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PETITIONER: TARA SINGH ETC.  ETC.

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ORS.

DATE OF JUDGMENT19/03/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN KRISHNAIYER, V.R.

CITATION:  1975 AIR 1487            1975 SCR  (3)1002  1975 SCC  (4)  86  CITATOR INFO :  RF         1976 SC1686  (23)  R          1976 SC1841  (9)  R          1976 SC2581  (11)  F          1977 SC 854  (9)  R          1979 SC 193  (39)  R          1980 SC 563  (22)

ACT: Rajasthan  Service  Rules, r.  244(2)--Scope  of--Compulsory retirement  of Government Servants--if violates  fundamental rights--Delegation of power to collectors, if excessive.

HEADNOTE: All   the   petitioners  were  compulsorily   retired   from Government service under r. 244(2) of the Rajasthan  Service Rules.   In all the cases the orders stated that  compulsory retirement was being done in public interest.  In  petitions under art. 32 of the Constitution the petitioners  contended (i)  that compulsory retirement under r. 244(2), which  does not  prescribe the minimum age of compulsory  retirement  is not only removal within the meaning of art. 311 but is  also unguided  discretionary  and discriminatory power  and  (ii) that  permanence involves right to continue in service  till one attains the age of superannuation. Dismissing the petitions. HELD  : (1) The right to be in public employment is a  right to  hold  it  according  to rules.  The  right  to  hold  is defensible   according  to  rules.   The  rules   speak   of compulsory retirement.  There is guidance in the rules as to when  such  compulsory  retirement is  made.   When  persons complete  25  years of service and the  efficiency  of  such persons is impaired and yet it is desirable not to bring any charges  of  inefficiency  or  incompetency  the  Government passes  orders  of compulsory  retirement.   The  Government servant  in  such cases does not lose the benefits  which  a government servant has already earned.  These orders of com- pulsory  retirement are made in public interest.  This is  a safety valve of making such orders so that no  arbitrariness or bad faith creeps in. [1009 E-G] In appendix 9 to Rajasthan Service Rules, Vol. 11 the  power to retire a Government servant after completion of 25  years

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of  service in the case of ministerial service is  conferred on  the  appointing authorities.  In the  present  case  the appointing  authority is the Collector.  The content of  the power  is  not  changed  by  any  amendment  of  the   rule. Therefore,  the delegation is valid.  There is no stigma  in any of the impeached compulsory orders of retirement.  [1009 G-H] (2)  (a) Rule 244(2) as it stands now does not  specifically mention  that  an  order  is to  be  passed  in  the  public interest.  The notes to the rule indicate that the right  to pass  an order of compulsory retirement is to  be  exercised only  against  the Government servant  whose  efficiency  is impaired and against whom it is not desirable to make formal charges  of  inefficiency  or who has  ceased  to  be  fully efficient  but  not  to  such a degree  as  to  warrant  his retirement  on compassionate allowance.  The  notes  further say  that  it  is not the intention to use this  rule  as  a financial weapon, that is to say, that the provision  should be  used  only in the case of Government  servants  who  are considered  unfit  for retention on personal as  opposed  to financial grounds. [1007 G-1008 A] (b) The notes are promulgated with the rules in exercise  of legislative  power.   The notes are  made  contemporaneously with  the  rules.  The function of the notes is  to  provide procedure  and to control discretion.  The real  purpose  of the notes is that when rules are silent the notes will  flit up gaps. [1008 A-B] (c)The  notes which are appended to rules are to  aid  not only in applying the rules but also in interpreting the true import of the rules. [1009 A-B] Shyam  Lal v. The State of U.P. [1955] 1 S.C.R. 26 and  T.C. Shivachandra Singh v. The State of Mysore, A.I.R. 1965  S.C. 280 referred to. (d) Although the Government cannot supersede statutory rules by administrative instructions yet if the rules framed under art. 309, of the Constitution are 1003 silent on any particular point, the Government could fill up gaps  and  supplement the rules and issue  instructions  not inconsistent  with  the  rules  already  framed  and   these instructions will govern the conditions of service. [1009 C] In the present case the. notes are part of the rules because they  are  for the guidance of the parties.   They  are  not inconsistent with the rules but are intended to fill up gaps where the rules are silent.  The only question here is  that formerly the rules said that compulsory retirement would  be made  in  public  interest but the  present  rule  does  not contain  that  part of the old rule.  The deletion  of  that part of the rules did not mean that the orders of compulsory retirement  were not made in public interest.  The notes  to the rules make explicit what is implicit in the rules. [1009 D-E] Union  of  India  v.  K. P. Joseph,  [1973]  2  S.C.R.  752, referred to.

