Full Judgment Text
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PETITIONER:
N.C. DALWADI
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT24/07/1987
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
RAY, B.C. (J)
CITATION:
1987 AIR 1933 1987 SCR (3) 640
1987 SCC (3) 611 JT 1987 (3) 152
1987 SCALE (2)107
CITATOR INFO :
F 1991 SC 101 (22,30,70,223,278)
ACT:
Service Law: Bombay Civil Services Rules, 1959: rr.
161(1)(a) & 161(1)(c)(ii)(1)--officiating Superintending
Engineer-Compulsory retirement of--Consideration of public
interest absent--Held rules unlike FR 59(j), discriminatory
and violative of Article 311(2) of the constitution.
Words and Phrases: Words ’rank’and ’attained’--Meaning of.
HEADNOTE:
Rule 161(1)(a) of the Bombay Civil Services Rules, 1959,
as applicable to the State of Gujarat, provides for compul-
sory retirement of a Government servant other than Class IV,
on his attaining the age of 58 years, while proviso (i)
thereto empowers the appointing authority to retire a Gov-
ernment servant on his attaining the age of 55 years or any
date thereafter. Rule 161(1)(c)(ii)(1) lays down that except
as otherwise provided, Government servants in the Service of
Engineers, Class I must retire on reaching the age of 58
years and may be required by Government to retire on reach-
ing the age of 50 years if they have not attained the rank
of Superintending Engineer.
The appellant, who was officiating as Superintending
Engineer in the Gujarat Service of Engineers, Class I was
sought to be compulsorily retired by the State Government
under the first proviso to r.161(1)(a) with effect from
December 15, 1967, he having attained the age of 55 years on
November 12, 1967.
He assailed that order by a petition in the High Court
under Art. 226 of the Constitution, in which it was submit-
ted for the State that the case of the appellant was gov-
erned by r. 161(1)(c)(ii)(1) of the Rules and not by r.
161(1)(a) and reference to a wrong provision would not
necessarily invalidate the order, that the appellant had not
substantively attained the rank of Superintending Engineer
before he reached the age of 50 years and therefore the
Government could compulsorily retire him at any time after
he reached that age, that by virtue of the power vested in
the Government under the first proviso to r. 161(1)(a) the
Government could even otherwise direct the compulsory re-
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tirement of a
641
person who had attained the rank of Superintending Engineer
before reaching the age of 50 years and that power was not
excluded by reason of r. 161(1)(c)(ii)(1).
The High Court held that since the appellant had not
attained the substantive rank of a Superintending Engineer
he could be made to retire at any time under r.
161(1)(c)(ii)(1), i.e. on the date he attained the age of 55
years or thereafter, that since the appellant was merely
holding the post in an officiating capacity he could not be
held to have attained the rank of Superintending Engineer,
in order to have the benefit of the normal age of superannu-
ation of 58 years.
In the appeal by special leave, it was contended for the
appellant that the post of Superintending Engineer was a
selection post and the appellant was promoted as such in a
clear vacancy, that the word ’rank’ in r. 161(1)(c)(ii)(1)
must in collocation of the words being preceded by the word
’attained’ mean the status or the grade, that the word
’rank’ is not qualified by the word ’substantive’ and that
he had acquired the status or rank of a Superintending
Engineer.
Allowing the appeal,
HELD: 1. The order of compulsory retirement of the
appellant purported to be under the first proviso to r.
161(1)(a) of the Bombay Civil Services Rules, 1959 is struck
down as arbitrary, and he shall be deemed to have retired
from service on attaining his normal age of superannuation
of 58 years. [652BC]
2.1 Under r.161(1)(a) compulsory retirement of all
government servants is at the age of 58 years which is the
general provision. But the same cannot be said of the com-
pulsory retirement of a government servant under proviso (i)
to that rule on the date on which he attains the not an
incident of the tenure. It is not conceived the interests of
the employee. It is the mode of terminating his employment
at the discretion of the appointing authority. This absolute
power of the Government to direct premature retirement does
not exist on its satisfaction that it is necessary to do so
in the public interest. It is unlike FR 56(j) to that ex-
tent. [647G-648B, 649BC]
2.2 Rule 161(1)(c)(ii)(1), which is a special rule
dealing with Service of Engineers, Class I, provides for two
ages of superannuation. The first part adopts the general
rule of superannuation, as provided in r. 161(1)(a). The
second part, however, confers powers on the Govern-
642
ment to terminate the services of such officers at the age
of 50 years without giving any notice. The words ’in the
public interest’ are not there in r. 161(1)(c). [648B, DE,
649C, E]
2.3 The effect of r. 161(1)(a) and r. 161(1)(c)(ii)(1)
is the same. Arbitrariness is writ large in both these
rules. They enable the Government to deprive a permanent
civil servant of his office without enquiry. The power of
compulsory retirement may he used when the authority exer-
cising this power cannot substantiate the misconduct which
may be real cause for taking action. Both violate Art.
