Patna High Court
Subrat Kumar JenaversusThe Union of India
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
Holding
Rule 1802(a) does not prescribe a mandatory representation, and the executive instruction’s use of "may" is directory, rendering the CAT’s requirement of exhausting representation invalid.
Summary
The petitioner, a senior railway officer, was compulsorily retired under Rule 1802(a) of the Indian Railway Establishment Code after a review committee flagged alleged vigilance issues despite an overall satisfactory performance record. He challenged the retirement before the Central Administrative Tribunal (CAT), which allowed him to file a representation but did not adjudicate the merits. The High Court examined whether the statutory rules required the petitioner to exhaust the representation remedy before approaching the tribunal and whether the retirement order was arbitrary or unsupported by a reasoned evaluation. It held that Rule 1802(a) and related provisions do not mandate a representation, and the executive instruction (RBE No.130/2019) using the word "may" is merely directory. Consequently, the Court quashed the CAT's judgment and remitted the matter back to the tribunal for a fresh merits-based decision, partially allowing the writ petition.
Issues considered
- The applicability of Rule 1802(a) of the Indian Railway Establishment Code to compulsory retirement without a mandatory representation requirement.
- Whether the petitioner was required to exhaust the representation remedy under RBE No.130/2019 before filing the original application before the CAT.
- Whether the retirement order was arbitrary, lacked individualized reasoning, and thus violative of principles of natural justice.
- Whether the CAT erred in granting liberty to file a representation instead of deciding the matter on merits.
Legislation cited
- Administrative Tribunals Act, 1985 — s. 20(1)
Subjects
- Compulsory retirement
- Administrative Tribunal
- Representation remedy
- Public interest
- Rule 1802(a)
- Natural justice
- Service law
- Railway
- Writ petition
- Judicial review
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 7910 of 2024
======================================================
Subrat Kumar Jena Son of Sri Hara Mohan Jena, Resident of Flat No. 405, D
Block, Sai Enclave Apartment, Vijay Singh Yadav Path, P.O.- Khagual, P.S.-
Khagaul, District- Patna, Bihar-801105, permanent resident of- Village-
Balijhati, P.O.- Ramakrishnapur, P.S.- Bhuban, District- Dhenknal, Odisha-
759017, Lastly posted as Deputy Chief Electrical Engineer (Loco), East
Central Railway, Hajipur, Bihar.
... ... Petitioner/s
Versus
1. The Union of India through the Chairman, Railway Board, Ministry of
Railway, Government of India, Rail Bhawan, New Delhi, Pin- 110001.
2. The Secretary, Railway Board, Ministry of Railway, Government of India,
Rail Bhawan, New Delhi, Pin-110001.
3. The Director (Establishment), Railway Board, Ministry of Railway,
Government of India, Rail Bhawan, New Delhi, Pin- 110001.
4. The Member, Traction, Railway Board, Ministry of Railway, Government of
India, Rail Bhawan, New Delhi, Pin-110001.
5. The Member (Staff), Railway Board, Ministry of Railway, Government of
India, Rail Bhawan, New Delhi, Pin- 110001.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Shekhar Singh, Sr. Adv.
Mr. Prasoon Shekhar, Adv.
Mr. Avinash Kr. Singh, Adv.
For the Respondent/s : Dr. K.N. Singh, Sr. Adv. (ASG)
Mr. Subhodh Kr. Jha, Sr. CGC
Mr. Ram Tujabh Singh, CGC
Mr. Shivaditya, Adv.
Mr. Abhinav, Adv
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE PRAVEEN KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 28-04-2026
The present writ petition has been filed against the
judgment dated 22.02.2024, passed by the learned Central
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Administrative Tribunal, Patna Bench, Patna (hereinafter
referred to as the “Ld. CAT”) in OA/051/01130/2019, whereby
and whereunder the original application filed by the petitioner
has been disposed off with liberty to the petitioner herein to file
representation against the order of his compulsory retirement
within three weeks and the Representation Committee has been
directed to examine and pass a reasoned and a speaking order on
the representation of the petitioner within three months.
2. At the outset, it may be relevant to mention here that a
Coordinate Bench of this Court, vide judgment dated 20.07.2024
had allowed the present writ petition and quashed the impugned
orders dated 06.12.2019 and 03.12.2019, challenged in the
aforesaid original application as also had directed to reinstate the
petitioner forthwith while extending all service and monetary
benefits for the entire intervening period. The respondents had
challenged the said judgment dated 20.07.2024, passed in the
present writ petition as also the order dated 13.08.2025 passed in
Civil Review No. 320 of 2024 before the Hon’ble Apex Court,
by filing SLP (C) Nos. 31677-78 of 2025 (converted into Civil
Appeal Nos. 13326-13327 of 2025) and the Hon’ble Apex
Court, by an order dated 03.11.2025 has quashed and set aside
the impugned judgment dated 20.7.2024, passed in CWJC No.
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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7910/2024 and the order dt. 13.8.2025, passed in Civil Review
No. 320/2024 & has remanded the matter back to this Court for
consideration afresh. This is how the present case is before this
Court. It may be relevant to reproduce herein below the relevant
portion of the order dated 03.11.2025, passed by the Hon’ble
Apex Court in Civil Appeal Nos. 13326-13327 of 2025:-
“3. Having heard learned counsel for the parties, we are
of the considered view that the impugned judgment dated
20.07.2024 in CWJC No.7910/2024 and order dated 13-
08-2025 in CR No.320/2024 need to be quashed and set
aside for the reason that no reason stands assigned
therein, while allowing the writ petition preferred by the
instant respondent. As such, we quash and set aside the
impugned judgment dated 20-07-2024 in CWJC
No.7910/2024 titled “Subrat Kumar Jena vs. Union of
India & Ors.” and order dated 13-08-2025 in CR
No.320/2024 in CWJC No.7910/2024 titled “Subrat
Kumar Jena vs. State of Bihar & Anr.” passed by the
High Court of Judicature at Patna and remand the matter
for consideration afresh before the High Court.”
3. The brief facts of the case, according to the petitioner are
that the petitioner was initially appointed in Railway service on
a Group ‘C’ post on 13.6.1989. Subsequently, the petitioner was
inducted in Indian Railway Service of Electrical Engineers
(hereinafter referred to as the “IRSEE”), Group ‘A’ on
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04.03.2004, upon the recommendation made by the Union
Public Service Commission. The petitioner was promoted to the
post of Executive Electrical Engineer on 11.3.2009, to the post
of Senior Divisional Electrical Engineer on 27.12.2013 and
finally to the post of Dy. Chief Electrical Engineer on 10.5.2018
(notionally with effect from 01.01.2016), whereafter the
petitioner was granted selection grade with effect from
01.01.2016, vide order dt. 10.05.2018.
4. The Ld. Senior Counsel for the petitioner has next
referred to the sheets pertaining to periodical review of service
under Rule 1802(a)/1803(a)/1804(a) of Indian Railway
Establishment Code (hereinafter referred to as the “IREC”), Vol-
II 1987 Edition and Railway Board’s letter No. E(P&A)I-
2015/RT-38 dt. 10/12.11.2015 (RBE No. 143/2015), whereby
the services of the petitioner was reviewed by the Zonal
Screening Committee for the period till the year 2018-19 (up to
31.3.2020 i.e. first quarter of 2020) on account of the petitioner
having attained the age of 50 years and he was found fit to be
continued. Accordingly, the file was processed qua the petitioner
and recommendation was made for his continuation in service,
which was approved by the General Manager, vide his note
dated 1.10.2019. Then again, such periodic review under Rule
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1802(a)/1803(a)/1804(a) of IREC, Vol-II, 1987 Edition was
made in the month of September, 2019 and out of 168 officers,
whose services were reviewed, 150 officers were found fit for
continuation in service, however 18 officers were shortlisted for
review by the Review Committee and the petitioner was one
amongst them. Thereafter, the case of the petitioner and others
was placed before the Review Committee, which vide notes
dated 26.9.2019 had noted that performance wise all the said 18
officers including the petitioner have been graded outstanding/
Very Good/ Good and their integrity as reflected in the integrity
column in their APARs also appears to be satisfactory, however
since their vigilance history shows multiple substantiated cases,
which casts a shadow on their integrity, it was observed that the
Review Committee may like to associate PED / Vigilance while
reviewing the services of the said officers. Thereafter, the file
was put up to the CRB for convening Review Meeting,
whereupon as regards the vigilance cases, a note was appended
against the name of the petitioner to the following effect:-
“irregularities in acceptance of open tender, counselling issued
on 17.1.2018”.
5. The Review Committee had then met on 14.11.2019 to
review the services of IRSEE Officers including the petitioner
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and inputs of Principal Executive Director/ Vigilance were taken
into account during the deliberations, whereafter the findings of
the said Review Committee was put before the Railway Board,
comprising of its Chairman and two Members, who undertook
the review by considering the report of internal committee and
the entire service records of the officers including performance
of the Officer as reflected in the APARs for the entire career,
vigilance history of the officers, integrity as reflected in the
APARs, the assessment of PED / vigilance and integrity /
general reputation as ascertained from the officers with whom
he had worked during his entire service period and it was
decided that the petitioner is fit to be retired prematurely
/compulsorily in public interest in keeping with the
Government’s policy of improving efficiency by dispensing with
public servants, who are no longer found useful to the
administration. The said decision dated 19.11.2019 can be found
at running page no. 678 of the brief.
6. Thereafter, an order dated 3.12.2019 was issued under the
signature of Under Secretary, Estt.(s) Railway Board, Ministry
of Railway, Government of India, wherein it has been stated that
the President is of the opinion that it is in the public interest to
do so, hence in exercise of power conferred by Rule 1802(a) of
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the Indian Railway Establishment Code Vol. II, the president
hereby retires Sri J.K. Jena, IRSEE, East Central Railway from
service from the date on which this order is served on him, he
having already attained the age of 50 years on 29.4.2016 and the
President also directs that the petitioner shall be paid a sum
equivalent to the amount of his pay + allowances for a period of
three months calculated at the same rate at which he was
drawing them immediately before his retirement in lieu of the
notice and if he so desires he may represent in writing within
three weeks from the date the order is served on him. A notice
dated 06.12.2019 was then issued under the signature of Deputy
CPO / Gaz., Eastern Central Railway / HJP, wherein it has been
mentioned that in exercise of powers conferred by Rule 1802(a)
of the Indian Railway Establishment Code Vol. II, the President
has decided to relieve Sri S.K. Jena, IRSEE, currently Deputy
CEE/LOCO/ECR/HQ/HJP from service in public interest from
the date the order to this effect is served on him. It was further
mentioned in the said notice dated 6.12.2019 that the said order
was attempted to be served upon the petitioner in his office on
6.12.2019, however the officer was not found in his office. The
petitioner appears to have received the said order dated
3.12.2019 on 10.12.2019 under protest with a noting made by
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him to the effect that the said order shall be challenged under
due process of law at appropriate forum.
7. The petitioner had then filed an original application
bearing OA/051/01130/2019 before the Ld. CAT, challenging
the order of compulsory retirement dated 3.12.2019 as also the
notice dated 6.12.2019 on the ground that the analysis of the
petitioner’s service record by the Review Committee has not
been done objectively, no APARs gradings have been examined,
no adverse materials have been identified, no reasons have been
recorded to the effect that the petitioner is not fit to be continued
in service, no bonafide opinion has been recorded by the
appointing authority under Rule 1802(a), RBE No. 130 / 2019
has not been complied with, the proceedings of the Review
Committee contains no individualised reasoning for selecting
three officers to be compulsorily retired, there is non-application
of mind and lastly, the conclusion that the said three officers
including the petitioner should be compulsorily retired is not
supported by any comparative or distinct evaluation.
8. The respondents had filed a written statement before the
Ld. CAT in the aforesaid original application filed by the
petitioner, wherein a preliminary objection was raised with
regard to the maintainability of the original application in lieu of
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RBE No. 130 /2019, which postulates that an officer who has
been served with a notice/order of permanent retirement, may
submit a representation within three weeks from the date of
service of such notice/order and then the final order is required
to be passed by the authority superior to the authority which
issued the order of premature retirement, only after obtaining
approval of the Ministry of Railways. In case the order of
premature retirement has been issued by the President, the final
order on the representation shall be passed by the Minister-in-
charge of the Ministry/ Department concerned. Hence, it was
contended by the Respondents before the Ld. CAT that since
there is a specific remedy of filing representation against notice /
order relating to premature retirement, the petitioner should first
exhaust this remedy. Reference was made to Rule 1802(a)/
1803(a)/ 1804(a) of Indian Railway Establishment Code Vol. II,
1987 Edition and OMs dated 21.3.2014 and 11.9.2015 as also to
RBE No. 143/2015 dated 10/12.11.2015. It was also stated that
compulsory retirement does not amount to dismissal or removal
from service within the meaning of Article 311 of the
Constitution of India and it is neither punishment nor is visited
with loss of retiral benefits nor it casts stigma and the officer
would be entitled to pension that he has actually earned, as such
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there is no diminution of the accrued benefits. It was also
contended by the respondents that if the appropriate authority
finds in a bonafide manner that an officer is required to be
compulsory retired in public interest, the correctness thereof
cannot be challenged before the Courts. Reference was made to
a judgment rendered by the Hon’ble Apex in the case of Union
of India vs. J.N. Sinha, reported in 1971 (1) SCR 791, wherein
it has been held that the order retiring a Government servant
compulsorily can only be challenged on the ground that either
the order is arbitrary or it is not in public interest, however no
other ground is available. Reference was also made to a
judgment rendered by the Hon’ble Apex Court in the case of
Baikuntha Nath Das & Anr. vs. Chief District Medical Officer,
Baripada & Anr., reported in (1992) 2 SCC 299. It was also
contended that there was consistent decline in the performance
of the petitioner and remark was made against him in a vigilance
case regarding irregularity in acceptance of open tender for
which he was counselled on 17.1.2018, hence there is nothing
wrong in the order by which the petitioner has been compulsory
retired in public interest.
9. The Ld. CAT, after hearing the parties, has by the
impugned judgment dated 22.2.2024, passed in OA/051/01130/
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2019, disposed off the original application filed by the petitioner
herein with liberty to him to file a representation against the
order of his compulsory retirement within three weeks and the
Representation Committee has been directed to examine and
pass a reasoned and a speaking order on the representation of the
petitioner within three months.
10. The Ld. Senior Counsel for the petitioner has submitted
that the Ld. CAT has committed a grave error by holding that the
petitioner has filed the original application without exhausting
the remedy of filing representation, available in terms of RBE
No. 130/2019 and accordingly has erroneously disposed off the
original application filed by the petitioner granting him liberty to
file representation against the order of his compulsory
retirement within three weeks, inasmuch as RBE No. 130/2019,
dated 08.08.2019, containing the salient points of the various
instructions on the subject relating to retiring a Railway servant
in public interest before the normal date of his retirement,
postulates that a Railway Employee, who has been served with a
notice/order of premature retirement, may submit a
representation within three weeks from the date of service of
such notice/order. Thus, it is submitted that the word used in
RBE No. 130/2019 is “may”, making the said remedy of filing
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representation purely directory and not mandatory. It is further
submitted that the IREC Code Vol.-II, especially Rule 1802(a)
thereof, pertaining to the provisions regarding compulsory
retirement does not contain any statutory requirement of filing a
representation. It is contended that it is a well-settled law that
Executive instructions (RBE No. 130 /2019) cannot override a
statutory rule i.e. Rule 1802(a), hence there is no statutory
prescription provided for under the IREC Code Vol. II (Chapter-
XVIII) for filing a representation, thus admittedly no alternative
statutory remedy is available to the petitioner under the Rules,
thus the Ld. CAT has committed a grave error by relegating the
petitioner to the remedy of filing a representation before the
Respondents, against the order/notice of compulsory retirement.
