{"id":18901,"date":"1967-01-05T00:00:00","date_gmt":"1967-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-uttar-pradesh-vs-madan-mohan-nagar-on-5-january-1967"},"modified":"2016-02-12T01:04:50","modified_gmt":"2016-02-11T19:34:50","slug":"the-state-of-uttar-pradesh-vs-madan-mohan-nagar-on-5-january-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-uttar-pradesh-vs-madan-mohan-nagar-on-5-january-1967","title":{"rendered":"The State Of Uttar Pradesh vs Madan Mohan Nagar on 5 January, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Uttar Pradesh vs Madan Mohan Nagar on 5 January, 1967<\/div>\n
Equivalent citations: 1967 AIR 1260, \t\t 1967 SCR (2) 333<\/div>\n
Author: S Sikri<\/div>\n
Bench: Rao, K. Subba (Cj), Shah, J.C., Sikri, S.M., Ramaswami, V., Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nTHE STATE OF UTTAR PRADESH\n\n\tVs.\n\nRESPONDENT:\nMADAN MOHAN NAGAR\n\nDATE OF JUDGMENT:\n05\/01\/1967\n\nBENCH:\nSIKRI, S.M.\nBENCH:\nSIKRI, S.M.\nRAO, K. SUBBA (CJ)\nSHAH, J.C.\nRAMASWAMI, V.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1967 AIR 1260\t\t  1967 SCR  (2) 333\n CITATOR INFO :\n R\t    1967 SC1264\t (6)\n R\t    1971 SC2151\t (13,18)\n\n\nACT:\n     Civil  Service--Officer retired stating  \"outlived\t his\nservice\"--Whether casts a stigma, and amounts to punishment.\n\n\n\nHEADNOTE:\n     The  respondent was compulsorily retired from.  service\nunder  article\t465A,  note (1) of the\tU.P.  Civil  Service\nRegulation,  after  he had completed more than 25  years  of\nqualifying service.  The order of retirement stated that the\nrespondent  \"head  outlived his\t utility\".   The  respondent\nchallenged  the\t order in the High Court.   The\t High  Court\nquashed\t the order.  In appeal to this Court  the  appellant\ncontended  that the reason that the respondent had  outlived\nhis  utility  did  not show that  the  order  of  compulsory\nretirement amounted to an order of dismissal or removal\nbecause\t in  every  case of  compulsory\t retirement  it\t was\nimplied that the person had outlived his usefulness.\nHELD : There was no force in the contention.\nThe  test  to be applied is : does the order  of  compulsory\nretirement  cast  an  aspersion or attach a  stigma  to\t the\nofficer when it purports to retire him compulsorily.  In the\npresent case the order did cast a stigma on the\t respondent.\n[336 G]\nJagdish\t Mitter\t v. Union of India A.I.R.<\/a> [1964]  S.C.\t449.\nfollowed.\nTwo tests are derived from Shayam Lal's case : the first  is\nwhether the action is by Way of punishment and to find\tthat\nout it is necessary that a charge or imputation against\t the\nofficer is made the condition of the exercise of the  power;\nthe  second is whether by compulsory retirement the  officer\nis  losing the benefit he has already earned as he  does  by\ndismissal  or removal. if the first test is applied in\tthis\ncase  it is quite clear that the charge or  imputation\tthat\nthe  respondent\t had  outlived his  utility\"  was  made\t the\ncondition of the exercise of the power. [338 E]\nShyam  Lal v. The State of Uttar Pradesh [1965] 1 S.C.R.  26\nfollowed.\nAbdul  Ahad v. The Inspector General of Police, U.P.  A.I.R.\n[1965] AU. 142. overruled.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 997 of 1965.
