C.M. Lodha, J.
1. This writ application is directed against the order of the Government of the Rajasthan, Medical and Public Health Department No. F.1 (142) MPH/74/Gr II dated 17th October, 1975 marked Exibit 17 at page 92 of the Paper Book by which the petitioner, who was Professor of Physiology S.N. Medical College, Jodhpur, was compulsorily retired from service on the date of receipt of the order by him after completion of twenty years service by payment of three months pay and allowances in lieu of three months previous notice.
2. The petitioner's case is that be was appointed by the Government of Rajasthan as Demonstrator in Physiology after passing MBBS on February 28, 1958 and by dint of his merit and high academic qualification's which he acquired later on he was promoted as Professor in Physiology on March 30, 1963 in RNT Medical College, Udaipur. He goes on to state that he was awarded merit pay by order dated April 30, 1966 marked Exibi1, under the Rajasthan Civil Services (Merit Pay) Rules, 1961. This merit pay continued for a period of five years upto April 30, 1971 & the period was further extended for five years, In this connection, it has also been stated by him that the merit pay was enhanced from Rs. 100/- to Rs. 200/- p.m., from June 11, 1973 under the Rajasthan Civil Services (Grant of Rewaid, Merit Awards and Merit Certificates) Rules, 1973. The petitioner has also made mention of an outstanding research work conducted by him in the subject of Physiology, Inspite of his merit and efficiency the petitioner's case is that for extraneous reasons and on account of bias against him certain adverse remarks were made against him in the Confidential Roll of 1966 67. He also admits that during the year 1967-68 certain adverse remarks were recorded against him on report of Dr. P.D. Mathur. Principal of S.P. Medical College, Bikaner. Thus it is the admitted case of petitioner that a warning was given to him by order dated January 22, 1969 and a penalty of censure was also imposed upon him by order dated May 2, 1970. There is further no dispute that all efforts made by the petitioner to get the penalty of censure quashed proved fruitless. The petitioner's case, in brief is that he is a highly merited and efficient officer well versed in his Subject and the order of compulsory retirement has been passed against him without forming the requisite opinion and that the order is based on collateral and arbitrary grounds. The order has also been assailed on the ground that it has been passed malafide and on account of personal bias against him. In this connection it has also been pointed out that, Rule 241(2) of the Rajasthan Service Rules, 1951 as amended is bad inasmuch as it cannot apply to him retrospectively, as his appointment was made long before the Rule came into force The validity of the order has been attacked on the ground that the petitioner could not take the benefit of the earned leave. Lastly it was contended that the period of twenty years service of qualifying service is unreasonable and consequently the Rule is liable to be struck down.
3. A large number of cases have been cited by learned Counsel for the petitioner in support of his various contentions. But, I propose to refer to only those rulings in which the position of law with respect to compulsory retirement has been clinched. In Tarasingh etc. v. State of Rajasthan and Ors. AIR 1975 SC 1787 their Lordships, after making reference to earlier Supreme Court Cases on the point vis. Shyamlal v. The State of UP : (1954)IILLJ139SC , T.C. Shivacharansingh v. The State of Mysore : (1967)IILLJ246SC . Uonin of India v. Col J.N. Sinha : (1970)IILLJ284SC and R.L. Bhutail v. Union of India (1971) 2 SC 40, were pleased to observe that the absolute right to retire an officer who has completed twenty five years service is confarred on the Government. It was further observed that:
The right to be in public employment is a right to hold it according to rules, The right to hold is defeasible according to rules The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to being any charge of in efficiency or in competency the Government passes order of such compulsory retirement. The Government servant in such a case does not lose the benefits which a Government servant has already earned. These orders of compulsory retirement are made in public interest. This is the safety valve of making such orders so that no arbitrariness of bad faith creeps in.
4. In Dr. N.M. Putta Bhatta v. The State of Mysore and Anr. : (1972)IILLJ191SC it was held that so long as the right is not qualified, the right of the Government to retire a Government servant compulsorily must be held to be absolute. The theory of the right being absolute was succinctly laid down by their Lordships in R.L. Butail v. Union of India : (1970)IILLJ514SC . Union of India v. Col. J.N. Sinha : (1970)IILLJ284SC while discussing the scope of fundamental Rule 56(j). The Court observed:
The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the condition mentioned in the rules, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bonafide forms that opinion, the correctness of that opinion cannot be challenged before the Court. It is open to an aggrieved party to contend that the requisite opinion has not been formed of the decision is based on collateral grounds or that it is an arbitrary decision.
5. The impugned order of compulsory retirement has been passed against the petitioner under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules. It reads as under.
(2) The Government may, after giving at least 3 months previous notice in writing or by payment of three months' pay and allowances in lieu of such notice require a Government servant to retire from the service op the date on which, he completes 20 years of qualifying service or the date on which he attains the age of 60 years whichever is earlier, or on any date thereafter.
6. There is no denying the fact that the petitioner had completed twenty years of qualifying service and he had also attained the age of 50 years when the impugned order of compulsory retirement was passed. The only question to be examined is whether the requisite opinion has not been formed or the decision is based on collateral ground or that it is an arbitrary decision.
7. Admittedly certain adverse remarks were recorded in the annual Confidential Report of the petitioner for the year 1966-67 while the petitioner was working under P.D. Mathur, the Principal R.N.T. Medical College, Udaipur. Again, adverse remarks were recorded against the petitioner during the year 1967-68. Subsequently by order dated January 22, 1969 the petitioner was given a warning to work with caution in respect of administrative matters. Initially he was charge sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 but the enquiry was later on converted to one under Rule 17 and as stated above, the petitioner was given a written warning Again in the next year a penalty of censure was imposed upon the petitioner by order dated May 2, 1970 After exhausting the departmental remedy by way of appeal etc the petitioner also filed a writ application in this Court against the order of imposition of the penalty, but he was unsuccessful. Copies of the charge sheet as well as the statement of allegations have been put on record and have been marked Ex. SR/1 and Ex. SR/4 respectively. Ex. SR/2 is the order dated May 2, 1970 imposing the penalty of censure upon the petitioner A screening committee was constituted to scrutinize the officers of the Rajasthan Medical Service (Collegiate Branch) who had completed 21 years of qualifying service and or had attained 50 years of age in the pursuance of the various circulars issued by the State Government in order to find out whether any of the officers deserved to be compulsorily retired under Rule 244(2) of the Rules. The Screening Committee after going through the service records, annual Confidential Reports and personal file of the petitioner recommended his compulsory retirement and the recommendation of the Screening Committee was approved by the State Government. The report of the Screening Committee as well as the approval of the State Government recorded thereon have been shown to me. It has been asserted by the State Government that the petitioner's compulsory retirement was in the public interest and further that it was neither based on collateral grounds nor is arbitrary. It is thus clear that the requisite opinion was formed in the present case and the decision arrived at by the Government cannot be said to be arbitrary nor can it be successfully asserted that the decision is based on collateral grounds.
8. It has, however, been argued by the learned Counsel for the petitioner with great emphasis that there was no material before the Government on which the impugned order could be based. In this connection, it has been pressed upon me that the petitioner was awarded merit pay vide order dated April 30, 1966 (Exhibit-1) under the Rajasthan Civil Services (Grant of Merit Pay) Rules, 1961. A certificate of merit was also awarded to the petitioner sanctioning the merit pay for a period of five years from April 30, 1971 and thereafter by order dated January 21, 1975 (Exhibit 3) the merit pay awarded to the petitioner was continued for a further period of five years from April 30, 1971 to 10th June, 1973 Admittedly this merit pay was enhanced from Rs. 100/- p.m. to Rs. 200/- p.m. with effect from June 11, 1973 and was to continue upto 30tb April, 1976 under Rule 6(3)(i) of the Rajasthan Civil Services (Grant of Rewards, Merit Awards and Merit Certificates) Rules, 1973. It has also been argued that the petitioner had done outstanding research work in the subject of Physiology and the same has received wide recognition. The petitioner has submitted a list of his published works and also a list of his books in which his work of physiology has been referred to and appreciated. These facts are not denied by the opposite parties either and it does appear to me that the petitioner his attained high proficiency in his subject. Learned Counsel for the petitioner has placed much reliance on the academic efficiency of the petitioner and has argued that adverse entry in Confidential Report and punishment awarded before the order of dated January 21, 1975 whereby the merit pay of the petitioner was increased to Rs. 200/- p.m. and thereby the merit of the petitioner had been recognised, cannot be taken into consideration to form the opinion for the purpose of compulsorily lettering the petitioner. In support of his contention the petitioner has relied upon J.R. Jain v. Union of India and Ors. (1973) 2 SLR 309. On the other hand, Mr. Ashok Mathur, learned Additional Government Advocate has placed strong reliance on Deepchand Jain v. State of Rajasthan and Ors. (1973) 1 SLR 994 Premchand Singh v. State of Rajasthan SBCW No. 1854/72 Shri Manmal v. State of Rajasthan SBCW 527/74 and Vithalreo Ramchandra Ghorpade v. State of Mahatashtra 1973 (1) SLR 255.
