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Pritam Singh Brar Vs. State of Punjab Through Secretary to Govt., Punjab Agriculture Dept., Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 868 of 1966
Judge
Reported inAIR1968P& H189
ActsPunjab Civil Services Rules, 1959 - Rules 3.26 and 5.32; Constitution of India - Articles 14 and 309 to 311(2)
AppellantPritam Singh Brar
RespondentState of Punjab Through Secretary to Govt., Punjab Agriculture Dept., Chandigarh and ors.
Appellant Advocate Bhagirath Dass,; M.R. Agnihotri,; B.K. Jhingan and;
Respondent Advocate S.K. Jain,; H.L. Sibal and; G.S. Chawla, Advs.
DispositionPetition dismissed
Cases ReferredIn MilkhaSingh v. Union of India
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....a.n. grover, j. 1. this is a petition under article 226 of the constitution which has been referred to a full bench owing to the importance of the points involved. the petitioner, dr pritam singh brar, first joined service of the erstwhile faridkot state on 27th february, 1b39 as chief veterinary officer which post, according to him, was later on re-designated as director. veterinary services. on the reorganisation of the state of punjab in 1956 the petitioner was integrated in p. v. s. class i and posted as deputy director. animal husbandry, patiala. respondent no 3, shri m s. malhi, was also integrated in the same service at the same time. in march 1957 shri malhi was promoted as director in an officiating capacity. his work was how-ever, considered unsatisfactory and he was reverted.....
Judgment:

A.N. Grover, J.

1. This is a petition under Article 226 of the Constitution which has been referred to a Full Bench owing to the importance of the points involved. The petitioner, Dr Pritam Singh Brar, first joined service of the erstwhile Faridkot State on 27th February, 1B39 as Chief Veterinary Officer which post, according to him, was later on re-designated as Director. Veterinary Services. On the reorganisation of the State of Punjab in 1956 the petitioner was integrated in P. V. S. Class I and posted as Deputy Director. Animal Husbandry, Patiala. Respondent No 3, Shri M S. Malhi, was also Integrated in the same service at the same time. In March 1957 Shri Malhi was promoted as Director in an officiating capacity. His work was how-ever, considered unsatisfactory and he was reverted with effect from 14th August 1959 and the petitioner was promoted as Director, Animal Husbandry in the grade of Rs. 1500-60-1800 vide Annexure 'A'.

The petitioner continued working as Director from 14th August 1959 till 29th October, 1962 on which date the Punjab Government, by an order (copy Annexure 'B'), appointed him as Director on probation for a period of one year. According to the petitioner, this appointment was made with the approval of the Punjab Public Service Commission and was ordered to take effect from 14th August 1959. It was notified in the Punjab Government Gazette dated 5th December 1962 (copy Annexure 'C'). The period of probation of the petitioner was extended by the Punjab Government from time to time. He says that in June 1964 the then Chief Minister passed orders for his confirmation but these orders were not implemented by Shri B. B Vohra Secretary to Government Punjab, Agriculture Department, respondent No. 2.

Shri Vohra, however, in his affidavit in Para 9 has denied that the orders of the then Chief Minister, Shri Partap Singh Kairon. dated 20th June. 1964 were not implemented by him. He states that these orders were required to be reviewed by the new Government in terms of the Chief Secretary's U. O. dated 15th July. 1964 (copy Annexure 'R/5'). The case was submitted to the new Government and it was decided by it that the petitioner should not be confirmed. In paragraph 10 of the amended petition, it was alleged that Dr. Gopi Chand Bhargava, the Chief Minister in the successor Government, endorsed the order of Shri Kairon made in June 1964 confirming the petitioner in the post of the Director but that his order also was not carried out by Shri Vohra and the period of probation was extended by short extensions from time to time till 29th July, 1965. All this has been denied by Shri Vohra.

On 9th July, 1965 the Punjab Government passed an order (copy Annexure 'D') by which respondent No. 3. Shri Malhi, was appointed as Director of Animal Husbandry in a purely stop-gap arrangement with effect from the afternoon of 4th August 1965 when the petitioner attained the age of 55 years. By the same order the petitioner was allowed to continue in Government service beyond the age of 55 years after being relieved of the charge of Director, Animal Husbandry. His posting orders were to be issued separately. According to the petitioner, he handed over the charge of that post on 4th August 1965 and submitted a report to the Government stating that he was handing over the charge but that no orders of his posting were received till then (copy of the report is Annexure 'E').

Shri Vohra In his affidavit (paragraph 11) has stated that orders regarding the new posting of the petitioner could not be issuedsimultaneously with the orders relieving him of the charge of Director. Animal Husbandry, because a new post had to be created with the same salary which the petitioner was drawing and since no such post existed In the Department on 2nd July 1965 a reference was made to the Finance Department on 16-7-1965 through the Chief Secretary which involved certain amount of procedural delay. According to the petitioner, he made a representation against the order dated 9th July. 1965 to the Chief Minister (copy Annexure 'F') but that no orders were conveyed to him of his posting till 16th November, 1965. During this period he had been meeting the Secretary and the Minister of the Department concerned and the Chief Minister in order to obtain the posting orders but none of these authorities issued any orders of the assignment and posting of the petitioner and he remained 'on the road without any post and salary.'

