T.V.R Tatachari, J.:— Civil writ Petition has been filed by the petitioner Colonel J.N Sinha, praying for the issuance of a writ of certiorari quashing Memorandum No. L 16-42/68-S-I, dated August 13, 1969 (Annexure ‘K’), issued by the Govt. of India, Ministry of Education and Youth Services, retiring the petitioner compulsorily from Govt. Services, in pursuance of clause (j) of Fundamental Rule 56 with effect from August 14, 1969.
2. Respondent No. 1 in the Writ Petition is the Union of India, through the Secretary, Ministry of Education and Youth Services, respondent No. 2 is Brig. J.S Paintal.
3. In a competive examination held by the Federal Public Service Commission in 1938, the petitioner was selected and was appointed as Extra Assistant Superintendent in the Survey of India Service on November 14, 1938. He worked as a probationer for a period of 3 years and was confirmed in that post in 1941. At that time, there were no statutory rules in force in respect of the said Service. During the Second World War, the petitioner volunteered for active service in the Army, and was granted Emergency Commission in the Army with effect from October 23, 1942. Thereafter, he qualified in Regular Commission by appearing in Services Selection Board Test and was granted Regular Commission in the Army with effect from October, 23, 1942.
4. In exercise of the power conferred by the proviso to Article 309 of the Constitution, the President of India by a notification No. F. 16-81/48 R, dated August, 17, 1950 (Annexure ‘A’) made rules called the Survey of India (Recruitment from Corps of Engineering Officers) Rules, 1950, (hereinafter referred to as “1950 rules”), for regulating the recruitment and conditions of service of persons appointed from the Corps of Engineering Officers of the Defence Ministry by the Survey of India Class 1 Services Rule 2 of the said rules provides for the recruitment of Military Officers to the Survey of India Class 1 Service, and rule 3 Provides that the recruited officers will be on probation for two years which may be extended by the Government on the advice of the Surveyer General. The petitioner was taken into the Survey of India Class I Service under rule 2 of the aforesaid 1950 rules as Deputy Superintending Surveyer with effect from June, 1951. In the exercise of the power conferred by the proviso to Article 309 of the Constitution, the President made the Survey of India Class I (Recruitment) Rules, 1960 (hereinafter referred to as “1960 rules”) for regulating the recruitment to Survey of India Class I Service. The said rules came into force on July 1, 1960. The petitioner was subsequently promoted firstly as Superintending Surveyers, and then as Deputy Director and lastly as Director (Selection Grade). The last mentioned promotion to the post of Director (Selection Grade) was made and he was appoint ??? to that post with effect from October, 27, 1966. According to the petitioner the said post of Director, Selection Grade, is next below the post of the Surveyor General of India.
5. The petitioner stated in his writ petition that in May, 1966, the Union Public Service Commission, Departmental Promotion Committee met and prepared a select panel for appointment to the post of Surveyor General which had fallen vacant on the retirment of Brig. Gambir Singh, and that the Departmental Promotion Committee placed Respondent No. 2 at Serial No. 1 in the said panel, while it placed the petitioner who was junior to respondent No. 2 in service at Serial No. 2 in the panel. Respondent No. 2 was accordingly appointed as Surveyor General in June 1966, in an officiating capacity. The petitioner further stated that immediately after respondent No. 2 took over as the Surveyor General, he started showing bias and hostility against the petitioner. The petitioner set out certain circumstances which according to him, constituted the reasons for the alleged bias and hostility of Respondent No. 2 against the petitioner. The petitioner further alleged in his writ petition that due to the existances of chaotic conditions in the Survey of India Department in June 1969, the Minister of State for Education, visited the Survey of India Department, Dehra Dun, and made personal enquiries from various officers, that in the Survey of India Department, there is a Civil Class I officers' Association, and the said Association presented a memorandum to the Minister of state wherein, among others, a representation was made that a certain number of Military Officers of Ministry Cadre in the senior selection appointments of Directors and Deputy Directors in the Survey of India should be sent back to the Army to make place by 50 percent for the Civilian Officers, that the Ministry Officers in the Survey of India (including the petitioner) were not allowed to form any association according to the Army Regulations, and in the absence of such an Association, the Military Officers could not represent their case before the Minister of State, that the petitioner had reason to believe that immediately after the Hon'ble Minister returned from Dehra Dun to Delhi on or about June 20, 1969, a letter was issued by Shri Chandiramani, Additional Secretary in the Ministry of Education, to the Ministry of Defence, that about 5 senior Military Officers (including the petitioner and Respondent No. 2) should be permanently reverted to the Army under rule 4(e) of the 1950 rules and that the petitioner had also reason to belive that the Ministry of Defence was reluctant to take back any of the officers under the said rules as it would have meant a stigma against the said officers, because under the rules, they could be reverted to military duty only for unsatisfactory work or conduct in the Survey of India, there being no reduction in the establishment in the Survey of India.
