TARA SINGH ETC. ETC.

STATE OF RAJASTHAN AND ORS.

March 19, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.]

.. Rajasthan Service Rules, r. 244 (2 )-Scope of-Compulsory retireme/lt of Government Servants-if violates fundamental rights-De/egatidn of power to collectors, if excessive.

All the petitioners were compulsorily retired from Government service under r. 244(2) of the Rajasthan Service Rules. In all the cases the orders stated that compulsory retirement was being done in public interest. In petitions under art. 32 of the Constitution the petitioners contended (i) that compulsorv retirement under r. 244(2), which does not prescribe the minimum age of compulsory retirement is not only removal within the meaning of art. 311 but is also unguided discretionary and discriminatory power and (ii) that permanence invol?es right to continue in service till one attains the age of superannuatien.

Dismissing the petitions.

HELD : (1) The right to be in public employment is a right to hold it -according to rules. The right to hold is defensible according tO' ules. The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any char.ge& of inefficiency or incompetency the Government passes orders of compulsory retirement.

The Government servant in such cases does not lose the benefits which a government servant has already earned. These orders of compulsory retirement are made in public interest. This is a safety valve of making such orders so .that no arbitrarines or bad faith creeps in. [1009 E-Gl

In appendix 9 to Rajasthan Service Rules, Vol. II the power to retire a Government servant after completion of 25 years of service in the case of ministerial service is onfemd on the appointing authorities.

In the present case the appointing authority is the Collector. The content of the power is not changed by any amendment of the rule. Therefore, the delegation is valid. There is no stigma in any of the impeached compulsory orders of retirement. [1009 G-HJ

(2) (a) Rule 244(2) as it stands now does not specifically mention that an aider is to be passed in the public interest. 'The notes to the rule indicate that the right to pass an order of compulsory retirement is to be exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. The notes further say that it is not the intention to use this rule as a financial weapon, that is to say, that the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. [1007 G-1008 Al

(b) The notes are promulgated with the rules in exercise of legislative power.

The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion.

The real purpose of the notes is that wlten rules are silent the notes wil! fi!L up gaps. [1008 A-Bl

(c) The notes which are appended to rules are to aid not only in applying the rules but also in interpreting the true import of the rules. [1009 A-Bl

Shyam Lal v. The State of U.P. [1955) 1 S.C.R. 26 and T.C. Shiracharana H Singh v. The State of Mysore, A.LR. 1965 S.C 280 referred to.

(d) Although the Government cannet supersede statutory rules by a?ministrative instructions yet if the rules framed under art. 309 of the Constitullon are

silent on any particular point, the Government could fill up gaps and supplement the rules and issue instructions not inconsistent with the rules already framed and these insu-uctions will govern the cond!ti-Ons of service. [I 009 CJ

In the present case the notes are part of the rules because they are for the guidance of the parties. They are no1 inconsistent with the rules but are intended to fill ilp gaps where the rules are silent.

The only question here is that formerly the rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the old rule. The deletion of that part of the rules did not mean that the orders of compulsory retirement were not made in public interest. The notes to the rules make explicit what is implicit in the rules. (1009 D-E]

Union :af India v. K. P. Joseph, [1973) 2 S.C.R. 752, refurred to.

ORIGIN.AL JURISDICTION : Writ Petitions Nos. 1253, 1353, 1448, 1898 and 270 of 1973

Petitions under Article 32 of the Constitution of India.

L K. Garg and S. C. Agrawal, for the Petitioners (in WP~. 1253, 1448 and 1898/73.) ·

S. K. Mehta, K. R. Nagaraja and M. Qamaruddin for the Petitioners in W.Ps. Nos. 1353 and 270/73.

Maya Rao, for Respondent (in W.P. No. 270/70).

L. M. Singhvi, A. G. Rajasthan, in W.Ps. Nos. 1253 & 1898/73 only) and S. M. Jain for the Respondents, (in rest of W.Ps.)

E The Judgment of the Court was delivered by

RAY, C.J.-These writ petitions challenge the validity of orders of compulsory retirement. In writ petition No. 1253 of 1973 the petitioner was served with an order dated 30 March, 1973.

The order was as follows,:-

"Whereas Shri Tara Singh Patwari has completed 25 years of qualifying service and whereas the State Government ts satisfied that it is in public interest to dispense with farther service of the said Government servant.

Now, therefore, in pursuance of the delegation made under Rule 244(2) of the Rajasthan Service Rules vide Fiance

Department Order No. F.1(34)FD-A (Rules/62) dated 13.12.63 the undersigned hereby gives notice to the said Shri Tara Singh requiring him to retire with effect froni the date of the expiry of 3 calendar months fromthe service-of this llotice on him and further orders the compulsory retirement of Shri Tara Singh with effect from the said date.

