30 March 1954
Supreme Court


Case number: Appeal (civil) 248 of 1953






DATE OF JUDGMENT: 30/03/1954


CITATION:  1954 AIR  369            1955 SCR   26  CITATOR INFO :  RF         1957 SC 886  (5)  E          1957 SC 892  (7,8,9,11)  F          1958 SC  36  (28,40)  R          1958 SC 232  (18)  F          1958 SC 905  (6)  F          1960 SC1305  (7)  R          1961 SC 177  (10,11)  RF         1964 SC 600  (36,42,45,48,52,71,74,78,102,1  R          1964 SC1585  (8)  R          1964 SC1854  (12,13,15)  R          1965 SC 280  (5)  D          1967 SC1260  (6,11,13)  D          1967 SC1264  (8,9)  R          1971 SC2151  (13,18)  RF         1973 SC2641  (21)  F          1975 SC1064  (9)  RF         1975 SC1487  (19,21)  R          1975 SC2045  (11)  RF         1976 SC  37  (16)  R          1976 SC1841  (8)  RF         1976 SC2547  (8,9)  RF         1977 SC 854  (12)  R          1980 SC 563  (13,14,31)  RF         1982 SC1107  (30)  F          1985 SC 551  (29)  F          1985 SC 931  (11)  RF         1989 SC  72  (11)  D          1990 SC1368  (21)  RF         1991 SC 101  (144)  RF         1992 SC 786  (6)  RF         1992 SC1020  (10,25)

ACT:     Constitution   of   India   -Article   811   -Compulsory retirement  Whether amounts to dismissal or  removal  within the meaning of the Article-Civil Service Regulations-Article 465-A  and Note 1 appended thereto-Interpretation of-Bule  4 of the new Rules published in 1919-Government of India  Act, Section 96-B.



HEADNOTE:     Held, that Article 465-A and Note I thereto of the Civil Service  Regulations  relating to the retiring  pensions  of officers was applicable to the appellant who was employed in 1923 as a member of the Indian Service of Engineers  because Rule 4 of the new Rules published by the Government of India on 15th November, 1919, providing for compulsory  retirement of any officer after the completion of 26 years’ service was validated and confirmed by section 96-B of the Government of India  Act-, 1919, which came into force on  23rd  December, 1919, and the language of Note 1 to Article 466-A  published in  1920  clearly indicates that the Government’s  right  to compulsorily  retire an officer was not derived from Note  1 as Note 1 assumed its existence aliunde and the Government’s right  was  derived  from  new  Rule  4  published  on  15th November, 1919.    Held  also, that a compulsory retirement under the  Civil Services  (Classification, Control and Appeal)  Rules,  does not  amount  to dismissal or removal within the  meaning  of Article 311 of the Constitution and therefore does not  fall within the provisions of the said Article. The  word  "removal" used synonymously with the  term  "dis- missal" generally implies that the Officer is regarded as in some manner blameworthy or deficient.  The action of removal is founded on some ground personal to the officer and  there is  a  levelling of some imputation or charge  against  him. But there is no such element of charge or imputation in  the case of compulsory retirement.  In other words a  compulsory retirement  does  not involve any stigma or  implication  of misbehaviour or incapacity. Dismissal  or removal is a punishment and involves  loss  of benefit already earned.  The Officer, dismissed or  removed, does  not  got pension which he has earned.   On  compulsory retirement the Officer will be entitled to the pension  that he  has  actually earned and there is no diminution  of  the accrued benefit. Rangachari  v. Secretary of State (L.R. 64 I.A.  40;  A.I.R. 1937  P.C.  27); Vankata Rao v. Secretary of State  L.R.  64 I.A. 55; A.I.R, 1937 P.O. 37); I.M, Lal’s case (L.R. 76 I.A. 225 - A.I.R. 1948 27 P.C.  121); Satischandra Anand v. The Union of  India  (1953 S.C.R. 665 at p. 659) referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 248 of 1953. Appeal  under  Article 132(1) of the Constitution  of  India from the Judgment and Order dated the 1st October, 1953,  of the   High  Court  of  Judicature  at  Allahabad  in   Civil Miscellaneous Writ No. 379 of 1953. N.C.   Chatterjee  (P.K.  Chatterjee,  with  him)  for   the appellant. C.   K. Daphtary, Solicitor-General for- India, K. L. Misra, Advocate-General  of Uttar Pradesh (C.  P. Lal,  with  them) for respondent No. 1. C.   K. Daphtary, Solicitor-General for India (Porus A. Mehta, with him) for respondent No. 2. 1954.  March 30.  The Judgment of the Court was delivered by DAS J.-This appeal arises out of an application made by  the appellant to the High Court of Allahabad under, article  226 of the Constitution praying for an appropriate writ quashing the order made by the President of India on the 17th  April,



