# STATE OF UTTAR PRADESH v. CHANDRA MOHAN NIGAM & OTHERS

- **Citation:** [1978] 1 S.C.R. 521
- **Court:** Supreme Court of India
- **Decided:** 1978
- **Case number:** Civil Appeal Nos. 161 of 1974
- **Bench:** P. K. Goswami, Jaswant Singh, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttar-pradesh-v-chandra-mohan-nigam-others-7289
- **Pages:** 14

## Headnote

Service Law-All India
Ser~'ices
(Death-cun1-Retire111ent Benefits)
Rules,
1958, R. 16(3)-Jnstructions by Central
Go1'ernnu:nt n'garding
procedul'e,
whether binding on Governn1e11t-Re1·iew of officer's S!!rvice records at con1pletio11 of 50 years age-Favourable report of Reriew Co1111nittee accepted by
State and Central Go1•eri1me11ts-Ser1·ice records reviewed by second Rei•iew
Conunittee on san1e 1naterials, prior to con1plt>tion of 54 years age-Con1pulsory
retirement 011 reco1nmendation of second Review Con1n1ittee, whether validRetiren1e11t ulr 16(3) ris a 1·is the constitutio1wl right under Preventive Detention Act.
Shri Nigam was a member of the Indian Administrative Service.
During ·
his service career, he had some adverse entries in his chai acter roll.
He was
suspended in 1964, pending enquiry on account of certain
strictures passed
against him by the Election Tribunal, but was feinstated -when the High Court
expunged the strictures on appeal.
On
December 29,
1967,
Shri
Nigam
attained the age of 50 years, and, following the Central Government's instructions, in October 1969, a
Review Committee
examined his service
records
under R. 16(3) of the All Jndia Services (DCRB) Rules 1958, as amended in
1969.
The Committee's recommendation for Shri
Nigam's continuance
in
service, was accepted by the State Government, and the Central Government
did not communicate any disagreement.
In May 1970, the State Government
set up a secOnd Review Committee u/r. 16(3) which exan1ined Shri Nigam's
service records on the same materials, and recommended compulsory retirement.
The recommendation Was accepted, and an order dated August 22,
1970,
\Vas
passed, compulsorily retiring him.
Shri Nigam's writ petition was allowed by
a Single Judge of the High
Court, and a State appeal was
rejected by the
Division Bench, which found the case to be analogous with the infringement
of a constitutional right under the Preventive Detention Act.
Dismissing the appeal by certificate, the Court,
HELD: (1) Since Rule 16(3) itself does not contain any guidelines, directions or criteria, the instructions issued by the Governrilent furnish an essential
A
B
c.
D
E
and salutary procedure for the purpose of securing uniformity in application
F
of the rule. They are embedded in the conditions of service, and are binding
on the Government, and cannot be violated to the prejudice of the Government
servant. [531 A-B]
Santra1n Shanna v. State of Rajasthan & Anr. [1968] (I) SCR 111 and U11io11
of India v. K. P. Joseph & Ors. [1973] (2) SCR 752, applied.
(2) Once a Review Committee h.as considered the case of an en1ployee, and
the Central Government does not decide, on the report of the committee endorsed
G
by the State Government to take any prejudicial action against an officer there
is no w:arrant f~r a se~ond Review Co~mittee under the scheme of rule' 16(3)
read with the 1nstruct1ons, to reassess his case on the same materials
unless
exccpti9nal ci_rcun1stances emerge in the mean tim~ or \Vhen the n~xt stage
for review arrives.
[531 C-Dl
.
(3) !he principle ~overni~g the order of rreventive detention with regard
to effective representation against such order, is not applicable in the case of
an order for compul~ory retirement. which c.3sts no stigma on a Government
H
~eryant. The test. which ~as. ~een la~d down in the· case of preventive detention
is. 1n conte~t of .nght to 1nd1v1dual lrbcrty of a person which is a fundamental
nght enshnned 10 the Constitution while the order of con1pulsory retirement
522
SUPREME COURT REPORTS
(1978] 1 S.C.R.
A
is passed in respect of a Government servant who has ceased to have a right,
as such, to continu.: in Government
service under the rules
governing
his
employment.
[528 G-H]
B
State of Orissa v. Bidyabhushan Mahapatra [1963] Supp.
(I) SCR 648,
referred to.

## Text

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STATE OF UTTAR PRADESH
v.
