BRIJ MOHAN SINGH CHOPRA v. STAIB OF PUNJAB

The Judgment of the Court was delivered by,

B.M.S. CHOPRA v. STATE OF PUNJAB [SINGH, J.I 587

SINGH, J. This appeal is directed against the Order of the High A y Court of Punjab and Haryana dismissing the appellant's petition made under Art. 226 of the Constitution challenging validity of the Punjab Government's Order dated 19.3.80 retiring the appellant prematurely from service.

The appellant after having obtained 1st Class M.Sc. (Techno- B logy) degree from Banaras Hindu University in 1950 was awarded ~ Gandhi Memorial Scholarship by the Govt. for study and training in France for a period of three years. On his return from abroad he was appointed as Superintendent Quality Marking Centre (Scientific 4~ Instruments) of the Government of Punjab. In 1963 he was promoted to the post of Deputy Director (Technical). In 1968 he was promoted to the post of Joint Director (Industries), which post he continued to c "- hold till he was prematurely retired by Government order dated 19th March, 1980 issued in exercise of power under rule 3 of the.Punjab Civil Services (Premature Retirement) Rules 1975 (hereinafter refer- red to as the Rules). The appellant made a representation against the order of premature retirement to the Government but the same was D rejected, thereupon the appellant challenged the validity of the Government order by means of a writ petition under Article 226 of the Constitution before the High Court, which was dismissed in limine by ,+ the High Court on August5, 1981. The learned counsel for the appellant contended that the E • Government decision to retire the appellant prematurely was arbitrary and unreasonable as the appellant's service record has all along been good and there was no material before the appropriate authority on the basis of which the requisite opinion that the appellant's premature retirement was necessary in public interest, could be formed. He urged ·.J · that the appellant had earned consistent good entries for the last 5 F years, but the competent authority relied on some adverse entries of remote past to retire the appellant. Learned counsel further urged that appellant's representation against some of the adverse entries which had been considered against him was pending and the same had not been considered and disposed of. Those entries should not have been considered against the appellant. On the other hand learned counsel G .X appearing for the State urged that the appellant's work and conduct was not satisfactory and the State Government having considered the over all service record of the appellant formed the requisite opinion bonafide that the appellant's premature retirement was necessary in public interest. In support of his contention he placed the service record before the Court and referred to a number of adverse entries H

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A earned by the appellant during his service career to which we shall make reference at a later stage. ~

The purpose and object of premature or compulsory retirement of Government employee is to weed out the inefficient, corrupt, dis- honest or dead wood from the Government service. This right of the B .Government is well established which is generally exercised in accord- ance with relevant service Rules. The scope and ambit of exercise of this absolute power depends on the provisions of Rules and it is always subject to Constitutional limitations. In the instant case the appellant was prematurally retired in exercise of power under Rule 3 of the Punjab Civil Services (Premature retirement) Rules 1975, it would therefore be necessary to have a look at these provisions. Rule 3 reads c as under:

"3. Premature retirement: (l)(a) The appropriate authority shall ifit is of the opinion that it is in public interest to do so, have the absolute right, D by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.

(b) The period of such notice shall not be less than

- E· three months.

Provided that where at least three month's notice is not given or notice for a period Jess than three months is given, the employee shall be entitled -• , to claim a sum equivalent to the amount of his pay F and allowances, at the same rate at which he was drawing them immediately before the date of retire- ment, for a period of three months or, as the case may be, for the period by which such notice falls short of three months.

G (2) Any Govt. employee may, after giving at least three month's previous notice in writing to the X appropriate authority retire from service on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to ·be specified in the notice. H

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Provided that no employee under suspension shall. retire from service except with the specific approval of the appropriate authority."

The above rule invests absolute right in the appropriate authority to retire an employee prematurely on his completion of 25 years of qualifying service or 50 years of age. The appropriate authority as defined by rule 2 means the authority which has the power to make .>( substantive appointment to the post or service from which the Govt. employee is required to retire. Before a Govt. employee is retired in ~ ~ -- exercise of power under this rule it is necessary that the Govt. servant must have completed 25 years of qualifying service or he must have attained 50 years of age and further he must be given three month's notice in writing. The rule does not lay down any criteria, guidelines C ~ for the exercise of power, although public interest is specified in the rule, which means power has to be exercised in the public interest only. The public interest in relation to public administration envisages retention of honest and efficient employees in service and dispensing the services of those who are inefficient, dead-wood or corrupt and D dishonest. Therefore the rule contemplates premature retirement of the inefficient, corrupt or dead-wo.od which would subserve the public interest.

