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Sultan Singh Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 178 of 1974
Judge
Reported in1979WLN(UC)377
AppellantSultan Singh
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredSmt S.R. Venkataraman v. Union of India and Anr.
Excerpt:
.....and the petitioner has failed co establish that shri paras ram maderna was bearing hostility towards the petitioner and that he had influenced the decision of the screening committee. officers, including the petitioner, found that the petitioner and three other officers were officers below average ability consistently for a period of last three years and hence the scrutinising committee recommended to the state government for compulsorily retiring the petitioner and that the impugned order for compulsory retirement of the petitioner was passed by the state government on the basis of the aforesaid recommendation of the screening committee. officers including the petitioner, who had completed 25 years of qualifying service were considered by the screening committee and the screening..........8th bt r a.g. (ir) jodhpur, he was served with the order dated 22nd jan, 1973, passed by the state government in exercise of the powers conferred on it under sub-rule (2) of rule 244 of the rajasthan service rules. the said order reads as under : -whereas shri sultan singh, asstt. commandant, has completed 25 years of qualifying service.now, therefore, in pursuance of sub-rule (2) of rule 244 of the rajasthan service rules, the state government hereby requires shri sultan singh by payment so 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. 2760/- in respect of three months pay and allowances in liew of three months previous notice is enclosed.being.....
Judgment:

S.C. Agrawal, J.

1. This writ petition has been filed by the petitioner Sultan Singh for the issue of an appropriate writ or direction, quashing the order dated 27th January, 1973, passed by the Government of Rajasthan, whereby the petitioner has been compulsorily retired from the service.

2. The facts, briefly stated are as under : The petitioner joined the service of the former State of Jodhpur as a constable on 30th May, 1942, He was promoted as a Head Constable in 1946 and on 15th December, 1947, he was promoted to the post of Prosecuting Inspector in the former Jodhpur State, After the formation of the United State of Rajasthan by the merged of the princely States including the State of Jodhpur, the petitioner became an employee of the Government of Rajasthan. In August, 1952, the petitioner was intagrated as Prosecuting Inspector in the State of Rajasthan By order dated 2nd June, 1956, the petitioner was promoted to the post of officiating Dy. Superintendent of Police but the subsequent order dated 22nd/23rd December, 1957, he was reverted to the past of Prosecuting Inspector. The petitioner was again promoted to the post of Dy. Superintendent of Police by order dated 9th June, 1966 and he was confirmed on the said post by order dated 14th August, 1967. While the petitioner was holding the post of Assistant Commandant 8th Bt R A.G. (IR) Jodhpur, he was served with the order dated 22nd Jan, 1973, passed by the State Government in exercise of the powers conferred on it under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules. The said order reads as under : -

Whereas Shri Sultan Singh, Asstt. Commandant, has completed 25 years of qualifying service.

Now, therefore, in pursuance of Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, the State Government hereby requires Shri Sultan Singh by payment So 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. 2760/- in respect of three months pay and allowances in liew of three months previous notice is enclosed.

Being aggrieved by the aforesaid order, the petitioner has filed this writ petition.

3. In the writ petition, the petitioner has challenged the validity of Rule 244(2) of the Rajasthan Service Rules on the ground that it is violative of the provisions of Articles 14, 16 and Article 311(2) of the Constitution and Section 115 of the States Reorganisation Act, 1956. The petitioner has also challenged the validity of the circulars dated 14th August, 1958, 19/26th April, 1972 and 19th June, 1972 issued by the Government of Rajasthan. The validity of the impugned order of compulsory retirement dated 27th January, 1973 has been challenged by the petitioner on various grounds including the ground that it was passed malafide and for extraneous considerations.

