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PETITIONER: DHARAM DEV MEHTA

       Vs.

RESPONDENT: THE UNION OF INDIA & OTHERS

DATE OF JUDGMENT20/12/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR  557            1980 SCR  (2) 554  1980 SCC  (2) 205

ACT:      Compulsory retirement-Appointing  authority as per Rule 2(a) of  C.C.S (CCA)  Rules 1965  is Comptroller  &  Auditor General of  India-Compulsory  retirement  orders  under  F.R 56(j) issued by the Director of Commercial Audit is contrary to law and illegal.

HEADNOTE:      Allowing the appeal by special leave, the Court, ^      HELD. Rule  2(a) of  the C.C.S.  (C.C.A.)  Rules,  1965 states, after  setting out alternative authorities, that the appointing authority  is one  out of  four categories who is the highest, by using the expression "whichever authority is the highest".  There is no doubt that of the four classes of authorities listed  under Rule  2(a), the  one falling under sub-rule (iii)  viz. Comptroller  & Auditor  General (in the present case)  is the  highest. Therefore  the order  of the retirement to  be legal  must be issued by the Comptroller & Auditor General.  The impugned order of retirement issued by the Director  of  the  Commercial  Audit  who  is  a  lesser official is contrary to law. On account of the contravention of F.R.  56(j) read  with rule  2(a) of  the C.C.S. (C.C.A.) Rules, 1965, the retirement is illegal. [555 E-G, 556 B] Observation:      Administrative  law   is   a   course   necessary   for      administrative officers  at the  highest levels so that      such flaws may not vitiate orders they pass.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 174 of 1976.      Appeal by  Special Leave  from the  Judgment and  order dated 1-11-1974 of the Delhi High Court in L.P.A. No. 19/71.      P. P.  Rao, A.  K. Ganguli and R. Venkataramani for the Appellant.      T.  A.   Francis  and   Miss  A.   Subhashini  for  the Respondents.      The Judgment of the Court was delivered by      KRISHNA IYER,  J:-This appeal by special leave raises a

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short question  as to whether the appellant, who was retired under Rule  56(j) of the Fundamental Rules was so retired by a competent  authority contemplated  by the rule. Admittedly he was appointed by the Comptroller and Auditor General. The only point  that arises  or, at  any rate,  we are concerned with is, as to whether the retirement order is in conformity with Rule  2(a) of  the  C.C.S.  (C.C.A.)  Rules  1965.  The appointing 555 authority  according   to  Rule   56(j)  is   the  competent authority. Who  then, is  the appointing  authority  in  the context of  this case? The answer is to be sought under Rule 2(a) which reads thus:           "In these  rules, unless  the  context  otherwise,      requires           2  (a)  appointing  authority  in  relation  to  a      Government servant means-           (i) the  authority empowered  to make appointments      to the  Service of  which the Government servant is for      the time  being a member or to the grade of the Service      in which  the Government  servant is for the time being      included, or           (ii) the authority, empowered to make appointments      to the  post which  the Government servant for the time      being holds, or           (iii) the authority which appointed the Government      servant to such Service, grade or post, as the case may      be, or           (iv) where  the Government  servant having  been a      permanent  member   of  any  other  service  of  having      substantively held  any other  permanent post, has been      in  continuous   employment  of   the  Government   the      authority which appointed him to that service or to any      grade in that service or to that post.      whichever authority is the highest authority."      The most  significant part  of the  rule states,  after setting out  alternative authorities,  that  the  appointing authority is  one out  of these  four categories  who is the highest. This  is emphatically brought out by the expression "whichever authority is the highest". There is no doubt that among the  four classes  of authorities  listed  under  Rule 2(a), the  one falling under sub-rule (iii) viz. Comptroller and Auditor general (in the present case) is the highest. It evidently follows-that  the order of retirement to be legal, must be  issued by  the Comptroller and Auditor General, but actually the  impugned order of retirement was issued by the Director  of   Commercial  Audit.   In  fact  the  order  of retirement runs thus:           "Whereas the  Director of  Commercial Audit  is of      the opinion  that it is in the public interest to to do      so.. " Obviously the  Director of  Commercial  Audit  is  a  lesser official. The conclusion is, therefore, inescapable that the compulsory retirement is contrary to law. 556      The High  Court, in  its extensive judgment, considered the scheme  of the  rules and, indeed, referred to the point mentioned above  but after highlighting this question as one most emphasised by the appellant, has slurred over the point and  proceeded   to  discussion  of  other  issues.  We  are concerned with  the vital-perhaps  the fatal-aspect  of  the order which  has not  received due attention at the hands of the  High   Court.  In   this  view,   on  account   of  the contravention of  F.R. 56(j)  read with  Rule  2(a)  of  the (C.C.A.), we  are constrained to come to the conclusion that

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the retirement is illegal.      The appellant  has  already  become  suparannuated  and therefore, he  will be  eligible to  his salary (by which we mean to  include other  allowances automatically  admissible and going  with salary)  for the  period between the date of compulsory retirement  and the date of actual superannuation at the age of 58.      It is  unfortunate that  this  legal  flaw  has  proved fatal.  Administrative   law  is   a  course  necessary  for administrative officers  at the  highest levels so that such flaws  may   not  vitiate   orders  they   pass.  Eventually Government is  put to  considerable loss  for no fault of it except that  no proper  legal training in this branch of the law for  the concerned  officers had  been given by it. With these observations  we allow  the appeal,  but parties  will bear their costs. V.D.K.                                       Appeal allowed. 557