SHIVAJI JOTIRAM JADHAV Vs. CHIEF EXECUTIVE OFFICER

JUDGEMENT

(1.) On 20th September, 1988 the petitioner was issued a so-called notice. This notice recited that it has been decided by the competent authority under the Rules to prematurely retire, the petitioner in public interest. He was further informed that he would stand retire within three months of the so-called notice or on 20th December, 1988 whichever is later. Feeling aggrieved against the said order, the petitioner made a representation on 11th October, 1988, which came to be rejected on 21st October 1988. The said decision was not communicated to the petitioner. The petitioner thereafter made a representation to the higher authority i.e. Commissioner on 24th November, 1988. The petitioner has not received any intimation in regard to the decision on the said representation. consequently as 20th December, 1988 was approaching, the petitioner was Constrained to file the present writ petition. In the writ petition Rule was issued but no interim relief had been granted. Thus during the pendency of the petition, the petitioner was prematurely retired.

(2.) An affidavit in reply has been filed in which it has been stated that the petitioner has been prematurely retired by virtue of Rule 10(4)(b) of the Mahasrashtra Civil Services (Pension) Rules, 1982, after assessing the petitioner's work and an opinion was formed to the effect that the petitioner should be retired prematurely in the "public interest". The opinion was formed by respondent No. 1 upon the overall assessment of the work of the petitioner and there is no mala fide intention behind the order of premature retirement. It is pointed out that after attaining the age of 55 years, the petitioner was given an extension by the office order dated 27th March, 1987 for one year only. However, during the said extension period i.e. 1987-88, his work was not found satisfactory and hence the Review Committee has taken a decision not to give him further extension. This is the only reason put forward by the respondents.

(3.) We have heard Counsel for the parties. It is submitted by Mr. Joshi, Counsel for the petitioner that the petitioner could have been prematurely retired only if his case fell within the purview of Government of Maharashtra Circular No. SRC-1077/XV dated 2nd September, 1977. It is submitted by Mr. Joshi that the said circular provides that Class III Government servants will be liable to be retired at any time after they attain the age of fifty five years. The circular further provides that the cases of Class-I and Class-II officers should be reviewed twice i.e. at the age of 49 years and 54 years. In the case of Class-III employees, review is to be done only at the age of 54. It is at this stage that it is to be decided whether a person is to be retained in service beyond the age of 55 years. In case of special circumstances it is open to a competent authority to place before the Appropriate Special Review Committee, for a fresh review the case of any Government servant who was previously found suitable for continuance in service beyond the age of 50 or 55 years as the case may be, but whose work or conduct was subsequently found to have so deteriorated as to require consideration of the question of his further continuance in service. Clause 4 of the said circular provides that there should be a single uniform criterion for determining the suitability of Government servants of all classes for continuance in service beyond the age of 50 or 55 years as the case may be. He lays special emphasis on the provision that no Government servant should be held to be unfit for continuance in Government service, unless his record is below average or he is physically unfit or his integrity is found to be doubtful on the basis of strong prima facie evidence. On the basis of the above it is submitted that having granted an extension to the petitioner to continue beyond the age of 55 years, the respondents had no valid reason for issuing the impugned order. Mr. Joshi submits that not only is the impugned order passed against the criteria laid down in the circular dated 2nd Sept. 1977 mentioned above but the order is not passed in the public interest. In fact, it is the submission of Mr. Joshi that the order smacks of arbitrariness, legal mala fides and capricious exercise of power. This, it is the submission of Mr. Joshi, is clearly contrary to the provisions of Article 14 of the Constitution of India which guarantees that all executive authorities when passing orders must act fairly and on the basis of principles of nature justice. On the other hand Mr. Zambre appearing for the respondents states that in fact no decision was taken to the effect that the petitioner will continue until the age of 58 years. When the case of the petitioner was reviewed at the age of 54 he was given extension only for a period of one year after the age of 55. Therefore, it was within the competence of the Respondents not to give any further extension on the basis of the work of the petitioner in the year 1987-88. It is further submitted by Mr. Zambre that the law has now been settled by the Apex Court to the effect that the order of premature retirement is not a punishment. The said order can also be passed on the basis of uncommunicated adverse remarks. Thus the order cannot be set aside purely on the ground that in passing the order uncommunicated remarks have been taken into consideration. He relies on the judgment of the Supreme Court in the case of Union of India v. V.P. Seth, 1994 AIR(SC) 1261. It is now settled that an order of compulsory retirement is not a punishment. Order of compulsory retirement usually does not attach any stigma nor any suggestion of misbehaviour. However, the facts and circumstances of the present case are quite different. The petitioner has a blemish-free record from 1957 to 1987. In 1988 an order is issued wherein it is mentioned that it is decided to prematurely retire the petitioner in public interest. This orders, which is styled as a notice, does not disclose anywhere as to what are the reasons for retiring the petitioner in public interest. No particular ingredient or public interest is mentioned. furthermore, it has not been stated anywhere that the record of the petitioner is below average. It is not stated that he is physically unfit. His integrity has not been found to be doubtful. Thus it is the submission of Mr. Joshi that it could not be said that the petitioner falls within the criteria for premature retirement as given in the instructions. We are inclined to agree with the submissions made by Mr. Joshi. A bald statement has been made in the affidavit in reply that the work of the petitioner was found to be not satisfactory during 1987-88. No material whatsoever has been placed on the record to show that the case of the petitioner falls within the parameters given in the instructions. Furthermore, it has nowhere been disclosed that the petitioner has outlived his utility as a member of the service. No reasons have been disclosed to show as to why he would be a burden on the service if he was permitted to continue in service. In short, no ingredient of public interest has been satisfied by the respondents. It is settled law that the validity of orders issued by statutory functionary must be judged by the reasons so mentioned in the order and the same cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. We are supported in this view of ours by two judgments of the Supreme Court. It was held in Mohinder Singh Gill and another v. The Chief Election Commissioner and others, 1978 AIR(SC) 851 as follows: