Gurdev Singh Sidhu Vs. State of Punjab
& ANR  INSC 105 (1 April 1964)
01/04/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1964 AIR 1585 1964 SCR (7) 587
R 1970 SC 143 (6) E 1971 SC1516 (7) R 1975
SC1646 (24) RF 1991 SC 101 (58,59,241,263)
retirement-Constitutional validity-If and when dismissal or removal from
servicePepsu Services Regulations Volume 1, as amended by notification issued
by Governor under Art. 309 of the Constitution--Constitution of India, Art.
The petitioner was appointed as Assistant
Superintendent of Police in 1942 in the former Patiala State. In 1948 on the
formation of Patiala and East Punjab States he was integrated in Pepsu Police
Service. He was promoted to officiate as Superintendent of Police in 1950 by
the Rajpramukh of Pepsu. On March 25, 1963, respondent No. 2, the
Inspector-General of Police and Joint Secretary to the Government of Punjab,
issued a notice upon the petitioner under the second proviso to Art. 9.1 of the
Pepsu Services Regulation as amended by the Governor by his notification dated
January 19, 1960, to show cause why he should not be compulsorily retired. The
petitioner moved this Court under Art. 32 of the Constitution for quashing the
said notice on the ground that the said proviso was ultra vires and inoperative
by reason of contravention of Art. 311(2) of the Constitution and relied on the
decision of Frontier Railway, A.I.R. 1964 S.C. 600. The said proviso was as
follows," * * * that Government retains an absolute right to retire any
Government servant after he has completed ten years qualifying service without
giving any reason and to claim to special compensation on this account will be
This right will not be exercised except when
it is in public interest to dispense with the further services of a Government
servant such as on account of inefficiency, dishonesty, corruption or infamous
conduct * * *".
Held: Article 9.1 of 'the Pepsu Services
Regulation in prescribing a minimum period of ten years of service for the
purpose of compulsory retirement contravened Art. 311(2) of the Constitution
and must be struck down.
The only two valid exceptions to the
protection afforded by Art. 311(2) were,(1) where a permanent public servant
was asked to retire on the ground that he had reached the age of superannuation
which was reasonably fixed;
(2) that he was compulsorily retired under
the Rules which prescribed the normal age of superannuation and provided a reasonably
long period of qualified service after which along compulsory retirement could
The first would not amount to dismissal or
removal from service within the meaning of Art. 311(2) and the second would be
justified by the view taken by this Court in a long series of decisions.
588 It is not permissible for a State while
reserving to itself the power of compulsory retirement by framing a rule prescribing
a proper age of superannuation to frame another giving it the power to
compulsorily retire a permanent public servant at the end of ten Years of his
service, for that rule cannot fall outside Art. 311(2) of the Constitution.
Moti Ram Deka etc. v. General Manager, North
East Frontier Railway etc. A.I.R. 1964 S.C. 600, applied Shyam Lal v. State of
U.P. and Union of India,  1 S.C.R. 26 and State of Bombay v. Saubhag
Chand M. Doshi,  S.C.R.
571, referred to.
This decision should not be taken to mean
that a petition like the present one was competent under Art. 32 of the Constitution.
ORIGINAL JURISDICTION: Writ Petition No. 200
Petition under Art. 32 of the Constitution of
India for the enforcement of the fundamental rights.
K. P. Bhandari and R. Gopalakrishnan, for the
and R. N. achthey, for the respondents.
April 1, 1964. The Judgment of the Court was
delivered by GAJENDRAGADKAR, C. J.-This petition which has been filed by the
petitioner S. Gurdev Singh Sidhu under Art 32 of the Constitution, challenges
the validity of article 9(1) of the Pepsu Services Regulations, Volume 1, as
amended by the Governor of Punjab by the notification issued by him on the 19th
January, 1960 in exercise of the powers conferred on him by the proviso to Art.
309 of the Constitution and all other powers enabling him in that behalf. The
petitioner's contention is that the said article contravenes the constitutional
right guaranteed to the persons employed in civil capacities either under the
Union or the State, by Art. 311.
The petitioner was appointed as Assistant
Superintendent of Police in the erstwhile Patiala State by His Highness
Maharaja Adhiraj of Patiala on the 4th of February, 1942.
