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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: MANOHAR LAL

DATE OF JUDGMENT10/12/1986

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PATHAK, R.S. KHALID, V. (J)

CITATION:  1987 AIR  201            1987 SCR  (1) 503  1986 SCC  Supl.  524     JT 1986  1012  1986 SCALE  (2)1001

ACT:     Punjab  Civil  Services  (Premature  Retirement)  Rules, 1975;  rr.  2(i),  3,  12.1  &  13.9(2)--Sub  Inspector   of Police--Competent  Authority  to pass  order  of  compulsory retirement--The Authority to make appointment-Superintendent of Police.

HEADNOTE:     Rule  3 of the Punjab Civil Services (Premature  Retire- ment)  Rules,  1975 empowers the  appropriate  authority  to retire  an  employee  on  the date  on  which  he  completes twenty-five  years of qualifying service, or  attains  fifty years  of  age or thereafter, in public  interest  by  prior notice  in writing of not less than three months. Rule  2(1) designates  the  officer having powers to  make  substantive appointments  to  the post as the  ’appropriate  authority’. Rule  12.1  categorises  Superintendents of  Police  as  the authority competent to make appointments to the non-gazetted ranks  of Sub-Inspectors and Assistant Sub Inspectors.  Rule 13.9(2) empowers Deputy Inspector General of Police to  make substantive promotions to the rank of Assistant  Sub-Inspec- tor in accordance with r. 13.1.     The  respondent  who  was working  as  Sub-Inspector  of Police  was  compulsorily  retired by an  order  dated  24th September,  1975  issued  by the  Senior  Superintendent  of Police.  He was earlier suspended from service  with  effect from 5th September, 1974. A suit filed by him for a declara- tion that the said order was illegal, mala fide, unconstitu- tional,  and against the rules of natural justice  was  dis- missed  by the trial court holding that the  impugned  order was  not vitiated by any malice or mala fides,  having  been innocuously made in public interest, and decreed the suit in part  for the arrears of salary for the  suspension  period. Both the State and the respondent preferred appeals.     The  appellate court allowing the  respondent’s  appeal, held that the order of compulsory retirement was made by  an officer  who  was  below the rank of  Inspector  General  of Police,  the ’appointing authority’ of the  petitioner,  and that  the  judgment  and decree as regards  the  payment  of balance of emoluments for the period of suspension after the

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reinstatement  was legal and valid and dismissed the  appeal filed by the State. The High Court dismissed the second appeal preferred by  the State. 504 Allowing  the State’s appeal by special leave in  part,  the Court,     HELD:  In  view of the specific provision made  in  role 12.1  of  the Punjab Civil Services  (Premature  Retirement) Rules,  1975 that the Superintendent of Police is  competent to  make the appointment to the non-gazetted ranks  of  Sub- Inspectors  of Police, the contention that only  the  Deputy Inspector  General of Police was competent to make  the  im- pugned order cannot be sustained. [507G]     Rule  12.1  read  with rule 13.9(2) makes  it  dear  and apparent that the Senior Superintendent of Police was legal- ly competent to make the order of compulsory retirement of a Sub-Inspector  of  Police from service  in  public  interest after  attaining  50 years of age, in  accordance  with  the provisions of rule 3(1) (a) and (b) of the Rules. The  order of  retirement  made in the instant  case,  was,  therefore, legal and valid. [50711]     The  decree  of the lower. "appellate court  as  regards payment  of the balance of pay for the period of  suspension of the respondent is affirmed. [508B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2416 of 1981      From  the  Judgment and Order dated  21.1.1981  of  the Punjab and Haryana High Court in R.S.A. No. 2985 of 1980. Rajinder Sachar and R.S. Sodhi for the Appellants.      M.K.  Ramamurthy, N.K. Agarwala and S.K. Puri  for  the Respondents. The Judgment of the Court was delivered by      RAY,  J.  This appeal by special leave is  against  the judgment and decree passed in Regular S.A. No. 2868 of  1980 by the High Court of Punjab & Haryana whereby the appeal was dismissed.      The  respondent,  Manohar Lal who was at  the  relevant time working as Sub-Inspector in the Police Line,  Gurdaspur was compulsorily retired by Order NO. 9754-B dated 24.9.1975 issued by Shri M.M. Batra, Senior Superintendent of  Police, Gurdaspur, in public interest. The said order of 505 compulsory retirement has been challenged by the  respondent by  filing  a suit being case No. 86 of 1977 praying  for  a declaration  that the aforesaid order of compulsory  retire- ment  is illegal. mala fide. unconstitutional,  against  the rules of natural justice and the plaintiff-respondent  shall be  deemed to be in service of the Punjab State to the  post of Sub-Inspector till his retirement at the age of 58  years i.e. on 13.2.1986. There is also a prayer for a direction to the  defendent-appellant for payment of the balance  of  the salary  for  the period from 5.9.1974 to 23.9.1975  i.e  the suspension period after deducting therefrom the  subsistence allowance paid by the defendent and also the increment  that had accrued to him under the rules from time to time  during that period. This amount was stated to be Rs. 3,446 for  the said  period.  The said suit was heard  by  the  Subordinate Judge,  Gurdaspur who by his order dated 27th January,  1979 held that the impugned order was not passed at the  instance of  Sardar Harjit Singh Ahluwalia, Deputy Inspector  General

