Jai Ram vs Union Of India on 22 January, 1954

0
132
Supreme Court of India
Jai Ram vs Union Of India on 22 January, 1954
Bench: M.C. Mahajan (Cj), B.K. Mukherjea, S.R. Das, V. Bose, Ghulam Hasan
           CASE NO.:
Appeal (civil)  11 of 1953

PETITIONER:
JAI RAM

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT: 22/01/1954

BENCH:
M.C. MAHAJAN (CJ) & B.K. MUKHERJEA & S.R. DAS & V. BOSE & GHULAM HASAN

JUDGMENT:

JUDGMENT

AIR 1954 SC 584

The Judgment was delivered by : B. K. MUKHERJEA

B. K. MUKHERJEA, J. : This appeal, which has come before us on special
leave obtained by the plaintiff appellant, is directed against a judgment
of a Letter Patent Bench of the High Court of Punjab dated the 10th July
1952, reversing, on appeal, a decision of a single Judge of that Court
passed in Second Appeal No. 884 of 1950.

2. The suit, out of which the appeal arises, was commenced by the
plaintiff, in the Court of the Subordinate Judge at Ambala for a
declaration that the order passed by the Government of India, which is the
defendant in the suit, retiring the plaintiff from his service was
wrongful, void and inoperative and that the plaintiff should be deemed to
continue still in the service of the defendant.

The material facts, which are for the most part uncontroverted, may be
shortly narrated as follows :

The plaintiff entered the service of the Government of India as a clerk in
the Central Research Institute at Kasauli on the 7th of May, 1912. Under
Rule 56 (b) (i) of Chapter IX of the Fundamental Rules, which regulate the
civil services, a ministerial servant may be required to retire at the age
of 55 but should ordinarily be retained in service if he continues
efficient, till the age of 60 years.

The plaintiff was to complete 55 years on the 26th November 1946. It
appears, however, that in 1945 he himself was anxious to retire from
service & on the 7th of May 1945 wrote a letter to the Director of the
Institute to the following effect :

“Sir,

Having completed 33 years’ service on the 6th instant I beg permission
to retire and shall feel grateful if allowed to have the leave
admissible.”

This permission was not granted by the Director of the Institute on the
ground that the plaintiff could not be spared at that time. The plaintiff
renewed his prayer by another letter dated the 30th May 1945. In that
letter it was stated that owing to the untimely death of his brother, his
family circumstances did not permit him to serve the Institute any longer.
He, therefore, prayed for leave preparatory to retirement – four months on
average pay and the rest on half average pay – from 1st of June 1945, or
the date of his availing the leave, to the date of superannuation which was
specifically stated to be the 26th of November 1946.

The letter plainly indicates that the impression in the mind of the
plaintiff was that he was due to retire on the 26th of November 1946 and
all that he wanted was that he might be granted leave preparatory to
retirement from 1st of June 1945 or as early as possible after that. This
time also the plaintiff’s prayer was refused and the Head of the Institute
endorsed a note on his application that he could not be speared.

A third application was presented by the plaintiff on the 18th of September
1945 praying for reconsideration of his petition and urging one additional
ground in support of the same, namely, that the war was already at an end.
This application too shared the fate of its predecessors and the Director
of the Institute did not agree to his retirement.

After this the plaintiff kept silent for nearly 8 months and on the 28th
May 1946 he made his fourth application which, it appears, met with a
favourable response. In this application also it was stated that the
plaintiff would attain the age of 55 years on the 27th of November 1946 and
he prayed, therefore, that the full amount of preparatory leave, as was
admissible to him under the rules, might be granted to him. The Director of
the Institute sanctioned the leave and the question as to how much leave
and of what kind would be available to him was left to the decision of the
Accountant General, Central Revenues.

On the 11th of July 1946 the Accountant General communicated his order to
the Director of the Institute and his decision was that the plaintiff was
entitled to leave preparatory to retirement on average pay for six months
from 1st June 1946 to 30th November 1946 and on half average pay for five
months and twenty-five days thereafter, the period ending on 25th of May
1947.

Just 10 days before this period of leave was due to expire, the plaintiff
on the 16th of May 1947 sent an application to the Director of the
Institute stating that he had not retired and asked for permission to
resume his duties immediately. The Director informed him in reply that be
could not be permitted to resume his duties, as he had already retired,
having voluntarily proceeded on leave preparatory to retirement.

The plaintiff continued to make representations but ultimately the matter
was concluded so far as the Government of India was concerned by a letter
dated the 28th of April 1948 in which it was stated that the plaintiff
having availed himself of the full leave preparatory to retirement due to
him and having actually retired from service of his own volition, the
question of his having any right to return to duty and to continue service
till the age of 60 years did not at all arise. It was in consequence of
this letter that the present suit was filed by the plaintiff on the 5th of
July 1949.

3. The legality of the Government communication mentioned above has been
attacked in the plaint substantially on a two-fold ground. The first ground
alleged is, that under Rule. 56(b) (I), Chapter IX of the Fundamental
Rules, the age of retirement is not 55 but 60 years. The rule no doubt
gives the Government a right to retire a ministerial servant at the age of
55, but that can be done only on the ground of his inefficiency,
Consequently, before a servant coming within that category is required to
retire at 55, it is incumbent upon the Government to give him an
opportunity to say what he has to say against this premature retirement in
accordance with the provision of Section 240 (3) of the Government of India
Act, 1935 and unless this is done, the order terminating his service cannot
be held to be valid.

