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Mir Khurshid Ali Mir Ashraf Ali Vs. Inspector-general of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 190 of 1958
Judge
Reported inAIR1960MP117
ActsPension Rules - Rule 2(2) - Sections 1; Constitution of India - Article 311
AppellantMir Khurshid Ali Mir Ashraf Ali
Respondentinspector-general of Police and ors.
Appellant AdvocateA. Razak, Adv.
Respondent AdvocateM. Adhikari, Adv. General for Respondent No. 3
DispositionPetition dismissed
Cases ReferredShyam Lal v. State of Uttar Pradesh
Excerpt:
- .....writing to the appropriate authority, at least three months before the date on which he wishes to retire. government may also require a government servant to retire at any time after he has completed 30 years qualifying superior service provided that the appropriate authority shall give in this behalf, a notice in writing to the government servant, at least three months before the date on which he is required to retire.'it was contended that the notice contemplated by this sub-rule is to be issued before an order of compulsory retirement is passed and since in this case no such notice was served upon the petitioner, she order effecting his compulsory retirement was invalid. the notice contemplated by the sub-rule in question is only to give to the government servant concerned the.....
Judgment:

Bhutt, C.J.

1. By this petition under Article 226 of the Constitution of India the petitioner Khurshed Ali, a Sub-Inspector of Police, impugns the order of the Inspector-General of Police, Madhya Pradesh, compulsorily retiring him from service after completion of 30 years' qualifying -service.

2. The petitioner entered the police service on 26-11-1926 and was confirmed as Sub-Inspector of Police in. 1957, In May 1957 while he was posted in the interior of Raigarh district he made an application for his transfer. However, his request was not granted and he was served with an order of the Inspector-General of Police, Madhya Pradesh, dated 20-1-1958, compulsorily retiring him from service with effect from .1-6-1958 under Sub-rule (2) of Rule 2 of the new Pension Rules.

3. Sub-rule (2) of Rule 2 of Section I of the new Pension Rules is as below:

'A Government servant may retire from service at any time after completing 30 years' qualifying superior 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 a Government servant to retire at any time after he has completed 30 years qualifying superior service provided that the appropriate authority shall give in this behalf, a notice in writing to the Government servant, at least three months before the date on which he is required to retire.'

It was contended that the notice contemplated by this sub-rule is to be issued before an order of compulsory retirement is passed and since in this case no such notice was served upon the petitioner, She order effecting his compulsory retirement was Invalid. The notice contemplated by the sub-rule in question is only to give to the government servant concerned the specified time before he is made to retire. That is not a kind of notice which is required to be served upon him under Article 311 of the Constitution of India. This contention, therefore, has no force.

4. It was further contended that since in this case the ground on which the petitioner was compulsorily retired from service was inefficiency, the order of compulsory retirement really amounted to his removal from service within the meaning of Article 311(2) of the Constitution of India. The question whether an action amounts to a punishment or not was considered by their Lordships of the Supreme Court in State of Bombay v. Saubhagchand M. Doshi, (S) AIR 1957 SC 892.

The criterion is that where the action entails forfeiture of the earned benefits, it is one of punishment, but where, as in the case of compulsory retirement after 30 years' of qualifying service, a civil servant earns proportionate pension, the action cannot be one of punishment. An action of compulsory retirement, where it is taken before a civil servant completes the requisite number of years of qualifying service to entitle him to proportionate pension, may, if taken on the ground of inefficiency, amount to punishment; but that point does not arise here because the petitioner had earned proportionate pension before he was compulsorily made to retire from service. The case, therefore, falls within the dictum of Shyam Lal v. State of Uttar Pradesh, 1955-1 SCR 26: AIR 1954 SC 369, and Doshi's Case, (S) AIR 1957 SC 892 (supra).

5. The petition is accordingly dismissed. Costs, however, shall be borne as incurred. The outstanding amount of the security deposit shall be returned to the petitioner.


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