CENTRAL INDUSTRIAL SECURITY FORCEversusOM PRAKASH

                         [2022] 2 S.C.R. 203                             203


          CENTRAL INDUSTRIAL SECURITY FORCE                              A
                                  v.
                          OM PRAKASH
                   (Civil Appeal No. 5428 of 2012)
                       FEBRUARY 04, 2022                                 B
  [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
       Service Law – CCS (Pension) Rules, 1972 – Premature
retirement – Adverse remarks – Consideration of – Order of
premature retirement passed against respondent, set aside by High
                                                                         C
Court on the ground that that he was promoted as Head Constable
in year 2000 and thus, the penalties imposed prior to 2000 have to
be ignored while determining the suitability to be retained in service
– On appeal, held: High Court has not only misread the judgment
of Supreme Court in Baikuntha Nath Das and Another v. Chief District
Medical Officer, Baripada and Another reported as [1992] 1 SCR 836       D
but wrongly applied the principles laid down therein – Adverse
remarks can be taken into consideration – Also, there is a factual
error in the order of High Court that there are no adverse remarks
and that the ACRs for the year 1990 till 2009 were either good or
very good – However, the summary of ACRs reproduced by the High
                                                                         E
Court itself shows average, satisfactory and in fact below average
reports as well – Entire service record is to be taken into
consideration while passing the order of premature retirement which
would include the ACRs of the period prior to the promotion, though
the recent reports would carry their own weight – In the present
case, in the last 5 years, the respondent has been graded average –      F
Further, he was awarded number of punishments prior to his
promotion including receiving illegal gratification while on duty –
There are also allegations of absence from duty, overstaying of leave
– After promotion also, a punishment of four days fine was imposed
on the charge of sleeping on duty and two days fine was imposed
                                                                         G
for overstaying from joining time – Order of High Court setting
aside the order of premature retirement set aside.
      Judicial Review – Scope of – Compulsory retirement – High
Court setting aside the order of premature retirement, referred to
three Judge Bench judgment of Supreme Court in Baikuntha Nath
                                                                         H
                                 203
204            SUPREME COURT REPORTS                        [2022] 2 S.C.R.


A     Das and Another v. Chief District Medical Officer, Baripada and Another
      reported as [1992] 1 SCR 836 – Held: High Court misread the said
      judgment which holds that order of compulsory retirement is not a
      punishment – It implies no stigma nor any suggestion of
      misbehaviour – Order of compulsory retirement is in public interest
      and is passed on the subjective satisfaction of the Government and
B
      is not liable to be quashed by the Court merely for the reason that
      uncommunicated adverse remarks were taken into consideration.
            Baikuntha Nath Das and Another v. Chief District
            Medical Officer, Baripada and Another (1992) 2 SCC
            299 : [1992] 1 SCR 836; Union of India v. M. E. Reddy
C           and Another (1980) 2 SCC 15 : [1980] 1 SCR 736;
            Posts and Telegraphs Board and Others v. C.S.N.
            Murthy (1992) 2 SCC 317 : [1992] 2 SCR 338; Union
            of India and Others v. Dulal Dutt (1993) 2 SCC 179 :
            [1993] 1 SCR 853; Secretary to the Government and
D           Another v. Nityananda Pati (1994) SCC (L&S) 1052;
            Union of India v. V.P. Seth and Another (1993) Supp 2
            SCC 391; State of Punjab v. Gurdas Singh (1998) 4
            SCC 92; State of U.P. and Others v. Raj Kishore Goel
            (2001) 10 SCC 183; Rajasthan State Road Transport
            Corporation and Others v. Babu Lal Jangir (2013) 10
E           SCC 551 : [2013] 11 SCR 159; Brij Mohan Singh v.
            Chopra v. State of Punjab (1987) 2 SCC 188 : [1987]
            2 SCR 583; Pyare Mohan Lal v. State of Jharkhand
            and Others (2010) 10 SCC 693; Ram Murti Yadav v.
            State of Uttar Pradesh and Another (2020) 1 SCC 801
F           : [2019] 14 SCR 818 – relied on.
                             Case Law Reference
      [1992] 1 SCR 836                relied on                 Para 3
      [1980] 1 SCR 736                relied on                 Para 4
G     [1992] 2 SCR 338                relied on                 Para 6
      [1993] 1 SCR 853                relied on                 Para 7
      (1994) SCC (L&S) 1052           relied on                 Para 8
      (1993) Supp 2 SCC 391           relied on                 Para 9
H
       CENTRAL INDUSTRIAL SECURITY FORCE v. OM PRAKASH                         205


