No. Estt/3504 Dated the 30th November, 1973To;
Shri Madan Raj Dhariwal,
UDC Treasury Office,
WHEREAS Shri Madan Raj Dhariwai, UDC has completed 25 years of qualifying service.
Now, therefore in pursuance of the delegation made under sub rule (2) of rule 244 of the Rajasthan Service Rules, vide Finance Department Order No. F. 1 (34) FD.A/Rules/62 dated 13-12 63 the undersigned hereby requires Shri Madan Raj Dhariwal, UDC by payment to him of three months pay and allowances In lieu of three months previous notice to retire from the service on the date of receipt of this order by him.
A bank draft of the amount of Rs 1524/ on the SBB & J. Jalori Gate JU. in respect of three months pay and allowances in lieu of three months previous notice is enclosed
Encl. as above
2. Accerding to this notice, the Collector, Jodhpur. exercising the powers under Rule 244(2) of the Rajasthan Service Rules, 1951 In pursuance of delegation, directed that the said Madan Raj, an UDC of the State Government to retire from the service on receipt of the order. Three month's salary of Rs. 1524/- was paid to him. by this letter by a draft of it annexed to it, and this was done, in lieu of 3 months notice Rule 244,2) is as under:
244 (2) Government retains an absolute right to retire any Government servant after he has com pie ed 25 years qualifying service without giving any reasons and no claim to special compensation on this account will be entertained This right will not be exercised except when it is in public interest to dispense with further service of a Government servant.
The petitioner has challenged this order on a number of grounds, the principal being that the appointing authority of the petitioner never applied his mind on the crucial question whether the petitioner deserves to be compulsorily retired under rule 244
3. The principal allegation is contained in para No. 1 of the grounds:
(1) That it is ex facie clear frvm the impugned order dated 30-11-73 that the older has been passed by the Collector, Jodhpur in pursuance of the delegation made to him under sub rule (2) of Rule 244 the RSR vide F. Order No. 1 34 FD A/Rules/62 dated 13-12-1963. A perusal of this circular would show that the procedure provided in this circular does not leave any amount of discretion with the appointing authority to pass the final orders. The recommends lions made by the Committee are received by the appointing authority and the appointing authority has to issued the order of compulsory retirement in the specimen enclosed. Thus it in clear that in the petitioners case the appointing authority had no occasion to apply its' mind whether the petitioner should be given compulsory retirement or not In substance the petitioner has been made to retire only on the basis of the recommendations of the Committee and virtually ft amounts to be the order of the Committee itself which has no authority to give compulsory retirement The appointing authority has acted only as a post office and a signing machine On this ground It is absolutely illegal and the impugned order deserves to be quashed and set aside. It may also be mentioned herein that the law laid down by the Rajasthan High Court in its decision reported in 1970 RLW page 256 Sita Ramjoshi v. Stale of Rajasthan is fully applicable to the petitioners case and the impugned order cannot be sustained in the eye of law The decision of the Rajasthan High Court referred to above was also upheld by the Division Bench of the Rajasthan High Court. The matter was taken up to the Supreme Court by the State In that case and In the Supreme Court also the State appeal was dismissed.
4. The Government of Rajasthan Finance Department issued order dated 13th December, 1963 for delegation of powers, which is as under:
Government of Rajasthan
Finance Department (Expenditure-Rules)Sub :-Delegation of Power
In supersession of the Finance Department order No. F. 7A (43)FD Article rule 57 dated the 13th March, 1961 the Governor has been pleased to delegate the following powers Under Rule 244(2) of the Rajasthan Service Rules. The action taken under the orders superseded shall be deemed to have been taken under the appropriate orders:
Nature of power
Name of Service
Authority to which power is delegated
Extent of power delegated
Power to retire Government servants afterattaining the age of 55 years
1. State service
Government in the Administrative Department
Full powers provided that the procedurelaid down in the apointments (A-II) Deptt. Order No. F. 1 (36) Appts A II/63 dated 29 9-63 is followed
2, Subordinate service (Gazetted and nongazetted posts.
Heads of the Department.
