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Sita Ram Joshi Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 216 of 1966
Judge
Reported in1970WLN5
AppellantSita Ram Joshi
RespondentState of Rajasthan and anr.
DispositionPetition allowed
Cases ReferredKhub Chand v. State of Rajasthan
Excerpt:
constitution of india - article 226--whether powers under article 226 be exercised in respect of administrative orders.;the power under article 226 of the constitution is exercisable even in respect of administrative orders and the court has to see that they conform to the rule of law and are within the limits of the grant of the relevant powers. it will be open to the court to examine the records and satisfy itself whether the authority exercising the power in deciding the a matter has reasonably applied its mind to the appropriate statutory provisions and the facts.;(b) rajasthan service rules, 1951 - rule 244 (2)--scrutiny committee recommends retirement--appointing authority is a member of scrutiny committee--whether conclusion of scrutiny committee be deemed as a conclusion of.....kan singh, j.1. petitioner sitaram joshi is challenging an order of his compulsory retirement under rule 244 (2) of the rajasthan service rules, 1951. for facility of reference i may read that order, document no. 9, dated 2-9-65:jktlfkku ljdkjfu;qfdr [k fohkkxla[;k ,q 211fu;qfdr[k5 t;iqj] fnukad 2 flrecj]1965&% uksfvl %&iszf'kfr% &jheku lhrkjke tks'kh iq= jh iwlkjke tks'kh ]'kh/kz fyfid] vodk'k lfpr]jktlfkku 'kklu lfpoky;] t;iqj apwfd jh lhrkjke tks'kh] 'kh/kz fyfid] ds ;ksx;dkjh lsokdky 25 o'kz iwjs gks x;s gs] vksj pwfd jkt; ljdkj larq'b gs fd mdr jkt; dezpkjh dh rnqijkur lsok dks lekir fd;k tkuk lkoztfud fgr es gs avr,o] vc] fueuglrk{kj drkz jktlfkku lsok fu;eks ds fu;e 244 2 ds vurzxr forr fohkkx ds vkns'kkuqlkj ,q0 184 ,q0mh0,0 :yl 62 fnukad 13&12&63 ds tfj;s izr;k;rsftr 'kfdr;ks ds.....
Judgment:

Kan Singh, J.

1. Petitioner Sitaram Joshi is challenging an order of his compulsory retirement under Rule 244 (2) of the Rajasthan Service Rules, 1951. For facility of reference I may read that order, Document No. 9, dated 2-9-65:

jktLFkku ljdkj

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Jheku lhrkjke tks'kh iq= Jh iwlkjke tks'kh ]

'kh/kz fyfid] vodk'k lfpr]

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pwfd Jh lhrkjke tks'kh] 'kh/kz fyfid] ds ;ksX;dkjh lsokdky 25 o'kZ iwjs gks x;s gS] vkSj pwfd jkT; ljdkj larq'B gS fd mDr jkT; deZpkjh dh rnqijkUr lsok dks lekIr fd;k tkuk lkoZtfud fgr es gS Avr,o] vc] fuEugLrk{kj drkZ jktLFkku lsok fu;eks ds fu;e 244 2 ds vUrZxr foRr foHkkx ds vkns'kkuqlkj ,Q0 184 ,Q0Mh0,0 :Yl 62 fnukad 13&12&63 ds tfj;s izR;k;rsftr 'kfDr;ks ds vuq'kj.k es ,rn~}kjk mDr Jh lhrkjke tks'kh dks muls ;g vis{kk djrs gq, uksfVl nsrs gS fd os bl uksfVl dh rkehy mu ij gksus ds fnu ls rhu dSysUM+j ekl dh lekfIr ds fnu lsok ls fuo`Rr gks tkos rFkk Jh lhrkjke tks'kh dks mDr fnukad ls lsok ls vfuok;Zr% fuo`r fd;s tkus dh vkKk nsrs gS %

