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PETITIONER: DR. L.P. AGARWAL

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT21/07/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) ANAND, A.S. (J)

CITATION:  1992 AIR 1872            1992 SCR  (3) 567  1992 SCC  (3) 526        JT 1992 (4)   220  1992 SCALE  (2)54

ACT:      Civil  Service-All India Institute of Medical  Sciences Regulations, 1958-Regulations 30(2), 30(3) 35 read with Rule 56(i)  of  the Fundamental Rules-Post  of  Director,  AIIMS- Tenure     post-"Tenure"-Construction-Retirement      before completion of tenure-Legality of.

HEADNOTE:      The  appellant was appointed as Director,  AIIMS,  with effect from 18.2.1979 for a period of five years or till  he attained  the age of 62 years whichever was  earlier.   With effect from 19.2.1980 he was confirmed in the said post.      On  24.11.1980  the appellant was  prematurely  retired from  service in public interest by giving him three  months pay and allowances, in lieu of notice.      The  appellant challenged the order of  the  Institute- Body  filing  a  writ  petition under  Article  226  of  the Constitution of India before the High Court.      The  respondents contended before the High  Court  that the appellant was retired under Regulation 30(3) of the  All Institute  of Medical Sciences Regulations, 1958  in  public interest  after  he  attained  the age  of  55  years;  that Fundamental  Rule  56(j) was also applicable  to  the  AIIMS employees  by  virtue of Regulation 35 of  the  Regulations; that  even  if  Regulation  30(3)  was  not  attracted,  the Institute had the power to prematurely retire the appellant, in  public interest, under Fundamental Rule 56(j)  and  that despite  the  fact that the appellant was on a  tenure  post there  was  no  bar to prematurely retire  him  by  invoking either Regulation 30(3) of Fundamental Rule 56(j).      The  appellant on the other hand contended  before  the High  Court  that  the post of Director of the  AIIMS  is  a tenure post under the Recruitment Rules of the Institute and he was appointed to the said post by way                                                        568 of  direct  recruitment; that his tenure could  not  be  cut short  by  bringing  in the  concept  of  superannuation  or premature retirement which was alien to a tenure post.      The  High  Court dismissed the writ  petition,  against which the present appeal by special leave  was filed  before this Court.

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    The  appellant reiterated the contentions made  by  him before the High Court, in this appeal.      On the question, "whether the incumbent of the post  of Director,  AIIMS  could  be pematurely  retired  before  the completion  of  his  tenure?"  Allowing the  appeal  of  the employee-doctor, this Court,      HELD 1.01. ‘Tenure’ means a term during which an office is  held.  It is a condition of holding the office.  Once  a person  is appointed to a tenure post, his  appointment   to the said office begins when he joins and it comes to an  end on  the  completion  of  the  tenure  unless  curtailed   on justifiable  grounds.  Such a person does not  superannuate, he only goes out of the office on completion of his  tenure. The  question  of prematurely retiring him does  not  arise. [577F]      1.02. Under the Recruitment Rules the post of  Director of  the  AIIMS  is a tenure post.  The  said  rules  further provide  the  method of direct recruitment for  filling  the post.  These service-conditions make the post of Director  a tenure  post and as such the question of  superannuating  or prematurely retiring the incumbent of the said post does not arise.   The  age  of 62 years  provided  under  proviso  to Regulation  30(2)  of  the All India  Institute  of  Medical Sciences  Regulations, 1958 only shows that no  employee  of the AIIMS can be given extension beyond that age.  This  has obviously  been  done  for  maintaining  efficiency  in  the Institute-Services. [577C]      1.03.  Simply  because  the appointment  order  of  the appellant  mentions  that "he is appointed for a  period  of five  years  or till he attains the age of  62  years",  the appointment  does  not cease to be a tenure-post.   Even  an outsider  (not  an existing employee of the  AIIMS)  can  be selected  and appointed to the post of Director.   Can  such person be retired prematurely curtailing his tenure of  five years?  Obviously not. The appointment of the appellant  was on  a  five years tenure but it could be  curtailed  in  the event of his attaining the age of 62 years before completing the said tenure.  The                                                        569 High  Court failed to appreciate the simple alphabet of  the service jurisprudence. [577D-E]      1.04.   Concept   of  superannuation  which   is   well understood  in the service jurisprudence is alien to  tenure appointments  which have a fixed life span.   The  appellant could  not therefore have been prematurely retired and  that too without being put on any notice whatsoever. [577G-H]      1.05 Since the appellant has since attained the age  of 62  years,  there is no question of reinstating him  in  the office of the Director of the AIIMS.  He shall, however,  be entitled  to his salary less the non  practising  allowance, for  the period from December 1, 1981 to January  21,  1984. [578D]      Dr.   Bool   Chand  v.  The   Chancellor,   Kurukshetra University, [1968] 1 S.C.R. 434 and Dr. D.C. Saxena v. State of Haryana, [1987] 3 S.C.R. 346, distinguished.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 227  of 1982.           WITH      C.M.P. No. 7004/85, I.A. No. 1/91.      From the Judgment and Order dated 7.12.81 of the  Delhi High Court in C.W.No. 1673 of 1980.