6. In May, 1969, Ministry of Home Affairs, issued an office Memorandum No. 20/22/68-Estt (D), dated 6-5-69, and the same was circulated by the Ministry of Education by a letter dated May 27, 1969, wherein it was stated, inter-alia, that inefficient officers should be weeded out in accordance with the rules, that action should be taken under Fundamental Rule 5(j) in order to weed out inefficient officers after it is considered that further retention of the Government servant concerned will not be in the public interest. A copy of the said Memorandum has been filed as Annexure).
7. On May 17, 1969, Fundamental rule 56(j) was amended and a reference to the amended rule will be made presently. That on August 13, 1969, Ministry of Education and Youth Services, issued the impugned Memorandum (Annexure ‘K’) stating that the President was of the opinion that it was in the public interest to retire the petitioner, that in pursuance of the amended clause (j) of Fundamental Rule 56 the President was pleased to decide that the petitioner should retire from Government service with effect from August 14, 1969, and that the petitioner would be given three months' pay and allowances in lieu of three months' notice provided in the said rule. Aggrieved by the said order, the petitioner died the present writ petition praying that the said order in the Memorandum may be quashed.
8. Shri B.N Kirpal, learned Counsel for the petitioner, contended firstly that the impugned order was violative of the principles of natural justice. He argued that the petitioner to whom Fundamental rule 56(j) applied, had a right to be in the civil employ till he attained the age of 58 years that the impugned order under Fundimental rule 56(j) defeated the said right, and has thus interefered with the civil right of the petitioner, and that the said order which had civil consequences was violative of principles of natural justice in that it was passed without giving a reasonable opportunity to the petitioner to show cause against the same. This contention appears to us to be well founded. By virtue of Rule 4(d) of the 1950 rules, the petitioner had the right to continue in the Survey of India until the age of superannuation from civil employment, and by virtue of the provision in Fundamental Rule 56(i), he, as a Military Officer in Civil Department, would cease to be in civil employ only on the date he attained the age of 58 years. In other words, he had right to continue in the civil employ till he attains the age of 58 years. By the order under Fundamental rule 56(j) retiring him compulsorily on an earlier date, he was deprived of the said right. In fact, rule 56(j) itself is a provision which has civil consequences. By virtue of the provision in the fundamental rule 56(a) and 56(i), the officers who fall within the said provisions have a right to continue in civil service till they attain the age of 58 years. If then, the order under Fundamental rule 56(j) is passed, it has necessarily the effect of affecting the said civil right of the officer concerned and has, thus civil consequences. As laid down by the Supreme Court in 1State of Orissa v. Dr. (Miss) Binapani Dei, A.I.R 1967 SC 1269, 1273 and 2A.K Kraipak v. Union of India, S.C.R (2), 1969, 262, 272, even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. That being so, even if an order passed under rule 56(j) has to be regarded as an administrative order, it has to be passed in accordance with the principles of natural justice. The impugned order was admittedly passed without giving any opportunity to the petitioner to show cause against the same. It was, therefore, violative of principles of natural justice and is liable to be quashed on that ground. The next contention of Shri Kripal was that the petitioner was an Army Officer holding the substantive rank of Colonel and is governed by the 1950 rules and as such the provisions of Fundamental rule 56(j) are not applicable to him. He also relied on Fundamenal Rule 3 which reads as follows:—
“F.R 3—Unless in any case it be otherwise distinctly provided by or under these rules, these rules do not apply to Government servants whose conditions of service are governed by Army or Marine Regulations.”
9. It has to be noted that under the above rules, the Fundamental Rules will apply to Government servants whose conditions of service are governed by Army or Marine Regulations, if it is distinctly so provided by or under the Fundamental Rules. It is true that the petitioner was an Army Officer holding the substantive rank of Colonel. But he was in civil employ in the Survey of India at the relevant time, and Fundamental rule 56(j) provides that an Army Officer serving in a Civil Department shall cease to be in civil employ on the date he attains the age of 58 years. In other words, there is specific provision in the fundamental rule 56(i) which provides the age of superannuation for military officers in the civil employ. It cannot, therefore, be stated that because of the provisions in Fundamental Rule 3, none of the Fundamental Rules applies to the petitioner. Further, even according to the petitioner, the 1950 rules apply to him. Rule 7 of the said rules lays down that:
“Military Officers in Survey of India will draw civil rates of pay and allowances, and while in civil employ, their general conditions of service will be governed by the Civil Rules.”
