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G.B. Nesrikar and ors. Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 1578, 2417 and 2418 of 1970
Judge
Reported inAIR1972Kant71; AIR1972Mys71; (1971)2MysLJ509
ActsLiberalised Pension of Central Government Rules - Rule 2(2); Constitution of India - Article 14; Mysore Civil Services Rules - Rule 285
AppellantG.B. Nesrikar and ors.
RespondentThe Union of India (Uoi) and ors.
Appellant AdvocateG.D. Shirgurkar and ;B. Gopalaiah, Advs.
Respondent AdvocateM. Ramachandra Rao, Sr. Central Government Pleader
DispositionPetition dismissed
Excerpt:
.....tax act, the same cannot be treated as an admission since the assessing officer was required to look into the revised return filed by the assessee and scrutinize the same and thereafter to pass an order on merits in accordance with law-question of law answered against the revenue. - 5. to test the argument, one may look into similar rules, both of the central government as well as of the government of the state of mysore dealing with the power to retire a government servant before reaching the normal age of superannuation. 7. in the absence of any reference to public interest being the guiding factor, it is conceivable that perfectly fit and very competent and efficient officials may be retired to grave detriment to public service. 9. we are clearly of the opinion therefore that the..........writing to the appropriate authority, at least three months before the date on which he wishes to retire. government may also require an officer to retire any time after he has completed 30 years' qualifying service, provided that the appropriate authority shall give, in this behalf, a notice in writing to the officer, at least three months before the date on which he is required to retire, or three months' pay and allowances in lieu of such notice.'4. the main argument in support of the case of invalidity of the power given to the government to retire a government servant on three months' notice is that the power is conferred in such wide terms without any conditions for its exercise and without indicating any guide-line for selecting or choosing the cases in which it could be properly.....
Judgment:

A. Narayana Pai, C.J.

1. The petitioners in these three cases were Asstt. or Deputy Post Masters which are Class III posts under the Posts and Telegraphs Department. They have been asked to retire from service in exercise of the power under Sub-rule (2) of Rule 2 of the Liberalised Pension Rules applicable to the Central Government servants. At the time the notices of retirement were served upon them, they had completed 30 years of service in the department but were below the age of 55.

2. Various contentions have been raised to make out a case of infirmity or invalidity in the retirement notices impugned in these writ petitions and various answers have been suggested on behalf of the Department by their counsel Mr. Ramachandra Rao. After a discussion of all the said contentions, it appears to us that the matter may be disposed of on only one ground, viz., whether the rule under which section to retire the petitioners has been taken is or is not invalid as being violative of Article 14 of the Constitution.

3. Sub-rule (2) of Rule 2 under which notices have been issued, reads as follows:--

'2 (2). An officer may retire from service any time after completing 30 years' qualifying service provided that he shall give, in this behalf, a notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire. Government may also require an officer to retire any time after he has completed 30 years' qualifying service, provided that the appropriate authority shall give, in this behalf, a notice in writing to the officer, at least three months before the date on which he is required to retire, or three months' pay and allowances in lieu of such notice.'

4. The main argument in support of the case of invalidity of the power given to the Government to retire a Government servant on three months' notice is that the power is conferred in such wide terms without any conditions for its exercise and without indicating any guide-line for selecting or choosing the cases in which it could be properly exercised, the power itself must be regarded as arbitrary and therefore violative of Article 14 of the Constitution.

5. To test the argument, one may look into similar rules, both of the Central Government as well as of the Government of the State of Mysore dealing with the power to retire a Government servant before reaching the normal age of superannuation. The Central Government rule is Rule 56 (i) of the Fundamental Rules. The said Rule, after the amendment of 1969, provides that notwithstanding anything contained in the rest of the rule dealing with age of superannuation, the appropriate authority shall, if it is of the opinion that it is in 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 allowance in lieu of such notice; the further conditions prescribed in the said rule are the attainment of age of 50 years in the case of Class I and Class II posts to which for the purpose of direct recruitment the age is below 35 years, and the age of 55 years in other cases.

Note 1 to Rule 285 of the Mysore Civil Services Rules also contains similar restrictions regarding age and the necessity of the Government forming an opinion that public interest requires that the person concerned would be retired from service.

6. Rule 2 (2) of the Liberalised Pension Rules, however, does not contain any such restrictions which might ensure the exercise of the power in a manner not likely to bring about discrimination violative of Article 14 of the Constitution. It, no doubt, specifies that 30 years of service must have been completed. But, that is the only rule of selection provided by the Rule. For the rest, there is no guidance whatever. There is nothing to show how and on what principle one out of the two or more persons who had completed 30 years of service can properly or validly be selected for retirement.

7. In the absence of any reference to public interest being the guiding factor, it is conceivable that perfectly fit and very competent and efficient officials may be retired to grave detriment to public service.

8. Apart from such possibility, the necessity for indicating public interest as the real guiding factor for compulsory retirement of this nature is regarded by the law as quite essential in all rules dealing with compulsory retirement. Even in clause (1) of Fundamental Rule 56 empowering retirement of Class III persons by notice after completing 30 years of service when they are not governed by any pension rules, it is expressly stated that action could be taken thereunder only if it is the opinion of the appropriate authority that it is in public interest to do so.

9. We are clearly of the opinion therefore that the absence of any reference to public interest in Rule 2 (2) of the Liberalised Pension Rules lays it open to the attack that it is devoid of any guidance to the Government Officer who is empowered to exercise the power conferred thereunder.

10. We declare that so much of Sub-rule (2) of Rule 2 of Liberalised, Pension Rules as empowers the Government to retire a Government servant upon a notice is unconstitutional and void as being violative of Article 14 of the Constitution.

11. The notices of retirement impugned in these writ petitions are therefore quashed.


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