BATAHARI JENA vs. STATE OF ORISSA

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7 PETITIONER: BATAHARI JENA Vs. RESPONDENT: STATE OF ORISSA DATE OF JUDGMENT05/04/1971 BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. (CJ) HEGDE, K.S. GROVER, A.N. REDDY, P. JAGANMOHAN CITATION: 1971 AIR 1516 1971 SCR 392 1971 SCC (2) 232 CITATOR INFO : RF 1973 SC 698 (5) ACT: Civil Service-Orissa-Age of superannuation raised from 55 to 58 years by Government resolution dated May 21, 1963- Liberalised Pension Rules did not have effect that employee should have put in 30 years service before he could be retired at 55-Guidlines to Heads of the Departments mentioning inter alia that an officer lacking integrity may be retired at 55 This did not cast stigma on every officer who was retired at 55-Article 311(2) of Constitution not attracted. HEADNOTE: The appellant who was born on January 1,1910 entered the service of the former Indian State of Mayurbhanj in Orissa as an engineer on 1st November 1937. On the merger of that State with the Province of Orissa on January 1, 1949 he became an officer of the said province. ’The age of superannuation of Government employees in Orissa was then 55 years. On May 21, 1963 the Government of Orissa passed a resolution raising the age of compulsory retirement to 58 years with effect from December 1, 1962. The power of Government to retire an employee at the age of 55 years was however retained and so was the right of the employee to voluntarily retire at that age after giving requisite notice. The resolution aforesaid also stated that the above provision will be in addition to the provisions already contained in the Liberalised Pension Rules according to which Government could compulsorily retire an employee who had put in 30 years service, the employee also having a corresponding right to retire after the said period of service. On February 5, 1954 a notification was issued by the Government of Orissa laying down inter alia that in any case where Government had reasonable cause to believe that employee lacked integrity it would be appropriate to determine upon his retirement. On July 14, 1964 the appellant was asked to retire from Government service with effect from January 1, 1965. His representation for http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7 reconsideration was not accepted. His writ petition in the High Court was rejected. By certificate the appellant came to this Court contending (i) that in view of the Liberalised Pension Rules he could not be retired before he had completed 30 years of service, and (ii) that having regard to the criteria laid down by the notification dated February 5, 1964 the order of retirement cast a stigma on him and as such was violative of Art. 311 of the Constitution. HELD: (i) Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the age of 55 years whether he had or had not put in thirty years qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he had not reached the age of fifty five years; correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years’ qualifying service to his credit. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning 3 53 any reason. Correspondingly the employee was not bound to continue in service beyond the age of fifty years unless he wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked to retire in a case when he had completed thirty years’ service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years’ service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reason. The petitioner’s argument based on the fact that he had not completed 30 years’ of service, must therefore, fail. [355H-356E] (ii) Since the age of superannuation fixed was not unaccountably early there was no violation of Art. 311(2). [358D] Gurdev Singh.Sidhu v. State of Punjab, [1964] 7 S.C.R. 587, 593. Satish Chandra Anand v. Union of India, [1953] S.C.R. 665 and Moti Ram Deka etc. v. General Manager, North East Frontier Rly. [1964] 5 S.C.R. 683, discussed. (iii) Nor was Art. 311 attracted by any aspersion or stigma cast on the appellant by the order dated July 14, 1964. Under paragraph 3 of the resolution of May 21, 1963 the Government had a right to require any Government servant to retire at the age of’ 55 without assigning an reason. The fact that by notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors being lack of integrity, did not imply that any officer whose continuance in, service was not advised lacked integrity. On the facts of the case it could not be said that any aspersion .was cast on the appellant. [358F-G] The appeal must accordingly be dismissed. JUDGMENT: http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1064 of 1967. Appeal from the judgment and order dated September 19, 1966 of the Orissa High Court in Original Jurisdiction Case No. 208 of 1964. S. V. Gupte, and B. P. Maheshwari, for the appellant. R. Gopalakrishnan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Mitter, J.-This is an appeal from a judgment of the High Court of Orissa rejecting a Writ Petition filed by the appellant for quashing the order of the Government passed on him on July 14, 1964 informing him that he was to retire from Government service on 1st January, 1965 when he would reach the age of 55 years. 23--1 S.C. India/71 354 The facts are shortly as follows. The appellant who was born on January 1, 1910 entered the service of the former Indian State of Mayurbhanj in Orissa as an engineer on 1st November 1937. He was in the employment of that State up to December 31, 1948. On the merger of that State with the Province of Orissa on January 1, 1949 he became an officer of the said Province. The age of superannuation of Government employees in Orissa was then 55 years. On May 21, 1963 the Government of Orissa passed a resolution the relevant portion whereof ran as follows:- "1. The question of raising the age of compulsory retirement of the State Government’ employees has been under the consideration of Gover nment for some time past. . . . 2. After careful consideration, Government have now.decided that the age of compulsory retirement for the State Government employees should be raised from 55 years to 58 years with effect from 1-12-1962. . . 3. Notwithstanding anything contained in the preceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months’ previous notice in writing without assigning any reason. The Government servants also may after attaining the age of 55 years, voluntarily retire by giving three months’ notice to the appointing authority. The powers to retire a Government servant under this provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. 