# CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA AND ANOTHER

- **Citation:** [2023] 2 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 2023-03-03
- **Case number:** Civil Appeal No. 6161 of 2022
- **Bench:** A. S. Bopanna, Hima Kohli
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/captain-pramod-kumar-bajaj-v-union-of-india-and-another-36816
- **Pages:** 29

## Headnote

Service Law: Compulsory retirement - Quashing of, when -
Appellant selected and empanelled for appointment as a Member
of ITAT by the Selection Committee - However, his appointment did
not mature - Respondent withheld his appointment on various counts,
however, tribunal and all superior courts directed the respondents
forward the name of the appellant to the appropriate Authority for
selection/appointment to the post of Member, ITAT - Respondents
did not comply with the orders and in the meantime initiated
disciplinary proceedings against the appellant which never reached
to its logical conclusion - Instead, the appellant was compulsorily
retired three months short of the date of his superannuation -
Challenged to, however both the tribunal and the High Court
dismissed the same - On appeal, held: Service record of the appellant
is impeccable - Complaints made against him are either closed or
has been settled, and this was well within the knowledge of the
respondents - Nothing placed on record to show a sudden decline
in the work conduct of the appellant so as to have compulsory retire
him - It is not shown what transpired the respondents to resort to
FR 56(j) and invoke public interest doctrine to compulsorily retire
him with just three months left for his service - Order of retirement
is punitive in nature and was passed to short circuit the disciplinary
proceedings - It failed to satisfy the underlying test of serving the
interest of the public - Thus, the order of compulsory set aside -
Fundamental Rules - r.56(j).
Allowing the appeal, the Court
HELD: 1.1 As per the material placed on record, the
APARs of the appellant reflect that over the past several years,
his integrity was being regularly assessed as "Beyond doubt"
and this remained the position till as late as 31st July, 2019, when
his work performance was assessed for the period from 1st April,
[2023] 2 S.C.R. 30
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2018 to 31st March, 2019 and found to be upto the mark. In his
APARs for the past one decade, till the period just prior to the
order of his premature retirement, the respondents were
consistently grading the appellant as "Outstanding". No adverse
entries were made by his superiors in the APARs of the appellant
insofar as his work performance was concerned. No aspersion
was cast either on his conduct or character during all this period.
As per the service records, his efficiency and integrity remained
unimpeachable throughout his career. The inference drawn from
the above is that the appellant's service record being impeccable
could not have been a factor that went against him for the
respondents to have compulsorily retired him. [Para 26][48-CE]
1.2 The respondents have referred to nine complaints
against the appellant, stated to be pending in the Vigilance
Directorate. Out of the said nine complaints, except one all have
been closed or rejected. As regards, the complaint at Sr. No.9,
which was made by the appellant's ex-wife alleging bigamy, moral
turpitude etc. against the appellant. In the remarks column, the
respondents stated that necessary information in respect of the
said court proceedings between the parties was sought by the
department. The appellant clarified that a decree of divorce was
granted to the parties by the concerned Court and a copy of the
said order was duly supplied to the department against receipt
on 21st March, 2018. [Paras 27, 28][49-F; 52-F; 53-B-C]
1.3 In the teeth of the series of orders passed by the tribunal
and the High Court in favour of the appellant, the respondents
elected to withhold his vigilance clearance, thereby compelling
the appellant to file contempt petitions against the concerned
officers for non-compliance of the orders passed. Both, the High
Court as well as the tribunal, issued notices for wilful disobedience
of the orders passed. In the proceedings before the High Court,
on the one hand, the respondents kept seeking adjournments on
the ground that steps were being taken to forward th

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SUPREME COURT REPORTS
[2023] 2 S.C.R.
CAPTAIN PRAMOD KUMAR BAJAJ
v.
UNION OF INDIA AND ANOTHER
(Civil Appeal No. 6161 of 2022)
MARCH 03, 2023
[A. S. BOPANNA AND HIMA KOHLI, JJ.]
