D.R.Chaudhary - (1.) -By means of this petition, the petitioner has challenged the order dated 15.11.1994 retiring him compulsorily with immediate effect under the provisions of Financial Handbook Vol. II, (Parts II to IV), Fundamental Rule 56 (1) (c).
(2.) IT is contended for the petitioner that his service record has been unblemished throughout, no adverse entry was ever awarded to him, has not been taken notice of by the Screening Committee, the petitioner is physically fit with good health ; there was no material before the Review Committee to form opinion to recommend compulsory retirement ; the Review Committee picked up the petitioner and arbitrarily recommended for premature retirement in order to comply the mandate of the Chief Engineer (Establishment) P.W.D., U. P., Lucknow contained in his letter dated 10.12.1993 ; the opinion of the Review Committee that the petitioner is physically unfit is wholly without basis as no medical opinion was sought from the C.M.O. or the Medical Board ; petitioner's date of retirement according to his date of birth recorded in his service book is 31.3.2003 and he is entitled to continue in service with all consequential benefits ; the order impugned is violative of principle of audi alteram partem as contemplated under Rule 56D of Fundamental Rules ; the order impugned is wholly illegal, unjustified and suffer from vice of arbitrariness. In the counter-affidavit, it is stated that the Review Committee found the petitioner physically unfit ; the impugned order passed on recommendation of the Review Committee is in the public interest hence no opportunity of hearing is necessary. Assertion in writ petition that petitioner's service is clean and unblemished, has not been disputed by the respondents, it has also not been disputed by the respondents that there was no material before the Screening Committee to form opinion and to recommend premature retirement. As required by the Court, the report of the Screening Committee was produced before the Court along with the copy of the impugned order. I have perused the record. It appears from the record that as many as 57 employees were screened. In the remark column of some of the employees, the opinion as physically fit/unfit is mentioned and further no opinion is recorded against several employees of the list and the remark column left blank ; there is no expert medical opinion on record. Thus, opinion of Review Committee is without any basis or material on record. It is also evident from the record that the employees who are elder in age to the petitioner, have been retained and in that view of the matter, the age has not taken to be the criterion for recommending premature retirement.
(3.) THE order of premature retirement is passed on subjective satisfaction of the appointing authority and the principles of natural justice have no application in this context. Judicial review of such an order under Article 226 of the Constitution is permissible only on limited grounds of mala fide or in the absence of any evidence of material the necessary opinion could be formed or arbitrariness in the sense that there is no reasonable person could form the requisite opinion. In the present case, as stated above, there is no material at all before the Review Committee to form its opinion to retire the petitioner prematurely. In the case of Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, AIR 1992 SC 1020, the Supreme Court has enunciated the following principles : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short ; if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. The circumstance by itself cannot be a basis for interference." ;