1. By way of this petition invoking Article 226 of the Constitution of India, challenge is made to the order dated 03.01.2011, whereby premature retirement of the petitioner is ordered by the Government. The said order is stated to have been issued in exercise of the powers under Rule 10(4) of the Gujarat Civil Services (Pension) Rules, 2002 (‘Pension Rules, 2002’ for short). Along with the impugned order, the petitioner is also paid three months notice pay.
2. Heard learned Senior Advocate Mr. Y.N. Oza with learned advocate Mr. Ashish B. Desai for the petitioner and learned Advocate General Mr. Kamal B. Trivedi assisted by Ms. Sangeeta Vishen, learned AGP, for the respondent authorities.
3. The bone contention raised on behalf of the petitioner is that Government is not empowered to pass the impugned order, since Rule 10(4) of the Pension Rules, 2002 would not be applicable in case of petitioner, who was working as Superintending Engineer. For this purpose, reference is made to Rule 10(3) of the Pension Rules, 2002. Be it noted that the Pension Rules, 2002 came into force w.e.f.
15.11.2002. Before that, the Bombay Civil Services Rules, 1959 (‘BCSR’ for short) were in force. Rule 161 of the BCSR, read as under :
Rule 161 of the Bombay Civil Services Rules,1959
“161 (1) (a) Except as otherwise provided in the other clauses of this Rule, the date of compulsory retirement of a Government servant other than a Class IV servant, is the date on which he attains the age of 58 years.
Provided -
(iii) He may be retained in service after the date of compulsory retirement only with the previous sanction of Government on public grounds which must be recorded in writing.
(aa) Notwithstanding anything contained in clause (a).-
(i) An appointing Authority shall, if he is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant to whom clause (a) applies by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice:
(1) if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of direct recruitment to which is below 35 years, on or after the date on which he attains the age of 50 years, and
(2) if he is in any other service or post, the age limit for the purpose of direct recruitment to which is below 40 years, on or after the date on which he attains the age of 55 years:
(ii) any Government servant to whom clause (a) applies may, by giving notice of not less than three months, in writing to the Appointing Authority, retire from service after he has attained the age of 50 years, if he is in Class I or Class II service or post or in any unclassified gazetted post, the age limit for the purpose of recruitment to which is below 35 years and in any other case, after he has attained the age of 55 years:
Provided that it shall be open to the Appointing Authority to withhold permission to retire to a Government servant who is under suspension, or against whom Departmental proceedings are pending or contemplated and who seeks to retire under this sub-clause.
(b) A Government servant in Class IV service should be required to retire at the age of 60 years. He may not be retained in service after that age except with the sanction of Government.
(c) The following rules are applicable to particular services:
(i) Except as otherwise provided in this sub-clause, a holder of the post of the Chief Judge of the Court of Small Causes, Ahmedabad, whether he is recruited directly or is promoted from subordinate post, should ordinarily be retained in service till the age of 60 years, if he continues efficient upto that age otherwise he may be required to retire at the age of 58 years or at any time thereafter.
(ii) (1) Except as otherwise provided in this sub-clause, Government servants in the Bombay Services of Engineers, Class I, must retire on reaching the age of 58 years and may be required by Government to retire on reaching the age of 50 years if they have not attained the rank of Superintending Engineer.
(2) Subject to the requirements of this sub-clause as to reappointment Government may, in special circumstances, which should be recorded in writing, grant an extension of service not exceeding three months, to a Chief Engineer.
(3) No Chief Engineer shall, without re- appointment, hold the post for more than five years, but re-appointment to the post may be made as often and in each case for such period not exceeding five years, as Government may decide, provided that the term of reappointment shall not extend more than three months beyond the date on which he attains the age of 58 years (Officiating service, unless followed by confirmation without interruption in such service, does not count towards the period of five years mentioned in this sub-clause).
(iii) Stipendiary patel's appointed under section 16 of the Land Revenue Code 1879, and section 5 of the Village Police Act, 1867 may be required to retire at the age of 58 years but should ordinarily be retained in service if they continue efficient up to the age of 60 years. Extensions of service after that age should not be granted except in cases where no other suitable person is available or when a patel's work is specially good provided the patel concerned is considered to be still fit for service.
