CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1835 of 1968. Appeal from the judgment and order dated March 21,1968 of the Mysore High Court in Writ Petition No. 2371 of 1967. Appellant appeared in person. M. Veerappa, for the respondents. The Judgment of the Court was delivered by Mitter, J. The only point involved in this appeal by certificate, is-whether the order of compulsory retirement dated June 28, 1967 intimating the appellant that it was necessary in the public interest that he should be retired from service with effect from October 15, 1967 in terms of Rule 285 of the Mysore Civil Services Rules read with Note I thereto was inconsistent with the rules of natural justice in that the appellant was not informed of the evidence on which the order was based and no opportunity was given to him of being heard and meeting or explaining away the evidence in support of the order, and as such was liable to be quashed. The High Court rejected the writ petition of the appellant in which the above and other contentions were raised by him but as the certificate is limited to the one question mentioned above the other points canvassed before the High Court do not fall for consideration. The facts are as follows. The petitioner was a Class-I Health Officer in the Department of Public Health in Mysore State Service in the year 1967. But for the order of retirement which was served on him he might have continued in service up to December 31, 1971 when he would have attained the age of 55 years. In June 1967 when he had passed the age of 50 years he was served with an order the text of which is as follows :-
"Whereas the Government of Mysore is of
opinion that it is necessary in the public
interest that you, Dr. N. V. Putta Bhatta,
Health Officer Class I working as District
Health and Family Planning Officer, Coorg,
should be retired from service with effect
from the 15th October, 1967.
Now, therefore, as required by Note 1 to Rule
285 of the Mysore Civil Services Rules, you
are hereby given three months’ notice that you
shall be retired from service with effect from
the 15th October, 1967." He filed his writ petition in the High Court of Mysore in September 1967. The averments in the petition which are relevant for the purpose of this appeal are as follows (a) Paragraph 5 of the petition
"This order which vitally affects my right to
continue till I attain the age of
superannuation, namely, 55 years
with the prospect of ’becoming the Head of the
Department should have been passed only after
giving me an opportunity to show cause against
it having regard to the rules of natural
justice."
(b) Paragraph 18(a) of the petition
I was not given any chance or opportunity to
know the causes for the impugned order on
which I am to be retired prematurely. In the
absence of any such cause, 1 assumed that some
confidential report or any cause affection my
health may have been considered. On this
assumption I made representation to the first
respondent (the State of Mysore) through the
second respondent (the Director of Health
Services) These representations will show
that I was a victim of prejudice of the
Directorate of Health Services
(c) Paragraph 22 of the petition
"After the impugned order was passed I got two
confidential reports One of these reports
stated that I require guidance, that I had not
initiative and not fit to hold any executive
post and that I was in the habit of divulging
Government information without the permission
of the Government. The second report of 1966
stated that I was a conceited, incompetent and
irresponsible officer and that I was slow in
disposing of the official matters and that I
was not amendable to superior officers These
confidential reports were sent to me on 1-9-67
I had to make representation against these
false allegations."
(d) Paragraph 23 of the petition
"It will thus be seen that in the background
of the confidential report for 1966 that I
must be retired or retired from service
without any opportunity to me, the impugned
order has been passed. The impugned order
therefore is violative of Art. 31 1 of the
Constitution since it is clearly based on the
1966 confidential report I therefore submit
that on vague and unsupported charges my
career is sought to be blocked which should
have been otherwise promising." In the counter affidavit of the State it was averred that action was taken by the Government on a consideration of the confidential reports submitted in respect of the petitioner and that it was not based on any prejudice or jealousy against him. No opportunity for hearing was contemplated under Rule 285 and the impugned order was not violative of Art. 311 of the Constitution. The relevant part of Rule 285 of the Mysore Civil Services Rules and Note 1 thereto read as follows
"A retiring pension is granted to a Government
servant who is permitted to retire after
completing qualifying service for thirty years
or such less time as may, for any special
class of Government servants be prescribed.