1953,  ordering the compulsory retirement of  the  appellant who  had completed 25 years’ qualifying service.   The  High Court by its judgment dated the 1st October, 1953, dismissed the  application  but, as the case  involved  a  substantial question of the interpretation of the Constitution, the High Court  granted  leave  to the appellant to  appeal  to  this Court. The  material  facts may be shortly stated as  follows:  The appellant  passed  his Civil Engineering  degree  examinaion from  the  Thomason College.  Roorkee, in  1922.   He  stood first in order of merit and carried away the Gold Medal  and other  prizes awarded to the best student of that year.   He was appointed by the Secretary of State for India in Council to the Indian Service of Engineers as an Assistant Executive Engineer  with  effect  from the 20th  October,  1923.   The conditions  governing the appellant’s terms of  appointment, promotion, leave, pension, etc., will be found recorded in 28 a  letter  issued  from India Office, London,  on  the  13th February,  1924.   A copy of that letter is annexed  to  the Petition  filed  under article 226.  He was posted  in  ,the United Provinces.  In 1944 the appellant was promoted to the rank  of  officiating Superintending  Engineer.   After  the attainment  of independence by India a fresh  agreement  was entered  into by and between the appellant  the Governor  of the  United Provinces and the Governor General of  India  on the 16th September, 1948 confirming the appellant’s terms of appointment  contained in the letter of the  13th  February, 1924.   At  or  about this time  the  appellant  along  with several other officers was recommended by the Chief Engineer for   confirmation   as   Superintending   Engineer.    ’The appellant,  however,  was  not confirmed  but  continued  to officiate   as  Superintending  Engineer  until   the   time hereinafter  stated.  On the  4th January, 1950, the  Public Works  Department of the U.P. Government addressed a  letter to the Chief Engineer, Irrigation Branch U.P. requesting him to   communicate  the  letter  enclosed  therewith  to   the appellant  and  to ask him to submit as  early  as  possible whatever explanation he might desire to give.  The  enclosed letter called upon the appellant to show cause within  three weeks  why he should not-be compulsorily retired  under  the provisions of article 465-A, Civil Service Regulations,as it appeared  (1) that he had been making systematic  and  gross overpayments apparently for no other reason than to  benefit the  contractors concerned and (2) that he had spent  large’ amounts of public money for his own personal convenience and (3)  that he had taken recourse to devious and  unscrupulous methods.  No less than, six instances on which these charges were  based.  were  them  set  out.   The  covering   letter concluded with the following remarks: "Under   the   rules  Government  reserve   the   right   to compulsorily   retire   any  officer  whose   retention   in service they consider not to be in the public interest. This is   not,   therefore,   a   formal   enquiry   under    the Classification.  Control and Appeal Rules but before  taking the action indicated above Government were pleased to and an opportunity to Shri Shyam Lal, I.S.E., 29 to show cause why he should not be compulsorily retired." A copy of the letter of the 4th January, 1950, together with a  copy of the enclosure was sent to the appellant with  the request that his explanation might be forwarded,. within the period mentioned by the Government.  The appellant submitted his  explanations which, together with the Chief  Engineer’s comments  thereon,  were  placed  before  the  Union  Public



