R.G. Deshpande, J.@mdashThe petitioner Shri C.B. Deshpande, was appointed initially as a Cashier (Saraf) on 16-1-1952 in the Office of the District Superintendent of Police, Nanded in the pay scale of Rs. 35-50, as it was applicable then. The petitioner''s date of birth is 7-4-1931 and he is a permanent resident of Nanded. By the passage of time, this post of Saraf was upgraded some time in the month of March, 1973 and the petitioner become a Clerk (Class III) in the said same department. At the time of entering in the service, the petitioner had just passed X standard examination. However, while in service, some time in the year 1974, the petitioner cleared the Departmental Examination known as "Sub-Services Departmental Examination" wherein, according to the petitioner, he had secured first class.
2. It is the case of the petitioner that all through his service career, he had sincerely, efficiently and in a most obedient manner, served the department, having absolutely good service record that too, without any blemish.
3. In addition to his regular responsibilities as a Government servant, the petitioner was also shouldering the responsibility as a Secretary of Nanded District Police Cooperative Credit Society Limited. This post he held during the period from 27th April, 1963 to 30th June, 1976. According to the petitioner, while working as a Secretary of the Society also, he had maintained his service record up-to-date and without any slur in any manner. However, it was most unfortunate on his part that he was involved in a criminal case in the year 1983. The petitioner was charged for the offence punishable under sections 409, 420 and 467 of the Indian Penal Code. Needless to mention, these charges do definitely refer to the criminal breach of trust alleged to have been committed by the petitioner as also for the offences of cheating and forgery, as is evident from the record. The above-said criminal case initiated against the petitioner in which he was charged with, was registered as Crime No. 387/83. The criminal case which was initiated on the file of the Chief Judicial Magistrate, Nanded was registered as Regular Criminal Case No. 123/1985. In this criminal prosecution along with the present petitioner, one Mukund Narayan Paropkari, was also prosecuted for the offence punishable under sections 202, 217 and 218 of the Indian Penal Code.
4. During the pendency of the above-said criminal prosecution, as a natural consequence, the petitioner was kept under suspension by order dated 19th December, 1983 which was served on the petitioner on 23rd December, 1983. The criminal case, to which a reference is made above, was finally decided by the learned Chief Judicial Magistrate, Nanded by his judgment and order dated 26th November, 1987 whereby the learned Judge who dealt with the matter, observed that the prosecution failed to prove the charges against the present petitioner C.B. Deshpande and, therefore, the learned Judge acquitted the petitioner in accordance with the provisions of section 248(1) of the Criminal Procedure Code, 1973, of the offences for which the petitioner was charged with.
5. After the decision in the above-said criminal prosecution, naturally the petitioner was issued an order of reinstatement in service. This order was issued to the petitioner on 2nd March, 1988 and in pursuance of the same, the petitioner joined his duties on 11th March, 1988.
6. After joining the duties in pursuance of the above-said order of reinstatement, the petitioner was served with a notice of compulsory retirement vide notice dated 15th March, 1988, which was served on the petitioner on 21st March, 1988. This notice was specifically issued in pursuance of the provisions of the Maharashtra Civil Services (Pension) Rules, 1982 by the Competent Authority having been vested with the powers under sub-rule (4) Clause (b) of Rule 10 of the said Rules. By this notice, the petitioner was directed that he was to stand retired from Government service from 15th day of June, 1988 or the day immediately following the day of expiry of three months commencing from the date of service of that notice on the petitioner, whichever was later. As stated earlier, since it is the case of the petitioner that he received the said notice dated 15th March, 1988, on 21st March, 1988, the petitioner could be said to have been stood retired compulsorily from 22nd June, 1988 i.e. the day immediately following the day of expiry of three months commencing on the date of service of that notice on the petitioner.
7. As per the notice referred to above, the Appropriate Authority observed that the petitioner as a Class III servant i.e. Junior Grade Clerk in the Office of the Sub-Divisional Police Officer, Bhokar, was to attain the age of 55 years on 7th April, 1986 and the Superintendent of Police, Nanded, being an Appropriate Authority, having been of the opinion that it was in the public interest to retire the said Shri C.B. Deshpande, Junior Grade Clerk, the said notice dated 15th March, 1988 was served on the petitioner. Needless to mention that it was also specifically stated that the incumbent was entitled for leave encashment upto the maximum of 180 days, subject to the availability of leave to his credit under G.R.F.D. No. PFN/1083/CR/1296/83/SER-4 dated 1st October, 1984. Needless to mention, the petitioner was also made aware of his right of making a representation against that order to the DIG P.A.R., Aurangabad within thirty days of the receipt of that notice by the petitioner. It is not argued before us that any such representation was preferred by the petitioner within the stipulated 30 days time, against that notice.