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    Appellant-In-Person.      J.D.Jain,  A.K.Ganguli, Ms. Indira Sawhney, C.V.  Subba Rao and A.Mariaputham for the Respondents.      The Judgment of the Court was delivered by      KULDIP  SINGH,  J. Dr. L.P. Agarwal  was  appointed  as Director, All India Institute of Medical Sciences, New Delhi (AIIMS) with effect from February 18, 1979.  The appointment order  dated April 6, 1979 stated that  he was appointed  as Director "for a period of five years, or till he attains the age of 62 years, whichever is earlier".  He was confirmed in the  said  post with effect from February 19, 1980.   By  an order  dated November 24, 1980 he was retired from  service, in the public interest, with immediate effect, by giving him three months pay and allowances, in lieu of notice.                                                        570      The  Recruitment Rules governing the post  of  Director provide direct recruitment as the only method of recruitment to the said post.  The post of Director, under the Rules, is a  tenure  post  for  five  years  inclusive  of  one   year probation.      The  question  for  our consideration  is  whether  the incumbent of the post of Director, AIIMS can  be prematurely retired before the completion of his tenure ? In other words whether the service law concept of "premature retirement  in public  interest" is applicable to a tenure post  filled  by way of direct recruitment.      Dr. L.P. Agarwal entered the service of the AIIMS as  a Professor  of Ophthalmology on February 23, 1959 at the  age of 37 years.  He was appointed Dean of the AIIMS on November 19, 1977 being the senior-most member of the staff.  He  was also  appointed Chief Organiser of Dr. Rajendra  Prasad  Eye Centre in the AIIMS.  The post of the Director of the  AIIMS fell  vacant in November, 1978 and nominations  of  suitable candidates were invited from all the Vice-Chancellors of the India  Universities  and also from Institutions  of  Medical Education and Medical Research in the Country.  The  Special Selection Committee met on February 7, 1979 and  recommended the  name of Dr. L.P. Agarwal for appointment  as  Director. The  recommendation was accepted by the  Institute-Body  and was approved by the Government of India.  The then president of  the AIIMS, there upon issued the memorandum dated  April 6, 1979 appointing Dr. L.P. Agarwal as Director of the AIIMS with  effect from February 18, 1979, the date from which  he was  officiating as Director.  The said memorandum reads  as under :-          "All India Institute of Medical Sciences"          Ansari Nagar          New Delhi-10016                                               6th April, 1979          Subject : Appointment of Director and Professor  of          Ophthalmology of AIIMS, New Delhi.                           MEMORANDUM          With  the  approval of the  Central  Government  as          conveyed by                                                        571          its   letter   No.  V.16012/38/78-ME   (PG)   dated          4.4.1979,  Dr.  L.P.  Agarwal,  Chief  Organiser  &          Professor  of  Ophthalmology, Dr. R.P.  Centre  for          Ophthalmic Sciences, New Delhi, is hereby appointed          as Director & Professor of Ophthalmology, All India          Institute  of  Medical Sciences,  New  Delhi,  with          effect from 18.2.1979, for a period of five  years,          or  till he attains the age of 62 years,  whichever          is earlier.          He  will  be paid remuneration at the rate  of  Rs.