311(2) of the Constitution. [649A, CD]
Union of India v. Col. J.N. Sinha & Anr., [1971] 1 SCR
791, referred to.
3.1 The word used in r. 161(1)(c)(ii)(1) is ’rank’ and
not ’substantive rank’ and there is no reason why it should
not be understood according to its ordinary sense as meaning
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grade or status, particularly when it is preceded by the
words ’have not attained’. The word ’attained’ means ac-
quired or reached. The word ’rank’ has both a narrower as
well as a wider meaning. [648G]
3.2 If the word ’rank’ is so construed in its wider
sense in its context and setting in the collocation of words
’if they have not attained the rank of Superintending Engi-
neer’ as meaning status or grade then the second part of
that rule must be treated as an exception to the special
rule empowering the Government to direct superannuation of
such officers on the date they attained the age of 50 years.
[650D]
3.3 In the instant case, the appellant having attained
the rank of Superintending Engineer he could not be compul-
sorily retired by the State Government under r.
161(1)(c)(ii)(1) before the age of superannuation. [643G]
S.C. Jain v. State of Haryana & Anr., [1985] 4 SCC 645,
referred to.
Ishwarlal Kasanji Naik v. State of Gujarat, [1963] 4
Guj. LR 945, overruled.
4.1 The words ’if they have not attained the rank of
Superintending Engineer’ in r. 161(1)(c)(ii)(1) do not
confer an immunity on these officers from being compulsorily
retired at any age below the normal
643
age of superannuation at 58 years. The benefit which the
Superintending Engineers enjoy under the second part of that
rule is necessarily subject to the absolute power of the
Government to direct compulsory retirement of such officers
on the date they attain the age of 55 years under the first
proviso to r. 161(1)(a) or under FR 56(j)(1), on which it is
based. Although the words ’in the public interest’ are not
there but such power to direct premature compulsory retire-
ment at the age of 55 years can be exercised subject to the
condition that the concerned authority must be of the opin-
ion that it is ’in public interest’ to do so. [650E-G]
4.2 In the instant case, there was no material placed to
show that such compulsory retirement was necessary in the
public interest. The appellant has had an unblemished record
and there was nothing against him to doubt his integrity,
fitness and competence. [651E]
H.C. Gargi v. State of Haryana, [1986] 4 SCC 158, referred
to.
Union of India v. K.R. Tahiliani & Anr., [1980] 2 SCR
1092, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1939 (N)
of 1972.
From the Judgment and Order dated 24.1.1972 of the High
Court of Gujarat at Ahmedabad in L.P.A. No. 263 of 1971.
V.M. Tarkunde, V.N. Ganpule and P.C. Kapur for the
Appellant.
Vimal Dave and M.M. Shroff for the Respondent.
The Judgment of the Court was delivered by
SEN, J. The only question involved in this appeal by
special leave from the judgment and order of the High Court
of Gujarat dated January 24, 1972 is whether the appellant
who was officiating as Superintending Engineer in the Guja-
rat Service of Engineers, Class I could be retired by the
State Government on the date on which he attained the age of
55 years on the ground that he was merely officiating in
that post and had not "attained to the rank of a Superin-
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tending Engineer" within the meaning of r. 161(1)(c)(ii)(1)
of the Bombay Civil Services Rules, 1959 as applicable to
the State of Gujarat.
644
The facts giving rise to the case are as follows. The
appellant was an officer of the Bombay Service of Engineers,
Class I in the erstwhile State of Bombay and was promoted to
the post of Executive Engineer. In July 1965 when the post
of Superintending Engineer fell vacant the State Government
promoted him to officiate as Superintending Engineer in the
Gujarat Service of Engineers, Class I until further orders.
On account of his meritorious service as Superintending
Engineer the appellant was put in charge of the Minor Irri-
gation Project Circle. The work undoubtedly is of a highly
specialised and skilled nature and officers of merit and
proven ability, skill and competence are usually posted
there. The appellant did excellent record of service without
any blemish and earned encomiums for his meritorious service
in his new capacity. In 1966 the Chief Engineer, Public
Works Department addressed a letter to the appellant commu-
nicating the State Government’s appreciation of the valuable
work which the appellant and the officers and staff under
him had put up during the scarcity relief operations in that
year. However, the State Government all of a sudden on
September 13, 1967 purported to compulsorily retire him
under the first proviso to r. 161(1)(a) w.e.f. December 15,
1967 after giving him three months notice he having attained
the age of 55 years on November 12, 1967. Normally, the
appellant would have as Superintending Engineer retired on
November 12, 1970, the date on which he attained the age of
58 years. He had by then put up 29 years of service and
there was no adverse entry in any of his confidential re-
ports questioning his integrity or his efficiency or ability
for retention in service. The appellant accordingly assailed
the order of compulsory retirement by a petition in the High
Court under Art. 226 of the Constitution.
