1. The facts in this appeal are shortly as follows:
The appellant was born on the 1st July. 1901. In February, 1925 he entered service ofGovernment in the Post and Telegraph Department On the 1st July, 1956 while he was employed as an Accountant in the General Post Office, Calcutta, he completed 55 years of service. Thereafter, two charge-sheets were issued against him and increment was stopped. These stoppages of increment were the subject-matter of complaint in the Court below, but before us this point regarding stoppage of increment was not pressed. On or about the 28th December, 1958 the Post Master General wrote to the Presidency Post Master communicating the decision of the Director of Postal Services, Calcutta, that the appellant should not be retained on duty beyond the 30th June, 1959. On the 8th January, 1959 the Presidency Post Master communicated the said decision to the appellant. On the 15th April, 1959 the appellant appealed to the Post Master General, West Bengal, against such order. The appeal was dismissed. On the 1st July, 1961 the appellant has completed 60 years of age.
2. An application under Article 226 of the Constitution was made on or about the 2nd September, 1959. In the application the respondents are (1) Post Master General, West Bengal Circle, (2) Presidency Post Master, Calcutta, (3) Director of Postal Services, Calcutta, (4) Deputy Presidency Post Master, Calcutta, and (5) the Union of India. The appellant in the application prayed for the issue of a writ of Mandamus commanding the respondents to rescind, recall and withdraw or forbear from giving effect to, inter-alia, the order above-named to the effect that the appellant should not be retained in service beyond the 30th June, 1959. It is also prayed that a writ in the nature of certiorari should be issued quashing the said order, and for other reliefs.
3. This application came up for hearing before Mitter, J. and by his judgment dated the 27th June, 1961 the learned Judge rejected the application and discharged the Rule. It is against this order that this appeal is directed.
4. The point that is involved before us lies within a short compass. It is not disputed that the particular service rule which is applicable to me appellant and which is the subject-matter of dispute in this appeal, is Fundamental Rule 56 (b) (i). That rule runs as follows;
'(b) (i) A ministerial servant (who is not governed by Sub-clause (ii) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the local Government.''
5. It is not disputed that in this particular case the appellant is not governed by Sub-clause (ii). The whole point, therefore, is as to whether under this Rule, the appellant had a legal right to continue to be in service until he attained the age of 60 years. If he had that right, there was certainly a violation of it, because he was asked to retire before he had completed the age of 60 years. In our opinion, this point has now been set at rest by decisions of the Supreme Court which will be presently mentioned. Thefirst case to be considered is a decision of the Supreme Court in Jai Ram v. Union of India : AIR1954SC584 , where, Mukherjea, J. was considering this very rule, namely, Fundamental Rule 56(b) (i). In that case, however, the facts were somewhat different. The Government servant concerned in that case was to complete 55 years on the 26th November, 1946. But even before he completed his 55 years, he evinced an anxious desire to retire and asked for permission to do so. At first, the permission was not granted, but ultimately it was granted and leave was allowed to him on the basis of his retiring from service on the 27th November, 1946. He was granted post-retirement leave for a period of about six months from that date, in terms of Rule 86 of Chapter X of the Fundamental Rules. Later on, it appears that the Government servant took up a different attitude altogether and wanted to continue in service even after he had completed his 55 years of service. This the authorities did not allow. Thereupon, he filed a suit. In course of his judgment, Mukherjea, J. said as follows;
'We think that it is a possible view to take upon the language of this rule that a ministerial servant coming within its purview has normally the right to be retained in service till he reaches the age of 60. That is conditional undoubtedly upon his continuing to be efficient. We may assume, therefore, for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency. But that by itself affords no solution of the question that requires consideration in the present case.'
