C.M Lodha, C.J:— This is a special appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949, against the order dated April 21, 1970 by a learned Single Judge of this Court whereby the learned Judge allowed the petitioner's writ petition No. 159 of 1967, in part, and directed that the order of compulsory retirement of the petitioner shall take effect from the date of the order by the Central Government dated February 28, 1967 (Ex. 7), but disallowed the other reliefs. The State has not filed appeal from the order of the learned Single Judge but aggrieved by the order of the learned Judge the petitioner has preferred this appeal.
2. The only point for decision in this appeal is whether the order of compulsory retirement of the petitioner by the Government of India dated February 28, 1967 (Ex. 7) is correct. Before we proceed to deal with the appeal on the merits, we have to decide a preliminary objection raised by Mr. D.S Shishodia, Government Advocate for the State of Rajasthan, that the appeal has abated and must be dismissed as such as the appellant Keshavpuri expired Page: 510during the pendency of this appeal and his legal representatives are not entitled to continue it.
3. The appellant Keshavpuri, (deceased) was a member of the Indian Administrative Service posted in Rajasthan at the relevant time as Gold Control Officer-cum-Deputy Secretary to the Government of Rajasthan. By its letter dated November 5, 1965 (Ex. 1), the Government of Rajasthan, Appointments (A. I) Department gave a notice to Shri Keshavpuri that the Government of Rajasthan, had under the provisions of Rules 17(2) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, and with the approval of the Central Government, decided in public interest to retire him from service with effect from the date of his attaining age of 55 years, i.e, February 5, 1966. Here, it may be noted that under the Notification dated September 1, 1965 (Ex. 9) in exercise of the powers conferred by sub-sec. (1) of sec. 3 of the All India Services Act, 1951 (61 of 1951), the Central Government after consultation with the Governments of the States concerned, had amended the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, whereby, inter-alia, the following sub-rule (3) to rule 16 was inserted:—
“The Central Government, in consultation with the State Government, may require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 years to retire in the public interest provided that at least three months previous notice in writing will be given to the member concerned.”
4. By the same notification, old Rule 17(2) which reads as follows was deleted:—
“The State Government may, with the approval of the Central Government and after giving him at least three months previous notice in writing, require a member of the service, who has completed 30 years qualifying service, to retire from the service.”
5. It will be noticed that before September 1, 1965, the State Government, with the approval of the Central Government, was competent to order compulsory retirement of a member of the Service. However, from September 1, 1965, this power vested in the Central Government. It appears that in ignorance of this change in law the notice of compulsory retirement (Ex. 1) was issued by the Government of Rajasthan. Realising this mistake, the Government of Rajasthan, issued another letter dated November 24, 1965 (Ex. 2) wherein it was mentioned that “rule 17(2)” of the All India Service (Death-Cum-Retirement Benefits) Rules, 1958, appearing in line 2 of Ex. 1 may be corrected so as to read as “rule 16(3).” Thereafter by letter dated December 22, 1965, (Ex. 3) the Government of Rajasthan ordered that Shri Keshavpuri on attaining the age of 55 years is retired from service with effect from 5th February, 1966 under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. But the Accountant General, Rajasthan, Jaipur, while dealing with the pension case of Shri Keshavpuri noticed that the order for retirement of Shri Keshavpuri was not in conformity with Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules inasmuch as the Government of India alone was competent to pass such order and, consequently, the Accountant General addressed a letter to the Government of Rajasthan (Ex. 4) to set the matter right. Yet by another letter (Ex. 5). the Accountant General requested the Government of Rajasthan that orders of the Government of India may be obtained in this matter so as to avoid legal complications at a later stage. Thereafter, on February 28, 1967, Government of India, Ministry of Home Affairs issued the following order (Ex. 7):—
“Government of India,
Ministry of Home Affairs,
No. 29/39/65-AIS(II). In pursuance of the powers conferred by sub-rule (3) of Rule 16 of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, the President, in consultation with the Government of Rajas-than, is pleased to order the retirement of Shri Keshavpuri, who attained the age of 55 years on 5th February, 1966, from the Indian Administrative Service in the public interest on the expiry of three months notice served on him with the approval of the Central Government in the order No. F1(137) Apptts. (A) 51 dated 5th November, 1965 of the Government of Rajasthan.
