Patna High Court
Debendra Prasad Srivastava vs The State Of Bihar And Ors. on 29 September, 1964
Equivalent citations: AIR1965PAT186, AIR 1965 PATNA 186
JUDGMENT G.N. Prasad, J.
1. This second appeal has been filed by the plaintiff, who was the Head Assistant in the Waste Land Reclamation section of the Revenue Department of the Government of Bihar, and was served with an order of the Director, Waste Land Reclamation, to retire compulsorily with effect from the 11th November, 1958. He instituted the suit on the 30th November, 1989, for the following reliefs:
(i) For a declaration that the order of retirement of the plaintiff is illegal and not binding on the plaintiff, who was entitled to rejoin his duties on tike 11th November, 1958, after expiry of his leave for eight months;
(ii) For an injunction restraining the defendants from enforcing the order of retirement against the plaintiff; and
(iii) For such other relief or reliefs to which the plaintiff may be entitled.
2. The facts are these; the plaintiff was originally serving as a Lower Division Assistant in the office of the Deputy Director of Agriculture, Patna Range, and in the normal course, he was due to retire with effect from the 31st October, 1956, on attaining the age of 88 years. On the 6th June, 1948, however, he was appointed is an Upper Division Assistant in the Land Reforms section of the Revenue Department in the pay scale of Rs. 130--12--250. On the 11th August. 1950, he was promoted to the post of the Head Assistant in the Waste Land Reclamation section (vide Ex. 5/gha). His post was upgraded with effect from the 1st January, 1936, and it carried a pay scale of Rs. 345--15--400. On the 19th March, 1956, an order was passed by the Director, Waste Land Reclamation, in the following terms:
"Subject : Extension of terms of appointment of the officers and staff under the Directorate of Waste Land Reclamation up to the end of the Second Five Year Plan.
The terms of appointment in respect of the following officers and staff under the Directorate of Waste Land Reclamation is extended for a further period of five year, i.e., up to the end of the Second Five Year Plan (i.e., 28-2-1901), as sanctioned in Government order No. IV-100/55-472-W.L.R., dated 15-3-1956.
HEAD QUARTERS Sl. No. Name Designation
1. Shri A.K. Mukherjee Deputy Director.
2. Shri D.P. Srivastava Head Assistant.
* * * * *
Sd. S.C. Mukherjee
Director
Waste Land Reclamation,"
This document, which is on the record as Ex. 1, contained a full and comprehensive list of the entire staff consisting of 96 employees attached to the Headquarters at Patna, right from the Deputy Director to the peons who were then serving in the Waste Land Reclamation section. By a subsequent order of the Government, the Directorate of Waste Land Reclamation was placed on a permanent basis with effect from the 1st April, 1956 (vide Ext. Kha/2). With effect from the 11th March, 1958, the plaintiff proceeded on leave for eight months on medical grounds, and, while he was still on leave, an order was passed on the 21st July, 1958, for his reversion to the Agriculture Department with effect from the 11th November, 1958, which was the date of the expiry of his leave. But the Joint Director of Agriculture wrote a letter on the 5th November, 1958 (Ext. 4/kha) to the Director, Waste Land Reclamation, saying that the plaintiff had already attained the age of superannuation in October, 1956, and, as such, the question of retaining a post for him in the office of the Deputy Director of Agriculture to enable him to revert to the said post could not now arise. It was also mentioned in the said letter (Ext. 4/kha) that the order contained in Exhibit 1 had been passed without consulting the Deputy Director of Agriculture, in whose office the plaintiff held substantively the post of a permanent clerk.