On 16th November, 1965 the Government made an order appointing him as Project Officer (Milk Shed Areas') of Amritsar and Gurdaspur Districts with headquarters at Amritsar vide Annexure 'G'. Although the petitioner had been directed to take up his duties at Amritsar immediately, no order of the creation of the post in question had been issued by the Government till then. In paragraph 16 of the amended petition, it is stated that the petitioner submitted a representation to the Chief Minister, Punjab on 21st November, 1965 (copy Annexure 'H') which contained a protest against the appointment of the petitioner as Project Officer which post was subordinate in rank to the post of a Director

In paragraph 17, the petitioner says that while his representation was still pending with the Chief Minister and he was to give him a hearing in the presence of the Minister of Animal Husbandry and Agriculture on 27th January. 1966, the Deputy Secretary to Government, Punjab, Forest Department, disposed of the same by advising the petitioner to resume his duties at Amritsar. It is stated by Shri Vohra that the said representation was examined by the Administrative Department and rejected on the 6th December, 1965, with the approval of the Minister in charge. This rejection was conveyed to the petitioner under the signatures of the Deputy Secretary by means of the letter (copy of which is Annexure 'R/8') Since the petitioner had forwarded an advance copy of the representation to the Chief Minister he was given a date for hearing by him also

The petitioner says that he submitted another representation on 9th December, 1965 to the Chief Minister (copy Annexure 'K') alleging that Shri Vohra was inimical towards him and his decisions were actuated with personal malice and ill will against him. On 23rd March 1966 an order was passed In the name of the Governor according sanction to the post of Officer on Special Duty at a fixed pay of Rs. 1800 p.m. from 5th August 1965 to 28th February 1966 According to the petitioner this order was not conveyed to him till 22nd April, 1966 On that date he received a communication to the effect that the Government was pleased to redesignate the post of Officer on Special Duty as Project Officer (Milk Shed Areas) for Amritsar and Gurdaspur districts with headquarters at Amritsar He was directed to take charge of that post at Amritsar immediately and report compliance to the Government.

Respondent No. 3 had simultaneously issued a letter to him on 22nd April 1966 asking him to proceed to Amritsar and to take charge of his new assignment. It was stated in that letter that the Government was being requested to sanction for the petitioner a post of Stenographer and a peon and the petitioner was asked to furnish adequate justification for any additional staff (Annexure 'M') On 30th April 1966 the petitioner filed a writ petition in this Court challenging the order dated 9th July 1965 and 20th April 1966. During the pendency of the writ petition an order was made on 1st July 1966 serving three months' notice on the petitioner with reference to Rule 5.32(c) of the Punjab Civil Services Rules. Volume II and the petitioner was informed that he would be deemed to have been retired from service on the expiry of that period from the date of receipt of the notice by him. The petitioner sought permission to amend the petition so as to attack the notice dated 1st July 1966 which he was allowed to do and then the amended petition was filed from which all the allegations which have been set out before have been substantially taken. The petitioner has also introduced a number of other facts which will be subsequently noticed to the extent necessary containing particulars of mala fides on the part of Shri Vohra in amplification of his allegations in that behalf against Mm.

2. When the petition was heard by a Division Bench consisting of myself and Shamsher Bahadur J. the challenge of the petitioner was directed mainly towards the legality and validity of the notice dated 1st July 1966 and the same matter has been canvassed before the Full Bench An endeavour has also been made to establish that the impugned orders culminating in the notice of 1st July 1966 were actually by mala fides. In order to decide the questions which have been raised, relevant service rules may be adverted to Rule 326 of the Punjab Civil Service Rules Volume I Part I runs thus:-

'3.26(a) Except us provided in other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58 years. He must not be retained in service- after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority on public grounds which must be recorded in writing.

(b) ****** (c) The following are special rules applicable to P. W. D. Officers: -

(1) Except as otherwise provided in thissub-clause, Government servants in thePunjab Service of Engineers, Class I (B & RI. B. and Electricity) must retire on reachingthe age of 58 years, and may be required bythe competent authority to retire on reaching the age of 30 years if they have not attained the rank of Superintending Engineer. * * * * '

It may be mentioned that originally the age of compulsory retirement was 55 years but it was raised to 58 years with effect from 18th March 1963.

3. Rule 5.32 contained in Volume II of the Punjab Civil Services Rules relating to pensions and provident funds is as follows:-

'5.32(a). A retiring pension is granted to a Government servant who is permitted to retire from service after completing qualifying superior service for twenty-five years or such less time as may for any special class of Government servants prescribed.

