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[REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8245/2013 (Arising out of Special Leave Petition (Civil) No. 17760 OF 2013)

Rajasthan State Road Transport Corp. & Ors.         ………Appellant(s)

Versus

Babu Lal Jangir          ….....Respondent(s)

J U D G M E N T

A.K. SIKRI, J.

1. Leave granted.

2. Rajasthan State Road Transport  Corporation is  the appellant  in the  

instant petition through of which it impugns the validity of the orders dated  

16.1.2013 passed by Division Bench of the High Court of Judicature For  

Rajasthan,  Bench  at  Jaipur.  The  Division  Bench  has  dismissed  the  Writ  

Appeal of the appellant and confirmed the orders of the Additional Judge  

passed  in  the  Writ  Petition  filed  by  the  respondent  herein,  quashing  the  

orders of compulsory retirement of the respondent with the direction that the  

respondent  would  be  deemed  to  be  in  the  service  as  if  the  order  of  

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compulsory  retirement  had  not  been  passed  and  as  a  consequence  the  

respondent is held entitled to all consequential benefits.  

3. The Respondent joined the services of the appellant on the post of  

Driver on 14.2.1977.  He was placed on probation for a period of one year.  

4. The appellant has framed Standing Orders for its employees known as  

the  Rajasthan  State  Road  Transport  Workers  and  workshop  Employees  

Standing Orders, 1965 (hereinafter to be referred as the ‘Standing Orders’).  

These  orders  are  duly  certified by the Authority  under  the  provisions  of  

Industrial  Employment  (Standing Orders)  Act,  1946.  Subsequently,  there  

was an amendment in these Standing Orders and certain new clauses under  

rule 18, were inserted introducing the provision of compulsory and voluntary  

retirement. The same are reproduced herein below:

“18-D(1) COMPULSORY RETIREMENT

Notwithstanding  anything  contained  in  the  regulations  the Corporation may if is of the opinion that it is in the interest  of the Corporation to do so, have the absolute right to retire any  Corporation employee after, he has attained the age of 50 years  or on the date he completes 25 years of service whichever is  earlier, or on any date thereafter, by giving him 3 months notice  in writing or three months pay and allowances in lieu thereof.

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18-D (2) VOLUNTARY RETIREMENT

Notwithstanding  anything  contained  here  in  before  Corporation employee may after giving three months previous  notice in writing, retire from the service on the date on which  he completes 20 years service on the date he attains the age of  45 years or on any other date thereafter.”

5. It is clear from the above that the clauses pertaining to compulsory  

retirement  gives  the  Petitioner-Corporation  absolute  right  to  retire  any  

employee after he attains the age of 50 years or on completion of 25 years  

service whichever is earlier.

6. A Screening Committee was constituted by the Petitioner Corporation  

in 27.3.2002 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.  

Among these four persons, name of the Respondent also appeared.

7. This  committee,  on  perusal  of  the  record  of  the  respondent,  

recommended his compulsory retirement. The Review Committee held its  

meeting on 8.4.2002 to review the report of the Screening Committee and  

after  perusal  of  the  report  of  the  Screening  Committee,  the  Review  

Committee approved the proposal of the Screening Committee.   Based on  

the recommendation of  the Review Committee,  the Competent  Authority  

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passed the orders dated 9.4.2002, compulsorily retiring the respondent from  

service. As three months previous notice is required under rule 18-D (1) of  

the Standing Orders, in lieu thereof the respondent was sent three months’  

salary cheque.  

8. Challenging this action of the appellant, the respondent filed the Writ  

Petition in the High Court of Judicature for Rajasthan. The appellant herein  

(Respondent in the Writ Petition) appeared and decided a Writ Petition by  

filing counter affidavit. It was the highlight of the petitioner’s defense that  

the service record of the respondent showed a dismal picture, in as much as  

between the year 1978-1990, nearly 19 cases of  misconduct were foisted  

upon the respondent which resulted into some or the other kind of penalty  

like admonition or stoppage of pay or annual grade increment for a limited  

period. So much so, in the year 1992 a criminal case against the respondent  

was initiated under Section 279 read with Section 304 (a) of IPC and Section  

18/118 of the Motor Vehicles Act. In that case he was given the benefit of  

doubt  and released.  However,  a  departmental  inquiry  was held  in  which  

penalty  of  imposition  or  stoppage of  two years’  increment  was  imposed  

upon him. A representation against this penalty was also dismissed. In the  

year  1999  another  criminal  case  was  instituted  against  the  Respondent  

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because of the accident of the bus of the petitioner which was driven by the  

