TaxTMI 
TaxTMI 
2024 (1) TMI 955
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....g the position referable to Anti-Dumping, demanded several favours. It may be true that there is no proof about such demands. However, that would be a requirement in the case of disciplinary proceedings. While exercising power under FR 56(j), the Appointing Authority can take note of such allegations. Once the employee is fully granted of his retirement benefits, and is retired, a bit earlier, than in the usual course, the exercise referable to punitive action is not necessary. 13. In Ashok Kumar Aggarwal vs. Union of India & Anr. (OA No. 1835/2020), the Tribunal observed as under:- "38. The situation may not have existed for imposition of penalty. However, the gist of judgments of the Hon'ble Supreme court on the subject is to the effect that the overall record of the employee can certainly be taken into account. At the end of the day, it is the subjective satisfaction of the appointing authority, which in turn is not easily available for judicial review, compared to other administrative decisions. 39. A close scrutiny of the provisions under Para XXIV of the Constitution of India, in which Articles 308 to 314 occur; or the CCS (CCA) Rules or Fundamental....
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....was selected for Central Deputation under Central Staffing Scheme, in the year 2008. 3. It is stated that another Non-Functional Upgradation ('NFU', for short) was given to him, in the year 2011 and he became the Director in the Directorate General of Anti-Dumping ('DGAD', for short) in the year 2014. He was posted as Regional Joint DGFT, Guwahati and Shillong in the year 2017. Thereafter, he was put in the Senior Administrative Grade ('SAG', for short) of ITS, at the level of Joint Secretary, on November 16, 2017 and was promoted on regular basis to SAG on February 27, 2018. 4. It is further stated that on May 10, 2018, the Appointing Authority of the petitioner passed an order retiring him from service, before he attained the age of superannuation, by invoking power under FR 56(j) of the Fundamental Rules ('Rules', for short). Pursuant thereto, a review petition submitted by the petitioner against the order passed by the respondent compulsorily retiring the petitioner was rejected by the respondent on June 13, 2019. As a result, OA was filed by the petitioner, challenging the order of premature retirement dated May 10, 2018, and order of rejection of the review, dated June ....
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.... OMs dealing with compulsory retirement under FR 56(j) qua SAG, this position remains same. Even OM dated March 21, 2014, specifically refers to said OMs in its appendix and marginal note. In fact, it is the cardinal rule with regard to Central Services Group A. 11. He submits that the above requirement is essential safeguard against arbitrary exercise of powers and the manner for taking a decision, having attributes of safeguards in favour of a Government Servant, and as such must be strictly followed. 12. It is his case that appointment of the petitioner to SAG was done by ACC and thus, it is the only authority competent to remove him. Logical corollary thereof, that any action having effect of removal cannot be undertaken by body different from appointing authority. 13. He further submits that law postulates that the recommendation for invocation of FR 56(j) has to be placed before the ACC. The requirement of "placing before the ACC" contemplates full disclosure, so as to enable it, to form a considered opinion. This is akin to sanctions required for certain actions. It has been held consistently that non-disclosure or not placing the matter before competent authority t....
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....t an independent view as to whether the material alleging imputation of integrity is sufficient to form such view. This primarily requires application of mind by a specialised agency. Particular view qua errors of judgment or one understanding of deviance amounting to "questionable integrity" would be a nebulous feature if left to the "charge making body". Essential safeguard - therefore-pre ordains the consultation with CVC. Presence of CVO (a Joint Secretary level officer) in the Review Committee is not same as Consultation with CVC. The Tribunal has fallen into error in not appreciating this aspect of the matter despite the fact that the same has been dealt with extensively in oral arguments. 18. He submits that the Tribunal has failed to appreciate that the review for the purpose of invocation of FR 56(j), in law, is required to be done either at the age of 50 years or at 55 years and it must be completed six months prior to attainment of said age. In the instant case, the petitioner is the only ACC appointee in the list of officers who was cherry picked for the review at the age of 55.6 years without there being any adverse material. Thus, the proceedings adopted, described....