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        3,500  per month (fixed) with effect from the  date          aforesaid mentioned.                                         Sd/- Dr. M.M.S. Sidhu             President All India Institute of Medical Sciences,                                   Ansari Nagar, New Delhi- 29"       According  to Dr. Agarwal he was congratulated by  the Institute-Body  and also by the President of the  AIIMS  for doing  effective  and efficient work during  the  period  of probation.  He earned excellent report for the year 1979-80. He  was confirmed in the post of the Director of  the  AIIMS with  effect from February 19, 1980 by a resolution  of  the Institute-Body  passed in the meeting held on  February  14, 1980.  The confirmation order dated February 15, 1980  reads as under :-          "Dr. M.M.S.SIDHU,          M.P. PRESIDENT                     ALL INDIA INSTITUTE OF MEDICAL SCIENCES,                                  ANSARI NAGAR, NEW DELHI- 16                                            15 February, 1980                              MEMORADUM          Subject   :  Confirmation  of  Prof.L.P.   Agarwal,          Director, AIIMS,          New Delhi.          On  satisfactory completion of  usual  probationary          period, the Institute at their meeting held on 14th          February, 1980 has approved the confirmation of Dr.          L.P.  Agarwal  in the post of Director of  the  All          India Institute of Medical Sciences, w.e.f. 19.2.80          (Forenoon).  Accordingly, Dr. L.P. Agarwal is con-                                                        572          firmed  in  the  post  of  Director,  AIIMS  w.e.f.          19.2.1980 (Forenoon).          The  other conditions of his service  shall  remain          unaltered.                                            Sd/- M.M.S. Sidhu                                                    PRESIDENT                                                   15.2.1980"      Unfortunately  for Dr. l.P.Agarwal, the  Institute-Body in  its  meeting  held  on  November  24,  1980  decided  to prematurely  retire  him from service.   The  resolution  is reproduced hereunder :-                         "RESOLUTION          The Institute resolves, in the public interest,  to          retire   Dr.  L.P.  Agarwal, Director,  All   India          Institute  of  Medical Sciences,  New  Delhi,  with          immediate  effect, by giving him three months’  pay          and allowances, in lieu of notice".      Dr. L.P. Agarwal challenged the above quoted resolution of  the  Institute-Body  by way of  a  writ  petition  under Article  226 of the Constitution of India before Delhi  High Court  on  several  grounds.   On the  basis  of  the  rival contentions  of the parties, the High court  formulated  the following points for its consideration:-          1.  Who   was  the  appointing  authority  of   the          petitioner  and  in consequence the  authority  who          could  compulsorily retire the petitioner when  the          compulsory  retirement is not by way of  a  penalty          imposed after disciplinary action ?          2.  Whether  the  prior  approval  of  the  Central          Government was necessary to compulsorily retire the          Director of the Institute.          3.  Whether the Director of the Institute  and  for          the   matter  of  that  the  petitioner  could   be          compulsorily  retired  under  Regulation  30(3)   ?          Alternatively,  whether  compulsory  retirement  is