Sd/- Collector,

Gangarragar."

In writ petition No. 1353 of 1973, the petitioner was served with an identical order dated 30 March, 1973.

In wtit titian No. 1448 of 1973 the petitioner was served with an order dated 28 April, 1973. The order was in terms similar tq that in writ petition No. 1253 of 1973 except that the order did not :state that "the State Government is mtisfied that it is ia public interest to dispense with th_e service of the petitioner". i In writ petition No. 1898 of 1973 the petitioner was served '.with an order dated 4 November, 1973 where also the order did not :state that the compulsory retirement was made by the Government on being satisfied that it was in public interest.

In writ petition No. 270 of 1973 the petitioner was served with an order dated 30 March, 1970: The order w'as similar to writ petition No. 1253 viz., that the petitioner completed 25 years of qualifying service and the retirement was in public interest.

Counsel on behalf of the petitioners contends that the orders are bad because they vio!ate Articles 14, 19(1)(f), 31 and 311.

It. is said that Article 14 is violated because there i's no guidance as to who will be selected and O'a what basis the selection will be made

for. compulsory retirement. The impeached orders are said to violate Article 19 (1) (f) because it is an unreasonable restriction on the right D to continue until the age of superannuation which is 55 years. It is emphasized that there is a right to continue as long as one is physically fit The orders of compulsory retirement are challenged to violate . Article 31 because it is deprivatioi,1 of property without authority of law. .Lack of authority of law is said to be infraction of Articles 14 and 19.

The orders are also said to infringe Article 311 because these are made to remove persons from Government service.

Counsel for the petitioners also contended that. the Government delegated power under the old rules and, therefore, the orders were bad.

It was said in writ petition No. 1253 of 1973 that the order was made by the Collector pursuant to delegatioi, i under Rule 244.(2) of the Rajasthan Service Rules under order dated 13 December, 1963.

The rules were amended in 1993 and again in 1972 and there was no F delegation under 'the amended rules which .governed the parties.

Rule 244(2) of the Raj•asthan Service Rules as it stood prior l.o the 1963 and 1972 amendments is set out in the decision in Ganga Ram v. State of Rajasthan (1). Rule 244 and the notes thereto are si:t out hereunder:-·

"(1) A Government se.rvant may retire froni service any G time after eompleting 30 years qimlifying service provided that he shall give in thil> behalf, a notice in writing to the appropriate authority, at least 3 months before the date <Yn which he wishes to retire.

(2) Government retains an absolute right to . retire any Government servant after he has completed 25 years quali- H fying service without giving any reasons and no claim to special compensation on this account will be e~1tertaiii.ed. ---------

(~) I.L.R . .1961 Raj. 371.

 This right will not be exercised except when it is in public interest to dispense with further service of a Government servant.

Notes

1. The right conferred by r. 244(2)°is intended to be exercised only against a Government .servnt whose efficiency is. impaired, but against whom it is not desirabe to make fqrmal choarges inefficiency or who has ceased to be fully efficiP-nt but not to such a degree as to warrant his retirement on compassionate allowance. It is not the inte1ation to use this rule as a financial weapon, that is to say, the provision.

C would be used only in the case of Government servants who are considered unfit for retention on perso1aal as opposed tofinancial grounds. ·

2. Compulsory retirement under this rule does not attract. the provisions of cl. (2) of Article 311 of the Constitution becanse such retirement is not conceived as a penalty but as D the exercise of a right reserved to Government of retiring a Government servant after he has served for a certain length of time.

Accordingly, the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for formal proceeding against Government servants before removing them from service is 'aot meant to apply to

uch cases." E

I 0 0 5'

 Rule 244 was amended by notification dated 31 August, 1963 uswill appear from Rajasthan Code Vol. I-Part B corrected up to 3t December, 1967 Fourth Edition.

The amended rule is as follows:-

"244(1) A Government servant may; after giving at least three month~' previous notice in writing to the Govern- F ment, retire froip. the service on the date m1. which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.

Provided that a Government .servant of Class IV can seek retir.ement only if he has completed 30 years of qualifying service. ·

"(2) The Government may, after giving him at least three mQl,1th' previous notice in writing require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of ?5 years or on any date thereafter to be specified in the notice :

Provided that a Government servant of Class IV can only be required to retire on the date on which he completes 25 years of qualifying service or on a~1y date thereafter."

Rule 244 was again amended by notification dated 19 August, 1972.