10. Moreover, Rule 4 of the said rules reads as under:—
“4. Reversion to militry duty: After confirmation, an officer will have a lien on his appointment in the survey of India, which will, however, be subject to the following conditions.”
11. In these conditions, the expression “revert” implies an option on the part of the officer, the expression “to be reverted” indicates that the officer has no option.”
(a) xxx
(b) xxx
(c) An officer of the substantive rank of Colonel or above or Lt. Colonel who has completed his tenure of service as such, cannot revert permanently to military duty.
(d) Retirement from Army will involve retirement from the Survey of India, except that officers referred to in (c) above who retire from the Army on account of attaining the age limit for compulsory retirement for their ranks or for any other reason, may continue in the survey of India until the age of superannuation from civil employment including any period of superannuation leave. During this period, their military pension will be held in abeyance.”
12. Thus, Rule 4(d) makes it clear that even if the petitioner retires from Army, he will continue in the Survey of India until the age of superannuation from civil employment. The said age of superannuation from Civil employment has to be determined according to the civil rules applicable to him, namely the Fundamental Rules. Fundamental Rule 56(a) provides that every Government servant shall retire on the day he attains the age of 58 years. Fundamental rule 56(j) provides that a military officer serving in a civil department shall cease to be in civil employment on the date he attains the age of 58 years. rule 56(j) prior to its amendment in May, 1969, reads as under:—
“56(j)—Notwithstanding anything contained in this Rule the Appropriate Authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of 55 years by giving him notice of not less than three months in writing.
Provided that nothing in this clause shall apply to the Government servant referred to in clause (2) who entered Government service on or before 23rd July, 1966, and to a Government servant referred to in clause (f).”
13. By a notification dated 17th May, 1969 Fundamental rule 56(j) was amended and after the amendment, the said rule 56(j) reads as follows:—
“(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 that notice:
(i) If he is in Class I or Class II service or passed the age limit for the purposes of direct recruitment to which is below 35 years, after he has attained the age of 50 years.
(ii) In any ather case, after he has attained the age of 55 years.
Provided that nothing in this clause shall apply to the Government servant referred to in clause (e) who entered Government service on or before 23rd July, 1966, and to Government servant referred to in clause (f)”.
14. The words “notwithstanding anything contained in this Rules” in Fundamental rule 56(j) show that the provisions in the Fundamental rule 56(j) is over-riding provision. In other words, the provisions in clauses (a) and (i) of Fundamenal Rule 56 are subject to the provisions in rule 56(j). It is thus clear that if as claimed by the petitioner himself, rule 56(i) applies to him, rule 56(j) also will apply to him as rule 56(i) is subject to rule 56(j). The contention of the learned counsel that the Fundamental Rules, and in particular Fundamental rule 56(j), are not applicable to the petitioner cannot, therefore, be accepted.
15. Shri Kripal next contended that even if the provison in the Fundamental rule 56(j) was applicable to the petitioner, the order (Annexure ‘K’) retiring the petitioner compulsorily in the public interest had cast a stigma on the petitioner and was, therefore, by way of punishment and since the petitioner was not given an opportunity to show cause against the proposed compulsory retirement, the order was violative of Article 311(2) of the Constitution and illegal. On the other hand, Shri Deepak Chaudhri, learned counsel for Respondent No. 1 contended that the impunged order had not cast any stigma and was not by way of punishment and that Article 311(2) of the Constitution was not, therefore, attracted. As pointed out the Supreme Court in 3Sham Lal v. State of U.P, A.I.R 1954 SC 369, dismissal or removal mentioned in Article 311(2) constitutes a punishment. In order to ascertain whether the termination of services by compulsory retirement amounted to dismissal or removal so as to attract the provisions of Article 311(2) of the Constitution, two tests have been laid down in the said decision. The first test is to see whether a charge or imputation against the officer is made the condition of the exercise of the power. The second is to see whether by the compulsory retirement, the officer is losing the benefit, he had already learned as he does in the case of the dismissal or removal. These tests were re-iterated by the Supreme Court in 4State of Bombay v. Saubhag Chand M. Doshi, A.I.R 1957 S.C 892 and 5Dalip Singh v. State of Punjab, A.I.R 1960 S.C 1305. It is to be noted that the Supreme Court did not state that both the tests must be satisfied in a given case. It is therefore, sufficient, if either of the tests is satisfied. This is because either of them if satisfied, would show that the retirement is by way of punishment in the present case, admittedly, the petitioner did not lose any benefit that had already accrued to him, nor was there any dimunition of such accrued benefit or benefits. The second test is, therefore, not fulfilled in the present case. The question is this as to whether the first test is fulfilled. If the impugned order contained any imputation or stigma against the petitioner, then the order would be by way of punishment and the provisions in Article 311(2) would be attracted. The contention of Shri Kripal was that it was stated clearly in the impunged order that the petitioner was retired compulsory in the public interest. The relevant portion of the impunged order is as follows:—
“Whereas the President is of the opinion that it is in the Public interest to retire Col. J.N Sinha, Director (Selection Grade), Survey of India, and at present Dean, Indian Photo Interpretation Institute, Dehra Dun. Now, therefore in pursuance of clause (j) of F.R 56, as notified by the Ministry of Finance (Department of Eexpenditure) in their Notification No. 7(14)-E.N/67-L, dated 17th May, 1969, the President is pleased to decide that the said Colonel J.N Sinha shall retire from Government service with effect from the 14th August, 1969.
