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All India Services (Death-cum-Retirement Benefits) Rules, 1958 – Rule 16(3) — Guidelines for intensive review of records

No. 25013/02J2005-AIS II Government of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) Ne

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No. 25013/02J2005-AIS II
Government of India
Ministry of Personnel, Public
Grievances & Pensions
(Department of Personnel &
Training)
New
Delhi, the 28th June, 2012
To
Chief
Secretaries to the
Government
of All States/Union Territories
Subject:
All India Services (Death-cum-Retirement Benefits) Rules, 1958 – Rule 16(3) —
Guidelines for intensive review of records.
Sir,
Rule 16(3) of the All India Services (Death-cum-Retirement
Benefits) Rules, 1958 has been amended on 31.01.2012 which provides as follows:
“The Central Government may, in
consultation with the State Government concerned, require a Member of the
Service to retire from Service in public interest, after giving such Member at
least three month’s previous notice in writing or three month’s pay and
allowances in lieu of such notice, –

(i)      after the review when such Member completes
15 years of qualifying Service; or

(ii)     after the review when such Member completes
25 years of qualifying Service or

attains
the age of 50 years, as the case may be; or
(iii)    if the review referred to in (i) or (ii)
above has not been conducted, after the review at any other time as the Central
Government deems fit in respect of such Member.
Explanation: – For the purposes of sub-rule (3),
“review” means the review of the entire service record of the Member
of the Service regarding suitability or otherwise of such Member for further
retention in the Service, to be conducted regularly of each Member of such
Service, firstly, after his completion of 15 years of qualifying Service, and
secondly, after his completion of 25 years of qualifying Service or on his
attaining the age of 50 years, as the case may be, or if the review referred to
in clauses (i) or (ii) of this sub-rule has not been conducted in respect of
such Member, such review may be conducted at any other time as the Central
Government deems fit.”
2.
      The rule, commonly referred to as
the rule of premature retirement, is based on sound policy and in order to
subserve public interest. Explaining the objects of the rule, the Supreme Court
observed in the case of Union of India Vs. M.E. Reddy and another (AIR 1980 SCC
563) as follows :
(i)      “The object of the Rule is to weed out
the deadwood in order to maintain a high standard of efficiency and initiative
in the State Services. It is not necessary that a good officer may continue to
be efficient for all times to come. It may be that there may be some officers
who may possess a better initiative and higher standard of efficiency and if
given chance the work of the Government might show marked improvement. In such
a case compulsory retirement of an officer who fulfils the conditions of Rule
16(3) is undoubtedly in public interest and is not passed by way of
punishment.”
(ii)     “Compulsory retirement contemplated by
the aforesaid rule is designed to infuse the administration with initiative
………… so as to meet the expending needs of the nation, which require exploration
of “fields and pastures new”. Such a retirement involves no stain or
stigma nor does it entail any penalty or civil consequences. In fact, the rule
merely seeks to strike a just balance between the termination of the completed
career of a tired employee and maintenance of top efficiency in the diverse
activities of administration.”

3.
      The Supreme Court has observed in
the case of State of Gujarat Vs. Umedbhai M. Patel (Civil Appeal No.1561 of
2001, 3 SCC:320 as follows:
(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 weightage 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.
4.
      These same principles relating to
retirement in public interest apply to the revised Rule 16(3) of the AIS (DCRB)
Rules, 1958.
5.
      Members of the All-India Services
are appraised periodically before they are allowed to move to the next higher
level. Such appraisal takes place when a member is appointed to the Selection
Grade or Super Time Scale. An appraisal also takes place when a member is
appointed to higher management posts at the level of Additional Secretary or
Secretary to the Government of India (or equivalent levels in the State
Government). It is essential that such appraisals should be rigorous and any
fall in standards should be noticed immediately.
6.       A member of
the All-India Service who has completed 15 years of qualifying service or has
completed 25 years of qualifying service or attained the age of 50 years will,
invariably, be found to occupy a senior administrative post. It would not be
acceptable to find that such a member has become a mere passenger in the senior
level in which he/she is placed. One must always guard against the operation of
the `Peter Principle’*.
7.
      Nevertheless, it is sometimes found
that a few members of the All-India Services do tend to become mere passengers
in the post or at the level in which a member is placed for the time being.
They become either stale or listless; they do not exhibit any creativity or
innovativeness; and they do not achieve results. In some other cases,
information may be available which casts grave doubt upon the integrity of a
member. The form of the Annual Confidential Report/Performance Appraisal Report
is designed in order to bring out, as far as possible, these tendencies or
traits, which would alert Government to take suitable action under the rules.