Service  Commission.  The Commission came to the  conclusion that  five  out  of  the six charges  had  been  proved  and submitted  their  report accordingly.  On  the  17th  April, 1953,  the  President, after considering the  case  and  the recommendations   of  the  Commission,  decided   that   the appellant should retire forthwith from service under Note  I to  article 465-A of the Civil Service Regulations.   Before this order could be served on him the appellant on the  24th April,  1953,  filed  -before the  Allahabad  High  Court  a petition under article 226 of the Constitution praying  that the order made by the President on the 17th April, 1953,  be quashed  on  the  ground, inter alia,  that  the  order  was illegal  and void in that it was made without affording  him any opportunity to show cause against the action proposed to be  taken  in regard to him.  As already  stated,  the  High Court  dismissed the application on, the 1st October,  1953. The  present  appeal  is  directed  against  that  order  of dismissal. The  order  of  the  President  which  is  imppgned  by  the appellant  shows  that action was purported to be  taken  in regard to the appellant under Note 1 to article 465-A of the Civil  Service  Regulations.   Chapter XVIII  of  the  Civil Service  Regulations  deals  with  Conditions  of  Grant  of Pension.   Article  465-A  appears  in  that  Chapter  under section V the heading of which is " Retiring Pension." There are two notes appended to the article of which the first one is important for our present purpose.  The relevant part  of -article 465-A and Note 1 thereto are set out below:- " 465-A.  For officers mentioned in article 349-A, the  rule for the grant of retiring pension is as follows: 30 (1)......................................................... (2) A retiring pension is also granted to an officer who  is required  by Government to retire after  completing  twenty- five years’ qualifying service or more. Note  I.-Government retains an absolute right to retire  any officer after he has completed twenty-five years’ qualifying service without giving any reasons, and no claim to  special compensation  on  this account will  be  entertained.   This right will not be exercised except when it is in the  public interest  to  dispense  with  the  further  services  of  an officer." Officers  of  the Indian Service of Engineers  are  included amongst  ’the  officers mentioned in article  349-A  of  the Civil Service Regulations. The  contentions  urged before us are that  the  President’s Order  of the 17th April, 1953, is invalid  and  inoperative for the following reasons : (1)that  article 465-A of the Civil Service  Regulations  is not applicable to or binding on the appellant; (ii)that  compulsory retirement is nothing but removal  from service   and   the  provisions  of  article  311   of   the Constitution apply to the case of compulsory retirement; (iii)that  Note  I  to article 465-A of  the  Civil  Service Regulations,  in so far as it confers on the  Government  an absolute  right  to  retire an officer,  who  has  completed twenty-five  years’  qualifying service without  giving  any ’reason, is repugnant to article 311 of the Constitution. It will be necessary to deal with the above points seriatim. Re.  (i).-It  will  be remembered  that  the  appellant  was employed  by the Secretary of State in Council  in  October, 1923,  that  is to say, after the Government of  India  Act, 1919,  came into operation.  Sub-section (4) of section  96B of that Act provided, for removal of doubts, that all  rules in operation at the time of the passing of that Act, whether



made  by the Secretary of State in Council or by  any  other authority, relating to 31 the  Civil Service of the Crown in India, were duly made  in accordance  with the powers in that behalf and it  confirmed the same.  But it is urged that as there is nothing to  show that  article 465-A of the Civil Service Regulations was  in operation  at the time of the passing of the  Government  of India Act, 1919, and that as all that has been shown is only that the article in question was amended and brought. up  to its  present  form in 1922 it cannot be said  to  have  been validated  by subsection (4) of section 96B.   Reference  is then made to sub-section (2) of that section which empowered the Secretary of State in Council to make rules for  regula- ting the classification of the Civil Services in India,  the methods of their recruitment, their conditions, of  service, pay and allowances, and discipline and conduct and, by  such rules,  to  delegate  the  power  of  making  rules  to  the Governor-General  in Council or to local Governments  or  to authorise  the Indian Legislature or local  Legislatures  to make laws regulating the public services.  It is pointed out that sub-section (2) did not empower the Secretary of  State in  Council to delegate the power to make  rules  concerning pensions  to any authority in India.  Our attention is  next drawn  to  sub-section (3) of section  96B  which  specially safeguarded the interests of the civil servants employed  by the  Secretary of State in Council by providing  that  their right to pensions and the scale and conditions ,of  pensions should be regulated in accordance with the rules in force at the time of the passing of that Act and that, although  such rules might be varied or added to by the Secretary of  State in   Council,  such  variations  or  additions  should   not adversely  affect the pension of any member of  the  service appointed before the date thereof It is urged that not  only has  article 465-A not been shown to have been in  force  at the  time  of the passing of the Government  of  India  Act, 1919,  it has also not been shown to have been made  by  the Secretary  of  State  in Council.  In the  premises,  it  is contended  that article 465-A which is set out in section  V of Chapter XVIII of the Civil Service Regulations and  deals with  retiring pensions and has presumably been made by  the Governor-General in Council cannot be 32 supported as a valid rule under sub-sections (2), (3) or (4) of section 96B and can have no application to the  appellant who  was appointed by the Secretary of State in Council  and consequently  the order of the President made in  accordance with Note I to that article is illegal and void. The above line of reasoning found favour with the High Court but  nevertheless  the High Court repelled  the  conclusions sought to be established by it on the ground that rule 7  of the  Civil  Services (Classification,  Control  and  Appeal) Rules  read with rule 26 of those Rules impressed the  stamp of  validity  upon  article  465-A  of  the  Civil   Service Regulations  and  made  it  applicable  to  the  All   India Services.  Learned counsel for the appellant challenges  the correctness of the decision of the High Court in so far.  as it  is  founded on a construction of rules 7 and 26  of  the Civil  Services (Classification, Control and  Appeal)  Rules which were first made in December, 1920, and were again pub- lished  in 1930 with subsequent amendments.  While  agreeing with  learned  counsel  that  there is  some  force  in  his contention that the construction put upon rule 7 may not  be quite  cogent or convincing we do not consider it  necessary to  express  any final opinion on that matter, for,  in  our