Since the rule does not contain any further guidelines, the State Government issued a Government Order on September 26, 1975 lay- E ing down the guidelines and the procedure necessary to be followed in exercising powers under rule 3 for premature retirement of a Govern- ment employee. The order stated that the appropriate authority should utilise the power under rule 3 in a judicious manner to retire a Government employee on formulating its opinion by scrutiny of the confidential reports of the employee and by taking into consideration any other substantial material, it may have before it. The order further stated that it was not feasible to lay down any absolute terms as to how many adverse entries about inefficiency or lack of integrity would justify the premature retirement but it laid stress that the service record as a whole would determine the merit of each case. Paragraph 6 of the letter further stated that remoteness of an adverse entry, the scrutiny of the service record of the employee concerned such as crossing of efficiency bar, confirmation and promotion to a higher post or any other meritorious service rendered by the employee, would have their relative importance. The order emphasizes that the appropriate authority may consider premature retirement of a Government employee if it has reasonable cause to believe that the employee con- H

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A cerned was lacking in integrity irrespective of the assessment of ability and efficiency in work. It further provides tha~ the appropriate autho- ~ rity should review the cases of employees on their completing 25 years of qualifying service or their attaining 50 years of age. The Govern- ment issued another order on August 4, 1978 pointing out that while exercising power under rule 3 the service of an employee as a whole would determine the merit of each case but if there was a single entry describing the employee concerned as a person of doubtful integrity, y.. that would justify the premature retirement under the rules. The ex- ecutive instructions issued as contained in these two Govt. orders pro- vide sufficient guidance for the exercise of power under rule 3. ~ - According to these instructions the service record of an employee has necessarily to be considered while taking decision for the premature retirement of an employee and if there was a single entry casting doubt on the integrity of an employee, the premature retirement of such an 3f employee would be in public interest. In the absence of any details by which the question of public interest could be deterrnined in the rules it was open to the State Govt. to issue executive instructions for the guidance of the appropriate authority to exercise the power of prema- ture retirement and the instructions so issued as contained in the aforesaid Govt. orders have binding character.

In the counter affidavit filed on behalf of the State of Punjab it is ~ asserted that the appellant during his service with the industries de- E partment earned adverse remarks in the annual confidential reports on his work and conduct for the years 1960-61, 1963-64, 1964-65, 1969-70, 1970-71, 1971-72, 1972-73 and 1975-76 which indicate that the overall service record of the appellant was bad and his integrity was frequently -, challenged. It was been further stated that these entries were taken into consideration in retiring the appellant. No other material was considered against the appellant. According to the respondents the ->· appellant's service record as a whole was taken into consideration and thereupon it was found that he had earned a number of adverse entries which indicated his inefficiency and for that reason it was considered necessary to retire him prematurely in public interest. We have been taken through the adverse entries by the learned counsel appearing for the State as he placed the service record before us. On a perusal of the same we find that the respondents took into consideration some of the adverse entries which related to remote past prior to the promotion of the appellant to the post of Joint Director (Industries). It is now set- tled that adverse entries if any, awarded to an employee lose their significance on or after his promotion to a higher post. The adverse entries awarded to the appellant prior to 1968 could not be taken into

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consideration and therefore the adverse entries for the years 1960-61, y A 1963-64 and· 1964-65 could not legally be taken into consideration in forming the requisite opinion to retire the appellant prematurely from service. It is now well settled that while considering the question of premature retirement it may be desirable to make an overall assess- ment of the Government servant's record, but while doing that, more value should be attached to the confidential reports pertaining to the B )( years immediately preceding such consideration. It is possible that a new entrant to a service may have committed mistakes and for that reason he may have earned adverse entries and if those entries of early 4 /,.... " years of service are taken into consideration for prematurely retiring a Government employee then perhaps no employee would be safe even though he may have brilliant record of service in later years. This aspect was emphasised by this Court in a numlfor of cases namely, c ·"it Baldev Raj Chadha v. Union of India & Ors., [1981] 1 SCR 430; Brij Bihari Lal Agarwal v. High Court of M.P. & Ors., [1981] 2 SCR 297; Amar Kant Choudhary v. State of Bihar & Ors., [1984] 2 SCR 299 and J.D. Srivastava v. State of M.P. & Ors., [1984] 2 SCR 466. This Court has consistently taken the view that old and stale entries should not be D taken into account while considering the question of premature retire- ment instead; the entries of recent past of five to ten years should be considered in forming the requisite opinion to retire a Government ~ employee in public interest. It would be unreasonable and unjust to consider adverse entries of remote past and to ignore the good entries of recent past. We are therefore of the opinion that if entries for a E period of more than 10 years past are taken into account it would be an act of digging out past to get some material to make an order against ..... the employee. In view of this we would confine our scrutiny to the appellant's record of service for the last 10 years prior to the date on -4.' which he prematurely retired. F We would now examine the appellant's service record for the last 10 years. On a perusal of the same we find that the appellant was awarded adverse remarks for the year 1971-72 and 1972-73 and for the rest of the years he was not awarded any adverse remarks. On the other hand for the years 1974-75 and 1975-76 the reporting officer rated him as a 'very good' officer although the reviewing officer G _).(_ treated him as 'average'. In 1976-77 the reporting officer rated him as a 'good' officer while the reviewing officer rated him as an 'average'. For the year 1977-78, 1978-79 and 1979-80 the reviewing officer assessed his work and conduct 'good'. During the last 5 years of his service the appellant had earned good entries which are commendable in nature. Except the two entries awarded to him for the years 1971-72, 1972-73 H

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A the appellant has not earned any adverse entry reflecting upon his work and conduct. It is significant to note that in none of those entries his integrity was doubted. So far as the adverse entries for the year 1971-72 and 1972-73 are concerned the appellant has asserted that even though he had filed representations in accordance with the rules against those entries, his representations had not been considered or B disposed of, but the appropriate authority considered those entries against him. In the counter affidavit filed on behalf of the State it is conceded that the appellant had filed representations against the aforesaid two entries, but the two representations could not be dis- posed of as the representations were not traceable on the Government file. The fact however remains that the appellant had filed representa- c tions against the. aforesaid adverse entries and the receipt of the re- presentations is admitted by the Govt. but those representations were kept pending.