Respondent  as  Driver.  The  victims  had  also  filed  their  claim before  the  

Motor Claim Tribunal (MACT) and the Appellant -Corporation had to suffer  

heavy loss by paying compensation in the said case. However, in criminal  

case, the Respondent was acquitted. The appellant also pointed out that the  

service record of the Respondent revealed that he was also involved in the  

another accident in the year 1999 in which he suffered serious burn injuries.  

Because  of  this,  he  had  moved  an  application  requesting  the  Petitioner-

Corporation to give him light job. Accordingly, he was posted as staff car  

Driver at Head Office. This job was given to him virtually showing mercy,  

which did not entail regular hard work. It was thus, argued by the Appellant  

-Corporation that the aforesaid entire service record was gone into by the  

Screening  Committee  as  well  as  the  Review Committee  on  the  basis  of  

which the decision was taken to retire the Respondent prematurely.

9. The learned Single Judge of the High Court, however, did not eschew  

the aforesaid submission of the Appellant  -Corporation giving the reason  

that the various acts of misconduct pointed out by the Petitioner-Corporation  

against  the  Respondent  herein  pertained  to  the  period  between  1978-90,  

whereas the order of compulsory retirement was passed 12 years thereafter  

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i.e.  on 9.4.2002.  In the opinion of  the learned Single Judge,  thee minor  

misconducts  of  the  period  more  than  12  years  before  the  compulsory  

retirement were not sufficient to come to the conclusion that the compulsory  

retirement  of  the  respondent  was  in  public  interest.   The  learned  Single  

Judge also observed that record of immediate past period was not looked  

into  at  all  and on the  basis  of  current  purpose  it  could  not  be  said  that  

respondent had become deadwood or had become inefficient who needed to  

be weeded out. It also  It also remarked that the appellant corporation was  

not  able  to  point  out  any  deficiency  in  the  work  and  conduct  of  the  

Respondent  for  over  10  years  immediately  preceding  his  compulsory  

retirement.  It  was  thus,  unjust,  unreasonable  and  arbitrary  to  retire  the  

respondent prematurely on the basis of old and stale material. For coming to  

this conclusion the learned Single Judge drew sustenance from the judgment  

of this Court in Brij Mohan Singh Chopra v. State of Punjab 1987 (2) SCC  

188.

10. Not satisfied with the aforesaid outcome, the appellant preferred Writ  

Appeal before the Division Bench but without any success as the said Writ  

Appeal  has  been  dismissed  by  the  Division  Bench,  

echoing the reasons given by the ld. Single Judge. While upholding the order  

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of the learned Single Judge, the Division Bench also noted that the recorded  

date  of  birth,  at  the  time  of  entry  of  the  Respondent  into  service,  was  

7.7.1951. Since the normal age of superannuation is 60 years, the respondent  

would have continued in service till the year 2011. Since he was prematurely  

retired and that retirement has been set aside with the direction that he deems  

to be in service, the respondent would have to be treated in service till July,  

2011. However, before the Division Bench, the respondent raised the dispute  

about his date of birth contending that his actual date of birth was 21.1.1957  

which  was  even  recorded  in  some  of  the  official  documents.   He  thus  

pleaded that he had right to continue in service even beyond July 2011 i.e.  

upto the end of January, 2017.  

11. The High Court, however refrained from passing any order on this  

aspect  and observed that it  would be open to the respondent to submit a  

proper  presentation  before  the  concerned  authority  of  the  Appellant  

-Corporation who will examine the records of his date of birth and take a  

decision thereon.  It further directed:

“In  case  his  date  of  birth  is  ultimately  determined  to  be  7/7/1951, all consequential benefits following the interference  with the order of compulsory retirement would be released to  him. In the eventuality of his date of birth being determined to  

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be 21.9.1957, the Corporation would consider his reinstatement  in service.”

