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Dalal (P.K.) Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1960)IILLJ467AP
AppellantDalal (P.K.)
RespondentState of Andhra Pradesh
Excerpt:
.....it further follows that the infringement of this safeguard like that of warranty would entitle the party complaining against it to such advantages as he would have otherwise enjoyed, but would not vitiate the main order. the failure to give the required notice in the instant case would not be fatal to the order of retirement. . the test, therefore, is whether a right to continue in the poet except for misconduct, negligence, inefficiency or other good sufficient cause is claimed. . in the present case, it is clear that the petitioner has no right to continue in the post (sic) except for misconduct, negligence, inefficiency or other good sufficient cause......reasons for retirement. this article is substantially similar to rule 293 of the hyderabad civil service rules in matters relevant to this case. in seshavataram v. state 1959 ii l.l.j. 277 the right and power of the government to compulsorily retire a civil servant under rule 293 of the hyderabad civil service rules have been considered and affirmed. in view of this fact, the learned advocate for the petitioner does not press his contention that article 305 is void and inoperative.it has been farther held in the above decision as follows : a public servant, according to rule 293 of the hyderabad civil service rules, after completing the required number of years (25 or 30 years as the case may be-in the case of p.k. dalai 25 years' service) ceases to have a right of being continued in.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. The petitioner is P.K. Dalai. The respondent is the State of Andhra Pradesh represented by its Chief Secretary, Hyderabad. The petitioner feels aggrieved with the following order of the Government of Hyderabad in be far as it relates to him :

F. No. C/4/345/52. Dated 18 August 1953.No. (122).

Notification

Government have sanctioned the retirement of the following officers under Article 305 of the Hyderabad Civil Service Regulations. They will hand over charge of their offices on 1 September 1953 and proceed on leave to which they are entitled:

* * *(3) Sri P.K. Dalai, officiating Collector (present posting), Chief Marketing Officer, Hyderabad.

The following facts are alleged and admitted. They are beyond doubt or dispute.

2. The petitioner was appointed as a tahsildar in the Hyderabad State Service in January 1928. He rose up in service and served the Government in various higher posts. Finally, he was working as Chief Marketing Officer, Hyderabad, on the date on which the Government passed the order extracted above. In accordance with the order, he handed over charge on 23 September 1953 and went on leave. His retirement came into effect as and from 23 March 1955 on which date the total leave to which he was entitled was exhausted.

3. In the affidavit filed in support of the petition, the petitioner has urged various grounds. We are referring below to those grounds which were actually relied upon, referred to and urged before us. We are also making references, in the proper context, to the relevant allegations made in the counter-affidavit on behalf of the respondent :

(1) That Article 305 of the Hyderabad Civil Service Regulations cannot apply to the petitioner and that the article would be void as offending Article 14 of the Constitution of India.

These grounds are mentioned in Sub-paras, (a) to (c) in Para. 4 of the petitioner's affidavit. These are replied to in Paras. 7, 8 and 9 of the respondent's counter-affidavit. On behalf of the petitioner, the fact that the petitioner opted for the old Pension Rules as averred in the counter-affidavit and that therefore Article 305 applied to petitioner is not denied. We find that Article 305 applies to the petitioner.

Article 305 of the Hyderabad Civil Service Regulations runs as follows :

An officer cannot be given a retiring pension against his will unless the Government in the Finance Department so approves. In ordering retirement on completion of 25 years of service, Government will not be bound to give reasons for retirement. This article is substantially similar to Rule 293 of the Hyderabad Civil Service Rules in matters relevant to this case. In Seshavataram v. State 1959 II L.L.J. 277 the right and power of the Government to compulsorily retire a civil servant under Rule 293 of the Hyderabad Civil Service Rules have been considered and affirmed. In view of this fact, the learned advocate for the petitioner does not press his contention that Article 305 is void and inoperative.

It has been farther held in the above decision as follows :

a public servant, according to Rule 293 of the Hyderabad Civil Service Rules, after completing the required number of years (25 or 30 years as the case may be-in the case of P.K. Dalai 25 years' service) ceases to have a right of being continued in service..

A compulsory retirement where a public servant has no right to continue in office is not a punishment.

The learned advocate for the petitioner fairly concedes that in view of the aforesaid decision, the ground raised by him is not tenable.

(2) That the requirement in Article 305 regarding the approval of the Government in Finance Department has not been complied with and that, therefore, the order of the Government is illegal.

