vil Appeal No 1939 N of 1972
From the Judgment and Order dated 2411972 of the High Court of Gujarat at Ahmedabad in LPA No 263 of 1971
VM Tarkunde VN Ganpule and PC Kapur for the Appellant
Vimal Dave and MM Shroff for the Respondent
The Judgment of the Court was delivered by SEN J
The only question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated January 24 1972 is whether the appellant who was officiating as Superintending Engineer in the Guja rat Service of Engineers Class I could be retired by the State Government on the date on which he attained the age of 55 years on the ground that he was merely officiating in that post and had not attained to the rank of a Superin tending Engineer within the meaning of r 1611cii1 of the Bombay Civil Services Rules 1959 as applicable to the State of Gujarat
644 The facts giving rise to the case are as follows
The appellant was an officer of the Bombay Service of Engineers Class I in the erstwhile State of Bombay and was promoted to the post of Executive Engineer
In July 1965 when the post of Superintending Engineer fell vacant the State Government promoted him to officiate as Superintending Engineer in the Gujarat Service of Engineers Class I until further orders
On account of his meritorious service as Superintending Engineer the appellant was put in charge of the Minor Irri gation Project Circle
The work undoubtedly is of a highly specialised and skilled nature and officers of merit and proven ability skill and competence are usually posted there
The appellant did excellent record of service without any blemish and earned encomiums for his meritorious service in his new capacity
In 1966 the Chief Engineer Public Works Department addressed a letter to the appellant commu nicating the State Government s appreciation of the valuable work which the appellant and the officers and staff under him had put up during the scarcity relief operations in that year
However the State Government all of a sudden on September 13 1967 purported to compulsorily retire him under the first proviso to r 1611a wef December 15 1967 after giving him three months notice he having attained the age of 55 years on November 12 1967
Normally the appellant would have as Superintending Engineer retired on November 12 1970 the date on which he attained the age of 58 years
He had by then put up 29 years of service and there was no adverse entry in any of his confidential re ports questioning his integrity or his efficiency or ability for retention in service
The appellant accordingly assailed the order of compulsory retirement by a petition in the High Court under article 226 of the Constitution
In contesting his claim the State Government in its return pleaded that the case of the appellant was governed by r 1611c ii1 of the Rules and not by r 1611a and reference to a wrong provision would not necessarily invalidate the order that the appellant had not substan tively attained to the rank of Superintending Engineer before he reached the age of 50 years and therefore the Government could compulsorily retire him at any time after he reached that age
It was asserted that the Government was entitled to review the cases of government servants who were to attain the age of 55 years as per the terms of the circu lar issued by the Government in the General Administrative Department dated October 25 1963 as amended from time to time and that in accordance with the procedure laid down the case of the apellant was reviewed before he attained the age of 55 years and it was decided that it was not desirable in the public interest to 645 continue him in government service and that he should be compulsorily retired by giving three months notice
Even otherwise it was contended that by virtue of the power vested in the Government under the first proviso to r 1611a the Government could direct the compulsory retire ment even of a person who had attained the rank of Superin tending Engineer before reaching the age of 50 years and that power was not excluded by reason of r 1611 cii1
The learned Single Judge AD Desai J relying upon the decision of a Division Bench in Ishwarlal Kasanji Naik vs State of Gujarat held that since the appellant had not attained the substantive rank of a Super intending Engineer he could be made to retire at any time under r 1611 cii1 ie on the date he attained the age of 55 years or thereafter
He observed that the decision in Ishwarlal Kasanji Naik s case being that of a Division Bench the construction placed by the learned Judges on r 1611 cii1 were clearly binding on him and that since the appellant was merely holding the post in an officiating capacity he could not be held according to the view ex pressed in Ishwarlal Kasanji Naik s case to have attained the rank of Superintending Engineer in order to have the benefit of the normal age of superannuation of 58 years
It has been laid down by a Division Bench in Ishwarlal Kasanji Naik s case that the benefit of exemption from r 1611cii1 could be had only by government servants in the Bombay Service of Engineers Class I who were in the posts of Superintending Engineers ie held the rank of a Superintending Engineer on a regular basis in a substantive capacity and not in an officiating capacity
The decision is reflected in a laconic sentence In order to get the benefit of exemption from the rule r 1611cii1 it is necessary that he should have substantively attained the post or the rank of a Superintending Engineer
 We are unable to subscribe to the view expressed by the learned Judges in Ishwarlal Kasanji Naik s case
The word substantive  does not find place in r 1611cii1 of the Rules
