{"id":132726,"date":"1954-01-22T00:00:00","date_gmt":"1954-01-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jai-ram-vs-union-of-india-on-22-january-1954"},"modified":"2018-01-14T09:51:36","modified_gmt":"2018-01-14T04:21:36","slug":"jai-ram-vs-union-of-india-on-22-january-1954","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jai-ram-vs-union-of-india-on-22-january-1954","title":{"rendered":"Jai Ram vs Union Of India on 22 January, 1954"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Jai Ram vs Union Of India on 22 January, 1954<\/div>\n<div class=\"doc_bench\">Bench: M.C. Mahajan (Cj), B.K. Mukherjea, S.R. Das, V. Bose, Ghulam Hasan<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  11 of 1953\n\nPETITIONER:\nJAI RAM\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT: 22\/01\/1954\n\nBENCH:\nM.C. MAHAJAN (CJ) &amp; B.K. MUKHERJEA &amp; S.R. DAS &amp; V. BOSE &amp; GHULAM HASAN\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>AIR 1954 SC 584<\/p>\n<p>The Judgment was delivered by : B. K. MUKHERJEA<\/p>\n<p>B. K. MUKHERJEA, J. : This appeal, which has come before us on special<br \/>\nleave obtained by the plaintiff appellant, is directed against a judgment<br \/>\nof a Letter Patent Bench of the High Court of Punjab dated the 10th July<br \/>\n1952, reversing, on appeal, a decision of a single Judge of that Court<br \/>\npassed in Second Appeal No. 884 of 1950.\n<\/p>\n<p>2. The suit, out of which the appeal arises, was commenced by the<br \/>\nplaintiff, in the Court of the Subordinate Judge at Ambala for a<br \/>\ndeclaration that the order passed by the Government of India, which is the<br \/>\ndefendant in the suit, retiring the plaintiff from his service was<br \/>\nwrongful, void and inoperative and that the plaintiff should be deemed to<br \/>\ncontinue still in the service of the defendant.\n<\/p>\n<p>The material facts, which are for the most part uncontroverted, may be<br \/>\nshortly narrated as follows :\n<\/p>\n<p>The plaintiff entered the service of the Government of India as a clerk in<br \/>\nthe Central Research Institute at Kasauli on the 7th of May, 1912. Under<br \/>\nRule 56 (b) (i) of Chapter IX of the Fundamental Rules, which regulate the<br \/>\ncivil services, a ministerial servant may be required to retire at the age<br \/>\nof 55 but should ordinarily be retained in service if he continues<br \/>\nefficient, till the age of 60 years.\n<\/p>\n<p>The plaintiff was to complete 55 years on the 26th November 1946. It<br \/>\nappears, however, that in 1945 he himself was anxious to retire from<br \/>\nservice &amp; on the 7th of May 1945 wrote a letter to the Director of the<br \/>\nInstitute to the following effect :\n<\/p>\n<blockquote><p>    &#8220;Sir,<\/p>\n<p>    Having completed 33 years&#8217; service on the 6th instant I beg permission<br \/>\n    to retire and shall feel grateful if allowed to have the leave<br \/>\n    admissible.&#8221;\n<\/p><\/blockquote>\n<p>This permission was not granted by the Director of the Institute on the<br \/>\nground that the plaintiff could not be spared at that time. The plaintiff<br \/>\nrenewed his prayer by another letter dated the 30th May 1945. In that<br \/>\nletter it was stated that owing to the untimely death of his brother, his<br \/>\nfamily circumstances did not permit him to serve the Institute any longer.<br \/>\nHe, therefore, prayed for leave preparatory to retirement &#8211; four months on<br \/>\naverage pay and the rest on half average pay &#8211; from 1st of June 1945, or<br \/>\nthe date of his availing the leave, to the date of superannuation which was<br \/>\nspecifically stated to be the 26th of November 1946.\n<\/p>\n<p>The letter plainly indicates that the impression in the mind of the<br \/>\nplaintiff was that he was due to retire on the 26th of November 1946 and<br \/>\nall that he wanted was that he might be granted leave preparatory to<br \/>\nretirement from 1st of June 1945 or as early as possible after that. This<br \/>\ntime also the plaintiff&#8217;s prayer was refused and the Head of the Institute<br \/>\nendorsed a note on his application that he could not be speared.\n<\/p>\n<p>A third application was presented by the plaintiff on the 18th of September<br \/>\n1945 praying for reconsideration of his petition and urging one additional<br \/>\nground in support of the same, namely, that the war was already at an end.<br \/>\nThis application too shared the fate of its predecessors and the Director<br \/>\nof the Institute did not agree to his retirement.\n<\/p>\n<p>After this the plaintiff kept silent for nearly 8 months and on the 28th<br \/>\nMay 1946 he made his fourth application which, it appears, met with a<br \/>\nfavourable response. In this application also it was stated that the<br \/>\nplaintiff would attain the age of 55 years on the 27th of November 1946 and<br \/>\nhe prayed, therefore, that the full amount of preparatory leave, as was<br \/>\nadmissible to him under the rules, might be granted to him. The Director of<br \/>\nthe Institute sanctioned the leave and the question as to how much leave<br \/>\nand of what kind would be available to him was left to the decision of the<br \/>\nAccountant General, Central Revenues.