Narasimham, C.J:— The petitioner was an Income-tax Officer. He has challenged the validity of the order of the Commissioner of Income-tax, Bihar and Orissa, dated the 27th July, 1964 (Annexure D), which is to the following effect:—

“Whereas yon have completed the age of 55 years and whereas it has been decided to dispense with your service in terms of para 6 of the Government of India, Ministry of Home Affairs O.M No. 33/18/62-Ests.(A) dated the 30th November, 1962, you are hereby given this notice of three calendar months from the date of its receipt and you shall retire from Government service on the expiry of the said period of notice.”

2. Under the old rules the age of superannuation for all Government servants (with certain exceptions which are not material here) was 55 years. This age limit was raised to 58 years by O.M No. 33/18/62-Ests. (A), dated the 30th November, 1962, from the Ministry of Home Affairs. The relevant extracts from that notification are given below:—

“Government have had under consideration for some time past the question whether the age of compulsory retirement of Government servants should be raised above 55 years.

2. It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years subject to the following exceptions:—

(i)…….

(ii)………

(iii)……

4. …….

6. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reason. This will be in addition to the provisions already contained in rule 2(2) of the Liberalised Pension Rules, 1950, to retire an officer who has completed 30 years' qualifying service, and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may, utter attaining the age of 55 years, voluntarily retire after giving three months' notice to the appointing authority.

3. The petitioner, on his own statement, attained the age of 55 years on the 15th June, 1964 (see paragraph 4 of Annexure H). The Commissioner of Income-tax, therefore, in purported exercise of the power conferred by the aforesaid notification retired him from service with three months' notice. It was stated in paragraph 11 of the counter-affidavit filed by one Shri Trailokya Narayana Sahay on behalf of the Income-tax Department that the petitioner's career in the Department was very unsatisfactory, his merit was below the average, his rate of disposal was low and his relationship with his colleagues and superiors was not good. Hence it may be taken as admitted by the respondents that in pursuance of the power expressly conferred by paragraph 6 of the aforesaid notification the petitioner was superannuated with a view “to weed out unsuitable employees after they have attained the age of 55 years”. The impugned order has been sought to be justified on the ground that it was issued validly in exercise of the power conferred by the said notification. Mr. Ghosh for the petitioner has challenged the validity of the said order on the following three main grounds:—

(i) The notification of the Government of India was merely in the nature of an administrative instruction and not a rule as contemplated in Article 309 of the Constitution.

(ii) The impugned order was passed during the pendency of a regular departmental proceeding against the petitioner on specific charges. Hence it was, in essence, an order of punishment, and as it was passed without complying with the provisions of Article 311(2) of the Constitution, the order was bad.

(iii) The order was passed mala fide.

4. Before discussing these contentions, I may refer to the following unchallenged facts. On the 22nd February, 1964, the Commissioner of Income-tax, Patna, (hereinafter to be referred to as “the Commissioner”), sent for the petitioner and told him that there was a proposal to take disciplinary action against him for his negligence and lack of devotion to duty as In-come-tax Officer, Ward A, Gaya Circle. He further told him that if the petitioner was unwilling to face the charges he would be retired compulsorily. The petitioner then, on the 5th March, 1964, (Annexure A), informed the Commissioner that he was ready to face the charges. Then specific charges were made against him on the 12th March, 1964, and he was called upon to submit his written statement, if any, to those charges. After some correspondence the petitioner submitted his written statement (Annexure A-1) on the 12th June, 1964, denying the charges.

5. Then, on the 20th June, 1964, (Annexure B), the Commissioner directed one Shri P.L Malhotra, Inspecting Assistant Commissioner, Northern Range, to hold a regular departmental inquiry in accordance with the provisions of the Central Civil Services (Classification Control and Appeal) Rules, 1957. Shri Malhotra also, on the 20th July, 1964, intimated to the petitioner (Annexure C) about his appointment as Enquiry Officer and directed him to appear before him at Patna on the 4th August, 1964, to give his oral statement with a view to supplement and explain his written statement. He also enquired from the petitioner the names of his witnesses, if any. Seven days later, while the enquiry was pending before Shri Malhotra, the impugned order (Annexure D) was passed compulsorily retiring the petitioner after giving him three months' notice. But notwithstanding this order of retirement, the departmental proceeding continued. Shri Malhotra informed the petitioner on the 6th August, 1964 (Annexure G) that in the departmental proceeding no evidence would be led on behalf of the Income-tax Department in support of the charges framed against the petitioner.

6. The petitioner also informed the Enquiring Officer that, as no evidence would be led by the Department in support of the charges, he also would not adduce any evidence in defence. Thus, the departmental enquiry remained practically at a standstill. In the meantime the petitioner, on the 14th October, 1964 (Annexure H), submitted a representation to the Chairman, Central Board of Revenue, against the order of the Commissioner compulsorily retiring him from service. A further representation was submitted (Annexure I) on the 2nd April, 1965, and again on the 5th August, 1965 (Annexure I). On the 7th September, 1965 (Annexure K), the was informed by the Commissioner that his representation addressed to the superior authorities was rejected. On the same day the Commissioner informed him (Annexure K-1) that the departmental proceedings against him was dropped. Till the 7th September, 1965, therefore, the petitioner was described as Income-tax Officer on leave, both on his own representations to superior authorities (Annexures H, I and J) and in the latter addressed to him by the Commissioner (Annexures FC and K-1).