The question which falls for consideration is whether the aforesaid two entries could be taken into consideration in forming the D requisite opinion to retire prematurely the appellant from service. There is no doubt that whenever an adverse entry is awarded to a Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make represen- tation to the authority concerned against those entries. If such a re- E presentation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is a valuable right to a Govt. employee and if the representation is not considered, it is found to affect him in his service career, as in Govt. service grant of increment, promotion and ultimately premature re- F tirement all depend on the scrutiny of the service records. In Gurdial Singh Fiji v. State of Punjab & Ors., [1979) 3 SCR 518 the appellant therein was denied promotion on account of certain adverse entries against which he had made representation to the Govt. but for some reason or the other those representations could not be considered or disposed of. In view of those adverse entries he was not selected for G promotion. This Court while considering the effect of non-consi- deration of the representation observed:

" The principal is well settled that in accordance with the rules of natural justice, an adverse report in a confiden- tial roll cannot be acted upon to deny promotional oppor- H tunities unless it is communicated to the person concerned

B.M.S. CHOPRA v. STAIB OF PUNJAB (SINGH, J.l 593

so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the re- A port. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for some rP.ason or another, not arising out B of any fault on the part of the appellant, though the adverse )f report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified."

After the aforesaid observation this Court directed the State Govt. to consider and dispose of the representation made by the appel- c lant and thereafter the Selection Committee was directed to consider his case afresh. In Amar Kant Choudhary v. State of Bihar & Ors. ., (supra) the Court again emphasized that adverse report in a confiden- tial roll cannot be acted upon to deny promotional opportunities un- less it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumst- ances leading to the report. Unless the representation against the adverse entry is considered and disposed of it is not just and fair to act upon those adverse entries. These decisions lay down the principle that unless an adverse report is communicated and representaion, if

- any, made by the employee is considered, it cannot be acted upon to deny promotion. We are of the opinion that the same consideration must apply to a case where the advese entries are taken into account in retiring an employee prematurely from service. It would be unjust and unfair and contrary to principles of natural justice to retire prema- turely a Govt. employee on the basis of adverse entries which are either not communicated to him or if communicated representation made against those entries are not considered and disposed of. The appellant had submitted his representation against adverse entries for the year 1971-72, and 1972-73 and admittedly those representations were not considered and disposed of and yet the appropriate autho- rities considered those entries in forming opinion that the appellant's premature retirement was in the public interest. We are, therefore, of G .><. the opinion that for this reason the order of the State Govt. is not sustainable in law.

Though the entire service record of an employee may be con- sidered while considering the question of his premature retirement, but if the service record of the last 10 years of his service do not H

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indicate any deficiency in his work and conduct it would be unjust and A ~ unreasonable to retire him prematurely on the basis of entries which may have been awarded to him prior to that period. In Baldev Raj Chadha v. Union of India & Ors., (supra) this Court held that if an officer had earned no adverse entries atleast for five years immediately before the compulsory retirement, he cannot be cashiered on the score B that long years ago his performance had been poor. It appears that the State of Punjab realised that premature retirement of an employee on )"- the basis of entire service record which may include stale entry, would be unreasonable and it therefore issued Govt. order on June 22, 1981 ~~ directing that under the Punjab Civil Services (Premature Retirement) ~ ~

Rules 1975 it would not be desirable to scrutinize the entire service c record of an employee and premature retirement should not be ordered if during the last 5 years the work and conduct of the emp- loyee have been good. This direction was no doubt issued after the ~ appellant was prematurely retired in March 1980 but nonetheless it is apparent that the Govt. had changed its policy in accordane with the ' decisions of this Court and it had taken ii decision not to retire a Govt. D servant if his service record for the last five years did not contain any adverse remarkS. The appellant had not earned any adverse remarks during the last five years of service; on the other hand he had earned 'good' and 'very good' entries durig those years. In this view the Government's decision to retire the appellant prematurely in exercise ~ . ~

- of the power under rule 3 is not sustainable in law. E We accordingly allow the appeal, set aside the order ot the High Court, quash the Govt. order dated 19.3.1980 and direct that the appellant shall be treated as being in service without break. He is __. entitled to his salary, allowances and such other benefits as may be admissible to him under the rules. The respondents sh~it pay the costs __, F of this appeal to the appellant.

S.R. Appeal allowed.