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Poonam Chand Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B Civil Writ Petition No. 30 of 1977
Judge
Reported in1977WLN615
AppellantPoonam Chand
RespondentState of Rajasthan and ors.
Cases ReferredIn Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and Anr.
Excerpt:
rajasthan service rules rule 244(2) - compulsory retirement made before completion of 25 years qualifying service order modified subsequently--held, invalid order cannot by modified.;the position of law is well settled that if the original order is void the defect cannot be remedied by mere modification or rectification of the order.;now in the instant case it is not in dispute that the original orders dated 25.11 1972, 4-12-1972, and 13-2-1973 were void and without jurisdiction having been passed in contravention of rule 244(1) of the rules. such orders obviously could not have been rectified or modified by the subsequent order under ex. 9 as has been sought to be done by the inspector general of police. the inspector general of police could not remedy the invalidity in the original..........of the order dated 13.2.1973.the orders dated 25.11.72, 4.12 72. and 13.2.1973, were void and the void orders are not capable of being rectified or modified as till then the petitioner of completed 25 years of qualifying service. the position of law in this behalf is well settled. if the original order is void and inoperative the fact that the order was confirmed on appeal by the head of the department cannot cure the initial defect. likewise if the initial order of compulsory retirement is void it is none st and is not at all capable of rectified or modified. i he reason is, what is void, is nullity. such an order is lifeless order and life cannot be infused into it by subsequent rectification or modification. in n.s. subramaniam v b.s.d. baliga and anr. 1974 all india services law.....
Judgment:

M.L. Joshi, J.

1. The petitioner was born on 1. 11. 1922. He was appointed as Sub-Inspector of police in the Police Department of erstwhile princely State of Bikaner, on 1.8.1947. The petitioner was confirmed as Sub-Inspector on 6. 9. 1952 with effect from 1. 8. 1952. He was thereafter promoted as Inspector of Police by the Inspector General of Police vide his order dated 27.7.1957. He was compulsorily retired under a notice dated 25.11.1972 issued by the Inspector General of Police Rajasthan under Rule 244(2) of the Rajasthan Service Rules, hereinafter called the Rules' requiring the petitioner to retire with effect from the date of expiry of three calendar months from the service of the aforesaid notice on the petitioner. This notice was received by the petitioner on 29.11. 1972 and as such the services of the petitioner vere to come to end on 1. 3. 1973 under the aforesaid notice.

2. Another order No. 734 dated 4.12.1972 was issued by the District Superintendent of Police, Sikar, vide Ex. 3 where under it was ordered that the petitioner shall compulsorily retire retrospectively with effect from 30th Nov. 1972 fore-noon. Yet another order was issued by the Inspector General of Police on 13 2. 1973 purporting to be under Rule 244(2) of the Rules ordering the compulsory retirement of the petitioner retrospectively with effect from 4.12.1972 fore-noon vide Annexure 4. It may be mentioned lure that the petitioner while working as the Home Inspector in the office of the Superintendent of Police was granted extra ordinary leave form 25.1.l966 to 28.4.66, and 8.4.66 to 5.9.66 i.e. for 214 days 7 months and 4 days). This period, it is not disputed: cannot be computed for the purpose of 25 years qualifying service. The petitioner has, therefore. challenged his order of compulsory retirement on various grounds. The principal ground being that the petitioner had not completed the 25 years qualifying service when the original order of compulsory retirement by the Inspector General of Police and therefore, the retirement was bad in law. It was further contended by the petitioner that the subsequent orders dated 4.12.1972, 13.2.1973 and 20.7 1976 passed by the various authorities of the police were not valid as they did not fulfill the requirement of Rule 244(2) of the Rules and deserves to be quashed. The petitioner, therefore, on the above grounds and some other grounds proved for quashing of the orders dated 25.11.72, 4.12.72, 13 2.73 and 20.7.76 in this writ petition.

3. The writ petition has been opposed by the State. The State has admitted that the petitioner had availed extra ordinary leave of 214 days but as the same was not entered in the service book this period could not be excluded from the qualifying service. However, later on this period was excluded and the compulsory retirement order of the petitioner was modified by the Inspector General of Police after concurrence of the State Government vide his order dated 20.7.76 (Ex. 9). The main anchor sheet of the State defence is that the original order dated 25.11.72 although bad was subsequently modified and therefore, the petitioner cannot challenge the order of retirement.