CHANDRA MOHAN NIGAM & OTHERS
Septe111ber 19, 1977
5 21
[P. K. GOSWAMI, JASWANT SINGH AND P. S. KAILASAM, JJ.J
Service Law-All India
Ser~'ices
(Death-cun1-Retire111ent Benefits)
Rules,
1958, R. 16(3)-Jnstructions by Central
Go1'ernnu:nt n'garding
procedul'e,
whether binding on Governn1e11t-Re1·iew of officer's S!!rvice records at con1pletio11 of 50 years age-Favourable report of Reriew Co1111nittee accepted by
State and Central Go1•eri1me11ts-Ser1·ice records reviewed by second Rei•iew
Conunittee on san1e 1naterials, prior to con1plt>tion of 54 years age-Con1pulsory
retirement 011 reco1nmendation of second Review Con1n1ittee, whether validRetiren1e11t ulr 16(3) ris a 1·is the constitutio1wl right under Preventive Detention Act.
Shri Nigam was a member of the Indian Administrative Service.
During ·
his service career, he had some adverse entries in his chai acter roll.
He was
suspended in 1964, pending enquiry on account of certain
strictures passed
against him by the Election Tribunal, but was feinstated -when the High Court
expunged the strictures on appeal.
On
December 29,
1967,
Shri
Nigam
attained the age of 50 years, and, following the Central Government's instructions, in October 1969, a
Review Committee
examined his service
records
under R. 16(3) of the All Jndia Services (DCRB) Rules 1958, as amended in
1969.
The Committee's recommendation for Shri
Nigam's continuance
in
service, was accepted by the State Government, and the Central Government
did not communicate any disagreement.
In May 1970, the State Government
set up a secOnd Review Committee u/r. 16(3) which exan1ined Shri Nigam's
service records on the same materials, and recommended compulsory retirement.
The recommendation Was accepted, and an order dated August 22,
1970,
\Vas
passed, compulsorily retiring him.
Shri Nigam's writ petition was allowed by
a Single Judge of the High
Court, and a State appeal was
rejected by the
Division Bench, which found the case to be analogous with the infringement
of a constitutional right under the Preventive Detention Act.
Dismissing the appeal by certificate, the Court,
HELD: (1) Since Rule 16(3) itself does not contain any guidelines, directions or criteria, the instructions issued by the Governrilent furnish an essential
A
B
c.
D
E
and salutary procedure for the purpose of securing uniformity in application
F
of the rule. They are embedded in the conditions of service, and are binding
on the Government, and cannot be violated to the prejudice of the Government
servant. [531 A-B]
Santra1n Shanna v. State of Rajasthan & Anr. [1968] (I) SCR 111 and U11io11
of India v. K. P. Joseph & Ors. [1973] (2) SCR 752, applied.
(2) Once a Review Committee h.as considered the case of an en1ployee, and
the Central Government does not decide, on the report of the committee endorsed
G
by the State Government to take any prejudicial action against an officer there
is no w:arrant f~r a se~ond Review Co~mittee under the scheme of rule' 16(3)
read with the 1nstruct1ons, to reassess his case on the same materials
unless
exccpti9nal ci_rcun1stances emerge in the mean tim~ or \Vhen the n~xt stage
for review arrives.
[531 C-Dl
.
(3) !he principle ~overni~g the order of rreventive detention with regard
to effective representation against such order, is not applicable in the case of
an order for compul~ory retirement. which c.3sts no stigma on a Government
H
~eryant. The test. which ~as. ~een la~d down in the· case of preventive detention
is. 1n conte~t of .nght to 1nd1v1dual lrbcrty of a person which is a fundamental
nght enshnned 10 the Constitution while the order of con1pulsory retirement
522
SUPREME COURT REPORTS
(1978] 1 S.C.R.
A
is passed in respect of a Government servant who has ceased to have a right,
as such, to continu.: in Government
service under the rules
governing
his
employment.
[528 G-H]
B
State of Orissa v. Bidyabhushan Mahapatra [1963] Supp.
(I) SCR 648,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 161 of 1974
and 1782 of 1973.
From the Judgment and Decree dated 13-4-1973 of the Allahabad
High Court in Special Appeal No. 698 of 1971.
S. N. Kacker, Sol. Gen., 0. P. Rana for the Appellant in CA
No.
161!74 and R-2 in CA No. 1782173.
S. N. Kacker, Sol. Genl. and Girish Chandra for the Appellant in
C
CA No. 1782173.
D
E
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H
Yogeshwar Prasad, (Mrs.) S. K. Bagga, Miss Meera Bali and Miss
Rani Arora for Respondent No. 1 in both the appeals.
The Judgment of the Court was de:ivered by
GOSWAMI, J.
These appeals by certificate aie from the judgment
of the Division Bench of the Allahabad High Court centering round an
order ot compulsory retirement of a senior officer in the Indian Administrative Service.
The first respondent, Chandra Mohan Nigam, (briefly the respondent) was recruited in the Indian Administrative Service in Uttar Pradesh Cadre as a War-service candidate in 1946 and he joined service
on Maich 23, 1947.
