Case: State Of Rajasthan And Anr Vs. Sripal Jain

This is an appeal by special leave against the judgment of the Rajasthan High Court. The respondent was in the service of the State of Rajasthan and at the material time was a circle inspector. He was compulsorily retired from service on September 3, 1960 under r. 244(2) of the Rajasthan Service Rules, (hereinafter referred to as the Service Rules). The order for his retirement was communicated to him by the Inspector General of Police, Rajasthan, on April 11, 1960. The respondent however made representations to the Government and the order was kept in abeyance and was finally put into effect from September 3, 1960, after the Government had rejected the representation. The Government ordered on September 2, 1960 that the order of April 11, 1960 regarding compulsory retirement should be put into immediate effect. The respondent thereupon filed a writ petition in the High Court and contended inter alia that the Inspector General of Police has no authority to order his compulsory retirement under r. 244(2) of the Service Rules. He also contended that the order amounted to punishment within the meaning of r. 14 of the Rajasthan Civil Services (Classification, control and appeal) Rules, 1958, (hereinafter referred to as the Classification Rules), and therefore as it was passed without giving him an opportunity to show cause as required under Art. 311 of the Constitution, it was badThe petition was opposed on behalf of the State of Rajasthan and it was contended that an order of compulsory retirement under r. 244(2) of the Service Rules was not a punishment within the meaning of the Classification Rules, and therefore Art. 311 had no application to it. It was also urged that the order had been passed by the Government and not by the Inspector General of Police, who had merely acted in issuing the order under the direction of the Government. The case of the appellants was that under r. 244(2) of the Service Rules, the Government had an unqualified discretion to retire any officer compulsorily if it was in the public interest so to do, and provisions of Art. 311 of the Constitution would not apply to such an order of compulsory retirement. The appellants case further was that a high-powered Committee had been set up under the chairmanship of the Chairman of the Public Service Commission to consider the cases of all such officers whose retention in public service after twenty-five years of service was not in the public interest and that Committee recommended the compulsory retirement of the respondent. That recommendation was put up before the Home Minister of the Government of Rajasthan, who accepted the findings and recommendation of the Committee. The matter was then put up before the Chief Minister who agreed with the Home Minister and thereafter the Inspector General of Police was directed to order the retirement of the respondent.When the matter came to be heard in the High Court it was submitted on behalf of the respondent that under r. 31(vii)(a) of the Rules of Business (hereinafter referred to as the Business Rules), all cases of compulsory retirement where the appointing authority is the Government have to be submitted to the Governor and the Chief Minister. As in the present case the matter was admittedly not submitted to the Governor, the order of compulsory retirement even if it was made by the Government was not legal as it was against the Business Rules. The reply of the appellants to this contention was that r. 31(vii)(a) of the Business Rules only applied to that kind of compulsory retirement which was inflicted as a punishment under r. 14 of the Classification Rules and not to other cases of compulsory retirement. The High Court however accepted the contention of the respondent that r. 31(vii)(a) of the Business Rules applied to a case of compulsory retirement under r. 244(2) of the Service Rules, and as the papers had not been submitted to the Governor the order of compulsory retirement in the present case was bad. It therefore allowed the writ petition and set aside the order.

Reasoning:
It is obvious that when cl. (b) speaks of a review petition, it must be referring to the review under Part VII of the Classification Rules. Clause (b) therefore which is confined to cases under cl. (a) which speaks of dismissal, removal or compulsory retirement, shows that all these are penalties as provided in r. 14 of the Classification Rules. Further cl. (c) provides that where, on review the Governor decides to enhance the penalty already imposed and the enhanced penalty is one of dismissal, removal or compulsory retirement of an officer the matter must be referred to the Governor. This clause makes it perfectly clear that the compulsory retirement referred to therein is a case of penalty and there can in our opinion be no doubt when we read this clause with cl. (a) that compulsory retirement mentioned therein must also be of the nature of a penalty. Taking all the three clauses of item (vii) as a whole, it appears that item (vii) provides for a complete scheme with reference to three kinds of penalties, namely, dismissal, removal and compulsory retirement and makes it incumbent that cases of this kind must be referred to the Governor. We cannot therefore agree with the High Court that compulsory retirement provided in item (vii)(a) includes all the three kinds of compulsory retirement. It must therefore be held that the contention of the appellants that compulsory retirement provided in item (vii)(a) is compulsory retirement as a penalty and not compulsory retirement of the other two kinds, namely, (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment is correct. In particular Note 2 of r. 244(2) makes it perfectly clear that action thereunder is not a penalty. This is further made clear by Explanation (vi) to r. 14 of the Classification Rules, which provides that compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement is not a penalty. Rule 56 of the Service Rules is a rule relating to superannuation and r. 244(2) of the Service Rules is a rule relating to retirement and both of them do not amount to penalties in view of this Explanation. We are therefore of opinion that r. 31(vii)(a) when it speaks of compulsory retiring of an officer speaks of compulsory retirement as a penalty and not compulsory retirement on reaching the age of superannuation or under r. 244(2). It is therefore not necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. This was the only ground on which High Court allowed the writ petition and therefore the appeal must succeedThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by itThere is no doubt that this order is not in the form required under Art. 166 of the Constitution. But it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed byhas been stated on behalf of the appellants that the order in question was communicated by the Inspector General of Police on the direction of the Government.It will be noticed that the order is in the passive voice. It does not say in the active voice that the Inspector General of Police ordered the retirement of the officers mentioned therein, though the impression that a person will get from it certainly is that the order of retirement was being passed by the Inspector General of Police. Therefore, the burden was thrown because of this defect in the form of the order on the appellants to show that in fact the order was passed by the Government. That has in our opinion been shown by the production of papers from the relevant file by the appellants. That shows that the recommendation of the high-powered Committee was approved by the Home Minister and the Chief Minister and the order of compulsory retirement was thus passed by the Government of RajasthanDefinitions under s. 32 are however to be read subject to anything repugnant in the subject or context or to any contrary intention, and that makes us back to the Business Rules framed under Art. 166 of the Constitution, where the power to deal with a case of this kind is given to the Minister-in-charge under r. 21. The definitions therefore of Government and the State Government in the Rajasthan General Clauses Act are of no help to the respondent once it is held that r. 31(vii)(a) of the Business Rules when it speaks of compulsory retiring of any officer refers only to compulsory retirement as a penalty under r. 14 of the Classification Rules and not to the two other kinds of retirement (namely, superannuation under r. 56 or retirement under r. 244(2) of the Service Rules).