(b) A retiring pension is also granted to a Government servant who is required by Government to retire after completing 25 years qualifying service or more and who has not attained the age of 55 years.

Note 1. Govt. retains an absolute right to retire any Government servant after he has completed 25 years of service qualifying for pension if he is holding a pensionable post or has completed service for a similar period if he is holding a non-pensionable post but is entitled to the benefits of contributory provident fund (vide GSR-115/Article 309/Const/63 dated 13-5-1953), except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency, dishonesty, corruption or infamous conduct. Thus Clause (b) is intended for use:-

(i) Against a Government servant whose efficiency is impaired but against whom it is not desirable to make charges of inefficiency or who has ceased to be fully efficient (i.e. when a Government servant's value is clearly incommensurate with the pay which he draws) but not to such a degree as to warrant his retirement on a compassionate allowance It is not the intention to use the provision of this note as a financial weapon that is to say the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds:

(ii) In cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific Instance is likely to be proved under the Punjab Civil Services (Punishment and Appeal) Rules. Appendix 24 Vol. I Part II or the Public Service (Inquiries) Act (37 of 1850).

* * * * * * * * * * Note 2. Government servant should be given a reasonable opportunity to show cause against the proposed action under Clause (b) of this rule. No Gazetted Government servants shall however be retired without the approval of Council of Ministers. In all cases of compulsory retirement of gazetted Government servants belonging to the State Services, the Public Service Commission shall be consulted. In the case of non-gazetted Government servants the Heads of Departments should effect such retirement with the previous approval of the State Government.

* * * * * * * * * * (c) (Vide No. 12435 FRI-64/1143 dated 4-2-1964) A retiring pension is also granted to a Government servant other than a Claw IV Govt. servant:

(i) who if retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than I months' notice.

(ii) who retires on or after attaining the age of 55 years by giving not less than three months' notice of his intention to retire to the appointing authority.

Provided that where the notice is given before the age of 55 years is attained, it shall be given effect to from a date not earlier than the date on which the age of 55 years is attained

Note: Appointing authority retains an absolute right to retire any Government servant except a Class IV servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years '

4. The contentions canvassed by Mr. Bhagirath Dass are:-

(1) The petitioner had an absolute right to continue in service up to the age of 51 years under Rules 3.26. Rule 5.32 relates to grant of pension and cannot control or limit the content and the amplitude of the provisions contained in Rule 3.26

(2) If the first contention does not prevail the petitioner who had completed 25 years' qualifying service could be retired only in accordance with the procedure prescribed by Note 2. He was entitled to be afforded a reasonable opportunity to show cause against the proposed action. This would be particularly so because the petitioner had been retained by an express order beyond the age of 55 years in service

(3) Clause (c) suffers from the vice of discrimination because (i) this clause lays down a procedure for compulsory retirement which is quite different from the procedure prescribed for retirement by Clause (b). Thus, although a Government servant has been given a right to remain in service after 55 years under Rule 1.26, an arbitrary age hasbeen fixed, viz., 55 years, for following a different procedure in the matter of retirement. If the servant is to be retired before that after he has completed 25 years' qualifying service, the procedure laid down in Note 2 has to be followed which conforms to the requirements of Article 311(2) of the Constitution. If, however, the Government servant has attained the age of 55, he can just be retired without any reasons at the sweet will and caprice of the appointing authority, and (ii) no guiding principle has been laid down for ordering retirement of Government servants after they have attained the age of 85 years bv giving three months' notice. (4) Clause (c) in Rule 5.32 is violative of Article 311(2) of the Constitution

In State of Mysore v. Padmanabacharya, AIR 1966 SC 602 on which reliance has been placed by Mr. Bhagirath Dass, Najappa, the Head Master of a Government Boys' Middle School, had completed the age of 55 years on 3rd February 1958 and he was ordered to be retired from service from that date on the ground of superannuation. He filed a writ petition in the High Court of Mysore. One of his main contentions was that Rule 294(a) of the Mysore Service Regulations which prescribed the age of retirement had been amended with respect to teachers from 29th April, 1955 and the normal age of superannuation had been fixed at 58 years instead of 55 years. Consequently, he could not have been retired on completion of the age of 55 years

An addition had, however, been made to Rule 294 (a) Its effect was that in the case of trained teachers the normal age of retirement was to be 58 years. The power was reserved to the Director of Public Instruction to retire those teachers provided they had not good record of service and were not up to the mark. Thus after the change made on 29th April. 1955 trained teachers could only be retired at the age of 55 years if the Director or the Government came to the conclusion that they had not a good record of service As no such conclusion had been arrived at by the Director of Public Instruction in that case, it was held that Naniappa was entitled to continue in service up to the age of 58 years and could not be retired at the age of 88.

