ion No 200 of 1963
Petition under article 32 of the Constitution of India for the enforcement of the fundamental rights
K P Bhandari and R Gopalakrishnan for the petitioner
and R N achthey for the respondents
April 1 1964
The Judgment of the Court was delivered by GAJENDRAGADKAR C J
This petition which has been filed by the petitioner section Gurdev Singh Sidhu under Art 32 of the Constitution challenges the validity of article 91 of the Pepsu Services Regulations Volume 1 as amended by the Governor of Punjab by the notification issued by him on the 19th January 1960 in exercise of the powers conferred on him by the proviso to article 309 of the Constitution and all other powers enabling him in that behalf
The petitioner s contention is that the said article contravenes the constitutional right guaranteed to the persons employed in civil capacities either under the Union or the State by article 311
The petitioner was appointed as Assistant Superintendent of Police in the erstwhile Patiala State by His Highness Maharaja Adhiraj of Patiala on the 4th of February 1942
The conditions of his service were governed by the Patiala State Service Regulations which had been issued by the Ruler of Patiala State who was at the relevant time the sovereign legislature of the State
Later the petitioner was confirmed in the rank on the occurrence of a regular vacancy after he had undergone practical district training courses in the Punjab in 1947
On the formation of Patiala and East Punjab States Union on the 20th August 1948 the petitioner was integrated in Pepsu Police Service
In due course he was promoted to officiate as Superintendent of Police in February 1950 by His Highness the Rajpramukh of the erstwhile State of Pepsu
589 On the 25th March 1963 respondent No 2 section Gurdial Singh Inspector General of Police  Joint Secretary to the Government of Punjab issued a notice against the petitioner purporting to act under the second proviso to article 91 of the Pepsu Services Regulations to show cause why he should not be compulsorily retired
The petitioner alleges that the second proviso to article 91 under which the said notice has been issued against him is invalid and so he has moved this Court under article 32 for quashing the said notice on the ground that the article on which it is based is itself ultra vires and inoperative
Respondent No 1 the State of Punjab and respondent No 2 have by their counter affidavit denied the petitioner s contention that the impugned article 91 is constitutionally invalid and they have resisted his claim for quashing the notice issued by respondent No 2 against the petitioner
That is how the only point which arises for our decision in the present petition is whether the impugned article is shown to be constitutionally invalid
Before dealing with this point it is necessary to read the said article The following shall be added after the first proviso to clause 1 of article 91 of the said regulations ii Provided further that Government retains an absolute right to retire any Government servant after he has completed ten years qualifying service without giving any reason and no claim to special compensation on this account will be entertained
This right will not be exercised except when it is in public interest to dispense with the further services of a Government servant such as on account of inefficiency dishonesty corruption or infamous conduct
Thus the rule is intended for use a 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 ie when a Government servant s value is clearly incommensurate with the pay which he draws but not to such a degree as to warrant his retirement on a compassionate allowance
It is not the intention to use the proviso as a financial weapon that is to say the proviso should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds 590 b in cases where reputation for corruption dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved under the Punjab Civil Services Punishment and Appeal Rules Appendix 24 of Volume 1 Part 11 or the Public Servants Inquiries Act XXXVII of 1850
The word Government  used in this proviso should be given a reasonable opportunity to show causethe power of removing the Government servant concerned from service under the Civil Services Punishment and Appeal Rules
iii Provided further that Government servant should be given a reasonable opportunity to show cause against the proposed action under the rule
No Gazetted Government servants shall however be retired without the approval of the Council of Ministers
In all cases of compulsory retirement of gazetted Government servants belonging to the State Services the Public Service Commission shall be consulted
In the case of non gazetted Government servants the Heads of Departments should effect such retirement with the previous approval of the state Government
This article clearly shows that the absolute right retained by respondent No 1 to deal with public servants can be used against them if it appears to respondent No 1 that the said public servants suffer from inefficiency dishonesty cor ruption or infamous conduct
It is also clear that one of the reasons for making the amendment in the Pepsu Services Regulations was to use the power thereby conferred on res pondent No 1 in case where reputation for corruption dis honesty or infamous conduct may be established to the satis faction of respondent No 1 even though no specific instance is likely to be proved under the Punjab Civil Services Punishment and Appeal Rules
This power was likewise intended for use in cases where the incompetence of the Government servant may not be of such an extent as to warrant his retirement on a compassionate allowance
The only safeguard provided by the amended article is that it was not contemplated to use the power conferred by it on financial grounds
Grounds on which the said power was intended to be used were all grounds personal to the Government servant against whora the said power was exercised
Bhandari for the petitioner contedns that the point raised by the petitoner in this petition is in substance concluded by a recent decision of this Court in Moti Ram Deka 591 etc
vs The General Manager North East Frontier Railway1 etc
His argument is that the trend of the majority judgment in that case clearly indicates that the impugned Rule is inconsistent with article 3112 of the Constitution and as such must be struck down as being invalid
It is therefore necessary to examine briefly the effect of the said judgment
In that case this Court was called upon to consider the validity of Rules 1483 and 1493 of the Railway Rules