JUDGMENT: ORIGINAL  JURISDICTION  : Writ Petitions  Nos.  1253,  1353. 1448, 1898 and 270 of 1973. Petitions under Article 32 of the Constitution of India. R.  K. Garg and S. C. Agrawal, for the Petitioners (in  WPs. 1253, 1448 and 1898/73.) S.  K.  Mehta,  K. R. Nagaraja and  M.  Qamaruidin  for  the Petitioners in W.Ps. Nos. 1353 and 270/73.

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Maya Rao, for Respondent (in W.P. No. 270/70). L. M. Singhvi, A. G. Rajasthan, in W.Ps. Nos. 1253 & 1898/73 only) and S. M. Jain for the Respondents, (in rest of W.Ps.) The Judgment of the Court was delivered by RAY.   C.J.-These writ petitions challenge the  validity  of orders of compulsory retirement.  In writ petition No.  1253 of  1973  the petitioner was served with an order  dated  30 March, 1973.  The order was as follows :-               "Whereas Shri Tara Singh Patwari has completed               25 years of qualifying service and whereas the               State  Government is satisfied that it  is  in               public  interest  to  dispense  with   further               service of the said Government servant.               Now, therefore, in pursuance of the delegation               made  under  Rule  244(2)  of  the   Rajasthan               Service  Rules vide Finance  Department  Order               No. F. 1(34)FD-A (Rules/62) dated 13.12.63 the               undersigned  hereby gives notice to  the  said               Shri  Tara Singh requiring him to retire  with               effect  from  the  date of  the  expiry  of  3               calendar  months  from  the  service  of  this               notice   on   him  and  further   orders   the               compulsory retirement of Shri Tara Singh  with               effect from the said date.                                      Sd/- Collector,                                         Ganganagar." In writ petition No. 1353 of 1973, the petitioner was served with an identical order dated 30 March, 1973. 1004 In writ petition No. 1448 of 1973 the petitioner was  served with an order dated 28 April, 1973.  The order was in  terms similar  to  that in writ petition No. 1253 of  1973  except that  the order did not state that "the State Government  is satisfied that it is in public interest to dispense with the service of the, petitioner". In writ petition No. 1898 of 1973 the petitioner was  served with  an order dated 4 November, 1973 where also’ the  order did not state that the compulsory retirement was made by the Government  on  being  satisfied  that  it  was  in   public interest. In  writ petition No. 270 of 1973 the petitioner was  served with  an order dated 30 March, 1970.  The order was  similar to  writ  petition  No.  1253  viz.,  that  the   petitioner completed 25 years of qualifying service and the  retirement was in public interest. Counsel  on  behalf  of the petitioners  contends  that  the orders are bad because they violate Articles 14, 19 (1) (f), 31 and 311. It  is said that Article 14 is violated because there is  no guidance  as to who will be selected and on what  basis  the selection  will  be  made for  compulsory  retirement.   The impeached  orders  are  said to violate  Article  19(1)  (f) because  it is an unreasonable restriction on the  right  to continue until the age of superannuation which is 55  years. It  is emphasized that there is a right to continue as  long as  one  is  physically  fit.   The  orders  of   compulsory retirement  are challenged to violate Article 31 because  it is  deprivation of property without authority of law.   Lack of authority of law is said to be infraction of Articles  14 and  19.  The orders are also said to infringe  Article  311 because  these  are made to remove persons  from  Government service. Counsel   for  the  petitioners  also  contended  that   the Government   delegated  power  under  the  old  rules   and, therefore, the orders were bad. it was said in writ petition

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No.  1253 of 1973 that the order was made by  the  Collector pursuant  to delegation under Rule 244(2) of  the  Rajasthan Service  Rules  under order dated 13  December,  1963.   The rules  were amended in 1963 and again in 1972 and there  was no  delegation  under the amended rules which  governed  the parties. Rule 244(2) of the Rajasthan Service Rules as it stood prior to  the 1963 and 1972 amendments is set out in the  decision in  Ganga Ram v.  State of Rajasthan(1).  Rule 244  and  the notes thereto are set out hereunder :-               "(1)  A  Government servant  may  retire  from               service  any  time after completing  30  years               qualifying service provided that he shall give               in  this  behalf, a notice in writing  to  the               appropriate  authority,  at  least  3   months               before the date on which he wishes to retire.               (2)Government  retains  an absolute  right  to               retire  any :Government servant after  he  has               completed 25 years qualifying service  without               giving  any  reasons and no claim  to  special               compensation   on   this   account   will   be               entertained. (1) I.L.R. 1961 Raj. 371. 1005 This right will not be exercised except when it is in public interest  to dispense with further service of  a  Government servant.                            Notes               1.  The  right  conferred  by  r.  244(2)   is               intended  to  be  exercised  only  against   a               Government   servant   whose   efficiency   is               impaired, but against whom it is not  desirabe               to make formal charges inefficiency or who has               ceased to be fully efficient but not to such a               degree   as  to  warrant  his  retirement   on               compassionate   allowance,  It  is   not   the               integration  to use this rule as  a  financial               weapon, that is to say, the provision would be               used  only in the case of Government  servants               who  are  considered unfit  for  retention  on               personal as opposed to. financial grounds.               2. Compulsory retirement under this rule does-               not  attract  the  provisions  of  cl.(2)   of               Article  311 of the Constitution because  such               retirement  is not conceived as a penalty  but               as  the  exercise  of  a  right  reserved   to               Government  of retiring a  Government  servant               after  he has served for a certain  length  of               time.  Accordingly, the procedure laid down in               the Rajasthan Civil Services  (Classification,               Control   and   Appeal)  Rules,   for   formal               proceeding against Government servants  before               removing  them  from service is not  meant  to               apply to such cases." Rule  244 was amended by notification dated 31 August,  1963 as will appear from Rajasthan Code Vol.  I Part B  corrected up to 31 December, 1967 Fourth Edition.  The amended rule is as follows               "244(1) A Government servant may, after giving               at  least  three months’  previous  notice  in               writing  to  the Government, retire  from  the               service  on the date on which he completes  30               years of qualifying service or attains the age               of  55 years or on any date thereafter  to  be               specified in the notice.

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             Provided that a Government servant of Class IV               can  seek retirement only if he has  completed               30 years of qualifying service.               "(2)  The Government may, after giving him  at               least three month’ previous notice in  writing               require  a Government servant to  retire  from               the service on the date on which he  completes               25 years of qualifying service or attains  the               age, of 55 years or on any date thereafter  to               be specified in the notice               Provided that a Government servant of Class IV               can only be required to retire on the date  on               which  he  completes 25, years  of  qualifying               service or on any date thereafter." 1006 Rule 244 was again amended by notification dated 19  August, 1972.Rule 244 as amended is set out hereunder :-               "244(1)  Government servant may, after  giving               at  least  three  months  previous  notice  in               writing  to  the Government, retire  from  the               service  on the date on which he completes  30               years of qualifying service or attains the age               of  55 years or on any date thereafter  to  be               specified in the notice :               Provided that a Government servant of Class IV               can  seek retirement only if he has  completed               36 years of qualifying :service.               (2) The Government may, after giving at  least               three months, previous notice in writing or by               payment of three months pay and allowances  in               lieu  of  such  notice  require  a  Government               servant to retire from the service on the date               on  which he completes 25 years of  qualifying               service or on any date thereafter". The  notes  which  were  appended to  Rule  244  before  the amendment  dated 31 August, 1963 remained as notes  to  Rule 244  after both the amendments dated 31 August, 1963 and  19 August,  1972.  The notes were promulgated  along  with  the Rules by the Rajpramukh under Article 309. Cousel for the petitioners contended as follows.  The job of the, permanent employee is not only property but perhaps the only property.  Permanence involves the right to continue in service  until one attains the age when one renders  oneself not physically fit to discharge one’s duty.  The proper  age of  superannuation must be fixed on the scientific basis  of the  normal  expectation  of life.   Rule  244(2)  does  not prescribe  a minimum age for compulsory retirement and  thus permits  compulsory  retirement of  a  permanent  government servant  long before the permissible age of  superannuation. This  is not only removal within the meaning of Article  311 but  is  also an unguided discretionary  and  discriminatory power. With  regard to writ petition No. 1898 of 1973 it  was  said that  thel,order  was passed though the petitioner  had  not completed 25 years of government service and the order  cast stigma on the conduct and integrity of the petitioner. In  T. C. Shivacharana Singh v. The State of Mysore(1)  rule 285  of the Mysore Civil Service Rules 1958  which  confered power on the Government to retire compulsorily a  Government servant in public (1) A.I. R. 1965 S.C 280 1007 interest  on his completing twenty five years of  qualifying service  or attaining fifty years of age, though the age  of normal   superannuation  under  rule  95(a)  was  fixed   at

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fiftyfive years was upheld on the ground that the rule  laid down a reasonably long period of qualifying service. This  Court in R. L. Butail v. Union of India(1)  held  that there  are  two  exceptions to the  protection  afforded  by Article 311(2).  First, where a permanent public servant  is asked to retire on the ground that he has reached the age of superannuation which is reasonably fixed.  Second, where  he is  compulsorily  retired under rules  which  prescribe  the normal  age of superannuation and provide a reasonably  long period  of qualifying service after which  alone  compulsory retirement   can  be  ordered.   Article  311   deals   with termination of service by way of punishment. In Butail’s(1) case Fundamental Rule 56(j) confers power  on the  Government  to  pass an order to  retire  a  Government servant  after her has attained the age of 55 years  if  the Government  is  of  the opinion that it  is  in  the  public interest to do so. This  Court in Union of India v; Col.  J. N.  Sinha(2)  said that  if the authority bona fide formed the opinion to  pass an order of retirement the. correctness of the opinion could not  be challenged though the aggrieved party could  contend that the opinion was formed on collateral grounds or was  an arbitrary decision. In   Sinha’s(2)  case  this  Court  said   that   compulsory retirement  is  not taking any penal action.   An  order  of compulsory  retirement  is really passed after  taking  into consideration  the rights of the Government servant  on  the one  hand  and the interest of the public  which  ordinarily coincides with the interest of Government on the other.   It is  also established that an order of compulsory  retirement does  not deprive the Government servant of benefits  earned till  the age of his retirement.  An order of retirement  is really  passed  on the basis of interest  of  administrative efficiency. Rule  244(2) as it stands now does not specifically  mention that  an order is to be passed in the public interest.   The notes  to the rule indicate that the right to pass an  order of  compulsory retirement is to be, exercised  only  against the  Government  servant whose efficiency  is  impaired  and against  whom it is not desirable to make formal charges  of inefficiency or who has ceased to be fully efficient but not to   such  a  degree  as  to  warrant  his   retirement   on compassionate  allowance.  The notes further say that it  is not the intention to use this rule as a financial (2) [1971] 1 S.C.R. 791. (1) [1971] 2 S.C.R. 55. 1008 weapon,  that is to say, that the provision should  be  used only ill the case of Government servants who are  considered unfit  for  retention on ,personal as opposed  to  financial grounds.   The  notes  are promulgated  with  the  rules  in exercise   of  legislative  power.   The  notes   are   made contemporaneously with the rules.  The function of the notes is to provide procedure and to control discretion. The  real purpose  of  the ,notes is that when rules  are  silent  the notes will fill up gaps. This Court in Shyam Lal v. The State of U.P. (1)  considered Article  465-A  and  Note-1 appended thereto  in  the  Civil Service  Regulations  relating to the retiring  pensions  of officers.   Article  465A  inter  alia  stated  "A  retiring pension  is  also granted to an officer who is  required  by Government  to retire after completing twentyfive  years  of service  or more".  In Shyam Lal’s(1) case Note 1 which  was appended  to  Article  465-A-was not only  referred  to  but relied upon.  Note 1 stated "Government retains an  absolute

