K.B.N. Singh, C.J.
1. The appellant had filed the writ petition for quashing the order of the Government of India, dated 23rd December, 1981, by which it had rejected the request of the appellant for permission to accept employment with M/s. Lakshmi Mills Company Limited, Coimbatore, within two years of his retirement. The learned Judged quashed the order, as the order did not indicate the reason for the refusal. The learned Judge also directed the Government to dispose of the application of the appellant for permission by a reasoned order. It is against this part of the order, directing the Government to dispose of the application for permission filed by the appellant by a reasoned order, this writ appeal has been filed.
2. At the time of his retirement on 31st March, 1981, the Appellant was an Assistant Collector of Customs and Central Excise in the office of the Collector of Central Excise, Madras. After his retirement on 18th September, 1981, M/s. Lakshmi Mills Company Limited, Coimbatore, wanted to avail of his services for their units as an officer in charge of all excise matters. Sub-rule (1) of Rule 10 of the Central Civil Services Pension Rules (hereinafter referred to as the Rules) lays down that, if a member of the Central Services, Class I (as in the case of the appellant) wishes to accept any commercial employment before the expiry of two years from the date of his retirement, he shall obtain the previous section of the Government to such acceptance. This rule lays down the guidelines for allowing or refusing such permission. Thereafter on 23rd August, 1981, the appellant filed an application before the Secretary, Central Board of Excise and Customs, Government of India, New Delhi, for permission being granted to be appellant to join the service of M/s. Lakshmi Mills Company Limited. That application has to conform to and mention the details required to be considered if not under the Rule 10(3). On 3rd November, 1981, the Collector of Central Excise asked the appellant to submit a copy of the letter of appointment from M/s. Lakshmi Mills Company Limited, and also to indicate the remuneration offered for the post, as that was not mentioned in the application, as required by the rules, Rule 10(3)(f); this application was treated as incomplete one. On 18th November, 1981, the appellant reclosed a copy of the letter of appointment received from M/s. Lakshmi Mills Company Limited, and also stated that he had been offered a sum of Rs. 2,000 per month as remuneration. On 23rd December, 1981, the Government of India by letter F. No. A/410 12/5/81-Ad. II rejected the request of the appellant for permission. That order was challenged by the appellant, as already stated, in the writ petition, on the ground that it did not state reasons for the rejection as required by Rule 10(2) of the rules. The relevant portion of the Government letter reads as follows :
'I am directed to refer to the correspondence resting with your letter dated the 18th November, 1981, on the above subject and to say that your request for accepting commercial employment with M/s. Lakshmi Mills Company Limited, Coimbatore, has been rejected, after careful consideration.'
3. By a counter-affidavit filed it was stated in paragraph 17 that the criteria as laid down in Rule 10(3) was applied to the case of the appellant and that it was on that basis it was not found possible to grant permission to the appellant to engage in commercial employment. Certain other facts have also been stated in the counter-affidavit.
4. The learned Judge took the view that reasons not having been stated the aforesaid letter of the Government was bad and hence quashed that order, directing the Government to dispose of the application of the appellant a reasoned order. There being no appeal on behalf of the Government, it is not necessary for us to go into the question whether, apart from the letter which was sent to the appellant, it is open to this Court to look into the records to find out whether reasons were assigned to the order rejecting the application of the appellant which were not mentioned in the letter sent to the appellant which was a mere communication of the finals order passed by the Government in the matter. It is therefore not necessary for us to refer to the file on the question : viz., File No. A 41012/5/81-Ad. II of the Government of India at page 2 and 3 of the Notes, where the Office has stated the reasons for not granting permission to the appellant which have been accepted by the competent Officer, Member of the Board, and thereafter the order of the Government has been communicated to the appellant by the letter dated dated 23rd December, 1981.
5. Courts have taken the view that it is open to the officer concerned to ask the Government for a copy of the reasons for the order, and if one was not assigned, then alone it could be presumed that there was no reasoned orders for rejecting the application. As already observed, we need not go into the details of that question, as it is not in controversy before us.
6. The main contention of Mr. Prasad, learned counsel appearing on behalf of the appellant, is three-fold. In the first place, where a statutory rule states that reasons have to be recorded for the order, it means in the order communicated to the appellant, reasons must be stated and reasons cannot be permitted to be given which were not mentioned in the communication to the appellant. Therefore, the learned Judge in allowing the Government an opportunity to pass a reasoned order, when he should have merely contented himself with quashing the order. This would amount to permitting the Government to do something which has not been permitted by the rule.
7. The second contention of the learned counsel for the appellant is that, even if it was open to the government to recognized the matter and pass a reasoned order, that could be done only within sixty days of the application : otherwise, the application should be deemed to have been allowed under the deeming provision of the Rule 10(4).
