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PETITIONER: GURDEV SINGH SIDHU

       Vs.

RESPONDENT: STATE OF PUNJAB AND ANR.

DATE OF JUDGMENT: 01/04/1964

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1585            1964 SCR  (7) 587  CITATOR INFO :  R          1970 SC 143  (6)  E          1971 SC1516  (7)  R          1975 SC1646  (24)  RF         1991 SC 101  (58,59,241,263)

ACT: Public     Servant-Compulsory      retirement-Constitutional validity-If  and  when dismissal or  removal  from  service- Pepsu  Services Regulations Volume 1, as amended by  notifi- cation   issued   by  Governor  under  Art.   309   of   the Constitution--Constitution of India, Art. 311(2).

HEADNOTE: The petitioner was appointed as Assistant Superintendent  of Police in 1942 in the former Patiala State.  In 1948 on  the formation   of  Patiala  and  East  Punjab  States  he   was integrated  in  Pepsu Police Service.  He  was  promoted  to officiate  as  Superintendent  of  Police  in  1950  by  the Rajpramukh  of Pepsu.  On March 25, 1963, respondent No.  2, the  Inspector-General of Police and Joint Secretary to  the Government  of Punjab, issued a notice upon  the  petitioner under  the second proviso to Art. 9.1 of the Pepsu  Services Regulation  as amended by the Governor by  his  notification dated  January 19, 1960, to show cause why he should not  be compulsorily retired.  The petitioner moved this Court under Art. 32 of the Constitution for quashing the said notice  on the  ground  that  the  said proviso  was  ultra  vires  and inoperative by reason of contravention of Art. 311(2) of the Constitution and relied on the decision of Frontier Railway, A.I.R. 1964 S.C. 600.  The said proviso was as follows,- " * * * that Government retains an absolute right to  retire any  Government  servant after he has  completed  ten  years qualifying service without giving any reason and to claim to special  compensation on this account will  be  entertained. This right will not be exercised except when it is in public interest  to  dispense  with  the  further  services  of   a Government  servant  such  as on  account  of  inefficiency, dishonesty, corruption or infamous conduct * * *". Held:     Article  9.1 of ’the Pepsu Services Regulation  in

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prescribing a minimum period of ten years of service for the purpose of compulsory retirement contravened Art. 311(2)  of the Constitution and must be struck down. The  only two valid exceptions to the protection afforded by Art.   311(2) were,- (1)  where a permanent public servant was asked to retire on the  ground  that he had reached the age  of  superannuation which was reasonably fixed; (2)  that he was compulsorily retired under the Rules  which prescribed the normal age of superannuation and provided  a- reasonably  long  period of qualified  service  after  which along compulsory retirement could be valid. The  first  would not amount to dismissal  or  removal  from service  within  the meaning of Art. 311(2) and  the  second would be justified by the view taken by this Court in a long series of decisions. 588 It is not permissible for a State while reserving to  itself the  power of compulsory retirement by framing a  rule  pres cribing  a  proper age of superannuation  to  frame  another giving  it  the  power to compulsorily  retire  a  permanent public  servant at the end of ten Years of his service,  for that   rule   cannot  fall  outside  Art.  311(2)   of   the Constitution. Moti  Ram Deka etc. v. General Manager, North East  Frontier Railway  etc.   A.I.R. 1964 S.C. 600, applied Shyam  Lal  v. State  of  U.P. and Union of India, [1955] 1 S.C.R.  26  and State  of  Bombay v. Saubhag Chand M. Doshi,  [1958]  S.C.R. 571, referred to. This  decision should not be taken to mean that  a  petition like the present one was competent under Art. 32 of the Con- stitution.

JUDGMENT: ORIGINAL  JURISDICTION:  Writ  Petition  No.  200  of  1963. Petition under Art. 32 of the Constitution of India for  the enforcement of the fundamental rights. K.   P. Bhandari and R. Gopalakrishnan, for the petitioner. and R. N. achthey, for the respondents. April 1, 1964.  The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J.-This petition which has been filed  by the  petitioner  S. Gurdev Singh Sidhu under Art 32  of  the Constitution, challenges the validity of article 9(1) of the Pepsu  Services  Regulations, Volume 1, as  amended  by  the Governor of Punjab by the notification issued by him on  the 19th  January, 1960 in exercise of the powers  conferred  on him  by the proviso to Art. 309 of the Constitution and  all other powers enabling him in that behalf.  The  petitioner’s contention   is  that  the  said  article  contravenes   the constitutional  right guaranteed to the persons employed  in civil  capacities  either under the Union or the  State,  by Art. 311. The petitioner was appointed as Assistant Superintendent  of Police  in  the  erstwhile Patiala  State  by  His  Highness Maharaja  Adhiraj of Patiala on the 4th of  February,  1942. The  conditions of his service were governed by the  Patiala State Service Regulations which had been issued by the Ruler of Patiala State who was at the relevant time the  sovereign legislature  of  the  State.   Later,  the  petitioner   was confirmed in the rank on the occurrence of a regular vacancy after  he had undergone practical district training  courses in the Punjab in 1947.  On the formation of Patiala and East Punjab States Union on the 20th August, 1948, the petitioner

