# NISHA PRIYA BHATIA v. UNION OF INDIA & ANR

- **Citation:** [2020] 10 S.C.R. 596
- **Court:** Supreme Court of India
- **Decided:** 2020-04-24
- **Case number:** Civil Appeal No. 2365 of 2020
- **Bench:** A. M Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nisha-priya-bhatia-v-union-of-india-anr-34483
- **Pages:** 81

## Headnote

Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Constitutionality of - Held: r.135 is
valid and does not suffer from the vice of unconstitutionality.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Appellant was posted in Research
& Analysis Wing (R&AW) as Director at Headquarters, New Delhi
- Complained of sexual harassment against two officers working
as Secretary (R) and Joint Secretary at that time - She reportedly
attempted to commit suicide - Her identity and association with
R&AW became a subject of public discourse - She was declared
unemployable due to exposure as an intelligence officer - Order of
compulsory retirement passed u/r.135 - Appellant's challenge upheld
by Tribunal, reinstatement directed - Decision reversed by High
Court - On appeal, held: Impugned order of compulsory retirement
against the appellant is valid and legal - Grant of pension to the
appellant to be computed in accordance with the date of notional
superannuation as directed by High Court and not from the date of
actual compulsory retirement - Compensation of Rs.1,00,000/- be
paid to the appellant for violation of her fundamental rights to life
and dignity as a result of improper handling of her complaint of
sexual harassment - Constitution of India - Arts.13, 14, 21, 309311 - Doctrine of pleasure; Doctrine of necessity - Principles of
natural justice -Central Civil Services (Classification, Control and
Appeal) Rules, 1965 - The Sexual Harassment of Women at
Workplace Act, 2013 - Service Law.
Constitution of India - Art.311 - Operation of - Discussed.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135(2) - Held: "may" occurring in subRule (2) of r.135 be read as "shall" - Interpretation of Statutes.
[2020] 10 S.C.R. 596
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Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Compulsory retirement under -
Safeguards of Art.311, if attracted - Held: Compulsory retirement
without anything more does not attract Art.311(2) - Action u/r.135
is not governed by Art.311 nor it offends the same - Thus, an action
taken u/r.135 need not be preceded by the safeguards provided
u/Art.311 as such - Principles of natural justice - Constitution of
India - Art.311.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Compulsory retirement under, if
same as dismissal/removal - Held: Effect of any action taken
u/r.135 does not entail any penal consequence for the employee -
Therefore, it cannot be put at the same pedestal as an action of
dismissal or removal - Service Law.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Action of compulsory retirement, if
violates Art.14 - Held: No - Constitution of India - Art.14.
Service Law - Deputationist and a direct recruit - Difference
between - Discussed - Research and Analysis Wing (Recruitment,
Cadre and Services) Rules, 1975 - r.135.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Challenge in reference to Art.309 -
Held: Rules framed u/Art.309 governing conditions of service are
subject to other provisions of the Constitution including Art.311 -
However, this subjection clause shall not operate upon the rules
governing compulsory retirement - Constitution of India - Arts.309,
311.
Constitution of India - Art.309, 311 - Scope of - Discussed.
Interpretation of Statutes - "security" used in r.135 as
distinguished from "security of the State" used in Art.311 - Purport
of - Discussed - Constitution of India - Art. 311.
Fundamental Rule 56(j)- Distinction between FR.56(j) and
r.135, 1975 Rules - Discussed - Research and Analysis Wing
(Recruitment, Cadre and Services) Rules, 1975.
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Central Civil Services (Pension) Rules, 1972 - r.9 - Raison
d'etre of - Discussed - Research and Ana

## Text

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NISHA PRIYA BHATIA
v.
UNION OF INDIA & ANR.
(Civil Appeal No. 2365 of 2020)
APRIL 24, 2020
[A. M KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Constitutionality of - Held: r.135 is
valid and does not suffer from the vice of unconstitutionality.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Appellant was posted in Research
& Analysis Wing (R&AW) as Director at Headquarters, New Delhi
- Complained of sexual harassment against two officers working
as Secretary (R) and Joint Secretary at that time - She reportedly
attempted to commit suicide - Her identity and association with
R&AW became a subject of public discourse - She was declared
unemployable due to exposure as an intelligence officer - Order of
compulsory retirement passed u/r.135 - Appellant's challenge upheld
by Tribunal, reinstatement directed - Decision reversed by High
Court - On appeal, held: Impugned order of compulsory retirement
against the appellant is valid and legal - Grant of pension to the
appellant to be computed in accordance with the date of notional
superannuation as directed by High Court and not from the date of
actual compulsory retirement - Compensation of Rs.1,00,000/- be
paid to the appellant for violation of her fundamental rights to life
and dignity as a result of improper handling of her complaint of
sexual harassment - Constitution of India - Arts.13, 14, 21, 309311 - Doctrine of pleasure; Doctrine of necessity - Principles of
natural justice -Central Civil Services (Classification, Control and
Appeal) Rules, 1965 - The Sexual Harassment of Women at
Workplace Act, 2013 - Service Law.
