N.C. Dalwadi v. State of Gujarat

SEN, J. The only question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated .1 'I\ January 24, 1972 is whether the appellant who was officiating as G Superintending Engineer in 'the Gujarat Service of Engineers, Class I could be retired by the State Government on the date on which he attained the age of 55 years on the ground that he was merely official· ing in that post and had not "attained to the rank of a Superintending Engineer" within the meaning of r. 161(1)(c)(ii)(l) of the Bombay Civil Services Rules, 1959 as applicable to the State of Gujarat. H - - 644 SUPREME COURT REPORTS [ 1987] 3 S. C.R. A The facts giving rise to the case are as follows. The appellant was an officer of the Bombay Service of Engineers, Class I in the erstwhile State of Bombay and was promoted to the post of Executive Engineer. In July 1965 when the post of Superintending Engineer fell vacant the State Government promoted him to officiate as Superintending Engineer in the Gujarat Service of Engineers, Class I until further orders. On account of his meritorious service as Superintending Engineer the appellant was put in charge of the Minor Irrigation Pro- ject Circle. The work undoubtedly is of a highly specialised and skilled nature and officers of merit and proven ability, skill and competence are usually posted there. The appellant did excellent record of service without any blemish and earned encomiums for his meritorious service in his new capacity. In 1966 the Chief Engineer, Public Works Depart­ ment addressed a letter to the appellant communicating the State Government's appreciation of the valuable work which the appellant and the officers and staff under him had put up during the scarcity relief operations in that year. However, the State Government all of a sudden on September 13, 1967 purported to compulsorily retire him D under the first proviso tor. !61(1)(a) w.e.f. December 15, 1967 after giving him three months notice he having attained the age of 55 years on November 12, 1967. Normally, the appellant would have as Superintending Engineer retired on November 12, 1970, the date on which he attained the age of 58 years. He had by then put up 29 years of service and there was no adverse entry in any of his confidential reports questioning his integrity or his efficiency or ability for reten­ tion in service. The appellant accordingly assailed the order of com- pulsory retirement by a petition in the High Court under Art. 226 of the Constitution. In contesting his claim, the State Government in its return F pleaded that the case of the appellant was governed by r. 161(l)(c) (ii)(l) of the Rules and not by r. 161(1)(a) and reference to a wrong provision woulcl not necessarily invalidate the order, that the appellant had not substantively attained to the rank of Superintending Engineer before he reached the age of 50 years and therefore the Government could compulsorily retire him at any time after he reached that age. It G was asserted that the Government was entitled to review the cases of ~ government servants who were to attain the age of 55 years as per the terms of the circular issued by the Government in the General Administrative Department dated October 25, 1963, as amended from time to time, and that in accordance with the procedure laid down the case of the apellant was reviewed before he attained the age of 55 years H and it was decided that it was not desirable in the public interest to DALWADI v. STATE OF GUJARAT [SEN, J.] 645 ., continue him in government service and that he should be compul­ sorily retired by giving three months notice. Even otherwise, it was contended that by virtue of the power vested in the Government under the first proviso to r.161(1)(a) the Government could direct the com­ pulsory retirement even of a person who had attained the rank of Superintending Engineer before reaching the age of 50 years and that power was not excluded by reason of r. 161(1)(c)(ii)( 1). - The learned Single Judge (A.O. Desai, J.) relying upon the deci- sion of a Division Bench in Ishwarlal Kasanji Naik v. State of Gujarat, [ 1963] 4 SLR 945 hel.d that since the appellant had not attained the substantive rank of a Superintending Engineer, he could be made to retire at any time under r. 161(1)(c)(ii)(l) i.e. on the date he attained the age of 55 years or thereafter. He observed that the decision in Ishwar/al Kasanji Naik's case being that of a Division Bench, the construction placed by the learned Judges on r. 16l(l)(c)(ii)(l) were clearly binding on him and that since the appellant was merely holding the post in an officiating capacity he could not be held, according to the view expressed in Ishwarlal Kasanji Naik's case. to have attained >(' the rank of Superintending Engineer, in order to have the benefit of the normal age of superannuation of 58 years. It has been laid down by a Division Bench in Ishwarlal Kasanji Naik's case that the benefit of exemption from r. 161(1)(c)(ii)(l) could be had only by government servants in the Bombay Service of Engineers, Class I who were in the -+ posts of Superintending Engineers i.e. held the rank of a Superintend­ ing Engineer on a regular basis, in a substantive capacity and not in an officiating capacity. The decision is reflected in a laconic sentence: } "In order to get the benefit of exemption from the rule [r. 161(1)(c)(ii)(l)] it is necessary that he should have sub­ stantively attained the post or the rank of a Superintending F Engineer.'' We are unable to subscribe to the view expressed by the learned Judges in Ishwarla/ Kasanji Naik's case. The word 'substantive' does not find place in r. !6!