Rajasthan High CourtDeep Chand Jain And Anr. vs State Of Rajasthan And Ors. on 1 November, 1972Equivalent citations: 1972WLN1015Author:P.N. ShinghalBench:P.N. ShinghalJUDGMENT
 

P.N. Shinghal, J.1. The petitioners were officers of the Rajasthan Administrative Service and feel aggrieved because they have been retired compulsorily under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, hereinafter referred to as "the Rules" As the orders of retirement in the two cases are of the same date (July 29, 1972) and are quite similar, and as common questions of law have been raised by the learned Counsel for the petitioners, the two petitions have been heard together and will be disposed of by this common judgment. Fourteen points have been urged for my consideration and I shall deal with them one by one.2. Before doing so it will be proper to examine the question which arises at the threshold, namely, whether Note 1 appearing below Sub-rule (2) of Rule 244 of the Rules is a part of the sub-rule or is by way of a subsequent executive or administrative instruction in clarification of the basic provision of the sub-rule? The Note appears at the end of the proviso to Sub-rule (2) of Rule 244, in the fourth edition of Rules issued by the Cabinet Secretariat of the State Government, and reads as follows:The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the intention to use this rule as a financial weapon, that is to say, the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds.3. An examination of the Rules as a whole shows that notes appear at the end of the main texts of several rules. A question arose before a Division Bench of this Court in Ganga Ram v. State of Rajasthan ILR (1961) 11 Raj. 371 whether the Notes formed part of the Rules and it was held that this was so because they had been inserted by the rule making authority in the exercise of its power under the proviso toArticle 309of the Constitution and were duly published as a part of the Rules There is no reason to reconsider that decision. The Rules were, however, amended by notification No. F. 1(84)FD A(Rules)/62 dated August 31, 1963, appearing in the State Gazette of September 19, 1963. That amendment was also made in exercise of the Governor's power under the proviso toArticle 309of the Constitution-One of the amendments related to Rule 244, inasmuch as the new rule mentioned in the notification was substituted for the earlier rule Sub-rule (2) of the amended rule, leaving out the proviso which is not relevant, reads as follows:(2) The Government may, after giving him at least three months previous notice in writing, require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.The Note which occurred in the earlier sub-rules was not reproduced in the amended sub-rule, and the question is whether it ceased to exist as a result of the amendment or continued to remain a part of the sub-rule in the form of a Note4. A perusal of the aforesaid notification of August 31, 1963 shows that the rule making authority thought it proper to refer to the rules and Notes separately, so much so that if, as in the case of Clause 2 of the notification, it was thought proper to substitute Clause (a) of Rule 56 and the Note thereunder by a new clause, specific reference was made to the Note also and it was stated that the new clause supplanted the earlier Clause (a) of Rule 56 as well as the Note there under. Similarly, a perusal of Clause 5 of the notification shows that while deleting Rule 242, the rule making authority thought it proper to say that it was deleting not only that rule but also the Note appearing thereunder it is therefore quite clear that in the aforesaid notification of August 31, 1963 (by which the new sub-rule was substituted for the old Sub-rule 244(2), whenever the rule making authority, namely, the Government, wanted to amend a rule he referred to the rule as such, and whenever he wanted to amend the rule and the Note, or only the Note, he made a specific reference to the rule and the Note or the Note. In other words, he thought it proper to make a distinction between the main text of the rule and its Note or Notes, and observed that distinction all through the notification. Thus the rule making authority has made a distinction, while amending Sub-rule 244(2), between the main text of the sub-rule and its Note. It should follow then fore that while the rule making authority has substituted a new Sub-rule 244(2), he has left the later part of the rule, in the form of the Notes. The rule of interpretation to be followed in such cases has been laid down by their Lordships of the Supreme Court inCommissioner of Wealth Tax, Bihar and Orissa v. Kripa Shankar Dayashankar Worah. Their Lordships have stated (in paragraph 10 of their judgment) that "the legislature is competent in the absence of any restrictions placed on it by the Constitution to give its own meaning to the words used