STATE OF U.P. AND ANR.versusBIHARI LAL

A                          STATE OF U.P. AND ANR.
                                          v.
                                   BIHARI LAL

                               SEPTEMBER 5, 1994

B            [K. RAMASWAMY AND N. VENKATACHALA, JJ.)

          Service Law-Civil Services:

          Fundamental Rules : Rule 56(j).
c          Order of compulsory retirement-Validity of-Government should con-
    sider entire service record before passing the order--Scope of coult's power to
    inteifere with order of compulsory retirement.

          The respondent was compulsorily retired from service on the ground
D   that in spite of awarding adverse remarks for several years, he had not
    improved and that, therefore, he was found to be an officer of bad category.
    The respondent challenged the order before the High Court which quashed
    it. Consequently the respondent was reinstated in service and subsequent
    to bis reinstatement State preferred an appeal in this Court.

E         Disposing of the appeal, this Court

          HELD : 1. The entire service record should be considered before
    taking a decision to compulsorily retire a government servant exercising
                                                                                      I_
    the power under Rule 56 (j) of the Fundamental Rules. It is not necessary
F   that adverse remarks should be communica.ted or every remark, which
    may sometimes be categorised as adverse, be communicated. It is on an
    overall assessment of the record, and the authority would reach a decision
    whether the government servant should be compulsorily retired in public
    interest. [110-B-C]

G         2. The court has to see whether before the exercise of the power, the
    authority has taken into consideration the overall record even including
    some of t!ie adverse remarks, though for technical reasons might be
    expunged on appeal or revision. What is needed to be looked into is the
    bona fide. decision taken in the public interest to augment efficiency in the
H   public service. In the absence of any mala fide exercise of power or
                                         108
                          STATEv. BIHARI LAL                           109

arbitrary exercise of power, a possible different conclusion would not be a   A
ground for interference by the Court/Tribunal in exercise of its judicial
review. However, in view of the fact that hardly nine months remain for
the respondent to reach superannuation, no useful purpose would be
served in allowing the appeal. [110-E-FJ

      3. In cases of serious nature, the government should expeditiously
                                                                              B
pursue the remedy and seek appropriate directions from the Court. In the
instant case appeal was filed leisurely after reinstatement of the respon-
dent. [110-G]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6307 of                C
1994.

     From the Judgment and Order dated 4.5.92 of the Allahabad High
Court in W.P. No. 93 (SIS) of 1992.

        B.S. Chauhan and R.B. Mishra for the Appellants.                      D
     Raju Ramchandran and Ms. Sudhana Ramachandran for the
Respondent.

        The following Order of the Court was delivered :
                                                                              E
        Leave granted.

        Heard learned counsel on both sides.

      The respondent was working as Assistant Commissioner (Assess-
ments) in the Sales Tax Department of the Government of U.P. By
                                                                              F
proceedings dated October 28, 1991, he was compulsorily retired from
service on the ground that in spite of awarding adverse remarks for several
years, the respondent had not improved and that, therefore, he was found
to be an officer of bad ·category. On having been challenged by the
respondent in writ petition No. 93 of 1992, the High Court in its judgment    G
and order dated May 5, 1992 allowed the writ petition evaluating the
evidence and finding that the order of compulsory retirement was by way
of punishment without any opportunity which amounts to his removal from
service violating Article 311 of the Constitution. The representation filed
by the respondent against adverse remarks of 1989-90, was pending con-        H
    110                   SUPREME COURT REPORTS (1994) S:UPP. 3          s.c:R..
A   sideration and without its disposal, it cannot be taken into consideration.
    When disciplinary proceedings were pending, initiating proceedings for
    compuISory retirement also amounted to arbitrary and illegal exercise or
    power.

          We have issued notice to the respondent who appeared through
B counsel and filed counter affidavit. It is now settled law that the entire 1
   service record should be considered before taking a decision to compul-
   sorily retire a government servant exercising the power under Rule 56G)
   of the Fundamental Rules. It is not necessary that adverse remarks should
   be communicated or every remark, which may sometimes be categorised
C as adverse, be communicated. It is on an overall assessment of the record,
   the authority would reach a decision whether the government servant
   should be corp.pulsorily retired in public interest. In an appropriate case,
   there may not be tan8'-ble material but the reputation of officer built
   around him could be such that his further continuance would imperil the
D efficiency of the public service and would breed indiscipline among other
   public servants. Therefore, the government could legitimately exercise their
   power to compulsory retire a government servant. The court has to see
   whether before the exercise of the power, the authority has taken into
   consideration the overall record even including some of the adverse
E remarks, ~hollgh for technical reasons might be expunged on appeal or
   revision. What is needed to be looked into is the bona fide decision taken
   in the public interest to augment efficiency in the public service. In the
   absence of any mala fide exercise of power or arbitrary exercise of power,
   a possible different conclusion would not be a ground for interference by
   the Courtffribunal _in exercise of its judicial review. In this case, the
F judgment was delivered on May 4, 1992 and on the same day hardly even
   the ink of Judge's signature dried up, he wa5 reinstated. He is due to retire
   on his attaining age of superannuation on May 31, 1995. Hardly nine
   months remain for him to reach superannuation. In this view of the matter,
  ·we find that no useful purpose would~be served in allowing the appeal.
G However, it is needless to emphasise that in cases of serious nature, the
   government should expeditiously pursue the remedy and seek appropriate
   directions from the court. Leisurely, the appeal was filed on September 18,
   1992 after reinstatement.

H          In these circumstances, the appropriate course would be that during

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                        STATEv. BIHARI LAL                         111 '

the remainder period of service if the respondent indulges in any corrupt A
practice, it would be open to be appropriate authority to report immedi-
ately to the Chief Secretary and the Chief Secretary would pass appropriate
orders removing him from service without any notice or enquiry. The
appeal is accordingly disposed of but without costs.

T.N.A.                                             Appeal disposed of.     B