(1)(c)(ii)(l) of the Rules. In assailing the correctness of the judgment of the High Court, learned counsel for the appellant contends that the post of Superin­ tending Engineer is a selection post and the appellant was promoted as such in a clear vacancy, and though he was working as a Superintend- ing Engineer in an officiating capacity, he was given the benefit of the revised pay-scale for post of Superintending Engineer and also given H A two yearly increments. According to him, the word 'rank' in r. 161 ( l)(c)(ii)(l) must in the collocation of the words being preceded by the word 'attained' mean the status or the grade. It is pointed out that the word 'rank' is not qualified by the word 'substantive' as erroneously assumed i:• Ishwarlal Kasanji Naik's case. He places reliance on the recent judgment of this Court in S.C. Jain v. State of Haryana & Anr., B [1985] 4 SCC 645 where an identical provision r. 3.26(c)(l) of the -\, •' Pun jab Civil Services Rules was treated to be a special rule conferring immunity on an Engineer who has attained the rank of Superintending Engineer in the Public Works Department (Buildings & Roads Branch) on the ground that premature retirement of Executive Engineers promoted to the rank of Superintending Engineer because of their merit and proven ability and competence was clearly not in the C public interest and therefore they must get protection from premature retirement under r. 3.26(c)(l). It is pointed out that even though the appellant was working as a Superintending Engineer, his pension has been fixed by the Oovemment on the basis of the pay-scale of Superin­ tending Engineer presumably because he had been promoted to the D post in an officiating capacity but in a clear vacancy i.e. had acquired the status or rank of a Superintending Engineer. The contention to the contrary by learned counsel for the respondents based upon an earlier decision of this Court in Union of India v. K.R. Tahiliani & Anr., [1980] 2 SCR 1092 is that the appellant E was only officiating as Superintending Engineer and had no right to the post. Our attention is drawn to the following observations made by the Court: "When a Government servant belonging to a Class I or Class II t Service or post on a regular basis has to be retired compulsorily, F Rule 56(j) comes to the rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien. Similar is the position of an officiating hand. Thus, we have rigid and inevitable conclusion that Rule 56(j) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capa- G city, and not on an officiating basis only." y- The submission therefore is that the benefit of the exemption under r. 161(l)(c)(ii)(l) can be had only by a government servant holding the post of a Superintending Engineer on a regular basis i.e. in a substan­ tive capacity. The subsequent decision in S. C. Jain's case is sought to H be distinguished on the ground that the Court there was dealing with " -.... ) ; ' DALWADI v. STATE OF GUJARAT (SEN, l.J 647 the case of a person holding the post of a Superintending Engineer on a regular basis. In order to appreciate the rival contentions, it is necessary to refer to some of the provisions of r. 161( 1) which deals with the age of superannuation, insorfar as material: "161. (1)( a). Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV servant is the date on which he attains the age of 58 years. Provided: c (i) An appointing authority may after giving three months previous notice in writing require a Government servant to retire from the service on the date on which he attains the age of 55 years or on any date thereafter to be specified in the notice." D ·f' __ ,. .; "161. (l)(c) The following rules are applicable to particu­ lar services: (ii)(l) Except as otherwise provided in this sub-clause, Government servants in the Bombay Service of Engineers, E Class I, must retire on reaching the age of 58 years, and may be required by Government to retire on reaching the age of 50 years if they have not attained to the rank of Superintending Engineer." Age of superannuation is an incident of government service; it is F for the benefit of the employee who earns a well-earned rest with or without pensionary benefits for the rest of his life. It is common to all permanent civil servants; it depends on an event that inevitably hap­ pens by passage of time unless the ef1'ployee dies earlier or resigns from the post. We must give to the different clauses of r. 161(1) which <Iii find place in Chapter IX headed "Compulsory Retirement" their plain G ordinary meaning in furtherance of the object and purpose with which they have been framed. Under r. 161(1)(a) compulsory retirement of all government servants is at the age of 58 years which is the general provision. But the same cannot be said of the compulsory retirement before the age of superannuation. It is not an incident of the tenure; it is not conceived in the interests of the employee; it is a mode of H A terminating the employment at the discretion of the appointing authority. The words 'except as otherwise provided in the other clauses of this rule' appearing in r.161(1)(a) make the general rule of superannuation at the age of 58 years subject to other clauses of that rule. That is to say, the Government is empowered to provide for different ages of compulsory retirement for different classes of govern- B ment servants. Proviso tor. 16l(l)(a) however is the absolute power of the Government to direct the premature retirement of a govern­ ment servant on the date on which he attains the age of 55 years or at any time thereafter. R. 161(l)(c) is the special rule framed for