For the purpose of seniority, etc. he was allotted
to the year 1941.
In 1949 he was promoted to the senior scale.
He
was appointed Commissioner of Faizahad and Gorakhpur Divisions in
1962. On June 4, 1967, he was posted as Secretary, Local Self Department in the State Government.
He was appointed Judicial Member of the Board of Revenue in 1969.
He attained the age of 50 years
on December 29, 1967.
By an order dated August 22, 1970, the
President of India, in consultation with the Government of Uttar Pradesh, in pursuance of the power conferred by sub-rule (3) of rule 16
of the All India Services (Death-cum-Retirement Benefits) Rules 1958,
passed the impugned order of compulsory retirement of the respondent
in the public interest on the expiry of three months from the date of
service ot the order.
The respondent challenged the said order by a writ application
before the Allahabad High Court and the leained single Judge allowed
the same on the grounds of "contravention of the justiciable and binding
rules and because the order was based on consideration of irrelevant
matters and was also vitiated by bias".
Both the Union of India. and the State of U.P. appealed to the Division Bench of the High Court against the judgment of the learned single
Judge.
The High Court by an order dated April 13, 1973, dismissed
both the appeals by a common judgment.
The Division Bench did not
agree with all the reasons given by the learned
single J udg~ and
u. P. STAT£ v. c. M. NlGAM (Goswami, J.)
523
quashed the impugned order holding that "the decision of the Central
A
Government to retire Shri Nigam being based on collateral facts was
invalid".
The impugned order of compulsory retirement was based on four
grounds.
According to the Division Bench the ground relating to an
order of suspension, on account of certain strictures of the Election
Tribunal was the "gravest" of all the four.
Since according to the
B.
Division Bench this ground was absolutely non-existent on account of
the strictures having been later on set aside, it was of opinion that the
non-existent ground prevailed with the Central Government to take
the decision for compulsory retirement of the respandent.
The Division Bench observed "we are unable to hold that if the Government had
excluded the case of suspension from consideration, it would n.ontheless have reached the same decision. namely, to take action for Shri
C-
•
Nigam's premature retirement".
It is complained -before us by the
'"
appellants that the Division Bench erroneously invoked the principle of
law laid down by this Court in the matter of preventive detention which
is that if one of several grounds is irrelevant or non-existent and the said
ground is not inconsequential or non-essential, an order of detention is
invalid.
Applying the above principle, the Division Bench quashed
the impugned order. The High Court granted certificate to the appelD•
!ants for leave to appeal to this Court and that is how these appeals
have come before us.
Befo~e we proceed further a brief reference to the facts and circumstances may be appropriate.
The respondent during his service career had the following adverse
E
entries in his character roll :
(1) A warning was administered to him on December 6, 1953,
for taking undue interest in the ejectment of tenants from a
house owned by him at Lucknow.
(2) Another warning was issued to him on August 31. 1962,
for having acquired a car from the Varanasi Corporation
while working as the Administrator of the Varanasi Municipal Corporation.
( 3) He Wais also once warned for not observing proper rules
and procedure for utilizing the fund earmarked for lower
income' group housing scheme towards the construction of
a market (1956-1957).
( 4) He was also placed under suspension in 1964 in connection with some strictures passed on him by the Election
Tribunal in a case relating to the Gorakhpur Parliamentary
Constituency elections.
F
G
With regard to the fourth entry, it appears that although Shri Nigam
HJ
had been suspended pending enquiry on account of certain strictures
made against him by the Election Tribunal, these strictures were later
on expunged by the High Court on appeal.
As a result the order of
A
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SUPREME COURT REPORTS
[1978] l S.C.R·
6uspel).sion was set asi<le and Shri Nigam was reinstated in service in
~ 96 7.
It appears, however, that even on December 20, 1969, the
Secretary, Ministry of Home Affairs of the Central Government, while
glancing through the character roll of Shri Nigam found the aforesaid
entry containing the strictures.
The All India Services Act, 1951 (No. LXI of 1951) regulates the
recruitment and the conditions of service of persons appointed to the
All India Services.
Under' section 3 of that Act the Central Government, after consultation with the Governments of the States concerned
makes rules for the regu:ation of recruitment, and the conditions of service of persons appointed to an All India Service.
In exercise
of
powers under sub-section (I) of section 3 of the said Act, the Oen:rat
Government made the All India Services (Death-cum-Retirement Benefits) Rules, 1958. Rule 16 of these Rules provides for superannuation,
gratuity or pension.
The normal age of retirement of the officers in
the All India Service (hereinafter to be described as the Service) is 58
years as per rule 16(1). Sub-rule (2) of rule 16 provides that a
member of the Service who has completed 30 years of qualifying service or has attained the age of 55 years may, after giving at least three
months' previous notice in writing to the State Government, retire from
the Service on any date to be, specified in the notice.