12. On the very first day i.e. on 23.8.13, when this petition came up for  

hearing, the respondent appeared person. He showed his willingness to argue  

the matter himself finally at the admission stage itself.  As this  course of  

action was agreeable to the Counsel for the petitioner as well, the parties  

were heard at length.  

13. From the  narration  of  facts  stated  above and specifically  from the  

perusal of the judgment of the learned Single Judge which is upheld by the  

Division Bench on the same reasoning it  is  apparent  clear  that  the main  

reason for setting aside the order of compulsory retirement is that adverse  

entries/ minor mis-conducts of the Respondent related to the period 1978-90  

i.e 12 years prior to premature retirement were taken into consideration and  

there  was  no  material  whatsoever  before  this  Review Committee  in  the  

recent past on the basis of which, the requisite opinion could be framed that  

the premature retirement of the respondent was in public interest.  Again, as  

pointed above, for arriving at this conclusion,  the High Court extensively  

relied upon judgment of this Court in Brij Mohan Singh Chopra (supra).

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14. First and foremost argument of the learned Counsel for the appellant  

was that judgment of this Court in Brij Mohan Singh Chopra (supra) was  

overruled by three member Bench in Baikuntha Nath Das & Anr. v.  Chief   

District Medical Officer, Baripara & Anr.;1992 (2) SCC 299, and it was  

specifically recorded so in subsequent judgment in the case of The State of   

Punjab v.  Gurdas Singh;  1998 (4) SCC 92. This calls for examination of  

this argument in the first instance.  

15. A reading of  Baikuntha Nath judgment would reveal that the main  

issue  in  that  case  was  as  to  whether  the  employer  could  act  upon,  un-

communicated adverse remarks and whether observance of the principles of  

natural justice was necessary before taking a decision to compulsory retire a  

government servant. The court answered both the questions in the negative  

holding that it was permissible for the Government to even look into and  

consider un-communicated adverse remarks.  It was also held that since the  

premature retirement was not stigmatic in nature and such an action was  

based on subjective satisfaction of the Government, there was no room for  

importing facet of natural justice in such a case. In the process of discussion  

and giving reasons for the aforesaid opinion, the Court took note of various  

judgments.  Decision in the case of  Brij Mohan Singh Chopra (supra) was  

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also specifically dealt with. In this case there were no adverse entries in the  

confidential records of the appellant for a period of five years prior to the  

impugned order of premature retirement. Within five years there were two  

adverse entries. However, these adverse remarks were not communicated to  

the employee. The order based on un-communicated adverse entries was set  

aside on two grounds namely:  

i) It was not reasonable and just to consider adverse entries  of remote past and to ignore good entries of recent past.  If the entries for the period of more than 10 years past are  taken into account it would be act of digging out past to  get some material to make an order against the employee.

ii) Since the adverse entries were not even communicated, it  was  unjust  and  unfair  and  contrary  to  principles  of  natural  justice  to  retire  prematurely  a  government  employee on the basis of adverse entries which are either  not  communicated  to  him  or  if  communicated,  representations  made  against  those  entries  are  not  considered and disposed of.  

16. After  taking  note  of  the  aforesaid  grounds  on  which  the  order  of  

compulsory retirement in  Brij Mohan Singh Chopra (supra) was set aside,  

the Court in Baikuntha Nath Das (supra) dealt with the second ground alone  

namely whether principles of natural justice were required to be followed or  

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it was permissible for the Government to take into consideration the adverse  

entries  which were  either  not  communicated  to  him or  if  communicated  

representations made against those entries were still pending.  This second  

proposition  of  Brij  Mohan  Singh  Chopra  was  held  as  not  the  correct  

proposition in law and principles of natural justice could not be brought in  

such a case. The Court had noted that this reasoning was in conflict with the  

earlier judgment in the case Union of India v. Col. J.N. Sinha & Anr. 1970  

(II) LLJ 284 and agreed with the view taken in J.N. Sinha’s Case.

17. It clearly follows from the above that in so far as first ground in Brij   

Mohan Singh Chopra namely consideration of adverse entries of remote past  

was  inappropriate  to  compulsory retire an employee,  was  not  touched or  

discussed. In fact, on the facts of the Baikunth Nath Dass, this proposition  

did not arise for consideration at all.  No doubt, in Gurdas Singh’s Case, it  

has  been  specifically  remarked  that  the  judgment  in  Brij  Mohan  Singh  

Chopra (supra) has been overruled in Baikuntha Nath (supra).  It would be  

relevant  to  point  out  that  even Gurdas  Singh was  a  case  relating  to  un-

communicated adverse entries.   Therefore, Brij Mohan Singh Chopra was  

overruled only on the second proposition.

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18. The fact that the issue as to whether remote past of the employee can  

be taken into consideration or not was not dealt with in Baikuntha Nath Das  

or Gurdas Singh Case was specifically noticed by this Court in the case of  

Badrinath  v.  Government  of  Tamil  Nadu  and  Ors.  2000(8)  SCC  395;  

2000(6) SCALE 618.  That was a case where this question of taking into  

consideration  the  old  records  came up directly  for  discussion.  The court  

discussed the judgment in  Brij Mohan Singh Chopra and pointed out that  

three  judge  Bench  in  Baikuntha  Nath Das overruled  Brij  Mohan  Singh  

Chopra Case only on the second aspect, namely non-communication of the  

adverse reports.   In so far  as first  aspect,  which pertained to considering  

adverse entries of old period, the Court also pointed out that in Para 32 of  

Baikuntha  Nath  Das  Case, various  legal  principles/propositions  were  

summed up and drew attention to principle No.(iv) in that para with which  

we are concerned.  It reads as under:

“So far as the appeals before us are concerned, the High Court  has looked into the relevant record and confidential records has  opined that the order of compulsory retirement was based not  merely  upon  the  said  adverse  remarks  but  other  material  as  well. Secondly, it has also found that the material placed before  them does not justify the conclusion that the said remarks were  not recorded duly or properly. In the circumstances, it cannot be  

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said that the said remarks were not recorded duly or properly.  In  the  circumstances,  it  cannot  be  said  that  the  order  of  compulsory  retirement  suffers  from  mala  fides  or  that  it  is  based on no evidence or that it is arbitrary.”

19. On  that  basis  following  pertinent  observations  were  made  in  

Badrinath case:

“54. We are however concerned with the first point stated in  Brij  Mohan  Singh  Chopra's  case  as  explained  and  accepted in principle (iv) of para 34 of the three Judge  Judgment  in  Baikunth  Nath  Das.  We  have  already  extracted  this  passage  in  principle  (iv)  of  para  34.  It  reaffirms that old adverse remarks are not to be dug out  and that adverse remarks made before an earlier selection  for promotion are to be treated as having lost their 'sting'.  This  view of  the  three Judge Bench,  in  our  view,  has  since been not departed from. We shall, therefore, refer  to the two latter cases which have referred to this case in  Baikunth Nath Das. The second of these two latter cases  has also to be explained.

55. In the first of these latter cases, namely, Union of India  v. V.R. Seth MANU/SC/0286/1994 : (1994)IILLJ411SC  the  point  related  both  to  adverse  remarks  of  a  period  before an earlier promotion but also to uncommunicated  adverse remarks. It was held that the Tribunal was wrong  in  holding in  favour  of  the  officer  on  the  ground that  uncommunicated  adverse  remarks  could  not  be  relied  upon for purposes of compulsory retirement. So far as the  remarks prior to an earlier promotion this Court did not  hold that they could be given as much weight as those in  later years. The Court, in fact, relied upon Baikunth Nath  Das  case  decided  by  three  Judge  Bench  which  had  proposition (iv)  in  para 34 (at  p.  315-316) had clearly  

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In a case relating to compulsory retirement therefore, the  sting in adverse remarks relating to dishonesty prior to an  earlier promotion cannot be said to be absolutely wiped  out.  The fact  also remains that  in  Gurdas Singh's  case  there  were  other  adverse  remarks  also  even  after  the  earlier promotion, regarding dishonesty though they were  not communicated. We do not think that Gurdas Singh is  an  authority  to  say  that  adverse  remarks  before  a  promotion however remote could be given full weight in  all  situations  irrespective  of  whether  they  related  to  dishonesty or otherwise.  As pointed in the three Judge  Bench case in Baikunth Nath Das, which was followed in  Gurdas Singh they can be kept in mind but not given the  normal weight which could have otherwise been given to  them but their strength is substantially weakened unless  of course they related to dishonesty.”