Service Law: Compulsory retirement - Quashing of, when -
Appellant selected and empanelled for appointment as a Member
of ITAT by the Selection Committee - However, his appointment did
not mature - Respondent withheld his appointment on various counts,
however, tribunal and all superior courts directed the respondents
forward the name of the appellant to the appropriate Authority for
selection/appointment to the post of Member, ITAT - Respondents
did not comply with the orders and in the meantime initiated
disciplinary proceedings against the appellant which never reached
to its logical conclusion - Instead, the appellant was compulsorily
retired three months short of the date of his superannuation -
Challenged to, however both the tribunal and the High Court
dismissed the same - On appeal, held: Service record of the appellant
is impeccable - Complaints made against him are either closed or
has been settled, and this was well within the knowledge of the
respondents - Nothing placed on record to show a sudden decline
in the work conduct of the appellant so as to have compulsory retire
him - It is not shown what transpired the respondents to resort to
FR 56(j) and invoke public interest doctrine to compulsorily retire
him with just three months left for his service - Order of retirement
is punitive in nature and was passed to short circuit the disciplinary
proceedings - It failed to satisfy the underlying test of serving the
interest of the public - Thus, the order of compulsory set aside -
Fundamental Rules - r.56(j).
Allowing the appeal, the Court
HELD: 1.1 As per the material placed on record, the
APARs of the appellant reflect that over the past several years,
his integrity was being regularly assessed as "Beyond doubt"
and this remained the position till as late as 31st July, 2019, when
his work performance was assessed for the period from 1st April,
[2023] 2 S.C.R. 30
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2018 to 31st March, 2019 and found to be upto the mark. In his
APARs for the past one decade, till the period just prior to the
order of his premature retirement, the respondents were
consistently grading the appellant as "Outstanding". No adverse
entries were made by his superiors in the APARs of the appellant
insofar as his work performance was concerned. No aspersion
was cast either on his conduct or character during all this period.
As per the service records, his efficiency and integrity remained
unimpeachable throughout his career. The inference drawn from
the above is that the appellant's service record being impeccable
could not have been a factor that went against him for the
respondents to have compulsorily retired him. [Para 26][48-CE]
1.2 The respondents have referred to nine complaints
against the appellant, stated to be pending in the Vigilance
Directorate. Out of the said nine complaints, except one all have
been closed or rejected. As regards, the complaint at Sr. No.9,
which was made by the appellant's ex-wife alleging bigamy, moral
turpitude etc. against the appellant. In the remarks column, the
respondents stated that necessary information in respect of the
said court proceedings between the parties was sought by the
department. The appellant clarified that a decree of divorce was
granted to the parties by the concerned Court and a copy of the
said order was duly supplied to the department against receipt
on 21st March, 2018. [Paras 27, 28][49-F; 52-F; 53-B-C]
1.3 In the teeth of the series of orders passed by the tribunal
and the High Court in favour of the appellant, the respondents
elected to withhold his vigilance clearance, thereby compelling
the appellant to file contempt petitions against the concerned
officers for non-compliance of the orders passed. Both, the High
Court as well as the tribunal, issued notices for wilful disobedience
of the orders passed. In the proceedings before the High Court,
on the one hand, the respondents kept seeking adjournments on
the ground that steps were being taken to forward the appellant's
name to the ACC for being processed for his appointment as
Member, ITAT, till as late as on 31st May 2019 on which date
they were granted one last opportunity for making compliances
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER
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and at their request, the matter was adjourned to 9th July 2019
and on the other hand, the respondents slapped the appellant
with a Charge Memorandum dated 17th June 2019 and suspended
him on 1st July, 2019. [Para 36][56-C-E]
1.4 Having regard to the fact that the respondents did not
take the disciplinary proceedings initiated against the appellant
to its logical conclusion and instead issued an order compulsorily
retiring him, it is not expedient to delve into the allegations
levelled in the said Charge Memorandum; all the same, the
Charge Memorandum have gone through cursorily that mentions
three charges - one alleging that the appellant failed to seek
permission from the department to purchase a flat in relation to
the matrimonial dispute between him and his estranged wife and
the second one is in respect of the allegation of bigamy levelled
against him by his estranged wife. It is already noted that during
the course of the matrimonial dispute, the parties had arrived at
a settlement and the flat that was agreed to be given to the wife,
was not purchased by the appellant but by his brother, which fact
is amply borne out from the documents placed on record. The
matrimonial dispute between the parties stood closed on a decree
of divorce being granted on the basis of mutual consent. That the
respondents were also cognizant of the said fact, is apparent from
the contents of O.M. dated 15th July, 2015 which records inter
alia that the said allegations levelled by the wife had not been
established. The third charge was relating to the appellant having
attended Court hearings without sanctioned leave. However, the
disciplinary proceedings initiated against the appellant on 17th
July, 2019 were abandoned by the respondents on the order of
compulsory retirement being passed against him in less than
three months reckoned therefrom, on 27th September, 2019.