We may read
sub-rule (3) of rule 16 which is material for our purpose :
"16(3) : The Central Government,
in consultation
with
the State Government, may require a member of the Service
who has completed 30 years of qualifying service or who has
attained the age of 55 years to retire in the public interest
provided that at least three months previous notice in writing
will be given to the member concerned".
·
Later by a notification dated July 16, 1969, the figures and words "55
years" in sub-rules (2) aind (3) of rule 16 were substituted by the
figures, and words "50 yearsn.
F
Since sub-rule (3) of rule 16 doo; not contain any guidelines with
regard to premature retirement the, Government of India in the Ministry
of Home Affairs issued certain instructions which are printed at page
596 of the All India Servic°"' Manual (corrected upto l.5.1967) which
is published under the authority of the Government.
Paragraph 2 of
those instructions reads as under :-
·G
"With a view to ensure all-fodia uniformity of operaH
tion of this sub-rule [sub-rule (3) of rule 16] and also to
ensure equitable treatment in all cases of premature retirement the Government of India have laid down the following criteria and procedure to be followed by the State Governments etc. while referring cases to the Central Government under this [sub-rule (3) of rule 16] :-
( I ) Six months before an officer attains the age of 55,
his record should be carefully examined by the State
Government, or if the officer is serving under the ·
..
u. P. STATE v. c. M. NIGAM (Goswami,/.)
525
Central Government by the Central Government, and
A
a provisional judgment formed whether he should
be retired on attaining the age of 55 years.
(2) Where the State Government come to the conclusion
a~ " result of this examination that an officer should
be retired prematurely under Rule 16(2) referred to
above, they may make a proposal according to ·the
Central Government with a full indication
of
the
considerations and reasons for their proposal. Where
an officer is serving under the Central Government,
the Central Government would send a similar statement to the State Government while inviting
their
views on the question of retiring the officer prematurely. It is to lie hoped that this: process of consultation between the Central and the State Governments would be completed in each
case in about
three month;s' time so that in the event of retirement
belng finally decided upon, a notice could be given
to the. officer concerned at least three months before the date on which he is to attain the age of
55 years and his retirement thus given effect as soon
as he does so.
(3) x
x
x
x
( 4) In a case in which the State and the Central Governments have reasonable cause to believe that an officer
is lacking in integri~y, if would be
appropriate to
consider him for premature retirement, irrespective
of an assessment of his ability of efficiency in work.
(5l I
x
x
x
x
)-
( 6) J
x
x
x
x
( 7) Once it is dcci'<led to retain an officer beyond the age
of 55 years, he should be allowed to continue up to
the age 58 without any fresh review unless this be
justified by any exceptional reasons, such as his subsequent work or conduct or the state of his physical
health, which may make earlier retirement clearly
desirable.
The Government of India feel that
:•n
order that an officer who is cleared for continuance
at the: stage of attaining the age of 55 years can settle
down to another three years of work with a sense of
security and those working under him accept his control and discipline without any reservation an annual
review between the years of 55 and 58 would not
be desirable.
In arriving at this view , they have
among other factors taken into consideration the fact
that at these stages, members of all-India Services
gemrally occupv very senior appointments on which
particularly is'uch a sense of security about
their
tenure is desirable in the public int'erest.
Further.
B
c
n.
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G
H
)o
I
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I
A
B
c
D
E
F
G
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526
SUPREME COURT REPORTS
[1978] 1 s.c.R.
having arrived at an assessment in favour of further
continuance in service at the age of 54 years or so,
there would ordinarily be no occassi•on for changing the a,ssessment during the next three years, so
that an annual review would serve little practical purpose.
Finally, in any case, sub-rule (3) of rule 16
of the AIS (DCRB) Rules would enable appropriate
consideration at any time in very exceptional circumstances".
On September 5 1967, the Ministry of Home Affairs issued further instructions to the Chief Secretaries of all the State Governments
(except Nagaland) with regard to the criteria and procedure to
be
followed regarding premature retirement of the All India
Service
officers.
We may read paragraph 2 of those instruction\; :
"In clarification of and supplemental to the
previous
i•nstructions issued in the letter quoted above, the Government of India would suggest the observance of the following
criteria and procedure for the aforesaid purpose :-·
( 1) A review should be conducted twice a year in
the
month of January and July to determine the suitability for continuance of all officers who will attain
the age of 55 years in the half year beginning with
the following July and January re;spectively.