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....of State of Gujarat v. Umedbhai M. Patel, (2001) 3 SCC 314 has been consistently reiterated in subsequent decisions in Pyare Mohan Lal v. State of Jharkhand and others, (2010) 10 SCC 693 and Punjab State Power Corporation Ltd. and Ors. v. Hari Krishan Verma, (2015) 13 SCC 156. 23. He submits that the findings of the Tribunal in paragraph 9 of the impugned order is perverse inasmuch as no instance was raised before the Tribunal which could indicate 'deviance having financial implication' on the part of the petitioner holding sensitive posts and as such observation of the Tribunal travels beyond respondent's case. 24. It is his submission that the fact that the same officer viz, Alok Vardhan Chaturvedi has been part of all three Committees (First Review, the Representation Committee and Second Review), thus reasonable suspicion of bias has vitiated the process. The Departmental bias and malicious conduct of Alok Vardhan Chaturvedi, who formed part of three committees brings out a case of lack of good faith and malice against petitioner ex facie curiae [Ref. R.P. Kapoor v. Pratap Singh Kairon, 1965 SCC OnLine All 414]. 25. It is also his submission that the Tribunal has ignor....
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....gainst the petitioner. The facts stated in said confidential note are plainly untrue, de hors the record and were product of "personal grudge" of its maker. For this reason alone, all the subsequent Authorities, i.e. UPSC, ACC and Vigilance authorities in departmental hierarchy had not given any credence to it at the time of subsequent promotion of the petitioner. 30. In fact, in comprehensive representation dated August 30, 2018, the petitioner has from objective facts, exhibited falsity apparent in said note and the conduct of the officer himself inasmuch as he resorted to tampering with the records. Even the confidential emails dated October 31, 2018 and dated February 02, 2019, highlighting the Representation dated August 30, 2018, addressed by the petitioner have been ignored. The Second Review Committee has, instead of examining the objective facts presented by the petitioner to determine the truthfulness of the confidential note from the departmental records, summoned its maker behind petitioner's back. This approach tantamount to "taking of adverse evidence behind the back", of the petitioner. 31. The Representation Committee has, ignored this serious lapse in procedu....
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.... 35. Whereas, it is the submission of Mr. Ravi Prakash, learned CGSC appearing for the Union of India/respondent that the instructions as contained in DoPT OM dated March 21, 2014 and further supplemented by DoPT OM dated September 11, 2015 empowers an appropriate authority with an absolute right to retire, if it is necessary to do so in public interest, a government servant under FR 56(j) or Rule 48 (1) (b) of CCS (Pension) Rules, 1972 as the case may be. 36. He submits that in every review, the entire service record has to be considered. The expression 'service record' will take in all relevant records and hence the review should not be confined to consideration of the ACR / APAR dossier. The personal file of the officer may also contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. Even un-communicated remarks in the ACRs / APARs may be taken into consideration. 37. He submits that DoPT has issued various instructions, from time to time, on the need for periodical review of the performance of Government servants with a....
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.... there may not be sufficient evidence to initiate departmental proceedings, may be taken into account. 41. He further submits that the DGFT had carried out the review in respect of 49 officers who belonged to ITS and were eligible for review, for their retention or otherwise in the Government service. The Review Committee chaired by the Commerce Secretary and comprising Additional Secretary in Department of Commerce, Joint Secretary & CVO and DGFT, reviewed the 49 officers belonging to the ITS and based on the review, the Committee recommended the retirement of 4 ITS officers, including the petitioner, under FR 56(j). The Committee noted that the continuation of the officers was not in public interest and considering the overall record of the officers, their general reputation among officers/stakeholders and their questionable integrity, recommended their retirement from service under the provisions of FR 56 (j). Along with remarks in the officer's APARs, the confidential note submitted by Director General of Anti-Dumping (DGAD) against the conduct of petitioner was taken on record for the said review. The said complaints received were assessed by the designated Review Commi....
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....e petitioner, as his APARs are very good and he has been promoted even after the remarks "there is room for improvement' d) The composition of the Review Committee on both the occasions had common members in terms of Shri Anup Wadhwan, former Commerce Secretary and Shri A. V. Chaturvedi, former DGFT; e) The Representation Committee on the first occasion also had Shri A.V. Chaturvedi, former DGFT, as the member, whereas he had been a member of the Review Committee." 45. He submits that in terms of OM dated March 21, 2014, and September 11, 2015, instructions have been laid down qua the composition of the Review Committees for different levels/categories of officials. It was specified therein that the Review Committee, as applicable in the instant case, may be headed by the Secretary of the concerned Ministry Department. It further specified that the Chief Vigilance Officer (who is a representative of CVC) should also be associated with the Review Committee. 46. He submits that in the instant case of the petitioner, the Review Committees on both the occasions were headed by the incumbent Commerce Secretary, i.e., Ms. Rita Teotia in the First Review Committee a....
