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TMI Blog1977 (9) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... d as Secretary, Local Self Department in the State Government. He was appointed Judicial Member of the Board of Revenue in 1969. He attained the age of 50 years on December 29, 1967. By an order dated August 22, 1970, the President of India, in consultation with the Government of Uttar Pradesh, in pursuance of the power conferred by Sub-rule (3) of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules 1958, passed the impugned order of compulsory retirement of the respondent in the public interest on the expiry of three months from the date of service of the order. 3. The respondent challenged the said order by a writ application before the Allahabad High Court and the learned single Judge allowed the same on the grounds of "contravention of the justiciable and binding rules and because the order was based on consideration of irrelevant matters and was also vitiated by bias". 4. Both the Union of India and the State of U.P. appealed to the Division Bench of the High Court against the judgment of the learned single Judge. The High Court by an order dated April 13, 1973, dismissed both the appeals by a common judgment. The Division Bench did not agree with all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case relating to the Gorakhpur Parliamentary Constituency elections. 8. With regard to the fourth entry, it appears that although Shri Nigam had been suspended pending enquiry on account of certain strictures made against him by the Election Tribunal, these strictures were later on expunged by the High Court on appeal. As a result the order of suspension was set aside and Shri Nigam was reinstated in service in 1967. It appears, however, that even on December 20, 1969, the Secretary, Ministry of Home Affairs of the Central Government, while glancing through the character roll of Shri Nigam found the aforesaid entry containing the strictures. 9. The All India Services Act, 1951 (No. LXI of 1951) regulates the recruitment and the conditions of service of persons appointed to the All India Services. Under Section 3 of that Act the Central Government, after consultation with the Governments of the States concerned makes rules for the regulation of recruitment and the conditions of service of persons appointed to an All India Service. In exercise of powers under Sub-section (1) of Section 3 of the said Act, the Central Government made the All India Services (Death-cum-Retirement Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the Central Government with a full indication of the considerations and reasons for their proposal. Where an officer is serving under the Central Government, the Central Government would send a similar statement to the State Government while inviting their views on the question of retiring the officer prematurely. It is to be hoped that this process of consultation between the Central and the State Governments would be completed in each case in about three months' time so that in the event of retirement being finally decided upon, a notice could be given to the officer concerned at least three months before the date on which he is to attain the age of 55 years and his retirement thus given effect as soon as he does so. (3) x x x x (4) In a case in which the State and the Central Governments have reasonable cause to believe that an officer is lacking in integrity, it would be appropriate to consider him for premature retirement, irrespective of an assessment of his ability of efficiency in work. (5) x x x x (6) x x x x (7) Once it is decided to retain an officer beyond the age of 55 years, he should be allowed to continue up to the age 58 without any fresh rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of Home Affairs, Government of India, to the Chief Secretaries of all the State Governments with regard to the amendment to Rule 16 for review of records of officers at the age of 50 Paras 2 and 3 of this notification may be quoted: 2. I am to request that the State Governments may kindly take steps to review the records of all those All India Service officers, who have already completed or who are about to complete the age of 50 in the next 6 months or so and are serving in connection with the affairs of the State.... 3. The criteria and procedure for review of records and also service of notice on those, who are proposed to be retired will be the same as outlined in this Ministry's letter No. 29/67 66-AIS(II), dated the 5th September, 1967. This review at the age of 50 will be in addition to the one contemplated later at the age of 55. 12. It is in pursuance of Sub-rule (3) of Rule 16 and in consonance with the instructions set out above that the State Government of U.P. in October 1969 constituted a Review Committee consisting of Shri H. C. Gupta, Chairman, Board of Revenue, Shri B. B. Lal, 1. C. S., Chief Secretary and the Member, Taxation Board of Revenue, to revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the matter was taken after thorough consideration and that it did not consider it necessary to go into this question again. No adverse decision contrary to the recommendation of the State Government was communicated by the Central Government to the State Government in pursuance of the recommendation of the first Review Committee in October 1969. 14. Next, we find that the State Government constituted a second Review Committee in May 1970 consisting of Shri Musaddi Lal, Chief Secretary, Shri J. D. Shukla, Member Board of Revenue and Shri J. B. Tandon, the senior-most officer of the Indian Administrative Service. Before this Committee the case of all the officers who had attained the age of 50 years including those whose cases had been reviewed earlier, in October 1969, were also placed for consideration. Thus Shri Nigam's case came to be considered again by the second Review Committee. This time the Committee recommended that two officers, one of whom was Shri Nigam, should be prematurely retired. The State Government having accepted this recommendation forwarded the same to the Central Government. The Central Government asked the State Government to send the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishment, if there are several grounds on which the order is founded and one or two of those fail and the order can still rest on the surviving ground or grounds disclosing a prima facie case of guilt or misconduct, the same cannot be held to be invalid by applying the subjective test of preventive detention (see State of Orissa v. Bidyabhushan Mahopatrd). Bidyabhushan (supra) was a case of dismissal of a Government servant for misconduct on several grounds, two of which failed. This Court, differing from the High Court on the point held as follows: If the order of dismissal was based on the findings on charges l(a) and l(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima-facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal.... X X X X X Therefore if the order may be supported on any finding as to substantial misdeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ceased to have a right, as such, to continue in Government service under the rules governing his employment. The analogy with cases under the Preventive Detention Act is, therefore, absolutely out of place. The Division Bench is not right in quashing the impugned order on that solitary ground. 25. This would, however, not conclude the controversy before us. Mr. Yogeshwar Prasad appearing on behalf of the respondent, does not challenge before us that the impugned order is vitiated by mala fides. Even the Division Bench, differing from the learned single Judge, found against the plea of mala fides. We are, therefore, relieved of dealing with this plea. 26. The learned single Judge held the instructions of the Ministry of Home Affairs as statutory and as such binding, on a concession made in the counter-affidavit submitted before him by the Under Secretary of the Personnel Department (Cabinet Secretariat). According to counter-affidavit these instructions were made by the Government by Rule 2 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960. It is not necessary to go into this aspect in detail in this case as to whether the instructions can be eleva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position nor do we find any reason to differ from that opinion. It is, therefore, clear that the respondent's order of termination was made not as a result of the report of the first Review Committee in accordance with, the instructions but on the recommendation of the second Review Committee which could not have taken up his case, as it was, on the self-same materials prior to his reaching the age of 55 years.\ 28. We find from the instructions that reviews have to be conducted twice in the career of a Government servant, once six months prior to his attaining the age of 50 years and again six months prior to his attaining the age of 55 years. Since the amendment introducing the age of 50 years came in August 1969, after the respondent had already attained 50 years, the first review in his cage could be held only in October 1969. The second Committee sat in May 1970 after the first Committee had recommended the continuance of the respondent in service in October 1969 which was agreed to by the State Government and even reiterated by it on a query from the Central Government in January 1970. If the Central Government did not choose to decide against the respondent then, the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 311. Under Article 309 the appropriate legislature may regulate the recruitment and conditions of service and until so done, the President or his delegate and the Governor or his delegate may make rules regulating the recruitment and conditions of service. The Act passed by the appropriate legislature and the rules made under Article 309 will however, be subject to the provisions of the Constitution which include Article 311 and certainly the Fundamental rights. 32. The pleasure doctrine under Article 310 is in a way unoffendingly resuscitated with appropriate vigour towards the tail-end of the career of a Government servant under Rule 16(3) in the public interest. Compulsory retirement under the service rules is not by way of punishment, as understood in service jurisprudence, however, unsavoury it may be otherwise. During the entire tenure of Government servants from the date of temporary or probationary appointment till termination or retirement, as the case may be, there is an undoubted security for them against dismissal, removal or reduction in rank except in the manner laid down under Article 311(2), read with relevant laws or rules made under Article 309. 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the High Court was not right in going behind the order of compulsory retirement and delving into the files of the Government to see for itself whether the order could be sustained. We find that the records of service of the respondent and other papers were produced by the learned Advocate General before the High Court without any objection and without claiming any privilege with regard to those documents. That being the factual position, we are not inclined to consider whether the course adopted by the High Court in this case is open to objection. It will, however, be proper to observe that when an order of compulsory retirement is challenged as arbitrary or mala fide by making clear and specific allegations, it will then be certainly necessary for the Government to produce all the necessary materials to rebut such pleas to satisfy the court by voluntarily producing such documents as will be a complete answer to the plea. It will be for the Government also to decide whether at that stage privilege should be claimed with regard to any particular document. Ordinarily, the service record of a Government servant in a proceeding of this nature cannot be said to be privileged d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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