(iv) The Principal Judge, Ahmedabad City Civil and Sessions Court, should be required to retire on attaining the age of 60 years.
(v) The Chief Metropolitan Magistrate for metropolitan area of the city of Ahmedabad should ordinarily be retained in service till the age of 60 years if he continues efficient up to that age, otherwise he may be required to retire at the age of [58] years or at any time thereafter.”
Rule 10 of the Pension Rules, 2002 reads as under :
Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002
Rule-10 Age of retirement : (1) Except as provided in this rule, every Government employee, other than a Class IV employee, shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years. The Government employee may be retained in service beyond the age of fifty-eight years only with the previous sanction of the Government in the public interest, the reason for it shall be recorded in writing.
(2) A Government employee in Class IV service shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years. The Government employee may be retained in service beyond the age of sixty years only with the previous sanction of Government.
Explanation : For the purpose of sub- rules (1) and (2), a Government employee whose date of birth is the Ist day of a month shall retire from service on the afternoon of the last day of the same month in which he attains the age of fifty-eight years or sixty years, as the case may be.
(3) The following conditions are applicable to particular services :-
a) Except as otherwise provided in this sub-clause, a holder of the post of the Chief Judge of the Court of Small Causes, Ahmedabad, or the Chief Metropolitan Magistrate for Metropolitan area of the city of Ahmedabad, whether he is recruited directly or is promoted from subordinate post, shall ordinarily be retained in service till the age of sixty years, if he continues efficient upto that age, otherwise he may be required to retire on attaining the age of fifty- eight years or at any time thereafter.
b) The Principal Judge, Ahmedabad City Civil and Sessions Court, shall be required to retire on attaining the age of sixty years.
c) Except as otherwise provided in this sub-clause, Government employees in the Gujarat Services of Engineers, Class-I, shall retire on attaining the age of fifty eight years and may be required by the Government to retire on attaining the age of fifty years if they have not reached to the rank of Superintending Engineer.
d) (i) Subject to the requirements of this sub-clause as to reappointment, the Government may, in special circumstances which should be recorded in writing, grant an extension of service not exceeding three months, to a Chief Engineer.
(ii) No Chief Engineer shall, without re-appointment, hold the post for more than five years, but re-appointment to the post may be made as often and in each case for such period not exceeding five years, as the Government may decide, provided that the term of reappointment shall not extend more than three months beyond the date on which he attains the age of fifty eight years. (Officiating service, unless followed by confirmation without interruption in such service, does not count towards the period of five years mentioned in this sub-clause)
e) Government employee who while in Government service is appointed as Chairman or Member of the Gujarat Public Services Commission, shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty two years, whichever is earlier, as laid down in Article 316 (2) of the Constitution of India, even though he attains the age of compulsory retirement according to the service to which he belonged during his tenure as Chairman or Member of the Commission.
(4) Notwithstanding anything contained in sub-rule (1) of this rule, the appointing authority, if it is of the opinion that it is in the public interest so to do, by giving him three months' pay and allowances have the absolute right to retire -
(a) any Gazetted Government employee working under the State Government :-
(i) if he had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years, and (emphasis supplied)
(ii) in any other case, after he has attained the age of fifty five years.
(b) any Government employee who holds a post in any other service of the State either pensionable or non-pensionable, after he has attained the age of fifty- five years.
Note : For the purposes of sub-clause (a) of sub- rule (4), the age of entry into Government service or recruitment in Government service shall be the age at which a Government employee was appointed to a full time post and not to a part time or honorary post.
(5) Notwithstanding anything contained in sub-rules (1) and (2) of this rule, any Government employee may, by giving notice of not less than three months in writing to the appropriate authority, retire, in case of a Government employee:-
(i) referred to in sub-rule (4)(a)(i), after he has attained the age of fifty years,
(ii) referred to in sub-rule (4)(a)(ii) and 4(b) after he has attained the age of fifty five years.