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The petitioner joined the service of the former Jodhpur State some time in 1935 and on integration of the State with the United State of Rajasthan he came into the service of the new State. He claims that he had unblemished record of service, but unfortunately for him he came to incur the displeasure of Shri Mathura Dass Mathur, Planning Minister, State of Rajasthan. The petitioner attributed this to a news item appearing in a daily paper Rashtra-doot to the effect that the petitioner had handled roughly and toughly Shri Jawaladas father of Shri Mathura Das Mathur. Petitioner proceeds to say that inspite of his work being entirely satisfactory certain adverse entries came to be made against him and eventually by Document No 9, reproduced above, he was retired from service. He is challenging this order on the ground that the order though purporting to be made in the public interest was motivated by malice and was based on wholly extraneous and irrelevant considerations; the malice being the eminent influence that respondent No. 2 wields with the administrative machinery in the State Secretariat. The petitioner has also attacked the vires of Rule 244(2) of the Rajasthan Service Rules. It is Contended by him that when this rule is read with a circular dated 25-9-1963, issued by the Special Secretary to the Government in the Appointments Department to all Heads of Departments, it would be clear that such a retirement would carry a stigma of inefficiency or lack of integrity in a Government servant and accordingly if the orders are passed without compliance with the procedure prescribed for implosion of penalties, the rule was bad. It was further urged that the rule does not lay down any objective test by which the State may determine which of its employees can be made to retire compulsorily before attaining the prescribed age of superannuation. In the circu-stances it was contended that this rule was violative of Articles 14 and 16 of the Constitution.

2. The writ petition has been opposed by the respondents Respondent No. 2 Shri Mathura Dass Mathur had also filed an affidavit denying the allegations made against him regarding his having exercised any influence with the officers concerned in compulsorly retiring the petitioner. The State Government in its first reply took the stand that the committee consisting of Special Secretary, Appointments Department, Deputy Secretary, Appointments Department (3) and Deputy Secretary Appointments (A 2)Department, after thoroughly examining about 136 cases including that of the petitioner issued orders for the compulsory retirement of the petitioner along with one another on 30-8-1965. It was added that the members of the committee belonged to the Appointments Department and there was no concern whatsoever of the Planning Department, or Minister in the matter.

3. After the writ petition was admitted by a Division Bench of which I was a member, an application moved by the petitioner for summoning the file relating to his compulsory retirement and service record came up before the Division Bench on 27-9-1966. The learned Deputy Government Advocate, v ho then appeared, was directed to get the files and keep them with him. It was observed in the order dated 27-9-1966 that it would be decided at the time of hearing of the writ petition whether we should look into those records or not. On 27-10-1969 when the case came up for hearing before me it was noticed by me that the Government reply went to show that the petitioner's case was considered by a Committee consisting of the Officers already enumerated and it was the Committee who issued the order of compulsory retirement of the petitioner. It was not stated as to how the recommendations of the committee were dealt with in the Secretariat and whether the recommendations were placed before the Government or not. Learned Additional Government Advocate who appeared on that day was, therefore, directed to keep the relevant record with him as already ordered, for persual of the court. The case came up for hearing again on 18-11-1969. This time it was submitted by learned Additional Government Advocate that there was an inaccuracy in para 17 of the Government's reply. He, therefore, prayed for permission to amend the Government's reply. The learned Additional Government Advocate submitted at the time that the orders of compulsory retirement were not issued by the Committee, but were issued by the Deputy Secretary, Appointments (B) Department, who was the appointing authority.

4. The learned Additional Government Advocate was then permitted to amend the reply. The case was then heard again. According to the amended reply of the State its case is that the Committee of the Officers afore mentioned considered the case of the petitioner and after thoroughly examining it was unanimously of the view that the petitioner be retired on account of his completing the 25 years qualifying service and, therefore, the Committee recommended the petitioner's case for compulsory retirement. The Special Secretary, Appointments Department was the convenor of the Committee and he conveyed the recommendations of the Committee on 31-8-1965 to the Deputy Secretary, Appointments (B) Department who was the appointing authority and as laid down in the Appointments Department's order dated 13-1-1964 for the issue of the orders and accordingly the Deputy Secretary, Appointments (B) Department issued the impugned notice Document No. 9 on 2-9-1965 as per the prescribed proforma. Copies of the relevant notice recorded on the Secretariat file were also placed on the record, It was submitted that in accordance with the Ministerial Staff Rules in the Secretariat the Deputy Secretary, Appointments (B) Department was the appointing authority in respect of the employees of the category to which the petitioner belonged. It was further stated that the power of ordering compulsory retirement under Rule 244(2) of the Rajasthan Service Rules has been delegated by the State Government to the various appointing authorities in respect of the category of employees to which the petitioner belonged. In these circumstances it was urged that the impugned order was valid. The Government further denied that Rule 244(2) was invalid on any of the grounds taken by the petitioner or that the resp indent State was animated with malafides or malice as alleged. I have heard learned counsel for the petitioner and the learned Additional Government Advocate for the State.

