Batahari Jena v. State of Orissa

Mitter, J.-This is an appeal from a judgment of tbr. Hi~h Court of Orissa rejecting a Writ Petition filed by the appellant for quashing the order of tbe Government passed on him on July 14, 1964 informing him that he was to retire from Government service on !st January, 1965 when he would reach the age of 55 years.

23--1 S.C. lndia/71

35.4 SUPRBMB COURT REPORTII [1971] SUPP. s.c.R.

The facts are shortly as follows. The appellant who was born on January I, 1910 entered the service of the former Indian State of Mayurbhanj in Orissa as an engineer on !st November 1937. He was in the employment of that State up to December 31, 1948. On the merger of that State with the Province of Orissa on January I, 1949 he became an officer of the said Province. The age of superannuation of Government employees in Ori8sa was then 55 years. On May 21, 1963 the Government of Orissa passed a resolution the relevant . portion . whereof ran as follows :-

"I. The question of raising the age of compulsory retirement of the State Government employees has been under the consideration of Government for some time past. . . .

¶2· After careful consideration, Government have now decided that the age of compulsory retirement for the State Government employees should be raised from 55 years to 58 years with effect from J.12-1962. . .

¶3Notwithstanding anything contained in the pre,. ceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' previous · notice in writing without assigning any reason. The Government servants also may after attaining the age of 55 years, voluntarily retire by giving three months' notice to the appointing authority. The powers to retjre a Government servant under this provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years.

¶4This provision will be in addition to the provi-sions already contained in rule 2 in section I of the Liberalised Pension Rules issued with the Finance De-partment Resolution. . .according to which :

(a) the Government may require an officer to retire

any time after he has completed 30 years qua-lifying service by giving him a notice in writ-ing at least three months before the date on which be required to retire, and (b) a Government servant may retire from service

any time after completing 30 years qualifying service by giV'ing a notice in writing to the ap-propriate authority at least three months before the date on which be wishes to retire."

On February 5, 1964 a notification was issued b¥ the Govern-ment of Orissa in connection with the above laymg down the criteria and procedure to be adopted to ensure uniformity of ope· ration of the rule mentioned in paragraph 3 of the above resolu-tion and also equitable treatment in all cases. Speaking broadly, the idea behind the notification was that (l) the service record of an officer was to be scrutinised six months before he was due to attain the age of fifty five years, (2) in any case where Govern-ment had reasonable cause to believe that he lacked in integrity it would be appropriate to determine upon his retirement, (3) where an officer's integrity was not in doubt but his physical or mental condition was such as to make him inefficient for further service the same result would follow, and (4) an officer whose performance was considered as below "average" should not be allowed to work after the age of 55.

On July 14, 1964 the appellant was asked to retire from Government service on !st January, 1965. His representation for reconsideration was not accepted. He filed a Writ Petition in the High Court on December 21, 1964. This was rejected by the High Court on September 19, 1966. The appellant has come up by certificate to this Court.

Counsel for the appellant raised only two points in support of the appeal._ His first submission was that as the appellant had not completed 30 years' service on January 1, 1965 he could not be asked to retire on that date: and, secondly, having regard to the criteria laid down by the notification dated February 5, 1964 the order of retirement dated July 14, 1964 cast a stigma on him and as such was violative of the protection given by Art. 111 of the Constitution.

The submission of learned counsel on the first head was based on his construction of the resolution of May 21, 1963. It was urged that as the power of the appointing authority under paragraph 3 of that resolution to retire the appellant after he attained the age of SS years was described as "in addition to the provisions contained in rule 2 in section 1 of the Liberalised Pension Rules" under which Government might require an officer to retire at any time after he had completed 30 years' qualifying service, the new provision was to be treated as super-added to the Pension Rules and no Government servant could be asked to retire at the age of 55 unless he had completed 30 years' qua-lifying service. As there was no dispute that the appellant had not completed 30 years of such service on lstJanuary 1965 It was urged on behalf of the appellant that Government could not resort to pa~graph 3 of the said resolution.

