Exercising prudence

Our laws contain provisions, the appropriate use of which can address certain economic issues. Courts, in a catena of judgments, have consistently affirmed the necessity of eliminating inefficiencies, often likened to "removing deadwood" from the system. One of the pivotal provisions in this context is 56(j) of the Fundamental Rules, which pertains to compulsory retirement. In fact, quite recently, in 2022, the Supreme Court, in the case of Captain Pramod Kumar Bajaj, affirmed that the power to compulsorily retire a government servant under 56(j) is one facet of the doctrine of pleasure incorporated in Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in the service, and also to dispense with the services of those whose integrity is doubtful so as to preserve the purity in the administration. It is often invoked in the public interest to weed out inefficient officers.

Therefore, a highly sought-after ‘sarkari naukri (government job) must be carried out with utmost caution at all times. Privileges should never be taken for granted. The Apex Court has consistently affirmed that the government possesses an absolute right to compulsorily retire employees in the public interest. Courts have ruled that if such an order is passed with genuine intent and in the public interest, an inquiry, as provided for in Article 311(2) of the Constitution, is unnecessary. In the case of Union of India v. Col. J N Sinha, the Supreme Court held that a show-cause notice need not be issued to any government servant before serving a notice of compulsory retirement. It also referred to the earlier judgment of Umedbhai M Patel in 2001, clarifying that compulsory retirement should not be regarded as punishment. Instead, it should be seen as a means to eliminate inefficiency for better administration, implying that when a public servant's services are no longer beneficial to the general administration, the officer can be compulsorily retired in the public interest. Dictums have also established that compulsory retirement is bound to have some adverse effects on the government servant, but the rule stipulates that such retirements can only occur after the officer reaches a prescribed age. According to the dicta under the Fundamental Rules, it has been established that compulsory retirement at the age of 50, after a specified number of years of service (typically 30 years) as outlined in the provisions, does not entail civil consequences.

The Government servant does not lose any of the rights acquired before retirement. While a minimum service is granted to the Government Servant, the Government is empowered to enhance its efficiency by compulsorily retiring those who, in its opinion, should not continue in the service of the Government in the interest of the public. An employee who is retired does not lose most of the retirement benefits earned through their service. Besides Fundamental Rule 56(j), Rule 48 of CCS (Pension) Rules also addresses this.

Any adverse entries made in the confidential record can be considered for such orders. Review Committees are also established to assess the conduct of the employee and determine whether their continuation in service would be detrimental to public service and injurious to public interest. The overall service record and confidential records can be reviewed.

However, it has also been ruled in judgments that an order of compulsory retirement should not be issued to circumvent a departmental inquiry for any misconduct. There are also dictums indicating that the principles of natural justice have no place in the context of such an order for compulsory retirement.

As we all know, the basic administration of a country relies on the shoulders of public servants. While their perks and privileges are numerous, making the job highly sought after, there is also the sword of such provisions hanging over them. Therefore, it is advisable to exercise extreme caution while in such positions. However, such provisions should be used judiciously, as inappropriate decisions can lead to significant liabilities for the concerned department, particularly in later stages of litigation.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal