PETITIONER: STATE OF RAJASTHAN AND ANR. Vs. RESPONDENT: SRIPAL JAIN DATE OF JUDGMENT: 24/01/1963 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. SHAH, J.C. CITATION: 1963 AIR 1323 1964 SCR (1) 742 ACT: State Service-Order of compulsory retirement-Power of Inspector-General of Police order if amounts to punshment- --If must be submitted to Governor-Constitution of India, Arts. 166, 311-Rajasthan Service Rules, rr. 56, 244(2)- Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, rr. 14, 34-Rules of Businesses) rr. 21, 31(vii)Rajasthan General Clauses Act, 1955 (VIII of 1955), ss. 32(33), 32(75). HEADNOTE: The respondent in the present appeal was a Circle Inspector in the Rajasthan State Service. He was compulsorily retired from service and the order was communicated to him by the Inspector-General of Police. Thereafter he filed a writ petition in the Rajasthan High Court challenging the order. The High Court allowed the writ petition on the ground that r. 31 (vii (a) of the Rules of Business applied to a case of compulsorly retirement under r. 244(2) of the Rajasthan Service Rules and as the papers had not been submitted to the Governor the order of compulsory retirement in the present case was bad. The State of Rajasthan appealed to this Court by way of special leave. 743 The main question before this Court was whether a case of compulsory retirement under r. 244(2) of the Service Rules has to be submitted to the Governor under r. 31 (vii) (a). of the Rules of Business. It was further contended on behalf of the respondent that r. 244(2). of the Service Rules contemplated an order of compulsory retirement by the Government and not by the Inspector-General of Police as was done in the present case. The respondent also contended that since the order was not in the form prescribed by Art. 166 of the Constitution it was bad. His last contention was that by reason of s. 32(75) of the Rajasthan General Clauses Act, 1955, an order under r. 244(2) of the Service Rules means an order by the Governor. Held, that compulsory retirement provided in r. 31 (vii) (a) is a compulsory retirement as a penalty and not compulsory retirement of the other two kinds namely (1) compulsory retirement on attaining the age of superannuation and (2) compulsory retirement under r. 244(2), neither of which is a punishment. It was not therefore necessary to submit the papers with respect to compulsory retirement of the respondent under r. 244(2) to the Governor. it is well settled that any defect of form in the order would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by it. The recommendation made by a high power committee for the compulsory retirement of the respondent having been approved by the Home Minister and by the Chief Minister, by virtue of r. 21 the impugned order is one made by the Government. The definition of 'Government' and 'State Government' in the Rajasthan General Clauses Act does not support the contention of the respondent in the light of the above interpretation of r. 31 (vii) (a) of the Business Rules. JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 299/62.
Appeal by special leave from the judgment and order dated
February 23, 1961, of the Rajasthan High Court in D. B.
Civil Writ No. 416 of 1960.
G. C. Kasliwal, Advocate,-General,for the State of Rajasthan
S. K. Kapur and P. D. Menon for the appellants.
744
Veda Vyasa and K. K. Jain, for the respondent.
1963. January 24. The judgment of the Court was delivered
by
WANCHOO, J.-This is an appeal by special leave against the
judgment of the Rajasthan High Court. The respondent was in
the service of the State of Rajasthan and at the material
time was a circle inspector. He was compulsorily retired
from service on September 3, 1960 under r. 244 (2) of the
Rajasthan Service Rules, (hereinafter referred to as the
Service Rules). The order for his retirement was
communicated to him by the Inspector General of Police
Rajasthan, on April 11, 1960. The respondent however made
representations to the Government and the order was kept in
abeyance and was finally put into effect from September 3,
1960, after the Government had rejected the representation.