11. At this juncture, reference has been made to Section 20 of
the Administrative Tribunals Act, 1985 to submit that the same
also postulates that a Tribunal shall not ordinarily admit an
application unless it is satisfied that the applicant had availed of
all the remedies available to him under the relevant service Rule
with regard to redressal of grievances. Thus, it is submitted that
firstly, the relevant service Rules do not provide for any
alternative statutory remedy by way of filing representation
against the notice/order of compulsory retirement and secondly,
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the Ld. CAT retains discretion to entertain an original
application in such cases where other remedies have not been
exhausted. In the instant case, the Ld. CAT had exercised its
discretion when it had issued notice to the respondents in the
aforesaid original application on 10.12.2019 and had heard the
matter at length for a period spanning over four years, hence the
Ld. CAT ought not to have relegated the petitioner to the remedy
of filing a representation, thus it is submitted that on this score
alone, the impugned judgment dated 22.2.2024, passed by the
Ld. CAT is fit to be set aside. It is also submitted that relegating
the petitioner to the remedy of filing a representation at this
stage would be an empty formality, devoid of remedial value, for
the following reasons:-
“a. the authority deciding the representation is the very
same authority that has passed the order of compulsory
retirement;
b. the respondents have already filed detailed counter
affidavits, expanding and altering grounds at different
stages, including assertions in paras 23-25 of the Written
Statement branding the Petitioner as "deadwood," thereby
creating a risk of post facto rationalization.
c. RBE No. 130/2019 (paras 6(a) & 6(b)) indicates that a
representation is meaningful only if the employee has
access to the material, data and reasoning that weighed
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with the Review Committee and the Competent Authority.
d. Para 6(b) contemplates representation based on "new
facts or aspects not hitherto taken into consideration."
Premature retirement orders, however, are communicated
in a standard, innocuous form that discloses no reasons.
The decision's foundation lies entirely in the internal
notings & committee deliberations are never supplied to the
employee.
e. Without access to these materials, it is impossible for
the employee to demonstrate "new facts not hitherto
considered." The representation becomes structurally
incapable of addressing undisclosed reasons. One cannot
rebut grounds that are not communicated. Such a remedy
is illusory and cannot be treated as an efficacious or
alternative remedy so as to bar writ jurisdiction.
f. Para 6(h) of RBE 130/2019 expressly states that when
a court grants a stay, the representation "is not to be
considered by the administration nor set up before the
Committee until disposal of the court case." This shows
that the rule-makers themselves treated representation as
non-essential within the framework of FR 56(j)/Rule
1802(a) and once judicial proceedings commence, the
representation mechanism becomes inoperative.”
12. On merits, the Ld. Senior Counsel for the petitioner has
submitted that an order of compulsory retirement under Rule
1802(a) must withstand scrutiny on the touchstone of public
interest, supported by a comprehensive and objective evaluation
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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of the entire service record. The Review Committee has listed
four criteria’s, i.e. performance as reflected in the APARs of the
entire career, vigilance history, integrity, and general reputation,
however no analysis correlating these criteria to the Petitioner
was undertaken. No APAR gradings were examined, no adverse
material was identified and no reasons were recorded. The
Committees merely reproduced headings such as
"Performance", "Vigilance History", and "Integrity", without
demonstrating how those parameters were applied in the
Petitioner's case, thereby failing to satisfy the requirement of a
reasoned and an individualized assessment.
13. The Ld. Sr. Counsel for the petitioner while assailing the
order of compulsory retirement dated 3.12.2019 submits that the
same is vitiated on the following grounds:-
“1. Absence of a bona fide, recorded opinion under Rule
1802(a) - The Appointing Authority was required to form
and record a genuine opinion that compulsory retirement
was in public interest. The review file, however, contains
only cursory endorsements without any recorded bonafide
opinion. This omission constitutes a jurisdictional defect.
2. Non-compliance with the prescribed review procedure:
a. The Zonal Screening Committee's positive
recommendation dated 01.10.2019 finding the
Petitioner fit to continue was discarded without any
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fresh adverse material. A "subsequent review" was
initiated barely two months later contrary to RBE
instructions, which permit such review only upon
emergence of exceptional circumstances.
b. Assertions that the Petitioner had "multiple
substantiated vigilance cases" are contradicted by the
vigilance history card, which contains no such
substantiated case. No particulars were supplied in the
original review file and later reliance was made on
documents not forming part of the file.
c. The Review Committee recommended retirement of
three officers collectively without individualised
reasoning or evaluation of complete service records,
contrary to RB instruction dated 15.11.1979 and RBE
130/2019.
3. Criteria for review of Services has been considered in
RBE No. 130/2019. Clause 4(c) provides that no
employee should ordinarily be retired where employee
has been promoted to a higher post during 5-year period
and his/her service in the highest post has been found
satisfactory. It is an admitted case that for the year 2016-
17 the Petitioner has been graded "Good", for the year
2017-18 the Petitioner has been graded "Outstanding", for
the year 2018-19 the Petitioner has been graded
"Outstanding" and for the year 2020 the Petitioner has
been graded "Outstanding".
