S.C. Agrawal, J.
1. In this petition filed under Articles 226 and 227 of the Constitution, the petitioner, Murlidhar Joshi, seeks to challenge the order dated 10th June, 1957, whereby the petitioner was retired compulsorily from service with effect from 1st July 1975 under Rule 244(2) of the Rajasthan Service Rules ('here in after referred to as 'the Rules').
2. The petitioner joined Government service on 6th February, 1947 as Constable in the Police department of the erstwhile State of Jodhpur. On 10th August, 1949, the petitioner was promoted to the post of Head Constable. By order dated 24th March 4953, he was confirmed on the post of Head Constable with effect from 15th January, 1953. By order dated 10th June 1975, the petitioner was ordered to be compulsorily retired from service with effect from 1st July, 1975 fore noon. In the said order it was mentioned that the petitioner would be entitled to 3 months' salary in lieu of notice period as provided in the Rules. Aggrieved by the aforesaid order, the petitioner has filed this writ petition.
3. The impugned order of compulsory retirement has been passed in exercise of the power conferred under Rule 244(2) of the Rules, which, at the relevant time, provided as under:
244(2). The Government may after giving three months notice in writing or by payment of 3 months pay; and allowances in lieu of notice require a Government Servant to retire from Government service on the date on which he completes 25 years qualifying service or on any other date thereafter.
4. The submission of the petitioner in the writ petition, as it was originally filed, was that the order of compulsory retirement dated 10th June, 1975 was illegal and void in as much as it was incumbent upon the Government to tender three months' pay and allowances in lieu of notice along with the order of compulsorily retirement and that the failure to tend fir the said amount along with the order vitiated the said order. In support of the aforesaid submission reliance has been placed upon the decision of the Supreme Court in Senior Superintendent, R M. Section Cochin and Anr. v. K.V. Gopinnth : (1972)ILLJ486SC , wherein the Suprement Court had construed the proviso to Rule 5(1) of the Central Civil Service (Temporary Service) Rules, 1965, which provided for termination of f services of a temporary Govt servant by giving one months's notice or by payment of one months' salary in lieu of notice. The Supreme Court, in the aforesaid case, held that the failure on the part of the Government to pay one month's salary in lieu of notice along with the order of termination rendered the order of termination null and void.
5. During the pendency of the writ petition on 11th March, 1976, the Governor of Rajasthan, in exercise of his powers under the proviso to Article 309 of the Constitution, made the Rajasthan Services (Amendment) Rules, 1976. The said Rules came into force with effect from 19th August, 1972 and were to remain in force upto 1st September, 1975. By the said Rule, Sub-rule (2) of Rule 244 of the Rajasthan Service Rules was substituted by the following sub-rule:
244(2) : The Government may, after giving at least three months' previous notice in writing requirs a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or on any date thereafter.
Provided that such Government servant may be retired from service forthwith, and on such retirement the Government servant shall be entitled to claim three months pay and allowances in lieu of notice.
The effect of the aforesaid amendment was that on the date of the impugned order dated 10th June, 1975, the Rule which was operative was the substituted Sub-rule (2) of Rule 244 which provided that instead of giving three months' notice, the Government could retire to the Government servant compulsorily forthwith and that on such retirement the Government servant would be entitled to claim three months pay and allowance in lieu of the notice. In other words as a result of the aforesaid amendment in Rule 244(2) of the Rajasthan Service Rules, it was not necessary for the Government to tender three months' pay and allowances in lieu of notice along with the order of compulsory retirement. After the aforesaid amendment, in the Rules, the petitioner amended the writ petition to challenge the validity of the aforesaid amendment. The said amendment in the Rules has been challenged by the petitioner on the ground that in exercise of his powers under the proviso to Article 309 of the Constitution, the Governor can only frame rules relating to the recruitment or for regulating the conditions of service of Government servants and that the rulemaking power conferred on the Governor under Article 309 could not be invoked to validate or regularise an illegal under. It is submitted that the amendment introduced in Rule 244(2) by the 1976 Rules was made with the sole object of validating the impugned order of compulsory retirement dated 10th June, 1975 and this was impermissible. In support of the aforesaid submission, reliance has been placed by the petitioner on the decision of the Supreme Court in State of Mysore v. I Padmanabharya and Ors. : (1966)IILLJ147SC , wherein it has been held that the power to frame rules conferred on the Governor under the proviso to Article 319 of the Constitution cannot be invoked to validate an illegal order of compulsorily retirement.