These Rules authorised the termination of services of the railway employees concerned by serving them with a notice for the requisite period or paying them their salary for the said period in lieu of notice
Dealing with the question about the validity of the said Rules the majority judgment observed that a person who substantively holds a permanent post has right to continue in service subject to two exceptions
The first exception was in relation to the rule of superannuation and the second was in regard to the rule as to compulsory retirement
The majority judgment accepted the position that a rule fixing the age of superannuation which is applicable to all Government servants falling in a particular category was perfectly constitutional because it applies uniformly to the public servants who fall within its scope and it is based on general considerations like life expectation mental capacity of the civil servants having regard to the climatic condilions under which they work and the nature of the work they do
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion
The second exception was affirmed by the majority judgment with the reservation that rules of compulsory retirement would be valid if having fixed a proper age of superannuation they permit the compulsory retirement of the public servant provided he has put in a minimum period of service and while affirming this rule an express reservation was made that in case a rule of compulsory retirement permitted the authority to retire a permanent servant at a very early stage of his career the question as to whether such a rule would be valid may have to be considered on a proper occasion
In other words the acceptance of the doctrine that rules for compulsory retirement were valid and constituted an exception to the general rule that the termination of the services of a permanent servant means his removal within the meaning of article 3112 was not absolute but qualified
At this stage it is necessary to explain why this reser vation was made in the majority judgment
The question which fell to be decided in the case of Moti Ram Deka1 bad no reference to the rule of compulsory retirement but the argument in support of the validity of the rule proceeded 1  592 on the basis that the previous decisions of this Court in which the validity of the relevant rules of compulsory retirement had been upheld logically supported the contention that the impugned Rules 1483 and 1493 were also valid and this argument made it necessary for this Court to examine the said decisions and to decide whether the observations made in the course of those decisions supported the contention that Rules 1483 and 1493 were valid
Let us briefly refer to some of these decisions
In Shyam Lal vs The State of UP and the Union of India1 the article which was examined was 465 A of the Civil Service Regulations
Note 1 to the said article gave the Government an absolute right to retire any officer after he has completed 25 years of service without giving any reasons and provided that no claim to special compensation can be entertained from the public servant who has been compulsorily retired under it this article was held to be valid
In the State of Bombay vs Saubhag Chand M Deshi2 the rule which was considered was 165 A of the Bombay Civil Services Rules as amended by the Saurashtra Government
This rule gave the Government a similar right to retire a Government servant after he has completed 25 years of qualifying service or 50 years of age and it permitted the Government to ask the Government servant to retire compul sorily without giving any reason and without giving him the right to claim special compensation
The rule further made it clear that the right conferred by it will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty
This rule was also upheld
Reverting then to the argument which was urged in support of the validity of the Railway Rules challenged in the case of Moli Ram Deka3 the position taken by the learned Additional Solicitor General was that in upholding the impugned rules the earlier decisions had substantially pro ceeded on the basis that the premature termination of the services of a permanent Government servant would not in every case amount to his removal within the meaning of article 3112 of the Constitution and that is how it became necessary to refer to the said decisions which dealt with the question of compulsory retirement though the problem of compulsory retirement did not fall for the decision of the Court in Moti Ram Deka s3 case
The approach adopted by the majority decision in Moti Ram Deka s3 case indicates that the Court was not prepared 1 1955 1SCR 26 2  3  593 to examine the question as to whether the relevant Rules in respect of compulsory retirement which had been upheld were valid or not
The trend of the majority judgment shows that logically it would be consistent to hold that the premature termination of the services of a permanent Government servant would not amount to hi  removal under article 3112 only where such termination is the result of the fixation of a general rule of superannuation
In all other cases where a permanent Government servant is asked to retire compulsorily whether on account of his incompetence inefficiency or dishonesty it may logically be open to be suggested that such compulsory retirement is removal within article 3112
But since 1953 when the case of Satish Chandra Anand vs The Union of India1 was decided by this Court there appeared to be a consistent course of decisions which had upheld the validity of the rules in regard to compulsory retirement
No doubt the case of Satish Chandra Anand was one where a person had been employed by the Government of India on a five year contract in the Re settlement and Employment Directorate of the Ministry of Labour but some observations were made in that judgment and similar observations were made in subsequent decisions dealing with the question of compulsory retirement
The majority judgment in Moti Rai Deka s2 case took the view that it would be inappropriate and inexpedient to reopen an issue which was covered by several prior reported decisions of the Court
Besides the point covered by the said decisions did not directly arise in the case of Moti Ram Deka
Even so the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career the question about the validity of such a rule may have to be examined
That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under article 3112 this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by the relevant rules upheld by the earlier decisions was 25 years it could not be unreasonably reduced in that behalf
