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PETITIONER: BATAHARI JENA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT05/04/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. (CJ) HEGDE, K.S. GROVER, A.N. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 1516            1971 SCR  392  1971 SCC  (2) 232  CITATOR INFO :  RF         1973 SC 698  (5)

ACT: Civil Service-Orissa-Age of superannuation raised from 55 to 58  years  by  Government resolution  dated  May  21,  1963- Liberalised Pension Rules did not have effect that  employee should  have  put  in 30 years service before  he  could  be retired   at  55-Guidlines  to  Heads  of  the   Departments mentioning inter alia that an officer lacking integrity  may be  retired at 55 This did not cast stigma on every  officer who  was  retired at 55-Article 311(2) of  Constitution  not attracted.

HEADNOTE: The  appellant  who was born on January 1,1910  entered  the service  of the former Indian State of Mayurbhanj in  Orissa as an engineer on 1st November 1937.  On the merger of  that State  with  the Province of Orissa on January  1,  1949  he became  an  officer  of  the said  province.   ’The  age  of superannuation of Government employees in Orissa was then 55 years.   On May 21, 1963 the Government of Orissa  passed  a resolution  raising the age of compulsory retirement  to  58 years  with  effect  from December 1, 1962.   The  power  of Government to retire an employee at the age of 55 years  was however  retained  and so was the right of the  employee  to voluntarily  retire  at  that  age  after  giving  requisite notice.  The resolution aforesaid also stated that the above provision  will  be in addition to  the  provisions  already contained  in  the Liberalised Pension  Rules  according  to which  Government could compulsorily retire an employee  who had  put  in 30 years service, the employee  also  having  a corresponding  right  to  retire after the  said  period  of service.   On February 5, 1954 a notification was issued  by the Government of Orissa laying down inter alia that in  any case  where Government had reasonable cause to believe  that employee  lacked  integrity  it  would  be  appropriate   to determine  upon  his  retirement.   On  July  14,  1964  the appellant  was asked to retire from Government service  with effect  from  January  1,  1965.   His  representation   for

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reconsideration was not accepted.  His writ petition in  the High Court was rejected.  By certificate the appellant  came to this Court contending (i) that in view of the Liberalised Pension  Rules  he  could  not  be  retired  before  he  had completed  30 years of service, and (ii) that having  regard to the criteria laid down by the notification dated February 5, 1964 the order of retirement cast a stigma on him and  as such was violative of Art. 311 of the Constitution. HELD:     (i)  Before  May  21,  1963  an  employee  of  the Government of Orissa would have been due for  superannuation when  he attained the age of 55 years whether he had or  had not put in thirty years qualifying service.  Government  had before  the said date an option to ask him to retire  if  he had completed 30 years qualifying service even though he had not reached the age of fifty five years; correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years’  qualifying service  to  his  credit.  The resolution of  May  21,  1963 raised  the  age  of  superannuation  from  55  to  58   but nevertheless  under  paragraph  3  thereof  the   Government reserved  to  itself a right to ask any employee  to  retire when he attained the age of 55 years without assigning 3 53 any  reason.  Correspondingly the employee was not bound  to continue in service beyond the age of fifty years unless  he wanted it.  There was no alteration in the rule under  which a Government servant could voluntarily retire or be asked to retire  in  a  case  when he  had  completed  thirty  years’ service.  In other words, the right of Government to require an  officer to retire at any time after he had completed  30 years’  service was and still remained intact.   This  right which  was not linked with the age of superannuation  before May 1963 remained unaffected even after that date.  Although the  age  of superannuation was raised from 55 to  58  years Government  armed  itself  with the  power  to  require  any employee  to  retire when he attained the age  of  55  years without  assigning  any reason.  The  petitioner’s  argument based  on  the fact that he had not completed 30  years’  of service, must therefore, fail. [355H-356E] (ii) Since   the  age  of  superannuation  fixed   was   not unaccountably  early there was no violation of Art.  311(2). [358D] Gurdev Singh.Sidhu v. State of Punjab, [1964] 7 S.C.R.  587,               593.  Satish Chandra Anand v. Union of  India,               [1953]  S.C.R. 665 and Moti Ram Deka  etc.  v.               General  Manager,  North  East  Frontier  Rly.               [1964] 5 S.C.R. 683, discussed. (iii)     Nor  was  Art. 311 attracted by any  aspersion  or stigma  cast  on the appellant by the order dated  July  14, 1964.   Under paragraph 3 of the resolution of May 21,  1963 the Government had a right to require any Government servant to  retire  at the age of’ 55 without assigning  an  reason. The  fact that by notification of 5th February 1964  certain guidelines  were  indicated to the Heads of  Departments  in considering whether a Government servant should continue  in service beyond the age of 55 years, one of the factors being lack  of  integrity, did not imply that  any  officer  whose continuance  in, service was not advised  lacked  integrity. On  the  facts  of the case it could not be  said  that  any aspersion .was cast on the appellant. [358F-G] The appeal must accordingly be dismissed.

