C.D. AILAWADIversusUNION OF INDIA & ORS.

                               C.D. AILAWADI
                                                                                    A
                                      v.
                           UNION OF INDIA & ORS.

                                  MARCH 1, 1990

               [RANGANATH MISRA, M.M. PUNCHHI AND                                   B
                       S.C. AGRAWAL, JJ.]

.•        Civil Services-Fundamental Rules: Fundame1t,lai'Rules 56(j)(i)
      -Compulsory retirement-Object of rule-Assai/Mii'Qf of order-
      Grounds for-Order retiring appellant in public interest-Validity of.

             In a Writ Petition rded before this Court, the petitioner assailed     c
      the order of his compulsory retirement from service made under rule
      56(j)(i) of the Fundamental Rules. The petitioner contended that he was
      efficient, had clear and unblemished record of service and his character
      roll entries were excellent, and since no review has been made six
      months before he attained the age of 50 or completed thirty years of          D
      service nor he had been retired on the basis of review, he was entitled to
      continue upto the normal retirement age of 58.

            Ou behalf of the respondents, it was contended that the order of
      retirement was made in public interest after review and that the
      Committee bad concluded after reviewing complete record of service            E
      and considering the quality of work on the whole, that the petitioner
      was not fit to be retained in public interest.

            Dismissing the Writ Petition, this Court,
··~
            HELD: I. I Compulsory retirement under rule 56(j)(i) is not a           F
      punishment as it does not take away any of the-past benefits. Chopping
      off the dead wood is one of the important considerations for invoking
      rule 56(j)(i) of the Fundamental Rules. [786G I

            1.2 An aggrieved civil servant can cbollenge an order of
      compulsory retirement on the ground (i) that the requisite opinion has        G
      not been formed; or (ii) that the decision is based on collateral grounds;
      or (iii) that it is an arbitrary decision. If the civil servaiit is able to
      establish that the order suffered from any of these infirmities, the Court
      has jurisdiction to quash the same. [786F-G I

            Union of India v. Col. J.N. Sinha & Anr., [1971] 1 SCR 791,             H
      referred to.
                                          783
    784                   SUPREME COURT REPORTS             I 1990) 1 S.C.R.

A         In the instant case, on the basis of the service record, the Commit-
    tee formed the requisite opinion that the petitioner had ceased to be
    useful and, therefore, should be retired prematurely. The petitioner has
    not placed any satisfactory material to prove that the decision was
    based on collateral grounds. Once the opinion is reached on the basis of
    materials on record, the order cannot be treated to be arbitrary. The
B   service record of more than five years shows that the higher officers
    under whom the petitioner had worked were different and different sets
    of reviewing officers had also made the entries. Therefore, the replirts
    must be taken to have reflected an appropriate and objective assess-
    ment of the performance of the petitioner. [786H; 787A-BJ


c         ORIGINAL JURISDICTION: Writ Petition No. 58 of 1983.


          (Under Article 32 of the Constitution of India)

          R.K. Garg and D.K. Garg for the Petitioner..
D
          V. C. Mahajan and L.K. Gupta for the Respondents.

          RANGANATH MISRA, J. In this application under Art. 32 of
    the Constitution, petitioner assails the order dated 5th September,          '·
    1975, of his compulsory retirement from service with effect from 5th of
E   December, 1975, made under rule 56(j)(i) of the Fundamental Rules.
    The impugned order    ranthus:

                 "WHEREAS the Director of Audit, Defence Services, New
                Delhi (appropriate authority) is of the opinion that it is in
                the public interest to do so,
F
                     NOW, THEREFORE, in exercise of the powers conferred
                by clause (j)(i) of rule 56 of the Fundamental Rules, the
                Director of Defence Services (appropriate authority)
                hereby gives notice to Shri C.D. Ailawadi, Audit Officer,
                Defence Services that he, having already attained the age
G               of 50 years on the 22nd November, 1969, shall retire from
                service with effect from the forenoon of the 4th of
                December, 1975, or from the date of expiry of three
                months computed from the date of the service of this notice
                on him, whichever is later."

