University Institute Of

Legal Studies
Panjab University

SERVICE LAWS
COMPULSORY RETIREMENT

Submitted to:

Submitted by:

Dr. Jaswinder Kaur,

Harshit Anand

(Service law)

136/12, 8th sem.,

UILS, PU.

B.com.llb. (Hons)

Acknowledgement

I wish to convey my greatest appreciation to Dr. JASWINDER KAUR, a

professional professor and great mentor, who challenged and organized my
thoughts and helped convert them to the written words.
I would also like to thank UNIVERSITY INSTITUTE OF LEGAL STUDIES,
PANJAB

UNIVERSITY,

CHANDIGARH,

for

their

initial

faith

and

encouragement that I submit my project report.

I am indebted to my friends and other family members for providing
kindness and help in making this project.

TABLE OF CONTENTS

2 | Page

S.NO

TOPIC

Page No

1.

Introduction

2.

Concept of Compulsory Retirement

4-5

3.

Principles regarding Compulsory

5-6

4.

Retirement
Compulsory Retirement Neither

7-8

5.

Punitive Nor Stigmatic

Relation of Article 311 Of The

8-11

6.

Constitution
Absolute Power Vs Judiciary

12-13

7.

Whether Educational Institutions

14

Should Come Under Ambit Of

Compulsory Retirement?
8.

Conclusion

15

9.

Bibliography

16

INTRODUCTION

3 | Page

In a recently reported decision Leela Sharma v. Govt of NCT1, the Delhi

High Court examined the concept of 'Compulsory Retirement' to hold that
it was one of the vital tools for the Government to ensure that inefficient
public servants are discharged and thus the administrative machinery rests
its functions upon efficient workmen.

Concept of Compulsory Retirement

It came into force to remove a public servant whose services are no longer
useful to the general administration or in public interest; if it is felt that for
better administration, for augmenting efficiency it is necessary to chop of
the deadwood. The order of compulsory retirement has to be made having
regard to the entire service record of the officer. Even un-communicated
entries in the confidential record can be taken into consideration. The order
of compulsory retirement is not to be treated as a punishment and carries no
stigma. However, it has been held that the order of compulsory retirement
shall not be passed as a shortcut to avoid departmental enquiry when such
course is more desirable. The rule of compulsory retirement has been held to
hold the balance between the rights of the individual Government servant
and the interest of the public.
The rule is intended to enable the Government to energies its machinery and
to make it efficient by compulsorily retiring those who, in its opinion, should
not be there in public interest. Fundamental Rule 56(j) has been held to
confer absolute right to retire any Government servant on his attaining the
age of 55 years if the authority is of the opinion that it is in the public
interest to do so.
1 (2010) 170 DLT 170
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The Supreme Court in Bishwanath Prasad Singh Vs. State of Bihar 2 held
that the object of such compulsory retirement is to weed out the worthless
who have lost their utility by their insensitive, unintelligent or dubious
conduct impeding the flow and promoting stagnation. It was held that the
country needs speed, sensitivity, probity, non-irritative public relation and
enthusiastic creativity which can be achieved by eliminating the deadwood,
the paper-logged and callous.
It is thus clear that an order of compulsory retirement is an important tool to
keep any organization vibrant and to prevent its clogging and decay by the
sheer weight of long standing employees who have ceased to be the
dynamos to propel the organization further and for achieving its goals. The
same enables the employer to, after the employee has worked for a certain
number of years and / or has attained a certain age but before the age of
superannuation, remove him. It is often found that certain employees after
putting in considerable number of years of service lose their sheen and no
longer remain productive. Their continuance in service is of no use to the
organization.

Principles Regarding Compulsory Retirement

For years, we have had much discussion in this country about administrative
and bureaucratic reforms. We have had two administrative reforms
commissions that have given voluminous reports and suggested many
changes. But the common feeling is that little has changed. Last year, after
the new government came to power it issued a 19 points Dos and Donts to
the bureaucracy aimed at improving the administration and making it
responsive and transparent. Though none of the points were revolutionary, it
did give the bureaucrats a clear picture of what is expected of them. Now the
government has come up with another order which seeks to retire
compulsorily bureaucrats who are either incompetent or tainted. This order
also says once these officers are identified through a process, they will be
given a three months time to pack their bags.
2 AIR 2004,pg122
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Experts say that there is nothing new in this circular. Such rules were already
there under the fundamental rules since 1919. After the constitution came
into force these rules were adopted under Article 372. Fundamental Rule
56(J) and Rules 48 of the CCS (Pension) Rules, 1972, speak about retirement
of inefficient and corrupt officers. As per the Fundamental Rule 56(J), the
government has an absolute right to retire, if necessary in the public interest,
any Group A and B employee who joined service before the age of 35 and
has crossed the age of 50. Group C government servants, having crossed the
age of 55, can also be retired prematurely under the rules.
In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer,
Baripada & Anr.3, this Court has laid down certain criteria for the Courts, on
which it can interfere with an order of compulsory retirement and they
include mala fides, if the order is based on no evidence, or if the order is
arbitrary in the sense that no reasonable person would form the requisite
opinion on the given material, i.e. if it is found to be a perverse order. The
Court held as under:
(i) An order of compulsory retirement is not a punishment. It implies neither
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 the 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 person would form the requisite
opinion on the given material: in short, if it is found to be a perverse order.

