Balak S/O Mahadev Somkuwar Vs. Union of India (Uoi) Ministry of Home Affairs Through Secretary, - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - in spite of material surfaced during the inquiry held having failed to prove charges still he was penalized by reducing his pay by two stages by way of victimization. up till filing of present petition the respondents had failed to consider/take any action and/or even to communicate about the same upon representation/appeal dated 12.7.2000 and further detailed representation dated 21.9.2000 in continuation of the same submitted by petitioner regarding said penalty imposed upon him. both the said committees had found that due to poor service record petitioner was unsuitable for further retention in service beyond age of 50 years. thus considering the adverse remarks in the year 1993 and 1994, punishment awarded in the year 1999 and the earlier poor service record authority was within its right to prematurely retire the petitioner in public interest and the said decision was not arbitrary, mala fide and against the government instructions nor the same was taken for avoiding institution of disciplinary proceeding or the same being not in public interest or was for collateral reasons. 1984 would be inconsequential for the purposes of compulsory retiring him as his promotion indicates of his record prior to 1992 being good, as otherwise he would not have been promoted in said year. similarly himself being not communicated any adverse remark after receiving promotion also indicates that his service record thereafter being good and as such an order of compulsory retirement passed clearly appears to be without any rational basis. 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) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable personwould form the requisite opinion on the given material inshort; (iii) for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to theentire service record of the officer. union of india reported in 2008 (4) all mr 438 relied by learned counsel for the petitioner and the law regarding compulsory retirement as explained therein being in consonance with the decisions of the apex court recited earlier by us and having regard to fact that in the instant case compulsory retirement of petitioner being based on consideration of his entire service record, though promoted in the year 1992, even the same being delayed due to poor service record of the petitioner and even thereafter promotion having received twice adverse remarks and punishment in year 1999 and the same being not based upon only stale earlier adverse entries or no inconsistency in the said record being pointed out or the same being not based only on the surmises and so also petitioner being not able to refute documentary evidence produced by respondents regarding communication of an adverse entries to him, we find it extremely difficult to accept case of the petitioner being akin with case of thep.d. kode, j.1. by the present petition under article 226 of the constitution of india petitioner, prematurely retired as inspector (executive) from services of central industrial security force (for short hereinafter referred to as cisf) has thrown challenge to order dated 30.7.2000 compulsorily retiring him passed by inspector general (sws), cisf, mumbai and has prayed for quashing and setting aside same and reinstating him with continuity in service with full back wages and other financial benefits together with an interest at rate of 18% per annum since the date of his retirement. he has also prayed for saddling exemplary costs upon the respondents.2. the rival cases, in brief, as revealed from the proceeding can be set out as under:it is case of petitioner that he had joined service with cisf on 25.8.1975 and after completing training in the year 1976 he was posted as sub inspector (executive) at murmagaon port trust, goa. thereafter he was posted and worked at eighth different postings. lastly while working at kudremukh iron ore ltd. detachment unit, mangalore, vide order impugned, he was compulsorily retired. 3. he was discharging his duties to full satisfaction of his superiors without any complaint and was never issued a major charge sheet except one issued under rule 34 of cisf rules, 1969, while posted at raurkela steel plant, raurkela orissa on false, fabricated and flimsy grounds by upper caste officer having monopoly to victimize a scheduled caste officer. in spite of material surfaced during the inquiry held having failed to prove charges still he was penalized by reducing his pay by two stages by way of victimization. up till filing of present petition the respondents had failed to consider/take any action and/or even to communicate about the same upon representation/appeal dated 12.7.2000 and further detailed representation dated 21.9.2000 in continuation of the same submitted by petitioner regarding said penalty imposed upon him.4. it is also his case that during his service as a sub inspector uptill june 1992 for about 17 years, he had crossed efficiency bar, he was promoted as inspector executive w.e.f. 27.7.1992 and thus significance of earlier adverse entries was lost after his said promotion. during period after said promotion uptill his compulsory retirement on 30.7.2000 he was never communicated any adverse confidential reports nor any disciplinary inquiry was initiated against him. thus his clean unblemished service