OFFICE MEMORANDUM
Instructions have been issued from time to time for undertaking periodic review of performance of Government servants with a view to ascertain whether the Government servant should be retained in service or retired from service prematurely, in public interest, as per Fundamental provisions/Rule referred in the subject cited above. In order to bring in better clarity to the existing instructions and enable uniform implementation, an effort has been made to review, consolidate and reiterate the guidelines so far issued on the subject at one place.

2. The objective of Fundamental Rule (FR) 560)1(l)
and Rule 48 of CCS(Pension) Rules, 1972, is to strengthen the administrative
machinery by developing responsible and efficient administration at all levels
and to achieve efficiency, economy and speed in the disposal of Government
functions. It is clarified that premature retirement of Government
servants under these rules is not a penalty. It is distinct from 'Compulsory
Retirement', which is one of prescribed penalties under CCS (CCA) Rules,
1965.
3. Provisions relating to pre-mature retirement in the Fundamental
Rules and CCS (Pension) Rules, 1972
3.1 The Appropriate Authority has the
absolute right to retire a Government servant under FR 56(j), FR 56(l) or Rule
48 (1) (b) of CCS (Pension) Rules, 1972 as the case may be, if it is necessary
to do so in public interest.
3.2 FR 56(j) :- 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, quasipermanent 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 55 years.
3.3 FR 56(l) :- Notwithstanding anything contained in clause (j), the Appropriate Authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire a Government servant in Group C service or post who is not governed by any pension rules, after he has completed thirty years' service by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice.
3.4 Rule 48 (1) (b) of CCS (Pension) Rules, 1972 :- At any time
after a Government servant has completed thirty (30) years' qualifying
service, he may be required by the Appointing Authority to retire in the
public interest and in the case of such retirement, the Government servant
shall be entitled to a retiring pension, provided that the Appointing
Authority may also give a notice in writing to a Government servant at
least three months before the date on which he is required to retire in the
public interest or three months' pay and allowances in lieu of such notice.
4.
Time Schedule to be followed :- The time schedule given in the following
table, shall be followed for undertaking the exercise of review of performance
of Government servants :-
Quarter in which review is to be made | Cases of Government servants, in the quarter indicated below to be reviewed |
---|---|
January to March | July to September of the same year |
April to June | October to December of the same year |
July to September | January to March of the next year |
October to December | April to June of the next year |
5. Maintenance of Register :- A register of the Government servants who are due to attain the age of 50/55 years or to complete 30 years of service, has to be maintained. The register should be scrutinized at the beginning of every quarter by a senior officer in the Ministry / Department / Cadre and the review be undertaken according to the above schedule so as to ensure timely completion of the review for
retention/pre-mature retirement of the Government servants.
6. Government may, at any time
after a Government servant has attained the age of 50/55 years or completed 30 years of service, as the case may be, retire him pre-maturely
in public interest. However, non-adherence to the time-lines as indicated
in para 4 above due to certain administrative exigencies shall not take away
the powers of Appropriate Authority to pre-maturely retire a Government servant
under FR 56(j), 56(l) and Rule 48 of CCS (Pension) Rules, 1972. Therefore, review
of a Government servant for the purposes of these Rules can be undertaken even
after he has attained the age of 50/55 years in cases covered by FR 56 (j)
or after he has completed 30 years of qualifying service under FR 56(l) /
Rule 48 of CCS(Pension) Rules, 1972.
7. There is also no bar on the
Government to review any such case again where it was decided earlier to
retain the officer, but the Appropriate/Appointing Authority is of the
opinion that it is expedient to undertake the review again on account of changed
circumstances, in public interest. In such cases, the Appropriate Authority
is expected to demonstrate visible meticulousness as such Government
servants have been found effective on earlier occasion for retention in
service.
8. Composition of Review and Representation Committee: -
8.1
The concerned Secretary of the Cadre Controlling Authority (CCA) will
constitute Review Committees of two members at appropriate level as under
:-
(i) In case of officers holding Group A posts :-
Review Committee
shall be headed by the Secretary of the concerned CCA. Where there are
Boards viz CBDT, CBEC, Railway Board, Postal Board, Telecom
Commission etc, the Review Committee shall be headed by the Chairman of
such Board.
(ii) In case of Group B (Gazetted) officers :-
Additional
Secretary/Joint Secretary level officer shall head the Review Committee.
(iii)
In the case of Non-Gazetted employees :-
(a) An officer of the level of
Joint Secretary will head the Committee. However, in case the Appointing
Authority is lower in rank than a Joint Secretary, then an officer of the
level of Director/Deputy Secretary will be the head.
(b) In the case
of Non-Gazetted employees in other than centralized cadres, Head of
Department/Head of the Organization shall decide the composition of the
Review Committee.
Chief Vigilance Officer, in case of Gazetted officers,
or his representative in case of non-Gazetted officers, will be
associated in case of record reflecting adversely on the integrity of any
employee.
8.2 The composition of Representation Committee for all
Government servants
shall consist of :-
(a) A Secretary to the
Government of India to be nominated by the Cabinet Secretary;
(b)
Additional Secretary/Joint Secretary in the Cabinet Secretariat; and
(c)
One member nominated by the CCA.
9. Constitution of Internal Committee :-
In addition to the above, Secretary of the CCA is also empowered to
constitute an Internal Committee comprising of such officer(s) as deemed
fit to assist the Review Committee. These Committees will ensure that the
service record of the Government servants being reviewed, along with
a summary, bringing out all relevant information, is submitted to the Cadre
Authorities
at least three months prior to the due date of review.
10. Broad Criteria
to be followed by the Review Committee :- The broad criteria to be
followed by the Review Committee while making the recommendations are as
follows:-
(i) Government servants whose integrity is doubtful, shall be
retired.
(ii) Government servants found to be ineffective shall also be
retired. The basic consideration in identifying such Government servants
should be their fitness/competence to continue in the post held.
(iii)
No Government servant should ordinarily be retired on ground of ineffectiveness,
if, in any event, he would be retiring on superannuation within a period
of one year from the date of consideration of his case. However, in a
case where there is a sudden and steep fall in the competence, efficiency
or effectiveness of a Government servant, it would be open to review such
a case also for premature retirement. The said instruction of not
retiring the Government servant within one year on the ground of ineffectiveness except in case of sudden and steep fall in his performance
is relevant only when he is proposed to be retired on the ground of
ineffectiveness, but not on the ground of doubtful integrity.
(iv) No
Government servant should ordinarily be retired on ground of ineffectiveness,
if, his service during the preceding 5 years or where he has been
promoted to a higher post during that 5 year period, his service in the
highest post, has been found satisfactory. There is no such stipulation,
however, where the Government servant is to be retired on grounds of
doubtful integrity. In case of those Government servants who have been
promoted during the last 5 years, the previous entries in the ACRs may be taken into account if he was promoted on the basis of seniority cum
fitness, and not on the basis of merit.
(v) The entire service record of
a Government servant should be considered at the time of review. The
expression 'service record' refers to all relevant records and therefore,
the review should not be confined to the consideration of the ACR/APAR
dossier. The personal file of the Government servant may contain valuable
material. Similarly, his work and performance could also be
assessed by looking into files dealt with by him or in any papers or
reports prepared and submitted by him. It would be useful if the Ministry
/ Department/Cadre puts together all the data available about the
Government servant and prepares a comprehensive brief for consideration
by the Review Committee. Even uncommunicated remarks in the ACRs/APARs
may be taken into consideration.
11. Important judgements of Supreme
Court
11.1 In the judgement in the case of UOI & Col. J.N.Sinha [1571
SCR (1) 791], the Hon'ble Supreme Court had not only upheld the validity
of FR 56(j), but also held that no show-cause notice needs to be issued
to any Government servant before a notice of retirement is issued to him
under the aforesaid provisions. The Apex Court held that —
"Now
coming to the express words of Fundamental Rule 560), it says that the appropriate
authority has the absolute right to retire a government servant if it is of the
opinion that it is in the public interest to do so. The right conferred on
the appropriate authority is an absolute one. That power can be exercised
subject to the conditions mentioned in the rule.' one of which is that
the concerned authority must be of the opinion that it is in public
interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open
to an aggrieved party to contend that the requisite opinion has not been
formed or the decision is based on collateral grounds or that it is an
arbitrary decision."