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        permissible  under F.R. 56(j) read with  Regulation          35  ? If so, what would be the effect of the  stand          of  the contesting respondents that the  petitioner          was   compulsorily   retired  by  virtue   of   the          provisions of Regulations 30(3).                                                        573          4.  Whether the provisions of Regulation  30(3)  or          alternatively of F.R. 56(j) would apply to a tenure          post and, particularly, to the tenure post to which          the petitioner was appointed?          5.  Whether the resolution to compulsorily  retired          the  petitioner was properly and legally  moved  at          the meeting of the Institute Body held on  November          24, 1980 ?          6. Whether the decision to compulsorily retire  the          petitioner  was arrived at by considering  relevant          material   germane  to  the  issue  of   compulsory          retirement ?          7. Whether the decision to compulsorily retire  the          petitioner is vitiated by mala fides and amounts to          arbitrary exercise of power.          8. Whether the petitioner, even if it is held  that          he  has been validly compulsorily retired from  the          post  of Director, continues to hold the post of  a          Professor of Ophthalmology in the Institute."      A  Division  Bench  of  the Delhi  High  Court  by  its judgment dated December 7, 1981 rejected all the contentions raised by the petitioner and decided all the points  against him.  The writ petition was dismissed leaving the parties to bear  their  own respective costs.  This appeal  by  way  of special leave is against the judgment of the Division  Bench of the Delhi High Court.      The  appellant  contended  before the  High  Court  and reiterated  in the special leave petition before this  Court that he was appointed by the Janta Government and after  the change  of  the government he was removed from the  post  of Director  on  the ground that he had close  links  with  the Janta  party,  Shri  C.B. Gupta and  Shri  Raj  Narain.   He alleged  mala  fide  against the then  Health  Minister  and various  other  authorities.  As mentioned above,  the  High Court  rejected all the contentions raised by the  appellant including  the  challenge based on legal  and  factual  mala fide.      It  is  not  necessary for us to go  into  the  various points formulated and decided by the High Court as we are of the  view  that  the  appellant must  succeed  on  the  sole question  which  we  have posed in  the  beginning  of  this judgment.                                                        574      Regulation  30  of the All India Institute  of  Medical Sciences  Regulations, 1958 (Regulations) which  deals  with superannuation and pre-mature retirement reads as under :-          "30 (1) The age of superannuation of the  employees          of the Institute other than members of the teaching          faculty  and class IV employees shall be 58  years.          Provided  that  the non-faculty  employees  may  be          granted extension of service or re-employment  upto          the   age   of   60  years   under   very   special          circumstances for reasons to be recorded in writing          on   the  merits  of each such case and subject  to          physical  fitness and continued efficiency  of  the          employee concerned.          (2) the age of superannuation of the members of the          teaching faculty and class IV employees shall be 60          years.   Provided that the services of the  members