4. The authorities have isolated a single "Average" APAR
(2015-16) while ignoring subsequent improved gradings
and the Petitioner's promotion to Selection Grade w.e.f.
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01.01.2016 contrary to Para-5(j) and Para-4(c)(1) of RBE
No. 130/2019.
5. A lone average entry cannot sustain compulsory
retirement where the overall record after promotion is
satisfactory. The point system for the last five years places
the Petitioner above the retention threshold.
6. The Petitioner was not paid full three months' pay and
allowances (shortfall of 9 days), further vitiating the
impugned order.
7. The Committee reviewed 168 officers, shortlisted 18,
and compulsorily retired 3, including the Petitioner. Yet,
the proceedings contain no individualized reasoning for
selecting these 3 officers. Thus, the decision is arbitrary,
mechanical and without any application of mind.
8. The conclusion that three officers should be
compulsorily retired is unsupported by any comparative
or distinct evaluation, rendering the decision arbitrary.
9. The Order dated 13.08.2025 reinforces that the
Petitioner's service record was never analysed at all,
thereby vitiating the Committee's report and the
consequent retirement order.”
14. The Ld. Senior Counsel for the petitioner has relied on a
judgment rendered by the Hon’ble Apex Court in the case of
Baikuntha Nath Das & Anr. vs. Chief District Medical Officer,
Baripada & Anr., reported in (1992) 2 SCC 299 to contend that
the Hon’ble Apex Court has in paragraph No. 34 summarised
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the principles governing the cases of compulsory retirement,
paragraph No. 34 whereof is reproduced herein below:-
“34(i). An order of compulsory retirement is not a
punishment. It implies no stigma nor any suggestion of
misbehavior.
(ii). The order has to be passed by the government on
forming the opinion that it is in the public interest to
retire a government servant compulsorily. The order is
passed on the subjective satisfaction of the government.
(iii). Principles of natural justice have no place in the
context of an order of compulsory retirement. This does
not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine
the matter as an appellate court, they may interfere if they
are satisfied that the order is passed (a) mala fide or (b)
that it is based on no evidence or (c) that it is arbitrary —
in the sense that no reasonable person would form the
requisite opinion on the given material; in short, if it is
found to be a perverse order.
(iv). The government (or the Review Committee, as the
case may be) shall have to consider the entire record of
service before taking a decision in the matter — of course
attaching more importance to record of and performance
during the later years. The record to be so considered
would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
government servant is promoted to a higher post
notwithstanding the adverse remarks, such remarks lose
their sting, more so, if the promotion is based upon merit
(selection) and not upon seniority.
(v). An order of compulsory retirement is not liable to be
quashed by a Court merely on the showing that while
passing it uncommunicated adverse remarks were also
taken into consideration. That circumstance by itself
cannot be a basis for interference.”
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15. The Ld. Senior Counsel for the petitioner has also relied
upon the following judgments rendered by the Hon’ble Apex
Court:-
(i) The Registrar, High Court of Madras vs. R. Rajiah,
reported in (1988) 3 SCC 211;
(ii) SMT. S.R. Venkataraman vs. Union of India & Anr.,
reported in (1979) 2 SCC 491;
(iii) Baldev Raj Chadha vs. Union of India & Others,
reported in (1980) 4 SCC 321;
(iv) Baldev Raj, Ex-Constable vs. State of Punjab &
Others, reported in 1984 (Supp) SCC 221.
16. Per contra, the learned Additional Solicitor General of
India appearing for the Respondents has submitted, by referring
to RBE No. 130 / 2019 that the petitioner was first required to
exhaust the alternative remedy by way of filing a representation
against the notice / order of compulsory retirement, hence since
the petitioner has not exhausted the said alternative remedy
available to him, the original application filed by the petitioner
before the Ld. CAT was / is not maintainable. Reference has also
been made to Rule 1805 of the Indian Railway Establishment
Code Vol. II to buttress the stand being taken by the
Respondents. It is further submitted that despite the Ld. CAT
having given opportunity to the petitioner, by the impugned
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judgment dated 22.2.2024, to file a representation before the
Respondents, the petitioner has directly filed the present writ
petition, challenging the judgment of the Ld. CAT dated
22.2.2024 as also the order of his premature retirement. It is
stated that on perusal of file bearing No. E(O)I/2019/SR-10-
P/04, dealing with premature retirement of Group A officers,
who would be attaining 50 years of age by March, 2020 and
those who have already attained 50 years of age, it is evident
that initially review of 168 officers was carried out by an
Internal committee, headed by Secretary/Railway Board, as
approved by the CRB/ Railway Board, however the said Internal
committee found 150 candidates fit for continuance in service
while it had shortlisted 18 officers including the petitioner for
review by the review committee. The Internal Committee
undertook scrutiny based on performance of the officer as
reflected in the APARs of the entire career, while giving special
attention to the performance during the last 5 years (i.e., upto
APAR year 2017-18), vigilance history, integrity as mentioned
in the APARs, the assessment of PED/Vigilance and integrity
and general reputation as ascertained from the officers he has
worked with/under, during his entire service period. The review
committee had met on 14.11.2019 and vide minutes dt.