(1998) 4 SCC 92                           relied on           Para 10          A
(2001) 10 SCC 183                         relied on           Para 11
[2013] 11 SCR 159                         relied on           Para 12
[1987] 2 SCR 583                          relied on           Para 12
(2010) 10 SCC 693                         relied on           Para 12          B
[2019] 14 SCR 818                         relied on           Para 13
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5428
of 2012.
      From the Judgment and Order dated 14.10.2011 of the High Court           C
of Delhi at New Delhi in W.P. No.7471 of 2011.
      Ms. Madhvi Divan, ASG, Akshay Amritanshu, Rajesh K. Singh,
Mohd. Akhil, Sandeep Kumar Mahapatra, Ayush Puri, A K Sharma, B.
Krishna Prasad, Advs. for the Appellant.
      Anil Mittal, Vibhuti Sushant Gupta, Ram Naresh Yadav, Advs. for          D
the Respondent.
          The Judgment of the Court was delivered by
          HEMANT GUPTA, J.
       1. The present appeal arises out of an order dated 14.10.2011           E
passed by the Division Bench of the High Court of Delhi whereby the
order of premature retirement passed against the respondent was set
aside.
       2. The respondent, Head Constable Om Prakash1 was prematurely
retired on 16.08.2011 in exercise of the powers conferred under Rule           F
56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension)
Rules, 19722 after completion of 30 years of service. The order is to the
effect that the Superannuation Review Committee under Rule 48(1)(b)
of the Rules found the writ petitioner not fit to continue in service beyond
30 years of qualifying service with immediate effect.
                                                                               G
       3. In the writ petition challenging such order, the High Court set
aside the order of premature retirement on the ground that the writ
petitioner was promoted as Head Constable on 14.06.2000 and thus
1
    Hereinafter referred to as the ‘Writ Petitioner’
2
    For short ‘the Rules’                                                      H
206             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     penalties imposed prior to the year 2000 have to be ignored while
      determining suitability of the writ petitioner to be retained in service.
      The two penalties of sleeping on duty and overstaying leave by two days
      were inflicted in the year 2005 and 2008 respectively which were minor
      penalties. The Annual Confidential Reports3 grading of the writ petitioner
      in the preceding five years have to be considered with greater focus
B
      while noticing the fact that even earlier ACR’s had to be taken into
      consideration. The ACR’s from 1990 till the year 2009 were either good
      or very good. The ACR for the year 2010 was graded average but the
      same was not conveyed to the writ petitioner. Therefore, such ACR
      could not be taken into consideration while arriving at an opinion that the
C     writ petitioner is a dead wood. The High Court referred to a three Judge
      Bench judgment of this Court reported as Baikuntha Nath Das and
      Another v. Chief District Medical Officer, Baripada and Another4
      wherein it has been held that the order of compulsory retirement is not a
      punishment. It implies no stigma nor any suggestion of misbehaviour.
      The order of compulsory retirement is in public interest and is passed on
D
      the subjective satisfaction of the Government and is not liable to be
      quashed by the Court merely for the reason that uncommunicated
      adverse remarks were taken into consideration.
            4. This Court approved the earlier judgment of this Court reported
      as Union of India v. M. E. Reddy and Another5 wherein it was held
E     as under:
             “12. An order of compulsory retirement on one hand causes no
             prejudice to the government servant who is made to lead a restful
             life enjoying full pensionary and other benefits and on the other
             gives a new animation and equanimity to the Services. The
F            employees should try to understand the true spirit behind the rule
             which is not to penalise them but amounts just to a fruitful incident
             of the Service made in the larger interest of the country. Even if
             the employee feels that he has suffered, he should derive sufficient
             solace and consolation from the fact that this is his small
G            contribution to his country, for every good cause claims its martyr.”
             5. We find that the High Court has completely misdirected itself
      while setting aside the order of premature retirement of the writ petitioner.
      3
        ACR
      4
        (1992) 2 SCC 299
      5
H       (1980) 2 SCC 15
      CENTRAL INDUSTRIAL SECURITY FORCE v. OM PRAKASH                           207
                    [HEMANT GUPTA, J.]

