Appeal No 2022 of 1969
Appealfrom the Judgment and Order dated 26101968 of the Judicial Commissioner for Manipur in Civil Appln
Case No 2367 RK Garg SC Agarwal  VJ Francis for the Appel lant
VC Mahajan  RN Sachthey for Respondent Nos
1 3 The Judgment of the Court was delivered by RAyCJ
This appeal is by certificate from the judg ment dated 26 October 1968 of the Judicial Commissioner for Manipur
The appellant by a writ petition challenged the order of respondent No 1 by which the appellant was compulsorily retired
The Judicial Commissioner dismissed the writ petition of the appellant
The appellant was born on 1 January 1911
He joined the erstwhile State of  Manipur as a junior clerk in 1935
Though he was not a Law Graduate he rose to become a permanent Puisne Judge in Manipur State Chief Court with effect from 5 October 1949
After the Government of India took over the administration of Manipur the appellant was appointed as a Subordinate Judge with effect  from 25 Janu ary 1950 on a temporary basis
On the enactment of Manipur Courts Act 1955 the Court of Subordinate Judge was estab lished on 1 March 1956
The appellant was appointed as the Judge of that Subordinate Court from that date
The appellant did not earn good reports from superior officers
He was reverted to the post of subordinate Judge
The appellant was served with a notice dated 30 June 1966 that he was required to retire from Government service with effect from 1 October 1966 in pursuance of the direc tions of the President in Paragraph 6 of the
Government of India Decision No 23 noted below Fundamental Rule 56
The above Decision No 23 was contained in the Memoran dum of the Government of India Ministry of Home Affairs dated 30 November 1962
The Decision came into force on 1 December 1962
Under Paragraph 6 of the Decision the appointing authority was empowered to require a Government servant to retire after he had attained the age of 55 years on three months notice without assigning any reason
This provision was really intended to retire an officer who had completed 30 years  qualifying service
The purpose of the provision was to weed out unsuitable employees after they attained the age of 55 years
The Government Decision No 23 below Fundamental Rule No 56 which came into force on 1 December 1962 as aforesaid was substituted by new Rule on 21 July 1965
The new rule provided that 1024 if the appropriate authority is of opinion that it is in public interest to do so he has the absolute right to retire any Government servant after he attained the age of 55 years with notice of not less than three months
The appellant on receiving the notice for retirement prayed for his being retained in service after the age of 55 years in public interest
The representation of the appel lant was rejected
It is in this background that the appel lant filed the writ petition
The principal contention of the appellant was that the impugned order of compulsory retirement was null and void ab initio because the Fundamental Rule 56 at the material time contained no reservation of any powers in the appointing authority to retire him without any reason on three months notice after the age of 55 years
Emphasis was placed by counsel on the fact that the impugned order was made ex pressly under the authority of Government of India Decision No 23 below Fundamental Rule 56 and this Decision was not subsisting at the time of the impugned notice
It was also
contended that the Government Decision was not incor porated in Fundamental Rule 56 and therefore it amounted to a mere executive instruction and not a rule within the meaning of Article 309
The appellant also contended that in substance the compulsory retirement was removal under Article 311
Compulsory retirement is not a punishment
There is no stigma in compulsory retirement
See Tara Singh etc
vs State of Rajsthan and ors1 It is also the view of this Court that if power can be traced to a valid power the fact that the power is purported to have been exercised under non existing power does not invalidate the exercise of the power
See L Hazari Mal Kuthiala vs Income tax Officer Special Circle Ambala Court and Anr2 and Hukumchand Mills Ltd vs State of Madhya Bharath  anr3 The Government case is that the Chief Commissioner by reason of the order of the President contained in Government of India Ministry of Home Affairs Memorandum No 331862 ESTSA dated 30 November 1962 followed by Fundamental Sixth Amendment Rules 1965 had the power to retire the Government servant without assigning any reason if he was of opinion that it was in the public interest to do so
The relevant Fundamental Rule 56J is as follows  Notwithstanding anything contained in this Rule the appropriate authority shall if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Government servant after he has attained the age 1 2 1961 1 SCR 89241ITR 12