5. In Gopalmal v. State 1965 R.L.W. 44 the validity of Rule 244(2) of the Rajasthan Service Rules was examined. It was held by the Bench that this rule was valid and was not violative of Articles 14, 16 or Article 311 of the Constitution for that matter. I ought to add here that the rule that came up for consideration in that case laid down that 'the Government retains an absolute right to retire any Government servant after he has completed 25 years' qualifying service without giving any reasons and no claim to special comprehension on this account will be entertained. This light will not be exercised except when it is in public interest to dispense with any further services of a Government servant.' At the material time, in the present case, the rule stood as follows:

Rule 244 (2): The Government may, after giving him at least three month's previous notice in writing, require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.

Provided that a Government servant of class IV can only be required to retire on the date on which the completes 25years of qualifying service or any date thereafter.

Though there is change in the phraseology of Sub-rule (2) of Rule 244 of the Rajasthan Service Rules in so far as the impact of Articles 14, 16 or 311 of the Constitution is concerned, the reasoning in Gopalmal's case (1) fully holds good. In fairness to learned counsel for the petitioner I may observe that though the point was taken in the writ petition, he did not address me regarding the question' of vires on the ground of Articles 14, 16 of the Constitution. He limited his submission to the question of compulsory retirement in the present case being in the nature of a punishment. What ever might be the position in a particular case, but so far as validity of the rule is concerned that has to be examined in the light of the constitutional provisions and as at present advised I am not inclined to take a different opinion even regarding the validity of the rule on the ground of alleged infringement of Article 311 of the Constitution.

6. The allegations of malice that the petitioner has made have been denied by both the respondents. The petitioner has not been able to place sufficient material before the court to warrant any inference that the respondent State was animated with malice or malafides in ordering compulsory retirement of the petitioner.

7. Then there remains the ground of so called extraneous consideration weighing with respondent No. 1 in ordering the compulsory retirement of the petitioner as also that has emerged from the earlier reply of the State Government and the plain language of Document No. 9. Document No. 9 which creates the impression that it were the Government who were the author of this order and again it were the Government who felt satisfied that retention of further services of the petitioner was not in public interest. It was admitted before me at the Bar by learned Additional Government Advocate after taking the instructions of the Deputy Secretary to the Government who was present, as; also looking into the record that the matter had at no stage been examined by the State Government according to the rules of business of the Government. The position is thus clear that for some inexplicable reason in Document No. 9 a form has been imparted to the Order which gives it the appearance that the State Government were satisfied that the retention of further services of the petitioner was not in public interest. This aspect of the matter, therefore, requires to be closely examined. The stand of the respondent at the time of hearing was that order Document No. 9 was issued by the Deputy Secretary as the appointing authority under' the Rajasthan Secretariat Ministerial Staff Rules, 1956. It was further pointed out that the powers of the State Government under Rule 244(2) of the Rajasthan Service Rules had been delegated under Rule 5 of the Rajasthan Service Rules read with Rule 7 thereof to all appointing authorities in respect of the category of employees to which the petitioner belonged. It was pointed out that according to the order of delegation of powers issued by the Government though full powers were conferred on the Appointing authorities yet in regard to the extent of power to be delegated it was laid down in the order of delegation that the procedure would be as provided by the appointments Department. The order of the Appointments Department dated 13-1-1964 has been placed before me. I may now examine these orders.

8. Rule 5 of the Rajasthan Service Rules reads as follows:

Rule 5: Government may delegate to any of its officers subject to any conditions which it may think fit to impose, any power conferred upon or taken under these rules with the following exceptions:

(a) all powers to make rules,

(b) the other powers conferred by Rules 5, 42, 56(a), 81, 135, 140, 148, 151 and 157(c).