Rule 244 as amended is set out hereunder :-

"244( 1) Government servant may, !lfti<r giving at least three months previous notice in writing to the Government, _retire from the service 0~1 the date on which he completes

30 years of c1ualifying service or attans the age of 55 years or on any date thereafter to be specified i111 the notice :

Provided that a Government servant of Cfass IV can seek retirement only if he has completed 30 years of qualifying .service.

( 2) The Government may, after giving at least three months, previous notice in writing or by payment of three months pay and allowances in lieu of such notice require a Government sevant to retire from the service on the date on which he completes 25 years of qualifying service or on any date thereafter':.

The notes which were appended to Rule 244 before the amcndml"nt <lated 31 August, 1963 remained •as notes to Rule 244 after both the

amendments dated 31 August, 1963. and 19 August, 1972. The notes wer.: promulgated along with the Rules by the Rajpramukh under Article 309.

Couse! for the petitioners contended as follows.

The job of the permanent employee is not oi,1Jy property but perhaps the only property.

Permanence involves the right to continue in service until one_ attains the age when one renders oneself not physically fit to discharge one's duty.

The proper age of suprannuation must be fixed on the scientific basis of the normal expectation of life.

Rule 244 (2) does not prescribe a minimum age for compulsory etirement and thus permits compulsory retirement of a permanent government servant long before the permissible age of superannuatio\1.

This is not only removal within the meaning of Article 311 but is also an unguided discretionary and discrimin'atory power.

With regard tci writ petition No. 1898 of 1973 it was said that the -order was passed though the petitioner had not completed 25 years of government service and the order cast stigma on the conduct ahd integrity of the petitioner.

Jn T. C. Shivacharana Singh v. The State of Mysore( 1) rule 285 of the Mysore Civil Service Rules 1958 which confered power on the Government to retire compulsorily a Government servant in public

-(l) A. I. R. 1965 s.c-:-280~-

interest oa his completing twenty five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under rule 95 (a) was fixed at fiftyfive years was upheld on the ground that the rule laid down a reasonably long period of qualifying service.

This Court in .R. L. Butail v. Union of India(•) held that there are two exceptions to the protection afforded by Article 311 (2).

First, where a permanent public servant is asked to -retire on the ground tat he has reached the age of superannuation which is reasonaoly fixed.

Second, where he is compu!orily retired under rules which prescribe the normal age of superannuation and provide a reasonably long period of qualifyi1ag service after which alone compulsory retirement can be

ordered.

Article 311 deals with termination of service by way of punishment.

ln R111ail's(1) case Fundamental Rule 56(j) confers power on the Government to pass an order to retire a Government servant after he has attained the age of 55 years if the Government is of the opinion that it is in the public interest to do so.

This Court in Union of India v. Col. J. N. Sinha(:!) said that if the authority bona fide formed the opinion to pass an order of retirement

the correctness of the opinion could not be challenged though the aggrieved party could contend that the opinion was formed on collateral grounds or was an arbitrary decision.

In Sinha's(2) case this Court said that compulsory retirement is not taking any penal action.

An order of compulsory retirement is really passed after taking into consideration the rights of the Government servant on the one band and the interest of the public which ordinarily coincides with the interest of Government on the other.

It is also established that an order of compulsory retirement does not deprive the Government servant of benefits earned till the age of his retirement.

An order of retirement is really passed on the basis of interest of administrative efficiency.

Rule 244(2) as it stands now does not specifically mention that an order is to be passed in the public interest. The notes to the rule indicate that the right to pass iJ.n order of compulsory retirement is to be .exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of

inefficiency or who has ceased to be fully efficient but not to such a Jecrree as to warrant his retirement on compassionate allowance.

The "' notes further say that it is not the intention to use this rule as a financial

(l) [197i'J 2 s.c.R. s~. (2~ f!971] 1 S.C.R. 79L

weapon, that. is to say, that the provision should be used only in tho case of Government servants who are considered unfit for rcention ~'11 :personal as opposed to financial grounds. The notes are promulgated with the rules in exercise of legislative power.

The notes are mad.: contemporaneously with the rules.

The function of the not.:s is to provide procedure and to control discretion.

The real purpose of 1he .notes is that when rules are silent the notes will fill up gaps.

This Court in Shyam Lal v. The State of U.P.( 1) CO!J-Sidered Articl.:· -465-A aild Note-1 appended thereto in the Civil Service Regulations relating to the retiring pensions of officers. Article 465A inter alia stated "A retiring pension is also granted to an ofticer who is required by Government to retire after completing twentyfive years of service or more". In Shyam Lal's(I) case Note 1 which was appended to Article 465-A was not only referred to but relied upon.