In assailing the correctness of the judgment of the High Court learned counsel for the appellant contends that the post of Superintending Engineer is a selection post and the appellant was promoted as such in a clear vacancy and though he was working as a Superintending Engineer in an officiating capacity he was given the benefit of the re vised pay scale for post of Superintending Engineer and also given 646 two yearly increments
According to him the word rank  in r 161 1cii1 must in the collocation of the words being preceded by the word attained  mean the status or the grade
It is pointed out that the word rank  is not quali fied by the word substantive  as erroneously assumed in Ishwarlal Kasanji Nailo s case
He places reliance on the recent judgment of this Court in SC Jain vs State of Haryana  Anr  where an identical provi sion r 326c1 of the Punjab Civil Services Rules was treated to be a special rule conferring immunity on an Engineer who has attained the rank of Superintending Engi neer in the Public Works Department Buildings  Roads Branch on the ground that premature retirement of Executive Engineers promoted to the rank of Superintending Engineer because of their merit and proven ability and competence was clearly not in the public interest and therefore they must get protection from premature retirement under r 326c1
It is pointed out that even though the appellant was working as a Superintending Engineer his pension has been fixed by the Government on the basis of the pay scale of Superintending Engineer presumably because he had been promoted to the post in an officiating capacity but in a clear vacancy ie had acquired the status or rank of a Superintending Engineer
The contention to the contrary by learned counsel for the respondents based upon an earlier decision of this Court in Union of India vs KR Tahiliani  Ant  is that the appellant was only officiating as Superin tending Engineer and had no right to the post
Our attention is drawn to the following observations made by the Court When a Government servant belonging to a Class I or Class II Service or post on a regular basis has to be retired compulsorily Rule 56j comes to the rescue of the Govern ment
But if he is only a temporary hand he has no right to the post and can always be reverted to the post if any on which he has a lien
Similar is the position of an offici ating hand
Thus we have rigid and inevitable conclusion that Rule 56j is meant to cover only those who are in a post on a regular basis ie in a substantive capacity and not on an officiating basis only
 The submission therefore is that the benefit of the exemp tion under r 1611cii1 can be had only by a govern ment servant holding the post of a Superintending Engineer on a regular basis ie in a substantive capacity
The subsequent decision in SC Jain s case is sought to be distinguished on the ground that the Court there was dealing with 647 the case of a person holding the post of a Superintending Engineer on a regular basis
In order to appreciate the rival contentions it is necessary to refer to some of the provisions of r 16 11 which deals with the age of superannuation insorfar as material 161
1a
Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant other than a Class IV servant is the date on which he attains the age of 58 years
Provided i An appointing authority may after giving three months previous notice in writing re quire a Government servant to retire from the service on the date on which he attains the age of 55 years or on any date thereafter to be specified in the notice 161
1c The following rules are applica ble to particular services ii1 Except as otherwise provided in this sub clause Government servants in the Bombay Service of Engineers Class I must retire on reaching the age of 58 years and may be required by Government to retire on reaching the age of 50 years if they have not attained to the rank of Superintending Engineer
 Age of superannuation is an incident of government service it is  for the benefit of the employee who earns a well earned rest with or without pensionary benefits for the rest of his life
It is common to all permanent civil serv ants it depends on an event that inevitably happens by passage of time unless the employee dies earlier or resigns from the post
We must give to the different clauses of r 1611 which find place in Chapter IX headed Compulsory Retirement their plain ordinary meaning in furtherance of the object and purpose with which they have been flamed
Under r 1611a compulsory retirement of all government servants is at the age of 58 years which is the general provision
But the same cannot be said of the compulsory retirement before the age of superannuation
It is not an incident of the tenure it is not conceived in the interests of the employee it is a mode of 648 terminating the employment at the discretion of the appoint ing authority
The words except as otherwise provided in the other clauses of this rule  appearing in r 1611a make the general rule of superannuation at the age of 58 years 1subject to other clauses of that rule
That is to say the Government is empowered to provide for different ages of compulsory retirement for different classes of government servants
Proviso to r 1611a however is the absolute power of the Government to direct the premature retirement of a government servant on the date on which he attains the age of 55 years or at any time thereafter
R 1611c is the special rule framed for that purpose
To illustrate r 1611ci1 says that except as otherwise provided in that sub clause holders of posts of the Chief Judge of the Court of Small Causes Bombay and the Adminis trator General and Official Trustee Bombay whether they are recruited directly or are promoted from subordinate posts should ordinarily be retained in service till the age of 60 years if they continue efficiently upto that age otherwise they may be required to retire at the age of 55 years or at any point thereafter