\nAppeal\tby special leave from the judgment and\torder  dated
\nJuly 25, 1963 of the Allahabad High Court in Special  Appeal
\nNo. 431 of 1962.\n<\/p>\n
S.   V.\t Gupte, Solicitor-General, C. B. Agarwala and O.  P.
\nRana, for the appellant.\n<\/p>\n
J. P. Goyal and B. P. Jha, for the respondent.\n<\/p>\n
334<\/span><\/p>\n
The Judgment of the Court was delivered by
\nSikri,\tJ. The respondent, Shri Madan Mohan Nagar,  filed  a
\nWrit  Petition in the High Court of Judicature at  Allahabad
\nfor  quashing the order of compulsory retirement dated\tJuly
\n28,  1960,  passed  against him.  The  order  of  compulsory
\nretirement was in the following terms:\n<\/p>\n
\t       “I  am directed to say that the Governor\t has
\n\t      been  pleased to order in the public  interest
\n\t      under Article 465A and Note(1) thereof of\t the
\n\t      Civil  Service  Regulations,  the\t  compulsory
\n\t      retirement with effect from September 1,\t1960
\n\t      of  Sri  Madan  Mohan  Nagar,  Director  State
\n\t      Museum  Lucknow who completed 52 years of\t age
\n\t      on July 1, 1960, and 28 years and .3 months of
\n\t      qualifying  service  on 31-5-1960\t as  he\t has
\n\t      outlived his utility.”\n<\/p><\/blockquote>\n
The learned Single Judge who heard the petition quashed\t the
\norder  on  the ground that “Rule 465 of\t the  Civil  Service
\nRegulations   as  amended  by  the  U.P.  Government   while
\nproviding  a criterion for the guidance of  Government\twhen
\ninflicting  compulsory\tretirement on a\t government  servant
\nnevertheless   violates\t  the  guarantee  of   equality\t  of
\nopportunity in matters relating to employment under  Article
\n16(1)” of the Constitution.  He further held that the  order
\ninflicting  compulsory\tretirement  on\tthe  petitioner\t was
\ninvalid because it was passed in violation of the principles
\nof natural justice.\n<\/p>\n
The  State appealed and the Division Bench on appeal  upheld
\nthe  order passed by the learned Single Judge on the  ground
\nthat  the  order  of compulsory\t retirement  was  passed  in
\nviolation of the provisions of art. 311 of the\tConstitution
\nand was, therefore, ultra vires.  The State having  obtained
\nspecial leave, the appeal is now before us.
\nBefore we deal with the arguments of the learned counsel for
\nthe  appellant, we may give a few facts and set out  Article
\n465(A) and Note(1) thereof of the Civil Service\t Regulation,
\nas  amended by the Government of Uttar Pradesh.\t The  facts,
\nin  brief,  are that the respondent was first  appointed  in
\n1931  on  one  year’s probation to the\tpost  of  Custodian,
\nSarnath Museum, Banaras, under the Archaeological Department
\nof  the\t Government  of India.\tIn 1939, he  was  posted  to
\nMathura\t  Museum   as\tCurator,  and\the   was   appointed
\nsubstantively to this post from January 5, 1941.  Later,  he
\nwas appointed on the recommendation of the Provincial Public
\nService commission as Curator of the State Museum,  Lucknow,
\non  a  scale  of pay Rs. 250\/- to Rs. 850\/-.   The  post  of
\nCurator was upgraded to the post of Director, State  Museum,
\nLucknow, in the U.P. Educational Service, Senior Scale,\t and
\nthe   respondent  was  appointed  to  it.   Thereafter\t the
\nrespondent continued in service as Director of State
\n\t\t\t    335<\/span>
\nMuseum,\t Lucknow, until he was compulsorily retired  by\t the
\norder  of  the Government, dated July 28,  1960,  which\t has
\nalready\t been  set out above.  It is common ground  that  no
\nenquiry as contemplated by Art. 311(2) was held.
\nThe  relevant  part  of Article 465A of\t the  Civil  Service
\nRegulation is in the following terms:\n<\/p>\n
\t       “Government  retains the right to retire\t any
\n\t      Government  servant after he has completed  25
\n\t      years  qualifying service without\t giving\t any
\n\t      reasons, and no claim to special\tcompensation
\n\t      on this account shall be entertained.
