K.R Tahiliani Petitioner v. Union Of India & Another S

H.L Anand, J.:— The only question that must be considered in this petition of a former civil servant is as to whether he could be legitimately retired compulsorily under Rule 56 (j) (i) of the Fundamental Rules (for short, the rule), on attaining the age of 50 years. The other questions raised by the petitioner do not survive at present in view of the claim of privilege set up on behalf of the Union.

2. On March 5, 1949 the petitioner joined government service. On December 11, 1974 he attained the age of fifty years. On July 17, 1975 the Engineer-in-Chief made an order (Annexure I) to the effect that the petitioner, having attained the age of fifty years, shall retire from service. The impugned order was made in purported exercise of the powers conferred by the Rule on the ground that it was in public interest to retire the petitioner. On the date of the order the petitioner held in a substantive capacity the post of Section Officer (Civil), formerly known as Junior Engineer, a class III post, but had, since May 20, 1968, been working as Assistant Engineer, a class II post, in an officiating capacity to which he had been appointed on an ad hoc basis.

3. The petitioner assailed the impugned order on a number of grounds set out in the petition alleging, inter alia, that the order was neither based on any application of mind nor otherwise supported by any material, which may be said to be germane to the question of compulsory retirement. The impugned order was sought to be justified, inter alia, on the ground that the service record of the petitioner was throughout “generally poor” and the premature retirement was, therefore, in public interest. The challenge to the validity of the order was sought to be supported with reference to the service record of the petitioner, but the challenge could not fructify because the material part of the service record was sought to be protected from compulsory disclosure by a claim of privilege. The claim of privilege was, however, disallowed but the operation of the order, disallowing the claim, was stayed by a Division Bench of this Court in an appeal against the order rejecting the claim. The appeal is still pending. The challenge was, therefore, confined to the ground that the petitioner, having held a class III post substantively and having, therefore, never been “in class I or class II service or post” the Rule could not be invoked and the question whether the petitioner should be retired prematurely could be legitimately considered only under Rule 56 (j) (ii) after the petitioner had attained the age of 55 years.

4. According to the petitioner, on a correct interpretation and true construction of the Rule it must be held that a civil servant could be compulsorily retired after he had attained the age of 50 years only if he had been absorbed in class I or class II service or held a class I or class II post in a substantive capacity and that in case a civil servant belonged to a class III service or held a class III post in a substantive capacity he could not be compulsorily retired before he attained the age of 55 years merely because he was holding a class I or class II post on an ad hoc basis or in an officiating capacity and that such a civil servant could be dealt with only under sub-clause (ii) of the Rule after he had attained the age of 55 years. In other words, according to the petitioner, the criterion for the application of the Rule was as to the service or post which was substantively held by a civil servant.

5. On the other hand it is the contention of the Union that a civil servant, who was holding a class I or class II post in an officiating capacity or on an ad hoc basis was as much “in class I or class II service or post”, within the meaning of the Rule as a civil servant, who is absorbed in the said service or substantively holds such a post. It was, therefore, urged that a civil servant, who substantively held a class III post or had been permanently absorbed in class III service, could be dealt with under the Rule if he was holding a class I or class II post in an officiating capacity or on an ad hoc basis and be retired after he had attained the age of 50 years.

6. F.R 56 deals with the subject of retirement. The general rule is contained in clause (a) of the said Rule, which provides that every government servant shall retire on the day he attains the age of 58 years. Two exceptions to the said Rule are provided in clauses (j) and (k) of it. While clause (j) recognizes the absolute right of the government to retire any government servant by giving him notice of not less than three months or three months pay and allowances in lieu of notice, clause (k) provides for the converse in reserving the right of a government servant to similarly retire from service by giving a notice of not less than three months in writing to government. The further condition in both these exceptions is as to the stage at which government could exercise the absolute right to retire a government servant or a government servant could exercise the right to opt out of service. This is how clause (j) and (k) of the said Rule run:

“ (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 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;

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),

(k) Any Government servant may by giving notice of not less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years 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, and in all other cases after he has attained the age of fifty-five years;

Provided that: —

(a) 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 or to a Government servant referred to in clause (f); and

(b) it shall be open to the appropriate authority to withhold permission to a Government servant under suspension who seeks to retire under this clause”.

At the foot of the Rule appears, inter alia, Note 1 which is in these terms:

“Note 1. — ‘Appropriate authority’ means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire”.

6. The various legal incidents of service under the State in India have, by and large, come to be crystalized with the series of judgments of the Supreme Court and, following that, of the different High Courts. It is well settled that a civil servant may or may not have a right to a post which he holds. Where he does not have any such right there is no restriction on the power of the State to terminate the services of a civil servant subject to the requirement of a notice or salary in lieu of notice and the only restriction in dealing with such a civil servant that is recognised in law is that where his services are terminated with a view to punish him for misconduct, as distinguished from termination simliciter, it would constitute removal and entitle him to a reasonable opportunity of being heard. Where, however, a civil servant has a right to a post, like a permanent Government servant or a Government servant who is quasi permanent, even a termination similicitor would be per se punitive in that it would deprive the civil servant of the right to hold the post. Such a civil servant would have the right to continue to remain, in service until he resigns or reaches the age of superannuation or is compulsorily retired in accordance with the rules or is otherwise removed from service. The incidents of retirement are also well recognised. A civil servant may retire on reaching the age of superannuation, which is by mere efflux of time. For such a retirement nothing further needs to be done by a civil servant or the State. A civil servant may also be prematurely retired in accordance with the rules, in which case the requirements of the rules must be satisfied. A civil servant may also opt out of service by obtaining premature retirement in accordance with the rules. Retirement, whether on reaching the age of superannuation or otherwise whether compulsory premature retirement or voluntary premature retirement, are incidents which are peculiar to a civil servant who is in permanent Government service and has, therefore, the right to the pest. The concept of retirement would be wholly foreign to a temporary Government servant, who has no right to the post, even though it may be possible to envisage in theory an unfortunate temporary Government servant who may have remained temporary till he reached the age of superannuation. The resort to retirement, compulsory or voluntary is, however, unnecessary in the case of a temporary Government servant because his services are liable to be terminated in accordance with the rules at any time and he is equally entitled to opt out of service at any time. The provision with regard to retirement of a civil servant has, therefore, no meaning in relation to a temporary Government servant and even in actual practice there would perhaps be never an occasion in which a temporary Government servant needs to be retired.