Against the order of his reversion to the Agriculture Department, the plaintiff filed a representation to the Revenue Minister, but Exhibit Ka, which is dated the 29th March, 1959, shows that "his representation dated the 4th September, 1958 addressed to Minister (Revenue) for retention in the temporary post of Head Assistant, Waste Land Reclamation, beyond the 10th November, 1958, after superannuation on the 31st October, 1956", was rejected. Exhibit Ka/1, dated the 23rd September, 1959, shows that the plaintiff made another representation on the 11th April, 1959, to the Chief Minister, which was also rejected. In the meantime, on the 8th/9th April, 1959, the Director, Waste Land Reclamation wrote the following letter (Ext. Ka/2) to the plaintiff;
"It has been decided that you should retire from service with effect from the 11th November, 1958, on which date your leave on medical certificate expired, as you have already been 57 years of age and as you were not granted any extension of service beyond the superannuation age of 55 years. You are aware of the fact that suppressing the file on the subject yourself, you continued in service beyond the superannuation age without any order sanctioning such extension and since you are neither in good health nor efficient any longer, your retirement as stated above, has been decided upon by me. You should, therefore, submit papers for drawing a pension and gratuity without any delay, as I am anxious that at least provisional pension should be sanctioned for you immediately. I regret conveyance of this order to you has been somewhat delayed on account of the fact that you had made a representation to Government against your reversion to the Agriculture Department, which was so long under consideration. Orders passed on it recently have been conveyed to you. The Agriculture Department have also declined to take you on the ground that you have superannuated and with your superannuation, your service with them have ended.
Sd. S.C. Mukherjee, Director, Waste Land Reclamation, Bihar.
Patna."
3. In substance, the case of the plaintiff is that the order of his compulsory retirement contained in Exhibit Ka/2 is illegal and invalid on principally three grounds.
(i) That the Director, Waste Land Reclamation, had no authority to pass such an order in the case of the plaintiff, since his services had been extended until the 28th February, 1961, under the order of the Government dated the 15th March 1958, referred to in Exhibit 1. According to the plaintiff, his appointment to the post of the Head Assistant had been made by the Secretary of the Revenue Department (Ext. 5/gha) and, therefore, an order for his compulsory retirement could only have been passed by the Secretary of the Revenue Department in view of item No. 9A of Appendix 1 of the Bihar Service Code, Part II;
(ii) that it was in the nature of the plaintiff's dismissal or removal from service within the meaning of Clause (2) of Article 311 of the Constitution but it was passed without giving any reasonable opportunity to the plaintiff of showing cause against the action proposed to be taken in regard to him and,
(iii) that the order could not operate retrospectively with effect from the 11th November, 1958.
4. A joint written statement was filed by all the three defendants, namely, (1) the State of Bihar, (2) the Secretary, Revenue Department and (3) the Director, Waste Land Reclamation, in which the principal pleas taken were that the order contained in Exhibit 1 was only an order extending the life of the Waste Land Reclamation Department, which was then working on a temporary basis, up to the end of the Second Five Year Plan. It was not an order of extension of the plaintiff's term of appointment beyond the period of his superannuation. Only his services were retained for the time being subject to the usual conditions of his service. Neither the plaintiff ever applied for extension of his service as contemplated by Rule 132 (b) of the Bihar Pension Rules, nor did the Government pass any order for extension of his service as envisaged by Rule 75 read with Rule 73(b) of the Bihar Service Code. The order of retirement with effect from the 11th November, 1958, was validly passed by the Director, Waste Land Reclamation, inasmuch as the plaintiff superannuated on the 31st October, 1956; and he could not claim extension of service as a matter of right after attaining the age of 55 years. The provisions of Article 311 of the Constitution were not attracted to the facts of the present case in view of Note 1 to Rule 74 of the Bihar Service Code since the plaintiff had already completed more than twenty-five of total service calculated from the date of his first appointment.
5. The trial court dismissed the suit in the first instance, but upon an application by the plaintiff, it reviewed its decision and ultimately decreed the suit But the lower appellate court set aside the decree of the trial court and dismissed the suit. The plaintiff has accordingly preferred this second appeal, which came up before a learned single Judge, who has referred it to a Division Bench. 6. For a proper appreciation of the points of controversy between the parties, it will be convenient to set out the rules relating to superannuation, extension of service and compulsory retirement, which governed the plaintiff's conditions of service. Rule 73(b) of the Bihar Service Code provides:
"A ministerial servant may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficiently, up to the age of 60 years. He must not be retained after that age, except in very special circumstances, which must be recorded in writing and with the sanction of the State Government."
