Patna High Court
Ram Dass Shukla vs State Of Bihar And Ors. on 31 August, 1965
Equivalent citations: AIR1966PAT148, AIR 1966 PATNA 148, 1965 BLJR 909 ILR 45 PAT 803, ILR 45 PAT 803
JUDGMENT Narasimham, C.J.
1. This is an application under Articles 226 and 227 of the Constitution by an officiating Sub-inspector of Police against an order of the Deputy Inspector-General of Police, Southern Range, dated the 11th January, 1965 (Annexure B), directing his retirement from service with effect from the loth April, 1965. The order was passed in [exercise of the powers conferred by sub-para-graph (2) (a) of paragraph 1 of the Bihar Liberalised Pension Scheme, 1950 (hereinafter referred to as "the scheme"), which is as follows:
"(2) (a). 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 three months before the date on which he wishes to retire. Government may also require a Government servant to retire any lime after lie has completed 30 years' qualifying service provided that the appropriate authority shall give in this behalf a notice in writing to the Government servant, at least three months before the date on which he is required to retire."
2. The order is challenged on two grounds. Firstly, in substance, it amounts to removal from service and, as the provisions of Article 311(2) have not been complied with, it is unconstitutional. Secondly, sub-paragraph (2) (a) of paragraph 1 of the scheme confers unfettered arbitrary power on the competent authority to retire a Government servant, enabling him to discriminate between two Government servants placed in identical situations; hence the said sub-paragraph violates Article 14 of the Constitution.
3. For both these contentions Mr. Prem Lal relied on the recent judgment of their Lordships of the Supreme Court in Moti Ram Deka v. General Manager, North East Frontier Railway, AIR 1964 SC 600. But, in my opinion, that judgment itself is sufficient to completely negative the two contentions raised by him. The question as to whether the compulsory retirement of a public servant, in exercise of the powers conferred by the Service Rules, will amount to removal from service for the purpose of Article 311 of the Constitution, has been considered in several judgments of their Lordships of the Supreme Court, beginning with the well known Shyamlal's case (Shyamlal v. State of Uttar Pradesh, AIR 1954 SC 369). In paragraphs 36 to 50 of AIR 1964 SC 600, their Lordships have reviewed all the previous decisions on that subject. In paragraph 36 they made the following observation:
"Confining itself to the special features of compulsory retirement which was effected under Article 465-A of the Civil Service Regulations and Note I appended thereto, the Court came to the conclusion that compulsory retirement was not removal. We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout, and so that branch of the law must be held to be concluded by the series of decisions to which we shall presently refer."
Note I to Article 465-A of the Civil Service Regulations is, on essential points, identical with sub-paragraph (2) (a) of paragraph 1 of the scheme, and hence the aforesaid observation will apply with full force here also. It is true that in paragraph 50 of the said judgment their Lordships observed:
"Apart from that, we think that if any rule permits the appropriate authority to retire compulsorily a civil servant 'without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service,' that rule would be invalid and the so-
called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of Article 311(2)."
The words underlined (here into ' ') in this passage are significant. In the impugned provision a minimum of 30 years' completed qualifying service is insisted upon before his services can be terminated. Hence the aforesaid observation cannot apply in the present case.
4. Mr. Prem Lall, however, invited our attention to a subsequent decision of the Supreme Court in Gurdev Singh Sidhu v. State of Punjab, AIR 1964 SC 1585, where it was held that any rule which requires compulsory retirement of a public servant at the end of 10 years' of his service may attract the provisions of Article 311(2) of the Constitution. But in that judgment their Lordships observed, at page 1589, that "if a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Article 311(2) does not apply, because such retirement is neither dismissal nor removal of the public servant." Thus the question ultimately depends on whether the minimum of 30 years' qualifying service provided in the impugned sub-paragraph can be said to be "the age of superannuation which has been reasonably fixed". I do not think there can be any doubt on this question. Under the Pension Rules a public servant is entitled to full pension on completing 30 years of qualifying service, and if rules provide that a public servant may be compulsorily retired after he has fully earned his pension by putting in 30 years' qualifying service, it cannot be said that the period of service fixed in the rule is unreasonably short. I must, therefore, reject the contention that the impugned sub-paragraph contravenes Article 311(2).
