P.C. Naik, J.
1. The challenge in this writ petition is to the order dated 25.4.2000 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 234 of 1999 quashing the order dated 9.12.1998 whereby in exercise of powers under Clause (a) of Rule 71 of the Orissa Service Code, the opposite party No. 1, a Class-II Police Officer, was pre-maturely retired.
2. Admittedly, the date of birth of the opp. party No. 1 is 2.5.1946 and on the date on which, the order of pre- mature retirement was issued, i.e. 9.12.1998, he was more than 50 years of age. It is not disputed that action of premature retirement was taken on the recommendation of the Premature Retirement Committee which reviewed the cases of Class-II Police Officers who had completed the age of 50 and 55 years as on 3.6.1998. It is also not disputed that the case of the opp. party No. 1 was reviewed on evaluation of his performance on the basis of his C.C.Rs. for the previous five years, i.e., 1992-93 to 1996-97.
3. The challenge to the order of premature retirement before the Tribunal was on two grounds; (i) the review was not proper as it had not been conducted immediately after the opp. party No. 1 attained the age of 50 years and, (ii) while coming to the conclusion to prematurely retire the opp. party No.l., the authorities had not taken into consideration the G, A. Department's Circular dated 24.11.1987 which lays the guidelines. Accepting the contentions, the Tribunal held in favour of the opposite party No. 1 (the applicant before the Tribunal) and quashed the order of premature retirement. Accordingly, this writ petition has been filed by the State which was the respondent before the Tribunal.
4. Before proceeding further, it would be relevant to make a brief reference to the Circular dated 24.11.1987, which, as observed above, related to premature retirement of Government servants in pursuance of Clause (a) of Rule 7 1 of the Orissa Service Code. The said circular, inter alia, lays down the procedure to be followed where it is decided to retire an employee prematurely and as laid down therein, the instructions contained in the Circular are to be followed by the authorities empowered to conduct reviews or issue orders retiring, an employee prematurely.
Clause-7 of the Circular clearly lays down that it will not be in public interest to retain an employee in service if (a) he is clearly lacking in integrity, or (b) although his integrity is not in doubt, his physical or mental condition is such as to make him inefficient for further service, or (c) even though his work in a lower grade was satisfactory, he clearly lacks in,the standard of efficiency required to discharge the duties of the post he presently holds.
Clause-8 of the Circular is also important and lays down that the objective of the review is to weed out persons of doubtful integrity or patent inefficiency from pu.blic service. It further provides in order that no such decision is taken arbitrarily or without very careful appraisal of facts, the Review Committee shall, wherever it recommends premature retirement of an employee, record the reasons of its findings in adequate detail.
Clause-9 of the Circular lays down that the Cqmmittee is to consider each case in the light of the entries in the employee's character roll and such other authentic reports as may be available. It indicates that normally entries for a period often years are to be looked into, but those of the previous five years from the date when the review was held should be assigned the highest importance and if these reports are not on the whole adverse, viz. do not indicate that the employee's case falls under either of the three criteria referred to in paragraph-7, the employee should, unless there are overwhelming reasons to the contrary, be recommended for continuance in service either till the next review or till the date of normal superannuation, as the case may be.
5. It is no doubt true that in the case at hand, the review was not conducted immediately after the opp. party No. 1 had attained the age of 50 years but was conducted much later. It is, however, important to note that this is not a case where a second review was made before the opp. party No. 1 attained the age of 55 years. In our opinion, if a review had not taken place-immediately after opp. party No. 1 attained the age of 50 years, that by itself cannot invalidate the review and the order of premature retirement, if otherwise, a case for premature retirement on merit was made out. Indeed, this very question came up for consideration before a Bench of this Court in O.J.C. No. 7368 of 1999 disposed of on 14.9.2001 (Sri Kunja Bihari Das (since dead) represented by his legal heirs v. Secretary to Govt. of Orissa, Energy Department and Ors.) wherein the order of premature retirement was assailed on the ground that the review was conducted much after the officer in that case had attained the age of 50 years. To be precise, the petitioner therein had completed 50 years of age on 7.5.1990 and an order of premature retirement was passed on 15.9.1994. Overruling the contentions and after referring to Rule 71 (a) of the Orissa Service Code, the Court in paragraph-4 of the judgment observed :
'4. The aforesaid rule clearly makes a difference between compulsory requirement of review of performance in the 55th year of age and the appropriate authority's power to retire a Government servant prematurely after attainment of 50 years of age or completion of 30 years of qualifying service. Power to retire prematurely is a power continuously available to the appointing authority from attainment of 50 years of age or completion of 30 years of qualifying service till the usual date of retirement. By a subsequent Government order dated November 24, 1987 it has been explained that once the case of a Government servant is consfdered for premature retirement after attainment of 50 years of age, his case cannot again be considered for premature retirement before attaining 55 years of age. The word 'review' used therein obviously means review for premature retirement and cannot refer to compulsory review in 55th year of age.'
In the above view of the matter, the contentions raised on behalf of the petitioner is to be accepted. Accordingly, the finding arrived at by the Tribunal that the petitioner's case could not be reviewed as he had already crossed the age of 50 years cannot be sustained.
6. However, this does not help the petitioner because the findings arrived at by the Tribunal on the second question, in our opinion, are proper. The procedure laid down in the Circular dated 24.11.1987 is necessarily to be followed and Clauses-7 and 8 therefore, a reference to which is made above, clearly indicate the intention behind the action of premature retirement is to weed out persons of doubtful integrity or patent inefficiency from public service. No material has been brought pn the record to indicate that the petitioner was lacking in integrity or though his integrity was not in doubt, his physical or mental condition was such as to make him inefficient for further service, or that even though his work in a lower grade was satisfactory, he clearly lacked in the standard of efficiency required to discharge the duties of the post he was holding at that point of time. We may add that it was incumbent upon the Committee to consider these facts because the object of review, as observed above, it to weed out persons of doubtful integrity or patent inefficiency from public service: Indeed, it is so provided for in the said Circular.
7. The action of premature retirement in the case at hand has been taken solely on the ground that the C.C.Rs. relating to the opp. party No. 1 for five years preceding the date of consideration which were average. (For the year 1995- 96 he, opp. party No. 1 was rated as below average but at the time of hearing, it was stated that he was subsequently rated as average). Thus, it is clear that the consideration was on the basis of the C.C.Rs. of only five years. Of course, importance has to be attached to the entries relating to the previous five years but Clause-9 of the Circular itself provides that the entries of the preceding ten years are also to be taken into consideration. This, obviously, has not been done. That apart, Clause-9 of the Circular itself provides that while considering the entries of the preceding ten years 'those of the last five years' should be assigned the highest importance and if these reports are not on the whole adverse, viz., do not indicate that the employee's case falls under any of the three criteria mentioned in Clause-7 of the Circular, he should, unless there are overwhelming reasons to the contrary, be recommended for continuance in service either till the next review or till the date of normal superannuation, as the case may be. But, in the case at hand, there is nothing to indicate that there was any adverse entries against the opp. party No. 1 or there was some special circumstances, which rendered him unfit for further continuance in service and that adverse entries if any had been duly communicated to him, i.e., the opp. party No. 1, as required to be done.
8. In the facts and circumstances of the case, we do not find any error to have been committed by the Tribunal in arriving at a finding that the case of opposite party No. 1 had not been considered properly in the light of the Circular dated 24.11.1987 and that the order of premature retirement cannot be sustained. Accordingly, the writ petition fails and is dismissed.
It goes without saying that the interim order also stands vacated. Consequences, therefore, are to follow.
P.K. Patra, J.
I agree.