8.
      It is seen that in some cases the
overall grade or assessment given on the performance of a member of an
All-India Service is “average”. To describe a member of an All-India
Service as average is not complimentary. While it may not be an adverse remark,
it is nevertheless a reflection upon his work or conduct and should be taken to
indicate output, which is ordinary and routine. Remarks like
“Adequate” and “Satisfactory” over a period of 5-7 years,
without mention of any notable achievement, would also indicate that the member
has reached a plateau. Similarly, it is found that in some cases, a member of
an All-India Service receives a lukewarm or equivocal certificate of integrity.
Such an entry would indicate that there is some doubt in the mind of the Reporting/Reviewing
authority about the integrity of the member. In all such cases, it would be
quite appropriate for the Government to examine the matter thoroughly in order
to decide whether action under Rule 16(3) of A1S (DCRB) Rules, 1958 would be
warranted.
9.
      The procedure for review under Rule
16(3) has been laid down in this Department’s letter No. 25013/12/86-AIS-11
dated 31.7.1987. These stand further modified and enclosed herewith consequent
to the revised rule 16(3) in the light of introduction of intensive review at
two stages.
10.
    The State Governments are required to
carry out a review in respect of:-
(i)      All
officers who have completed 15 years of qualifying service;
(ii)     All officers who have completed 25 years of qualifying service or
attained the age of 50 years, whichever is earlier, subject to the following
conditions;
a)       An
officer should have completed minimum 15 years of qualifying service;
b)      In
the case of the State Service Officers appointed to an All India Service by
promotion or by selection, they should have completed a minimum of 5 years of
actual service in the respective All India Service.
11.
    Additionally, there may be officers
who may have completed 16 years or more of qualifying service but their review
was not carried out as the rule has been amended recently. Therefore, a review
is required to be carried out by the State Governments in respect of the
officers who have completed qualifying service of 16-23 years and the
recommendations of the respective State Governments may be sent to the Central
Government for further necessary action within six months of the issuance of
this letter.
12.
    It is clarified that in the above
rule, the officers who will be retired prematurely shall be entitled for
pensionary benefits in terms of the relevant provisions of All India Services
(DCRB) Rules, 1958.
*commonly
known as ’employee tends to rise to the level of incompetence’.
Sd/-
(Dr.
S.K.Sarkar)
Additional
Secretary to the Government of India
******
ANNEXURE TO DEPARTMENT OF PERSONNEL
& TRAINING LETTER No.25013/02/2005-AIS-11 DATED
28.06.
2012.
The
General Principles and procedure contained in the letter cited above as well as
those mentioned below shall inform and guide the exercise of powers under Rule
16(3) of AIS (DCRB) Rules, 1958.
I.       MATTERS TO BE KEPT IN MIND WHILE
CONSIDERING ENTIRE SERVICE RECORD OF THE OFFICER
1.1
    Review of records of officers for
retirement in public interest under Rule 16(3) of AIS (DCRB) Rules, 1958 may be
done, keeping in mind two broad objectives; firstly, to weed out officers of
doubtful integrity and secondly, to weed out officers who have outlived their
utility and have become inefficient or ineffective.
1.2
    In every review, the entire service
records should be considered. The expression ‘service record’ will take in all
relevant records and hence the review should not be confined to the
consideration of the ACR / PAR dossier. The personal file of the officer may
contain valuable material. Similarly, the work and performance of the officer
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
puts together all the data available about the officers and prepares a
comprehensive brief for consideration by the Review Committee. There are a
number of judicial pronouncements in support of the view that the total record
of the officers should be looked into. In R.L. Butail Vs U01 and Another 1970
(2) SCC 876, the Supreme Court observed:
“It may
well be that in spite of the work of the appellant being satisfactory, as he
claimed it was, there may have been other relevant factors such as the history
of the appellant’s entire service and confidential reports throughout the
period of the service, upon which the appropriate authority may still decide to
order appellant’s retirement under FR 56(J).”
1.3
    This has also been reiterated in the
judgement of Supreme Court in the case of State of Gujarat Vs. Umedbhai M.
Patel (Civil Appeal No.1561 of 2001, (2001) 3 SCC:320) that:
“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.”
It has
further stated that:- “Any adverse entries made in the confidential record
shall be taken note of and be given due weightage in passing such order.
Even
un-communicated entries in the confidential record can also be taken into
consideration.
If the
officer was given a promotion despite adverse entries made in the confidential
record, that is a fact in favour of the officer.”
