A.L.
Ahuja Vs. Union of India [1987] INSC 186 (24 July 1987)
MISRA
RANGNATH MISRA RANGNATH DUTT, M.M. (J) KANIA, M.H. CITATION: 1987 AIR 1907 1987
SCR (3) 632 1987 SCC (3) 604 JT 1987 (3) 148 1987 SCALE (2)103
ACT:
Fundamental
Rule--R.56(j)(i)--Applies to Government servants in Class I or Class II Service
or post, whether on substantive, temporary or officiating basis.
HEADNOTE:
Fundamental
Rule 56(j) confers power on the appropriate authority to compulsorily retire a
Government servant, if it is in the public interest to do so, by giving 3
months' notice or 3 months' pay and allowances in lieu of such notice; while
sub-cl. (i) thereof states that a public servant in class I or class II service
or post who had entered service before attaining the age of 35 years can be
retired after he has attained the age of 50 years, sub-cl. (ii) thereof states
that any other public servant can be retired after he has attained the age of
55 years. In Union of India v. K.R. Tahiliani & Anr., this Court had held
that F.R. 56(j) is meant to cover only those who are in a post on a regular
basis, i.e., in a substantive capacity, and not on an officiating basis only.
Basing his case on this decision, the petitioner, who had been compulsorily
retired while working in a class II post In an officiating capacity, challenged
the order of his compulsory retirement.
Overruling
the decision in Union of India v. K.R. Tahi- liani & Anr., but, allowing
the petition on the ground that the Delhi High Court, relying upon that decision,
had granted relief to persons similarly placed as the petitioner, and,
directing payment of his salary and allowances upto the date of his normal
superannuation,
HELD:
Sub-clause (1) of r. 56(j) of the Fundamental Rules applies to Government servants
in Class I or Class II service or post on substantive, temporary or officiating
basis. [638E-F] There is no reference to officiating service in sub-cl. (i).
The relevant words used in sub-cl. (i) are "if he is in CIasa I or CIasa
II service or post." A person can be in Class I or CIasa II service or
post even when he holds a post of either ciasa substantively or temporarily or
on officiating basis. Instances are abundant where officers are promoted to
CIasa I or Class II service or post of such class on officiating basis and 633
such officiation lasts for a number of years. Officiating promotion certainly
does not confer a right to the post and at any time the Government servant may
be sent back to his substantive post. There is, however, no reason why sub-cl.
(i) should be confined to service or post held on substantive basis. It is not
disputed that a person who is in Class I or Class II service or post is in such
service or post as covered by sub-cl. (i). The possibility of such incumbent
being sent back to the substantive post is not at all relevant in the matter of
exercising powers of compulsory retirement. If the officiation is not brought
to an end by reverting the Government servant to his substantive post before
the power of compulsory retirement is exercised, the Government servant
concerned must be taken to be in Class I or Class II service or post at the
relevant time and would come within the ambit of sub-cl. (i). There is no
warrant for the conclusion that officiating Government servants in Class I or
Class II service or post are outside the purview of sub-cl. (i). The possibility
of a reversion to the substantive post is not germane to the exercise of power
contained in F.R. 56. [637F-H; 638A-C] The purpose of F.R. 56(j) is to confer
power on the appropriate authority to compulsorily retire a Government servant
in the public interest and the classification of Government servants into two
categories covered by sub-cls. (i) and (ii) has a purpose behind it. If the
condition indicated in sub-cl. (i) is satisfied, namely, the Government servant
is in Class I or Class II service or post and he had entered into service
before attaining the age of 35 years, and has attained the age of fifty, the
further condition that he must substantively belong to the two classes of
service or post cannot be introduced into the scheme. The purpose of the
sub-clauses is to classify Government servants into two categories and sub-cl.
(i) takes within its sweep those Government servants who at the relevant time
are in Class I or Class II service or post, whether substantively, temporarily
or on officiating basis. [638C-E] Union of India v. K.R. Tahiliani & Ant.,
[1980] 1 S.L.R. 847, over rulled.
ORIGINAL
JURISDICTION:
Writ Petition No. 7338 of 1981. etc. (Under Article 32 of the Constitution of
India).
Ram
Jethmalani and Miss Rani Jethmalani for the Petitioner. G. Ramaswamy,
Additional Solicitor General, R.P. Srivastava 634 and Miss. A. Subhashini for
the Respondent.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. The petitioner of
this application under Article 32 of the Constitution is an engineer who was
employed in the Central Public Works Department under the Ministry of Works and
Housing in Government of India and was compulsorily retired by order dated
3.8.1976 with effect from 5.11.1976 made under Rule 56(j) of the Fundamental
Rules. He has assailed that order for retirement and has claimed payment of
remuneration which he would have been entitled to draw upto the normal date of
superannuation.