judgment, the major, premise assumed by the High Court  that Note 1 to article 465-A has no application to the  appellant cannot be supported or sustained. it  appears that by Resolution No. 1085-E.A. passed  on  the 15th  November, 1919, and published in the gazette of  India on  the  same  date  the  Government:  of  India,  Finanance Department  with the approval of the Secretary of State  for India,  announced  certain new rules  relating  to  retiring pensions  of the officers (other than military  officers  or members  of  the  Indian Civil Service)  and  the  ’services specified  therein.. The services so specified included  the Public  Works Department.  The new rules were,, by  rule  1, made  to apply only to officers joining the  above  services after the 29th August, 1919, And to those existing  officers who elected in writing to come under their provisions,.  The appellant was, employed in October, 1923, and 33 consequently these new rules applied to him.  The material I part of rule 4 of these new rules was as follows :- "Government  will  have  an absolute  right  to  retire  any officer  after he has completed twenty-five years’  service, without necessity to give reasons and without any claim  for compensation   in   addition  to  pension,   and   in   that event.............." These  rules which came into force on their  publication  in the  Official  Gazette  of the 15th  November,  1919,  were, therefore, in operation on the 23rd December, 1919, when the Government   of  India  Act,  1919,  was  passed  and   were accordingly  validated and confirmed by sub-section  (4)  of section 96B of that Act to which reference has already  been made.   The  rules thus confirmed by section  96B(4)  became applicable  to  the  appellant  on  his  employment  by  the Secretary of State in October, 1923. In  Resolution No. 714-C.S.R. dated the 10th May,  1920,  it was announced that with a view to the exact scope of the new pension  rules published in Resolution No.  1085-E.A.  dated the 15th November, 1919, being made clear the Government  of India  intended  to  publish  those rules  in  the  form  of amendments  to the Civil Service  Regulations.   Accordingly Resolution No. 1003-C.S.R. dated the 18th June, 1920,  along with  certain  amendments to the Civil  Service  Regulations were  published  in the Gazette of India of the  19th  June, 1920, for general information.  The amendments so  published provided for the insertion in the Civil Service  Regulations of  a  new article 349-A stating that the rules  in  certain articles including article 465-A would apply to officers  in the  services specified therein.  The services so  specified included  the Public Works Department.  The amendments  also provided for the insertion in the Civil Service Regulations, amongst  others,  of a new rule as article  465-A  with  two notes  appended thereto.  Omitting clause (1) and  note  (2) which are not relevant for our present purpose that  article read as follows: "465-A.  -For officers mentioned in article 349-A  the  rule for the grant of retiring pension is as follows:- 5 34 (1)  ............................................................... (2)  A retiring pension is also granted to an officer who is required  by Government to retire after  completing  twenty- five years’ service or more. Note  I.-Government retains an absolute right to retire  any officer  after he has completed twenty-five  years’  service without   giving  any  reasons  and  no  claim  to   special compensation on this account will be entertained.



