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PETITIONER: STATE OF RAJASTHAN AND ANR.

       Vs.

RESPONDENT: SRIPAL JAIN

DATE OF JUDGMENT: 24/01/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1963 AIR 1323            1964 SCR  (1) 742

ACT: State   Service-Order  of  compulsory  retirement-Power   of Inspector-General  of Police order if amounts to  punshment- --If  must be submitted to Governor-Constitution  of  India, Arts.  166,  311-Rajasthan Service Rules,  rr.  56,  244(2)- Rajasthan   Civil  Services  (Classification,  Control   and Appeal) Rules, 1958, rr. 14, 34-Rules of Businesses) rr. 21, 31(vii)Rajasthan  General Clauses Act, 1955 (VIII of  1955), ss. 32(33), 32(75).

HEADNOTE: The respondent in the present appeal was a Circle  Inspector in the Rajasthan State Service.  He was compulsorily retired from  service and the order was communicated to him  by  the Inspector-General  of  Police.  Thereafter he filed  a  writ petition in the Rajasthan High Court challenging the  order. The High Court allowed the writ petition on the ground  that r. 31 (vii (a) of the Rules of Business applied to a case of compulsorly  retirement  under r. 244(2)  of  the  Rajasthan Service  Rules and as the papers had not been  submitted  to the  Governor  the  order of compulsory  retirement  in  the present  case was bad.  The State of Rajasthan  appealed  to this Court by way of special leave.  743 The  main question before this Court was whether a  case  of compulsory  retirement under r. 244(2) of the Service  Rules has  to be submitted to the Governor under r. 31 (vii)  (a). of  the  Rules  of Business.  It was  further  contended  on behalf  of  the respondent that r. 244(2).  of  the  Service Rules contemplated an order of compulsory retirement by  the Government and not by the Inspector-General of Police as was done  in  the present case.  The respondent  also  contended that since the order was not in the form prescribed by  Art. 166 of the Constitution it was bad.  His last contention was that by reason of s. 32(75) of the Rajasthan General Clauses Act,  1955,  an order under r. 244(2) of the  Service  Rules means an order by the Governor. Held, that compulsory retirement provided in r. 31 (vii) (a) is  a compulsory retirement as a penalty and not  compulsory

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retirement  of  the other two kinds  namely  (1)  compulsory retirement  on attaining the age of superannuation  and  (2) compulsory retirement under r. 244(2), neither of which is a punishment.   It was not therefore necessary to  submit  the papers   with  respect  to  compulsory  retirement  of   the respondent under r. 244(2) to the Governor. it  is  well settled that any defect of form  in  the  order would   not  necessarily  make  it  illegal  and  the   only consequence  of  the  order  not being  in  proper  form  as required  by  Art. 166 is that the burden is thrown  on  the Government to show that the order was in fact passed by  it. The  recommendation made by a high power committee  for  the compulsory retirement of the respondent having been approved by the Home Minister and by the Chief Minister, by virtue of r. 21 the impugned order is one made by the Government. The definition of ’Government’ and ’State Government’ in the Rajasthan   General  Clauses  Act  does  not   support   the contention  of  the  respondent in the light  of  the  above interpretation of r. 31 (vii) (a) of the Business Rules.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 299/62. Appeal  by special leave from the judgment and  order  dated February  23,  1961, of the Rajasthan High Court  in  D.  B. Civil Writ No. 416 of 1960. G. C. Kasliwal, Advocate,-General,for the State of Rajasthan S. K. Kapur and P. D. Menon for the appellants. 744 Veda Vyasa and K. K. Jain, for the respondent. 1963.  January 24.  The judgment of the Court was  delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment of the Rajasthan High Court.  The respondent was in the  service of the State of Rajasthan and at  the  material time  was a circle inspector.  He was  compulsorily  retired from  service on September 3, 1960 under r. 244 (2)  of  the Rajasthan  Service  Rules, (hereinafter referred to  as  the Service   Rules).    The  order  for  his   retirement   was communicated  to  him  by the Inspector  General  of  Police Rajasthan,  on April 11, 1960.  The respondent however  made representations to the Government and the order was kept  in abeyance  and was finally put into effect from September  3, 1960, after the Government had rejected the  representation. The  Government ordered on September 2, 1960 that the  order of April 11, 1960 regarding compulsory retirement should  be put into immediate effect.  The respondent thereupon filed a writ  petition  in the High Court and contended  inter  alia that  the  Inspector General of Police had no  authority  to order  his  compulsory retirement under r. 244  (2)  of  the Service Rules.  He also contended that the order amounted to punishment  within  the meaning of r. 14  of  the  Rajasthan Civil Services (Classification,  control and  appeal) Rules, 1958, (hereinafter referred to as the Classification Rules), and  therefore  as  it  was passed  without  giving  him  an opportunity to show cause as required under Art. 311 of  the Constitution, it was bad. The petition was opposed on behalf of the state of Rajasthan and it was contended that’ an order of compulsory retirement under r. 244 - (2) of the Service Rules was not a punishment within,  the  meaning  of  the  Classification  Rules,   and therefore -Art. 311  745 had no application to it.  It was also urged that the  order

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had  been passed by the Government and not by the  Inspector General of Police, who had merely acted in issuing the order under  the  direction of the Government.  The -case  of  the appellants  was that under r. 244 (2) of the Service  Rules, the  Government had an unqualified discretion to retire  any officer compulsorily if it was in the public interest so  to do, and provisions of Art. 311 of the Constitution would not apply  to  such  an order  of  compulsory  retirement.   The appellant’s  case further was that a high-powered  Committee had  been set up under the chairmanship of the  Chairman  of the  Public Service Commission to consider the cases of  all such  officers  whose  retention  in  public  service  after twenty-five years of service was not in the public’ interest and that Committee recommended the compulsory retirement  of the  respondent.  That recommendation was put up before  the Home  Minister of the Government of Rajasthan, who  accepted the  findings  and recommendations of  the  Committee.   The matter was then put up before the Chief Minister who  agreed with the Home Minister and thereafter the Inspector  General of  Police  was  directed to order  the  retirement  of  the respondent. When  the matter came to be heard in the High Court  it  was submitted on behalf of the respondent that under r. 31 (vii) (a) of the Rules of Business (hereinafter referred to as the Business  Rules), all cases of compulsory  retirement  where the  appointing  authority  is the  Government  have  to  be submitted to the Governor and the Chief Minister.  As in the present case the matter was admittedly not submitted to  the Governor, the order of compulsory retirement even if it  was made  by the Government was not legal as it was against  the Business  Rules.   The  reply  of  the  appellants  to  this contention  was that r. 31 (vii) (a) of the  Business  Rules only applied to that kind of compulsory retirement which Was inflidted as a 746 punishment  under r. 14 of the Classification Rules and  not to  other  cases of compulsory retirement.  The  High  Court however accepted the contention of the respondent that r. 31 (vii)  (a)  of  the  Business Rules applied  to  a  case  of compulsory retirement under r. 244 (2) of the Service Rules, and as the papers had not been submitted to the Governor the order of compulsory retirement in the present case was  bad. It  therefore  allowed the writ petition and set  aside  the order. The main question that falls for consideration therefore  is whether a case of compulsory retirement under r. 244 (2)  of the Service Rules has to be submitted to the Governor  under r. 31(vii)(a) of the Business Rules.  There are three  kinds of  compulsory  retirement  provided in  the  various  rules relating  to  services in  Rajasthan.   Firstly,  compulsory retirement on proportionate pension is provided as a penalty under  r.  14 of the Classification Rules and  this  can  be ordered  whatever  may be the length of service of  a  civil servant.  Secondly, compulsory retirement is provided by  r. 56  of  the Service Rules as a matter of course on  a  civil servant  reaching  the age of super annuation,  namely,  5.5 years.   And thirdly, compulsory retirement may  be  ordered under.  r. 244(2) of the Service Rules which  provides  that the  Government  retains  an absolute right  to  retire  any government  servant  after  he has  completed  25  years  of qualifying  service without giving any reason and no’  claim to special compensation on this account will be entertained. This  right however will not be exercised except when it  is in public interest to dispense with the further service of a government servant.

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The contention on behalf of the respondent in the High Court was  that  all  kinds of compulsory retirement  have  to  be referred  to Governor under r. 31 (vii) (a) of the  Business Rules  and  reliance in this connection was  placed  on  the language of the  747 rule.   It is therefore necessary to set out r. 31 (vii)  in full.               "31.  The following classes of cases shall  be               submitted  to  the  Governor  and  the   Chief               Minister before the issue of orders               (i)             *          *          *               (ii)            *          *          *               (iii)           *          *          *               (iv)            *          *          *               (V)             *          *          *               (vi)            *          *          *               (vii)(a)  Proposals for dismissing,  removing               or  "compulsory retiring of any officer  where               the appointing authority is the Government.               (b)   Where  a review petition is proposed  to               be rejected and it is against an order  issued               after  submission to the Governor  under  item               (vii)(a) of Rule 31.               (c)   In a case where, on review, the Governor               decides to enhance the penalty already imposed               and the enhanced penalty is one of  dismissal,               removal or compulsory retirement of an officer               whose   appointing  authority   or   appellate               authority is Government." There  is  no  doubt that the  words  ""proposals  for...... compulsory  retiring  of any officer  where  the  appointing authority is the Government" appearing in item (vii) (a) are general and are not qualified by the words "as penalty"  and may  be open to the interpretation that all the three  kinds of  compulsory’ retirement mentioned above must be  referred to the 748 Governor.   But reading these words in item (vii)(a) in  the collocation  in which they appear it seems to us  that  when that item talks of " compulsory retiring of any officer"  it is  referring  to compulsory retirement as a  penalty.   The words "compulsory retiring of any officer" follow the  words "dismissing"  and " removing".  Now dismissing and  removing are penalties provided by r. 14 of the Classification  Rules and  it  seems to us therefore that in  the  collocation  in which  the  words  "compulsory  retiring"  appear  in   item (vii)(a) they must be read as a penalty like dismissing  and removing.   Besides  reference to cls. (b) and (c)  of  item (vii)  to  which the High Court did not refer at  all  would enforce  this  conclusion.  Clause (b) says that  ;,where  a review petition is proposed to be rejected and it is against an order issued after submission to the Governor under  item (vii)(a)  of Rule 31", the matter must  be referred  to  the Governor,  Clause (b) therefore refers to a review  petition relating to orders passed under item (vii)(a) for dismissal, removal  or compulsory retirement.  Now there can hardly  be any  reason for a review petition in the case of  compulsory retirement  on reaching the age of superannuation  ’i.e.  55 years  under r. 56. of the Service Rules.  We  further  find that review petitions are provided under the  Classification Rules  in Part VII and r. 34 of the Classification Rules  in particular provides for Governor’s powers to review.  It  is obvious  that when cl. (b) speaks of a review  petition,  it must  be  referring  to the review under  Part  VII  of  the

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Classification   Rules.   Clause  (b)  therefore  which   is confined  to cases under cl. (a) which speaks of  dismissal, removal  or compulsory retirement, shows that all these  are penalties as provided in r. 14 of the Classification  Rules. Further cl. (c) provides that "where, on review the Governor decides  to  enhance  the penalty already  imposed  and  the enhanced penalty -is one of dismissal, removal or compulsory retirement  of an officer" the matter must I be referred  to the Governor.  This  749 clause   makes  it  perfectly  clear  that  the   compulsory retirement  referred  to therein is a case  of  penalty  and there  can  in  our opinion be no doubt when  we  read  this clause  with  cl. (a) that compulsory  retirement  mentioned therein must also be of the nature of a penalty.  Taking all the three clauses of item (vii) as a whole, it appears  that item (vii) provides for a complete. scheme with reference to three  kinds  of penalties, namely, dismissal,  removal  and compulsory  retirement and makes it incumbent that cases  of this  kind  must  be referred to the  Governor.   We  cannot therefore   agree  with  the  High  Court  that   compulsory retirement provided in item (vii) (a) includes all the three kinds  of compulsory retirement.  It must therefore be  held that  the  contention  of  the  appellants  that  compulsory retirement   provided  in  item  (vii)  (a)  is   compulsory retirement as a penalty and not compulsory retirement of the other  two  kinds,  namely,  (1)  compulsory  retirement  on attaining  the  age  of superannuation  and  (2)  compulsory retirement  under  r.  244  (2),  neither  of  which  is   a punishment, is correct.  In particular Note 2 of r. 244  (2) makes  it  perfectly clear that action thereunder is  not  a penalty.  This is further made clear by Explanation (vi)  to r. 14 of the Classification Rules, which provides that "  If compulsory retirement of a Government servant in  accordance with  the  provisions  relating  to  his  superannuation  or retirement" is not a penalty.  Rule 56 of the Service  Rules is  a rule relating to superannuation and r. 244 (2) of  the Service  Rules is a rule relating to retirement and both  of them do not amount to penalties in view of this Explanation. We  are  therefore of opinion that r. 31 (vii) (a)  when  it speaks  of  compulsory  retiring of  an  officer  speaks  of compulsory  retirement  as.  a penalty  and  not  compulsory retirement on reaching the age of superannuation or under r. 244 (2).  It is therefore not necessary to submit the papers with  respect  to compulsory retirement  of  the  respondent under 750 244 (2) to the Governor.  This was the only ’round on  which the  High Court allowed the writ petition and therefore  the appeal must succeed. It is however urged on behalf of the respondent that r.  244 (2) of the Service Rules contemplates an order of compulsory retirement  by Government and the order in the present  case was  not  passed  by the Government  but  by  the  Inspector General  of  Police.  It is further urged that if it  is  an order of the Government it should be in the form required by Art. 166 of the Constitution, and as it is not in that  form there  is  in law no order of the  Government  ordering  the compulsory  retirement of the respondent.  The order  is  in these terms               "The   following  Inspectors  of  Police   are               compulsorily   retired  from  the   Government               service under Rule 244 (2) of P.S.R.                ..........................................."               (2)   Shri     Sripal    Jain     s/o     Shri

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             Sohanlal, C.I. Sanganer, Distt.  Jaipur.                ............................................" There  is  no  doubt  that this order is  not  in  the  form required under Art. 166 of the Constitution.  But it is well settled  that  any  defect of form in the  order  would  not necessarily make it illegal and the only consequence of  the order  not being in proper form as required by Art.  166  is that  the burden is thrown on ’the Government to  show  that the ’order was in fact passed by it.  It has been stated  on behalf  of  the appellants that the order  in  question  was communicated  by  the  Inspector General of  Police  on  the direction  of the Government.  It will be noticed  that  the order  is  in  the passive voice.  It does not  say  in  the active voice that the Inspector General of Police  751 ordered  the retirement of the officers  mentioned  therein, though  the  impression  that  a person  will  get  from  it certainly  is that the order of retirement was being  passed by  the Inspector General of Police.  Therefore, the  burden was  thrown because of this defect in the form of the  order on the appellants to show that in fact the order was  passed by the Government.  ’I hat has in our opinion been shown  by the  production  of  papers from the relevent  file  by  the appellants.  That shows that the recommendation of the high- powered Committee was approved by the Home Minister and  the Chief  Minister and the order of compulsory  retirement  was thus  passed  by  the  Government  of  Rajasthan.   In  this connection we may refer to r. 21 of the Business Rules.   It says that cases shall ordinarily be disposed of by or  under the authority of the Minister-in-charge except as  otherwise provided  by  any other rule.  The only  exception  is  r.31 (vii) (a) and that we have held does not apply to a case  of compulsory   retirement   under   r.   244   (2).In    these circumstances  the  order was of government  though  it  was communicated by the Inspector General of Police and its form was defective.  In the circumstances the order of retirement having  been passed by a proper authority cannot be said  to be invalid in law. It is further urged that under the Rajasthan General Clauses Act,  No.  VIII of 1955, "Government" or  "’the  Government" includes   both  the  Central  Government  and   any   State Government under s. 32  (33)  and  "’the  State  Government" means under s. 32  (75)  as  from  November  1,  1956,   the Governor,and  therefore when r. 244 (2) equires an order  by the  Government, there should be an order of  the  Governor. Definitions  under s. 32 are however to be read  subject  to anything  repugnant  in  the subject or context  or  to  any contrary  intention, and that makes us back to the  Business Rules  framed under Art. 166 of the Constitution, where  the power to deal with a 752 case  of this kind is given to the Minister-in-charge  under r. 21.  ’the definitions therefore of "Government" and ’,the State Government in the Rajasthan General Clauses Act are of no  help to the respondent once it is held that r. 31  (vii) (a)  of  the Business Rules when it  speaks  of  "compulsory retiring   of  any  officer"  refers  only   to   compulsory retirement  as a penalty under r. 14 of  the  Classification Rules and not to the two other kinds of retirement  (namely, superannuation under r. 56 or retirement under r. 244 (2) of the service Rules). The  appeal is therefore allowed and the order of  the  High Court  set aside.  In the circumstances we pass no order  as to costs.                                  Appeal allowed.

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