The
short facts are these. The petitioner was born on 10.2.1922 and secured his
first appointment as a Section Officer under the-named employer on 22.10.1947.
He was promoted as officiating Assistant Engineer in class II service with
effect from' 25.5. 1954, and came to be confirmed as Section Officer by an
order dated 8.10.1955. On 3.7.1961, he was further promoted as officiating
Executive Engineer in Class I service but on 4.9.1965, he was reverted to the
post of Assistant Engineer in officiating position and was continuing in that
post when he was compulsorily retired.
The
vires of Rule 56(j) of the Fundamental Rules as also the power to compulsorily
retire a public servant have been upheld by this Court and do not require to be
re-examined.
The
basis of attack to the impugned order is as specified in Ground No. A and is to
the following effect:
"The
impugned order is contrary to the judgment delivered by this Hon'ble Court on
26.2.1980, copy at Annexure-C hereto. (Union of India v. K.R. Tahiliani and Anr.)-[1980]
1 SLR 847. According to the said judgment F.R. 56 (j)(i) has no application to
officiating government servants, hence can have no application to the
petitioner since the petitioner was an officiating government servant."
The impugned notice ran thus:- "No. 32/452/66--EC. 111 Government of India
Central Public Works Department New Delhi, the 3.8.76 635 ORDER WHEREAS the
Engineer-in-Chief is of opinion that it is in public interest to do so:
NOW,
THEREFORE, in exercise of the powers conferred by clause (j) of Rule 56 of the
Fundamental Rules, the Engineer-in-Chief hereby gives notice to Shri A.L.
Ahuja, Assistant Engineer (Civil), at present under suspension, that he, having
already attained the age of fifty years on 10.2.1972, shall retire from service
with effect from the forenoon of 3rd November, 1976, or, from the date of
expiry of three months computed from the date of issue of the service of this
notice on him, whichever is latter.
Sd/
(V.R . VAISH) ENGINEER- IN-CHIEF To Shri A.L. Ahuja, Assistant Engineer
(Civil), (Under Suspension), A11/85, Lajpat Nagar, New Delhi- 110024." It
is clear from it that the petitioner attained the age of 50 years on 10.2.1972
and, therefore, on the date of the order he had completed the age of 54 years.
Admittedly, he was holding a class II post when the impugned order was served
on him. Fundamental Rule 56(j) under which notice was given provides:-
"(j) 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 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 (and had entered Government
service before attaining the age 636 of thirty-five years), after he has
attained the age of fifty years;
(ii)
in any other case after he has attained the age of fifty-five years;
..........................................................."
The appropriate authority is entitled to exercise power under clause (j) in the
case of a Government servant in Class I or Class II service or post where he
entered into service before attaining the age of 35 years after the said
servant attained the age of 50 years; and in other cases after he has attained
the age of 55 years. In the instant case, the petitioner was promoted as
officiating Assistant Engineer which is a Class II post on 25.5. 1954 and
continued to hold that post when the order of compulsory retirement was passed.
By 25.5.1954 the petitioner had not attained the age of 35 years.
As
already indicated above he had crossed the age of 50 years but had not attained
the age of 55 years by the date of the impugned order. Therefore, sub-clause
(1) was not contravened when the order was made. It has been argued before us
that as the petitioner was holding an officiating appointment in Class 117 he
could not have been compulsorily retired under sub-clause (i).
Support
is claimed from the observations in the Tahiliani's case (supra). The sole
question that fell therein for decision before this Court was whether a
Government servant officiating in Class I or Class II service or post could be
retired compulsorily by exercising the power under Rule 56(j)(i) after he has
attained the age of 50 years. The two Judge Bench which decided the case held:-
" An officiating hand has no right to the post and is perhaps a fleeting.
bird who may have to go back to the substantive post from which he has been
promoted on an officiating basis what is more to the point, a person who has
been appointed de novo may begin his service on an officiating basis or on a
temporary basis and it is obvious that he has no right to the post and cannot
be strictly said to be in that service or post as a member of that service. In
short, an officiating Government servant does not really belong to Class I or
Class II service until he acquires a right thereon. Even viewed closely and
meticulously, the structure of the clause, namely, "if he is in Class I or
Class II 637 service or post", emphasises the nature of the service or
post vis-a-vis the Government servant concerned. We need not go into the
semantic shapes, lexical niceties or linguistic nuance but only go through the
meaning and purpose of the provision. When a Government servant belonging to a
Class I or Class II service or post on regular basis has to be retired
compulsorily, Rule 56(j)(i) comes to the rescue of the Government. But if he is
only a temporary hand, he has no right to the post and can always be reverted
to the post, if any, on which he has a lien. Similar is the position of an
officiating hand. Thus we have reached an inevitable conclusion that Rule 56(j)
is meant to cover only those who are in a post on a regular basis, i.e. in a
substantive capacity, and not on an officiating basis only." Strong
reliance was placed by counsel for the petitioner on the reasons extracted
above.
