A.P. Sen, J.
1. This is a petition under Arts. 226 and 227 of the Constitution filed by Shri S.P. Shrivastava, retired Tahsildar, for a writ of certiorarito quash an order of the State Government of Madhya Pradesh dated 6th November 1965, compulsorily retiring him from Government service, on invalid pension.
2. The relevant facts, briefly stated, are as follows. The petitioner was in service of the Government as a Tahsildar. On 13th April 1960, he was involved in a bus accident and suffered a spinal injury. He had to remain on medical leave till 19th October 1961. Before resuming his duties, he was examined by the Divisional Medical Board, Jabalpur, on 13th September 1961 and certified fit to resume his duties in Government service. The Board, while certifying his fitness, however, recommended that he should be exempted from touring duties for a period of 6 months.
While the petitioner was holding the office of Tahsildar, Pawai, the Commissioner, Rewa Division, wrote to the Government on 1st June 1964 asking for his transfer out of his division, as he had practically become a cripple due to paralysis and it was unfair to keep him at the head-quarters where a Tahsildar is required to perform manifold administrative duties and has to undertake intensive tours in the performance of such duties. The Commissioner suggested on humanitarian grounds that the petitioner should be posted as an Additional Tahsildar in the Madhya Bharat region where provision for such post exists and he may in that capacity be entrusted with office duties.
The State Government in the Revenue Department felt that he should be posted as a Sub-Treasury Officer, as the work involved is mostly of a sedentary type and does not involve any touring. That proposal was, however, turned down by the Finance Department which recommended that he should be retired on invalid pension in the public interest. The petitioner accordingly had to appear before the Divisional Medical Board, Rewa on 17th September 1965 which found him to be completely and permanently incapacitated for further service involving touring duties of any kind in the department to which he belongs in consequence of Spastic Paralysis of the left leg, with shortening of the leg and limitation of movement, resulting from the spinal injury. It, however, certified that he was only fit for sedentary type of duties.
3. The petitioner contends that his retirement on account of physical incapacity amounts to removal from service within the meaning of Article 311(2) of the Constitution and inasmuch as he was given no opportunity to show cause against the action proposed to be taken, the order of retirement is constitution-ally invalid. The order of retirement is defended by the State Government on three grounds. First of all, they rely on the doctrine that the service was at the pleasure of the Governor. Secondly, retirement on invalid pension does not amount to punishment and, therefore, Article 311(2) of the Constitution is not attracted. It is urged that when a person joins Government service, he is medically examined under the Service Rules and that no person can be taken in permanent employment except in conformity with F. R. 10. It is, therefore, implied in the service conditions that the Government would keep him in service so long as he is fit to discharge the work for which he is employed and the moment he is found physically unfit to render that service, he could be retired by the Government on invalid pension under Rule 441 of the Civil Service Regulations. Thirdly, the Government have power to retire a Government servant on medical grounds under S. R. 17(b) to F. R. 74. None of these contentions are well founded.
4. Where a person is appointed substantiveiy to a permanent post in Government service, he normally acquires a right to hold that post until, under the rules, he attains the age of superannuation or is compulsorily retired. In the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is found guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for, it operates as a forfeiture of the servant's rights and brings about a premature end of his employment (See, P.L. Dhingra v. Union of India, AIR 1958 SC 36).
As a necessary corollary, the termination of service brought about by the exercise of a contractual right, and the compulsory retirement in terms of a specific rule regarding the conditions of service, are not tantamount to the infliction of the punishment and do not attract Article 311(2). (See Shyamlal v. State of U. P., AIR 1954 SC 369; Jai Ram v. Union of India, AIR 1954 SC 584; Bholanath J. Thaker v. State of Saurashtra, AIR 1954 SC 680; State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892; P. Balakotaiah v. Union of India, AIR 1958 SC 232 and Dalip Singh v. State of Punjab, AIR 1960 SC 1305). It logically follows that in the absence of a service rule, the compulsory retirement of a Government servant on ground of physical incapacity, is apunishment as it visits him with penal consequence in that, it entails in a premature end to his employment (See Motiram v. N. E. Frontier Rly., AIR 1964 SC 600; Gurdev Singh Sidhu v. State of Punjab, AIR 1964 SC 1585 and T. S. Mankad v. State of Gujarat, AIR 1970 SC 143),
In Pandit Umashankar v. State of Madhya Pradesh, Misc. Petn. No. 308 of 1958, D/-20-5-1959 (MP) Shrivastava and Pandey, JJ. held, in like circumstances, that the premature retirement of a Government servant constitutes dismissal or removal from service within the meaning of Article 311(2) of the Constitution and it is, therefore, incumbent on the authorities to give him a reasonable opportunity to show cause against the action proposed to be taken against him. We find no reason to take a different view in this case.
