UNION OF INDIAversusP.S. DHILLON

A                               UNION OF INDIA
                                       v.
                                 P.S. DHILLON

                                  APRIL 12, 1996

B                fS.C. AGRAWAL AND G.T. NANA VAT!, JJ.]


          Seivice Law :

          Compulsory retirement-Govemment se1vanl ordered to compulsorily
C retire at the age of 55 yea1s in temis of FR 56(j)-Not completed /0 years of
    qualifying se1vice required for grant of pensionary benefits-Held : Not an
    order of punishment.

          Compulsory retirement-Opinion that retention of Govemment se1vant
    was not in public interest-Fanning of-Pre-confinnation adverse matelial
D   taken into consideration for fanning of such opinion--Held : Such adverse
    matelial rightly taken into consideration to fonn the requisite opinion.

           Compulsory retirement-Proposal-Initiation and procedure for-Judi-
    cial Member of Income Tax Appellate T1ibunal--Recommendation for com-
    pulsory retirement of--l'ursuant to the proposal from the Minis(ly of Law a11d
E   Justice (Mi11istry concemed) Law Secretary forwarded his recommendation to
    the Cabinet Secretary-Cabinet Secretary placed the same with his own
    recomme11dation before the ACC (Appointments Committee of the
    Cabinet}-ACC accepted recommendation and passed order of compulsory
    retirement-Held : Such procedure. was not inconsistent with OM dated
    5-1-1978-Contentio11 that proposal should have been initiated by Cabi11et
F   Secretmy, rejected-Office Memora11dum dated 5-1-1978-/TAT Members
    (Recrnitme11t and Co11ditions of Service) Rules, 1963, Sections 11 and 13.

          Retiren1ent-Crnnpu lsory ref i re111ent-O rd er o~Representation
    against-By Judicial Member of Income Tax Appellate Tribunal-Competent
G   Authority to deal with--Held: Cabi11et Secretary is the Compete11t Authority
    to deal with such representation a11d to make recommendation to the A CC
    and not the Senior Selectio11 Boar~Appendix II to Office Memorandum
    dated 5-1-1978.

          The respondent, after he had attained the age of 35 years, was ap-
H pointed as a Judicial Member of the Income Tax Appellate Tribunal (ITAT)
                                         234
                   UNION OF INDIA v. P.S. DHILLON                       235

and was confirmed in the post with effect from 1-4-199S. There was an A
adverse entry in the Annual Confidential Report (ACR) of the respondent
for the year 1983. The proposal for compulsory retirement of the respon-
dent was initiated in the Ministry of Law and Justice, the cadre controlling
authority. Before initiating further action against the respondent he was
given a hearing by the Minister for Law and Justice regarding the various
complaints that had been received against the respondent with regard to his B
performance as a member of the !TAT as well as the complaint sent by his
wife. Thereafter, the Law Secretary sent the recommendation for compul-
sory retirement of the respondent under FR S6(j), after he had attained the
age of SS years, to the Cabinet Secretary, who in turn placed the matter
before the Appointments Committee of the Cabinet (ACC) with his recom-
mendation and the ACC approved the prematu<e retirement of the respon-
                                                                               c
dent under FR S6(j). Thereupon the order for compulsory retirement of the
respondent was passed. The respondent filed an application before the
Central Administrative Tribunal challenging the said order of compulsory
retirement. The Tribunal allowed the application on the grounds that after
the respondent's confirmation the adverse material on record prior to D
1-4-198S should have been disregarded; and that the competent authority to
deal with compulsory retirement was the Senior Selection Board and not the
Cabinet Secreatry vide Appendix II to Office Memorandum dated 5-1-1978.
Hence this appeal.