[Para 37][56-E-H; 57-A-B]
1.5 There is no doubt that rule of law is the very foundation
of a well-governed society and the presence of bias or malafides
in the system of governance would strike at the very foundation
of the values of a regulated social order. Any exercise of power
that exceeds the parameters prescribed by law or is motivated
on account of extraneous or irrelevant factors or is driven by
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malicious intent or is on the face of it, so patently arbitrary that it
cannot withstand judicial scrutiny, must be struck down. In the
instant case, though the appellant levelled allegations of
institutional bias and prejudice against the respondents,
particularly against the then Chairman, CBDT who was a Member
of the Review Committee, the said officer was not joined by the
appellant as a party before the tribunal or the High Court, for
him to have had an opportunity to clarify his stand by filing a
counter affidavit. Hence, these allegations cannot be looked into
by this Court. [Para 38][57-C-D, E, F]
1.6 Though FR 56(j) contemplates that the respondents
have an absolute right to retire a government servant in public
interest and such an order could have been passed against the
appellant any time after he had attained the age of fifty years, the
respondents did not take any such decision till the very fag end
of his career. The impugned order of compulsory retirement was
passed on 27.09.2019 whereas the appellant was to superannuate
in ordinary course in January, 2020. There appears an apparent
contradiction in the approach of the respondents who had till as
late as in July, 2019 continued to grade the appellant as
'Outstanding' and had assessed his integrity as 'Beyond doubt'.
But in less than three months reckoned therefrom, the
respondents had turned turtle to arrive at the conclusion that he
deserved to be compulsorily retired. If the appellant was worthy
of being continued in service for little short of a decade after he
had attained the age of 50 years and of being granted an overall
grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been
shown as to what had transpired thereafter that made the
respondents resort to FR 56(j) and invoke the public interest
doctrine to compulsorily retire him with just three months of
service left for his retirement, in routine. In such a case, the
order of compulsory retirement in the given facts and
circumstances of the case cannot be sustained. The said order is
punitive in nature and was passed to short-circuit the disciplinary
proceedings pending against the appellant and ensure his
immediate removal. The impugned order passed by the
respondents does not pass muster as it fails to satisfy the
underlying test of serving the interest of the public. The impugned
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER
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judgment and the order compulsorily retiring the appellant is
quashed and set aside. [Paras 39, 40][58-A-F]
Allahabad Bank Officers' Association and Another v.
Allahabad Bank and Others (1996) 4 SCC 504 : [1996]
2 Suppl. SCR 172; Union of India v. Col. J.N. Sinha
and Another (1970) 2 SCC 458 : [1971] 1 SCR 791;
Swami Saran Saxena v. State of U.P. (1980) 1 SCC 12
: [1980] 1 SCR 923; Baldev Raj Chadha v. Union of
India (1980) 4 SCC 321 : [1981] 1 SCR 430; Ram Ekbal
Sharma v. State of Bihar and Another (1990) 3 SCC
504 : [1990] 2 SCR 679; State of Orissa and Others v.
Ram Chandra Das (1996) 5 SCC 331 : [1996] 2 Suppl.
SCR 559; State of Gujarat and Another vs. Suryakant
Chunilal Shah (1999) 1 SCC 529 : [1998] 3 Suppl.
SCR 293; State of Gujarat v. Umedbhai M. Patel (2001)
3 SCC 314 : [2001] 2 SCR 170; Nand Kumar Verma v.
State of Jharkhand and Others (2012) 3 SCC 580 :
[2012] 1 SCR 504; Nisha Priya Bhatia v. Union of India
(2020) 13 SCC 56 : [2020] 10 SCR 596; State of
Bombay v. Saubhag Chand M. Doshi AIR 1957 SC 892
: [1958] SCR 571; S. Pratap Singh v. State of Punjab
AIR 1964 SC 72 : [1964] SCR 733; Jaichand Lal Sethia
v. State of W. B AIR 1967 SC 483 : [1966] Suppl. SCR
464; J. D. Srivastava v. State of M.P And Others (1984)
2 SCC 8 : [1984] 2 SCR 466; Express Newspapers Pvt.
Ltd. And Others v. Union of India and Others (1986) 1
SCC 133 : [1985] 3 Suppl. SCR 382 - referred to.
Case Law Reference
[1996] 2 Suppl. SCR 172
referred to
Para 16
[1971] 1 SCR 791
referred to
Para 17
[1980] 1 SCR 923
referred to
Para 18
[1981] 1 SCR 430
referred to
Para 19
[1990] 2 SCR 679
referred to
Para 20
[1996] 2 Suppl. SCR 559
referred to
Para 21
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[1998] 3 Suppl. SCR 293
referred to
Para 22
[2001] 2 SCR 170
referred to
Para 23
[2012] 1 SCR 504
referred to
Para 24
[2020] 10 SCR 596
referred to
Para 25
[1958] SCR 571
referred to
Para 25
[1964] SCR 733
referred to
Para 38
[1966] Suppl. SCR 464
referred to
Para 38
[1984] 2 SCR 466
referred to
Para 38
[1985] 3 Suppl. SCR 382
referred to
Para 38
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6161
of 2022.