9. The case relied upon by the learned Counsel for the petitioner viz. J.R. Jain v. Union of India (1973) 2 SLR 309 is completely distinguishable on facts. It was observed in that case that the penalty of with holding two increments was passed on July 6, 1966 but the officer was admittedly allowed to cross the Efficiency. But by the order dated September 28, 1967 if the authorities were taking the serious note of the punishment the learned Judge held, 'they would not have allowed the petitioner to cross the Efficiency Bar later on.' By certifying him so fit for crossing the Efficiency Bar, the conclusion was that he was efficient enough to claim the higher pay. These facts could not later on be taken into consideration for the purpose of taking decision under Fundamental Rule 56(j). In this view of the matter, the learned Judge held that the punishment of withholding two increments could not be taken into consideration by the appropriate authority while forming the requisite opinion. New, In the present case reference to the relevant provisions of the Rajasthan Civil Services (Grant of Marit Pay) Rules, 1961 and the Rajasthan Civil Services (Grant of Rewards, Merit Awards and Certificates) Rules, 1973 would show that the assessment for grant of merit pay is made on the basis of 'original work of special merit' Written by the applicant. 'Original work of special merit' has been defined to mean a book, article or paper containing original work of special merit, or important research work of invention of practical significance which advances existing scientific knowledge or which may receive high appreciation from institutions well-recognised in the related sphere. It appears to me that grant of merit pay on account of writing book, pamphlet on paper or any subject adjudged to be of significant merit does not stand on the same footing as allowing a parson to cross the Efficiency Bar. It is not impossible to imagine of cases where an officer may highly efficient in academic field and yet his retention in service may be considered by the Government to be not in the public interest. I am therefore, unable to accept the contention that by granting the merit pay, the Government condoned all the previous defaults of the petitioner for which the petitioner had been given a warning and a penalty of censure was also imposed upon him and that the punishment as imposed could not be taken into consideration by the Government while forming the requisite opinion of retiring the petitioner compulsorily.
10. In Shmt. Manmal v. State of Rajasthan SBCW 527/74 the learned Judge observed that 'for the purpose of consideration of the case of an employee for compulsory retirement, his entire service record has to be considered and the mere fact that the employee was allowed to cross the Efficiency Bar could not have the effect of washing away the record of that employee relating to the earlier period.' It was further held that 'compulsory retirement is not a punishment and no light is taken away by passing the order of compulsory retirement'.
11. Again, in Premchand Sanghi v. State of Rajasthan SBCW No. 1854/72 it was observed that 'the matter of compulsory retirement cannot be considered on the same basis as that of awarding punishment or making selection for promotion to higher posts on the basis of merit or seniority cum-merit and it would be wholly unrealistic to hold that once the employee is allowed to cross the Efficiency Bar, all punishments awarded to him or adverse remarks made in his character rolls prior thereto, are completely wiped out for all purposes.'
12. It is sufficient to point out that the Court cannot sit as a court of appeal over the decision of the Government which has been arrived at after taking into account over all picture of the officer. The entire character roll was put before the Screening Committee and the Government. On going through the report of the Screening Committee. I find that tie salient features of the case were considered and I am not in a position to say that impugned order is wholly unjustified or is arbitrary or is otherwise based on collateral grounds.
