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M.N. Seshadri Setty Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 1829 of 1966
Judge
Reported inAIR1968Kant116; AIR1968Mys116; (1967)1MysLJ354
ActsConstitution of India - Article 226
AppellantM.N. Seshadri Setty
RespondentState of Mysore
Excerpt:
.....the record of service was satisfactory within the meaning of the notification. it is true that during the years 1960, 1961, 1962, 1963 and 1966 the petitioner was able to earn the commendation and strong approbation of the concerned chief engineers. it may be possible for us on a proper review of the materials, in a case like the one before us, to form an opinion, at variance with that reached by government......it should be mentioned that the first of them is that the confidential reports of the concerned chief engineer for the years 1964 and 1965 were adverse to the petitioner. the second is that a disciplinary proceeding in respect of a charge of undue haste in the return of the earnest money deposited by a contractor had been commenced against the petitioner. the third is that the petitioner was not considered fir for promotion to the higher post of a superintending engineer on at least two occasions.(4a) mr. ethirajulu naidu asked us to say that the chief engineer who was responsible for the adverse confidential reports during the years 1964 and 1965 was prejudiced against the petitioner and that he made his confidential report in too much of a hurry without waiting for the expiry of a.....
Judgment:

(1) The Petitioner before us is Mr. Seshadri Setty who contends that, under the Government notification of August 15, 1958, he was entitled to an extension of service which he was refused. He attained the age of superannuation on September 24,1966, according to the age accepted by the Government as correct. But the age so accepted by Government was at variance with the date of birth which was supplied by the petitioner, and, the Government notification upon which there was such disparity. That notification provided that a person in whose case there was such disparity should be granted extension of service equal to half the period of difference between the date of birth as originally indicated in the Government records and the revised date of birth. But the grant of extension was made subject to three conditions, one of which was that the Government servant should be physically fit and should have a satisfactory record of service. It is not stated that the other conditions were not fulfilled in the petitioner's case, and the only ground on which refusal of extension is justified is that he did not have a satisfactory record of service.

(2) This writ petition was presented to us before the petitioner attained the age of 55 years according to the revised date of birth. By an order of stay made by this court the petitioner is continuing in his post as an Executive Engineer in the State Electricity Board. If we accede to the argument that the refusal of extension was unjustified, the petitioner would be entitled to continue in service for a period of about another twenty months, although the period of extension could not exceed one year at a time.

(3) On behalf of Government whoa re the authorities who could grant the extension, it is asserted in the counter-affidavit of which a Deputy Secretary is the deponent, that there were at least three grounds which induced the conviction in the mind of the Government that the petitioner did not have a satisfactory record of service. It is not disputed that the benefit of the notification could be claimed only if the petitioner had a satisfactory record of service, and so, it is contended before us by Mr. Ethirajulu Naidu that the view taken by the Government that there was no satisfactory record of service in the case of the petitioner is unsupportable.

(4) Now reverting to the grounds stated in the counter-affidavit on which Government founded their view that there was no satisfactory record of service, it should be mentioned that the first of them is that the confidential reports of the concerned Chief Engineer for the years 1964 and 1965 were adverse to the petitioner. The second is that a disciplinary proceeding in respect of a charge of undue haste in the return of the earnest money deposited by a contractor had been commenced against the petitioner. The third is that the petitioner was not considered fir for promotion to the higher post of a Superintending Engineer on at least two occasions.

(4A) Mr. Ethirajulu Naidu asked us to say that the Chief Engineer who was responsible for the adverse confidential reports during the years 1964 and 1965 was prejudiced against the petitioner and that he made his confidential report in too much of a hurry without waiting for the expiry of a period of three months after the expiry of which alone a confidential report should be made after the petitioner entered his zone. It was maintained for the petitioner that the confidential report of the year 1964 was made and prepared about a month and a half after the petitioner entered into that Chief Engineer's zone. It was also pointed out to us that during the years 1960, 1961, 1962, 1963 and 1966 the petitioner has earned encomiums from the Chief Engineers under whom he was serving during these years. It was also pointed out to us that although in one part of the counter-affidavit there is an allusion to another disciplinary proceeding which was commenced against the petitioner in respect of the execution of a certain item of work that disciplinary proceeding ended in an exoneration by Government on August 24, 1965. It was maintained that the commencement of another disciplinary proceeding which began after such exoneration did not bring into being any unsatisfactory record of service since no one could say how that disciplinary proceeding would end and whether it would end in an exoneration or in the imposition of a punishment.