From the Judgment and Order dated 31.05.2022 of the High Court
of Judicature at Allahabad, Lucknow Bench in WA No. 24856 of 2020.
Appellant-in-person
Sanjay Jain, A.S.G., Zoheb Hussain, Padmesh Mishra, Apoorv
Kurup, Sunita Sharma, Rajat Nair, Ms. Tanya Aggarwal, Shivam Shukla,
Raj Bahadur Yadav, Advs. for the Respondents.
The Judgment of the Court was delivered by
HIMA KOHLI, J.
1. The appellant is aggrieved by the judgment dated 31st May,
2022 passed by the High Court of Judicature at Allahabad, Lucknow
Bench upholding the order dated 9th December, 2020 passed by the
Central Administrative Tribunal1, Principal Bench, that had turned down
the challenge laid by him to an order dated 27th September, 2019, passed
by the Central Board of Direct Taxes, Department of Revenue, Ministry
of Finance, Government of India communicating the decision of the
President of India to compulsorily retire him, in exercise of powers
conferred under Rule 56(j) of the Fundamental Rules2.
1 For short 'Tribunal'
2 For short 'FR 56(j)'
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
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FACTS OF THE CASE
2. The present case has a chequered history with multiple rounds
of litigations spewed between the appellant and the respondents. To
have an overview of the matter, we may briefly refer to some facts
relevant for deciding the present Appeal. The appellant was a Permanent
Commissioned Officer in the Indian Army, inducted in the year 1980.
Due to a physical disability suffered by him in the course of Army
operations, he was demobilized and released from service. In the year
1989, the appellant qualified the Civil Services Examination. He was
appointed as an Officer and allocated to the 1990 Batch in the Indian
Revenue Service. In due course of his service, the appellant was promoted
to higher posts and on 12th January, 2012, he was promoted to the rank
of Commissioner, in the Department of Income Tax. On 7th July, 2014,
the appellant was selected and empanelled for appointment as a Member
of the Income Tax Appellate Tribunal3 by the Selection Committee
headed by a sitting Judge of the Supreme Court nominated by the then
Chief Justice of India. On 15th July, 2015, the respondents forwarded
the name of the appellant to the Appointments Committee of the Cabinet4
along with his vigilance clearance for appointment as Member
(Accountant), ITAT. In the year 2016, the appellant was empanelled by
the ACC for appointment as Joint Secretary to the Government of India.
From the year 2017 onwards, started a saga of litigations between the
appellant and the respondents, as a result whereof, his appointment as a
Member of the ITAT, did not mature.
3. The first hurdle he faced was an adverse Intelligence Bureau5
report. This made the appellant approach the Tribunal for relief. Vide
judgment dated 10th February, 2017, the Tribunal disposed of the Original
Application filed by the appellant with a direction issued to the respondents
to resubmit his adverse IB Report to the Selection Committee for it to
take a final view on his appointment to the subject post. The said judgment
passed by the Tribunal was assailed by the respondents in a writ petition
before the High Court, which came to be dismissed on 30th May, 2017,
with further directions issued to make the entire process of reconsideration
of the appellant's candidature by the Selection Committee, timebound.
The Petition for Special Leave to Appeal preferred by the respondent -
3 For short 'ITAT'
4 For short 'ACC'
5 For short 'IB'
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Union of India against the order dated 30th May, 2017 passed by the
High Court, was also dismissed by this Court on 15th November, 2017.
4. On 29th November, 2017, a vigilance inspection was carried out
in the office of the appellant. Based on the said vigilance inspection, the
respondents issued a show cause notice to him on 31st January, 2018.
Ten days before that, on 21st January, 2018, the vigilance clearance earlier
granted in favour of the appellant, was withheld by the respondents.
