1. This is an application by Kewal Mal Singhi under Article 226 of the Constitution of India praying for a writ of 'mandamus' and 'certiorari' and 'prohibition' or any of these or any other order that may be appropriate to be issued' to the State of Rajasthan.
2. The facts, on which the present petition is based, are these. The applicant was serving as Section Superintendent in the Audit Department of the former State of Jodhpur under an order of appointment of the Finance Minister of Jodhpur, and under the Rules of service operative in Jodhpur on the 1st November, 1948. Under these Rules, he was entitled to continue in service till the completion of the age of 55 years, and was a permanent member of the public services of the former Jodhpur State. On the formation of the present State of Rajasthan on the 7th of April, 1949, the applicant continued to be employed in the service of the State of Rajasthan from that date in the Audit Department on a salary of Rs. 168/- per month in the grade of Rs. 120-6-180, and thus held a civil post under the State of Rajasthan. In May, 1949, however, the Government of Rajasthan laid down certain procedure and principles to be followed in carrying out the programme of integration of services in the various Covenanting states. Under that procedure, all Government servants who had completed 55 years oi' age or 30 years' qualifying service on the 1st May, 1949, were to be retired. In pursuance of this, the Accountant General, Jodhpur, directed, by an order dated 27th July, 1949, that the applicant be retired from service from the 15th of August, 1949. Later, however, this order was cancelled, and the Accountant General, Jodhpur, informed the applicant on the 16th of August, 1949, that his retirement had been deferred. The applicant thus continued in service up to the 26th of January, 1950, when the Constitution of India came into force. Thereafter, on the 25th of February, 1950, the applicant was informed that he would be retired with effect from the 28th of February, 1950, and he was actually retired from that date. The present application is directed against this order of retirement.
3. In the application a large number of grounds have been taken, which it would be cumbersome to put down here in detail. It is enough to say that the main points urged on behalf of the applicant are these: (1) In view of the Rules of Service in force in the former Jodhpur State, and in view of the guarantee given in Article XVI of the Covenant creating the United State of Rajasthan, the applicant submits that the order of retirement passed against him was 'ultra vires', illegal, invalid, and inoperative in law. (2) As the applicant had been appointed by the Finance Minister of the former Jodhpur State, and was continued in service by the State of Rajasthan, he could not be removed from service by any authority which was subordinate to that by which he had been appointed, and as such the Accountant General, Jodhpur could not order his retirement. (3) The order of his retirement before he completed the age of superannuation amounted to removal from service, and this could not be done without complying with the provision of Article 311(2) of the Constitution of India. As the provisions of that Article were not complied with, the applicant's removal was illegal. (4) The principle laid down by Government that those who had completed the age of 55 years or 30 years' qualifying service on the 1st of May, 1949, would be retired was 'ultra vires' their powers, as it was against Article 14 of the Constitution of India.
4. We shall now take the points urged on behalf of the applicant one by one. With regard to the first point, it appears that the applicant was born on the 30th of November, 1897. Ordinarily, under the Jodhpur Government Service Regulations a Government servant was required to retire from service on attaining the age of 55 years, vide Chapter III, Rule 8 of the Jodhpur Government Service Regulations, as they existed up to the 6th of December, 1948. Normally, therefore, the applicant would have continued to serve the former Jodhpur Statetill the 30th of November, 1952. The applicant's contention is that these Rules continued to apply 10 him, and, therefore, he would not be retired before he had completed the age of be years at any rate. It is further urged on his behalf that Article XVI of the Covenant protected him in this matter.
5. Article XVI of the Covenant reads as follows:
'(1) The United State hereby guarantees either the continuance in service of the permanent members of tile public services of the former Rajasthan State and of each of the new Covenanting State on conditions which will not be less advantageous than those on which they were serving on the 1st November 1948 or the payment, of reasonable compensation or retirement on proportionate pension.'