The writ petitioner has been awarded number of punishments prior to             A
his promotion including receiving illegal gratification from a transporter
while on duty in the year 1993. There are also allegations of absence
from duty and overstaying of leave. After promotion, a punishment of
four days fine was imposed on the charge of sleeping on duty and two
days fine was imposed for overstayed from joining time. Apart from the
                                                                                B
said punishments, the writ petitioner has a mixed bag of ACRs such as
average, below average, satisfactory good and very good. In the last 5
years, he has been graded average for the period 01.01.2010 to
31.12.2010.
       6. After the judgment in Baikuntha Nath Das, a three Judge
Bench in a judgment reported as Posts and Telegraphs Board and                  C
Others v. C.S.N. Murthy6 held that the courts would not interfere with
the exercise of the power of compulsory retirement if arrived at bonafidely
and on the basis of material available on record. The Court held as
under:
         “5. ….Whether the conduct of the employee is such as to justify        D
         such a conclusion is primarily for the departmental authorities to
         decide. The nature of the delinquency and whether it is of such a
         degree as to require the compulsory retirement of the employee
         are primarily for the Government to decide upon. The courts will
         not interfere with the exercise of this power, if arrived at bona      E
         fide and on the basis of material available on the record. No mala
         fides have been urged in the present case. The only suggestion of
         the High Court is that the record discloses no material which would
         justify the action taken against the respondent. We are unable to
         agree. In our opinion, there was material which showed that the
         efficiency of the petitioner was slackening in the last two years of   F
         the period under review and it is, therefore, not possible for us to
         fault the conclusion of the department as being mala fide, perverse,
         arbitrary or unreasonable.”
      7. A three Judge Bench of this Court reported as Union of India
and Others v. Dulal Dutt7 examined the order of compulsory retirement           G
of a Controller of Stores in Indian Railway. It was held that an order of
compulsory retirement is not an order of punishment. It is a prerogative

6
    (1992) 2 SCC 317
7
    (1993) 2 SCC 179                                                            H
208               SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A     of the Government but it should be based on material and has to be
      passed on the subjective satisfaction of the Government and that it is not
      required to be a speaking order. This Court held as under:
               “18. It will be noticed that the Tribunal completely erred in
               assuming, in the circumstances of the case, that there ought to
B              have been a speaking order for compulsory retirement. This Court,
               has been repeatedly emphasising right from the case of R.L.
               Butail v. Union of India [(1970) 2 SCC 876] and Union of
               India v. J.N. Sinha [(1970) 2 SCC 458] that an order of a
               compulsory retirement is not an order of punishment. It is actually
               a prerogative of the Government but it should be based on material
C              and has to be passed on the subjective satisfaction of the
               Government. Very often, on enquiry by the Court the Government
               may disclose the material but it is very much different from the
               saying that the order should be a speaking order. No order of
               compulsory retirement is required to be a speaking order. From
D              the very order of the Tribunal it is clear that the Government had,
               before it, the report of the Review Committee yet it thought it fit
               of compulsorily retiring the respondent. The order cannot be called
               either mala fide or arbitrary in law.”
             8. In another judgment reported as Secretary to the Government
E     and Another v. Nityananda Pati8, the order of the High Court setting
      aside the compulsory retirement for the reason that certain
      uncommunicated adverse remarks were taken into consideration was
      set aside by this Court.
           9. In Union of India v. V.P. Seth and Another9, relying upon
F     Baikuntha Nath Das and other judgments, it was held as under:
               “3. These principles were reiterated with approval in the subsequent
               decision. It would, therefore, seem that an order of compulsory
               retirement can be made subject to judicial review only on grounds
               of mala fides, arbitrariness or perversity and that the rule of audi
G              alteram partem has no application since the order of compulsory
               retirement in such a situation is not penal in nature. The position
               of law having thus been settled by two decisions of this Court, we
               are afraid that the order of the Tribunal cannot be sustained as

      8
          (1993) Supp 2 SCC 391
H     9
          (1994) SCC (L&S) 1052
     CENTRAL INDUSTRIAL SECURITY FORCE v. OM PRAKASH                             209
                   [HEMANT GUPTA, J.]

       the same runs counter to the principles laid down in the said two         A
       decisions.”
      10. A three Judge Bench of this Court in a judgment reported as
State of Punjab v. Gurdas Singh10 considered the argument that the
order of compulsory retirement was based on material which was non-
existent inasmuch as there were no adverse remarks against him and if            B
there were any such remarks, it should have been communicated to
him. This Court held as under:
       “11. …..Before the decision to retire a government servant
       prematurely is taken the authorities are required to consider the
       whole record of service. Any adverse entry prior to earning of            C
       promotion or crossing of efficiency bar or picking up higher rank
       is not wiped out and can be taken into consideration while
       considering the overall performance of the employee during whole
       of his tenure of service whether it is in public interest to retain him
       in the service. The whole record of service of the employee will
                                                                                 D
       include any uncommunicated adverse entries as well.”
       11. In State of U.P. and Others v. Raj Kishore Goel11, the order
of the High Court setting aside the order of compulsory retirement was
set aside when the order of compulsory retirement was on account of
uncommunicated ACR.
                                                                                 E
       12. In the judgment reported as Rajasthan State Road Transport
Corporation and Others v. Babu Lal Jangir12, the High Court had
taken into consideration adverse entries for the period 12 years prior to
premature retirement. This Court held that Brij Mohan Singh Choprav.
State of Punjab13 was overruled only on the second proposition that an           F
order of compulsory retirement is required to be passed after complying
with the principles of natural justice. This Court also considered the
“washed-off theory” i.e., the remarks would be wiped off on account of
such record being of remote past. Reliance was placed upon a three
Judge Bench judgment of this Court reported as Pyare Mohan Lal v.
State of Jharkhand and Others14 and it was observed that:                        G

