S.C. Jain Vs. State of Haryana & ANR
[1985] INSC 238 (4 November 1985)
MISRA, R.B. (J) MISRA, R.B. (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1986 AIR 169 1985 SCR Supl. (3) 727
1985 SCC (4) 645 1985 SCALE (2)926
CITATOR INFO:
R 1987 SC1933 (10)
ACT:
Punjab Civil Services Rules, Vol. II, Part
II, Rule 5. 32(c) and Punjab Civil Service Rules Vol. I Part I, rule 3.26 (c)
and (d) - Premature retirement - Rule 3. 26 (c) - Applicability of - Whether
Rule 3.26(c) provides immunity to Superintending Engineers.
HEADNOTE:
Rule 3.26 (c) of the Punjab Civil Service
Rules Vol. I part 1 enacts: "The following are special rules applicable to
P.W.D. Officers :-
1. Except as otherwise provided in this sub-
clause, Government employees in the Haryana Service of Engineers Class I
(B&R, I.B. and Electricity) must retire on reaching the age of 58 years,
and may be required by the competent authority to retire on reaching the age of
50 years if they have not attained the rank of superintending Engineer.
The Respondent - State of Haryana by its
order No.11/3- BR (Estt)-6-81 dated 18 December 1981 retired the appellant, a
superintending Engineer, prematurally after he attained the age of 50 years in
pursuance of the provisions contained in rule 5.32(c) of the Punjab civil Service
Rules, Vol.II Part II ant Rule 3.26(d) of the Punjab civil Services Rules, Vol.
I, Part I as applicable to the State of Haryana. The appellant's promotion to
higher and higher posts in quick succession in the part unmistakably indicated
that the authorities were satisfied with his work and integrity. He was
promoted to the post of Superintending Engineer on 27th May 1971. The appellant
made several representations against the order of premature retirement, but did
not receive any reply despite repeated reminders. Ultimately, he challenged the
impugned order of premature retirement by a writ petition in the High Court of
Punjab and Haryana on the ground, inter alia, that in view of the clear
provisions contained in rule 3.26(c) of Punjab Civil Services rules Vol. I,
Part I (as applicable to Haryana), which are special rules applicable to the
public works Department 728 Officers, the general rule contained in rule
3.26(d) empowering the Government to compulsorily retire a public servant has
no application in his case. The High Court dismissed the writ petition in
limine.
Allowing the appeal, ^
HELD: 1. The order of the High Court dated
5th January, 1984 is set aside. The order of premature retirement dated 18th
December 1981 is quashed. The appellant shall be deemed to be in continuous
service. He is entitled to his salary, emoluments and other consequential
benefits to which he would have been entitled to if he had not been prematurely
retired. [738 G] 2.(i) Rule 3.26(2), Which is a special rule applicable to
Government employees in the Haryana Service of Engineers Class 1, will govern
the case of the appellant as the special overrides the general. Admittedly, he
was working as the Superintending Engineer for the last so many years on the
date when the impugned order of his premature retirement was passed by the
Governor. This rule provides as immunity to the engineer who has attained the
rank of Superintending Engineer in the B.W.D. (B&R Branch) had always the
immunity ever since the provision for premature retirement came into force. The
old corresponding rules do not improve the position for the State-respondent.
[734 E; 738 E] 2(ii) Rule 3.26(d) is applicable to all government employees but
not to engineers of the P.W.D. for whom there is a special rule. It is a
supplement to rule 3.26(a) because it supplies the procedure to be adopted in
case of premature retirement of other Government servants. [735 E-F] 3.The
heading 'Compulsory Retirement' is wide enough to include premature retirement
within its fold. Government employee in the Haryana service of Engineers has no
right to continue in service if he has reached the age of superannuation which
is 58 years in the case of engineers.
He has perforce to retire unless he has been
granted an extension. Likewise an engineer who has not reached the age of
superannuation but is made to retire prematurely, his retirement is as much a
compulsory retirement as that of an employee who has attained the age of
superannuation. It will not be correct to say that the age of superannuation in
case of engineers who have not attained the rank of Superintending Engineers
has been reduced to 50 years. [735 A-C] 729 M. Narasimhachar v. The State of
Mysore, 119601 1 S.C.R. 981 A relied upon.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 4953 of 1985.
