Case: Baldev Raj Chadha Vs. Union of India and Others

The appellant, an Accounts Officer compulsorily retired betimes, appearing in person, has painstakingly and proficiently presented his case which calls for mercy, if not justice obsession with ones own case and inability to see things in perspective are often a frailty of a party who spends the enormity and anguish of his superannuated leisure on the main pursuit of his litigative points, and this makes for prolixity and subjectivity of submissions, which are not the persuasive but the provocative part of the art of advocacy. Even so, we have listened with sympathy to the studious orality and read with patience the manuscript arguments emanating from the appellant. He was an Accounts officer since December 30, 1961, having been so promoted and appointed by the Comptroller and Auditor General of India (C &AG). The story of his career was snapped when he was compulsorily retired in the public interest on August 27, 1975 under; F.R. 56(j)(i) by the Accountant General (A.G.). Had he run his full course, his continuance until April 1980 would have been sure. Finding himself an uneasy casualty when the easy axe of F.R. 56(j)(i) fell on him, the appellant challenged the premature retirement in the High Court only to be greeted with a dismissal in limine. Here he has arrived by special leave and argued before us that his forced retirement is dubious and violative, in many ways, of F.R. 56(j)(i).

Reasoning: A break-down of the provision brings out the basic components. The order to retire must be passed only by the appropriate authority. T hat authority must form the requisite opinion-not subjective satisfaction but objective and bona fide and based on relevant material. The requisite opinion is that the retirement of the victim is in public interest-not personal, political or other interest but solely governed by the interest of public service. The right to retire is not absolute, though so worded. Absolute power is anathema under our constitutional order. Absolute merely means wide, not more. Naked and arbitrary exercise of power is bad in law. These essentials once grasped, the appellants submissions become self-evident.The fallacy in the argument lies in the confusionbetween dismissal and compulsory retirement. The two cannot he equated and the constitutional bar cannot be operative. Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under r. 56(j)(i). Under Note 1 to F.R. 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said rules. From this Note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of Accounts Officers like the appellant has been vested in the A.G . by Notification of the Ministry of Finance dated 29-11-1972. Since the A.G. has been clothed, from that date, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant Accounts Officer had been appointed by the &AG prior to 29-11-1972. In the light of the note which is part of the rule, read with the notification delegating the power to the A.G., we see no flaw in the order impugned.No doubt, ordinarily the appointing authority is also the dismissing authority but the position may be different where retirement alone is ordered. There, the specific provision in the Note to FR 56 must hold good and Art. 311 is not violated either. Nor is there any discrimination, as contended for, because retirement is a category different from the punishments covered by Art.is the retiring authority on a given date? This is answered by the Note which, in substance , says that he who is empowered to appoint the Accounts officer is also the appropriate authority to retire compulsorily, on that date. In this view, we cannot nullify the retirement of the appellant for want ofis an affirmative action, not a negative disposition, a positive 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 ones own lifes 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 or audit vested in the C &AG and the entire army of monitors and minions under him are too strategic for the nations financial health and discipline. that immunity from subtle threats and oblique overawing is very much in public interest. So 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. There is no demonstrable ground to infer mala fides here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in. public interest. When an order is challenged and its validity depends on its being support ed 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 the grounds of public interest justifying forced retirement of the public servant. Judges cannot substitute their judgment for that of the Administrator but they are not absolved from the minimal review well-settled in administrative law and founded on constitutional obligations. The limitations on judicial power in this area are well-known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary in publicwill consider this question to the extent disclosed by the record and in the light of the submissions made by both the parties. The whole purpose of the rule is to weed out the worthless without the punitive extremes covered by Art. 311 of the Constitution. After all, administration, to be efficient, must not be manned by drones, do nothings, incompetents and unworthies. They may not be delinquent who must be punished but may be a burden on the Administration if by insensitive, insufficient, unintelligent or dubious conduct impede the flow or promote stagnation, in a country where speed, sensitivity, probity. and non-irritative public relation s and enthusiastic creativity are urgently needed but paper-logged processes and callous cadres are the besetting sin of the Administration. It is in public interest to retire a never-do-well, but to juggle with confidential reports when a mans career is at stake is a confidence trick contrary to public interest. Moreover, confidential reports are often subjective, impressionistic and must receive sedulous checking as basis for decision- making. The appropriate authority, not the court, makes the decision, but, even. so, a caveat is necessary to avoidare inclined to ignore the case that the appellant was retired because he had declined to proceed on leave forcibly in September 1974. While it is reprehensible for Government or any in the higher echelons to compel a civil servant to go on leave on pain of being suspended, retired or transferred to a far-off place or indifferent post-and the court may readily infer mala fides in t he subsequent order if there is proof of antecedent pressure to take forced leave-we cannot judge the legality of a compulsory retirement on suspicions and apprehensions invariably urged even by deservingI was considered to be unsuitable to continue to officiate as Accounts officer even after 14 years of continuous service without break and after I reached the maximum of the scale both old/revised without being held up or even delayed at E.B. or for increment, then the proper course open to the authorities was to take action against me under C.C.S. (C.C.A.) Rules 1965 to revert me and not to retire me by taking shelter under F.R. 56(j)(i) to avoid initiating disciplinary action. This is thus a clear case of vindictive misuse of powers by the Appointing Authority under F.R.wonders how an officer whose continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale an d with no adverse entries at least for five years immediately before the compulsory retirement, could be cashiered on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms. A short cut may often be a wrong cut. The order of compulsory retirement fails because vital material, relevant to the decision, has been ignored and obsolete material, less relevant to the decision, has influenced the decision. Any order which materially suffers from the blemish of overlooking or ignoring, wilfully or otherwise, 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 or the totality of material facts viewed in a holistic perspective. For these reasons, the order challenged is obviously bad and we quash it. It i s, however, open to the A.G. to take a fresh decision based on legal material and guided by legal principles. The appellant has, by now, reached the age of superannuation in the normal course.