by it in a statute". Their Lordships have further held that if the intention of the legislature is clear and beyond doubt, then the fact that the provision could have been more artistically drafted cannot be a ground to treat any part of the provision as otiose. The decision of their Lordships thus turned on the intention of the legislature, and they have given the direction that the courts have to "carry out that intention." The rule of construction as enunciated by their Lordships leaves me in no doubt that it was the intention of the rule making authority that while a new Sub-rule 244(2) should be substituted by the notification dated August 31, 1963, the Note should remain as it was and should be a part of the Rules. It may be stated that in the fourth edition of the Rules, which is a Government publication corrected upto December 31, 1967, the Note has been printed just after the main text of Rule 244(2) as a part of the sub-rule. I have therefore no hesitation in taking the view that Note 1 is a part of Sub-rule (2) of Rule 244 of the Rules. On this point there is in fact no controversy before me at all.5. I shall now proceed to examine the 14 arguments of the learned Counsel for the petitioners.6. It has been argued by the learned Counsel that as Note 1 is a part of Sub-rule (2) of Rule 244, the rule is invalid because, in contravention ofArticle 311of the Constitution, it provides for compulsory retirement by way of penalty inasmuch as it provides for the retirement of a government servant whose efficiency is impaired, or who has ceased to be fully efficient, or is considered unfit for retention.7. It will be sufficient to say that a similar point came up for consideration inState of Bombay v. Saubhagchand M Doshi. There the rule provided for compulsory retirement "without giving any reason" and on grounds of inefficiency or dishonesty. It also provided for retirement if the efficiency of a government servant was "impaired" or he had "ceased to be fully efficient", and also where "corruption" was clearly established even though no specific instance was likely to be proved under the Conduct, Discipline and Appeal Rules. Their Lordships of the Supreme Court examined the validity of the rule and upheld it as follows:The fact to be noted is that while misconduct and inefficiency are factor's that enter into the accounts when the order is one of dismissal or removal or retirement, there is this difference that while in the case of retirement, they merely furnish the background and the enquiry if held-and there is no duty to hold an enquiry is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry there on must be formal, and must satisfy the rules of natural justice and the requirement ofArticle 311(2).Their Lordships also made it quite clear that the rule, on its true construction, did not impose any fetter on the power conferred on the State, in terms absolute, to terminate the service of its servant. They therefore declared that the rule was not violative ofArticle 311of the Constitution and was valid. When the matter again came up before their Lordships inDalip Singh v. State of PunjabAIR 1960 SC 1395, they reiterated (in paragraphs of their judgment) the decision inSaubhagchand's case  The validity of Sub-rule (2) of Rule 344 of the Rules is therefore, beyond challenge.8. It has to be remembered, while examining an argument of the nature advanced by the learned Counsel for the petitioners, that Government employment is a relationship in the nature of status and not of contract [Roshan Lal Tandon v. Union of India and Anr.], and as its terms are defined by law, that law would govern the conditions of service of the status holder as the employee of the Government.This is why it has beenlaid down bytheir Lordships of the Supreme Court in Moti Ram Deka v. General Manager, North East Frontier Railway  that a government servant has a right to serve up to the age of superannuation or compulsory retirement in accordance with the service rules, and no more.Reference may also be made to the decisions inUnion of India v. J.H. Sinha and Anr., and Dr. N.V. Puttu Bhatta v. State of Mysore and Anr.  where their Lordships have held that the right conferred by a service rule to retire a Government servant compulsorily is an "absolute" right which does not involve any civil consequences.9. The argument that Sub-rule (2) of Rule 244, read with Note 1, is a penal rule and violatesArticle 311of the Constitution, is thus quite futile. It may further be stated that their Lordships of the Supreme Court had occasions to consider the question of "penalty" in Shyamlal v. Sate of Uttar Pradesh and Anr.  andDalip Singh v. State of PunjabAIR 1960 SC 1395 and laid down two tests for answering the question whether compulsory retirement under a service rule is by way of penalty: (i) whether the action of the authority concerned is by way of punishment (and they laid