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State of Rajasthan and anr. Vs. Sripal Jain - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1963SC1323; 1963CriLJ347; (1963)ILLJ285SC; [1964]1SCR742
ActsRajasthan Service Rules - Rules 56 and 244(2); Constitution of India - Articles 166 and 311; Rajasthan Civil Services (CCA) Rules, 1958 - Rules 14 and 34; Business Rules - Rules 21 and 31; Service Law
AppellantState of Rajasthan and anr.
RespondentSripal Jain
Excerpt:
service - compulsory retirement - rules 56 and 244 (2) of rajasthan service rules, articles 166 and 311 of constitution of india, rules 14 and 34 of rajasthan civil services (cca) rules, 1958, rules 21 and 31 of business rules and service law - whether a case of compulsory retirement under rule 244 (2) of service rules has to be submitted to governor under rule 31 (vii) (a) of business rules - order of compulsory retirement communicated to respondent by inspector general of police - rule 31 (vii) (a) of business rules only applied to that kind of compulsory retirement which was inflicted as punishment under rule 14 of classification rules and not to other cases of compulsory retirement on reaching age of superannuation or under rule 244 (2) - it was not necessary to submit papers with..........of rajasthan and it wascontended that an order of compulsory retirement under r. 244(2) of the servicerules was not a punishment within the meaning of the classification rules, andtherefore art. 311 had no application to it. it was also urged that the orderhad been passed by the government and not by the inspector general of police,who had merely acted in issuing the order under the direction of thegovernment. the case of the appellants was that under r. 244(2) of the servicerules, the government had an unqualified discretion to retire any officercompulsorily if it was in the public interest so to do, and provisions of art.311 of the constitution would not apply to such an order of compulsoryretirement. the appellant's case further was that a high-powered committee hadbeen set up.....
Judgment:

Wanchoo, J.

1. This is an appeal by special leave against the judgment of the RajasthanHigh Court. The respondent was in the service of the State of Rajasthan and atthe material time was a circle inspector. He was compulsorily retired fromservice on September 3, 1960 under r. 244(2) of the Rajasthan Service Rules,(hereinafter referred to as the Service Rules). The order for his retirementwas communicated to him by the Inspector General of Police, Rajasthan, on April11, 1960. The respondent however made representations to the Government and theorder was kept in abeyance and was finally put into effect from September 3,1960, after the Government had rejected the representation. The Governmentordered on September 2, 1960 that the order of April 11, 1960 regardingcompulsory retirement should be put into immediate effect. The respondentthereupon filed a writ petition in the High Court and contended inter alia thatthe Inspector General of Police has no authority to order his compulsoryretirement under r. 244(2) of the Service Rules. He also contended that theorder amounted to punishment within the meaning of r. 14 of the Rajasthan CivilServices (Classification, control and appeal) Rules, 1958, (hereinafterreferred to as the Classification Rules), and therefore as it was passedwithout giving him an opportunity to show cause as required under Art. 311 ofthe Constitution, it was bad.

2. The petition was opposed on behalf of the State of Rajasthan and it wascontended that an order of compulsory retirement under r. 244(2) of the ServiceRules was not a punishment within the meaning of the Classification Rules, andtherefore Art. 311 had no application to it. It was also urged that the orderhad been passed by the Government and not by the Inspector General of Police,who had merely acted in issuing the order under the direction of theGovernment. The case of the appellants was that under r. 244(2) of the ServiceRules, the Government had an unqualified discretion to retire any officercompulsorily if it was in the public interest so to do, and provisions of Art.311 of the Constitution would not apply to such an order of compulsoryretirement. The appellant's case further was that a high-powered Committee hadbeen set up under the chairmanship of the Chairman of the Public ServiceCommission to consider the cases of all such officers whose retention in publicservice after twenty-five years of service was not in the public interest andthat Committee recommended the compulsory retirement of the respondent. Thatrecommendation was put up before the Home Minister of the Government ofRajasthan, who accepted the findings and recommendation of the Committee. Thematter was then put up before the Chief Minister who agreed with the HomeMinister and thereafter the Inspector General of Police was directed to orderthe retirement of the respondent.