The next relevant rule is Rule 75, which is in the following terms:
"Each Government servant's case should be taken up when he is approaching the age of superannuation and before the expiry of each extension of service. Extensions may not be granted for any period exceeding one year at one time, the first extension being given generally up to the end of the financial year."
A corresponding rule is to be found in the Bihar Pension Rules, namely, Rule 132, which provides:
"132. (a) Each Government servant's case should be taken up when he is approaching the age of superannuation and before the expiry of each extension of service.
(b) Applications for extension of service of Government servants who are about to attain or have attained the age of superannuation should be made six months before the expiry of the terms of service whether original or extended."
The next relevant Rule is 74 of the Bihar Service Code, which provides;
''The State Government may require any Government servant who has completed twenty-one years of duty and twenty-five years of total service calculated from the date of his first appointment to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire no claim to any special compensation should be entertained."
Note 1 to Rule 74 says:
"Compulsory retirement effected in pursuance of this rule does not amount to dismissal or removal from service within the meaning of Clause (2) of Article 311 of the Constitution and a Government servant so retired cannot claim, as a matter of right, that he should be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It shall also not be necessary, in such cases, to follow the procedure laid down for the institution of departmental proceedings against the Government servant before retiring him compulsorily from Government service."
Rule 74 has to be read with item No. 9A of Appendix I in Part II of the Bihar Service Code. Item No. 9A shows that the power of the State Government to pass order for compulsory retirement at a Government servant has been delegated as follows:
(i) To Departments of Government (which under the Rules of Executive Business means the Secretary to the Government), with "full power"; and,
(ii) To Heads of Departments, with "full power in respect of non-gazetted Government servants --
both superior and inferior services -- who are not appointed by Government."
It is also necessary to refer to some ot the rules of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935. Rule 2(iv-a) of these Rules provides that compulsory retirement is one of the penalties which may, for good and sufficient reasons, be imposed upon any member of a Subordinate Service. But Explanation III appended to the same rule makes it clear that:
"Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement does not amount to a penalty within the meaning of this rule."
Where, however, compulsory retirement is intended to operate as a penalty, the procedure indicated in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules has to be followed. In other words, the grounds on which the action is proposed to be taken must be reduced to the form of a definite charge or charges, which must be communicated to the Government servant concerned and he should be afforded an adequate opportunity of defending himself. It is also provided that in drawing up proceedings and conducting departmental enquiries, the instructions contained in Rules 168 to 170 of the Bihar and Orissa Board's Miscellaneous Rules, 1939, are to be followed, except where more detailed instructions have been framed by the department concerned. I must make it clear that the validity of none of these rules has been challenged before us and, in fact, both the parties have relied upon them in support of their respective contention.
7. The first contention of Mr. Basudeo Prasad, appearing on behalf of the appellant, is that upon the very language of Exhibit 1, it must be held that the service of the appellant, who was due to superannuate on the 31st October, 1956, was extended beyond his superannuation up to the 28th February, 1961. In this connection it was urged that the lower appellate court has placed a wrong construction upon Exhibit 1, in so far as it treated the notification in question as extending merely the life of the Waste Land Reclamation Department up to the end of the Second Five Year Plan, because if that had been the import of the notification, then it would not have been necessary to include therein a list of all the employees who, for the time being, were serving in the said Department. It was pointed out that in this respect Exhibit 1 is in sharp contrast with the subsequent notification, Exhibit Kha (2), whereby the Directorate of West Land Reclamation was put on a permanent basis with effect from the 1st April, 1956. In the latter notification, only the description of the gazetted and non-gazetted posts sanctioned for the Directorate was mentioned, and not the names of the holders or those posts as in Exhibit 1.