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of  Police nor the same was vitiated by malice or  any  mala fides.  It was further held that the order was made  innocu- ously  by  the  Senior Superintendent of  Police  in  public interest  in accordance with the provisions of Punjab  Civil Services (Premature Retirement) Rules, 1975. The Subordinate Judge  also  held that so for as the pay for the  period  of suspension  is concerned the plaintiff was entitled to  have recovery  of Rs. 3,446 as arrears of pay during the  suspen- sion  period.  The  suit was accordingly  decreed  in  part. Against the said judgment and decree two appeals were filed, one by the plaintiff--respondent Manohar Lal being C.A.  No. 169/308  of 1979 and another by the State of  Punjab  regis- tered  as  C.A. No. 170 of 1979 and 12 of 1980.  Both  these appeals were heard together and were disposed of by a common judgment  by the Additional Sessions Judge,  Gurdaspur.  De- creeing  the  Civil Appeal No. 169/308 of 1979 it  was  held that  the  order  of compulsory retirement was  made  by  an officer  namely Senior Superintendent of  Police,  Gurdaspur who was below the rank of Inspector General of Police who is the appointing authority of the petitioner. It was also held that  the judgment and decree as regards the payment of  the balance of emoluments during the period of suspension  after the reinstatement of the petitioner, was legal and valid and the  said  decree was affirmed and the  appeal  was  allowed decreeing  the suit. In that view of the matter  the  appeal filed by the State was dismissed. Against the said  judgment and decree the State of Punjab preferred the instant  appeal being  R.S.A.  No.  2868 of 1980 before the  High  Court  of Punjab and Haryana. The High Court dismissed the said appeal and affirmed the judgment and decree of the lower  appellate court.  Against this judgment and decree the present  appeal was filed before this Court with an application for  special leave under Article 136 of the Constitution.     The only question that arises for consideration in  this appeal is whether the order of compulsory retirement made by the Senior Superintendent of 506 Police, Gurdaspur is illegal and invalid being passed by  an authority lower in rank than the appointing authority  which according to the respondent is the Deputy Inspector  General of  Police. It appears that the Government of Punjab  framed rules  under proviso to Article 309 of the Constitution  and these rules are termed as the Punjab Civil Services  (Prema- ture Retirement) Rules, 1975. In Rule 2(1) the  ’Appropriate Authority’  has been defined as meaning the authority  which has  power to make substantive appointments to the  post  or service  from which the Government employee is  required  or wants to retire or any other authority to which it is subor- dinate. Rule 3 reads as follows:--               "3(1)(a)  The appropriate authority shall,  if               it  is  of the opinion that it  is  in  public               interest to do so, have the absolute right, by               giving an employee prior notice in writing, to               retire  that employee on the date on which  he               completes  twenty-five  years  of   qualifying               service  or attains fifty years of age  or  on               any  date  thereafter to be specified  in  the               notice.               (b)  The  period of such notice shall  not  be               less than three months:                          provided that where at least  three               months’  notice is not given or notice  for  a               period  less than three months is  given,  the               employee  shall  be entitled to  claim  a  sum