It is difficult to appreciate how this decision can be of any assistance in considering the first contention of Mr Bhagirath Dass. The Mysore Service Regulations contained certain provisions in the light of which a trained teacher could not be retired except under certain conditions If those conditions were not satisfied he was certainly entitled to continue up to the age of 58 years, that being the age of superannuation after, the amendment of the Regulations. It is true that in the present case the petitioner was entitled to remain in service till the age of 88 years but the real question would be whether the two rules namely, 3.26 and 5.32stand apart and cannot be read or given effect to together.

5. Mr. S. K. Jain for the Stats points out that all the rules contained in Volumes I and II of the Punjab Civil Services Rules have been promulgated under Article 309 of the Constitution and every rule must be given due effect. According to him, Rule 3.26 cannot be read in isolation and although the language employed therein clearly shows that a Government servant would continue In service up to the age of 58 but that right is not absolute and is controlled by the provisions of Rule 5.32. Reliance has been placed bv him on J K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh, AIR 1961 SC 1170 in which it has been reiterated that in the interpretation of statues the Courts always presume that the Legislature inserted every part thereof for a purpose and the Legislative intention is that every part of the statute should have effect These presumptions will have to be made in the case of rule-making authority.

In State of Bombay v. Saubhagchand M. Doshi, AIR 1957 SC 892. Rule 165-A of the Bombay Civil Services Rules which had been adopted by the State of Saurashtra contained provisions very similar to Rule 3.26 except that the age of retirement was to be 50 vears Rule 165-A, as amended, provided:

'Government retains an absolute rightto retire any Government servant after hehas completed 25 years' qualifying service or50 years of age whatever the service withoutgiving any reason, and no claim to specialcompensation on this account will be entertained * * * *'

An order was made in 1952 terminating the services of the Government servant without assigning any reason when he had attained the age of 50 vears. The validity of the rule was upheld and the impugned order was sustained as having been passed in exercise of the power conferred by Rule 165-A. This decision clearly illustrates that although the age of superannuation may be fixed at 55 but there can be a provision that a Government servant may be retired in certain eventualities even before he has attained that age but after he has completed 25 years of service or attained the age of 50. If Rules 3.26 and 5.32 are read together the result would be similar to what was provided in the rule which was upheld in the aforesaid case

The only point of distinction can be that the right to retire was conferred on the Government by the same rule which laid down the age of superannuation but that can hardly make any difference because it would be against recognised canons of interpretation and in particular the rule of harmonious construction to read Rule 3.26 in isolation and not to read both the rules together. In Kailash Chandra v. Union of India AIR 1961 SC 1346 the question was whether Rule 2046(2)(a) of the Railway Establishment Code which was identical with the fundamental Rule 56(b)(i) which gave the appropriate authority the right to require a ministerial servant to retire as soon as he attained the age of 55 years was cut down by the second clause viz., 'but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years.'

It was held that the intention of the rule-making authority was that the right conferred by the first part was not in any way limited or cut down by the second part of the sentence. It was held that a railway ministerial servant could be compulsorily retired on attaining the age of 55 but when the servant was between the age of 55 and 60 the appropriate authority had the option to retain him in service subject to the condition that he continued to be efficient. The authority, however, was not bound to retain him even if he continued to be efficient. The first contention of Mr. Bhagirath Dass has hardly any merit and cannot be acceded to for the reasons given above

6. In support of his second contention Mr. Bhagirath Dass has referred to Annexure R. 3/N, which is a copy of a letter addressed by the Chief Secretary to Government, Pun-Jab to all Heads of Departments on 19th May 1964. The procedure in the matter of retiring a Government employee after he attains the age of 55 years on three months' notice without assigning any reason has been laid down in this letter. It has been stated inter alia that six months before a Government employee attains the age of 55 years his record should be carefully examined and a provisional judgment, formed as to whether he should be retired on attaining the age of 55 years.

Where the appointing authority has reasonable cause to believe that a Government employee is lacking in integrity it would be appropriate to consider him for premature retirement irrespective of an assessment of his ability or efficiency in work. In case his integrity is not in doubt and he has been assessed as 'Average' he should not be retired at the age of 55. The test whether a Government employee should be allowed to continue up to the age of 58 years should not for obvious reasons be as rigorous as the one applied in considering when extension in service is allowed beyond the age of superannuation. It has further been laid down-

'Once it is decided to retain a Government employee beyond the age of 55 years, he should be allowed to continue up to the age of 58 years without any fresh review unless this is justified by any exceptional reasons such as his subsequent work or conduct or the state of his physical health, which may make earlier retirement clearly desirable. It is felt that in order that a Government employee who is cleared for continuance at a stage of attaining the age of 55 years, may settle down to another three years of work with a sense of security and those working under him except his control and discipline without any reservation, an annualreview between the ages of 56 and 68 years would not be desirable.'