\n<\/p>\n<p>On the 11th of July 1946 the Accountant General communicated his order to<br \/>\nthe Director of the Institute and his decision was that the plaintiff was<br \/>\nentitled to leave preparatory to retirement on average pay for six months<br \/>\nfrom 1st June 1946 to 30th November 1946 and on half average pay for five<br \/>\nmonths and twenty-five days thereafter, the period ending on 25th of May<br \/>\n1947.\n<\/p>\n<p>Just 10 days before this period of leave was due to expire, the plaintiff<br \/>\non the 16th of May 1947 sent an application to the Director of the<br \/>\nInstitute stating that he had not retired and asked for permission to<br \/>\nresume his duties immediately. The Director informed him in reply that be<br \/>\ncould not be permitted to resume his duties, as he had already retired,<br \/>\nhaving voluntarily proceeded on leave preparatory to retirement.\n<\/p>\n<p>The plaintiff continued to make representations but ultimately the matter<br \/>\nwas concluded so far as the Government of India was concerned by a letter<br \/>\ndated the 28th of April 1948 in which it was stated that the plaintiff<br \/>\nhaving availed himself of the full leave preparatory to retirement due to<br \/>\nhim and having actually retired from service of his own volition, the<br \/>\nquestion of his having any right to return to duty and to continue service<br \/>\ntill the age of 60 years did not at all arise. It was in consequence of<br \/>\nthis letter that the present suit was filed by the plaintiff on the 5th of<br \/>\nJuly 1949.\n<\/p>\n<p>3. The legality of the Government communication mentioned above has been<br \/>\nattacked in the plaint substantially on a two-fold ground. The first ground<br \/>\nalleged is, that under Rule. 56(b) (I), Chapter IX of the Fundamental<br \/>\nRules, the age of retirement is not 55 but 60 years. The rule no doubt<br \/>\ngives the Government a right to retire a ministerial servant at the age of<br \/>\n55, but that can be done only on the ground of his inefficiency,<br \/>\nConsequently, before a servant coming within that category is required to<br \/>\nretire at 55, it is incumbent upon the Government to give him an<br \/>\nopportunity to say what he has to say against this premature retirement in<br \/>\naccordance with the provision of Section 240 (3) of the Government of India<br \/>\nAct, 1935 and unless this is done, the order terminating his service cannot<br \/>\nbe held to be valid.\n<\/p>\n<p>The other contention is, that although the plaintiff on his own application<br \/>\nobtained leave preparatory to retirement, yet there was nothing in the<br \/>\nrules which prevented him from changing his mind at any subsequent time and<br \/>\nexpressing a desire to continue in service provided he indicated this<br \/>\nintention before the period of his leave expired.\n<\/p>\n<p>4. The trial Court negatived both these contentions and dismissed the<br \/>\nplaintiff&#8217;s suit. In the opinion of the Subordinate Judge it was<br \/>\ndiscretionary with the Government under Fundamental Rule 56 (b) (I) either<br \/>\nto require a ministerial servant to retire at 55 or to allow him to<br \/>\ncontinue in service till 60 and there was no breach of statutory obligation<br \/>\nin this case by reason of the fact that the plaintiff was made to retire<br \/>\nbefore the age of 60.\n<\/p>\n<p>On the other point the Subordinate Judge held that there was no statutory<br \/>\nrule under which a Government servant could claim to resume his previous<br \/>\nduties as a matter of right by merely choosing to return before the expiry<br \/>\nof the period of his leave. This could be done only with the permission of<br \/>\nthe superior authority which was absent in the present case.\n<\/p>\n<p>5. This decision of the trial Court was affirmed on appeal by the District<br \/>\nJudge at Ambala. The plaintiff thereupon took a second appeal to the High<br \/>\nCourt of Punjab and the appeal was heard by Falshaw, J. sitting singly. The<br \/>\nlearned Judge allowed the appeal, upholding both the contentions raised by<br \/>\nthe plaintiff and the decreed the suit.\n<\/p>\n<p>Against this decision there was a further appeal to a Bench of the same<br \/>\nHigh Court under Clause 10 of the Letters Patent and the Letters Patent<br \/>\nBench reversed the judgment of the single Judge and dismissed the<br \/>\nplaintiff&#8217;s suit. The plaintiff has now come up to this Court and Mr.<br \/>\nUmrigar, who appeared in support of the appeal, reiterated before us both<br \/>\nthe contentions that were pressed on behalf of his client in the Courts<br \/>\nbelow.\n<\/p>\n<p>6. As regards the first point, Mr. Umrigar lays stress mainly upon Rule 56\n<\/p>\n<p>(b) (i) of Chapter IX of the Fundamental rules which is worded as follows :\n<\/p>\n<blockquote><p>    &#8220;A ministerial servant who is not governed by sub-clause (ii) may be<br \/>\n    required to retire at the age of 55 years, but should ordinarily be<br \/>\n    retained in service, if he continues efficient, up to the age of 60<br \/>\n    years. He must not be retained after that age except in very special<br \/>\n    circumstances, which must be recorded in writing, and with the sanction<br \/>\n    of the local Government.