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....maturely retire him. Thereafter, the recommendation of Second Review Committee was placed before the Representation Committee in terms of the Rule 56 (jj) of Fundamental Rules. After detailed deliberations on all the facts relating to the petitioner, the Representation Committee upheld the decision of the Second Review Committee and the petitioner was also informed of the rejection of his representation on June 13, 2019. 50. It is his submission that the composition of the Representation Committee has been notified by the DoPT, which comprises of Secretary, Department of Telecommunication, Joint Secretary, Cabinet Secretariat and a representative of the cadre controlling authority. During the first meeting of the Representation Committee, the cadre was represented by Alok Vardhan Chaturvedi, the DGFT and during the second meeting of the Representation Committee, the cadre was represented by Joint DGFT (HRD). To challenge the deliberations of the Representation Committee on the premise that the DGFT was the member, would tantamount to questioning the wisdom of two senior officers, designated by the DoPT, outside the Department of Commerce or DGFT. It would be a figment of imagina....
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....tegrity of any employee, actions or decisions taken by an employee, which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may also be taken into account. 55. He submits that it is only after obtaining the approval of Appropriate Appointing Authority, i.e., Commerce & Industry Minister (C&IM), they were retired from service with the direction that they shall be paid a sum equivalent to the amount of their pay plus allowances for a period of three months calculated at the same rate at which they were drawing before their premature retirement from service. 56. He submits that even in OM dated September 11, 2015, integrity is defined in paragraph 5, in terms of the observation of the Supreme Court in the case of Ramchandra Raju (supra). He also submits that reports of conduct unbecoming of a Government servant may also form basis for premature retirement. (Ref: State of Uttar Pradesh and Others v. Vijay Kumar Jain, (2002) 3 SCC 641. 57. It is his case that as per paragraph 7 of DoPT's OM as were relevant at that time, in the case of of....
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....nd questionable. He does not hold a good reputation in terms of integrity. This fact is borne out by entries in his APAR dossier. On few occasions, during different spells of his posting in DGAD, his unprofessional conduct has been taken on record also. In one case Shri Das as charged with insubordination. In other case, it has been reported that the officer approach in handling the cases has been unprofessional and questionable integrity. The Committee noted that the officer was recently promoted to the post of Additional DG. However, it was observed that as at the time of the promotion, the officer was technically clear from vigilance angle (in terms of extent instructions of DoP&T on granting vigilance clearance for promotion), the officer was promoted. The Committee recommended premature retirement of the officer in public interest, taking into account the questionable reputation and conduct of the officer." 62. It is his submission that in terms of Government of India (Allocation of Business) Rules, 1961 (as amended upto December 28, 2017) ('Business Rules', for short), the business of the Government of India is transacted in the Ministries, Departments, S....
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....ncluding demand of some favours in return for doing something in the case. However, considering the nature of allegations, they were reluctant to give a written complaint regarding this. 65. At last, he submits that modalities and approval for the premature retirement of the petitioner on May 10, 2018, under FR 56(j) is in accordance with the laid down guidelines of the DoPT and has been thoroughly examined and upheld by the Representation Committee followed by CAT, Principal Bench, Delhi and as such there arises no scope for any legal intervention on behalf of the petitioner whose service has been dispensed with for doubtful integrity and as such the writ petition needs to be dismissed. REJOINDER SUBMISSIONS 66. It has additionally been the case of Mr. Ghose that the respondent, in passing the order dated May 10, 2018 has acted arbitrarily in as much as there was no public interest in subjecting the petitioner with irreparable disadvantage- especially when his official credentials bespeaks of his integrity, competence and ability in performance of public duty assigned to him. In fact, no material existed prior to taking of the impugned decision, least the one justifying t....
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.... in public interest and due accord of authority concerned- at that point of time existed, and after petitioner's response to the memo the matter was closed. That stand alone incident, otherwise, cannot be a basis for formation of opinion qua merits, integrity, ability, competence and technical soundness of the petitioner. In fact, the approach adopted by the petitioner was most rational and pragmatic and was accepted by the authority concerned. Furthermore, the said communication relates to period when the petitioner was serving as a Director in Ministry of Finance and his service credential at places wherever he served has been found to be impressive enough to comport him as an asset to the government. 69. He further submits that for the first time in the Reply/Counter affidavit, it is stated that no provision of supplementary representation is contemplated in FR 56(j). It is plainly misconceived for FR 56(j) per se does not provide for mechanism to be adopted in the event of resort to grant of compulsory retirement and representation for reconsideration of such decisions. The procedure adopted to submit representation(s) and to enable the government to mitigate the injusti....
