Saby Asachi mukharji, J. - (1.) This application under Article 226 of the Constitution is by seven. petitioners challenging the orders of compulsory retirement under R. 2046 of the Railway Fundamental Rules; Railway Establishment Code, Volume II. The petitioners in this combined application challenge the seven different orders passed in respect of seven different petitioners. There is no dispute, that the petitioners were employees who are covered by the said R. 2046, Railway Establishment Code. Clause (a) of R. 2046 of the Railway Establishment Code Vol. II provides that except as otherwise provided in the said rule every railway servant should retire on the date he attains the age of 58 years. Clause (h) of R. 2046 provides as follows:- "(h) Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant giving him notice of not less than three months in writing or three month's pay and allowances in lieu of such notice - (i) if he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty-five years, after he has attained the age of fifty years. (ii) in any other case after he has attained the age of fifty-five years." The petitioners, however, in para. 2 of the petition stated that they wanted to give certain particulars of their service. Unfortunately, however, the said particulars are blank. This is an unfortunate state of affairs of pleadings in this Court which is most undesirable. We have repeatedly called attention to the fact of the careless manner in which the petitions are drafted involving vital questions. Time has now come for the Courts to exercise stricter vigilance on this aspect though we have been reluctant out of the consideration of the rights of the citizens involved to dismiss petitions on these grounds. Speaking for myself I think this permissiveness has gone enough to cause irreparable damage to the administration of justice and perhaps time has come to cry halt to this latitude on our part.
(2.) It, however, appears that the petitioner 1 was the Driver Grade 'C' Eastern Railway, Asansol. Similar is the position of petitioners 2, 3 & 4. Nothing very particular is known about the petitioners 5 and 7 though petitioner 6 seems to be Driver Grade 'C', Eastern Railway, Asansol. The petitioner 1 was born, according to the service record on 7th Feb. 1928. His date of appointment was 25th May, 1949. Petitioner 2 was born on 6th Oct., 1928. His date of appointment was 25th Apr., 1949. Petitioner 3, Santosh Chandra Dutt was born on 7th Nov., 1926 and his date of appointment was 13th Nov., 1950. Petitioner 4 was born on 17th Aug., 1924 and his date of appointment was 18th Aug., 1943. Petitioner 5 was born on 26th June, 1931. He joined the Government service on 27th June, 1950. Petitioner 6 was bom on 5th May, 1926 and he joined the Government employment on 7th May, 1949 and petitioner 7 was born on 4th July, 1932 and he joined the Government service on 6th July, 1980 (sic). The impugned orders were passed in the case of petitioner 1 on 9th Feb. 1981, in case of petitioner 2 on 7th Feb. 1981, in case of petitioner 3 on 9th Feb. 1981, in case of petitioner 4 on 4th Feb. 1981, in case of petitioner 5 on 4th Feb. 1981, in case of petitioner 6 on 4th Feb. 1981 and in case of petitioner 7 on 9th Feb. 1981. All these orders as I have mentioned before were passed under R. 2046 as I have indicated before. All the petitioners are indisputably governed by the said rules. The petitioners state that they had very good service record and they had never indulged in any illegal acts or activities and the service records of the petitioners were all throughout very clean, unblemished and the petitioners had never joined any illegal strike at any point of time. They assert that there was an agitation of the loco running staff from 29th Jan., 1981 to 24th Feb., 1981 and according to the petitioners pursuant to the said agitation "the petitioners could not discharge" their duties and functions in the usual manner. The petitioners contend that invocation of R. 2046 of the Railway Establishment Code Volume II in their case was without complying with the conditions precedent mentioned in the said rules. Now, in this connection it may be appropriate to refer to the first order impugned in this case. The other order were more or less with modifications on identical terms. The order in case of petitioner 1 is as follows:- "WHEREAS the Sr. Divisional Mechanical Engineer (P) Eastern Railway Asansol (Appropriate authority) is of the opinion that it is in the public interest to do so; NOW THEREFORE, in exercise of the powers conferred by Rule 2046, Railway Establishment Code Vol. II/Para 2 (2) of Section I of the Railway Ministry's letter No. E 48 CPC/208 dated 8-7-1950, Sr. Divisional Mechanical Engineer (P), Eastern Railway, Asansol, hereby retires Shri K. C. Sarkar, Driver Gr. 