Appeal No 235 of 1958
12 90 Appeal from the judgment and decree dated October 181956 of the former PEPSU High Court in Regular First Appeal No 11 of 1954 arising out of the judgment and decree dated November 21 1953 of the Additional District Judge Patiala
Gopal Singh and K B Krishnaswamy for the appellant
N section Bindra and D Gupta for the respondent
July 28
The Judgment of the Court was delivered by DAS GUPTA J
The appellant Dalip Singh entered the service of the Patiala State in 1916 and rose to the rank of Inspector General of Police of the State in June 1946
After the formation of the State of Pepsu he was absorbed in the Police Service of the newly formed State and was appointed and confirmed as Inspector General of Police thereof
While holding that post he proceeded on leave from October 18 1949 till August 17 1950
On August 18 1950 an order was made by the Rajpramukh of the State in these words  His Highness the Rajpramukh is pleased to retire from service Sardar Dalip Singh Inspector General of Police Pepsu on leave for administrative reasons with effect from the 18th August 1950
 A copy of this order was forwarded to the appellant
Thereupon on August 19 1950 the appellant wrote to the Chief Secretary of the State stating that by his retirement he would be put to heavy loss ie about Rs 50000 which he would have earned as his pay and allowances etc during this period and that his pension was also being affected and that this decision of the Government tantamounts to his removal from service
He requested that the Government should let him know the grounds which had impelled the Government to take this decision about his removal
Ultimately on March 30 1951 the Government mentioned the charges against him on the basis of which the Government had decided to retire him on administrative grounds
After service of notice under 91 s80 of the Code of Civil Procedure the appellant brought a suit in the Court of the District Judge Patiala against the State of Pepsu asking for a declaration that the orders of August 16 1950 and August 18 1950 whereby  the plaintiff has been removed from the post of Inspector General of Police Pepsu are unconstitutional illegal void ultra vires and inoperative and that the plaintiff still continues to be in the service of the defendant as Inspector General of Police and is entitled to the arrears of his pay and allowances from August 18 1950 and is also entitled to continue to draw his pay and allowances till his retirement at the age of superannuation  and a decree for the recovery of Rs 26699 130 and full costs of this suit and future interest
 The main plea on which the suit was based was that the order of August 18 1950 amounted to his removal from service within the meaning of article 3112 of the Constitution and the provisions of that article not having been complied with the termination of his service was void and inoperative in law
The respondent State contended that the plaintiff had been retired from service and had not been removed from service and so article 311 of the Constitution had no application
On this question the trial Court came to the conclusion that the order compulsorily retiring the plaintiff amounted to his removal within the meaning of article 311 of the Constitution and as the requirement of that Article had not been complied with it held that the termination of service effected by that order was void in law
The Court accordingly decreed the suit in favour of the plaintiff declaring that the orders of the Government dated August 18 1950 whereby the plaintiff had been remo ved from the post of Inspector General of Police Pepsu are unconstitutional illegal void and ultra vires and inoperative and that the plaintiff still continued to be in the service of the defendant as Inspector General of Police and he his entitled to the arrears of his pay and allowances from August 18 1950 and is also entitled to continue to draw his pay and allowance 92 till his retirement at the age of superannuation and a decree for the recovery of Rs 26699 13 0
On appeal by the State the Pepsu High Court disagreeing with the Trial Court held that the order of compulsory retirement did not amount to removal from service within the meaning of article 311 of the Constitution and accordingly allowed the appeal and dismissed the plaintiffs suit
The main contention of the plaintiff before us was that the order of retirement did amount to his removal from service within the meaning of article 311 of the Constitution
The learned counsel also wanted to argue that Rule 278 of the Patiala State Regulations under which the Government apparently made the order of compulsory retirement was no longer operative
It appears that the Patiala State Regulations which continued to govern the members of the services of that State after they became integrated into the Pepsu State Services were revised from time to time
It was suggested by the learned counsel that the revised rules do not contain any rules similar to Rule 278
Rule 278 of the Patiala State Regulations was in the following words  278
For all classes of pensions the pet son 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
 The learned counsel though wanting to persuade us that the Rule about the State reserving to itself the right to retire any of its employees on pension on political or on other reasons was not present in the new rules was unable to show us however that before August 18 1950 there had been any revision of Rule 278
It appears that revised rules for Travelling Allowance were published in 1946 as Vol
II of the new ruler and Rules relating to pay and allowances were published as Vol
I in 1947
Thereafter in 1952 we find that the first volume of the Pepsu Service Regulations as regards pay and leave rules was published
In the same year the third volume of the Pepsu State 93 Regulations containing rules relating to pensions was published
In the preface to this volume we find this statement   The Revised Edition of the Patiala State Regulations relating to pay allowances leave pension and travelling allowance was published in the year 1931