8. By an order dated April 26, 1988, the petitioner stood retired from 26th June, 1988 (A.N.) by way of premature (compulsory) retirement, as is clear from Exh. "D" page 31 of the petition. These are the two documents i.e. notice dated 15th March, 1988 and order dated 26th April, 1988 which are under challenge by way of this petition, at the instance of the petitioner, under Article 226 of the Constitution of India.
9. Mrs. C.S. Deshmukh, Adv. holding for Shri P.R. Deshmukh, learned Senior Counsel appearing on behalf of the petitioner, vehemently contended that the notice and the order impugned in this petition, are absolutely null and void and unenforceable against the petitioner and inoperative in law. According to her, the order is passed in a most arbitrary manner and is in contravention of the guarantee enshrined under Article 14 and 16 of the Constitution. Mrs. Deshmukh, further, contended that the order has been issued in a most mala fide way, particularly when the same has been issued by not following the provisions of Rule 10(5) explanation (iii) of the relevant Rules. She further contended that there was no material before the respondent-authority so as to resort to action under Rule 10(4)(b) of the Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred to as "the Rules" for the purposes of brevity). While scathingly assailing the order, Mrs. Deshmukh, further, contended that this order of premature retirement, virtually is an order of compulsory retirement in the case of the petitioner, is punitive in nature and, therefore, the same could not have been passed without affording an opportunity to the petitioner to defend himself and, therefore, Mrs. Deshmukh further extending the said same argument, contended that it was in total contravention of the provisions of Article 311(2) of the Constitution of India. In short, the case of the petitioner is that the petitioner, by no stretch of imagination, could be compulsorily retired, much the less, when there was no material whatsoever before the authority competent to take a decision in the matter to reach to the conclusion arrived at. Mrs. Deshmukh, therefore, contended that the notice as also the order challenged in the petition deserves to be quashed and set aside and the petitioner should have been treated to have been continued in service till he attained the age of superannuation in regular course i.e. 7th April, 1989.
10. As against the arguments of Mrs. Deshmukh, Shri Umakant Patil, the learned A.G.P., vehemently contended that the facts of the case are so glaring that it required no further proof for the authority concerned to have exercised its option of compulsorily retiring the petitioner from service by issuing the necessary notice and the order which followed thereafter. Shri Patil, contended that the service record of the petitioner, as it tried to be painted by the petitioner through his petition, was incorrect. According to Shri Patil, the authority concerned after having gone through the complete service record of the petitioner, realised and noticed that right from the initial years of service of the petitioner, the record could not be said to be satisfactory and particularly in as much as it related to the integrity of the petitioner. Shri Patil, further, argued that the record as was read by the competent authority demonstrates that the petitioner was not found to be a reliable person and that what had even prompted for his suspension in the criminal prosecution to which a reference is already made in the earlier paragraphs of this judgment. It is pertinent to note that the petitioner was not an accused only in one case but the record indicates that there were in all eleven cases in which the petitioner was involved for various different charges, to which a reference is made in the show cause notice issued to the petitioner which is dated 25th April, 1988, annexed by the petitioner himself at Exh. "E" on Page 32 of the petition. Sufficient it is for us only to refer to this document and we can conveniently avoid the details about those case as the same is not disputed by the petitioner.
11. As against the contention of the petitioner that the petitioner was not at any point of time communicated any adverse remarks, Shri Patil, forcefully contended that necessary adverse remarks were communicated to the petitioner on 25-4-1977 : 6-5-1980 and 19-11-1984. According to Shri Patil, the instances to which a reference is made, are sufficient enough to demonstrate that the service record of the petitioner could not be said to be absolutely clean.
12. Shri Patil, further, contended that in pursuance of the Circular bearing No : GAD. SRC-1086/31/(2)/15 dated 4th March, 1986, issued by the General Administration Department, Government of Maharashtra, Mantralaya, Bombay, a Special Review Committee was appointed to examine the service record of the Government servants and in pursuance of the same, the service record of the petitioner was also reviewed by the said committee. The opinion of the committee was communicated to the competent authority and the opinion was that the service record of the petitioner was bad and the integrity of the petitioner was doubtful. The Special Review Committee, further, reached to the conclusion that the petitioner was not a fit person to be continued in service and in view of this particular opinion given by the Special Review Committee, the competent authority reached to the conclusion, to retire the petitioner compulsorily or prematurely, as his continuance could not be said to be beneficial in the public interest.
13. In pursuance of the recommendations referred to above by the Review Committee, the Deputy Inspector General of Police, Aurangabad Range, Aurangabad vide his confidential letter dated 1-8-1985 communicated the Superintendent of Police, Nanded the recommendations of the Committee to retire the petitioner as the same were also accepted by the Director General of Police, MS Bombay. The said acceptance by the D.G.P. Maharashtra State, Bombay was by his letter dated 26-7-1985. Shri Patil, therefore, contended that no illegality whatsoever is committed by the authority concerned in compulsorily retiring the petitioner from service. According to him, the order is issued for just reasons and in public interest.