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was  integrated in Pepsu Police Service.  In due course,  he was  promoted  to officiate as Superintendent of  Police  in February,  1950  by  His  Highness  the  Rajpramukh  of  the erstwhile State of Pepsu. 589 On the 25th March, 1963, respondent No. 2 S. Gurdial  Singh, Inspector  General  of  Police  &  Joint  Secretary  to  the Government of Punjab, issued a notice against the petitioner purporting to act under the second proviso to article 9.1 of the  Pepsu Services Regulations to show cause why he  should not  be compulsorily retired.  The petitioner  alleges  that the  second  proviso  to article 9.1 under  which  the  said notice  has been issued against him, is invalid, and so,  he has  moved  this Court under Art. 32 for quashing  the  said notice  on the ground that the article on which it is  based is  itself ultra vires and inoperative.  Respondent  No.  1, the  State  of Punjab, and respondent No. 2  have  by  their counter-affidavit  denied the petitioner’s  contention  that the  impugned  article 9.1 is constitutionally  invalid  and they have resisted his claim for quashing the notice  issued by respondent No. 2 against the petitioner.  That is how the only  point  which arises for our decision  in  the  present petition  is  whether the impugned article is  shown  to  be constitutionally invalid. Before dealing with this point, it is necessary to read  the said article: - "The  following  shall be added after the first  proviso  to clause (1) of article 9.1 of the said regulations:               (ii) "Provided further that Government retains               an  absolute  right to retire  any  Government               servant  after  he  has  completed  ten  years               qualifying  service without giving any  reason               and  no claim to special compensation on  this               account will be entertained.  This right  will               not  be exercised except when it is in  public               interest to dispense with the further services               of a Government servant such as on account  of               inefficiency,   dishonesty,   corruption    or               infamous  conduct.  Thus the rule is  intended               for use:               (a)   against   a  Government  servant   whose               efficiency is impaired but against whom it  is               not  desirable  to  make  formal  charges   of               inefficiency  or  who has ceased to  be  fully               efficient,  (i.e. when a Government  servant’s               value  is clearly incommensurate with the  pay               which  he draws), but not to such a degree  as               to  warrant his retirement on a  compassionate               allowance.  It is not the intention to use the               proviso as a financial weapon, that is to  say               the proviso should be used only in the case of               Government  servants who are considered  unfit               for  retention  on  personal  as  opposed   to               financial grounds;               590               (b)   in    cases   where    reputation    for               corruption, dishonesty or infamous conduct  is               clearly  established even though  no  specific               instance  is  likely to be  proved  under  the               Punjab  Civil Services Punishment  and  Appeal               Rules) Appendix 24 of Volume 1, Part 11 or the               Public  Servants  (Inquiries  Act  XXXVII   of               1850).               The  word  ’Government’ used in  this  proviso               should  be given a reasonable  opportunity  to

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             show causethe power of removing the Government               servant concerned from service under the Civil               Services (Punishment and Appeal) ’Rules".               (iii) Provided further that Government servant               should  be given a reasonable  opportunity  to               show  cause against the proposed action  under               the  rule.   No Gazetted  Government  servants               shall,   however,  be  retired  without   ’the               approval of the Council of Ministers.  In  all               cases  of  compulsory retirement  of  gazetted               Government  servants  belonging to  the  State               Services, the Public Service Commission  shall               be  consulted.   In the case  of  non-gazetted               Government  servants the Heads of  Departments               should   effect  such  retirement   with   the               previous approval of the state  Government". This article clearly shows that the absolute right  retained by respondent No. 1 to deal with public servants can be used against them if it appears to respondent No. 1 that the said public  servants suffer from inefficiency, dishonesty,  cor- ruption, or infamous conduct.  It is also clear that one  of the  reasons for making the amendment in the Pepsu  Services Regulations  was to use the power thereby conferred on  res- pondent No. 1 in case where reputation for corruption,  dis- honesty or infamous conduct may be established to the satis- faction of respondent No. 1 even though no specific instance is  likely  to  be proved under the  Punjab  Civil  Services (Punishment  and  Appeal) Rules.  This  power  was  likewise intended  for  use in cases where the  incompetence  of  the Government  servant  may  not be of such  an  extent  as  to warrant  his retirement on a compassionate  allowance.   The only  safeguard provided by the amended article is  that  it was  not  contemplated to use the power conferred by  it  on financial  grounds.   Grounds on which the  said  power  was intended  to  be  used  were all  grounds  personal  to  the Government   servant  against  whora  the  said  power   was exercised. Mr.Bhandari  for  the  petitioner contedns  that  the  point raised  by the petitoner in this petition is, in  substance, concluded  by  a recent decision of this Court in  Moti  Ram Deka, 591 etc. v. The General Manager, North East Frontier Railway,(1) etc.   His  argument  is that the  trend  of  the  majority, judgment  in that case clearly indicates that  the  impugned Rule  is inconsistent with Art. 311(2) of the  Constitution, and  as such, must be struck down as being invalid.  It  is, therefore,  necessary to examine briefly the effect  of  the said judgment. In  that case, this, Court was called upon to  consider  the validity  of Rules 148(3) and 149(3) of the  Railway  Rules. These  Rules authorised the termination of services  of  the railway  employees concerned by serving them with  a  notice for the requisite period or paying them their salary for the said  period in lieu of notice.  Dealing with  the  question about the validity of the said Rules, the majority  judgment observed  that a person who substantively holds a  permanent post  has  right  to  continue in  service  subject  to  two exceptions.  The first exception was in relation to the rule of superannuation, and the second was in regard to the  rule as to compulsory retirement.  The majority judgment accepted the  position that a rule fixing the age  of  superannuation which is applicable to all Government servants falling in  a particular category was perfectly constitutional because  it applies uniformly to the public servants who fall within its

