A.P. Sen, J.
1. This writ petition by Gafoor Mohammad is directed against an order of the District Excise Officer, Sri Ganganagar dated 14-8-75 for his compulsory retirement under Rule 244(2) of the Rajasthan Service Rules, 1951 on his completion of 25 years of qualifying service as Moharrir in the office of the District Excise Officer, Sri Ganganagar.
2. Though the petitioner had challenged the legality and validity of Sub-rule (2) of Rule 244 of the Rajasthan Service Rules on the grounds that the sub-rule violates Articles 14, 16. and 311 of the Constitution, their validity is beyond question. Their Lordships of the Supreme Court in Tarasingh v. State of Rajasthan : 3SCR1002 have held Rule 244(2) to be valid. That being so, the challenge to the constitutional validity of Rule 244(2) does not survive.
3. The only contention raised by Shri Singhvi, learned Counsel for the petitioner, is that, having regard to the Departmental Circular No. F.24(55) Apprt (A)57. Pt I/Gr II/CR dated 16-5-1963, the District Excise Officer, who is the appointing authority, was left with no option but to issue the impugned order of retirement It is urged that the appointing authority had no occasion to apply his mind to the question of the petitioner's compulsory retirement, because he had to follow the procedure laid down in the Departmental Circular referred to. It is said that the appointment of a Screening Committee puts a fetter on the exercise of the discretionary powers of the appointing authority and, therefore, the order of retirement is bad In support of the contention, reliance was placed on the decision of Kansingh J. in Sitaram Joshi v. State of Rajasthan 1970 RLW 256. In like circumstances, the learned Judge struck down the order of compulsory retirement passed by the Deputy Secretary, Appointments' Department under Rule 244(2), inasmuch as the question of retirement of the civil servant concerned came up for consideration before the Screening Committee, stating:
The use of expression 'full powers' is significant and is a clear pointer that the decision regarding compulsory retirement of a Government servant has to be that of the delegate namely, the appointing authority and of no other. The provisions for laying down the procedure by the Appointments Department can only contemplate 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. XXX XXX XXX XXX XXX
Therefore, looking to the entire context I am unable to construe the word 'shall' in the Government order dated 13-1-66 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.
Then, the learned Judge concludes:
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 scrutinising 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 no other.
4. The decision of Kansingh J. in Sita Ram Joshi's case, supra, is distinguishable. There, the learned Judge was faced With a situation where the appointing authority had not applied its mind. In the present cases the respondents have controverter the fact and filed an affidavit of the District Excise Officer stating that he had independently come to the conclusion that the retention of the petitioner was not in the public interest. There is no reason not to act on the affidavit. In somewhat similar circumstances, D.P. Gupta J in SB Civil Writ Petition No. 2527 of 1974 Manmal v. State of Rajasthan and Anr. decided on 30. 9.1975, held that Where the appointing authority Independently applies his mind to the question of compulsory retirement of a public servant under Rule 244(2) of the Rajasthan Service Rules, 1951, the order of compulsory retirement cannot be held to be invalid. In that connection, the learned Judge observed:
I am of the view that the in the face of the affidavit filed by the Appointing Authority himself in the present case, it could not be presumed merely because the order Ex 4 was in the prescribed form or the fact relating to the application of mind was not specifically mentioned, therein, that the Appointing Authority did not apply its independent mind to the question of compulsory retirement of the petitioner. There is no reason to disbelieve the affidavit of the Appointing Authority to the effect that he applied his mind to the proposal received from the Screening Committee and passed the order of compulsory retirement of the petitioner after careful consideration of the matter.
I am in respectful agreement with the observation of the learned Judge. As in Manmal's case, supra, learned Government Advocate placed before me the service record of the petitioner. On a perusal of the record, I am satisfied that the order of compulsory retirement was not unjustified. The order of retirement passed by the District Excise Officer was not without any justification. There was material on the basis of which the District Excise Officer could have formed the requisite opinion under the Rule 241(2). That be so, the order of retirement cannot be set aside as laid down by then Lordships in Tarasingh's case, supra.
5. The Writ petition, therefore, fails and is dismissed There shall be no order as to costs.