that purpose. To illustrate, r. 16l(l)(c)(i)(I) c-iys that except as otherwise provided in that sub-clause, holders of posts of the Chief Judge of the C Court of Small Causes, Bombay and the Administrator General and Official Trustee, Bombay whether they are recruited directly or are· promoted from subordinate posts should ordinarily be retained in service till the age of 60 years, if they continue efficiently upto. that age, otherwise they may be required w retire at the age of 55 years or at any point thereafter. This clearly brings out that there are two ages D of superannuation depending upon efficiency, integrity and ability for further retention in service. Similarly, r. 16l(l)(c)(ii)(l) deals with another class of officers, namely. government servants in the Bombay Service of Engineers, Class I and similarly provides for two ages of superannuation. The first part of sub-cl. (1) adopts the general rule contained in r. 161(1)(c)(ii)(l) for that class of officers as provided in E r. 161(1)(a), namely, that they shall retire on the date on which they attain the age of 58 years. The seond part however confers power on the Government to retire any such officer on his reaching the age _of 50 years. Such power of the Government to direct premature compulsory retirement of these officers is subject to a qualification. The words "if they have not attained to the rank" of Superintending Engineer read F in conjunction with the opening words 'except as otherwise provided in this sub-clause' clearly carve out an exception in the case of persons holding the posts of Superintending Engineer. The words 'if they have not attained to the rank' of Superintending Engineer in r. 161(1)(c) (ii)(l) are plainly bad English and must be read as 'if they have not attained the rank' of Superintending Engineer. The word used in that G rule is 'rank' and not 'substantive rank' and there is no reason why it should not be understood according to its ordinary sense as meaning grade or status, particularly when it is preceded by the words 'have not attained the rank'. The word 'attained' means acquired or reached. The word 'rank' has both a narrower as well as a wider meaning. H A question may arise as to the purport and effect of these rules. .. .... DALWADI v. STATE OF GUJARAT [SEN, J.J 649 ~ The effect of r. 161(1)(a) which is the general rule dealing with all A government servants except with respect to the enumerated categories and ofr. 161(1)(c)(ii)(l) which is a special rule dealing with govern­ ment servants belonging to Bombay Service' of Engineers, Class I is the same; the difference is only superficial which lies more in clever draft- ing than in their content. .The Government may terminate .the services B of a permanent government servant under the fir.i proviso to r. 161 ~- (l)(a) at any time on or after he attains the age of 55 years after giving three months notice i.e. before the normal age of superannuation, by way of compulsory retirement. It will be noticed that the power of the Government under the first proviso to direct premature retirement does not exist on its satisfaction that it is necessary to do so in the public interest. It is unlike FR 56(j) to that extent. The Government may terminate the services of a government servant belonging to the Bombay Service of Engineers, Class I under r. 16l(l)(c)(ii)(l) at the age of 50 years without giving him any notice. Arbitrariness is writ large in both the rules but the rules enable the Government to deprive a permanent civil servant of his office without enquiry. The power of coptpulsory retirement may be used when the authority exercising this ( power cannot substantiate the misconduct which may be real cause for taking action. Both violate Art. 311(2) of the Constitution. Primafacie it appears to us that the first proviso tor. 161(1)(a) was on lines of FR 56(j) and could be sustained on the strength of the decision in Union of India v. Col. l.N. Sinha & Anr., [1971] 1 SCR 791 being based on the ground that the compulsory retirement of a particular government servant was in the public interest but the words 'in the public interest' are not there in r. 161(l)(c). In Col. J.N. Sinha's case it was laid down that the appropriate authority has the absolute right to retire a govern­ ment servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rules, one of which is that the concerned authority must be of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is however open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. ~ Compulsory retirement involves no civil consequences. The aforemen­ tioned FR 56(j) is not intended for taking any penal action against government servants. That rule merely embodies one of the facts of the "pleasure doctrine" embodied in Art. 310 of the Constitution. It was said: ~· 650 SUPREME COURT REPORTS (1987) 3 S.C.R. "There is no denying the fact that in all organisations and more so in government organisations, there is good deal of dead wood. It is in the public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servants and the interest of the public. While a minimum service is guaran­ teed to the government servant, the Government is given power to energize its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest." These considerations do not arise either under the first proviso to C r. 16l(l)(a) or under sub-cl. (1) tor. 161(1)(c)(ii) because the con­ cept of public interest is not there. It seems to us that on a proper construction of r. 161(1)(c)(ii)(l) which is identical tor. 3.26.