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        of  the teaching faculty may be  retained upto  the          age  of  62  years  in cases  of  persons  who  are          exceptionally  talented for reasons to be  recorded          in  writing  on the merits of each  such  case  and          subject   to   physical   fitness   and   continued          efficiency of the person concerned.          3. Notwithstanding anything in sub-regulations  (1)          and  (2), the appointing authority shall, if it  is          of the opinion that it is in the public interest so          to   do,   have  the  absolute  right   to   retire          any employee of the Institute by giving him  notice          of  not less than three months in writing or  three          month’s pay and allowance in lieu of such notice :          (i)  if he is a Group A or Group B service or  post          and had entered the service of the Institute before          attaining  the age of thirty five years;  after  he          has attained the age of fifty years; and          (ii)  in any other case, after he has attained  the          age of fifty-five years : Provided that nothing  in          this  sub-regulation shall apply to an employee  in          Group  D service of post who entered service on  or          before the 1.12.62.          (4) *** *** ***          EXPLANATION :                                                        575          In  this  regulation the expression member  of  the          teaching  faculty,  means  "Professors,   Associate          Professors, Assistant Professors and lecturers" and          such  other employees of the Institution as may  be          declared  to be member of teaching faculty  by  the          Central Government."      Regulation  35  of the Regulations which  provides  for other conditions of service is reproduced as under :-          "35. In respect of matters not provided of in these          regulations,  the  rules as applicable  to  Central          Government    Servants   regarding   the    general          conditions  of service, pay,  allowances  including          travelling  and  daily  allowances,  leave  salary,          joining time,foreign service terms etc., and orders          and decisions issued in this regard by the  Central          Government  from time to time shall  apply  mutatis          mutandis to the employees of the Institute." The  respondents  argued  before the  High  Court  that  the appellant was retired by the AIIMS under Regulation 30(3) of the Regulations in public interest after he attained the age of 55 years.  It was further contended that fundamental Rule 56(j)  was also applicable to the AIIMS employees by  virtue of  Regulation  35 of the Regulations.  It was  argued  that even if Regulation 30(3) was not attracted the Institute had the  power  to prematurely retire the appellant,  in  public interest,  under  fundamental Rule 56(j) applicable  to  the Central Government employees.  It was contended that despite the fact the appellant was on a tenure post there was no bar to  prematurely  retire him by  invoking  either  Regulation 30(3) or fundamental Rule 56(j).      The  appellant on the other hand contended  before  the High  Court and reiterated the same before us that the  post of  Director  of  the  AIIMS is  a  tenure  post  under  the Recruitment  Rules of the Institute and he was appointed  to the  said post by way of direct recruitment.   According  to him  his  tenure could not be cut short by bringing  in  the concept  of superannuation or premature retirement which  is allien to a tenure post.      The High Court rejected the contention of the appellant on the following reasoning :-

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        "Though  the  Director’s  post is  mentioned  as  a          tenure post in                                                        576          the  amended  schedule  to  the  recruitment  rules          relied  upon (and at this stage we make no  comment          as  to whether the said rules are  statutory),  the          petitioner’s appointment itself was for a period of          5  years or the date when he attains the age of  62          years,  whichever is earlier.........In  our  view,          reading the order of appointment of the  petitioner          the  concept  of superannuation is  to  be  clearly          found  to  be existing.  The order  of  appointment          does  not  state  that  the  petitioner  was  being          appointed Director for a period of 5 years or on  a          tenure  of  5 years.  The tenure mentioned  in  the          appointment  order is 5 years or attainment of  the          age of 62 years, whichever is earlier.  The age  of          62  years  mentioned in the  appointment  order  is          obviously   in  consequence  of  the   proviso   to          Regulation  30(2) which permits the normal  age  of          superannuation to the extended from 60 years  to 62          years for members of the teaching faculty in  cases          of persons who are exceptionally talented,  subject          of  course to their physical fitness and  continued          efficiency.  The petitioner cannot be heard to  say          that he was appointed for a tenure of 5 years.  The          post may or may not be tenure post what is relevant          is   the   terms  on  which  the   petitioner   was          appointed........We   now  turn  to  the   argument          regarding  what  the  petitioner  claims  to  be  a          statutory rules which respondents 1 to 3 say is not          a  statutory  rule.  We need not express  any  firm          opinion as to whether the rule relied upon is or is          not statutory.  The Schedule relied upon is of  the          Recruitment Rules.  It states that the post of  the          Director  is  as Class I post to be  filled  direct          recruitment.   The upper age limit for the post  is          50 years and the tenure is 5 years inclusive of one          year  probation.  As the Supreme Court had held  in          Dr.  Bool Chand’s case the tenure of 5 years  fixed          by  the  rules  is a  limitation  placed  upon  the          appointing   authority  and  does  not  create   an          indefeasible  right  in  the  person  appointed  as          Director  to a five year term.  In any case, as  we          have  held earlier, the petitioner is bound by  the          terms  of  his  own appointment which  was  to  the          effect  that the tenure was to be of five years  or          till  the petitioner attained the age of  62  years          whichever was earlier.  Indeed, the manner in which          the appointment order is worded makes it clear that          the  appointing  authority  was  conscious  of  the          limitation placed upon it that                                                        577          the  tenure should not be more than 5 years.   That          is  why it fixed the maximum period of tenure at  5          years or till the petitioner attained the age of 62          years, whichever expired earlier".      We  have  given  our thoughtful  consideration  to  the reasoning  and the conclusions reached the High  Court.   We are  not  inclined  to  agree  with  the  same.   Under  the Recruitment  Rules  the post of Director of the AIIMS  is  a tenure  post.  The said rules further provide the method  of direct  recruitment  for filling the post.   These  service- conditions  make the post of Director a tenure post  and  as such the question of superannuating or prematurely  retiring