It is urged that the above instructions are very salutary and are based on a sound idea that when the age of retirement has been fixed at 58 and even if the Government in exercise of the powers reserved by it wishes to retire a Government employee prematurely it should do careful scrutiny and assessment before he attains the age of 55 years so that he can be made to retire at that stage. If, however, he is allowed to continue in service, then it would be almost arbitrary to ask him to retire by just giving him three months' notice without assigning any reason. This would always keep officer concerned in the state of suspense and he would not be able to settle down to regular and useful work as has been pointed out in the letter.

7. The procedure or the instructions contained in the aforesaid letter of the Chief Secretary to Government, Punjab, cannot operate to limit or restrict the operation of the provisions of Rule 5.32. At any rate, this letter does not substantiate the contention of Mr. Bhagirath Dass that the same procedure should be followed in the matter of retirement of a Government employee after he has attained the age of 55 years which has been laid down for being followed when it is sought to retire him after 25 years' qualifying service and before the attainment of the age of 55. The whole question depends on the legality and validity of the provisions of Rule 5.32 and if the Rule is good and valid, the petitioner cannot invoke the procedure laid down in Note 2 for those who have completed 25 years' qualifying service and who have not attained the age of 55 vears.

8. In elaboration of his third contention. Mr. Bhagirath Dass has strenuously contended that there is no rational basis for the classification which has been made between the two classes of Government servants--those who have put in 25 years' qualifying service and have not attained the age of 55 and those who have attained the age of 55 years. As has been pointed out before, in the case of the first class the procedure which conforms to the requirements of Article 311(2) of the Constitution has to be followed, apart from other safeguards provided in note 2, viz., the approval of the Council of Ministers has to be obtained and the Public Service Commission has to be consulted in case of gazetted Government servants.

The second class of Government servants who have attained the age of 55 years have been provided with no safeguard whatever and they can be retired without assigning any reason. Apart from giving arbitrary powers to the appointing authorities in the matter of retirement of the second class and fixing ne guiding principles in the matter, the classification which has been made by fixing the age at 55 years is not based on any rational basis. Moti Ham Deka v. General Manager,North East Frontier Railway, AIR 1964 SC 600 to which our attention has been invited related to the validity of Rules 148(3) and 149(3) of the Railway Establishment Code, 1951, Volume I. These rules authorised the Railway Administration to terminate the services of all the permanent servants merely on giving notice for a specified period.

In the majority judgment, these rules were struck down on the ground that since termination of a permanent servant's tenure was authorised by them, they came into conflict with Article 311(2) of the Constitution. It was further held that there was no basis on which the Railway could be regarded as constituting a separate class by reference to which the impugned rules could be justified in the light of Article 14 of the Constitution. Das Gupta J. declared the rules invalid on the ground that they did not lay down any principle or policy for guiding the exercise of discretion by the authority who was to terminate the service in the matter of selection or classification. Such arbitrary and uncontrolled power left to the authority to select at its will any person against whom action could be taken would enable the authority concerned to discriminate between two Railway servants to both of whom the rules equally applied by taking action in one case and not taking it in the other. In his opinion, the rules were bad as they contravened the requirements of Article 14 of the Constitution.

Moti Ram Deka's case. AIR 1964 SC 600 (supra), however is quite distinguishable inasmuch as the question there was of the validity of the rules which authorised removal from service whereas in the present case we are concerned only with compulsory retirement and not removal. There are two aspects which it is necessary to examine to dispose of the contentions of Mr. Bhagirath Dass. The first is whether the classification made by fixing the age at 55 and by providing two different procedures for the two classes thus formed has any reasonable basis. The second would be whether there is any rational connection between the making of such provisions as are contained in Clause (c) and the object intended to be achieved and whether in the absence of any principle or policy for guiding the exercise of discretion, the provisions of Clause (c) will have to be struck down as contravening the requirements of Article 14.

A reference to paragraph 21-A, Clause (iii), of the writ petition, in which the validity of Rule 5.32 on the ground of discrimination and arbitrariness has been challenged, does not clearly make out a case on the first aspect which has been urged at the time of arguments. If proper allegations had be'n made, as Indeed they ought to have been made, the respondent State would have been In a better position to furnish proper data and the basis for fixing the age of fifty five years. It has, however, been suggested that the obvious reasons for fixing the age of fifty-five years was that the original age of superannuation was, admittedly, fifty-five years. It was raised to fifty-eight years by the amendment in Rule 3.26.

Since the employees, who would have originally retired at the age of fifty-five, got the benefit of the extended age, it was justifiably felt that those who had not attained the age of fifty five should be treated differently from those who were continued in service after the age of fifty-five. Another reason, which has been commended by Mr. S K. Jain, is mentioned in Sita Ram Sahni v. State of Punjab, Letters Patent Appeal No. 111 of 1965 D/- 14-3-1964 (Punj). It is to be found in the following observations:

'With these Government servants, the contract of service was that they would retire at the age of 55, They took up service, when the rule providing superannuation made incumbent on all Government servants, excepting Class IV employees, to retire from service at the age of 55, unless they were retained in service for some special considerations and that is a matter with which we are not concerned. The increase in the age of superannuation from 55 to 58 has not been incorporated in the contract of the Government servants, who joined service before the age of superannuation was raised from 55 to 58. Therefore, no Government servant whose age of superannuation was 55, can claim as to right to go on in service till the age of 58. Government may permit its ser-vant to go on up to the age of 58 and even beyond that. But that is not a right which vests in the Government servant.'