Note 1. A Government servant may retire from
service any time after completing thirty
years’ qualifying service provided that he
shall give in this behalf a notice in writing
to the appropriate authority, at least three
months before the date on which he wishes to
retire. Government may, by order, retire any
Government servant after he has completed
twenty five years of qualifying service or
after he has attained fifty years of age, if
such retirement is in their opinion necessary
in the public interest, provided that
Government servant concerned is given notice
of three months before the date of retirement,
or in lieu of such notice, a sum equivalent to
the amount of his salary for a period of three
months. " The validity of the above rule was attacked in this Court in Shivacharana v. State of Mysore (1). Upholding the validity thereof it was said by this Court (at p. 281 paragraph 4):
"It would thus be clear that though the normal
age of retirement under R. 95 (a) is 55 years,
under R. 285 it is competent to the Government
to retire compulsorily a government servant
prematurely if it is thought that such
premature retirement is necessary in the
public interest. This power can, however, be
exercised only in cases where the Government
servant has completed 25 years qualifying
service or has attained 50 years of age. In
order words, ordinary retirement by
superannuation occurs after attaining 55 years
or completing 30 years’ service, while
premature retirement can be forced on the
government servant if he has either completed
25 years of service, or has attained 50 years
of age. In the case of premature compulsory
retirement, the government servant is entitled
to pension as indicated in Note 1 to Rule
285." In that case the appellant before this Court had urged that his record was free from blemish and Government was not justified in coming to the conclusion that it was in the public interest to retire him. Turning down the said contention it was stated (1) A.I.R. 965 S.C. 280.
"The allegations made by the petitioner in
that behalf are very vague and unsatisfactory,
and so, it would be idle to contend that if
the impugned note is valid, the order
terminating the services of the petitioner can
still be challenged on the ground that it is
not justified on the merits or is illegal or
arbitrary. Whether or not the petitioner’s
retirement was in the public interest, is a
matter for the State Government to consider,
and as to- the plea that the order is
arbitrary and illegal, it is impossible to
hold on the material placed by the petitioner
before us that the said order suffers from the
vice of mala fides." It may be noted that the appellant before us had challenged the order of termination of service on very similar grounds and the only additional point urged by him before us is that as the order of June 1967 has civil consequences it was obligatory on Government to give him notice to show cause against the order proposed before it was made. In support of this reliance was placed on Orissa v. Binapani Dei(1). There too the Government of Orissa had served the order of compulsory retirement on the first respondent but the main ground of attack was that whereas according to Government records she was born on 10th April, 1910 and as such would have been due for superannuation on the 10th April 1965, Government had made an enquiry as to her date of birth behind her back and asked her to show cause why a certain date should not be taken as the correct date of birth. The report of the enquiry officer was not disclosed to her and the first respondent was not given an opportunity to meet the evidence used against her. This was followed by Government refixing her date of birth and ordering compulsory retirement. It was observed by this Court (see p. 629) :
"The State has undoubtedly authority to
compulsorily retire a public servant who is
superannuated. But when that person disputes
the claim he must be informed of the case of
the State and the evidence in support thereof
and he must have a fair opportunity of meeting
that case before a decision adverse to him is
taken." With regard to the enquiry it was said that, it was contrary to the basic concept of justice and cannot have any value. It was added that although the order was administrative in character it involved civil consequences and must be made, consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. (1) [1967] 2 S.C. R. 625. It will be noticed at once that the facts of this case are not in pari materia with those of Binapani Dei’s. Here there was no dispute nor any claim by the appellant that he was asked to retire before he had attained the age of 50 years. All his challenge is directed to the formation of opinion by the Government that it was in the public interest to retire him. It is difficult to see how the appellant could have explained that it was contrary to public interest to, retire him if his attack on the ground that the order was made arbitrarily or mala fide could not be sustained. The counter affidavit of the State definitely alleged that in forming the opinion Government had taken note of the adverse remarks in the appellant’s confidential report. The appellant contends that if Government’s action was motivated by the adverse remarks in the reports he should have first been given notice thereof and in any event his representation against them should have been disposed of before any retirement order could have been passed on him. Our attention was drawn to G.S.R. 597 of the General Administration Secretariat notification of the State of Mysore dated 6th July, 1965. By the said notification the Governor of the State made a set of rules known as the Mysore Civil Services (Confidential Reports) Rules, 1965. According to r. 3 thereof :
"In respect of every Gazetted and non-Gazetted
officer an Annual Confidential Report shall be
recorded assessing as correctly as possible
such officer’s physical, mental and moral
suitability for his office and for promotion,
his ability to apply intelligently the law and
procedure prescribed to cases coming before
him, his treatment of his subordinates and
behaviour to his superiors and colleagues in
other departments aid his relations with the