it down that to find that out it is necessary to examine whether a charge or imputation against the officer has been made the condition for the exercise of the power), and (ii) whether by compulsory retirement the officer is loving the benefit which he had already earned as be does by dismissal or removal These tests have been reiterated by their Lordships inState of U.P. v. Shri Shyam Lal Sharma1970 SLR 716.10. If the tests are applied to the present cases, it becomes quite clear that compulsory retirement has not been ordered by way of punishment, for no charge or imputation has been made the condition for the exercise of the power of retirement, and the petitioners are not losing any benefit which they had already earned and which they would have lost by way of dismissal or removal.11. There is thus no force in the argument of the learned Counsel for the petitioners to the contrary.12. It has next been argued that the power vested in the State Government by Sub-rule (2) of Rule 244 of the Rules is arbitrary because there is nothing in it to control and guide the exercise of the State Government's discretion, so much so that the sub-rule does not even provide that the power should be exercised in the public interest13. A perusal of Note 1 of Sub-rule (2) of Rule 244 shows, however, that the rule making authority has provided amply for regulating the exercise of the power of compulsory retirement. Thus the guide-line in the Note requires that the power of compulsory retirement should be exercised in respect of a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency, or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. Then it has been clarified that it is not the intention that the sub-rule should be used as a financial weapon, and that it should be used only in the case of Govt. servants who are considered unfit for retention on personal "as opposed to financial grounds" 1 have no doubt that these are ample safeguards against the exercise of the power of compulsory retirement in an arbitrary manner, and the rule making authority has taken care to provide the necessary guide-line as well as the background for the making of an order for compulsory retirement. Compulsory retirement has thus been made permissible only when it is in the public interest to do so14. I have already made a reference toState of Bombay v. Saubhagchand M. Doshiwhere a similar rule came up for consideration before their Lordships of the Supreme Court and was upheld.When the matter again came up inDalip Singh's case AIR 1960 SC 1395, where the rule did not even provide that the compulsory retirement would be permissible only in the public interest and did not contain any guide-line or back-ground for the exercise of the power of compulsory retirement, their Lordships upheld the order of retirement, under Rule 278 of the Partial State Regulations which merely provided as follows:278: For all classes of pensions the person who desires to obtain the pension is required to submit his application before any pension is granted to him.The State reserves to itself the right to retire any of its employees on pension on political or on other reasons.So even if Note 1 of Sub-rule (2) of Rule 244 of the Rules were to be left out altogether, the sub-rule would still be valid. I have gone through the decision inC.P. Nesrikar and Ors. v. Union of India1970 SLR 916, but it cannot avail the petitioners because in their case the provisions of Sub-rule (2) of Rule 244 are vastly different.Moreover, if I may say so with respect, the decision inC.P. Nesrikar's case 1970 SLR 916 does not refer to the decisions of their Lordships of the Supreme Court which have settled law on the point beyond controversy.15. Then it has been argued that when the impugned orders of retirement (Annexure 1) are read with Note 1 of Sub-rule (2) of Rule 244 of the Rules, it would appear that they cast a stigma on the conduct of the petitioners and are therefore of a penal nature. Reference in this connection has been made toState of Uttar Pradesh v. Madan MohanAIR 1967 SC 1860 and Debesh Chandra Dass v. Union of India and Ors. 1969 SLR 485.16. A reading of the decision of their Lordships of the Supreme Court inMadan Mohan's case AIR 1967 SC 1860 shows however, that it runs counter to the argument of the learned Counsel for the petitioners. Thus in paragraph 8 of their judgment their Lordships have stated the test for the purpose of examining any argument relating to stigma as follows:...does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily?Their Lordships have held that for this purpose the order has to be examined "on the fare of it." The test has been reiterated inI.N. Saksena v. State of Madhya Pradeshand it has been held that where there were no express words in the order itself which would throw any stigma on the Government servant, the court could not delve into the Secretariat files to discover