Constitution of India - Art.311 - Operation of - Discussed.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135(2) - Held: "may" occurring in subRule (2) of r.135 be read as "shall" - Interpretation of Statutes.
[2020] 10 S.C.R. 596
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Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Compulsory retirement under -
Safeguards of Art.311, if attracted - Held: Compulsory retirement
without anything more does not attract Art.311(2) - Action u/r.135
is not governed by Art.311 nor it offends the same - Thus, an action
taken u/r.135 need not be preceded by the safeguards provided
u/Art.311 as such - Principles of natural justice - Constitution of
India - Art.311.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Compulsory retirement under, if
same as dismissal/removal - Held: Effect of any action taken
u/r.135 does not entail any penal consequence for the employee -
Therefore, it cannot be put at the same pedestal as an action of
dismissal or removal - Service Law.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Action of compulsory retirement, if
violates Art.14 - Held: No - Constitution of India - Art.14.
Service Law - Deputationist and a direct recruit - Difference
between - Discussed - Research and Analysis Wing (Recruitment,
Cadre and Services) Rules, 1975 - r.135.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Challenge in reference to Art.309 -
Held: Rules framed u/Art.309 governing conditions of service are
subject to other provisions of the Constitution including Art.311 -
However, this subjection clause shall not operate upon the rules
governing compulsory retirement - Constitution of India - Arts.309,
311.
Constitution of India - Art.309, 311 - Scope of - Discussed.
Interpretation of Statutes - "security" used in r.135 as
distinguished from "security of the State" used in Art.311 - Purport
of - Discussed - Constitution of India - Art. 311.
Fundamental Rule 56(j)- Distinction between FR.56(j) and
r.135, 1975 Rules - Discussed - Research and Analysis Wing
(Recruitment, Cadre and Services) Rules, 1975.
NISHA PRIYA BHATIA v. UNION OF INDIA & ANR.
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Central Civil Services (Pension) Rules, 1972 - r.9 - Raison
d'etre of - Discussed - Research and Analysis Wing (Recruitment,
Cadre and Services) Rules, 1975 - r.135 - Constitution of India -
Art.309.
Central Civil Services (Pension) Rules, 1972 - r.9, if overlaps
with r.135 - Held: No - Research and Analysis Wing (Recruitment,
Cadre and Services) Rules, 1975 - r.135.
Intelligence Organisations (Restriction of Rights) Act, 1985
- Held: It restricts certain rights conferred by Part III in their
application to intelligence officers - However, it does not curb the
right to livelihood of an officer, that too when the officer is being
compulsorily retired u/r.135 - Research and Analysis Wing
(Recruitment, Cadre and Services) Rules, 1975 - r.135 - Constitution
of India - Art.33 - Central Civil Services (Pension) Rules, 1972 -
r.40.
Research and Analysis Wing (Recruitment, Cadre and
Services) Rules, 1975 - r.135 - Held: Officers compulsorily retired
u/r.135 must be furnished with the copy of the stated Rules alongwith
the order of compulsory retirement.
The Sexual Harassment of Women at Workplace Act, 2013 -
Enquiry under 2013 Act vis-à-vis departmental enquiry - Scope
and nature of - Discussed - Central Civil Services (Classification,
Control and Appeal) Rules, 1965.
Compensation - Complaint of sexual harassment - Inaction/
procrastination - Violation of right to life - Held: Denial of timely
inquiry and by a competent forum, inevitably results in denial of
justice and violation of fundamental right - In the present case, the
appellant faced exceedingly insensitive and undignified
circumstances due to improper handling of her complaint of sexual
harassment, impinging her fundamental rights - Compensation of
Rs.1,00,000/- awarded for violation of her right to life and dignity
- Constitution of India - Arts.14, 21.
Words & Expressions - 'Conditions of Service' - Meaning of
- Explained.
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Disposing of the matters, the Court
HELD : 1.1 Determination of the challenge to
constitutionality
Article 13 of the Constitution would get attracted if any law
is inconsistent with or in derogation of the fundamental rights. In
that case, such a law would be void to the extent of inconsistency.
