Usha Mehra, J.@mdashMr. K.C. Sethi, appellant was appointed as Senior Stenographer in the Registry of the Supreme Court of India on 25th July, 1970. He rose to the position of Joint Registrar officiating i.e. group ''A" post. According to the respondent performance of this appellant was found wanting. He was an average officer, who in-spite of notice did not improve his performance. Hence on his completion of qualifying service, his case was put up to Judges Committee duly constituted by the Hon''ble Chief Justice who after considering his entire service record including ACR dossiers recommended discontinuance of his service. The said recommendation was accepted by Hon''ble Chief Justice of India. Therefore, w.e.f. 4th April, 2000 when he attached the age of 57 years he was made to retire compulsorily from service of the Supreme Court of India.
2. Aggrieved by the order of compulsory retirement dated 4th April, 2000 this appellant challenged the order by way of civil writ petition, inter alia, on the grounds that once he was made to cross 55 years, the authorities has no power to review the case at any subsequent age. Having crossed the bar at 55 years respondent had no authority to review his case. Even otherwise average performance is no ground to retire him compulsorily. That he has been deprived of his right to defend because his record was considered behind his back without bringing those facts to his knowledge. No public interest in involved in retiring him compulsorily. Learned Single Judge considered all these issues raised by the appellant and vide the impugned judgment dismissed his writ petition. Aggrieved by the same present appeal has been preferred.
3. Before we deal with the points raised by the appellant, lets understand the import of F.I.R. 56 (j). Provisions of 56(j) of the Fundamental Rules were made with a view to improve efficiency and strengthening administrative machinery. The appropriate authority has been given absolute power to review the cases of Government servants attaining the age of 50/55 years or completing 30 years of service. Therefore, so far as power of the Competent Authority to retire his employee compulsorily is absolute. Supreme Court in the case of
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favor of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
4. The question for consideration is whether F.R. 56(j) is applicable to the employees of the Supreme Court. Admittedly as such the provisions of F.R. 56 (j) may not apply but virtue of Rule 9 of the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules, 1961, provisions has been made applicable.
5. Rule 9 of the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules, 1961 regulates the conditions of service in respect of matters regarding conditions of service for which no provision has been made or insufficient provision has been made in those rules and orders applicable to government servants. F.R. 56(j) can be put in force thus applicable to the employees of the Supreme Court by virtue of Rule 9. Therefore, the matter regarding premature retirement of the employees of the Supreme Court who have completed 30 years of qualifying service or attained the age of 50/55 years and above have to be reviewed in the light of Rule 9 read with F.R. 56(j). It was pointed out by Mr. Mukul Rohtagi, Addl. Solicitor General that Chief Justice of India vide hid order dated 31st July, 1992 constituted two Screening Committees concerning review cases of the staff of Supreme Court i.e. (i) Comprising of two senior-most Hon''ble Judges of that Court to consider the cases of officers holding the post of Joint Registrar and above, and (ii) Comprising of Registrar General and two senior-most Registrars for considering cases of remaining officers and staff. As per the policy laid down by the Chief Justice cases of the officers of the rank of Joint Registrar and above for continuance or otherwise in service beyond the age of 50/55 years are to be reviewed every year. The appellant had as on 4th April, 2000 completed more than 32 years qualifying service. Therefore, the question for consideration is whether in pursuance to Rule 9 read with F.R. 56(j) his case could be reviewed after he was made to cross the age of 55 years? As per F.R. 56(j) he being in Group ''A'' could only be made to retire either at the page of 50/55 years or on completion or 30 years service. According to appellant his case after 55 years could not have been reviewed on year to year basis. But this assertion has been refund by respondent by relying on Rule 9 governing the service conditions of the appellant.
6. In order to understand their contentions, lets glance through the provisions of F.R. 56(j) and Rule 9 of the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules, 1961 which are reproduced as under:-
F.R. 56(J.
Notwithstanding anything contained in this rule, the appropriate authority shall, 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 allowances in lieu of such notice;
(i) If he is, in Group ''A'' or Group ''B'' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five years.