      On behalf of the respondent it was contended that since the respon-      E
dent was compulsorily retired before he completed 10 years of qualifying
service for grant ofpensionary benefits, the order of compulsory retirement
was an order of punishment; and that the guidelines laid down in Office
Memorandum dated S-1-1978 were not complied with inasmuch as the
proposal for compulsory retirement was initiated by the Ministry of Law
and Justice and not by the Cabinet Secretary.
                                                                               F

      Allowing the appeal, this Court

      HELD : 1. The respondent was appointed as a member of the Income
Tax Appellate Tribunal (!TAT) after he had attained the age of3S years and     G
in his case the power of compulsory retirement could be invoked after he
had attained.the age of SS years. Admittedly, the respondent had attained
the age of SS years when the impugned order with regard to his compulsory
retirement was passed. Merely because the period of service rendered by the.
respondent was less than 10 years, which is the period of qualifying service
required for grant of pensionary benefits, it cannot be said that the im-      H
    236                    SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A pugned order was an order of removal from service and not an order of
    compulsory retirement. [245-H; 246-A; C-D]

          Gurdev Singh Sidhu v. State of Punjab, [1964] 7 SCR 587, held inap-
    plicable.

B         2. The entire service record of the respondent including the record for
    the period prior to 1.4.1985 had to be taken into consideration by the
    appropriate authority. In the circumstances of the case it is not possible to
    say that there was no sufficient material for the appropriate authority to
    form the requisite opinion that further retention of the respondent in
    service was not in public interest. (245-B-C; E-F]
c
          3. The respondent was functioning under the Ministry of Law and
    Justice and his record of service was kept in that Ministry and, therefore, it
    was the said Ministry alone that could initiate the proposal for premature
    retirement of the respondent. The matter could reach the Cabinet Secretary
D   only after the proposal was initiated by the Ministry of Law and Justice. In
    the absence of the proposal from the Ministry of Law and Justice the
    Cabinet Secretary could not have sent his recommendation to the Appoint-
    ments Committee of the Cabinet (ACC). It cannot, therefore, be said that
    there was non-compliance with the instructions laid down in the OM dated
    5-1-1978 in the matter of submission of recommendations for the compul-
E   sory retirement of the respondent before the ACC and the order of compnl-
    sory retirement cannot be held to be vitiated on that account. (242-B-D]

          4. A member of the Income Tax Appellate Tribunal (!TAT) is an
    officer of the rank of Additional Secretary and in his case the Cabinet
    Secretary is required to make his recommendation directly to the ACC for
F   orders. In taking the view that the respondent's representation should have
    been considered by the Senior Selection Board and the said Board should
    have sent the same to the ACC with its recommendations, the Central
    Administrative Tribunal has failed to note that the Senior Selection Board
    has no role to play at the stage of review in respect of officers of the rank of
G   Additional Secretary, Special Secretary and Secretary to the Government of
    India and in respect of these officers it is the Cabinet Secretary who bas
    been constituted as the Review Committee and who makes bis recommenda-
    tion directly to ACC. It would be anomalous that though at the stage of
    review it is the Cabinet Secretary who has to consider and make his recom-
    mendation directly to the ACC he should be excluded at the stage of con-
H   sideration of the representation and the Senior Selection Board which had
                   UNION OF INDIA v. P.S. DHILLON [S.C AGRAWAL, J.]             237

        no role to play at the stage of review should be entrusted with consideration A
        of representation in respect of ollicers of the rank of Additional Secreatry,
        Special Secretary and Secretary to the Government. This anomaly would be
        avoided if the provision regarding composition of Representation Commit-
        tee contained in Appendix IT to OM dated 5-1-1978 is construed as ap-
        plicable in respect of officers up to the rank of Joint Secretary to the
        Government and in respect of officers of the rank of Additional Secretary, B
        Special Secretary and Secretary to the Government, the authority com-
        petent to deal with the re1iresentation and to make the recommendation to
        the ACC is the Cabinet Secretary who had considered the matter of com pul-
        sory retirement at the stage of review. In that view of the matter the repre-
        sentation of the respondent against the order for f,is compulsory retirement
        was required to be dealt with by the ACC on the basis of the recommenda-
                                                                                       c
        tion of the Cabinet Secretary and it was not necessary to refer the repre-
        sentation to the Senior Selection Board. (241-F; 242-F-H; 243-A-C]

                CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3806 of
        1992.                                                                          ])

              From the Judgment and Order dated 31.1.92 of the Central Ad-
        ministrative Tribunal at Chanidigarh in 0.A. No. 668 P.B. of 1987.