record was not warranting his compulsory retirement and hence such order passed deserves to be quashed and set aside.5. while it is the case of respondents that the petitioner enrolled on 25.8.1975 with respondent nos. 2 and 3 as sub-inspector was promoted to rank of inspector executive on 27.5.1992 and had held said rank till he was prematurely retired on 3.7.2000. the petitioner born on 7.8.1949 had attained age of 50 years on 6.8.1999. the non-gazetted post of inspector cisf earlier from group c was reclassified to group b retrospectively with effect from 10.10.1997 by order dated 18.5.1999 issued by ministry of home affairs.6. on 26.6.2000 review committee under the chairmanship of respondent no. 2 with other members in accordance with the provisions of f.r. 56(j) had reviewed case of petitioner for assessing suitability of his further retention in service beyond age of 50 years. even prior to same the case of the petitioner was screened by internal screening committee under chairmanship of respondent no. 3 with d.i.g. administration, cisf hq and commandant cisf 5th res being other members of said committee. both the said committees had found that due to poor service record petitioner was unsuitable for further retention in service beyond age of 50 years. in accordance with said decision order dated 3.7.2000 prematurely retiring petitioner in public interest was served upon him.7. the representation dated 12.7.2000 and 15.9.2000 submitted by the petitioner to respondent no. 2 against order of premature retirement as per the rules were referred to ministry of home affairs for consideration of representation committee in the ministry. the said committee after due consideration of case had arrived at conclusion that there was no reasonableness in representation made, warranting any interference with order of compulsory retirement in public interest passed. the recommendation of representation committee rejecting representation of petitioner were accepted by competent authority in ministry of home affairs and were communicated to the petitioner vide letter dated 15.11.2000 on address mentioned by petitioner upon representations given. since petitioner had mentioned different address in writ petition same indicates of himself having changed his address after submitting representations. however, he had not informed same to respondents.8. as per government instructions in normal course a review should have been effected before petitioner attaining age of 54 years and 6 months or before himself completing 29 years qualifying service, whichever occurring earlier. however, since post of inspector was reclassified as stated aforesaid by the order dated 18.5.1999 and by that time petitioner had already crossed age of 49 years and 6 months, the review could not be effected at such time. thus contention of petitioner that his case was not reviewed at relevant point of time and hence next review could have been effected at the age of 55 years as per the provisions of fundamental rules 56 (j) is not sustainable. since in such circumstances first review of case of petitioner could not be effected prior to attaining 50 years, the contention of petitioner on basis of decision of the apex court that after crossing the barrier of 50 years the next review could be effected only at 55 years or he had got lease up-till said age, being wholly incorrect.9. it is main case of the respondents that case of petitioner for premature retirement was not based on average annual confidential reports as alleged, but the same was based on basis of his entire service record in which he had got two adverse acrs in year 1993 and 1994 after his promotion in the year 1992. one major punishment and three minor punishments were awarded to petitioner during his service for his misconduct, dereliction of duties and indiscipline which justifies his premature retirement. the promotion of the petitioner was delayed not only due to major punishment given in the year 1984 but the same was also delayed due to his grading in annual confidential report required to be considered for assessing eligibility for the promotion. the petitioner even after promotion getting one minor punishment in the year 1999 and adverse remarks in annual confidential report for the year 1993 and 1994 vividly pictures his unsatisfactory service record. denying allegations of victimization of the petitioner on the count of petitioner being scheduled caste, respondent had contended that indiscipline, acts of the petitioner of indiscipline and insubordination were discussed by group commandant, cisf cochin in order dated 13.8.1999 awarding punishment of one day pay fine to the petitioner.10. the allegations of the petitioner of the adverse remark for the year 1993 and 1994 being not communicated to him being false due to the same being communicated to him vide letters dated 13.6.1994 and 29.3.1995 issued by commandant cisf unit asp durgapur and petitioner having acknowledged the receipt of the same. thus considering the adverse remarks in the year 1993 and 1994, punishment awarded in the year 1999 and the earlier poor service record authority was within its right to prematurely retire the petitioner in public interest and the said decision was not arbitrary, mala fide and against the government instructions nor the same was taken for avoiding institution of disciplinary proceeding or the same being not in public interest or was for collateral