This rule empowers the Government to delegate any of its powers including that under Rule 244(2) of the Rajasthan Service Rules to any of its officers and in doing so the Government may impose any condition which it may deem fit to impose. The order of delegation issued by the Government has been reproduced as Appendix-9 to the Rajasthan Service Rules, Volume II (Fourth Edition). Serial 18D thereof runs as follows:

S. No.

No. of service Rule

Nature of power

Authority to whichthe poweris delegated

Extent of power delegated

1

2

3

4

5

18-D

244(2)

Powers to retire Governmentservants after attaining the age of 55 years

(1) State Service ,

Government in the Administrative Depart ment Head of Depa rtments

Full powers provided thatthe procedure laid down in Appointments (A-II) Department order No. F. 1 (36)Apptts. (A-II)/63

dated 25- 9-63 is followed

(2) Subordinate Service (Gazetted posts)

(3) Ministerial Service (Gazetted and non-gazetted posts)

Appointing Authorities

Powers to retire Governmentservant after completion of 25 years of qualifying service

(1) State Service

Government in the AdministrativeDepartment

Full powers provided that(i) the procedure laid down in Appointments 'A' Department Circular No. F. 24(55) Apptts (A) 57 dated 18-8-1958 read with subsequent Circulars dated 17-11-1958and 4-10-1963 as amended hereafter from time to time is followed in respect ofGazetted Offi cers belonging to any of the services

(2) Subordinate Service (Gazetted and non-gazetted

Appointing Autho rities

(ii) the procedure laiddown in Appointments (A-IICR) Department Cir cular No. F. 24(55) Apptt. (A)/57( pt., 1 /Gr. II/CR. dated 16-5-1963 as amen ded from time to timeis followed in respect of the subordinate (non-gazetted) staff

(3) Ministerial Service (Gazetted posts

Appointing Authorities

(iii) the procedure tobe laid down by the Appoint-ments(A-II)Department is followed in respect of theMinisterial staff (non-gazetted) '

A perusal of this will show that the power to retire Government servants after completion of 25 years of qualifying service has been delegated in respect of ministerials service to the appointing authorities. Column No. 5 shows that full powers have been delegated to the appointing: authorities; the relevant proviso No. 3 in relation to ministerial services being to the effect that the procedure to be laid down by the Appointments (A-II) Department is followed in respect of the Ministerial staff (non-gazetted), A plain reading of this order of delegation shows that the Deputy Secretary. Appointments -B Department, who is the appointing authority in respect of the petitioner has full powers of the State Government under Rule 244(2) of the Rajasthan Service Rules, but the procedure in the matter of ordering compulsory retirement has to be as laid down in Appointments (A-IICR) Department Circular No. F. 24(55) Apptt. (A) 67, pt., I(Gr. II/CR.)dated' 16. 5. 1963, in respect of the ministerial staff (non gazetted). The order of the Appointments Dapartment says that the Government have decided that compulsory retirement of the ministerial staff in the State may be resorted to henceforth and the procedure for the same is as laid down therein. On the prescribed date or dates a list of Government servants proposed to be retired is to be drawn up and the appointing authority has to collect the personal files and confidential rolls and inquiry cases, if any of person whose compulsory retirement is to be considered. The list together with the confidential rolls and other records as mentioned in the order shall be scrutinised by a Committee consisting of the following:

(1) Secretary to Government, (Appointments'B' Department) Convenor(2) Deputy Secretary to Government,Appointments A-II Department Member(3) Deputy Secretary to Government,Appointments B' Department. Member

It is further laid down that the Committee shall draw a list of officials to be compulsorily retired. It is further directed that unless the record is particularly adverse a person should not be recommended for compulsory retirement if he is due to be superannuated by the end of the next calender year; In other cases, adverse reports should be given due weight. Then there is the following passage which I may read, as considerable arguments were addressed regarding its true meaning:

On receipt of the recommendations of the Committee, retirement orders shall be issued immediately by the concerned Appointing Authority, as per specimen enclosed.

Then there are the paragraphs about giving of leave to the official and then there is the last paragraph which also I may read:

As the procedure has the effect of curtailing the working life of officials fairy advanced in life, the recommendations of the Committee should be made after due care and caution.

Before I proceed to examine these orders I may briefly point out as to what has happened in the case of the petitioner.

