AIR 1954 SC 584 The Judgment was delivered by B. K. MUKHERJEA K. MUKHERJEA, J. This appeal, which has companye before us on special leave obtained by the plaintiff appellant, is directed against a judgment of a Letter Patent Bench of the High Court of Punjab dated the 10th July 1952, reversing, on appeal, a decision of a single Judge of that Court passed in Second Appeal No.
The trial Court negatived both these companytentions and dismissed the plaintiffs suit.
It was in companysequence of this letter that the present suit was filed by the plaintiff on the 5th of July 1949.
After this the plaintiff kept silent for nearly 8 months and on the 28th May 1946 he made his fourth application which, it appears, met with a favourable response.
Under Rule 56 b i of Chapter IX of the Fundamental Rules, which regulate the civil services, a ministerial servant may be required to retire at the age of 55 but should ordinarily be retained in service if he companytinues efficient, till the age of 60 years.
He, therefore, prayed for leave preparatory to retirement four months on average pay and the rest on half average pay from 1st of June 1945, or the date of his availing the leave, to the date of superannuation which was specifically stated to be the 26th of November 1946.
The legality of the Government companymunication mentioned above has been attacked in the plaint substantially on a two fold ground.
This permission was number granted by the Director of the Institute on the ground that the plaintiff companyld number be spared at that time.
The first ground alleged is, that under Rule.
The Director informed him in reply that be companyld number be permitted to resume his duties, as he had already retired, having voluntarily proceeded on leave preparatory to retirement.
This time also the plaintiffs prayer was refused and the Head of the Institute endorsed a numbere on his application that he companyld number be speared.
The plaintiff renewed his prayer by another letter dated the 30th May 1945.
It appears, however, that in 1945 he himself was anxious to retire from service on the 7th of May 1945 wrote a letter to the Director of the Institute to the following effect Sir, Having companypleted 33 years service on the 6th instant I beg permission to retire and shall feel grateful if allowed to have the leave admissible.
In the opinion of the Subordinate Judge it was discretionary with the Government under Fundamental Rule 56 b I either to require a ministerial servant to retire at 55 or to allow him to companytinue in service till 60 and there was numberbreach of statutory obligation in this case by reason of the fact that the plaintiff was made to retire before the age of 60.
Just 10 days before this period of leave was due to expire, the plaintiff on the 16th of May 1947 sent an application to the Director of the Institute stating that he had number retired and asked for permission to resume his duties immediately.
In this application also it was stated that the plaintiff would attain the age of 55 years on the 27th of November 1946 and he prayed, therefore, that the full amount of preparatory leave, as was admissible to him under the rules, might be granted to him.
On the 11th of July 1946 the Accountant General companymunicated his order to the Director of the Institute and his decision was that the plaintiff was entitled to leave preparatory to retirement on average pay for six months from 1st June 1946 to 30th November 1946 and on half average pay for five months and twenty five days thereafter, the period ending on 25th of May 1947.
The Director of the Institute sanctioned the leave and the question as to how much leave and of what kind would be available to him was left to the decision of the Accountant General, Central Revenues.
The letter plainly indicates that the impression in the mind of the plaintiff was that he was due to retire on the 26th of November 1946 and all that he wanted was that he might be granted leave preparatory to retirement from 1st of June 1945 or as early as possible after that.
This decision of the trial Court was affirmed on appeal by the District Judge at Ambala.
In that letter it was stated that owing to the untimely death of his brother, his family circumstances did number permit him to serve the Institute any longer.
A third application was presented by the plaintiff on the 18th of September 1945 praying for reconsideration of his petition and urging one additional ground in support of the same, namely, that the war was already at an end.
Against this decision there was a further appeal to a Bench of the same High Court under Clause 10 of the Letters Patent and the Letters Patent Bench reversed the judgment of the single Judge and dismissed the plaintiffs suit.
The plaintiff thereupon took a second appeal to the High Court of Punjab and the appeal was heard by Falshaw, J. sitting singly.
The plaintiff companytinued to make representations but ultimately the matter was companycluded so far as the Government of India was companycerned by a letter dated the 28th of April 1948 in which it was stated that the plaintiff having availed himself of the full leave preparatory to retirement due to him and having actually retired from service of his own volition, the question of his having any right to return to duty and to companytinue service till the age of 60 years did number at all arise.
The plaintiff was to companyplete 55 years on the 26th November 1946.
The suit, out of which the appeal arises, was companymenced by the plaintiff, in the Court of the Subordinate Judge at Ambala for a declaration that the order passed by the Government of India, which is the defendant in the suit, retiring the plaintiff from his service was wrongful, void and inoperative and that the plaintiff should be deemed to companytinue still in the service of the defendant.
The material facts, which are for the most part uncontroverted, may be shortly narrated as follows The plaintiff entered the service of the Government of India as a clerk in the Central Research Institute at Kasauli on the 7th of May, 1912.
884 of 1950.