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....., MANU/SC/0500/1970, was predicated on assumption that compulsory retirement does not involve civil consequences and this judgment was followed in The State of Gujarat and Ors. v. Suryakant Chunilal Shah, MANU/SC/0761/1998, wherein this Court dealt with the concept of public interest in great detail. 73. He submits that it is a settled position of law that the order of compulsory retirement is not a punishment because the same does not wipe out service rendered. The restricted scope of judicial review lies in the sphere that such order being an executive act must not suffer from arbitrariness and the principles which govern the scope of judicial review in determining the legality of subjective satisfaction of executive action shall ipso jure apply in such cases. 74. It is his case that in the instant case there is no manifestation that authorities concerned have ever examined all the service records or other relevant materials at the time of alleged review. The mechanical exercise of power is apparent from alleged first stage itself. The OMs intended to give objectivity in exercise of discretion in such kind of case, clearly spelt out the period when officers can be subjecte....
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....e Barium Chemials Ltd. and Ors. (Supra), to contend the same. It is his submission that the instant judgment of the Supreme Court applies on all fours in instant case, as in absence of consultation with CVC as to "existence of materials" indicative of "reflecting adversely on the integrity of any employee", no opinion on existence, validity and sufficiency qua "integrity" can be formed. This principal impugned action is bad in law for formation of "bona fide opinion". 79. He submits that the law governing the field is clear on two counts: a) only President of India is vested with the powers to grant compulsory retirement under FR 56(j); b) the aid and advise tendered to the President must emanate from cabinet and given the case that the petitioner is SAG appointee, the aid and advice render to him must be that of ACC and not of any other authority inferior or different from ACC. If either of above stated conditions stands violated, the principal impugned order is without jurisdiction and is replete of its validity on that count alone. Reliance has been placed upon the judgment of the Supreme Court in V.C., Banaras Hindu University v. Shrikant, AIR 2006 SC 2304, to contend the sa....
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....tes. It is thus clear that only few officers were first handpicked for review by the Department. 82. He submits that the comments in the APAR, some 20 years back, cherry picked by the Review Committee as 'reflection on the competency and capability or integrity of the petitioner' are rather frivolous and by no stretch of imagination can be construed to be a negative attribute or reflection on integrity. Further, the same APARs rate the petitioner as an outstanding officer throughout. The only document relied upon by the Second Review Committee is a confidential note which is again based on hearsay and the Author himself says 'there is nothing to substantiate it'. Further, the comprehensive representation of the petitioner, dated August 30, 2018, to the Representation Committee, which dealt squarely on the confidential note and the conduct of the Author of that note himself, has been deliberately not presented to the Representation Committee and again ignored by the Second Review Committee to protect the Author of that note and perpetuate a wrongful action against the petitioner. 83. He also submits that the Representation Committee, in its minutes clearly reco....
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....y the requirement of Consultation with CVC as provided in OM of 1974. 86. It is his submission that the objection is to the presence of one Alok Vardhan Chaturvedi in the Representation Committee after being a part of the Review Committee, which has clearly carried the departmental and personal bias to the Representation Committee and that is apparent from the fact that the minutes of the Representation Committee was held up for over two months after the meeting. The acts of the respondent had become grave and untenable, because of the admitted fact that pressure and influence have been brought on the chairperson of the Representation Committee by way of sharing of information in confidence outside the representation committee. Therefore, presence of the same person in both the committees is a grave violation of administrative justice. In the instant case, instead of examining the records and forming an opinion thereon, an officer who has long left the department was consulted from back door to infuse his personal vendetta and the same is treated as a justification for impugned action. It is thus a clear case where the consideration for impugned action is extraneous. It is settl....
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....ll along rated as an outstanding officer without any blemish. In fact after getting to know the grounds of the review, through the reply filed by the Department to the first OA filed by the petitioner in August 2018 before the Tribunal, the petitioner filed a detailed representation dated August 30, 2018 to the Representation Committee commenting upon the frivolous nature of the grounds and refuting the unsubstantiated and hearsay allegation made by the then Additional Secretary, Inderjit Singh through a Confidential note dated March 30, 2017 and also bringing to the notice of the authorities the unethical and mischievous conduct of the author of the note itself. Though the Representation Committee met on September 06, 2018 to consider the representations, the Representation dated August 30, 2018 was deliberately and mischievously not placed before the said Representation Committee and as such not considered by the said Committee. The respondent, in its reply to the OA has admitted this fact and pleaded that there is no procedure to consider the supplementary representation and hence the representation dated August 30, 2018 was not considered at all by the Representation Committee.....
