vil Appeal No. 1939 (N) of 1972.
From the Judgment and Order dated 24.1.1972 of the High Court of Gujarat at Ahmedabad in L.P.A. No. 263 of 1971.
V.M. Tarkunde, V.N. Ganpule and P.C. Kapur for the Appellant.
Vimal Dave and M.M. 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. 161(1)(c)(ii)(1) 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. 161(1)(a) w.e.f. 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. 161(1)(c) (ii)(1) of the Rules and not by r. 161(1)(a) 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. 161(1)(a) 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. 161(1) (c)(ii)(1).
The learned Single Judge (A.D. 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. 161(1) (c)(ii)(1) i.e. 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. 161(1) (c)(ii)(1) 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. 161(1)(c)(ii)(1) could be had only by government servants in the Bombay Service of Engineers, Class I who were in the posts of Superintending Engineers i.e. 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. 161(1)(c)(ii)(1)] 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. 161(1)(c)(ii)(1) 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 (1)(c)(ii)(1) 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 S.C. Jain vs State of Haryana & Anr., ; where an identical provi sion r. 3.26(c)(1) 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. 3.26(c)(1).
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 i.e. 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 K.R. 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 56(j) 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 56(j) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.
" The submission therefore is that the benefit of the exemp tion under r. 161(1)(c)(ii)(1) can be had only by a govern ment servant holding the post of a Superintending Engineer on a regular basis i.e. in a substantive capacity.
The subsequent decision in S.C. 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 1(1) which deals with the age of superannuation, insorfar as material: "161.
(1)(a).
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.
(1)(c) The following rules are applica ble to particular services: (ii)(1) 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. 161(1) 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. 161(1)(a) 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. 161(1)(a) 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. 161(1)(a) 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. 161(1)(c) is the special rule framed for that purpose.
To illustrate, r. 161(1)(c)(i)(1) 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. 161(1)(c)(ii)(1) 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. 161(1)(c)(ii)(1) for that class of officers as provided in r. 161(1)(a), 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. 161(1)(c) (ii)(1) 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. 161(1)(a) which is the general rule dealing with all government servants except with respect to the enumerated categories and of r. 161(1)(c)(ii)(1) 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 (1)(a) at any time on or after he attains the age of 55 years after giving three months notice i.e. 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 56(j) to that extent.
The Government may terminate the services of a government servant belonging to the Bombay Service of Engineers, Class I under r. 161(1)(c)(ii)(1) 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 311(2) of the Constitution.
Primafacie it appears to us that the first proviso to r. 161(1)(a) was on lines of FR 56(j) and could be sustained on the strength of the decision in Union of India vs Col. J.N. 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. 161(1)(c).
In Col. J,N. 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 56(j) 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 56(j) 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. 161(1)(a) or under sub cl.
(1) to r. 161(1)(c)(ii) because the concept of public interest is not there.
It seems to us that on a proper construction of r. 161(1)(c)(ii)(1) which is identical to r. 3.26.(c)(1) 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. 161(1)(c)(ii)(1) 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 S.C. 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. 161(1)(c)(ii)(1) 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. 161(1)(c)(ii)(1) 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. 161(1)(a) or under FR 56(j)(1) 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. J.N. 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. 161(1)(c)(ii)(1) does not accord with the view expressed by the Court in Tahilia ni 's case that FR 56(j) is meant to 651 cover only those who are in a post on a regular basis, i.e. in a substantive capacity and not on an officiating basis only.
proceeds on the principle that the constitutional provision under article 311(2) 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 56(j) 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 56(j).
It however held that FR 56(j) is meant to cover only those who are in a post on a regular basis i.e. 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 i.e. 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 56(j) 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. 161(1)(a) and not under r. 161(1)(c)(ii)(1).
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 H.C. Gargi vs State of Haryana, struck down the order of compulsory retirement under r. 3.
25(d) of the Punjab Civil Services Rules, observing: "The power of compulsory retirement under Rule 3.25 (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. J.M. 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 1(1)(a) 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. 161(1)(a) 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.
P.S.S. Appeal allowed.


Summary:
Rule 161(1)(a) 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 161(1)(c)(ii)(1) 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 r.161(1)(a) 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. 161(1)(c)(ii)(1) of the Rules and not by r. 161(1)(a) 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. 161(1)(a) 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. 161(1)(c)(ii)(1).
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. 161(1)(c)(ii)(1), i.e. 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. 161(1)(c)(ii)(1) 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. 161(1)(a) 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] 2.1 Under r.161(1)(a) 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 56(j) to that ex tent.
[647G 648B, 649BC] 2.2 Rule 161(1)(c)(ii)(1), 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. 161(1)(a).
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. 161(1)(c).
[648B, DE, 649C, E] 2.3 The effect of r. 161(1)(a) and r. 161(1)(c)(ii)(1) 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 311(2) of the Constitution.
[649A, CD] Union of India vs Col. J.N. Sinha & Anr., [1971] 1 SCR 791, referred to.
3.1 The word used in r. 161(1)(c)(ii)(1) 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] 3.2 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] 3.3 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. 161(1)(c)(ii)(1) before the age of superannuation.
[643G] S.C. Jain vs State of Haryana & Anr.
, ; , referred to.
Ishwarlal Kasanji Naik vs State of Gujarat, , overruled.
4.1 The words 'if they have not attained the rank of Superintending Engineer ' in r. 161(1)(c)(ii)(1) 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. 161(1)(a) or under FR 56(j)(1), 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] 4.2 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] H.C. Gargi vs State of Haryana, , referred to.
Union of India vs K.R. Tahiliani & Anr., ; , distinguished.