8. Thirdly the learned counsel for the appellant relied of the decision of the Supreme Court in Mohinder Singh v. Chief Election Commissioner : 2SCR272 in support of his submission that reasons cannot be subsequently given.
9. We shall take up for consideration all these contentions together, since they are allied.
10. Sub-rules (2) and (4) of Rule 10 of the rules are relevant for our discussion and they read as follows :
(2) Subject to the provisions of sub-rule (3), the Government may, by order in writing on an application made by a pensioner grant, subject to such conditions, if any, as it may deem necessary, permission or refuse, for reasons to be recorded in the order, permission to such pensioner to take up the commercial employment specified in the application.
(4) Where within a period of sixty days of the date of receipt of an application under sub-rule (3), the Government does not refuse to grant the permission applied for or does not communicate the refusal to the applicant, the Government shall be deemed to have granted the permission.
11. From a reference to sub-rule (2), it is apparent that what sub-rule (2) requires is that the application for grant or refusal of permission has to be disposed of by a reasoned order. The letter sent to the appellant is not the order, but a communication of the order. The order will obviously be in the file dealing with the application of the appellant for permission. It is true that, following the spirit of the rule, the Government, along with the communication, should have attached a copy of the reasons for the orders as required by the rule, as the appellant has a right to file a representation against that order under Rule 10(5) of the Rules to the Government. This can be done only if a copy of the reasoned order is communicated to the appellant. As already stated, it was open to the appellant, after the letter was received by him, to ask the Government for a copy of the reasons for the order, as it was not attached to the letter; and it was the bounden duty of the Government thereafter to furnish the appellant with a copy of such reasons.
12. The main thrust of the argument of the learned counsel for the appellant is based on sub-rule (4). The appellant applied for permission on 23rd September, 1981, and on 3rd November, 1981, the Government wanted him to furnish particulars about the salary that was offered to him. This letter was sent, no doubt, within sixty days and the appellant furnished the required particulars by his letter, dated 18th November, 1981. It was therefore on 23rd December, 1981, that the Government rejected the application of the appellant. So the order was passed beyond sixty days, and that order having been quashed by the learned Judge, his application should be deemed to have been allowed under the deeming provision of the rule referred to above. The attack is two-fold : Firstly, that as the letter of the communication does not contain the order, the order will be construed to be non est and secondly, that the order having been quashed, the order should be considered as non-existent and therefore Rule 10(4) will be into play and the appellant will be entitled to claim that permission should be deemed to have been granted to him.
13. The argument of the learned counsel has no substance. In the first place sub-rule (2) of Rule 10, as already observed, states that the refection should be made by a reasoned order. It does not say that the rejection should be communicated to the appellant by a reasoned order. Secondly, even if it merely communicates the rejection without a reasoned order there is no hiatus between the date of the application and the passing of the order. As the Government before expiry of sixty days has asked the appellant to furnish details which were lacking in his application which was incomplete the deeming provision could not be attracted and the appellant cannot take advantage of sub-rule (4) of Rule 10.
14. As for the decisions of the Supreme Court in Mohinder Singh v. Chief Election Commissioner (supra), relied on by learned counsel for the appellant that was a case where the order was sought to be supported by additional reasons put forward in the counter-affidavit which was not initially there in the order passed. That obviously is not something which could be permitted to be done. We are not here concerned with that question. Permitting the Government to pass a second reasoned order is not allowing the Government to incorporate the reasons for the first rejection. It is only allowing the Government to pass on order on the application and finally depose it of by a reasoned order. Once we hold that the appellant is not entitled to claim the advantage of the deeming provision of sub-rule (4) of Rule 10, the appellant's application is still pending with the Government and has to be disposed of. It is to clear this ground that the learned Judge has rightly observed that the Government should dispose of the application of the appellant for permission by a reasoned order. That order, in sense, is in favour of the appellant, as that will compel the Government to dispose of the application with a reasoned order at an early date, and it will obviously be to the advantage of the appellant.
15. It was then submitted by the learned counsel for the appellant that the provisions of sub-rules (4) and (5) would be rendered nugatory, if we do not hold that the order of rejection without giving reasons is no order at all. There is no substance in this contention of the learned counsel for the appellant, as well. Sub-rule (2) prescribes the mode of disposal of application for permission subject to taking into account the provisions of sub-rule (3). Sub-rule (4) has been incorporated with the sole idea that the Government may be compelled to act quickly and if no action is taken within a period of sixty days, permission should be deemed to be granted. Sub-rule (5) entitles the officer to file representations before the Government against the order of rejection, etc. It is thus apparent that the scope of all these three provisions are for distinct and different purposes and they will not be rendered nugatory if the interpretation sought to be put by the learned counsel is not accepted.
16. In the result, we do not find any merit in any of the contentions of the learned counsel for the appellant. The appeal is accordingly dismissed, but, in the circumstances, there will be no order as to costs.