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Bhola Ram Vs. Lt. Governor, Delhi - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 2 of 1973
Judge
Reported in20(1981)DLT25b; ILR1981Delhi733
ActsConstitution of India - Article 310; Liberalised Pension Rules - Rule 2(2)
AppellantBhola Ram
RespondentLt. Governor, Delhi
Advocates: R.P. Kathuria and ; K.S. Bindra, Advs
Cases ReferredMayenghoam Rajamohan Singh v. Chief Commissioner
Excerpt:
.....310--competent authority must form an opinion that the compulsory retirement of an officer was in 'public interest'--rule 2(2) of appendix 41 of the liberalised pension rules.; in the instant case, appellant a head constable in the delhi police force was compulsorily retired from service by an order dated 6-6-1968, made by the additional superintendent of police, central district, delhi. before passing the order retirement, appellant was given three months' notice under rule 2(2) of appendix 41 of the liberalised pension rules. prior to the order dated 6-6-1968, special judge, delhi on 27-5-1968 convicted and sentenced the appellant to two and a half years' rigorous imprisonment and a fine of rs. 1000 on a charge under section 5(2) of the prevention of corruption act, 1947 and under..........first court of appeal, and was also against the provisions contained in rule 16.2 of the punjab police rules which required that final departmental orders should be postponed until the appeal or revision proceedings had been decided by the high court where the government servant had been convicted in the criminal case. the virus of the order of retirement were also challenged on the ground that no reasons had been assigned in support of the order and the order did not indicate that the compulsory retirement had been ordered in public interest and that the appropriate authority had applied his mind in the required way. it was also alleged that the additional superintendent of police was not his appointing authority and, thereforee, not competent to pass this order.(7) the stand taken.....
Judgment:

G.C. Jain, J.

(1) The appellant, Bhola Ram, has preferred this appeal, under clause 10 of the Letters Patent, against the judgment of the learned Single Judge, dated October 24, 1972, dismissing his writ petition.

(2) The appellant joined Police service as a Foot Constable on March 28, 1933 in the North West Frontier Province (now in Pakistan). He was promoted as a Foot Constable selection grade on March 1, 1934 and as officiating Head Constable on November 26, 1944 but was reverted as Constable selection grade with effect from March 27, 1945. He was again promoted as officiating Head Constable with effect from April 10, 1945 and was reverted as Foot Constable time scale on August 9. 1945. He was re-promoted as Foot Constable selection grade on March 1, 1946.

(3) After migrating to India, on the partition of the country, the appellant was appointed as a Constable in the Delhi Police Force on October 29, 1947, and was promoted as Head Constable with effect from October 30, 1947. He was appointed as Assistant Sub-Inspector with effect from August 3, 1953 in a temporary vacancy but was reverted to the post of Head Constable in September 1953 due to the termination of the said temporary vacancy. He was again promoted as officiating Assistant Sub-Inspector with effect from November 1, 1953 but was reverted to the rank of Head Constable, having been found unsuitable to hold the said post of Assistant Sub-Inspector, vide order dated July .20, 1957 (Annexure C) passed by the Assistant Inspector General of Police, Delhi. The appellant made representations against the order of reversion but to no effect. Ultimately, the appellant filed a civil suit claiming three reliefs, namely, (i) a declaration that the said order of reversion dated July 20, 1957 was illegal, ultra virus and ineffective and he continued to hold the rank of Assistant sub inspector; (ii) recovery of Rs. 319.50 towards the difference in the pay for the period July 20, 1957 to February 28. 1961; and (iii) for quashing the adverse entries for the period April 1, 1957 to July 29, 1957. The suit was partly decreed by Shri Joginder Nath, Subordinate Judge First Class, Delhi, vide his judgment dated August 4, 1966 (Annexure E). The Learned Subordinate Judge granted the first two reliefs but refused to quash the adverse entries. The appeal filed by the Government against the said judgment and decree was dismissed by the learned District Judge vide judgment dated April 12, 1967.

(4) During the pendency of the civil suit the appellant was again promoted as Assistant Sub-Inspector with effect from January 9, 1960 but was reverted as Head Constable with effect from September 5, 1960. The appellant had attained the age of 55 years on January 31, 1967 and was not retired.

(5) On July 21, 1967 a criminal case was registered against the appellant under F.I.R. No. 144, Police Station Tilak Nagar, under section 5(2) of the Prevention of Corruption Act, 1947 and tinder section 161 of the Indian Penal Code. Consequent to his arrest in the said case, the appellant was placed under suspension with effect from July 21, 1967 (A.N.), vide order No. 9917-25 Est. dated July 24, 1967 (Annexure H). The appellant was convicted and sentenced to two and a half years' rigorous imprisonment and a fine of Rs. 1,000 by the learned Special Judge, vide his judgment dated May 27, 1968. The appellant filed an appeal in this Court. The appeal was accepted and he was acquitted by Jagjit Singh, J on July 16, 1970.