Mr. Prasad also contended that the letter, Exhibit 4 (Kha) dated the 5th November, 1958, shows that even the Joint Director of Agriculture interpreted Exhibit 1 as granting "an extension of service" to the plaintiff for a period of five years, that is, up to the 29th February, 1961. In my opinion, this argument cannot be accepted as correct. Exhibit 1 speaks of extension for "a further period" of five years, implying thereby that a similar extension had been granted on an earlier occasion. The earlier extension could not possibly refer to the extension of the services of the various officers and staff serving In the Directorate of Waste Land Reclamation. So far as the plaintiff was concerned, his superannuation had not fallen due at the time when the earlier extension referred to in Exhibit I took place. Further, it cannot be maintained that each of the 96 employees named in Exhibit 1 was due to retire during 1956 or soon thereafter so that it was thought necessary to grant extension of service to each one of them. It is impossible to hold that only in the case of the plaintiff, the notification (Ext. 1) was intended to operate as granting an extension of his service beyond the period of his superannuation.
8. Rule 73(b) of the Bihar Service Code no doubt contemplates that a Government servant like me plaintiff should ordinarily be retained in service, subject to his being efficient, up to the age of 60 years, and it was contended that Exhibit 1 was an order of the State Government as envisaged in the said rule. But the fallacy in this argument is that the Bihar Service Code does not contain any rule permitting grant of extension of service for five years at a stretch. Rule 75 of the Code clearly contemplates that such an extension of service may not be granted for any period exceeding one year at a time. The same rule further contemplates that while considering the question of extension of service, the case of each Government servant should be taken up separately when he is approaching the age of superannuation. Rule 132 of the Bihar Pension Rules contemplates that a Government servant who is about to attain the age of superannuation must make an application for extension of his service at least six months before his term of service is due to expire. There is nothing to show, and it has also at no time been suggested, that the appellant had put forward any such application for extension of his service or that his case was dealt with separately as required by Rule 75 at the time when the notification (Ext. 1) was issued. It was neither an extension of service for one year nor up to the end of the financial year as contemplated by Rule 75. By no stretch of imagination, therefore, Exhibit 1 can be construed as an order granting extension of service to the plaintiff under the relevant rules of the Bihar Service Code.
9. The fact that the names of the existing employees of the Directorate were mentioned in Exhibit 1 cannot be itself lead to the conclusion that the services of all of them were extended until the 28th February, 1961, irrespective of the fact whether they were due to superannuate under the rules or not. There is nothing in Exhibit 1 or any other material on the record to suggest that by issuing the notification contained in Exhibit 1, the appropriate authority intended to abrogate the usual rules of superannuation or extension of service in favour of the plaintiff. Therefore, the more reasonable view which should be taken is that Exhibit 3 was Intended to extend the life of the Department of Waste Land Reclamation for a period of five years ending on the 28th February, 1961, and the services of the officers and staff then serving in the said Department were, for the time being, retained under the Directorate. Such retention of service, as distinguished from extension of service, was undoubtedly subject to the usual conditions of service relating to superannuation and extension of service of all the employees concerned.
10. In his letter, Exhibit 4 (Kha), the Joint Director of Agriculture, no doubt, treated the order contained in Exhibit 1 as granting an extension of service to the plaintiff for a period of five years. But the lower appellate court has rightly held that such a view was taken by the Agriculture Department under some misapprehension or misconception, of which no advantage can be taken by the plaintiff. The Joint Director of Agriculture was, by no means, an authority competent to correctly interpret the meaning of Exhibit 1. Exhibit 4 (Kha), therefore, cannot operate to give an extended meaning to the notification (Ext. 1).
11. Mr. Basudeo Prasad then relied upon certain concession which appears to have been made before the trial court by the learned Government Pleader appearing on behalf of the defendants. We were referred to the following passage occurring in the judgment of the trial court;
"At the time of argument the-learned Government Pleader had conceded that from the documents it is clear that the plaintiff was a permanent servant and that his appointment was extended after the period of superannuation up to 28-2-1961 (vide Ext. 1). Many documents have been produced in support of the contention that the plaintiff was a permanent servant and that his employment in the Waste Land Reclamation Department was extended up to 28th February, 1961. But as the point now has been conceded at the time of argument I will not refer to those documents."
Before the lower appellate Court, however, the stand taken by the lawyer appearing on behalf of the dependants was that the above observation of the trial court was "but a half truth inasmuch as the point was never conceded outright", but that, "an argument was advanced before that court in support of the defendants' right to have compulsorily retired the plaintiff from service under Rule 74 of the Bihar Service Code and for advancing such an argument it had been assumed, just for the sake of argument, that even if the Government order (Ext. 1) extended the service of the plaintiff, as he meant to contend, that would not at all have stood in the way of the defendants in making the plaintiff retire compulsorily".
This aspect of the matter has been elaborately gone into by the lower appellate court which has held that, in view of the definite case put forward by the defendants in the written statement, it was impossible to apprehend how such a point ''should have so unceremoniously been conceded before the trial court by the learned Government Pleader". In my opinion, the view taken by the lower appellate court is correct. I may mention in this connection that in an affidavit which was filed on behalf of the appellant in the lower appellate court on the 11th September, 1961, it was stated in paragraph 3 that before that court also the learned Government Pleader had made a concession similar to what he had made before the trial court, and in paragraph 9 of its judgment, the lower appellate court while dealing with the validity of the order of compulsory retirement, began with the following observations:
"It will now have to be seen as to how far the order relating to the plaintiffs reversion and compulsory retirement can be said to be valid or constitutional if it be assumed for the sake of argument that the Government's order dated 19-3 56 (Ext. 1) granted an open and unqualified extension of the plaintiffs service up to 28-2-61".
It is manifest that the question of the validity or otherwise of the order of the plaintiff's compulsory retirement can only arise if it is held or assumed that the plaintiff's services were extended up to the 28th February, 1961, by virtue of the order. Exhibit 1. I, therefore, feel satisfied that the observation of the learned Munsif with regard to the concession of the learned Government Pleader, extracted above, was due to misapprehension or misunderstanding of the argument addressed to him by the learned Government Pleader. But even if it be taken that the point was conceded by the Government Pleader, it was open to the defendants to show that the concession was made under some misapprehension, as pointed out before the lower appellate court. Besides, it was not in the nature of a concession on a point of fact, but, at best, an opinion, which the Government Pleader formed in his mind from the documents on the record. Such an opinion can, by no means, be binding upon the defendants like an admission of their counsel on a point of fact. The appellant's case, therefore, does not get any support from the alleged concession of the Government Pleader.
12. These are all the arguments which have been addressed to us in support of the appellant's case that his service was extended beyond his superannuation; but for the reasons which I have given above, it is not possible to accept the appellant's case in this regard. It must follow that the appellant was bound to superannuate with effect from the 31st October, 1956, on attaining the age of 55 years, and the mere fact that he was retained in service thereafter, did not confer any right upon him to continue in service for any fixed period beyond the 31st October, 1956. After that date, there could be no question of his dismissal or removal from service; and his services could be terminated at any time when they were no longer required. In this view of the matter, the question of compulsory retirement of the appellant did not really arise and the appellant could not maintain that he must be retained in service even though his services were no longer required.
