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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: MADAN MOHAN NAGAR

DATE OF JUDGMENT: 05/01/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. RAO, K. SUBBA (CJ) SHAH, J.C. RAMASWAMI, V. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1260            1967 SCR  (2) 333  CITATOR INFO :  R          1967 SC1264  (6)  R          1971 SC2151  (13,18)

ACT:      Civil  Service--Officer retired stating  "outlived  his service"--Whether casts a stigma, and amounts to punishment.

HEADNOTE:      The  respondent was compulsorily retired from.  service under  article  465A,  note (1) of the  U.P.  Civil  Service Regulation,  after  he had completed more than 25  years  of qualifying service.  The order of retirement stated that the respondent  "head  outlived his  utility".   The  respondent challenged  the  order in the High Court.   The  High  Court quashed  the order.  In appeal to this Court  the  appellant contended  that the reason that the respondent had  outlived his  utility  did  not show that  the  order  of  compulsory retirement amounted to an order of dismissal or removal because  in  every  case of  compulsory  retirement  it  was implied that the person had outlived his usefulness. HELD : There was no force in the contention. The  test  to be applied is : does the order  of  compulsory retirement  cast  an  aspersion or attach a  stigma  to  the officer when it purports to retire him compulsorily.  In the present case the order did cast a stigma on the  respondent. [336 G] Jagdish  Mitter  v. Union of India A.I.R. [1964]  S.C.  449. followed. Two tests are derived from Shayam Lal’s case : the first  is whether the action is by Way of punishment and to find  that out it is necessary that a charge or imputation against  the officer is made the condition of the exercise of the  power; the  second is whether by compulsory retirement the  officer is  losing the benefit he has already earned as he  does  by dismissal  or removal. if the first test is applied in  this case  it is quite clear that the charge or  imputation  that the  respondent  had  outlived his  utility"  was  made  the condition of the exercise of the power. [338 E] Shyam  Lal v. The State of Uttar Pradesh [1965] 1 S.C.R.  26

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followed. Abdul  Ahad v. The Inspector General of Police, U.P.  A.I.R. [1965] AU. 142. overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 997 of 1965. Appeal  by special leave from the judgment and  order  dated July 25, 1963 of the Allahabad High Court in Special  Appeal No. 431 of 1962. S.   V.  Gupte, Solicitor-General, C. B. Agarwala and O.  P. Rana, for the appellant. J. P. Goyal and B. P. Jha, for the respondent. 334 The Judgment of the Court was delivered by Sikri,  J. The respondent, Shri Madan Mohan Nagar,  filed  a Writ  Petition in the High Court of Judicature at  Allahabad for  quashing the order of compulsory retirement dated  July 28,  1960,  passed  against him.  The  order  of  compulsory retirement was in the following terms:                "I  am directed to say that the Governor  has               been  pleased to order in the public  interest               under Article 465A and Note(1) thereof of  the               Civil  Service  Regulations,  the   compulsory               retirement with effect from September 1,  1960               of  Sri  Madan  Mohan  Nagar,  Director  State               Museum  Lucknow who completed 52 years of  age               on July 1, 1960, and 28 years and .3 months of               qualifying  service  on 31-5-1960  as  he  has               outlived his utility." The learned Single Judge who heard the petition quashed  the order  on  the ground that "Rule 465 of  the  Civil  Service Regulations   as  amended  by  the  U.P.  Government   while providing  a criterion for the guidance of  Government  when inflicting  compulsory  retirement on a  government  servant nevertheless   violates   the  guarantee  of   equality   of opportunity in matters relating to employment under  Article 16(1)" of the Constitution.  He further held that the  order inflicting  compulsory  retirement  on  the  petitioner  was invalid because it was passed in violation of the principles of natural justice. The  State appealed and the Division Bench on appeal  upheld the  order passed by the learned Single Judge on the  ground that  the  order  of compulsory  retirement  was  passed  in violation of the provisions of art. 311 of the  Constitution and was, therefore, ultra vires.  The State having  obtained special leave, the appeal is now before us. Before we deal with the arguments of the learned counsel for the  appellant, we may give a few facts and set out  Article 465(A) and Note(1) thereof of the Civil Service  Regulation, as  amended by the Government of Uttar Pradesh.  The  facts, in  brief,  are that the respondent was first  appointed  in 1931  on  one  year’s probation to the  post  of  Custodian, Sarnath Museum, Banaras, under the Archaeological Department of  the  Government  of India.  In 1939, he  was  posted  to Mathura   Museum   as   Curator,  and   he   was   appointed substantively to this post from January 5, 1941.  Later,  he was appointed on the recommendation of the Provincial Public Service commission as Curator of the State Museum,  Lucknow, on  a  scale  of pay Rs. 250/- to Rs. 850/-.   The  post  of Curator was upgraded to the post of Director, State  Museum, Lucknow, in the U.P. Educational Service, Senior Scale,  and the   respondent  was  appointed  to  it.   Thereafter   the respondent continued in service as Director of State

