Bilal Nazki, J.
1. This is a writ petition filed by the Union of India challenging the orders passed by the Central Administrative Tribunal, Hyderabad Bench in O.A. No. 518 of 1995 on 19.3.1998.
2. 1st respondent was prematurely retired. Thereafter he approached the Tribunal. The facts leading to filing of the O.A. and this writ petition are summarized below, 1st respondent was appointed as Sorter in R.M.S. wing of the Postal Department on 19.4.1963. Thereafter he was promoted to L.S.G. with effect from 2.9.1983 and he was allowed to cross efficiency bar in 1993. He completed 30 years of qualifying service in the department as on 18.4.1993. The case of 1st respondent was reviewed along with other officials of the region who had completed 30 years of qualifying service or 55 years of age for the quarter ending 30.9.1993 under the provisions of D.G. (P) Letter No. 135/133/77/SPB.II, dated 15.3.1978. A Review Committee was constituted with the Post Master General, Visakhapatnam as Chairman. This Committee met on 26.1.1994 at Hyderabad. On reviewing the confidential reports and dossiers of the 1st respondent, the Committee came to the conclusion that continuance of the 1st respondent in service beyond 30 years of service was not proper and his premature retirement in public interest was recommended. A 3-month notice was issued to the 1st respondent as required under Rule 48 of C.C.S. (Pension) Rules, 1972 vide Memo No. ST/91-93/III on 30.8.1994. In response to the notice, the 1st respondent submitted a representation on 3.10.1994. The Representation Committee at the office of the D.G. (P), New Delhi considered the representation of the 1st respondent taking into account the overall record, stated that there were no reasons to interfere in the decision taken by the Review Committee and accordingly rejected his representation. The 1st respondent was finally retired on 30.8.1994. The O.A. was filed to challenge the order dt. 30.8.1994 passed by 3rd petitioner and also the order dt. 27.3.1995 passed by 4th petitioner. Two contentions were raised before the Tribunal by the 1st respondent. The first contention was that the order dt. 30.8.1994 ordering his premature retirement was not in public interest, it was arbitrary, illegal and unconstitutional. The second contention was that the right to retire him was not absolute, the petitioners could not take away the livelihood of an employee without an objective review of his record and the compulsory retirement order was an arbitrary exercise of the power. It was further contended that the premature retirement could not be used as a weapon to retire a Government employee on the ground of specific acts of misconduct, thereby giving a go-bye to initiation of formal disciplinary proceedings. To substantiate these contentions, it was contended before the Tribunal as well as before this Court that the 1st respondent was considered to be fit to cross the efficiency bar in the year 1993, thereafter he was awarded a penalty of censure and withholding of increments, against which representations were pending and the Department could not take this punishment of censure and withholding of increments into consideration, when he had been allowed to cross the efficiency bar in the year 1993. Crossing of efficiency bar in the year 1993 was ignored and a minor punishment given subsequent to the crossing of the efficiency bar was taken into account for prematurely retiring the 1st respondent. It was further contended that once the efficiency bar was allowed to be crossed, any adverse remarks prior to crossing of efficiency bar would get wiped out and those remarks could not be taken into consideration for the purpose of judging his utility in the department. In reply the learned Standing Counsel for the writ petitioners submitted that the writ petitioners had taken into account the entire record of the 1st respondent and his unsatisfactory service record and imposition of number of penalties during his career. It was denied in the counter filed before the Tribunal by the writ petitioners that the penalty of premature retirement was imposed on the 1st respondent on the basis of lone instance that he traveled in the Mailvan unauthorisedly after he crossed the efficiency bar. On the other hand, they contended that withholding of increments for a period of six months imposed on the 1st respondent on 23.6.1994 was not at all taken into consideration at the time of review because the appeal filed by the 1st respondent against the penalty was pending with the appellate authority at that time. On the other hand, full record of service of the 1st respondent minus the punishment imposed on 23.6.1994 was taken into consideration.
3. Fundamental Rules, CCS (Pension) Rules, 1972 applies to the 1st respondent and in terms of the rules the Central Government has issued guidelines on 15.3.1978. The rule position has been enumerated in the guidelines. The relevant rules for the purpose of this case are reproduced below,
(1) In accordance with the provisions of Fundamental Rule 56 (j) the appropriate authority has the absolute right to retire, if it is necessary to do so in public interest, any Government employee as follows:-
(i)...........
(ii) In any other case, after he has attained the age of 55 years provided that in the case of a Group-D official, such action can be taken if he entered service after 23rd July, 1966.
In other words, a Government servant belonging to Group A and D who has entered Government service after attaining the age of 35 years, and officers belonging to Group C and D can be prematurely retired after they have attained the age of 55 years with the exception of Group D officials who entered service on or before 23rd July, 1966.
(3) The criteria to be followed by the Committee in making their recommendations would be as follows:
(a) ........
(b) .......
(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, 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.'
4. Now the only question remains that if a person is allowed to cross efficiency bar, whether any entries in his record prior to that would get wiped out and whether that record can be taken into consideration for the purpose of prematurely retiring an employee. Various judgments were pressed into service on either side. Therefore, it could be profitable to refer to the judgments. Learned Standing Counsel for the petitioners relies on judgments reported in State of UP V. Lalsa Ram, : (2001)IILLJ955SC , Union of India V. J.N. Sinha, : (1970)IILLJ284SC and Union of India V. M.E. Reddy, : (1980)ILLJ7SC . Learned counsel for 1st respondent pressed into service judgments reported in J.D. Shrivastava V. State of M.P. , 1984(1) LLJ 344and D. Ramaswami V. State of Tamil Nadu, : (1982)ILLJ349SC . In Union of India V. J.N. Sinha (2nd supra), while analyzing the rules on the subject the Supreme Court held,
'Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56 (j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the 'pleasure' doctrine embodied in Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be here. There is no denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
It is true that a compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.'