Colonel J.N Sinha will be given 3 months' pay and allownces in lieu of three months' notice provided for in the said rule.”
16. The said order was in pursuance of rule 56(j) wherein it has been provided, inter alia, that
“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 month's pay and allowances in lieu of such notice.”
17. The question for consideration is as to whether the statement in the order of the retirement itself that the President is of the opinion that it is in the public interest to retire the petitioner amounts to be an impugation or stigma against the petitioner. In 6State of State Of Utter Pradesh v. Madan Mohan Nagar (A.I.R 1967 S.C 1260) the order of retirement was in the following terms:
“I am directed to say that the Governor has been pleased to order in the public interest under Article 465-A and Note (1) thereof of the Civil Services Regulations the compulsory retirement with effect from September 1, 1961, of Shri M.H Nagar, Director, State Museum, Lucknow, who completed 52 years of age on July 1, 1960 and 28 years 3 months of qualifying service on 31st May, 1960, as he has outlived his utility.”
18. The relevant portion of Article 465-A of the Civil Services Regulations is in the following terms:
“Government retains the right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons and no claim to special compensation on this account shall be entertained.
This right shall only be exercised by the Government of India in the administrative Department when it is in the Public interest to dispense with the services of Government servant who has outlived his usefulness.”
19. The Court considered the cases in Shyam Lal v. State of U.P, A.I.R 1954 S.C 369), State of Bombay v. Saubhag Chand Doshi (A.I.R 1957 SC 892). 7Bala Kotiah v. Union of India (A.I.R 1958 S.C 232), Dalip Singh v. State of Punjab (A.I.R 1960 S.C 1305), 8Jagdish Mitter v. Union of India (A.I.R 1964 S.C 449), 9Shiva Charan v. State of Mysore (A.I.R 1965 S.C 280), 10Ram Prasad v. State of Punjab (A.I.R 1966 S.C 180), and was of the opinion that the case was clearly covered by the decision in Jagdish Mitter's case (Supra). It was pointed out that in that case, it was stated in the order that the officer in question was found undesirable to be retained in Government service. Emphasis was laid on the observation of Gajendragadkar J. (as he then was) that:
“When the order refers to the fact that the officer in question was found undesirable to be retained in Government service, it expressly cast a stigma on him.”
20. The Court also referred to another observation of Gajendragadkar, J., which reads as follows:
“It seems that any one who reads the order in a reasonable way would naturally conclude that the appellant was found undesirable and that must necessarily import an element of punishment which is the basis of the order and is its integral part. When an authority wants to terminate the services of a temporary servant it can pass a simple order and discharge without casting any aspersion against the temporary servant or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on a temporary servant, it would be idle to suggest that the order is a simple order of discharge. The test in such cases must be:
Does the order cast aspertion or attach a stigma to the officer when it purports to discharge? If the answer to this question is in the affirmative; then notwithstanding the form of the order the termination of service must be held, in substance, to amount to dismissal.”
