PETITIONER:
THE STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
MADAN MOHAN NAGAR
DATE OF JUDGMENT:
05/01/1967
BENCH:
SIKRI, S.M.
BENCH:
SIKRI, S.M.
RAO, K. SUBBA (CJ)
SHAH, J.C.
RAMASWAMI, V.
VAIDYIALINGAM, C.A.
CITATION:
1967 AIR 1260 1967 SCR (2) 333
CITATOR INFO :
R 1967 SC1264 (6)
R 1971 SC2151 (13,18)
ACT:
Civil Service--Officer retired stating "outlived his
service"--Whether casts a stigma, and amounts to punishment.
HEADNOTE:
The respondent was compulsorily retired from. service
under article 465A, note (1) of the U.P. Civil Service
Regulation, after he had completed more than 25 years of
qualifying service. The order of retirement stated that the
respondent "head outlived his utility". The respondent
challenged the order in the High Court. The High Court
quashed the order. In appeal to this Court the appellant
contended that the reason that the respondent had outlived
his utility did not show that the order of compulsory
retirement amounted to an order of dismissal or removal
because in every case of compulsory retirement it was
implied that the person had outlived his usefulness.
HELD : There was no force in the contention.
The test to be applied is : does the order of compulsory
retirement cast an aspersion or attach a stigma to the
officer when it purports to retire him compulsorily. In the
present case the order did cast a stigma on the respondent.
[336 G]
Jagdish Mitter v. Union of India A.I.R. [1964] S.C. 449.
followed.
Two tests are derived from Shayam Lal's case : the first is
whether the action is by Way of punishment and to find that
out it is necessary that a charge or imputation against the
officer is made the condition of the exercise of the power;
the second is whether by compulsory retirement the officer
is losing the benefit he has already earned as he does by
dismissal or removal. if the first test is applied in this
case it is quite clear that the charge or imputation that
the respondent had outlived his utility" was made the
condition of the exercise of the power. [338 E]
Shyam Lal v. The State of Uttar Pradesh [1965] 1 S.C.R. 26
followed.
Abdul Ahad v. The Inspector General of Police, U.P. A.I.R.
[1965] AU. 142. overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 997 of 1965.
Appeal by special leave from the judgment and order dated
July 25, 1963 of the Allahabad High Court in Special Appeal
No. 431 of 1962.
S. V. Gupte, Solicitor-General, C. B. Agarwala and O. P.
Rana, for the appellant.
J. P. Goyal and B. P. Jha, for the respondent.
334
The Judgment of the Court was delivered by
Sikri, J. The respondent, Shri Madan Mohan Nagar, filed a
Writ Petition in the High Court of Judicature at Allahabad
for quashing the order of compulsory retirement dated July
28, 1960, passed against him. The order of compulsory
retirement was in the following terms:
“I am directed to say that the Governor has
been pleased to order in the public interest
under Article 465A and Note(1) thereof of the
Civil Service Regulations, the compulsory
retirement with effect from September 1, 1960
of Sri Madan Mohan Nagar, Director State
Museum Lucknow who completed 52 years of age
on July 1, 1960, and 28 years and .3 months of
qualifying service on 31-5-1960 as he has
outlived his utility.”
The learned Single Judge who heard the petition quashed the
order on the ground that “Rule 465 of the Civil Service
Regulations as amended by the U.P. Government while
providing a criterion for the guidance of Government when
inflicting compulsory retirement on a government servant
nevertheless violates the guarantee of equality of
opportunity in matters relating to employment under Article
16(1)” of the Constitution. He further held that the order
inflicting compulsory retirement on the petitioner was
invalid because it was passed in violation of the principles
of natural justice.
The State appealed and the Division Bench on appeal upheld
the order passed by the learned Single Judge on the ground
that the order of compulsory retirement was passed in
violation of the provisions of art. 311 of the Constitution
and was, therefore, ultra vires. The State having obtained
special leave, the appeal is now before us.
Before we deal with the arguments of the learned counsel for
the appellant, we may give a few facts and set out Article
465(A) and Note(1) thereof of the Civil Service Regulation,
as amended by the Government of Uttar Pradesh. The facts,
in brief, are that the respondent was first appointed in
1931 on one year’s probation to the post of Custodian,
Sarnath Museum, Banaras, under the Archaeological Department
of the Government of India. In 1939, he was posted to
Mathura Museum as Curator, and he was appointed
substantively to this post from January 5, 1941. Later, he
was appointed on the recommendation of the Provincial Public
Service commission as Curator of the State Museum, Lucknow,
on a scale of pay Rs. 250/- to Rs. 850/-. The post of
Curator was upgraded to the post of Director, State Museum,
Lucknow, in the U.P. Educational Service, Senior Scale, and
the respondent was appointed to it. Thereafter the
respondent continued in service as Director of State
335
Museum, Lucknow, until he was compulsorily retired by the
order of the Government, dated July 28, 1960, which has
already been set out above. It is common ground that no
enquiry as contemplated by Art. 311(2) was held.
The relevant part of Article 465A of the Civil Service
Regulation is in the following terms:
“Government retains the right to retire any
Government servant after he has completed 25
years qualifying service without giving any
reasons, and no claim to special compensation
on this account shall be entertained.
This right shall only be exercised by
Government in the Administrative Department
when it is in the public interest to dispense
with the services of Government servant who
has outlived his usefulness.”
This learned Solicitor General, who appears on behalf of the
appellant has urged that the fact that the impugned order of
compulsory retirement states the reason for compulsory
retirement, namely, that the respondent had outlived his
utility, does not lead to the conclusion that the order
amounts to dismissal or removal because in every case of
compulsory retirement it is implied that the person who is
compulsorily retired had outlived his usefulness. He refers
to Shyam Lal v. The State of Uttar Pradesh(1) and says that
in that case it was implied that Shyam Lal was not fit to be
retained in service. We are unable to read Shyam Lal’s
case(1) in that manner because the Court expressly said at
p. 41, as follows:
“It is true that this power of compulsory
retirement may be used when the authority
exercising this power cannot substantiate the
misconduct which may be the real cause for
taking the action but what is important to
note is that the directions in the last
sentence in Note 1 to article 465-A make it
abundantly clear that an imputation or charge
is not in terms made a condition for the
exercise of the power. In other words, a
compulsory retirement has no stigma or
implication of misbehaviour or incapacity.”
In the present case there is not only no question of
implication but a clear statement appears on the face of the
order that the respondent had outlived his utility; in other
words, it is stated that he was incapacitated from holding
the post of Director, State Museum, Lucknow. The order
clearly attaches a stigma to him and any person who reads
the order would immediately consider that there is something
wrong with him or his capacity to work.
In our opinion this case is covered by the principle applied
in Jagdish Mitter v. Union of India (2). It is true that
that was a case of a temporary servant, but that does not
matter. The order
(1) [1955] 1 S. C. R.26.
(2) A. 1. R. 1964 S.C.449
336
in that case reads as follows:
“Shri Jagdish Mitter, a temporary 2nd
Division Clerk of this office having been
found undesirable to be retained in Government
service is hereby served with a month’s notice
of discharge with effect from November 1,
1949.”
Gajenderagadkar, J., as he then was, speaking for the Court,
said:
“No doubt the order purports to be one of
discharge and as such can be referred to the
power of the authority to terminate the
temporary appointment with one month’s notice.
But it seems to us that when the order refers
to the fact that the appellant was found
undesirable to be retained in government
service, it expressly casts a stigma on the
appellant and in that sense must be held to be
an order of dismissal and not a mere order of
discharge.”
Later, he observed:
It seems that anyone who reads the order in a
reasonable way, would naturally conclude that
the appellant was found to be undesirable, and
that must necessarily import an element of
punishment which is the basis of the order and
is its integral part. When an authority wants
to terminate the services of a temporary
servant, it can pass a simple order of
discharge without casting any aspersion against
the temporary servant or attaching any stigma
to his character. As soon as it is shown that
the order purports to cast an aspersion on the
temporary servant, it would be idle to suggest
that the order is a simple order of discharge.
The test in such cases must be: does the order
cast aspersion or attach stigma to the officer
when it purports to discharge him? If the
answer to this question is in the affirmative,
then notwithstanding the form of the order,
the termination of service must be held, in
substance, to amount to dismissal.”
It seems to us that the same test must apply in the case of
compulsory retirement, namely: does the order of compulsory
retirement cast an aspersion or attach a stigma to the
officer when it purports to retire him compulsorily? In the
present case there is no doubt that the order does cast a
stigma on the respondent.
Mr. Gupte relies on T. G. Shivacharana Singh v. State of
Mysore(1). But this case does not assist him because it
does not appear that the order in that case contained any
stigma, and under Rule 285 of the Mysore Civil Service
Rules, 1958, retirement
(1) A.I.R. 1965 S. C. 280.
337
could be effected if it was considered necessary in the
public interest. There was no question of requiring that
there should be a finding that the government officer had
outlived his utility.
In Ram Prashad v. State of punjab(1) no such question
appears to have been argued. In para 32 of the judgment
Satyanarayana Raju, J., while considering the validity of
Rule 27 of the Staff Rules, reproduced an extract from the
judgment of this Court in Moti Ram Deka v. N. E. Frontier
Railway(2). We will presently consider the effect of the
decision in Deka’s case.