By Order of the President,
Sd/- (P.K Dave),
Joint Secretary to the Government of India.
New Delhi, the 28th February, 1967.
Shri Keshav Puri.”
6. It is this order Ex. 7 which was challenged by Shri Keshavpuri by the writ petition on the following three grounds:—
(i) that it is violative of the mandatory provisions contained in rule 16(3) of the Rules, because no previous notice as required by law was given by the Central Government to the petitioner prior to the issue of the impugned order;
(ii) that the notice served by the State Government Ex. 1 dated November 5, 1965, was illegal and void as it was issued in pursuance of the decision by the Government of Rajasthan, who had no authority to retire the petitioner, and
(iii) that in any case the order by the Central Government Ex. 7 cannot take effect retrospectively from 1966.
7. As already stated above, the last ground, i.e ground No. (iii) was accepted by the learned Single Judge and the writ petition was partially allowed.
8. Shri Keshavpuri filed this special appeal on July 6, 1970 and expired during the pendency of this appeal on June 22, 1972. On the death of Shri Keshavpuri, his widow and other legal representatives were ordered to be brought on the record (vide order-sheet dated September 29, 1972). The preliminary objection raised by Shri D.S Shishodia is that the right involved in this case was purely personal to Shri Keshavpuri and consequently, his legal representatives cannot maintain the appeal. In support of his contention, he has relied upon Gul Mohammad v. The Union of India (1), Vridhachalam v. State of Mad. (2), T.N Venkatanathachari v. State of Andhra Pradesh (3), Roshan Lal v. Union of India (4) and Phool Rani v. Maubat Rai Ahluwalia (5). In this connection, he has also referred to sec. 306 of the Indian Succession Act. He has further argued that all that the legal representatives of Shri Keshavpuri can claim is arrears of salary and other emoluments which Shri Keshavpuri would have been entitled to in case the impugned order was set aside, but a suit for arrears of salary and emoluments cannot be filed now on account of the bar of limitation under Art. 102 of the Limitation Act, 1963. To fortify his submission in this respect, he has relied upon Jai Chand Sowhney v. Union of India (6).
9. On the other hand, Mr. A.K Mathur, learned counsel for the appellant, submits that if the Government passes on unconstitutional or wrong order, which is sought to be declared null and void, it is no legal right of the Government to say that the order should not be annulled merely because in the changed circumstances the Government would not be able to pass a fresh order, in accordance with law. He goes on to argue that if the officer is dead, before the annulment of the order, that cannot take away the legal rights of the heirs of Page: 512the deceased to claim emoluments, to which the deceased would have been entitled if the order of his illegal retirement from service were found to be illegal. In short, his submission is that the right to continue the appeal survives to the legal representatives. In support of his submission, he has relied upon Manmohan Anand v. State of Punjab (7), Jang Bahadur v. Union of India (8), Ibrahim Bhai v. State of Gujarat (9) and C. Rly., Workshop, Jhansi v. Vishwanath (10). As to the question of limitation, for a suit for arrears of salary and other emoluments, Mr. Mathur has relied upon State of M.P v. State of Maharashtra (11).
10. There appears to be a difference of opinion among some of the High Courts on the question of abatement of the case in such circumstances. Gul Mohammad's case (supra) is a Single Bench decision of this Court wherein it was held that the petitioner Gul Mohammad's employments was a matter of status and not of contract and was, therefore, such a personal right that it could not enure to the benefit of his legal representatives, and consequently, his legal representatives cannot maintain the writ petition. The learned Judge found support for his view from the decision in Vridhachalam v. State of Madras (Supra) and T.N Venkatanathachari v. State of Andhra Pradesh (supra). The learned Judge also distinguished the case of Ibrahim Bhai v. State of Gujarat (supra) on the ground that because the disciplinary proceedings came to an end in that case, grant of relief was not therefore likely to give rise to on anomaly.
