BHUPINDER SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner, a Brigadier in the Indian Army, challenges an order of his compulsory retirement.

(2.) The petitioner was commissioned in the Indian Army on April 18, 1943. In 1947, he was appointed in the Research & Development and Inspection Organisation of the Ministry of Defence. It appears H that during 1967 69 certain allegations of abuse of official position by the petitioner were made subject matter of investigation by the then Special Police Establishment but as a result of the report of such investigation and the further enquiry by the military authorities all the cases were dropped by the middle of the year 1970. It further appears that during the pendency of the investigation, the question as to the petitioner's promotion to the rank of Brigadier was kept pending and after the cases were dropped, the petitioner was promoted to the rank of Brigadier on October 12, 1970 and was appointed Director of Inspection (General Stores) on December 26, 1970. The procedure with regard to the retention, promotion and retirement of officers in the said Organisation was prescribed in a Presidential order and Annexure R-1 to the return to the rule filed by the Union sets out the aforesaid procedure, as amended uptodate. Para 5(a) of Annexure R-1 deals with retirement of officers and provides that the age of "compulsory retirement" would be 55 years provided that the continuance of an officer in service beyond the age of 52 years would be "subject to a review to determine his suitability" for such continuance. It was further provided that "the review will be carried out by the Research & Development and Inspection Selection Board well in advance of attaining the age of 52 years" and an officer not considered suitable for continuance in service as a result of the review "will be retired on attaining the age of 52 years." It further provides that in exceptional cases. Government may, on their discretion, grant "extension" of service upto the age of 57 years where that was considered necessary in "public interest." The 'petitioner was due to attain the age of 52 years on February 24, 1972. In its meeting held on October 8, 1971, the said Board laid down the criteria to be followed in connection with the review for determining the suitability of officers for continuance beyond the age of 52 years and it was decided that in dealing with these cases, "the service record as also other relevant considerations e.g. integrity and health would have to be taken note of." It was further decided that the Board would make their recommendation in each case "on the basis of the overall assessment in respect of all relevant aspects." The meeting then proceeded to consider the cases of a number of officers who were due to attain the age of 52 shortly and in the case of the petitioner it was observed that his case had to be examined "with reference to papers regarding SPE cases". The matter was again taken up in the Board's meeting on December 9, 1971 and it was felt that the case of the petitioner and another officer "would need careful consideration having regard to certain vigilance cases which had earlier come up." It was further felt that the Government decision regarding the age of retiremetit had been taken only very recently and in the ordinary course, these officers would have the opportunity to avail of six months' leave preparatory to retirement and considering this and also the state of hostilities then facing the country, it was decided that the petitioner and the other officer "might for present, be allowed to continue for a period of six months beyond the date of their attaining the age of 52 years" and that a "decision in regard to their continuance upto 55 years may be expected to be taken within this period." Pursuant to this decision, the Director General of Inspection informed the petitioner vide his letter of December 20, 1971 (Annexure P-l) thus :

(3.) The petitioner challenged the aforesaid order of retirement on the ground that the petitioner having been found suitable for continuance in service beyond the age of 52 years even though for six months was entitled to continue in service upto the age of 55 years and that: the retirement of the petitioner after continuing him in service beyond the age of 52 years was contrary -to the procedure laid down by the President in that behalf; that the review by the Board in December, 1971 could, not justify the compulsory retirement of the petitioner without any further review by the Board; that the decision in respect of suitability had relation to the integrity, efficiency and' medical fitness of the petitioner, which were clearly vouchsafed by the promotion of the petitioner to the rank of Brigadier, his subsequent appointment as Director of Inspection (General Stores), his annual confidential report regarding his performance prior to and after his taking over as Director of Inspection and extension for six months beyond February 24, 1972; that the decision to retire the petitioner was made on collateral and irrelevant consideration; and that it was vitiated on account of the prejudice against the petitioner "on the part of respondents No. 2 & 3", who constituted majority of the Board. It was further alleged that the retirement of the petitioner was calculated to deprive the petitioner of the benefit of higher pension as a Brigadier as the requisite service for this fell short of a month and 20 days. It was further alleged that the petitioner had been singled out for compulsory retirement while services of other officers were retainer particularly Brig. M. Jayaraman and Commodore Paradkar, against whom also there were allegations of misconduct which were similarly dropped after enquiry, but who were allowed to continue in service beyond 52 years. It was further alleged that the impugned order would deprive the petitioner of the benefit of Rule 22 of Leave Rules which entitled the petitioner to six months leave preparatory to retirement.