6. It has been urged that as the applicant was continued in service on the 7th of April, 1949, on which date the United States of Rajasthan came into being, he should have been continued in service' thereafter, and that the other alternatives could not be taken advantage of by the State after the 7th of April, 1949. We are of opinion, that there is no force in this argument. It was obviously impossible for the State of Rajasthan which came into being on the 7th of April, 1949, to decide on that very day which of the public servants of the Covenanting states would be retained in service, and which would be asked to go on the payment of reasonable compensation or retirement on proportionate pension. This decision was bound to take time, and, therefore, the fact that any public servant was retained in service on the 7th of April, 1949, would not take away from the State of Rajasthan the right to decide which of these three courses should be followed in connection with the permanent members of the public services, which it was inheriting from the Covenanting States. Further, Article XVI of the Covenant did not guarantee appointment only, but provided two other alternatives, namely, payment of reasonable compensation and retirement on proportionate pension. No permanent member of the public services of the Covenanting States could, therefore, be continued in service by the State of Rajasthan. In the present application, the applicant has confined himself only to the question of the continuance in service- We are, therefore, not prepared to consider whether the applicant has been given the advantage of either of the other two alternatives, which were to be used in case of a public servant, who was not continued in service. The fact, therefore, that under the Jodhpur Service Rules, the applicant could ordinarily continue till the age of 55 would not stand in the way of the Government of Rajasthan in dispensing with his services earlier, as Article XVI of the Covenant did not guarantee continuance of service, and provided for retirement on proportionate pension or removal on payment of reasonable compensation. We may also point out that Rule 9 Chapter III, of the Jodhpur Government Service Regulations also shows that even under those Regulations the applicant had no such indefeasible right to continue in service till the age of 55 years, as he claims. Under Rule 9, every permanent Government servant, except those engaged from outside the Government on special agreements, were liable to give, and entitled to receive, one month's notice to terminate his service. Thus, even though a public servant of Jodhpur could not ordinarily be retired before 55 years of age, he could give one month's notice if he wanted to leave service, and the State could give him one month's notice, if the Government wanted to terminate his service. It was urged that this part of Rule 9 must be deemed to have come to an end, as it was against Article 311 of the Constitution of India. We shall, if necessary, deal with this aspect of the matter later, when we come to Article 311. It is enough for present purpose to say that the applicant has no case based on either Article XVI of the Covenant, or the Jodhpur Government Service Regulations.
7. As to the second point, we see no force in the contention raised on behalf of the applicant. It-is true that the notice was given to him that he would be retired from the 15th of August, 1949, and later from the 28th of February, 1950, by the Accountant, General; but that notice was in pursuance of the policy of the Government laid down in order No. 401 G.D./Sec./II aated 24th June, 1949. It was, therefore, not the Accountant General, Jodhpur who ordered the retirement of the applicant after 30 years' service; but it was the State of Rajasthan which really gave the order which the Accountant General carried out. Therefore, the removal of the applicant was not by any authority subordinate to that by which he had been appointed. It was urged that the Government order of the 24th of June, 1949, was not in accordance with Section 8 of the Rajasthan Administration (Amendment) Ordinance, 1948 (No. V of 1949). That section lays down that all executive action of the Government of Rajasthan, shall be expressed to be taken in the name of His Highness the Raj Pramukh. It also lays down that orders made in the name of His Highness the Raj Pramukh shall be authenticated by any Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Additional Deputy Secretary, Under Secretary or Additional Under Secretary, or Assistant Secretary or Additional Assistant Secretary to the Government of Rajasthan or by such other person or authority as may be prescribed in this, behalf. It is true that in the Gazette publishing this order, the words 'By order of His Highness the Raj Pramukh' do not appear, though the order is signed by Secretary to Government. This point, however, was not taken in the petition itself, and was raised only during arguments. It was, therefore, not possible for the State to show by affidavit, if necessary, that the order was of the Government of Rajasthan. The order itself shows that it has been passed by the Government of Rajasthan and is authenticated by a Secretary, and the only defect that appears in it is that the words 'By order of His Highness the Raj Pramukh' do not appear at the end, as they should. That in our opinion, is a mere technicality, and we have no reason to suppose that the order in question, on the basis of which the applicant was retired, had not been passed by the Government of Rajasthan. As a matter of fact, the applicant himself in paragraph 5 of his application says that the Government of Rajasthan was pleased to lay down certain procedure and principles to be followed in carrying out the programme of integration of the services. In paragraph 6, he says that in pursuance of the Government's policy to retire those Government servants who had completed 55 years of age or 30 years' qualifying service on the 1st May, 1949, the Government of the United State of Rajasthan was pleased to pass the Order No. 401 G.D./Sec./II, dated 24th June, 1949. In view of this statement in his application, it is not open now to the applicant to challenge the order on the ground that the order was not passed by the Government of Rajasthan because of a technical defect, viz., the absence or the words; 'By order of His Highness the Raj Pramukh.' We are, therefore, of opinion that the order of the applicant's retirement cannot be challenged on the ground that it was passed by an authority subordinate to that by which he had been appointed.