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....ed in the Counter affidavit. The respondent further admits that only approval of the commerce minister was obtained to prematurely retire all the four officers. While the other three officers were at the Junior administrative grade (JAG) and Minister is competent to approve their premature retirement, the petitioner was an officer at SAG, recently promoted to the said Grade with the approval of UPSC and ACC. Apart from the statutory requirement of approval of ACC for SAG and above officers and ACC appointees, Commerce Minister was not competent to approve the premature retirement of the petitioner on the very principle that when a higher authority approves the promotion and appointment, a lower authority cannot approve his premature retirement. 89. He also submits that as regards the averment of the respondent that the integrity of the petitioner has been commented upon over a period of time at different levels, it may be noted that the respondent has picked up stray and frivolous comments in ACRS/APARs of 1997- 98, 1998-99 as reflection on integrity. The remarks in the said ACRs quoted by the respondent, by no stretch of imagination can be construed as an adverse comment on the....
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....us DG of the same department who had given a 9.6 grading to the petitioner. Even, the APAR of the relevant period did not report anything adverse on the officer. Therefore, reliance on a single piece of paper, based purely on hearsay and biased view of an officer, to hold it as to 'aggravate the suspicion on the integrity' is an aggravated colourable exercise by the respondent. 91. He further submits that the CVC guideline does not even permit to take cognizance of such complaints. But the respondent found it fit to rely on such a note to take the extreme step of easing out the petitioner without even taking note of the representation and the issues raised by the petitioner therein. As far as the contents of the said note and allegations levelled therein are concerned, the petitioner had comprehensively explained and refuted all allegations in his comprehensive representation dated August 30, 2018. It was clearly explained in the said representation that it was the duty and responsibility of the petitioner, as a part of quasi-judicial procedure, to examine all submissions made by different parties and bring all alternatives and options before the Designated Authority and....
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....in favour of the officer. The respondent agrees that it is true that the petitioner did not face any disciplinary proceedings in his career but goes on to state that the fact remains that he was holding a very sensitive post, having serious financial implications for the country and there were instances where certain deviations were noticed on his part without specifying what was the deviation. In fact, all past records of the petitioner are 'Outstanding' with very high grades and officers after officers have lauded the analytical skills and decision-making ability of the petitioner. The petitioner had been all along held to be an asset to the organisation. 94. He submits the following qua the minutes of the Second Review Committee minutes:- I. The Committee noted that intent and conduct of the petitioner while dealing with files as well as with clients, has been obstructive and questionable- Nothing in any of the APARs of the petitioner in the entire over 25 years career shows the same. In fact, all the APARs/ACRs, record in glowing terms, the constructive and positive attitude of the petitioner. A complete statement of all ACRs/APARs of over 20 years was placed before....
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....ical and unbecoming of a senior officer because of tampering of records and use of coercion on subordinate officers. This fact was brought to the notice of the Secretary as well as the Committee. But both preferred to ignore this, and the entire process is driven to protect the said officer at the cost of the petitioner. VI. The Committee noted that the officer was recently promoted to the post of Additional DG. However, it was observed that at the time of the officer was technically clear from vigilance angle- The confidential note was of March 30, 2017 and promotion order to SAG was issued with approval of UPSC and ACC on November 16, 2017. If there was such a serious charge against the petitioner as has been brought out in the Review committee note, it is not understood what prevented the Department to conduct an enquiry and apprise the CVC, UPSC and ACC. While the petitioner was found to be fit by UPSC and ACC headed by Prime Minister, for promotion to SAG based on seniority and fitness, within few months the Committee headed by a secretary finds the petitioner not fit to continue in service. 95. So, on the basis of the above submissions, the petitioner seeks to set....
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....romotion with the approval of ACC. It is a settled position of law that once promotion is granted, absent of any new and adverse material, compulsory retirement cannot be inflicted, specially, when no adverse remark has been found in the subsequent APARs, which questions the lack of integrity on the part of the petitioner; x. One officer viz. Alok Vardhan Chaturvedi, was made part of all the three committees; thus, reasonable suspicion of bias has vitiated the process; xi. The order of the Tribunal is contrary to the settled position of law in terms of the judgments referred by the petitioner before the Tribunal; 97. At the outset, it may be stated here that in substance the grievance of the petitioner is with regard to the action taken by the respondent compulsorily retiring the petitioner on May 10, 2018 by invoking FR 56 (j). 98. Though several OMs have been relied upon by the counsel for the parties it may be stated here that on the relevant date, i.e., on May 10, 2018, it was the OM dated September 11, 2015, which was holding the field as regards to principles governing the invocation of FR 56 (j). The said OM specifically refers to the judgment of the ....
