Rajasthan High Court - Jaipur
Ganga Ram Bhandari vs Union Of India (Uoi) And Ors. on 27 January, 1992
Equivalent citations: 1992WLN(UC)1
JUDGMENT R.S. Verma, J.
1. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has inter alia claimed the following reliefs:
(i) Annexures A/1 and A/2 be quashed and the petitioner may please be allowed to be treated in service till his date of attaining super annuation i.e. 5.2.1986.
(ii) That the petitioner, may please be given all consequential benefits his seniority, pay, promotion, pension etc.
2. The writ petition has been opposed by the respondents.
3. I have heard the learned Counsel for the parties at length and have perused the record. Briefly stated, the admitted facts of the case are that the petitioner was born on 06.02.1928. He was appointed on 06.7.1962 as a technical storeman by the Commander, General Reserve Engineering Force (for short GREF) Center and was posted at Allahabad. In due course, he got promoted to the post of Upper Division Clerk. His date of normal superannuation was 05.02.1986. But, he came to be retired w.e.f. afternoon of 28th Feb., 1983 by virtue of order Annx. I passed by respondent No. 3 on 27.1.1983. This order interalia directed that the petitioner shall be paid a sum equivalent to the amount of his pay plus allowances for the period fall short of three months from the date of this notice, calculated at the same rates at which he draws this immediately before his retirement". However, no such payments were made to the petitioner and he was allowed to serve till 27.4.1983. In the meanwhile, respondent No. 3 issued an amendment to order Annx. I on 18.2.1983 and directed retirement of the petitioner w.e.f. forenoon of 27.4.1983. A discharge certificate Annx. 3 was issued in this regard.
4. The case of the petitioner is that marching orders Annxs. 1 and 2 are bad in law and deserve to be quashed. The first and foremost ground taken by the petitioner is that the Director General, Border Roads was his appointing authority and hence respondents No. 3 and 4 had no authority to order retirement of the petitioner. The second ground taken by the petitioner is that Annx. I was illegal and illegality inhering in Annx. I could not have been cured by issuing amendment Annx. II. Elaborating this ground, it was argued that no payments were made in pursuance of Annx. I and as such it did not become operative. It was next pleaded that Annx. II was served on the petitioner on 19.2.1983 and the period of three months requisite for effecting retirement of petitioner had to be computed from that date and hence retirement of petitioner w.e.f. forenoon of 27.4.1983 was bad. It was then contended that Annx. I order purported to retire the petitioner by virtue of powers vested in the appropriate authority by virtue of Rules 56(j) of the Fundamental Rules read with Rule 48 of Central Civil Services (Pension) Rules, 1972 (for short the Pension Rules'). Rules 48 of the Pension Rules laid down that premature retirement could be ordered only after a government servant had completed thirty years of qualifying service. The petitioner had not completed 30 years of qualifying service on the date he was ordered to be retired. Hence, the order of retirement was bad. Some other pleas were also taken but were not pressed at the time of arguments.
5. Respondents filed a reply to the writ petition wherein they contested all the grounds taken by the petitioner and pleaded that the retirement orders were issued validly by a competent authority in public interest. It was denied that the retirement orders suffered from any infirmity.
6. I have given my earnest consideration to the contentions raised before me and have perused the record carefully. I would first of all deal with the contention that the petitioner could not have been retired prematurely till he had completed thirty years of qualifying service. This is an admitted position before me that Fundamental Rules of 1922 govern the service conditions of the petitioner including his retirement. Chapter IX of the Fundamental Rules deals with retirement. Fundamental Rules 56(a) lays down the general rule as follows:
Rule 56. (a) Except as otherwise provided in this Rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of fifty-eight years.
Fundamental Rule 56(j) is the relevant rule which governs premature retirements, it reads as follows:
(i) 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 to retire any Government servant by giving him notice of not less than three months in writing or three month's pay and allowances in lieu of such notice-
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasipermanent or temporary capacity and had entered Government Service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case, after he has attained the age of 55 years;
Provided that nothing in this clause shall apply to Government servant referred to in Clause (e), who entered Government service on or before the 23rd July, 1966.
The Pension Rules deal with rules which govern the pension entitlement of a central government servant. Rule 48 of the Pension Rules reads as follows:
48. Retirement on completion of 30 years' qualifying service-
(1) At any time after a Government servant has completed thirty years' qualifying service-
(a) he may retire from service, or
(b) he may be required by the appointing authority to retire in the public interest, and in the case of such retirement of Government servant shall be entitled to a retireing pension:
Provided that-
(a) a Government servant shall give a notice in writing to the appointing authority at least three months before the date on which he wishes to retire; and
(b) the appointing authority may also give a notice in writing to a Government Servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice:
Provided further that where the Government servant giving notice under Clause (a) of the preceding proviso is under suspension, it shall be open to the appointing authority to withhold permission to such Government servant to retire under this rule.