In Kailash Chandra's case, AIR 1961 SC 1346 (supra) one of the contentions raised related to contravention of Article 14. Two notifications of the Railway Board, as a result of which ministerial servants who were retired under Rule 2046(1) (a) before attaining the age of 60 after 8th September 1948, were challenged on the ground of discriminatory treatment having been accorded. This is what was said by their Lordships:

'We do not think that this contention has any substance. What happened was that on September 8, 1948, the Government took a decision that ministerial servants should not be retired under the rule in question on attainment of 55 years of aee if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the opinion to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend Article 14 of the Constitution.'

It was further reiterated in paragraph 16 at page 1850 that a reasonable classification hadbeen made of the ministerial servants who had been retained under Rule 2046(2) (a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after 8th September 1948, and the other consisting of those who retired up to 8th September, 1948. The submission of Mr. Jain, therefore, is well founded that two classes of Government servants had been formed for the purposes of Rule 5.32. One was of those who had put in 25 years' qualifying service and had not attained the age of fifty-five years and the other, of those who had attained the age of fifty-five.

It could not be said that the classification was not reasonable because the age of 55 could be logically and rationally fixed for the reasons contained in the Bench judgment of this Court which have been extracted above, as also because it represented the outside limit of the age of superannuation which had originally been fixed for several decades since the formation of the service of the category to which the petitioner belongs. In Sridhar Prasad Nigam v. State of Uttar Pradesh, AIR 1966 All 560 the validity of a provision contained in Fundamental Rule 56,which applied to the State of Uttar Pradesh, came up for consideration The amendment made in that Rule was in the following terms:

'(1) For the figure '55' wherever it occures the figure '58' shall be substituted.

(2) For the existing proviso at the end of Clause (a) the following shall be substituted:

Provided that:

(i) the appointing authority may require the Government servant to retire after he attains the age of 55 years on 3 months' notice without assigning any reason; or (ii) * * * * * * * *'

It was contended that the rule did not give any guiding principle to the Government to decide which Government servants to retain after the age of fifty-five years and which to retire. The provision that the appointing authority may require the Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reason was also attacked on the ground that it was arbitrary and it would result in discrimination This is what the learned Judges said-

'It is true that if only the first clause of Rule 56 is read an impression may be created that the age of retirement is 58 years, but if all the clauses are read harmoniously together, it is clear that the intention of the rule-making authority was to fix the age of superannuation at 55 leaving it to the Government to permit with their consent, good officers to continue in service until they attained the age of 58 years'

It was further observed, after reference to Ram Autar Pandey v. State of Uttar Pradesh. AIR 1962 All 328(FB) and Bishun Narain Misra v. State of Uttar Pradesh, AIR1965 SC 1587 that a rule could be framed so as to reduce the age of superannuation of a Government servant. Inasmuch as that could be done by means of a separate rule, on principle there was no reason why in the same rule there could not be a provision keeping the age of retirement at 58, yet giving the Government and the public servant the option to retire at 55 years. Therefore, Rule 56 was not hit by article 14 of the Constitution.

9-10. Apart from the above decisions, It is significant that in AIR 1957 SC 892 which has already been discussed, the validity of the provision contained in Rule 165-A, as amended was upheld. In that Rule also the Government had the power to terminate the service of a Government servant without assigning any reason if he had completed 25 years' qualifying service or attained the age of fifty. In Dalip Singh v. State of Punlab, AIR 1960 SC 1305 an order for compulsory retirement made under Rule 278 of the Patiala State Regulations (which did not fix the age of compulsory retirement but which stated that the compulsory retirement was for administrative reasons) was

It is thus obvious that in cases where the rules laid down no guiding principle and conferred absolute and complete powers on the Government or the appointing authority to compulsorily retire a Government servant after attaining a particular age, the Supreme Court did not declare them to be invalid on the ground of contravening article 14 of the Constitution. I would consequently hold that the classification made between two classes of Government servants in Rule 5.32 with reference to attaining the age of 55 years has a reasonable and rational basis. Nor can Clause (c) in question be struck down as contravening Article 14 of the Constitution and this is what was held in Shri Amrik Singh v. The State of Punjab, Civil Writ No. 991 of 1964. D/- 23-2-1985 (Punj).