By virtue of clause (3), the word "law", used in Article 13, also
encompasses a statutory "rule" and thus the constitutionality of
Rule 135, as being violative of Article 14 read with Article 311,
could legitimately be tested on the anvil of standard tenets for
determining the constitutionality of statutes. Article 311 of the
Constitution is a manifestation of the essential principles of natural
justice in matters of dismissal, removal or reduction in rank of
public servants and imposes a duty upon the Government to
ensure that any such decision against the public servant is
preceded by an inquiry, coupled with an opportunity of being heard
and making a representation against such decision. The
abovementioned principles of natural justice are also generally
implicit under Article 14, as a denial of the same to the public
servant in question would taint the decision with the vice of
arbitrariness and deprive the public servant of equal protection
of the law. A perusal of the text of Article 311 reveals that this
Article comes into operation when a public servant is being
subjected to dismissal, removal or reduction in the rank. The
usage of words "dismissal", "removal" or "reduction in rank"
clearly points towards an intent to cover situations where a public
servant is being subjected to a penal consequence. Thus, until
and unless the action taken against a public servant is in the
nature of punishment, the need for conducting an inquiry coupled
with the grant of an opportunity of being heard, as envisaged
under Article 311, does not arise at all. Succinctly put, the action
contemplated against the public servant must assume the
character of 'punishment' in order to attract the safeguards under
Article 311. [Paras 26, 27 & 29][630-A-D; 632-C, D-E]
1.2 The question is: whether the action taken under Rule
135 of the 1975 Rules is in the nature of penalty or a dismissal
clothed as compulsory retirement so as to attract the safeguards
under Article 311 of the Constitution? The real test for this
examination is to see whether the order of compulsory retirement
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is occasioned by the concern of unsuitability or as a punishment
for misconduct. In the present case, the appellant has been
subjected to the order of compulsory retirement simpliciter, and
no action in the nature of dismissal, removal or reduction in rank,
as envisaged under Article 311, has been taken against the
appellant. The fundamental source of compulsorily retiring an
employee is derived from the "doctrine of pleasure", as accepted
in India, which springs from Article 310 of the Constitution. Rule
135 merely sets out certain grounds to act as quintessence for
taking such decision and the source of power vests in Article
309 read with Article 310 of the Constitution. Rule 135 has been
carved out as a special provision and is premised on the doctrine
of necessity. This stand alone provision forms a small subset of
the genus of Article 309 and deals strictly with cases of "exposure"
of "intelligence officers" who become unemployable in the
Research & Analysis Wing ("the Organisation" or "the
Department") for reasons of security. Sub-rule (1) of Rule 135
indicates that an order of compulsory retirement could be passed
only on the exhaustive grounds specified therein, that is -
exposure as an intelligence officer or his becoming unemployable
in the Organisation due to reasons of security or disability/injuries
received by an officer in the performance of his duties. Thus
understood, the stipulation is objective, well-articulated and
intelligible. Moreover, the stated reason(s) make it amply clear
that Rule 135 covers situations, the existence of which would
have an adverse impact, direct or indirect, on the integrity of the
Organisation if the officer is exposed as an intelligence officer
and becomes unemployable in the Organisation for reasons of
security. A priori, it would neither be a case of misconduct or
inefficiency or the like so as to attract penal consequences. It is
in no way a reflection on the employee regarding his conduct as
such but solely on account of public interests in reference to the
nature of sensitivity of operations undertaken by the Organisation.
Therefore, the order under Rule does not entail any charge,
stigma or imputation against the appellant. Rule 135 envisages a
certain chronology and gets triggered when an intelligence officer
stands exposed or is rendered unemployable for reasons of
(individual, organisational or national) security. The expressions
"exposure", "unemployability" and "security" constitute the key
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ingredients of this Rule and are to be understood in a
chronological and natural order to discern their true essence and
effect. Further, it is pertinent to note that the grounds referred
to in Rule 135 nowhere contemplate it as a consequence of any
fault or wrongful action on the part of the officer and unlike penal
actions, do not stigmatise the outgoing officer or involve loss of
benefits already earned by him and there is no element of
punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this
view as the same provide for appropriate benefits such as pension,
gratuity, lump sum amount etc. for the public servant who has
been subjected to compulsory retirement. Thus, the employee
is not faced with any loss of benefits already earned. The
examination of the characteristics of such a rule is not focussed
around the motive or underlying intent behind its enactment,
rather, it lies in the consequence and effect of the operation of
such a rule on the outgoing employee. A compulsory retirement
without anything more does not attract Article 311(2). At par with
other departments, in case of dismissal of an employee of this
Organisation (R & AW) also, the CCS (CCA) Rules, coupled with
the procedure under Article 311, could be and are expected to
be ordinarily resorted to. Therefore, Rule 135 of the 1975 Rules
has been enacted as a special provision dealing strictly with the
non-penal domain of compulsory retirement and that too against
intelligence officer under specific circumstances referred to in
clauses (a) and (b) of sub-Rule (1) thereof. Whereas, the cases of
dismissal/removal/reduction in rank or any other penal action of
termination of service involving stigmatisation of the employee
is separately covered by the CCS (CCA) Rules. [Paras 30, 3235][633-A-C; 634-D-H; 635-A-G; 636-D]
State of U.P. v. Sri Shyam Lal Sharma (1971) 2 SCC
514; State of Bombay v. Saubhagchand M. Doshi AIR
1957 SC 892 : [1958] SCR 571; Dalip Singh v. State
of Punjab AIR 1960 SC 1305 : [1961] 1 SCR 88; Union
of India and Others v. Dulal Dutt (1993) 2 SCC 179 :
[1993] 1 SCR 853 - relied on.