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scope and it is based ,on general considerations like  life- expectation,  mental capacity of the civil  servants  having regard to the climatic condilions under which they work  and the nature of the work they do. They are not fixed on any ad hoc basis and do not involve the exercise of any discretion. The second exception was ,affirmed by the majority  judgment with  the  reservation that rules of  compulsory  retirement would   be   valid  if  having  fixed  a   proper   age   of superannuation, they permit the compulsory retirement of the public  servant, provided he has put in a minimum period  of service;   and  while  affirming  this  rule,   an   express reservation  was  made  that in case a  rule  of  compulsory retirement  permitted  the authority to retire  a  permanent servant at a very early stage of his career, the question as to  whether  such  a  rule would be valid  may  have  to  be considered  on  a  proper occasion.   In  other  words,  the acceptance  of  the  ,doctrine  that  rules  for  compulsory retirement  were valid and constituted an exception  to  the general  rule  that  the termination of the  services  of  a permanent  servant means his removal within the  meaning  of Art. 311(2), was not absolute but qualified. At  this stage, it is necessary to explain why this,  reser- vation  was  made in the majority  judgment.   The  question which fell to be decided in the case of Moti Ram Deka(1) bad no  reference to the rule of compulsory retirement; but  the argument in support of the validity of the rule proceeded (1) A.I.R 1964 S.C 600. 592 on  the basis that the previous decisions of this  Court  in which  the  validity  of the relevant  rules  of  compulsory retirement   had   been  upheld  logically   supported   the contention that the   impugned Rules 148(3)  and 149(3) were also  valid,  and this argument made it necessary  for  this Court  to examine the  said decisions and to decide  whether the  observations  made  in the course  of  those  decisions supported  the contention that Rules 148(3) and 149(3)  were valid.  Let us briefly refer to some of these decisions. In Shyam Lal, v. The State of U.P. and the Union of India(1) the  article  which  was examined was  465-A  of  the  Civil Service  Regulations.  Note 1 to the said article  gave  the Government an absolute right to retire any officer after  he has  completed  25  years  of  service  without  giving  any reasons, and provided that no claim to special  compensation can  be  entertained from the public servant  who  has  been compulsorily  retired under it; this article was held to  be valid. In  the  State of Bombay v. Saubhag Chand M.  Deshi,(2)  the rule  which  was considered was 165-A of  the  Bombay  Civil Services  Rules  as amended by  the  Saurashtra  Government. This  rule gave the Government a similar right to  retire  a Government  servant  after  he has  completed  25  years  of qualifying service or 50 years of age, and it permitted  the Government  to ask the Government servant to retire  compul- sorily without giving any reason and without giving him  the right to claim special compensation.  The rule further  made it  clear  that  the  right conferred  by  it  will  not  be exercised  except  when  it is in  the  public  interest  to dispense  with the further services of a Government  servant such as on account of inefficiency or dishonesty.  This rule was also upheld. Reverting then to the argument which was urged in support of the validity of the Railway Rules challenged in the case  of Moli   Ram  Deka(3)  the  position  taken  by  the   learned Additional  Solicitor-General  was  that  in  upholding  the impugned rules, the earlier decisions had substantially pro-

