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R.D. Malhotra Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 555 of 1973
Judge
Reported inILR1976Delhi414; 1976RLR448
ActsAll India Service (Death-Cum-Retirement Benefits) Rules, 1958 - Rule 16(3)
AppellantR.D. Malhotra
RespondentUnion of India and ors.
Advocates: G.S. Vohra,; R. Dhawan,; Urmila Kapoor and;
Excerpt:
.....the basis that the 1958 rules above-mentioned do not apply to him as a whole, inasmuch as he was a state service promotee to the i.a.s. and was governed by the new pension rules of the punjab government, and that he had opted only for the benefits under rule 22 of the central rules. he further contended that no regulations having been framed by the central government under the all-india services (conditions of service residuary matters) rules, 1960, and so, the petitioner was entitled to benefits under the punjab rules, and not under the 1958 rules as contended by the respondents; alternatively that his compulsory retirement was invalid, because compulsory retirement under rule 16 of the 1958 rules could be ordered only when he completed 50 year and not thereafter.; that a reading of..........it is contended by him that the 1958 rules as a whole do not apply to him inasmuch as he was a state service promotee to the indian administrative service . and is governed by the new pension rules, 1951 of the government of punjab and he had opted only for the benefits under rule 22 of the 1958-rules. he further contends that no regulations have been framed by the central government under the all india services (conditions of service residuary matters) rules, 1960 and so, the petitioner is entitled to benefits under the punjab rules and not under the 1958-rules, as contended by the respondents. in the alternative, as noticed earlier, the petititoner prays a that his compulsory retirement is invalid, inter alia, for the reason that compulsory retirement under rule 16 of the 1958.....
Judgment:

Prakash Narain, J.

(1) This petition under Article 226 of the Constitution of India primarily raises the question of the scope and applicability of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 vis-a-vis persons promoted to the Indian Administrative Service from State Civil Services. As an alternative and subsidiary question it also raises the point as to whether a member of the Indian Administrative Service can be compulsorily retired at any tune after be has attained the age of 50 years and if so at what point or points of time in his service.

(2) The petitioner was born on August 29, 1919. He was recruted in the Punjab Civil Service (Executive Branch) in February, 1942 on the basis of a competitive examination. He was promoted to become a member of the Indian Administrative Service with effect from December 21, 1961 and with effect from November 1, 1966 was allotted to the State of Punjab. On July 1, 1971 the petitioner was served with a notice under sub-rule (3) of Rule 16 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, hereinafter referrd to as the 1958-Rules. The notice contained an order that as be had already attained the age of 50 years he is to be retired in public interest on the expiry of three months from the date of the service of the said order. The petitioner protested against this compulsory retirement but to no avail. Thereupon, he filed a petition under Article 226 of the Constitution of India (being Civil Writ No. 31S6 F of 1971) in the Punjab and Haryana High Court on August 23, 1971. This petition was dismissed by that Court on May 23, 1972. The petitioner filed a petition for special leave to appeal in the Supreme Court of India on August 14, 1972. In the Supreme Court the petitioner was allowed to withdraw the writ petition and so, the writ petition was dismissed as withdrawn and the special leave petition was disposed of accordingly. Thereafter the petitioner filed the present writ petition in this court.

(3) Prior to the filing of the writ petition in this court the petitioner applied for being paid his pensionary benefits. It is contended by him that the 1958 Rules as a whole do not apply to him inasmuch as he was a State Service promotee to the Indian Administrative Service . and is governed by the new Pension Rules, 1951 of the Government of Punjab and he had opted only for the benefits under Rule 22 of the 1958-Rules. He further contends that no regulations have been framed by the Central Government under the All India Services (Conditions of Service Residuary Matters) Rules, 1960 and so, the petitioner is entitled to benefits under the Punjab Rules and not under the 1958-Rules, as contended by the respondents. In the alternative, as noticed earlier, the petititoner prays A that his compulsory retirement is invalid, inter alia, for the reason that compulsory retirement under Rule 16 of the 1958 Rules could only be ordered when the petitioner attained the age of 50 vears and not at any point of time thereafter before he attamed the age of 58 years. It has also been pleaded by the petitioner that his compulsory retirement was as a result of the personal bias of Shri S. S. Grewal. respondent No. 3, who was the Chief Secretary, Punjab at the time when the order of compulsorily retiring the petitioner was passed. At the bar the plea of mala fides was not pressed.

(4) With regard to the first question as to whether the 1958 Rules are applicable or not to the petitioner, the whole thing really depends upon the construction to be placed on clause (a) of Rule 2. In order to appreciate the contentions raised it will be advantageous to read Rule 1 of 1958 Rules. This reads as under :-

'1.These rules may be called the All India Services (Deathcum-Retirement Benefits) Rules, 1958.

2.(a) Subject to the provisions of clause (b) of this sub-rule, they shall apply to all persons who retired from the Service on or after the 29th October, 1951.