The Government ordered on September 2, 1960 that the order
of April 11, 1960 regarding compulsory retirement should be
put into immediate effect. The respondent thereupon filed a
writ petition in the High Court and contended inter alia
that the Inspector General of Police had no authority to
order his compulsory retirement under r. 244 (2) of the
Service Rules. He also contended that the order amounted to
punishment within the meaning of r. 14 of the Rajasthan
Civil Services (Classification, control and appeal) Rules,
1958, (hereinafter referred to as the Classification Rules),
and therefore as it was passed without giving him an
opportunity to show cause as required under Art. 311 of the
Constitution, it was bad.
The petition was opposed on behalf of the state of Rajasthan
and it was contended that’ an order of compulsory retirement
under r. 244 – (2) of the Service Rules was not a punishment
within, the meaning of the Classification Rules, and
therefore -Art. 311
745
had no application to it. It was also urged that the order
had been passed by the Government and not by the Inspector
General of Police, who had merely acted in issuing the order
under the direction of the Government. The -case of the
appellants was that under r. 244 (2) of the Service Rules,
the Government had an unqualified discretion to retire any
officer compulsorily if it was in the public interest so to
do, and provisions of Art. 311 of the Constitution would not
apply to such an order of compulsory retirement. The
appellant’s case further was that a high-powered Committee
had been set up under the chairmanship of the Chairman of
the Public Service Commission to consider the cases of all
such officers whose retention in public service after
twenty-five years of service was not in the public’ interest
and that Committee recommended the compulsory retirement of
the respondent. That recommendation was put up before the
Home Minister of the Government of Rajasthan, who accepted
the findings and recommendations of the Committee. The
matter was then put up before the Chief Minister who agreed
with the Home Minister and thereafter the Inspector General
of Police was directed to order the retirement of the
respondent.
When the matter came to be heard in the High Court it was
submitted on behalf of the respondent that under r. 31 (vii)
(a) of the Rules of Business (hereinafter referred to as the
Business Rules), all cases of compulsory retirement where
the appointing authority is the Government have to be
submitted to the Governor and the Chief Minister. As in the
present case the matter was admittedly not submitted to the
Governor, the order of compulsory retirement even if it was
made by the Government was not legal as it was against the
Business Rules. The reply of the appellants to this
contention was that r. 31 (vii) (a) of the Business Rules
only applied to that kind of compulsory retirement which Was
inflidted as a
746
punishment under r. 14 of the Classification Rules and not
to other cases of compulsory retirement. The High Court
however accepted the contention of the respondent that r. 31
(vii) (a) of the Business Rules applied to a case of
compulsory retirement under r. 244 (2) of the Service Rules,
and as the papers had not been submitted to the Governor the
order of compulsory retirement in the present case was bad.
It therefore allowed the writ petition and set aside the
order.
The main question that falls for consideration therefore is
whether a case of compulsory retirement under r. 244 (2) of
the Service Rules has to be submitted to the Governor under
r. 31(vii)(a) of the Business Rules. There are three kinds
of compulsory retirement provided in the various rules
relating to services in Rajasthan. Firstly, compulsory
retirement on proportionate pension is provided as a penalty
under r. 14 of the Classification Rules and this can be
ordered whatever may be the length of service of a civil
servant. Secondly, compulsory retirement is provided by r.
56 of the Service Rules as a matter of course on a civil
servant reaching the age of super annuation, namely, 5.5
years. And thirdly, compulsory retirement may be ordered
under. r. 244(2) of the Service Rules which provides that
the Government retains an absolute right to retire any
government servant after he has completed 25 years of
qualifying service without giving any reason and no’ claim
to special compensation on this account will be entertained.
This right however will not be exercised except when it is
in public interest to dispense with the further service of a
government servant.
The contention on behalf of the respondent in the High Court
was that all kinds of compulsory retirement have to be
referred to Governor under r. 31 (vii) (a) of the Business
Rules and reliance in this connection was placed on the
language of the
747
rule. It is therefore necessary to set out r. 31 (vii) in
full.