From the Judgment and Order dated 5.1.1984 of
the Punjab and Haryana High Court in Civil writ Petition No. 4546 of 1983.
Dr. Y.S. Chitale, and A.K. Ganguli for the
Appellant.
Harbans Lal, I.S. Goel, C.V. Subba Rao and
R.N. Poddar for the Respondents.
The judgment of the Court was delivered by
MISRA, J. Special leave granted. This appeal by special leave is directed
against the order of the high Court of Punjab and Haryana dated 5th January,
1984 dismissing the writ petition in a service matter.
The appellant joined service as a
Sub-divisional Officer (Assistant Engineer in Class II on 28th August 1953 in
the former State of PEPSU. On 1st November 1956 the State of PEPSU and Punjab
were merged and the appellant was integrated in the service of the reorganized
State of Punjab. He worked on this post for about eight years and during the
period he was posted at various places in the State and was assigned different
kinds of duties. The authorities being satisfied with his performance, he WAS
prompted to the post of Executive Engineer in Class Gazetted on 24th hay, 1961.
he was allowed to cross the efficiency bar immediately when it became due. On
this post he worked for about ten years. Considering the efficiency and
suitability of the appellant he was confirmed on the post of Executive Engineer
in Class I Gazetted on 1st April 1965.
On Ist November 1966 the State of Punjab was
bifurcated into the State of Punjab and the State of Haryana. On the
reorganisation of the State of Punjab the petitioner came to be allocated to
the service of the State of Haryana. In the new State also his performance was
excellent and the authorities satisfied with his meritorious services, gave him
a selection grade of the post of Executive Engineer. The admission of the
appellant to the selection grade itself is indication of the fact 730 that the
authorities were satisfied with his work, honesty, integrity and his
capability. In due course the appellant was also promoted to the post of
Superintending Engineer on 9th February, 1970. He had hardly worked for about a
month when he was reverted but not because of any complaint against him or his
inefficiency but because one of the posts of Superintending Engineers was
reduced by the Government.
The appellant being junior-most was reverted.
But when the post of a Superintending Engineer again fell vacant the State of
Haryana promoted the appellant to the said post promptly on 27th May 1971. On
account of his meritorious service he was found fit to be posted first as
Additional Director of Technical Education, Haryana for about four years and
thereafter as Director P.W.D. (B & R) Research Laboratory at Nilokheri. The
work of the P.W.D. Laboratory was highly specialised and skilled and required
care, precision and accuracy and only officers of the merit and proven ability,
competence and having research aptitude are posted there. The appellant was
considered to be the most appropriate officer for that post.
The appellant by a letter dated 19th October,
1981 was offered the post of Superintending Engineer on deputation to the Delhi
Development Authority. This offer was made to the appellant in view of the
request from the Delhi Development Authority for names of suitable officers.
Again on 11th December 1981 the appellant received a telegram from the office
of the Engineer-in- Chief seeking the willingness of the appellant for
nomination for the post of Civil Engineer for an assignment with the Government
of Libya. Shortly thereafter the appellant received an other offer from the
office of the Engineer-in-Chief, Haryana P.W.D. (B & R), Chandigarh on 15th
December, 1981. This offer was pursuant to the request of the management of
Dayanand University, Rohtak asking for names of Superintending Engineers for
the post of Chief Engineer. This offer was made only to the Superintending
Engineers who were considered competent by Engineer-in-Chief, Haryana P.W.D.(B
& R), Chandigarh.
The sequence of events and the promotion of
the appellant to higher and higher posts in quick succession speak for
themselves and they unmistakably indicate that the authorities were satisfied
with his work and integrity. So far all was well with him.
It appears that on 15th December, 1981 the
appellant applied for casual leave for four days from 21st to 24th December,
1981 731 and the station leave from 19th to 27th December which was sanctioned
by the office of the Chief Engineer on 17th December 1981. When he was availing
the leave he received a telegram intimating that his casual leave and station
leave have been cancelled. Neither the telegram nor the confirmatory letter
dated 21st December, 1981 received subsequently disclosed the reason for the
cancellation of leave. The appellant, therefore, had to join and resume his
duties as per instructions in the said telegram. The appellant received the
impugned order No.11/3-BR (Estt)-6-81 dated 18th December, 1981 from the
Government on 29th December, 1981 prematurely retiring him from service after
attaining the age of 50 years. The impugned order of premature retirement dated
18th December, 1981 is in the following terms:
"Whereas the Governor of Haryana is of
the opinion that it is in the public interest to retire shri S.C. Jain,
superintending Engineer, Haryana P.W.D.