1.3 A priori, the irresistible conclusion is that the effect of
any action taken under Rule 135 does not entail any penal
consequence for the employee and, therefore, it cannot be put at
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the same pedestal as an action of dismissal or removal, and no
inquiry or opportunity of hearing as envisaged under Article 311
is required while taking an action under this Rule. Mere loss of
some future career prospects per se is no ground for invalidating
an order of compulsory retirement as it may be in a given case an
inevitable consequence of any such order. What needs to be
delineated to attract the vice of invalidity to a statutory order is
illegality, at least of a minimum standard to trigger the conscience
of the Court. The action under Rule 135 is not governed by Article
311 nor it offends the same - as these two provisions operate in
separate spheres and thus an action taken under the impugned
Rule (Rule 135 of the 1975 Rules) need not be preceded by the
safeguards provided under Article 311 of the Constitution as such.
Since the action under Rule 135 is exclusive and is invoked in
the specified situations in public interest in reference to the
Organization and at the highest level by the head of the
Government, the question of violation of Article 14 on account of
the denial of equal protection of law does not arise. [Paras 36,
37][636-E-H; 637-A]
1.4 A deputationist is an employee who has been assigned
to another department from his/her parent department. By
sending back the person to his parent department, any adverse
effect on the Organisation (R&AW) including of reasons of security
would be averted. Therefore, a deputationist stands on an
altogether different footing than a direct recruit of the
Organisation/Department who is exposed as an intelligence officer
or his/her becoming unemployable in the Organisation for reasons
of security. A deputationist can be repatriated back to his/her
parent department and in cases of misconduct, necessary action
can also be initiated against him/her as per the conditions of
service governing his/her parent department. In that sense, a
deputationist and a direct recruit are not stricto sensu similarly
placed and thus the plea of differential treatment meted out to
them is unavailable. It would not entail discrimination nor be
violative of Article 14. Accordingly, the challenge to constitutional
validity of Rule 135 is negated. Additionally, the rule does not
prohibit any inquiry and is in general line with the orders of
compulsory retirement wherein the right of outgoing employee
to participate in the process of formation of such decision is not
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envisaged in law, as the underlying basis of such action is the
larger public interest and security of the Organisation; and not
any culpable conduct of the employee. Moreover, Rule 135
incorporates a language that is self-guiding in nature. The usage
of words "exposure" and "unemployability for reasons of
security" are not insignificant, rather, they act as quintessential
stimulants for the competent authority in passing such order. The
mandatory determination of what amounts to an exposure or what
renders an employee unemployable due to reasons of security
under Rule 135, is both a pre-condition and safeguard, and
incorporates within its fold the subjective satisfaction of the
competent authority in that regard. In order to reach its own
satisfaction, the authority is free to seek information from its own
sources. Thus, in cases when the ingredients of Rule 135 stand
satisfied in light of the prevalent circumstances, the need for
giving opportunity to the officer concerned by way of an inquiry
is done away with because the underlying purpose of such inquiry
is not the satisfaction of the principles of natural justice or of the
concerned officer, rather, it is to enable the competent authority
of the Organisation to satisfy itself in a subjective manner as
regards the fitness of the case to invoke the rule. Therefore, the
procedure underlying Rule 135 cannot be shackled by the rigidity
of the principles of natural justice in larger public interest in
reference to the structure of the Organisation in question, being
a special Rule dealing with specified cases. [Paras 39, 40][637-E,
G-H; 638-A-B, C-G]
State of U.P. & Ors. v. Ram Naresh Lal (1970) 3 SCC
173 Kunal Nanda v. Union of India & Anr. (2000) 5
SCC 362 : [2000] 3 SCR 214 - relied on.