Provided further that the provisions of Clause (a) of this sub-rule shall not apply to a Government servant, including scientist or technical expert who is-
(i) on assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes,
(ii) posted abroad in foreign based offices of the Ministries/Departments,
(iii) on a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.
(1-A) (a) Government servant referred to in Clause (a) of the first proviso to Sub-rule (1) may make a request in writing to the appointing authority to accept notice of less than three months giving reasons therefore, (b) On receipt of a request under Clause (a) the appointing authority may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, appointing authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for commutation of a part of his pension before the expiry of the period of notice of three months.
(2) A Government servant, who has elected to retire under this rule and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority:
Provided that the request for withdrawal shall be within the intended date of his retirement.
(3) For the purpose of this rule and expression 'appointing authority' shall mean the authority which is competent to make appointments to the service or post from which the Government servant retires.
7. A bare reading of Rule 48 of the Pension Rules goes to show that this rule is attracted only after a Government servant has completed thirty years of qualifying service. Admittedly, the petitioner in this case had not completed 30 years of qualifying service when Annx. 1 or Annx. 2 had been passed. Hence, the order of retirement could not have been made under this rule.
8. Learned Counsel for the respondents has urged strenuously that Rule 48 of the Pension Rules was mentioned in order Annx. 1 erroneously and really the retirement was ordered under Rule 56(j) of the Fundamental Rules, and this erroneous mention of Rule 48 of Pension Rules cannot invalidate an order, which is otherwise valid. In this context, reliance has been placed upon certain rulings of the apex Court. I would, at this juncture, first of all notice Hukumchand Mills Ltd. v. The State of Madhya Pradesh and Anr. which is a leading case on the subject. In that case, certain amendments were made in a particular Statute. Power of such amendment did exist under Sections 5(1) and (3) of the relevant statute. In the amendment notification, reference was not made to these provisions of the relevant Act but erroneously reference was made to Rule 17 of the Tax Rules. In these circumstances, if was observed as follows:
It is well settled that merely a wrong reference to the power under which certain actions are taken by the Government would not per se vitiate the actions done if they can be justified under some other powers under which the Government could lawfully do these acts... under this head.
9. This ruling was followed in Mayenghoam Rajamohan Singh v. Chief Commissioner (Admn.) Manipur and Ors. 1977 (1) S.L.R. 234. This was a case of premature retirement. The appellant was served with a notice in pursuance of the directions of the President in para 6 of the Government of India decision 23 noted below Fundamental Rule 56. It was urged that this decision No. 23 did not subsist on the date the notice was given. The contention was negatived and it was observed:
It is also the view of this Court that if power can be traced to a valid power the fact that the power is purported to have been exercised under non-existing power does not invalidate the exercise of the power.
A similar view was taken in P. Radhakrishna Naidu and Ors. v. Government of Andhra Pradesh and Ors. 1977 (1) S.L.R. 258, which again was a case of premature or compulsory retirement. In that case, the contention was that in the order of retirement reference was made to many rules and, therefore, it was not possible for the petitioners to know really under what provision the order of retirement had been made. The contention was rejected and it was observed:
The petitioners challenged the orders for compulsory retirement also on the ground that reference to so many rules was made and, therefore, it was not possible for the petitioners to know under what provision the orders for compulsory retirement had been made. It is not open the petitioners to challenge the orders on that ground. The orders specifically mention that compulsory retirement is made in public interest. The State affidavit evidence is that petitioners No. 4 and 5 in writ petition No. 97 of 1976 are governed by Hyderabad Civil Service Regulations and the rest of the petitioners are governed by Andhra Pradesh Liberalised Pension Rules, 1961. Rule 292 of the Hyderabad Civil Service Regulations Rules and Sub-rule (2)(a) of Rule 3 of the Andhra Pradesh Liberalised Pension Rules, 1961 are similar. Both the rules confer power on the authority to require Government servant to retire in the public interest from service on the date on which he completes 25 years of qualifying service or attains 50 years of age. Rule 2(1) of the Andhra Pradesh Government Servants' Premature Retirement Rules, 1975 is also worded in similar language. The wording of the rules relating to retirement in public interest is identical in all the three sets of rules mentioned above.
The mere fact that three different rules were mentioned in the impugned orders without scoring out the rules which are not applicable to a petitioner in one case cannot be any grievance for the reason that in each case the relevant rule is identically worded. The omission on the part of the officers competent to retire the petitioners is not scoring out the rules which are in applicable to a particular individual does not render the order bad. The reason is that one of the rules is applicable to him and the omission to strike out the rules which are not applicable will not in any manner affect the applicability of the rule mentioned. Further this Court has taken the view that a wrong reference to power will not vitiate any action if it can be justified under some other powers under which the Government can lawfully do the act. See Kukam Chand Mills Ltd. v. The State of Madhya Bharat and Anr. .