( & R Branch) from service after
attaining the age of 50 yrs.
Now, therefore, in pursuance of the
provisions contained in rule 5.32(c) of the Punjab Civil Service Rules Vol. II,
Part II and rule 3.26(d) of the Punjab Civil Services Rule Vol. I, Part I as
applicable to the State of Haryana, the Governor of Haryana in the public
interest hereby orders the payment of three months pay and allowances in lieu
of notice to Shri S.C. Jain, Superintending Engineer and retires him from
Haryana Government Service with effect from the date of receipt of this order.
By Order of the Governor.
Sd/- Commissioner & Secretary to Govt.
Haryana PWD B & R Branch." The appellant made several representations
against the order of premature retirement on 25th January, 1982, 26th April,
1982, 25th July 1982 to the respondents with copies forwarded to the Chief
minister of Haryana, Minister for P.W.D., Haryana and the Engineer-in-Chief
P.W.D. & R Branch, Haryana. The appellant, however, did not receive any
reply despite repeated reminders. The appellant also separately submitted
representation to the Chief minister, Haryana in January 1982. The same was
forwarded to the then Minister for P.W.D. (B&R), Kanwar Ram Pal Singh for
examining the representation in detail, who after examining the position made
the following remarks on the representation itself:
732 "Recommended strongly restoring him
to his original post.
Sd/- Ram Pal Singh P.W.M. 25th April
1982" Despite the recommendation of the P.W.D. minister the appellant got
no relief. Under the circumstances he was constrained to take recourse to court
of law and he challenged the impugned order of premature retirement by filing a
writ petition in the High Court of Punjab ant Haryana on grounds inter alia
that in view of the clear provisions contained in rule 3.26(c) of Punjab Civil
Services Rules Vol. I, Part I (as applicable to Haryana), which are special
rules applicable to the Public works Department officers, the general rule
contained in rule 3.26(d) empowering the Government to compulsorily retire a
public servant has no application to the present case.
Curiously enough the High Court dismissed the
writ petition in limine by a cryptic order: 'No merit. Dismissed. The appellant
has now approached this Court by special leave. He has taken all those grounds
taken by him in the writ petition.
Dr. Y.S. Chitale appearing for the appellant
forcefully urged that in view of the provisions of rule 3.26(c) of the Punjab
Civil Service Rules, Vol. I, Part I, the appellant could not be retired
prematurely. We heard the counsel for the parties on this point first and
indicated that if the first contention of Dr. Chitale was not accepted we would
hear the counsel for the parties on other points involved in the case. Having
heard the counsel for the parties at some length we are of the view that the
first point raised by Dr. Chitale is Formidable and the appeal w st succeed on
this point alone. It is, therefore, not necessary to hear the parties on other
points involved in the case.
In order to appreciate the contention of Dr.
Chitale it will be pertinent to quote rule 3.26(a) to 3.26(d) of the Punjab
Civil Services Rules, Vol. I, Part I applicable to the present case (1980
Print) :
COMPULSORY RETIREMENT 3.26(a) Except as
otherwise provided in other clauses of this rule, every Government employee
shall retire from service on the afternoon of the last day of the month in
which he attains the age of fifty-eight 733 years. he must not be retained in
service after the age of compulsory retirement, except in exceptional A circumstances
with the sanction of the competent authority in public interest, which must be
recorded in writing:
Provided that the age of compulsory
retirement for class IV Government employee shall be sixty years:
Provided further that a Government employee
whole date of birth is the first of a month shall retire from service on the
afternoon of the last day of the preceding month on attaining the age OF fifty-
eight or sixty years as the case may be- (b).......
(c) The following are special rules
applicable to P.W.D. Officers :- (1) Except as otherwise provided in this sub-
clause, Government employees in the Haryana Service of Engineers, Class I (B
& R, I.B. and Electricity) must retire on reaching the age of 58 years, and
may be required by the competent authority to retire on reaching the age of 50
years if they have not attained the rank of Superintending Engineer.