'C' under Loco Foreman, E. Railway, Andal, with immediate effect, he having completed 30 years service on (sic). Shri K. C. Sarkar shall be paid a sum equivalent to the amount of his pay plus allowances for a period of three months calculated at the rate at which he was drawing them immediately before his retirement." The order was passed by the Divisional Mechanical Engineer (P). He was the appointing authority. The petitioners state that as the petitioners had completed the qualifying service period the respondents took advantage of the agitation of the loco staff and issued orders under R. 2046 compulsorily retiring the petitioners. The petitioners, however, contend that there was no application of mind that retirement was necessary in the public interest and there was no formation of opinion by the appointing authority for invoking the said rule. There was no proper consideration of the facts and circumstances of the case. The petitioners also contend that the requirement of three month's pay and allowance was not complied as in all the cases the orders of retirement were intended to come into effect immediately upon the service of the notice. The petitioners contend that the impugned orders were passed in whimsical manner and to penalise the petitioners or victimise the petitioners on account of alleged participation in the loco running staff agitation. In this connection I shall presently refer to the relevant circulars and notifications issued by the Railway Board indicating the guidelines for the exercise of the powers in this case. There was no review of the need for retirement of the petitioners after the expiry of the period mentioned in the rule according to the petitioners. There was no consideration of the entire service records of the petitioners before invoking the provisions of the said rule. The impugned orders had been passed for collateral purposes not relevant or germane for the exercise of the said power. The reasons for passing the impugned orders in the case of the petitioners, according to the petitioners, were not communicated to the petitioners. The petitioners, further, state that the said orders were passed for mala fide purpose and in this connection the petitioners sought to refer to certain circulars issued by the Higher Executive Authorities in wake of the agitation by the loco running staff as to invocation of the said rule instead of all proceedings during the disciplinary proceeding or by invoking R. 14 (ii) Discipline and Appeal Rules. The amount required to be tendered as I have mentioned before was not tendered. There was no formation of opinion of the others who had also reached the age and completed that period of service, that petitioners were chosen out of the many to victimise the petitioners. It may incidentally be pointed out that petitioner 2 namely, Durga Prasad, had received the order of retirement along with the cash of Rs. 2,878/-. There was an acknowledgement receipt signed by him. It was contended that many of the petitioners had reached the age or completed the period of service long before the impugned orders were passed yet no action was taken against them until the loco running staff agitation. For instance, petitioner 2 completed the qualifying period on 19th Jan., 1980 and petitioner 4 completed the qualifying period on 17th August, 1979, petitioner 5 completed the qualifying period on 27th June, 1980, petitioner 6 on 17th May, 1979 and petitioner No. 7 on 6th July, 1980. Each of the petitioners made their representations against the impugned orders to the Divisional Railway Manager but no action was taken in respect of the same.
(3.) In order to appreciate the contentions urged on behalf of the petitioners at this stage it would be appropriate to refer to certain guidelines issued by the Railway Administration for the exercise of the powers under R. 2046. My attention was drawn to certain portion of contents of the copy of the Railway Board's confidential letter No. E (P & A) 1-77/RT-53 dated 15th Nov. 1979 addressed to the General Managers All Indian Railways and others. The said letter stipulated that with a view to improve efficiency and strengthening administrative machinery at all levels, Govt, have the absolute powers under R. 2046' B II and para 2 (2) of Section I of Railway Ministry's letter E48-CPO/200 dated 8-7-50 incorporated as para 620 of the Manual of Railway Pension Rules II to retire a railway servant in public interest before his normal date of retirement or on attaining a specified age or on completing a specific length of service. The letter further went on to observe that in order to ensure that the power conferred on the authorities empowering to retire a railway employee prematurely is exercised fairly and impartially and not arbitrarily, instructions had been issued from time to time laying down the criteria and procedure to be followed before a railway employees is retired prematurely. Then, certain guidelines were indicated and great reliance was placed on Item II being criteria, procedure and guidelines. It would be better in view of the contentions involved to refer to the same. "II. Criteria, Procedure and Guidelines. In order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, it has been decided to lay down the procedure and guidelines for reviewing the cases of railway employees covered under the various aforesaid rules as mentioned below (1) The cases of railway servants covered by rule 2046 (n)-R. II or Rule 2046 (k)-R. II or para 2 (2) of Section I of Railway Ministry's letter No. E 48 CPC/200 dated 8-7-50 incorporated as para 620 of the Manual of Railway Pension Rules 1950, should be reviewed six months before they attain the age of 50/55 years or complete 30 year's service/30 years of qualifying service, whichever occurs earlier. (2) A committee shall be constituted for each Department on each Zonal Railway Administration as shown in Annexure I to which all such cases shall be referred for recommendation as to whether the officer concerned should be retired from service in the Public interest or whether he should be retained in service. (3) The criteria to be followed by the in making their recommendations would be as follows:- (a) Railway employees whose integrity is doubtful, will be retired (b) Railway employees who are found to be ineffective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he is holding. If he is not found