1.4
    In the revised Performance Appraisal
Report system, there is disclosure of the entire report and representation on the
same with the mechanism of Referral Boards. Further, there may be an overlap in
the system of ACRs and PARs and, therefore, the two may have to be examined
simultaneously by the Review Committee.
1.5
    In a number of cases, officers take
action for concluding contracts, settling claims, assessing taxes or duties
payable etc. Doubts may have arisen relating to the bona fide nature of the
action taken by the officer but on account of inadequate proof it may not have
been possible to initiate action for a regular departmental inquiry, leading
finally to a punishment of the nature that may find entry in the ACR/PAR
dossier of the officer. But the personal file of the officer may have details
of the nature of doubt that arose regarding the integrity of the officer and
the result of the preliminary investigation that was carried out and this would
constitute vital information.
II.      MATTERS TO BE KEPT IN MIND WHILE REVIEWING
THE INTEGRITY OF THE OFFICER
2.1
    The data available in the various
files connected with matters referred to above should be compiled and a
comprehensive brief should be placed before the Review Committee for
consideration.
2.2
There are a number of judicial pronouncements in support of the instructions
above that a total assessment of the performance of the member of the Service
can be made. There have also been observations that have approved any measure
by which the assessment by superiors, with an opportunity to watch the work and
conduct of an officer, is taken into account while deciding about premature
retirement. In Union of India Vs M.E. Reddy and another (AIR 1980:SC: 563) the
Supreme Court observed:-
“It
will indeed be difficult, if not impossible, to prove by positive evidence that
a particular officer is dishonest, but those who have had the opportunity to
watch the performance of the said officer in close quarters are in a position
to know the nature and character not only of his performance but also of the
reputation that he enjoys.”
2.3
    Entries in the ACR/PAR dossier
relating to integrity should be taken into account by the Review Committee.
Even if a particular remark in integrity has not been communicated to the
officer, or if the remark is of a general nature, the review committee could
take into account the remarks while reviewing any proposal for premature
retirement. The Supreme Court, in the case of Union of India vs. M.E. Reddy
observed:
“……….under
the various rules on the subject, it is not every adverse entry or remark that
has to be communicated to the officer concerned. The superior officer may make
certain remarks while assessing the work and conduct of the subordinate officer
based on his personal supervision or contact. Some of these remarks may be
purely innocuous or may be connected with general reputation of honesty or
integrity that a particular officer enjoys.”
2.4
In the case of R.L. Butail Vs UOI and another — 1970 (2) SCC 876, it has been
observed as follows:
“The
contention, therefore, that the adverse remarks did not contain specific
instances and were, therefore, contrary to the rules cannot be sustained.
Equally unsustainable is the corollary that because of that omission, the
appellant could not make an adequate representation and that therefore, the
confidential reports are vitiated.”
III.     THE MATTERS TO
BE KEPT IN MIND WHERE DISCIPLINARY INQUIRIES ARE ON GOING
3.1
In a case where on an alleged misconduct a departmental inquiry has been
conducted and the stage has been reached for a decision by the competent
authority on the punishment to be imposed, it would not be appropriate to
issue, instead, an order of premature retirement. However, there may be cases
where there is independent material to justify the premature retirement of an
officer either on the grounds of inefficiency or lack of integrity; the Review
Committees may in such cases formulate its recommendations. Further where no
departmental inquiry has been initiated and the specific allegation of
misconduct involving lack of integrity is only one fact on the service record
of the officer, which has to be considered in toto, an order under Rule 16(3)
can quite appropriately be passed if the same is otherwise justified. Each case
has to be considered and decided on its own merits. In the case of State of
Uttar Pradesh Vs Chandra Mohan Nigam and Others (AIS 1977 SC: 2411) it was
observed:-
“We
should hasten to add that when integrity of an officer is in question that will
be an exceptional circumstance for which orders may be passed in respect of
such a person under rule 16(3), at any time, if other conditions of that rules
are fulfilled, apart from the choice of disciplinary action which will also be
open to Government.”
3.2
    In the case of State of Gujarat Vs.
Umedbhai M. Patel (Civil Appeal No.1561 of 2001, (2001) 3 SCC:320), the Supreme
Court has observed that:
(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 weightage 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.
3.3
The term used in the judgment is ‘Compulsory retirement’, which in this context
should be construed as ‘premature retirement in public interest’. The judgment
further states that the order of compulsory retirement may not be passed for
extraneous reasons and that the enquiry should be completed within a reasonable
time and action based on allegations which have not been proved, avoided. These
principles may be kept in mind in cases of retirement in public interest where
disciplinary proceedings are pending.