\n\t       This   right  shall  only  be  exercised\t  by
\n\t      Government  in the  Administrative  Department
\n\t      when it is in the public interest to  dispense
\n\t      with  the services of Government\tservant\t who
\n\t      has outlived his usefulness.”\n<\/p><\/blockquote>\n
This learned Solicitor General, who appears on behalf of the
\nappellant has urged that the fact that the impugned order of
\ncompulsory  retirement\tstates\tthe  reason  for  compulsory
\nretirement,  namely,  that the respondent had  outlived\t his
\nutility,  does\tnot lead to the conclusion  that  the  order
\namounts\t to  dismissal or removal because in every  case  of
\ncompulsory  retirement it is implied that the person who  is
\ncompulsorily retired had outlived his usefulness.  He refers
\nto Shyam Lal v. The State of Uttar Pradesh(1) and says\tthat
\nin that case it was implied that Shyam Lal was not fit to be
\nretained  in  service.\tWe are unable to  read\tShyam  Lal’s
\ncase(1)\t in that manner because the Court expressly said  at
\np. 41, as follows:\n<\/p>\n
\t       “It  is\ttrue that this power  of  compulsory
\n\t      retirement  may  be used\twhen  the  authority
\n\t      exercising this power cannot substantiate\t the
\n\t      misconduct  which\t may be the real  cause\t for
\n\t      taking  the  action but what is  important  to
\n\t      note  is\tthat  the  directions  in  the\tlast
\n\t      sentence\tin Note 1 to article 465-A  make  it
\n\t      abundantly clear that an imputation or  charge
\n\t      is  not  in  terms made a\t condition  for\t the
\n\t      exercise\tof  the power.\tIn  other  words,  a
\n\t      compulsory   retirement  has  no\t stigma\t  or
\n\t      implication of misbehaviour or incapacity.”\n<\/p><\/blockquote>\n
In  the\t present  case\tthere is not  only  no\tquestion  of
\nimplication but a clear statement appears on the face of the
\norder that the respondent had outlived his utility; in other
\nwords,\tit is stated that he was incapacitated from  holding
\nthe  post  of Director, State Museum,  Lucknow.\t  The  order
\nclearly\t attaches a stigma to him and any person  who  reads
\nthe order would immediately consider that there is something
\nwrong with him or his capacity to work.\n<\/p>\n
In our opinion this case is covered by the principle applied
\nin  Jagdish Mitter v. Union of India<\/a> (2).  It is  true\tthat
\nthat  was a case of a temporary servant, but that  does\t not
\nmatter.\t The order
\n(1) [1955] 1 S. C. R.26.\n<\/p>\n
(2) A. 1. R. 1964 S.C.449
\n336<\/span>
\nin that case reads as follows:\n<\/p>\n
\t       “Shri   Jagdish\tMitter,\t a   temporary\t 2nd
\n\t      Division\tClerk  of this\toffice\thaving\tbeen
\n\t      found undesirable to be retained in Government
\n\t      service is hereby served with a month’s notice
\n\t      of  discharge  with effect  from\tNovember  1,
\n\t      1949.”\n<\/p><\/blockquote>\n
Gajenderagadkar, J., as he then was, speaking for the Court,
\nsaid:\n<\/p>\n
\t       “No  doubt  the order purports to be  one  of
\n\t      discharge and as\tsuch can be referred to\t the
\n\t      power  of\t the  authority\t to  terminate\t the
\n\t      temporary appointment with one month’s notice.
\n\t      But it seems to us that when the order  refers
\n\t      to  the  fact  that the  appellant  was  found
\n\t      undesirable  to  be  retained  in\t  government
\n\t      service,\tit expressly casts a stigma  on\t the
\n\t      appellant and in that sense must be held to be
\n\t      an order of dismissal and not a mere order  of
\n\t      discharge.”\n<\/p><\/blockquote>\n
\t       Later, he observed:\n<\/p><\/blockquote>\n
\t       It seems that anyone who reads the order in a
\n\t      reasonable way, would naturally conclude\tthat
\n\t      the appellant was found to be undesirable, and
\n\t      that  must  necessarily import an\t element  of
\n\t      punishment which is the basis of the order and
\n\t      is its integral part.  When an authority wants
\n\t      to  terminate  the  services  of\ta  temporary
\n\t      servant, it can pass a\tsimple\t order\t  of
\n\t      discharge without casting any aspersion  against
\n\t      the temporary servant or attaching any  stigma
\n\t      to his character.\t As soon as it is shown that
\n\t      the order purports to cast an aspersion on the
\n\t      temporary servant, it would be idle to suggest
\n\t      that the order is a simple order of discharge.