Explanation-1 : For the purposes of sub- rules (4) and (5) “Appointing authority” means the authority which has power to make substantive appointment to the post or service from which the Government employee retires, or wants to retire;
Explanation-2 : For the purpose of sub- rule (5) three months' notice may be given either before or after the Government employee attains the age of fifty or fifty-five years but before he attains the age of fifty-seven years, provided that the retirement takes place after he has attained the age of fifty or fifty five years, as the case may be;
Explanation-3 : In computing the notice period of three months referred to in sub-rule (5) the date of service of notice and the date of its expiry shall be excluded.
Provided that it shall be open to the appointing authority to withhold permission to retire to a Government employee who is under suspension, or against whom departmental proceedings are pending or contemplated and who seeks to retire under this sub-rule.
4. Learned counsel for the petitioner has placed reliance on the decision of Hon’ble Apex Court in case of S.C. Jain versus State of Punjab reported in AIR 1986 SC 169 and contended that when there are special Rules for officers working in the Engineering cadre, the general powers of the Government can not be invoked to order premature retirement. It is contended by learned counsel for the petitioner that even on merits, the impugned order is unsustainable, however, that question may not be required to be gone into, in the event, this Court accepts the first contention that the Government did not have power to pass the impugned order under Rule 10(4) of the Pension Rules, 2002.
5. Without prejudice to the above bone contention, on merits, it is contended by learned counsel for the petitioner that there is no legally tenable material, on which, the decision to order premature retirement of the petitioner in public interest could have been taken by the Government. It is vehemently contended that there is no adverse entry in atleast last ten years' annual confidential reports of the petitioner, atleast, it was not conveyed to the petitioner. It is also indicated that no departmental inquiry was pending against the petitioner when the impugned order came to be passed. According to learned counsel for the petitioner, it is the service record of the concerned officer, which can be the basis to take decision to order his premature retirement in public interest and if on the basis of such service record, competent authority comes to a conclusion that the officer concerned is either deadwood or his continuance in service is against the public interest, only then such decision should be taken. It is also indicated that if there is adverse entry with regard to integrity then the case may stand on different footing, however, according to him, there is no such entry in the present case. It is therefore contended by learned counsel for the petitioner that even on merits, the order could not have been passed, if it is held that the Government does have power under Rule 10(4) of the Pension Rules, 2002.
6. On the other hand, learned Advocate General Mr.
Kamal Trivedi contended that, so far the power of the Government under Rule 10(4) of the Pension Rules, 2002 is concerned, it is an absolute power and it is not dependent on any other rule or even Rule 10(3) of the Pension Rules, 2002 and the reliance placed by learned counsel for the petitioner on the judgment of the Hon’ble Apex Court in case of S.C. Jain (supra) cannot be read in isolation, but has to be read along with the subsequent decision of the Hon’ble Apex Court in case of N.C. Dalwadi versus State of Gujarat reported in (1987) 3 SCC 611. It is further indicated that in the case of S.C. Jain (supra), Hon’ble Apex Court was considering the set of rules applicable to officers of Punjab Government and the BCSR was not before the Hon’ble Apex Court. True it is that, the language of both the Rules may, by and large, run on the same line, but that would not mean that Rule 161 of the BCSR was interpreted by the Hon’ble Apex Court. It is also indicated that while considering the case of N.C. Dalwadi (supra), interpretation of Rule 161 of the BCSR was considered and specific reference is made to paragraph 10 of the said judgment, which inter alia reads as under :
“10. It seems to us that on a proper construction of Rule 161 (1)