It  will be noticed that clause (2) and Note I quoted  above are  word  for  word the same as clause (2) and  Note  1  of article  465-A  as  we  find it now  except  that  the  last sentence  in Note 1 in the present rule was not  in  article 465-A  Note I when it was published in 1920.  It seems  that this addition was subsequently made by amendment in 1922  as referred to in the High Court judgment under appeal. It  is contended by learned counsel for the  appellant  that article  465-A  and Note I thereto came into force  only  in June,  1920, that is to say, after the Government  of  India Act,  1919, had been passed and therefore cannot be said  to have  been confirmed by section 96B (4) and being a  pension rule  made after the date of that Act but not being  a  rule made  by the Secretary of State in Council it  cannot  under section  96B (3) apply to the appellant who was employed  by the  Secretary  of  State.  We are  unable  to  accept  this argument  as sound.  As already stated, the new  rules  were announced by Resolution No. 1085-E.  A. passed and published on  the 15th November, 1919, and were in force on  the  23rd December, 1919, when the Government of India Act, 1919,  was passed  and consequently acquired statutory force by  virtue of  section 96B (4) of,that Act.  The subsequent  Resolution No. 714-C.S.R. dated the 10th May, 1920, and Resolution  No. 1003-C.S.R.  referred to above did not and could not  affect the validity or force of the new rules announced on the 15th November, 1919.  The purpose of publishing the new rules  in the form of amendments to the Civil Service Regulations,  as Resolution No. 714-C.S.R. itself stated expressly, was  only to clarify the exact scope of those new rules and not, 35 As suggested by learned counsel for the appellant, to  bring them into force for the first time.  The new rules came into operation  ex  proprio vigore on their  publication  in  the Official  Gazette  on  the 15th November,  1919,  and  their subsequent  publication for general information in the  form if amendment to the Civil Service Regulations only served to make  their  exact  scope clear.  The real  purpose  of  the incorporation   of  these  rules  in  the’   Civil   Service Regulations was not to make any now rule at the date of such incorporation  but  to  distribute and  post  up  the  rules announced  in November, 1919, at appropriate places  in  the Civil Service Regulations for ready reference.  A comparison of  the language used, in Note 1 to article 465-A with  that employed in new rule 4 announced by Resolution No. 1085-E.A. dated  the  15th  November, 1919, will also  make  it  clear beyond doubt that the purpose of Note I is not to confer  on the  Government  any  new right to  compulsorily  retire  an officer on completion by him of twenty-five years",  service but  that  it is intended to serve as a  reminder  that  the Government  already  has  such  right  which  it,  means  to "retain".  One "retains" only what one already possesses and the word "retain" is wholly inappropriate for the purpose of conferring  a fresh right.  The last sentence of Note  I  is only  an administrative direction, as to when  the  existing right  of  the  Government is  to;  be  exercised.   Indeed, article  I in.  Chapter I of the: Civil Service  Regulations clearly  provides that the regulations therein are  intended only   to  regulate  salaries,  leave,  pension  and   other allowances  and  that  they  do  not  deal  otherwise   than indirectly with matters relating to recruitment,  promotion, official  duties,  discipline or the like.   In  short,  the language  of’  Note I to article 465-A makes  it  abundantly clear that the Government’s right to compulsorily retire  an officer is not derived from Note 1. Note I only assumes  its existence aliunde and indicates when that existing right  is



to be, exercised and what consequences are to follow if that right is exercised.That right is obviously derived from  new rule  4 which was announced by Resolution No.  1085-E.A.  on the 15th November, 1919.  Being in operation at the date  of the passing of the Government of 36 India Act, 1919, that rule, by virtue of sub-section (4)  of section  96B  of that Act, became binding on  the  appellant although  he  was  employed by the Secretary  of  State  for India.  We, therefore, agree with the High Court, though  on different  grounds,  that the first question raised  by  the appellant  must be answered against him.  It is  unfortunate that  the  Gazette  of India notifications  of  the  several earlier   resolutions  referred  to  above  were  not   made available to the High Court. Re. (ii) and (iii).-It will be convenient to deal with these two  questions together.  Learned counsel for the  appellant urges that even assuming that rule 4 announced by Resolution No.  1085-E.A. and on which Note I to article 465-A  of  the Civil  Service Regulations was based had, on the passing  of the  Government  of India Act, 1919, become binding  on  the appellants  it nevertheless became void on the  coming  into operation  of  the Constitution of India by  reason  of  its being  repugnant  to the provisions of article 31 1  of  the Constitution.  The argument is that a compulsory  retirement of  an  officer  was nothing but his  removal  from  service within  the meaning of article 311 and as rule 4 as well  as Note  I  to article 465-A of the Civil  Service  Regulations sanctioned  compulsory  retirement  without  assigning   any reason  which,  in substance, meant without giving  him  any opportunity to show cause against such action being taken in regard  to  him, it became repugnant to article 311  of  the Constitution  and,  therefore, became void.   The  argument, although plausible and attractive, was nevertheless rejected by  the High Court and we think it rightly did so.  A  brief study  of  the  history  and development  of  the  rule  now embodied in article 311 and a consideration of the  language of  that article and the relevant rules will  amply  confirm the correctness of this conclusion. In  England  the rule was well established from  very  early times  that public offices were held at the pleasure of  the Crown.  The English constitutional theory was that the  King could  do no wrong and accordingly the services of  a  civil servant could be terminated without assigning any reason and no  action  could  be maintained in the  King’s  Courts  for damages for wrongful 37 dismissal.  This principle appears to have been applied even to  the servants of the East India Company and certainly  to the  civil  servants after the British Crown took  over  the territories  and  the administration thereof from  the  East India  Company.  This state of affairs continued until  1919 when section 96B of the Government of India Act, 1910, while maintaining  that  the  tenure  was  during  His   Majesty’s pleasure,  introduced a minor restriction on this  power  of dismissal.  The relevant portion of sub-section (1) of  that section was in the terms following :- "  96B.  (1) Subject to the provisions of this  Act  and  of rules made thereunder, every person in the civil service  of the  Crown  in  India holds  -office  during  His  Majesty’s pleasure,  and may be employed in any manner required  by  a proper authority within the scope of his duty, but no person in    that    service    may   be    dismissed    by    any, authority  subordinate to -that by which he  was  appointed, and the Secretary of State in Council may (except so far  as



he  may  provide  by rules to the  contrary)  reinstate  any person in that service who has, been dismissed. The rest of the sub-section need not be quoted.  As  already stated,  sub-section  (4)  of  this  section  validated  and confirmed  the then existing rules and sub-section (2)  gave power to the Secretary of State for India in Council to make rules  for  regulating  the  classification  of  the   civil services  in India, the methods of their recruitment,  their conditions  of service, pay and allowances,, and  discipline and  conduct.   In exercise of this power the  Secretary  of State for India in Council framed certain rules in December, 1920, which with subsequent modifications were published  on the 27th May, 1930, as "The Civil Services  (Classification, Control arid Appeal) Rules." Rule 49 provides: " 49.  The following penalties may, for good and  sufficient reason and as hereinafter provided, be imposed upon  members of the services, comprised in any of the classes (1) to  (5) specified in rule 14, namely:-  (i) Censure. 38 (ii)Withholding   of  increments  or  promotion,   including stoppage at an efficiency bar. (iii)Reduction to a lower post or time-scale, or to a  lower stage in a time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v)  Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii)     Dismissal  from  the civil service of  the  Crown, which ordinarily disqualifies from future employment. Explanation.-The  termination of employment(a) of  a  person appointed on probation during or at the end of the period of probation,  in accordance with the terms of the  appointment and the rules governing the probationary service; or (b)  of  a temporary Government servant appointed  otherwise than  under  contract,  in accordance with  rule  5  of  the Central Civil Services (Temporary Service) Rules, 1949; or (c)  of  a  person engaged under a contract,  in  accordance with  the terms his contract does not amount to  removal  or dismissal within the meaning of this rule or of rule 55]. The, relevant portion of rule 55 runs thus "  55.   Without prejudice to the provisions of  the  Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which had led to his conviction in  a  criminal Court or by a Court martial) unless  he  has been  informed  in  writing of the grounds on  which  it  is proposed  to take action, and has been afforded an  adequate opportunity                   of                   defending himself .......................................... The  rest  of  this  rule which lays  down  the  details  of procedure to be followed need not be quoted for our  present purpose.    Under   article  353  of   the   Civil   Service Regulations,  no  pension  may  be  granted  to  an  officer dismissed or removed for misconduct, insolvency or 39 inefficiency,  but  to  officers  so  dismissed  or  removed compassionate  allowances  may  be  granted  when  they  are deserving  of  special  consideration,  provided  that  such allowance  shall not exceed two-thirds of the pension  which would  have  been  admissible to him if he  had  retired  on medical certificate. It  will  be noticed that the rules just  referred  to  con- template  and  provide for both dismissal and  removal  from