(2) Subject to the requirements of this
sub-clause as to re-appointment, the competent authority may, in special
circumstances, which should be recorded in writing, grant an extension of
service, not exceeding three months, to a Chief Engineer.
(3) No Chief Engineer shall, without re-
appointment, hold the post for more than five years, but re-appointment to the
posts may be made as often, and in each case for such period not exceeding five
years as the competent authority may decide: Provided that the term of re-
appointment shall not extend more than three months beyond the date on which
the Government employee attains the age of 58.
(d) The appointing authority shall, if it is
of the opinion that it is in the public interest 60 to do, 734 have the
absolute right to retire any Government employee, other than Class IV
Government employee 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 class
I or class II Service or post and had entered Government service, before
attaining the age of thirty-five years, after he has attained the age of fifty
years; and (ii) (a) If he is in class III Service or post, or (b) If he is in
class I or Class II service or post and entered Government service after
attaining the age of thirty-five years;
after he has attained the age of fifty-five
Years.
The Government employee would stand retired
immediately on payment of three months' pay and allowances in lieu of the
notice period and will not be in service thereafter." Rule 3.26(c), which
is a special rule applicable to Government employees in the Haryana Service of
Engineers Class I, will govern the case of the appellant as the special
overrides the general. Admittedly he was working as the Superintending Engineer
for the last so many years on the date when the impugned order of his premature
retirement was passed by the Governor. This rule provides an immunity to the
engineer who has attained the rank of Superintending Engineer. The appellant,
therefore, gets the protection of clause (l) of rule 3.26(c).
Shri Harbans Lal appearing for the State of
Haryana in reply refutes the contention raised by Dr. Chitale and contends that
the second part of rule 3.26(c)(l) only authorises the Secretary to Government
in consultation with the Finance Department, to reduce the age of
superannuation below 58 and above 50 with regard to class I officers of the
P.W.D. if they have not attained the rank of Superintending Engineers. This
rule according to him is an enabling provision authorising the secretary to
Government to reduce the age of superannuation of all Class I officers of the
P.W.D. if they have not attained the rank of Superintending Engineers and if
they did so then all such officers who have attained 50 years should retire.
735 The contention of Shri Harbans Lal has
absolutely no force for a variety of reasons: Firstly, the heading 'Compulsory
Retirement' is wide enough to include premature retirement within its fold. A
Government employee in the Haryana service of Engineers has no right to
continue in service if he has reached the age of superannuation which is 58
years in the case of engineers. he has perforce to retire unless he has been
granted an extension. Likewise an engineer who has not reached the age of P
superannuation but is made to retire prematurely, his retirement is as much a
compulsory retirement as that of an employee who has attained the age of
superannuation. It will, in our opinion, not be correct to say that the age of
superannuation in case of engineers who have not attained the rank of
Superintending Engineers has been reduced to 50 years. his contention, if
accepted, would result in an absurdity. The inevitable result will be that all
Executive Engineers will have to retire at the age of 50 which could never nave
been intended by the rule makers. The argument of the learned counsel for the
State is a desperate one indeed- L Shri harbans Lal tried to bring this case
within the fold of rule 3.26(d). This rule gives the appointing authority the
absolute right to retire any Government employee other than class IV Government
employee by giving him notice of not less than three months in writing or three
months pay and allowances in lieu of such notice.
This rule is applicable to all Government
employees but not to engineers of the P.W.D. for whom there is a special rule.
In our opinion it is a supplement to rule 3.26(a) because it supplies the
procedure to be adopted in case of premature retirement of other Government
servants. We get support for our view from M. Narasimbachar v. The State of
Mysore, [1960] 1 S.C.R. 981. That case involved the interpretation of article
294 provides that a Government servant in superior or inferior service who has
attained the age of fifty five years may be required to retire unless the
Government considers him efficient and permits him to remain in service. But as
the premature retirement of an efficient Government servant imposes a needless
charge on the State this rule should be worked with discertion. Article 297
laid down that a Government servant in superior service who has attained the
age of fifty-five years may at his option retire from service on a
superannuation pension. It was sought to be urged in that case that article 297
gave option to the public servant whether he retires at that age or not.
736 This Court interpreting article 297 held
that this article was complementary to article 294(a) which gives government
the power of keeping Government servants in service beyond the age of 55 years.