In our view the above contention cannot be accepted. Be· fore May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the

356 SUPREMB COURT REPORTS (1971] SUPP. s.c.R.

age of 55 years whether he had or had not put in thirty years' qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualify-ing service even though he has not reached the age of fifty five years ; correspondingly the officec had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years' qualifying serVice to his credit. Fifty five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was not unilateral. A Gov-ernment ·servant was not bound to continue in service beyond the age of fifty five years unless he wanted it. There was no altera-tion in the rule under which a Government servant could volun-tarily retire or be asked to retire in a case where he had com-pleted thirty years' service. In other words, the right of Govern-ment to require an officer to retire at any time after he had com-pleted 30 years' service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to requ'ire any employee to retire when he attained the age of 55 years without assigning any reason.

Reliance was placed on certain observations in the decision of this Court in Gurdev Singh Sidhu v. State of Punjab and Anot/rer ('). There this Court struck down article 9.1 of the Pepsu Service Regulations under which the Government sought to retain an absolute right to retire any Government servant after he had completed ten years' qualifying service without giving any reason. In that case the petitioner who had been appointed as an Assis-tant Superintendent of Police in the erstwhile Patiala State on February 4, 1942 and confirmed in that rank on the occurrence of a regular vacancy after undergoing practical district training courses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February 1950 in the said State of Pepsu, was asked to show cause by notice dated March 25, 1963 as to why he should not be compulsorily retired. The petitioner complained that the notice issued to him was Invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be constituti?nally invalid. Referring to Satish Chandra Anand v. The Unron of India(') and to certain dicta of the majority Judges in Moti Ram Delea etc. v. The General Manager, North East Frontier Railway etc.(') this Court observed by way of explanation that:

". . the majority judgment took the precaution of add-ing a note of caution that if a rule of compulsory retire-ment purported to give authority to the Government to terminate the services of a permanent public servant at a very early stage of his career, the· question about the vali-dity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory re-tirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Art. 311 (2), this Court added a rider and made it perfectly clear that if the minimum period of servi<;~ which was prescribed by the relevant rules upheld by the ear.lier decisions was 25 years, it could not be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that a fairly large number of years had been prescribed by the rule of compulsory re-tirement as constituting the minimum period of service after which alone the said rule could be invoked." The Court further observed (see p. 594) that:

"The safeguard which Art. 311 (2) affords to permanent public servants is no more than this that In case it is in-tended to dismiss. remove or reduce them in rank, a rea-sonable opportunity should be given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does not mean security of tenure for dishonest, corrupt, or ineffieient public servants. The claim merely insists that before they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore, it seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Art. 311(2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannua-tion which has been reasonably fixed, Art. 311 (2) does not apply. because such. retirement is neither dismiss~! nor removal of the public servant. If a permanent pu~l!c servant is compulsorily retired under the . rules which prescribe the normal age of s_uperannuat10.n and ~o-vide for a reasonably Jong penod of quahfied service (I) [1964]-5 s. c. R. 683.

after which alone compulsory retirement can be ordered. that aga.in may not amount to dismissal or removal under Art. 311 (2) mainly because that is the effect of a long series of decisions of this Court. But where while re-serving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily re-tire a public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Art. 311 (2). The termination of the service of a per-manent public servant under such a rule, though called compulsory retirement, is, ·in substance, removal under Art. 311(2)."

In our v'iew the above observations relied on by counsel do not help the appellant. The above observations show that a rule which. permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Art. 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed Is not unaccountably early.

Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years' qualifying service or not. The fact that the age of super-annuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Art. 311 (2).

On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the r appellant which woulil attract Art. 311. Und~r paragraph 3 of

the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Depart-ments in considering whether a Government servant should con-tinue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that . any officer whose continuance in serv'ice was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant.

In the result we must hold that there has been no violation of Art. 311 of th~ Constitution and the appeal must be dismissed with costs.

OVIL APPELLATE JURISDICTION : Civil Appeal No. 1064 of 1967.

Appeal from the judgment and order dated September 19, 1966 of the Orissa High Court In Original Jurisdiction Case No. 208 of 1964.

S. V. Gupte, and B. P. Maheshwari, for the appellant. R. Gopalakrishnan and R. N. Sachthey, for the respondent.