whether some kind of stigma could be inferred on such research.This has been stated to be the "consistent view" of their Lordships and it has been reiterated inState of UP. v. Shyam Lal Sharma1970 SLR 716.17. So, when the impugned orders do not cast any stigma on the petitioners, this argument of the learned Counsel is also futile.18. I have gone through the decision in Debesh Cnandra Dass's case 1969 SLR 485. That was a different case altogether for there it was admitted by the Government in its affidavit that reversion was made as the performance of the petitioner did not come up to the required standard. Moreover the petitioner was there informed that he could be retained in the Central Government if he accepted a lower post. It was held in the facts and circumstances of that case that the Government was "bent upon removing him."19. It has however been further argued that the impugned orders are illegal because they are based on the extraneous consideration of public interest" whereas Note 1 of Sub-rule (2) of Rule 244 provides some other grounds for retirement. Reference in this connection has been made toRam Manohar Lohia v. State of Bihar and Anr..20. The decision inRam Manohar Lohia's case  has, however, no bearing on the present controversy because it was given in a case of preventive detention. As the order of detention drastically interfered with the personal liberty of a citizen, their Lordships took the view that strict compliance with the letter of the rule was the essence of the order. That was therefore a vastly different case. It has also to be remembered that according to Sub-rule (2) of the 244 of the Rules, it was not necessary to state any reason for compulsory retirement. The rule was a condition of service of the petitioners. But as Note 1 furnished the background for the exercise of the power of compulsory retirement, and that background was meant to serve the public interest, there is nothing wrong if it has been stated in the impugned order that the retirement has been made in the public interest for this makes in quite clear that there was no ulterior or improper motive in ordering the retirement.21. It has been argued that in the peculiar facts and circumstances of the two cases under consideration, the compulsory retirement has resulted in pecuniary loss inasmuch as the benefit of additional service which would have been admissible to the petitioners on their voluntary retirement under Sub-rule (1) of Rule 244 has bean denied to them. Reference in this connection has been made toB.B. Dutta v. Union of India and Anr.1972 SLR 731.22. It will be a simple answer to this argument to say that as the petitioners did not exercise the option to seek voluntary retirement, the question of denying them the benefits of that retirement does not arise.23. An ancillary argument has been made that even though the petitioners were entitled to more leave, they have been retired after allowing them leave for 3 months only An attempt has been made to support the argument by a reference to Vinay Kumar Najoo v. State 1968 RLW 325.24. This argument is again futile because Sub-rule (2) of Rule 244 provides that the Government may require a Government servant to retire compulsorily after giving at least three months' previous notice in writing, and the impugned orders give that much notice to the petitioners. It may be that the petitioners are entitled to more leave, but as learned Additional Advocate General has stated that the Government are quite prepared to grant more leave salary if it is found to be due according to the Rules, this argument of the learned Counsel for the petitioners does not require any further consideration. It may be mentioned that such a statement of learned Advocate General was considered to be sufficient in Gopalmal v. State ILR (1965) 16 Raj. 63. Vinay Kumar Najoo's case 1968 RLW 325 was a vastly different case because thereSection 25of the Industrial Disputes Act, 1947, had been violated even though it prescribed the conditions precedent to the retrenchment of a workman.25 It has been argued by the learned Counsel for the petitioners that the impugned orders of retirement are invalid because the power of the State Government under Sub-rule (2) of the Rule 244 had been delegated even though this was not permissible. The learned Counsel has made a reference in this connection to the order of delegation dated December 13, 1963 (at page 3 of S.B. Civil Writ petition No. 1654 of 1972). The argument is futile because under the sub-rule the power vests in the State Government and it has been exercised by the State Govt. in these cases. In fact even in the aforesaid order of delegation dated Dec. 13, 1963, the power continues to vest in the State Govt. The petitioners have themselves referred to circular N.F. 24 (56) Apptts/(A)/57/pt I Gr. I/CR dated June 19, 1972 which governs the procedure for compulsory retirement, and