11. The learned counsel for the appellant submits that the view taken by the learned Single Judge in Gul Mohammad's case needs to be revised in the light of discussion contained in Manmohan Anand v. State of Punjab (supra) and Jang Bahadur v. Union of India (supra). So far as the decision in Jang Bahadur's case is concerned we may state that the judgement by the Delhi High Court does not contain any discussion, but it has only placed reliance on Ibrahim Bhai's case which has already been distinguished by the learned Single Judge in Gul Mohammad's case. Of course, the learned Judges of the Punjab and Haryana High Court in Man Mohan Anand's case have taken a different view. In that case the respondents had conceded in writing that the legal representatives of the original petitioner could institute a suit for claiming emoluments to which the original petitioner would have been entitled for the period commencing from June 1967, the date of his purported removal to the date of his death. On this concession, having been made by the respondents, R.S Narula, J. observed as follows:—
“Once this is granted it goes without saying that no such claim can be decreed unless it is first held that the purported order of removal of the original petitioner from the membership and the chairmanship was illegal and ineffective. This is the basic relief without obtaining which no claim of the legal representatives for salary or emoluments can succeed. It is that basic relief which is being claimed in the present petition. To that extent, therefore, the right to sue survives to the legal representatives. If the original petitioner had claimed declaration to the effect that he continues in service or had asked for a mandamus for being issued to the respondents to reinstate him, I would have held that right to claim such relief was personal, to the deceased and died with him and that the right to sue in respect of those reliefs did not survive to the legal representatives. So far the declaration of the order of the removal being illegal is concerned somewhat similar point was decided by a Division Bench of Allahabad High Court in 1956 All. 114 in connection with the claim of the legal representatives of an unsuccessful plaintiff who had died pending the appeal for being permitted to prosecute the appeal for obtaining a declaration to the effect that the dismissal of the original plaintiff was wrongful or ultra vires. The question was whether the appellate court could give any such relief to the legal representatives of the original plaintiff. It Page: 513was held that though the legal representatives could have not been entitled to seek the declaration which the plaintiff had sought after the death of the plaintiff, they were entitled to the funding that the dismissal of the original plaintiff was wrongful and further that they were entitled to as a result of such a finding to the consequences that flow therefrom.”
12. It is pertinent to note that the learned Judge has himself observed that if the original petitioner had claimed declaration to the effect that he continues in the service or had asked for a mandamus being issued to the respondents to reinstate him, the right of claim such relief was personal to the deceased and died with him and the right to sue in respect of those reliefs did not survive to the legal representatives.
13. With great respect, there does not appear to us any material difference between the prayer that the order of removal, or retirement or dismissal, as the case may be, is wrong and a prayer for declaration to the effect that the officer continued in service on account of wrongful order of dismissal, removal or retirement. In substance, the relief in both the cases is the same though worded differently.
14. In Ibrahim Bhai's case (supra) emphasis seems to have been laid more on the existence of legal right of the legal representatives to maintain the writ petition after the death of the delinquent officer rather than on the question whether the relief claimed by the deceased officer was purely a personal one. There is little doubt that if the legal representatives of the deceased officer are allowed to continue the petition, it would only be a step towards further legal steps which the legal representatives of the deceased officer will have to take in order to get arrears of salary and emoluments which the delinquent officer would have been entitled. In the facts and circumstances of that case the learned Judges of the Gujarat High Court observed that it cannot be said that in all cases the issue of a writ of such a nature is a step towards further legal steps to which the legal representatives of the deceased officer propose to take and it is not such a case as far as the facts of this petition are concerned for the reasons to be stated hereinafter. Thus, in the circumstances of that case the learned Judges held that the right to sue survived and the petitioners had the right to maintain the petition.