6. It is not possible to accept the aforesaid contention urged on behalf of the petitioner in view of the subsequent decision of the Suprime Court in Rajknmar v. Union of India and Ors. AIR 1975 SC 1117. The aforesaid case related to an order of termination passed under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1965 The said Rule, as it existed on the date of the passing of the order of termination, enabled the Government to terminate the services of a temporary Government servant by giving one months' notice or by paying a sum equivalent to the amount of pay and allowances for a period of one month in lieu of the notice. In the said case one month's pay and allowances were not paid to the Government servant concerned along with the order of termination and the said order was therefore, invalid in view of the decision of the Supreme Court in Senior Superintendent. R.M.S. Cochin and another v. V.K. Gopinath : (1972)ILLJ486SC . Subsequently Rule 5 of the Central Civil Service (Temporary Service) 1965 Rules, was amended with retrospective effect to be operative from the date earlier than the date on which the impunged order of termination was passed and by the said amendment, it was provided that services of any government servant could be terminated forthwith and on such termination, the Government servant would be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice on the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month The effect of the aforesaid amendment was that from the date on which the said amendment came into force, it was not obligatory for the Government to pay the Government servant whose services were being terminated the sum equivalent to the amount of his pay and allowances for the period of notice before the termination of the services and the Government servant was only entitled to claim the said sum. Before the Supreme Court, it was submitted that the aforesaid amendment did not have the effect of validating illegal orders which had been passed prior to the making of the said Rule. The aforesaid argument was rejected by the Supreme Court and it has been observed:
Once a law is given retrospective effect as from a particular date all actions taken under the Act even before the amendment was made would be deemed to have been taken under the Act as amended and there could be really no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of a case and no general formula can be devised for all circumstances. It is enough to say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is legally a valid action and there is no need to have a validating provision in respect thereof.
7. The aforesaid observations of the Supreme Court completely answer the submission urged by the counsel for the petitioner. In view of the amendment of the rules with retrospective effect from a date prior to 10th June, 1975, the validity of the impugned order of compulsory retirement will have to be judged on the basis of the amended rule as it existed on 10th June, 1975, the date of the passing of the impugned order. If so considered, it will be found that the Rule 244(2), as amended, did not require the Government to tender three months' pay in lieu of notice alongwith the order of compulsory retirement and, therefore, there is no infirmity in the said order on that account.
8. Another contention that was urged by the learned Counsel for the petitioner was that under Rule 244(2) of the Rules, the period of 25 years qualifying service which enables the Government to exercise the power of compulsory retirement, has to be computed from the date of the coming into force of the Rules i.e. from 1st April, 1951 and that as the petitioner was to complete 25 years of qualifying service only on 1st April, 1976, he could not be compulsorily retired in exercise of the power conferred under Rule 244(2) earlier than 1st April, 1976. The said contention can not be accepted for the reason that such a construction would render Rule 244(2) otiose and inoperative for the period from 1st April, 1951 ot 1st April, 1976. It is inconceivable that this could have been intention of the rule making authority. In my view qualifying service as contemplated by the Rajathan service Rule cannot be confined to service after the commencement of the rules but takes into account the entire period of service of the force of the Rules. Qualifying service, in the context of the rules, means the service which qualifies a Government servant for pension. Rule 179, which lays down the conditions of qualification, provides as under:
The service of an officer does not qualify for pension unless it conforms to the following three conditions:
First; The service must be under Government.
Second: The employment must be substantive & permanent.
Third; The service must be paid by Government.
9. Rule 180 empowers the Government to declare that any specified kind of service or the service rendered by a Government servant shall qualify for pension, subject to such condition as the Government may think fit ot impose. The government of Rajasthan, by its order dated 10th September, 1954, has directed as under:
Service, which qualifled in the convenanting State concerned for pension chargeable to the state funds as distinguished from the privy purse of the Ruler of such State, would be treated as qualifying service under these Rules.