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ceeded  on the basis that the premature termination  of  the services  of  a permanent Government servant  would  not  in every case amount to his removal within the meaning of  Art. 311(2)  of  the  Constitution, and that  is  how  it  became necessary  to refer to the said decisions which  dealt  with the question of compulsory retirement, though the problem of compulsory  retirement did not fall for the decision of  the Court in Moti Ram Deka’s(3) case. The  approach adopted by the majority decision in  Moti  Ram Deka’s(3) case indicates that the Court was not prepared (1) [1955] 1.S.C.R. 26        (2) [1958] S.C.R. 571. (3)  A.I.R. 1964 S.C. 600. 593 to examine the question as to whether the relevant Rules  in respect of compulsory retirement which had been upheld  were valid or not.  The trend of the majority judgment shows that logically, it would be consistent to hold that the premature termination  of  the  services  of  a  permanent  Government servant would not amount to hi;-, removal under Art.  311(2) only where such termination is the result of the fixation of a general rule of superannuation.  In all other cases  where a   permanent   Government  servant  is  asked   to   retire compulsorily   whether  on  account  of  his   incompetence, inefficiency,  or dishonesty, it may, logically, be open  to be  suggested  that such compulsory  retirement  is  removal within Art. 311(2).  But since 1953, when the case of Satish Chandra  Anand v. The Union of India(1) was decided by  this Court there appeared to be a consistent course of  decisions which  had  upheld the validity of the rules  in  regard  to compulsory retirement.  No doubt, the case of Satish Chandra Anand  was  one  where a person had  been  employed  by  the Government  of  India  on a five-year contract  in  the  Re- ,settlement  and Employment Directorate of the  Ministry  of Labour; but some observations were made in that judgment and similar  observations  were  made  in  subsequent  decisions dealing  with  the question of compulsory  retirement.   The majority  judgment in Moti Rai Deka’s(2) case took the  view that it would be inappropriate and inexpedient to reopen  an issue which was covered by several prior reported  decisions of  the  Court.   Besides, the point  covered  by  the  said decisions  did  not directly arise in the case of  Moti  Ram Deka.  Even so, 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 a fairly large number of years had been prescribed by  the  rule of compulsory retirement as  constituting  the minimum  period of service after which alone the  said  rule could  be  invoked.   Therefore, it seems  to  us  that  Mr. Bhandari is right when he contends that the present (1) [1953] S.C.R. 655. (2) A.I.R. 1964 S.C. 600. 594

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article  which reduces the minimum period of service  to  10 years,  is  open to challenge in the light of  the  majority decision pronounced in the case of Moti Ram Deka(1). In this connection, it is hardly necessary to emphasise that for  the efficient administration of the State, it is  abso- lutely essential that permanent public servants should enjoy a  sense  of security of tenure.  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. 31](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  after   which   alone compulsory  retirement  can be ordered, that again  may  not amount  to  dismissal or removal under  Art.  31](2)  mainly because that is the effect of a long series of decisions  of this  Court.   But where while reserving 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 permanent public servant at the end of 10  years of his service, that cannot, we think, be  treated as  falling  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,  re- moval  under Art. 311(2).  It is because it was  apprehended that  rules of compulsory retirement may purport  to  reduce the  prescribed  minimum  period  of  service  beyond  which compulsory retirement can be forced against a public servant that  the majority judgment in the case of Moti Ram  Deka(1) clearly  indicated  that  if.-such a  situation  arose,  the validity  of the rule may have to be examined, and in  doing so,  the  impugned  rule may not be permitted  to  seek  the protection  of the earlier decisions of this Court in  which the minimum (1) A.I.R. 1964 S.C. 600 595 qualifying  period of service was prescribed as high  as  25 years,  or  the age of the public servant at 50  years.   We are,  therefore,  satisfied that Mr. Bhandari  is  right  in contending  that the effect of the majority decision in  the case  of  Moti  Ram Deka(1) clearly  is  that  the  impugned article  9.1 contravenes Article 311(2) of the  Constitution and must be struck( down as invalid. The  result  is, the petition succeeds and  article  9.1  as amended  by the Governor of Punjab by a notification  issued on  the 19th January, 1960, is struck down as  invalid.   In consequence,  the notice issued by respondent No. 2  against the petitioner on the 25th March, 1963 must be cancelled. Before  we part with this petition we ought to add that  the respondents  did not urge before us that the  writ  petition

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was  not competent under Art. 32 and that the proper  remedy available to the petitioner was a petition under Art. 226 of the  Constitution to the Punjab High Court; that is  presum- ably,  because  the  respondents  were  anxious  to  have  a decision from this Court on the question about the  validity of the impugned article in the Regulations in question.   We would,  therefore,  make it clear that our decision  in  the present  writ petition should not be taken to mean  that  we have  held  that a petition like the  present  is  competent under Art. 32 of the Constitution. In the circumstances of this case, the petitioner is entitl- ed to his costs from respondents 1 and 2.                                Petition allowed. (1) A.I.R. 1964 S.C. 600. 596