13. I, however, proceed to consider the next contention of Mr. Basudeo Prasad which is in relation to the order of the Director, Waste Land Reclamation, contained in Exhibit Kha (2), intimating to the appellant, in effect, that his services were no longer required. The context in which this order was passed, has already been mentioned. The appellant had proceeded on leave with effect from the 11th March, 1958. Thereafter, it was decided that he should revert to the Agriculture Department, where he held a substantive post before being transferred to the Department of the Waste Land Reclamation. In the letter (Ext. 4) addressed to the Director of Agriculture on the 11th July, 1988, a copy of which was forwarded to the appellant, the Director, Waste Land Reclamation expressed himself as follows:
"Due to increase in the volume of work of this Department on account of implementation of the scheme under the Land Development Sector in the Second Five Year Plan, Sri Srivastava was found to be not coping with the heavy work also. In short, he ceased to be of any use in this office now. It has, therefore, been decided that he should go back to his parent office on expiry of his leave with effect from the 11th November, 1958".
But the Joint Director of Agriculture wrote back to the Director, Waste Land Reclamation, that the appellant had already attained the age of superannuation on the 31st October, 1956, and no post had been retained for him in the Agriculture Department to which he could revert. In the meantime, the appellant had made a representation to the Minister in charge of his Department, but it was rejected, as intimated to the appellant in the letter (Ext. Ka) of the Joint Land Reforms Commissioner dated the 29th March, 1959. The effect of the Minister's decision obviously was that the services of the appellant were no longer required and a decision was taken that he should not be retained any further in his existing post in the Waste Land Reclamation Section, The order of the Director, Waste Land Reclamation, contained in Exhibit Ka (2) was a corollary to the decision taken by the Revenue Minister while considering the representation made to him by the appellant. In this connection it should be pointed out that it was an undisputed fact, as mentioned in paragraph 5 of the judgment of the trial court, that by then the plaintiff had already been in service for more than 25 years, besides having attained the age of superannuation. Under Rule 74 of the Bihar Service Code, therefore, it was open to the State Government to require the appellant to retire from Government service if his efficiency or conduct did not justify his further retention in service.
Mr. Basudeo Prasad conceded that the retirement of the appellant in accordance with Rule 74 cannot amount to a penalty or dismissal or removal from service within the meaning of Article 311 (2) of the Constitution. But the contention of the learned counsel is that the case of the plaintiff was not one of compulsory retirement in accordance with the provisions relating to his superannuation or retirement. According to the learned counsel, the case of the appellant fell within Rule 2(iv-a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, and the order for his compulsory retirement was in the nature of a penalty sought to be imposed upon him on account of his alleged improper conduct in continuing in service beyond the superannuation age by "suppressing the file on the subject" and, therefore, the plaintiff was entitled to an adequate opportunity of defending himself in accordance with Rule 55 of the Civil Service (Classification, Control and Appeal) Rules; but since the procedure indicated in Rule 55 was not followed, the order for his compulsory retirement must be struck down as invalid. Mr. Prasad also challenged the validity of the order (Ext. Ka/2) of the Director, Waste Land Reclamation, on the ground that the latter officer was not competent to pass an order for compulsory retirement of the appellant since the appellant had been appointed to the post of an Upper Division Assistant Class III by the order, Exhibit 5 (gha), of the Secretary to Government, in the Revenue Department, who alone was competent to pass the order for compulsory retirement of the appellant in view of the first part of item No. 9A of Appendix in Part II of the Bihar Service Code.
14. In my opinion, the entire argument of the learned counsel is based upon a misconception. There can be no doubt that Rule 74 of the Bihar Service Code was fully applicable to the case of the appellant who had completed twentyone years of duty and twentyfive years of total service calculated from the date of his first appointment. It is equally clear that while considering the representation which the appellant had made to the Revenue Minister the Revenue Minister had taken a decision that the appellant who had already superannuated should not be retained in service in the Waste Land Reclamation Section, where his services had been retained on a temporary basis. In effect, therefore, the order of the Revenue Minister was an order contemplated by Rule 74 of the Bihar Service Code. In arriving at his decision, the Revenue Minister must have taken into consideration the fact that the efficiency or conduct of the appellant was not such as to justify his further retention in service. Admittedly, the plaintiff had to proceed on a long leave on medical grounds. It is also possible that the Revenue Minister thought that the appellant had suppressed the file on the subject of his superannuation and, therefore, his efficiency or conduct was not such as to justify his further retention in service.