This clearly brings out that there are two ages of superannuation depending upon efficiency integ rity and ability for further retention in service
Similar ly r 1611cii1 deals with another class of offi cers namely
government servants in the Bombay Service of Engineers Class I and similarly provides for two ages of superannuation
The first part of sub cl
1 adopts the general rule contained in r 1611cii1 for that class of officers as provided in r 1611a namely that they shall retire on the date on which they attain the age of 58 years
The second part however confers power on the Govern ment to retire any such officer on his reaching the age of 50 years
Such power of the Government to direct premature compulsory retirement of these officers is subject to a qualification
The words if they have not attained to the rank of Superintending Engineer read in conjunction with the opening words except as otherwise provided in this sub clause  clearly carve out an exception in the case of persons holding the posts of Superintending Engineer
The words if they have not attained to the rank  of Superin tending Engineer in r 1611c ii1 are plainly bad English and must be read as if they have not attained the rank  of Superintending Engineer
The word used in that rule is rank  and not substantive rank  and there is no reason why it should not be understood according to its ordinary sense as meaning grade or status particularly when it is preceded by the words have not attained the rank 
The word attained  means acquired or reached
The word rank  has both a narrower as well as a wider meaning
A question may arise as to the purport and effect of these rules
649 The effect of r 1611a which is the general rule dealing with all government servants except with respect to the enumerated categories and of r 1611cii1 which is a special rule dealing with government servants belonging to Bombay Scrvice of Engineers Class I is the same the dif ference is only superficial which lies more in clever draft ing than in their content
The Government may terminate the services of a permanent government servant under the first proviso to r 161 1a at any time on or after he attains the age of 55 years after giving three months notice ie before the normal age of superannuation by way of compulso ry retirement
It will be noticed that the power of the Government under the first proviso to direct premature retirement does not exist on its satisfaction that it is necessary to do so in the public interest
It is unlike FR 56j to that extent
The Government may terminate the services of a government servant belonging to the Bombay Service of Engineers Class I under r 1611cii1 at the age of 50 years without giving him any notice
Arbi trariness is writ large in both the rules but the rules enable the Government to deprive a permanent civil servant of his office without enquiry
The power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be real cause for taking action
Both violate article 3112 of the Constitution
Primafacie it appears to us that the first proviso to r 1611a was on lines of FR 56j and could be sustained on the strength of the decision in Union of India vs Col JN Sinha  Ant 1971 1 SCR 791 being based on the ground that the compulsory retirement of a particular government servant was in the public interest but the words in the public interest  are not there in r 1611c
In Col JN Sinha s case it was laid down that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so
The right conferred on the appro priate authority is an absolute one
That power can be exercised subject to the conditions mentioned in the rules
one of which is that the concerned authority must be of the opinion that it is in the public interest to do so
If that authority bona fide forms that opinion the correctness of that opinion cannot be challenged before Courts
It is however open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision
Compulsory retirement involves no civil conse quences
The aforementioned FR 56j is not intended for taking any penal action against government servants
That rule merely embodies one of the facts of the pleasure doctrine embodied in article 3 10 of the Constitution
It was said 650 There is no denying the fact that in all organisations and more so in government organ isations there is good deal of dead wood
It is in the public interest to chop off the same
Fundamental Rule 56j holds the balance between the rights of the individual govern ment servants and the interest of the public
While a minimum service is guaranteed to the government servant the Government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest
 These considerations do not arise either under the first proviso to r 1611a or under sub cl
1 to r 1611cii because the concept of public interest is not there
It seems to us that on a proper construction of r 1611cii1 which is identical to r 326c1 of the Punjab Civil Services Rules the word rank  in the colloca tion of the words if they have not attained to the rank of Superintending Engineer  in r 1611cii1 must in its context and setting was to be construed in its wider sense as meaning status or grade and if so regarded the second part of that rule must be treated as an exception to the special rule empowering the Government to direct superannua tion of such officers on the date they attain the age of 50 years
This has been the view expressed by the Court in SC Jain s case but we find it difficult to support the conclu sion that the words if they have not attained the rank of Superintending Engineer  in r 1611cii1 confer an immunity on Superintending Engineers from being compulsorily retired at any age below the normal age of superannuation at 58 years
