(1) The question for decision before the Full Bench is whether the notice dated 23/09/1966, issued by the Secretary to Government of India under Rule 56(j) of the Fundamental and Supplementary Rules is Valid when admittedly the appropriate authority to issue this notice in this case was the President and the notice is signed by the Secretary to the Government of India and does nto Indicate that the appropriate authority formed an opinion that it was in public interest to retire the Government servant concerned.
(2) The petitioner joined service on 27/05/1929. On 13/06/1946, he was promoted to the post of Secretariat Superintendent Class Ii (Gazetted) and was later confirmed substantively on 24/04/1956 in the rank of Section Officer (Gazette). With effect from 22/01/1966, he was promoted and sent on deputation to a Senior Class I post as Administrative Officer,Central Mechanised Farm, Suratgarh. This appointment required the sanction of the President which was duly accorded and published in Part I. Section 2 of the Gazette of India. The petitioner contended that as a Ministerial Government servant,having been appointed substantively before Match 31, 1938,with a lien on the permanent post, he was governed by Fundamental Rule 56 Clause (c) and was entitled to be retimed inservice till be at tamed the age of 60 years on September 14,1971. In August, 1966, however, memorandum No. 2-40/66-Estt. I, dated 30/08/1966 was served on him and he was informed that the question of his retention in service beyond55 years of age was reviewed in terms of the Ministry of Home Affairs Memorandum No. 33/2/63-Estt(A) dated 3/12/1963 and that it was decided nto to retain him in service after he attained the age of 55 years on 14/09/1966 and that 'under F. R. 56(j) of the Fundamental and Supplementary Rules,Vol. I he will be deemed to have retired on the expiry of three months from the date of this Memorandum.' Later, however,in supersession of this Memorandum another notice No. 2-40/66-Estt. I, dated 23/09/1966 was sent to him which stated that he shall retire from service on the expiry of threemonths from the service of that notice. Invoking Articles 226 and 227 of the Constitution, the petitioner attacked this notice and prayed that the same may be quashed on the grounds mentioned in the petition. By order dated 2 6/04/1968, this petition was accepted by the learned Single Judge who held that the order of retirement passed against the petitioner was in contravention of provisions of Rule56(j) and was, thereforee, invalid and ineffective. The respondent aggrieved from this order, came up in appeal order clause 10 of the Letters Patent and the Division Bench having regard to the nature of the points involved and the reference tothe full Bench in an other case of a point urged in this case at that stage, that the impugned order was duly authenticated, referred this case also to a larger Bench and this is how this matters now before this Bench for decision.
(3) It is nto disputed by the learned counsel for the appellant that the action against the petitioner was taken under the provisions of Rule 56(j) of the Fundamental and Supplementary Rules and the notice was issued to him by the appropriate authority under this provision. Fundamental Rule 56(j) as substituted by the Fundamental (6th Amendment) Rules, 1965.hereafter called 'the Rules' reads as under :
'56(J').Notwithstanding anything contained in this Rule,the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant afterhe has attained the age of 55 years by giving him notice of nto less than 2 months in writing; Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before the 2 3/07/1956, and to a Government servant referred to in Clause (f).
NOTE1 : 'Appropriate authority' means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire.
NOTE2 : The three months notice referred to in clause(j) or clause (k) may be given before the Government servant attains the age of 55 years, provided that the retirement takes place after he has attained that age.'
(4) A bare reading of the Rules shows that before action can be taken under this Rule, the appropriate authority has (1)to form opinion that it is in public interest to retire the Government servant concerned after he has attained the age of 55years (2) then to serve a notice of nto less than three month son him. in writing. The appropriate authority according to note 1 appended to this rule means the authority which has the power to make the substantive appointment to the post from which the Government servant is required to retire. The petitioner in this case was admittedly, appointed by the President tothe post held by him at the time the impugned notice was served on him, and it is nto disputed before us that in this case the appropriate authority to take action against him under clause(j), Rule 56, was the President.
(5) The notice issued to the petitioner, copy of which has been filed on the record as Annexure 'F' is in the followingterms: 'No. 2-40/66-Estt. 1.Government of India Ministry of Food, Agriculture,Comnaunity Development and Corporation(Department of Agriculture)New Delhi, dated 23/09/1966NOTICESabjeet : Retirement from service -Notice to ShriT. S. Malhotra, Section Officer, of C.S.S.