4. In so far as the constitutional validity of Rule 244(2) of the Rajasthan Service Rules is concerned, it may be observed that since after the filing the writ petition the Supreme Court, in Tara Singh etc. v. State of Rajas than and Ors. : [1975]3SCR1002 , has negatived the challenge to the validity of the aforesaid Rule on the ground that it is violative of the provisions of Articles 14, 19, 31 and 311(2) of the Constitution. In view of the aforesaid decision of the Supreme Court, the learned Counsel for the petitioner did not press his challenge to Rule 244(2) on the ground that it was violative of the provisions of Articles 14, 16 and 311(2) of the Constitution.

5. The learned Counsel for the petitioner, however, challenged the validity of Rule 241(2) on the ground that it was violative of the provisions of Section 115(7) of the States Reorganisation Act, 1956 in as much as under the impugned Rule, the conditions of service of the petitioner, which were applicable immediately before the appointed day i e. 1st November, 1956, had been varied to the disadvantage of the petitioner without obtaining the previous approval of the Central Government. In this regard the submission of the learned Counsel for the petitioner is that under Rule 244(2), as it stood on 1st November, 1956, it was laid dawn that the Government retained an absolute right to retire any government servant after he had completed 25 years' qualifying service without giving any reasons and that the said right could not be exercised except when it was in the public interest to dispense with the further service of a government servant The learned Counsel for the petitioner has submitted that Rule 244 (2) was amended by the State Government after 1st November, 1956 and that in the Rule, as it stood on the date of the passing of the impugned order of compulsory retirement, it was laid down that the Government may, after giving him three months previous notice in writing, require a government servant to retire from the service on the day on which ha completes 25 years' of qualifying service or attains the age of 55 years or any date thereafter to be specified in the notice. It is submitted that the requirement that the right to retire any government servant would not be exercised except when it was in the public interest to dispense with further service of a government servant, has been deleted in the amended Rule and that such an amendment in Rule 244(2) varied the conditions of service of the petitioner to his disadvantage. In my opinion, the aforesaid submission of the learned Counsel for the petitioner cannot be accepted in view of the decision of the Supreme Court in Tara Singh v. State of Rajasthan and Ors. : [1975]3SCR1002 , wherein the Supreme Court has observed that even after the amendment of Rule 244 (2) the power to pass an order of compulsory retirement could be exercised only in public interest in view of the notes which are appended in the Rule and which were made contemporaneously with the Rule and prescribe that the right to pass an order of compulsory retirement is to be exercised only against the Government servant whose efficiency is impaired and against whom it is nut desirable to make formal charges of inefficiency or who has ceased to be efficient but not to such a degree as to warrant his retirement on compassionate allowance. This shows that the amendment in Rule 244(2) deleting the words which required that compulsory retirement would be made in public interest, does not vary the conditions of service of the petitioner to his disadvantage. Moreover, I am of the opinion, that it is not open to the petitioner to invoke the provisions contained in Section 115 (7) of the States Reorganisation Act, 1956 in as much as the rights that have been conferred under the proviso to Sub-section (7) of Section 115 of the States Reorganisation Act are only in respect of the conditions of service of persons referred to in Sub-sections (1) and (2) of Section 115 of the said Act. Sub-section (1) of Section 115 refers to persons who immediately before the appointed day were serving in connection with the affairs of the Union under the administrative control of the Lieutenant-Governor or Chief Commissioner in any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra. Sub-section (2) of Section 115 refers to persons who immediately before the appointed day, were serving in connection with the affairs of an existing State part of whose territories has been transferred to another State by the provisions of part II of the Act. The petitioner, who was an employee of the State of Rajasthan on 31st October, 1966, is neither covered by Sub-section (1) nor Sub-section (2) of Section 115 of the Act, and, there-fore, he cannot claim any rights under Sub-section (7) of Section 115 of the Act and it is not open to him to challenge the validity of Rule 244 2) of the Rajasthan Service Rules on the ground that it violates the provision of the proviso to Sub-section (7) of Section 115 of States Reorganisation Ace, 1956.