15. In Calcutta Gas Co. Ltd. v. State of West Bengal (12) it was held that the right that can be enforced under Article 226 shall ordinarily be the personal or individual right of the petitioner himself. Again in Roshan Lal's case (supra) it was observed that the legal position of a Government servant is more one of status than of a contract. The hall mark of status is the attachment to a legal relationship or rights and duties imposed by the public law and not by mere agreement by the parties. We may here point out that C. Rly., Workshop Jhansi v. Vishwanath (supra) relied upon by Mr. A.K Mathur was a case where in a joint petition under the Payment of Wages Act by the respondents, one judgment was given in their favour by the High Court. On appeal to the Supreme Court all the respondents were made parties. One of them died during the pendency of the appeal, but his name continued to appear in the array of respondents and his legal representative, were not brought on the record. In these circumstances it was held that the appeal did not abate. In our opinion, that case has no relevancy to the point involved before us.
16. In the light of the foregoing discussion, we are of opinion that the view taken in Gul Mohammad's case seems to us to be sound. Accordingly, we hold that the right to continue the appeal does not survive to the legal representatives of the deceased appellant and the appeal must, therefore, be dismissed as such.
17. However, we have examined the case on merits also. The learned Single Judge has himself held that the order issued by the Central Government Page: 514dated February 28, 1967 (Ex. 7) can be considered to be a valid order for retiring the officer inasmuch as the Government of India alone is competent under Rule 16(3) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, on retire a member of the Service and that is why the learned Single Judge has Meld that the officer will be deemed to have retired with effect from the date of issue of Ex. 2, i.e February 28, 1967, even though he had attained the age of 55 years earlier.
18. Mr. A.K Mathur, learned counsel for the appellant, has, however, contended that the Central Government had not applied its mind to the question at all and the order Ex. 7 was passed merely to cover-up the mistake committed by the State of Rajasthan in ordering retirement of the petitioner (vide Ex. 3). He has further argued that in any case the notice of three months given to the officer by the State of Rajasthan (Ex. 1) cannot be considered as a valid notice as it did not expire immediately preceding the date of the order Ex. 7. It appears to us that the matter of retiring the petitioner on attainment of the age of 55 years was no doubt initiated by the State of Rajasthan inasmuch as the letter Ex. 1 shows that before issuing notice the State Government had obtained approval of the Central Government as required by old rule 17(2). The requirements of sub-rule (3) of Rule 16 are these:—
(i) The order requiring a member of the Service to retire must be passed by the Central Government, which must come to the conclusion before passing the order that his retirement is in the public interest;
(ii) Before passing the order, to be Central Govt. must have consultation with the State Govt. and
(iii) At least three months' previous notice in writing must be given to the member concerned.
19. There is no doubt that the State Government moved the matter and the Government of India gave approval to the State Government to retire the petitioner in the public interest. But under a mistaken impression, and in ignorance of the latest law, the State Government itself issued the order of retirement. To rectify the mistake, the Central Government thereafter issued the order Ex. 7. Thus, the requirements mentioned at points Nos. (i) and (ii) stated above are fulfilled inasmuch as the order has been issued by the Central Government in the public interest in consultation with the State Government.
20. Coming to requirement No. (in), the officer undoubtedly got more than three months notice by Ex. 1 though it was given by the State Government, of course, with the approval by the Central Government. sub-rule (3) of Rule 16 does not require that the notice must be given by the Central Government itself, nor does it require that the notice must expire with the date of retirement. In these circumstances, notice given by the State of Rajasthan (Ex. I) cannot be said to be violative of sub-rule (3) of Rule 16. In fact, all the conditions required under sub-rule (3) of Rule 16 have been duly complied with. Thus, even on merits we do not find any force in the appeal.
21. The result is that this appeal fails and is hereby dismissed. But in the circumstances of the case we make no order as to costs.