INaccordance with para 6 of the Ministry of Home AffairsO.M. No. 33/18/62-Estts(A) dated the 30/11/1962,Shri T. S. Malhotra, a Section Officer of the C.S.S. in the cadre of the Ministry of Food, Agriculture, Community Development and Corporation (Department of Agriculture) at present on deputation as Administrative Officer, Central Mechanised Farm,Suratgarh is hereby given notice that he shall retime from service on the expiry of three months from the date of service of thisnotice on him. (This supersedes this Department Memo of even number dated the 30/08/1966.)'.
sd/-B. Sivaraman, to the Government of India.Shri T. S. Malhotra, Administrative Officer, Central Mechanised Farm, Suratgarh.'
(6) This notice does nto state that any one had exercised his mind and formed an opinion that it was in public interest to retire the petitioner nor has anything been placed on the record on referred to at the time of arguments .to show that this had been done in this case. It is signed by Shri B. Sivaraman, Secretary to the Government of India. At the stage when the matter was argued before the Division Bench, a suggestion was made that this notice was an instrument duly authenticated within the meaning of sub-clause (2) of Article 77 of the Constitution but this Argument has nto been taken new. Nor has any independent evidence been placed on the record to show that the notice was made and executed In the name of the President within the first part of sub-clause (2) of Article 77 ofthe Constitution.
(7) Shri Prakash Narain, learned counsel appearing for theappellant, has now referred as to Rules 3 and 11 of the Government of India, Transaction of Business Rules, 1961. These Rules simply provide that all business allotted to a Department under the Government of India (Allocation of Business)Rules 1961, shall be disposed of by or under the general or specific directions of 'the Ministers in charge and that in each Department the Secretary shall be the administrative head thereof responsible for the proper transaction of business and the observance' of these Rules. The Transaction of Business Rules,however, only lay down the framework in which the Minister,the Secretary and the Officers subordinate to them have. to Act they do not, confer powers on particular officers to act on behalf of the President in particular matters. On the other hand,Rule 3 thereof implies that other provisions of these Rules provide for consultation with other Departments and submission of specified eases to the Prime Minister, the Cabinet and its Committees and the President. It also says that the rest of the business allotted to the Department shall be disposed of by or under the general or specific directions of the Minister-in-charge.It is necessary, thereforee, to know the general or specific directions of the Minister-in-charge as to which type of cases are to be disposed of by whom, viz. by the
Minister, the Secretary or by the other Officers. Rule II does not, show that the Secretary has to discharge all the other business. The appellants have, thereforee, failed to show to the Court that the Secretary had been empowered to compulsorily retire the respondent by virtue of a general or specific directions of the Minister-in-charge.
(8) During the arguments we sought to know from the learned counsel for the appellant as to to which type of cases are to be dealt with by whom in the Department or the Ministry. The learned counsel invited our attention to Part Ii of the office order No. 10 of 1962 dated 9/05/1962 at page 229 of therecord. Though this document has nto been referred to in the pleadings and this appeal can be disposed of without reference to it, it may be observed that a reference to this document would confirm what we have said above. This document is an order which fills in the details, which are nto covered by RuleNo. 3 of the Transaction of Business Rules. Paragraph 2 of this order states that all cases of appointments to Class I posts, which do nto require the approval of the Appointment Committee ofthe Cabinet and relate to subjects mentioned in paragraph 1of the order, would be submitted to the Minister of State for Agriculture or the Deputy Minister for approval. The appointment of the respondent was to the Suratgarh Agriculture Farm.They very first item of group A in the first paragraph of the Order deals with cases relating to agricultural production. Presumably,therefore, the appointment to the Suratgarh Agricultural Farm is included in this item. Alternatively, group C in paragraph 1deals with all other cases relating to the Department of Agriculture. This residuary item would include the Suratgarh Agricultural Farm if it is nto included in the first item of group. A.In either case, a reference for approval to one of the Ministers is necessary for appointment to Class I Post in the Suratgarh Agricultural Farm, like the one held by the respondent. According to F. R. 56(i), the appropriate authority means the authority.which has the power to make substantive appointments to the post from which the Government servant is required to retire.
SUCH an authority in this case was, thereforee, one of the Minister mentioned in the order referred to above. The learned counsel for the appellant had to concede that there is nothing to showthat any such reference for approval was made to any of the Ministers before the respondent was asked to retire compulsorily.This would mean that the appropriate authority has nto ordered the compulsory retirement of the respondent. It was ordered by the Secretary, who was nto the appropriate atuhority.
(9) In view of the above reasons the appeal is dismissed, but without costs.