&#8221;\n<\/p><\/blockquote>\n<p>We think that it is a possible view to take upon the language of this rule<br \/>\nthat a ministerial servant coming within its purview has normally the right<br \/>\nto be retained in service till he reaches the age of 60. This is<br \/>\nconditional undoubtedly upon the continuing to be efficient. We may assume,<br \/>\ntherefore, for purposes of this case that the plaintiff had the right to<br \/>\ncontinue in service till 60 and should not be retired before that except on<br \/>\nthe ground of inefficiency. But that by itself affords no solution of the<br \/>\nquestion that requires consideration in the present case.\n<\/p>\n<p>Here the plaintiff was not compelled or required to retire by anybody. If<br \/>\nthe Government required him to retire in terms of the Fundamental Rule 56\n<\/p>\n<p>(b) (i), it might be argued that he should have been an opportunity to show<br \/>\nthat he was still efficient and able to discharge his duties and<br \/>\nconsequently could not be retired at that age. But here the situation was<br \/>\nentirely of the plaintiff&#8217;s own seeking and his own creation.\n<\/p>\n<p>Ever since May 1945 when he had not even completed his 54th year, the<br \/>\nplaintiff began making importunate request to his official superior to<br \/>\nallow him to retire from service. It will be noticed that in his first<br \/>\napplication he mentioned the fact of his having completed 33 years of<br \/>\nservice as a ground for obtaining the permission prayed for. There is, in<br \/>\nfact, a rule in the Civil Service Regulations under which a retiring<br \/>\npension is granted to an officer who is permitted to retire after<br \/>\ncompleting service for 30 years. It is not clear whether this rule which<br \/>\nrelates to superior service was at all applicable to the plaintiff. But it<br \/>\nis a fact that in his applications for leave preparatory to retirement he<br \/>\nlaid great stress on two facts, one of which was the length of his service<br \/>\nand the other that he was to reach the age of superannuation in<br \/>\nNovember1946.\n<\/p>\n<p>Ultimately when his application was granted the leave, which was allowed to<br \/>\nhim, was on the basis of his retiring from service on the 27th November,<br \/>\n1946. He was given post-retirement leave for a period of about six months<br \/>\nfrom that date in terms of Rule 56, Chapter X of the Fundamental Rules on<br \/>\nthe ground that he had previously applied for leave which was at his credit<br \/>\nbut it was refused on the ground of requirement of public service. The<br \/>\nplaintiff could not have got this period of leave except on the footing<br \/>\nthat his service ended on the 27th November, 1946. Rule 56 (b) (i), which<br \/>\nspeaks of a ministerial servant being &#8216;ordinarily&#8217; retained in service till<br \/>\n60, does not, in our opinion, contemplate a case of this description and<br \/>\ndoes not preclude a ministerial servant from waiving, by express agreement<br \/>\na right to which he might otherwise have been entitled under this rule.\n<\/p>\n<p>When a servant has attained the age of 55 years and for some reason or<br \/>\nother himself confesses his inability to continue in service any longer and<br \/>\nseeks permission for retirement, we consider it to be a useless formality<br \/>\nto ask him to show cause as to why his service should not be terminated.<br \/>\nSection 240 (3) of the Government of India Act, 1935 could not have any<br \/>\npossible application in such circumstances. The first contention of the<br \/>\nappellant must, therefore, in our opinion fall.\n<\/p>\n<p>7. In view of our decision on this point, the other point practically loses<br \/>\nits force. It may be conceded that it is open to a servant who has<br \/>\nexpressed a desire to retire from service and applied to his superior<br \/>\nofficer to give him the requisite permission, to change his mind<br \/>\nsubsequently and ask for cancellation of the permission thus obtained; but<br \/>\nhe can be allowed to do so long as he continues in service and not after it<br \/>\nhas terminated.\n<\/p>\n<p>As we have said above, the plaintiff&#8217;s service ceased on the 27th of<br \/>\nNovember 1946; the leave, which was allowed to him subsequent to that date,<br \/>\nwas post-retirement leave which was granted under the special circumstances<br \/>\nmentioned in F. R. 86. He could not be held to continue in service after<br \/>\nthe 26th of November 1946, and consequently it was no longer competent to<br \/>\nhim to apply for joining his duties on the 16th of May 1947, even though<br \/>\nthe post-retirement leave had not yet run out. In our opinion, the decision<br \/>\nof the Letters Patent Bench of the High Court is right and this appeal<br \/>\nshould stand dismissed. In view of the fact that the plaintiff is a pauper<br \/>\nand has not been permitted to draw his pension as yet, we make no order as<br \/>\nto costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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) &amp; B.K. MUKHERJEA &amp; S.R. DAS &amp; [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-132726","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jai Ram vs Union Of India on 22 January, 1954 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jai-ram-vs-union-of-india-on-22-january-1954\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jai Ram vs Union Of India on 22 January, 1954 - Free Judgements of Supreme Court &amp; 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