9. The Respondents have brought on record the relevant extracts from the notes recorded on the Secretariat file, as already observed. Paragaphs Nos. 35 and 36 of the Secretariat notes brought on record read as follows:

Para 35. Placed below are the proceedings of the Committee for considering the cases of retirement on completion of 25 years of service in the ministerial staff of the Secretariat. The Committee has recommended that the following be retired from service on completion of 25 years of service:

(1) Shri Sita Ram Joshi--Stenographer.

(2) Shri Mohammad Shafi Khan--U.D.C.

Para-36. Retirement orders in respect of these two persons may please be issued in accordance with Government Order No. F. 24(55) Apptts, A/57. Pt. I/Gr. II/CR dated 13.1.1964.

The above notes show that the Committee had recommended the compulsory retirement of the petitioner and the Special Secretary (Appointments) noted in Para- 36 that retirement orders in respect of the two persons (one being the petitioner) be issued in accordance with Government order dated 13-1-64, the gist of which I have already given above. On this note the Deputy Secretary; Appointments had directed the Registrar to put up a draft order and then the Registrar had put up an order which was signed by the Deputy Secretary.

10. It cannot be denied that the power of the State Government under Rule 244(2) is a statutory power and the rule has vested a discretion in the State Government to retire a Government servant on his completing the necessary qualifying service. Likewise, the delegate of the State Government namely, the appointing authority in the present case will also be exercising the statutory powers by virtue of the delegation and the discretion vested in it will likewise be a statutory discretion subject of course to the conditions of delegation. Perusal of the order of delegation shows that full powers have been vested in the appointing authority so far as exercising of discretion under Rule 244(2) is concerned, but the procedure has to be as provided by the order of the Appointments Department. Where a statute confers a discretionary power on a certain functionary then there is no manner of doubt that the discretion has to be exercised reasonably and within the perview of the statute investing the discretion in such authority. I may quote a passage from Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation 1947 (2) All. E.R. p. 680. Lord Greene, M.R. observed as follows:

If, in the statute conferring the discretion, there is to be found expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those matters. Expressions have been used in cases where the powers of local authorities came to be considered relating to the sort of thing that may give rise to interference by the court. Bad faith, dishonesty-those of course, stand by themselves-unreasonableness, attention given to exraneous circumstances, disregard of public policy, and things like that have all been referred to as being matters which are relevant for consideration. In the present case we have heard a great deal about the meaning of the word 'unreasonable'. It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done for instances person enstrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bund to consider. He must include from his consideration matters which are irrelevant to the matter, that he has to consider. If he does not obey those rules, he may truly be said, ae often is said, to be acting 'unreasonably'. Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. WARRINGTON, L. J., 'I think it was given the example of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all these things largely fall under one head.

It will be observed from the above passage that where a person is entrusted with a discretion he must direct himself properly in law. He must call his own attention to the matters which he is bound to consider.

