1. This is an application directed against an order dated 20-1-1952 passed by the officiating Director-General of Observatories, whereby the petitioner has been ordered to retire from service on 20-1-1952, on attaining the age of 55 years. According to the petitioner, he is entitled to continue in service until he has attained the age of 60 years.
2. The facts are briefly as follows: The petitioner joined Government service in 1929, at Karachi Thereafter he continued in such service, obtained promotions in his permanent cadre as well as officiated in higher posts. In 1943. he was transferred to the office of the Director Regional Meteorological Centre, Alipore, Calcutta. In 1947, the petitioner elected to accept the scale of pay prescribed by the Central Civil Services (Revision of pay) Rules 1947, and his post came to be known as that of a 'Scientific Assistant'.
3. On or about 21-11-1950, the petitioner was transferred to a temporary post under the Damodar Valley Corporation as a Senior Accountant. On or about 13-7-1951, it was communicated to him that although by the letter of the Ministry of Communications No. 1-M(1)/50 dated 29-6-1950 the post of a Scientific Assistant was declared to toe a non-ministerial one, as a personal concession, the petitioner would be continued to be treated as a ministerial servant for the purposes Of F. R. 56.
4. Under P. R. 56, a non-ministerial Government Servant must retire at the age of 55 except in the special circumstances mentioned therein. A ministerial Government servant should ordinarily be retained until the age of 60 if he continues to be efficient, but may be required to retire at the age of 55 years. To put it more simply, a, ministerial government servant may be compelled to retire at the age of 55, if he does not continue to be efficient.
5. 'Ministerial Servant' has been defined (F. R. 9(17) Section III Ch. II) to mean a Government servant of a subordinate service whose duties are entirely clerical, and any other class of servant specially defined as such by general or special artier of a local Government. I have the gravest doubt whether it was open to the Government to declare a post to be non-ministerial and yet continue to treat a particular incumbent as occupying a ministerial post. I have asked Mr. Burman to show me any rule which authorised Government to do so, but he could do no better than point out C. S. (C. C. A.) Rules 8-9. In my opinion, these rules promulgated in 1930 do not affect the question At all.
6. However, for the purposes of this application I shall proceed upon the footing that the petitioner was a ministerial government servant. On or about 5-12-1951, a charge-sheet was served upon the petitioner by the opposite party 1, through the Director, Regional Meteorological Centre Alipore, Calcutta to show cause why he should not be removed from service upon his attaining the age of 55 years on 19-1-1952. The charge-sheet contained 5 charges. The gravamen of the charges seems to be that he was constantly preoccupied with grievances real or imaginary and his work had deteriorated and he had ceased to be efficient. It was charged that not only was he discharging his duties inefficiently but his attitude was affecting the morale and efficiency of the office in which he worked. He was asked to submit his written statement within 15 days and also to intimate whether he wished to be heard in person.
7. On or about 10-12-1951 the petitioner wrote a letter asking about various particulars required by him to make a statement and enquiring about the constitution of the tribunal. He also intimated that he would also like to be heard in person. On 15-12-1951 he was informed that it was not proposed to set up any special tribunal as the normal procedure would be followed as required under the provisions of Article 311(2) of the Constitution read with Rule 55 of C. S. (C. C. A.) and that the petitioner would be given normal facilities for presenting his defence to the D. G. O. in writing or orally. On 31-12-1951, the petitioner sent in his statement in writing. He asked for an opportunity to call evidence to prove his defence. On 18-1-1952, the officiating Director-General of Observatories informed the petitioner that after a careful consideration of the statements made by him, he saw no reason to withhold action to retire the petitioner from service on 20-1-1952. And ordered him to do so. On 8-2-1952 the petitioner asked that the decision be reconsidered. This rule was taken out on 12-3-1952.
8. The learned Standing Counsel, appearing on behalf of the opposite parties has taken a preliminary point. He argues that this Court has no jurisdiction to issue any writ or pass any order under Article 226 of the Constitution against the opposite parties.