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the  incumbent of the said post does not arise.  The age  of 62 years provided under Proviso to Regulation  30(2) of  the Regulations only shows that no employee of the AIIMS can  be given  extension beyond that age.  This has  obviously  been done  for maintaining efficiency in the  Institute-Services. We do not agree that simply because the appointment order of the appellant mentions that "he is appointed for a period of five  years  or till he attains the age of  62  years",  the appointment ceases to be to a tenure-post.  Even an outsider (not an existing employee of the AIIMS) can be selected  and appointed  to  the  post of Director.  Can  such  person  be retired  prematurely  curtailing his tenure of  five  years? Obviously  not.  The appointment of the appellant was  on  a Five Years Tenure but it could be curtailed in the event  of his attaining the age of 62 years before completing the said tenure.   The  High Court failed to  appreciate  the  simple alphabet  of  the service jurisprudence.  The  High  Court’s reasoning is against the  clear and unambiguous language  of the Recruitment Rules.  The said rules provide "Tenure means for five years inclusive of one year probation" and the post is  to  be filled "by direct recruitment".  Tenure  means  a term  during which an office is held.  It is a condition  of holding the office.  Once a person is appointed to a  tenure post,  his  appointment to the said office  begins  when  he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds.  Such a person does not  superannuate,  he  only  goes  out  of  the  office  on completion  of  his  tenure.  The  question  of  prematurely retiring  him does not arise.  The appointment order gave  a clear  tenure  to the appellant.  The High Court  fell  into error in reading "the concept of superannuation" in the said order.   Concept of superannuation which is well  understood in the service jurisprudence is alien to tenure appointments which  have  a  fixed life span.  The  appellant  could  not therefore have been prematurely retired and that too without being   put   on   any  notice   whatsoever.    Under   what circumstances can an                                                        578 appointment for a tenure be cut short is not a matter  which requires  our immediate consideration in this  case  because the  order impugned before the High Court  concerned  itself only with premature retirement and the High Court also dealt with that aspect of the matter only.  This Court’s  judgment in   Dr.  Bool, Chand,  v.   The   Chancellor,   Kurukshetra University,  [1968]  1. S.C.R. 434 relied upon by  the  High Court  is not on the joint involved in this case.   In  that case  the tenure of Dr. Bool Chand was curtailed as  he  was found unfit to continue as Vice-Chancellor having regard  to his antecedents which were not disclosed by him at the  time of  his  appointment  as  Vice-Chancellor.   Similarly   the judgment  in  Dr. D.C.Saxena v. State of Haryana,  [1987]  3 S.C.R. 346 has no relevance to the facts of this case.      We,  therefore, allow the appeal with costs, set  aside the judgment of the High Court,, allow the writ petition  of the appellant and quash the resolution of the Institute-Body dated  November 24, 1980 and the consequent  order  retiring the appellant.  Since the appellant has already attained the age of 62 years, there is no question of reinstating him  in the office of the Director of the AIIMS.  He shall, however, be entitled to his salary less the non-practising allowance, for  the period from December 1, 1981 to January  21,  1984. Respondents  1 and 2 are directed to pay the arrears of  the salary to the appellant within three months from today.  The appellant shall also be entitled to 12% interest on the said arrears.  We quantify the costs as Rs. 10,000.

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V.P.R.                                       Appeal allowed.                                                        579