10. The aforesaid legal position makes it abundantly clear that if compulsory or premature retirement of the petitioner could have been made under Rule 56(j) of the Fundamental Rules, it would not be invalidated merely because an erroneous mention had been made of Rule 48 of the Pension Rules, which was obviously inapplicable to the present case, inasmuch as the petitioner had not completed 30 years of qualifying service on the date the impugned order was passed. Hence, I shall have to examine if the impugned order could be sustained under Rule 56(j) of the Fundamental Rules.
11. In this context, the first contention is that respondent No. 3 was not the 'appropriate authority' as envisaged in this rule and hence the impugned order has been passed by an authority not competent to pass the order. To be more precise, the contention is that the appointment order of the petitioner was issued by an officer of the rank of Major. Since, this officer was not competent to issue the order, the order was ratified and countersigned by an officer holding the rank of a Colonel. The appointment order should, therefore, be deemed to have been issued by the Colonel who ratified and countersigned the appointment order. Hence, the petitioner could not have been retired by respondent No. 3 who was an officer inferior in rank to a Colonel, he being merely a Lieutenant Colonel. As against this, learned Counsel for the respondents contends that the appointing authority of the petitioner was Commander of the unit, who held the rank of a Lieutenant Colonel. On the day, the appointment order was made, the Lieutenant Colonel, who was Commander of the center was not available and hence the Major holding the temporary charge signed the appointment order. Since the Major was not competent to issue the order, the same was ratified and countersigned by the Colonel. The appointment order could not be deemed to have been issued by the Colonel but should be deemed to have been issued by the Officer Commanding of the centre, who was a Lieutenant Colonel.
12. Before I deal with this contention, I would like to advert once more to Rule 56(j) of the Fundamental Rules. This rule vests the right of retiring a government servant in the 'appropriate authority. Definitions are contained in Rule 9 of the Fundamental Rules and this rule does not define the expression 'appropriate authority'. However, note 1 appended to Rule 56 defines the expression 'appropriate authority' as follows:
Note 1. 'Appropriate Authority' means the authority which has the power to make substantive appointment to the post of service from which the Government servant is required or wants to retire.
A bare reference to this note would go to show that for the purposes of Rule 56 of the Fundamental Rules, 'appropriate authority' means the authority which has the power to make substantive appointment to the post or service from which the government servant is required or wants to retire. In the present case, the petitioner was admittedly an U.D.C. In other words, he held the post of U.D.C. on the dates Annxs. 1 and 2 were passed. He could have been retired only by the authority who was competent to appoint an U.D.C. Learned Counsel for the petitioner has relied upon Rule 2(a) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965, which reads as follows:
2....
(a) 'Appointing authority' in relation to a Government servant means.
(i) the authority empowered to make appointments to the Services of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or
(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or
(iii) the authority which appointed Government servant to such service grade or post as the case may be, or
(iv) where the Government having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which grade in that Service or to that post, whichever authority is the highest authority.
He further relied upon Dharma Dev v. Union of India A.I.R. 1980 S.C. 557 and submits that aforesaid Rule 2(a) would govern this case squarely.
13. I find that this contention has great force. In Dharma Dev Mehta's case (supra), the apex Court was dealing with the validity of compulsory retirement ordered under Rule 56(j) of the Fundamental Rules. The apex Court after quoting Rule 2(a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (already reproduced above) went on to observe:
The most significant part of the rule states, after setting out alternative authorities, that the appointing authority is one out of these four categories who is the highest. This is emphatically brought out by the expression "whichever authority is the highest". There is no doubt that among the four classes of authorities listed under Rule 2(a), the one falling under Sub-rule (iii) viz., Comptoller and Auditor General (in the) present case) is the highest. It evidently follows - that the order of retirement, to be legal, must be issued by the Comptroller and Auditor General, but actually the impugned order of retirement was issued by the Director of Commercial Audit. In fact the order of retirement runs thus:
Whereas the Director of Commercial Audit is of the opinion that it is in the public interest to do so....
Obviously the Director of Commercial Audit is a lesser official. The conclusion is, therefore, inescapable that the compulsory retirement is contrary to law.
The High Court, in its extensive judgment considered the scheme of the rules and indeed, referred to the point mentioned above but after highlighting this question as one most emphasised by the appellant, has slurred over the point and proceeded to discussion of other issues. We are concerned with the vital-perhaps the fatal-aspect of the order which has not received due attention at the hands of the High Court. In this view, on account of the contravention of F.R. 56(j) read with Rule 2(a) of the (C.C.A.), we are constrained to come to the conclusion that the retirement is illegal.