9. According to learned counsel, the Director-General of Observatories neither resides nor has his office here. Hence, according to the recent Supreme Court decision, - 'Election Commission, India v. Saka Venkata Rao', : 4SCR1144 (A), this Court would have no jurisdiction to deal with him under Article 226 of the Constitution.
10. Opposite Party 1 has been described in the Cause-title as having his regional office at Ali-pore, Calcutta. In para 1 of the petition, however, it is stated that he holds his office in the Indian Meteorological Department. Government of India which has its regional office at Alipore. The present incumbent of the office has affirmed an affidavit stating that by an order of the Government of India dated 28/31-12-1946 28/31-12-1946 , (A true copy thereof is annexed to his affidavit and marked 'A') his office is located in New Delhi. He states that the headquarters of one of the sub-offices of the India Meteorological Department which is responsible for meteorological work in the region comprising Assam, West Bengal, Bihar and Orissa is located at Alipore.
11. It appears from the affidavits that the Indian Meteorological Department is an all-India department and that the regional office at Alipore has its own Director, who is described as the 'Director, Regional Meteorological Centre, Calcutta'. In the affidavit-in-reply, the petitioner states that he was functioning in an office subordinate to the head office at New Delhi directly under the Central management and supervision of the Director-General of Observatories.
12. But besides this statement, I have no evidence before me that the Director-General of Observatories, New Delhi, actually carries on or is concerned with, any work that is carried on at Alipore. There is a bland statement in the affidavit-in-reply that his rubber stamp is being used for official work on some documents. The nature of this work or the documents is not mentioned, and none produced. It therefore seems that the Alipore office is a regional office of the Indian Meteorological Department, but there is no evidence that the Director-General of Observatories New Delhi, carries on any part of his normal activities there.
13. The Indian Meteorological Department being an all India concern, must have numerous officials. Even assuming that the Director-General of Observatories, New Delhi, is an official very high up in its hierarchy, I have nothing to show that he normally functions at Alipore, so that it can be said that part of his office is situated in West Bengal and that he carries on his normal activities within this State.
14. After the conclusion of the argument, Mr. Burman appearing on behalf of the petitioner has drawn my attention to a publication issued by the Government of India, being a report on the Administration of the Meteorological Department of the Government of India in 1949-50. Strictly speaking, this is a new material which ought not to be allowed to be used but in view of the fact that it is a Government Publication, I think I ought not to ignore it. At page 28 of that report I find the following statement: 'Offices of the Director-General of Observatories and the Deputy Director-General of Observatories (Administration), New Delhi.
These offices functioned as a single unit and dealt with questions of general policy and organisation and the administrative and technical control of the Department as a whole.'
15. I do not think that this description, cryptic as it is, throws any more light on the question as to whether the Director-General of Observatories actually has any function to perform within this State and at the regional centre at Alipur. There seems to be another Director-General of Observatories (Administration) at New Delhi. Presumably the administration of the various observatories throughout India is carried on from New Delhi. It further appears from the report that there are various directorates in the Meteorological department. There is one, for example, in Climatology, one for Geophysics and so forth. They have their different offices situated at different places in India. It is therefore impossible to say on the materials such as is placed 'before me, that the Director-General of Observatories, New Delhi, has any normal function to perform at the regional office at Alipur.
No doubt, he may be connected with the work, that is being carried on there, because an all-India Department must have its ramifications all over India and each part is connected with the other. That however is not the scope of my enquiry. What I am concerned with is to find out whether the Director-General of Observatories, New Delhi, can be said to be carrying on his normal activities within the area of this State and. as such, whether he would be amenable personally to the jurisdiction of this Court and whether Writs issued by this Court could be executed so far as he was concerned. On the facts as stated before me, I do not see how these questions can be answered in the affirmative.