JUDGMENT:

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CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1064  of 1967. Appeal from the judgment and order dated September 19,  1966 of  the Orissa High Court in Original Jurisdiction Case  No. 208 of 1964. S.   V. Gupte, and B. P. Maheshwari, for the appellant. R. Gopalakrishnan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Mitter,  J.-This  is an appeal from a judgment of  the  High Court  of  Orissa  rejecting a Writ Petition  filed  by  the appellant for quashing the order of the Government passed on him  on  July 14, 1964 informing him that he was  to  retire from  Government service on 1st January, 1965 when he  would reach the age of 55 years. 23--1 S.C. India/71 354 The  facts  are shortly as follows.  The appellant  who  was born  on January 1, 1910 entered the service of  the  former Indian  State of Mayurbhanj in Orissa as an engineer on  1st November 1937.  He was in the employment of that State up to December  31,  1948.  On the merger of that State  with  the Province  of Orissa on January 1, 1949 he became an  officer of  the  said  Province.   The  age  of  superannuation   of Government  employees in Orissa was then 55 years.   On  May 21,  1963 the Government of Orissa passed a  resolution  the relevant portion whereof ran as follows:-               "1.  The  question  of  raising  the  age   of               compulsory retirement of the State Government’               employees has been under the consideration  of Gover nment for some time past. . . .               2.    After careful consideration,  Government               have  now.decided that the age  of  compulsory               retirement for the State Government  employees               should  be  raised from 55 years to  58  years               with effect from 1-12-1962. . .               3.    Notwithstanding  anything  contained  in               the   preceding  paragraph,   the   appointing               authority may require a Government servant  to               retire after he attains the age of 55 years on               three  months’  previous  notice  in   writing               without assigning any reason.  The  Government               servants  also may after attaining the age  of               55  years, voluntarily retire by giving  three               months’  notice to the  appointing  authority.               The  powers  to retire  a  Government  servant               under   this   provision  will   normally   be               exercised  to  weed out  unsuitable  employees               after they have attained the age of 55 years.               4.    This  provision will be in  addition  to               the provisions already contained in rule 2  in               section  1  of the Liberalised  Pension  Rules               issued    with    the    Finance    Department               Resolution . . . according to which:               (a)   the Government may require an officer to               retire  any  time after he has,  completed  30               years  qualifying  service  by  giving  him  a               notice in writing at least three months before               the date on which be required to retire, and               (b)   a  Government  servant may  retire  from               service  any  time after completing  30  years               qualifying  service  by  giving  a  notice  in               writing to the appropriate authority at least               three  months  before  the date  on  which  he               wishes to retire." On February 5, 1964 a notification was issued by the Govern-

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ment of Orissa in connection with the above laying down the 355 criteria and procedure to be adopted to ensure uniformity of operation of the rule mentioned in paragraph 3 of the  above resolution  and  also  equitable  treatment  in  all  cases. Speaking broadly, the idea behind the notification was  that (1)  the service record of an officer was to be  scrutinised six months before he was due to attain the age of fifty five years, (2) in any case where Government had reasonable cause to  believe  that  he  lacked  in  integrity  it  would   be appropriate  to determine upon his retirement, (3) where  an officer’s  integrity  was  not in  doubt  but  his  physical or  .mental condition was such, as to make  him  inefficient for  further service the same result would follow, ’and  (4) an  officer  whose  performance  was  considered  as   below "average" should not be allowed to work after the age of 55. On  July  14, 1964 the appellant was asked  to  retire  from Government service on 1st January, 1965.  His representation for  reconsideration  was not accepted.  He  filed  a  Writ Petition  in the High Court on December 21, 1964.  This  was rejected’  by  the High Court on September  19,  1966.   The appellant has come up by certificate to this Court. Counsel for the appellant raised only two points in  support ,of  the  appeal.  His first submission was  that  as,  the, appellant bad not completed 30 years’ service on January  1, 1965  he could not be asked. to retire on that date  :  and, secondly.  having regard to the criteria laid down  by  the notification dated February 5, 1964 the order of  retirement dated  July 14, 1964 cast a stigma ,on him and as  such  was violative  of  the  protection  given by  Art.  III  of  the Constitution. The  submission  of learned counsel on the  first  head  was based on his construction of the resolution of May 21, 1963. It  was  urged  that.,  as  the  power  of  the   appointing authority,  under paragraph 3 of that resolution  to  retire the  appellant  after he attained the age of  55  years  was described  as "in addition to the provisions  contained  in rule  2 in section I of the Liberalised Pension Rules  under which  Government might require an officer to retire at  any time after he had completed 30 years qualifying service, the new  provision  was  to be treated  as  super-added  to  the pension  Rules and no Government servant could be  asked  to retire  at the age of 55 unless he had completed  30  year’s qualifying  service.   As  there was  no  dispute  that  the appellant had not completed 30 years of such service on 1st January  .1965 It was urged on behalf of the appellant  that Government  could  not  resort to paragraph 3  of  the  said resolution. In our view the above contention cannot be accepted.  Before May  21, 1963 an employee of the Government of Orissa  would have been due for superannuation when he attained the 356 age  of  55 years whether he had or had not  put  in  thirty years’  qualifying service.  Government had before the  said date  an option to ask him to retire if he had completed  30 years qualifying service even though he has not reached  the age of fifty five years: correspondingly the officer had the right to retire if he wanted to do so before he reached  the age mentioned if he had 30 years’ qualifying service to  his credit.   Fifty five years was the outside limit of  age  to which   an   officer   was   permitted   to   work    before superannuation.   The resolution of May 21, 1963 raised  the age  of superannuation from 55 to 58 but nevertheless  under paragraph  3  thereof the Government reserved  to  itself  a right to ask any employee to retire when he attained the age

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of  55  years without assigning any reason.  This  was.  not unilateral.  A Government servant was not bound to  continue in  service  beyond the age of fifty five years  unless  he; wanted it.  There was no alteration in the rule under  which a  Government servant could voluntarily retire or  be  asked ’to  retire in a case where he had completed  thirty  years’ service.  In other words, the right of Government to require an  officer to retire at any time after he had completed  30 years’  service was and still remained intact.   This  right which  was not linked with the age of superannuation  before May 1963 remained unaffected even after that date.  Although the  age of superannuation ’was raised from 55 to  58  years Government  armed  itself  with the  power  to  require  any employee  to  retire when he attained the age  of  55  years without assigning any reason. Reliance  was       aced  on  certain  observations  in  the decision  of  this Court in Gurdev Singh Sidhu v.  State  of Punjab  and  Another  (1).  There  this  Court  struck  down article-’  91 of the Pepsu Service Regulations  under  which the Government sought to retain an absolute right to. retire any  Government  servant after he had completed  ten  years’ qualifying service without giving any reason.  In that  case the  petitioner  who  had been  appointed  as  an  Assistant Superintendent  of Police in the erstwhile Patiala State  on February  4.  1942  and  confirmed  in  that  rank  on   the occurrence of a regular vacancy after undergoing  practical district  training courses, and after promotion to the  rank of  Superintendent of Police in an officiating  capacity  in February  1950 in the said State of Pepsu, was  asked,  to,, show  cause by notice dated March 25, 1963 as  to  why  he should   tot  be  compulsorily  retired.   The   petitioner. complained that the notice issued to him was invalid on  the ground  that  the article on which it was based  was  itself ultra  vires  and inoperative and the only  question  before this Court was whether the impugned article was shown to  be constitutionally invalid.  Referring to Satish Chandra Anand v.  The  Union  of  India(2) and to  certain  dicta  of  the majority Judges in Moti Ram (1) [1964] 7 S.C. R. 587 at 593. (2) [1963] S.C.R.655. 357 Deka  etc.  v.  The General  Manager,  North  East  Frontier Railway  etc.(1) this Court observed by way  of  explanation that:               ".  the majority judgment took the  precaution               of adding a note of caution that if a rule  of               compulsory   retirement  purported   to   give               authority  to the Government to terminate  the               services  of a permanent public, servant at  a               very  early stage of his career, the  question               about the validity of  such a rule may have to               be  examined.   That is how in  accepting  the               view that a rule of compulsory retirement  can               be  treated  as valid and as  constituting  an               exception   to  the  general  rule  that   the               termination  of  the services of  a  permanent               public  servant  would amount to  his  removal               under  Art. 311(2), this Court added  a  rider               and  made  it  perfectly  clear  that  if  the               minimum period of service which was prescribed               by,  the relevant rules upheld by the  earlier               decisions  was  25  years,  it  could  not  be               unreasonably reduced in that behalf.  In other               words,  the majority judgment  indicates  that               what influenced the decision was the fact that

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             a,  fairly  large number, of  years  had  been               prescribed  by  the  rule  of  compulsory  re-               tirement as constituting the minimum period of               service after which alone the said rule  could               be invoked."               The Court further observed (see p. 594) that:               "The  safeguard which Art. 311(2)  affords  to               permanent public servants is no more than this               that  ’in  case  it is  intended  to  dismiss,               remove  or reduce them’ in rank, a  reasonable               opportunity  should  be,  given  to  them   of               showing  cause against the action proposed  to               be  taken  in  regard to them.   A  claim  for               security  to tenure does not mean security  of               tenure for dishonest, corrupt, or  inefficient               public  servants.   The claim  merely  insists               that  before they are removed,  the  permanent               public servants should be given an opportunity               to meet the charge on which they are sought to               be removed.  Therefore it seems that only  two               exceptions can be treated as valid in  dealing               With;  the scope and effect of the  protection               afforded  by  Art.  311(2).   If  a  permanent               public  servant  is  asked to  retire  on  the                             ground   that  he  has  reached  the  age   of               superannuation   which  has  been   reasonably               fixed,  Art.  311(2) does not  apply,  because               such,  retirement  is  neither  dismissal  nor               removal of the public servant.  If a permanent               public  servant is compulsorily retired  under               the  rules which prescribe the normal  age  of               superannuation  and provide for  a  reasonably               long period of qualified service               (1)   [1964] 5 S. C. R. 683.               358               after which alone compulsory retirement can be               ordered,   that  again  may  not   amount   to               dismissal or removal under Art. 311(2)  mainly               because that is the effect of a long series of               decisions of this Court.  But where while  re-               serving the power to the State to compulsorily               retire  a permanent public servant, a rule  is               framed    prescribing   a   proper   age    of               superannuation,  and  another  rule  is  added               giving the power to the State to  compulsorily               retire a public servant at the end of 10 years               of  his  service, that cannot,  we  think,  be               treated  as failing outside Art. 311(2).   The               termination  of  the service  of  a  permanent               public  servant  under  such  a  rule,  though               called    compulsory   retirement,   is,    in               substance, removal under Art. 311(2)." in  our View the above observations relied on by counsel  do not help the appellant.  The above observations show that  a rule which permits a Government to ask an officer to  retire after  an unreasonably short period of service  much  before the normal age of superannuation would be, hit by Art.  311. They  cannot  apply when the period  of  qualifying  service mentioned  in  the rule is not unreasonably  short  and  the normal  age  of superannuation fixed  is  not  unaccountably early. Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years’ qualifying service or not.  The fact that the age  of

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superannuation  was  raised from 55 to 58  while  Government reserved to itself a right to ask any employee to retire  at the age of 55 does not violate Art. 311(2). On the second point it is enough to point out that the order of  July 14, 1964 did not cast any aspersions or  stigma  on the appellant which would attract Art. 311.  Under paragraph 3  of  the resolution mentioned Government had  a  right  to require  any Government servant to retire at the age  of  55 without  assigning  any  reason.   The  fact  that  by   the notification  of 5th February 1964 certain  guidelines  were indicated  to  the  Heads  of  Departments  ’in  considering whether  a  Government servant should  continue  in  service beyond  the  age  of  55  years,  one  of  the  factors  for consideration  being lack of integrity, did not  imply  that any  officer  whose continuance in service was  not  advised lacked  in integrity.  On the facts of this case, we  cannot say that any evil aspersion was cast on the appellant. In the result we must hold that there has been no  violation of  Art.  311  of the Constitution and the  appeal  must  be dismissed with costs. G.C.                            Appeal dismissed. 359