Skip to content


Dr. S.N. Ghosal Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jurisdiction Case No. 350 of 1967
Judge
Reported inAIR1969Ori45; 34(1968)CLT1392; (1970)ILLJ327Ori
ActsConstitution of India - Article 311(2)
AppellantDr. S.N. Ghosal
RespondentState of Orissa
Appellant AdvocateR.N. Misra, Adv.
Respondent AdvocateN. Kr. Das, Standing Counsel
DispositionPetition allowed
Cases ReferredMoti Ram Deka v. General Manager
Excerpt:
.....before him that the said government servant was unsuitable or inefficient to be retained in government service, and should have at least directed their attention to a consideration of this matter in the light of the criterion laid down in the above resolution as mentioned above. in other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must, per se, amount to his removal, and so, if by rule 148(3) or rule 149(3) such a termination is brought about, the rule clearly contravenes article 311(2) and must be held to be invalid. if a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard..........under the order of the governor of orissa, directing and requiring the petitioner to retire from government service with effect from the date of expiry of three months from the date of the service of the said notice,2. the petitioner's allegation in this writ petition is that while he was continuing in government service, the age of compulsory retirement was raised from 55 to 58 by a resolution of the government of orissa in the political and services department dated may 21, 1963, which was circulated to all the departments of the government and to all concerned by their communication dated may 21, 1933 as per annexure 1 to this petition. in accordance with the said resolution, the government took up the examination of the case of the petitioner, who was born on july 1, 1910, along.....
Judgment:

Acharya, J.

1. This is an application under Article 226 of the Constitution of India by Dr. S. N. Ghosal, who was the Medical Superintendent, T.B. Hospital, Puri at the time when he filed this petition, challenging the validity of Notice No. 14182/H. dated July 20, 1967 (copy at annexure 4) issued by the Secretary to the Government of Orissa in the Health Department, purporting to act under the order of the Governor of Orissa, directing and requiring the petitioner to retire from Government service with effect from the date of expiry of three months from the date of the service of the said notice,

2. The petitioner's allegation in this writ petition is that while he was continuing in Government Service, the age of compulsory retirement was raised from 55 to 58 by a resolution of the Government of Orissa in the Political and Services Department dated May 21, 1963, which was circulated to all the departments of the Government and to all concerned by their communication dated May 21, 1933 as per Annexure 1 to this petition. In accordance with the said resolution, the Government took up the examination of the case of the petitioner, who was born on July 1, 1910, along with some others in the Medical Service, and after a 'careful examination' of the matter, decided that the petitioner would continue in service till he completes the age of 58 years as per Government letter No. 10913-H, dated June, 3, 1965 from the Under Secretary to the Government of Orissa, Health Department to the Director of Health Service, Orissa which decision was communicated to the petitioner by the Health Director, Orissa by his Memo No. 14914(15)M/E-165-65 dated June, 25, 1965 (copy at Annexure 3).

On the receipt of the aforesaid communication, the petitioner got the assurance that he would be allowed to continue in Government service, but after two years, he was served with the aforesaid notice dated July 20, 1967 (Annexure 4) which was received by the petitioner on July 29, 1967. On receipt of this notice, the petitioner made a representation to the Government on August 1, 1967 stating his grievances and praying for withdrawal of the impugned order, but as he did not receive any reply even after a reminder, he filed this writ petition in this Court, praying for the issue of a writ of Mandamus directing the opposite party not to give effect to the notice dated July 20. 1967 (Annexure 4), and for a further direction to continue the petitioner in service until July 1, 1968.

3. Mr. R. N. Misra, learned counsel for the petitioner contended before us that the Government of Orissa, having taken a decision, after 'careful consideration', to continue the petitioner's service till he completes the age of 58 years without imposing therein any condition whatsoever, cannot, after communicating the said decision to the petitioner, revoke such a decision to his prejudice. The Government orders as per letter No. 10913-H. dated June 3, 1965 communicated to the petitioner by Memo No. 14914(15)M/ E-165-65 dated June 25, 1965 extended the service of the petitioner, along with some others, till they completed the age of 58 years, without attaching any condition whatsoever. This decision was taken in accordance with the Government Resolution dated May 21, 1963, (Annexure 1), paragraph 2 of which runs as follows:

'After careful consideration Government have now decided that the age of compulsory retirement for the State Government employees should be raised from 55 years to 58 years, with effect from the 1st December, 1962. In other words, Government employees who attained or attain the age of 55 on or after the 1st December, 1962, will be entitled to the above benefit.'