The conditions of his service were governed
by the Patiala State Service Regulations which had been issued by the Ruler of
Patiala State who was at the relevant time the sovereign legislature of the
State. Later, the petitioner was confirmed in the rank on the occurrence of a
regular vacancy after he had undergone practical district training courses in
the Punjab in 1947. On the formation of Patiala and East Punjab States Union on
the 20th August, 1948, the petitioner was integrated in Pepsu Police Service.
In due course, he was promoted to officiate as Superintendent of Police in
February, 1950 by His Highness the Rajpramukh of the erstwhile State of Pepsu.
589 On the 25th March, 1963, respondent No. 2
S. Gurdial Singh, Inspector General of Police & Joint Secretary to the
Government of Punjab, issued a notice against the petitioner purporting to act
under the second proviso to article 9.1 of the Pepsu Services Regulations to
show cause why he should not be compulsorily retired. The petitioner alleges
that the second proviso to article 9.1 under which the said notice has been
issued against him, is invalid, and so, he has moved this Court under Art. 32
for quashing the said notice on the ground that the article on which it is
based is itself ultra vires and inoperative. Respondent No. 1, the State of
Punjab, and respondent No. 2 have by their counter-affidavit denied the
petitioner's contention that the impugned article 9.1 is constitutionally
invalid and they have resisted his claim for quashing the notice issued by
respondent No. 2 against the petitioner. That is how the only point which
arises for our decision in the present petition is whether the impugned article
is shown to be constitutionally invalid.
Before dealing with this point, it is
necessary to read the said article: "The following shall be added after
the first proviso to clause (1) of article 9.1 of the said regulations:
(ii) "Provided further that Government
retains an absolute right to retire any Government servant after he has
completed ten years qualifying service without giving any reason and no claim
to special compensation on this account will be entertained. This right will
not be exercised except when it is in public interest to dispense with the
further services of a Government servant such as on account of inefficiency,
dishonesty, corruption or infamous conduct. Thus the rule is intended for use:
(a) against a Government servant whose
efficiency is impaired but against whom it is not desirable to make formal
charges of inefficiency or who has ceased to be fully efficient, (i.e. when a Government
servant's value is clearly incommensurate with the pay which he draws), but not
to such a degree as to warrant his retirement on a compassionate allowance. It
is not the intention to use the proviso as a financial weapon, that is to say
the proviso should be used only in the case of Government servants who are
considered unfit for retention on personal as opposed to financial grounds;
590 (b) in cases where reputation for
corruption, dishonesty or infamous conduct is clearly established even though
no specific instance is likely to be proved under the Punjab Civil Services
Punishment and Appeal Rules) Appendix 24 of Volume 1, Part 11 or the Public
Servants (Inquiries Act XXXVII of 1850).
The word 'Government' used in this proviso
should be given a reasonable opportunity to show causethe power of removing the
Government servant concerned from service under the Civil Services (Punishment
and Appeal) 'Rules".
(iii) Provided further that Government
servant should be given a reasonable opportunity to show cause against the
proposed action under the rule. No Gazetted Government servants shall, however,
be retired without 'the approval of the Council of Ministers. In all cases of
compulsory retirement of gazetted Government servants belonging to the State
Services, the Public Service Commission shall be consulted. In the case of
non-gazetted Government servants the Heads of Departments should effect such
retirement with the previous approval of the state Government".
This article clearly shows that the absolute
right retained by respondent No. 1 to deal with public servants can be used
against them if it appears to respondent No. 1 that the said public servants
suffer from inefficiency, dishonesty, corruption, or infamous conduct. It is
also clear that one of the reasons for making the amendment in the Pepsu
Services Regulations was to use the power thereby conferred on respondent No. 1
in case where reputation for corruption, dishonesty or infamous conduct may be
established to the satisfaction of respondent No. 1 even though no specific
instance is likely to be proved under the Punjab Civil Services (Punishment and
Appeal) Rules. This power was likewise intended for use in cases where the
incompetence of the Government servant may not be of such an extent as to
warrant his retirement on a compassionate allowance. The only safeguard
provided by the amended article is that it was not contemplated to use the
power conferred by it on financial grounds. Grounds on which the said power was
intended to be used were all grounds personal to the Government servant against
whora the said power was exercised.
Mr.Bhandari for the petitioner contedns that
the point raised by the petitioner in this petition is, in substance, concluded
by a recent decision of this Court in Moti Ram Deka, 591 etc. v. The General
Manager, North East Frontier Railway,(1) etc. His argument is that the trend of
the majority, judgment in that case clearly indicates that the impugned Rule is
inconsistent with Art. 311(2) of the Constitution, and as such, must be struck
down as being invalid. It is, therefore, necessary to examine briefly the
effect of the said judgment.