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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19.11.2019 (Annexure R/5), the review committee found three
officers including the petitioner fit to be retired compulsorily in
public interest, in keeping with the Government’s policy of
improving efficiency by dispensing with public servants who are
no longer found useful to the administration. The aforesaid
minutes of the review Committee was approved by the Hon'ble
Minister of Railways on behalf of the President.
17. It is further submitted by the Ld. Additional Solicitor
General of India appearing for the Respondents that the
performance of the petitioner during the immediate past i.e.
from the year 2014 up to 2017 has not been up to the mark,
since there are several adverse remarks, which are reproduced
herein below:-
Year Grading Remarks
2014 Good In APAR, there are remarks like 'quality of
work is manageable'. In his APAR, 6 of his
attributes (attitude towards work; ability to
guide, inspire and motivate; interpersonal
relations, team work & coordination ability;
safety consciousness; innovation new
technology progression and cos &
expenditure control) have been graded as
‘Average’ and rest of the attributes have been
graded as 'Good'. He never refuted such
remarks. Further, while disposing off his
representation against the said APAR
grading, it has been recorded that CEE/Con.
had counselled Shri Jena on several
occasions over phone. There were also
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charges of misbehavior on the part of Shri
Jena and in that connection his explanation
was also called by CEE/Con. on 07.03.2014.
2015 Good In APAR, there are remarks like 'progress of
work is poor', 'average knowledge and not
following written instructions to attend work
at Bhubaneswar for 02 days in a week and
quality of output is not satisfactory. Further,
04 of his attributes (ability to guide, inspire
and motivate; inter-personal relations,
teamwork and co-ordination ability;
approach customers; and cost & expenditure
control) have been graded as 'Average' and
rest of the attributes have been graded as
'Good'. Verbal warning issued several times
and counselled in Chamber.
2016 Average In APAR, there are remarks like 'level of
Knowledge is commensurate to the post he is
occupying', 'competency is substituted by
complacency, there is scope of improvement
(in quality of output), he cannot get along
with the colleagues, full of recklessness,
adverse remarks communicated, lacking
decency, he has knowledge but did not put up
his best efforts. In his APAR, 08 of his
attributes (attitude towards work: decision
making ability and judgment; ability to
guide, inspire and motivate; inter-personal
relations, team work and co-safety ordination
ability; consciousness; innovation-new
technology progression; human resource
development; cost and expenditure control)
have been graded as 'Average' and rest of
attributes have been graded as 'Good'.
2017 Good In APAR, there are remarks like I agree in
general except that cable indent for projects
placed very late and that too for wrong
specifications i.e. PVC instead of XL PE
resulting in delay. Material planning for
actual work involved in NGP-KVP not done
correctly. Power line crossing clearances
sent to CRS were found different for many
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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locations during joint check by Mr. Jena and
Sr. DEE/G/NGP. Mr. Jena has not filled short
fall column para 3 at page no.3 and filled NA
in para 5', He has been given
remarks-'Average’. He can improve
'Average’. He needs to involve in work
against task relevant knowledge and quality
of output'. In his APAR, 05 of his attributes
(attitude towards work; initiative;
innovation-new technology progression;
environment improvement; & aptitude
towards research and development) have
been graded as 'Average' and rest of the
attributes have been graded as 'Good'. In
general assessment, it has been
mentioned-'He should concentrate in work
with a view to complete task in time and with
good quality'.
Thus, it is submitted that the Review Committee,
considering the performance of the petitioner came to the
conclusion that his continuance in service is no longer useful for
the administration, as such he is fit to be retired compulsorily in
public interest, in keeping with the Government’s policy of
improving efficiency by dispensing with public servants who are
no longer found useful to the administration. It is next submitted
that the petitioner was prematurely retired under Rule 1802(a) of
the Indian Railway Establishment Code, Volume-II, on the basis
of his Annual Performance Appraisal Reports (APARs) for the
years 2013-2014, 2014-2015, 2015-2016 and 2016-2017.
18. It is further submitted by the Ld. Additional Solicitor
General of India appearing for the Respondents that as far as
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annual performance assessment report (hereinafter referred to as
the “APAR”) of the petitioner for the period 2013-14 is
concerned, it has been assessed to be good, however the
petitioner had filed a representation dated 23.3.2015 for
upgrading his overall grading from good to outstanding but the
same was rejected, vide letter dated 16.6.2015. As far as the
APAR for the period 2014-15 is concerned, the same was also
assessed to be good and again the petitioner had filed a
representation for upgrading his overall grading from good to
outstanding, however the same was rejected, vide letter dated
8.10.2015. During this period, verbal warning was issued
several times and the petitioner was counselled in the chamber.
As far as the APAR for the period 2015-16 is concerned, the
same had been assessed as “average” against which the
petitioner had filed a representation dated 12.9.2016 for up-
gradation of APAR for the period 2015-16, however the same
was rejected by the accepting authority and average grading was
directed to be retained, which was communicated to the
petitioner, vide letter dated 22.3.2017. As far as the APAR for
the period 2016-17 is concerned, the same had been assessed to
be good, while the petitioner’s overall grading as per APAR for
the period 2017-18 had been assessed as 8.95.