The other contention is, that although the plaintiff on his own application
obtained leave preparatory to retirement, yet there was nothing in the
rules which prevented him from changing his mind at any subsequent time and
expressing a desire to continue in service provided he indicated this
intention before the period of his leave expired.

4. The trial Court negatived both these contentions and dismissed the
plaintiff’s suit. In the opinion of the Subordinate Judge it was
discretionary with the Government under Fundamental Rule 56 (b) (I) either
to require a ministerial servant to retire at 55 or to allow him to
continue in service till 60 and there was no breach of statutory obligation
in this case by reason of the fact that the plaintiff was made to retire
before the age of 60.

On the other point the Subordinate Judge held that there was no statutory
rule under which a Government servant could claim to resume his previous
duties as a matter of right by merely choosing to return before the expiry
of the period of his leave. This could be done only with the permission of
the superior authority which was absent in the present case.

5. This decision of the trial Court was affirmed on appeal by the District
Judge at Ambala. The plaintiff thereupon took a second appeal to the High
Court of Punjab and the appeal was heard by Falshaw, J. sitting singly. The
learned Judge allowed the appeal, upholding both the contentions raised by
the plaintiff and the decreed the suit.

Against this decision there was a further appeal to a Bench of the same
High Court under Clause 10 of the Letters Patent and the Letters Patent
Bench reversed the judgment of the single Judge and dismissed the
plaintiff’s suit. The plaintiff has now come up to this Court and Mr.
Umrigar, who appeared in support of the appeal, reiterated before us both
the contentions that were pressed on behalf of his client in the Courts
below.

6. As regards the first point, Mr. Umrigar lays stress mainly upon Rule 56

(b) (i) of Chapter IX of the Fundamental rules which is worded as follows :

“A ministerial servant who is not governed by sub-clause (ii) may be
required to retire at the age of 55 years, but should ordinarily be
retained in service, if he continues efficient, 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 local Government.”

We think that it is a possible view to take upon the language of this rule
that a ministerial servant coming within its purview has normally the right
to be retained in service till he reaches the age of 60. This is
conditional undoubtedly upon the continuing to be efficient. We may assume,
therefore, for purposes of this case that the plaintiff had the right to
continue in service till 60 and should not be retired before that except on
the ground of inefficiency. But that by itself affords no solution of the
question that requires consideration in the present case.

Here the plaintiff was not compelled or required to retire by anybody. If
the Government required him to retire in terms of the Fundamental Rule 56

(b) (i), it might be argued that he should have been an opportunity to show
that he was still efficient and able to discharge his duties and
consequently could not be retired at that age. But here the situation was
entirely of the plaintiff’s own seeking and his own creation.

Ever since May 1945 when he had not even completed his 54th year, the
plaintiff began making importunate request to his official superior to
allow him to retire from service. It will be noticed that in his first
application he mentioned the fact of his having completed 33 years of
service as a ground for obtaining the permission prayed for. There is, in
fact, a rule in the Civil Service Regulations under which a retiring
pension is granted to an officer who is permitted to retire after
completing service for 30 years. It is not clear whether this rule which
relates to superior service was at all applicable to the plaintiff. But it
is a fact that in his applications for leave preparatory to retirement he
laid great stress on two facts, one of which was the length of his service
and the other that he was to reach the age of superannuation in
November1946.

Ultimately when his application was granted the leave, which was allowed to
him, was on the basis of his retiring from service on the 27th November,
1946. He was given post-retirement leave for a period of about six months
from that date in terms of Rule 56, Chapter X of the Fundamental Rules on
the ground that he had previously applied for leave which was at his credit
but it was refused on the ground of requirement of public service. The
plaintiff could not have got this period of leave except on the footing
that his service ended on the 27th November, 1946. Rule 56 (b) (i), which
speaks of a ministerial servant being ‘ordinarily’ retained in service till
60, does not, in our opinion, contemplate a case of this description and
does not preclude a ministerial servant from waiving, by express agreement
a right to which he might otherwise have been entitled under this rule.

When a servant has attained the age of 55 years and for some reason or
other himself confesses his inability to continue in service any longer and
seeks permission for retirement, we consider it to be a useless formality
to ask him to show cause as to why his service should not be terminated.
Section 240 (3) of the Government of India Act, 1935 could not have any
possible application in such circumstances. The first contention of the
appellant must, therefore, in our opinion fall.

7. In view of our decision on this point, the other point practically loses
its force. It may be conceded that it is open to a servant who has
expressed a desire to retire from service and applied to his superior
officer to give him the requisite permission, to change his mind
subsequently and ask for cancellation of the permission thus obtained; but
he can be allowed to do so long as he continues in service and not after it
has terminated.

As we have said above, the plaintiff’s service ceased on the 27th of
November 1946; the leave, which was allowed to him subsequent to that date,
was post-retirement leave which was granted under the special circumstances
mentioned in F. R. 86. He could not be held to continue in service after
the 26th of November 1946, and consequently it was no longer competent to
him to apply for joining his duties on the 16th of May 1947, even though
the post-retirement leave had not yet run out. In our opinion, the decision
of the Letters Patent Bench of the High Court is right and this appeal
should stand dismissed. In view of the fact that the plaintiff is a pauper
and has not been permitted to draw his pension as yet, we make no order as
to costs.

LEAVE A REPLY

Please enter your comment!
Please enter your name here

* Copy This Password *

* Type Or Paste Password Here *