service.   As  regards pension both  dismissal  and  removal stand on the same footing, namely, that both of them  entail loss  of pension and even when a compassionate allowance  is granted in either case such’ allowance is much less than the pension  that had been earned.  The only difference  between dismissal  and  removal is that while  dismissal  ordinarily disqualifies  the  officer from future  employment,  removal does  not.  It may also be mentioned here that although  the power  of  dismissal  at  pleasure  was  "  subject  to  the provisions  of this Act and of the rules made  thereunder  " the  Judicial Committee held in Rangachari v.  Secretary  of State(1)  and  in Venkatarao v. Secretary of  State(2)  that those  opening words of section 96B(1) did not  qualify  the unfettered  discretion of the Crown to dismiss a servant  at pleasure  and  that  the  remedy  of  the  servant  for  the violation  of  the rules was not by a law suit  but  by  ’an appeal of an official or political kind. Then came the Government of India Act, 1935.  Section 240 is important  for our purpose.  The relevant portions  of  that section were as follows: "  240. (1) Except as expressly provided by this Act,  every person  who is a member of a civil service of the  Crown  in India,  or  holds any civil post under the Crown  in  India, holds office during His Majesty’s pleasure. (2)  No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to  that by which he was appointed. (3)  No  such  person  as aforesaid shall  be  dismissed  or reduced in rank until he has been given a reasonable (1)  L.R. 64 I.A. 40; A.I.R. 1937 P.C. 27. (2)  L.R. 64 I.A. 55; A.1,R. 1937 P.C. 37, 40 opportunity of showing cause against the action proposed  to be taken in regard to him." The  rest  of the section is not material  for  the  present discussion.   In  short,  sub-section  (1)  reiterated   the English  constitutional theory, sub-section  (2)  reproduced the  restriction introduced by section 96B (1) of  the  1919 Act  and  sub-section (3) gave statutory protection  to  the rights   conferred  by  rule  55  of  the  Civil   Service,% (Classification, Control and Appeal) Rules but which,  prior to  this Act of 1935, had been held by the Privy Council  in the  two  last  cited cases to be  ineffective  against  the Crown’s  plenary power of dismissal.  It will,  however,  be noticed that in sub-section (3) the word " removed " was not used,  although that word occurred in rule 55 and the  other rules  quoted above.  It was, however, held in I.  M.  Lal’s case(1)  that  removal  was  within  section  240(3),  which conclusion   implies  that  removal  is   comprised   within dismissals  The position, therefore, is that both under  the rules  and according to the last mentioned decision  of  the Judicial  Committee  there  is  no  distinction  between   a dismissal and a removal except that the former  disqualifies from future employment while the latter does not. Finally,  we  have our new Constitution.   Article  3  10(1) reiterates the constitutional theory of the tenure of office being during the pleasure of the President, the Governor  or Rajpramukh  as the case may be.  Article  311(1)  reproduces the provisions of section 240(2) of the Government of  India Act,  1935.   Clause  (2) of article 311,  leaving  out  the proviso, runs thus: "(2).  No such person aforesaid shall be dismissed,  removed or  reduced  in rank until he has been  given  a  reasonable opportunity of showing cause against the action proposed  to be taken in regard to him."