Article 297 allows the Government servant, if the Government wants to keep him
in service after 55 years to opt for retirement. It does not mean that it is
entirely at the option of the Government servant to continue beyond the age of
55 years ant the Government cannot retire him at that age if he does not
exercise the option.
That decision involved the interpretation of
different rules but the reasoning adopted in that case is applicable in the
construction of rule 3.26(d) of the Punjab Civil Services Rules.
Shri harbans Lal in support of his contention
referred to the old corresponding rules. The relevant portion of the old rules
is quoted hereunder:
"Rule 3.26 of C.S.R. (pb) 1941 Edition.
Compulsory Retirement 3.26 (a) Except as
otherwise provided in the other clauses of this rule the date of compulsory
retirement of a Government servant, other than a ministerial servant, is the
date on which he attains the age of 55 years. He may be retained in service
after the date of compulsory retirement with the sanction of competent
authority on public grounds, which must be recorded in writing, but he must not
be retained after the age of 60 years, except in very special circumstances.
(b).....
(c) The following are special rules
applicable to particular services :- (i).....
(ii) Except as otherwise provided in this
sub- clause Civil Engineers of the Public works Department must retire on
reaching the age of 55 years, and may be required by the competent authority to
retire on reaching the age of 50 years if they have not attained the rank of
Superintending Engineer.
737 Rule 3.26 of Punjab C.S.R. Vol. I, Part
I, 1953 Edition.
Compulsory Retirement 3.26(a) Except as
provided in other clauses of this rule, the date of compulsory retirement of a
Government servant other than a Class IV Government servant, is the date on
which he attains the age of 55 years. he must not be retained in service after
the age of compulsory retirement, except in exceptional circumstances with the
sanction of competent authority on public grounds, which must be recorded in
writing.
(b)- (c) The following are special rules
applicable to particular services (i)....
(ii) Except as otherwise provided in this
sub- clause, Government servants in the Punjab Service of Engineers Class I (B
& R, I.B. and Electricity) must retire on reaching the age of 55 years, and
may be required by the competent authority to retire on reaching the age of 50
years, if they have not attained the rank of Superintending Engineer.
Rule 3.26 of Punjab Civil Services Rules,
Volume I, Part I. 1963 Edition.
Compulsory Retirement 3.26(a) Except as
provided in other clauses of this rule, the date of compulsory retirement of a
Government servant which he attains the age of 58 years. He must not be
retained in service after the age of compulsory retirement, except in
exceptional circumstances with the sanction of competent authority on public
grounds, which must be recorded in writing.
(b)....
(c) The following are special rules
applicable to P.W.D. Officer:- (1) Except as otherwise provided in this sub-
clause, Government servants in the Punjab Service of 738 Engineers, Class I (B
& R, I.B. Electricity) must retire on reaching the age of 58 years, and may
be required by the competent authority to retire on reaching the age of 58
years if they have not attained the rank of Superintending Engineer.
Clause (d) inserted in rule 3.26 vide
Notification No. 4118-3FR-74/24837 dated 12th July 1974.
3.26(d) The appointing authority may, if it
is of the opinion that it is in the public interest so to do, retire any
Government servant, other than a Class IV Government servant, by giving him a
notice of not less than three months in writing:
(i) If he is in class I or class II service
or post and had entered Government service before attaining the age of
thirty-five years, after he has attained the age of fifty years, and (ii)
........ ...... ...... ....." A bare perusal of the old rules will
indicate that an engineer who has attained the rank of Superintending Engineer
in the P.W.D. (B & R Branch) had always the immunity ever since the
provision for premature retirement came into force. The old corresponding rules
do not improve the position for the State. They rather support the contention
of the appellant.
We enquired from Shri Harbans Lal Whether any
other engineer in the Engineering Service of P.W.D. who had attained the rank
of Superintending Engineer had ever been prematurely retired and he frankly
admitted that there has been no such case.
For the foregoing discussion the appeal must
succeed.
It is accordingly allowed with costs and the
order of the High Court dated 5th January, 1984 is set aside. The writ petition
stands allowed and the order of premature retirement dated 18th December, 1981
is quashed. The appellant shall be deemed to be in continuous service. He is
entitled to his salary; emoluments and other consequential benefits to which he
would have been entitled to if he had not been prematurely retired.
M.L.A. Appeal allowed.
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