Both the aforesaid orders were assailed by the appellant by filing separate
Original Applications before the Tribunal. Initially, an interim order was
passed by the Tribunal observing that the show cause notice issued by
the respondents would not impede the appellant's consideration for
appointment to the post of Member, ITAT. On 4th May 2018, another
interim order was passed by the Tribunal, observing that withholding of
the vigilance clearance of the appellant will not come in his way for
appointment to the subject post. In the interregnum, on 11th April, 2018,
the appellant was placed in the "Agreed List", which is a list of Gazetted
Officers of suspect integrity prepared by the Department. Pertinently, a
second Petition for Special Leave to Appeal filed by the respondents
against the interim relief granted by the Tribunal in favour of the appellant
and duly confirmed by the High Court in WP (C) No. 22179-22187 of
2018 on 06.08.2018, was dismissed by this Court on 29.03.2019.
5. Aggrieved by the aforesaid action taken by the respondents of
placing his name in the Suspect List, the appellant approached the Tribunal
for a third time and in the said proceedings, an interim order was granted
in his favour. Finally, vide common judgment dated 6th March, 2019, the
Tribunal allowed two Original Applications filed by the appellant [O.A.
No.137 of 2018 and O.A. No.279 of 2018], quashing inclusion of his
name in the "Agreed List" and the consequential proceedings as also
the decision taken by the respondents to deny him vigilance clearance.
The Tribunal also directed the respondents to forward the name of the
appellant to the appropriate Authority for selection/appointment to the
post of Member, ITAT. However, the respondents did not comply with
the said order and filed a writ petition before the High Court. Admittedly,
no interim order was passed by the High Court staying the operation of
the judgment dated 06th March, 2019, passed by the Tribunal.
6. Aggrieved by the non-compliance of the order dated 30th May,
2017, passed by the High Court in his favour, the appellant filed a contempt
petition before the High Court. Vide order dated 13th August, 2019, the
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER [HIMA KOHLI, J.]
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High Court permitted impleadment of the then Chairman of the Central
Board of Direct Taxes6 in the contempt petition and issued him a notice
to show cause as to why he should not be punished for wilful disobedience
of the order dated 30th May, 2017, passed in the writ proceedings.
7. Similar notices were issued by the Tribunal on two contempt
petitions filed by the appellant against the respondents for non-compliance
of the orders dated 30th May, 2017 and 6th March, 2019. In the meantime,
the respondents initiated disciplinary proceedings against the appellant
by issuing him a chargesheet on 17th June, 2019. In July 2019, a
Departmental Promotion Committee7 was convened by the Union Public
Service Commission8 to consider promoting the appellant to the post of
Principal Commissioner but the decision taken qua him, was placed in
the sealed cover due to the pending disciplinary proceedings. The appellant
had filed a writ petition before the High Court against the charge
memorandum issued to him wherein the High Court granted stay orders
in his favour. While the said proceedings were still pending, the
respondents proceeded to compulsorily retire the appellant on 27th
September, 2019, which was about three months short of the date of his
superannuation in January 2020. The list of promotions made to the post
of Principal Commissioner was declared on 11.11.2019, by which date
the appellant was no longer in the reckoning.
8. It may be noted here that the mechanism in place within the
department for arriving at a conclusion as to who amongst the Group-A
Officers in the CBDT deserve to be prematurely retired, starts with an
assessment to be conducted by the Internal Committee that identifies
and recommends the names of the officers and places it before the
Review Committee. The next stage is before the Review Committee
that includes the Chairman, CBDT and the Revenue Secretary as
Members. If satisfied by the records and comments forwarded by the
Internal Committee that the pre-mature retirement of a Group-A Officer
is desirable in public interest, the Review Committee makes a
recommendation to the Appointing Authority in this regard. The
Appointing Authority is then required to examine the recommendations
of the Review Committee and if satisfied, pass an order of pre-mature
retirement of the concerned Officer. Once the Competent Authority
6 For short 'CBDT'
7 For short 'DPC'
8 For short 'UPSC'
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passes an order of pre-mature retirement under FR 56(j), the aggrieved
Officer is entitled to submit a representation to the Representation
Committee. As per the records, the appellant had submitted a
representation to the Representation Committee, which was turned down
on 2nd January 2020.
9. The appellant challenged the final order of compulsory
retirement issued against the appellant on 27th September, 2019 and the
subsequent order dated 2nd January, 2020, passed by the Representation
Committee declining to interfere in the order of compulsory retirement,
before the Tribunal. The said petition was dismissed, vide judgment dated
9th December, 2020 and upheld by the High Court by the impugned
judgment dated 31st May, 2022.