10
   (1998) 4 SCC 92
11
   (2001) 10 SCC 183
12
   (2013) 10 SCC 551
13
   (1987) 2 SCC 188
14
   (2010) 10 SCC 693                                                             H
210             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A           “22. It clearly follows from the above that the clarification given
            by a two-Judge Bench judgment in Badrinath [(2000) 8 SCC 395
            : 2001 SCC (L&S) 13 : (2000) 6 Scale 618] is not correct and the
            observations of this Court in Gurdas Singh [(1998) 4 SCC 92 :
            1998 SCC (L&S) 1004 : AIR 1998 SC 1661] to the effect that the
            adverse entries prior to the promotion or crossing of efficiency
B
            bar or picking up higher rank are not wiped off and can be taken
            into account while considering the overall performance of the
            employee when it comes to the consideration of case of that
            employee for premature retirement.
            23. The principle of law which is clarified and stands crystallised
C           after the judgment in Pyare Mohan Lal v. State of
            Jharkhand [(2010) 10 SCC 693 : (2011) 1 SCC (L&S) 550] is that
            after the promotion of an employee the adverse entries prior thereto
            would have no relevance and can be treated as wiped off when
            the case of the government employee is to be considered for further
D           promotion. However, this “washed-off theory” will have no
            application when the case of an employee is being assessed to
            determine whether he is fit to be retained in service or requires to
            be given compulsory retirement. The rationale given is that since
            such an assessment is based on “entire service record”, there is
            no question of not taking into consideration the earlier old adverse
E           entries or record of the old period. We may hasten to add that
            while such a record can be taken into consideration, at the same
            time, the service record of the immediate past period will have to
            be given due credence and weightage. For example, as against
            some very old adverse entries where the immediate past record
F           shows exemplary performance, ignoring such a record of recent
            past and acting only on the basis of old adverse entries, to retire a
            person will be a clear example of arbitrary exercise of power.
            However, if old record pertains to integrity of a person then that
            may be sufficient to justify the order of premature retirement of
            the government servant.”
G
             13. There are numerous other judgments upholding the orders of
      premature retirement of judicial officers inter alia on the ground that the
      judicial service is not akin to other services. A person discharging judicial
      duties acts on behalf of the State in discharge of its sovereign functions.
      Dispensation of justice is not only an onerous duty but has been considered
H
       CENTRAL INDUSTRIAL SECURITY FORCE v. OM PRAKASH                          211
                     [HEMANT GUPTA, J.]

as discharge of a pious duty, therefore, it is a very serious matter. This      A
Court in Ram Murti Yadav v. State of Uttar Pradesh and Another15
held as under:
         “6. ….The scope for judicial review of an order of compulsory
         retirement based on the subjective satisfaction of the employer is
         extremely narrow and restricted. Only if it is found to be based on    B
         arbitrary or capricious grounds, vitiated by mala fides, overlooks
         relevant materials, could there be limited scope for interference.
         The court, in judicial review, cannot sit in judgment over the same
         as an appellate authority. Principles of natural justice have no
         application in a case of compulsory retirement.”
                                                                                C
       14. Thus, we find that the High Court has not only misread the
judgment of this Court in Baikuntha Nath Das but wrongly applied the
principles laid down therein. The adverse remarks can be taken into
consideration as mentioned in the number of judgments mentioned above.
There is also a factual error in the order of the High Court that there are
no adverse remarks and that the ACRs for the year 1990 till the year            D
2009 were either good or very good. In fact, the summary of ACRs as
reproduced by the High Court itself shows average, satisfactory and in
fact below average reports as well.
       15. The entire service record is to be taken into consideration
which would include the ACRs of the period prior to the promotion. The          E
order of premature retirement is required to be passed on the basis of
entire service records, though the recent reports would carry their own
weight.
       16. In view of the said fact, we find that the order of the High
Court setting aside the order of premature retirement is clearly                F
unsustainable and is set aside. The appeal is allowed. The writ petition
thus stands dismissed.


Divya Pandey                                                  Appeal allowed.
                                                                                G




15
     (2020) 1 SCC 801                                                           H