3. When the matter came to be heard in the High Court it was submitted onbehalf of the respondent that under r. 31(vii)(a) of the Rules of Business(hereinafter referred to as the Business Rules), all cases of compulsoryretirement where the appointing authority is the Government have to besubmitted to the Governor and the Chief Minister. As in the present case thematter was admittedly not submitted to the Governor, the order of compulsoryretirement even if it was made by the Government was not legal as it wasagainst the Business Rules. The reply of the appellants to this contention wasthat r. 31(vii)(a) of the Business Rules only applied to that kind ofcompulsory retirement which was inflicted as a punishment under r. 14 of theClassification Rules and not to other cases of compulsory retirement. The HighCourt however accepted the contention of the respondent that r. 31(vii)(a) ofthe Business Rules applied to a case of compulsory retirement under r. 244(2)of the Service Rules, and as the papers had not been submitted to the Governorthe order of compulsory retirement in the present case was bad. It thereforeallowed the writ petition and set aside the order.

4. The main question that falls for consideration therefore is whether acase of compulsory retirement under r. 244(2) of the Service Rules has to besubmitted to the Governor under r. 31(vii)(a) of the Business Rules. There arethree kinds of compulsory retirement provided in the various rules relating toservices in Rajasthan. Firstly, compulsory retirement on proportionate pensionis provided as a penalty under r. 14 of the Classification Rules and this canbe ordered whatever may be the length of service of a civil servant. Secondly,compulsory retirement is provided by r. 56 of the Service Rules as a matter ofcourse on a civil servant reaching the age of superannuation, namely, 55 years.And thirdly, compulsory retirement may be ordered under r. 244(2) of theService Rules which provides that the Government retains an absolute right toretire any government servant after he has completed 25 years of qualifyingservice without giving any reason and no claim to special compensation on thisaccount will be entertained. This right however will not be exercised exceptwhen it is in public interest to dispense with the further service of agovernment servant.

5. The contention on behalf of the respondent in the High Court was that allkinds of compulsory retirement have to be referred to Governor under r.31(vii)(a) of the Business Rules and reliance in this connection was placed onthe language of the rule. It is therefore necessary to set out r. 31(vii)(a) infull.

(i) * * *

(ii) * * *

(iii) * * *

(iv) * * *

(v) * * *

(vi) * * *

(vii) (a) Proposals fordismissing, removing or 'compulsory retiring of any officer where theappointing authority is the Government.

(b) Where a review petition isproposed to be rejected and it is against an order issued after submission tothe Governor under item (vii)(a) of Rule 31.

(c) In a case where, on review,the Governor decides to enhance the penalty already imposed and the enhancedpenalty is one of dismissal, removal or compulsory retirement of an officerwhose appointing authority or appellate authority is Government.'

6. There is no doubt that the words 'proposals for..... compulsoryretiring of any officer where the appointing authority is the Government'appearing in item (vii)(a) are general and are not qualified by the words'as penalty' and may be open to the interpretation that all the threekinds of compulsory retirement mentioned above must be referred to theGovernor. But reading these words in item (vii)(a) in the collocation in whichthey appear it seems to us that when that item talks of 'compulsory retiringof any officer' it is referring to compulsory retirement as a penalty. Thewords 'compulsory retiring of any officer' follow the words'dismissing' and 'removing'. Now dismissing and removingare penalties provided by r. 14 of the Classification Rules and it seems to ustherefore that in the collocation in which the words 'compulsoryretiring' appear in item (vii)(a) they must be read as a penalty likedismissing and removing. Besides reference to cls. (b) and (c) of item (vii) towhich the High Court did not refer at all would enforce this conclusion. Clause(b) says that 'where a review petition is proposed to be rejected and itis against an order issued after submission to the Governor under item (vii)(a)of Rule 31', the matter must be referred to the Governor, Clause (b)therefore refers to a review petition relating to orders passed under item(vii)(a) for dismissal, removal or compulsory retirement. Now there can hardlybe any reason for a review petition in the case of compulsory retirement onreaching the age of superannuation i.e. 55 years under r. 56 of the ServiceRules. We further find that review petitions are provided under theClassification Rules in Part VII and r. 34 of the Classification Rules inparticular provides for Governor's powers to review. It is obvious that whenclause (b) speaks of a review petition, it must be referring to the reviewunder Part VII of the Classification Rules. Clause (b) therefore which isconfined to cases under clause (a) which speaks of dismissal, removal or compulsoryretirement, shows that all these are penalties as provided in r. 14 of theClassification Rules. Further clause (c) provides that 'where, on reviewthe Governor decides to enhance the penalty already imposed and the enhancedpenalty is one of dismissal, removal or compulsory retirement of anofficer' the matter must be referred to the Governor. This clause makes itperfectly clear that the compulsory retirement referred to therein is a case ofpenalty and there can in our opinion be no doubt when we read this clause withclause (a) that compulsory retirement mentioned therein must also be of thenature of a penalty. Taking all the three clauses of item (vii) as a whole, itappears that item (vii) provides for a complete scheme with reference to threekinds of penalties, namely, dismissal, removal and compulsory retirement andmakes it incumbent that cases of this kind must be referred to the Governor. Wecannot therefore agree with the High Court that compulsory retirement providedin item (vii)(a) includes all the three kinds of compulsory retirement. It musttherefore be held that the contention of the appellants that compulsoryretirement provided in item (vii)(a) is compulsory retirement as a penalty andnot compulsory retirement of the other two kinds, namely, (1) compulsoryretirement on attaining the age of superannuation and (2) compulsory retirementunder r. 244(2), neither of which is a punishment is correct. In particularNote 2 of r. 244(2) makes it perfectly clear that action thereunder is not apenalty. This is further made clear by Explanation (vi) to r. 14 of theClassification Rules, which provides that 'compulsory retirement of aGovernment servant in accordance with the provisions relating to hissuperannuation or retirement' is not a penalty. Rule 56 of the ServiceRules is a rule relating to superannuation and r. 244(2) of the Service Rulesis a rule relating to retirement and both of them do not amount to penalties inview of this Explanation. We are therefore of opinion that r. 31(vii)(a) whenit speaks of compulsory retiring of an officer speaks of compulsory retirementas a penalty and not compulsory retirement on reaching the age ofsuperannuation or under r. 244(2). It is therefore not necessary to submit thepapers with respect to compulsory retirement of the respondent under r. 244(2)to the Governor. This was the only ground on which High Court allowed the writpetition and therefore the appeal must succeed.