The
review may ~e conducted by committees constituted
as follows
(b)
x
x
x
x
In the States, for J.A.S. Officers the Review Committee may consist of the Chief Secretary, Member I
Senior Member/Chairman, Board of Revenue
and
one other senior officer."
x
x
x
x
We may also refer to a notification dated August 14, 1969, from
the Ministry of Home Affairs, Government of India, to the Chief
Secretaries of all the State Governments with regard to the amendment to rule 1 6 for review of records of officers at the age
of 50
Paras 2 and 3 of thi;s' notification may be quoted :
"2. I am to request that the State Governments may kindly
take steps to review the records of all those All India
Service officers, who have already completed or who
are about to complete the age of 50 in the next
6
months or so and are serving i•n connection with the
affairs of the State ....
3. The criteria and procedure for review of records and
also service of notice on those, who are proposed to
,
•
u. P. STATE v. c. M. NJGAM (Goswami, J.)
527
be. retired will be the same as outlined in this MinisA
try's letter No. 29/67;66-AIS(Il), dated the 5th
Sep'.eml>:r, 1967.
This review at the age of 50 will
be in addition to the one contemplated later at the age
of 55".
It is in pursuance of sub-rule ( 3) of rule 16 and in consonance
with the instructions set out above that the State Government of U.P.
B
in October 1969 constituted a Review Committee consisting of Shri
H. C. Gupta, Chairman, Board of Revenue, Shri B. B. Lal, l. C. S.,
Chief Secretary and the Member, Taxation Board of Revnue,
to review the records of the members of the Service who were to attain or
had attained the age of 50 years.
The list of officers considered by
this Committee included the respondent, Shri
Nigam.
The
Committee did not recommend any of the officers including SJ1ri Nigam
c
for premature retirement and, on the other hand, recommended that
they should be continued in service.
The State Government accepted
the report of the Review Committee and communicated its decision
to the Central Government.
On December 20, 1969, the Secretary,
Ministry of Home Affairs of the Central Government, addressed a letter
to the State Government iiS follows :-
"I have glanced through the character rolls of the I.AS.
Officers of _Uttar Pradesh Cadre, who have already reached
the age of 50.
I find that there are certain adverse remarks
in the character roll of Shri C. M. Nigam (IAS-1941). A
warning was administered to him on December 6, 1958 for
talcing undue interest in the ejectment of tenants
from a
house owned by him at Lucknow.
Another warning was
issued to him on 31st August 1962 for having acqui•red a
car from the Varanasi Corporation while working as Administrator of the· Varanaisi Municipal Corporation.
He
was also once warned for not observing proper rules
and
procedure for utilising the fund earmarked for low income
group housing scheme towards the construction of a market.
Later he was also placed under
suspension in connection
with some strictures pa:Ssed on him by the Election Tribunal
in a case relating to the Gorakhpur Parliamentary Constituency elections.
(2) In view of these, it appears 'to us that this is a fit ca•e
in which proposals for his premature
retirement
under rule 16(3) of the All India Services (DCRB)
Rules, 1958 should be considered.
The State Government however have not recommended his compulsory reti<rement.
We do not know if there were any
particular reasons for taking a different view
or
whether it was a case of oversight.
We would like
to have the considered views of the State Government
before Central Government come to a
decision."
On Januarv 29, 1970. the Chief Secretary to the State Government
replied that the review Committee had considered the character roll
D
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528
SUPREME COURT REPORTS
Ll 978] I s.c.R.
A
and the merits of the case of Shri Nigam ancl found that he was suitable for continuing in i~ervicc, that the decision of the Committee was
accepted by the State Government, the State Government's decis[on
in the matter was taken after thorough consideration and that it did
not consider it necessary to go into this question again.
No advers·~
decision contrary to the recommendation of the State Government was
communicated by the Central Government to 'the State Government
in pursuance of the r.ecommendation of the first Review Commiilcc
B
c
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in October 1969.
-
Next, we. find that the State Government constituted a second Review Committee in May 1970 consisting of Shri Musaddi Lal, Chief
Secretary, Shri J. D. Shukla, Member Board of Revenue and Shri
J. B. Tandon, the se1iior-most officer of the Indian Administrativ~
Service.
Before this Committee 'the case of all the officers who had
attained the age of 50 years including those whose cases had been reviewed earlier, in October 1969, were also placed for consideration.
fhus Shri Nigam's caisc came to be considered again by the second
Review Committee.
This time the Committee recommended that
two officers, one of whom was Shri Nigam, should be prematurely re·
t;•red.
The State Government having accepted this recommendation
forwarded the same to the Central Government.
The Central Government asked the State Government to send the p'roeeedings of the
Review Committee.
On receipt of that report the Central Government agreed with the views of the State Government and passed the
impugned order of compulsory retirement of the respondent.
E
It is submitted by the appellants that no decision was made by the
Government of India after receipt of the recommendation of the State
Government in October 1969 or even after reiteration of the State
Government's views in January 1970.