16. These being the facts, let me examine the authorities on the point. In the Supreme Court decision (Supra) the facts were as follows: The Election Commission is a Statutory Authority constituted by the President and having its offices permanently located at New Delhi. The respondent filed his nomination to a by-election for a reserved seat in the Kakanada Constituency of the Madras Legislative Assembly. He was disqualified under Section 7(b), Representation of the People Act, 1951, as he had been convicted and five years had not elapsed after his release. He was elected and took his seat as a member. He had applied for exemption to the Election Commission but the application was rejected. The Speaker referred the case to the Governor who forwarded the case to the Election Commission.
The Chief Election Commissioner came down to Madras and heard the respondent and it was agreed that any further representations should be sent in writing to Delhi. The respondent then applied to the Madras High Court which , issued a rule. The Election Commission took objection to the jurisdiction of the Madras High Court. This objection was overruled by the Madras High Court which issued a writ of prohibition, prohibiting the commission from proceeding with the enquiry. On appeal the Supreme Court has overruled this decision and has held that the Madras High Court had no jurisdiction. 'These writs' said Patanjali Sastri C. J.
'were thus specially directed to the persons or authorities against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience were enforceable by attachment for contempt. These characteristics of the special form of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction. We are unable to agree with the learned Judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as 'functioning' within the territorial limits of the High Court and being therefore amenable to its jurisdiction under Article 226.'
The next case cited is - 'Sukhlal Chundermull v. A. N. Shah', matter No. 38 of 1952. judgment delivered by Das and Mookerjee 33 on 29-5-1953 (Cal) (B) where the appeal bench held that this Court had no jurisdiction over an income-tax tribunal sitting at Bombay, although the original tribunal held its sitting in Calcutta, and it was only upon the two Judges of the Calcutta Tribunal disagreeing that it was referred to a third judge, who held his sitting at Bombay.
'Article 226 of the Constitution' said Das J. 'empowers the High Court to issue directions, writs or orders throughout the territories in relation to which it exercises jurisdiction and to any person or authority including in appropriate cases any government within those territories. Thus the direction, writ or order cannot run beyond the territorial limits of the jurisdiction of the High Court and the person or authority to whom it may go must be amenable to the jurisdiction of the High Court, i.e., the presence of the person or the authority must be within the said limits: : 4SCR1144 (A).' As these authorities are fully binding upon me, I must hold that I have no jurisdiction to make any order against opposite party 1 under Article 226 of the Constitution. Mr. Burman has pointed out that the Director-General of Observatories is empowered to draw his pay at any treasury in India. To my mind this is quite irrelevant upon the point we are considering and is of no assistance in solving the problem of the jurisdiction of this Court. As regards opposite party 2. the matter is concluded, so far as this High Court is concerned by the appeal Court decision in - 'Lloyds Bank Ltd. v. Lloyds Bank Indian Staff Association (Calcutta Branches)'.
Harries C. J. and Eanerjee J. D/- 17-1-1951 (Cal) (C). Harries C. J. said as follows:
'It was faintly suggested at the outset that a 'mandamus' could issue against the Government of India which is a respondent in this matter restraining that Government from giving effect to the award. Article 226 of the Constitution expressly allows writs in the nature of prerogative writs to issue against Government which is a departure from English practice. That Government must however be located in the territory over which the Court exercises jurisdiction and in my view the Government of India cannot be said to be located in the State of West Bengal and therefore writs under Article 226 cannot issue against it at the instance of this Court.'
17. A Full Bench of the Allahabad High Court has expressed a contrary view, - 'Maqbulenessa v. Union of India', : AIR1953All477 (FB) (D). I am however bound by the view expressed by our own Court. The preliminary point is quite sufficient to dispose of the case. I shall however deal with the other points raised.
18. Mr. Burman appearing on behalf of the petitioner raises two points;
1. That the appointing authority of the petitioner is not the opposite party 1 but the Government of India, so that the notice of compulsory retirement was incompetent (vide Article 311(1) of the Constitution).
2. That the petitioner was not given an opportunity to present his case personally and was therefore deprived of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. (Vide Article 311(2) of the Constitution read with C. ,S.C.C.A..Rule 55..