it leaves no room for doubt that, in the case of persons holding posts in the State services, the final order has to be passed by no less an authority than the Chief Minister.26. The aforesaid circular of June 19, 1972 has however given rise to the further argument of the learned Counsel for the petitioners that it interfered with the exercise of the State Government's discretion in the matter of retirement under Rule 244(2) of the Rules and that the impugned orders are invalid for that reason also. Reference in this connection has been made toJagannath Dwarkanath Raje v. State of Maharashtra1972 SLR 543.27. A perusal of the circular shows that it regulates the procedure for the consideration of the cases of officers who have completed 25 years qualifying service. The circular does rot contain any extraneous matter, and it does not give rise to any extraneous consideration. The basic requirement of the circular is that the administrative department concerned would draw up the list of persons who are to complete 25 years qualifying service by December 31, containing information in respect of the 11 relevant points mentioned in the circular Then it has been stated that the lists, with the confidential reports, shall be scrutinised by a Committee consisting of a member of the Board of Revenue, an officer of the status of an Additional Commissioner and Special Secretary Appointments Department, or his representative. That Committee is required to draw up the list of officers who should be compulsorily retired, and the list, along with the confidential reports, has to be submitted to the Minister-in charge and the Chief Minister for final orders. I do not find anything in the circular to justify the argument that it interferes with the exercise of the discretion by the State Government.Jaggannath Dwarkanath Raje's case 1972 SLR 543 has therefore no bearing on the argument of the learned Counsel in the facts and circumstances of these cases.28. The learned Counsel has made one more argument on the basis of the aforesaid circular dated June 19, 1972. He has argued that while in the case of circular No. F 24(55) Apptts/(A)/57 pt. I Gr. II/CR dated May 16, 1963, which has been issued in regard to the compulsory retirement of the sub-ordinate, ministerial and class IV employees, it has been stated that the power of retirement should be exercised with care and caution, no such safeguard has been provided in the aforesaid circular of June 19, 1972, in the case of the officers of the State services to which the petitioners belonged, and that they have therefore been discriminated against within the meaning ofArticle 14of the Constitution.29. There is no force in this argument also, for a much higher committee has been constituted under the circular of June 19, 1972, in the case or the employees of the State services, for the purpose of scrutinising their record, and it would not have served any useful purpose if it had been stated in the circular that the power of retirement should be exercised with care and caution for that would have been a mere matter of form. I have already referred to the salient features of the circular, and it leaves me in no doubt that it makes it the bounden duty of the Committee to "scrutinise" the entire service record of the employees concerned for the purpose of drawing up its recommendations regarding compulsory retirement. Care has been taken to include a direction that the Committee should record the reasons why any officer should be retired compulsorily. There is therefore ample safeguard for ensuring that the recommendations of the Committee are drawn up with care and caution.30. An argument has been made that the impugned orders have been passed "mechanically" and that the Committee concerned did not go through the record of the petitioners at all because, if it has done so, it would have found that there was no justification for ordering the compulsory retirement of the petitioners. The argument has been supported by a reference toState of Punjab v. Dewan Chuni Lal.31. I asked the learned Counsel for the petitioners to state the basis for the contention that the impugned orders had been passed "mechanically" and that the Committee did not go through the records of service of the petitioners, but he was unable to do so. The argument is there fore based on mere conjecture, and has been advanced on the off chance of getting success in these cases somehow. It may be mentioned that it has beenlaid down bytheir Lordships of the Supreme Court inT.G. Shivacharan Singh v. State of Mysorethat the question whether any particular officer should be retired compulsorily or not "is a matter for the State Government to consider" and this Court cannot therefore be expected to substitute its own views or to exercise its own discretion instead.State of Punjab v. Dewan Chuni Lalwas a different case, for there the departmental enquiry