In my opinion, it was entirely a case of compulsory retirement in accordance with the provisions relating to the superannuation or retirement of the appellant. The position would undoubtedly have been otherwise if Rule 74 of the Bihar Service Code was not applicable to the case of the appellant. If both Rule 74 of the Bihar Service Code and Rule 2(iv-a) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules were applicable then it was open to the authority concerned to act under the former rule, instead of under the latter rule. It is manifest that the authorities in the present case had decided to apply Rule 74 to the case of the appellant. Rule 2(iv-a) was not attracted merely because it was thought that the appellant had suppressed the file relating to his superannuation. Even under Rule 74, this matter could be taken into consideration along with the further fact that the appellant had to remain up a long leave on the ground of his health, while arriving at the decision that his efficiency or conduct was not such as to justify his further retention in service, I, therefore, think that there is no substance in the contention of the learned counsel that the order of compulsory retirement was in the nature of a penalty imposed upon the appellant, and the order cannot, therefore, be struck down as invalid, because the procedure indicated in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was not followed.
15. The contention of Mr. Basudeo Prasad that the Director, Waste Land Reclamation, was not competent to pass the order for compulsory retirement of the appellant would have had some force if that order would have stood by itself. But the order contained in Exhibit Ka (2) was only a sequel to the decision taken by the Revenue Minister which was communicated to the appellant by the Land Reforms Commissioner in his letter (Ext. Ka) dated the 29th March, 1989. This letter clearly shows that the Revenue Minister had decided not to retain the appellant in his post in the Waste Land Reclamation Department beyond the 10th November, 1958. It cannot be suggested that an order for the compulsory retirement of the appellant could not have been passed by the Revenue Minister. After this decision of the Revenue Minister, no further order as contemplated by Rule 74 was necessary. What remained to be done was only to give effect to the decision of the Revenue Minister; and it was really for this purpose that the communication, Exhibit Ka (2), was addressed to the appellant by the Director, Waste Land Reclamation. It is true that in his letter, Exhibit Ka (2), the Director said that the retirement of the appellant had been decided upon by him, but that was wholly redundant, because the Director had to take no further decision of his own, but only to give effect to the decision of the Revenue Minister. The lower appellate court has rightly held that the order contained in Exhibit Ka (inadvertently mentioned as 4/ka) purported to be the final order against the appellant's further retention in Government Service or the order relating to his compulsory retirement. The validity of the order, Exhibit Ka (2), cannot, therefore, be successfully assailed on any of the grounds urged by the learned counsel.
16. The last contention of Mr. Basudeo Prasad is that the order of the appellant's retirement cannot operate retrospectively with effect from the 11th November, 1958, but can, at best, be effective from the date of the letter, Exhibit Ka (2), that is to say, the 9th April, 1959. In my opinion, this contention is not without force. An administrative order of this kind cannot be given retrospective effect; and it must be deemed to have come into force on the date on which it was passed, otherwise there would be room for great hardship to the person affected by the administrative order. Until the 29th March, 1959, the appellant could have no information what decision the Revenue Minister would take while considering his representation. Different consideration might have arisen if on or before the 11th November, 1958, some order in writing would have been communicated to the appellant that his services were no longer required. But all that appears to have been done was that he was not allowed to resume his duties upon the expiry of his leave. An oral order of this kind cannot operate to terminate the appellant's service. In my opinion, it would be unfair to hold that the appellant's retirement was to take effect from a date prior to the communication of the decision of the Revenue Minister to him. I would, therefore, accept this contention of the learned counsel and hold that the appellant's retirement operated with effect from the 9th April, 1959. The appellant is not entitled to any other relief in this appeal.
17. With this modification, the appeal is dismissed. But, in the circumstances of this case, there will he no order for costs.
Misra, J.
18. I agree.