reasons. thus the order impugned being not liable to be set aside.11. the learned counsel for the petitioner prayed for quashing and setting aside the order impugned by making submissions in consonance with above narrated contentions taken by the petitioner and further urging that:a) in view of the ratio in decision in the case of nitin industrial associates v. state of maharashtra reported in 1986 mh.l.j. 472 the present petition against the order of compulsory retirement passed on 30.7.2000 being admitted in the year 2002 and since then being pending, can be considered by this bench at nagpur in spite of part of cause of action for same i.e. order of compulsory retirement being passed by respondent no. 3 having office at bombay and thus being triable at principle seat at bombay.b) the petitioner having preferred appeal/representation but being not intimated result thereon the petition is not liable to be dismissed on the count of such alternate remedy being available, as the same fully denotes of himself having taken recourse to the same or now atleast after respondent having come up with case of same being rejected by them or the said decision being allegedly served upon the petitioner by sending letter on his address mentioned upon representations.c) the decisions in the case of (i) procter and gamble india limited v. municipal corporation of greater bombay reported in : 2004 (1) mh.l.j. 406 (ii) costa and company private limited, goa v. sales tax officer reported in 2001 (2) mh.l.j. 103 and (iii) shrirang ramratan chandak v. union of india reported in : 2006(4) mh.l.j. 571 fully support contention of petitioner being not liable to be non-suited on technical plea of alternate remedy being available after entertaining the petition and keeping the same in dormant for years.d) the order of compulsory retirement passed is absolutely unfair, illegal, arbitrary and unjustifiable and the same being issued in violation of provisions of fr 56 (j).e) the decision in the case of brijmohan singh chopra v. state of punjab reported in (1987) 2 scc 188 in terms reveals that adverse entries of more than 10 years in past and those given prior to the promotion should not be taken into consideration and similarly adverse entries should be communicated to the government servant and his representation again such entries should be disposed of before taking into account the said for forming opinion against him.f) in light of said decisions and petitioner being promoted in the year 1992, the punishment given to him in earlier year i.e. 1984 would be inconsequential for the purposes of compulsory retiring him as his promotion indicates of his record prior to 1992 being good, as otherwise he would not have been promoted in said year. similarly himself being not communicated any adverse remark after receiving promotion also indicates that his service record thereafter being good and as such an order of compulsory retirement passed clearly appears to be without any rational basis.g) considering fundamental rule 56(j) and review of the case of petitioner being effected on 26.6.2000 i.e. much after himself completing age of 50 years and prior to completing age of 55 years the same would be violative of the said rule as after completion of age of 50 years he had got a lease up till 55 years in service as observed by the apex court in a decision in the case of state of u.p. v. chandramohan and ors. reported in : 1977 (4) scc 345 and as such the order of compulsory retirement cannot be sustained on said count alone.h) the decisions in cases of sukhdeo v. commissioner, amravati division, amravati and anr. : (1996) 5 scc 103; m.s. bindra v. union of india and ors. : (1998) 7 scc 310 and dev dutt v. union of india and ors. 2008 (4) all mr 438 (sc) also supports proposition of there being necessity of affording opportunity in respect of adverse remark before relying upon the same.12. however, the learned counsel fairly conceded that the petitioner having surpassed age of superannuation on 6.8.2009 now the prayer of reinstatement will not survive and hence the petition will be required to be considered for the purposes of awarding monitory benefits deprived due to passing of unjust order of compulsory retirement.13. the learned counsel for the respondents prayed for dismissal of the petition by making submissions in consonance with the above narrated contentions taken by the respondents narrated earlier while opposing the petition and by further urging that:a) respondent no. 3 has properly exercised the power vested of compulsory retiring a employee in public interest by virtue of rule 56 of fundamental rules while considering the case of the petitioner for retention after completion of the age of 50 years,b) the same was exercised within the law/guidelines laid by the honble apex court in its decisions and after considering entire service record of the petitioner and no fault can be found with the same;c) since while considering the aspect of compulsory retirement entire service record is to be considered merely because petitioner was promoted in the year 1992 will not make, his service record prior to the same insignificant as criteria for the promotion is altogether different than that for ordering compulsory retirement.d) since the service record of the petitioner reveals that though he was entitled for the promotion in the year 1992 the fact that the same was a belated promotion due to his