was the outcome of extracts from the confidential character rolls of the petitioner for a remote period of service. Moreover, the fact that the petitioner was allowed to cross the efficiency bar also arose for considerationin that case. The facts of the present cases are however quite different for here there is no question of any departmental enquiry, the entire record of service of the petitioners has been scrutinised for the purpose of examining their performance over a period of 25 years, and then a decision has been taken to retire them compulsorily.32. It has been urged that the proceedings before the Committee, which was constituted under the Circular dated June 19, 1972, were vitiated because the Special Secretary, Appointments Department, or his Deputy Secretary, participated as a member, and also as a member-secretary, so that he had a double light of expressing his opinion in the Committee and this undue weightage vitiated the deliberations of the Committee. I have gone through the relevant provision of the circular, and I find that the Special Secretary, Appointments Department, participates as a member-secretary and not in two separate capacities, so that the argument is quite unjustified. Moreover, learned Additional Advocate General has placed before me the deliberations of the Committee in the case of the petitioners, and they leave no room for doubt that the Special Secretary, Appointments Department, participated like any other member of the Committee even though he functioned as the member-Secretary of the Committee also and that he did not exercise a double right of expressing his opinion.33. The learned Counsel for the petitioners has argued that the impugned orders were rendered invalid because extraneous considerations led to the making of those orders. He has in this connection relied on the facts mentioned in the following paragraphs of writ petition No. 1651/72:(i) The Chief Minister gave a speech on July 9, 1972, reported in Rajasthan Patrika dated July 10, 1972, as mentioned at pages 19-20 of the petition, in which he made the observations mentioned at those pages.(ii) A hand-out was issued by the Public Relations Directorate of the State Government on August 2, 1972 regarding the compulsory retirement of six officers. It has been reproduced at page 21.(iii) A news item appeared in the Rajasthan Patrika dated August 3, 1972 regarding the retirement of the petitioners It has been reproduced at pages 22 & 23.(iv) A news item appeared in the Rajasthan Patrika dated August 15, 1972 over the signature of the Director of Public Relations regarding compulsory retirement. It has been reproduced at page 27.It has been argued that the extraneous considerations mentioned in the above news items and hand-out, formed the real basis for the impugned orders. A reading of the news items and the band-out shows, however, that there is no justification for the argument. They do not contain anything objectionable, and there is no justification for the contention that any extraneous matter went into the making of the orders for compulsory retirement of the petitioners so as to detract from their validity.34. An argument has been made in regard to the writ petition filed by Narendar Mohan (writ petition No. 1656 of 1972) that he was an employee of the former Jaipur State, and the Service Regulations of that State provided for compulsory retirement after completing 30 years of qualifying service and that condition of service could not be altered to the petitioner's disadvantage by virtue of Article XVI of the Government which was entered into by the Maharaja of Jaipur at the time of the merger of the State Reference has also been made toBholanath J. Thaker v. State of Saurashtrato support the argument. The argument is however untenable because it is admitted before me that the petitioner accepted appointment in the service of the respondent State as a result of the integration of the service of the employees of the Covenanting States. He was therefore governed by Rule 2(ii) of the Rules which provided that the Rules shall apply to all persons appointed on or after April 7, 1949 to posts in the service of the State as a result of integration of the service of the employees of the Covenanting States.Bholanath's case  was quite different for there old Dhara No. 29 Samwat 2004 continued to be in force.35. It has lastly been argued that that the impugned orders are illegal because they have been expressed in English in contravention of a direction of the State Government. The argument is one of despair, and it will be enough to say that it cannot detract from the validity of the orders that they have been expressed in English and not in Hindi.36. It will thus appear that there is no force in the arguments which have been pressed for my consideration by the learned Counsel for the petitioners, and the two petitions are therefore dismissed.