10. From this it is clear that the service rendered by the Government servant prior to the formation of the the United State of Rajathan has to be taken into account for the purpose of the computing the qualifying service under the Rule. The qualifying service of the petitioner has, therefore, to be calculated from the date of his appointment as constable in the erstwhile State of Jodhpur i.e. from 6th February, 1947 and if so computed the dpetitoner had put in 25 years of qualifying service before the impugded order dated 10th June, 1975 was passed. It can not, therefore, be said that the order of compulsory retirement of the petitioner was illegal on the ground that on the date of the passing of the said order, the condition precedent for exercise of the power under Rule 244(2) of the Rule, viz. 25 years' qualifying service had not been fulfilled.
11. Another contention which was urged by the learned Counsel for the petitioner was that even it be assumed that service rendered by the petitioner in erstwhile Jodhpur State could be taken into consideration for computing the 25 years qualifying service. The power of compulsory retirement conferred on the Government under. Rule 244(2) of the Rules could be exercised only on the date when the petitioner had compeleted 25years of qualifying service i.e. on 6th February, 1972 and that an order for his compulsory retifying retirement could not be passed on any date after 6th February, 1972. The aforesaid argument cannot be accepted on as much as it ignores the express provision contained in Sub-rule (2) of Rule 244 which lays-down that a Government servant can be retired trom the service 'on the date on which he completes 25years of qualifying service of on any date thereafeter.' The aforesaid provisions are thus quite clear in as much as they confor the power of compulsory retirement of a Government servant on any date after he was completed 25 years of qualifying service, and it is not necessary that the said power should be exercised only on the date on which the said 25 years of qualifying service are completed and act on any date thereafter.
12. Lastly, it was argued that the impugned order of compulsory retirement was passed by the appointing authority viz. The Superintendent of Police (Railway), without applying his mind & without exercising his own discretion in the matter. The submission of the learned Counsel for the petitioner is that the procedure for passing an order of compulsory retirement of sub-ordinate non-gazetted staff is laid down in the Circular dated 16th May, 1963 issued by the Appointments Department of the Government of Rajasthan and that under the said circular, the orders of compulsory retirement are issued by the appointing authority on the basis of the recommendations of a departmental committee on their approval by the Government. It is submitted that the powers under Article 244(2) had been delegated by the Government to the appointing authority and after the said delegation, no power was left with the Government in the matter and, therefore; it was incumbent upon the appointing authority to have applied its independent mind while exercising the powers under Rule 244(2) and an order passed by it as per directions of the Government was illegal. In the reply to the writ petition filed on behalf of the respondent, it is asserted that the appointing authority had duly applied its mind and followed the procedure laid-down for compulsory retirement under Rule 244 of the Rules. Moreover, a perusal of the impugned order dated 10th June, 1975, shows that in the said order, there is no reference to the circular dated 16th May, 1963. On the other hand, the said order refers to circulars dated 29th July, 1972 and 12th April, 1973. It is, therefore, not possible to accept the submission of the learned Counsel for the petitioner that the impugned order was passed by the appointing authority, without applying his mend, specially, when we find that under the Rule, the power of compulsory retirement has been conferred on the Government and the impugned order states that the approval of the Government had been obtained for the compulsory retirement of the petitioner.
13. Thus, there is no merit in any of the contentions urged by the learned Counsel for the petitioner in support of the writ petition and the writ petition has to be dismissed.
14. Before concluding it may be observed that the learned Counsel for the petitioner has pointed out that under the impugned order dated 10th June, 1975, 6 Head Constables had been compulsorily retired and since then all of them, except the petitioner, have been reinstated and the petitioner alone was not been reinstated presumably because the present writ petition was pending in this Court. It will be open to the petitioner to move the Government for reconsideration of his case and I have no doubt in my mind that the Government will duly consider it and that the petitioner will not be made to suffer merely because he had approached this Court by way of writ petition.
15. With these obseivations, the writ petition is dismissed. There will be no order as to costs.