Union of India Vs. Col. J. N. Sinha
& ANR [1970] INSC 155 (12 August 1970)
12/08/1970 HEGDE, K.S.
HEGDE, K.S.
SHAH, J.C.
CITATION: 1971 AIR 40 1971 SCR (1) 791 1969
SCC (2) 662
CITATOR INFO:
R 1972 SC2185 (12) F 1973 SC 698 (11) R 1973
SC1252 (14) RF 1975 SC2057 (8) RF 1976 SC2433 (7) R 1976 SC2581 (18) F 1977 SC
854 (9) R 1978 SC 597 (218) R 1978 SC 851 (65,66) R 1980 SC 563
(16,18,21,22,25,27,31) R 1981 SC 594 (5) RF 1981 SC 818 (22,29) R 1984 SC 630
(4) R 1985 SC1416 (99) RF 1986 SC 555 (6) R 1987 SC 65 (2) RF 1987 SC 593 (23)
RF 1987 SC1933 (10) R 1989 SC2218 (5) RF 1990 SC1004 (8) R 1990 SC1368 (22) RF
1991 SC 101 (22,152,261) RF 1991 SC 564 (6) R 1992 SC1020
(12,16,17,23,24,25,29,31)
ACT:
Constitution of India 1950, Arts. 309,
310-Rules made under Art.309-Pleasure doctrine embodied in Art. 310-
Fundamental Rule 56(j) embodies pleasure doctrine-Compulsory retirement at age
of 50 after a certain number of years of service does not have civil
consequences Rules of natural justice cannot be invoked in such case-Rules of
natural justice operate only in areas not covered by law validly made.
HEADNOTE:
The first respondent joined the post of Extra
Assistant Superintendent in the Survey of India Service in 1938.
Later he was taken into the Class I Service
of the Survey of India and rose to the post of Deputy Director. He also
officiated as -Director. On August 13, 1969 the President of India pleased by
an order under Rule 56(j) of the Funda- mental Rules to compulsorily retire the
first respondent from Government service. No reasons were given in the order.
The appellant challenged the order by a writ petition in the High Court. The
failure on the part of the concerned authority to give opportunity to the first
respondent to show cause against his compulsory retirement was held by the High
Court to have amounted to a contravention of the principles of natural justice.
Against the judgment of the High Court the Union of India appealed.
HELD : Rules of natural justice are not
embodied rules nor can they be elevated to the position of fundamental rights.
As observed by this Court in Kralpak's case
these rules can operate only in areas not covered by any law validly made.
If a statutory provision can be read
consistently with the principles of natural justice, the Courts should do so
because it must be presumed that the legislatures and the statutory authorities
intend to act in accordance with the principles of natural justice. But on the
other hand a statutory provision either specifically 'or by necessary implication
excludes the application of any or all the principles of natural justice then
the court cannot ignore the mandate of the legislature or the statutory
authority and read with the concerned provision the principles of natural
justice. Whether the exercise of a power conferred should be made in accordance
with any of the principles of natural justice or not depends upon the express
words of the provision conferring the power, the nature of the power conferred,
the purpose for which it is conferred and the effect of the exercise of the
power. [794 G-795 C] Fundamental Rule 56(i) does not in terms require that any
opportunity should be given to the concerned Government servant to show cause
against his compulsory requirement.
It says that the appropriate authority has
the absolute right to retire a government servant if it is 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,
though it is 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. The respondent had not challenged the impugned order
on any of these grounds. [795 D-F] Compulsory retirement does not involve any
civil consequence. A person retired under Rule 56(i) does not lose any of the
rights acquired 792 by him before retirement. The rule is not intended for
taking any penal action against government servants. It merely embodies one of
the facets of the pleasure doctrine embodied in Art. 310 of the Constitution.
The rule holds the balance between the, rights of the individual government
servant and the interests of the public. While a minimum service is guaranteed
to the government servant, the government is given power to energies its
machinery and make it more efficient by compulsorily retiring those who in its
opinion should not be there in public interest. Three months notice is provided
to enable the retired employee to find out other suitable employment. [795
G-796 B] On the above view of the law, namely, that no notice to show-cause was
required, the appeal must be allowed.
T. G. Shivacharana Singh v. State of Mysore,
A.I.R. 1965 S.C. 280.
Kraipak and Ors. v. Union of India, A.I.R.
1970, S.C. 150, State of Orissa v. Dr. (Miss) Binapani Dei and Ors., [1967] 2
S.C.R. 625 distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 381 of 1970.
Appeal-from the judgment and order dated
December 22, 1969 of the Delhi High Court in Civil Writ No. 746 of 1969.
Niren De, Attorney-General and S. P. Nayar,
for the appellant.
Sardar Bahadur, Vishnu Bahadur, and Yougindra
Khushalani, for respondent No. 1.
G. S. Chatterjee, for respondent No. 2.
The Judgment of the Court was delivered by.
