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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: COL.  J. N. SINHA  AND ANR.

DATE OF JUDGMENT: 12/08/1970

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C.

CITATION:  1971 AIR   40            1971 SCR  (1) 791  1969 SCC  (2) 662  CITATOR INFO :  R          1972 SC2185  (12)  F          1973 SC 698  (11)  R          1973 SC1252  (14)  RF         1975 SC2057  (8)  RF         1976 SC2433  (7)  R          1976 SC2581  (18)  F          1977 SC 854  (9)  R          1978 SC 597  (218)  R          1978 SC 851  (65,66)  R          1980 SC 563  (16,18,21,22,25,27,31)  R          1981 SC 594  (5)  RF         1981 SC 818  (22,29)  R          1984 SC 630  (4)  R          1985 SC1416  (99)  RF         1986 SC 555  (6)  R          1987 SC  65  (2)  RF         1987 SC 593  (23)  RF         1987 SC1933  (10)  R          1989 SC2218  (5)  RF         1990 SC1004  (8)  R          1990 SC1368  (22)  RF         1991 SC 101  (22,152,261)  RF         1991 SC 564  (6)  R          1992 SC1020  (12,16,17,23,24,25,29,31)

ACT: Constitution of India 1950, Arts. 309, 310-Rules made  under Art.309-Pleasure doctrine embodied in Art. 310-  Fundamental Rule 56(j) embodies pleasure doctrine-Compulsory  refirement at age of 50 after a certain number of years of service does not have civil consequences Rules of natural justice  cannot be  invoked  in such case-Rules of natural  justice  operate only in areas not covered by law validly made.

HEADNOTE: The  first  respondent joined the post  of  Extra  Assistant Superintendent  in  the  Survey of India  Service  in  1938. Later he was taken into the Class I Service of the Survey of India  and  rose to the post of Deputy  Director.   He  also officiated  as -Director.  On August 13, 1969 the  President of India pleased by an order under Rule 56(j) of the  Funda-