20. If one were to go by the dicta in Badrinath Case, obvious conclusion  

would be that even if there are adverse remarks in the service career of an  

employee  they  would  lose  there  effect,  when  that  employee  is  given  

promotion to the higher post and would not be taken into account when the  

case  of  that  employee  for  compulsory  retirement  is  taken  up  for  

consideration, except only those adverse entries in the confidential reports of  

that  employee  which  touch  upon  his  integrity.  Thus,  Badrinath  case  

interprets principle (iv) in para 32 of Baikunth Dass to mean such adverse  

remarks  for  the  period  prior  to  promotion,  unless  they  are  related  to  

dishonesty, would be substantially weekend after the promotion.

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23. It clearly follows from the above that the clarification given by two  

Bench judgment  in  Badrinath is  not  correct  and the observations  of  this  

Court  in  Gurdas Singh  to  the effect  that  the adverse  entries  prior  to  the  

promotion or crossing of efficiency bar or picking up higher rank are not  

wiped  off  and  can  be  taken  into  account  while  considering  the  overall  

performance of the employee when it comes to the consideration of case of  

that employee for premature retirement.  

24. The principle of law which is clarified and stands crystallized after the  

judgment in  Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10)  

SCC 693 is that after the promotion of an employee the adverse entries prior  

thereto would have no relevance and can be treated as wiped off when the  

case of the government employee is to be considered for further promotion.  

However, this ‘washed off theory’ will have no application when case of  

an employee is being assessed to determine whether he is fit to be retained in  

service or requires to be given compulsory retirement. The rationale given is  

that since such an assessment is based on “entire service record”, there is no  

question of not taking into consideration an earlier old adverse entries or  

record of the old period. We may hasten to add that while such a record can  

be  taken  into  consideration,  at  the  same  time,  the  service  record  of  the  

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immediate past period will have to be given due credence and weightage.  

For example, as against some very old adverse entries where the immediate  

past record shows exemplary performance, ignoring such a record of recent  

past and acting only on the basis of old adverse entries, to retire a person  

will  be a clear example of  arbitrary exercise of  power.  However, if  old  

record pertains to integrity of a person then that may be sufficient to justify  

the order of premature retirement of the government servant.

25. Having taken note of the correct principles which need to be applied,  

we can safely conclude that the order of the High Court based solely on the  

judgment in the case of Brij Mohan Singh Chopra was not correct. The High  

Court could not have set aside the order merely on the ground that service  

record pertaining to the period 1978-90 being old and stale could not be  

taken into consideration at all. As per the law laid down in the aforesaid  

judgments, it is clear that entire service record is relevant for deciding as to  

whether  the  government  servant  needs  to  be  eased  out  prematurely.  Of  

course, at the same time, subsequent record is also relevant, and immediate  

past record, preceding the date on which decision is to be taken would be of  

more  value,  qualitatively.   What  is  to  be  examined  is  the  “overall  

performance”  on  the  basis  of  “entire  service  record”  to  come  to  the  

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conclusion as to whether the concerned employee has become a deadwood  

and it  is  public  interest  to  retire  him compulsorily.   The Authority  must  

consider  and  examine  the  overall  effect  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”, there is no occasion for the Court to  

interfere in the exercise of its limited power of judicial review.”

26. With this we revert to the facts of the present case:

In so far as period of 1978-1990 is concerned, the respondent was  

charge sheeted in 19 cases.  In few cases he was exonerated and in some  

other cases he was given minor penalty like admonition, stoppage of pay,  

annual grade increment for a limited period. The gist of these cases is as  

follows:

S.N o.