Note 1 stated "Government retains an absolute right to retire any officer after he has completed 25 years without giving any reason and no claim to special compensation on this account will be entertained. Tbe note further added by amendment later on "The right will not be exercised except when it is in public interest to dispense with the further service of an officer".

Orie of the contentions in Shyam Lal's(l) casewas that Note 1 was , repugnant to Article 311 of the Constitution. This Court did not acc-:pt that contention. This Court said the purpose of Note 1 is not to confer on the Government any new right to retire compulsorily an ofikcr -0n completion of twenty five years of service but that it is intended to

-erve as a rernjnder that the Government has such a right which it means to retain .. The reason is that one retains only what one already possesses.

The word "retain" shows that it is not a fresh right.

The right to retire compulsorily is dorlved from Rule 4 which cvnfel'f':cl on the Government the absolute right to retire an officer who completed twentyfive years service. Article 465-A was based on Rule 4.

In Shivaclwrana Singh'se) case the order of compulsory retirement was challenged on the ground that note 1 to Rule 285 itf the Mysore Civil Service Rules was not valid.

This Court held that the note applied to all government servants and was not open to challenge either under Article 14 or Article 16. The note was given effect to because'the note required that tlie_government servant against whom an order of compulsory retirement was proposed to be passed must have completed -either 25 years of active service or attained 50 years of age.

(I) [1955]1S.C.R.26.

(2) A.LR. 1965 S.C. 280.

The rr"son why we refer to tkse two decisions in Shyam Lat's( 1) and Shivac/iarana Singh's(~) cases is that notes which are appended to rules .are of aid not only in applying the ru:es but also in interpreting the true import of the rules. ·

Jn Union of India v. K. P. Joseph (3) this Court considered the dkct of a Government order.

Under that order certain benefits would become applicable to certain persons who completed a number of wars of qualifying service.

Brother Mathew, speaking 'tor the Court. said that although the Government cannot supersede statutory rules bv administrative instructions yet if tht:. rules framed undt:r Article 309 of thr.

Constitution are silent on any particular point, the Government can fill up gaps and supplement the rules and issue instructlons not inconsistent with the rules already framed and these instructions will govern the cunditions of service.

In the present case, the notes arc part of the rules because they arc for the guidance of the authorities. They are not inconsistent with the rules but are intended to fill up gaps where the rules are silent.

The only question here is that formerly tqe rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the.old rule.

The deletion of that part of the ruie does not mean that the orders of compulsory retirement are not made in public intcrct. The notes to the rule make explicit what is implicit in the rules.

The right to be in public employment is a right to hold it according to rules. The right to hold is defeasible according to rules. The rules speak of compulsory re:iremcnt.

There is guidance in the rules as to when such compulsory retirement is made.

When persons complete 2 5 years of service and the efficiency of such persons is impaired and

yet it is desirable not to bring any charge of inefficiency or incompetency, the Government passes orders of such compulsory retirement: The Government servant in such a case coes not lose the benefits which a Government servant has already earned.

These orders of compulsory retirement are made in public interest.

This is the safety valve of making such orders so that no arbitraritll!SS or bad faith creeps in.

1n Appendix 9 to the Rajasthan Service Rules Vol. II the power to ri:tire government servant after cotnpletion of 25 years of service is in the case of ministerial service (gazetted and non-gazetted post) conferred on the appointing authorities.

In the present case, the appointing authority is the Collector.

The cntent of the powe.r is .not c?anged by any amendment of the rule.

Therefore, the ddegation is valtd.

(1) [1955) 1 S.C.R. 26.

(2) A. l.R. 1965 S.C. 280.

(3) [1973] .2 S.C.R. 752.

1here is no stigma in any of the impeached orders of compulsory retireme.nt. Counsel for the petitioners said that the order in writ petition No. 1898 of the 1973 was passed in the background that the peti-· tioner outlived his utility to Government. The order does not say so.

The order docs not contain any stigma. It was also said that he was not in continuous employment for 25 years.

The petitioner alleged his stage of service should be counted from l April, 1961. The facts alleged by the State are that the petitioner was appointed as Assistant Cashier with effect from 5 December, 1942. He was a minor at that time.

He attained 18 yea.rs of age on 4 December, 1946. He completed his qualifying service of 25 years on 4 December,

1971. He has been in continuiJus service tor 25 years.

For these reasons we are of opinion that the order of compulsory retirement which are challenged do not violate Articles 14, 19, 31 and

311. The writ petitions are dismissed. Parties will pay and bear their own costs.

P.B.R Petitions dismissed.

L 564 Sup. CI175-2500-20-!2-75-GIPF.