\n\t      The test in such cases must be: does the order
\n\t      cast aspersion or attach stigma to the officer
\n\t      when  it\tpurports to discharge him?   If\t the
\n\t      answer to this question is in the affirmative,
\n\t      then  notwithstanding the form of\t the  order,
\n\t      the  termination of service must be  held,  in
\n\t      substance, to amount to dismissal.”\n<\/p><\/blockquote>\n
It seems to us that the same test must apply in the case  of
\ncompulsory retirement, namely: does the order of  compulsory
\nretirement  cast  an  aspersion or attach a  stigma  to\t the
\nofficer when it purports to retire him compulsorily?  In the
\npresent\t case there is no doubt that the order does  cast  a
\nstigma on the respondent.\n<\/p>\n
Mr.  Gupte  relies on T. G. Shivacharana Singh v.  State  of
\nMysore<\/a>(1).   But  this case does not assist him\t because  it
\ndoes  not appear that the order in that case  contained\t any
\nstigma,\t and  under  Rule 285 of the  Mysore  Civil  Service
\nRules, 1958, retirement
\n(1)  A.I.R. 1965 S. C. 280.\n<\/p>\n
337<\/span><\/p>\n
could  be  effected if it was considered  necessary  in\t the
\npublic\tinterest.  There was no question of  requiring\tthat
\nthere  should be a finding  that the government officer\t had
\noutlived his utility.\n<\/p>\n
In  Ram\t Prashad v. State of punjab(1)\tno    such  question
\nappears\t to  have been argued.\tIn para 32 of  the  judgment
\nSatyanarayana  Raju, J., while considering the\tvalidity  of
\nRule  27 of the Staff Rules, reproduced an extract from\t the
\njudgment  of this Court in Moti Ram Deka v. N.\tE.  Frontier
\nRailway(2).   We will presently consider the effect  of\t the
\ndecision in Deka’s case.\n<\/p>\n
In Deka’s case(2) Moti Ram Deka, who was a peon employed  by
\nthe  North  East Frontier Railway, challenged the  order  of
\ntermination  of\t his services under Rule 148 of\t the  Indian
\nRailway Establishment Code on the ground that the said\tRule
\nwas  invalid  the  validity  of\t Rule  149  of\tthe  Railway
\nEstablishment Code.  The question  posed  for  decision\t  by
\nGajendragadkar,\t J,at  page 699 was:  if the  service  of  a
\npermanent  civil  servant is terminated\t otherwise  than  by
\noperation  of  the rule of superannuation, or  the  rule  of
\ncompulsory  retirement,\t does  such  termination  amount  to
\nremoval\t under Art. 311(2) or not?  The Court was  thus\t not
\nconcerned with the question of compulsory retairment under a
\nrule  similar to rule 465A, note (1), of the  Uttar  Pradesh
\nCivil Service regulation, but it reviewed some cases dealing
\nwith compulsory retairment. Subba Rao J. as he then  was,who
\ndelivered a concurring judgment also reviewed the  cases,but
\nhe preferred to follow the principle laid, down in Parshotam
\nLal  Dingra  v. Union of India<\/a>(3), in respect  of  permanent
\ngovernment servants in preference to that accepted in  shyam
\nLal’s  case(4)\tand the subsequent decisions  following\t it.
\nBut  it is not necessary for us to resolve the conflict,  if
\nany, which exists between Dhingra’s case(3) and Shyam  Lal’s
\ncase(4)\t because here we have an order which on the face  of
\nits  casts  a  stigma on the  respondent.  It  is  true,  as
\npointed out by Subha  Rao J., that in Doshi’s case State  of
\nBombay\tv.,  Saubhagchand, M. Doshi(5) “Rule  165-A  of\t the
\nBombay\tCivil  Services Rules laid down that the  right\t of,
\ncompulsory  retirement will not be exercised except when  it
\nis  in\tthe  public interest to dispense  with\tthe  further
\nservices  of  a\t Government servant such as  on\t account  of
\ninefficiency or dishonesty, but in Doshi’s case it does\t not
\nappear that the order contained any aspersion that Doshi was
\ninefficient  or suffered from some other defect.   What\t was
\nchallenged  in that case was the validity of Rule  165-A  of
\nthe,  Bombay Civil Services Rules, and it was held that\t it,
\ndid not violate art. 311(2) of the Constitution.