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19. Thus, it is submitted by the Ld. Additional Solicitor
General of India appearing for the Respondents that the APAR
dossiers and vigilance history of the petitioner has been
minutely scrutinized by the Review Committee and the minutes
of the Review Committee has been approved by the Hon’ble
Minister of Railways on behalf of the President. It is stated that
the entire service records of the petitioner, with reference to his
performance, have been duly considered and though his
integrity, reflected in the integrity column of his APARs appears
to be satisfactory, however his performance during the
immediate past i.e. from the year 2014 to 2017 has not been up
to the mark, inasmuch as there are several adverse remarks.
Reference has also been made by the Ld. Additional Solicitor
General to the judgment rendered by the Hon’ble Apex Court in
the case of Bakhuntha Nath Das (supra) and it is submitted that
the principles laid down in paragraph no. 34 of the said
judgment rendered by the Hon’ble Apex Court, in fact buttress
the stand of the Respondents since neither the order of
compulsory retirement has been passed in a malafide manner
nor it is based on no evidence nor the same is arbitrary, hence no
interference is required with the same.
20. We have heard the learned counsel for the parties and
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perused the materials on record. At the outset, we would
reproduce Clause 6 (a) (b) and (h) of the salient points
consolidated together and appended to RBE No. 130 /2019,
dated 08.08.2019, herein below:-
“6(a). A Railway employee, who has been served with a
notice/order of premature retirement, may submit a
representation within 3 weeks from the date of service or
such notice/order.
(b). On receipt of the representation, the administration
would examine the same to see if it contains any new facts
or any aspect not hitherto taken into consideration.
Examination to be completed within 2 weeks from the
date of receipt. Thereafter, it should be placed before the
appropriate Committee for consideration.
(h). In case the employee gets a stay order from court,
representation is not to be considered by the
administration, nor sent up to the Committee until
disposal of the court case. Thereafter, the cases may be
examined taking into account any material of substantive
nature that may feature in court's judgement.”
21. It would also be relevant to reproduce Rule 1802(a),
1803(a), 1804(a) and 1805(1) of the Indian Railway
Establishment Code, Vol. II, herein below:-
“1802(a). Notwithstanding anything contained in this
Rule, the appointing authority shall if is of the opinion
that it is in the public interest to do so, have the absolute
right to retire any Government servant by giving him
notice of not less man 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 or temporary capacity and had entered
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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.
(Authority:- Railway Board's letter No. E(P&A)1-
88/JCM/NC-2 dated 6.7.89)
(b)(1). Any railway servant may by giving notice of not
less than three months in writing to the appropriate
authority, retire from service after he has attained the age
of fifty years if he is in Group 'A' or Group ‘B’ service or
post (and had entered Government service before
attaining the age of 35 years) and in all other cases after
he has attained the age of 55 years.
1803(a). Notwithstanding anything contained in these
rules, or any other rule or order for the time being in
force, the appointing authority shall, if it is of the opinion
that it is in public interest to do so, have the absolute
right to retire a railway servant governed by any pension
Rules after he has completed thirty years service
qualifying for pension after giving a notice in writing in
this behalf to the railway servant at least three months
before the date on which he is required to retire or three
months pay and allowances in lieu of such notice.
1804(a). Notwithstanding anything contained in Clause
(a) of Rule 1802, the appointing authority shall, if it is of
the opinion that it is in public interest to do so, have the
absolute right to retire a railway servant in Group ‘C’
service or post who is not governed by any pension Rules
after he has completed thirty years service by giving him
notice of not less than three months in writing or three
months pay and allowances in lieu of such notice.
1805(1). If on a review of the case referred to in Rule
1802(a), 1803(a) and 1804(a) either on representation
from the railway servant retired prematurely or otherwise,
it is decided to reinstate the railway servant in service the
authority ordering reinstatement may regulate the
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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intervening period between the date of premature
retirement and the reinstatement as duty or as leave of the
kind due and admissible, including extra-ordinary leave,
or by treating it as depending upon the facts and
circumstances of the case.
22. A bare perusal of Rule 1802(a), 1803(a), 1804(a) and
1805(1) would show that the same provides for premature
retirement of a Government servant if the appointing authority is
of the opinion that it is in the public interest to do so by giving
him notice not less than three months in writing and three
months’ pay and allowances in lieu of such notice, however the
same does not postulate filing of representation against an order
of compulsory retirement. As far as Rule 1805(1) of the Indian
Railway Establishment Code is concerned, the same only
provides that the authority ordering reinstatement of a railway
servant retired prematurely or otherwise may regulate the
intervening period between the date of premature retirement and
the reinstatement as duty or as leave of the kind due and
admissible, including extra-ordinary leave, or by treating it as
depending upon the facts and circumstances of the case,
however the same nowhere mandates filing of a representation
against an order of compulsory retirement by such a
Government servant. Thus, the argument advanced by the Ld.