Charge  Sheet  

Date Details of Charges Date of Order Details of decision Remarks

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1. 1648 11.8.1978 Negligent Driving 417/7-2-79 Exonerated

2. 798 25.10.79 Recovered  fare  from  15  passengers  without ticket

2783/  27.8.84

Yearly increment  stopped  and  forfeiture  of  salary  for  suspension period

3. 2314 20.11.80 Corruption 3454/  22.10.84.

Stoppage  of  yearly  increment  for one year

4. 1235 27.4.83 Absent from duty 1708/ 7.4.86 Absolved  from  charges  without  intimation

5. 1035 31.3.83 Excess  consumption  

1709/ 3.4.86 Stoppage  of  one/  two increments

6. 1754 13.6.84 Misbehavior  with  conductor  

3453/  22.10.84.

Absolved  from  charge

7. 162 8.1.85 Absent from duty  without  intimation

5123/  4.12.85

Stoppage  of  yearly  increment  for  one  year  without  commutative  effect  and  forfeiture of salar  for  suspension  period appeal No.  3588/  29.8.88  pending

8. 1798 4.4.85 Damage to tyre

9. 2298 29.4.85 Absent from duty  without  intimation

5123/4.12.19 85

Stoppage  of  one  increment  &  forfeiture  of  salary  for  suspension period

10. 3928 26.2.85 Vehicle accident 830/ 5.12.85 Stoppage  of  two  increments  

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without  commutative  effect

11. 3763 1.8.90 Excess  consumption  of  Diesel

68/ 14.2.94 Order  for  recovery  and  or  warning for future  recovered  Rs.  132.60.

12. 3090 30.10.82 Different types of  complaints

13. 4669 30.10.85 Damage to tyre 11830/  5.12.88  

Stoppage  of  two  increments  without  commutative  effect  and  forfeiture  of  salary  for  the  suspension  period.

14. 316 23.1.86 Bad behavior 4953/  12.10.87

1.  Stoppage  of  one  increment.  Forfeiture  of  salary  for  the  suspension  period. 2.  Less  Diesel  average

15. 134 12.1.87 Demanding  money  from  driver

11830/  5.12.88

Stoppage  of  two  increments  without  commulative  effect  under  consideration

16. 4745 1.11.85

17. 3361 13.7.97 Refusal  to  take  vehicle

706/ 10.2.88 Absolved,  released  the  salary  for  the  suspension period

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18. 2041 21.4.87 Negligent  driving  of vehicle

2815/ 9.6.93 Absolved  released  the  salary  for  suspension  period.

19. 3792/ 27.7.87 Less  average  of  Diesel

2686/5.5.89 Recovered  Rs.  72/-

27. The aforesaid record projects the dismal picture. The High Court has  

observed that the respondents have not been able to show anything adverse  

in the career of the respondent after 1990 i.e. in last 12 years preceding the  

order of retirement. These observations are not correct in as much as:

(a) There  was  an  inquiry  against  the  respondent  for  which  he  was  imposed the penalty of stoppage of increment for two years. He  had made a representation against this penalty on 5.11.1998 which  was dismissed on 25.5.1998.

(b)Further another criminal case was also instituted against him in the  year 1999. Though outcome of this criminal case is not mentioned,  fact remains that the accident was caused by the Respondent while  driving the bus of  the appellant  Corporation,  and  the appellant  corporation had to  pay heavy compensation to  the victims as a  result of orders passed by MACT.

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Thus even the service record after 1990 does not depict a rosy picture.  

In any case, there is nothing to show his performance became better during  

this period.

28. It  hardly  needs  to  be  emphasized  that  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.  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.(See:   AIR 1992 SC 1368)

29. Accordingly, we have no option but to set aside the impugned order of  

the High Court thereby upholding order of the compulsory retirement. The  

appeal is allowed with no order as to costs.  

 ..…………………………....J. [K.S. RADHAKRISHNAN]

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...…………………………..J. [A.K. SIKRI]

NEW DELHI SEPTEMBER 16, 2013

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