THREEFOLD CHALLENGE
10. A threefold challenge has been laid by the appellant to the
impugned judgment. Firstly, on the ground of serious prejudice caused to
him due to the active participation of the Additional Director General
(Vigilance) as a Member of the Internal Committee when he had a bias
against the appellant and the participation of the then Chairman of the
CBDT in the meeting of the Review Committee, convened to examine
the recommendations of the Internal Committee for pre- maturely retiring
him, when he ought to have recused himself knowing that he was facing
three contempt notices, one issued by the High Court on 13th August,
2019 [Contempt Petition No.2681/2017] and two notices issued by the
Tribunal [CCP No.15/2019 and CCP No.25/2019] for failing to forward
the appellant's vigilance clearance required for processing his case for
appointment as Member, ITAT, to the Selection Committee. Secondly, it
has been argued that the impugned order of his pre-mature retirement is
punitive in nature and has been passed solely to deprive him of an
opportunity to be appointed as Member ITAT, a post for which he was
selected by the Selection Committee headed by a sitting Judge of the
Supreme Court and his name was placed at Serial No.1 in the All India
Ranking, as long back as in the year 2014. This selection of the appellant
was reiterated by a subsequently constituted Selection Committee in the
year 2018, but did not reach fruition due to persistent obstructions created
by the respondents, who withheld his vigilance clearance without a valid
reason and subsequently placed his name in the "Agreed List", followed
by initiation of a disciplinary enquiry against him on baseless charges
which was not taken to its logical conclusion, as he was prematurely
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER [HIMA KOHLI, J.]
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retired in September, 2019. Lastly, it was urged that the High Court has
completely overlooked the fact that all the Annual Performance
Assessment Reports9 of the appellant over the past 30 years were
blemishless. In fact, the appellant was graded as 'Outstanding' and his
integrity was assessed as 'Beyond Doubt' for the immediately preceding
10 years' APARs, after he was promoted to the post of Commissioner,
Income Tax in the year 2012.
SUBMISSIONS MADE BY THE COUNSEL FOR THE
UNION OF INDIA
11. Refuting the allegations levelled by the appellant and defending
the impugned judgment, Mr. Sanjay Jain, learned Additional Solicitor
General10 who appeared for the respondents - Union of India urged that
the impugned judgment is a well-reasoned one and does not deserve
interference; that the order of compulsory retirement was passed in the
case of the appellant after duly considering his entire service record;
that the material relied upon by the respondents for passing an order
under FR 56(j), was carefully considered by the Tribunal before dismissing
the Original Application filed by the appellant, as meritless and that the
allegations of institutional malice and bias levelled by the appellant are
ill-founded. Learned ASG contended that unlike departmental enquiries,
the scope of an enquiry under FR 56(j) is fairly limited and the standard
of adjudication is prima facie a subjective opinion as to the suitability of
an officer to continue in service, keeping in mind public interest. No
stigma can be attached to an employee who is compulsorily retired, as
compulsory retirement does not amount to dismissal or removal. The
appellant is still entitled to all retiral benefits and also entitled to be
considered for other appointments. It was stated that a chargesheet
was pending against the appellant for major penalty proceedings which
had been unsuccessfully challenged by him before the Tribunal. Citing
several decisions of this Court on the limited scope of interference in an
order of compulsory retirement, it was submitted on behalf of the
respondents - Union of India that courts should ordinarily refrain from
returning findings on merits of the allegations against the concerned
officer. Once an order of compulsory retirement has been passed bona
fide and without any extraneous motive, there is no justification for
interference.
9 For short 'APAR'
10 For short 'ASG'
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ANALYSIS AND CASE LAWS RELATING TO
COMPULORY RETIREMENT
12. We have given our thoughtful consideration to the arguments
advanced by learned counsel for the parties, perused the records and
the judgments cited by both sides.
13. The provision of Fundamental Rule 56(j) reads as under:
"FR 56(j) :- 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 55
years.
14. As is apparent from a perusal of the aforesaid provision, it
takes in its fold two elements - the first one is the absolute right of the
Government to retire an employee and the second is the requirement of
meeting the condition of public interest for doing so. The provision also
provides for a prior notice of at least three months to the outgoing
employee and mandates that the said provision can be invoked to retire
a government servant only after he has attained the age of 55 years.
15. We are conscious of the fact that the scope of judicial review
in respect of an order of compulsory retirement from the service, is
fairly limited. The law relating to compulsory retirement has been the
subject matter of discussion in a number of cases where certain settled
legal principles have been laid down which are being elucidated
hereinbelow.
16. The object of compulsory retirement of a government servant
was highlighted by this Court in Allahabad Bank Officers' Association
and Another vs. Allahabad Bank and Others11 in the following
words:-
11 1996(4) SCC 504
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER [HIMA KOHLI, J.]