Additional Solicitor General on this score is not tenable in the
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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eyes of law, inasmuch as the provision contained in Rule
1805(1) of the Indian Railway Establishment Code nowhere
postulates a statutory remedy of preferring a representation
against notice / order of premature retirement under Rule
1802(a), 1803(a) & 1804(a) of the Indian Railway Establishment
Code, Vol. II. As far as RBE No. 130/2019 is concerned, the
same is first of all an executive instruction, which cannot in any
view of the matter override statutory Rules i.e. Indian Railway
Establishment Code, which in any view of the matter does not
provide for filing of a representation against notice / order of
compulsory retirement, apart from the fact that the expression
used thereunder is “may submit a representation” which makes
the said remedy purely directory and not mandatory. In this
regard, reference be had to a judgment rendered by the Hon’ble
Apex Court in the case of Bachahan Devi & Anr. vs. Nagar
Nigan, Gorakhpur & Anr., reported in (2008) 12 SCC 372,
paragraph no. 21 whereof is reproduced herein below:-
“21. The ultimate rule in construing auxiliary verbs like
“may” and “shall” is to discover the legislative intent;
and the use of the words “may” and “shall” is not
decisive of its discretion or mandates. The use of the
words “may” and “shall” may help the courts in
ascertaining the legislative intent without giving to either
a controlling or a determinating effect. The courts have
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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further to consider the subject-matter, the purpose of the
provisions, the object intended to be secured by the
statute which is of prime importance, as also the actual
words employed.”
23. We may also gainfully refer to yet another judgment
rendered by the Hon’ble Apex Court in the case of Vidarbha
Industries Power Ltd. v. Axis Bank Ltd., reported in (2022) 8
SCC 352, paragraph nos. 62 to 64 whereof are reproduced
herein below:-
“62. As pointed out by Mr Gupta, legislature has, in its
wisdom, chosen to use the expression “may” in Section
7(5)(a) IBC. When an adjudicating authority (NCLT) is
satisfied that a default has occurred and the application
of a financial creditor is complete and there are no
disciplinary proceedings against proposed resolution
professional, it may by order admit the application.
Legislative intent is construed in accordance with the
language used in the statute.
63. The meaning and intention of Section 7(5)(a) IBC is
to be ascertained from the phraseology of the provision in
the context of the nature and design of the IBC. This
Court would have to consider the effect of the provision
being construed as directory or discretionary.
64. Ordinarily the word “may” is directory. The
expression “may admit” confers discretion to admit. In
contrast, the use of the word “shall” postulates a
mandatory requirement. The use of the word “shall”
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raises a presumption that a provision is imperative.
However, it is well settled that the prima facie
presumption about the provision being imperative may be
rebutted by other considerations such as the scope of the
enactment and the consequences flowing from the
construction.
24. In fact, Section 20(1) of the Administrative Tribunal Act,
1985 also reserves discretion with the Ld. CAT in exceptional
circumstances to admit an application where an alternative
remedy exists and in the present case, the Ld. CAT while
exercising the said discretion was pleased to issue notice to the
respondents by an order dated 10.12.2019. Thus, we find that the
Ld. CAT while passing the impugned judgment dt. 22.2.2024
has erred by holding that the petitioner has filed the original
application without exhausting the remedy of representation and
consequently, has wrongly granted liberty to the petitioner to file
representation against the order of his compulsory retirement
within three weeks, instead of adjudicating the matter on merits.
25. The question, therefore, as to whether the order dated
3.12.2019, issued by the Under Secretary, Estt.(s) Railway
Board, Ministry of Railway, Govt. of India, whereby the
petitioner has been retired from service, in exercise of power
conferred by Rule 1802(a) of the Indian Railway Establishment
Code Vol. II, and the notice dt. 06.12.2019, issued by the Deputy
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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CPO/Gaz., Eastern Central Railway/HJP, wherein it has been
mentioned that the President has decided to relieve the petitioner
from service, are supported by any comparative or distinct
evaluation, whether the analysis of the petitioner’s service
record by the Review Committee has been done objectively and
whether the said orders are sustainable in the eyes of law are
required to be investigated and adjudicated by the Ld. CAT.
Thus, we find it necessary to remit the matter back to the
Tribunal for recording its findings on these facts as the same
would form the foundation of the exercise of power or otherwise
for upholding or setting aside of the said orders retiring the
petitioner prematurely. We, accordingly, partly allow this writ
petition and quash the impugned judgment dated 22.02.2024,
passed by the learned Central Administrative Tribunal, Patna
Bench, Patna in OA/051/01130/2019 and remit the matter back
to the Tribunal to take a decision afresh on merits.
26. The Tribunal shall decide all the issues that have been
referred to in the argument of the respective parties on the basis
of the material available on record or such other material that
may be made available to the Tribunal. In view of the fact that
the pleadings are complete in the original application, filed by
the petitioner before the Ld. CAT i.e. OA/051/01130/2019, we
Patna High Court CWJC No.7910 of 2024 dt.28-04-2026
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request the Ld. CAT to dispose off the said OA/051/01130/2019
within a period of three months from today, considering the fact
that the impugned notice / order of compulsory retirement is of
the year, 2019. In order to facilitate prompt disposal of the said
original application filed by the petitioner, we deem it fit and
proper to direct the parties to appear before the Ld. CAT through
their counsel on 6th of May 2026, on which day the said
OA/051/01130/2019 shall be listed before an appropriate Bench.
27. Accordingly, the present writ petition stands partly
allowed to the aforesaid extent.
(Mohit Kumar Shah, J)
(Praveen Kumar, J)
Ajay/-
AFR/NAFR AFR
CAV DATE 13.01.2026
Uploading Date 28.04.2026
Transmission Date NA
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