C U SREEDHARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition under Art.226 of the Constitution by a Deputy Director of Fisheries in the State. He has prayed that the records leading to Ext. P5 order dated 23-10-1975 may be called for and a writ of certiorari or any other appropriate writ or direction be issued quashing the same. He has also prayed for incidental reliefs. The order Ext. P5 is a very short one. We shall extract it:

(2.) The petitioner had joined the Department of Fisheries in 1950 as an Inspector in the Madras State. When the State of Kerala was formed, the petitioner who was working as Inspector of Fisheries opted for service in the Kerala State. He came here as Inspector in the Kerala Department of Fisheries. He was promoted as Superintendent in 1962, Assistant Director in the same year, Deputy Director (which is a selection post) in 1967 and Joint Director in the year 1975 on a temporary basis under R.31(a) of Kerala State and Subordinate Services Rules. Ext P2 is the Annual Confidential Report of the petitioner for the year 1971 containing entries to the effect that bis health and physical capacity, personality and bearing, conduct, aptitude, knowledge of work, willingness to assume responsibility, capacity for decision making, patience, tact and courtesy, control of staff (power of commanding respect and enforcing discipline), are all "good". The report also contains entries to the effect that he is intelligent, impartial, honest and that his judgment Is fair. Under the beading "Matters of official and public interest in which the officer has specialised himself or taken special interest", the entry in Ext. P2 is "Generally in all Fisheries matters", and it is said further that the officer discharged the duties of his office during the year 'satisfactorily'. What is more, the report concluded with the statement that the petitioner is "An efficient Officer" This report was followed by another report, Ext. P3 for the period 1-1-1973 to 4-4-1973 in which there are more or less entries on the same lines as in Ext. P2. We may however specifically advert to the "General remarks" column. Against that, it is said "A capable and hard working officer. Can be trusted with responsible work. Has gained all round experience in Fisheries administration matters. Deserves encouragement". No confidential report or any order or remarks which may indicate that the officer was wanting in any respect has been either made available or relied on. In the Original Petition it was specifically averred that the petitioner had an unblemished career during which several remarks of appreciation and compliments were made in the confidential reports and that it was unbelievable that the Government should have decided to retire such an officer and that, after long years of meritorious service. The reply to this averment in the counter affidavit was brief. The first respondent, the State of Kerala contended themselves by stating that notwithstanding the entries in the confidential records the Government has the right to determine whether it is in the interest of the public to continue an officer in service and that the Government had come to the conclusion that it is in the public interest to compulsorily retire the petitioner The view points expressed in a number of judicial decisions, particularly by the Supreme Court on the various aspects which should arise in considering the scope and ambit of judicial review when action is taken under a rule similar to R.60A have been briefly referred to in the counter affidavit and it has been emphasised that the petitioner has no right to continue in service, that R.60.A is one of the conditions of his service, that there is no question of any enquiry being held, that he is not entitled to any notice, that the principle of natural justice is not attracted when action is taken under R.60A, that the right of the Government to decide whether it is in the public interest to retire an officer is an absolute right, that though the word 'absolute' is not in R.60A unlike in the case of R.56(j) of the Fundamental Rules it made no difference, that the decision to be taken by the Government is on the basis of a subjective satisfaction of the Government, that that decision is not open to question and there is no scope whatever for interference by the court. The learned Judge who heard the petition was of the opinion that however limited may be the judicial scrutiny in regard to the validity of an order passed under R.60A, the Court is entitled to know the reasons or the grounds that prompted the Government to take action under the rule. We do not think the learned Judge meant that the grounds or reasons must be disclosed so that this Court may consider the weight of those reasons or grounds and come to its own conclusions as to whether those grounds or reasons afforded material for this Court to come to the conclusion that it was or was not in the public interest to continue the petitioner in service. What the learned Judge meant was that there must be some relevant material which would help the Government to come to the conclusion that it was in the public interest that he should be compulsorily retired. The Court therefore directed that a fuller counter affidavit must be filed. And accordingly a second counter affidavit has been filed in the case on the 16th January, 1976. The relevant averments in that affidavit are that "the order Ext. P5 was passed by the Government after considering all the aspects of the matter'', and in Para.5, 6 and 7 some details regarding certain alleged irregularities committed by the petitioner have been stated. We may summarise those irregularities. It is said that the petitioner was involved and was responsible for irregular issue of Nylon twine to certain Cooperative Societies. Secondly it is said that the entrustment of a boat with a private person resulted in loss to Government because that private person with the collusion of some others removed and disposed of the torpedo engine of the boat to some party in Bombay Finally it was also mentioned that the petitioner was involved in the misuse of mechanised fishing boats issued on hire purchase system. These averments do not indicate clearly what exactly were the irregularities committed by the petitioner nor do they indicate or specify the time when those irregularities happened. From what we are able to glean these irregularities took place before the entries were made in the confidential records. Ext. P3. We may also mention that these irregularities did not stand in the way of the petitioner being promoted to the high office of the Joint Director. He had to step down from that post not because he was found to wanting in the discharge of his duties or responsibilities but due to the fact that a more senior officer had returned to the service and he had to make way for him. In these circumstances it the learned Judge who wrote the elaborate reference order felt disturbed and doubted the validity of the order Ext. P5, it is not surprising. But this type of disturbances in our minds may not afford grounds for interference with orders of compulsory retirement under R.60A.

(3.) The learned Advocate General argued the case at length and raised many points and went to the extent of contending that we cannot look behind the order. He emphasised if the order stated that it is in the public interest to retire the particular Government officer that was the end of the matter as far as courts are concerned and it must be taken that it was in the public interest and the action being warranted by rule which embodied conditions of service of the petitioner, no relief can be granted. The Advocate General furnished us with a summary of his arguments under several heads running to 11 in number each of which was sought to be supported by a number of decisions of the Supreme Court. Regarding most of the grounds urged by the Advocate General there can be little, if any, controversy. It is unnecessary to refer to all the decisions relied on by the Advocate General to come to the conclusion that most of the grounds urged by him are well established. Such grounds are that (1) rules similar to R.60A of the Kerala Service Rules embodied facet of the pleasure doctrine in Art.310 of the Constitution; (2) the rule is not intended for taking penal action; (3) compulsory retirement under R.60A or similar rules involves no civil consequence; (4) the rule embodies a condition of service; (5) there is no need to give any opportunity to the Government servant before action is taken under the rule and that no principle of natural justice is involved; (6) there is no need to conduct any enquiry; (7) after the attainment of the age mentioned in the rule, the Government officer has no light to continue in office; (8) the light to be in public employment is a right to hold it according to rules; (9) the absence of the word 'absolute' in R.60A which occurs in R.56(j) of the Fundamental Rules makes no difference and that even in the absence of the word, the power of the Government is absolute; (10) the satisfaction to be reached by the Government is a subjective satisfaction.