3  ITR 583
1025 of 55 years by giving him notice of not less than three months in writing
The affidavit evidence is that the order of compulsory retirement was made in public interest
The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest
In RL Butail vs Union of India  Ors1 this Court considered Fundamental Rule 56j and the circumstances under which compulsory retirement can be made in public interest
It is true that in Butail s case supra the notice in terms of Fundamental Rule 56j was served namely that the order of complusory retirement was made in public interest
A comparision between Paragraph 6 of Decision No 23 below Fundamental Rule 56 and Fundamental Rule 56j of amended FR 56 shows that the two deal with the identical matter of compulsory retirement
The common features are that the Government servant may be asked to retire after the age of 55 years
Second such retirement is ordered to be made by giving the Government servant a notice of three months
Third the power to retire is an absolute right without assigning any reason
Fourth under the amended Fundamental Rule 56j the power is exercised only if the appropriate authority is of opinion that it is in public interest to do so
The Government affidavit is that the Chief Commissioner made the order because he was of opinion that it was in public interest to do so
Whether the order is correct or not is not to be gone into by the court
See Union of India vs J N Sinha2 In the present case Counsel for the appellant contended that it did not appear in the order that there was any application of mind that the order was being made in public interest
In Butail s ease supra it was said that the plea that the appropriate authority had not applied its mind failed there in view of the clear averments made in that regard in the affidavit and no reason was adequately shown to discord those statements as untrue Or Otherwise unbeliev able
In the present case the affidavit evidence estab lishes that the Commissioner exercised his powers because he was of the opinion that it was in pub lie interest to make the order of compulsory retirement
The order in the present case is made bona fide and nothing is on the record to show that the affidavit is unbelievable
the foregoing reasons the appeal fails and is dismissed with no order as to costs
SR Appeal dismissed
1 2 1971 1 SCR 791


Summary:
The appellant a Sub ordinate Judge was compulsorily retired under the Government of India Decision No 23
below Fundamental Rule No 56 though the said rule was later substituted as FR 56j
A writ petition assailing the order of compulsory retirement as in violation of Article 311 was dismissed by the Judicial Commissioner for Manipur
On appeal by certificate the appellant contended that the impugned order of compulsory retirement was null and void ab initio because 1 Fundamental Rule 56 at the material time contained no reservation of any power in the appointing authority to retire him without any reason on three month s notice after the age of 55 years 2 the impugned order was made expressly under a non subsisting authority viz Gov ernment of India Decision No 23 below Fundamental Rule 56 at the time  of impugned notice and 3 the Government of India Decision not having been incorporated in Fundamental Rule 56 it amounted to a mere executive instruction and not a rule within the meaning of Article 309
Dismissing the appeal the Court HELD 1 Compulsory retirement is not a punishment there being no stigma in it
1024 D Tara Singh etc
vs State of Rajasthan and Ors  reiterated
2 If power can be traced to a valid power the fact that 1he power is purported to have been exercised under non existing power does not invalidate the exercise of the power
In the present case the affidavit evidence estab lishes that the Commissioner exercised his powers and was of the opinion that it was in public interest to make the order of compulsory retirement
1024 E 1025 A L Hazari Mal Kuthiala vs Income tax Officer special circle Ambala Cantt
and Anr
ITR 12 and Hukumchand Mills Ltd vs State of Madhya Bharath and Anr  ITR 583 followed
3 The absence of recital in the order of compulsory retirement that it was made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exer cised in public interest
Whether the order is correct or not is not to be gone into by the Court
In the instant case the Government affidavit is that the Chief Commission er made the order because he was of the opinion
that it was in public interest to do so
The order is made bona fide and nothing us on the record to show that the affidavit is unbelievable
1025 A B E G Union of India vs J N Sinha 1971 1 SCR 791 applied
Butail vs Union of India  Ors
referred to 1023