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right to retire any officer after he has completed 25  years without  giving  any  reason and no claim  to  special  com- pensation  on  this account will be entertained.   The  note further  added by amendment later on "The right will not  be exercised  except when it is in public interest to  dispense with  the  further  service  of an  officer".   One  of  the contentions  in  Shyam  Lal’s(1) case was that  Note  1  was repugnant  to Article 311 of the Constitution.   This  Court did not accept that contention.  This Court said the purpose of  Note 1 is not to confer on the Government any new  right to  retire compulsorily an officer on completion  of  twenty five years of service but that it is intended to serve as  a reminder that the Government has such a right which it means to  retain.   The reason is that one retains only  what  one already possesses.  The word "retain" shows that it is not a fresh  right.  The right to retire compulsorily  is  derived from  Rule 4 which conferred on the Government the  absolute right  to retire an officer who completed  twentyfive  years service.  Article 465-A was based on Rule 4. In  Shivocharana  Singh’s(2) case the  order  of  compulsory retirement was challenged on the ground that note 1 to  Rule 285 in- the Mysore ,Civil Service Rules was not valid.  This Court held that the note applied to all government  servants and  was not open to challenge either under. Article  14  or Article 16.  ’The note was given effect to because the  note required  that the government servant against whom an  order of compulsory retirement was proposed to be passed must have completed  either 25 years of active service or attained  50 years of age. (1) [1955] 1 S.C.R. 26. (2) A.I.R. 1965 S.C. 280. 1009 Teh  reason  why we refer to these two  decisions  in  Shyam Lal’s(1)  and Shyamachandra Singh’s(2) cases is  that  notes which are appended to rules are of aid not only in  applying the  rules but also in interpreting the true import  of  the rules. InUnion   of  India  v.  K.  P.  Josepli(3)  this   Court considered the effectof a Government order.  Under  that order certain benefits would becomeapplicable        to certain   persons  who  completed  a  number  of  years   of service.   Brother Mathew, speaking for the Court said  that although the Government cannot supersede statutory rules  by administrative  instructions yet if the rules  framed  under Article 309 of the Constitution are silent on any particular point,  the Government can fill up gaps and  supplement  the rules and issue instructions not inconsistent with the rules already  framed  and  these  instructions  will  govern  the conditions of service. In the present case, the notes are part of the rules because they are for the guidance of the authorities.  They are  not inconsistent with the rules but are intended to fill up gaps where  the rules are silent. The only question here is  that formerly the rules said that compulsory retirement would  be made  in public interest but the present rule does not  con- tain that part of the old rule.  ’The deletion of that  part of  the  rule does not mean that the  orders  of  compulsory retirement  are not made in public interest.  ’The notes  to the rule make explicit what is implicit in the rules. The  right to be in public employment is a right to hold  it according  to  rules.   The  right  to  hold  is  defeasible according   to  rules.   The  rules  speak   of   compulsory retirement.  There is guidance in the rules as to when  such compulsory  retirement  is made.  When persons  complete  25 years  of  service  and the efficiency of  such  persons  is

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impaired and yet it is desirable not to bring any charge  of inefficiency  or incompetency, the Government passes  orders of  such compulsory retirement.  The Government  servant  in such  a case does not lose the benefits which  a  Government servant  has  already earned.  These  orders  of  compulsory retirement are made in public interest.  This is the  safety valve of making such orders so that no arbitrariness or  bad faith creeps in. in  Appendix 9 to the Rajasthan Service Rules Vol.   II  the power  to retire government servant after completion  of  25 years  of  service  is in the case  of  ministerial  service (gazetted and non-gazetted post) conferred on the appointing authorities.  In the present case, the appointing  authority is  the Collector.  The content of the power is not  changed by any amendment of the rule.  Therefore, the delegation  is valid. (1) [1955] 1 S.C.R. 26.      (2) A.I.R. 1965 S.C. 280. (3) [1973] 2 S.C.R.752. 1010 There  is  no  stigma  in any of  the  impeached  orders  of compulsory  retirement.   Counsel for the  petitioners  said that  the  order in writ petition No’ 1898 of the  1973  was passed  in the background that the petitioner  outlived  his utility  to  Government.  The, order does not say  so.   The order does not contain any stigma.  It was also said that he was  not  in  continuous  employment  for  25  years.    The petitioner  alleged his stage of service should  be  counted from 1 April, 1961.  The facts alleged by the State are that the  petitioner  was  appointed as  Assistant  Cashier  with effect from 5 December, 1942.  He was a minor at that  time. He  attained 18 years of age on 4 December, 1946.   He  com- pleted  his  qualifying service of 25 years on  4  December, 1971.  He has been in continuous service for 25 years. For  these  reasons  we are of opinion  that  the  order  of compulsory  retirement which are challenged do  not  violate Articles  14,  19,  31  and 311.  The  _writ  petitions  are dismissed.  Parties will pay and bear their own costs. P.B.R                          Petitions dismissed. L 564 Sup. CI/75-2500-20-12-75-GIPF. 1