It
is clear that sub-clause (ii) is the general rule applicable to all Government
servants and sub-clause (i) carves out a class of Government servants into a
category and makes a special provision. We have already indicated that
sub-clause (ii) did not apply to the facts of this case as the petitioner had
not attained the age of 55 years by the date of the order. The observations
made in Tahiliani's case indisputably support the petitioner. But the correctness
thereof is disputed by learned Additional Solicitor General appearing for the
Union of India and that is why this writ petition was directed to be heard by a
larger Bench.
There
is no reference to officiating service in sub- clause (i). The relevant words
used in sub-clause (i) are "if he is in Class I or Class II service or
post". A person can be in Class I or Class II service or post even when he
hold a post of either class substantively or temporarily or on officiating
basis. Instances are abundant where officers are promoted to Class I or Class
II service or post of such class on officiating basis and such officials lasts
for a number of years. Officiating promotion certainly does not confer a right
to the post and at any time the Government servant may be sent back to his
substantive post. There is, however, no reasons why sub-clause (i) should be
confined to service or post held on substantive basis. Learned counsel for the
petitioner does not dispute the position that a person who is in Class I or
Class II service or post is in such service or post as covered by sub-clause
(i). The possibility of such incumbent being sent back to the 638 substantive posts
is not at all relevant in the matter of exercising powers of compulsory
retirement. If the official is not brought to an end by reverting the
Government servant to his substantive post before the power of compulsory
retirement is exercised, the Government servant concerned must be taken to be
in Class I or Class II service or post at the relevant time and would come
within the ambit of sub-clause (i). There is no warrant for the conclusion that
officiating Government servants in Class I or Class II service or post are
outside the purview of sub-clause (i). The possibility of a reversion to the
substantive post is not germane to the exercise of power contained in F.R. 56.
The
purpose of Fundamental Rules 56(j) is to confer power on the appropriate
authority to compulsorily retire Government servant in the public interest and
the classification of Government servants into two categories covered by sub-
clauses (i) and (ii) has a purpose behind it. If the condition indicated in
sub-clause (i) is satisfied, namely, the Government servant is in Class I or
Class II service or post and he had entered into service before attaining the
age of 35 years, and has attained the age of fifty, the further condition that
he must substantively belong to the two classes of service or post cannot be
introduced into the scheme. The purpose of the sub-clauses is to classify
Government servants into two categories and sub-clause (i) takes within its
sweep those Government servants who at the relevant time are in Class I or
Class II service or post, whether substantively, temporarily or on officiating
basis.
We
would accordingly hold that the ratio of the decision in Tahiliani's case is
not correct and sub-clause (i) of Rule 56(j) applies to Government servants in
Class I or Class II service or post on substantive, temporary or officiating
basis.
On
this conclusion the writ petition is liable to be dismissed. It has been
represented to us by counsel for the petitioner that the similarly placed
persons had gone before the Delhi High Court challenging the orders of
compulsory retirement and the Delhi High Court relying upon Tahiliani's case
give them relief. Such judgments have become final and Union of India has given
effect to the decisions of the Delhi High Court. When this was put to learn
Additional Solicitor General he agreed that the Union of India will have no
objection to treat the petitioner alike and would be prepared to give the same
relief to the petitioner.
The
petitioner would have superannuated from service on 29.2.1980 if he had not
been compulsorily retired with effect from 639 5.11. 1976. Even if the writ
petition is allowed and the order of compulsory retirement is set aside the
petitioner cannot go back to service. But he would be entitled to pecuniary
benefit of salary and allowances admissible under the rules. Accordingly, we
allow the writ petition and direct the respondent to pay to the petitioner the
salary and other allowances which would have been payable for the period
between 5.11. 1976 and 29.2 1980.Such payment is made within two months from
today. There will be no order for costs.
WRIT
PETITION NOS. 6251 & 8189 OF 1981 Each of the petitioners in these two writ
applications under Article 32 of the Constitution was employed in the Central
Public Works Department in the Ministry of Works and Housing of Government of
India and has been compulsorily retired under Fundamental Rule 56(j). The facts
of each of these applications are more or less similar to those in Writ
Petition No. 7338 of 1981 which we have disposed of today.
For
the reasons given therein we allow each of the writ petitions and quash the
order of compulsory retirement made against each of the petitioners. By now
both the petitioners would have retired from service and, therefore, they
cannot be resorted in service. They would, however, be entitled to salary and
other service allowances payable to them from the date of compulsory retirement
till the date of their normal superannuation. There will be no order for costs.
H.L.C.
Petition allowed.
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