Service Law: Compulsory retirement – Quashing of, when – Appellant selected and empanelled for appointment as a Member of ITAT by the Selection Committee – However, his appointment did not mature – Respondent withheld his appointment on various counts, however, tribunal and all superior courts directed the respondents forward the name of the appellant to the appropriate Authority for selection/appointment to the post of Member, ITAT – Respondents did not comply with the orders and in the meantime initiated disciplinary proceedings against the appellant which never reached to its logical conclusion – Instead, the appellant was compulsorily retired three months short of the date of his superannuation – Challenged to, however both the tribunal and the High Court dismissed the same – On appeal, held: Service record of the appellant is impeccable – Complaints made against him are either closed or has been settled, and this was well within the knowledge of the respondents – Nothing placed on record to show a sudden decline in the work conduct of the appellant so as to have compulsory retire him – It is not shown what transpired the respondents to resort to FR 56(j) and invoke public interest doctrine to compulsorily retire him with just three months left for his service – Order of retirement is punitive in nature and was passed to short circuit the disciplinary proceedings – It failed to satisfy the underlying test of serving the interest of the public – Thus, the order of compulsory set aside – Fundamental Rules – r.56(j).
Allowing the appeal, the Court
HELD: 1.1 As per the material placed on record, the APARs of the appellant reflect that over the past several years, his integrity was being regularly assessed as “Beyond doubt” and this remained the position till as late as 31st July, 2019, when his work performance was assessed for the period from 1st April, 2018 to 31st March, 2019 and found to be upto the mark. In his APARs for the past one decade, till the period just prior to the order of his premature retirement, the respondents were consistently grading the appellant as “Outstanding”. No adverse entries were made by his superiors in the APARs of the appellant insofar as his work performance was concerned. No aspersion was cast either on his conduct or character during all this period. As per the service records, his efficiency and integrity remained unimpeachable throughout his career. The inference drawn from the above is that the appellant’s service record being impeccable could not have been a factor that went against him for the respondents to have compulsorily retired him. [Para 26][48-CE]
1.2 The respondents have referred to nine complaints against the appellant, stated to be pending in the Vigilance Directorate. Out of the said nine complaints, except one all have been closed or rejected. As regards, the complaint at Sr. No.9, which was made by the appellant’s ex-wife alleging bigamy, moral turpitude etc. against the appellant. In the remarks column, the respondents stated that necessary information in respect of the said court proceedings between the parties was sought by the department. The appellant clarified that a decree of divorce was granted to the parties by the concerned Court and a copy of the said order was duly supplied to the department against receipt on 21st March, 2018. [Paras 27, 28][49-F; 52-F; 53-B-C]
1.3 In the teeth of the series of orders passed by the tribunal and the High Court in favour of the appellant, the respondents elected to withhold his vigilance clearance, thereby compelling the appellant to file contempt petitions against the concerned officers for non-compliance of the orders passed. Both, the High Court as well as the tribunal, issued notices for wilful disobedience of the orders passed. In the proceedings before the High Court, on the one hand, the respondents kept seeking adjournments on the ground that steps were being taken to forward the appellant’s name to the ACC for being processed for his appointment as Member, ITAT, till as late as on 31st May 2019 on which date they were granted one last opportunity for making compliances and at their request, the matter was adjourned to 9th July 2019 and on the other hand, the respondents slapped the appellant with a Charge Memorandum dated 17th June 2019 and suspended him on 1st July, 2019. [Para 36][56-C-E]
1.4 Having regard to the fact that the respondents did not take the disciplinary proceedings initiated against the appellant to its logical conclusion and instead issued an order compulsorily retiring him, it is not expedient to delve into the allegations levelled in the said Charge Memorandum; all the same, the Charge Memorandum have gone through cursorily that mentions three charges – one alleging that the appellant failed to seek permission from the department to purchase a flat in relation to the matrimonial dispute between him and his estranged wife and the second one is in respect of the allegation of bigamy levelled against him by his estranged wife. It is already noted that during the course of the matrimonial dispute, the parties had arrived at a settlement and the flat that was agreed to be given to the wife, was not purchased by the appellant but by his brother, which fact is amply borne out from the documents placed on record. The matrimonial dispute between the parties stood closed on a decree of divorce being granted on the basis of mutual consent. That the respondents were also cognizant of the said fact, is apparent from the contents of O.M. dated 15th July, 2015 which records inter alia that the said allegations levelled by the wife had not been established. The third charge was relating to the appellant having attended Court hearings without sanctioned leave. However, the disciplinary proceedings initiated against the appellant on 17th July, 2019 were abandoned by the respondents on the order of compulsory retirement being passed against him in less than three months reckoned therefrom, on 27th September, 2019. [Para 37][56-E-H; 57-A-B]
1.5 There is no doubt that rule of law is the very foundation of a well-governed society and the presence of bias or malafides in the system of governance would strike at the very foundation of the values of a regulated social order. Any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant levelled allegations of institutional bias and prejudice against the respondents, particularly against the then Chairman, CBDT who was a Member of the Review Committee, the said officer was not joined by the appellant as a party before the tribunal or the High Court, for him to have had an opportunity to clarify his stand by filing a counter affidavit. Hence, these allegations cannot be looked into by this Court. [Para 38][57-C-D, E, F]
1.6 Though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed on 27.09.2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as ‘Outstanding’ and had assessed his integrity as ‘Beyond doubt’. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public. The impugned judgment and the order compulsorily retiring the appellant is quashed and set aside. [Paras 39, 40][58-A-F] Allahabad Bank Officers’ Association and Another v. Allahabad Bank and Others (1996) 4 SCC 504 : [1996]
2 Suppl. SCR 172; Union of India v. Col. J.N. Sinha and Another (1970) 2 SCC 458 : [1971] 1 SCR 791; Swami Saran Saxena v. State of U.P. (1980) 1 SCC 12 : [1980] 1 SCR 923; Baldev Raj Chadha v. Union of India (1980) 4 SCC 321 : [1981] 1 SCR 430; Ram Ekbal Sharma v. State of Bihar and Another (1990) 3 SCC
504 : [1990] 2 SCR 679; State of Orissa and Others v. Ram Chandra Das (1996) 5 SCC 331 : [1996] 2 Suppl. SCR 559; State of Gujarat and Another vs. Suryakant Chunilal Shah (1999) 1 SCC 529 : [1998] 3 Suppl. SCR 293; State of Gujarat v. Umedbhai M. Patel (2001)
3 SCC 314 : [2001] 2 SCR 170; Nand Kumar Verma v. State of Jharkhand and Others (2012) 3 SCC 580 : [2012] 1 SCR 504; Nisha Priya Bhatia v. Union of India (2020) 13 SCC 56 : [2020] 10 SCR 596; State of Bombay v. Saubhag Chand M. Doshi AIR 1957 SC 892 : [1958] SCR 571; S. Pratap Singh v. State of Punjab AIR 1964 SC 72 : [1964] SCR 733; Jaichand Lal Sethia v. State of W. B AIR 1967 SC 483 : [1966] Suppl. SCR 464; J. D. Srivastava v. State of M.P And Others (1984)
2 SCC 8 : [1984] 2 SCR 466; Express Newspapers Pvt. Ltd. And Others v. Union of India and Others (1986) 1 SCC 133 : [1985] 3 Suppl. SCR 382 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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