(c) (ii) (1) which is identical to Rule 3. 26 (c) (1) of the Punjab Civil Services Rules, the work 'rank' in the collocation of the words 'if they have not attained to the rank of superintending Engineer' in Rule 161 (1) (c) (ii) (1) must in its context and setting be construed in its wider sense as meaning status or grade, and if so regarded, the second part of that rule must be treated as an exception to the special rule empowering the government to direct superannuation of such officers on the date they attain the age of 50 years. This has been the view expressed by the Court in S.C. Jain case but we find it difficult to support the conclusion that the words 'if they have not attained to rank of Superintending engineer' in Rule 161 (1) (c) (ii) (1) confer an immunity on Superintending engineers from being compulsorily retired at any age below the normal age of superannuation at 58 years. Under the scheme of the rules, the benefit which the Superintending Engineers enjoy under the second part of Rule 161 (1) (c) (ii) (1) is necessarily subject to the absolute power of the government to direct compulsory retirement of such officer on the date they attain the age of 55 years under the first proviso to Rule 161 (1) (a) or under FR 56 (j) (1) on which it is based. Although the words 'in the public interest' are not there but such power to direct premature compulsory retirement at the age of 55 years can be exercised subject to the conditions indicate in Col. J. N. Sinha case, on of which is that the concerned authority must be of the opinion that it is in the public interest to do so.“ (emphasis supplied)
7. Learned counsel for the petitioner Mr. Oza contended that the earlier judgment of Hon’ble Apex Court in case of S.C. Jain (supra) was by the Bench of two Hon’ble Judges and the case of N.C. Dalwadi (supra) was also decided by the Bench of two Hon’ble Judges and therefore, Bench of two Hon’ble Judges could not have either overruled or watered down the ratio in the case of S.C. Jain (supra) and therefore, according to him, the judgment of Hon’ble Apex Court in case of N.C. Dalwadi (supra) cannot be read as the law holding the field. I am unable to accept the above contention of the learned counsel for the petitioner. There is specific reference to the case of S.C. Jain (supra) in case of N.C. Dalwadi (supra). Further, in case of N.C. Dalwadi (supra), the Hon’ble Apex Court was interpreting Rule 161 of BCSR itself which is applicable in the case on hand and therefore, in my view, it is the decision in the case of N.C. Dalwadi (supra) which is applicable with more force in the facts of this case.
8. It is further indicated by learned Advocate General Mr. Trivedi that this Court, in case of J.M. Shah versus State of Gujarat reported in 2000 (3) GLH 151 has considered the similar question under almost identical circumstances. Paragraph 3 of the said judgment reads thus :
“3. Mr. Y.N. Oza, learned Counsel for the petitioner, has challenged the impugned order on the following grounds:
(i) In view of the provisions of clause (ii) (c) of sub-rule (2) of Rule 161, the government had no power to retire Superintending Engineer after he completes 50 years of age and that there is no power to retire prematurely a superintending engineer.“ The said contention was negated by this Court by observing in paragraph 5 as under :
“5 The first contention urged on behalf of the petitioner is that the Government has no power to retire the petitioner prematurely. It is contended that Rule 161(C)(ii)(1) of the Bombay Civil Service Rules empowers the Government to retire the officers in the Bombay Engineers Service Class-I on reaching the age of 50 years if they have not attained the rank of Superintending Engineer and, therefore, the power for compulsory retirement was not at all available in the case of Superintending Engineers.
This contention cannot be accepted. The main part of Rule 161(1)(a), as it originally stood, empowered the appointing authority to retire the Government servant from service on the date on which he attained the age of 55 years or on any date thereafter. Hence, ordinarily, the power of compulsory retirement would not have been available to the Government in case of a government servant in Bombay Engineers Service Class-I before the officer attained the age of 55 years. Clause (C)(ii)(1) gives additional power to the Government to retire an engineer in Class-I service on reaching the age of 50 years in case the officer has not attained the rank of Superintending Engineer. This clause, therefore, was not in substitution of main part of Rule 161 but was only an additional power conferred upon the Government. Even after amendment of Rule 161 by insertion of clause (aa) to sub-rule (1) of Rule 161 the Government classified the Civil Services into two categories and empowered the Government to exercise power of compulsory retirement. Here also the power is made available to the Government on or after the date the concerned Government servant attains the age of 50 years and hence, the age of 50 years is the starting point for the Government to exercise the power of compulsorily retiring a government servant.“
9. On conjoint reading of the judgments in the cases of S.C. Jain (supra), N.C. Dalwadi (supra) and J.M. Shah (supra), I find that Government does have power under Rule 10(4) of the Pension Rules, 2002 to order premature retirement of Government officers including an officer working in the cadre of Superintending Engineer and a Superintending Engineer is not immuned from it, as is sought to be canvassed by learned counsel for the petitioner. Thus, the first and bone contention raised on behalf of the petitioner is rejected.
