http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: RATAN LAL BOHRA

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ANOTHER

DATE OF JUDGMENT:       18/03/1996

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) AHMADI A.M. (CJ) MANOHAR SUJATA V. (J)

CITATION:  JT 1996 (5)   546        1996 SCALE  (3)100

ACT:

HEADNOTE:

JUDGMENT:                           W I T H                 CIVIL APPEAL No.4805 OF 1996           (Arising out of SLP(C) No. 18337 of 1995 Vijay Singh V. State of Rajasthan & Another                           W I T H                 CIVIL APPEAL NO.4796 OF 1996          (Arising out of SLP (C) No. 18392 of 1995) Sukhdeo V. State of Rajasthan & Another                       J U D G M E N T K. VENKATASWAMI, J.      Leave granted.      A common question of law arises for our decision in all these appeals.  When the  Special Leave  Petitions  came  up before the Court for hearing, the following common order was passed by this Court on 16.8.95 :      "Issue notice  returnable within  6      weeks  on   the  limited   question      whether the power conferred by Rule      244(2)  of  the  Rajasthan  Service      Rules was  not to  be exercised  as      the policy  of  the  Government  in      regard to  non-gazetted  employees,      vide Circular dated 22.8.90."      All the  three appellants  who were working as Patwaris in the  Revenue Department  of the  State of  Rajasthan were compulsorily retired  under Rule  244(2)  of  the  Rajasthan Service Rules.  They challenged  the  Orders  of  compulsory retirement before  the High  Court  by  raising  contentions inter alia before the learned Single Judge as well as before the Division Bench that Rule 244(2) at the relevant point of time could be invoked only in respect of Gazetted Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

Servants and not in respect of Government Servants belonging to Subordinate  Services. They  were not successful in their attempt. The High Court also rejected other contentions with which we  are not  concerned. Aggrieved  by the order of the High Court the present Appeals are preferred.      The only  question that  calls for our consideration is whether the  invocation of  Rule  244(2)  of  the  Rajasthan Service Rules  in all  these cases for compulsorily retiring the appellants is sustainable.      Rule 244(2) of Rajasthan Service Rules is as under:      "244 (2): The Government may, after      giving him  at least  three month’s      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  55      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  any  date      thereafter."      The above  Rule empowers  the Government to retire both Gazetted and  non-Gazetted Government servants. However, the Government of  Rajasthan issued  guidelines on  the  subject from time  to time  and the  last one  which was referred to before us  was issued  by the  Department of  Personnel  and Administrative Reforms on 23.4.1990. This Circular gives the modalities and  all other details to give effect to the said Rule for  compulsory retirement  of Government Servants. But for the above said Circular or similar superceded circulars, it would  not have  been possible for the Government to give effect to  Rule 244(2)  of Rajasthan  Service Rules. For all practical purposes,  the Circular was treated as part of the Rule.  On  22  8.90,  the  same  Department  issued  another Circular, the relevant portion of which reads as follows :      "A doubt  has been  raised by  some      Appointing Authorities  whether the      information is  to be  sent to  the      DOP in respect of all categories of      Govt.  Servants  or  only  for  the      Gazetted   Government Servants.           It is clarified again that the      information  in   respect  of  only      Gazetted Government  Servants is to      be sent to the DOP by the concerned      Admn. Secretaries.  It  is  further      clarified that  at  present  action      under Rule  244 (2)  RSR is  to  be      initiated in  respect  of  Gazetted      Government Servants only.           It  is,  therefore,  requested      that the action taken/progress made      in   respect    of   the   Gazetted      Government Servants  may kindly  be      furnished through Admn. Secretaries      to  the   DOP  according   to   the      calendar   prescribed    by    this      Department."                      (Emphasis supplied)      The question  is whether  the above  extracted  portion from the  Circular restricts the operation of Rule 244(2) to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

Gazetted Government Servants only?      Learned counsel  appearing for  the appellants  placing strong reliance  on the  above extracted  portion  from  the Circular dated  22.8.90 and  in particular  on the following sentence "It  is further  clarified that  at present  action under Rule  244(2) RSR  is to  be initiated  in  respect  of Gazetted Government  Servants only" argued that the impugned Orders of compulsory retirement are contrary to the Circular dated 22.8  90 which  is  part  of  earlier  Circular  dated 23.4.90, and, therefore, liable to be set aside.      Learned counsel appearing for the respondents, however, submitted that  the Circular  dated 22.8.90  is only  in the nature of  clarification and, therefore, cannot override the statutory rule.  According to  the learned counsel, the High Court was right in taking such a view.      We have noticed earlier that but for the Circular dated 23.4.90 it  could not  have been possible for the Government to give  effect to  Rule 244(2)  of  the  Rajasthan  Service Rules. The Circular was treated as part of Rule 244 (2). The subsequent Circular  dated 22.8.90 appears to be an addition to the  Circular dated 23.4.90 and the decision taken in the Circular dated  22.8.90 to initiate, for the present, action under  Rule  244  (2)  in  respect  of  Gazetted  Government Servants only  was a policy of the Government and not a mere clarification. A careful reading of all the three paragraphs leaves  no   doubt  that  for  reasons  best  known  to  the Government, they  have decided  to restrict the operation of Rule ’44  (2) in  respect of  Gazetted  Government  Servants only. If  that be  so, the  Orders compulsorily retiring the appellants cannot be sustained. The argument that it is only clarificatory, cannot  be accepted  in  view  of  the  clear language employed in the Circular dated 22.8.90 stating that at present  action under Rule 244 (2) Rajasthan Service Rule is  to  be  initiated  in  respect  of  Gazetted  Government Servants only.      In the result, the Appeals succeed and accordingly they are allowed. However, there will be no order as to costs.