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....ase is placed before the ACC." (emphasis supplied) 101. Though this submission of Mr. Ghose, looks appealing on a first blush, but the OM of 2015, which held the field on the date when the petitioner was compulsorily retired states otherwise, inasmuch as, it has been stipulated that CVO in the case of gazetted officers or his representative in the case of non-gazetted officer, has to be associated, in case the record of such an officer reflects adversely on his/her integrity. 102. In the present case, the record shows that CVO was indeed part of the Review Committee which took the decision to compulsory retire the petitioner. Hence, this plea of Mr. Ghose, needs to be rejected. 103. It is also one of the submissions of Mr. Ghose that the petitioner being appointed by the ACC, the order of prematurely retiring the petitioner could have only been passed after seeking the approval of the ACC. The said plea is without any merit, inasmuch as, Mr. Ravi Prakash is right in submitting that in terms of the Government of India (Transaction of Business) Rules, 1961, ACC is consulted only for appointment, empanelment and upgradation of the officer and not for retirement of th....
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....hat this hearsay evidence has been weighed by the Second Review Committee for approving the recommendation of the First Review Committee of compulsorily retiring the petiioner. 108. We are of the view that this submission of Mr. Ghose is also not appealing for the reason that the confidential note prepared by one Inderjit Singh was inter alia based on complaints received against the petitioner as well as the allegations made by the representatives of the domestic industry. The contents of the confidential note has been reproduced as under for ready reference:- "His overall approach in handling a recent case was unprofessional, with calculations and conclusions varying several times. During the processing of this case, he tried to push for some principles, which, as per existing rules/conventions of DGAD, are not allowable, and have not been allowed in the past in any other case. Yesterday (29.03.2017), some of the representatives of domestic industry applicants in this case met me and made serious allegations against Shri Das, including demand of some favours in return for doing something in this case. However, considering the nature of allegations, they were r....
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.... according to Mr. Ghose, is ex facie bad in law, as the comprehensive representation dated August 30, 2018, which refuted all the allegations as made against the petitioner by Inderjit Singh, has not been considered by the representation committee. 112. We have perused the conclusion drawn by the Representation Committee on September 07, 2018. From the same, it is noted that the Representation Committee had remanded the matter back to the department for taking the case of the petitioner back to the designated Review Committee for re-examination of the recommendation and then placing it before the Competent Authority for appropriate action. On re-consideration, the Second Review Committee, on May 03, 2019, had referred to the representation dated June 1, 2018 made by the petitioner before the Representation Committee, wherein it has been stated as under: "a. The extant instructions of DoPT provide that an officer could be compulsorily retired in public interest, after a review under FR 56 (j), on attaining the age of 50 years. While he attained the age of 50 years in 2013, he has been retired in 2018, after having attained the age of 55 years, without any jurisdiction to....
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.... remark was also disclosed to the petitioner, however, no representation was submitted against the same. 115. It is also to be stated here that the Second Review Committee had also corroborated the contents of the confidential note by examining the file of DGAD (author of the confidential note), while re- examining the case of compulsory retirement of the petitioner. 116. Finally, the Second Review Committee, did not find the contentions as raised by the petitioner, as tenable. It was of the view that at the Senior Level of Bureaucracy, the integrity of the Officer in terms of his conduct and action is of paramount importance and as such, integrity of an officer has to be above board. Therefore, it decided in public interest to reaffirm the earlier decision of recommending the compulsory retirement of the petitioner. 117. So, the plea of Mr. Ghose, of non-consideration of the representations, more particularly, representation dated August 30, 2018, wherein the petitioner has, in paragraphs 15 to 17 of the same, which we reproduce as under, refuted the allegations made against him by Inderjit Singh, is not tenable. More so, when the Second Review Committee has also corrobor....
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....egation on integrity are absolutely unfounded and baseless." 118. That apart, the very fact that the APAR of 2014-2015, does comment on the aspect of integrity that, "there is a room for improvement", which has not been contested by the petitioner and has also been adverted to, by the Second Review Committee and reiterated in its decision, therefore, even assuming that the comprehensive representation dated August 30, 2018, has not been considered, wherein, to an extent, the petitioner has highlighted that the allegations made against him are unsubstantiated and the AS&DA (Inderjit Singh) being new in the department, could not handle the extreme pressure brought on him and succumbed to a well calculated strategy of the industry, to remove the inconvenient officer, the plea of non- consideration of the comprehensive representation rendering the order dated May 10, 2018, as illegal and arbitrary, cannot be accepted, specially, when no prejudice has been caused to the petitioner. 119. It is also pertinent to highlight here that the Second Review Committee on re-consideration of the case of the petitioner, has even interacted with AS&DA (Inderjit Singh), to understand the content....
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.... that in respect of matters regarding the conditions of service for which No. provision or insufficient provision has been made in those rules, the rules, directions or orders for the time being in force, and applicable to the officers of comparable status in the Indian Administrative Service and serving in connection with the affairs of the Union of India, shall regulate the conditions of such service. Thus Rule 16(3) of the All India Services (Death- cum-Retirement Benefits) Rules, 1958 ('the Rules of 1958' for short) would be applicable to the officers of the Delhi Higher Judicial Service. Clause (3) of Rule 16 of the Rules of 1958 was substituted in 1972 specifying the age of premature retirement to be 50. Rule 16(3), after its substitution, reads as under: - 16 (3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months, previous notice in writing, or three months pay and allowance in lieu of such notice, require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or....
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....mphasis supplied) 123. One of the submissions of Mr. Ghose is also that officer viz. Alok Vardhan Chaturvedi has been part of all the three committees i.e., First Review Committee, the Representation Committee as well as the Second Review Committee and thus, there is reasonable suspicion of bias which has vitiated the process. On this, the stand of Mr. Prakash is that as per the DoPT instructions, the Representation Committee must comprises of Secretary, Department of Telecommunication, Joint Secretary, Cabinet Secretary and a representation of cadre controlling authority. Suffice to state, Alok Vardhan Chaturvedi, as DGFT, was present in the Representation Committee representing the cadre of the ITS and whereas during the second representation committee, the cadre was represented by the Joint DGFT. In that sense, the presence of Alok Vardhan Chaturvedi was necessary as a representative of ITS. In any case, presence of Alok Vardhan Chaturvedi cannot be said to have vitiated the process for the reason that the final decision has been taken by the Minister as a delegate of the President. Moreover, every committee like First Review Committee, the Representation Committee and the Se....
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....required to make the members of the Second Review Committee as well as the members of the Representation Committee parties to these proceedings in order to elicit affidavit from the said members on the allegations made by the petitioner that they have been influenced by the respective DGFTs. In other words, in absence of them being made parties to the present petition, this plea of Mr. Ghose cannot be sustained. 126. Insofar as, the plea of Mr. Ghose, that the petitioner having been granted promotion to the post of Joint Secretary, subsequent to the making of the confidential note, he could not have been compulsorily retired is concerned, the same is also not appealing to us. This we say so, as the parameters adjudged for promotion and for compulsory retirement are totally different. In case of promotion, the record pertaining to last five years before the actual date of promotion is taken into consideration. Whereas, in the case of compulsory retirement, the same entails examination of the complete service record of the officer concerned. 127. That apart, the law in this regard is well settled. The Supreme Court in the case of Central Industrial Security Force v. Om Prakash,....
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....ement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant." 13. There are numerous other judgments upholding the orders of premature retirement of judicial officers inter alia on the ground that the judicial service is not akin to other services. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty ....
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....(L&S) 115] wherein this Court held as follows : (SCC p. 513, para 4) "4. In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a government servant should be completely ignored, once he is promoted. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past." 16. Reference may also be made to the judgment of this Court in Pyare Mohan Lal [Pyare Mohan Lal v. State of Jharkhand, (2010) 10 SCC 693 : (2011) 1 SCC (L&S) 550] in which while dealing with the concept of washed-off theory, this Court after dealing with the entire case law on the subject held as follows : (SCC pp. 704-....
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....while deciding whether a judicial officer should be compulsorily retired. 17.5. The "washed-off" theory does not apply in case of judicial officers specially in respect of adverse entries relating to integrity. 17.6. The courts should exercise their power of judicial review with great circumspection and restraint keeping in view the fact that compulsory retirement of a judicial officer is normally directed on the recommendation of a high-powered committee(s) of the High Court. 18. It is in the light of the aforesaid law that we will now consider the factual aspects of the present case." 129. Having said, Mr. Ghose in support of his contentions, as discussed above, has also relied upon the following judgments: 1) Dev Dutt v. Union of India and others, (2008) 8 SCC 725; 2) Union of India v. M.E. Reddy and another, (1980) 2 SCC 15; 3) N.C. Dalwadi v. State of Gujarat, (1987) 3 SCC 611; 4) Smt. S. R. Venkataraman (supra); 5) Umedbhai M. Patel (supra); 6) D. Ramaswami v. State of Tamil Nadu, (1982) 1 SCC 510; 7) Saroj Kumar Dutta v. Union of India and others, 2014 SCC OnLine Cal 5034; 8....
