Delhi High Court
O.P. Gupta S/O Shri Ram Saran Dass vs Municipal Corporation Of Delhi Through ... on 8 November, 2002
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. The Petitioner was appointed as an Overseer on 21st January, 1957 with the erstwhile District Board, Delhi.
2. With the promulgation of the Delhi Municipal Corporation Act, 1957 and more particularly Section 511 thereof, the services of the Petitioner were transferred to the Municipal Corporation of Delhi (for short the MCD) with effect from 7th April, 1958.
3. On or about 15th June, 1970, the Petitioner was promoted as an Assistant Engineer (Civil) on current duty charge. He was later reverted but again promoted on 8th December, 1977 with effect from 13th June, 1974.
4. On 12th September, 1988, a Review Committee of the MCD held a meeting to examine the cases of officers for the purposes of implementing ER 56(j) relating to compulsory retirement.
5. The case of the Petitioner came up for consideration before the Review Committee. His service record revealed that he was an average officer who had departmental cases against him. He had been placed under suspension on three occasions and had also been punished in respect of some of the departmental proceedings. The Engineer-in-Chief was of the view that the Petitioner was neither competent nor fit to continue on the post of an Assistant Engineer (Civil) since he was unable to work effectively and efficiently.
6. On the basis of the material before it, the Review Committee, after a careful consideration of the record, recommended the compulsory retirement of the Petitioner under the provisions of FR 56(j).
7. Acting upon the recommendation of the Review Committee, the Commissioner, MCD issued an order dated 30th September, 1988 compulsory retiring the Petitioner with immediate effect.
8. Thereafter, in a letter dated 11th October, 1988 (it is not clear to whom it was addressed) the Commissioner referred to the provisions of FR 56(j) and the fact that a Review Committee had met for considering the performance of some officers who had attained the age of 50/55 years. It was mentioned that the cases of six officers were considered. In respect of one of them, the Commissioner was the appointing and he had ordered the compulsory retirement of that officer under FR 56(j) in public interest. In respect of the other five officers, the appointing authority was the MCD, but since the Commissioner was the "appropriate authority" in respect of these officers, they were also retired in public interest under FR 56(j). One of the officers so retired was the Petitioner. The findings of the Review Committee along with relevant records were to be placed before the MCD for approval of the action taken under FR 56(j).
9. The expression "Appropriate Authority" is defined in Note 1 below FR 56 as follows:-
'"Appropriate Authority' means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire."
10. On 28th November, 1988, the MCD passed Resolution No. 865 after referring to the letter dated 11th October, 1988. By this Resolution, the MCD approved the compulsory retirement of the Petitioner. The Resolution reads as follows:-
"Resolved that as proposed by the Commissioner in his letter No. F.33/CED/5468/C&C dated 11-10-1988, approval to the following the accorded:
(i) to the pre-mature retirement of 5 municipal employees as mentioned in para 3 of the above referred letter under F.R. 56(j) with effect from the issue of the orders in public interest;
and
(ii) to the payment of a sum equivalent to the amount of their pay plus allowances for a period of 3 months calculated at the rate at which they were drawing/admissible to them immediately before their retirement.
The motion was carried.
(The members of the BJP present in the meeting staged a walk out).
At 4.55 p.m. the Mayor adjourned the meeting.
Municipal Secretary Chairman"
11. Feeling aggrieved by his compulsory retirement by the Commissioner and its approval by the Corporation, the Petitioner filed a writ petit on under Article 226 of the Constitution challenging his compulsory retirement.
12. Learned counsel for the parties were heard on 22nd October, 2002 when judgment was reserved.
13. The only question agitated by learned counsel for the Petitioner related to the authority of the Commissioner to pass the order of compulsory retirement. Since the MCD was the appointing authority of the Petitioner, did its Commissioner have the power to pass the order of compulsory retirement or could only the MCD exercise the power?
14. FR 56(j) makes it quite clear that the "Appropriate Authority" is entitled to pass an order of compulsory retirement and the said authority need not necessarily be the appointing authority of an employee. The expression "Appropriate Authority" is defined in Note 1 below FR 56 to means the authority that has the power to make substantive appointments to the post from which the employee is sought to be retired. The question that arises, therefore, is whether the Commissioner has the power to make substantive appointments to the post of Assistant Engineer (Civil) in the Municipal Corporation. If no, then is the order of compulsory retirement void and non est as contended by learned counsel for the Petitioner.
15. It has been stated by the Respondents in their counter affidavit that even though the MCD may be the appointing authority of the Petitioner, it is the Commissioner who is the appropriate authority for the purposes of compulsory retiring the Petitioner. The Petitioner in his rejoinder affidavit has denied this averment in general terms. Consequently, learned counsel for the Respondents placed before me a Notification dated 21st August, 1979 approving the regulations for recruitment to the post of Assistant Engineer (Civil) in the MCD. Learned counsel also placed before me an Office Order dated 2nd August, 1985, which shows that these regulations were acted upon and the appointing authority for the post of Assistant Engineer (Civil) in the Commissioner. Since the Commissioner is the appointing authority for the post of Assistant Engineer (Civil), quite clearly, he is also the authority who can make substantive appointments to that post.
16. It is true that in the case of the Petitioner, his appointing authority was the MCD by virtue of Section 511 of the Act. But, since substantive appointments to the post of Assistant Engineer (Civil) could be made by the Commissioner he became the "Appropriate Authority" in so far as the Petitioner was concerned. This "Appropriate Authority" could compulsorily retire the Petitioner, which he did. In any case, to make assurance doubly sure the entire case concerning the compulsory retirement of the Petitioner was put up before the MCD. By the Resolution passed on 28th November, 1988 the MCD approved the compulsory retirement of the Petitioner. Consequently, even if there was some doubt about the competence of the Commissioner to pass an order of compulsory retirement, that was set at rest by the MCD which approved and, therefore, ratified the compulsory retirement of the Petitioner.
17. A similar situation arose in Baldev Raj Chadha v. Union of India and Ors., . While dealing with an identical contention made in the context of FR 56(j) and Note 1 to FR 56, the Supreme Court held in paragraph 5 of the Report as follows:-
"His principal contentions, not all the secondary details, alone need detain us. His first challenge is to the competence of the Accountant General compulsorily to retire him because, according to the appellant, he is not the 'appropriate authority' within the meaning of the rule. The appointing authority who actually appointed the appellant was the C & AG, but the AG retired him on the assumption that he had the requisite power. Article 311(1) insists that a civil servant shall not be dismissed or removed by an authority "subordinate to that by which he was appointed". The appellant, by parity of reasoning, argues that the AG, being subordinate to the C & AG, has no power to retire him. The fallacy in the argument lies in the confusion between 'dismissal' and 'compulsory retirement'. The two cannot be equated and the constitutional bar cannot be operative. Therefore, we have to find, on an independent enquiry, as to who is the appropriate authority under FR 56(j)(i). Under Note 1 to FR 56, the authority entitled to make substantive appointments is the appropriate authority to retire government servants under the said Rules. From this note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of Accounts Officers like the appellant has been vested in the AG by Notification of the Ministry of Finance dated November 29, 1972. Since the AG has been clothed, from that dated, with power to appoint substantively Accounts Officers, he has become the appropriate authority for compulsory retirement even though the appellant-Accounts Officer had been appointed by the C & AG prior to November 29, 1972. In the light of the note which is a part of the rule, read with the notification delegating the power to the AG, we see no flaw in the order impugned."
18. On the facts of the case, therefore, I see no merit in the challenge to the order compulsorily retiring the Petitioner from service.
19. The writ petition is, accordingly, dismissed but with no order as to costs.