Rule 9:
"Conditions of Service -In respect of all such matters regarding the conditions of service of Court servants for which no provision or insufficient provision has been made in these rules, the rules and orders for the time being in force and applicable to servants holding corresponding posts in the Government of India shall regulate the conditions of service of Court servants subject to such modifications, variations or exceptions, if any, in the said rules and order, as the Chief Justice may, from time to time, specify;
Provided that no order containing modifications, variations or exceptions in rules relating to salaries, allowances, leave or pensions shall be mae by the Chief Justice except with the approval of the President;
Provided further that the powers exercisable under the rules and orders of the Government of India by the President or by any authority subordinate to the President shall be exercisable by the Chief Justice or by such person as he may, by general or special order, direct."
7. Admittedly the Chief Justice under the Rules has been empowered to modify, vary or create exception to the rules governing the service conditions of Government employees while applying those to the service conditions of Court staff. He, Therefore, vide his order dated t November, 1992 laid down that continuance or otherwise in service of employees of the Court of the rank of Joint Registrar and above has to be reviewed on yearly basis. The only exception carved out is that, that modification, variation and exception laid down by the Chief Justice would not apply to staff''s salary, allowances, leave or pension. The Chief Justice, however, can modify, vary etc. that also but only with the prior approval of the President of India. So far as premature retirement is concerned, there is no rider attached to that. The Chief Justice is fully empowered to modify or vary the provision of F.R. 56 (j) while applying the same to the service condition of Court staff. He accordingly vide order dated 17th November, 1992 laid down that as a matter of policy all cases of Supreme Court employees of the rank of Joint Registrar and above be reviewed every year by adopting the time schedule for review. The appellant is governed by Rule 9 and any order passed by the Chief Justice from time to time pursuance to the said Rule. Hence the order of the Chief Justice dated 17th November, 1992 thereby laying down policy has to apply to the appellant as well as to other employees of the Court. Contention of the appellant that his case could not be reviewed after 55 years is bellied from the reading of provision of Rule 9 read with the order dated 17th November, 1992 passed by the Chief Justice. Therefore, the order passed in pursuance to the power vested in the Chief Justice under Rule 9 to review the case of the appellant on year to year basis is legal and as per rules. Appellant being a Joint Registrar officiating in Group ''A'' post his case had to be reviewed on year to year basis. His case was reviewed at the age of 56 years which he never challenged. While allowing to continue after 56 years, he was put to notice to improve his performance. But when on scrutiny of record it was found by the Judges Committee that there was no improvement, the Committee recommended for his discontinuance in service, which recommendation was duly accepted by the Chief Justice. Hence the action of the respondent can neither be called arbitrary nor malafide. Moreover F.R. 56(j) prescribes the starting point, it does not prescribe a terminus ad qualm. It is, Therefore, open to the appropriate authority under the rule to consider the case for premature retirement at any time after the aforementioned starting point. For support reliance can be placed on the decision of Supreme Court in the case of
8. It is pursuant to the order dated 17th November, 1992 of the Chief Justice, the Competent Authority, that case of the Court staff covered under the rule are reviewed on year to year basis to ensure improvement, efficiency and to strengthen administrative machinery. Mr. Mukul Rohtagi, Addl. Solicitor General produced original file for our perusal. It revealed that pursuant to the order of the Chief Justice dated 17th November, 1992 cases of all officers of the rank of Joint Registrar and above for continuance or otherwise in service beyond the age of 50 or 55 years have been reviewed on yearly basis. Their cases are taken up six months in advance. Appellant''s case was not singled out nor he has been discriminated. The policy laid down by the Chief Justice has in fact been unanimously applied to all the staff falling in that category. We, Therefore, find that appellant''s case was not the only one which was reviewed on yearly basis after he competed 55 years. Perusal of the record show that his case at the age of 56 years was also reviewed. His entire service record with ACR dossiers was placed before the Judges Committee comprising of two senior-most Hon''ble Judges of the Supreme Court. Judges Committee while considering his case of continuance or otherwise in service beyond 56 years vide its note dated 24th March, 1999 conveyed its recommendations to the effect that he should improve his performance if he had to continue any further. This recommendation was accepted by the Chief Justice. His performance was "Average" during the period ending 31st March, 1997 and 31st March, 1998. He was duly informed that he must improve his performance and show greater sincerity and devotion to work and improve his efficiency. He made representation against the same. His representation was, however, rejected by the Competent Authority and he was so communicated. Therefore, when he reached the age of 57 years on 4th April, 2000 his case was again put up for review in order to ascertain whether he should continue or not in service beyond the age of 57 years. His case along with entire record was again placed before the Judges Committee who vide their note dated 6th January, 2000 and after considering the entire material, recommended discontinuance of the appellant''s service. This recommendation was accepted by the Chief Justice, who vide order dated 8th March, 2000 found that it would not be in public interest to allow the appellant to continue in service beyond the age of 57 years. After giving him three months pay in lieu of notice he was made to retire prematurely because the authority found that he had not shown improvement in his performance.