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                           335 Museum,  Lucknow, until he was compulsorily retired  by  the order  of  the Government, dated July 28,  1960,  which  has already  been  set out above.  It is common ground  that  no enquiry as contemplated by Art. 311(2) was held. The  relevant  part  of Article 465A of  the  Civil  Service Regulation is in the following terms:                "Government  retains the 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 shall be entertained.                This   right  shall  only  be  exercised   by               Government  in the  Administrative  Department               when it is in the public interest to  dispense               with  the services of Government  servant  who               has outlived his usefulness." This learned Solicitor General, who appears on behalf of the appellant has urged that the fact that the impugned order of compulsory  retirement  states  the  reason  for  compulsory retirement,  namely,  that the respondent had  outlived  his utility,  does  not lead to the conclusion  that  the  order amounts  to  dismissal or removal because in every  case  of compulsory  retirement it is implied that the person who  is compulsorily retired had outlived his usefulness.  He refers to Shyam Lal v. The State of Uttar Pradesh(1) and says  that in that case it was implied that Shyam Lal was not fit to be retained  in  service.  We are unable to  read  Shyam  Lal’s case(1)  in that manner because the Court expressly said  at p. 41, as follows:                "It  is  true that 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 misbehaviour or incapacity." In  the  present  case  there is not  only  no  question  of implication but a clear statement appears on the face of the order that the respondent had outlived his utility; in other words,  it is stated that he was incapacitated from  holding the  post  of Director, State Museum,  Lucknow.   The  order clearly  attaches a stigma to him and any person  who  reads the order would immediately consider that there is something wrong with him or his capacity to work. In our opinion this case is covered by the principle applied in  Jagdish Mitter v. Union of India (2).  It is  true  that that  was a case of a temporary servant, but that  does  not matter.  The order (1) [1955] 1 S. C. R.26. (2) A. 1. R. 1964 S.C.449 336 in that case reads as follows:                "Shri   Jagdish  Mitter,  a   temporary   2nd               Division  Clerk  of this  office  having  been               found undesirable to be retained in Government               service is hereby served with a month’s notice               of  discharge  with effect  from  November  1,               1949." Gajenderagadkar, J., as he then was, speaking for the Court,

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said:                "No  doubt  the order purports to be  one  of               discharge and as  such can be referred to  the               power  of  the  authority  to  terminate   the               temporary appointment with one month’s notice.               But it seems to us that when the order  refers               to  the  fact  that the  appellant  was  found               undesirable  to  be  retained  in   government               service,  it expressly casts a stigma  on  the               appellant and in that sense must be held to be               an order of dismissal and not a mere order  of               discharge."                Later, he observed:                It seems that anyone who reads the order in a               reasonable way, would naturally conclude  that               the appellant was found to be undesirable, and               that  must  necessarily import an  element  of               punishment which is the basis of the order and               is its integral part.  When an authority wants               to  terminate  the  services  of  a  temporary               servant, it can pass a    simple   order    of               discharge without casting any aspersion  against               the temporary servant or attaching any  stigma               to his character.  As soon as it is shown that               the order purports to cast an aspersion on the               temporary servant, it would be idle to suggest               that the order is a simple order of discharge.               The test in such cases must be: does the order               cast aspersion or attach stigma to the officer               when  it  purports to discharge him?   If  the               answer to this question is in the affirmative,               then  notwithstanding the form of  the  order,               the  termination of service must be  held,  in               substance, to amount to dismissal." It seems to us that the same test must apply in the case  of compulsory retirement, namely: does the order of  compulsory retirement  cast  an  aspersion or attach a  stigma  to  the officer when it purports to retire him compulsorily?  In the present  case there is no doubt that the order does  cast  a stigma on the respondent. Mr.  Gupte  relies on T. G. Shivacharana Singh v.  State  of Mysore(1).   But  this case does not assist him  because  it does  not appear that the order in that case  contained  any stigma,  and  under  Rule 285 of the  Mysore  Civil  Service Rules, 1958, retirement (1)  A.I.R. 1965 S. C. 280. 337 could  be  effected if it was considered  necessary  in  the public  interest.  There was no question of  requiring  that there  should be a finding  that the government officer  had outlived his utility. In  Ram  Prashad v. State of punjab(1)  no    such  question appears  to  have been argued.  In para 32 of  the  judgment Satyanarayana  Raju, J., while considering the  validity  of Rule  27 of the Staff Rules, reproduced an extract from  the judgment  of this Court in Moti Ram Deka v. N.  E.  Frontier Railway(2).   We will presently consider the effect  of  the decision in Deka’s case. In Deka’s case(2) Moti Ram Deka, who was a peon employed  by the  North  East Frontier Railway, challenged the  order  of termination  of  his services under Rule 148 of  the  Indian Railway Establishment Code on the ground that the said  Rule was  invalid  the  validity  of  Rule  149  of  the  Railway Establishment Code.  The question  posed  for  decision   by Gajendragadkar,  J,at  page 699 was:  if the  service  of  a

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permanent  civil  servant is terminated  otherwise  than  by operation  of  the rule of superannuation, or  the  rule  of compulsory  retirement,  does  such  termination  amount  to removal  under Art. 311(2) or not?  The Court was  thus  not concerned with the question of compulsory retairment under a rule  similar to rule 465A, note (1), of the  Uttar  Pradesh Civil Service regulation, but it reviewed some cases dealing with compulsory retairment. Subba Rao J. as he then  was,who delivered a concurring judgment also reviewed the  cases,but he preferred to follow the principle laid, down in Parshotam Lal  Dingra  v. Union of India(3), in respect  of  permanent government servants in preference to that accepted in  shyam Lal’s  case(4)  and the subsequent decisions  following  it. But  it is not necessary for us to resolve the conflict,  if any, which exists between Dhingra’s case(3) and Shyam  Lal’s case(4)  because here we have an order which on the face  of its  casts  a  stigma on the  respondent.  It  is  true,  as pointed out by Subha  Rao J., that in Doshi’s case State  of Bombay  v.,  Saubhagchand, M. Doshi(5) "Rule  165-A  of  the Bombay  Civil  Services Rules laid down that the  right  of, compulsory  retirement 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, but in Doshi’s case it does  not appear that the order contained any aspersion that Doshi was inefficient  or suffered from some other defect.   What  was challenged  in that case was the validity of Rule  165-A  of the,  Bombay Civil Services Rules, and it was held that  it, did not violate art. 311(2) of the Constitution. (1) A.I.R. 1966 S.C. 1607     [1966]  3  S.  C.  R.   486(2) [1964] 5 S.C.R. 683. (3) [1958] S.C.R. 828         (4) [1955] 1 S.C.R. 26 (5) [1958] S.C.R. 571. L/M1Sup.  CI/67-8 There  were  some  other  appellants before  the  Court  who challenged 338 Similarly, in Balakotaih v. The Union of India(1) in Rule  3 ,of the Railway Services (Safeguarding of National Security) Rules, 1949, dealing with compulsory retirement, the proviso provided that "a member of the Railway Service shall not  be retired  or  have  his  service  so  terminated  unless  the competent  authority  is  satisfied that  his  retention  in public  serice  is  prejudical  to  national  security,  and unless,  where  the  competent authority is the  Head  of  a Department,  the prior approval of the Governor-General  has been  obtained." In this case also it does not  appear  that the  order terminating the services contained any stigma  on the public servant concerned. In  Dalip  Singh  v. State of Punjab(2) the  order  read  as follows:                "His  Highness the Rajpramukh is  pleased  to               retire  from  service  Sardar’  Dalip   Singh,               Inspector General of Police, Pepsu (on  leave)               for  administrative reasons with  effect  from               the 18th August 1950." It  was held that the order did not amount to  dismissal  or removal  from service within the meaning of art.  311(2)  of the  Constitution.  The Court derived two tests  from  Shyam Lal’s case(3) and formulated them as follows: the first  is whether the action is by way of punishment and to find  that out  the Court said that it was necessary that a  charge  or imputation against the officer is made the condition of  the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has  already

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,earned  as he does by dismissal or removal.  If  the  first test  is  applied in this case it is quite  clear  that  the charge  or imputation "that the respondent had outlived  his utility"  was  made the condition of the  ,exercise  of  the power.  The,  learned Solicitor General also brought to our  notice the decision of the Full Bench of the Allahabad High  Court in  Abdul Ahad v. The Inspector General of  Police,  U.P.(4) The decision ,certainly helps him, and as a matter of  fact, the Full Bench overruled the judgment of the Division  Bench under  appeal.   But, with respect, we are unable  to  agree with  the  conclusion that even if the order  of  compulsory retirement  recites  the fact that the  public  servant  had outlived  his  utility, it would not amount  to  a  punitive order.   The  Full Bench was of the  view  that  "compulsory retirement  will  always  be on the ground that  he  can  no longer  render useful service.  The position certainly  does not become worse because (1) [1958] S.C.R. 1052         (2) [1961] 1 S.C.R    88. (3) [1955]1 S.C.R. 26.         (4) A.I.R. 1965 All. 142. 339 what  is implied is expressed." We are unable to agree  that the  position  does  not become worse because  a  stigma  is attached expressly. We  may  say that the question whether Article  465-A,  note (1),  violates art. 31 1 of the Constitution was not  argued before us and we say nothing about it. In the result the appeal fails and is dismissed with costs. Y.P. Appeal dismissed. 340