3 AIR 1992 SC 1020

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(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 excommunicated adverse
remarks were also taken into consideration. That circumstance by itself
cannot be a basis for interference.

Compulsory

Retirement

Neither

Punitive

Nor

Stigmatic
The Supreme Court said order of compulsory retirement is neither punitive
nor stigmatic and has to be based on subjective satisfaction of government
authority that it is in public interest.The order of compulsory retirement is
neither punitive nor stigmatic. It is based on subjective satisfaction of the
employer and a very limited scope of judicial review is available in such
cases.
Interference is permissible only on the ground of non application of mind,
malafide, perverse, or arbitrary or if there is non-compliance of statutory
duty by the statutory authority," a bench of justices KS Radhakrishnan
and AK Sikri in Rajasthan State Road Transport Corporation vs State
of Rajasthan4 said.
4 2003 AIR 1003, 1990 SCR Supl. (3) 622
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The bench made the observation while upholding an appeal filed by

Rajasthan State Road Transport Corporation against the state high court
order setting aside the compulsory retirement given to one of its drivers. The
corporation

had

introduced

provisions

of

compulsory

and

voluntary

retirement for its employees and a screening Committee was constituted in

2002 to look into the conduct and continuance of four employees who had
attained the age of 50 years or had completed 25 years of service.
The driver was given compulsory retirement considering his adverse career
record from 1978-90.He had moved Rajasthan High Court which set aside the
compulsory retirement saying adverse service record pertaining to the period
1978-90 being old and stale could not be taken into consideration at all for
retiring him. The apex court bench, however, said entire service record is
relevant for deciding as to whether the government servant needs to be
eased out prematurely. Power to retire compulsorily, the government servant
in terms of service rule is absolute, provided the authority concerned forms a
bonafide opinion that compulsory retirement is in public interest.
"What is to be examined is the `overall performance` on the basis of `entire
service record` to come to the conclusion as to whether the concerned
employee has become a deadwood and it is public interest to retire him
compulsorily," the bench said citing various judgments.

When Penalty Of Dismissal/Removal/Compulsory

Retirement Is Set Aside For Non-Observance Of
Procedure Prescribed Under Article 311 Of The
Constitution.
If an order of dismissal, removal or compulsory retirement from service is
held by a court of law or by the appellate/reviewing authority to have been
8 | Page

made without following the procedure prescribed under Article 311 of the
Constitution, and no further inquiry is proposed to be held, action to regulate
his pay and allowances for the period of absence from duty and to specify
whether the said period shall be treated as duty for any specific purpose will
be taken in accordance with FR 54 or FR 54-A, as the case may be .
In such cases, if it is decided to hold a further inquiry and thus deem the
Government servant to have been placed under suspension from the date of
dismissal/removal/compulsory retirement under Rule 10(3) or (4) of the CCA
Rules, the Government servant will be paid the subsistence allowance from
the date he is deemed to have been placed under suspension under FR 53.

Fundamental rule 54(1)

(1)

When a Government servant who has been dismissed, removed or

compulsorily retired is re-instated as a result of appeal review or would have

been so re-instated 9 [but for his retirement on superannuation, while under
suspension or not], the authority competent to order re-instatement shall
consider and make a specific order:(a) regarding the pay and allowances to be paid to the Government servant
for the period of his absence from duty including the period of suspension
preceding his dismissal, removal or compulsory retirement, as the case may
be, and
(b) whether or not the said period shall be treated as a period spent on
duty.
(2) Where the authority competent to order re-instatement is of the opinion
that the Government servant who had been dismissed, removed or
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compulsorily retired has been fully exonerated, the Government servant

shall, subject to the provisions of sub-rule (6), be paid full pay and
allowances to which he would have been entitled, had he not been
dismissed, removed or compulsorily retired or suspended prior to such
dismissal, removal or compulsory retirement, as the case may be: Provided
that where such authority is of opinion that the termination of the
proceedings instituted against the Government servant had been delayed
due to reasons directly attributable to the Government servant, it may, after
giving him an opportunity to make his representations 10 [within 60 days
from the date on which the communication in this regard is served on him]
and after considering the representation, if any submitted by him, direct for
reasons to be recorded in writing, that the Government servant shall, subject
to the provisions of sub-rule (7),be paid for the period of such delay, only
such amount 11 [not being the whole] of such pay and allowances as it may
determine.
(3)

