Is an order of compulsory retirement vitiated by malice in law sustainable?

Paragraph 41Our understanding of the law is this. The proposition that an order of compulsory retirement in public interest is non-punitive does not elevate itself into a mantra which, by its mere invocation, can validate such order and repel all challenges laid to it. Exercise of power, which is non-punitive, nevertheless remains bound by the precincts of a public power. The object of compulsory retirement is to enable the administration to dispense with the services of public servants who, when viewed in the prism of public interest, have been rendered dead wood and, thus, outlived their utility. Either the public servant who is ordered compulsory retirement has, by passage of time, become inefficient to perform the duties and functions entrusted to him or his integrity is doubtful – these are the prime criteria triggering the need for such an order. However, a promotion earned on merits, and not by dint of seniority alone, immediately prior to such order of compulsory retirement being made would, by itself, render the order susceptible to invalidity. This is for the reason that the merit-based promotion, not long ago, would stand as proof of a recent and objective assessment of the entire service record and a finding that the servant is fit for shouldering higher responsibilities, which is irreconcilable with the finding and thus negates the very foundation of the order, namely, that the servant has become dead wood, or is of doubtful integrity, and has outlived his utility. Any order of compulsory retirement partaking the character of a backdoor disciplinary proceeding, clandestinely avoiding the safeguards embodied in Article 311 of the Constitution, would be indefensible.

Paragraph 49The order retiring the appellant compulsorily taking the aid of FR 56(j) suffers from a manifest contradiction and is not sustainable, being thoroughly vitiated by malice in law. We may again refer to the decision in Baikuntha Nath Das (supra) wherein this Court held that while judicial review is generally impermissible against the orders of compulsory retirement, nevertheless, where the order evinces manifest arbitrariness, perversity or mala fides, judicial review would not be foreclosed. We deem it fit to observe that this is a fit case, in which, the order smacks of arbitrariness, perversity and mala fides, warranting the case for judicial interference in full force.