1.5 Reverting to the challenge in reference to Article 309,
suffice it to observe that the 1975 Rules fall under the "conditions
of service" governing the appellant and have been framed under
the proviso to Article 309 of the Constitution. The phrase
"conditions of service" is not a phrase of mathematical precision
and is to be understood with its wide import. The natural, logical
and grammatical meaning of the phrase "conditions of service"
would encompass wide range of conditions relating to salary, time
period of payment, pay scales, dearness allowance, suspension
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and even termination of service. The appellant's argument that
since Article 311 covers the field of dismissal, removal and
reduction in rank of an employee, it automatically implies the
exclusion of these matters from Article 309, does not commend.
A conjoint reading of Articles 309 and 311 reveals that Article
311 is confined to the cases wherein an inquiry has been
commenced against an employee and an action of penal nature is
sought to be taken. Whereas, Article 309 covers the broad
spectrum of conditions of service and holds a wider ground as
compared to Article 311. That would also include conditions of
service beyond mere dismissal, removal or reduction in rank. It
holds merit to state that this wide ground contemplated under
Article 309 also takes in its sweep the conditions regarding
termination of service including compulsory retirement. Generally
it is correct to say that the rules governing conditions of service,
framed under Article 309, are subject to other provisions of the
Constitution, including Article 311. The opening words of Article
309 - "Subject to the provisions of this Constitution"- point
towards the same analogy. However, this subjection clause shall
not operate upon the rules governing compulsory retirement.
For, the legal concept of compulsory retirement is a non-penal
measure of the government and steers clear from the operation
of Article 311, unless it is a case of removal or dismissal clothed
as compulsory retirement. Had there been a rule providing for
removal, dismissal or reduction in rank, it would have been
controlled by the safeguards under Article 311. The validity of a
rule shall be hit by Article 311 only if it seeks to affect the
protection offered by Article 311, and not otherwise as in the
present case. [Paras 41-43][638-H; 639-A-D, F-H; 640-A]
Pradyat Kumar Bose v. The Hon'ble The Chief Justice
of Calcutta High Court AIR 1956 SC 285 : [1955]
 SCR 1331; State of U.P. & Ors. v. Babu Ram Upadhya
AIR 1961 SC 751 : [1961] 2 SCR 679 - relied on.
1.6 The words used in a statute are to be understood in the
light of that particular statute and not in isolation thereto. The
expression used in Rule 135 is "security", as distinguished from
the more commonly used expression "security of the State" used
in Article 311. This deliberate widening of the expression by the
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enacting body points towards the inclusive intent behind the
expression. The word "security" emanates from the word
"secure" which, as per the Law Lexicon, means to put something
beyond hazard. It is understood that the exposure of an
intelligence officer could be hazardous not only for the
Organisation but also for the officer concerned and the expression
"security", therefore, is to be understood as securing the
Organisational and individual interests beyond hazard and
squarely covers the security of the Organisation as well as the
security of the State. Similarly, the expression "exposure" refers
to the revelation of the identity of an intelligence officer as such
to the public, in a manner that renders such officer unemployable
for the Organisation for reasons of security. A duly enacted law
cannot be struck down on the mere ground of vagueness unless
such vagueness transcends in the realm of arbitrariness. However,
challenge to Rule 135 on the ground of vagueness, could only be
sustained if the Rule does not provide a person of ordinary
intelligence with a reasonable opportunity to know the scope of
the sphere in which the Rule would operate. In the present case,
the test of reasonable man is to be applied from the point of view
of a member working in the Organisation as an intelligence officer.
The members working in the Organisation, more particularly a
Class-I Intelligence Officer, ought to know the scope, specific
context and import of the expressions - "exposed as an
intelligence officer", "becoming unemployable in the
Organisation" or "reason of security", as the case may be. A
member working in the Organisation would certainly be aware of
the transnational repercussions emerging from the exposure of
the identity of an intelligence officer. Thus, there is no inherent
vagueness or arbitrariness in the usage of above expressions so
as to attach the vice of unconstitutionality to the Rule. However,
whether or not an executive act of exercising the power under
the Rule reeks of arbitrariness is a matter of separate examination,
to be conducted on a case to case basis and does not call for a
general declaration by the Court. To conclude, the challenge on
this ground is rejected and the impugned judgment is, therefore,
held to have answered this challenge correctly. However, the
meaning placed by the High Court on the expression "security",
in the impugned judgment, is of a wide import. This observation
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shall stand effaced in light of the interpretation of Rule 135 and
shall not be operative for any precedentiary purpose, or
otherwise. [Paras 45-47][640-C-H; 641-A-D and F]
Municipal Committee, Amritsar & Ors. v. State of Punjab
& Ors. (1969) 1 SCC 475 : [1969] 3 SCR 447 - relied
on.