Even the counsel for the
State conceded in the High Court that only if the Central Government
disagreed with the Sfat~ Government a communication was made. The
absence of communication nntil the second Review Committee goes
F · to show that there was no adverse decision against the respondent.
G
H
As we have indicated earlier in the judgment the learned Solicitor
General, on behalf of the appellants, emphasised before us his objection to the question of principle which was relie.d upon by the Division
Bench for quashing the impugned order, that is to say, the principle
applicable to the case of preventive detention.
We have no hesitation in holding that the principle governing the
order of preventive detention evolved by this Court having
regard
to the constitutional right of a person appertaining to effecti•ve
representation aaginst such order is not applicable in the case of an
order for compulsory retirement which calSts no stigma on a Government servant and cannot be equated with an order affecting his ri'ght
by way of disciplinarv proceedings.
An order of compulsory retirement, simpliciter, under rule 16(3) does not affect any right of the
Government servant.
•
•
u. P, STATE v. c. M. NIGAM (Goswami, J.)
529
Under rule 16(2), a Government servant has a right to retire
prematurely by giving three months' previ\ms notice to the Government.
Similarly under rule 16 (3), after a Government servant serves
a period of 30 years or attains the age of 50 yea~s, he cannot insist
on a right to be retained in the service.
The Government may also
exercise a corresponding right under rule 16(3) to prematurely retire
him at lhe age of 50 or 55 after giving three months' notice.
This
termination of service by way of premature retirement cannot be equated with a penal order of removal or dismissal. Even so, an order
of compulsory retirement may be challenged in a court if it is arbitrary
or is actuated by mala tides.
Even in the case of an order of dismissal by way of plunishmcnt,
A
B
if there are several gronnds on which the order is founded and
one
c
or two of those fail and the order can still rest on the surviving ground
or grounds disclosing a prima facie case of guilt or misconduct, the
same cannot be held to be invalid by applying the subjective test of
preventive detention (see State of Orissa v. Bidyabhushan Mahapatra).
Bidyubhushan (supra) was a case of dismissal of a Government servant
for misconduct on several grounds, two of which failed.
This Court.
differing from the High Court on the point held as follows :-
D
"If the order of dismissal was based on the findings on
charges l(a) and l(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the
findings of the Tribunal relatine, to the two out of five heads
of the first charge and the second charge was found not
liable to be interfered with by the Bigh Court and those
F
findings established that the respondent was
prima fade
guilty of grave delinquency, in our view the Bigh Court had
no power to direct the Governor of Orissa to reconsider the
order of dismissal.
x
x
rhcreforc Jt tnc order may be supported on any finding as
to sul:!stantial misdemeanour for which the punishment can
lawfully be imposed, it is not for the
Court to consider
whether that ground alone would have weighed
with
the
authority in dismissing the public servant".
F
If the above legal position i~ true with regard to a case of disG
missal of a Government servant who but for the proof of misconduct
would have a right to continue in the service,. it will, a fortiori, hold
good in the case of termination of service by way of compulsory retirement under the rules where, after an employee has done a specified
years of service or reached a specified age of reasonable duration, his
right to continue, as such, becomes again subject to his own voliticP
under rule 16(2) or to exercise of an equal right by th~ Government
II
.to prematurely retire him under rule 16(3).
(1J{l963] SupP; I s:C.R. 648.
10-930SCI/77
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SUPREME COURT REPORTS
(1978] l s.c.R.
As stated earlier, even in the case of compulsory retirement under
rule 16(3), an order may be challenged in a court if it is arbitrary or
ma/a tzde.
If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide, the order, per se,
cannot be characterised as by way of punishment since it does not
cast any stigma on the employee nor does the employee forfeit any
benefit which he has already earned by his service, nor does it result
in any civil consequences.
The Division Bench took the view that since the "gravest" of the
reasons which was the order of suspension, became non-existent and
was still operating in the mind of the Central Government, the impugned order could not be supported on the ground that the same
was based on collateral consideration, one serious reason being absolutely non-existent and thus illusory.
The High Court is not correct that the order of suspension which
was pending enquiry was a punishment under the rules. It was not.
Therefore, the degree of gravity attached to the order by the High
Court was neither appropriate nor correct.
We are also unable to
agree with the High Court that except one out of the several reasons.
on which the impugned order was based, the entire order is liable to
be struck down as invalid.
The test which has been laid down in the case of preventive detention is in the context of right to individual liberty of a person which
is a fundamental right enshrined in the Constitution.
The order of
compulsory retirement is passed in respect of a Government servant
E
who has ceased to have a right, as such, to continue in Government
service under the rules governing his employment.
The analogy with
cases under the Preventive Detention Act is, therefore, absolutely out
of place.
The Division Bench is not right in quashing the impugned
order on that solitary ground.
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This would, howe_ver, not conclude the controversy before
us.