Hegde, J. 'In this appeal by certificate the
only question that was canvassed before us was as regards the validity of the
order contained in memorandum No. F. 16-42/68-S-1, dated August 13, 1969 issued
by the Government of India, Ministry of Education and Youth Services, retiring
the 1st respondent compulsorily from government service in exercise of the
powers conferred under cl. (j) -of Fundamental Rule 56 with effect from August
14 1969. That order was attacked before the High Court on various grounds. The
High Court rejected some of those grounds. It did not find it necessary to
decide ' a few others but accepting the contention of the respondent that in
making the order, the appellant -had violated the principles of natural
justice, it held that the impugned order is invalid The High Court accordingly
issued a writ of certiorari quashing that order.
Before us the only contention presented for
-our decision was whether the High Court was right in holding that in making
the impugned order the appellant had violated the principles of natural
justice. No other contention was taken before us. Hence we shall address
ourselves only to that question.
793 Before proceeding to examine the
contention above-formulated it is necessary to set out the material facts. The
1st respondent. herein Col. J. N. Sinha successfully competed in the
examination held by the Federal Service Commission in 1938 for the post of
Extra-Assistant Superintendent in the Survey of India Service. After selection,
he was appointed as an Extra-Assistant Superintendent. He worked as probationer
for a period of three years and thereafter he was confirmed in that post in
1941. During the second world war, he Volunteered for active-service in the
army and was granted an emergency Commission in the army. He was granted a
regular commission in the army with effect from October 23, 1942.
In exercise of the powers conferred by the
proviso to Art. 309 of the Constitution, the President of India made on August
17, 1950 rules called the Survey of India (Recruitment from Corps of
Engineering Officers) Rules, 1950 for regulating the recruitment and conditions
of service of persons appointed from the Corps of Engineering Officers of the
Defence Ministry to the Survey of' India Class I Service.- Rule 2 of the said
Rules provides for the recruitment of Military Officers to the Survey of India
Class I Service and Rule 3 provides that the recruited officers will be on
probation for two years which may be extended by the Government on the advice
of the Surveyor General. The 1st respondent was taken into the Survey of India
Class I Service under Rule 2 of the aforesaid 1950 Rules as Deputy
Superintendent Surveyor with effect from June 1951. Thereafter the President of
India in .exercise of the powers under the proviso to Art. 309, made on July 1,
1960 the Survey of India Class I (Recruitment) Rules, 1960 for regulating the
recruitment of Survey of India Class I Service. The 1st respondent was
subsequently promoted firstly as Superintending Surveyor and then as Deputy
Director. After sometime he was promoted as Director and lastly as Director
(Selection Grade). The last mentioned promotion was made with effect from
October 27, 1966. On May 17, 1969, Fundamental Rule 56(j) was amended.
Thereafter on August 13, 1969, the Ministry
of Education and Youth Services issued the impugned order. The 1st respondent
was given three months pay and allowances in lieu of three months notice
prescribed in Fundamental Rule 56(1).
The 1st respondent being aggrieved by that
order, challenged the validity of the same. As mentioned earlier, the High
Court accepted his plea. The Union of India has appealed against that order.
Fundamental Rule 56(j) reads
"Notwithstanding anything contained in this Rule the appropriate authority
shall, if it is of the opinion that it is in the public interest so to do have
the absolute right 794 to retire any Government servant by giving him notice of
not less than three months in writing or three months pay and allowances in
lieu of such notice (i) if he is in Class I or Class II Service or post the age
limit for the purpose of direct recruitment to which is below 35 years, after
he has attained the age of 50 years.
(ii) In any other case after he has attained
the age of 5 years.
Provided that nothing in this clause shall
apply to a Government servant referred to in clause (e) who entered Government
service on or before 23rd July, 1966 and to a Government servant referred to in
clause (f ) ." The order impugned merely says that in pursuance of cl. 5 6
,the President was, pleased to decide that in public interest the 1st
respondent should retire from government service with effect from August 13,
1969 and that he would be given three months pay and allowances in lieu of
three months notice provided in the said rule. No reasons are given for
compulsorily retiring the 1st respondent.
Admittedly no opportunity was given to him to
show cause against his compulsory retirement. The failure on' the part of the
concerned authority to give an opportunity to the 1st respondent to show cause
against his compulsory retirement was held by the High Court to have amounted
to a contravention of the principles of natural justice.
The validity of Fundamental Rule 56(j) was
not questioned before the High Court nor before us. Its validity is not open to
question in view of the decision of this Court in T.
G. Shivacharana Singh and Ors. v. State of
Mysore(1).
Fundamental Rule 56(j) in terms does not
require that any -opportunity should be given to the, concerned government servant
'to show cause against his compulsory retirement. A government -servant serving
under the Union of India holds his office at the pleasure of the President as
provided in Art. 310 of the Constitution. But this "Pleasure"
doctrine is subject to the rules or law -made under Art. 309 as well as to the
conditions prescribed under Art. 311. Rules of natural justice are not embodied
rules nor can they be elevated to the position of fundamental rights. As
observed by this Court in Kraipak and Ors. v. Union of ' India(2) "the aim
of rules of natural justice is to secure justice or to put it negatively to
-prevent miscarriage of justice.