19. With regard to the first point, Mr. Burman does not deny that the original appointing authority was the Director-General of Observatories, New Delhi, He however argues that by reason of his client electing to accept the schedule of pay under the Central Civil Services (Revision of Pay) Rules 1947, and the substantive post being renamed as 'Scientific Assistant' by the Government of India, the petitioner must be deemed to have been appointed by the Government of India. I am unable to accept this argument. By those rules, a Government servant was put to his election as regards the acceptance of his scale of pay but there is nothing in the rules to show that by such acceptance he changed the whole nature of his appointment and that he was to be deemed to have been appointed by the Government of India, or by some person other than the original appointing authority.
20. The second point is however much more difficult. Assuming that the Director-General of Observatories is the appointing authority, the fact remains that although the petitioner was offered to be heard in person, no such opportunity was granted to him eventually. He asked for an opportunity to produce witnesses but this was denied to him. There can be no doubt that Rule 55 C. S. (C. C. A) was not complied with. In his letter dated 15-12-1951, the acting Director-General of Observatories proposed to follow the procedure laid down by Article 311(2) of the Constitution read with Rule 55 C. S. CC. C. A.) but he has not Kept to his offer. The question is whether this has vitiated the order dated 18-1-1952.
21. The learned Standing Counsel frames his argument thus. He says that Rule 49 of C. S. (C. C. A.) Rules prescribes the penalties which can be imposed upon a Government servant for good and sufficient reason. Both Article 311(2) and Rule 55 C. S. (C. C. A.) have selected three of these penalties, viz., dismissal, removal or reduction in rank, as meriting special safeguards, and have prescribed the rights of a government servant in respect thereof. These penalties he argues, can only be imposed for indiscipline and misconduct. On the other hand, compulsory retirement under F. R. 56 (b) does not necessarily involve any indiscipline or misconduct. A Government servant of the ministerial class may be required to retire if he does not continue to be efficient. It is argued that in such a case he cannot be said to have either been dismissed or removed for indiscipline or misconduct. In - 'Jayanti Prosad v. State of Uttar Pradesh', : AIR1951All793 (E),. Agarwalla J. said as follows:
'Article 311 only applies to a case in which a person is dismissed or removed or reduced in rank. These are technical words used in cases in which a person's services are terminated for misconduct. They do not apply to cases in which a person's period of service determines in accordance with the conditions of his service.'
22. This view is upheld by the Supreme Court to - 'Satish Chandra Anand v. Union of India', : 4SCR655 (F), Bose J. states as follows: 'The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank Under Section 240, Government of India Act 1935, the safeguards were limited to those two cases. Under the present constitution a third was added, namely removal from service. In order to understand the difference between 'dismissal' and 'removal' from service, it will be necessary to turn to the rules which governed, and with modifications still govern the 'services' in India because of Article 313 of the Constitution.
Part 12 of the C. S. (C. C. A.) Rules relating to conduct and discipline includes Rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number.... The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards namely reduction in rank and dismissal from service. The Constitution has added a third to the list........'
23. Mr. Burman tried to argue that compulsory retirement for inefficiency amounted to a removal or dismissal for misconduct, the lack of efficiency being the misconduct. I am unable to-accept this argument. A man may be by nature-inefficient, but it has nothing to do with his conduct.
24. Of course, compulsory retirement at 55 when, a man might work till 60, is in a sense dismissal or removal and neither Article 311(2) nor Rule 55 C. S. (C. C. A.) speaks about misconduct or indiscipline. But the law has now been interpreted by the Supreme Court and I am bound to hold that the dismissal or removal there contemplated must be read with Rule 49 C. S. (C. C. A.) and must therefore be based on indiscipline or misconduct. It follows that compulsory retirement under F. R. 56 (6) is not such a dismissal or removal as would attract the provisions of either Article 311(2) or Rule 55 C. S. (C. C. A.). It follows that there was no particular form which had to be observed to hear the petitioner and the order complained of is perfectly valid.
25. For these reasons, the application fails and must be dismissed. The Rule is discharged. There will be no order as to costs.