4. It has been firstly argued by the learned Counsel for the petitioner that the original orders relating to compulsory retirement of the petitioner dated 25 11.72, 4.12.72, 13 2.73 were void as they tended to premature retire the petitioner before he had completed 25 years qualifying service. This fact is not disputed by the State also. The State has frankly admitted that as the petitioner had availed 214 days extra ordinary leave that period has to be excluded while computing the 25 years qualifying service. If that period is excluded then the petitioner could not be held to have completed 25 years of qualifying service. It is, however contended by the State that the order pertaining to compulsory retirement of the petitioner was rectified by modifying it by order dated 20.7 '6. Under Ex 9 the petitioner was to compulsorily retire with effect from 6.7.73 instead of 4.12.72 as specified in Ex. 4 dated 13.2. 73 Now this order is not passed in pursuance of Rule 244(2) by applying independently the mind but is merely a modification of the order dated 13.2.1973.

The orders dated 25.11.72, 4.12 72. and 13.2.1973, were void and the void orders are not capable of being rectified or modified as till then the petitioner of completed 25 years of qualifying service. The position of law in this behalf is well settled. If the original order is void and inoperative the fact that the order was confirmed on appeal by the Head of the Department cannot cure the initial defect. Likewise if the initial order of compulsory retirement is void it is none st and is not at all capable of rectified or modified. I he reason is, what is void, is nullity. Such an order is lifeless order and life cannot be infused into it by subsequent rectification or modification. In N.S. Subramaniam v B.S.D. Baliga and Anr. 1974 All India Services Law Journal it has been held that a notice for a short period would not be a notice in accordance with the provisions of the rule of the compulsory retirement. In other words it is not a notice at all and it would be ignored. It has further been held that subsequent extension of time for making up the deficit of time is not at all permissible and would not make the original notice which was otherwise invalid, to be a valid notice.

5. In Shri Desraj Bhatia v. The State of Himachal Pradesh and Ors. 1977 (2)SLR 201, it has been held that the order of compulsory retirement with' retrospective effect cannot be hold to be valid as there is nothing in the fundamental Rule 54 which envisages the passing of the order of retirement with retrospective effect.

6. In Baradakanta Mishri v. High Court of Orissa and Anr. : AIR1976SC1899 it has been held that if the order of the initial authority is void, order of the appellate authority cannot make it valid. The reason is that the void order cannot have legal force and therefore is not capable of being rectified or modified

7. In Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and Anr. : (1977)ILLJ262SC , an employee of Mysore State Road Transport Corporation was dismissed by the Subordinate Authority although the appointment was made by the Head of the Department. The order of dismissal was, therefore without jurisdiction and void and inoperative, having been passed in contravention of 'Article 311(3) of the Constitution of India. However, that order was challenged by way of appeal by the employee and the Head of the Department who was the appellate authority, confirmed the order of the subordinate authority in appeal. It was held that the fact that the order was confirmed on appeal by the Head of the Department cannot cure the initial defect The position of law is well settled that if the original order is void the defect:cannot be remedied by mere modification or rectification of the order.

8. Now in the instant case it is not in dispute that the original orders dated 25-11-1972, 4-12-1972, and 13-2-1973 were void and without jurisdiction having been passed in contravention of Rule 244(1) of the Rules Such orders obviously could not have been rectified or modified by the subsequent order under Ex. 8 as has been sought to be done by the Inspector General of Police The Inspector General of Police could not remedy the invalidity in the original orders by merely substituting extended date in place of the original date contained in the orders. It is also well settled that it was beyond the competence of the Inspector General of Police to have modified the order dated 25-11-1972 by his order dated 20-7-1976 with retrospective effect from 20 7-l976 Such a course of action is not at all permissible under the Rajasthan Service Rules. If we look at Rule 244(1) of the Rules it will be at once clear that compulsory retirement with retrospective operation is beyond the purview of Rule 244 of the Rules. The Inspector General of Police could not have, validated the order by extending the date of compulsory retirement with retrospective effect. Ex 9 dated 20 7-76 modifying the date of compulsory retirement with retrospective effect is equally void and has no legal existence. Such orders could not terminate-the service of the petitioner. The result that the petitioner's services hiving not been lawfully terminated he still re mains in service.

9. Accordingly, the writ petition is accepted. The impugned orders dated 25-11-72, 4-12 72, 13.2.73, and 20.7.70 are quashed the respondents are directed-to treat the petitioner to be in service and, allow him all the benefits which the would have lawfully received but for the above illegal orders of compulsory retirement. In the facts and circumstances of the case the parties are left to bear their own costs.


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