5. In Union of India V. M.E. Reddy (3rd supra) the Supreme Court laid down certain parameters which were followed thereafter almost scrupulously. The principles are
(a) Order of compulsory retirement of Govt. servant in public interest does not caste any stigma;
(b) Rules expressly excludes principles of natural justice;
(c) Confidential reports can be considered by appointing authority even if they are not communicated to officer concerned.
6. The Supreme Court, in order to arrive at such principles, relied on its earlier judgments including the judgment of a 5-Judge Constitutional Bench in Shivacharana Singh V. State of Mysore, : (1967)IILLJ246SC . Now we are not concerned in the present case with many of the controversies which were raised before the Supreme Court in different cases. The only controversy before us is whether the adverse remarks could be taken into consideration which had been passed prior to crossing of efficiency bar and on this there is a direct judgment of the Supreme Court reported in State of UP V. Lalsa Ram (1st supra). This was a judgment in which the facts are almost similar to the facts with which we are dealing presently. The officer who was before the Supreme Court was appointed as a direct Naib Tahasildar on 19.5.1965. In April 1980 he was promoted to the rank of Tahsildar and subsequently in March 1995 he was promoted to the rank of Deputy Collector and joined the post as such in April 1995. In 1998 he was compulsorily retired. The Screening Committee considered his whole service record and examined the adverse entries recorded in 1967-68 (twice), 1981-82, 1982-83 and in 1991-92, and a particular adverse entry on 16.12.1982 and a censure entry on 18.8.1986. The High Court observed,
'...On a close scrutiny we noticed that during the last five years preceding action of compulsory retirement there has been no adverse entry in the account of the petitioner. The Screening Committee attempted to rely on the entries which related to the period of 1967-68 and some of the entries for the period of 1981-82. There is only one entry for the year 1991-92. This report otherwise records appreciation for the petitioner. But says further, that some times there were complaints against the petitioner. The sole entry is not in close proximity and cannot be the basis or foundation for the impugned action of compulsory retirement of the petitioner. The action, according to us, is without any basis and the same, therefore, cannot be sustained.'
7. Thereafter the Supreme Court went on to analyse the rule 56 of the Fundamental Rules and relied on its earlier judgments and also the judgment reported in State of Punjab V. Gurdas Singh, : AIR1998SC1661 . The Supreme Court in Gurdas Singh's case held that the matter shall have to be considered as to whether it is in public interest to retain him in the service and the whole record of the service of the employee shall have to be considered including any uncommunicated adverse entry as well, provided however, the service conditions/regulations do not run counter thereto. The Supreme Court upheld the order of retirement in the following words,
'The appointing authority upon consideration of the entire service record as required under the Rules and having formed its opinion that the compulsory retirement of the respondent being in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the Courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the Courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference.'
8. There is another judgment of the Supreme Court reported in Baikuntha Nath Das. V. Chief District Medical Officer, : (1992)ILLJ784SC wherein a 3-Judge Bench laid down the following principles,
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior;
(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) malafide, 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 favorable 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. That circumstance by itself cannot be a basis for interference.'
9. Now these judgments make it clear that the entire service record has to be considered, while forming an opinion with regard to the utility of an employee in the department, even the adverse entries which were not even communicated to the employee can be taken into consideration to form an opinion as to whether public interest demands premature retirement of an employee or not. In the light of these judgments, now let us see the judgments on which reliance has been placed by the learned counsel for the 1st respondent. The judgment in J.D. Shrivastava V. State of M.P. (4th supra) lays down a principle that an entry which was adverse and stale in point of time could not be taken into consideration. However, it found that the employee had been retired on the basis of a stale entry which had been recorded 20 years before the date on which the decision to retire was taken and the Supreme Court found that dependence on such stale entry cannot be placed for retiring a person compulsorily, particularly when the officer concerned has been promoted subsequent to such entries. It may be pointed out that this judgment does not consider the import of the earlier judgments particularly the judgment of 5-Judge Constitutional Bench reported in Shivacharana Singh V. State of Mysore (6th supra) in which it was held,
'Whether or not the petitioner's retirement was in the public interest was a matter for the State Government to consider and as to the plea that the order was arbitrary and illegal, it was impossible to hold on the material placed by the petitioner before the Court that the said order suffered from the vice of malafides.'
10. In the present case there is no plea of malafides. The second judgment on which reliance has been placed by the learned counsel for the 1st respondent is D. Ramaswami V. State of Tamil Nadu (5th supra). In para-4 the Supreme Court stated,
'In the face of the promotion of the appellant just a few months earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a Government should be completely ignored, once he is promoted. Sometimes, past events may help to assess present-conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.'
11. However, in a later judgment of the Supreme Court reported in Posts & Telegraph Board v. C.S.N. Murthy, : (1993)IILLJ866SC while dealing with the case of a person who had all along very good service entries, but in two years there were some adverse remarks, the Supreme Court held,
'Fundamental Rule 56 (j) authorizes the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The Courts will not interfere with the exercise of that power, if arrived at bona fide and on the basis of material available on the record.'
12. For the reasons given hereinabove, we are of the considered view that even after crossing of the efficiency bar, the whole record of the 1st respondent could be taken into consideration and in our view crossing of efficiency bar would not be an impediment for going through the whole service record of the 1st respondent in order to retire him prematurely. Therefore, we allow the writ petition and set aside the order of the Tribunal. No order as to costs.