5. The next question for consideration is whether the impugned sub-paragraph is violative of Article 14. In the well known Dalmia's case, (Ram Krishna Dalmia v. S. R. Tendolkar, 1959 SCJ 147 at p. 159): (AIR 1958 SC 538 at p. 548) the various classes of statutory provisions which may be attacked on the ground that they contravene Article 14 of the Constitution have been mentioned. Paragraph (iv) at page 159 says that if a statutory provision lays down a policy or principle for the guidance of the exercise of discretion by the authority concerned in the matter of selection or classification of persons to whom the said provision should apply, the statutory provision will not be unconstitutional. The question, therefore, for consideration is whether the impugned sub- paragraph of the scheme, when construed along with the general provisions contained in the Bihar Service Code and the Bihar Pension Rules, can be said to lay down a principle or policy for the guidance of the authority on whom discretionary power is conferred to terminate the services of a Government servant who has put in 30 years' qualified service. It is true that the impugned sub-paragraph by itself does not lay down any policy or principle except the minimum requirement of 30 years'' qualifying service. This itself, to some extent, prevents the unfettered exercise of the discretionary power. Moreover, the basic principle | on which the provisions of the Bihar Service Code and the Bihar Pension Rules have been made seems to be that the services of a Government servant are at the disposal of the Government, which itself is functioning for the benefit of the public. Rule 55 of the Service Code clearly says that "the whole time of a Government servant is at the disposal of Government which pays him". Hence, while exercising the discretionary power under the impugned sub-paragraph the authority concerned is required to bear in mind the availability of the whole time of the Government servant for further efficient service. He will necessarily have to consider whether the further retention in service of the public servant is in public interest. In my opinion, therefore, there is some principle or policy regulating the exercise of discretion by the authority concerned and hence the impugned sub-paragraph will not contravene Article 14.
6. In this connection it is interesting to note that Article 14 was also discussed by the majority as well as by the minority of Judges in the aforesaid Supreme Court case, AIR 1961 SC 600. There the impugned statutory provisions were Rules 148(3) and 149(3) of the Railway Establishment Code, which conferred unfettered discretion on the Government to terminate the services of railway servants after giving due notice, without fixing any minimum period of service for such Government servants. Such conferment of discretionary power was attacked as violative of Article 14, and in paragraphs 54 and 55 of the majority judgment the contentions of the respective parties were summarised. In paragraph 55 the Additional Solicitor General's contention was that though there was no express provision in the impugned rules, nevertheless the very purposes of the rules give guidance to the appropriate authority exercising its power under it. He further urged that the appropriate authority will have to take into account all the relevant circumstances in regard to the nature and quality of work and also will have to decide whether having regard to the considerations of public interest the services of the Government servant should be retained. In the majority judgment, however, this point was not decided and the case was disposed of on other grounds; but in the minority judgment of Das Gupta J. and Shah, J. there is an instructive (if I may say so with respect) discussion of this question. In paragraph 113 Das Gupta, J. was of the view that no guiding principle for the exercise of the discretion was discernible, and hence the impugned rules were violative of Article 14, Shah, J., however, in paragraph 154 held a different view. To quote his own words;
"Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority, when having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exercise of the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or on grounds of I administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power."
With respect I would adopt the same reasonings in this case. Here a minimum qualifying service of 30 years has been insisted upon, whereas, as already pointed out, in the aforesaid case there was no minimum fixed in the impugned rules. Moreover, when viewed in the background of the provisions of the Service Code, it is a reasonable inference that the power under the impugned sub-paragraph is expected to be exercised for the protection of public interest or on the grounds of administrative convenience. A police officer must continue to be in a high standard of physical fitness throughout his service, and if after 30 years of qualifying service his superior authority is authorised to terminate his services, it is implied in the exercise of the power that public interest, administrative convenience and I the efficiency of the service will be the main basis for the exercise of that power. The observations of Shah, J., quoted above, seem to be on a line with the argument of the Additional Solicitor-General mentioned in paragraph 5. As the majority has not dissented from this view, I see no special reason why I should not adopt the same view here.
7. For these reasons, the impugned order must be held to be valid. The application is dismissed with costs. Hearing fee Rs. 50.
Bahadur, J.
8. I agree.