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mental  Rules  to compulsorily retire the  first  respondent from  Government  service.   No reasons were  given  in  the order.   The  appellant  challenged  the  order  by  a  writ petition  in the High Court. The failure on the part of  the concerned  authority  to  give  opportunity  to  the   first respondent  to show cause against his compulsory  retirement was   held  by  the  High  Court  to  have  amounted  to   a contravention of the principles of natural justice.  Against the judgment of the High Court the Union of India appealed. HELD  : Rules of natural justice are not embodied rules  nor can they be elevated to the position of fundamental  rights. As observed by this Court in Kralpak’s case these rules  can operate  only in areas not covered by any law validly  made. If a statutory provision can  be read consistently with  the principles  of  natural  justice, the Courts  should  do  so because  it must be presumed that the legislatures  and  the statutory  authorities intend to act in accordance with  the principles  of  natural justice.  But on the  other  hand  a statutory  provision  either specifically ’or  by  necessary implication  excludes  the  application of any  or  all  the principles  of natural justice then the court cannot  ignore the  mandate of the legislature or the  statutory  authority and  read  with the concerned provision  the  principles  of natural justice.  Whether the exercise of a power  conferred should  be made in accordance with any of the principles  of natural justice or not depends upon the express words of the provision  conferring  the power, the nature  of  the  power conferred,  the  purpose for which it is conferred  and  the effect of the exercise of the power. [794 G-795 C] Fundamental  Rule 56(i) does not in terms require  that  any opportunity  should  be given to  the  concerned  Government servant  to show cause against his  compulsory  requirement. It  says  that the appropriate authority  has  the  absolute right to retire a government servant if it is of the opinion that  it  is  in  the public interest to  do  so.   If  that authority  bona fide forms that opinion the  correctness  of that  opinion cannot be challenged before courts, though  it is open to an aggrieved party to contend that the  requisite opinion  has  not been formed or the decision  is  based  on collateral grounds or that it is an arbitrary decision.  The respondent  had not challenged the impugned order on any  of these grounds. [795 D-F] Compulsory   retirement   does   not   involve   any   civil consequence.   A  person retired under Rule 56(i)  does  not lose any of the rights acquired 792 by  him  before retirement.  The rule is  not  intended  for taking  any  penal action against government  servants.   It merely  embodies one of the facets of the pleasure  doctrine embodied  in Art. 310 of the Constitution.  The  rule  holds the balance between the, rights of the individual government servant  and the interests of the public.  While  a  minimum service  is  guaranteed  to  the  government  servant,   the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in  its opinion  should  not  be there in  public  interest.   Three months notice is provided to enable the retired employee  to find out other suitable employment. [795 G-796 B] On  the  above view of the law, namely, that  no  notice  to show-cause was required, the appeal must be allowed. T.  G.  Shivacharana Singh v. State of Mysore,  A.I.R.  1965 S.C. 280. Kraipak  and Ors. v. Union of India, A.I.R. 1970, S.C.  150, State of Orissa v. Dr. (Miss) Binapani Dei and Ors.,  [1967] 2 S.C.R. 625 distinguished.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 381 of 1970. Appeal-from  the judgment and order dated December 22,  1969 of the Delhi High Court in Civil Writ No. 746 of 1969. Niren  De,  Attorney-General  and  S.  P.  Nayar,  for   the appellant. Sardar  Bahadur, Vishnu Bahadur, and  Yougindra  Khushalani, for respondent No. 1. G. S. Chatterjee, for respondent No. 2. The Judgment of the Court was delivered by. Hegde,  J. ’In this appeal by certificate the only  question that was canvassed before us was as regards the validity  of the order contained in memorandum No. F. 16-42/68-S-1, dated August 13, 1969 issued by the Government of India,  Ministry of Education and Youth Services, retiring the 1st respondent compulsorily  from  government service in  exercise  of  the powers conferred under cl. (j) -of Fundamental Rule 56  with effect from August 14 1969.  That order was attacked  before the High Court on various grounds.  The High Court  rejected some  of  those grounds.  It did not find  it  necessary  to decide  ’ a few others but accepting the contention  of  the respondent  that  in making the order,  the  appellant  -had violated the principles of natural justice, it held that the impugned order is invalid The High Court accordingly  issued a writ of certiorari quashing that order. Before  us the only contention presented for  -our  decision was  whether  the High Court was right in  holding  that  in making  the  impugned order the appellant had  violated  the principles  of  natural justice.  No  other  contention  was taken  before us.  Hence we shall address ourselves only  to that question. 793 Before proceeding to examine the contention above-formulated it  is  necessary to set out the material  facts.   The  1st respondent.  herein Col.  J. N. Sinha successfully  competed in the examination held by the Federal Service Commission in 1938  for the post of Extra-Assistant Superintendent in  the Survey of India Service.  After selection, he was  appointed as   an  Extra-Assistant  Superintendent.   He   worked   as probationer  for a period of three years and  thereafter  he was confirmed in that post in 1941.  During the second world war,  he Volunteered for active-service in the army and  was granted an emergency Commission in the army.  He was granted a  regular commission in the army with effect  from  October 23, 1942. In  exercise of the powers conferred by the proviso to  Art. 309  of  the Constitution, the President of  India  made  on August   17,   1950  rules  called  the  Survey   of   India (Recruitment from Corps of Engineering Officers) Rules, 1950 for regulating the recruitment and conditions of service  of persons appointed from the Corps of Engineering Officers  of the  Defence  Ministry  to  the Survey  of’  India  Class  I Service.-  Rule  2  of  the  said  Rules  provides  for  the recruitment  of  Military Officers to the  Survey  of  India Class  I  Service  and Rule 3 provides  that  the  recruited officers  will  be on probation for two years which  may  be extended  by  the Government on the advice of  the  Surveyor General.   The 1st respondent was taken into the  Survey  of India  Class  I Service under Rule 2 of the  aforesaid  1950 Rules  as  Deputy Superintendent Surveyor with  effect  from June  1951.  Thereafter the President of India in  .exercise of the powers under the proviso to Art. 309, made on July 1,