earlier service record having dis-entitled him the promotion at the proper time, merely because he became entitled for the same at the later stage would not warrant ignoring the relevant aspect from the said earlier record while considering the altogether different question whether he was entitled for continuation in service after completion of age of 50 years.e) having regard to the decisions of the supreme court revealing that for the purposes of compulsory retirement even non-communicated adverse entries can be taken into account, the grievance tried to be made on such count will not deserve any credence nor the same would render the orders impugned vulnerable;f) the submissions canvassed on behalf of the petitioner regarding no review being possible in his case in view of the same being effected after completion of his age of 50 years and/or on the basis of the decisions of the apex court relied are due to confusion made by him about the relevant aspect and without taking into consideration of reclassification being effected vide order dated 18.5.1999 with retrospective effect since 10th october,1997 i.e. after petitioner having completed the age of 50 years ;g) the respondent no. 3 within his rights by virtue of power conferred after subjective satisfaction having taken administrative decision to compulsory retire the petitioner in public interest and same being not found improper, arbitrary, mala-fide or perverse by higher appellate authorities, would not warrant any interference by this court in exercise of extra-ordinary jurisdiction.h) since no apparent fault can be found with the order passed by respondent no. 3 reveals there being no merits in the present petition.14. learned counsel for the respondents in his turn in support of his submission placed reliance upon decision in the cases of state of u.p. and ors. v. vijay kumar jain reported in (2002) 3 scc 641; nawal singh v. state of u.p. reported in : 2003 (8) scc 117 and chandidas deshpande v. state of maharashtra reported in 2001 (3) all mr 865.15. having considered decisions relied by learned counsel for petitioner in support of the submission that petition can be considered by the bench at nagpur and petitioner being not liable to be non-suited on the count of alternative remedy being available, we are of the considered opinion of there being necessity to examine merits of main matter in the petition rather than asking the petitioner to approach the bench at mumbai on the backdrop of said decisions relied and said submissions being not at all opposed on behalf of the respondents, the petition being admitted in the year 2002, the respondents having rejected representations made by petitioner against order impugned and having communicated same to petitioner on the address given on representation.16. however before taking up such process we also feel it necessary to make reference to few decisions of the apex court having useful bearing with the aspect related with question of compulsory retirement of government employee for determining merits in present petition.17. the honble apex court way back in the year 1992 in the case of baikuntha nath das and anr. v. chief district medical officer, baripada and anr. reported in : air 1992 sc 1020 has observed thus regarding compulsory retirement in paragraph no. 32:32. the following principles emerge from the abovediscussion:(i) an order of compulsory retirement is not a punishment. it implies no stigma nor any suggestion of misbehaviour.(ii) the order has to be passed by the governmenton forming the opinion that it is in the public interest toretire a government servant compulsorily. the order is passed on the subjective satisfaction of the government.(iii) principles of natural justice have no place inthe 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) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable personwould form the requisite opinion on the given material inshort; if it is found to be a perverse order.(iv) the government (or the review committee, asthe case may be) shall have to consider the entire recordof 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 favourable andadverse. if a government servant is promoted to a higher post not with standing the adverse remarks, such remarkslose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.(v) an order of compulsory retirement is not liableto be quashed by a court merely on the showing thatwhile passing it uncommunicated adverse remarks werealso taken into consideration. that circumstance by itself cannot be a basis for interference. interference is permissible only on the groundsmentioned in (iii) above. this object has been discussedin paras 29 to 31 above.18. while in another decision in the case of state of gujarat v. umedbhai m. patel : (2001) 3 scc 314 the honble apex court observed thus in paragraph no. 11 : 11. the law relating to compulsory retirement has nowcrystallised into definite principles, which could be broadly summarised thus:(i) whenever the services of a public servant areno longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.(ii) ordinarily, the order of compulsory retirement isnot to be treated as a punishment coming under article 311 of the constitution.(iii) for better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to theentire service record of the officer.(iv) any adverse entries made in the confidentialrecord shall be taken note of and be given due weightage in passing such order.