“31. The following classes of cases shall be
submitted to the Governor and the Chief
Minister before the issue of orders
(i) * * *
(ii) * * *
(iii) * * *
(iv) * * *
(V) * * *
(vi) * * *
(vii)(a) Proposals for dismissing, removing
or “compulsory retiring of any officer where
the appointing authority is the Government.
(b) Where a review petition is proposed to
be rejected and it is against an order issued
after submission to the Governor under item
(vii)(a) of Rule 31.
(c) In a case where, on review, the Governor
decides to enhance the penalty already imposed
and the enhanced penalty is one of dismissal,
removal or compulsory retirement of an officer
whose appointing authority or appellate
authority is Government.”
There is no doubt that the words “”proposals for……
compulsory retiring of any officer where the appointing
authority is the Government” appearing in item (vii) (a) are
general and are not qualified by the words “as penalty” and
may be open to the interpretation that all the three kinds
of compulsory’ retirement mentioned above must be referred
to the
748
Governor. But reading these words in item (vii)(a) in the
collocation in which they appear it seems to us that when
that item talks of ” compulsory retiring of any officer” it
is referring to compulsory retirement as a penalty. The
words “compulsory retiring of any officer” follow the words
“dismissing” and ” removing”. Now dismissing and removing
are penalties provided by r. 14 of the Classification Rules
and it seems to us therefore that in the collocation in
which the words “compulsory retiring” appear in item
(vii)(a) they must be read as a penalty like dismissing and
removing. Besides reference to cls. (b) and (c) of item
(vii) to which the High Court did not refer at all would
enforce this conclusion. Clause (b) says that ;,where a
review petition is proposed to be rejected and it is against
an order issued after submission to the Governor under item
(vii)(a) of Rule 31″, the matter must be referred to the
Governor, Clause (b) therefore refers to a review petition
relating to orders passed under item (vii)(a) for dismissal,
removal or compulsory retirement. Now there can hardly be
any reason for a review petition in the case of compulsory
retirement on reaching the age of superannuation ‘i.e. 55
years under r. 56. of the Service Rules. We further find
that review petitions are provided under the Classification
Rules in Part VII and r. 34 of the Classification Rules in
particular provides for Governor’s powers to review. It is
obvious that when cl. (b) speaks of a review petition, it
must be referring to the review under Part VII of the
Classification Rules. Clause (b) therefore which is
confined to cases under cl. (a) which speaks of dismissal,
removal or compulsory retirement, shows that all these are
penalties as provided in r. 14 of the Classification Rules.
Further cl. (c) provides that “where, on review the Governor
decides to enhance the penalty already imposed and the
enhanced penalty -is one of dismissal, removal or compulsory
retirement of an officer” the matter must I be referred to
the Governor. This
749
clause makes it perfectly clear that the compulsory
retirement referred to therein is a case of penalty and
there can in our opinion be no doubt when we read this
clause with cl. (a) that compulsory retirement mentioned
therein must also be of the nature of a penalty. Taking all
the three clauses of item (vii) as a whole, it appears that
item (vii) provides for a complete. scheme with reference to
three kinds of penalties, namely, dismissal, removal and
compulsory retirement and makes it incumbent that cases of
this kind must be referred to the Governor. We cannot
therefore agree with the High Court that compulsory
retirement provided in item (vii) (a) includes all the three
kinds of compulsory retirement. It must therefore be held
that the contention of the appellants that compulsory
retirement provided in item (vii) (a) is compulsory
retirement as a penalty and not compulsory retirement of the
other two kinds, namely, (1) compulsory retirement on
attaining the age of superannuation and (2) compulsory
retirement under r. 244 (2), neither of which is a
punishment, is correct. In particular Note 2 of r. 244 (2)
makes it perfectly clear that action thereunder is not a
penalty. This is further made clear by Explanation (vi) to
r. 14 of the Classification Rules, which provides that ” If
compulsory retirement of a Government servant in accordance
with the provisions relating to his superannuation or
retirement” is not a penalty. Rule 56 of the Service Rules
is a rule relating to superannuation and r. 244 (2) of the
Service Rules is a rule relating to retirement and both of
them do not amount to penalties in view of this Explanation.