2. On mala fide exercise of power A mala fide exercise of
power is essentially a fraud on the power. For an exercise of power
to steer away from the taint of mala fides, such power ought to be
exercised within the contours of the statute/law bestowing such
power. Any exercise which exceeds the limits laid down by law;
or is driven by factors extraneous or irrelevant to such exercise;
or guided by malicious intent or personal animosity; or reeks of
arbitrariness must fall foul in the eyes of law. The fact situation in
the present case does not attract any of the above stated factors.
Notably, the appellant has not impleaded the concerned persons
against whom allegations of mala fides are made, as party
respondent. Hence, those allegations cannot be taken forward.
Resultantly, the ground of mala fide action in fact does not survive
for consideration. [Paras 51, 52][643-B-E and G]
S. Partap Singh v. State of Punjab AIR 1964 SC 72:
[1964] 4 SCR 733; Express Newspapers Pvt. Ltd. &
Ors. v. Union of India & Ors. (1986) 1 SCC 133 :
[1985] 3 Suppl. SCR 382 J.D. Srivastava v. State of
M.P. and Others (1984) 2 SCC 8 : [1984] 2 SCR 466;
Jaichand Lal Sethia v. State of West Bengal AIR 1967
SC 483 : [1966] Suppl. SCR 464; Purushottam Kumar
Jha v. State of Jharkhand & Ors. (2006) 9 SCC 458 :
[2006] 1 Suppl. SCR 215 - relied on.
3. On non-application of mind The scope of judicial review
is very limited in cases of compulsory retirement and is
permissible on the limited grounds such as non-application of
mind or mala fides. The pre-requisite of due application of mind
seems to be fulfilled as the decision has been reached in the
aftermath of a series of discussions, exchanges and consultations
between the Organisation and the PMO over the course of 15
months from 22.9.2008 to 18.12.2009 (order of compulsory
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retirement). Thus, the appellant has not been able to establish
the factum of non-application of mind in material terms and
especially because the final decision has been taken at the highest
level by the head of the Government in the aftermath of unfurling
of successive events of exposure of appellant to the public and
media in particular. Even if the argument of personal animosity
between the appellant and the then Secretary (R) was to be
accepted it does not help the appellant's case as the final authority
on the decision of compulsory retirement was vested in the PMO
and there is no tittle of evidence regarding exercise of influence
by the then Secretary (R) in the PMO. In an allegation of this
nature, de-facto prejudice needs to be proved by evidence and
this requirement of law fails to garner support from the factual
position emanating in this case. Having said thus, it is deemed
essential to emphasize upon the approach of the court in
scrutinising the decisions taken at the highest levels and
constitutional challenge thereto. Indeed, there can be no ipso
facto presumption of validity in favour of actions taken at higher
pedestals of the dispensation. However, constitutional offices,
like that of the PMO, are entrusted with a constitutional trust by
the people of India through the holy Constitution. Such
constitutional trust absorbs within itself an inherent expectation
that actions emerging out of such functionaries are driven by bona
fide considerations of public interest and constitutional propriety.
Constitutional trust, as a concept of constitutional application,
has been duly accepted by this Court in a string of judgments.
[Paras 54, 56, 57][646-D-E and F; 647-C-H]
Pyare Mohan Lal v. State of Jharkhand and Others
(2010) 10 SCC 693 : [2010] 11 SCR 216; Manoj
Narula v. Union of India (2014) 9 SCC 1 : [2014] 9
SCR 965; Govt. Of NCT of Delhi v. Union of India 2019
(3) SCALE 107; Kihota Hollohon v. Zachilhu and
Others (1992) 1 SCC 309 - relied on.
4. On Fundamental Rule 56(j) and Rule 9 of the Pension
Rules The next examination relates to the allegation of failure to
proceed in accordance with FR 56(j). In normal parlance,
compulsory retirement of a public servant is governed by the
procedure laid down in FR 56(j) as Fundamental Rule - 2 provides
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that "the Fundamental Rules apply to all Government servants
whose pay is debitable to Civil Estimates and to any other class
of Government servants to which the President may, by general
or special order, declare them to be applicable". Thus, FR 56(j)
is a rule of general application. FR 56(j) incorporates twin
elements- first, the absolute right of the Government to retire an
employee and second, the specific circumstance in which such
right could be exercised i.e., the necessity of public interest. The
rule also provides for a prior notice of at least three months to
the outgoing employee. Rule 135 of the 1975 Rules, on the other
hand, deviates from this dispensation. It is a special provision
dealing with clan of intelligence officers in the Organisation in
question. The fundamental distinction between FR 56(j) and Rule
135 lies in the usage of expressions "public interest" and
"security" respectively. The concern of security finds special place
in an exclusive provision that gets triggered for reasons of
security. On the other hand, FR 56(j) is in reference to public
interest generally. Framed in 1975, during the existence of FR
56(j), Rule 135 was carved out as a special provision. Rule 135
recognises the presence of a vested and inherent right in the
government to compulsorily retire an employee and explicitly
specifies certain exclusive grounds for taking such action.