In that case, this, Court was called upon to
consider the validity of Rules 148(3) and 149(3) of the Railway Rules.
These Rules authorised the termination of
services of the railway employees concerned by serving them with a notice for
the requisite period or paying them their salary for the said period in lieu of
notice. Dealing with the question about the validity of the said Rules, the
majority judgment observed that a person who substantively holds a permanent
post has right to continue in service subject to two exceptions. The first
exception was in relation to the rule of superannuation, and the second was in
regard to the rule as to compulsory retirement. The majority judgment accepted
the position that a rule fixing the age of superannuation which is applicable
to all Government servants falling in a particular category was perfectly
constitutional because it applies uniformly to the public servants who fall
within its scope and it is based ,on general considerations like life expectation,
mental capacity of the civil servants having regard to the climatic conditions
under which they work and the nature of the work they do. They are not fixed on
any ad hoc basis and do not involve the exercise of any discretion.
The second exception was ,affirmed by the
majority judgment with the reservation that rules of compulsory retirement
would be valid if having fixed a proper age of superannuation, they permit the
compulsory retirement of the public servant, provided he has put in a minimum
period of service; and while affirming this rule, an express reservation was
made that in case a rule of compulsory retirement permitted the authority to
retire a permanent servant at a very early stage of his career, the question as
to whether such a rule would be valid may have to be considered on a proper
occasion. In other words, the acceptance of the ,doctrine that rules for
compulsory retirement were valid and constituted an exception to the general
rule that the termination of the services of a permanent servant means his
removal within the meaning of Art. 311(2), was not absolute but qualified.
At this stage, it is necessary to explain why
this, reservation was made in the majority judgment. The question which fell to
be decided in the case of Moti Ram Deka(1) bad no reference to the rule of
compulsory retirement; but the argument in support of the validity of the rule
proceeded (1) A.I.R 1964 S.C 600.
592 on the basis that the previous decisions
of this Court in which the validity of the relevant rules of compulsory
retirement had been upheld logically supported the contention that the impugned
Rules 148(3) and 149(3) were also valid, and this argument made it necessary
for this Court to examine the said decisions and to decide whether the
observations made in the course of those decisions supported the contention
that Rules 148(3) and 149(3) were valid. Let us briefly refer to some of these
In Shyam Lal, v. The State of U.P. and the
Union of India(1) the article which was examined was 465-A of the Civil Service
Regulations. Note 1 to the said article gave the Government an absolute right
to retire any officer after he has completed 25 years of service without giving
any reasons, and provided that no claim to special compensation can be
entertained from the public servant who has been compulsorily retired under it;
this article was held to be valid.
In the State of Bombay v. Saubhag Chand M.
Deshi,(2) the rule which was considered was 165-A of the Bombay Civil Services
Rules as amended by the Saurashtra Government.
This rule gave the Government a similar right
to retire a Government servant after he has completed 25 years of qualifying
service or 50 years of age, and it permitted the Government to ask the
Government servant to retire compulsorily without giving any reason and without
giving him the right to claim special compensation. The rule further made it
clear that the right conferred by it will not be exercised except when it is in
the public interest to dispense with the further services of a Government
servant such as on account of inefficiency or dishonesty. This rule was also
Reverting then to the argument which was
urged in support of the validity of the Railway Rules challenged in the case of
Moli Ram Deka(3) the position taken by the learned Additional Solicitor-General
was that in upholding the impugned rules, the earlier decisions had
substantially proceeded on the basis that the premature termination of the
services of a permanent Government servant would not in every case amount to
his removal within the meaning of Art.
311(2) of the Constitution, and that is how
it became necessary to refer to the said decisions which dealt with the
question of compulsory retirement, though the problem of compulsory retirement
did not fall for the decision of the Court in Moti Ram Deka's(3) case.
The approach adopted by the majority decision
in Moti Ram Deka's(3) case indicates that the Court was not prepared (1) 
1.S.C.R. 26 (2)  S.C.R. 571.
(3) A.I.R. 1964 S.C. 600.
593 to examine the question as to whether the
relevant Rules in respect of compulsory retirement which had been upheld were
valid or not. The trend of the majority judgment shows that logically, it would
be consistent to hold that the premature termination of the services of a
permanent Government servant would not amount to hi;-, removal under Art.