3. Ministerial service Gazetted and nonGazetted posts) (1) State service
Power to retire Govt. servants aftercomple-titlon of 25 yrs. of qualifying service
Government in Administrative Department
Full powers provided that :
(i) the procedure laid down in Appointment Circular No. F. 24 (55) Appts. (a) 57 dated 18 8 1958
read with subje-quent circulars dattd 17-11-58 and 4-10-1958 and as amendedhereafter from time to time is followed in respect of Gazetted Officersbelonging to any of the service
(2) Subordinate service (Gazetted and nonGazetted post)
(3) Ministerial service Gazetted and nonGazetted posts
(ii) the procedure laid down in Appointments (A- II GR) Department circular No. F. 24 (55) Apptts. (A) 57/pt. I/Cr. II/CR. dated 16-5-63 as amended from time to time is followed in respect of the subordinatenon-gazetted staff
(iii) the procedure to be laid down by theAppointments (A-ii) Department is allowed in respect or' ministerialStaff (non gazetted,'
5. It has pointed out by Mr Calla, appearing for the petitioner that at Section No. 3 the delegation was dour for No. 4 and it was mentioned that the procedure to be laid down by the appointments department, is to be adopted in respect of ministerial staff (nongazetted) and as per Section No, 3 was appointing authority. It was then pointed out that by virtue of circular dated 20-4-72, pars No. 6 the procedure for screening and (sic)scrutinising was mentioned as follows:
Staff in the District is including staff of the Range level officers I.E. DIG DY. Directors etc.
1. Collector of the District concerned Governor
2. Appointing authority concerned if It is an authority other than the Collector, otherwise a Senior officer nominated by the Collector Member.
The Committee shall draw up (sic)adjist of officials to be compulsorlly retired. Unless the record is particularity adverse, a person should not be men needed for compulsory retirement, if he is due to be (sic)superanrnated by the and of the next calender year. In other cases, adverse repots should be given due weight. The list in respect of each department should be drawn as early as possible so as to leave sufficient margin for the further processing of the case and to enable the person to be retired compulsory to avail of leave permissible to him.
On receipt of the recommendations of the Committee, retirement orders shall be issued immediately by the concerned appointing authority, as per specimen enclosed.
The official will be allowed to proceed on privilege leave and half pay leave admissible to him but not exceeding 80 day in all. The leave and the notice period will run concurrently, if leave is availed of In such cases, the retirement shall take effect after the expiry of the leave. The most import thing in such cases to be kept in mind is that no body should be retired before the completion of 25 years qualifying service, and the retirement orders should be so planned to the that the 3 months notice as provided under Rule 244(2) of the RSR will be given and if the individual concerned wants to continue during the notice period he may be permitted to do so.
Heads of Departments and others shall maintain a Register containing the followings headings in respect of those who are recommended for compulsory retirement by the Committee:
1. S. No.
2. Name of the official
4. Office to which he belongs
5. Date of birth
6. Date of commencement of qualifying service
7. Date of Completion of 25 years qualifying service
8. Date of superannuation
9. Recommendations of the Committee
10. Number and date of order of compulsory retirement. Issued by the Appointing Authority
11. The effective date of compulsory retirement
As this procedure has the effect of curtailing the working life of officials fairly advance in life, the recommendations of the Committee should be made after due care and caution.
6. Mr. Calla pointed out that in para No. 6 the Collector of the district is the convenor
7. At this stage, Mr. M.D. Purohit, learned Additional Government Advocate made a request daring the dictation of judgment, on the second day, that since the State has not filed a reply. time may be allowed for filing the reply and the case may be adjourned. Mr. Puronit submitted that there are many facts which require the counter by the State. Although this is not practice of the Court to allow, making of such prayer during the dictation of the judgment but as the hearing was conducted in the absence of the reply, I consider it to hear Mr. Purboit, if be can assist the Court, in any manner, on the basis of the available record.
