. A

UNION OF INDIA ETC . v.

K. R. TAHILIANI & ANR.

February 26, 1980

[V. R. KRISHNA IYER AND A. D. KDSIIAL, JJ.J

Fundatnental Rflfcs-Rule 56(i) (i)-Scopc of--Governn1cnt servant of]i~ elating in a class I or class Tl post-If could be con1pulsorily retired.

On the question whether a GovErnment servnnt olTiciating in a class 1 or class JI service or post tould be retired compulsorily by exercising pow'er under r. 56(j) (l) of the Fonda.mental Rules after he. has attained! the agC' of 50 years.

JlELD: 1. Rule 56(j) (i) is mea.nt to cov'er only those who are in a post on a regular basis, that is, in a substantive capacity and not on an officiating basis only. [1094El

2. A government servant ordinarily holds service at the pleasure of the State which means pleasure canalised by rules.

[1093H]

3. An officiating hand bas no right to the post and cannot be strictly said to be in tha.t service or post as a member of that servic'e. Jn short an officiating go\:ernment servant does not really b'e1ong to class I or class II service until he acquires a. right thereon. The stn1cture of the clause "if he is in class I or class II service or post" emphasises the natur'e of the service or post vis-a-vis the Govern1nent servant concerned. When a government servant belonging ttJ class I or class II service or post on a regular basis has to b'e retired compulsorily rule 56(j) (i) comes to the rescue of the Governn1ent. But if he is only a temporary hand ¥/ho has no right to the post he can alw2.ys be reYerted to lhc post,

if any, on which he has a lien. Sin1ilar is the poition of an officiating hand.

[1094B-DJ

4: Although the rule vests an absolute right in the appropriate authority to retire a government servant in public interest absolutis1n and arbitranness are F ccntrar:v to the scheme of the rules of this kind. Even while exercising lh.e po\ver under this rule the Stare should take care not to act arbitrarily, misguided by the absolute expression in the nde.

[1094F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 850 of 1978

Appeal by special leave from the judgment and order dated 22-7-1977 of the Delhi High Court in LP.A. No. 97 of 1977.

AND

Civil Appeal No. 2008 of 1978.

Appeal by special leave from the judgment and Order dated 19-5-1978 of the Allahabad High Court in Civil Misc.

Writ No. 1592/76.

G. L. Sanghi, R. B. Datar and Miss A. Subhashini for the Appellant in both the appeals.

UNION v. K. R. TAlllLIANI (Krishna Iyer, J.)

I 093

• '< M. K. Ramamurthy, G. D. Gupta and Miss Anita for the Respon- A

dent in CA No. 850/78.

Shanti Bhushan and P. K. Pillai for the Respondent in CA No. 2008/78 .

The Judgment of the Court was delivered by

KRISHNA IYER, J.-Two government servants have been retired from service in exercise of the powers vested in the Central Government by Rule 56 (j) (i) of the Fundamental Rules.

They have successfully challenged compulsory retirement by petitions under Article 226 of the Constitution and the Union of India has come up in appeal to this Court by special leave.

The sole question to be decided is whether a government servant officiating in a Class I or Class II service or post can be retired compulsorily by exercising the power under Rule 56 (j) (i) after he has attained the age of 50 years.

The biographical details of these two officials in government scr- D vice need not detain us because the facts arc admitted and the only point at issue is whether Rule 56(j) (i) will apply to a government servant who is only officiating in a Class I or qss II post or service.

We agree with the High Court that on a correct interpretation of that Rule, an officiating hand will not be caught in the claws of the compulsory retirement provision.

The reasons may briefly be stated by E us now although these have been elaborately set out by the High Court (in the Delhi case).

We may extract the relevant part of the Ruic at this stage:

"56. (j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion F that it is in public inters! to do so have the absclute

right to retire any Government servant by giving him notice Of not less than three months in writing or three months' pay and allowances in lieu of such notice.

(i) If he is in Class I or Class II service or pest and had G entered Government service before attaining the age of thirty live years after he has attained the nge of fifty years." ·

A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevails even H pkasure is canalised by rules.

Viewed from this perspective security of tenure is a value in itself.

In Government jurisprudence it is,

SUPREME COURT REPORTS [J 98()j 2 S.C.R.

however, open to the State to make rules under the proviso to Article 309; and Rule 56 (j) is one such rule.

Assuming as we do, the validity of the said Rule, the question of construction causes little difficulty once the scheme of the provision is understood correctly.

An officiating hand has no righJ to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been IJromoted on an officiating basis.

What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on l! temporary basis aJ!d it is obvious that he has no right to the post and cannot be strictly said to be in that service or pq_st as a member of that service. In short, an ofijciating Government servant does not really belong to Class l or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II services or post", emphasises the nature of the service or post vis-a:-v.is the Government servant concerned.

We need not go into the sel\lantic shapes, lexical 11iceties or linguistic nuances but only go through the mf_aning and purpose of the provision.

When a Governm.ent servant belo.llging to a Class I or Class II service or post on a regular basis bas to !Je retired compulsorily, Rule 56 (j) (i) comes to the rescue of the Government. 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 officiating hand.

Thus, we have reached an inevitable conclusion that Rule 56 (j) (i) 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.

In passing, we may make it clear that although the Rule vests an absolute right in the appropriate authority to retire a Gove!lllllent servant in public interest, Y, et absolutism arid arbitrariness are contrary to the scheme of the ruls we are concerned with. We, therefore emphasise the fact that even while exercising power under Rule 56 (j) (i) the State will take care not to act arbitrarily, misguided by the a_bsolute expression in the Rule.

We dismiss the two Appeals and vacate the stay in Civil Appeal No. 850 of 1978.

In each case, costs quantified in a sum of Rs. 2,500/- (Two Thousand and Five Hundred) will be paid. The counsel for the respondents in both the cases have generously agreed that Rs. 1,000/- (One Thousand), out of the said sum be p_aid over to the Free Legal Aid Society in each case.

P.B.R.

Appeals dismissed.