13. The next point urged by the learned Counsel far the petitioner is that the order is malafide. The learned Counsel for the petitioner frankly admitted that the non-petitioners Shri L.N. Gupta, Secretary to the Government Medical and Public Health Department, Dr. V.N. Sharma Principal, S.N. Medical College, Jodopur and Dr. M.L. Gupta, Principal, R.N.T. Medical College Udaipur have been impleaded to this writ petition only on account of the petitioner's allegation of malafides contained therein. It has been alleged that Shri Somnath Gupta, Professor of Physiology of Jawaharlal Nehru College is being patronised by Shri L.N. Gupta who is out to harm the petitioner in order to boost up Shri Somnath Gupta. In this connection it has also been stated that Shri L.N. Gupta is also hand-in-glove with Shri M.L. Gupta, Principal, R.N.T. Medical College, Udaipur. Shri L.N. Gupta prepared a note in favour of Dr M.L. Gupta on the ground of his seniority, research work etc. so that Dr. Gupta may be posted in the upgraded department of Physiology at S.M.S. Medical College, Jaipur and when there was a (sic) between the petitioner and Dr. Somnath Gupta, Shri L.N. Gupta prepared a note against the petitioner. It is further alleged that Shri L.N. Gupta, respondent No. 2, asked Dr. V.N. Sharma Principal at Jodhpur to make a special report against the petitioner for his compulsory retirement and in compliance of Shri Gupta's wishes, Dr. V.N. Sharma did so as Dr. Sharma had also developed proffesional jealousy against the petitioner. Affidavits of Dr. V.N. Sharma, Dr. M.L. Gupta and Shri L.N. Gupta have been filed so as to controvert the allegations made by the petitioner against them. In the reply filed on behalf of respondents No. 1 to 3 to the writ petition, it has been asserted that the allegations of malafides made with respect to respondents No. 2 to 4 are false and in course of arguments the learned Additional. Government Advocate has submitted that respondent No. 4 Dr. M.L. Gupta has been impleaded as a party to the writ petition merely to take the case out of bands of Gupta J. who was regularly bearing such writ petitions. In this connection, learned Additional Government Advocate has referred to the order sheet dated November 13, 1975 by Gupta wherein the learned Judge has observed as follows:
Having perused the aforesaid record I do net find that respondent No. 4 has anything to do with the passing of the order of compulsory retirement of the petitioner. No relief has been prayed for against respondent No. 4, nor it appears from the record that he has any connection with the compulsory retirement of the petitioner, which is a matter entirely within the jurisdiction of the State Government under Rule 244(2) of the Rajasthan Service Rules. Looking to all these facts, it clearly emerges that respondent No. 4 has been added as a party to the writ petition with the oblique design of taking out present case from a particular bench. I must strongly depreciate the unhealthy tendency unnecessarily impleading relations of Presiding Judges of Courts as parties to writ proceedings, as appears to have been done in the present case, with the sole object of ousting the jurisdiction of a particular bench.
14. The learned Additional Government Advocate has also submitted that the allegations made by the petitioner are vague and baseless. He has referred to the following observations of the Supreme Court in E.P. Royappa v. State of Tamil Nadu and Anr. : (1974)ILLJ172SC .
We must not overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made then proved, and the very seriousness of such allegation demands proof of a high order of credibility.
15. Reverting to the allegations of malafides made by the petitioner I may observe that the petitioner has failed to point out any bias on the part of the members of the Screening Committee or the Government against him. A very vague and sweeping statement has been made in the writ petition that. Shri Somnath Gupta, Professor of Physiology it being patronised by respondent No. 1 Shri L.N. Gupta and that the petitioner's candidature was excluded from the consideration to provide an easy sail for Shri Gupta. It has been further alleged that Shri L.N. Gupta is out to harm the petitioner in order to bring up Shri Somnath Gupta. This allegation, in my opinion, is neither here nor there No. connection of Shri L.N. Gupta with Shri Som Nath Gupta has been pointed out and so also no basis of Shri L.N. Gupta against the petitioner.
16. Then, as against respondent No. 3 Dr. V.N. Sharma it has been stated that Shri L.N. Gupta asked Dr. Sharama Principal, S.N. Medical College, Jodhpur to make a special report against the petitioner for his compulsory retirement. Both Shri L.N. Gupta as well as Dr. V.N. Sharma have emphatically denied this allegation and one fails to see any earthly reason why the Secretary to the Government would ask the Principal to make a report against the petitioner. Then it is stated that Dr. V.N. Sharma had developed professional jealousy against the petitioner. It is very easy to make such an allegation against any co professional and unless such an allegation is substantiated or supported by concrete facts, it cannot be accepted.
17. As against respondent No. 4 Dr. M.L. Gupta, the petitioner has stated that he is also interested in Shri Somnath Gupta and is, therefore, against the petitioner. The reason given in support of this allegation is that if the petitioner remains in service, the possibility cannot be ruled out that he may sometime be posted in the upgraded department of Physiology in S.M.S. Medical College, Jaipur. The suspicion of the petitioner in this respect seems to have no basis. Then, it is stated that Dr. M.L. Gupta had continued in the department of Physiology as Professor for a period of about 17 years continuously and there are certain matters in regard to which Dr. M.L. Gupta is apprehensive that the petitioner may expose the irregularities committed by Dr. Gupta, if the petitioner is ever posted in S.M.S. Medical College, Jaipur in the upgraded department of Physiology. The allegation is so general, wide and ambiguous that it does not deserve to be even taken notice of. The complaint of petitioner that Dr. M.L. Gupta, Shri L.N. Gupta Dr. Somnath Gupta, & Dr. V.N. Sharma have engineered a plot against the petitioner to see that he is out of job appears to me to be wholly unfounded and has remained completely unsubstantiated. The contention of the learned Additional Government Advocate that the petitioner's act in impleading Dr. M.L. Gupta as a party to the writ petition smacks of sharp practices is not without force and, in my opinion, the petitioner was ill-advised to do so. In (sic) shell I do not see any force in the contention raised on behalf of the petitioner that the order of compulsory retirement has been passed against him malafide.