8. So far as, the granting of time is concerned, this writ application has remained pending since 1974. The rules of the High court permit 3 months' time to the respondents to file reply after service. In the instant case, the respondents could not file the reply for such a long period of about 5 to 6 years. Insplte of that, if such a request would have been made, when the case was shown in the cause list or even before the hearing commenced yesterday, there would have been some reason for considering it, theugh it is very doubtful that the request would have been accepted. Further in this space age when a man goes in the moon in a few hours, if the administrative machinery of the State, having all resources, cannot file a counter for a long period of 5 years. it speaks itself and requires no comment.
9. All that can be said is, that if a civil servant's matter of removal remains pending in the High court for 5 years or 6 years, that itself is a matter of great concern and it should be avoided. Adjourning it now, on a wholly (sic)unjstified request, would be adding insult to injury, caused to a petty employee, by kesping his fate undecided for such a long period. That being so, the request of Mr Purohit could not be accepted, although he was heard on the merits of the case on the basis of the available record.
10. So far as the various points taken in the writ application is concerned, most of them are covered by a series of judgments of this Court and the Hon' ble Supreme court and the petitioner has also in all fairness not argued them.
11. The two fold submission is based on the contention, that appoint ting authority has not applied his mind and the impugned order cannot be said to be the result of his decision, because he was only a member of the Committee, that considered the case of the petitioner. This factual aspect is also not in dispute. In (sic)sita Ram Joshi v. state of Rajasthan and Ors. (1) this Court considered this question at length, and the learned Judge took pains, to point out that in a case where the appointing authority is only one of the member of the Committee screening the case of a civil servant for compulsory retirement, the decision cannot be said to be of the appointing authority. Interesting illustrations, were given. The relevant observations are as under:
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 petioner 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 plus B plus C. but this can never mean A is the same as Ax Bx C. To illustrate May point I my just give an example; A, an appointing authority may be sitting with B & C in the Committee. A may take an opinion different from B & 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 majority decision. Therefore, 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 orded dater 13.1.64 the appointing authority will be powerless to give affect to its own opinion. It was submitted by learned Additional Government Advocate that this have never happened because it is only such cases as are sent by the appointing authority that go to the Scrutiny Committee. The appointing authority draws up a tentative list, no doubt, but by no means that is a form of 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 the opinion in the Committee that the civil servant should not be retired and yet the recommendation 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
12. In view of the above elaborate and well reasoned discussion In (sic)Sitaram Joshi case (cited supra), it is not necessary for me to again consider, this aspect of the matter afresh. In the instant case, the appointing authority was convenor and the member who was with him may be some officer who was not senior to him, as was in Sitaram Joshi's case. But that makes no difference, because after all, when three ate 2 members sitting in a Committee it is (sic)dificult to find out as to whose opinion weighed in the final decision of the case.
13. It is note worthy that in the instant case, even the respondents have not dared to (sic)controvort the facts, on this aspect of the matter, and take a plea that the decision was of the appointing authority and appointing authority only Even if that plea would have been taken, it is very doubtful that it would have succeeded. But in the absence of such a plea, any further (sic)consicoration is not required on this aspect of the matter.
14. In Sltaram Joshi's case, it would be seen, from the observations extracted above, the learned Judge also took the same view about the possibilities of, and what might have happened in such a case. While doing so, he observed as under:
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 the Government Officers may be very good people and they may be acting most conscientiously, but thet 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 ere there on such a Committee. In the present case the Special Secretary to the Government in the Appointments Department was the convener and also as Secretary in the Appointments Department he issued the directions as contained in paragraph 35 of the rote that order be issued. I fail to Section 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 taken by the Government in their reply which was signed by an officer in the secretariat 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 (sic)uested with the statutory discretion, it was the duty of the appointing authority to have applied its mind on the case independently. The recommendations of a (sic)scrutinsing body could be of use in better informing the mind of the appointing authority, but they cannot take the place of the 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 not others.
15. Thus, the bedrock of the impugned order being missing by the decision having not been taken by the appointing authority, the impugned order cannot be sustained.
16. It is true that once it is establishes that the order was passed by the applinting authority, then normally, the matter would not be justicable, unless malafides are established or it is showa that it was passed on extraneous or irrelevant facts or factors, in a given case But that situation arisen only, once, it is proved that the appointing authority was in fact satisfied.