On this, Mr. Misra, contends that the Government by the aforesaid resolution raised the age of compulsory retirement for the State Government employees from 55 to 58 years, and also decided in one and the same strain that Government employees who attained the age of 55 on or after the 1st December, 1962 would be entitled to the above benefit, and this being the basis on which the Government letter No. 10913-H dated June 3, 1965 was drawn up, the petitioner had to consider the same as an unequivocal assurance of the Government that he would be entitled to remain in service till he attained the age of 58 years. That being so, the sudden decision of the Government to terminate his services, at such a short notice, acted very much to his prejudice. Mr. Misra further contends that Government once having taken a decision that the petitioner would remain in service till he completes the age of 58 years, and this decision having been acted Upon and being in effective operation, they cannot go back on the said decision without any specific reason to terminate the services of the petitioner by a short and sudden notice as mentioned above. In this connection. Mr Misra cited before us the decision of the Privy Council in R. T. Rangachari v. Secretary of State, Madras, AIR 1937 PC 27 and the decision of the Supreme Court in the Union of India v. Anglo Afghan Agencies etc., AIR 1968 SC 718, and relying on the principle on which the said decisions are based contended that it was not open for the Government to reopen the matter and cancel the previous order thereby adversely affecting the rights of the petitioner.

In reply to the petitioners' above contention, the learned Standing Counsel appearing for the State contended that after the Government resolution dated the 21st May, 1963. Government issued another resolution on the 15th September, 1965 (as at Annexure 2) which superseded all previous orders and instructions on the subject. As per paragraph No. 3 of the said resolution. Government have the unfettered discretion to require any Government servant to retire at any time after he attains the age of 55 years on three months' previous notice in writing without assigning any reason, and this being so, the petitioner cannot complain against the direction contained in the aforesaid Home Department letter dated July 20. 1967 requiring the petitioner to retire from the date stated in the said letter. In support of his above contention he cited the decision of this Court in Bata Hari Jena v. State of Orissa, ILR 1966 Cut 737 = (AIR 1968 Ori 44),

4. In our view, the aforesaid decision in ILR 1966 Cut 737 = (AIR 1968 Ori 44) would not apply on all fours to the present case before us. There, the validity of the notices of premature retirement served on two officers immediately before or after their attaining the age of 55 years was under challenge. One of them was an officer of the Central Government and the other was an officer of the Government of Orissa. The decision related to the constitutional validity of substantially similar provisions made by the Government of India in the Ministry of Home Affairs in the case of the Central Government Officer, and by the State Government in the Political and Services Department in the case of the Orissa Government Officer -- both dealing with the premature retirement of a Government employee. But the facts on which the decision in ILR 1966 Cut 737 = (AIR 1968 Ori 44) was based, were entirely different inasmuch as in the case of one of the officers he was asked to retire on attaining the age of 55 years by the issue of a notice previous to his attaining that age and in the case of the other officer he was served with a notice issued just one day after he attained the age of 55 years. In the case of neither of these officers as in the present case -- the appropriate Government 'after careful consideration' actually communicated their orders retaining their services till they completed 58 years, nor allowed them to continue for two years on the basis of those orders. On the other hand. Government took a final decision to retire both the officers almost immediately before or after they attained 55 years of age. In our view therefore the abovementioned decision would not apply to the facts of the present case before us.

In the present case, the State Government 'after careful consideration' raised the age of compulsory retirement from 55 to 58 by their resolution dated the 21st May, 1963 (as at Annexure 1) which was in effect reiterated in little more detail by the State Government resolution dated the 15th September, 1965 (Annexure 2). While raising the age of superannuation from 55 to 58 it is stated in both the said resolutions that Government employees 'who attained or attain the age of 55 years on or after the 1st December, 1962, would be entitled to the above benefit'. The Health Department of the Government acting in due compliance with the Government decision embodied in the aforesaid resolution of 1963, took up the case of the petitioner along with eighteen other doctors and again 'after careful consideration' decided to continue the services of the petitioner and those 18 others till they attained the age of 58 years. The Director of Health communicated the aforesaid Government decision to the petitioner by his Memo No. 14914 (15)M./E-165-65 dated the 25th June, 1965 and he, as is contended by the petitioner, acting on this assurance of the Govt., was led to take the decision to continue in Government service till he attained the age of 58 years and accordingly planned his life, the education of his children, and other important commitments in his life.