                C.B. Babu and Ms. A. Subhashini, for the Appellant.
                                                                                       E
             Ujagar Singh, K.G. Bhagat and Ms. Kusum Chaudhary for the
        Respondent.

                The following Judgement of the Court was delivered by

                 S.C. AGRAWAL, J.: This appeal by special leave is directed against    F
          the judgment of the Cen~ral Administrative Tribunal, Chandigarh Bench,
          (hereinafter referred to as 'the Tribunal'} dated January 31, 1992 in 0.A.
          No. 668 P.B./1987 fifod by the respondent wherein he had challenged the
          validity of the order of compulsory retirement dated January 28, 1987
          passed un~er Fundamenial Rule 56G}. The said order of compulsory
_...-----·retireiilent has been quashed by the Tribunal by the impugned judgment.      G
              The respondent was practising as an advocate in the High Court of
        Punjab and Haryana. He was appointed on probation as a Judicial Member
        of the Income Tax Appellate Tribunal (for short '!TAT'} by order dated
        February 25, 1978. The period of probation was two years. The said period
        of probation was, however, extended from time to time and the respondent       H
    238                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A continued on probation till March 31, 1985. By order dated May 24, 1985
    the respondent was deemed to have completed his period of probation
    satisfactorily on March 31, 1985. By order dated June 3, 1985 he was
    confirmed in the post of Member, !TAT with effect from April 1, 1985. As
    member of the !TAT the respondent was posted at Allahabad, Bombay,
    Madras, Ahmedabad and Amritsar. Ever since his appointment as a mem-
B   ber of the !TAT complaints were being received against the respondent
    from his colleagues, staff of the !TAT and members of the Bar. There was
    an adverse entry in the Annual Confidential Report (for short 'ACR') of
    the respondent for the year 1983. The respondent submitted a repre-
    sentation against the said adverse remarks which came up for consideration
C   before the Appointments Committee of the Cabinet (for short 'ACC').
    While rejecting the said representation the ACC observed that the respon-
    dent had completed the age of 55 years and that this was a fit case for the
    competent authority to consider whether action for his premature retire-
    ment from service should be initiated. Before initiating further action
    against him the respondent was called for a hearing by the Minister for
D   Law and Justice ori November 5, 1986. In the· meanwhile, a complaint \Vas
    received from the wife of the resp.ondent about his having deserted her and
    his openly living with another lady. In the ACR for the year ending
    December 31, 1985, there were adverse remarks by the Reporting Officer
    with which the Reviewing Officer had agreed. When he met the Law
    Minister, the respondent admitted that he was livi11g with a lady and stated
E   that she was cooking for him and that he had to live with her as his wife
    and children had left him. Since the Ministry of Law and Justice was the
    cadre controlling authority, the Law Secretary to the Government of India,
    vide his note dated December 22, 1986, submitted his recommendation to
    the Cabinet Secretary for the compulsory retirement of the respondent.
    The Cabinet Secretary placed the matter before the ACC with his recom-
F
    mendation and the ACC approved the premature retirement of the respon-
    dent under FR 56G) and thereupon the order dated January 28, 1987 was
    passed whereby the respondent was compulsorily retired from service. The
    respondent filed an application before the Tribunal challenging the said
    order of compulsory retirement. The said application was allowed by the
G   Tribunal by the impugned judgment and the order of compulsory retire-
    ment has been quashed. Hence this appeal.

          One of the contentions urged before the Tribunal on behalf of the
    respondent was that FR 56G) was not applicable to members of the !TAT
    in view of Rule 11 of the Income Tax Appellate Tribunal Members
H   (Recruitment and Conditions of Service) Rules, 1963 (hereinafter referred