We are therefore of opinion that r. 31 (vii) (a) when it
speaks of compulsory retiring of an officer speaks of
compulsory retirement as. a penalty and not compulsory
retirement on reaching the age of superannuation or under r.
244 (2). It is therefore not necessary to submit the papers
with respect to compulsory retirement of the respondent
under
750
244 (2) to the Governor. This was the only ’round on which
the High Court allowed the writ petition and therefore the
appeal must succeed.
It is however urged on behalf of the respondent that r. 244
(2) of the Service Rules contemplates an order of compulsory
retirement by Government and the order in the present case
was not passed by the Government but by the Inspector
General of Police. It is further urged that if it is an
order of the Government it should be in the form required by
Art. 166 of the Constitution, and as it is not in that form
there is in law no order of the Government ordering the
compulsory retirement of the respondent. The order is in
these terms
“The following Inspectors of Police are
compulsorily retired from the Government
service under Rule 244 (2) of P.S.R.
…………………………………….”
(2) Shri Sripal Jain s/o Shri
Sohanlal, C.I. Sanganer, Distt. Jaipur.
……………………………………..”
There is no doubt that this order is not in the form
required under Art. 166 of the Constitution. But it is well
settled that any defect of form in the order would not
necessarily make it illegal and the only consequence of the
order not being in proper form as required by Art. 166 is
that the burden is thrown on ‘the Government to show that
the ‘order was in fact passed by it. It has been stated on
behalf of the appellants that the order in question was
communicated by the Inspector General of Police on the
direction of the Government. It will be noticed that the
order is in the passive voice. It does not say in the
active voice that the Inspector General of Police
751
ordered the retirement of the officers mentioned therein,
though the impression that a person will get from it
certainly is that the order of retirement was being passed
by the Inspector General of Police. Therefore, the burden
was thrown because of this defect in the form of the order
on the appellants to show that in fact the order was passed
by the Government. ‘I hat has in our opinion been shown by
the production of papers from the relevent file by the
appellants. That shows that the recommendation of the high-
powered Committee was approved by the Home Minister and the
Chief Minister and the order of compulsory retirement was
thus passed by the Government of Rajasthan. In this
connection we may refer to r. 21 of the Business Rules. It
says that cases shall ordinarily be disposed of by or under
the authority of the Minister-in-charge except as otherwise
provided by any other rule. The only exception is r.31
(vii) (a) and that we have held does not apply to a case of
compulsory retirement under r. 244 (2).In these
circumstances the order was of government though it was
communicated by the Inspector General of Police and its form
was defective. In the circumstances the order of retirement
having been passed by a proper authority cannot be said to
be invalid in law.
It is further urged that under the Rajasthan General Clauses
Act, No. VIII of 1955, “Government” or “‘the Government”
includes both the Central Government and any State
Government under s. 32 (33) and “‘the State Government”
means under s. 32 (75) as from November 1, 1956, the
Governor,and therefore when r. 244 (2) equires an order by
the Government, there should be an order of the Governor.
Definitions under s. 32 are however to be read subject to
anything repugnant in the subject or context or to any
contrary intention, and that makes us back to the Business
Rules framed under Art. 166 of the Constitution, where the
power to deal with a
752
case of this kind is given to the Minister-in-charge under
r. 21. ‘the definitions therefore of “Government” and ‘,the
State Government in the Rajasthan General Clauses Act are of
no help to the respondent once it is held that r. 31 (vii)
(a) of the Business Rules when it speaks of “compulsory
retiring of any officer” refers only to compulsory
retirement as a penalty under r. 14 of the Classification
Rules and not to the two other kinds of retirement (namely,
superannuation under r. 56 or retirement under r. 244 (2) of
the service Rules).
The appeal is therefore allowed and the order of the High
Court set aside. In the circumstances we pass no order as
to costs.
Appeal allowed.