Dharam Dev Mehta Vs. The Union of
India & Ors [1979] INSC 270 (20 December 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
PATHAK, R.S.
CITATION: 1980 AIR 557 1980 SCR (2) 554 1980
SCC (2) 205
ACT:
Compulsory retirement-Appointing authority as
per Rule 2(a) of C.C.S (CCA) Rules 1965 is Comptroller & Auditor General of
India-Compulsory retirement orders under F.R 56(j) issued by the Director of
Commercial Audit is contrary to law and illegal.
HEADNOTE:
Allowing the appeal by special leave, the
Court,
HELD. Rule 2(a) of the C.C.S. (C.C.A.) Rules,
1965 states, after setting out alternative authorities, that the appointing
authority is one out of four categories who is the highest, by using the
expression "whichever authority is the highest". There is no doubt
that of the four classes of authorities listed under Rule 2(a), the one falling
under sub-rule (iii) viz. Comptroller & Auditor General (in the present
case) is the highest. Therefore the order of the retirement to be legal must be
issued by the Comptroller & Auditor General. The impugned order of
retirement issued by the Director of the Commercial Audit who is a lesser
official is contrary to law. On account of the contravention of F.R. 56(j) read
with rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965, the retirement is illegal.
[555 E-G, 556 B] Observation:
Administrative law is a course necessary for
administrative officers at the highest levels so that such flaws may not
vitiate orders they pass.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 174 of 1976.
Appeal by Special Leave from the Judgment and
order dated 1-11-1974 of the Delhi High Court in L.P.A. No. 19/71.
P. P. Rao, A. K. Ganguli and R. Venkataramani
for the Appellant.
T. A. Francis and Miss A. Subhashini for the
Respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J:-This appeal by special leave raises a short question as to
whether the appellant, who was retired under Rule 56(j) of the Fundamental
Rules was so retired by a competent authority contemplated by the rule. Admittedly
he was appointed by the Comptroller 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 conformity with Rule 2(a) of the C.C.S. (C.C.A.) Rules 1965. The
appointing 555 authority according to Rule 56(j) is the competent authority.
Who then, is the appointing authority in the context of this case? The answer
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 to 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 permanent member of any
other service of having substantively held any other permanent post, 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 alternative authorities, that the appointing authority is one out of these
four categories who is the highest. This is emphatically brought out by the
expression "whichever authority is the highest". There is no doubt
that among the four classes of authorities listed under Rule 2(a), the one
falling 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 General, but
actually the impugned order of retirement was issued by the Director of
Commercial Audit. In fact the order of retirement runs thus:
"Whereas the Director of Commercial
Audit is of the opinion that it is in the public interest to do so.. "
Obviously the Director of Commercial Audit is a lesser official. The conclusion
is, therefore, inescapable that the compulsory retirement is contrary to law.
556 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 one 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 contravention of F.R. 56(j) read with Rule 2(a) of the
(C.C.A.), we are constrained to come to the conclusion that the 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 allowances automatically admissible and going with
salary) for the period between the date of compulsory retirement and the date
of actual superannuation at the age of 58.
It is unfortunate that this legal flaw has
proved fatal. Administrative law is a course necessary for administrative
officers at the highest levels so that such flaws may not vitiate 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.
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