7. The first point urged by Mr. Ghosh cannot stand scrutiny. It is true that under the old Civil Service Regulations the age of superannuation for all Government servants was ordinarily 55 years (see Regulation 459). Mr. Ghosh rightly conceded that as regards Central Government servants, the President could, by rules made under the proviso to Article 309, alter the said age-limit. But, according to him, the notification of the Union Home Ministry, mentioned in paragraph 1, will not be a rule as required by the proviso to Article 309, and that it is merely in the nature of an administrative instruction which, unless followed by a regular statutory rule, cannot have any effect. This argument is, however, self-destructive. It is by virtue of paragraph 2 of the said notification that the petitioner can claim the right to remain in service till the 58th year. If, according to him, the entire notification should be held to be merely an administrative instruction, the order retiring him on his attaining the 55th year cannot be challenged on any ground whatsoever. It would be inconsistent for the petitioner to say that paragraph 2 of the aforesaid notification should be held to apply to him and not paragraph 6. Both the paragraphs have the same force, either statutory or administrative.

8. Apart from this objection, neither Article 309 nor any other provision of the Constitution expressly lays down any particular form in which a rule under an Article of the Constitution should be made. Even if the word “rule” has not been used by the Home Ministry in the said notification, nevertheless so long as the power admittedly exists by virtue of the proviso ‘o Article 309, the Notification will not become invalid merely because it uses the word ‘orders’ and not ‘rule’. In these matters the substance is more important than the form.

9. Following the aforesaid notification issued by the Union Ministry, the Government of Bihar also issued a similar notification raising the age of superannuation to the 58th year, subject to identical restrictions and exceptions. The validity of the Bihar notification was challenged before this Court, and in P.N Choudhary v. State of Bihar, 1965 BLJR 918, a Bench of this Court held the notification to be valid. As these reasons apply with equal force to the notification of the Union Home Ministry also, Mr. Ghose properly did not challenge the Constitutional validity of the said notification.

10. The second point urged by Mr. Ghose is also concluded by several judgments of the Supreme Court. Merely because a regular departmental proceeding had been initiated against the petitioner and was still in its preliminary stage when the impugned order compulsorily retiring him from service was passed, that order will not amount to punishment. In the well-known Champak Lal's case, (1964) 5 SCR 190 : (AIR 1964 SC 1854), the facts were of a similar type. There also the public servant was called upon to explain certain irregularities and he was asked to submit his explanation as to why disciplinary action should not be taken against him. Certain preliminary enquiries were also made but no regular departmental enquiry followed. But in the meantime his services were terminated after giving one month's notice as he was a temporary Government servant. When this order of the Government of India was challenged, their Lordships of the Supreme Court at p. 210, repelled this argument in the following terms:—

“We cannot accept the proposition that once Government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary Government servant in the terms of rule 5, even though it is satisfied otherwise that his conduct and work are unsatisfactory.”

11. It is true that in that case the Government servant was a temporary servant and hence the Government terminated the service by giving him one month's notice as permitted by the terms of the contract of service. Here, however, the petitioner was a permanent Government servant and hence he was compulsorily retired on his attaining the 55th year by virtue of the power derived from the notification of the Union Ministry mentioned above. But in both the cases this power, either, contractual or statutory, was exercised when either a departmental enquiry had been just initiated or was in contemplation and the public servant had been called upon in submit his explanation. The fact that here specific charges were framed and Shri Malhotra was appointed as Enquiry Officer will not make any difference because it is not denied that apart from taking a written explanation from the petitioner no other action had been taken in the departmental proceeding.

12. Mr. Ghosh relied very much on Madan Gopal's case, 1963-2 SCR 716 : (AIR 1963 SC 531). But their Lordships at pages 211 and 212 (of SCR): (at p. 1864 of AIR), have explained and distinguished that case. There a regular departmental enquiry was held and the Enquiry Officer submitted a report to the appointing authority holding the public servant to be guilty of the charges and recommending that he should be removed from service. On the basis of his report the Deputy Commissioner, while holding that the specific charges were established, terminated the services of the public servant by giving him one month's pay in lieu of notice. Their Lordships, therefore, held that, in essence, he was removed from service on the basis of specific charges, and by merely using the word “terminating” instead of “removing” the punishment element could not be taken away from the order.

13. Here, however, no departmental enquiry was held. The original intention of holding such an enquiry on the basis of specific charges was given up and the impugned order retiring the petitioner from service was passed not on the basis of the old charges but on a review of the entire official career of the petitioner, in exercise of the power expressly conferred by paragraph 6 of the notification mentioned above. If the impugned order had been passed on the basis of the specific charges, there might be some force in the contention of Mr. Ghosh that the order was, in essence, a punishment, but once it is held that there is a power to compulsorily retire a public servant on his attaining the 55th year if the competent authority is of opinion on a review of his entire official career that he was not a suitable employee, then merely because this power is exercised during the pendency of a regular departmental proceeding the impugned order will not amount to punishment so as to attract Article 311.

