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K.R. Joshi Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 61 of 1957
Judge
Reported inAIR1958Bom90; (1958)60BOMLR56; ILR1958Bom247; (1958)IILLJ384Bom
ActsCivil Services Regulations - Schedule - Articles 465-A and 466-A; Constitution of India - Articles 226, 309, 311 and 311(2); Madhya Pradesh New Pension Rules, 1951 - Rule 2(2)
AppellantK.R. Joshi
RespondentState of Bombay
Appellant AdvocateB.R. Mandlekar, Adv.
Respondent AdvocateN.L. Abhyankar, Addl. Spl. Govt. Pleader
Excerpt:
.....rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - 3. it is contended on behalf of the petitioner that from the order of the madhya pradesh government, dated 4th october 1956, it does not appear that the petitioner was being retired in the public interest and that therefore the order is bad. even assuming that the order of the madhya pradesh government was not the operative order and that a further order was required to be passed, we do not think that the mere making of these remarks would..........joshi, officiating deputy superintendent of police, by the police department o the former madhya pradesh government, the government of bombay is pleased to retire shri k. b. joshi from government service on the expiry of the period of three months stipulated in that notice, i.e., with effect from the 8th january 1957, after office hours, for the reason that his conduct while in service was not up to the standard expected of an officer of his rank thus making it necessary, in the public interest, to retire him from government service .....'as a result of these two orders, the petitioner stands retired from the service.2. it is common ground that the petitioner completed 30 years of service prior to the service of the notice on him. by virtue of note 1 below article 466-a of the civil.....
Judgment:

Mudholkar, J.

1. The petitioner who was an officiating Deputy Superintendent of Police and an Assistant Commandant, Special Armed Force, Battalion Kamptee, was served by the former Government of Madhya Pradesh with a notice terminating his services three months after the date of receipt of the notice. That notice is dated 4th October 1956, and is said to have been served on the petitioner on 9th October 1956. The notice is in the following terms:

'Whereas you have completed 30 years qualifying service for pension under Government.

And whereas the State Government have decided to retire you from service by giving you three months in pursuance of the provisions contained in Rule 2(2) of the Madhya Pradesh New Pension Rules, 1951.

Now, therefore, please take notice that you shall be retired after a period of three months from the date of receipt of this notice by you.'

On 7th January 1957, the following order was made by the Government of Bombay:

'In pursuance of the notice No. 6420-5420-IV, dated the 4th October 1956, served on Shri K. B. Joshi, Officiating Deputy Superintendent of Police, by the Police Department o the former Madhya Pradesh Government, the Government of Bombay is pleased to retire Shri K. B. Joshi from Government service on the expiry of the period of three months stipulated in that notice, i.e., with effect from the 8th January 1957, after office hours, for the reason that his conduct while in service was not up to the standard expected of an officer of his rank thus making it necessary, in the public interest, to retire him from Government service .....'

As a result of these two orders, the petitioner stands retired from the service.

2. It is common ground that the petitioner completed 30 years of service prior to the service of the notice on him. By virtue of Note 1 below Article 466-A of the Civil Service Regulation's Government has an absolute right to retire any officer after he has completed twenty-five years' qualifying service without giving any reasons. The Note also states that this right will not be exercised except when it is in the public interest to dispense with the further services of an officer. The petitioner having completed 30 years' service it was open to the Government to terminate his services on the ground that it was no longer in the public interest to retain him in service. Whether It is in the public interest or not to retain a Government servant in service is for the Government to decide and its opinion on the point cannot be challenged before a Court of law.

3. It is contended on behalf of the petitioner that from the order of the Madhya Pradesh Government, dated 4th October 1956, it does not appear that the petitioner was being retired in the public interest and that therefore the order is bad. But that contention cannot be accepted. The actual provision under which the order retiring the petitioner was passed by the Madhya Pradesh Government was Rule 2(2) of the Pension Rules framed by the Madhya Pradesh Government under Article 309 of the Constitution, Under this rule, a Government is empowered to retire a Government servant from service at any time after completing 30 years' qualifying superior service after giving him a notice in writing at least three months before he is required to retire-Under this rule it is not necessary for the Government to come to the conclusion that it is necessary in the public interest to order the retirement of a Government servant where such Government servant has completed 30 years' service. In our opinion, after a notice under this rule is given nothing further need be done and at the end of the period stated in the notice, the Government servant on whom the notice was served will stand compulsorily retired from service.

4. However, as a result of the reorganisation of States, the petitioner having been allotted to the State of Bombay, the Government of Bombay thought that a further order was necessary and therefore the order dated 7th January 1957 was passed. In that order the Government of Bombay stated that the petitioner was being made to retire compulsorily because his conduct while in service was not up to the standard expected of an officer of his rank. Now, it is said that the remarks are a stigma on the petitioner and that therefore this is not a case of compulsory retirement pure and simple but of removal from service and the provisions of Clause (2) of Article 311 of the Constitution are attracted.

5. In the first place, as has been stated, the operative order was that which was passed by the Madhya Pradesh Government. Even assuming that the order of the Madhya Pradesh Government was not the operative order and that a further order was required to be passed, we do not think that the mere making of these remarks would convert what is quite clearly a compulsory retirement into a removal or dismissal from service. As has been pointed out by their Lordships of the Supreme Court in Shyam Lal v. The State of Uttar Pradesh and the Union of India, : (1954)IILLJ139SC , the only difference between 'removal' and 'dismissal' is that whereas the former does not preclude a Government servant from being appointed to another Government post, the latter does preclude him from being so appointed. Both are, thus, in the nature of punishment. Therefore, where the services of a person are terminated the question is whether they were so terminated by way of punishment or otherwise. If they were terminated by way of punishment, the termination would amount to a removal or dismissal; but if they were not so terminated, then the termination would not amount to a removal or dismissal and the action taken would not attract the provisions of Clause (2) of Article 311 of the Constitution.

6. As has also been pointed out by their Lordships of the Supreme Court in Shyam Lal's case (A) (cit. sup.):

'There can be no doubt that removal -- I am using the term synonymously with dismissal -- generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement -- are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services..........In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity ........ It follows, therefore, that one of the principal tests for determining whether a termination of service amounts to dismissal or removal is absent in the case of compulsory retirement.' (Pp. 41 and 42 (of SCR): (at pp. 374 and 375 of AIR)).

7. In the instant case, the termination of the services of the petitioner is founded on the fact that he had completed thirty years of service and that it was no longer in the public interest to retain him further in service. The mere mention of the ground upon which the conclusion that it is not in the public interest to retain the petitioner in service does not of itself convert a compulsory retirement into a removal or dismissal from service. Apparently, the Government of Bombay made the order, act under Rule 2(2) of the M. P. Pension Rules but under Note 1 below the Civil Service Regulation 465-A. It had therefore to satisfy itself whether it was in the public interest to order the compulsory retirement of the petitioner. On account of the reason mentioned in the order it was satisfied that the petitioner should be made to retire. Since the satisfaction had to be merely subjective, it was not necessary for the Government to specify the ground on which the satisfaction was founded. The specification of the ground was thus redundant and cannot control, in any way, the legal effect of the order.

8. In the circumstances, therefore, we do not think that even in the order of the Bombay Government there is anything that would attract the provisions of Clause (2) of Article 311 of the Constitution.

9. In this view, we dismiss the petition. We make no order as to costs.

10. Petition dismissed.


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