fit to continue in his present post, his fitness/competence to continue in the lower post, from where he had been previously promoted, should be considered. (c) While the entire service record of an officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years, or where he has been promoted to a higher post during that 5 years period, his service in the higher post has been found satisfactory. (d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his Case. (4) The appropriate authority shall take further action on the recommendations of the Committee. In every case, where it is proposed to retire a railway servant in exercise of the power conferred by the said rule(s), the appropriate authority should record in the file that it has formed its opinion that it is necessary to retire the railway servant in pursuance of the aforesaid rule(s) in the public interest. In the case of Union of India v. J. N. Sinha, (1971 Lab IC 8), the Supreme Court had observed that "the appropriate authority should bona fide form an opinion that it is in public interest to retire the officer in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds." (5) The rules relating to premature retirement should not be used : (a) to retire a railway servant on grounds of specific acts of misconduct, as a short cut to initiating formal disciplinary proceedings; or (b) for reduction of surplus staff or as a measure of effecting general economy without following the rules and instructions relating to retrenchment. (6) (i) In case, the appropriate authority, after the relevant review, comes to the conclusion that the officer is not fit for being retained in the present post, but could be retained in the next lower post from which he was promoted, a notice in the prescribed form should be served in such case of the employee retiring him from service in pursuance of the provisions of the relevant rules. Simultaneously, it may be explained to him in a covering letter that his continuance in service beyond the age of 50/55 years or after the completion of 30 years of service, as the case may be, could be considered, if he is willing to revert to the lower post held by him previously. In case, he indicates his willingness to work in the lower post and gives a written request for being so reverted, the notice may be withdrawn and he may be reverted and continued in the lower post." Clause 8 provided inter alia as follows : "(8) When the appropriate authority has come to the conclusion that a railway employee may be prematurely retired, the three month's notice, referred to in R. 2046 (h)-R. II and R. 2046 (k)-R. II may be given before that railway servant attains the specified age or has completed 30 years of service, as the case may be. But, the should take place after the railway servant has attained the relevant age or has completed 30 years of service as the case may be. In this connection, attention is invited to Note 2 under R. 2046-R. II. Accordingly, a notice even longer than three months or before the railway servant attains the age of 50-55 years/completes 30 years service could be given; but the date from which he is required to retire as specified in the notice should not be before he attains the age of 50/55 years, or completes 30 years service, as the case may be. Similarly, in cases of retirement under para 2 (2) of Section I of Railway Ministry's letter No. E. 48 CPC/200 dated 8-7-50 while the notice of such retirement could be given before the railway servant actually completes 30 years of service qualifying for pension, the date of expiry of the notice on which the railway servant's retirement should be effective, should be one falling on or after the date of his completing 30 year's of service, qualifying for pension. Orders requiring a railway employee to retire after completing 30 year's qualifying service should as a rule, not be issued until after the fact that the railway employee has indeed completed, or would be completing on the date of retirement qualifying service of 30 years, has been verified, in consultation with the Accounts Officer concerned." Clause 10 (ii) stipulated as follows:- "(ii) In a case where a railway employee refuses to accept his service of notice of retirement or order of retirement along with cheque/Cash equivalent to three month's pay and allowances, it should be ensured that the 'refusal' of the railway employee is witnessed by two gazetted officers. In such a case, a copy of the notice/order of retirement may be sent under registered post with acknowledgment due to the individual concerned at the last officially known address, with a covering letter, stating that the original notice/order of retirement was taken by such and such for delivery to him/her on such and such date and that he/she refused to accept the same and in the circumstances, its copy is being sent by registered post for his/her record. In such a case, the date of effect of the notice of retirement order would be from the forenoon of the date following the date of refusal by the individual (witnessed by two gazetted officers). Where the person concerned has refused to accept the cheque/cash equivalent to three month's pay and allowances, the same procedure that is followed in case where a railway employee has failed to accept his/her dues from railway may be followed, in so far as its disbursement is concerned." Then, there is procedure for consideration of representations. Then there is also elaborate procedure for the constitution of the committees to consider representation to ensure that there was fair representation so that there may be proper consideration.;