IV.     MATTERS TO BE KEPT IN MIND WHILE EVALUATING
THE EFFICIENCY AND EFFECTIVENESS OF AN OFFICER
4.1
    There need be no hesitation to take
action under Rule 16(3) where such action is eminently justified. The Supreme
Court has observed that the provisions contribute towards maintenance of the
highest efficiency in administration, obviously desirable in the public
interest.
4.2
    Judicial pronouncements are clear to
the effect that premature retirement is not a punishment, that it does not
involve a stain or stigma and that it is in the public interest. The higher the
level reached by a Government servant, the higher will be the responsibilities
entrusted to him and hence higher will be the expectations of Government that
these responsibilities are discharged with exemplary competence, efficiency and
effectiveness. It is with a view to assessing whether such expectations are
being fulfilled that a procedure for reviewing the performance of Government
Servants at two levels, firstly, when they have rendered 15 years of qualifying
service and again when they have completed 25 years of qualifying service or
attained the age of 50 years, has been laid down for the retirement of those
Government Servants who do not fulfill this expectation. It is not sufficient
if a Government Servant, having reached the present level, performs only in a
mediocre way.
4.3
    While the entire service record of an
officer should be considered at the time of review, greater emphasis will be
placed on his performance during the 5 years preceding the review. If an
officer had been promoted to a higher post during the said period of 5 years,
the service in the higher post shall receive greater emphasis. If, during the
aforesaid period of 5 years, there is evidence of deterioration in efficiency
and unsatisfactory performance, the Review Committee shall examine the entire
service record and arrive at a total picture about the suitability or otherwise
of the officer for further retention in Service.
4.4
    No officer should ordinarily be
retired from service on the ground of ineffectiveness if he would be retiring
on superannuation within a period of one year from the date of consideration of
his case. This does not, however, apply in a case where the integrity of the
officer is in doubt or where there is a sudden and steep fall in the
competence, efficiency or effectiveness of the officer.
4.5
    In a case in which the physical or
mental condition of an officer is such as to make him inefficient, it would be
appropriate to consider him for retirement in public interest.
V.      PROCEDURE
FOR REVIEW
5.1
    The State Government shall set up
committees for reviewing the records of
member
of the Service borne on their cadres. The composition of the Review
Committees
shall be as under: –
For IAS:
Chief
Secretary
:Chairman
One
officer in the apex scale in the cadre/Joint cadre concerned.
:Member
One
officer in the apex scale from outside the cadre/joint cadre and who has not
declared such cadre/joint cadre as his Home State.
:Member
One
officer in the grade of Principal Secretary in the cadre/Joint cadre
concerned representing SC/ST community.
:Member
Principal
Secretary / Secretary, Department of Personnel in the cadre/Joint cadre.
:Member Secretary
For IPS:
Chief
Secretary
:Chairman
DG
Police (Head of the Police Force) in the cadre/Joint cadre concerned.
:Member
One
DG Police level officer from outside the cadre/joint cadre and who has not declared
such cadre/joint cadre concerned as his Home State.
:Member
One
officer in the grade of Principal Secretary in the cadre/Joint cadre
concerned representing SC/ST community.
:Member
Principal
Secretary / Secretary, Department of Home in the cadre/Joint cadre.
:Member Secretary
For IFS:
Chief
Secretary
:Chairman
PCCF
(Head of the Forest Force) in the cadre/Joint cadre concerned.
:Member
One
PCCF level officer from outside the cadre/joint cadre
and
who has not declared such cadre/joint cadre as his Home State.
:Member
One
officer in the grade of Principal Secretary in the cadre/Joint cadre
concerned representing SC/ST community.
:Member
Principal
Secretary / Secretary, Department of Forests in the cadre/Joint cadre.
:Member Secretary
NOTE: – For the nomination of member in the Committee from outside
the cadre, the Chief Secretary of the State Government for which the Review
Committee is proposed to be set up shall write in advance to the Chief Secretary
of other cadre(s) for nomination of an officer of the appropriate grade/rank to
function as a Member of the Committee. If any State faces any difficulty in
this regard, the mater should be referred forthwith to the Central Government.
5.2
    The review shall be carried out in
respect of:-
(i)      All officers who have completed 15 years of
qualifying service;
(ii)
    All officers who have completed 25
years of qualifying service or attained the age of 50 years, whichever is
earlier, subject to the following conditions;
a)      An officer should have completed minimum 15
years of qualifying service;
b)      In the case of the State Service Officers
appointed to an All India Service by promotion or by selection, they should
have completed a minimum of 5 years of actual service in the respective All
India Service.
5.3
    The records of the members of the
Service who are on deputation to the Centre or to any other Government or on
foreign service/assignment are also required to be reviewed by the Review
Committee and its recommendations placed before the State Government.