6. In so far as the validity of the circulars dated 18th August, 1958, 19/26th April, 1972 and 19th June, 1972 is concerned, it may be observed that the validity of the aforesaid circular has been upheld by a learned single Judge of this Court in Deepchand Jain v. State of Rajasthan 1972 WLN 1015 and in view of the aforesaid decision, the learned Counsel for the petitioner did not persist in his challenge to the aforesaid circulars.

7. As regards the impugned order of compulsory retirement the first contention urged by the learned Counsel for the petitioner it that under Rule 244(2) of the Rajasthan Service Rules, as it stood on the date of the passing of the impugned order, the State Government could retire compulsorily a government servant on his completing 25 years qualifying service or on attaining the age of 55 years after giving him three months previous notice in writing and that under the said Rule, there was no provision enabling the Government to compulsorily retire a servant on payment of three months pay in lieu of notice and that such a provision was inserted for the first time in Rule 244(2) when the said Rule was amended on 2nd September, 1975. The submission of the learned Counsel for the petitioner is that till 2nd September, 1975 it was not permissible for the State Government to compulsorily retire a government servant by paying him three months pay in lieu of notice and the impugned order whereby the petitioner was compulsorily retired from service by payment of three months pay in lieu of notice was illegal and void. In reply to the aforesaid submission of the learned Counsel for the petitioner it has been submitted by the learned Dy. Government Advocate that Rule 244(2) was amended with retrospective effect with effect from 19th August, 1972 by the Rajasthan Service (Amendment) Rules, 1976 and that as a result of the aforesaid amendment, Rule 244(2) as it stood on the date of the passing of the impugned order provided as under:

(2) The Government may after giving atleast three months 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 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 learned Counsel for the petitioner, however, submits that the aforesaid retrospective amendment in Rule 244(2) did not have the effect of validating the Impugned order dated 27th January, 1973 which was null and void in view of the provisions of Rule 244(2) as it stood on the date of the passing of the said order and that the subsequent amendment of the Rules, even with retrospective effect, could not have the effect of validating an order which was void abinitio.

8. In my opinion, the aforesaid contention urged by the learned Counsel for the petitioner cannot be accepted It is sealed law that the Governor, in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution, can frame Rules regulating the conditions of service of a govern' servant with retrospective effect (B.S. Vadera v. Union of India : (1970)ILLJ499SC . The legal consequence of the amendment of Rule 244 2) with retrospective effect would be that the Rule, as amended should be treated to have been in the Statute book on the date when the impugned order was passed and if that is the consequence of the retrospective amendment of Rule. 244 2), it will not be open to the Court to say that the impugned order was void ab initio on the ground that it was not passed in accordance with the provisions of the Rules as they actually stood on the date of the passing of the impugned order. The effect of the retrospective amendment of a Rule framed under Article 309 of the Constitution has been considered by the Supreme Court in Rajkumar v. Union of India and Ors. : [1975]3SCR963 . The said case arose out of an order of termination of services of a temporary government servant. Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 as it stood on the date of the passing of the impugned order of termination provided that the Government could terminate the services of a temporary government servant at any time by giving one months' notice in writing or on payment of a sum equivalent to the amount of pay and allowances for the period of notice. The Supreme Court in an earlier decision, in Senior Superintendent, R.M.S, Cochin and Anr. v. K.V. Gopinath : (1972)ILLJ486SC , had laid down that the amount of pay and allowances for the period of one month, in lieu of notice must be paid in the hands of the employee or made available to him at the same time as he was served with the order of termination, and in the event of failure to do so the order of termination would be illegal. After the aforesaid decision of the Supreme Court, Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965 was amended with retrospective effect from 1st May, 1965 and as a result of the aforesaid amendment, it was provided that the services of any government servant could be terminated forthwith and on such termination, the Government Servant shall be entitled to claim a sum equivalent to the amount of his pay and allowances for the period of notice at the same rate at which he was drawing them immediately before the termination of the service. In other words, as a result of the aforesaid amendment, it was no longer obligatory for the Government to pay to the Government Servant the sum equivalent the amount of pay and allowances for the period of the notice simultaneously with the service of the order of termination and the Government servant was entitled to claim said sum In Raj Kumar's case AIR 1975 SC 1116 the impugned order of termination was passed on 15th June, 1971 and the employee was not paid the sum equivalent to the amount of pay and allowances for a period of one month (in lieu of the period of notice) before the date on which the order was served on him and in view of the decision of the Supreme Court in Gopinath's case AIR 1972 SC 1487 the order was illegal and void on she date when it was passed. It was submitted before the Supreme Court that the aforesaid retrospective amendment in the Central Civil Services (Temporary Service) Rules, 1965 did not have the effect of validating orders of termination which had been passed before the aforesaid amendment was introduced in as much as the orders were void on the date of the amendment. The Supreme Court rejected the said contention and has observed that:

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 aforesaid decision of the Supreme Court is applicable to the facts of the present case and it must be held that the impugned order which was passed after 19th August, 1972, the date on which the amended Rule 244(2) was brought into force, should be deemed to have been passed under Rule 244(2;, as amended, arid, therefore, the said order cannot be held to be bad on the ground that it did not provide for giving three months' notice and provided for payment of three months pay in lieu of notice.

9. The second contention urged by the learned Counsel for the petitioner is that the impugned order was passed malafide. In this regard the petitioner had submitted that Shri Paras Ram Maderna, who was a Cabinet Minister in the Government of Rajas than at the time of the passing of the impugned order, was annoyed with one Shri Thana Ram, Pradhan of the Panchayat Samiti, Luni and that the petitioner was inquiring into a complains against the said Shri Thanaram. The case of the petitioner is further that in August, 1972, Shri Paras Ram Maderna called the petitioner in the Circuit House, Jodhpur, and pressed him to give a report against Shri Thana Ram and when the petitioner expressed his inability to do anything except to correctly report the matter, Shri Paras Ram Maderna felt very much annoyed with the petitioner and with a view to teach a lesson to she petitioner for not acting according to his instructions, Shri Paras Ram Maderna got the order passed for the compulsory retirement of the petitioner. The aforesaid averment has been denied in the reply filed on behalf of respondents Nos. 1 and 3, wherein it has been pointed out that the petitioner had filed an affidavit dated 7th February, 1973 in S.B. Civil Writ Petition No: 647/72 (Shri Thana Ram v. State of Rajasthan and Ors. decided on 7th May, 1973) and in the said affidavit he has stated that Shri Paras Ram Maderna had met with the petitioner at' Circuit House, Jodhpur in August, 1971, whereas in paragragh 15 of the present writ petition, the petitioner has stated that Shri Paras Ram Maderna met him at Circuit House, Jodbpur, in August, 1972. In the counter Affidavit filed on behalf of respondents Nos. 1 to 3 it has been pointed out that the aforesaid averment in the affidavit filed by the petitioner in Civil Writ Petition No. 947/72 has been disbelieved by this Court in its judgment dated 7th May 1973 in the said writ petition. Shri Paras Ram Maderna, respondent No. 4 has also filed on affidavit, wherein he has denied the fact that he was annoyed with Shri Thana Ram or with the petitioner In his affidavit Shri Maderna has stated that he had nothing to do with the passing of the impugned order in as much as he was never in charge of the Home or Appointments Department and he had no occasion to talk about the petitioner to any member of the Screening Committee formed for scrutinising the service records of R.P.S. personnel. In the affidavit aforesaid Shri Maderna has also stated that he never met with the petitioner at the Circuit House, Jodhpur, in August, 1972 and never asked him to give report against Shri Thana Ram. In the affidavit of Shri Maderna, reliance has also been placed on the decision of this Court in S.B. Civil Writ Petition No. 647/72 Shri Thana Ram v. State of Rajasthan and Others decided on 7th May, 1973, wherein an allegation had been made against Shri Maderna in the affidavit of the petitioner to the effect that Shri Maderna had met the petitioner at Circuit House, Jodhpur on 26th August, 1972 and had asked him to give a report against Shri Thana Ram and that the said affidavit of the petitioner has been disbelieved by this Court. From the replies filed on behalf of the respondents it appears that the impugned order for compulsory retirement of the petitioner was passed in a regular manner on the basis of the recommendation of the Screening Committee corn posed of senior officers and the petitioner has failed Co establish that Shri Paras Ram Maderna was bearing hostility towards the petitioner and that he had influenced the decision of the Screening Committee. The contention that the impugned order was passed malafide at the instance of Shri Paras Ram Maderna, cannot therefore, be accepted.