5. Under F. R. 56, the petitioner had a right to hold the post of a Tahsildar till he attained the age of 55 years. At the time of retirement, he was 41 years of age. If for any reason, it was proposed to terminate his service, it was necessary for the State Government to give a reasonable opportunity to show cause against the proposed termination. The retirement of a Government servant on the ground of a physical incapacity undoubtedly attaches a stigma and is, therefore, a punishment. It was accepted on behalf of the State Government that such opportunity was not made available to the petitioner. That being so, the impugned order of compulsory retirement must be struck down as invalid. We find that in Dr. Kanshi Ram v. State of U. P., AIR 1956 All 330 Mehrotra, J. has also taken the same view.
6. No provision was brought to our notice which permits the Government to retire a Government servant on invalid pension. The premature retirement of the petitioner on invalid pension, cannot be supported on the doctrine of pleasure of the Governor embodied in Article 310(1). The opening words of that Article, 'Except as expressly provided by this Constitution' restrict the operation of the rule embodied therein, to the other safeguards that he had under the Constitution. According to the Lordships of the Supreme Court, as stated in Parshottam Lal Dhingra's case, AIR 1958 SC 36 the provisions of Article 311 operate as a proviso to Article 310(1). Rule 441 of the Civil Service Regulations on which reliance is placed, is only an enabling provision permitting payment of invalid pension. It does not confer a power on the Government to retire a person.
S. R. 17(b) to F. R. 74, as interpreted in the Government of Madhya Pradesh, Finance Department memorandum No. 142-R-2346-IV-R-II, dated 22nd January 1964, comes into play under a different contingency. On its plain construction, S. R. 17(b) to F. R. 74, is not a rule which permits the State Government to refer the case of a civil servant to the Medical Board for purposes of invalidation. It is also not a service rule conferring any power on the Government to retire such civil servant on invalid pension. S. R. 17(b) must be read in the context of F. R. 74 which finds place in Chapter X of the Fundamental Rules, dealing with the question of 'Leave'. If S. R. 17(b) was 'intended to be a power to retire a Government servant on invalid pension on account of his physical or mental incapacity, it would have found its proper place under F. R. 56 which deals with superannuation.
The marginal note to S. R. 17(b) supports our construction. It reads as follows:
'Grant of leave to a Government servant who is unlikely to be fit to return to duty.'
Where there is continued absence of a Government servant from duty and he applies for extension of his leave on medical ground, he has to appear before the Medical Board. If the Medical Board certifies under S. R. 17(b) to F. R. 74 that he is permanently unfit to be in Government service due to any physical or mental incapacity, the Government is then empowered, upon such certification, to discharge the civil servant.
7. S. R. 17 (b) to F. R. 74 does not also help the Government. The Certificate of Invalidation is not in terms of S. R. 17(b). It reads as follows:--
Certificate of Invalidation
'Certified that we have carefully examined Shri S.P. Shrivastava s/o Shri Parmanand of Revenue Department as Tahsildar. His age is by his own statement 42 years and by appearance about 42 years.
We consider Shri S.P. Shrivastava to be completely and permanently incapacitated for further service involving touring duties of any kind in the Department of which he belongs in consequence of Spastic Paralysis of the left leg (with shortening) and limitation of movement consequent to spinal injury due to a Bus accident in 1960. His incapacity does not appear to us to have been caused by irregular or intemperate habits. He is only fit for sedentary type of duties.'
On a plain reading of the Certificate, if it obvious that the Divisional Medical Board did not certify that the petitioner was completely and permanently incapacitated for further Government service. On the other hand, the Divisional! Medical Board certified that he was fit enough to perform duties of a sedentary type. If the Government wanted to rely on this certificate, they should have offered the petitioner a suitable pout involving no touring duties.
8. There is obviously a lacuna in the service rules. We think it desirable to draw the attention of the Government to the absence of a rule in the matter. Unless a Government servant applies for premature retirement under Rule 442 of the Civil Service Regulations or applies for extension of his leave on medical grounds, and is invalidated under Rule 17 fb) to F. R. 74, the Government have no corresponding power to refer the case of such Government servant to the Medical Board, when they find that he is completely unfit for retention in their service. The retention of a Government servant who is completely unfit to continue in service on account of any physical or mental incapacity is clearly against the public interest. It is, therefore, desirable that the Government should have the right to refer the case of a Government servant to the Medical Board and, upon a certificate of Invalidation, should have the power to compulsorily retire him on invalid pension. There is utmost necessity to frame a rule on the lines of Rule 15 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, with corresponding amendments of F. R. 56 and Rule 2 (2) of the Madhya Pradesh New Pension Rules, 1951.
9. In the result, the petition succeeds and is allowed with costs. The order of compulsory retirement, dated 6th November 1965, passed by the State Government, retiring the petitioner from Government service on invalid pension, is hereby quashed. Hearing fee Rs. 100/-, if certified.