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PETITIONER: THE STATE OF MYSORE

       Vs.

RESPONDENT: C. N. VIJENDRA RAO

DATE OF JUDGMENT24/10/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SARKARIA, RANJIT SINGH GUPTA, A.C.

CITATION:  1976 AIR  477            1976 SCR  (2) 321  1976 SCC  (1) 286

ACT:      Civil Servant-Suspension  and  continuance  in  service beyond date  of superannuation-No misconduct proved-Order of Government  deeming   him  to   have  retired  on  attaining superannuation-Validity.

HEADNOTE:      Under r.  95(b) of  the Mysore  Civil Service  Rules, a Government  servant   under  suspension   on  a   charge  of misconduct shall  not be  required or permitted to retire on reaching the  age of superannuation but shall be retained in service till  the enquiry into the charge is conducted and a final order  is passed.  Rule 95(b) was repeated on March 2, 1965.      The respondent was placed under suspension in February, 1961, and  though he  was due to retire on January 24, 1962, he was  continued in  service by  reason of  r.  95  (b)  to facilitate a  departmental enquiry.  No departmental  action was, however,  taken against  him, but he was prosecuted. He was acquitted  in June, 1966. On January 24, 1967, the State Government passed  an order that he should be deemed to have retired from  service on  January 24,  1962. The  High Court allowed his  writ petition  holding that  he was entitled to draw his salary till March 2, 1965.      Dismissing the appeal to this Court. ^      HELD :  (1) There  is no  finding of  misconduct nor is there a  verdict of  guilt against the respondent. Since the order of  suspension was a bar to his compulsory retirement, he  continued   in  service   till  January  24,  1967.  The Government cannot  go back  on that  position and retire him retrospectively with  effect  from  the  date  on  which  he attained the age of 55. [322 H-323 B]      (2) The repeal of the rule has no retrospective effect. Whatever action  was taken  by the Government under r. 95(b) while that  rule was  on the statute book, would continue to be valid.  The physical  fact  of  the  respondent’s  lawful continuance in  service cannot  be wiped  out by imagining a putative state of affairs. [323 C-E]      (3)  But,  the  respondent’s  contention  that  he  was entitled to  draw salary, not till the date of the repeal of

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the rule,  but till January, 1967, cannot be upheld because, he  had  not  filed  a  cross-appeal  against  the  judgment repelling his claim. [323 F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 167 of 1969.      Appeal by  Special Leave  from the  Judgment and  Order dated the  24th June,  1968 of  the Karnataka  High Court at Bangalore in Writ Petition No. 1096/67.      Narayan Nettar for the Appellant.      B. R. G. K. Anchar for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD,  J.   On  January   27,  1961   the  Chief Conservator  of  Forests,  Mysore,  sent  a  letter  to  the Government  of   Mysore  stating  that  large-scale  illicit cutting of sandalwood trees in the Forests of Sandur 322 Range had caused a huge loss to the Government and that such devastation of  forests could not have been possible without the connivance of the respondent, C. N. Vijedra Rao, who was working as  the Divisional Forest Officer. By an order dated February 16,  1961  the  Government  of  Mysore  placed  the respondent under suspension ‘pending inquiry’, in order that he may  not interfere  with the  conduct of  the inquiry  or tamper with the documentary evidence.      The respondent was later prosecuted under section 120-B of the  Penal Code on the charge that he, along with others, had conspired  to smuggle  sandalwood. On  June 17, 1966 the First Class Magistrate, Bellary, acquitted the respondent.      On January  24, 1967 the Government of Mysore passed an order that  the respondent  should be  deemed to  have  been retired from  service on  January 24, 1962 being the date on which, on  his completion  of the 55th year, he had attained the age  of superannuation.  On May  23, 1967 the respondent filed  a   writ  petition   in  the  High  Court  of  Mysore challenging the  validity of  the aforesaid  order. The writ petition was substantially allowed by the High Court on June 24, 1968. This appeal by special leave is filed by the State of Mysore against the judgment of the High Court.      Rule 95(b)  of the  Mysore Civil Services, which was in operation at  the relevant time, provided that "a Government servant under suspension on a charge of misconduct shall not be required  or permitted  to retire on reaching the date of compulsory retirement, but shall be retained in service till the enquiry  into the  charge is concluded and a final order is passed  thereon by  a competent authority." The period of such retention  in service  after  the  date  of  compulsory retirement was  not to count for pension. The respondent was placed under  suspension on  February 16, 1961 and though he was due  to retire  on January  24, 1962 he was continued in service by  reason of  Rule 95(b). That rule was repealed on March 2,  1965 and  it would  appear that  the Government of Mysore came  to pass  the impugned  order on the supposition that the  repeal of  the Rule was enough to lend validity to the order.      We are  unable to  appreciate how  the deletion of Rule 95(b)  could   confer  upon  the  Government  any  right  or authority to  direct that the respondent should be deemed to have retired  on the  date  when  he  attained  the  age  of superannuation. The respondent, perhaps, would have been too willing to  retire on  completing his 55th year because that was some  means, though  dubious, of  avoiding the  proposed

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inquiry  into  his  conduct.  Relying  on  Rule  95(b),  the Government retained  him in  service even  after the date of superannuation and  directed that  he would  be entitled  to draw subsistence  allowance until  the expiry  of a  certain period or  till the  completion  of  the  proposed  inquiry, whichever was  earlier. The  prosecution ended  in favour of the respondent and we might mention that the judgment of the learned Magistrate,  was confirmed  by the Mysore High Court on July  22, 1968.  Never  did  the  Government  initiate  a departmental inquiry  against the respondent with the result that there  is neither a finding of misconduct nor a verdict of guilt  against him.  Under Rule 95(a) it was competent to the 323 Government to  continue the  respondent in service after the date of superannuation, though for special reasons, and Rule 95(b) forbade  the respondent  from  retiring  from  service during the  period of  suspension, even on reaching the date of superannuation.  The order of suspension which was passed against  the   respondent  in   order  to   facilitate   the departmental inquiry  (which, however,  was never held) was, in a manner of speaking, a bar to his compulsory retirement. Thus, the  respondent under  the order  passed by  the State Government, continued  to be  in its  services until January 24, 1967. The Government cannot go back on that position and retire the  respondent retrospectively  with effect from the date on which he attained the age of 55.      It  was  contended  by  the  learned  counsel  for  the appellant, the  State of  Mysore, that  the repeal  of  Rule 95(b) must  be deemed  to have  retrospective effect  and we must proceed  on the  basis that the particular rule did not ever exist.  In the  first place,  such an  argument was not made in  the High  Court. But assuming that it raises a pure question of  law and  may therefore be permitted to be taken for the  first time  now, we find it impossible to read even the semblance  of retrospectively in the repeal of the Rule. It does  not behove  the appellant  to say  that though  the respondent was  continued in  its service under its specific orders, the  court should  hold that, fictionally, he ceased to be  in service. Besides, whatever action was taken by the Government under  Rule 95(b)  while that  rule  was  on  the statute book,  would continue to be valid. The physical fact of the  respondent’s  continuance  in  service,  and  lawful continuance at  that, cannot  be wiped  out by  imagining  a putative state of affairs.      The High Court was therefore right in allowing the writ petition  and   granting  the   necessary  relief   to   the respondent. The  High Court  did not allow the respondent to draw his  salary till  the date  of the  impugned order  but limited his right in that behalf to the date that Rule 95(b) was repealed.  Respondent’s counsel  attempted to  argue for the enlargement  of the relief awarded by the High Court but in the  absence of  a cross-appeal, no further relief can be awarded  to  the  respondent.  A  respondent  may  certainly support the  decree or  order in his favour on grounds other than those  on which  the decree  or order is founded but he cannot ask  for a  larger relief in the absence of an appeal against the partial rejection of his claim.      The appeal  accordingly fails  and  is  dismissed  with costs. V.P.S.                                     Appeal dismissed. 324