10. The third contention of the learned Counsel for the petitioner is that there was no material before the State Government on the basis of which it could form the requisite opinion that the compulsory retirement of the petitioner was in public interest. The learned Counsel has submitted that the impugned order of compulsory retirement was passed without taking into consideration the service record of the petitioner and that there was non-application of mind by the State Government in passing the impugned order. In the reply filed on behalf of the respondents it is stated that the order for compulsory retirement of the petitioner was passed after fully considering the entire service record of the petitioner and it was found that the service record of the petitioner in comparison to the other officers of his rank was below standard. In the reply aforesaid, it is further stated that the record of the petitioner after 1953 had been unsatisfactory and the Screening Committee which had reviewed the cases of 65 R.P.S. Officers, including the petitioner, found that the petitioner and three other officers were officers below average ability consistently for a period of last three years and hence the Scrutinising Committee recommended to the State Government for compulsorily retiring the petitioner and that the impugned order for compulsory retirement of the petitioner was passed by the State Government on the basis of the aforesaid recommendation of the Screening Committee. It is settled Jaw that the question whether any particular officer should be retired compulsorily or not is a matter for the State Government to consider and this Court cannot be expected to substitute its own view or its own discretion instead. In the present case in view of the reply filed on behalf of the State Government that the case of the petitioner had been considered by' the Scrutinising Committee, and therefore, the impugned order was passed, it is not possible to accept the contention urged by the learned Counsel for the petitioner that there was no material on record on the basis of which the State Government could pass the impugned order of compulsory retirement or that the said order was passed by the State Government without applying its mind. The decision of the Supreme Court in Smt S.R. Venkataraman v. Union of India and Anr. : (1979)ILLJ25SC , on which reliance has been placed by the learned Counsel for the petitioner has no application to the present case in as much as in the said case it had been conceded by the counsel for the Union of India before the Supreme Court that these was nothing on the record which could justify the order of compulsory retirement which was impugned in the said case. In the present case the respondents have placed on record the fact that the service record of the petitioner after 1953 has been unsatisfactory and the Scrutinising Committee after countering the case of the petitioner had found him to be an officer of below average ability consistently for the period of last three years.

11. The next contention of the learned Counsel for the petitioner is that in passing the impugned order, the procedure laid down in the circulars dated 13th August, 1958, 19th/26th April, 1972 and 19th June, 1972, has not been followed, In my opinion this contention also cannot be accepted in view of the reply filed on behalf of the respondents that the procedure and the manner enumerated in the said circulars was followed in present case and that the case of the 66 R.P.S. officers including the petitioner, who had completed 25 years of qualifying service were considered by the Screening Committee and the Screening Committee after considering the case of the 65 RPS, Officers, recommended four officers, including the petitioner, for compulsory retirement.

12. The contention of the learned Counsel for the petitioner that the impugned order of compulsorily retirement was passed in contravention of the provisions of Rule 31 (a) of the Rules of Executive Easiness also has no force in view of the reply filed on behalf of the respondents that as for the said Rule the matter was submitted to the Chief Minister and the Governor and that after their full satisfaction the impugned order of compulsory retirement was passed.

13. Thus, I find that there is no merit in any of the contentions which have been urged by the learned Counsel for the petitioner.

14. The writ petition is, therefore, dismissed but in the circumstances of the case, there will be no order as to costs.


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