14. Similarly, Gopi Kishores case, AIR 1960 SC 689, on which also Mr. Ghosh relied, has been distinguished in Champaklal's case, (1964) 5 SCR 190 at pp. 214 and 215 : (AIR 1964 SC 1854 at p. 1865). Their Lordships observed, while referring to that case, as follows:—

“The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of Article 311. All that the third proposition lays down is that if the government chooses to hold an enquiry purporting to act under Article 311, as was the case in that case, it must afford to the government servant the protection which that article envisages”.

15. It is true that those observations were made in respect of a temporary Government servant, whereas here we are concerned with a permanent Government servant. But this distinction is material only as regards the appropriate method of terminating the service. If the servant is a temporary servant, Government had the power to terminate without giving any reason after giving due notice. If, however, he is a permanent servant, he can be compulsorily retired only in accordance with the rules of superannuation, namely, after he attains his 55th year, and after giving him three months notice. But on the main question, as to whether as soon as any enquiry is held into the conduct of a Government servant he is immediately entitled to the protection of Article 311, the aforesaid observations of their Lordships of the Supreme Court would be against Mr. Ghosh's contention.

16. As regards the third contention of Mr. Ghosh, a complete answer is found in Jagdish Mitter's case, AIR 1964 SC 449. There it was pointed out that the motive which operated on the mind of the appointing authority in removing a Government servant, (either by giving him due notice if he is a temporary servant or compulsorily retiring him on his attaining 55th year if he is a permanent servant), is immaterial in deciding whether the order of removal is a punishment or not. It is true that here the original intention of the Commissioner was to draw up a regular departmental proceeding on the basis of two specific charges and to punish the petitioner if after holding due enquiry the charges were proved. It is also true that when the said disciplinary proceeding was in its preliminary stage the Commissioner decided to exercise his power of compulsorily retiring the petitioner from service by virtue of the notification of the Union Home Ministry.

17. It was urged that this order was passed mala fide because the Commissioner knew that there was practically no evidence to substantiate the charges and that the departmental proceeding against the petitioner would fail. Even if this motive be attributed to the Commissioner, that will not suffice to invalidate the impugned order. There is no legal bar to the appointing authority at first deciding to proceed by way or disciplinary action against a public servant but subsequently deciding to compulsorily retire him in accordance with the rules for such retirement. The absence of evidence in support of specific charges will not by itself suffice to show that, if on a review of the entire official career of the public servant the superior authority decides that he is an unsuitable employee and should be weeded out on his attaining the age of superannuation, such a decision is either mala fide or involves the element of punishment. His opinion that the petitioner is an unsuitable employee is not ordinarily justiciable, and as I have already shown, paragraph 11 of the counter-affidavit filed by the department showed that this opinion was not based on arbitran or capricious reasoning but on adequate grounds. It is true that the petitioner has alleged mala fide, but he has not stated any Fact apart Irom the initiation of departmental proceeding, to prove his allegation of mala fide against the Commissioner. It is open to the Commissioner in good faith to change his earlier view and to decide to drop the departmental proceeding. No inference of mala fide can be made merely because of such a change in view unless there are further materials. On the affidavits filed by the parties in this case, therefore, I must hold that the plea of mala fide is not sustainable.

18. It is true that though the impugned order of compulsory retirement was passed on the 27th July, 1964, (Annexure D), the petitioner was described as Income-tax Officer on leave till the 7th September, 1965, in the correspondence of the Commissioner and also in the petitioner's own representations to superior authorities. Though M. Ghosh has urged that this description itself is evidence of mala fide, I must point out that no such inference can be made. So long as the petitioner's representation to the Central Board of Revenue against the order of the Commissioner compulsorily retiring him from service was pending, the Commissioner could properly continue to describe him as Income-tax Officer on leave. It was only on the 7th September, 1965, that the petitioner was Informed that the representation to the Central Board of Revenue was rejected. On the very same day the departmental proceeding was dropped.

19. Though technically the departmental proceeding continued to remain pending till that date, the facts narrated above would show that soon after the issue of the impugned order on the 27th July, 1964, the department had no intention of continuing the proceeding. This was the main reason why as early as the 6th August, 1964, (Annexure G), the petitioner was informed by Shri Malhotra that no evidence would be led against him in the departmental enquiry.

20. In my opinion, therefore, the validity of the impugned order will not be affected in any way merely because the departmental proceeding was not formally dropped till the 7th September, 1965, after the rejection of the petitioner's representation by the Central Board of Revenue.

21. For these reasons the application is dismissed with costs. Hearing fee Rs. 200 payable to the respondents.

22. A.B.N Sinha, J.:— I agree.

NRK/G.G.M

23. Petition dismissed.