H         The petitioner has pleaded that he was efficient and had risen
                           C.D. AILAWADI v. U.0.1. [MISRA, J.]              785

   \'r    from the rank of a Clerk to the post of Audit Officer in which he was
          confirmed with effect from 3.12.1968. According to him, he had clear A
          and unblemished record of service. He had held independent charge of
          the senior post of Deputy Director of Audit and had been paid an
          additional amount of Rs.100 per month for the period. He also alleged
          that his character roll entries were excellent. According to him, it was
          the obligation of the appropriate authority to review the petitioner's B
          case six months before he attained the age of 50 or completed thirty
          years of service. Since no such review had been made or on the basis of
          review petitioner had not been retired, he was entitled to continue
          upto the age of 58, which is the normal age of retirement. According to
          him, all cases of premature compulsory retirement made during the
          emergency were reviewed in terms of the Government circular of 10th
          of August, 1978, but the representations made by the petitioner for the  c
          benefit of review in terms of the said circular were not heeded to and
__..I..   the petitioner was, therefore, obliged to file the present petition.

                In the return to the rule nisi by the Director of Audit, Defence
          Services, it has been contended that the order of retirement was made    D
          in public interest after review of the petitioner's case. It has been
          stated in the said affidavit:

                     "In the case of Shri Ailawadi the Committee after review
                     of his complete record of service observed that his earlier
                     services were of a very marginal nature and he earned some    E
                     adverse reports later. The Committee, therefore, consider-

~                    ing the quality of his work on .the whole, concluded that
                     Shri Ailawadi was not fit to be retained in the public
                     interest. The Appropriate Authority felt that his reports
                     for the last few years were poor, colourless and indicative
   ')                of steady deterioration attributed to family problems and     F
                     to his state of health. The Appropriate Authority also took
                     into account his latest report for the year 1974-75 which
                     assessed him as 'barely competent to hold an officer's
                     post'."

                The character roll entries have also been placed before the Court G
          at the time of hearing of this writ petition. We have checked the same
___....
          and in particular those for five years prior to the date of the impugned
          order. In 1969-70, his ability was considered to be average. His thought
          and expression were said to be vague and rambling. Deterioration of
          his physical health was taken note of and the general assessment was
          that he was an average officer. In the following year the reviewing H
    786                   SUPREME COURT REPORTS              [ 1990] 1 S.C.R.

    authority after treating him to be an average officer endorsed the
A   following direction:

                "I am inclined to think that the entire report may be
                communicated to him and he must be told so to exert
                himself that he earns a more commendable report next
B               year."

    This appears to have been shown to him and his signature had been
    taken on 3.8.1971.

         During the years 1972-73, 1973-74 and 1974-75, he was branded as
  an average officer. In the last year it was indicated that his intelligence
c was of low order and though he was physically fit, he was not mentally
  alert. It was also indicated that he was barely competent to hold an
  officer's post. In the report for a part of 1974-75 he was branded as
  poor and against the column of 'general assessment', it was shown that
  'he was not sure of himself'. We have extracted entries from the
D character roll to meet the petitioner's contention that he had an excel-
  lent record of service.

          Mr. D.K. Garg, appearing for the petitioner has supplemented
    the arguments by a written note which has also been looked into.

E          Petitioner does not challenge the validity of the rule; nor does he
    allege that the order of compulsory retirement is the outcome of ma/a
    [ides.

         An aggrieved civil servant can challenge an order of compulsory
  retirement on any of the following grounds as settled by several deci-
F sions of this Court: (i) that the requisite opinion has not been formed;
  or (ii) that the decision is based on collateral grounds; or (iii) that it is
  an arbitrary decision. In Union of India v. Col. l.N. Sinha & Anr.,
  [ 1971] 1 SCR 791 this Court field that if the civil servant is able to
  establish that the order of compulsory retirement suffered from any of
  the above infirmities, the Court has jurisdiction to quash the same. It
G is not disputed that compulsory retirement under rule 56(j) is not a
  punishment as it does not take away any of the past benefits. Chopping
  off the dead wood is one of the important considerations for invoking
  rule 56(j) of the Fundamental Rules. In the instant case, on the basis
  of the service record, the Committee formed the requisite opinion
  that the petitioner had ceased to be useful and, therefore, should be
H retired prematurely. We do not think petitioner has been able to place
                     C.D. AILAWADI v. U.0.1. (MISRA, J.]                 787

    any satisfactory material for the contention that the decision was on       A
    collateral grounds. Once the opinion is reached on the basis of mate-
    rials on record, the order cannot be treated to be arbitrary. The service
    record of more than five years which we have perused shows that the
    higher officers under whom the petitioner had worked were different
    and different sets of reviewing officers had also made the entries.
                                                                                B
    Therefore, the reports must be taken to have reflected a. appropriate
    and objective assessment of the performance of the petitionP-r.

          The writ petition must accordingly fail and is, therefore, dismis-
    sed. There shall be no order as to costs.

    N.P.V.                                               Petition dismissed.    C




J