(6) During the pendency of the criminal case, the appellant was served with three months' notice, dated April 16, 1968, of his retirement, as required under rule 2(2) of Appendix 41 of Liberalised Pension Rules, from the date of the service of the notice and ultimately an order dated June 6, '1966 (Annexure B), retiring the appellant, with effect from July 25, 1968, was made by the Additional Superintendent of Police, Central District, Delhi. The appellant made representations against the said order, but to no effect. Ultimately, he filed a writ petition for quashing the notice dated April 16. 1968 (Annexure A), for declaration that the appellant was in service uptil January 31, 1970, i.e. the date when he completed the age of 58 years, and was entitled, to all the benefits of gratuity and allowances, etc., as he would have been entitled as an Assistant Sub-Inspector had he been retired on January 31, 1970. He also prayed for a declaration that he had worked as Assistant Sub-Inspector up to January 31, 1965 and was entitled to remuneration and allowances of the rank of Assistant Sub-Inspector for the period March 1, 1961 to January 31, '1965. The last relief was claimed on the allegations that in spite of the decree of the civil court dated August 4, 1966 the appellant was not paid pay and allowances of the rank of Assistant Sub-Inspector for the period March 1, 1961 to January 31, 1965. The effect of the civil court decree, according to the appellant, was that till the date of judgment he was to be deemed as Assistant Sub-Inspector of Police irrespective of the fact that he had been promoted on January 9, 1960 as Assistant Sub-Inspector and again reverted as Head Constable on September 5, 1960. The order of retirement was challenged on the allegations that the same was contrary to the instructions of the Government of India, Ministry of Home Affairs, contained in their Office Memorandum No. 43/57/64/AVD. dated November 2, 1965 (Annexure B-3) which required that a Government servant should not be retired compulsorily before his appeal had been decided in the first court of appeal, and was also against the provisions contained in Rule 16.2 of the Punjab Police Rules which required that final departmental orders should be postponed until the appeal or revision proceedings had been decided by the High Court where the Government servant had been convicted in the criminal case. The virus of the order of retirement were also challenged on the ground that no reasons had been assigned in support of the order and the order did not indicate that the compulsory retirement had been ordered in public interest and that the appropriate authority had applied his mind in the required way. It was also alleged that the Additional Superintendent of Police was not his appointing authority and, thereforee, not competent to pass this order.

(7) The stand taken by the respondents, as disclosed by the counter-affidavit filed on their behalf by Shri I. M. Mahajan, D.I.G. Police, Delhi, was that during the pendency of the civil suit the appellant had been promoted as Assistant Sub-Inspector but was again reverted as Head Constable with effect from September 5, 1960 and was again promoted as Assistant Sub-inspector with effect from February 1, 1965, that the order of reversion dated September 5, 1960 was never challenged before any court and in the circumstances he was rightly shown as Head Constable during the period September 5, 1960 to February 1, 1965, and he was not entitled to any pay or allowances of the rank of Assistant Sub-Inspector for that period. The appellant, it was averred, was not retired compulsorily because of the case under the Prevention of Corruption Act. On the other hand, he had completed thirty years of qualifying service and was retired under rule 2(2) of the Liberalised Pension Rules and the order was in accordance with the Rules. The appellant was alleged to be under the administrative control Of the Additional Superintendent of Police, Central District, Delhi, who was competent to pass the impugned order.

(8) Rule 2(2) of the Liberalised Pension Rules, under which the impugned order dated June 6, 1968 has been passed, reads as under:

'(2)An officer may retire from service any time after completing 30 years' qualifying service provided that be shall give, in this behalf, a notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire. Government may also require an officer to retire any time after he has completed 30 years' qualifying service, provided that the appropriate authority shall give, in this behalf; a notice in writing to the officer, at least three months before the date on which he is required to retire, or three months' pay and allowances in lieu of such notice.'

FORthe purpose of implementation of the above rule, the Government of India has issued instructions. The relevant portion of the instruction contained in Government of India. Ministry of Finance, letter No. F. 29(2)-EV/56, dated September 11, 1956, reads as under:

'THEretirement under paragraph 2(2) of these rules can be effected, when such retirement is necessary the public interest. The grounds of public interest may well be that the officer has ceased to be efficient or is suffering from a physical infirmity.......'

THEaforesaid instructions are reproduced at page 3 of Swamy's Compilation of the Civil Service Regulations and Liberalised Pension Rules by Shri P. Muthuswamy.