These rules can operate only in areas not
covered by any law validly made. In other words they do not supplant the law
but supplement it." It (1) A. I. R. 1965 S. C. 280 (2) A. I. R. 1970 , S.
C. 150.
795 is true that if a statutory provision can
be read consistently with the principles of natural justice. the courts should
do so because it must be presumed that the legislatures and the statutory
authorities intend to act in accordance with the principles of naural justice.
But if on the other hand a statutory provision either specifically or by
necessary implication excludes the application of any or all the principles of
natural justice then the court cannot ignore the mandate of the legislature or
the statutory authority and read into the concerned provision the principles of
natural justice. Whether the exercise of a power conferred should be made in
accordance with any of the principles of natural justice or not depends upon
the express words of the provision conferring the power, the nature of the
power conferred, the purpose for which it is conferred / and the effect of the
exercise of that power.
Now coming to the express words of
Fundamental Rule 56(j), it says that the appropriate authority has the absolute
right to retire a government 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 rule.' one of which is that the concerned authority
must be of the opinion that it is in 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 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. The 1st respondent
challenged the opinion formed by the government on the ground of mala fide.
But that ground has failed. The High Court
did not accept that plea. The same was not pressed before us. The impugned
order was not attacked on the ground that the required opinion was not formed
or that the opinion formed was an arbitrary one. One of the conditions of the
1st respondent's service is that the government can choose to retire him any
time after he completes fifty years if it thinks that it is in public interest
to do so. Because of his compulsory retirement he does not lose any of the
rights acquired by him before retirement. Compulsory retirement involves no
civil consequences. The aforementioned rule 56(j) is not intended for taking
any penal action against the government servants. That rule merely embodies one
of the facets of the pleasure doctrine embodied in Art. - 3 1 0 of the
Constitution. Various considerations may weigh with, the appropriate authority
while exercising the power conferred under the rule. In some cases, the government
may feel that a particular post may be more usefully held in public interest by
an officer more competent than the one who is holding. It may be that the
officer who is holding the post is not inefficient but the appropriate
authority may prefer to have a more efficient officer. It may further be 796
that in certain key posts public interest may require that a person of
undoubted ability and integrity should be there.
There is no denying the fact that in all
organizations and more so in government organizations, there is good deal of
dead wood. It is in public interest to chop off the same.
Fundamental Rule 56(j) holds the balance
between the rights of the individual government servant and the interests of
the public. 'While a minimum service is guaranteed to the government servant,
the government is given power to energise its machinery and make it more
efficient by compulsorily retiring those who in its opinion should not be there
in public interest.
It is true that a compulsory retirement is
bound to have some adverse effect on the government servant who is compulsorily
retired but then as the rule provides that such retirements can be made only
after the officer attains the prescribed age. Further a compulsorily retired
government servant does not lose any of the benefits earned by him till the
date of his retirement. Three months' notice is provided so as to enable him to
find out other suitable employment.
In our opinion the high Court erred in
thinking that the compulsory retirement involves civil consequences. Such a
retirement does not take away any of the rights that have accrued to the
government servant because of his past service. It cannot be said that if the
retiring age of all or a section of the government servants is fixed at 50 years,
the same would involve civil consequences. Under the existing system there is
no uniform retirement age for all government servants. The retirement age is
fixed not merely on the basis of the interest of the government servant but
also depending on the requirements of the society.
The High Court was not justified in seeking
support for its conclusion from the decision of this Court in State of Orissa
v. Dr. (Miss) Binapani 'Dei and ors.(1) and A. K. Krailpak v. Union of
India(').
In Binapani Dei's case (') Dr. Binapani Dei's
date of birth was refixed by the government without giving her proper
opportunity to show that the enquiry officer's report was not correct. It is
under those circumstances this Court held that the order refixing the date of
birth was vitiated for failure to comply with the principles of natural
justice. Therein the impugned order took away some of the existing rights of
the petitioner.
In Krapak's case('), a committee consisting
of Chief Conservator of, Forest, Kashmir and others was appointed to recommend
names of the officers from Kashmir Forest Service for (1) [1967] 2 S. C. R.
625.
(2) A.I.R. 1970 S.C. 150.
797 being selected for the Indian, Forest
Service. The Chief Conservator of Forests, Kashmir was one of the candidates
for selection. Further it was established therein that some of the officers who
competed with him had earlier challenged his seniority and consequently his
right to be the Chief Conservator and that dispute was pending. Under those
circumstances this Court held that there -was contravention of the principles
of natural justice.
For the reasons mentioned above, we are
unable to agree with the conclusion reached by the High Court that the impugned
order is invalid. We accordingly allow this appeal, set aside the judgment and
decree of the High Court and dismiss the writ petition. In the circumstances of
the case we make no order as to costs.
[The Court by order dated November 18, 1970 and January 19, 1971 on an application for review filed by the respondent vacated
its order dismissing the writ petition. Instead, the proceedings were remanded
to the High Court for decision on such points as were not, dealt with and
decided in the judgment of that court. Ed.] G.C. Appeal allowed. Proceedings
remanded.
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