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"5. The power to compulsorily retire a government servant
is one of the facets of the doctrine of pleasure incorporated
in Article 310 of the Constitution. The object of compulsory
retirement is to weed out the deed wood in order to maintain
efficiency and initiative in the service and also to dispense
with the services of those whose integrity is doubtful so as
to preserve purity in the administration. Generally speaking,
Service Rules provide for compulsory retirement of a government
servant on his completing certain number of years of service or
attaining the prescribed age. His service record is reviewed at
that stage and a decision is taken whether he should be
compulsorily retired or continued further in service. There is no
levelling of a charge or imputation requiring an explanation from
the government servant. While misconduct and inefficiency are
factors that enter into the account where the order is one of
dismissal or removal or of retirement, there is this difference that
while in the case of retirement they merely furnish the background
and the enquiry, if held - and there is no duty to hold an enquiry -
is only for the satisfaction of the authorities who have to take
action, in the case of dismissal or removal they form the very
basis on which the order is made, as pointed out by this Court in
Shyam Lal v. State of U.P. and State of Bombay v.
Saubhagchand M. Doshi. Thus, by its very nature the power to
compulsorily retire a government servant is dismissal etc. for
misconduct. A government servant who is compulsorily retired
does not lose any part of the benefit that he has earned during
service. Thus, compulsory retirement differs both from dismissal
and removal as it involves no penal consequences."
"..................
17. The above discussion of case-law makes it clear that if the
order of compulsory retirement casts a stigma on the Government
servant in the sense that it contains a statement casting aspersion
on his conduct or character, then the court will treat that order as
an order of punishment, attracting provisions of Article 311(2) of
the Constitution. The reason is that as a charge or imputation is
made the condition for passing the order, the court would infer
therefrom that the real intention of the Government was to punish
the government servant on the basis of that charge or imputation
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and not to exercise the power of compulsory retirement. But mere
reference to the rule, even if it mentions grounds for compulsory
retirement, cannot be regarded as sufficient for treating the order
of compulsory retirement as an order of punishment. In such a
case, the order can be said to have been passed in terms of the
rule and, therefore, a different intention cannot be inferred. So
also, if the statement in the order refers only to the assessment of
his work and does not at the same time cast an aspersion on the
conduct or character of the Government servant, then it will not
be proper to hold that the order of compulsory retirement is in
reality an order of punishment. Whether the statement in the order
is stigmatic or not will have to be judged by adopting the test of
how a reasonable person would read or understand it."
[emphasis added]
17. In Union of India v. Col. J.N. Sinha and Another12 it has
been observed that :
"Fundamental Rule 56(j) does not in terms require that any
opportunity should be given to the concerned government servant
to show cause against his compulsory retirement. It says that the
appropriate authority has the absolute right to retire a government
servant if it is of the opinion that it is in the public interest to do so.
If that authority bona fide forms that opinion the correctness of
that opinion cannot be challenged before courts though it is open
to an aggrieved party to contend that the requisite opinion has not
been formed or the decision is based on collateral grounds or that
it is an arbitrary decision."
18. On similar lines were the observations made by this Court in
Swami Saran Saxena v. State of U.P.13 :-
"3. Several contentions have been raised in this appeal by the
appellant, who appears in person. In our judgment, one of them
suffices to dispose of the appeal. The contention which has found
favour with us is that on a perusal of the material on the record
and having regard to the entries in the personal file and character
roll of the appellant, it is not possible reasonably to come to the
conclusion that the compulsory retirement of the appellant was
12 (1970) 2 SCC 458
13 (1980) 1 SCC 12
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER [HIMA KOHLI, J.]
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[2023] 2 S.C.R.
called for. This conclusion follows inevitably from the particular
circumstances, among others, that the appellant was found worthy
of being permitted to cross the second efficiency bar only a few
months before. Ordinarily, the court does not interfere with the
judgment of the relevant authority on the point whether it is in the
public interest to compulsorily retire a government servant. And
we would have been even more reluctant to reach the conclusion
we have, when the impugned order of compulsory retirement was
made on the recommendation of the High Court itself. But on the
material before us we are unable to reconcile the apparent
contradiction that although for the purpose of crossing the second
efficiency bar the appellant was considered to have worked with
distinct ability and with integrity beyond question yet within a few
months thereafter he was found so unfit as to deserve compulsory
retirement. The entries in between in the records pertaining to the
appellant need to be examined and appraised in that context. There
is no evidence to show that suddenly there was such deterioration
in the quality of the appellant's work or integrity that he deserved
to be compulsorily retired. For all these reasons, we are of opinion
that the order of compulsory retirement should be quashed. The
appellant will be deemed to have continued in service on the date
of the impugned order.
