Dharam Dev Mehta v. the Union of India & Others

KRISHNA IYER, J.-This appeal by special leave raises a short ques .. tion as to whether the appellant, who was retired under Rule 56(j) of the Fundamental Rules was so retired by a competent authority con­ templated by the rule. Admittedly he was appointed by the Comptroller H and Auditor General. The only point that arises or, at any rate, we are concerned with is, as to whether the retirement order is in confonnity with Rule 2(a) of the C.C.S. (C.C.A.) Rules 1965. The:appeinting } ...... D. D. MEHTA v. u.o.I. (Krishna Iyer, !.) 5 5 5 ~ :authority according to Rule 56(j) is the competent authority. Who A ·then, is the appointing authority in the context of this case? The answer - I is to be sought under Rule 2(a) which reads thus: "In these rules, unless the context otherwise, requires .... 2 (a) appointing authority in relation to a Government servant means- (i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or (ii) the authority, empowered to make appointments t1) the post which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a per- manent member of any other service or having substan- tively held any other permanent post,1 has been in continuous employment of the Government the authority which appointed him to that service or to any grade in that service or to that post. whichever authority is the highest authority." The most significant part of the rule states, after setting out alter­ native authorities, that the appointing authority is one out of these four categories who is the highest. This is emphatically brought out by the p i::xpression "whichever authority is the highest". There is no doubt l that among the four classes of authorities listed under Rule 2(a), the ·one fallin,g under sub·rule (iii) viz. Comptroller and Auditor general (in the present case) is the highest. It evidently follows-that the order ·of retirement to be legal, must be issued by the Comptroller and Auditor <Jenera!, but actually the irnpugned order of retirement was issued by G the Director of Commercial Audit. In fact the order of retirement runs ithus : "Whereas the Director of Commercial Audit is of the ·.opinion that it is in the public interest to to do so ...... " Obviously the Director of Commercial Audit is a lesser official. The N • (:Onc!usion is, therefore, inescapable that the compulsory retirement is .\ (:ontrary to law. -- ----·-- \B 556 SUPREME COURT _REPORTS (1980] 2 S.C.R. The High Court, in its extensive judgment, considered the scheme of the rules and, indeed, referred to the point mentioned above but after highlighting this question as om: most emphasised by the appellant, has slurred over the point and proceeded to discussion of other issues. We are concerned with the vital-perhaps the fatal-aspect of the order which has not received due attention at the hands of the High Court. ) In this view, on account of the contravel!!ion of F.R 56(j) read with Rule 2(a) of the (C.C.A.), we are constrained to come to the conclu­ sion that f:be retirement is illegal. The appellant has already become suparannuated and therefore, he will be eligible to his salary (by which we mean to include .other allow- f ances automatically admissible and going with salary) for the period ' between the date of compulsory retirement and the date of actual super­ annuation at the age of 58, It is unfortunate that this legal flaw bas proved fatal. Administrative law is a course necessary for administrative officers at the highest levels so that such flaws may not '1tiate orders they pass. Eventually Government is put to considerable loss for no fault of it except that no proper legal training in this branch of the law for the concerned officers had been given by it. With these observations we allow the appeal, but parties will bear their costs. · V.D.K. Appeal allowed. j