Mr. Yogeshwar Prasad appearing on behalf of the respondent, does
not challenge before us that the impugned order is
vitiated
by
mala /ides.
Even the Division Bench, differing from the learned
single Judge, found against the plea of mala fides.
We are, therefore,
relieved of dealing with this plea.
The learned single Judge held the instructions of the Ministry of
Home Affairs as statutory and as such binding, on a concession made
in the counter-affidavit submitted before him by the Under Secretary
of the Personnel Department (Cabinet Secretariat).
According to
counter-affidavit these instructions were made by the Government by
rule 2 of the All India Services
(Conditions of Service-Residuary
Matters) Rules, 1960. It is not necessary to go into this aspect in
detail in this case as to whether the instructions can be elevated
to the status of statutory rules or even constitutional directions as
found by the learned single Judge. It is sufficient for our, purpose
that these instructions do not violate any provision of the Act or or
the rules. Rule 16(3), being a rigorous rule vis-a-vis a Government
u. P. STATE v. c. M. NIGAM (Goswami, J.)
531
~ervant ~ot him~elf willing to retire under rule 16(2), has to be
A
mvoked m a fau: and reasonable manner.
Since rule 16(3)
itself
does not contain any guidelines, directions or criteria the instructions
issued by the Government furnish an essential and s~lutary procedure
for the. purpo~e of securing uniformity in application of
the rule.
These mstructrons really fill up the yawning gaps in the provisions
and are embedded in the conditions of service.
These are binding o~
the Government and cannot be violated to the prejudice of the GovB
ernment servant (see also Sant Ram Sharma v. State of Rajasthan d:
Anr(') and Union of India v. K. P. Joseph and Ors.( 2 ).
Whether all the aforesaid instructions issued by the Government
are mandatory or not do not call for a decision in these appeals. Some
of them may not be mandatory. Not that every syllable in the instructions is material.
Some of them may be described as prefatory and
C
clarificatory.
However, one condition is absolutely imperative in the
instructions, namely, that once a Review Committee has considered
the case of an employee and the Central Government does not decide
on the report of the Committee endorsed by the State Government to
take any prejudicial action against an officer, after receipt of the· report
of the wmmittee endorsed by the State Government, there
is
no
warrant for a second Review Committee under the scheme of rule
D
l 6 ( 3) read with the instructions to reassess his case on the same
materials unless exceptional circumstances emerge in the meantime or
when the next stage arrives. We should hasten to add that when
integrity of an officer is in question that will be an exceptional circumstance for which orders may be passed in respect of such a person
under rule 16(3), at any time. if other conditions of that rule are
fulfilled, apart from the choice of disciplinary action which will also
E
be open to Govermnent.
Although a faint attempt was made before
the learned single JudQe that fresh facts were available for the purpose
of t.he second Review Committee, the High Court did not accept the
position nor do we find any reason to differ from that opinion. It is,
therefore, clear that the respondent's order of termination was made
not as a result of the report of the first Review Committee in accordance with the instructions but on the recommendation of the serond
F
Review Committee which could not have taken up his case, as it was,
on the self-same materials prior to his reaching the age of 55 years.
We find from the instructions that reviews have to be conducted
twice in the career of a Govermnent servant, once six months prior to
his attaining the age of 50 years and again six months prior to his
attruning the age of 55 years.
Since the amendment introducing the
G
age of 50 years came in August 1969, after the respondent had already
attained 50 years, the first review in his case could be held only in October 1969.
The second Committee sat in May 1970 after the first
Committee had recommended the continuance of the respondent
in
service in October 1969 which was agreed to by the State Government
and even reiterated by it on a query from the Central Govermnent in
January 1970.
If the Central Government did not choose to decide
H
agrunst the respondent then, the second Review Committee of May
(I) (1968]1 S.C.R.111.
(2) [1973] 2 S.C.R. 752.
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532
SUPREME COURT REPORTS
(1978] l S.C.R1970 could not again consider the case of the respondent in the usual
course and under normal circumstances when he was not even 53
years of age after having already got a clearance from the first Review
Committee which was endorsed by the State Government only four
months earlier.
It was open to the Central Government to differ from
the State Government's views.
But it did not.
We must make it
clear that the decision would have been entirely different if we wer0
satisfied that there were exceptional circumstances of any kind to reopen the case of the respondent.
The correct position that emerges from rule 16(3} read with the
. procedural instructions is that the Central Government, after consultation with the State Government, may prematurely retire a civil servant
with three months' previous notice prior to his attaining 50 years or
55 years, as the case may be.
The only exception is of those cases
which had to be examined for the first time after amendment of the rule
substituting 50 years for 55 where even officers, who had cross"<! tl10
age of 50 years, even before reasoning 55, could be for the first time
reviewed.