Under the scheme of the Rules the benefit which the Superintending Engineers enjoy under the second part of r 1611cii1 is necessarily subject to the absolute power of the Government to direct compulsory retirement of such officers on the date they attain the age of 55 years under the first proviso to r 1611a or under FR 56j1 on which it is based
Although the words in the public interest  are not there but such power to direct premature compulsory retirement at the age of 55 years can be exer cised subject to the conditions indicated in Col JN Sinha s case one of which is that the concerned authority must be of the opinion that it is in the public interest to do so
We are not oblivious of the fact that the construction that we put on the word rank  in r 1611cii1 does not accord with the view expressed by the Court in Tahilia ni s case that FR 56j is meant to 651 cover only those who are in a post on a regular basis ie in a substantive capacity and not on an officiating basis only
proceeds on the principle that the constitutional provision under article 3112 protecting a government servant from reduction in rank without hearing refers only to a person who is occupying a higher post in a substantive capacity for which he alone has a legal right to occupy the post
The Court laid down while interpreting FR 56j that a person who is occupying a higher post in an officiating capacity has no such right and can be deprived of his post by the competent authority
The facts are not clear from the judgment in Tahiliani s case
From the passage extracted above it is clear that the Court laid down that when a government servant belonging to a Class I or Class II serv ice or post on a regular basis has to be retired compulsori ly the Government can fall back on FR 56j
It however held that FR 56j is meant to cover only those who are in a post on a regular basis ie in a substantive capacity and not on an officiating basis only
If that be so then we are at a loss to understand why a person who has not attained the rank of Superintending Engineer ie is merely officiat ing as Superintending Engineer cannot be compulsorily re tired from his substantive post of Executive Engineer if the other requirements of FR 56j are fulfilled
We need not dilate on this aspect further inasmuch as the State Govern ment in the return filed before the High Court stated that it only intended and meant to act under the first proviso to r 1611a and not under r 1611cii1
It is avert ed in the return that the case of the appellant was reviewed and it was decided to compulsorily retire him on his attain ing the age of 55 years
There is no material placed to show that such compulsory retirement was necessary in the public interest
The appellant has had an unblemished record and there was nothing against him to doubt his integrity fit ness and competence
In somewhat similar circumstances this Court in HC Gargi vs State of Haryana struck down the order of compulsory retirement under r 3
25d of the Punjab Civil Services Rules observing The power of compulsory retirement under Rule 325 d of the Rules can be exercised subject to the conditions mentioned in the rule one of which is that the concerned authority must be of the opinion that it is in public inter est to do so
The test in such cases is public interest as laid down by this Court in Union of India vs Col JM Sinha
It does not appear that there was any material on the basis of which the State Government could have formed an opinion that it was in public inter est to compulsorily retire the 652 appellant at the age of 57 years
There was really no justification for his compulsory retirement in public interest
 There is no reason for us to take a different view in the facts and circumstances of the present case
The impugned order of compulsory retirement of the appellant purporting to be under the first proviso to r 16 11a of the Rules must therefore be struck down as arbitrary
In the result the appeal succeeds and is allowed
The impugned order passed by the State Government dated Septem ber 13 1967 for compulsory retirement of the appellant made under the first proviso to r 1611a of the Bombay Civil Services Rules 1959 is quashed and he shall be deemed to have retired from service on attaining his normal age of superannuation of 58 years on November 12 1970
We under stand that the pension of the appellant has already been fixed on the pay scale of Superintending Engineer and the effect of this order is confined to payment of the differ ence between salary and pension for three years and to the benefit of the revised pay scale of Superintending Engineer in the matter of computation of pension
PSS Appeal allowed


Summary:
Rule 1611a of the Bombay Civil Services Rules 1959 as applicable to the State of Gujarat provides for compul sory retirement of a Government servant other than Class IV on his attaining the age of 58 years while proviso i thereto empowers the appointing authority to retire a Gov ernment servant on his attaining the age of 55 years or any date thereafter
Rule 1611cii1 lays down that except as otherwise provided Government servants in the Service of Engineers Class I must retire on reaching the age of 58 years and may be required by Government to retire on reach ing the age of 50 years if they have not attained the rank of Superintending Engineer
The appellant who was officiating as Superintending Engineer in the Gujarat Service of Engineers Class I was sought to be compulsorily retired by the State Government under the first proviso to r1611a with effect from December 15 1967 he having attained the age of 55 years on November 12 1967