(c)(l) of the Punjab Civil Services Rules, the word 'rank' in the collocation of the words 'if they have not 1 D attained to the rank of Superintending Engineer' in r. 161(1)(c)(ii)~l) ) must in its context and setting was to be construed in its wider sense as meaning status or grade, and if so regarded, the second part of that rule must be treated as an exception to the special rule empowering the Government to direct superannuation of such officers on the date they attain the age of 50 years. This has been the view expressed by the E Court in S. C. Jain's case but we find it difficult to support the conclu­ sion that the words 'if they have not attained the rank of Superintend­ ing Engineer' in r. 161(1)(c)(ii)(l) confer an immunity on Superin· tending Engineers from being compulsorily retired at any age below the normal age of superannuation at 58 years. Under the scheme of the Rules, the benefit which the Superintending Engineers enjoy under F the second part of r. 161(1)(c)(ii)(l) is necessarily subject to the abso­ lute power of the Government to direct compulsory retirement of such officers on the date they attain the age of 55 years under the first proviso to r. 161(1)(a) or under FR 56(j)(l) on which it is based. Although the words 'in the public interest' are not there but such power to direct premature compulsory retirement at the ag~ of 55 G years can be exercised subject to the conditions indicated in Col. J.N. Y. Sinha's case, one of which is that the concerned authority must be of the opinion that it is in the public interest to do so. We are not oblivious of the fact that the construction that we put on the word 'rank' in r. 16l(l)(c)(ii)(l) does not accord with the view H expressed by the Court in Tahiliani's case that FR 56(j) is meant to ] - • ..,. DALWADI v. STATE OF GUJARAT [SEN, J.] 651 cover only those who are in a post on a regular basis, i.e. in a substan· A tive capacity and not on an officiating basis only. It proceeds on the principle that the constitutional provision under An. 311(2) protecting a government servant from reduction in rank without hearing refers only to a person who is occupying a higher post in a substantive capa· city, for which he alone has a legal right to occupy the post. The Court laid down while interpreting FR 56(j) that a person who is occupying a B higher post in an officiating capacity has no such rigbt and can be deprived of his post by the competent authority. The facts are not clear from the judgment in Tahiliani's case. From the passage extracted above, it is clear that the Court laid down that when a government servant belonging to a Class I or Class II service or post on a regular basis has to be retired compulsorily, the Government can fall back on C FR 56(j). It however held that FR 56(j) is meant to cover only those who are in a post on a regular basis i.e. in a substantive capacity and not on an officiating basis only. If that be so, then we are at a loss to understand why a person who has not attained the rank of Superin· tending Engineer i.e. is merely officiating as Superintending Engineer cannot be compulsorily retired from his substantive post of Executive D Engineer if the other requirements of FR 56(j) are fulfilled. We need not dilate on this aspect further inasmuch as the State Government in the return filed before the High Court stated that it only intended and meant to act under the first proviso to r. 161(1)(a) and not under r. 161(1)(c)(ii)(l). It is' averred in the return that the case of the appel· lant was reviewed and it was decided to compulsorily retire him on his E attaining the age of 55 years. There is no material placed to show that such compulsory retirement was necessary in the public interest. The appellant has had an unblemished record and there was nothing against him to doubt his integrity, fitness and competence. In some· what similar circumstances this Court in H. C. Gargi v. State of Haryana, [1986] 4 SCC 158 struck down the order of compulsory F retirement under r. 3. 25(d) of the Punjab Civil Services Rules, observing: "The power of compulsory retirement under Rule 3.25 (d) of the Rules can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned G authority must be of the opinion that it is in public interest to do so. The test in such cases is public interest as laid down by this Court in Union of India v. Col. J.M. Sinha. It does not appear that there was any material on the basis of which the State Government could have fonned an opinion that it was in public interest to compulsorily retire the H 652 SUPREME COURT REPORTS [ 1987] 3 S.C.R. appellant at the age of 57 years. There was really no justifi­ cation for his compulsory retirement in public interest." There is no reason for us to take a different view in the facts and circumstances of the present case. The impugned order of compulsory B retirement of the appellant purporting to be under the first proviso to r. 161( l)(a) of the Rules must therefore be struck down as arbitrary. In the result, the appeal succeeds and is allowed. The impugned order passed by the State Government dated September 13, 1967 for compulsory retirement of the appellant made under the first proviso to r.161(1)(a) of the Bombay Civil Services Rules, 1959 is quashed and he C shall be deemed to have retired from service on attaining his normal age of superannuation of 58 years on November 12, 1970. We under­ stand that the pension of the appellant has already been fixed on the pay scale of Superintending Engineer and the effect of this order is confined to payment of the difference between salary and pension for D three years and to the benefit of the revised pay scale of Superintend­ ing Engineer in the matter of computation of pension. P.S.S. Appeal allowed.