From the tenor of the Government decision embodied in the resolution of 1963 reiterated by the resolution of 1965, and the purport of the Government letter extending the petitioner's services ordering him to continue till the age of 58, it can, be easily inferred that the petitioner was held out an assurance to be able to continue in service till he attained the age of compulsory retirement at 58. As a matter of fact, he also continued as such for more than two years, when suddenly he was asked to retire by the aforesaid notice dated July 20, 1967. All this will support the case of the petitioner that he was seriously prejudiced by this sudden decision of the Government upsetting the planning of his life, in all its aspects. Moreover, following the principle on which Rangachari's case cited above, AIR 1937 PC 27 was decided, we are inclined to hold that Government and the competent authorities having arrived honestly at a decision to continue the service of the petitioner could not have arrived at another and totally different decision without any rhyme or reason, after the previous decision was acted upon and was in effective operation.

The recent decision of the Supreme Court reported in AIR 1968 SC 718 though not direct on the point under consideration, proceeds on the same principle holding that 'it could not be said that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment' and that 'Union Government and its officers were not entitled at their mere whim to ignore the promises made by the Government.' In the present case, before us, it cannot, however, be said that the aforesaid decision of the State Government amounted to a 'promise', but at the same time it can very well be construed as an assurance by the Government to the petitioner to continue his services till he attained the age of 58; and in this view of the matter, we are of the opinion that so long the decision remained effective it could not be altered to the prejudice or detriment of the petitioner without any sufficient cause.

5. Now coming to paragraph 3 of the resolution dated the 15th September, 1965 (Annexure 2) we find that it is as follows:

'Notwithstanding anything contained In the foregoing paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' previous notice in writing without assigning any reason. This power shall be exercised in the case of Government servants who are found to be unsuitable or inefficient for retention in Government service. For this purpose the concerned authorities should keep constant vigilance on the work of a Government servant continuing beyond the age of 55 years. With a view to ensure uniformity, a notice required to be given by the appointing authority to a Government servant shall be in the form as specified in Annexure 1 appended hereto'.

This suggests that the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' previous notice in writing without assigning any reason. In the said paragraph it is laid down in the same strain that the authorities can exercise the abovementioned power if they find that such Government servants are in any way unsuitable or inefficient for retention in Government service. Therefore, the criterion to come to a decision for the purpose of exercising the power to retire any person as aforesaid can be exercised only when a Government servant is found to be unsuitable and inefficient for retention in Government service.

That being so, the authority exercising such power to terminate the services of a Government servant after 55 years should have been satisfied from materials before him that the said Government servant was unsuitable or inefficient to be retained in Government service, and should have at least directed their attention to a consideration of this matter in the light of the criterion laid down in the above resolution as mentioned above.

6. We find that the direction of the Government contained in letter dated July 20, 1967, directing the petitioner to retire? does not indicate that the said considerations stated above were present in the mind of the authorities concerned. Moreover, the paragraph mentioned above states about a notice which has to be given in a particular form as specified in Annexure 1 appended to the said resolution. The form of the notice is as follows:

'NOTICE

To,

Sri.....................

(address)...............

Whereas you have completed the age of 55 years on ......... and it has been decided to retire you from Government; I/the State Government therefore do hereby direct und require you to retire from Government service with effect from the date of expiry of three months from the date of this notice.'

From this it would appear that it is necessary that a 'decision' to retire a person concerned should be stated to have been taken in the said notice itself, and this being so, the decision should obviously be on the grounds as stated in paragraph 3 of the resolution quoted above, namely, that the said person was either unsuitable or inefficient for retention in Government service. The aforesaid letter dated July 20, 1967, is in the nature of a direction without indicating if the same was actuated by any decision. The impugned notice dated July 20, 1967 therefore is not in accordance with the prescribed notice required to be sent under paragraph 3 of the said resolution.