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....it Singh meet the allegations of mala fide made against him by the petitioner. Suffice to state, it cannot be the case of the petitioner, that the Minister as a delegatee of the President, was influenced by Inderjit Singh, to pass an order of compulsory retirement. 134. Insofar as judgment in the case of N.C. Dalwadi (supra) is concerned, it is the case wherein the Supreme Court has held that even if an order of compulsory retirement is passed, it is upon the Government to show that the order passed was necessary in public interest, otherwise the order would be bad in law. Suffice to state, the very fact that the petitioner was holding the post of Joint Secretary, which is a Senior Public Post in the bureaucracy, it is expected that the integrity of the Officer in terms of his conduct and action, is of paramount importance and a decision of this nature pre-supposes a decision in public interest. 135. As stated above, reliance has also been placed in the case of Smt. S. R. Venkataraman (supra), wherein, it has been held by the Supreme Court that it is not necessary to examine the question of malice in law if a discretionary power has been exercised for an unauthorised purpose.....
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....sentation Committee therein, was of the view that the Committee had not used its independent application of mind and that too without considering the grounds incorporated in the representation of the petitioner therein. Suffice to state, in the present case as noted above, the Representation Committee as well as the Second Review Committee, have duly considered the case of the petitioner in the meaningful manner and arrived at a conclusion to compulsory retire the petitioner, after considering the entire service record of the petitioner. Thus, this judgment shall also be inapplicable in the facts of the present case. 139. As far as the judgment in the case of Swaran Singh Chand (supra) is concerned, it was the case wherein the Supreme Court has held that if an order suffers from malice in law, neither any averment is required to be made nor strict proof thereof can be insisted upon, as such an order being illegal would be wholly unsustainable. Suffice to state, in the present case, as noted above, the order passed by the respondent, compulsorily retiring the petitioner is not an arbitrary order, inasmuch as, the same has been passed in accordance with the tenets of law i.e., in ....
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.... as the Representation Committee, have examined in detail, the entire service record, including, the confidential note, and remarks made in the APARs of the petitioner questioning his integrity and reputation and upon their subjective satisfaction only, the decision was taken to compulsorily retire the petitioner. Therefore, this judgment shall also not help the case of the petitioner. 144. Reliance is also placed by Mr. Ghose on the judgment of the Supreme Court in the case of Singhara Singh and others (Supra) to contend that it is a settled law that if a law prescribes something to be done in a particular manner, all other courses stands barred. In other words, it is his submission that as per the prescribed procedure, before compulsorily retiring the petitioner by invoking FR 56 (j), the respondent should have consulted CVC and by not doing so, the respondent has exercised its power in an arbitrary manner. Suffice to state, as already held above, that the OMs of 2014 and 2015, which held the field on the date when the petitioner was compulsorily retired, did not contain any such stipulation which provided for consultation with CVC. Hence, to state that respondent has acted in....
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....able manner and as such these judgments shall also not help the case of the petitioner. 148. Reliance has also been placed on the judgment of the Supreme Court in the case of Ankit Ashok Jalan (supra) to contend that if the materials preferred with the representations are not analysed or the representation is not honoured within a reasonable time frame, the same would mean that the very safeguard of preferring representation has been violated. Suffice to state that the representation of the petitioner dated June 1, 2018, has been examined by the respondent in detail and even after perusing the representation, the Representation Committee had remanded the case of the petitioner back to the Second Review Committee to consider the case of petitioner afresh. The Second Review Committee after due deliberation had only come to the conclusion that the case of the petitioner was fit for compulsory retirement. Therefore, this plea of Mr. Ghose is also liable to be rejected and as such the aforesaid judgment will also not come to his aid. 149. Reliance has also been placed on the judgment of the Supreme Court in the case of J.N. Sinha & Ors. (supra) to contend that the judgment in J.N.....
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....ed May 10, 2018 and thus, this judgment will also not apply to the facts of this case. 151. He has also relied on the judgment of the Supreme Court in the case of Satish Kumar Singh (supra), wherein, it has been categorically held by the Supreme Court that if a process leading up to an appointment has failed to look into relevant materials having a nexus to the object and purpose of the legislation or has taken into account irrelevant circumstances, such a decision would stand vitiated on the ground of official arbitrariness. Suffice to state that this judgment shall have no applicability in the facts of the present case for the reason that the order passed by the respondent had taken into consideration all the relevant materials including the entire service record of the petitioner and as such it cannot be held that the decision taken to compulsory retire the petitioner has been taken in an arbitrary manner and without taking into consideration any relevant material. 152. Reliance has also been placed on the judgment of the Supreme Court in the case of V.C., Banaras Hindu University (supra) to contend that the law governing the field of compulsorily retirement is clear on tw....