7. It is however urged on behalf of the respondent that r. 244(2) of theService Rules contemplates an order of compulsory retirement by Government andthe order in the present case was not passed by the Government but by theInspector General of Police. It is further urged that if it is an order of theGovernment it should be in the form required by Art. 166 of the Constitution,and as it is not in that form there is in law no order of the Governmentordering the compulsory retirement of the respondent. The order is in theseterms :-

 ................................................................

(2) Shri Sripal Jain s/o ShriSohanlal, C. I. Sanganer, Distt. Jaipur.

 .................................................................

8. There is no doubt that this order is not in the form required under Art.166 of the Constitution. But it is well settled that any defect of form in theorder would not necessarily make it illegal and the only consequence of theorder not being in proper form as required by Art. 166 is that the burden isthrown on the Government to show that the order was in fact passed by it. Ithas been stated on behalf of the appellants that the order in question wascommunicated by the Inspector General of Police on the direction of theGovernment. It will be noticed that the order is in the passive voice. It doesnot say in the active voice that the Inspector General of Police ordered theretirement of the officers mentioned therein, though the impression that aperson will get from it certainly is that the order of retirement was beingpassed by the Inspector General of Police. Therefore, the burden was thrownbecause of this defect in the form of the order on the appellants to show thatin fact the order was passed by the Government. That has in our opinion beenshown by the production of papers from the relevant file by the appellants.That shows that the recommendation of the high-powered Committee was approvedby the Home Minister and the Chief Minister and the order of compulsoryretirement was thus passed by the Government of Rajasthan. In this connectionwe may refer to r. 21 of the Business Rules. It says that cases shallordinarily be disposed of by or under the authority of the Minister-in-chargeexcept as otherwise provided by any other rule. The only exception is r.31(vii)(a) and that we have held does not apply to a case of compulsoryretirement under r. 244(2). In these circumstances the order was of Government,though it was communicated by the Inspector General of Police and its form wasdefective. In the circumstances the order of retirement having been passed by aproper authority cannot be said to be invalid in law.

9. It is further urged that under the Rajasthan General Clauses Act, No.VIII of 1955, 'Government' or 'the Government' includesboth the Central Government and any State Government under s. 32(33) and'the State Government' means under s. 32(75) as from November 1,1956, the Governor, and therefore when r. 244(2) requires an order by theGovernment, there should be an order of the Governor. Definitions under s. 32are however to be read subject to anything repugnant in the subject or contextor to any contrary intention, and that makes us back to the Business Rulesframed under Art. 166 of the Constitution, where the power to deal with a caseof this kind is given to the Minister-in-charge under r. 21. The definitionstherefore of 'Government' and 'the State Government' in theRajasthan General Clauses Act are of no help to the respondent once it is heldthat r. 31(vii)(a) of the Business Rules when it speaks of 'compulsoryretiring of any officer' refers only to compulsory retirement as a penaltyunder r. 14 of the Classification Rules and not to the two other kinds ofretirement (namely, superannuation under r. 56 or retirement under r. 244(2) ofthe Service Rules).

10. The appeal is therefore allowed and the order of the High Court setaside. In the circumstances we pass no order as to costs.

11. Appeal allowed.


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