A.M.Bhattacharjee, J. - (1.) For all that I have said while speaking for a Division Bench in Ajay Sur (1981 -1 Calcutta High Court Notes 254, paragraphs 5 -7), I would have dismissed the appeal, if I could and affirmed the order of the learned trial Judge quashing the order of compulsory retirement of the Respondent No. 1 on the sole ground that the impugned order ought to have been passed, but has not been passed, after giving the Respondent No. 1 a reasonable opportunity of being heard. But binding authorities of the Supreme Court are standing in the way. I accordingly have had to agree, even though reluctantly, with the order proposed by brother Ray, J., notwithstanding my own views to the contrary.
(2.) A. N. Ray, J. - 2. The writ petitioner is the respondent in appeal. He has succeeded in the Court below. An order of compulsory retirement passed against him on 9th December 1987 has been set aside. If the Judgment stands the respondent will retire only sometime in 1994. I am of the opinion however that the order for compulsory retirement is good in law and the judgment and order under appeal, with respect, should be set aside.
(3.) The law relating to service matters in India has developed considerably. There are many technical aspects of it now. The law as to compulsory retirement, which is one such, is also well settled. The points which are now beyond dispute are as follows: (1)An order for compulsory retirement, or a rule permitting action to that effect, is not by itself, unconstitutional, or violative of either article 14 or 19. (2)An order for compulsory retirement does not entail a civil consequence even though it might cause an adverse effect. J. N. Sinha's case is an authority for this proposition (AIR 1971 SC 40) (3)The rule of natural justice need not be observed before passing an order for compulsory retirement. This follows from such an order not entailing a civil consequence at all. (4)An Order for compulsory retirement cannot be passed as a punishment in disguise. However, even if some disciplinary proceeding forms the background of the order for compulsory retirement, then the order will not necessarily be bad if it has been passed with the said proceeding being kept in the background only, but not basing the decision in such proceedings. The case of Dalip Singh v. The State of Punjab (AIR 1960 SC 1305) is an authority for this proposition. (5)An order for compulsory retirement can be challenged if it is arbitrary, malafide, or based on collateral considerations. (6)An order for compulsory retirement can also be challenged if it is passed vindictively or mechanically or by taking into account obsolete service records which are so obsolete as to be of the category of irrelevant material. (7)An order for compulsory retirement can be passed on the apprehension either of inefficiency or of lack of integrity. It may be passed if a more efficient person is needed or a person is needed with even less possibility of allegations against his good name. (8)An order for compulsory retirement can be challenged if the retiring authority has acted at the dictate of some other person or authority abandoning its own discretion.;