311(2) only where such termination is the result of the fixation of a general
rule of superannuation. In all other cases where a permanent Government servant
is asked to retire compulsorily whether on account of his incompetence,
inefficiency, or dishonesty, it may, logically, be open to be suggested that
such compulsory retirement is removal within Art. 311(2). But since 1953, when
the case of Satish Chandra Anand v. The Union of India(1) was decided by this
Court there appeared to be a consistent course of decisions which had upheld
the validity of the rules in regard to compulsory retirement. No doubt, the
case of Satish Chandra Anand was one where a person had been employed by the
Government of India on a five-year contract in the Re,settlement and Employment
Directorate of the Ministry of Labour; but some observations were made in that
judgment and similar observations were made in subsequent decisions dealing
with the question of compulsory retirement. The majority judgment in Moti Rai
Deka's(2) case took the view that it would be inappropriate and inexpedient to
reopen an issue which was covered by several prior reported decisions of the
Court. Besides, the point covered by the said decisions did not directly arise
in the case of Moti Ram Deka. Even so, the majority judgment took the precaution
of adding a note of caution that if a rule of compulsory retirement 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
validity of such a rule may have to be examined. That is how in accepting the
view that a rule of compulsory retirement 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 service which was prescribed by the relevant rules upheld by
the earlier 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 retirement as constituting the
minimum period of service after which alone the said rule could be invoked.
Therefore, it seems to us that Mr. Bhandari is right when he contends that the
present (1)  S.C.R. 655.
(2) A.I.R. 1964 S.C. 600.
594 article which reduces the minimum period
of service to 10 years, is open to challenge in the light of the majority
decision pronounced in the case of Moti Ram Deka(1).
In this connection, it is hardly necessary to
emphasise that for the efficient administration of the State, it is absolutely
essential that permanent public servants should enjoy a sense of security of
tenure. The safeguard which Art.
311(2) affords to permanent public servants
is no more than this that in case it is intended to dismiss, remove or reduce
them in rank, a reasonable 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
inefficient 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 superannuation
which has been reasonably fixed, Art. 31](2) does not apply, because such
retirement is neither dismissal nor removal of the public servant. If a
permanent public servant is compulsorily retired under the rules which
prescribe the normal age of superannuation and provide for a reasonably long
period of qualified service after which alone compulsory retirement can be
ordered, that again may not amount to dismissal or removal under Art. 31](2)
mainly because that is the effect of a long series of decisions of this Court.
But where while reserving 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 retire a permanent 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 permanent public servant under such a rule,
though called compulsory retirement, is, in substance, removal under Art.
311(2). It is because it was apprehended that rules of compulsory retirement
may purport to reduce the prescribed minimum period of service beyond which
compulsory retirement can be forced against a public servant that the majority
judgment in the case of Moti Ram Deka(1) clearly indicated that if.-such a
situation arose, the validity of the rule may have to be examined, and in doing
so, the impugned rule may not be permitted to seek the protection of the
earlier decisions of this Court in which the minimum (1) A.I.R. 1964 S.C. 600
595 qualifying period of service was prescribed as high as 25 years, or the age
of the public servant at 50 years. We are, therefore, satisfied that Mr.
Bhandari is right in contending that the effect of the majority decision in the
case of Moti Ram Deka(1) clearly is that the impugned article 9.1 contravenes
Article 311(2) of the Constitution and must be struck( down as invalid.
The result is, the petition succeeds and
article 9.1 as amended by the Governor of Punjab by a notification issued on
the 19th January, 1960, is struck down as invalid. In consequence, the notice
issued by respondent No. 2 against the petitioner on the 25th March, 1963 must
Before we part with this petition we ought to
add that the respondents did not urge before us that the writ petition was not
competent under Art. 32 and that the proper remedy available to the petitioner
was a petition under Art. 226 of the Constitution to the Punjab High Court;
that is presumably, because the respondents were anxious to have a decision
from this Court on the question about the validity of the impugned article in
the Regulations in question. We would, therefore, make it clear that our
decision in the present writ petition should not be taken to mean that we have
held that a petition like the present is competent under Art. 32 of the
In the circumstances of this case, the
petitioner is entitled to his costs from respondents 1 and 2.
(1) A.I.R. 1964 S.C. 600.