8. The third point that has been urged on behalf of the applicant is that his removal from service was illegal because the provisions of Article311(2) of the Constitution were not complied with. It is provided there that no person, who is a member of a civil service of a State or holas a civil post under a State shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is undoubted that the applicant was not given any opportunity of showing cause against his retirement. It has been urged that retirement of a person before he completes the age of superannuation amounts to removal within the meaning of Article 311(2) of the Constitution, in support of this, reference is made to the Rajasthan Services (Classification, Control, and Appeal) Rules, 1950, where it is provided in Rule 15(VI) that removal from the civil service includes compulsory retirement before the age of superannuation. This is provided in these Rules as one of the penalties which may be inflicted on a Government servant for good and sufficient reasons. In a loose sense, there is no doubt that a person, who is retired before the age of superannuation, is removed from service; but the question that falls for consideration is whether 'removal' as used in Article 311(2) means any kind of removal from public service, or only a particular kind of removal. So far as the Civil Services (Classification, Control and Appeal) Rules are concerned, the removal by means of compulsory retirement before the age of superannuation is a penalty which can be inflicted for good and sufficient reasons. These Rules, however, do not apply to the applicant, as they were passed in November, 1950, after the applicant had been retired, and are only helpful in understanding the meaning of the word 'removal' as used in Article 311(2). We feel that the word 'removal' as used in Article 311(2) applies to a removal which is due to some fault of the civil servant concerned. It seems to us that there would be no point in giving reasonable opportunity of showing cause to a public servant, if the removal is unconnected altogether with his conduct. We are in agreement with the view which was taken in an earlier case in this Court, 'Nihal Chand v. The State of Rajasthan' 1950 R L W 192, to which one of us was a party. It was pointed out there that
'Dismissal, removal or reduction in rank of permanent employees except on complaint or misconduct is not contemplated in this Article.'
Though, therefore, in a loose sense it may be said that the applicant was removed from public service when he was retired before the age of superannuation, this is not the kind of removal contemplated under Article 311(2).
9. It was next urged that if a removal of this kind was not included in Article 311(2) there would be insecurity of tenure, inasmuch as Government servants could be removed from service on the basis of any Rules framed by the Government, as for example a rule that any public servant who has completed 5 years' service on a particular date shall be retired. Normally, no Government would pass such a Rule, but if it, does, we are of opinion that there is nothing in the Constitution to prevent it from doing so. We may refer, in this connection to Article 310 of the Constitution which definitely lays this down that:
'except as expressly provided by this Constitution, every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor or, as the case may be, the Raj Pramukh of the State.'
Civil servants, therefore, hold office not during good behaviour, but only during the pleasure of the Governor or the Rajpramukh, and if it pleases the Governor or Rajpramukh to frame a rule of the kind mentioned above, there would be nothing illegal in such a rule, whatever may be the moralobligation of the State in this connection. It is only certain high officers who are specially protected, like judges of the Supreme Court and High Courts, the Auditor-General, the Members of the Public Service Commissions, and such persons who come under Article 314. Article 311 cannot, therefore, be so interpreted as to turn the tenure of a civil servant, which is presented in Article 310 as during the pleasure of the Governor or the Rajpramukh, into tenure during good behaviour, if every kind of removal were to be included within the meaning of that word as used in Article 311(2), the elect would be that that Article would provide something which would be contrary to Article 310. Therefore, we have no hesitation in coming to the conclusion that the word 'removal' in Article 311 applies to those cases of removal which are sue to some fault or misconduct of the civil servant, and not to removal pure and simple on account of certain Rules framed by Government in pursuance of a certain policy. We may also point in this connection that Article 309, which provides for framing of rules, also does not provide any protection to civil servants from a change in those rules, affecting them adversely. If that was the intention, we should have found something corresponding to the proviso to Article 221, which protects the allowances of a judge, and his rights in respect of leave of absence and pension from being varied to his disadvantage after his appointment. Generally the Government, as a mural obligation, do not change the conditions of service of past employees to their disadvantage, whenever new conditions of service for future employees are framed; but that appears to us to be a moral obligation only except in the cases of those persons who are expressly protected under the Constitution. We are, therefore, of opinion that retirement in this case does not come within the ambit of the word 'removal' as used in Article 311(2), and it was, therefore not necessary, before the applicant was retired, to give him a reasonable opportunity of showing cause against such retirement.