11.2 In the case of State of Gujarat vs Umedbhai M.
Patel, 2001 (3) SCC
314, Hon'ble Court held that —
"The law relating
to compulsory retirement has now crystallized into definite principles,
which could be broadly summarized thus:
(I) Whenever the services of a
public servant are no 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 is not 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 the entire
service record of the officer.
(iv) Any adverse entries made in the
confidential record shall be taken note of and be given due weight-age 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 not be passed as a short cut to avoid
Departmental enquiry when such course is more desirable.
(vii) If the
officer was given a promotion despite adverse 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.
12. The
observations of the Supreme Court with regard to Integrity and conduct
unbecoming of a Government servant
12.1 As far as integrity is concerned,
the following observations of the Hon'ble Supreme Court in the case of S
Ramchandra Raju vs State of Orissa {(1 994) 3 SCC 424}, while upholding
compulsory retirement in the case, may be kept in view: "The officer
would live by reputation built around him. In an appropriate case, there
may not be sufficient evidence to take punitive disciplinary action of removal
from service. But his conduct and reputation is such that his continuance
in sen/ice would be a menace to public service and injurious to public
interest. The entire service record or character rolls or confidential reports
maintained would furnish the backdrop material for consideration by the
Government or the Review Committee or the appropriate authority. On consideration
of the totality of the facts and circumstances alone; the Government
should form the opinion that the Government officer needs to be compulsorily
retired from service. Therefore, the entire record more particularly, the
latest, would form the foundation for the opinion and furnish the base to
exercise the power under the relevant rule to compulsorily retire a Government
officer."
12.2 While considering the aspect of integrity of an
employee, all material on record, including the actions or decisions
taken by the employee which do not appear to be above board, complaints
received against him, or suspicious property transactions, for which
there may not be sufficient evidence to initiate departmental proceedings,
may also be taken into account. The judgement of the Apex Court in
the
case of K. Kandaswamy vs Union Of India & Anr, 1996 AIR 277, 1995 SCC
(6) 162 is relevant here. In this case, the apex court upheld the
decision of the Government and held that:-
"The rights -
constitutional or statutory - carry with them corollary duty to maintain
efficiency, integrity and dedication to public sen/ice. Unfortunately, the
latter is being overlooked and neglected and the former unduly gets emphasized. The appropriate Government or the authority would, therefore,
need to consider the totality of the facts and circumstances appropriate
in each case and would form the opinion whether compulsory retirement of
a Government employee would be in the public interest. The opinion must
be based on the material on record; otherwise it would amount to
arbitrary or colourable exercise of power."
12.3 Similarly, reports of
conduct unbecoming of a Government servant may also form basis for compulsory retirement. As per the judgement of the Hon'ble Supreme Court
in State of U.P. and Others vs Vijay Kumar Jam, Appeal (civil) 2083 of
2002:
"If conduct of a government employee becomes unbecoming to the
public interest or obstructs the efficiency in public sen/ices, the
government has an absolute right to compulsorily retire such an employee
in public interest."
13. Approval of Appropriate/Appointing Authority :-
The recommendations of Review Committee will be put up for consideration
and approval of Appropriate/Appointing Authority in those cases, where it
has been recommended to retire the Government servant prematurely.
14.
Representation against Premature Retirement :- After issue of the orders
of premature retirement, the concerned Government servant may put up representation
for orders otherwise, within three weeks from the date of service of such
notice / order and the matter may be placed before Representation Committee along
with fresh input, if any. The examination of the representation should be completed
by the Cadre Authorities within two weeks from the date of receipt of representation.
The Representation Committee considering the representation shall make
its recommendations within two weeks from the date of receipt of the
reference from the Cadre Authorities concerned and the
Appropriate/Appointing Authority should pass its orders within two weeks
from the date of receipt of the recommendations of Representation
Committee.
15. In so far as the provisions which are not covered in this
OM, the provisions in the earlier OMs shall continue to be applicable.
16.
All Ministries/Departments are requested to follow the contents of this OM strictly
and to ensure its wide circulation amongst all concerned.
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COMMENTS