                                                                                   -
         UNION OF INDIA v. P.S.DHILLON [S.C.AGRAWAL,J.]                 239

to as 'the Rules') whereby the age of retirement of a member of that !TAT      A
has been fixed at 62 years and it is further provided that the date of
compulsory retirement of a member would be the date of his attaining the
age of 62 years and not the last date of the month as in the ca'e of other
Government servants. It was submitted that since a specific provision has
been made in Rule 11 of the Rules with regard to retirement of the
members of the !TAT and no express provision is contained in the Rules         B
for premature retirement, the respondent could not be retired prior to his
attaining the age of 62 years under FR 560). The Tribunal has rejected the
said contention of the respondent in view of Rule 13 of the Rules wherein
it is provided that conditions of service of a member in respect of matters
for which no provision is made in the Rules shall be the same as may, for      C
the time being, be applicable to other employees of the Government of
India of a corresponding status. The Tribunal has held that Rule 11,
whereby the age of retirement is prescribed at 62 years, only provides an
exception to the general rule and could not be construed to mean that it
completely substitutes or supersedes the provisions of FR 56. The Tribunal
has also rejected the contention urged on behalf of the respondent that the    D
impugned order of compulsory retirement was penal in nature since the
respondent has been retired before he completed 10 years of qualifying
service which would have enabled him to draw pensionary benefits. The
Tribunal has held that in the matter of pensionary benefits after retirement
the position has to be adjudged as per the existing rules on the subject on
the relevant date of retirement/premature retirement and that the rcspon-      E
dent having put in nearly nine years of service on the date of his premature
retirement has been paid service gratuity as admissible to him. The
Tribunal has set aside the order of compulsory retirement for the reason
that the adverse material against the respondent prior to April 1, 1985, the
date with effect from which he was confirmed on the post of member of
the ITAT, has to be disregarded and after excluding the same, there was        F
only one adverse entry relating to the year 1985 against which the respon-
dent had submitted a representation. The Tribunal was also of the view
that the respondent had submitted his explanation vide his letter dated
January 20, 1987 to the complaint sent by his wife and that the services of
the respondent were terminated by order dated January 28, 1987 before          G
this explanation reached the concerned quarters or was taken into con-
sideration. The Tribunal has also held that in the matter of passing the
order of compulsory retirement safeguards contained in the guidelines laid
down in OM dated January 5, 1978 were not followed inasmuch as the
proposal was initiated by the Law Minister, on whose direction a note was
submitted by the Law Secretary to the Cabinet Secretary and that the           H
    240                  SUPREME COURT REPORTS (1996] SUPP.1 S.C.R.

A Cabinet Secretary had not made the Recommendation direct to the ACC.
    The Tribunal further held that there was non-compliance with the said
    guidelines also in the matter of consideration of representation submitted
    by the respondent against the order of compulsory retirement inasmuch as
    under the guidelines the representation was required to be considered by
    the Senior Selection Board and it is required to make its recommendations
B   to the ACC for taking final decision and that, in the present case, the
    representation submitted by the respondent was examined only in the
    Ministry of Law and Justice and the matter "las submitted directly to the
    ACC without it being considered by the Senior Selection Board.

          FR 56ij), as it stood at the relevant time, provided as follows :
c
            "FR 56ij) : Notwithstanding anything contained in this rule, the
            appropriate authority shall be, if it is of the opinion that it is in
            the public interest so to do, have the absolute right to retire any
            Government servant by giving him notice of not less than three
            months' in writing or three months pay and allowances in lieu of
D
            such notice.

                 (i) if he is in Class I or Class II service or post and had
                 entered Government service before attaining the age of thir-
                 ty-five years, after he has attained the age of fifty years.
E
                 (ii) in any other case after he has attained the age of fifty-five
                 years;

               Provided that nothing in this clause shall apply to a Government
            servant referred to in clause (a) who entered Government service
F           on or before 23rd July, 1966."

          The respondent was appointed as member of the ITAT after he had
    attained the age of thirty five years. Action for his compulsory retirement
    under FR 56G) could be taken on his attaining the age of fifty five years.
G   The date of birth of the respondent being June 8, 1931, he had attained
    the age of 55 years on June 8, 1986. The order for his compulsory retire-
    ment was passed on January 28, 1987 after he had attained the age of fifty
    five years.