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1960  the Survey of India Class I (Recruitment) Rules,  1960 for  regulating the recruitment of Survey of India  Class  I Service.   The  1st  respondent  was  subsequently  promoted firstly  as  Superintending  Surveyor  and  then  as  Deputy Director.   After sometime he was promoted as  Director  and lastly  as Director (Selection Grade).  The  last  mentioned promotion  was made with effect from October 27,  1966.   On May   17,   1969,  Fundamental  Rule  56(j)   was   amended. Thereafter on August 13, 1969, the Ministry of Education and Youth   Services  issued  the  impugned  order.    The   1st respondent was given three months pay and allowances in lieu of three months notice prescribed in Fundamental Rule 56(1). The 1st respondent being aggrieved by that order, challenged the  validity of the same.  As mentioned earlier,  the  High Court  accepted his plea.  The Union of India  has  appealed against that order. Fundamental Rule 56(j) reads               "Notwithstanding  anything contained  in  this               Rule the appropriate authority shall, if it is               of  the  opinion  that it  is  in  the  public               interest so to do have the absolute right 794 to retire any Government servant by giving him notice of not less  than three months in writing or three months  pay  and allowances in lieu of such notice               (i) if he is in Class I or Class II Service or               post  the age limit for the purpose of  direct               recruitment to which is below 35 years,  after               he has attained the age of 50 years.               (ii)  In any other case after he has  attained               the age of 5 5 years.               Provided  that  nothing in this  clause  shall               apply  to a Government servant referred to  in               clause  (e) who entered Government service  on               or before 23rd July, 1966 and to a  Government               servant referred to in clause (f ) ." The order impugned merely says that in pursuance of cl. 5  6 ,the  President  was,  pleased  to  decide  that  in  public interest  the 1st respondent should retire  from  government service  with effect from August 13, 1969 and that he  would be  given three months pay and allowances in lieu  of  three months  notice  provided in the said rule.  No  reasons  are given   for  compulsorily  retiring  the   1st   respondent. Admittedly  no  opportunity was given to him to  show  cause against his compulsory retirement.  The failure on’ the part of the concerned authority to give an opportunity to the 1st respondent  to show cause against his compulsory  retirement was   held  by  the  High  Court  to  have  amounted  to   a contravention of the principles of natural justice. The  validity of Fundamental Rule 56(j) was  not  questioned before  the High Court nor before us.  Its validity  is  not open to question in view of the decision of this Court in T. G. Shivacharana Singh and Ors. v. State of Mysore(1). Fundamental  Rule 56(j) in terms does not require  that  any -opportunity  should be given to the,  concerned  government servant ’to show cause against his compulsory retirement.  A government  -servant serving under the Union of India  holds his  office at the pleasure of the President as provided  in Art. 310 of the Constitution.  But this "Pleasure"  doctrine is subject to the rules or law -made under Art. 309 as  well as  to the conditions prescribed under Art. 311.   Rules  of natural  justice  are  not embodied rules nor  can  they  be elevated to the position of fundamental rights.  As observed by  this Court in Kraipak and Ors. v. Union of  ’   India(2) "the aim of rules of natural justice is to secure justice or

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to  put  it negatively to -prevent miscarriage  of  justice. These rules can operate only in areas not covered by any law validly  made.  In other words they do not supplant the  law but supplement it." It (1) A. I. R. 1965 S. C. 280 (2) A. I. R. 1970 ,  S. C. 150. 795 is   true  that  if  a  statutory  provision  can  be   read consistently  with  the principles of natural  justice.  the courts  should  do so because it must be presumed  that  the legislatures and the statutory authorities intend to act  in accordance with the principles of naural justice.  But if on the other hand a statutory provision either specifically  or by necessary implication excludes the application of any  or all the principles of natural justice then the court  cannot ignore  the  mandate  of the legislature  or  the  statutory authority   and  read  into  the  concerned  provision   the principles  of natural justice.  Whether the exercise  of  a power conferred should be made in accordance with any of the principles  of  natural  justice or  not  depends  upon  the express  words  of the provision conferring the  power,  the nature  of the power conferred, the purpose for which it  is conferred / and the effect of the exercise of that power. Now  coming to the express words of Fundamental Rule  56(j), it  says  that the appropriate authority  has  the  absolute right to retire a government servant if it is of the opinion that  it  is  in the public interest to do  so.   The  right conferred  on the appropriate authority is an absolute  one. That  power  can  be exercised  subject  to  the  conditions mentioned  in the rule.’ one of which is that the  concerned authority  must  be  of the opinion that  it  is  in  public interest  to do so.  If that authority bona fide forms  that opinion,   the  correctness  of  that  opinion   cannot   be challenged before courts.  It is open to an aggrieved  party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary  decision.   The  1st  respondent  challenged  the opinion formed by the government on the ground of mala fide. But  that ground has failed.  The High Court did not  accept that  plea.   The  same  was not  pressed  before  us.   The impugned  order  was  not attacked on the  ground  that  the required  opinion was not formed or that the opinion  formed was  an  arbitrary one.  One of the conditions  of  the  1st respondent’s  service is that the government can  choose  to retire  him  any time after he completes fifty years  if  it thinks  that it is in public interest to do so.  Because  of his compulsory retirement he does not lose any of the rights acquired  by him before retirement.   Compulsory  retirement involves  no  civil consequences.  The  aforementioned  rule 56(j)  is not intended for taking any penal  action  against the  government servants.  That rule merely embodies one  of the facets of the pleasure doctrine embodied in Art. - 3 1 0 of the Constitution.  Various considerations may weigh with, the   appropriate  authority  while  exercising  the   power conferred under the rule.  In some cases, the government may feel  that  a particular post may be more usefully  held  in public  interest by an officer more competent than  the  one who  is holding.  It may be that the officer who is  holding the  post is not inefficient but the  appropriate  authority may prefer to have a more efficient officer.  It may further be 796 that in certain key posts public interest may require that a person  of undoubted ability and integrity should be  there. There  is no denying the fact that in all organizations  and