4. This provision will be in addition to the provisions already contained in rule 2 in section 1 of the Liberalised Pension Rules issued with the Finance Department Resolution . . . according to which: (a) the Government may require an officer to retire any time after he has, completed 30 years qualifying service by giving him a notice in writing at least three months before the date on which be required to retire, and (b) a Government servant may retire from service any time after completing 30 years qualifying service by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire." On February 5, 1964 a notification was issued by the Govern- http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7 ment of Orissa in connection with the above laying down the 355 criteria and procedure to be adopted to ensure uniformity of operation of the rule mentioned in paragraph 3 of the above resolution and also equitable treatment in all cases. Speaking broadly, the idea behind the notification was that (1) the service record of an officer was to be scrutinised six months before he was due to attain the age of fifty five years, (2) in any case where Government had reasonable cause to believe that he lacked in integrity it would be appropriate to determine upon his retirement, (3) where an officer’s integrity was not in doubt but his physical or .mental condition was such, as to make him inefficient for further service the same result would follow, ’and (4) an officer whose performance was considered as below "average" should not be allowed to work after the age of 55. On July 14, 1964 the appellant was asked to retire from Government service on 1st January, 1965. His representation for reconsideration was not accepted. He filed a Writ Petition in the High Court on December 21, 1964. This was rejected’ by the High Court on September 19, 1966. The appellant has come up by certificate to this Court. Counsel for the appellant raised only two points in support ,of the appeal. His first submission was that as, the, appellant bad not completed 30 years’ service on January 1, 1965 he could not be asked. to retire on that date : and, secondly. having regard to the criteria laid down by the notification dated February 5, 1964 the order of retirement dated July 14, 1964 cast a stigma ,on him and as such was violative of the protection given by Art. III of the Constitution. The submission of learned counsel on the first head was based on his construction of the resolution of May 21, 1963. It was urged that., as the power of the appointing authority, under paragraph 3 of that resolution to retire the appellant after he attained the age of 55 years was described as "in addition to the provisions contained in rule 2 in section I of the Liberalised Pension Rules under which Government might require an officer to retire at any time after he had completed 30 years qualifying service, the new provision was to be treated as super-added to the pension Rules and no Government servant could be asked to retire at the age of 55 unless he had completed 30 year’s qualifying service. As there was no dispute that the appellant had not completed 30 years of such service on 1st January .1965 It was urged on behalf of the appellant that Government could not resort to paragraph 3 of the said resolution. In our view the above contention cannot be accepted. Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the 356 age of 55 years whether he had or had not put in thirty years’ qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he has not reached the age of fifty five years: correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years’ qualifying service to his credit. Fifty five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7 of 55 years without assigning any reason. This was. not unilateral. A Government servant was not bound to continue in service beyond the age of fifty five years unless he; wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked ’to retire in a case where he had completed thirty years’ service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years’ service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation ’was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reason. Reliance was aced on certain observations in the decision of this Court in Gurdev Singh Sidhu v. State of Punjab and Another (1). There this Court struck down article-’ 91 of the Pepsu Service Regulations under which the Government sought to retain an absolute right to. retire any Government servant after he had completed ten years’ qualifying service without giving any reason. In that case the petitioner who had been appointed as an Assistant Superintendent of Police in the erstwhile Patiala State on February 4. 1942 and confirmed in that rank on the occurrence of a regular vacancy after undergoing practical district training courses, and after promotion to the rank of Superintendent of Police in an officiating capacity in February 1950 in the said State of Pepsu, was asked, to,, show cause by notice dated March 25, 1963 as to why he should tot be compulsorily retired. The petitioner. complained that the notice issued to him was invalid on the ground that the article on which it was based was itself ultra vires and inoperative and the only question before this Court was whether the impugned article was shown to be constitutionally invalid. Referring to Satish Chandra Anand v. The Union of India(2) and to certain dicta of the majority Judges in Moti Ram (1) [1964] 7 S.C. R. 587 at 593. (2) [1963] S.C.R.655. 357 Deka etc. v. The General Manager, North East Frontier Railway etc.(1) this Court observed by way of explanation that: ". the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to terminate the services of a permanent public, servant at a very early stage of his career, the question about the validity of such a rule may have to be examined. That is how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an exception to the general rule that the termination of the services of a permanent public servant would amount to his removal under Art. 311(2), this Court added a rider and made it perfectly clear that if the minimum period of service which was prescribed by, the relevant rules upheld by the earlier decisions was 25 years, it could not be unreasonably reduced in that behalf. In other words, the majority judgment indicates that what influenced the decision was the fact that http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7 a, fairly large number, of years had been prescribed by the rule of compulsory re- tirement as constituting the minimum period of service after which alone the said rule could be invoked." The Court further observed (see p. 594) that: "The safeguard which Art. 311(2) affords to permanent public servants is no more than this that ’in case it is intended to dismiss, remove or reduce them’ in rank, a reasonable opportunity should be, given to them of showing cause against the action proposed to be taken in regard to them. A claim for security to tenure does not mean security of tenure for dishonest, corrupt, or inefficient public servants. The claim merely insists that before they are removed, the permanent public servants should be given an opportunity to meet the charge on which they are sought to be removed. Therefore it seems that only two exceptions can be treated as valid in dealing With; the scope and effect of the protection afforded by Art. 311(2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Art. 311(2) does not apply, because such, retirement is neither dismissal nor removal of the public servant. If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service (1) [1964] 5 S. C. R. 683. 358 after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Art. 311(2) mainly because that is the effect of a long series of decisions of this Court. But where while re- serving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a public servant at the end of 10 years of his service, that cannot, we think, be treated as failing outside Art. 311(2). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is, in substance, removal under Art. 311(2)." in our View the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be, hit by Art. 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably early. Before May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years’ qualifying service or not. The fact that the age of http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7 superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Art. 311(2). On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract Art. 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments ’in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant. In the result we must hold that there has been no violation of Art. 311 of the Constitution and the appeal must be dismissed with costs. G.C. Appeal dismissed. 359