(5) In support of the argument that the Chief Engineer who prepared the confidential reports relating to the years 1964 and 1965 was hostile to the petitioner and was prejudiced against him, the argument maintained was three-fold. The first, as already mentioned, was the premature preparation of the confidential report for the year 1964. The second was a recommendation made by that Chief Engineer for the compulsory retirement of the petitioner on the ground that he had applied for an extension of leave when he was already on leave. The third was that, although the petitioner applied for extension under the notification of August 15, 1956, that application for extension was not forwarded by the Chief Engineer as he was bound to do, but was retained with him.

(6) We do not find it possible to deduce any animosity on the part of the Chief Engineer for any one of the reasons pressed on us. In the counter-affidavit produced on behalf of the State it is stated that the recommendation for compulsory retirement was not accepted by Government on humanitarian ground, and, the fact that the confidential report of the year 1964 was prepared before the expiry of three months does not eclipse the fact that the confidential report of the year 1965 was properly made. The fact that the representation for an extension was not transmitted to Government does not necessarily establish any antagonism.

(7) In a case like the one before us it is for Government which is the authority for granting extension, to form an opinion on the question whether the record of service was satisfactory within the meaning of the notification. If Government reached the conclusion that the record was not satisfactory, without there being any material whatsoever justifying that conclusion, it may be open to the petitioner to contend that the opinion could not form the foundation of a refusal of extension. It is true that during the years 1960, 1961, 1962, 1963 and 1966 the petitioner was able to earn the commendation and strong approbation of the concerned Chief Engineers. But it cannot be overlooked that during the years 1964 and 1965 the concerned Chief Engineer was of the opinion that some features of the petitioner's approach to his work generated the feeling that he was a 'disgruntled' person.

(8) So what transpires is that, although in the year 1966 the concerned Chief Engineer expressed appreciation of the petitioner's work as an Executive Engineer and eulogized him, and that was also what was stated during the earlier years, during the intermediate period covering two years a record was made of certain features, which though not very serious by themselves, were considered by Government to constitute sufficient foundation for the impression that the petitioner's record of service was not satisfactory.

(9) It is not for us in the exercise of our jurisdiction under Art. 226 of the Constitution, to assess the worth of the petitioner and to investigate whether it is possible on the material before us to substitute for the view to the contrary. It may be possible for us on a proper review of the materials, in a case like the one before us, to form an opinion, at variance with that reached by Government. But that would not enable the displacement of the conclusion reached by Government and the substitution of our own. The assessment of the Government Servants' record of service is confided to the authority empowered to grant the extension and of its character, that authority is the sole Judge. The adverse opinion formed by Government in the case of the petitioner rested on the confidential reports of the years 1964 and 1965 and neither their sufficiency nor the reasonableness of the exclusion of the commendation during the earlier and later years is open to discussion by us.

(10) So it should follow that it is not possible for us to accede to the argument advanced for the petitioner that there was no material on the basis of which the view taken by the Government could have been formed.

(11) But it was said that the conclusion that the petitioner's record of service was not satisfactory was reached without affording to the petitioner on opportunity to establish the contrary. We do not think that any such opportunity could be claimed. The question whether the record of service is satisfactory is one on which Government have the power to form their opinion on the materials before them. The Government notification on the basis of which extension is claimed contains nothing either express or by necessary implication, which could persuade the view that the refusal of an extension must be preceded by an opportunity to establish the right to an extension or to establish the existence of the conditions on the fulfillment of which alone an extension could be granted.

(12) It was however said that the refusal of the extension amounted to removal within the meaning of Art.311 of the Constitution, and that such removal was not possible unless it was preceded by an opportunity to show cause against such removal. It is plain that the refusal of an extension cannot be equip rated with a removal. Extension amounts to retention in service and the right to such retention must be acquired under the notification of August 15, 1956 on the formation of the opinion by the appropriate authority that the conditions on the existence of which alone an extension could be granted exist. The right to continue in service after the age of superannuation under the Government notification comes into being only on the extension being granted and until then there is no acqui..... of any such right. A Government servant who is made to retire on his attaining the age of superannuation computed in accordance with the revised date of birth ceases to be a Government servant and retires. He continues in service only if the continuance is ordered, and, if no such continuance is permitted there can be no removal.

(13) We are therefore of the opinion that we can do nothing for the petitioner and that this writ petition should be dismissed. We make an order accordingly.

There will be no order as to costs.

(14) Petition dismissed


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