(B)They do not apply to-

(I)(a) those, who become members of the Service in accordance with clauses (a) and (b) of sub-rule (1) of rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954;

'(b) such of those, who, being members of the Service in accordance with clause (e) of sub-rule (1) of rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954 do not opt for these rules within a period of three months from the 13th January, 1961; and

(c) such of those; who being members of the Service in accordance with clause (a) of sub-rule (1) of rule 3 of the Indian Police Service (Recruitment) Rules, 1954, did not opt for the Liberalized Pension Rules, as applicable to officers of the Central Services, Class I; (ii) (a) those members of the Service, who would have been confirmed prior to the 21st October, 1946, in the Indian Police but for the ban on such confirmation, and who did not opt for these rules before the 2nd December, 1959; and

(d) those members of the Service who would have been confirmed prior to the 21st October, 1946, in the listed posts in the Indian Civil Service but for the ban on such confirmation, and who do not opt for these rules within three months from the 13th January, 1961.

(III)those members of the Service who were promoted to the Service from the State Services, or were appointed to the Service under the Indian Administratvie Service (Extension to States) Scheme or the Indian Police Service (Extension to States) Scheme and who under orders issued by the Central Government before the coming into force of these rules were given an option in the matter of pension rules by which they would be governed, and who in exercise of that option, chose to be governed by the Suprior 'Civil Services Rules and the Civil Service Regulations, or the 'pension rules of the State concerned, as the case may be. Provided that the members of the Service to whom these rules do not apply, except those especified in subclause

(I)(A)above, who were in service on the 1st January, 1964, may opt to be governed by these rules in accordance with such orders as may be issued by the Central Government in this behalf.'

(5) I may also read Rule 16 at this stage which will be relevant not only for the decision of the first point but also to second point. The relevant portion of this rule read as under :-

'16.Superannuation gratuity or pension.-

(1) A member of the Service shall be required compulsorily to retire from the service with effect from the date on which he attains the age of 58 years :

PROVIDED that he may be retained in service after the date of compulsory retirement on public grounds which shall be recorded in writing :

(A)for an aggregate period not exceeding six months by the State Government; and

(B)for any period beyond six months, with the sanction of the Central Government :

PROVIDEDfurther that a member of the Service shall not be retained in service beyond the age of 60 years except in very special circumstances.

(2)..... .....

(3)The Central Government, in consultation with the State Government may, require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 50 years to retire in the public interest provided that at least three months previous notice in writing will be given to the member concerned.

(4)A superannuation gratuity or pension shall be granted to a member of the service who is required to retire under subrule (1) of this rule.'

(6) Mr. G.S. Vohra, learned counsel for the petitioner, contends that Rule 16(3) would not be attracted in the case of the petitioner, be being a promotee from State Civil Service, as he never opted for the rules and would fall under the exception given in sub-clause (iii) of clause (b) of sub-rule (2) of Rule 2. It is also contended that inasmuch as the petitioner had opted for being governed by the Punjab State Rules, 1951 and the family pension postulated by Rule 22 of the 1958 Rules it shows that unless he had opted to be governed by Rule 16, sub-rule (3) of Rule 16 could not be invoked against him and if that be correct, not only is his compulsory retirement illegal but the pension as sought to be given under the 1958 Rules is not the pension payable to the petitioner but he has to be paid pension as computed under the Punjab Rules as well as the extraordinary pension for which he opted.

(7) No precedent or authority has been cited in support of the contention by either side. So, it is a case of first impression and pure interpretation of the relevant rules. In my opinion there is no force in the petitioner's contention. A reading of clause (a) of Rule 2 of the 1958 Rules shows that the 1958 Rules apply to all members of the I.A.S. unless they fall under one of the exceptions given in clause (b) of Rule 2. Indeed, unless otherwise specifically so stated in any rule, all the rules would be attracted to members of the Service, unless he falls in one of the excepted categories under clause (b) of Rule 2. The 1958-Rules obviously take effect on retirement or when a member of an All India Service becomes eligible or his family becomes eligible for any of the benefits postulated by the various rules. Reading Rule 2 (a) as I do, the 1958 Rules apply to all persons A except those mentioned in clause (b). I am not impressed by the argument that the use of the word 'retired' in Rule 2(a) refers only to persons who retired between October 29, 1951 and the promulgation of the 1958 Rules. Indeed, to give it that meaning would make the rule atoise for those who retired after the promulgation of the Rules. This cannot be the meaning given, as contended by Mr. Vohra, as would be evident from a reading of the various Rules. For example, if we read Rule 15 it speaks of retirement from service of a member of the Service who may be declared, inter alia, unfit for Service by a medical board. Surely, this rule could not be invoked in the case of persons who retired betwen 1951 and 1958 before the rules were promulgated. Similarly, there was no need for providing for superannuation gratuity or pension under Rules 16 or 17 for persons who had already retired prior to the promulgation of the rules, If the 1958 Rules v/ere to be applicable only to persons who retired between 1951 and 1958 then the whole scheme would have been different.