10. So far the challenge to the impugned order on merits is concerned, the facts in brief needs to be recorded.
The date of birth of the petitioner is 31.12.1956. He had joined the service of the Government on 04.09.1978. Thus, it is not in dispute that the petitioner had joined the service of the respondent Government when he was below the age of 35 years, so as to attract Rule 10(4) of the Pension Rules, 2002.
11. The impugned decision is based on the recommendation of the Review Committee of the Government consisting of (i) Additional Chief Secretary (Personnel) of General Administration Department, (ii) Principal Secretary of Road and Building Department and (iii) Deputy Secretary of Road and Building Department. The minutes of the said Committee is on record. From Paragraph 6 of the said minutes, the following points are clear :
(i) There is no adverse entry in the annual confidential reports of the petitioner for last ten years.
(ii) There is no adverse entry with regard to integrity of the petitioner for the relevant period.
(iii) No departmental inquiry is pending against the petitioner.
12. Thus, so far the adverse entries in the annual confidential report of the petitioner is concerned, it is undisputed position that the impugned decision is not based on adverse entries in the annual confidential report of the petitioner. Learned counsel for the petitioner had addressed the Court at length as to how adverse entries in the annual confidential report, if not communicated, cannot be taken into consideration. Since learned counsel for the petitioner had addressed on this point at length, learned Advocate General had also addressed the Court at length as to why even uncommunicated adverse entry in the annual confidential report can be taken into consideration. Both sides have referred to number of authorities in this regard. According to me, this point is academic since it is undisputed that there was no adverse entry in the annual confidential reports of the petitioner and therefore, this contention is not required to be gone into. As noted above, number of authorities are cited by both the sides on the point as to what can be considered as the relevant material, with more stress on uncommunicated adverse entires in the annual confidential reports. But, as noted hereinabove in the facts of this case, as adverse entries are not there in the annual confidential reports of the petitioner, the same is not taken into consideration by the Government and therefore, neither this contention is required to be gone into nor the authorities cited in that regard are required to be referred to in this judgment.
13. Further, from the minutes it is also evident that, as many as sixteen departmental inquiries were referred to by the authorities and on that basis, satisfaction is recorded that it is not desirable to continue the petitioner in service in public interest. It is not in dispute that all these sixteen departmental inquiries are concluded inquiries. The petitioner is found guilty of misconduct in each departmental inquiry and punishment under Rule 6 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 was imposed on the petitioner for each such proved misconduct. Learned advocate for the petitioner however contended that if the quantum of punishment is seen, in all cases, the punishment is withholding of increment without future effect. It is further indicated that the period for which the increments were ordered to be stopped, was three months, six months, nine months or one year or so. Thus, according to learned counsel for the petitioner, even from the view point of Government, those inquiries were not that serious which warranted extreme action resulting into discontinuance of the service of the petitioner. Much emphasis is made by learned counsel for the petitioner that many of the departmental inquires were relating to the decades old incidents, may be of 1980’s / 1990’s and therefore, it would have lost its stint, more particularly, where the petitioner is already promoted as Superintending Engineer in the year 1993. It is further indicated that if the merits of each inquiry is seen, it reveals that those inquiries were for trifle issues or where the petitioner was singled out and therefore punishment imposed in those cases should not have been taken into consideration by the Government.