7. Mr. Misra has drawn our attention to a copy of letter No. 25361 M/E-346-61 dated November 2, 1967 from the Additional Director of Health Services, Orissa to Dr. S. N. Ghosal, Medical Superintendent, T. B. Hospital, Puri (Annexure 7), whereby the petitioner was informed that he was eligible for consideration for recruitment to the Indian Medical and Health Services. Our attention is also drawn to a copy of the Notification No. 20181/H./L. Med, IXC-7/67 dated October 31, 1967 (Annexure B) wherein the petitioner who was then officiating as Civil Surgeon was confirmed in his said appointment from August 10, 1962. These two letters are indicative of the fact that the petitioner till October-November, 1967 was not considered unsuitable or inefficient in any manner, and on the other hand was rather considered as an efficient and suitable person to be considered for recruitment to the Indian Medical and Health Services. The fact that he was confirmed in the post of Civil Surgeon would also indicate that he was till then not considered to be unsuitable or inefficient to be retained in Government service also. This being the consideration weighing with the Director of Health Services, Orissa with regard to the petitioners' efficiency, and suitability even as late as in the month of October-November, 1967, we do not understand how and on what basis the Government directed the petitioner to retire from Government service by their letter dated July 20. 1967 when this decision was to have been taken only on a consideration that the petitioner was unsuitable or inefficient for retention in Government service as per paragraph 3 of the Annexure 2 referred to above.

We are, therefore, of the view that the Government at the time of issuing the direction as contained in their letter dated July 20, 1967 (Annexure 4) did not act in accordance with the provisions of paragraph 3 of the abovementioned resolution and issued the aforesaid direction without any consideration of the basic principles on which such a decision could have been taken. As such we are of the view that this notice is not in accordance with law, and as such it is liable to be quashed.

8. Mr. Misra further contended that the age of compulsory retirement having been extended from 55 to 58 years by the Government unequivocally by their Resolution No, 7406-2-R/l-23/63-Gen. dated May 21, 1963 (Annexure 1), and Resolution dated 15th September, 1965 (Annexure 2), the petitioner who held a permanent post under the Government and whose service was so extended upto the age of 58 years, had a right to continue in service till that age, and if he is asked to leave his service, at any time before attaining that age, that would mean a defeat of his right to continue in service and, as such it is in the nature of a penalty and amounts to removal from service. That being so, the provisions of Article 311 of the Constitution prescribing the procedure to be adopted before such action is taken, should have been complied with, and the exercise of the State Government's pleasure for the purpose of terminating the services of the petitioner would be regulated accordingly.

9. In this connection, he cited the Supreme Court decision in Moti Ram Deka's case (AIR 1964 SC 600, Moti Ram Deka v. General Manager, North East Frontier Railway) which may, with respect, be quoted here:

'A person who substantively holds a permanent post has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded, and he is asked to leave his service, the termination of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement, must, per se, amount to his removal, and so, if by Rule 148(3) or Rule 149(3) such a termination is brought about, the Rule clearly contravenes Article 311(2) and must be held to be invalid. It is common ground that neither of the two Rules contemplates an enquiry and in none of the cases before us has the procedure prescribed by Article 311(2) been followed. We appreciate the argument urged by the learned Additional Solicitor-General about the pleasure of the President and its significance; but since the pleasure has to be exercised subject to the provisions of Article 311, there would be no escape from the conclusion that in respect of cases falling under Article 311(2), the procedure prescribed by the said Article must be complied with and the exercise of pleasure regulated accordingly.'

Our attention is also drawn to para 28 of the above-mentioned case, wherein their Lordships of the Supreme Court have opined as follows:

'At this stage, we ought to add that in a modern democratic State the efficiency and incorruptibility of public administration is of such importance that it is essential to afford to civil servants adequate protection against capricious action from their superior authority. If a permanent civil servant is guilty of misconduct, he should no doubt be proceeded against promptly under the relevant disciplinary rules, subject, of course, to the safeguard prescribed by Article 311(2); but in regard to honest, straightforward and efficient permanent civil servants, it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient.'

The aforesaid observations of their Lordships of the Supreme Court are based on salutary principles and are meant to be followed and observed by all concerned.

10. It must also be noted here that the petitioner, as we find from the Civil List published by the Government, entered into Government service on 2-5-1941, and by the time i.e. July, 1967 he had not completed 30 years of qualifying service as provided for in para 4 of the resolution of 1965.

11. For the reasons stated above, we are of the opinion that the impugned notice dated July 20, 1967 directing the petitioner to retire from service with effect from the date of expiry of three months from the date of service of the notice is void and liable to be quashed, and as such is hereby set aside. The petition is allowed.

12. In the circumstances of the case, there will be no order as to costs.

Barman, C.J.

13. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //