http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: A.L. AHUJA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT24/07/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J) KANIA, M.H.

CITATION:  1987 AIR 1907            1987 SCR  (3) 632  1987 SCC  (3) 604        JT 1987 (3)   148  1987 SCALE  (2)103

ACT:      Fundamental  Rule--R.56(j)(i)--Applies  to   Government servants in Class I or Class II Service or post, whether  on substantive, temporary or officiating basis.

HEADNOTE:     Fundamental Rule 56(j) confers power on the  appropriate authority to compulsorily retire a Government servant, if it is  in  the public interest to do so, by  giving  3  months’ notice  or  3  months’ pay and allowances in  lieu  of  such notice;  while  sub-cl.  (i) thereof states  that  a  public servant  in  class  I or class II service or  post  who  had entered service before attaining the age of 35 years can  be retired  after he has attained the age of 50 years,  sub-cl. (ii)  thereof  states that any other public servant  can  be retired after he has attained the age of 55 years. In  Union of India v. K.R. Tahiliani & Anr., this Court had held  that F.R. 56(j) 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. Basing his case on this decision, the  petitioner,  who had been  compulsorily  retired  while working  in  a  class II post In  an  officiating  capacity, challenged the order of his compulsory retirement.     Overruling the decision in Union of India v. K.R.  Tahi- liani & Anr., but, allowing the petition on the ground  that the Delhi High Court, relying upon that decision, had grant- ed  relief  to persons similarly placed as  the  petitioner, and, directing payment of his salary and allowances upto the date of his normal superannuation,     HELD:  Sub-clause  (1) of r. 56(j)  of  the  Fundamental Rules applies to Government servants in Class I or Class  II service  or  post on substantive, temporary  or  officiating basis. [638E-F]     There is no reference to officiating service in  sub-cl. (i). The relevant words used in sub-cl. (i) are "if he is in CIasa  I  or CIasa II service or post." A person can  be  in Class  I  or CIasa II service or post even when he  holds  a post  of  either ciasa substantively or  temporarily  or  on officiating basis. Instances are abundant where officers are promoted  to  CIasa I or Class II service or  post  of  such

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

class on officiating basis and 633 such  officiation lasts for a number of  years.  Officiating promotion certainly does not confer a right to the post  and at  any time the Government servant may be sent back to  his substantive  post. There is, however, no reason why  sub-cl. (i)  should be confined to service or post held on  substan- tive basis. It is not disputed that a person who is in Class I or Class II service or post is in such service or post  as covered  by sub-cl. (i). The possibility of  such  incumbent being sent back to the substantive post is not at all  rele- vant  in the matter of exercising powers of  compulsory  re- tirement.  If  the officiation is not brought to an  end  by reverting  the  Government servant to his  substantive  post before the power of compulsory retirement is exercised,  the Government servant concerned must be taken to be in Class  I or  Class II service or post at the relevant time and  would come  within the ambit of sub-cl. (i). There is  no  warrant for  the conclusion that officiating Government servants  in Class I or Class II service or post are outside the  purview of  sub-cl. (i). The possibility of a reversion to the  sub- stantive  post is not germane to the exercise of power  con- tained in F.R. 56. [637F-H; 638A-C]     The  purpose  of F.R. 56(j) is to confer  power  on  the appropriate  authority to compulsorily retire  a  Government servant  in  the public interest and the  classification  of Government servants into two categories covered by  sub-cls. (i)  and  (ii)  has a purpose behind it.  If  the  condition indicated  in sub-cl. (i) is satisfied, namely, the  Govern- ment  servant is in Class I or Class II service or post  and he  had entered into service before attaining the age of  35 years, and has attained the age of fifty, the further condi- tion that he must substantively belong to the two classes of service  or post cannot be introduced into the  scheme.  The purpose  of the sub-clauses is to classify Government  serv- ants  into two categories and sub-cl. (i) takes  within  its sweep those Government servants who at the relevant time are in Class I or Class II service or post, whether substantive- ly, temporarily or on officiating basis. [638C-E]      Union  of  India  v. K.R. Tahiliani &  Ant.,  [1980]  1 S.L.R. 847, over rulled.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 7338 of 1981. etc. (Under Article 32 of the Constitution of India). Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. G. Ramaswamy, Additional Solicitor General, R.P. Srivastava 634 and Miss. A. Subhashini for the Respondent. The Judgment of the Court was delivered by     RANGANATH  MISRA, J. The petitioner of this  application under Article 32 of the Constitution is an engineer who  was employed  in the Central Public Works Department  under  the Ministry of Works and Housing in Government of India and was compulsorily  retired  by order dated 3.8.1976  with  effect from  5.11.1976  made under Rule 56(j)  of  the  Fundamental Rules.  He  has assailed that order for retirement  and  has claimed  payment  of remuneration which he would  have  been entitled to draw upto the normal date of superannuation.     The  short facts are these. The petitioner was  born  on 10.2.1922  and  secured his first appointment as  a  Section Officer under the-named employer on 22.10.1947. He was  pro- moted as officiating Assistant Engineer in class II  service

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

with  effect from’ 25.5. 1954, and came to be  confirmed  as Section Officer by an order dated 8.10.1955. On 3.7.1961, he was  further promoted as officiating Executive  Engineer  in Class I service but on 4.9.1965, he was reverted to the post of  Assistant Engineer in officiating position and was  con- tinuing in that post when he was compulsorily retired.     The vires of Rule 56(j) of the Fundamental Rules as also the power to compulsorily retire a public servant have  been upheld  by this Court and do not require to be  re-examined. The basis of attack to the impugned order is as specified in Ground No. A and is to the following effect:               "The  impugned order is contrary to the  judg-               ment  delivered  by  this  Hon’ble  Court   on               26.2.1980,  copy at Annexure-C hereto.  (Union               of India v. K.R. Tahiliani and Anr.)-[1980]  1               SLR  847. According to the said judgment  F.R.               56  (j)(i) has no application  to  officiating               government servants, hence can have no  appli-               cation to the petitioner since the  petitioner               was an officiating government servant."               The impugned notice ran thus:-                                 "No. 32/452/66--EC. 111                                   Government of India                             Central Public Works Department                                                     New               Delhi, the 3.8.76               635                                         ORDER                        WHEREAS  the Engineer-in-Chief is  of               opinion  that it is in public interest  to  do               so:                        NOW,  THEREFORE, in exercise  of  the               powers  conferred by clause (j) of Rule 56  of               the  Fundamental Rules, the  Engineer-in-Chief               hereby  gives notice to Shri A.L.  Ahuja,  As-               sistant  Engineer  (Civil), at  present  under               suspension,  that he, having already  attained               the  age  of fifty years on  10.2.1972,  shall               retire  from  service  with  effect  from  the               forenoon  of 3rd November, 1976, or, from  the               date  of expiry of three months computed  from               the  date  of  issue of the  service  of  this               notice on him, whichever is latter.      Sd/                                                               (V.R .               VAISH)                                                          ENGINEER- IN-CHIEF               To               Shri A.L. Ahuja,               Assistant Engineer (Civil),               (Under Suspension),               A11/85, Lajpat Nagar,               New Delhi- 110024."     It is clear from it that the petitioner attained the age of 50 years on 10.2.1972 and, therefore, on the date of  the order  he had completed the age of 54 years. Admittedly,  he was  holding  a class II post when the  impugned  order  was served on him. Fundamental Rule 56(j) under which notice was given provides:-               "(j)  Notwithstanding  anything  contained  in               this rule, the appropriate authority shall, if               it is of the opinion that it is in the  public               interest so to do, have the absolute right  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             retire  any Government servant by  giving  him               notice of not less than three months in  writ-               ing  or  three months’ pay and  allowances  in               lieu of such notice;                        (i)  if he is in Class I or Class  II               service  or post (and had  entered  Government               service before attaining the age               636               of  thirty-five years), after he has  attained               the age of fifty years;                         (ii) in any other case after he  has               attained the age of fifty-five  years; ..........................................................." The  appropriate  authority is entitled  to  exercise  power under  clause  (j) in the case of a  Government  servant  in Class  I or Class II service or post where he  entered  into service before attaining the age of 35 years after the  said servant  attained  the age of 50 years; and in  other  cases after  he has attained the age of 55 years. In  the  instant case,  the petitioner was promoted as officiating  Assistant Engineer which is a Class II post on 25.5. 1954 and  contin- ued  to hold that post when the order of compulsory  retire- ment  was  passed. By 25.5.1954 the petitioner had  not  at- tained the age of 35 years.     As already indicated above he had crossed the age of  50 years  but had not attained the age of 55 years by the  date of  the  impugned order. Therefore, sub-clause (1)  was  not contravened  when  the order was made. It  has  been  argued before us that as the petitioner was holding an  officiating appointment in Class 117 he could not have been compulsorily retired under sub-clause (i).     Support is claimed from the observations in the Tahilia- ni’s  case (supra). The sole question that fell therein  for decision before this Court was whether a Government  servant officiating in Class I or Class II service or post could  be retired  compulsorily  by exercising the  power  under  Rule 56(j)(i) after he has attained the age of 50 years. The  two Judge Bench which decided the case held:-               "     An officiating hand has no right to  the               post  and is perhaps a fleeting. bird who  may               have  to go back to the substantive post  from               which  he has been promoted 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 a tempo-               rary  basis and it is obvious that he  has  no               right to the post and cannot be strictly  said               to  be in that service or post as a member  of               that service. In short, an officiating Govern-               ment servant does not really belong to Class I               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               637               service or post", emphasises the nature of the               service  or  post  vis-a-vis  the   Government               servant  concerned.  We need not go  into  the               semantic shapes, lexical niceties or  linguis-               tic nuance but only go through the meaning and               purpose  of the provision. When  a  Government               servant  belonging  to a Class I or  Class  II               service  or  post on regular basis has  to  be               retired  compulsorily, Rule 56(j)(i) comes  to               the  rescue  of the Government. But if  he  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

             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) is meant to cover only those who are  in               a post on a regular basis, i.e. in a  substan-               tive capacity, and not on an officiating basis               only."     Strong reliance was placed by counsel for the petitioner on the reasons extracted above.     It  is  clear that sub-clause (ii) is the  general  rule applicable  to  all Government servants and  sub-clause  (i) carves  out a class of Government servants into  a  category and  makes  a special provision. We have  already  indicated that sub-clause (ii) did not apply to the facts of this case as  the petitioner had not attained the age of 55  years  by the date of the order. The observations made in  Tahiliani’s case  indisputably support the petitioner. But the  correct- ness  thereof  is disputed by learned  Additional  Solicitor General  appearing  for the Union of India and that  is  why this  writ  petition was directed to be heard  by  a  larger Bench.     There  is  no reference to officiating service  in  sub- clause  (i). The relevant words used in sub-clause  (i)  are "if he is in Class I or Class II service or post". A  person can  be in Class I or Class II service or post even when  he hold a post of either class substantively or temporarily  or on officiating basis. Instances are abundant where  officers are promoted to Class I or Class II service or post of  such class on officiating basis and such officiation lasts for  a number  of years. Officiating promotion certainly  does  not confer  a right to the post and at any time  the  Government servant may be sent back to his substantive post. There  is, however, no reasons why sub-clause (i) should be confined to service  or post held on substantive basis. Learned  counsel for  the  petitioner does not dispute the  position  that  a person  who is in Class I or Class II service or post is  in such  service  or  post as covered by  sub-clause  (i).  The possibility of such incumbent being sent back to the 638 substantive  post  is not at all relevant in the  matter  of exercising powers of compulsory retirement. If the  officia- tion  is not brought to an end by reverting  the  Government servant to his substantive post before the power of  compul- sory  retirement is exercised, the Government  servant  con- cerned must be taken to be in Class I or Class II service or post at the relevant time and would come within the ambit of sub-clause (i). There is no warrant for the conclusion  that officiating  Government  servants  in Class I  or  Class  II service  or post are outside the purview of sub-clause  (i). The  possibility of a reversion to the substantive  post  is not  germane to the exercise of power contained in F.R.  56. The purpose of Fundamental Rules 56(j) is to confer power on the appropriate authority to compulsorily retire  Government servant  in  the public interest and the  classification  of Government  servants  into two categories  covered  by  sub- clauses (i) and (ii) has a purpose behind it. If the  condi- tion  indicated in sub-clause (i) is satisfied, namely,  the Government servant is in Class I or Class II service or post and he had entered into service before attaining the age  of 35  years,  and has attained the age of fifty,  the  further condition  that  he  must substantively belong  to  the  two classes  of  service or post cannot be introduced  into  the scheme.  The purpose of the sub-clauses is to classify  Gov-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

ernment  servants  into two categories  and  sub-clause  (i) takes within its sweep those Government servants who at  the relevant  time are in Class I or Class II service  or  post, whether substantively, temporarily or on officiating basis.     We would accordingly hold that the ratio of the decision in  Tahiliani’s  case is not correct and sub-clause  (i)  of Rule  56(j)  applies to Government servants in  Class  I  or Class II service or post on substantive, temporary or  offi- ciating basis.     On  this  conclusion the writ petition is liable  to  be dismissed. It has been represented to us by counsel for  the petitioner that the similarly placed persons had gone before the  Delhi High Court challenging the orders  of  compulsory retirement and the Delhi High Court relying upon Tahiliani’s case give them relief. Such judgments have become final  and Union  of  India has given effect to the  decisions  of  the Delhi  High Court. When this was put to  learned  Additional Solicitor  General  he agreed that the Union of  India  will have no objection to treat the petitioner alike and would be prepared to give the same relief to the petitioner.     The petitioner would have superannuated from service  on 29.2.1980  if  he  had not been  compulsorily  retired  with effect from 639 5.11.  1976.  Even if the writ petition is allowed  and  the order  of compulsory retirement is set aside the  petitioner cannot  go  back  to service. But he would  be  entitled  to pecuniary benefit of salary and allowances admissible  under the  rules.  Accordingly,  we allow  the.writ  petition  and direct  the respondent to pay to the petitioner  the  salary and  other allowances which would have been payable for  the period  between 5.11. 1976 and 29.2. 1980. Such  payment  be made  within two months from today. There will be  no  order for costs. WRIT PETITION NOS. 6251 & 8189 OF 1981     Each  of the petitioners in these two writ  applications under  Article  32 of the Constitution was employed  in  the Central Public Works Department in the Ministry of Works and Housing  of  Government of India and has  been  compulsorily retired  under Fundamental Rule 56(j). The facts of each  of these applications are more or less similar to those in Writ Petition  No. 7338 of 1981 which we have disposed of  today. For  the  reasons given therein we allow each  of  the  writ petitions and quash the order of compulsory retirement  made against each of the petitioners. By now both the petitioners would have retired from service and, therefore, they  cannot be resorted in service. They would, however, be entitled  to salary and other service allowances payable to them from the date of compulsory retirement till the date of their  normal superannuation. There will be no order for costs. H.L.C.                                   Petition allowed. 640