The word " removal " which is used in the rules is also used in  this  clause  and it may safely be  taken,  for  reasons stated  above,  that  under  the  Constitution  removal  and dismissal  stand  on the same footing except  as  to  future employment.   In  this  sense removal is but  a  species  of dismissal.  Indeed, in our recent decision (1)  L.R- 75 I,A. 225; A.I.R. 1948 P.C. 121. 41 in Satischandra Anand v. The Union of India(1) it has  been’ said  that these terms have been used in the same  sense  in article 31 1. Removal,   like  -dismissal,  no  doubt  brings   about.   a termination of service but every termination of service does not  amount  to dismissal or removal.’ A  reference  to  the Explanation  to rule 49 quoted above will show that  several kinds of termination of service do not amount to removal  or dismissal.   Our recent decision in Satishchandra  Anand  v. The  Union  of India (supra) fully supports  the  conclusion that article 311 does not apply to all cases of. termination of  service.   That was a case of a contract  for  temporary service being terminated by notice under one of the  clauses of  the  contract itself and fell within clause (c)  of  the Explanation  to  rule 49 and article 311 was  held  by  this Court not to have any application to the case.  The question then  is whether a termination of service brought  about  by compulsory  retirement  is  tantamount  to  a  dismissal  or removal  from  service so as to attract  the  provisions  of article 311 of the Constitution.  The answer to the question will  depend  on  whether the nature and  incidents  of  the action resulting in dismissal or removal are to be found  in the action of compulsory retirement. There  can  be no doubt that,removal--I am  using  the  term synonymously  with  dismissal-generally  implies  that   the officer  is  regarded  as  in  some  manner  blameworthy  or deficient,  that is to say, that he has been guilty of  some misconduct or is lacking in ability or capacity or the  will to  discharge  his  duties as he should do.  The  action  of removal  taken  against him in such  circumstances  is  thus founded  and  justified  on  some  ground  personal  to  the officer.  Such grounds, therefore, involve the levelling  of some  imputation  or charge against the  officer  which  may conceivably  be  controverted or explained by  the  officer. There is no such element of charge or imputation in the case of   compulsory  retirement.   The  two   requirements   for compulsory  retirement  are that the officer  has  completed twenty  five  years’ service and that it is  in  the  public interest  to dispense with his further services It  is  true that (1)  [1953] S.C.R. 655 at p. 659. 42 this  power  of compulsory retirement may be used  when  the authority  exercising  this power  cannot  substantiate  the misconduct which may be the real cause for taking the action but what is important to note is that the directions in  the last sentence in Note 1 to article 465-A make it  abundantly clear  that an imputation or charge is not in terms  made  a condition for the exercise of the power.  In other words,  a compulsory  retirement  has  no  stigma  or  implication  of misbebaviour or incapacity. in the present case there was no doubt  some  imputation against the appellant which  he  was called  upon to explain but it was made perfectly  clear  by the letter of the 4th January, 1950, that the Government was not  holding any formal enquiry under rule 55 of  the  Civil Services (Classification, Control and Appeal) Rules and that before  taking  action  for his  compulsory  retirement  the



Government desired to give him an opportunity to show  cause why  that action should not be taken.  In other  words,  the enquiry was to help the Government to make up its mind as to whether  it was in the public interest to dispense with  his services.  It follows, therefore, that one of the  principal tests  for  determining  whether a  termination  of  service amounts  to  dismissal or removal is absent in the  case  of compulsory retirement. Finally,  rule  49 of the  Civil  Services  (Classification, Control  and Appeal) Rules clearly indicates that  dismissal or  removal is a punishment.  This is imposed on an  officer as  a Penalty.  It involves loss of benefit already  earned. the officer dismissed or removed does not get pension  which he has earned.  He may be granted a compassionate  allowance but   that,   under  article  353  of  the   Civil   Service Regulations, is always less than the pension actually earned and  is even less than the pension which he would  have  got had he retired  medical certificate.  But an officer who  is compulsorily  retired does not lose any part of the  benefit that  he  has earned.  On compulsory retirement he  will  be entitled  to the pension etc. that he has  actually  earned. There  is  no diminution of the accrued benefit It  is  said that  compulsory  retirement,  like  dismissal  or  removal, deprives the officer of the chance of serving 43 and  getting  his pay till he attains the  age  of  superan- nuation  and thereafter to get an enhanced pension and  that is  certainly  a punishment.  It is true that in  that  wide sense the officer may consider himself punished but there is a  clear  distinction between the loss  of  benefit  already earned  and the loss of prospect of earning something  more. In  the first- case it is a present and certain loss and  is certainly  a punishment but the loss of future  prospect  is too  uncertain,  for  the officer may die  or  be  otherwise incapacitated   from  serving  a  day  longer  and   cannot, therefore,,  be  regarded  in  the  eye  of  the  law  as  a punishment.  The more important thing is to see whether b  y compulsory  retirement the officer loses the benefit he  has earned  as he does by dismissal or removal.  The  answer  is clearly in the negative.  The second element for determining whether  a  termination of service amounts to  dismissal  or removal   is,  therefore,  also  absent  in  the   case   of termination   of   service  brought  about   by   compulsory retirement. The  foregoing  discussion  necessarily  leads  us.  to  the conclusion  that a compulsory retirement does not amount  to dismissal  or removal and, therefore, does not  attract  the provisions of article 311 of the Constitution or of rule  55 and  that, therefore, the order of the President  cannot  be challenged  on  the ground that the appellant had  not  been afforded  full  opportunity of ’showing  cause  against  the action  sought  to  be  taken in regard  to  him’  Both  the questions under consideration must also be answered  against the appellant. The  result, therefore., is that this appeal fails and  must stand dismissed.  In the circumstances of this case we  make no order as to costs.                                   Appeal dismissed. 44