(v) even un communicated entries in the confidential record can also be taken into consideration.(vi) the order of compulsory retirement shall notbe passed as a short cut to avoid departmental enquirywhen such course is more desirable.(vii) if the officer was given a promotion despiteadverse entries made in the confidential record, that is a fact in favour of the officer.(viii) compulsory retirement shall not be imposed as a punitive measure.19. while the decision in the case of state of u.p. and ors. v. vijay kumar jain (2002) 3 scc 641 also relied by learned counsel for the respondents, the honble apex court observed thus in paragraph no. 15,15. the aforesaid decisions unmistakably lay downthat the entire service record of a government servantcould be considered by the government while exercising the power under fr 56(c) of the rules withemphasis on the later entries. fr 56(c) of the rules read with explanation (2), empowers the state government with an absolute right to retire an employee on attaining the age of 50 years. it cannot be disputed that the dead wood need to be removed tomaintain efficiency in the service. integrity of a government employee is foremost becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has anabsolute right to compulsorily retire such an employeein public interest. the governments right to compulsorily retire an employee is a method to ensureefficiency in public service and while doing so the government is entitled under fundamental rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the laterentries in the character roll of an employee. in fact, entire service record, character roll or confidential report furnishes the materials to the screeningcommittee or the state government, as the case maybe, to find out whether a government servant has outlived his utility in service. it is on consideration of totality of the materials with emphasis on the later entries in the character roll, the government is expected to form its opinion whether an employee is tobe compulsorily retired or not. 20. now in light of the aforesaid pronouncement considering the rival submissions and after perusing the record, we are of the considered opinion of the petition preferred inviting judicial review of the administrative decision taken of compulsory retiring the petitioner being devoid of any merits. we are of such an opinion as we are unable to find any fault with the order of compulsory retirement passed by respondent no. 3 after reviewing the same within the permissible limits, in light of the submissions canvassed before us. we are unable to find any fault with the said order on the count of the case of petitioner being reviewed after completion of age 50 years.21. now in the context of submission of learned counsel for the petitioner of review being effected on 26.6.2000 after petitioner had completed age of 50 years on 6.8.1999 and after carefully considering sub-clause (j) of fundamental rule 56 which reads as under:notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice.(i) if he is, in group 'a' or group 'b' service or post in a substantive, quasi-permanent or temporary capacity and had entered government service before attaining the age of 35 years, after he has attained the age of 50 years;(ii) in any other case after he has attained the age of fifty-five years. it is difficult to find any merit in the said submissions.22. such conclusion is obvious as it is not in dispute that the petitioner was born on 7.8.1949 and joined service on 25.8.1975. he had joined the same before attaining the age of 35 years and as such his case would have been governed by sub-clause (i) in event of the same being applicable for the type of the service in which he was engaged. though it is true that the petitioner had completed the age of 50 years on 6.8.1999, still the review of his case six months prior to the same could not have been commenced, as the said rule was then not applicable to his service i.e. the service from group 'c'. since only due to the reclassification effected vide order dated 18.5.1999 with retrospective effect from 10.10.1997 his services were classified in group 'b' the question of reviewing his case under the said rule could have arisen only thereafter i.e. after 6.8.1999. needless to add but for the said order the question of reviewing his case under the relevant rule would never had arisen in view of himself till then being in the group 'c'. hence, we are unable to find any merit in submission canvassed by learned counsel for the petitioner of review being not commenced prior to six months before petitioner attaining the age of 50 years.23. apart from the aforesaid even upon plain reading of the said rule, it is apparent that the same can be pressed into service by appropriate authority after the concerned employee attains the age stipulated for either cases. the same is manifestly clear by the word used after he has attained ... used in both the clauses of sub-clause (j) of fundamental rule 56. all the same makes it abundantly clear of no bar being created for considering question of such retirement by the appropriate authority prior to employee completing such a service or even thereafter, as the bar relates to not retiring him prior to attaining the age prescribed under the rule for respective clauses. in view of the same it is difficult to accept of there being bar for taking or even communicating the