\n(1) A.I.R. 1966 S.C. 1607     [1966]  3\t S.  C.\t R.   486(2)
\n[1964] 5 S.C.R. 683.\n<\/p>\n
(3) [1958] S.C.R. 828\t      (4) [1955] 1 S.C.R. 26
\n(5) [1958] S.C.R. 571.\n<\/p>\n
L\/M1Sup.  CI\/67-8
\nThere  were  some  other  appellants before  the  Court\t who
\nchallenged
\n338<\/span>
\nSimilarly, in Balakotaih v. The Union of India(1) in Rule  3
\n,of the Railway Services (Safeguarding of National Security)
\nRules, 1949, dealing with compulsory retirement, the proviso
\nprovided that “a member of the Railway Service shall not  be
\nretired\t or  have  his\tservice\t so  terminated\t unless\t the
\ncompetent  authority  is  satisfied that  his  retention  in
\npublic\tserice\tis  prejudical\tto  national  security,\t and
\nunless,\t where\tthe  competent authority is the\t Head  of  a
\nDepartment,  the prior approval of the Governor-General\t has
\nbeen  obtained.” In this case also it does not\tappear\tthat
\nthe  order terminating the services contained any stigma  on
\nthe public servant concerned.\n<\/p>\n
In  Dalip  Singh  v. State of Punjab<\/a>(2) the  order  read  as
\nfollows:\n<\/p>\n
\t       “His  Highness the Rajpramukh is\t pleased  to
\n\t      retire  from  service  Sardar’  Dalip   Singh,
\n\t      Inspector General of Police, Pepsu (on  leave)
\n\t      for  administrative reasons with\teffect\tfrom
\n\t      the 18th August 1950.”\n<\/p><\/blockquote>\n
It  was held that the order did not amount to  dismissal  or
\nremoval\t from service within the meaning of art.  311(2)  of
\nthe  Constitution.  The Court derived two tests\t from  Shyam
\nLal’s case(3) and formulated them as follows: the first\t is
\nwhether the action is by way of punishment and to find\tthat
\nout  the Court said that it was necessary that a  charge  or
\nimputation against the officer is made the condition of\t the
\nexercise of the power; the second is whether by compulsory
\nretirement the officer is losing the benefit he has  already
\n,earned\t as he does by dismissal or removal.  If  the  first
\ntest  is  applied in this case it is quite  clear  that\t the
\ncharge\tor imputation “that the respondent had outlived\t his
\nutility”  was  made the condition of the  ,exercise  of\t the
\npower.\n<\/p>\n
 The,  learned Solicitor General also brought to our  notice
\nthe decision of the Full Bench of the Allahabad High  Court
\nin  Abdul Ahad v. The Inspector General of  Police,  U.P.(4)
\nThe decision ,certainly helps him, and as a matter of  fact,
\nthe Full Bench overruled the judgment of the Division  Bench
\nunder  appeal.\t But, with respect, we are unable  to  agree
\nwith  the  conclusion that even if the order  of  compulsory
\nretirement  recites  the fact that the\tpublic\tservant\t had
\noutlived  his  utility, it would not amount  to\t a  punitive
\norder.\t The  Full Bench was of the  view  that\t “compulsory
\nretirement  will  always  be on the ground that\t he  can  no
\nlonger\trender useful service.\tThe position certainly\tdoes
\nnot become worse because
\n(1) [1958] S.C.R. 1052\t       (2) [1961] 1 S.C.R    88.
\n(3) [1955]1 S.C.R. 26.\t       (4) A.I.R. 1965 All. 142.\n<\/p>\n
339<\/span><\/p>\n
what  is implied is expressed.” We are unable to agree\tthat
\nthe  position  does  not become worse because  a  stigma  is
\nattached expressly.\n<\/p>\n
We  may\t say that the question whether Article\t465-A,\tnote
\n(1),  violates art. 31 1 of the Constitution was not  argued
\nbefore us and we say nothing about it.\n<\/p>\n
In the result the appeal fails and is dismissed with costs.
\nY.P.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
340<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Uttar Pradesh vs Madan Mohan Nagar on 5 January, 1967 Equivalent citations: 1967 AIR 1260, 1967 SCR (2) 333 Author: S Sikri Bench: Rao, K. Subba (Cj), Shah, J.C., Sikri, S.M., Ramaswami, V., Vaidyialingam, C.A. PETITIONER: THE STATE OF UTTAR PRADESH Vs. RESPONDENT: MADAN MOHAN NAGAR DATE OF […]<\/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-18901","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Uttar Pradesh vs Madan Mohan Nagar on 5 January, 1967 - Free Judgements of Supreme Court & 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\/the-state-of-uttar-pradesh-vs-madan-mohan-nagar-on-5-january-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Uttar Pradesh vs Madan Mohan Nagar on 5 January, 1967 - 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