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             equivalent  to  amount of his pay  and  allow-               ances,  at  the  same rates at  which  he  was               drawing  them immediately before the  date  of               retirement for a period of three months or, as               the case may be, for the period by which  such               notice falls short of three months." The relevant excerpt of Rule 12.1 is quoted herein below:--               "The following table summarises the directions               given  by  the  provincial  Government   under               Clause  (b) of Sub-Section (1) of Section  241               of  the  Government  of India  Act,  1935,  in               regard  to the authorities competent  to  make               appointments to the nongazetted ranks.               507               ---------------------------------------------------- --------               Class  of      Authority  to  whom  the  power               The extend of               Government     of  appointment  is   delegated               the delegation               Servants               ---------------------------------------------------- --------               Inspectors      Deputy  Inspector-General   of               Full powers                             police,   Assistant    Inspector               subject to rules                             -General,             Government               Governing the                             Railway         Police,Assistant               conditions of                             Inspector   General,   Provincil               service as defi-                             Additional    Police,(designated               ned in Police                             as          Commandant,Provincil               Rules.                             Additional Police), and the                             Assistant Inspector-General                             Police (Traffic)               Sergeants     Superintendents of Police               Sub-Inspect-  Commandants of P.A.P vide No.               ors and Ass-  155 dated 2nd June,1964 and               istant Sub-   Deputy Superintendent (admi-               Inspectors.   nistrative), Government                             Railway Police and Assistant                             Superintentend, Government                             Railway Police               ---------------------------------------------------- --------               Rule  13.3(2) also provides  that  substantive               promotions  to the rank of Sub  Inspector  and               Assistant  Sub-Inspector shall be made by  the               Superintendent  of  Police and  the  Assistant               Superintendent, Government Railway Force.                   On  considering  the  provisions  of   the               aforesaid rules it is quite clear and apparent               that  the  Senior  Superintendent  of  Police,               Gurdaspur  being  the competent  authority  to               make the appointment to the non-gazetted ranks               of  Sub-Inspectors, is also legally  competent               to pass the order of compulsory retirement  of               the plaintiff respondent in public interest in               accordance   with  the   provisions  of   Rule               3(1)(a) and (b) of the said rules. It has been

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             tried  to  be contended by  referring  to  the               provisions  of Rule 13.9, Sub-Rule (2) by  the               respondent  wherein it has been provided  that               substantive promotion to the rank of Assistant               Sub-Inspector  is  to be made  by  the  Deputy               Inspector General of Police in accordance with               the  principles prescribed in Rule  13.1  that               the Superintendent of Police is not the compe-               tent authority to make the impugned order.  It               is only the Deputy Inspector General of Police               who is competent to make the order of  compul-               sory  retirement  in question.  This  argument               cannot  be sustained in view of  the  specific               provisions  made in Rule 12.1 wherein  it  has               been  provided  that  the  Superintendent   of               Police is competent to make the appointment to               the  non-gazetted ranks of Sub  Inspectors  of               Police and Assistant Sub-Inspectors of Police.               On  a reading of both these provisions of  the               Rules 12.1 and 13.9(2) it is clear and  appar-               ent that the Senior Superintendent of  Police,               Gurdaspur  is  legally competent to  make  the               impugned order of compulsory retirement of the               plaintiff  respondent from service  in  public               interest  after his attaining 50 years of  age               in accordance with               508               the provisions of Rules 3(1)(a) of the  Punjab               Civil  Services (Premature Retirement)  Rules,               1975.                   In view of the reasons stated hereinbefore               we  do  not find any merit in  the  contention               made on behalf of the respondent and therefore               we allow the appeal and set aside the judgment               and order of the High Court in part in so  far               as  it affirms the judgment and decree of  the               lower appellate court, setting aside the order               of  compulsory  retirement. The  judgment  and               decree  of the trial court is hereby  affirmed               and the decree of the lower appellate court as               regards  the  payment of Rs. 3,446  being  the               balance of pay after deducting the subsistence               allowance  during the period of suspension  of               the respondent from 5.9. 1974 and 23.9.1975 is               hereby  affirmed. There will, however,  be  no               order as to costs.               P.S.S.               Appeal allowed.               509