decision of an employee being retired in public interest under the said rule after attaining age of 50 years or even thereafter as occurred in the case of the petitioner. needless to add that said rule does not require that employee sought to be compulsorily retired must be retired at the nick of day of himself attaining age of 50 years or completing service of 35 years as the case may be.24. now in same context careful perusal of the decision in the case of state of uttar pradesh v. chandra mohan nigam and ors. reported in : (1977) 4 supreme court cases 345 relied by learned counsel for petitioner reveals that said case involved question of compulsory retirement effected under all india services (death-cum-retirement benefits) rules, 1958 framed under all india services act, 1951. the decision reveals that under the said rules compulsory retirement in public interest was permissible for an employee who had completed 30 years of qualifying service or who had attained age of 55 years. the decision reveals that case of respondent employee therein under the said rule was considered after he had completed the age of 30 years but then he was not compulsorily retired under said rule. however, his case was again reviewed by the appellant/state at about 53 years of age of said employee i.e. before completing age of 55 years i.e. at age at which such second review was permissible under said rule. the same being impermissible under the rule , the said second review was held invalid. it also reveals of the same being not held to be invalid on the count of being effected after the age of employee attaining 30 years of the qualifying service. such a thing having not occurred in case of petitioner it is difficult to accept that the ratio of the said decision can be said to be of any assistance to petitioner.25. in the said premises, it is difficult to accept that it was not permissible for respondent no. 3 to communicate the decision arrived by the administrative authority to petitioner at the age of 51 years and 10 months. hence any question of inferring mala fides on the part of respondents on said count as tried to be canvassed on behalf of petitioner does not arise.26. similarly considering the yardstick as explained by the apex court for considering question of compulsory retirement and the same amongst others revealing that even adverse uncommunicated entries can be taken into consideration, as the entire service record is required to be considered, we are unable accept the submission canvassed by the learned counsel for the petitioner on the said count. thus on the basis of the ratio in the decisions of the apex court, we find it difficult to accept that in the event of the said adverse remarks being not communicated to petitioner, relying upon the same would amount to not following principles of natural justice while considering question of his compulsory retirement. in view of the same we find it unnecessary to go into the question of the same being not communicated to the petitioner i.e. an aspect also refuted by the respondents of the same being conveyed to him orally at the time of sheet remark as per the routine practice of the department and being noted in the service book of the petitioner.27. thus, no case is made out for coming to the conclusion of order impugned being illegal, arbitrary, unjustifiable and passed in a revengeful manner and/or the same being not passed within the parameters of the relevant rules or while passing the same principles of natural justice being violated and on contrary during examination of the same being found after taking into consideration the entire service record of the petitioner as warranted as per the principles regarding the compulsory retirement explained by the honble apex court.28. now carefully considering other decisions in the cases of brijmohan singh chopra v. state of punjab reported in : (1987) 2 scc 188; sukhdev v. commissioner, amravati division reported in : (1996) 5 scc 103; m.h. bindra v. union of india and ors. reported in : (1998) 7 scc 310 and devdutt v. union of india reported in 2008 (4) all mr 438 relied by learned counsel for the petitioner and the law regarding compulsory retirement as explained therein being in consonance with the decisions of the apex court recited earlier by us and having regard to fact that in the instant case compulsory retirement of petitioner being based on consideration of his entire service record, though promoted in the year 1992, even the same being delayed due to poor service record of the petitioner and even thereafter promotion having received twice adverse remarks and punishment in year 1999 and the same being not based upon only stale earlier adverse entries or no inconsistency in the said record being pointed out or the same being not based only on the surmises and so also petitioner being not able to refute documentary evidence produced by respondents regarding communication of an adverse entries to him, we find it extremely difficult to accept case of the petitioner being akin with case of the employees involved in any of the said decisions relied. hence, we do not deem it necessary to make thread bare dilation about the same and only observe of same being of no use to the petitioner to advance his case.29. for the reasons stated hereinabove, we find no merit in the petition and consequently dismiss the same with no order as to costs. rule stands discharged accordingly.