Once a review has taken place and no decision to retire
on that review bas been ordered by the Central Government. the officer gets a lease in the case of 50 years upto the next barrier at 55 and.
i( be is again cleared at that point, he is free and untrammelled upto 58
which is his usual span of the service career.
This is the normal rule
subject always to exceptional circumstances such as disdosure of fresh
obiectionable grounds with regard to integrity or some other reasonablv
weighty reason.
Under Article 310, Government servants, high ur low. hold service
during the pkasure of the President or the Governor. as the case m"Y
be,, subject to two well-known limitations, namely, that they shall not
be dismissed or removed by an authoritv subordinate to that hv which
they were appointed and secondly, that they shall not be dismissed or
removed or reduced in rank except after an enquirv int•> the char~r·
clearly levelled against them and affordin_g a reasonable opportunity of
being heard in respect of the charges.
We need not refer to the proviso to Article 311 (2) which deals with certain exceptioml cases.
Thus the pleasure doctrine under Article 31 0 is conditioned by
constitutional restrictions under Article 311.
Under Article 309 the
appropriate legislature mav rej1Ulate the recruitment
and
conditions
- of service and until so done, the President or his delegate
and the Governor or hi~ deleC!atc may make rules re2uh1t_in~ the recruitment and conditions of service.
The Act passed by the appropriate
legislature and the rules made under Article '.109 will. 11owcvcr, be subject to the provisions of the Constitt•tion which include Article 311 and
certainly the Fundamental rights.
The pleasure doctrine under Article 310 is in a way unuffendin!dY
resuscitated with appropriate vigour towards the tail-end of th" career
of· a Government &erv.at» under rule 16(3) in
the
oublic
interest.
Compulsory retirement under the service rules is not hv wav of punish··
ment, as understood in service jurisprudence, however. unsavon'ry 'it
J
•
U.P. STATE v. c. M. NIGAM (Goswami, /.)
533
may be otherwise. \During th~ entire tenure of Government servants
A
f'.'Jm the d_ate of temporary or probationary appointment till tcrnlinatton or retJrement, as the case may be, there is an undoubted security
for them 3:gainst dismi,sal, rei::ioval or reduction ~ rank except in the
manner laid down under Article 311(2), read with relevant laws or·
rules made under Article 3 09.
_
·
_
In order to pass the test of constitutionality, rule 16(3) must
B
needs be safeguarded by reasonable procedural guidelines in order that
:here may ·be no scope for arbitrariness or discrimination. That is
~ow rule 16(3), being silent, instructions speak and do.vitative service
1n a vacuous field.
The material procedure under _ the instructions,
as if interwoven in rule 16(3), can on no account be.held invalid or
impermissible.
-,) .
.
· Compulsory retirement under rule 16(3) is a salutary safeguard
in the armoury of the Government for maintenance of the services in
trim and fitness. Rule "16(3) is a constant reminder to the slacker, the -
sluggish and the inefficient, not to sp:ak cf those who may be dishonest or unscrupulous by reputatim•
beyond · redemption.
At a
reasonable point of service a stage is rcac~ed when the __ Government
reserves its undoubted right to have a second look at the officers
whether their retention in employment would be useful in the public
interest.
That is _the role of rule 16(U. Rule 16°(3), with the
instructions, is a warning poster for every Government_ servant to
conduct himself properly,. diligently and efficiently throughout his
service career.
The Government has advanced the time of the first
review.by amendment of rule 16(3). As stated earlier, there are
now two stages in a_ service career, namely, at the age of 50 and 55,
for the Government to take a decision to refurbish, invigorate and
stimulate the Service and with that sole object a decision has to be
fairly. taken well in time under rule 16(3) in accordance with the
published procedure.
· While purity in administration is certainly to be desired,
the
security and morale of the Service have also to be maintained. It is
because of these high considerations that the Government has issued
appropriate and reasonable instructions to guide the authorities
in
passing orders for premature retirenient. The instructions
clearly
~how that "having arrived at an assessment in favour of further continuance in service at the age of 54t years or so, there would ordinarily be no occasion for changing the assessment during the next
three years, so that an annual review would serve little practical pur- -
pose". The principle behind this instructfon is that the sword of
Damocles must not hang over the officer every six months after -he
attains the age of 50 years.
·
·
The learned Solicitor General next submltted that. the High Court
was not right in going behind the order of compulsory retirement and
delving into the files of the Government to see for itself whether the
order could be sustained. We find that the records of service of the
respondent and other papers were produced by. the learned Advocate
General before the High Court without any obiection and without
claiming any privilege with regard to those documents. _ That being
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534
SUPREME COURT REPORTS
(1978] l S.C.R·
the factual position, we are not iuclined to consider whether the course
adopted by the High Court in this case is open to objection.