21. Applying the said test laid down in Jagdish Mitter's case, the Court held in Madan Mohan Nagar's case (Supra) that the order in which it was stated that M.H Nagar had outlived his utility, did cast a stigma on him. In a subsequent case, namely, 12I.N Saxena v. State of Madhya Pradesh (A.I.R 1967 S.C 1264), the Supreme Court referred to Madan Mohan's case and Jagdish Mitter's case and held as follows:—
“Where an order requiring a Government servant to retire compulsorily contained express words from which a stigma can be inferred, that order may amount to removal within the meaning of Article 311. But where there are no express words in the order itself which will throw any stigma on the Government servant, the Court cannot look into the background resulting in the passing of such order in order to discover whether some kind of stigma could be inferred.”
22. Keeping in view the observations made in above decision, it is to be seen whether the provisions in Fundamental rule 56(j) and the language used in the impugned order in the instant case cast a stigma on the petitioner or not. It is true that the rule refers to the right conferred thereby on the Government as an absolute right, but the rule itself states that the appropriate authority should be of the opinion that it is in the public interest to retire the officer in question and thus makes out a condition for the exercise of the power conferred on the Government. The question however, in whether the said condition, namely, that the retirement of the officer in question should be in the public interest casts a stigma or aspersion upon the officer not. The contention of Shri Kripal was that it does cast a stigma of aspersion. He submitted that the very statement that the retirement of the Officer is in the public interest, implies that his retention in the Government service is against the public interest, which naturally, leads to the conclusion, in the words of J. Sikri in the Madan Mohan's case (supra) that there is “some thing wrong with him or his capacity to work,” that the retirement in the rule, viz., that the retirement of officer in question should be in the public interest, that it is all the more so, when it is expressly stated in the order that the officer is being compulsorily retired in the public interest, and that consequently the provisions in Article 311(2) of the Constitution are attracted and the provisions therein has to be complied with before an order in pursuance of Fundamental rule 56(j) is passed. The learned Counsel pointed out that in the present case, it was expressly stated in the impugned order that the petitioner shall compulsorily retire in the public interest and a stigma was thus attached thereby to him, and submitted that as, admittedly, no previous opportunity was given to him to show cause against the proposed action, and the procedure in Article 311(2) of the Constitution was not followed, it is to be held that the impugned order was violative of Article 311(2) and is the liable to be quashed on that ground. In our opinion, the contention urged by Shri Kripal is not entirely without substance. However, we consider that it needs a detailed examination before the contention can be accepted and that since we are accepting the contention that the impugned order is liable to be quashed on the ground that it violated the principles of natural justice, it is not necessary to go into the question in this case. We may state that the question whether rule 56(j) is it sell violative of Article 311(2) was not argued before us and we, therefore, need not consider that question also in this case.
23. Shri Kripal also contended that the impugned order did not state out the reasons which impelled the appropriate authority to take the view that the retirement of the petitioner was in the public interest. That the affidavit of the respondents filed in opposition to the writ petition did not also point out any such reasons, that the petitioner had excellent record of service as detailed by him in his writ Petition and that no reasonable man could come to the conclusion that it was in the public interest to retire the petitioner compulsorily. Reference was made by him to the decision in Barium Chemicals v. Company Law Board (A.I.R 1967 S.C 295), 13Rohtas Industries Ltd. v. S.D Aggarval, (1969) 1 SCC 325 : A.I.R 1969 SC 707, and the decision of the Supreme Court in 14Rampur Distillery Company Ltd. v. Company Law Board, Civil Appeals Nos. 488 and 489 of 1969 dated 2nd September, 1969. Shri Dipak Chaudhri, the learned Counsel for the respondent drew our attention to the decision in 15Mavengamban v. Chief Commissioner, A.I.R 1967, Manipur 67 in which it was held that the opinion formed by the appropriate authority that the retirement is in the public interest is not justiciable. We, however, consider that in view taken by us regarding the validity of the impugned order on the ground that it was violative of principles of natural justice, it is not necessary to go into this contention of Shri Kripal also. Shri Kripal also put forward two other alternative contentions. He contended firstly that while Fundamental rule 56(j)(i) (as amended) provides for compulsory retirement at the age of 50 years in certain cases, rule 56(j)(ii) prescribes the age of 55 years for compulsory retirement in all that there was not reasonable classification founded on intelligible differentia which has rational relation to the object sought to be achieved by the rule and that, therefore, sub-clause (i) of Fundamental rule 56(j) is violative of Article 