In a case falling under sub-rule (2), the period of absence from duty

including the period of suspension proceeding dismissal, removal or

compulsory retirement, as the case may be shall be treated as a period
spent on duty for all purposes.
(4) In the cases other than those covered by sub-rule (2) including the cases
where the order of dismissal, removal or compulsory retirement from service
is set aside by the Appellate or Reviewing Authority solely on the ground of
non-compliance with the requirements of Clause (2) of Article 311 of the
Constitution and no further enquiry is proposed to be held, the Government
servant shall subject to the provision of sub-rules (6) and (7), be paid such
12 [amount (not being the whole) of the pay and allowances] to which he
would have been entitled had he not been dismissed, removed or
compulsorily retired or suspended prior to such dismissal, removal or
compulsory retirement, as the case may be, as the competent authority may
determine, after giving notice to the Government servant of the quantum
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proposed and after considering the representation, if any, submitted by him

in that connection within such period 13 [which in no case shall exceed sixty
days from the date on which the notice has been served] as may be
specified in the notice:

Fundamental Rule 54 -A
Where the dismissal, removal or compulsory retirement of a Government
servant is set aside by a Court of Law and such Government servant is reinstated without holding any further enquiry, the period of absence from
duty shall be regularized and the Government servant shall be paid pay and
allowance in accordance with the provisions of sub-rule (2) or (3) subject to
the directions, if any, of the court.
(i)

Where the dismissal, removal or compulsory retirement of a Government

servant is set aside by the Court solely on the ground of non-compliance with
the requirements of the clause (2) of Article 311 of the Constitution, and
where he is not exonerated on merits, the Government servant shall subject
to the provision of sub-rule (7) of rule 54, be paid such 17 [amount (not
being the whole) of the pay and allowances to which he would have been
entitled had he not been dismissed, removed or compulsorily retired or
suspended prior to such dismissal, removal, or compulsory retirement, as the
case may be, as the competent authority may determine, after giving notice
to the Government servant of the quantum proposed and after considering
the representation, if any, submitted by him in that connection, within such
period, 18 [which in no case shall exceed sixty days from the date on which
the notice has been served as may be specified in the notice:
Provided that any payment under this sub-rule to a Government servant
other than a Government servant who is governed by the provisions of
Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of
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three years immediately preceding the date on which the judgment of the
court was passed or the date of retirement on superannuation of such
Government servant, as the case may be.
(ii)

The period intervening between the date of dismissal, removal or

compulsory retirement including the period of suspension preceding such

dismissal, removal or compulsory retirement, as the case may be and the
date of judgment of the court shall be regularized in accordance with the
provisions contained in sub-rule (5) of Rule 54.]
If the dismissal, removal, or compulsory retirement of a Government servant
is set aside by the Court on the merits of the case, the period intervening
between the date of dismissal, removal or compulsory retirement including
the period of suspension preceding such dismissal, removal or compulsory
retirement, as the case may be, and the date of re-instatement shall be
treated as duty for all purposes and he shall be paid the full pay and
allowances for the period to which he would have been entitled, had he not
been dismissed, removed or compulsorily retired, as the case may be.
The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject
to all other conditions under which such allowances are admissible. (5) Any
payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount if any, earned hy
him through an employment during the period between the date of
dismissal, removal or compulsory retirement and the date of re-instatement.
Where the emoluments admissible under this rule are equal to or less than
those earned during the employment elsewhere, nothing shall be paid to the
Government servant.