18. The next point argued on behalf of the petitioner is that the petitioner was not intimated in advance of the Governments intention or decision to compulsory retire him with the result that the petitioner had not fair and reasonable opportunity of availing of the leave due to him and consequently, it is argued, that the impugned order of compulsory retirement visits the petitioner with evil and penal consequences without compliance with the provisions contained in Article 311 of the Constitution or India.
19. The point raised by the petitioner stands completely answered by the language of Rule 244(2) of the Rajasthan Service Rules which has been extracted above. Under this Rule, it is abundantly clear, that the Government may by payment of three months pay and allowances in lieu of three months previous notice in writing require a Government servant to retire from the on the date no which he completes 20 years of qualifying service or the date or which he attains the age 50 years whichever is earlier. Thus under this Rule a Government servant is only entitled to three months emoluments in lieu of three months previous notice. The petitioner has been granted three months salary in lieu of notice and hence he cannot be heard to say that there has been any violation of the Rule. However, under Rule 59 of the said Rules, leave cannot be claimed as a matter of right. It is also not the petitioner's case that he had applied for leave prior to his compulsory retirement and, therefore, the question of grant of leave also did not arise.
20. In State of U.P. v. Vishweshar Dayal : AIR1971All129 it was observed that loss of earned leave cannot be considered as an evil consequence an contemplated by the Supreme Court in P.L. Dhingra v. Union of India : (1958)ILLJ544SC . I am clearly of opinion that the impugned order is not bad because the petitioner was pot given a reasonable opportunity of availing the leave which he had earned.
21. Another argument raised by the learned Counsel for the petitioner is that the amendment of Rule 244(2) should be deemed to have been madeunder Rule 4 and not under Article 309 of the Constitution of India and, therefore, it cannot be retrospective. The argument is to be stated only to be rejected. The Rajasthan Service Rules, 1951 have been made under Article 309 of the Constitution of India and I fail to under and why Rule 244 of the said Rules cannot be amended under Article 309 of the Constitution. The argument, in my opinion, does not deserve to be examined at length and I hereby over rule it.
22. Yet another argument raised by the learned Counsel for the petitioner is that long time has passed since the Constitution came into force but the appropriate Legislature has not made Act for regulating the conditions of service of Government servants and, therefore, the Rules are bad so also the amendment of Rule 244(2) of the Rules. The language of Article 309 of the Constitution leaves no manner of doubt that until provisions in that behalf is made by or under an Art of the appropriate Legislature under this Article Rules made by the President in connect on with the affairs of the Union and those made by the Governor in connection with the affairs of the State shall have effect Consequently, since the appropriate Legislature has not made any Art in this connection, the Rules made by the Governor must prevail. The argument is completely devoid of substance.
23. Lastly it has been argued that the period of 20 years fixed in the relevant rule is highly unreasonable. Reliance was placed on Motiram Deka v. General Manager, North East Frontier Railway : (1964)IILLJ467SC and Gurdevsingh Sidhu v. The State of Punjab and Anr. : (1965)ILLJ323SC . No doubt a minimum period of 20 years service has been prescribed under the impugned rule. It is also true that a Government servant who is to be compulsorily retired is deprived of the full retirement benefits to which be would have been entitled on rendering the scheduled Service, but any such consequence implicit in any scheme of compulsory retirement cannot by itself be said to be a fetter. PEPSU The Government Rule was struck down in Gurdevsingh's case : (1965)ILLJ323SC by the Supreme Court because the minimum period of service prescribed thereunder was only of ten years and that too without reference to the age. However, in the impugned rule the minimum period of qualifying service prescribed is 20 years which cannot be said to be unreasonable. Moreover, the petitioner admittedly a tainted the age of 50 years on the date he was compulsorily retired and consequently so far as the petitioner is concerned, the argument of reasonableness of 20 years period does not suffer from any vice referred to in the two judgments of the Supreme Court relied upon by the learned Counsel for the petitioner.
24. No other point was argued before me.
25. The result of the foregoing discussion is that I do not find force in any of the contentions raised on behalf of the petitioner and hereby dimiss the petition. But in the circumstances of the case, I make no order as to costs.