14 of the Constitution. On the other hand, Shri D. Dipak Chaudhry pointed out that sub-clause (i) of Fundamental rule 56(j) enables the Government to retire a Government servant compulsorily from Government service at the age of 50 years, if he is in Class I or Class II service or post, the age limit for the purpose of direct recruitment to which is below 35 years, while sub-clause (ii) provides for compulsory retirement in all other cases at the age of 55 years, and submitted that the intention of the makers of the rule appears to be to ensure a minimum of about 15 years of service to the officer before he is compulsorily retired under the rules and that was why perhaps the age at which he can be compulsorily retired is fixed at 50 years, if he is in Class I or Class II service or post, the age limit for the purpose of direct recruitment to which is below 35 years, while in other cases 5 more years were added and the age after attaining which he can be compulsorily retired was fixed at 55 years and that there is thus a reasonable classification based on intelligible differentia which a rational relation to the object sought to be achieved by the rule. The other contention of Shri Kripal was that even if the provisions of the Fundamental rule 56(j) were applicable to the petitioner, the petitioner could not in any case be compulsorily retired before be had attained the age of 55 years (which age he would attain only on 24-5-72). This argument was based upon the provisions in clause (ii) of Fundamental rule 56(j) and provision in Rule 3 of Survey of India Class I (Recruitment) Rule, 1960. rule 56(j) as amended has already been set out above. Rule 3 of the 1960 rules reads as follows:—
“3—The services shall be recruited by the following methods:—
(i) By competitive examination held in India in accordance with part II of these rules;
(ii) By promotion or transfer from another service or other departments in accordance with Part III of these rules;
(iii) By appointment of Corps of Engineers Officers in the Defence Ministry in accordance with the Survey of India (Recruitment from Corps of Engineers Officers) Rules 1950 as amended from time to time.
(iv) By occasional admission of specially qualified persons appointed by the Government on the recommendations of the Commission.
24. The learned counsel argued that sub-clause (i) of Fundamental rule 56(j) enables the Government to retire a Government servant after he attains the age of 50 years if the Class I service to which that Government servant belongs does not permit direct recruitment to be made above the age of 35 years, while in all other cases, sub-clause (ii) of the said rule empowers the Government to retire a Government servant compulsorily from Government service after he attains the age of 55 years, that Rule 3 of the 1960 rules provides for recruitment to the Survey of India Class I service by four methods, that the first method is by competitive examination held in India in accordance with Part II of the Rules, and rule 9(i) which occurs in Part II provides 20 to 25 years as the age limit for recruitment by competetive examination, that there is no age limit fixed for recruitment by appointment of Corps of Engineers Officers of the Defence Ministry as in the case of the petitioner and the recruiment of especially qualified persons to the Survey of India Class I Service were the methods of direct recruitment mentioned in rule 3(iii) and rule 3(iv) of the 1960 rules for both of which the rules do not provide any age limit, that since there cannot be any discrimination between the persons recruited under the rule 3(i) and the persons recruited under Rule 3(ii), and Rule 3(iii), and Rule 3(iv) all of them would be governed by Fundamental rule 56(j)(ii), and not by Fundamental rule 56(j)(i), and that, therefore Fundamental rule 56(j)(i) had no application to the petitioner's case and at the worst, the petitioner could be compulsorily retired, if at all, only after he attains the age of 55 years as provided in Fundamental rule 56(j)(ii) that is after 24th May, 1972.
25. However, it is not necessary, in our opinion, to go in to the above two alternative contentions in the view we have taken regarding the validity of the impunged order in dealing with the contention of Shri Kripal that the order was violative of the principles of natural justice. We may state that Shri Kripal had asked for the production of certain documents of Respondent No. 1. In answer thereto, an affidavit of Shri S. Chakravarti, Secretary to the Government of India in the Ministry of Education and Youth Services dated 11th November, 1969, was filed on behalf of Respondent No. 1 claiming privilege under Section 123 of the Indian Evidence Act regarding the production of the said documents. As the averments in the said affidavit were not quite adequate to support the claim of privilege, a supplementary affidavit of Shri S. Chakravarti, dated 17th November, 1969, was filed on behalf of the Respondent No. 1 bringing within permissible limit the nature of document in respect of which privilege was claimed. In view of the supplementary affidavit of Shri Kripal did not press for the production of the documents.
26. For the foregoing reasons, we allow the Writ Petition and quash the impugned order contained in the Memorandum No. 16-42/68-S-I (Annexure ‘K’) dated 13th August, 1969. The petitioner is entitled to his costs in this Writ Petition which are fixed at Rs. 250/- to be paid by Respondent No. 1.
Sd/- T.V.R Tatachari, (Judge).
Sd/- Hardayal Hardy, (Judge).
27. Petition allowed.