5.4
The recommendation of the State Government along with attested copies of
proceedings of the Review Committee shall be forwarded to the Department of
Personnel & Training in the case of the Indian Administrative Service, the
Ministry of Home Affairs in the case of the Indian Police Service and the
Ministry of Environment, Forests and Wild Life in the case of the Indian Forest
Service.
5.5
Where any reference to the deputation of an officer or to disciplinary
proceedings is made by the Review Committee or the State Government, necessary
details should be furnished to the Central Government.
5.6
Where the State Government have come to the conclusion as a result of the
review that a member of the All-India Service should be retired from service in
the public interest they should make a proposal accordingly to the Central
Government giving full reasons in justification of the proposal. Similarly,
where the Central Government are of the opinion that an officer should be
retired from service in the public interest, the Central Government shall seek
the views of the State Government concerned.
5.7
The Central Government shall observe the following procedure for processing the
recommendations made by the State Government:-
(i)      where the State Government have recommended
the retention of an officer in service but the cadre controlling authority
comes to the conclusion that the officer should be retired from service in the
public interest, the case shall be placed before the Appointments Committee of
the Cabinet for orders.
(ii)     where the State Government have recommended
the retirement of an officer in the public interest, the case shall be placed
before the Appointments Committee of the Cabinet (whether or not the cadre
controlling authority agrees with the recommendation of the State Government or
comes to the conclusion that the officer should be retained in service).
EXPLANATION: The cadre controlling authority means, (a) for the Indian
Administrative Service — Ministry of Personnel, P.G. & Pensions (b) for the
Indian Police Service — Ministry of Home Affairs and (c) for the Indian Forest
Service — the Ministry of Environment and Forests.
5.8     Time Table for Review:- The review should be carried out within six months of the
date on which an officer completes 15 years of qualifying service or 25 years
of qualifying service or attains the 50 years of age (as the case may be) so
that a decision could be taken by the Central Government regarding the
suitability, or otherwise, of the officer concerned for further retention in
service. However, preparation for the review should begin in advance so that
the entire exercise can be completed as per the time schedule.
5.9
    In the case of the State Service
Officers appointed to an All India Service by promotion or by Selection, the
review may be undertaken after they complete at least 5 years’ service after
their appointment to the All India Service. If such an officer completes 15
years of qualifying service or 25 years of qualifying service or attains 50
years of age, as the case may be, after he has already put in 5 years of
service after his promotion/selection, the review will be undertaken in the
normal course. In other cases, ordinarily the review shall be undertaken after
he has put in 5 years of actual service after appointment to the All India
Service.
5.10
  In order to ensure that the review is
undertaken regularly, it is desirable that the State Government should maintain
service-wise registers of the members of the IAS/IPS/IFS borne on their cadre
who are due to complete 15/25 years of qualifying service or attain the age of
50 years as the case may be. These registers should be scrutinized periodically
and the review undertaken according to the following Schedule and a half-yearly
return should be sent to the Central Government.
Half
year period during which review is to be made.
Cases
of officers who complete 15/25 years of qualifying service or attain the age
of 50 years in the half-year period indicated below to be reviewed.
January
to June
July
to December of the previous year.
July
to December
January
to July of the same year.
5.11
  In case a member of the Service refuses
to accept the service of notice of retirement or order of retirement, along
with the cheque/cash equivalent of 3 months’ pay and allowances it should be
ensured that the refusal of the member of the Service is witnessed by two
Gazetted officers. The notice of retirement shall be effective from the
forenoon of the date following the date of refusal of the notice by the member
of the Service. A copy of the notice/order of retirement may also be sent to
the officer under Registered post Acknowledgement due at the last officially
known address.
5.12
  Delayed
Review:-
Where the review in accordance with the time schedule indicated
above has not been completed for any reason whatsoever, on a member of the
Service attaining 50 years of age, such review may be undertaken at any time
thereafter.
5.13
  In case the review has not been
conducted in case of a Member of Service after completion of 15 years of
qualifying service or 25 years of qualifying service or on attaining 50 years
of age, as the case may be, such a Member of Service can be retired after a
review at any other time as the Central Government deems fit. For such cases,
the State Government(s) can make a reference to the Central Government with
full facts and justifications for conducting such a review. The State Government
shall carry out such a review after obtaining the concurrence of the Central
Government and send its recommendations to the Central Government. 

Source: www.persmin.nic.in
[http://documents.doptcirculars.nic.in/D2/D02ser/25013_02_2005-AIS-II-28062012.pdf]

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