19. In Baldev Raj Chadha v. Union of India14, emphasizing
the fact that exercise of powers under Fundamental Rule 56(j) must be
bona fide and promote public interest, this Court observed that : -
"25. The whole purpose of Fundamental Rule 56(j) is to weed out
the worthless without the punitive extremes covered by Article
311 of the Constitution. But under the guise of 'public interest' if
unlimited discretion is regarded acceptable for making an order
of premature retirement, it will be the surest menace to public
interest and must fail for unreasonableness, arbitrariness and
disguised dismissal. The exercise of power must be bona fide
and promote public interest."
26. "An officer in continuous service for 14 years crossing the
efficiency bar and reaching the maximum salary in the scale and
with no adverse entries at least for five years immediately before
14 (1980) 4 SCC 321
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the compulsory retirement cannot be compulsorily retired on the
score that long years ago, his performance had been poor, although
his superiors had allowed him to cross the efficiency bar without
qualms."
20. In Ram Ekbal Sharma v. State of Bihar and Another15 it
was observed that in order to find out whether an order of compulsory
retirement is based on any misconduct of the government servant or the
said order has been made bona fide, without any oblique or extraneous
purpose, the veil can be lifted. Following are the pertinent observations
made in the said decision:
"32. On a consideration of the above decisions the legal
position that now emerges is that even though the order of
compulsory retirement is couched in innocuous language
without making any imputations against the government
servant who is directed to be compulsorily retired from
service, the court, if challenged, in appropriate cases can
lift veil to find out whether the order is based on any
misconduct of the government servant concerned or the
order has been made bona fide and not with any oblique or
extraneous purposes. Mere form of the order in such case
cannot deter the court from delving into the basis of the order if
the order in question is challenged by the concerned government
servant as has been held by this Court in 'Anoop Jaiswal case'.
This being the position the respondent-State cannot defend the
order of compulsory retirement of the appellant in the instant case
on the mere plea that the order has been made in accordance
with the provisions of Rule 74(b)(ii) of the Bihar Service Code
which prima facie does not make any imputation or does not cast
any stigma on the service career of the appellant. But in view of
the clear and specific averments made by the respondent-State
that the impugned order has been made to compulsorily retire the
appellant from service under the aforesaid rule as the appellant
was found to have committed grave financial irregularities leading
to financial loss to the State, the impugned order cannot but be
said to have been made by way of punishment. As such, such an
order is in contravention of Article 311 of the Constitution of India
15 (1990) 3 SCC 504
CAPTAIN PRAMOD KUMAR BAJAJ v. UNION OF INDIA
AND ANOTHER [HIMA KOHLI, J.]
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[2023] 2 S.C.R.
as well as it is arbitrary as it violates principles of natural justice
and the same has not been made bona fide.
[emphasis added]
21. In State of Orissa and Others vs. Ram Chandra Das16
this Court observed as follows: -
"It is needless to reiterate that the settled legal position is that the
Government is empowered and would be entitled to compulsorily
retire a government servant in public interest with a view to improve
efficiency of the administration or to weed out the people of
doubtful integrity or who are corrupt but sufficient evidence was
not available to take disciplinary action in accordance with the
rules so as to inculcate a sense of discipline in the service. But the
Government, before taking the decision to retire a government
employee compulsorily from service, has to consider the entire
record of the government servant including the latest reports."
22. In State of Gujarat and Another vs. Suryakant Chunilal
Shah17, a case where the State Government had challenged the judgment
of the Division Bench of the High Court of Gujarat that had held that the
order of compulsory retirement passed against the respondent therein
was bad, as there were no adverse entries in his Confidential Report
and his integrity was not doubtful at any stage, this Court held thus : -
"28. There being no material before the Review Committee,
inasmuch as there were no adverse remarks in the character roll
entries, the integrity was not doubted at any time, the character
roll subsequent to the respondent's promotion to the post of
Assistant Food Controller (Class II) were not available, it could
not come to the conclusion that the respondent was a man of
doubtful integrity nor could have anyone else come to the conclusion
that the respondent was a fit person to be retired compulsorily
from service. The order, in the circumstances of the case, was
punitive having been passed for the collateral purpose of his
immediate removal, rather than in public interest."
16 (1996) 5 SCC 331
17 (1999) 1 SCC 529
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23. In State of Gujarat vs. Umedbhai M. Patel18, this Court
has delineated the following broad principles that ought to be followed in
matters relating to compulsory retirement : -
"11.