9. Perusal of the original record produced, revealed that while reviewing the case of the appellant the Competent Authority looked into and considered the entire service record of the appellant. Since the Appropriate Authority found that service of the appellant was no longer useful to the general administration, this Court cannot interfere with the same. In fact the Appropriate Authority in order to avoid arbitrariness appointed Judges Committee consisting of two senior-most Hon''ble Judges. It is they who scrutinised his entire service record before making recommendations. Therefore, it cannot be said that action of the respondent is not based on material available on record nor can it be called malafide or arbitrary. In fact while allowing to cross at the age of 56 years he was put to notice to improve his performance but when he didn''t, the Appropriate Authority could not carry in service such officer any further. Thus compulsory retirement of the appellant is neither punitive nor carried out on extraneous considerations. As already pointed out above the remarks of ACR to improve his performance and to show greater sincerity and devotion to work and improve his efficiency were duly communicated to him. While considering his case the Appropriate Authority and take note of his performance and then passed the order dated 4th April, 2000. The order is thus neither against the principle of natural justice nor bad in law but based on facts available on record for which the appellant had already been made aware. It would not be correct for the appellant to contend that the material considered by the Appropriate Authority was behind his back. Appropriate Authority is competent even to take note of uncommunicated entries in the confidential record. It is so said by the Supreme Court in the case of Umedbhai M. Patel (Supra). In the case in hand the entire record of the appellant was considered and entries against him were in fact in his knowledge. He was given full opportunity to improve but when found he was no longer useful, the authority ordered for his discontinuance from service. This right to retire him vested absolutely with the Hon''ble Chief Justice and he exercised that power after considering the entire record of the appellant. This right of the Appropriate Authority cannot be interfered in writ jurisdiction. It is so held in the case of
"The rules gave absolute right to retire the Government servant. Since the retirement was in public interest no interference is called for, particularly in absence of mala fide."
10. It is not the case of the appellant that there was any malafide on the part of the competent authority in compulsorily retiring him. On the contrary the record show that the competent authority upon consideration of the entire service record as required under the rules confirmed the opinion that the appellant be compulsorily retired in public interest. Therefore, in view of Lalsa Ram (Supra) judgment the question of interference by this Court does not arise. In the event of formation of the opinion by the appointing authority it does not require any interference by this Court. Interference in these matters by the Courts as held by the Supreme Court is very restricted and shall have to tread on the issue with the utmost care and caution because of very limited scope of interference.
11. Similar view was expressed by the Supreme Court in the case of
12. Since the premature retirement after an employee has attained a specific age or completed specific length of service having qualified for full pension is neither a punishment nor a stigma attracting the provisions of Article 311(2) of the Constitution of India, the ground urged by the appellant that he has been deprived of reasonable opportunity does not arise in the facts of this case. The learned Single Judge has rightly held that in the facts of this case the provision of Article 146(2) of the Constitution are also not attracted. Rather the reliance by the appellant is misplaced. It is only with regard to the rules concerning salary, allowances, leave or pension pertaining to the employees of Supreme Court of India that the Chief Justice requires prior approval of the President of India. So far as the order regarding premature retirement is concerned no prior approval of the President is required. Compulsory retirement under Rule 9 does not involve any financial implications.
13. For the reasons stated above we find no infirmity in the order of the learned Single Judge and no merit in the appeal. The same is accordingly dismissed but with no order as to costs.