Therefore, Rule 135 presents a deliberate deviation from FR
56(j) and covers special circumstances of 'exposure' or
'unemployability for reasons of security' as pre-requisites for its
invocation. Indubitably, Rule 135 is not exhaustive of all
circumstances and matters of compulsory retirement of
intelligence officer of the Organisation. For, it holds no
operatibility beyond the specified situations therein. All other
situations (not covered by Rule 135) warranting compulsory
retirement would, therefore, continue to be governed by FR 56(j)
in reference to public interest. Thus, Rule 135 is a special
provision and operates independent of the grounds and procedure
laid down in FR 56(j). Once the ingredients of Rule 135 are
satisfied, then, within the meaning of Article 309, Rule 135 will
get activated as a 'condition of service' of the intelligence officer
of the Organisation and FR 56(j), being a general provision, could
be invoked on the grounds transcending beyond the stipulation
in Rule 135 in public interest. Thus, the general provision such
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as FR 56(j) must give way to the special provision (Rule 135).
Though it has already been stated in clear terms that Rule 135 of
the 1975 Rules is not bound by the rigidity of the principles of
natural justice, it is deemed necessary to add that natural justice
is not an all-pervasive pre-condition in all the executive decisions
and its extent of applicability varies in myriad set of situations. A
mechanical extension of the principles of natural justice would
be against the proprieties of justice. The order of compulsory
retirement in the present case was preceded by a chain of
preliminary inquiry, commencing from 8.8.2008, in the highest
echelons of the government and such preliminary inquiry is
advisable. For, it is only after a preliminary inquiry that the
competent authority can satisfy itself about the existence of the
prescribed ground in a particular case. However, it is reiterated
that the participation of the concerned officer in such inquiry is
neither mandated by the jurisprudential essence of compulsory
retirement or the rigid observance of the principles of natural
justice.[Paras 58-60, 62][649-A-C, D-H; 650-A-C, D-E; 651-BC; 653-G-H; 654-A-B]
S.C. Jain v. State of Haryana and Another (1985) 4
SCC 645 : [1985] 3 Suppl. SCR 727; New Prakash
Transport Co. Limited v. New Suwarna Transport Co.
Limited AIR 1957 SC 232 : [1957] SCR 98; Union of
India v. Col. J.N. Sinha & Anr. (1970) 2 SCC 458 :
[1971] 1 SCR 791; A.K. Kraipak & Ors. v. Union of
India & Ors. (1969) 2 SCC 262 : [1970] 1 SCR
457; Managing Director, ECIL, Hyderabad and Others
v. B. Karunakar and Others (1993) 4 SCC 727 : [1993]
2 Suppl. SCR 576; Ex-Armymen's Protection Services
Private Limited v. Union of India and Others (2014) 5
SCC 409 : [2014] 3 SCR 359; State of Rajasthan v.
Leela Jain & Ors. AIR 1965 SC 1296; Sri Nasiruddin
v. State Transport Appellate Tribunal AIR 1976 SC 331
: [1976] 1 SCR 505 - relied on.
Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC
248 : [1978] 2 SCR 621 - referred to.
5.1 Re: Pension claim The appellant may be right in
contending that the power to withhold or withdraw pension of an
officer is circumscribed by Rule 9, Central Civil Services
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(Pension) Rules, 1972. The exercise of power of modification of
pension under Rule 9 is subject to the finding of misconduct or
negligence against the employee, reached after conducting
departmental or judicial proceedings. The raison d'etre of Rule 9
is to provide for an additional safeguard on the pensionary right
of an employee by vesting the power of reduction/modification in
the President of India. However, it is a general rule and not an
overarching provision of pervasive application. Framed under
Article 309 of the Constitution, this rule operates in the area
specified for it and cannot override other special rules such as
Rule 135. Rule 9 does not and cannot control Rule 135 of the
1975 Rules, which derives its own independent authority from
Article 309. As both the rules emanate from Article 309, the
question of illegality of one rule cannot be premised on the
argument that it acts in deviation from another rule albeit
concerning the same subject of pension. Rule 135 operates as a
self-contained code covering certain aspects of termination and
post-termination benefits in an exclusive manner as a special
dispensation and is not controlled by any other rule much less
general provisions. There is no overlapping between Rule 135
and Rule 9. As regards the grant of pension to appellant, the
appellant shall be entitled to all the benefits under clauses (2)-
(4) of Rule 135 in their true letter and spirit. The impugned
judgment has directed the respondents to secure various benefits
to the appellant, including the benefit of promotion and fixation
of date of pension as per the date of notional superannuation in
2023. That direction has not been challenged by the respondents.
The pension of an employee retired under Rule 135 is to be
determined in accordance with the date of notional superannuation
and not in accordance with the date of actual retirement. This
reflects the beneficial, balancing and protective outlook of the
Rule as it seeks to deal with the competing considerations of
public interest including security (of the Organisation or the State)
and individual interest of the outgoing employee. [Paras 6769][655-F; 656-G-H; 657-A-F]
D.V. Kapoor v. Union of India and Others (1990) 4
SCC 314 : [1990] 3 SCR 697- relied on.