He assailed that order by a petition in the High Court under article 226 of the Constitution in which it was submit ted for the State that the case of the appellant was gov erned by r 1611cii1 of the Rules and not by r 1611a and reference to a wrong provision would not necessarily invalidate the order that the appellant had not substantively attained the rank of Superintending Engineer before he reached the age of 50 years and therefore the Government could compulsorily retire him at any time after he reached that age that by virtue of the power vested in the Government under the first proviso to r 1611a the Government could even otherwise direct the compulsory re tirement of a 641 person who had attained the rank of Superintending Engineer before reaching the age of 50 years and that power was not excluded by reason of r 1611cii1
The High Court held that since the appellant had not attained the substantive rank of a Superintending Engineer he could be made to retire at any time under r 1611cii1 ie on the date he attained the age of 55 years or thereafter that since the appellant was merely holding the post in an officiating capacity he could not be held to have attained the rank of Superintending Engineer in order to have the benefit of the normal age of superannu ation of 58 years
In the appeal by special leave it was contended for the appellant that the post of Superintending Engineer was a selection post and the appellant was promoted as such in a clear vacancy that the word rank  in r 1611cii1 must in collocation of the words being preceded by the word attained  mean the status or the grade that the word rank  is not qualified by the word substantive  and that he had acquired the status or rank of a Superintending Engineer
Allowing the appeal HELD 1
The order of compulsory retirement of the appellant purported to be under the first proviso to r 1611a of the Bombay Civil Services Rules 1959 is struck down as arbitrary and he shall be deemed to have retired from service on attaining his normal age of superannuation of 58 years
652BC 21 Under r1611a compulsory retirement of all government servants is at the age of 58 years which is the general provision
But the same cannot be said of the com pulsory retirement of a government servant under proviso i to that rule on the date on which he attains the not an incident of the tenure
It is not conceived the interests of the employee
It is the mode of terminating his employment at the discretion of the appointing authority
This absolute power of the Government to direct premature retirement does not exist on its satisfaction that it is necessary to do so in the public interest
It is unlike FR 56j to that ex tent
647G 648B 649BC 22 Rule 1611cii1 which is a special rule dealing with Service of Engineers Class I provides for two ages of superannuation
The first part adopts the general rule of superannuation as provided in r 1611a
The second part however confers powers on the Govern 642 ment to terminate the services of such officers at the age of 50 years without giving any notice
The words in the public interest  are not there in r 1611c
648B DE 649C E 23 The effect of r 1611a and r 1611cii1 is the same
Arbitrariness is writ large in both these rules
They enable the Government to deprive a permanent civil servant of his office without enquiry
The power of compulsory retirement may he used when the authority exer cising this power cannot substantiate the misconduct which may be real cause for taking action
Both violate article 3112 of the Constitution
649A CD Union of India vs Col JN Sinha  Anr 1971 1 SCR 791 referred to
31 The word used in r 1611cii1 is rank  and not substantive rank  and there is no reason why it should not be understood according to its ordinary sense as meaning grade or status particularly when it is preceded by the words have not attained 
The word attained  means ac quired or reached
The word rank  has both a narrower as well as a wider meaning
648G 32 If the word rank  is so construed in its wider sense in its context and setting in the collocation of words if they have not attained the rank of Superintending Engi neer  as meaning status or grade then the second part of that rule must be treated as an exception to the special rule empowering the Government to direct superannuation of such officers on the date they attained the age of 50 years
650D 33 In the instant case the appellant having attained the rank of Superintending Engineer he could not be compul sorily retired by the State Government under r 1611cii1 before the age of superannuation
643G SC Jain vs State of Haryana  Anr
   referred to
Ishwarlal Kasanji Naik vs State of Gujarat  overruled
41 The words if they have not attained the rank of Superintending Engineer  in r 1611cii1 do not confer an immunity on these officers from being compulsorily retired at any age below the normal 643 age of superannuation at 58 years
The benefit which the Superintending Engineers enjoy under the second part of that rule is necessarily subject to the absolute power of the Government to direct compulsory retirement of such officers on the date they attain the age of 55 years under the first proviso to r 1611a or under FR 56j1 on which it is based
Although the words in the public interest  are not there but such power to direct premature compulsory retire ment at the age of 55 years can be exercised subject to the condition that the concerned authority must be of the opin ion that it is in public interest  to do so
650E G 42 In the instant case there was no material placed to show that such compulsory retirement was necessary in the public interest
The appellant has had an unblemished record and there was nothing against him to doubt his integrity fitness and competence
651E HC Gargi vs State of Haryana  referred to
Union of India vs KR Tahiliani  Anr   distinguished