14. Mrs. Deshmukh, heavily relied on one point that the adverse remarks, if any, which might have been considered by the Review Committee in the case of the petitioner, were not at all communicated to the petitioner. According to Mrs. Deshmukh, therefore, it was not competent for the appropriate authority to have taken those adverse remarks, if any, into consideration for judging the case of the petitioner, either for premature or compulsory retirement. No doubt, the argument advanced by Mrs. Deshmukh, per se appears to be appealing but, at the very next thought, we have to say that it is a hollow argument. It is to be remembered that if a compulsory retirement order is required to be issued in the public interest, the test of validity of the same has to be looked at from an absolutely different and independent angle. In a given case, a Government employee though may be having some good service record, and if there are certain adverse entries which have not been communicated to the delinquent, but if the decision arrived at could not be said to be not bona fide then, in such a case, the opinion formed on the basis of such record, cannot be a subject-matter of judicial review and judicial interference merely on account of some stray good entries in the service record, is not permissible. In such a case, the real question which is required to be looked into is as to whether the decision or the conclusion arrived at by the competent authority to compulsorily retire the delinquent on the basis of the opinion formed by him on the basis of material available to him, could be labelled as not bona fide. If such a material is made available on the record, only in that case, there can be judicial review of such a decision. In our opinion, in the instant case, neither there is any such challenge nor is there any material available on the record to that effect. Relying on the judgment in the matter of
15. The most important decision, according to us, which has been brought to the notice of this Court by Shri Patil, is the decision of the Division Bench of this Court reported in the matter of
"(4) Notwithstanding anything contained in sub-rules (1) and (2) of this Rule, the appropriate authority, if it is of the opinion that it is in the public interest so to do, by giving notice of not less than three months in writing in Form 30 or in Form 31, as the case may be, or three months pay and allowances in lieu of such notice, have the absolute right to retire -
(a) any Gazetted Government servant under the Rule making control of the State Government
(i) If he had entered Government service under any Government in India, before attaining the age of thirty-five years, after he has attained the age of fifty years".
An analysis of this rule clearly shows that the following essential ingredients of the rule must be satisfied before an order compulsorily retiring a Government Servant is passed.
(i) that the member of the service must be a Gazetted Government servant.
(ii) He had entered the service before the attending the age of 35 years.
(iii) that the member of the service must have completed 30 years of qualifying service or the age of 50 years.
(iv) that the Government had an absolute right to retire the Government servant.
(v) that the order must be passed in public interest.
(vi) that three months previous notice in writing shall be given or three months pay and allowances in lieu of such notice."
16. According to Shri Patil, an analysis of this Rule clearly shows that there are certain essential ingredients of the said report which are necessary to be satisfied before the order of compulsory retirement is made or passed by the competent authority. In so far as that case was concerned which is cited above, it was that the member of the service must be a Gazetted Government servant (however these provisions we need not refer as here the employee was Class III Government servant). So far as regards other essential requirements are concerned , such as, that he had entered the service before attaining the age of 35 years, that he has completed 30 years of qualifying service or the age of 50 years in such a case, the Government has an absolute right to retire the Government servant and that the order has to be passed strictly in public interest. Needless to mention the compulsory notice of three months has to be given before retiring the employee under this provision. In the instant case, we see that the petitioner had completed about 36 years of service as also he was above fifty years of age and virtually he had even crossed the age of 55 years. In view of this, in our opinion, all the necessary ingredients of the Rule referred to above, are complied with in the instant matter and, therefore, we do not find any legal lacunae in the present order of compulsory retirement of the petitioner.
17. Shri Patil, also tried to invite our attention to various other decisions of the Apex Court. However, suffice it would be to say that all these judicial pronouncements can be summed up as under :
That the compulsory retirement is not a punishment and it does not involve stigma. Passing of the order of compulsory retirement is a sole prerogative of the Government. While passing such an order, it was not a hard and fast rule that it should be a speaking order as the same even uncommunicated adverse remarks can be taken into consideration while considering the case of Government servant for compulsory retirement and last but not the least that the principles of natural justice have no play in the cases of compulsory retirement to be made in the public interest.
18. In view of what has been observed by us above, we have no hesitation in observing that the retirement of the petitioner on the basis of the notice dated 15th March, 1988 which was followed by the order dated 26-4-1988 (Annexure "C" and "D" respectively) cannot be said to be either arbitrary or in contravention of any of the provisions of law, rules and regulations. We also do not find that the said order can be labelled to be an order in contravention of the provisions of Articles 14, 16 or even Article 311(2) of the Constitution of India. The order does not call for any interference. There is no substance whatsoever in this petition. Writ petition stands dismissed. Rule is discharged. However, in the circumstances of the case, there would be no order as to costs.