(9) Before the learned Single Judge four main contentions were raised, namely, (i) Rule 2(2) of the Liberalised Pension Rules did not indicate any guidelines for the exercise of the power under that rule and, thereforee, it offended Articte 14 of the Constitution; (ii) Shri Rajinder Mohan, Additional Superintendent of Police, Central District, Delhi, was not competent to make confidential reports on the working of the appellant and his report could not be looked into and in any case the appellant could not be compulsorily retired during the pendency of the criminal case ;-(iii) the Additional Soperintendent of Police, Central District, Delhi, who passed the impugned order, was not competent to do so ; and (iv) the appellant was entitled to the difference in the emoluments actually paid and to which he was entitled for the period in dispute. All these contentions were negatived by the learned Single Judge vide his judgment dated October 24, 1972. As regards the first contention, it was held that no doubt rule 2(2) of the Liberalised Pension Rules did not provide the principle on which the Government servant, who had completed 30 years of qualifying service, could be compulsorily retired, but the Government of India had laid down sufficient guidelines in that behalf and that the Government could not supplement the rules by administrative instructions where the rules were silent on any particular point. Reliance was placed on a decision of the Supreme Court in Sant Ram Sharma v. State of Rajasthan : (1968)IILLJ830SC . It was further held that it was implied in the said rule that the power to retire an officer on his having completed 30 years' qualifying service was to be exercised in public interest. In support of this view reliance was placed on a decision of Allahabad High Court in Hardwari Lal v. Divisional Engineer, Telegraphs, Allahabad and Ors. 1972 S.L.R. 279. It was also observed that the appellant had accepted three months' salary and by this action he had disentitled himself to urge that rule 2(2) of the Liberalised Pension Rules was arbitrary or ultra vires. Regarding the second contention, it was held that Shri Rajinder Mohan, Additional Superintendent of Police, was competent to record the confidential report of the appellant for the period April 1, 1967 to November 30. 1967 inasmuch as the appellant was under the administrative control of the said Additional Superin- tendent of Police at that time. The plea that he could not be compulsorily retired during the pendency of the criminal case by virtue of provisions contained in rule 16.2 of the Punjab Police Rules was declined on the ground that the said provisions were not attracted. Regarding the competency of the Additional Superintendent of Police, Central District, Delhi; to pass the impugned order, it was held that he had the power to make substantive appointment to the post of an Assistant Sub-Inspector and was, thereforee, competent to retire the appellant. It was also held that the notice of retirement had been issued under the orders of the Inspector General of Police. The claim regarding the recovery of difference in emoluments was refused being barred by time. In consequence, as stated above, the writ petition was dismissed. Hence this appeal.

(10) Learned counsel for the appellant has not pressed the claim for declaration that he was entitled to remuneration payable to the appellant as Assistant Sub-Inspector for the period March 1, 1961 to January 31, 1965 and rightly so because this claim was hopelessly barred by time.

(11) The appellant's learned counsel, however, vehemently assailed the findings of the learned Single Judge regarding the validity of the impugned order of compulsory retirement. In this behalf he urged two arguments. The first is that rule 2(2) did not lay down any criterion or ground for the exercise of the power given under that rule and was, thereforee, void being vocative of Article 14 of the Constitution of India. In support of this contention reliance was placed on G. P. Nasrikar and others v. The Union of India by its Secretary, Ministry of Communications, New Delhi, and Ors., 1971 (2) S.L.R. 916. The second contention raised by the learned counsel for the appellant is that the order of compulsory retirement had not been passed in conformity with the requirements of rule 2(2) of the Liberalised Pension Rules.

(12) On behalf of the respondents, the learned Government counsel contended that rule 2(2) was not void inasmuch as It was implied in the rule itself that this power would be exer- cised in public interest and that, in any case, the instructions issued by the Government of India supplemented the rule and laid down the criterion or the grounds for exercising these powers. Reliance was placed on a single Bench decision of the Allahabad High Court in Hardwari Lal v. Divisional Engineer, Telegraphs, Allahabad and Ors. 1972 S.L.R. 279 and two decisions of Andhra Pradesh High Court in Jamsheed Khan v. The Senior Superintendent of Post Offices, Hyderabad Division, Hyderabad and Anr.. 1973 (2) S.L.R. 69 and Ahmed Ali Khan v. Union of India and Others 1975 Lab. I. C. 523. As regards the second contention, it was urged that the order was passed! in conformity with rule 2(2).

