The review of civil servants under Fundamental Rule 56(j), which allows the government to retire employees prematurely, has been undertaken by the government in a mission mode. In reply to a parliamentary question in the Lok Sabha on 9 August 2023, the central government submitted that it had invoked the provisions of FR 56(j) against 122 officers in the last three years.
A PIB release stated that 96 Group ‘A’ officers were prematurely retired on grounds of lack of integrity and ineffectiveness between July 2014 and October 2019. FR 56(j) has been like the proverbial sword of Damocles—the flatterer in the court of Dionysius—and was rarely invoked before 2014, despite existing since 1972.
FR 56(j), when invoked, can send government officers on premature retirement in ‘public interest’ any time after they reach the age of 50. Some would argue that this goes against the principle of ‘reasonable expectations’ for an officer to retire at the defined retirement age and infringes on the individual’s right to ‘audi alteram partem’ (hear the other side).
Civil servants are appointed at the ‘pleasure’ of the appointing authority and can be retired prematurely after the age of 50 under the same ‘doctrine of pleasure’. This rule is invoked by the government to weed out ‘dead wood’—those considered inefficient or possessing questionable integrity, as well as those with not-so-proper service records in the opinion of the review committee. Mere subjective satisfaction is sufficient to justify this course of action.
Absolute right
Aggrieved officers often challenge FR 56(j) in courts and tribunals seeking relief and justice. Their challenges typically cite having received ‘Outstanding’ ratings in their Annual Performance Assessment Reports, possessing unquestionable integrity, recent promotions, and the lack of an opportunity to defend their cases in the absence of any formal inquiry.
Government office memorandums clarify that Rule 56(j) provides the competent authority the absolute right to review the performance and service record of officers aged 50 years or older. It further states that the retention of such officers may be deemed not to be in the public interest. As such, there is no inherent right for government officers to continue in service after turning 50. Unlike departmental disciplinary proceedings, which ensure that officers have adequate opportunities to defend their cases during an inquiry, no such provisions exist for civil servants facing premature retirement under FR 56(j).
Clause (j) of Fundamental Rule 56 categorically mentions that the appropriate authority, if it is of the opinion that it is in the public interest, has the absolute right to retire any government servant by giving them three months’ notice. For group ‘A’ services or posts, this rule is applies once an officer has attained the age of 50.
The provision has been explained in several office memorandums (OMs) issued by the Department of Personnel and Training (DoPT). According to one such OM dated August 2020, the purpose of invoking this rule 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.”
This is significantly different from the elaborate disciplinary proceedings, which entail reasonable opportunities prescribed by law for the officer to defend their case. Although not punitive and lacking civil consequences, premature retirement is, in some ways, at par with compulsory retirement arising out of a detailed disciplinary process. Incidentally, premature retirement under Fundamental Rule 56(j) is often referred to as compulsory retirement in various orders and judgments.
To this extent, it is also argued that FR 56(j) contravenes Article 311(2) of the Constitution, which prescribes that “no such person shall be dismissed or removed or reduced in rank except after an enquiry.” The possibility of ‘inter statutum regulam’ has been deliberated by the Supreme Court in a few judgments. Officers aggrieved by such premature retirements, which are neither punitive nor entail civil consequences, continue to approach courts and tribunals seeking relief.
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Judicial precedents
The Supreme Court has adjudicated several cases related to these challenges, addressing almost all aspects of this rule, including its relationship to Article 311(2) of the Constitution. It has been almost uniformly held that the competent authority has the absolute right to prematurely retire an officer under Rule 56(j) in the public interest. Key Supreme Court judgments often cited as precedents include Union of India vs Col. JN Sinha, S Ramachandra Raju vs State of Orissa, K Kandaswamy vs UOI, State of UP vs Vijay Kumar Jain, Nisha Priya Bhatia vs UOI, Ram Murti Yadav vs State of Uttar Pradesh, and Union of India vs ME Reddy. With these precedents covering almost all nuanced challenges, most cases filed by aggrieved officers are decided based on the principles established in these rulings by tribunals and high courts. The Supreme Court has categorically supported FR 56(j), leaving hardly any room for courts and tribunals to differentiate based on the facts.
It is in this background that the Supreme Court judgment in Civil Appeal No. 661 of 2022 (Capt. Pramod Kumar Bajaj vs UOI), decided on 3 March 2023, sets a new milestone. This judgment questions the hitherto held notion of absolute right. Relying on several past Supreme Court judgments, the Supreme Court observed that when the officer was assessed as outstanding, his integrity recorded as beyond doubt, and promotions were granted, it is not clear why the respondent invoked the 56(j) clause. The court concluded that, in such cases, it is inclined to pierce the smoke screen, stating that the order of compulsory retirement cannot be sustained. Consequently, the Supreme Court quashed the high court order, setting aside the compulsory retirement.
Judicial precedents have their own protocol and hierarchy that lower courts must follow—from single bench to constitutional benches, and from tribunals to the Supreme court. The recent judgment in Capt. Pramod Kumar Bajaj vs UOI has now become the latest precedent in this area. The challenge it poses to the hitherto held absolute authority will remain an important subject for future considerations by tribunals and courts. It will require a careful exercise of the ‘fine art of distinguishing’, as it were, by Their Lordships.
Mohammad Jamshed is a former member of the Central Administrative Tribunal. Views are personal.
(Edited by Aamaan Alam Khan)