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5.2 The decision to retire an officer compulsorily is purely
an executive function exercised in light of the prevailing
circumstances. The scrutiny by the Court is restricted to an
examination of whether such order is smitten by mala fides or
extraneous considerations. Once such order is upheld in a Court
of law in its entirety, as the High Court rightly did, there is no
question of altering or modifying the technical aspects of such
order, including the date from which it should be given effect.
The usage of words "immediate effect" makes it amply clear that
the order of compulsory retirement was meant to take effect
immediately and the date of such order could not have been
postponed by a Court of law in the garb of exercising power of
judicial review. Even if it is assumed that the Court intended it as
an equitable measure, the same could have been achieved without
postponing the date of retirement. Sub-rule (2) of Rule 135 of
the 1975 Rules categorically provides for the calculation of
pension as per the date of notional superannuation as well as for
the earned promotions. However, despite disapproval for this
approach, in the peculiar facts of this case, the Court stops short
of modifying the High Court's order as regards postponement of
date of retirement as the same has not been assailed by the
respondents and instead has been complied with sans any demur.
Further, Rule 2(h) of the Pension Rules explicitly predicates that
the said rules (Pension Rules) shall not apply to persons whose
terms and conditions of service are regulated by or under any
other law for the time being in force. Rule 135 forms part of the
'conditions of service' governing the officers serving in the
Organisation and thus, in the field covered by Rule 135, the
Pension Rules would be inapplicable. However, the areas that
fall outside the purview of Rule 135 would and must be governed
as per the CCS Rules, as is restated in the departmental order
dated 10.5.2010 sanctioning the provisional pension of the
appellant under Rule 69 of the Pension Rules. Thus, there is no
conflict between the two. [Paras 71 and 73][658-C-G; 659-B-D]
5.3 It is cardinal that pension is a valuable statutory right
of an employee and is not controlled by the sweet will or pleasure
of the Government. In the absence of express exceptions to the
same, any provision resulting in denial thereof ought to be
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subjected to strict judicial scrutiny. Indeed, clauses (2) and (3) of
Rule 135 of the 1975 Rules, posit that the grant of pension to a
compulsorily retired employee under this rule is preceded by
expression "may". That gives an impression that the grant of
pension to the outgoing employee is subject to the discretion of
the competent authority. The setting in which expression
"may"has been placed in this provision, it must be read as "shall".
Lest, it could be argued that a compulsorily retired officer under
Rule 135 can be denuded of pensionary benefits. That would result
in not only loss of job for the employee concerned due to fortuitous
situation referred to in Rule 135, but also deprive him/her of the
source of his livelihood (even though the action against him/her
is not to inflict civil consequences). In fact, Rule 135 is cast in
the form of a beneficial, balancing and protective provision for
the nature of action against the employee concerned. Intelligence
Organisations (Restriction of Rights) Act, 1985, enacted by the
Parliament under Article 33, provides for restriction of certain
rights conferred by Part III in their application to intelligence
officers. However, the same is confined to restrictions respecting
right to form associations, freedom of speech etc. and does not
stretch its sweep to curb the right to livelihood of an officer, that
too when the officer is being compulsorily retired under Rule
135. This could not have been the object and intent of the stated
legislation. Even in the Pension Rules, Rule 40 is the only
provision which subjects the pension of a compulsorily retired
officer to a discretionary "may" provision. However, this rule
comes into play when the said retirement is ordered as a penalty
and thus, it stands on a different footing than Rule 135 of the
1975 Rules which is not linked to the conduct of the officer nor
does it entail any consequence, either civil or penal. [Paras 7577][659-F; 660-C-E, H; 661-A-C]
D.S. Nakara and Others v. Union of India (1983) 1
SCC 305 : [1983] 2 SCR 165 - followed.
5.4 It is the duty of the Court to give effect to the object
sought to be achieved by the legislature through the enacted
provision and to prevent its defeat. In the present case, the usage
of "may" provision in a discretionary manner could lead to highly
iniquitous results and leave scope for arbitrary exercise of
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discretion.