Sabyasachi Mukherjee, J. -
(1.)This appeal is concerned with the validity of an order of compulsory retirement dated June 14, 1972, passed in exercise of power under Rule 16(3) of the All India Services (Death -cum -Retirement) Rules, 1958. The said order reads as follows:
In exercise of the powers conferred by Sub -rule (3) of Rule 16 of the All India Services (Death -cum -Retirement Benefits) Rules. 1958, the President of India, in consultation with the Government of West Bengal, is pleased to require that Shri A.B. Chakraborty, a member of the Indian Police Service, who has already attained the age of 50 years, shall in the public interest retire from service on the expiry of 3 months from the date of service of this notice.
By order of the PresidentGaan PrakashJoint Secretary to the Governmentof India.
(2.)In order to appreciate the contentions urged in this appeal it would be necessary to refer to the facts. The Respondent No. 1 joined the Indian Police Service on September 15, 1948 and served the Police department in different capacities. At the relevant time when the impugned order was passed the Respondent No. 1 was the State Commandant, West Bengal National Volunteer Forces, Administrative Buildings, Kalyani. In October 1961, the Government of India, Ministry of Home Affairs, had issued circulars regarding the preparation and maintenance of confidential reports in respect of the Government Officers. Paragraphs 8 and 9 of the said circulars which are relevant for the present purpose provided as follows:
8. Communication of adverse remarks. It is necessary that every employee should know what his defects are and how he can remove them. Past experience suggests that the best results will be achieved only if every reporting officer realised that it is his duty not only to make an objective assessment of his subordinates work and qualities, but also to give to him at all times the necessary advice, guidance and assistance to correct his faults and deficiencies if this part of the reporting officers duty is properly performed, there should be no difficulty about recording adverse entries, because they would only refer to defects which had persisted despite the reporting officer's efforts to have them corrected. Accordingly, in mentioning any faults, defects, the reporting officer should also give an indication of the efforts he made by way of guidance, admonition etc. to get the defects removed and the result of such efforts.
In communicating remarks to the officer reported upon, the following procedure should be followed:
(a) Where no adverse entry is made in confidential report nothing should be communicated, except in cases dealt with below:
(b) Where an adverse entry is made, where it relates to a remediable or to an irremediable defect, it should be communicated but while doing so, the substances of the entire report including what may have been said in praise of the officer should be communicated; and
(c) Where the report on an officer shows that he had made efforts to remedy or remove defects mentioned in the preceding report, the fact should be communicated to officer in a suitable form and a copy of such communication added to the character roll.
The object of the second report of (b) and of (c) is to let an officer know that his good Qualities as well as his defect had been recognised and that notice had been taken of the improvement made by him.
4. Representation against adverse remarks:
Representations against adverse entries should be made within three months of the date of communication. However, the competent authority, may at its discretion, entertain a representation made beyond the time specified, above if there is satisfactory explanation for the delay.
The following procedure may be adopted in dealing with representation from the Government servants against' adverse remarks communicated to them:
(i) All representations against adverse remarks should be examined by an authority superior to the reviewing officer, in consultation, if necessary, with reporting and the reviewing officer. The superior authority referred to shall be regarded as the competent authority to deal with such representations;
(ii) If it is found that the remarks were justified and the representation was frivolous, a note will be made in the confidential report of the representations that he did not take correction in good spirit;
(iii) If the competent authority feels that there is no sufficient ground for interference, the representation should be rejected and the officer informed accordingly;
(iv) If he, however, feels that the remarks should be toned down and he should make the necessary, entry separately with proper attention at the appropriate place on the report the correction should not be made in the earlier entries themselves; and
(v) In the event of the competent authority coming to the conclusion that the adverse remark was inspired by malice or was entirely incorrect or unfounded and therefore deserves expunction he should score through the remarks Paste it over or obliterate it otherwise and should make an entry, with his signature and date, stating that he had done so. Bat before taking such action, he should bring it to the notice of the head of the department of office if he himself does not occupy that position.
Representation or explanation against adverse entries should be added to the confidential reports. If the representation was well -founded, it would have resulted in the competent authority toning down or expunging the adverse remarks if the representation was without substance, it must have been rejected. In either case, no useful purpose should be served by adding the representation itself to the confidential report.
(3.)In October 1967, the Respondent No. 1 was superseded by an order made by the Government; the Respondent No. 1 moved an application on October 3, 1959, under Article 226 of the Constitution and a rule nisi being C.R. No. 6738(W) of 1969 was issued. The said application is pending. On or about March 1970 the Respondent No. 1 made a representation to the Governor of West Bengal complaining about bias, prejudice and vindictiveness of Sri D.G. Bhattacharjee, the then D.I.G.E.B. and Addl. I.G. of Police and praying for an order for supplying the copies of the adverse remarks if any against the Respondent No. 1. The Respondent No. 1 contended in the instant writ application that there was no response to the said representation. On July 15, 1970, the All India Services Confidential Character Rolls Rules, 1970, came into force. The same replaced the directions contained in the circular referred to hereinbefore. The said rules were framed under Sec. 3 of the All India Services Act, 1951. The relevant provisions of the said rules are Rules 8 to 10 which are as follows:
8. Communication of adverse remarks - -
(1) Where confidential report contains an adverse remark or a critical remark or a remark which indicate a significant fall in the standard of performance of a member of the service as compared to his past performance it shall be communicated to him, together with a substance of the entire confidential report, by the Government of the reviewing authority, as may be specified by the Govt. within three months of the receipt of the confidential report and a certificate to the effect shall be recorded in the confidential report.
(2) The question whether a particular remark recorded in the confidential report on a member of the service is an adverse remark or a critical remark or a remark which indicates a significant fall in the standard of performance of the member of the service or not, shall be decided by the Central Government or the Government of the State according as the member is serving in connection with the affairs of the Union or a State:
Provided that, in the event of any difference of opinion between the Central Government and the Government of State as to whether a particular remark is to be deemed an adverse remark or a critical remark or a remark which indicates a significant fall in the standard of performance of the member of the Service as compared to his past performance or not, the opinion of the Central Government shall prevail.
9. Representation against adverse remarks;
A member of the Service may represent to the Govt. against the remark communicated to him under Rule 8 within three months of the date of its receipt by him.
Provided that the Government may entertain a representation within one year of the expiry of the said period if it is satisfied that the member of the service had sufficient cause for not submitting the representation in time.
10. Consideration of representation against adverse remarks:
(1) The Government shall and if it considers necessary, in consultation with the reporting authority or the reviewing authority, consider the representation made under Rule 9 by a member of the service and pass orders as far as possible within three months of the date of submissions of the representation;
(a) rejecting the representation,
(b) toning down the remark, or
(c) expunging the remark.
Provided that where an order toning down or expunging the remark is passed, a copy of such order and if the order is passed beyond twelve months after the close of the financial year or calendar year, as the case may be to which the remark pertains, the reasons therefore, together with the certified true copies of the representation made and the remarks of the reporting authority and the reviewing authority, shall be endorsed to Central Government and the State Government according as the member of the service is serving in connection with the affairs of a State or whose cadre he is borne or the Union or a State to which he had been deputed;
Provided further that the aforesaid order shall be passed by an authority superior to the reviewing authority or and where the reporting authority or the reviewing authority is a Minister and the said order shall be passed by the Council of Ministers or such committee thereof as may be constituted in this behalf by the Government.
(2) The order so passed on the representation shall be final and the member of the service concerned shall be informed suitability.