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PETITIONER: S.C. JAIN

       Vs.

RESPONDENT: STATE OF HARYANA AND ANR.

DATE OF JUDGMENT04/11/1985

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR  169            1985 SCR  Supl. (3) 727  1985 SCC  (4) 645        1985 SCALE  (2)926  CITATOR INFO :  R          1987 SC1933  (10)

ACT:      Punjab Civil  Services Rules, Vol. II, Part II, Rule 5. 32(c) and  Punjab Civil  Service Rules  Vol. I  Part I, rule 3.26 (c)  and (d)  - Premature retirement - Rule 3. 26 (c) - Applicability of - Whether Rule 3.26(c) provides immunity to Superintending Engineers.

HEADNOTE:      Rule 3.26  (c) of the Punjab Civil Service Rules Vol. I part 1  enacts: "The  following are special rules applicable to P.W.D. Officers :-           1. Except  as  otherwise  provided  in  this  sub-           clause,    Government  employees  in  the  Haryana           Service  of  Engineers  Class  I  (B&R,  I.B.  and           Electricity) must retire on reaching the age of 58           years,  and  may  be  required  by  the  competent           authority to  retire on  reaching the  age  of  50           years if  they  have  not  attained  the  rank  of           superintending Engineer.      The Respondent - State of Haryana by its order No.11/3- BR (Estt)-6-81 dated 18 December 1981 retired the appellant, a superintending  Engineer, prematurally  after he  attained the age of 50 years in pursuance of the provisions contained in rule  5.32(c) of  the Punjab  civil Service Rules, Vol.II Part II ant Rule 3.26(d) of the Punjab civil Services Rules, Vol. I,  Part I  as applicable  to the State of Haryana. The appellant’s promotion  to higher  and higher  posts in quick succession in  the  part  unmistakably  indicated  that  the authorities were  satisfied with  his work and integrity. He was promoted  to the post of Superintending Engineer on 27th May 1971. The appellant made several representations against the order  of premature  retirement, but did not receive any reply despite  repeated reminders. Ultimately, he challenged the  impugned  order  of  premature  retirement  by  a  writ petition in  the High  Court of  Punjab and  Haryana on  the ground, inter  alia, that  in view  of the  clear provisions contained in  rule 3.26(c)  of Punjab  Civil Services  rules Vol. I, Part I (as applicable to Haryana), which are special rules applicable to the public works Department 728

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Officers,  the   general  rule  contained  in  rule  3.26(d) empowering the  Government to  compulsorily retire  a public servant has  no application  in his  case.  The  High  Court dismissed the writ petition in limine.      Allowing the appeal, ^      HELD: 1. The order of the High Court dated 5th January, 1984 is  set aside.  The order of premature retirement dated 18th December 1981 is quashed. The appellant shall be deemed to be  in continuous  service. He is entitled to his salary, emoluments and  other consequential  benefits  to  which  he would have  been entitled  to if he had not been prematurely retired. [738 G]      2.(i) Rule  3.26(2), Which is a special rule applicable to Government  employees in the Haryana Service of Engineers Class 1,  will govern  the case  of  the  appellant  as  the special overrides the general. Admittedly, he was working as the Superintending  Engineer for  the last  so many years on the date when the impugned order of his premature retirement was passed  by the  Governor. This rule provides as immunity to the  engineer who has attained the rank of Superintending Engineer in  the B.W.D. (B&R Branch) had always the immunity ever since  the provision for premature retirement came into force. The  old  corresponding  rules  do  not  improve  the position for the State-respondent. [734 E; 738 E]      2(ii) Rule  3.26(d) is  applicable  to  all  government employees but not  to engineers of the P.W.D. for whom there is a  special rule.  It is  a  supplement  to  rule  3.26(a) because it  supplies the  procedure to be adopted in case of premature retirement of other Government servants. [735 E-F]      3.The heading ’Compulsory Retirement’ is wide enough to include premature  retirement within  its  fold.  Government employee in the Haryana service of Engineers has no right to continue  in   service  if   he  has   reached  the  age  of superannuation which  is 58  years in the case of engineers. He has  perforce to  retire unless  he has  been granted  an extension. Likewise  an engineer who has not reached the age of superannuation  but is  made to  retire prematurely,  his retirement is  as much a compulsory retirement as that of an employee who has attained the age of superannuation. It will not be correct to say that the age of superannuation in case of  engineers   who  have   not   attained   the   rank   of Superintending Engineers  has been reduced to 50 years. [735 A-C] 729      M. Narasimhachar  v. The  State  of  Mysore,  119601  1 S.C.R. 981 A relied upon.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4953 of 1985.      From the  Judgment and  Order  dated  5.1.1984  of  the Punjab and  Haryana High  Court in  Civil writ  Petition No. 4546 of 1983.      Dr. Y.S. Chitale, and A.K. Ganguli for the Appellant.      Harbans Lal,  I.S. Goel, C.V. Subba Rao and R.N. Poddar for the Respondents.      The judgment of the Court was delivered by      MISRA, J. Special leave granted. This appeal by special leave is  directed against  the order  of the  high Court of Punjab and  Haryana dated  5th January,  1984 dismissing the writ petition in a service matter.      The  appellant   joined  service  as  a  Sub-divisional

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Officer (Assistant  Engineer in Class II on 28th August 1953 in the former State of PEPSU. On 1st November 1956 the State of PEPSU  and Punjab  were  merged  and  the  appellant  was integrated in  the  service  of  the  reorganized  State  of Punjab. He  worked on  this post  for about  eight years and during the  period he  was posted  at various  places in the State and  was  assigned  different  kinds  of  duties.  The authorities being  satisfied with  his performance,  he  WAS prompted to the post of Executive Engineer in Class Gazetted on 24th  hay, 1961.  he was  allowed to cross the efficiency bar immediately  when it  became due. On this post he worked for  about   ten  years.   Considering  the  efficiency  and suitability of the appellant he was confirmed on the post of Executive Engineer in Class I Gazetted on 1st April 1965.      On Ist November 1966 the State of Punjab was bifurcated into the  State of  Punjab and  the State of Haryana. On the reorganisation of the State of Punjab the petitioner came to be allocated  to the service of the State of Haryana. In the new  State  also  his  performance  was  excellent  and  the authorities satisfied  with his  meritorious services,  gave him a selection grade of the post of Executive Engineer. The admission of  the appellant to the selection grade itself is indication of the fact 730 that the  authorities were satisfied with his work, honesty, integrity and  his capability.  In due  course the appellant was also  promoted to the post of Superintending Engineer on 9th February,  1970. He  had hardly worked for about a month when he  was reverted  but  not  because  of  any  complaint against him or his inefficiency but because one of the posts of Superintending  Engineers was  reduced by the Government. The appellant  being junior-most  was reverted. But when the post of  a Superintending  Engineer again  fell  vacant  the State of  Haryana promoted  the appellant  to the  said post promptly on  27th May  1971. On  account of  his meritorious service he  was found  fit to  be posted first as Additional Director of  Technical Education,  Haryana  for  about  four years and  thereafter as  Director P.W.D.  (B &  R) Research Laboratory at  Nilokheri. The  work of the P.W.D. Laboratory was  highly  specialised  and  skilled  and  required  care, precision and  accuracy and  only officers  of the merit and proven ability,  competence and having research aptitude are posted there.  The appellant  was considered  to be the most appropriate officer for that post.      The appellant  by a letter dated 19th October, 1981 was offered the post of Superintending Engineer on deputation to the Delhi  Development Authority. This offer was made to the appellant in  view of the request from the Delhi Development Authority for  names of  suitable officers.  Again  on  11th December 1981  the appellant  received a  telegram from  the office of  the Engineer-in- Chief seeking the willingness of the appellant  for nomination for the post of Civil Engineer for an  assignment with  the Government  of  Libya.  Shortly thereafter the  appellant received  an other  offer from the office of  the Engineer-in-Chief,  Haryana P.W.D.  (B &  R), Chandigarh on  15th December,  1981. This offer was pursuant to the  request of  the management  of Dayanand  University, Rohtak asking  for names of Superintending Engineers for the post of  Chief Engineer.  This offer  was made  only to  the Superintending Engineers  who were  considered competent  by Engineer-in-Chief, Haryana P.W.D.(B & R), Chandigarh.      The  sequence  of  events  and  the  promotion  of  the appellant to  higher and  higher posts  in quick  succession speak for themselves and they unmistakably indicate that the authorities were  satisfied with  his work and integrity. So

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far all was well with him.      It appears  that on  15th December,  1981 the appellant applied for  casual leave  for four  days from  21st to 24th December, 1981 731 and the  station leave  from 19th to 27th December which was sanctioned by  the office  of the  Chief  Engineer  on  17th December 1981.  When he was availing the leave he received a telegram intimating  that his casual leave and station leave have  been   cancelled.  Neither   the  telegram   nor   the confirmatory  letter  dated  21st  December,  1981  received subsequently disclosed  the reason  for the  cancellation of leave. The  appellant, therefore, had to join and resume his duties  as  per  instructions  in  the  said  telegram.  The appellant received the impugned order No.11/3-BR (Estt)-6-81 dated 18th  December,  1981  from  the  Government  on  29th December, 1981  prematurely retiring  him from service after attaining the  age  of  50  years.  The  impugned  order  of premature retirement  dated 18th  December, 1981  is in  the following terms:           "Whereas the Governor of Haryana is of the opinion           that it  is in  the public interest to retire shri           S.C. Jain, superintending Engineer, Haryana P.W.D.           ( & R Branch) from service after attaining the age           of 50 yrs.           Now, therefore,  in pursuance  of  the  provisions           contained in  rule 5.32(c)  of  the  Punjab  Civil           Service Rules Vol. II, Part II and rule 3.26(d) of           the Punjab  Civil Services  Rule Vol. I, Part I as           applicable to  the State  of Haryana, the Governor           of Haryana  in the  public interest  hereby orders           the payment  of three months pay and allowances in           lieu of  notice to  Shri S.C. Jain, Superintending           Engineer and  retires him  from Haryana Government           Service with  effect from  the date  of receipt of           this order.                                    By Order of the Governor.                                Sd/- Commissioner & Secretary                          to Govt. Haryana PWD B & R Branch."      The appellant  made several representations against the order of  premature retirement  on 25th  January, 1982, 26th April, 1982,  25th July  1982 to the respondents with copies forwarded to  the Chief  minister of  Haryana, Minister  for P.W.D., Haryana and the Engineer-in-Chief P.W.D. & R Branch, Haryana. The  appellant, however,  did not receive any reply despite repeated  reminders. The  appellant also  separately submitted representation  to the  Chief minister, Haryana in January 1982.  The same  was forwarded  to the then Minister for P.W.D.  (B&R), Kanwar  Ram Pal  Singh for  examining the representation in  detail, who after examining the  position made the following remarks on the representation itself: 732      "Recommended strongly  restoring him  to  his  original post.                                           Sd/- Ram Pal Singh                                      P.W.M. 25th April 1982" Despite  the  recommendation  of  the  P.W.D.  minister  the appellant got  no relief.  Under the  circumstances  he  was constrained  to  take  recourse  to  court  of  law  and  he challenged the  impugned order  of premature  retirement  by filing a  writ petition  in the  High Court  of  Punjab  ant Haryana on  grounds inter  alia that  in view  of the  clear provisions  contained   in  rule  3.26(c)  of  Punjab  Civil Services Rules  Vol. I,  Part I  (as applicable to Haryana), which are  special rules  applicable  to  the  Public  works

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Department officers,  the general  rule  contained  in  rule 3.26(d) empowering  the Government  to compulsorily retire a public servant  has no  application  to  the  present  case. Curiously enough  the High Court dismissed the writ petition in limine  by a  cryptic order:  ’No merit.  Dismissed.  The appellant has now approached this Court by special leave. He has taken  all those  grounds  taken  by  him  in  the  writ petition.      Dr. Y.S. Chitale appearing for the appellant forcefully urged that  in view of the provisions of rule 3.26(c) of the Punjab Civil  Service Rules,  Vol. I,  Part I, the appellant could not  be retired  prematurely. We heard the counsel for the parties  on this  point first  and indicated that if the first contention  of Dr.  Chitale was  not accepted we would hear the counsel for the parties on other points involved in the case.  Having heard  the counsel for the parties at some length we are of the view that the first point raised by Dr. Chitale is  Formidable and  the appeal  w st succeed on this point alone.  It is,  therefore, not  necessary to  hear the parties on other points involved in the case.      In order to appreciate the contention of Dr. Chitale it will be  pertinent to  quote rule  3.26(a) to 3.26(d) of the Punjab Civil  Services Rules,  Vol. I,  Part I applicable to the present case (1980 Print) :                    COMPULSORY RETIREMENT           3.26(a) Except  as  otherwise  provided  in  other           clauses of  this rule,  every Government  employee           shall retire  from service on the afternoon of the           last day  of the month in which he attains the age           of fifty-eight 733           years. he  must not  be retained  in service after           the  age   of  compulsory  retirement,  except  in           exceptional A  circumstances with  the sanction of           the competent  authority in public interest, which           must be recorded in writing:           Provided that the age of compulsory retirement for           class IV Government employee shall be sixty years:           Provided further  that a Government employee whole           date of birth is the first of a month shall retire           from service  on the  afternoon of the last day of           the preceding month on attaining the age OF fifty-           eight or sixty years as the case may be-           (b).......           (c) The  following are special rules applicable to           P.W.D. Officers :-           (1) Except  as otherwise  provided  in  this  sub-           clause,  Government   employees  in   the  Haryana           Service of  Engineers, Class  I (B  & R,  I.B. and           Electricity) must retire on reaching the age of 58           years,  and  may  be  required  by  the  competent           authority to  retire on  reaching the  age  of  50           years if  they  have  not  attained  the  rank  of           Superintending Engineer.           (2) Subject to the requirements of this sub-clause           as to re-appointment, the competent authority may,           in special circumstances, which should be recorded           in writing,  grant an  extension of  service,  not           exceeding three months, to a Chief Engineer.           (3)  No   Chief  Engineer   shall,   without   re-           appointment, hold  the post  for  more  than  five           years, but re-appointment to the posts may be made           as often,  and in  each case  for such  period not           exceeding five  years as  the competent  authority           may  decide:   Provided  that   the  term  of  re-

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         appointment  shall  not  extend  more  than  three           months beyond  the date  on which  the  Government           employee attains the age of 58.           (d) The  appointing authority  shall, if  it is of           the opinion  that it  is in the public interest 60           to do, 734           have the  absolute right  to retire any Government           employee, other  than Class IV Government employee           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  class I or class II Service or post           and  had   entered  Government   service,   before           attaining the  age of  thirty-five years, after he           has attained the age of fifty years; and           (ii) (a) If he is in class III Service or post, or           (b) If  he is  in class  I or  Class II service or           post  and   entered   Government   service   after           attaining the age of thirty-five years;           after he has attained the age of fifty-five Years.           The  Government   employee  would   stand  retired           immediately   on payment  of three months’ pay and           allowances in  lieu of  the notice period and will           not be in service thereafter."      Rule 3.26(c),  which is  a special  rule applicable  to Government employees  in the  Haryana Service  of  Engineers Class I,  will govern  the case  of  the  appellant  as  the special overrides  the general. Admittedly he was working as the Superintending  Engineer for  the last  so many years on the date when the impugned order of his premature retirement was passed  by the  Governor. This rule provides an immunity to the  engineer who has attained the rank of Superintending Engineer. The  appellant, therefore,  gets the protection of clause (l) of rule 3.26(c).      Shri Harbans  Lal appearing for the State of Haryana in reply refutes  the contention  raised  by  Dr.  Chitale  and contends that  the  second  part  of  rule  3.26(c)(l)  only authorises the  Secretary to Government in consultation with the Finance  Department, to reduce the age of superannuation below 58 and above 50 with regard to class I officers of the P.W.D. if  they have not attained the rank of Superintending Engineers.  This  rule  according  to  him  is  an  enabling provision authorising  the secretary to Government to reduce the age  of superannuation  of all  Class I  officers of the P.W.D. if  they have not attained the rank of Superintending Engineers and if they did so then all such officers who have attained 50 years should retire. 735      The contention  of Shri  Harbans Lal  has absolutely no force  for  a  variety  of  reasons:  Firstly,  the  heading ’Compulsory  Retirement’ is wide enough to include premature retirement within  its fold.  A Government  employee in  the Haryana service  of Engineers  has no  right to  continue in service if he has reached the age of superannuation which is 58 years in the case of engineers. he has perforce to retire unless  he  has  been  granted  an  extension.  Likewise  an engineer who has not reached the age of P superannuation but is made  to retire  prematurely, his retirement is as much a compulsory  retirement  as  that  of  an  employee  who  has attained the age of superannuation. It will, in our opinion, not be correct to say that the age of superannuation in case of  engineers   who  have   not   attained   the   rank   of Superintending Engineers  has been  reduced to 50 years. his contention, if  accepted, would  result in an absurdity. The

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inevitable result  will be that all Executive Engineers will have to  retire at the age of 50 which could never nave been intended by  the rule  makers. The  argument of  the learned counsel for the State is a desperate one indeed- L      Shri harbans  Lal tried  to bring  this case within the fold  of  rule  3.26(d).  This  rule  gives  the  appointing authority  the  absolute  right  to  retire  any  Government employee other  than class  IV Government employee by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice.      This rule is applicable to all Government employees but not to  engineers of  the P.W.D. for whom there is a special rule. In  our opinion  it is  a supplement  to rule  3.26(a) because it  supplies the  procedure to be adopted in case of premature retirement  of other  Government servants.  We get support for  our view  from M. Narasimbachar v. The State of Mysore,  [1960]   1  S.C.R.  981.  That  case  involved  the interpretation of  article 294  provides that  a  Government servant in superior or inferior service who has attained the age of fifty five years may be required to retire unless the Government considers him efficient and permits him to remain in service.  But as the premature retirement of an efficient Government servant  imposes a  needless charge  on the State this rule should be worked with discertion. Article 297 laid down that  a Government  servant in superior service who has attained the  age of  fifty-five years  may  at  his  option retire from  service on  a superannuation  pension.  It  was sought to be urged in that case that article 297 gave option to the public servant whether he retires at that age or not. 736 This Court  interpreting article  297 held that this article was complementary  to article  294(a) which gives government the power  of keeping  Government servants in service beyond the age  of 55  years. Article  297  allows  the  Government servant, if  the Government  wants to  keep him  in  service after 55  years to opt for retirement. It does not mean that it is  entirely at  the option  of the Government servant to continue beyond  the age  of 55  years  ant  the  Government cannot retire  him at  that age  if he does not exercise the option.      That decision  involved the interpretation of different rules but  the reasoning  adopted in that case is applicable in the  construction of  rule 3.26(d)  of the  Punjab  Civil Services Rules.      Shri harbans  Lal in support of his contention referred to the  old corresponding rules. The relevant portion of the old rules is quoted hereunder:           "Rule 3.26 of C.S.R. (pb) 1941 Edition.           Compulsory Retirement           3.26 (a) Except as otherwise provided in the other           clauses  of  this  rule  the  date  of  compulsory           retirement of  a Government  servant, other than a           ministerial servant,  is  the  date  on  which  he           attains the age of 55 years. He may be retained in           service after  the date  of compulsory  retirement           with the sanction of competent authority on public           grounds, which must be recorded in writing, but he           must not  be retained  after the  age of 60 years,           except in very special circumstances.           (b).....           (c) The  following are special rules applicable to           particular services :-           (i).....           (ii) Except  as otherwise  provided in  this  sub-           clause  Civil   Engineers  of   the  Public  works

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         Department must  retire on  reaching the age of 55           years,  and  may  be  required  by  the  competent           authority to  retire on  reaching the  age  of  50           years if  they  have  not  attained  the  rank  of           Superintending Engineer. 737           Rule 3.26  of Punjab  C.S.R. Vol.  I, Part I, 1953           Edition.           Compulsory Retirement           3.26(a) Except  as provided  in other  clauses  of           this rule,  the date of compulsory retirement of a           Government  servant   other  than   a   Class   IV           Government  servant,  is  the  date  on  which  he           attains the  age of  55  years.  he  must  not  be           retained in  service after  the age  of compulsory           retirement, except  in  exceptional  circumstances           with the sanction of competent authority on public           grounds, which must be recorded in writing.           (b)-           (c) The  following are special rules applicable to           particular services           (i)....           (ii) Except  as otherwise  provided in  this  sub-           clause, Government  servants in the Punjab Service           of Engineers Class I (B & R, I.B. and Electricity)           must retire  on reaching  the age of 55 years, and           may be  required by  the  competent  authority  to           retire on  reaching the  age of  50 years, if they           have not  attained the  rank  of    Superintending           Engineer.           Rule 3.26  of Punjab  Civil Services Rules, Volume           I, Part I. 1963 Edition.           Compulsory Retirement           3.26(a) Except  as provided  in other  clauses  of           this rule,  the date of compulsory retirement of a           Government servant  which he attains the age of 58           years. He  must not  be retained  in service after           the  age   of  compulsory  retirement,  except  in           exceptional circumstances  with  the  sanction  of           competent authority  on public grounds, which must           be recorded in writing.           (b)....           (c) The  following are special rules applicable to           P.W.D. Officer:-           (1) Except  as otherwise  provided  in  this  sub-           clause, Government  servants in the Punjab Service           of 738           Engineers, Class  I (B & R, I.B. Electricity) must           retire on reaching the age of 58 years, and may be           required by  the competent  authority to retire on           reaching the  age of  58 years  if they  have  not           attained the rank of Superintending Engineer.           Clause (d) inserted in rule 3.26 vide Notification           No. 4118-3FR-74/24837 dated 12th July 1974.           3.26(d) The  appointing authority may, if it is of           the opinion  that it  is in the public interest so           to do, retire any Government servant, other than a           Class IV  Government  servant,  by  giving  him  a           notice of not less than three months in writing:           (i) If  he is  in class  I or  class II service or           post and  had entered  Government  service  before           attaining the  age of  thirty-five years, after he           has attained the age of fifty years, and           (ii) ........ ...... ...... ....."

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    A bare  perusal of  the old rules will indicate that an engineer  who   has  attained  the  rank  of  Superintending Engineer in  the P.W.D.  (B  &  R  Branch)  had  always  the immunity ever  since the  provision for premature retirement came into  force. The old corresponding rules do not improve the  position   for  the  State.  They  rather  support  the contention of the appellant.      We enquired  from Shri  Harbans Lal  Whether any  other engineer in  the  Engineering  Service  of  P.W.D.  who  had attained the  rank of  Superintending Engineer had ever been prematurely retired  and he  frankly admitted that there has been no such case.      For the  foregoing discussion  the appeal must succeed. It is  accordingly allowed  with costs  and the order of the High Court  dated 5th  January, 1984  is set aside. The writ petition  stands   allowed  and   the  order   of  premature retirement  dated   18th  December,  1981  is  quashed.  The appellant shall be deemed to be in continuous service. He is entitled to  his salary;  emoluments and other consequential benefits to  which he  would have been entitled to if he had not been prematurely retired. M.L.A.                                       Appeal allowed. 739