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- 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. 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,
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
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
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,
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