14. I am unable to accept the above contention of learned senior counsel for the petitioner for more than one reasons. Firstly, the merits of those departmental inquiries or the punishment order passed by the Government in each departmental inquiry is not the subject matter of this petition. The only point which needs consideration by this Court is as to whether consideration by the Government of those sixteen departmental inquiries, to arrive at its satisfaction about continuance or otherwise of the petitioner on the post of Superintending Engineer in public interest, can be termed as extraneous factor or not. In my view, when Government is to take decision about premature retirement of some officer from Government service, the entire service record has to be taken into consideration and, over and above entires in the annual confidential reports, if proved misconduct of an officer is taken into consideration by the Government, the same cannot be termed as extraneous material, vitiating the decision making process or the ultimate decision of ordering premature retirement of the concerned officer, which may warrant interference by this Court while exercising the powers under Article 226 of the Constitution of India. In this regard, it is further noted that exercise of powers by Government in such cases is guided by the Government circulars. Specific reference is made by the learned Advocate General in this regard to Circulars dated 12.02.2004, 28.07.1987 and 12.01.1999. If the circular dated 12.02.2004 is taken into consideration, it is clear that five different statements are prescribed by the Government, the details of each shall be taken into consideration by the Committee while forming its opinion. Statement-III thereof deals with concluded departmental inquiries. Thus, the concluded departmental inquiries could not have been termed as extraneous material as held above and so is also the policy of the Government. It also reveals that in all cases, concluded departmental inquiries are taken into consideration by the Government and it is not that the petitioner is singled out by taking such material into consideration. Thus, I find that the departmental inquiries, where the petitioner was found guilty and for which he was punished, were rightly taken into consideration by the Government and the same could not have been excluded by terming it as irrelevant or extraneous material.
15. In view of what is recorded above, I find that the Government did have power to order premature retirement of the petitioner in exercise of powers under Rule 10(4) of the Pension Rules, 2002 and further that, the consideration of sixteen departmental inquiries, wherein the petitioner was found guilty and was punished, could not be termed as irrelevant or extraneous material to arrive at a satisfaction about discontinuance of service of the petitioner in public interest. The other aspect which needs to be seen is as to whether the decision of the Committee, or in turn the order of the Government is tainted by any other illegality which may require interference of this Court in exercising the powers under Article 226 of the Constitution of India. It is not the case of the petitioner that the impugned decision is malafide exercise of powers by the Government.
16. Learned counsel for the petitioner also contended that for the proved misconduct, the punishment is already imposed by the Government and therefore, now to say at this stage that since the petitioner was punished at the relevant time for the proved misconduct, now the petitioner is ordered to retire prematurely, would amount to double jeopardy and therefore, the same be not allowed. It is further contended by learned counsel for the petitioner that retiring the petitioner prematurely is a short-cut which is resorted to by the Government and on that count also the impugned decision is required to be set aside. To support this contention, it is indicated that in all, nineteen departmental inquiries were initiated against the petitioner, of which, in three departmental inquiries, petitioner was exonerated and in sixteen departmental inquiries, punishment was imposed.
17. So far the above contention of double jeopardy is concerned, the same needs to be rejected. An officer cannot be heard to contend that he might have been punished sixteen times, but when the Government is to take decision as to whether it would be in public interest to continue him in service or not, those punishments ought not to have been taken into consideration. In my view, whether an officer is habitual of committing misconduct or not, is a relevant consideration while taking decision about his continuance or otherwise, in service, in public interest and therefore, it cannot be said that the impugned decision would have effect of double jeopardy to the petitioner. Therefore, the contention of double jeopardy is rejected.
18. So far the argument of short-cut of departmental inquiries is concerned, factually it does not have basis, since it is not that some departmental inquiries were pending and Government did not want to go through the entire process and as a short-cut to those pending departmental inquiries, the impugned order is passed. It is factually undisputed position that what is taken into consideration is proved misconduct only and neither adverse entires are taken into consideration since it is not there, nor any pending departmental inquiry is taken into consideration, since even that was not there. In this regard it is to be noted that, even according to learned counsel for the petitioner, out of nineteen departmental inquiries, in three departmental inquiries, the petitioner was exonerated and in sixteen departmental inquiries petitioner was punished and, thus, there is no pending departmental inquiry from the view point of even the petitioner and therefore, even this contention needs to be rejected and is rejected.
19. For the reasons recorded above, I find that none of the contentions raised on behalf of the petitioner can be accepted. The petition does not have any force and is dismissed. Rule discharged. No costs.
MH Dave/2 Sd/-
(PARESH UPADHYAY, J.)