Couit observed as under- “9. While exercising the power under Rule 560) of‘ the Fundamental Rules, the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest, court would not interfere with the order". 25) in the matter of State of U.P. v. Vijay Kumar Jain", the Supreme Court observed as under- ‘a15. The aforesaid decisions unmistakably lay down that the entire service record of a government servant, could be considered by the Government while exercising the power under FR 56(c) of the