public." The preparation and transmission of confidential reports are to be made in terms of r. 5 which inter alia directs that a report was to be prepared with the greatest caution and no record or remarks shall be made lightly on the spur of the moment or based on prejudice. Under r. 8 (1) all adverse remarks whether through an ordinary or special report shall be communicated to the officer concerned, unless the adverse remarks are of such a nature that the communication thereof is unlikely to result in the remedy of the defect or is considered inadvisable for any other reason. While communicating an adverse remark, the name of the officer recording the adverse remark shall not be communicated to the officer reported upon. Under r. 9 no appeal lay against adverse remarks made in the annual confidential reports. Our attention was however drawn to a notification dated 6th February 1970 whereby r. 9 was altered so as to give an officer against whom adverse remarks were made a right to submit a representation on which a decision had to be taken expeditiously and communicated to him. At the relevant time however the said amended rule was not in operation and consequently it was not open to the appellant to challenge the correctness of the adverse remarks in his confidential reports by way of appeal. As the ,confidential reports rules stood at the relevant time, the appellant could not have appealed against the adverse remarks and if the opinion of Government to retire him compulsorily was based primarily on the said report he could only challenge the order if he was in a position to show that the remarks ’were arbitrary or male fide. It is not necessary for us to examine the rules of natural justice in general but we may quote observations from a judgment of this Court in A. K. Kraipak v. Union() to show that the particular circumstances of a case considered in the background of the law ,applicable must be determinative on the point. There the Court -.said :
"What particular rule of natural justice
should apply to a given case must depend to a
great extent on the facts and circumstances of
that case, the framework of the law under
which the enquiry is held and the constitution
of the Tribunal or body of persons appointed
for that purpose. Whenever a complaint
is made before a court that some principle of
natural justice had been contravened the court
has to decide whether the observance of that
rule was necessary for a just decision on the
facts of that case." In Union of India v. J. N. Sinha(2) the Court was concerned ,directly with the principle of natural justice in similar circumstances. There the order of retirement was based on Fundamental Rule 56(J) reading : "Notwithstanding anything contained in this Rule the appropriate authority shall, 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 such notice." There this Court observed (see p.795): "The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that (1) [1970] 1 S.C.R. 457 at 469, (2) [1971] 1 S.C.R. 791.
it is in public interest to do so. If that
authority bona fide forms that opinion, the
correctness of that opinion cannot be
challenged before courts. It is open to an
aggrieved party to contend that the requisite
opinion has not been formed or the decision is
based on collateral grounds or that it is an
arbitrary decision.The 1st respondent
challenged the opinion formedby the Government
on the ground of mala fide.But that ground
has failed .... The impugned orderwas not
attacked on the ground that the required
opinion was not formed or that the opinion
formed was an arbitrary one. One of the
conditions of the 1st respondent’s service is
that the Government can choose to retire him
any time after he completes fifty years if it
thinks that it is in public interest to do so.
Because of his compulsory retirement he does
not lose any of the rights acquired by him
before retirement.Compulsory retirement
involves no civil consequences.The
aforementioned rule 56(j) is not intended fortaking
any penal action against the government
servants. That rule merely embodies one of
the facets of the pleasure doctrine embodied
in Art. 310 of the Constitution. Various
considerations may weigh with the appropriate
authority while exercising the power conferred
under the rule. In some cases, the government
may feel that a particular post may be more
usefully held in public interest by an officer
more competent than the one who is holding.
It may be that the officer who is holding the
post is not inefficient but the appropriate
authority may prefer to have a more efficient
officer... While a minimum service is
guaranteed to the government servant, the
government is given power to energise its
machinery and make it more efficient by
compulsorily retiring those who in its opinion
should not be there in public interest." The Court further noted that a compulsory retirement was bound to have some adverse effect on the Government servant but such rule of retirement could only be acted upon after the officer had attained the prescribed age and further a compulsorily retired government servant did not lose any of the benefits earned by him till the date of his retirement. Allthe above observations apply to the facts of the appellant’s case. But the appellant seeks to distinguish that case because of the useof the expression "absolute rights" in F.R.56(J), rule 285 not being so emphatically worded. But that in our opinion makes no difference. Both rules give the Government the same or similar right: so long as the right is not qualified it must be held to be absolute and no distinction can be made between r.285 and F.R.56(J) on that ground. The last contention of the appellant that in the normal course of things he would have been superannuated at the age of 55 and would have reached the top position in the department the deprivation whereof was a civil consequence of the order, does not bear scrutiny. If the confidential reports could be acted upon his promotion could be withheld even if he was not made to retire ,compulsorily. If on the basis of the confidential reports he is asked to retire in compliance with that rule he cannot complain because of loss of position which he might have attained if there were no adverse remarks against him. In the result the appeal fails but we make no order as to costs. We however think it appropriate to take note of the skillful way in which the appellant put forward his case and dealt with the points of law with which as a layman he was not expected to be familiar. V.P.S. Appeal dismissed