Subsequently the travelling allowance rules were revised and issued as Patiala Service Regulations Vol
II in the year 1946
Similarly the pay allowances and leave rules were taken out from the Revised Edition 1931 and printed as Patiala Services Regulations Volume 1 in the year 1947
The other rules relating to pensions continued to remain in the Revis ed Edition 1931 and kept upto date by the issue of correction slips
On the formation of the Patiala  East Punjab States Union on 20 8 48 these rules were made applicable to the entire territories of the Union by Ordinance No 1 of 2005
The number of copies of this publication available for official use had run out of stock and great difficulty has been experienced in Government offices for want of it for reference
It was
therefore found necessary to revise and reprint this publication to make it available to all offices
 This makes it clear that upto the publication in 1952 of Volume III of the Pepsu Service Regulations the pension rules appearing in the 1931 edition of the Patiala State Regulations continued to be applicable to Pepsu
On August 18 1950 therefore it is reasonable to hold that Rule 278 in its entirety remained in force and was applicable to Pepsu
It is interesting to mention that in this 1952 edition also this reservation by the Government of the  right to retire any of its employees on pension on political or on other reasons  has been maintained Vide Chapter V Rule 10
The contention of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18 1950 is therefore totally without foundation
This brings us to the main contention in the case
viz that the compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was a removal from service within the meaning of article 311 of the Constitution
The question whether the 94 termination of service by compulsory retirement in accordance with Service Rules amount to removal from service was considered by his Court in Shyamlal vs The State of U P and the Union of India 1 and again recently in State of Bombay V Subhagchand D08hi 2
The Court decided in Shyam Lal s Case 1 that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of article 311 of the Constitution
The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power the second is whether by compulsory retirement the officer is losing the benefit he has already
earned as he does by dismissal or removal
In that case in fact a charge sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry
The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge sheet was not being made the condition of the exercise of the power
These tests were applied in Doshi s Case 2 and it was held that the provisions of compulsory retirement under Rule 165A of the Saurashtra Civil Service Rules under which the order of retirement was made there was not violative of article 3112
It was pointed out that  while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of 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 thereon must be formal and must satisfy 1  2  95 the rules of natural justice and the requirements of article 3112 
In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency
All it states is that the compulsory retirement is for  administrative reasons
 It was only after the appellant s own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him
There is therefore no basis for saying that the order of retirement contained any imputation or charge against the officer
The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer
Applying the other test viz whether the officer has lost the benefit he has earned we find that the officer has been allowed full pension
There is no question of his having lost a benefit earned
It may be pointed out that Rule 278 itself provides for retirement on pension
If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment
As however the retirement can only be on pension in accordance with the rules in the present case full pension has been granted to the officer the order of retirement is clearly not by way of punishment
In Doshi s Case 1 there is at p 579 an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement
We do not think that was what the Court intended to say in Doshi s Case2
In Doshi s Case3 there was in fact a rule fixing an age for compulsory retirement at the age of 55 and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service
It was in that context that the Court made the above 1  96 observation
It had not in that case to deal with a rule which did provide for compulsory retirement at any age whatsoever irrespective of the length of service put in
It will not be proper to read the observations in D08hi s Case referred to above as laying down the law that retirement under the rule we are considering must necessarily be regarded as dismissal or removal within the meaning of article 311
We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of article 311 of the Constitution and that the suit was rightly dismissed
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
Where at the hearing of an appeal filed by special leave from a decision of the High Court in a Writ Petition filed there under article 226 of the Constitution of India against an order of the Payment of Wages Authority the Court considered that there was some force in the contention relating to the jurisdiction of the Authority concerned but did not decide that question on the view that as there had been no failure of justice the Court would not interfere under its powers under article 136 and the appellant applied for a review of the judgment 15 114 Held that wide as are the powers of the Supreme Court under article 136 of the Constitution its powers are discretionary and though special leave had been granted the Court was not bound to decide the question of jurisdiction of the inferior tribunal or court where the decision of the inferior tribunal or court had been taken to a higher tribunal which undoubtedly had jurisdiction and from the decision of which the special leave was granted if on the facts and circumstances of the case it came to the conclusion in dealing with the appeal under that Article that there was no failure of justice
A M Allison vs B L Sen   relied on