(8) Coming now to the argument as to whether exception (iii) in clause (b) of rule (2) is attracted to the petitioner, the very reading of the relevant clause makes it obvious that it is not attracted in petitioner's case. Before this exception can be attracted several conditions have to be fulfillled, viz., (a) the persons concerned should be a member of the Service, (b) he must have been appointed a member of the Service on promotion from a State Service or appointed to the Service under the Indian Administrative Service . (Extension to State) Scheme or the Indian Police Service . (Extension to State) Scheme, (e) he under orders of the Central Government before coming into force of the 1958 Rules must have been given an option in the mater of Pension Rules, (d) in exercise of the said option he must have chosen to be governed other by the Superior Services Rules and the Civil Service Regulations or the Pension Rules of the State concerned. Unless all the four conditions are fulfillled a person would not fall under the said exception. The petitioner no doubt was a promotee from Punjab State Service but he did not before coming into force of the 1958 Rules give any option under orders of the Central Government to elect that he be governed by the Superior Civil Services Rules or the State Rules. That option he had exercised when he was still in State Service as admitted by him in paragraph 6 of the writ petition. thereforee, inasmuch as he does not fall under any of the exceptions given under clause (b) of rule (2) of 1958 Rules, rule (2) (a) would be attracted in his case because he retired from service after October 29, 1951.

(9) It was urged by the petitioner that he was called upon to exercise option under Rule 22 of the 1958 Rules which he did and so, it follows that unless he opted for Rule 16 it would not be attracted. I may read relevant part of Rule 22 here:-

'22.Family Pension.-(1) This rule applies to those members of the Service who were in Service on the 31st December, 1963 and who had specifically opted for the benefits of this rule under the orders issued by the Central Government.'

(10) Rule 16 has already been read by me. A comparative reading of the two rules shows that whereas under Rule 22 a specific option has to be exercised to get the benefit of this rule, no optiton is postulated by Rule 16. thereforee, unless a person falls under one of the exceptions in clause (b) of Rule (2) Rule 16 as a whole would be attracted in his case. It is only then that a retiring pension and death-cum-retirement gratuity has to be granted to a member of the Service who retires or is required to retire under Rule 16. Superannuation, gratuity or pension postulated by Rule 16 (4) and Rule 17 is claimable as of right. The special benefit postulated by Rule 22 becomes payable on the exercise of the specific option only. Thus, the scheme of the rules is that some rules apply automatically while others by exercise of specific option. Merely because specific options have been exercised in respect of benefits under some of the rules which provide for exercise of such option, it does not mean that the other rules would not be attracted if the option is not exercised. Indeed, there is no provision for exercise of option in the case of other rules.

(11) Mr. Vohra urged that the proviso to Rule 2 suggests that a person like the petitioner is not covered by Rule 2 (a). I cannot persuade myself to agree with this contention. The proviso speaks of an option being exercised by all those who are mentioned in clause (b) of Rule (2) except members of the Service who became so in accordance with clauses (a) and (b) of sub-rule (1) of Rule 3 of the Indian Administrative Service (Recruitment) Rules, 1954 and elect to be covered by the 1958 Rules. The petitioner obviously does not fall in the category of members of the Service who became so in accordance with clauses (a) and (b) of sub-rule (1) of Rule 3 of the Indian Administrative Service (Recruitment) Rules 1954. They are members of the Indian Civil Service not permanently allotted to the judiciary and members of the Indian Civil Service permanently allotted to judiciary who were holding executive posts from the date of the enforcemnt of the Constitution and who were declared by the Central Government to be members of Service in consultation with the A State Government at the time of the initial constitution of the Indian Administratiton Service.

(12) I, thereforee, hold that Rule 16 is attracted in the case of the petitioner. It is pertinent to note that it is not the petitioner's case that he ever exercised any option apart from an option under Rule 22 of the 1958 Rules after coming into force of the 1958 Rules or his being promoted to Indian Administrative Service . or under the orders of the Central Government while he was in the State Service.

(13) This brings me to the question as to whether the petitioner could be compulsorily retired as he was by the impugned order served on him on July 1, 1971. Admittedly, the petitioner had attained the age of 50 years by this time. Sub-rule (3) of Rule 16 does not postulate that the order for retirement or notice compulsorily retiring a member of the Service can be served only on his attaining the age of 50 years or on his completing 30 years qualifying service. A reading of this sub-rule makes it clear that a person cannot be compulsorily retired unless he has completed 30 years of qualifying service or has attained the age of 50 years. The normal age for compulsory retirement or superannuation is 58 years under Rule 16(1) but between the age of 50 and 58 years or at any time after completing 30 years of qualifying service, the Central Government in consultation with the State Government may require a member of the Service to retire in public interest. This rule is enacted to provide for what is now commonly known as 'weeding out the dead wood'. It can by no stretch of imagination be said that 'dead wood' can be weeded out only when a person attains the age of 50 years or has completed 30 years qualifying service and at no stage thereafter till the age of compulsory retirement. i.e. reaching the age of 58 years. Indeed, to put that construction would make the principle of 'weeding out the dead wood' ineffective.

(14) In view of my findings on merits given above, I have not dilated on the preliminary objections raised on behalf of the respondents as to the maintainability of the writ petition or it being barred by the principles of rest judicata on account of the earlier petition having been dismissed by the Punjab and Haryana High Court.

(15) I, thereforee, dismiss this petition with costs. Counsel's fee Rs. 250.00 .


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