Absolute Power Vs Judiciary

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It has been observed by the courts that there was a very limited scope of
judicial review in a case of compulsory retirement and it was permissible
only on the grounds of non-application of mind; mala fides; or want of
material particulars.
Power to retire compulsorily a Government servant in terms of Service Rules
is absolute, provided the authority concerned forms a bona fide opinion that
compulsory retirement is in public interest5.
While considering the case of an employee for compulsory retirement, public
interest is of paramount importance. The dishonest, corrupt and dead-wood
deserve to be dispensed with. How efficient and honest an employee is, is to
be assessed on the basis of the material on record, which may also be
ascertained from confidential reports. However, there must be some tangible
material against the employee warranting his compulsory retirement 6.
Where the screening committee is consisting of responsible officers of the
State and they have examined/assessed the entire service record and
formed the opinion objectively as to whether any employee is fit to be
retained in service or not, in the absence of any allegation of mala fides,
there is no scope of a judicial review against such an order7.
In Nawal Singh Vs. State of U.P. & Anr 8, a similar view has been
reiterated. The Court observed as under:
At the outset, it is to be reiterated that the judicial service is not a service in
the sense of an employment. Judges are discharging their functions while
5 Rajat Baran Roy & Ors. Vs. State of West Bengal & Ors., AIR 1999 SC 1661.
6 State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, (1999) 1 SCC 529
7 Jugal Chandra Saikia Vs. State of Assam & Anr., AIR 2003 SC 1362
8 AIR 2003 SC 4303
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exercising the sovereign judicial power of the State. Their honesty and
integrity is expected to be beyond doubt. It should be reflected in their
overall reputation. Further, the nature of judicial service is such that it cannot
aford to sufer continuance in service of persons of doubtful integrity or who
have lost their utility. If such evaluation is done by the Committee of the High
Court Judges and is affirmed in the writ petition, except in very exceptional
circumstances, this Court would not interfere with the same, particularly
because the order of compulsory retirement is based on the subjective
satisfaction of the authority.
Further, it is impossible to prove by positive evidence the basis for doubting
the integrity of the judicial officer. In the present-day system, reliance is
required to be placed on the opinion of the higher officer who had the
opportunity to watch the performance of the officer concerned from close
quarters and formation of his opinion with regard to the overall reputation
enjoyed by the officer concerned would be the basis.
It will bear repetition to state that in terms of Rule 53 of the Pension Rules,
an order for compulsory retirement can be passed only in the event the
same is in public interest and/or three months notice or three months pay in
lieu thereof had been given9.
Article 235 of the Constitution of India enables the High Court to assess
the performance of any judicial officer at any time with a view to discipline
the black sheep or weed out the deadwood. This constitutional power of the
High Court cannot be circumscribed by any rule or order. We can usefully
refer to some of the leading cases on Article 23510:

9 Chandra Singh & Ors. Vs. State of Rajasthan & Anr., AIR 2003 SC 2889
10State of Assam v. Ranga Mohd., AIR 1967 SC 903 (five Judges), Samsher Singh v.
State of Punjab, AIR 1974 SC 2192 (seven Judges)
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High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil 11, In

the instant case, we are dealing with the higher judicial officers. We have
already noticed the observations made by the Committee of three Judges.
The nature of judicial service is such that it cannot aford to sufer
continuance in service of persons of doubtful integrity or who have lost their
utility.

WHETHER
COME

EDUCATIONAL

UNDER

AMBIT

INSTITUTIONS
OF

SHOULD

COMPULSORY

RETIREMENT?
In my opinion the objective of compulsory retirement is laudable. During the
hearing, it was put to the counsel for the petitioner as to whether,
considering the importance of the Schools, is it not desirable to have the
concept of compulsory retirement in Schools. The importance of the Schools
cannot be undermined; they play a vital role in shaping the future/next
generation and hence the destiny of the community and the country. The
onus of so shaping and igniting the minds rests in the hands of teaching
faculty of the school. Often it is found and is human nature that persons who
have the requisite qualification and validly join the noble profession of
teaching, either fail to perform or though successful performers initially, over
the years lose the zeal to so shape the destiny of children they are dealing
with. Should the schools be forced to continue such persons, just to protect
the tenure of service of the said persons and that too at the cost of the
future citizens? The answer necessarily has to be in the negative.

11 AIR 1997 SC 2631

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Conclusion

Thus, the law on the point can be summarized to the efect that an order of
compulsory retirement is not a punishment and it does not imply stigma
unless such order is passed to impose a punishment for a proved
misconduct, as prescribed in the Statutory Rules.

The Authority must

consider and examine the over-all efect of the entries of the officer
concerned and not an isolated entry, as it may well be in some cases that in
spite of satisfactory performance, the authority may desire to compulsorily
retire an employee in public interest, as in the opinion of the said Authority,
the post has to be manned by a more efficient and dynamic person and if
there is sufficient material on record to show that the employee rendered
himself a liability to the institution.

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Principles of natural justice have no place in the context of an order of

compulsory retirement. There is no occasion for the Court to interfere in the
exercise of its limited power of judicial review but this does not mean that
judicial scrutiny is excluded altogether. An order of compulsory retirement is
not liable to be quashed by a Court merely on the showing that while passing
it, un-communicated adverse remarks were also taken into consideration.
That circumstance by itself cannot be a basis for interference.

BIBLIOGRAPHY

BOOK SOURCES:

Kumar Prof. Narender, law relating to government servants and

Management of disciplinary proceedings; Allahbad law agency,

Haryana, 2014.
Bhatnagar A.S.; Guide to Departmental Promotions,
Punishment & Appeals (In 2 Vols.) 8th edition, 2011.

Enquiries,

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WEB SOURCES:

http://legalperspectives.blogspot.in/2010/09/compulsory-retirement-concept.html

http://www.sck.tnerwa.org.in/retirementregulations.html

http://agl.tnebnet.org/pens/rettips/punishret.html
http://www.lawyersclubindia.com/experts/Compulsory-retirement462796.asp#.VsnxWX194dU

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