17. The second contention of Mr. Calla is that even otherwise, an order for compulsory retirement, can only be issued when it is found that the efficiency of an employee has been impaired. In other words, (sic)impariment of the efficiency of a civil servant is a line quo none, for compulsory retirement under rule 244(2) Of the Rajasthan Service Rules.
18. Reference has been made in this connection to the Government decision appended to rule 244(2), which reads as under:
1. The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the (sic)intentlon to use this rule as a financial weapon, that is to tay, the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds.
According to the judgment in Tara Singh v. State of Rajasthan. : 3SCR1002 the note appended to the rule is to be treated as part of the rule itself. The relevant observations are as under:
Rule 244(2) as it stands now does not specifically mention that an order is to be passed in the public interest. The notes to the rule indicate that the right to pass an order of compulsory retirement is to be exercised only against the Government servant shose efficiently is imparted and against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowances. The notes further say that it is not the intention to use this rule as a financial weapon that is to say, that the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when the rules are silent the notes will fill up gaps
It would thus, be seen that, unless It is shown that efficiency of the civil servant has been impaired, he cannot be compelled to retire, by compulsory retirement, under this rule. In the instant case, it has been alleged in clause 2 of para 21, that petitioner was very efficient, when is as under:
(ii) That tie compulsory retirement under rule 244(2) can be given in the case of impaired efficiency only. In the petitioner's case there are no grounds to suggest that he was Impaired of his efficiency nor there is any finding to this effect against the petitioner. On the basis of petitioner's service record alto it cannot be said that he was impaired of his efficiency. The impairement of efficiency is another condition precedent for the purposes of exercise of rule 244(2) which is missing in the petitioner's case.
On the contrary, the facts stated herein above would show that the petitioner was never impaired of his efficiency and till 19th November, 1973 he was taken to be a hard worker and his work was found to be satisfactory. Therefore, there is no question of the impairment of efficiency in the petitioner's case. The fact that the petitioner was allowed to cross the efficiency bar also goes to show that he was fully efficient and there was nothing to suggest the impairment of efficiency in his case Once he is allowed to cross the efficiency bar, the Government is precluded from taking the position that the petitioner's case was a case of impaired efficiency.
The impugned order also does not disclose that it was passed on the ground of impaired efficiency and the order is not a speaking order and therefore also the impugned order dated 30-11-1973 deserves to be quashed and set aside
19. The allegations of fact have not been challenged by a reply of the respondents or any affidavit or counter or showing of any record by the respondents. That being so, according to dictum of the Hon'ble Supreme Court laid down In Pratap Singh v. State of Punjab (3) and Jahuri Sah and Ors. V. Dwarika Prasad : (1966)ILLJ458SC when the petitioner's affidavit on facts remain (sic)unrebutted by the respond and the court can presume that the facts alleged by the petitioner are correct.
20. It is true, that if the respondent would have controverted these facts, then this Court would rot have considered the factual aspect of the matter, whether efficiency was in fact impaired or not. But when the allegation, that (sic)relitement has been made, impaired of the fact that efficiency has not been impaired, has not been rebutted in any manner, whatsoever, nor it has been challenged, there appears to be no reason to disbelieve the version of the employee, who was filed affidavits in support of his writ application.
21 The normal tenure of a civil servant can be curtailed, by compulsory retirement, only on the basis of impairing of his efficiency and, not otherwise. It is true that the reasons for compulsory retirement, are not judicable, and this Court would not sit, as an appellate forum for having a judicial review of them. As mentioned above, when there is no challenge, no rebuttal no reply no counter, no affidavit to controvert the facts of the petitioner, there is no escape but to accept the version of the petitioner. That being so, even on this ground the impugned order deserves to be quashed, as it has been passed against an employee basically without there being any evidence or finding of efficiency, having been impaired.
22. I am, therefore, of the opinion, that on both the grounds, the writ petition deserves to be accepted, The writ application is, therefore, accepted The impugned order of 30-11-73, is quashed and respondents are directed to treat the petitioner in service and give him all consequential benefits after reinstating him in service. As the respondents have not filed reply for contesting the petition, there would be no order as to costs.