11. In a very recent case of the Madras High Court reported as Thiruvengadam v. Mathu Chettiar : AIR1970Mad34 , the learned Judges observed that the power under Article 226 of the Constitution is exercisable even in respect of administrative orders and the court has to see that they conform to the rule of law and are within the limits of the grant of the relevant powers. It will be open to the court to examine the records and satisfy itself whether the authority exercising the power in deciding a matter has reasonably applied its mind to the appropriate statutory provisions and the facts There is no manner of doubt that the power of compulsory retirement under Rule 244(2) of the Rajasthan Service Rules have to be exercised by the State Government or its delegate. This rule vesting a discretion, which is statutory, the powers thereunder have to be exercised reasonably with the purpose of ensuring security and efficiency in the public services. Extraneous considerations cannot be brought in. In the present case though in the extent of powers delegated it was mentioned that the procedure for the exercise of full powers vested in the appointing authority is to be laid down by the Appointments Department in the case of ministerial staff of the Secretariat, the order for laying down the procedure being an executive order has to be passed within the framework of the order of delegation which order has been passed in exercise of the statutory powers of the Government. The executive order to be passed by the Appointments Department cannot be such as to go against the true intent and purpose of the order of delegation which was to vest the full powers of the Government under Rule 244(2) to the appointing authorities. The use of expression 'full powers' is significant and is a clear pointer that the decision regarding comulsory retirement of a Government servant has to be that of the delegate namely, the appointing authority and of no other. The provision for laying down the procedure by the Appointments Department can only contemplated that the order to be issued can indicate the various steps in the process of decision making, but in the very nature of things it will not be open while laying down such a procedure to erode the rule or notification itself by virtually substituting one decision making authority, namely, the appointing authority by another decision making authority. Now, if one looks to the order issued by the Appointments Department it is clear that the first step that is laid down is that of collection of the personal files and the confidential rolls and enquiry cases in respect of the Government servants and the appointing authority is to prepare the list of Government servants to be retired on the 1st of March of each year. The list drawn up by the appointing authority has to be scrutinized by a Committee, This step of proper scrutiny at the hands of a committee cannot be open to objection, because that is calculated to ensure a better scrutiny of the record pertaining to a Government servant proposed to be retired, but what cannot be permitted to be done is what is indicated in the later part of the order that on receipt of the recommendation of the Committee retirement order shall be issued immediately by the concerned appointing authority as per specimen enclosed.' This part of the order takes away the discretion vested in the appointing authority as a delegate of the Government and clothes, for all intents and purpose, the Scrutinising Committee with powers under Rule 244(2). Reading of the order dated 13-1-1964 leaves no room for doubt in my mind that the appointing authority after the stage of scrutiny is over, is reduced to nothing more than a rubber stamping one. Considerable argument was addressed on this aspect of the matter. It was pointed out that the word 'shall' occurring in the order, the relevant passage of which I have already extracted above, should be construed as 'may' so that the appointing authority may be left with the necessary discretion under Rule 244(2) of the Rajasthan Service Rules. Learned Additional Government Advocate referred me to a number of cases, such as, Montreal St Ry. Co. v. Normandin AIR 1917 PC 142 State of Uttar Pradesh v. Man Bodhanlal : (1958)IILLJ273SC , Shatrushal Singh v. Noor Mohammed 1959 RLW 431 and Dr. R.P. Chaturvedi v. State of Rajasthan 1969 RLW 47 as also relied on passages from Craes at page 242 and from Maxwall on Interpretation of Statutes, 10th Edition at page 381. I have no quarrel with the observation that whether a rule is directory or mandatory will depend on the intent of the legislature and for ascertaining the same, the context, the circumstances, the frame of the rule have all to be taken due note of, but what is to be remembered is that these are rules of interpretation relating to Acts, statutory rules or notifications issued under the statute. The Government dated 13-1-1964 is in every sense of the word an executive order of the Government. Apart from this their Lordships have pointed out in Khub Chand v. State of Rajasthan : [1967]1SCR120 that the word 'shall' will ordinarily convey a mandate unless there are circumstances to warrant a different construction and likewise the word 'may ' connotes a discretion unless there are circumstances suggesting the contrary meaning. Apart from this that has actually happened in the present case speaks volumes as to how the Government themselves have been acting. I have already referred to the notes recorded on the Secretariat file; viz paragraphs Nos. 35 and 36 thereof. After the recommendations of the scrutinising committee were received the Special Secretary who was the convenor recorded on the secretariat file that orders be issued in accordance with the ' Government order dated 13-1-1964. In pursuance of this note of the Special Secretary, the Deputy Secretary who was the appointing authority just passed on the file to the Registrar with the direction to put up a draft order. The Registrar put up the order which the Deputy Secretary signed. This leaves no doubt in my mind that the Deputy Secretary had done what the order dated 13-1-64 directed namely, that on receipt of the recomendation of the Committee retirement order shall be issued immediately. This was no doubt done immediately The pointed question is whether the Deputy Secretary as the appointing authority applied his mind independently to whole issue though he could have informed his mind from what the scrutiny committee had noted. Therefore, looking to the entire context I am unable to construe the word 'shall' in the Government order dated 13-1-1964 as anything other than 'shall' which means mandatory. Learned Additional Government Advocate submitted with equal vehemence that the Deputy Secretary, Appointments-B Department was himself a member of the scrutiny Committee and the recommendation of the scrutiny committee being unanimous he should be deemed to have reached the conclusion that the petitioner was fit to be retired. I am afraid this will not change the true character of the body who became the deciding authority in this matter and to that body the discretion under Rule 244(2) had never been delegated. Person A may be a member of the Committee consisting of A, B, C, but this can never mean that A is the same as A and B and C. To illustrate my point I may just give an example: A, an appointing authority may be sitting with B and C in the Committee. A may take on opinion different from B and C, Ultimately the decision of the majority would prevail, because the Government order does not say that the appointing authority while sitting in the Committee can veto a majority decision. Therefor, one can conceive of a case where the majority decision may be for retiring a civil servant and the appointing authority may be of a different opinion and yet according to the order dated 13-1-1964 the appointing authority will be powerless to give effect to its own opinion. It was submitted by learned Additional Government Advocate that this has never happend, because it is only such cases as are sent by the appointing authority that go to the Scrutiny Committee. The appointing authority draw up a tentative list, no doubt, but by no means that is a firm or final expression of its opinion. It cannot be held that appointing authority will always be bound down to what it has said while sending the list and will not be in a position to change its opinion. I am giving an illustration of a case where the appointing authority may be of opinion in the Committee that the civil servant should not be retired and yet reoommendation of the majority may be for retiring the Government servant. In such a case according to this order if the recommendation of the majority came before the appointing authority it will be left with no choice and will have to carry out the recommendation of the scrutiny committee. While testing the validity of a procedure one can conceive of cases which might happen though in a particular period they may not have happened. Government officers may be very good people and they may be acting most honestly but that is not the point. The point is about the correctness and validity of the procedure by which the cases are required to be dealt with and in examining the validity or the correctness of the procedure one cannot go by what a particular appointing authority might do or might not do. The appointing authority will undoubtedly be under a handicap when more senior officers are there on such a Committee. In the present case the Special Secretary to the Government in the Appointments Department was the convenor and also as Secretary in the Appointments Department he issued the directions as contained in paragraph 35 of the note that order be issued. I fail to see how in such a case the appointing authority namely, the Deputy Secretary would be in a mood to apply his mind independently and judge the correctness or otherwise of the recommendations. That being so, it does appear to me that the original stand take by the Government in their reply which was signed by an officer in the Secretarait that it was the committee who issued the order was substantially correct. The notes placed before me fully reinforce that it were the recommendations of the Committee which were really the decision to retire the petitioner and thereafter the appointing authority does not appear to have applied its mind independently to the question, as a statutory authority vested with the statutory discretion, it was the duty of the appointing authority to have applied its mind to the case independently. The recommendations of a scurtinising body could be of use in better informing the mind of the appointing authority, but they cannot take the place of decision making authority itself. The various steps in the process of decision making may be taken by other persons, but the ultimate decision has to be of the authority in which the statute vests the discretion and of no other. Thus, to my mind, the outward form of document No. 9 was misleading in that the Government were shown to be the author thereof and the decision in the present case was really of the scrutinising body, so-called screening committee as mentioned in the first reply of the Government and from the notes placed before me the appointing authority is not shown to have come to an independent conclusion after the recommendations of the scrutinising body were received and it just issued the order when the Special Secretary under whom the Duply Secretary was working he asked him to issue such an order.

12. Before parting with the case I may refer to one more contention of learned Additional Government Advocate that the paragraph to the effect that on receipt of the recommendations of the committee, retirement orders shall be issued immediately by the concerned Appointing Authority, is severable from the rest of the paragraph and, therefore, I should keep it aside and then the order without this paragraph be allowed to stand and the present retirement order is thus justified. I am afraid this paragraph appears to be the heart and soul of the order and if that is cut out very little remains in the remaining part of this order. The vice of this order, as I have already discussed at length is that the statutory discretion vested in the appointing authority under Rule 244(2), is virtually put in the screening committee which cannot be equated with the appointing authority. That body may be much wiser than the single individual viz the appointing authority, but that is not what is 10 be examined while dealing with the legality or the validity of an order. The crux of the whole matter is that the statutory discretion vested in one authority cannot be exercised by another authority in whom the legislature had not chosen to vest that discretion. The order Document No. 9 as also the consequential order Annexure-A/9 are invalid and have been passed contrary to law and they have to be quashed.

13. Accordingly, I allow the writ petition with costs and quash the order Document No. 9 and order Annexure A/9. It will be open to the competent authority to deal with the question of the petitioner's retirement afresh according to law, it it is so advised.


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