6. The learned Judge however proceeded to say that the plaintiff was not compelled or required to retire by anybody. If the Government required him to retire in terms of Fundamental Rule 56(b)(i) it might have been argued that he should have had an opportunity to snow that he was still efficient and able to discharge his duties and consequently could not be retired at that age. It was observed, however, that the situation that arose was entirely of the plaintiff's own seeking and his own creation and, therefore, it must be held that the Government servant had waived his right and after what had happened, no relief could be granted. This dictum of the learned Judge has repeatedly been advanced as an argument that under the said rule a Government servant had a legal right to continue in service up to the completion of the age of 60 years. The point was dealt with in a Bench decision of this Court in Basanta Kumar Pal v. Chief Electrical Engineer : AIR1958Cal657 . In that case what had to be construed was Rule 2046(2)(a) of the Railway Establishment Code which is identical with the Fundamental Rule 56(b)(i) which we are called upon to consider in the instant case. Referring to the decision of Mukherjea, J. in Jai Ram's case : AIR1954SC584 (Supra), Chakravarti, C. J. pointed out that the learned Judge had not come to any conclusion with regard to Rule 56(b)(i), but merely stated as to what was a 'possible argument' and even assuming that it was correct, held that there were facts which failed to bring relief to the plaintiff. On the merits, the learned Chief Justice held that the provisions of Rule 204(2)(a) did not confer any legal right upon the Railway servant to compel the Railway authorities to continue his services up to the completion of the age of 60 years. He pointed out that there were two conditions laid down in the Rule. The first was that the Railway servant concerned should continue to be efficient. If that was the only restriction, then if he continued to be efficient the Government would be bound to continue the employment until he completed the age of 60 years. There was, however, another condition imposed, namely, that under such circumstances, a Railway servant should 'ordinarily' be retained in service, if he continued to be efficient, up to the age of 60 years. If there was a legal right to be continued in service until the completion of 60 years if the Railway servant continued to be efficient, then there was no sense in saying that he should 'ordinarily' be retained in service. The learned Chief Justice, therefore, came to the conclusion that the discretion was entirely with the Railway authorities and the discretion was to be exercised upon various considerations, of which the continued efficiency of the Railway servant concerned, was only one of many considerations. Consequently, it is not for the Courts to interfere in such a case. Actually, this is what was decided in the Original Court and the learned Chief Justice agreed with that view and dismissed the appeal. This identical view has now been taken by the Supreme Court in Kailash Chandra v. Union of India : (1961)IILLJ639SC . In that case also, what came to be construed is Rule 2048(2)(a) of the Railway Establishment Code, which, it was pointed out, was identical with the Fundamental Rule 56(b)(i). In that case also, the same argument was advanced, namely, that in Jai Ram's case : AIR1954SC584 (supra). It was held that the Railway servant concerned had a right to be continued until he completed the age of 60 years, provided he continued to be efficient. Das Gupta, J. pointed out that no such conclusion had been reached in Jaj Ram's case : AIR1954SC584 (supra) but it was merely stated there, that it was a possible view. The learned Judge said as follows:
'..............as soon as the age of 55years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so.
This intention is made even more clear and beyond doubt by the use of the word 'ordinarily'. 'Ordinarily' means 'in large majority of cases but not invariably'. This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second Clause therefore clearly is that while under the first Clause the appropriate authority has the right to retire the servant who falls within Clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he 'should' retain the servant; but what are special circumstances is left entirely to the authority's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained; even if he continues to be efficient.'
7. In our opinion, this is absolutely decisive of the point that has been raised before us. What has been argued is that if the Government has to consider the fact as to whether the Government servant continues to be efficient, it must do so by giving a show cause notice and considering it after cause is shown. It is further argued that 'special circumstances' must be found to exist, and there must be a definite finding to that effect in the order that is passed. In our opinion, the argument has no substance. Either the rule confers a legal right upon the Government servant concerned to continue until 60 years of age, or it does not. If he has not the legal right, and the Government has a discretion in the matter, there is no reason why the formality of a show-cause notice should be compulsory, or why the order should contain any finding as to 'special circumstances', which, as explained by the decisions above mentioned, are not confined to the efficiency of the Government servant but may consist of various things which relate to administration and are not the concern of the Court.
8. The result is that the argument advanced before us fails and the appeal is dismissed without any order as to costs.
Arun K. Mukherjea, J.
9. I agree.