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TMI Blog1996 (4) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ter he had attained the age of 55 years. Admittedly the respondent had attained the age of 55 years when the order dated January 28, 1987 with regard to his compulsory retirement was passed. For the reasons aforementioned, we are unable to uphold the judgment of the Tribunal quashing the order dated January 28, 1987 regarding compulsory retirement of the respondent and the appeal has to be allowed. - 3806 of 1992 - - - Dated:- 12-4-1996 - S.C. Agrawal and G.T. Nanavati, JJ. REPRESENTED BY : Shri V.R. Reddy, Additional Solicitor General, for the Appellant. Shri Ujagar Singh, Senior Advocate, for the Respondent. [Judgment per : S.C. Agarwal, J.]. - This appeal by Special leave is directed against the judgment of the Central Administrative Tribunal, Chandigarh Bench, (hereinafter referred to as `the Tribunal ), dated January 31, 1992 in O.A. No. 668 P.B./1987 filed by the respondent wherein he had challenged the validity of the order of compulsory retirement dated January 28, 1987 passed under Fundamental Rule 56(j). The said order of compulsory retirement has been quashed by the Tribunal by the impugned judgment. 2. The respondent was practising as an advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved the premature retirement of the respondent under FR 56(j) and thereupon the order dated January 28, 1987 was passed whereby the respondent was compulsorily retired from service. The respondent filed an application before the Tribunal challenging the said order of compulsory retirement. The said application was allowed by the Tribunal by the impugned judgment and the order of compulsory retirement has been quashed. Hence this appeal. 3. One of the contentions urged before the Tribunal on behalf of the respondent was that FR 56(j) was not applicable to members of the ITAT in view of Rule 11 of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 (hereinafter referred to as `the Rules ) whereby the age of retirement of a member of the ITAT has been fixed at 62 years and it is further provided that the date of compulsory retirement of a member would be the date of his attaining the age of 62 years and not the last date of the month as in the case of other Government servants. It was submitted that since a specific provision has been made in Rule 11 of the Rules with regard to retirement of the members of the ITAT and no express provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on whose direction a note was submitted by the Law Secretary to the Cabinet Secretary and that the Cabinet Secretary had not made the recommendation direct to the ACC. The Tribunal further held that there was non-compliance with the said guidelines also in the matter of consideration of representation submitted by the respondent against the order of compulsory retirement inasmuch as under the guidelines the representation was required to be considered by the Senior Selection Board and it is required to make its recommendations to the ACC for taking final decision and that, in the present case, the representation submitted by the respondent was examined only in the Ministry of Law and Justice and the matter was submitted directly to the ACC without it being considered by the Senior Selection Board. 4. FR 56(j). as it stood at the relevant time, provided as follows :- FR 56(j) : Notwithstanding anything contained in this rule, the appropriate authority shall be, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inet Secretary will make his recommendation directly to the Appointments Committee of the Cabinet for orders. ******* 7. A member of the ITAT is an officer of the rank of Additional Secretary and in his case the Cabinet Secretary is required to make his recommendation directly to the ACC for orders. 8. In the present case, the proposal for premature retirement of the respondent was initiated in the Ministry of Law and Justice, the concerned ministry, and before initiating the proposal the respondent was given a hearing by the Law Minister on November 5, 1986 as regards the various complaints that had been received against the respondent with regard to his performance as a member of the ITAT as well as the complaint sent by his wife. Thereafter, the recommendation for compulsory retirement of the respondent was sent by the Law Secretary to the Cabinet Secretary and the Cabinet Secretary placed the matter for consideration before the ACC with his recommendation. The proposal was accepted by the ACC and thereafter the order for compulsory retirement of the respondent was passed. We are unable to hold that there was non-compliance with the guidelines laid down in OM dated January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of review should be entrusted with consideration of representation in respect of officers of the rank of Additional Secretary, Special Secretary and Secretary to the Government. This anomaly would be avoided if the provision regarding composition of Representation Committee contained in Appendix II to OM dated January 5, 1978 is construed as applicable in respect of officers upto the rank of Joint Secretary to the Government and in respect of officers of the rank of Additional Secretary, Special Secretary and Secretary to the Government, the Authority competent to deal with the representation and to make the recommendation to the ACC is the Cabinet Secretary who had considered the matter of compulsory retirement at the stage of review. On that view of the matter the representation of the respondent against the order for his compulsory retirement was required to be dealt with by the ACC on the basis of the recommendation of the Cabinet Secretary and it was not necessary to refer the representation to the Senior Selection Board. This was done in the instant case inasmuch as the representation submitted by the respondent was forwarded to the ACC by Cabinet Secretary with his recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year ending on December 31, 1985 : While his relations with the senior colleague Shri P.K. Mehta, seemed to be satisfactory, the members of the Bar and the Authorised Representatives of the Department are not very happy.... I consider that Shri Dhillon has shown some improvement, though he continues to exhibit rigid attitude at times both as regards judicial and administrative work. Quality of orders average 12. The Reviewing Officer agreed with the said assessment made by the Reporting Officer. 13. The wife of the respondent made a complaint about the character and conduct of the respondent and his living with another lady without marriage. The respondent was given a personal hearing by the Law Minister and he did not deny the fact that he was living with another lady. 14. Keeping in view the circumstances attendant to his confirmation as member of the ITAT with effect from April 1, 1985, we are unable to agree with the Tribunal that after such confirmation the adverse material on the record for the period prior to April 1, 1985 should be disregarded. In our opinion, the entire service record of the respondent including the record for the period prior to April 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, was, in substance, removal under Article 311(2) of the Constitution. The provision contained in FR 55(j) cannot be equated with aforementioned provision in Article 9.1 of the Pepsu Services Regulation because it provides for compulsory retirement at the age of 50 or 55 years and it cannot be said that it does not provide for a reasonable long period of service. Merely because the period of service rendered by the respondent was less than 10 years, which is the period of qualifying service required for grant of pensionary benefits, it cannot be said that the order dated January 28, 1986 (sic) was an order of removal of service and not an order of compulsory retirement. 17. For the reasons aforementioned, we are unable to uphold the judgment of the Tribunal quashing the order dated January 28, 1987 regarding compulsory retirement of the respondent and the appeal has to be allowed. 18. By order dated September 14, 1992, this Court, while staying the operation of the impugned order of the Tribunal, directed the appellant to deposit the salary including the arrears due to respondent in the Tribunal within four weeks from the date of the said order and it was further directed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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