In the present case, appointment order of the petitioner was made by an officer of the rank of Major. However, admittedly such officer was not competent to issue the order of appointment and the same was ratified and countersigned by an officer, who was holding the rank of Colonel. In these circumstances, the appointment order shall be deemed to have been made by the Colonel and not by the Major. This is true that under relevant rules, appointing authority for the post to which petitioner was appointed, was officer commanding holding the rank of a Lieutenant Colonel but in actuality the appointment was made not by a Lieutenant Colonel but by a Colonel due to non-availability of the Lieutenant Colonel. Hence, it is extremely doubtful if the petitioner could have been retired by respondent No. 3, who was inferior in rank to the officer, who had appointed the petitioner. I, therefore, find that Annx. I and n are invalid and bad in law and deserve to be quashed, as having been issued by an authority, who was not competent to issue them.
14. Now, I may take up the contention that Annx. I as issued was invalid and bad in law because admittedly it was not accompanied with any payment as required by Rule 56(j) of the Fundamental Rules. It was also bad because it did not give statutory notice of three months as required by the aforesaid Rule. By Annx. I, the petitioner was ordered to be retired w.e.f. afternoon of 28th Feb., 1983 while it was issued on 27.1.83. Respondent No. 3 by necessary Implication withdrew this order of retirement w.e.f. afternoon of 28th Feb., 1983 when amendment Annx. 2 was made.
15. Now, the question is if such an illegal order could have been cured by issuing amendment Annx. 2? It is extremely doubtful if amendment Annx. 2 could be retrospective in nature so as to inject life in an order which was invalid, imcompetent and illegal. To my mind Annx. I was altogether void and such a Void order could not be infused with life by issuing Annx. II. The matter does not rest here. Annx. II was served on the petitioner on 19.2.1983. It ordered retirement of the petitioner w.e.f. forenoon of 27th April, 1983. Thus, the period of notice required by Rule 56(j) was not made available to the petitioner. Period provided by Annx. 2 to the petitioner falls short of statutory period of three months and as such Annx. 2 is also invalid, illegal and void. It may be stated that by this order also no statutory payments were made to the petitioner in lieu of three months' notice. Thus viewed from any angle, Annx. 2 is also wholly invalid, illegal and void, being in contravention of the statutory requirements laid down by Rule 56 of the Fundamental Rules.
16. To sum up, I find that respondent No. 3 was not competent to issue orders Annx. I and II, he being inferior in rank to the officer, who had issued appointment order of the petitioner. Annx. I and II are also invalid and illegal inasmuch as none of them complied with statutory provisions of Rule 56(j) of the Fundamental Rules with regard to three months notice or payment of salary etc. in lieu of such payments. Illegality inhering in Annx. I could not be cured by Annx. 2, which itself was an invalid and illegal order. I am of the firm view that in the garb of an amendment, Annx. I could not have been validated retrospectively. At best, Annx. 2 could have been made effective prospectively. Viewed in this light, even if it could be said to be issued validly, it could have been effective only when it was served on the petitioner. Since this falls short of the statutory period and the petitioner had not been paid salary and allowances for the statutory period, it remained ineffective.
17. In the above premises, I find that Annxs. 1 and 2 are illegal and the retirement of the petitioner w.e.f. forenoon of 27.4.1983 is illegal. Consequently, both these orders are declared to be illegal and are quashed and set aside.
18. Learned Counsel for the petitioner urged that petitioner during the course of service was entitled to various other amenities as subsidised ration, passes etc. and some direction should be made in this regard. Since the petitioner has already retired no directions are required in this regard. A premature retirement has the effect of acceleration of grant of gratuity and other pensionary benefits, which are not otherwise due. This benefit of acceleration deserves to be set off against such other amenities and perquisites, to which the petitioner was entitled. Hence, I refrain from giving any such directions.
19. This takes me to the consideration of consequential directions to be given. The petitioner would have normally retired on 28.2.86. It is declared that he continued to be in service till 28.2.1986 and is entitled to arrears of salary and all other allowances and pensionary benefits on the basis that his retirement is effective from 28.2.1986. He shall be paid his entire arrears of salary and other allowances from 27.4.1983 till 28.2,1986. All such arrears of pay, allowance and other benefits shall be paid to him within three months after adjusting such payments as might have been made to him from the date he was made to retire till the date of superannuation indicated above with interest at the rate of 12% per annum. In case such payments are not made within the specified period, the balance of arrears shall carry interest at the rate of 24% per annum.
20. In the result, the petition succeeds to the extent indicated above. Petitioner shall get his costs also from the respondents.