In Deka’s case(2) Moti Ram Deka, who was a peon employed by
the North East Frontier Railway, challenged the order of
termination of his services under Rule 148 of the Indian
Railway Establishment Code on the ground that the said Rule
was invalid the validity of Rule 149 of the Railway
Establishment Code. The question posed for decision by
Gajendragadkar, J,at page 699 was: if the service of a
permanent civil servant is terminated otherwise than by
operation of the rule of superannuation, or the rule of
compulsory retirement, does such termination amount to
removal under Art. 311(2) or not? The Court was thus not
concerned with the question of compulsory retairment under a
rule similar to rule 465A, note (1), of the Uttar Pradesh
Civil Service regulation, but it reviewed some cases dealing
with compulsory retairment. Subba Rao J. as he then was,who
delivered a concurring judgment also reviewed the cases,but
he preferred to follow the principle laid, down in Parshotam
Lal Dingra v. Union of India(3), in respect of permanent
government servants in preference to that accepted in shyam
Lal’s case(4) and the subsequent decisions following it.
But it is not necessary for us to resolve the conflict, if
any, which exists between Dhingra’s case(3) and Shyam Lal’s
case(4) because here we have an order which on the face of
its casts a stigma on the respondent. It is true, as
pointed out by Subha Rao J., that in Doshi’s case State of
Bombay v., Saubhagchand, M. Doshi(5) “Rule 165-A of the
Bombay Civil Services Rules laid down that the right of,
compulsory retirement will not be exercised except when it
is in the public interest to dispense with the further
services of a Government servant such as on account of
inefficiency or dishonesty, but in Doshi’s case it does not
appear that the order contained any aspersion that Doshi was
inefficient or suffered from some other defect. What was
challenged in that case was the validity of Rule 165-A of
the, Bombay Civil Services Rules, and it was held that it,
did not violate art. 311(2) of the Constitution.
(1) A.I.R. 1966 S.C. 1607 [1966] 3 S. C. R. 486(2)
[1964] 5 S.C.R. 683.
(3) [1958] S.C.R. 828 (4) [1955] 1 S.C.R. 26
(5) [1958] S.C.R. 571.
L/M1Sup. CI/67-8
There were some other appellants before the Court who
challenged
338
Similarly, in Balakotaih v. The Union of India(1) in Rule 3
,of the Railway Services (Safeguarding of National Security)
Rules, 1949, dealing with compulsory retirement, the proviso
provided that “a member of the Railway Service shall not be
retired or have his service so terminated unless the
competent authority is satisfied that his retention in
public serice is prejudical to national security, and
unless, where the competent authority is the Head of a
Department, the prior approval of the Governor-General has
been obtained.” In this case also it does not appear that
the order terminating the services contained any stigma on
the public servant concerned.
In Dalip Singh v. State of Punjab(2) the order read as
follows:
“His Highness the Rajpramukh is pleased to
retire from service Sardar’ Dalip Singh,
Inspector General of Police, Pepsu (on leave)
for administrative reasons with effect from
the 18th August 1950.”
It was held that the order did not amount to dismissal or
removal from service within the meaning of art. 311(2) of
the Constitution. The Court derived two tests from Shyam
Lal’s case(3) and formulated them as follows: the first is
whether the action is by way of punishment and to find that
out the Court said that it was necessary that a charge or
imputation against the officer is made the condition of the
exercise of the power; the second is whether by compulsory
retirement the officer is losing the benefit he has already
,earned as he does by dismissal or removal. If the first
test is applied in this case it is quite clear that the
charge or imputation “that the respondent had outlived his
utility” was made the condition of the ,exercise of the
power.
The, learned Solicitor General also brought to our notice
the decision of the Full Bench of the Allahabad High Court
in Abdul Ahad v. The Inspector General of Police, U.P.(4)
The decision ,certainly helps him, and as a matter of fact,
the Full Bench overruled the judgment of the Division Bench
under appeal. But, with respect, we are unable to agree
with the conclusion that even if the order of compulsory
retirement recites the fact that the public servant had
outlived his utility, it would not amount to a punitive
order. The Full Bench was of the view that “compulsory
retirement will always be on the ground that he can no
longer render useful service. The position certainly does
not become worse because
(1) [1958] S.C.R. 1052 (2) [1961] 1 S.C.R 88.
(3) [1955]1 S.C.R. 26. (4) A.I.R. 1965 All. 142.
339
what is implied is expressed.” We are unable to agree that
the position does not become worse because a stigma is
attached expressly.
We may say that the question whether Article 465-A, note
(1), violates art. 31 1 of the Constitution was not argued
before us and we say nothing about it.
In the result the appeal fails and is dismissed with costs.
Y.P.
Appeal dismissed.
340