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more  so in government organizations, there is good deal  of dead  wood.  It is in public interest to chop off the  same. Fundamental Rule 56(j) holds the balance between the  rights of  the individual government servant and the  interests  of the  public.  ’While a minimum service is guaranteed to  the government  servant,  the  government  is  given  power   to energise  its  machinery  and  make  it  more  efficient  by compulsorily retiring those who in its opinion should not be there in public interest. It  is  true that a compulsory retirement is bound  to  have some  adverse  effect  on  the  government  servant  who  is compulsorily retired but then as the rule provides that such retirements  can be made only after the officer attains  the prescribed  age.  Further a compulsorily retired  government servant does not lose any of the benefits earned by him till the  date  of  his  retirement.   Three  months’  notice  is provided  so  as to enable him to find  out  other  suitable employment. In  our  opinion the high Court erred in thinking  that  the compulsory  retirement involves civil consequences.  Such  a retirement  does not take away any of the rights  that  have accrued  to  the  government servant  because  of  his  past service.  It cannot be said that if the retiring age of  all or  a  section  of the government servants is  fixed  at  50 years, the same would involve civil consequences.  Under the existing  system there is no uniform retirement age for  all government servants.  The retirement age is fixed not merely on  the basis of the interest of the government servant  but also depending on the requirements of the society. The High Court was not justified in seeking support for  its conclusion  from  the  decision of this Court  in  State  of Orissa  v.  Dr. (Miss) Binapani ’Dei and ors.(1) and  A.  K. Krailpak v. Union of India(’). In  Binapani Dei’s case(’) Dr. Binapani Dei’s date of  birth was  refixed  by the government without  giving  her  proper opportunity  to show that the enquiry officer’s  report  was not  correct.   It is under those circumstances  this  Court held that the order refixing the date of birth was  vitiated for  failure  to  comply  with  the  principles  of  natural justice.   Therein the impugned order took away some of  the existing rights of the petitioner. In  Krapak’s  case(’),  a  committee  consisting  of   Chief Conservator of, Forest, Kashmir and others was appointed  to recommend names of the officers from Kashmir Forest  Service for (1) [1967] 2 S. C. R. 625. (2)  A.I.R. 1970 S.C. 150. 797 being  selected for the Indian, Forest Service.   The  Chief Conservator  of Forests, Kashmir was one of  the  candidates for selection.  Further it was established therein that some of the officers who competed with him had earlier challenged his  seniority  and consequently his right to be  the  Chief Conservator  and  that  dispute was  pending.   Under  those circumstances this Court held that there -was  contravention of the principles of natural justice. For the reasons mentioned above, we are unable to agree with the  conclusion reached by the High Court that the  impugned order  is  invalid.  We accordingly allow this  appeal,  set aside the judgment and decree of the High Court and  dismiss the writ petition.  In the circumstances of the case we make no order as to costs. [The Court by order dated November 18, 1970 and January  19, 1971  on an application for review filed by  the  respondent vacated  its order dismissing the writ  petition.   Instead,

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the proceedings were remanded to the High Court for decision on  such points as were not, dealt with and decided  in  the judgment of that court.  Ed.] G.C.       Appeal allowed.  Proceedings remanded. 798