7. In interpreting the true meaning and import of Fundamental Rule 56 (j) it is necessary not only to keep the phraseology of the Rule in view, which is what has normally to be done to arrive at a true meaning of any provision, but also to keep in view the legal incidents of retirement from civil service and the concept of retirement in civil service referred to above.

8. The expression ‘in’ occurring in sub-clause (i) of clause (j) of F.R 56, in the context in which it has been used, would appear to connote the absorption in the service or the post with reference to which it is used or of belonging to the service. The expression appears to be a deliberate departure from the use of the expression ‘holding’ with reference to a post, which may either be in a substantive or a temporary or officiating capacity or even on an ad hoc basis. This connotation of the expression ‘in’ is reinforced by the concept of retirement, which is peculiar to permanent service and would, ordinarily, have no relevance to temporary service or service on an officiating basis or ad hoc charge of a particular post in any service. Retirement is one of the modes by which the relation of master and servant is served and retirement, therefore, is from service and not from a particular post. If retirement, therefore, as a concept is peculiar to permanent service and is wholly foreign to temporary service or an ad hoc or officiating status, it stands to reason that the stage at which the question of premature retirement could be considered must also have relation to the service or post, which a civil servant holds permanently, and to which he, but for the liability to retire, have the right. It must, therefore, be held that the petitioner could be prematurely retired from service after he attained the age of 50 years only if he had been absorbed in class I or class II service or permanently held a class I or class II post. This construction is further reinforced by the expression ‘absolute right’ in the main body of clause (j). The Rule emphasises the absolute right to retire a government servant because it is an exception to the general rule which entitles a government servant to continue in service till he attains the age of superannuation. Where a civil servant has no right to the post and is liable to being asked to leave at any time without any reason the need to emphasise the absolute right to retire him has hardly any meaning. To hold to the contrary would also lead to an anamolous position. A temporary government servant could be asked to go merely by a month's notice or on pay in lieu thereof. Clause (j), which recognises the absolute right to retire a government servant, would entitle such a civil servant to notice of not less than three months or three months pay in lieu of notice. Controversy if a temporary government servant was entitled to opt out of service by a simple one month's notice there is the need for a provision in clause (k) of the rule which requires him to give at least three months' notice. The need for a provision for compulsory retirement before the age of superannuation arises out of the inability of the government to dispense with the services of such a civil servant without a provision for premature retirement. An officiating or ad hoc charge that a permanent civil servant may have of a post would not determine the liability to being consideration for premature retirement. The civil servant could be deprived of that charge without an order of retirement. If retirement has relation to the substantive service it is that service alone which would be determinative of the stage at which the question of premature retirements could be considered. The definition of the expression ‘appropriate authority’ in Note I, which was pressed into service in support of the contention on behalf of the Union, does not appear to be of any consequence. The Rule had used the expression ‘appropriate government’ and for avoidance of doubt it was perhaps thought necessary to define the expression to mean the authority which has the power to make substantive appointments to the post or service from which the government servant was retired or wants to retire. The definition does not in any way support the contention that is urged on behalf of the Union.

9. It is true, that even a permanent government servant, who is absorbed in a particular class of service or substantively holds a particular post, may, at the same time, be holding in an officiating capacity or on an ad hoc basis a higher post or a post in a service higher than the one to which he belongs, as in the present case. The Rule does not exclude such a possibility but has advisedly made no provision for retirement in relation to a service or post, other than the one to which the civil servant belongs or which he substantively holds indicating thereby, by necessary implication, that the two stages at which the question of premature retirement could be considered under sub-clauses (i) and (ii) of clause (j) of the Rule have reference only to the service to which the civil servant belongs or the post which he substantively holds. This is as it should be because retirement has relation to the basic service and not to a post that a civil servant may hold for the time being. Another reason for the Rule may perhaps be that if it is intended to serve the relationship between the civil servant and the service or the post that he holds in an officiating capacity or on an ad hoc basis it could be effected by a simple reversion to the next lower substantive post without resort to the drastic remedy of a retirement. Similarly if a civil servant is retired from service to which he belongs or the post that he substantively holds, he ceases to be in service and the officiating status or ad hoc appointment that he may hold in relation to a higher post or any superior service falls with it.

10. It follows, therefore, that the petitioner, who did not at any stage belong to any class I or class II service or permanently held any such post, could not have been dealt with under sub-clause (i) of clause (j) of the rule and be made to retire before he attains the age of 55 years. The petitioner could only have been treated under sub-clause (ii) of clause (j) of the said Rule after he has attained the age of 55 years. The impugned order of retirement is, therefore, liable to be struck down as being premature and, therefore, in excess of powers.

11. In the result the petition succeeds, the impugned order of premature retirement (Annexure I) is quashed. The respondents, however, would be at liberty to consider the question of premature retirement of the petitioner in terms of sub-clause (ii) of clause (j) of the Rule at an appropriate stage in accordance with law.

12. The petitioner would also have his costs. Counsel's fee is assessed at Rs. 500.

Petition accepted.