This contention is found in Sub-para, (d) of Para 4. of the petitioner's affidavit. The reply to this la found in Para. 10 of the counter-affidavit which is as follows:

10. .The approval of the Government in Finance Department is not a condition precedent to such a retirement. The approval of the Government in the Finance Department has been made necessary only because such retirements involve financial implications. Any breach of the said rule cannot be treated as constituting a broach of conditions of service the rule is in the Interests of the State and not that of the officer concerned. I further submit that the decision to retire the officer was moreover taken by the appointment and administrative subcommittee of the Cabinet consisting of the Chief Minister, Home Minister and Finance Minister. Separate approval of the Finance Department was also duly obtained.

The fact that separate approval of the Finance Department was also duly obtained (as alleged in the counter-affidavit) has not been challenged or denied. In these circumstances this contention of the petitioner becomes untenable. Even otherwise the ground raised is untenable for other reasons as seen below.

The fact of the Finance Minister being present at the meeting of the Council of Ministers is also not challenged or denied. He is the head of the Finance Department. Farther it is clear that the rule web framed in the Interests of the State and not of the officer concerned. In Seshavataram v. State 1959 II L.L.J. 277 a requirement of three months' notice provided under another rule in connexion with action under Rule 293 was considered and its breach was held not to vitiate the main order even though that provision was in the interests of both the parties (the Government as well as the officer). In that judgment, it was observed as follows:.The note to Rule 293 contains no such qualification (as giving three months' notice) on the Government's rights to retire. Indeed the note emphasizes the right to be an absolute one, which can be exercised without giving reasons. The right to retire having thus become absolute, any farther curtailment by some other rule (Section 1-Pension) would be meaningless. Any further requirement (three months' notice) would then be merely procedural or in the nature of a collateral safeguard. It follows that the requirement of giving three months' notice in the Pension Rules is a collateral provision in the Interest of both the parties, whose observance does not control the exercise of the right. It further follows that the infringement of this safeguard like that of warranty would entitle the party complaining against it to such advantages as he would have otherwise enjoyed, but would not vitiate the main order. The note to Rule 293 having vested the Government with an absolute right, any requirement of notice does not operate as a condition on its exercise, for that would clash with the absolute investiture. The failure to give the required notice in the instant case would not be fatal to the order of retirement.

Consequently, even if there were real omission to obtain the concurrence of the Government In Finance Department, it would not vitiate the present order.

(3) That the actual exercise of the power is discriminatory and offends Article 14 of the Constitution as in practice the Government continued in service some of the officers who would have completed 50 years of age and 25 years of service and compulsorily retired them including the petitioner.

This allegation is contained in Sub-para, (e) of Para. 4 of the petitioner's affidavit. The reply to this allegation la found in Para. 11 of the counter-affidavit wherein it is mentioned, among other things, as follows:.The officers, who have been retained after completion of 25 years of service, have been continued in service on special grounds..

In Seshavataram v. State 1959 II L.L.J. 277 it has been observed by a Bench of this Court as follows:.A compulsory retirement where a public servant has no right to continue in office is not a punishment.. The test, therefore, is whether a right to continue in the poet except for misconduct, negligence, inefficiency or other good sufficient cause is claimed..

In the present case, it is clear that the petitioner has no right to continue in the post (sic) except for misconduct, negligence, inefficiency or other good sufficient cause. Consequently, the compulsory retirement of the petitioner is not a punishment. In Parshottam Lal Dhingra v. Union of India 1958 I L.L.J. 544 it was observed as follows at p. 561:.Likewise the termination of service by compulsory retirement in terms of a specific rule regulating; the conditions of service is not tantamount to the infliction of a punishment and does not attract Article 311(2)..

5. The petitioner had no right whatever to continue in the post and he toad no right to challenge the right, power and competence of the Government to keep in its employment any other person for any other reasons. It has not been seriously urged before us by the learned advocate for the petitioner that the Government had no right to continue other persons in service or that such continuance was not on special grounds as alleged by the respondent in his counter-affidavit or that there was any contravention of Article 14 of the Constitution. The averment in the counter-affidavit that other persons were continued in service on special grounds has not been challenged before us.

6. All the contentions urged on behalf of the petitioner are untenable. So, this writ petition fails and is dismissed with costs. Advocate's fee Rs. 100.


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