(13) We are of the opinion that we should not go into the first contention in this case because we are satisfied that the impugned order was not made in conformity with rule 2(2) of the Liberalised Pension Rules. True, compulsory retirement involves no civil consequences. The rules providing for compulsory retirement merely embodied one of the facets of the 'pleasure doctrine' contained in Article 310 of the Constitution. However, the order of compulsory retirement must be in conformity with the rules. Rule 2(2), which has been uoted above, lays down that only an officer who had completed 30 years' qualifying service can be compulsorily retired by giving three months' notice in writing. to the said officer. Besides this requirement, this rule, as is the case of the respondents, contains an implied requirement that the retirement sought to be made must be in public interest. In other words, the competent authority passing the order of compulsory retirement must form an opinion that the compulsory retirement of the officer concerned was in public interest. The opinion, of course, cannot be challenged before the courts. However, the order of compulsory retirement can be challenged on the ground that the requisite opinion had not been formed. This view finds support from the following observations in Union of India v. J.N. Sinha and another, : (1970)IILLJ284SC :

'NOWcoming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it ism the public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.'

INthe present case, we are satisfied that the requisite opinion has not been formed. The appellant was first served with a notice dated April 16, 1968. All what was said in the said notice was that the appellant's services were no longer required and accordingly he was served with three months' notice of retirement as required under rule 2(2) of appendix 41 of Liberalised Pension Rules from the date of service of the notice. Similarly, there is no mention of 'public interest' in the order of retirement dated June 6, 1968 (Annexure B). The absence of recital in the order of compulsory retirement that it was made in public interest, no doubt, is not always fatal' as held by the Supreme Court in Mayenghoam Rajamohan Singh v. Chief Commissioner (Admn.) Manipur and Others, 1977 (1) S.L.R. 234. However, in the present case, there is nothing on record to show that this power has been exercised in public interest. We say so because there is not a. word in the counter-affidavit filed by Shri I. M. Mahajan, D.I.G. Police Delhi, on behalf of the respondents that the concerned authority passed the order in public interest. The plea raised by them was that he had completed 30 years of qualifying service and was compulsorily retired after giving three months' notice. It was nowhere averred that the requisite opinion had been formed or that the order had been made in public interest.

(14) The appellant himself has filed a copy of an order dated July 20, 1957 (Annexure C) whereby he-had been reverted to the rank of Head Constable being found unsuitable to hold -the rank of Assistant Sub-Inspector. He has also filed a copy of report dated July 26, 1967 by Shri D. K.Aggarwal, Superintendent of Police Central District, Delhi, '(Annexure K) wherein, inter alia, it was mentioned that the appellant suffered from a very poor personality and was always badly turned out; his reputation for honest work was bad and he required a close watch. In this report there is also a mention that for the year 1966-67 the appellant had been classified as 'C. 'The appellant also filed copy of a confidential note of Shri Rajinder Mohan, Additional Superintendent of Police, Central District, Delhi (Annexure L) directing that the confidential remarks recorded for the period April 1, 1967 to November 30, 1967 in which the appellant had been classified as 'C' be conveyed to him. There is a mention in the counter-affidavit that the appellant. during the pendency of the civil suit, had been promoted as Assistant Sub-Inspector with effect from January 9, 1960 but was reverted with effect from September 5, 1960 having been found unsuitable. On the basis of these facts and entries, it was urged that the appellant was not a fit person to be retained in service. This argument, in our view, has no substance. First of all, it is for the competent authority to form an opinion and not the Court. Again, the opinion has to be formed taking into consideration the overall picture of the officer. An entry here and there is of no consequence. Suffice to say that only in 1967 he was found fit to beretained in service after completing the age of 55 years. But all these contentions are of little avail. What is relevant is whether the competent authority applied its mind to all this material and, if so, what was his conclusion. If it is urged that this was the material relied upon to pass the impugned order, then-it may be regarded as a penal order. If this material was not so considered, what was the basis for ordering compulsory retirement.

(15) Before concluding, we may mention that the learned Single Judge, on examining the record produced by the depart- ment, has referred to a demi-official letter No. 146/ST/VO dated May 2, 1968 by Shri S. S. Palta, Superinteadeat of Police (Vigilance) on behalf of the Inspector General of Police, addressed to Shri Mohinder Singh, Superintendent of Police, Central District, Delhi, communicating that the service record of the appellant had been examined at the office of the Inspector General of Police and was not considered satisfactory. Shri Mohinder Singh was asked to call upon the appellant to show cause why the appellant should not be compulsorily retired. This letter, in our view, is of no consequence. It does not show that the competent authority had formed its opinion that the compulsory retirement of the appellant was in public interest. In any case, a perusal of Annexure 'A' shows that Shri Mohinder Singh, Superintendent, Central District, Delhi, has served the three months' notice of retirement as required under rule 2(2) on the appellant on April 16, 1968 i.e. long before the date of the letter referred to by the learned Single Judge in his judgment.

(16) For all these reasons we are of the view that the requisite opinion that the retirement of the appellant was in public interest was never validly formed by the competent authority and for that reason the impugned order of retirement dated June 6, 1968 was liable to be quashed. We consequently accept the appeal to that extent, set aside the order of the learned Single Judge on this point and quash the order of compulsory retirement. Parties are left to bear their own costs.


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