10. We now come to the last point. It is urged that the Rule retiring people who had completed 55 years of age or 30 years' qualifying service on the 1st May, 1949, is 'ultra vires' under Article 14 of the Constitution, because it discriminates, between various classes of Government servants, and does not afford equal protection of the laws to all. We have not, however, been able to appreciate this argument. The Rule as framed makes no distinction in favour of any particular person. It applies equally to all Government servants who completed 55 years of age or 30 years' qualifying service on the 1st of May, 1949. The contention is that if the Rule had been that as and when each Government servant completed 55 years of age or 30 years qualifying service, he would be retired, that would have been all right; but as it fixes a certain date, viz., 1st of May, 1949, it discriminates in favour of those, who, for example, complete 55 years of age or 30 years' qualifying service on the 2nd of May, 1949. This argument is, in our opinion, fallacious. Equality before the law or the equal protection of the laws does not, in our opinion, preclude the State from making classification so long as the persons within a particular classification are treated equally or given equal protection of the laws. Any other interpretation would, in our opinion, make government impossible. As has been remarked in Dicey's Law of the Constitution, 1939 Edition, page 47, equality before the law does not mean an absolute equality of men, which is physical impossibility, but the denial of any special privilege by reason of birth, creed or like in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts.Further Cooley in his Constitutional Law, pages 281 and 286, says that equal protection does not prohibit the granting of special privilege to particular enterprises or employments in the interests of the general welfare, provided there is no discrimination within that class, e.g., in favour of national banks, insurance companies, railways and the like. Thus, these remarks of two learned commentators show that reasonable classification is permissible, and what is prohibited is arbitrary selection or discrimination within the class. In the present case, the Government fixed upon a certain date, namely, the 1st of May, 1949, and said that anybody who completed 55 years of age or 30 years' qualifying service on that date would be retired. There was no discrimination within this class, and, therefore, the Rule cannot, in our opinion, be hit by Article 14 of the Constitution.
11. It was next urged that the order provided that,
'for reasons of special merit and exceptional circumstances, if it is proposed to retain an official railing under the above categories, the question of his re-employment can be considered separately.'
and, therefore, there was discrimination. We are unable to agree with this argument. This was no exception to the rule, namely, that everybody who came within the rule should be retired. It only provided that if exigencies of public service required, some persons out of those retired might be re-employed. That was, of course, an order about future re-employment, and would not make the order as to retirement discriminatory.
12. Lastly, it was urged that the actual fact was that everybody who was hit by the Rule was not retired, and that some persons were retained, and therefore, the principle of the case 'Yick Wo v. Hopkins', (1886) 118 U S 356, applied. That was a case where a certain law about laundries had been passed in a town in the United States. Under that law people had to take licences for doing laundry work. When the law came to be administered, the Chinese who till then had the majority of the laundries, were all refused licences, while the Americans were all granted licences except in one case. It was then held that the law on the face of it might be satisfactory, but the manner of its application was such that it denied equal protection of the laws. The decision in that case in our opinion, depended upon the peculiar facts, which were found by the Court, viz., refusal to all Chinese and grant of permanent licences to all Americans except one. There was thus a wholesale abuse of the law in that case. In the present case, there is nothing to show that there has been any such wholesale abuse of the Rule, under the circumstances, we are of opinion that the Rule is valid, and is not hit by Article 14 of the Constitution.
13. There is, therefore, no force in this application, and it is hereby dismissed with costs to theState Government.