11. As regards the fourth contention, there is hardly any decision which supports Mr Bhagirath Das. On the contrary, it appears to be well settled that a rule of the nature contained in Rule 5.32 does not contravene the provisions of Article 311(2) of the Constitution In Saubhagchand M. Doshi's case. AIR 1951 SC 892 it was held that an order under Rule 165-A of the Bombay Civil Services Rules, which has previously been referred, compulsorily retiring a servant before superannuation could not be held to be one of dismissal or removal, as it did not entail forfeiture of the proportionate pension due to such servant

It is true that in Gurdey Singh Sidhu's case. AIR 1964 SC 1585 Article 91 of the Pepsu Service Regulations, as amended by the Governor of the Puniab by a notification dated the 19th January 1960, enabling the State Government to compulsorily retire a Government servant only after ten years of service was held to contravene Article311(2) of the Constitution, but it was made clear in that judgment that if a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which had been reasonably fixed, Article 311(2) would not apply because such retirement was neither dismissal nor removal of the servant. Where by reserving the power to the State Government to compulsorily retire a permanent servant a rule is framed prescribing a proper age of supeannuation and another rule is added giving the power to the State to compulsorily retire him at the and of ten years of his service, that cannot be treated as falling outside ARticle 311(2).

The termination of service under such a rule, though called compulsory retirement, would in substance amount to removal under that Article. It cannot possibly be said in the present case that the age for compulsory retirement that had been fixed is so unreasonably low that it would attract the observations made in Moti Ram Deka's case, AIR 1964 SC 600 which have been fully discussed in the above case. Certain decisions of this Court may now be noticed. In Civil Writ No. 991 of 1964 D/- 23-2-1966 (Punj) the petitioner had completed the age of 55 years on 12th March, 1964 but continued in service. On 20th March, 1964 he received a communication from the Secretary to Government Punjab Finance Department, saying that his services would not be required at the end of the period of three months from the date of the notice under Sub-clause (1) of Clause (c) of Rule 5.32 of the Punjab Civil Services Rules, Volume II.

He challenged the legality and validity of that order. It was contended. Inter alia, before a Division Bench, before whom the petition came up for hearing that the impugned order amounted to one of removal from service and contravened Clause (2) of Article 311 of the Constitution. The Bench felt that the case fell within the rule laid down in Shyam Lal v State of Uttar Pra-desh, AIR 1954 SC 389 where the rule under consideration gave the Government an absolute right to retire any officer after he had completed 25 years of service without giving any reasons and that rule was held to be valid. Reference was also made by the learned Judges to the decision in Gurdev Singh Sidhu's case. AIR 1964 SC 1585.

The Bench also examined the point whether the fourth proviso to Rule 9.1 of the Pepsu Services Regulation. Volume I. as inserted by the notification dated the 4th February. 1964 should be struck down on the ground that after the age of superannuation had been raised to 58 years Government could not reserve any right to itself to terminate the services of the Government servant after he had attained the age of 58 years without assigning any reason. Capoor, J., who delivered the judgment of the Bench, relied on certain observations made by Dua, J., In another Beneh decision In MilkhaSingh v. Union of India, Civil Writ No. 325 of 1963 D/- 15-12-1964- (AIR 1966 Punj 297) as also on certain other reported decisions and held that the aforesaid provision in the rules was quite good and valid.

The ratio of all these decisions is that if under the rules a public servant is compulsorily retired after a period of qualifying service which is reasonably long even before the normal prescribed age of superannuation, the order would neither amount to dismissal nor to removal within the meaning of Art-cle 311(2) of the Constitution. The fourth contention of Mr, Bhagirath Dass, therefore, is without substance and must be repelled.

12. Mr. Bhagiratb Dass has next argued the question of mala fides on the part of Shri Vohra who, according to him, was primarily responsible for the misfortunes of the petitioner. Apart from the allegations which have already been noticed, more particulars were given in paragraph 21-A of the petition which was allowed to be inserted as a result of the petition for amendment which was granted. It has been stated that the impugned notice was issued by Shri Vohra without obtaining any orders from the Governor or the Chief Minister and that this had been done because of the personal ill-will of Shri Vohra against the petitioner The other matter which has been prominently raised is that the petitioner had relinquished the charge of the post of Director, Animal Husbandry, on 4th August, 1965. Since then neither the petitioner was allowed to work on the post of Director nor was any other equivalent and suitable post created for him till the notice of 1st July, 1968 was issued

As he had not been allowed to work on any post from 4th August 1965 up to 1st July, 1966 the Government before issuing the impugned notice had no opportunity to examine the subsequent work or conduct or the state of physical health of the petitioner on which his compulsory retiremenl could be ordered All this showed that the notice had been issued with a view to victimisation of the petitioner (Apparently at the instance of Shri Vohra). In the affidavit in reply of Shri Vohra it is stated that the decision to terminate the services of the petitioner was taken by the Chief Minister and the same was approved by the Minister in charge. The allegations of personal ill-will were firmly denied. It had further been stated that the petitioner was offered the post of Project Officer and thereafter the Project Director but in disregard of the Government's orders he did not join either of those posts and did not do any work during all this period.

It was in view of these reasons amongst other considerations that it was decided that the petitioner might be served with the impugned notice in terms of Rule 5.32. A replication was filed by the petitioner to the written statement of respondents 1 and 2 in which he introduced a host of other mattersRiving details of the background which led to bad relations between Shri Vohra and the petitioner. It has been stated inter alia that Shri Vohra committed patent improprieties in conveying his own adverse remarks to the petitioner in November 1064 for the years 1962-63 and 1963-1964 in one and the same letter. The petitioner says that according to the instructions of the Punjab Government such remarks had to be conveyed promptly so as to enable the officer concerned to improve upon his work and efficiency next year.

Another matter on which emphasis was laid in paragraph 21 was that although orders for the confirmation of the petitioner were passed by the Chief Minister on 20th June 1964, yet Shri Vohra did not release those orders which were withheld by him till 15th July, 1964. On 3rd August 1965 even the new Chief Minister allowed him to continue on the post of the Director These orders of the Chief Minister were not complied with and the petitioner was relieved from the post of Director of Animal Husbandry on 4th Ausust 1965. Even if Shri Vohra was right in saying that the orders referred to were received by him on 12th August 1965 Shri Vohra should have asked the petitioner to rejoin the post or resubmitted the papers to the Chief Minister for his perusal and further instructions

This lapse on the part of Shri Vohra, according to thy petitioner, was patently improper and actuated by malice. Shri Vohra filed an affidavit in reply dated 14th September, 1966 to the replication in which he gave the historv of how the orders of confirmation were made by the then Chief Minister; Shri Partap Singh Kairon, on 20th June 1964. These were out up before the Government for review. The Minister in charge, Shri Darbara Singh, considered the matter and recommended to Shri Ram Kishan, the new Chief Minister, on 16th October. 1964 that the petitioner should be reverted as De-putv Director, Animal Husbandry. The Chief Minister ordered on 5th November, 1964 that the petitioner should not be confirmed and in the meantime the legal implications of his proposed reversion should K' examined

The case was put up again in May 1965 with the recommendation that the petitioner should be retired from service on reaching the age of 55 years on 4th August, 1965. This recommendation was not agreed to by Shri R. S. Randhawa, Commissioner, Agricultural Production and Rural Development, who recommended to Shri Darbara Singh on 5th June 1965 that the petitioner should be allowed to continue as Director, Animal Husbandry till 58. Shri Randhawa's note was received by Shri Darbara Singh on 7th June, 1965, the date on which the latter handed over charge of the Department to Shri Rattan Singh, Minister of State for Animal Husbandry and Agriculture. Shri Darabara Singh, however, pasted orders onthe same day agreeing with Shri Randhawa. When the file was shown to the new Minister on 8th June 1965 he sent the case to the Chief Minister and expressed a desire for discussion with him. While sending the case to the Chief Minister it was observed:

'Officers, Ministers and the late Chief Minister have commented unfavourably at one stage and favourably at another stage. The circumstances under which these changes have taken place are to say the least suspicious.'

The case was discussed by the Minister with the Chief Minister on 2nd July 1965 and it was decided that since the petitioner was not up to the mark, he should be replaced as Director on attaining the age of 55 years. Now, it is clear that whatever mala fides have been alleged it has not been stated that the Ministers or the Chief Ministers concerned who made orders at various stages were in any manner actuated by them, The case of the petitioner is based mainly on imputation of personal motives, ill-will and malice on the part of Shri Vohra. It is noteworthy that the facts from which the petitioner has sought to establish personal ill-will etc. on the part of Shri Vorha have been vehemently denied by him and it is most difficult in these proceedings to adjudicate upon the correctness or otherwise of those facts. The proper course for him if he wishes to obtain relief on the ground of mala fides would be to file a regular action in which all the necessary evidence can be led in the matter.

13. Mr. Bhagirath Dass maintains that even on the orders which have been produced by both sides and the facts which have been admitted, mala fides on the part of Shri Vohra stand established. It is unnecessary to refer to them as they have already been adverted to. In my opinion, it would be too far-fetched to attribute everything to the so-called machinations of Shri Vohra. The note of the Minister dated 8th June. 1965, which has been set out before, sums up the true position in respect of the petitioner. He appears to have become a fairly controversial figure and the opinions of the various officers and Ministers showed a good deal of difference in the matter of assessment of his capability and work. The various orders and admitted facts are wholly Inadequate for establishing mala fides on the part of Shri Vohra to whose scheming and Intrigue the petitioner has attributed all his misfortunes including the Issuance of the impugned notice

14. In the result, the petition fails and it is dismissed. In view of the entire circumstances there will be no order as to costs.

S.B. Capoor. J.

15. I agree

Jindra Lal, J.

16. I also agree and have nothing useful to add.


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