         By OM dated January 5, 1978 instructions have been issued for
H   guidance of the authorities concerned with regard to exercise of power to
        UNION OFINDIA v. P.S. DHILLON [S.C.AGRAWAL,J.]               241

retire a Government employee prematurely under FR 56G). The said A
instructions envisage review of the case of the employee covered by
FR 56G) by a Review Committee and the appropriate.authority takes
further action on the recommendation of the Review Committee. The
said instructions also provide for submission of a representation by
the government employee who has been served with a notice/order of B
premature retirement and consideration of the said representation by
a committee. The provision with regard to composition of the Review
Committee and the Representation Committee are contained in Ap-
pendix JI to the said office memorandum. In respect of various
categories of officers holding Gazetted posts, initial appointment to
which is referable to the ACC, the following provision is made with
                                                                            c
regard to the composition of the Review Committee :

        "The Senior Selection Board in respect of officers in the rank of
        Joint Secretary or equivalent or the Central Establishment Board
        in respect of officers above the rank of Under Secretary, but below D
        the rank of Joint Secretary or equivalent as the case may be, will
        make its recommendations which will be placed before the Ap-
        pointments Committee of the Cabinet for orders. In respect of
        officers of the rank of Additional Secretary, Special Secretary and
        Secretary to the Government of India, Cabinet Secretary will make
        his recommendation directly to the Appointments Committee of
                                                                            E
        the Cabinet for orders.

        x      x     x       x        x        x       x        x"

      A member of the ITAT is an officer of the rank of Additional          F
Secretary and in his case the Cabinet Secretary is required to make his
recommendation directly to the ACC for orders.

     In the present c<.1sc 1 the proposal for premature retirement of the
respondent was initiated in the Ministry of law and Justice, the con-
cerned ministry, and before initiating the proposal the respondent was G
given a hearing by the Law Minister on November 5, 1986 as regards
the varions complaints that had been received against the respondent
with regard to his performance as a member of the ITAT as well as the
complaint sent by his wife. Thereafter, the recommendation for compul-
sory retirement of the respondent was sent by the Law Secretary to the
Cabinet Secretary and the Cabinet Secretary placed the matter for H
                                                                                      ~
                                                                                      .



                                                                                      .

    242                   SUPREME COURT REPORTS [1996) SUPP. lS.C.R.

A   consideration before the ACC with his recommendation. The proposal was
    accepted by the ACC and thereafter the order for compulsory retirement of
    the respondent was passed. We are unable to hold that there was non
    compliance with the guidelines laid down in OM dated January 5, 1978
    inasmuch as the proposal was initiated by the Ministry of Law and Justice and
    not by the Cabinet Secretary. Since the respondent was functioning under the
B   Ministry of Law and Justice and his record of service was kept in that ministry
    it was the said mimstry alone that could initiate the proposal for premature
    retirement of the respondent. The matter could reach the Cabinet Secretary
    only after the proposal was initiated by the Ministry of Law and Justice. It is
    difficult to appreciate how the Cabinet Secretary in the absence of the
    proposal from the Ministry of Law and Justice could have sent his recommen-
c   dation lo the ACC. It cannot, therefore, be said that there wa' non- com-
    pliance with the instructions laid down in the OM dated January 5, 1978 in
    the matter of submission of recommendations for the compulsory retirement
    of the respondent before ACC and the order of compulsory retirement cannot
    be held to be vitiated on that account.
D         As regards the composition of the Representation Committee, the
    following provision is made in Appendix II to OM dated January 5, 1978:

             The Senior Selection Board shall make its recommendations to the
             Appointments Committee of the Cabinet for orders. For this purpose,
E            the representations of the officers concerned may be sent by the
             Cadre Controlling Authority or the Administrative Ministry/Depart-
             ment to the Office of the Establishment Officer in the Department
             of Personnel B.A.R."

           In view of the said provision, the Tribunal has held that it was
F   necessary that the representation should have been considered by the
    Senior Selection Board and the said Board should have sent the same to
    the ACC with its recommendations. In taking this view the Tribunal has
    failed to note that the Senior Selection Board has no role to play at the
    stage of review in respect of officers of the rank of Additional Secretary,
G   Special Secretary and Secretary to the Government of India and in respect
    of these officers it is the Cabinet Secretary who has been constituted as the
    Review Committee and who makes his recommendation directly to ACC.
    It would be anomalous that though at the stage of review it is the Cabinet
    Secretary who has to consider and make his recommendation directly to
    the ACC he should be excluded at the stage of consideration of the
H   representation and the Senior Selection Board which had no role to play
         UNION OF INDIA v. P.S. DHILLON [S.C.AGRAWAL, J.]                 243

at the stage of review should be entrusted with consideration of repre-          A
sentation in respect of officers of the rank of Additional Secretary, Special
Secretary and Secretary to the Goverrunent. This anomaly would be avoided
if the provision regarding composition of Representation Committee con-
tained in Appendix II to OM dated January 5, 1978 is construed as applicable
in respect of officers upto tlie rank of Joint Secretary to the Government and
in respect of officers of the rallk of Additional Secretary, Special Secretary   B
,and Secretary to the Government, the authority competent to deal with the
 representation and to make the recommendation to the ACC is the Cabinet
 Secretary who had considered the matter of compulsory retirement at the
 stage of review. On that view of the matter the representation of the respon-
 dent against the order for his compulsory retirement was required to be dealt   C
with by the ACC on the basis of the recommendation of the Cabinet Secretary
 and it was not necessary to refer the representation to the Senior Selection
Board. This was done in the instant case inasmuch as the representation
 submitted by the respondent was forwarded to the ACC by the Cabinet
 Secretary with his recommendations. There was, therefore, no infirmity in the
 consideration of the representation submitted by the respondent against         D
 the order for his compulsory retirement.

       Assailing the finding of the Tribunal regarding sufficiency of material
to justify the passing of the order of compulsory retirement, Shri V.R.
Reddy, the learned Additional Solicitor General, has pointed out that ever
since the appointment of the respondent as Judicial Member of the ITAT           E
there were complaints against him on account of which he was transferred
to various places but in spite of transfer the complaints continued. It was
submitted that although his performance was not found satisfactory but a
lenient view was taken and his probation period was extended from time
to time and, at the same time, he was advised to improve his behaviour and
that after granting six extensions in the period of probation the respondent     F
was ultimately confirmed on the post of member of the !TAT with effect
from April 1, 1985 by order dated June 3, 1985. The learned Additional
Solicitor general has submitted that while issuing the order of confirmation,
a separate letter of admonition dated May 29, 1985 was addressed by the
Law Secretary to the Government of India to the respondent which reads
as~~:                                                                            G
         "Dear Shri Dhillon,

            I : m glad to inform you that the competent authority has
         decided to confirm you as Judicial Member of the Income Tax             H
    244                  SUPREMECOURTREPORTS [1996] SUPP. l S.C.R.

A           Appellate Tribunal with effect from 1.4.1985 and a copy of the
            order in this regard is enclosed. However, the competent authority
            has also decided that you should be confirmed with proper ad-
            monition. I have been directed to convey that you are warned that
            strict disciplinary action will be taken against you in case you do
            not function judiciously with your colleagues or Members of the
B           Bar.

            2.   Please acknowledge receipt.

                 With regards,
                                                          Yours sincerely,
c                                                                 sd/-
                                                           (B.S. Sekhon)"

          The letter contained the following note by way of post script :

D           "P .S. I have marked this communication as personal to you so as
            to avoid any likely embarrassment if it were to be sent through the
            usual official channel."

           The representation submitted by the respondent against the said
    letter of admonition was rejected vide communication dated January 13,
E   1986.

         After his confirmation as member of the ITAT, the following remarks
    were made by the Reporting Officer in the ACR for the year ending on
    December 31, 1985 :

F           "While his relations with the senior colleague Shri P.K. Mehta,
            seemed to be satisfactory, the members of the Bar and the
            Authorised Representatives of the Department are not very
            happy....".

            "I consider that Shri Dhillon has shown some improvement, though
G           he continues to exhibit rigid attitude at times both as regards
            judicial and administrative work."

            "Quality of orders average."

         The Reviewing Officer agreed with the said assessment made by the
H   Reporting Officer.
            UNION OF INDIA v. P.S. DHILLON [S.C. AGRAWAL, J.]              245

          The wife of the respondent made a complaint about the character A
    and conduct of the respondent and his living with another lady without
    marriage. The respondent was given a personal hearing by the Law Mini-
    ster and he did not deny the fact that he was living with another lady.

          Keeping in view the circumstances attendant to his confirmation as
    member of the ITAT with effect from April 1, 1985, we are unable to agree     B
    with the Tribunal that after such confirmation the adverse material on the
    record for the period prior to April 1, 1985 should be disregarded. In our
    opinion, the entire service record of the respondent including the record
    for the period prior April 1, 1985 had to be taken into consideration by
    the appropriate authority. The service record of the respondent shows :
                                                                                  c
            (i) There were complaints about his behaviour from the members
            of the Bar and his colleagues and the staff in the !TAT and his
            confirmation as member was delayed till April 1, 1985 and he was
            given six extensions in the period of probation.

            (ii) The remarks in the ACR of the year ending December 31, 1985 D
            show that there was no improvement in his behaviour as well as
            his performance.

            (iii) There was complaint about his conduct by his wife that he was
            living with another lady which fact was not disputed by him when      E
            he was given a hearing by the Law Minister on November 5, 1986.

          Having regard to these circumstances, it is not possible to say that
    there was no sufficient material for the appropriate authority to form the
    requisite opinion that further retention of the respondent in service was
    not in public interest.                                                       p

           Shri Ujagar Singh, the learned senior counsel appearing for the
    respondent, has submitted that since the respondent was compulsorily
    retired before he completed 10 years of qualifying service, the order of
    compulsory retirement should be held to be an order of punishment. We
    are unable to agree. Under FR 56(j) an officer could be compulsorily G
    retired on attaining the age of 50 years if he was appointed before he
    completed the age of 35 years and an officer who was appointed after
    attaining the age of 35 could be retired on completing the age of 55 years.
    The respondent was appointed as a member of the !TAT after he had
    attained the age of 35 years and in his case the power of compulsory
    retirement ~ould be invoked after he had attained the age of 55 years. H

[
    246                   SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

A Admittedly the respondent had attained the age of 55 years when the order
    dated January 28, 1987 with regard to his compulsory retirement was
    passed. The decision Gwudev Singh Sidhu v. State of Punjab & Anr., [1964]
    7 SCR 587, on which reliance has been placed by Shri Ujagar Singh has
    no application in the present case because in Gurndev Singh Sidhu (supra)
    this Court has struck down Article 9.1. of the Pepsu Services Regulation
B   which provided for compulsory retirement of a Government servant after
    he completed 10 years of qualifying service on the view that termination of
    the service of a permanent public servant under such a rule, though called
    compulsory retirement was, in substance, removal under Article 311(2) of
    the Constitution. The provision contained in FR 55G) cannot be equated
    with aforementioned provision in Article 9.1. of the Pepsu Services Regula-
c   tion because it provides for compulsory retirement at the age of 50 or 55
    years and it cannot be said that it does not provide for a reasonable long
    period of service. Merely because the period of service rendered by the
    respondent was less than 10 years, which is the period of qualifying service
    required for grant of pensionary benefits, it cannot be said that the order
D   dated January 28, 1986 was an order of removal of service and not an order
    of compulsory retirement.

         For the reasons aforementioned, we are unable to uphold the judg-
    ment of the Tribunal quashing the order dated January 28, 1987 regarding
    compulsory retirement of the respondent and the appeal has to be allowed.
E          By order dated September 14~ 1992, this Court, while staying the
    operation of the impugned order of the Tribunal, directed the appellant to
    deposit the salary including the arrears due to respondent in the Tribunal
    within four weeks from the date of the said order and it was further
    directed that the respondent would be at liberty to withdraw the same on
F   his giving personal undertaking to return the same when called upon to do
    so and furthc1 giving sufficient security to the satisfaction of the Registrar
    of the Tribunal. It is directed that in case the respondent has withdrawn
    the amount as per the directions contained in the order dated September
    14, 1992, he would return the same as per his per1"1onal undertaking in tern1s
    of the said order.
G
          In the result, the appeal is allowed, the impugned judgment of the
    Tribunal dated January 31, 1992 is set aside and OA No. 668 PB/1987 filed
    by the respondent is dismissed. But in the circumstances there is no order
    as to costs.

    v.s.s.                                                       Appeal allowed.