In other words the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service after which alone the said rule could be invoked
Therefore it seems to us that Mr Bhandari is right when he contends that the present 1  2  594 article which reduces the minimum period of service to 10 years is open to challenge in the light of the majority decision pronounced in the case of Moti Ram Deka1
In this connection it is hardly necessary to emphasise that for the efficient administration of the State it is abso lutely essential that permanent public servants should enjoy a sense of security of tenure
The safeguard which article 3112 affords to permanent public servants is no more than this that in case it is intended to dismiss remove or reduce them in rank a reasonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them
A claim for security to tenure does not mean security of tenure for dishonest corrupt or inefficient public servants
The claim merely insists that before they are removed the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed
Therefore it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by article 3112
If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed article 312 does not apply because such retirement is neither dismissal nor removal of the public servant
If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered that again may not amount to dismissal or removal under article 312 mainly because that is the effect of a long series of decisions of this Court
But where while reserving the power to the State to compulsorily retire a permanent public servant a rule is framed prescribing a proper age of superannuation and another rule is added giving the power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service that cannot we think be treated as falling outside article 3112
The termination of the service of a permanent public servant under such a rule though called compulsory retirement is in substance re moval under article 3112
It is because it was apprehended that rules of compulsory retirement may purport to reduce the prescribed minimum period of service beyond which compulsory retirement can be forced against a public servant that the majority judgment in the case of Moti Ram Deka1 clearly indicated that if such a situation arose the validity of the rule may have to be examined and in doing so the impugned rule may not be permitted to seek the protection of the earlier decisions of this Court in which the minimum 1  595 qualifying period of service was prescribed as high as 25 years or the age of the public servant at 50 years
We are therefore satisfied that Mr Bhandari is right in contending that the effect of the majority decision in the case of Moti Ram Deka1 clearly is that the impugned article 91 contravenes Article 3112 of the Constitution and must be struck down as invalid
The result is the petition succeeds and article 91 as amended by the Governor of Punjab by a notification issued on the 19th January 1960 is struck down as invalid
In consequence the notice issued by respondent No 2 against the petitioner on the 25th March 1963 must be cancelled
Before we part with this petition we ought to add that the respondents did not urge before us that the writ petition was not competent under article 32 and that the proper remedy available to the petitioner was a petition under article 226 of the Constitution to the Punjab High Court that is presum ably because the respondents were anxious to have a decision from this Court on the question about the validity of the impugned article in the Regulations in question
We would therefore make it clear that our decision in the present writ petition should not be taken to mean that we have held that a petition like the present is competent under article 32 of the Constitution
In the circumstances of this case the petitioner is entitl ed to his costs from respondents 1 and 2
Petition allowed


Summary:
The petitioner was appointed as Assistant Superintendent of Police in 1942 in the former Patiala State
In 1948 on the formation of Patiala and East Punjab States he was integrated in Pepsu Police Service
He was promoted to officiate as Superintendent of Police in 1950 by the Rajpramukh of Pepsu
On March 25 1963 respondent No 2 the Inspector General of Police and Joint Secretary to the Government of Punjab issued a notice upon the petitioner under the second proviso to article 91 of the Pepsu Services Regulation as amended by the Governor by his notification dated January 19 1960 to show cause why he should not be compulsorily retired
The petitioner moved this Court under article 32 of the Constitution for quashing the said notice on the ground that the said proviso was ultra vires and inoperative by reason of contravention of article 3112 of the Constitution and relied on the decision of Frontier Railway  The said proviso was as follows     that Government retains an absolute right to retire any Government servant after he has completed ten years qualifying service without giving any reason and to claim to special compensation on this account will be entertained
This right will not be exercised except when it is in public interest to dispense with the further services of a Government servant such as on account of inefficiency dishonesty corruption or infamous conduct   
Held Article 91 of the Pepsu Services Regulation in prescribing a minimum period of ten years of service for the purpose of compulsory retirement contravened article 3112 of the Constitution and must be struck down
The only two valid exceptions to the protection afforded by article 3112 were 1 where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed 2 that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which along compulsory retirement could be valid
The first would not amount to dismissal or removal from service within the meaning of article 3112 and the second would be justified by the view taken by this Court in a long series of decisions
588 It is not permissible for a State while reserving to itself the power of compulsory retirement by framing a rule pres cribing a proper age of superannuation to frame another giving it the power to compulsorily retire a permanent public servant at the end of ten Years of his service for that rule cannot fall outside article 3112 of the Constitution
Moti Ram Deka etc
vs General Manager North East Frontier Railway etc
  applied Shyam Lal vs State of UP and Union of India  and State of Bombay vs Saubhag Chand M Doshi 1958 SCR 571 referred to
This decision should not be taken to mean that a petition like the present one was competent under article 32 of the Con stitution