In contesting his claim, the State Government in its
return pleaded that the case of the appellant was governed
by r. 161(1)(c) (ii)(1) of the Rules and not by r. 161(1)(a)
and reference to a wrong provision would not necessarily
invalidate the order, that the appellant had not substan-
tively attained to the rank of Superintending Engineer
before he reached the age of 50 years and therefore the
Government could compulsorily retire him at any time after
he reached that age. It was asserted that the Government was
entitled to review the cases of government servants who were
to attain the age of 55 years as per the terms of the circu-
lar issued by the Government in the General Administrative
Department dated October 25, 1963, as amended from time to
time, and that in accordance with the procedure laid down
the case of the apellant was reviewed before he attained the
age of 55 years and it was decided that it was not desirable
in the public interest to
645
continue him in government service and that he should be
compulsorily retired by giving three months notice. Even
otherwise, it was contended that by virtue of the power
vested in the Government under the first proviso to r.
161(1)(a) the Government could direct the compulsory retire-
ment even of a person who had attained the rank of Superin-
tending Engineer before reaching the age of 50 years and
that power was not excluded by reason of r. 161(1)
(c)(ii)(1).
The learned Single Judge (A.D. Desai, J.) relying upon
the decision of a Division Bench in Ishwarlal Kasanji Naik
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v. State of Gujarat, [1963] 4 SLR 945 held that since the
appellant had not attained the substantive rank of a Super-
intending Engineer, he could be made to retire at any time
under r. 161(1) (c)(ii)(1) i.e. on the date he attained the
age of 55 years or thereafter. He observed that the decision
in Ishwarlal Kasanji Naik’s case being that of a Division
Bench, the construction placed by the learned Judges on r.
161(1) (c)(ii)(1) were clearly binding on him and that since
the appellant was merely holding the post in an officiating
capacity he could not be held, according to the view ex-
pressed in Ishwarlal Kasanji Naik’s case, to have attained
the rank of Superintending Engineer, in order to have the
benefit of the normal age of superannuation of 58 years. It
has been laid down by a Division Bench in Ishwarlal Kasanji
Naik’s case that the benefit of exemption from r.
161(1)(c)(ii)(1) could be had only by government servants in
the Bombay Service of Engineers, Class I who were in the
posts of Superintending Engineers i.e. held the rank of a
Superintending Engineer on a regular basis, in a substantive
capacity and not in an officiating capacity. The decision is
reflected in a laconic sentence:
"In order to get the benefit of exemption from
the rule [r. 161(1)(c)(ii)(1)] it is necessary
that he should have substantively attained the
post or the rank of a Superintending
Engineer."
We are unable to subscribe to the view expressed by the
learned Judges in Ishwarlal Kasanji Naik’s case. The word
’substantive’ does not find place in r. 161(1)(c)(ii)(1) of
the Rules.
In assailing the correctness of the judgment of the High
Court, learned counsel for the appellant contends that the
post of Superintending Engineer is a selection post and the
appellant was promoted as such in a clear vacancy, and
though he was working as a Superintending Engineer in an
officiating capacity, he was given the benefit of the re-
vised pay-scale for post of Superintending Engineer and also
given
646
two yearly increments. According to him, the word ’rank’ in
r. 161 (1)(c)(ii)(1) must in the collocation of the words
being preceded by the word ’attained’ mean the status or the
grade. It is pointed out that the word ’rank’ is not quali-
fied by the word ’substantive’ as erroneously assumed in
Ishwarlal Kasanji Nailo’s case. He places reliance on the
recent judgment of this Court in S.C. Jain v. State of
Haryana & Anr., [1985] 4 SCC 645 where an identical provi-
sion r. 3.26(c)(1) of the Punjab Civil Services Rules was
treated to be a special rule conferring immunity on an
Engineer who has attained the rank of Superintending Engi-
neer in the Public Works Department (Buildings & Roads
Branch) on the ground that premature retirement of Executive
Engineers promoted to the rank of Superintending Engineer
because of their merit and proven ability and competence was
clearly not in the, public interest and therefore they must
get protection from premature retirement under r.
3.26(c)(1). It is pointed out that even though the appellant
was working as a Superintending Engineer, his pension has
been fixed by the Government on the basis of the pay-scale
of Superintending Engineer presumably because he had been
promoted to the post in an officiating capacity but in a
clear vacancy i.e. had acquired the status or rank of a
Superintending Engineer.
The contention to the contrary by learned counsel for
the respondents based upon an earlier decision of this Court
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in Union of India v. K.R. Tahiliani & Ant., [1980] 2 SCR
1092 is that the appellant was only officiating as Superin-
tending Engineer and had no right to the post. Our attention
is drawn to the following observations made by the Court:
"When a Government servant belonging to a
Class I or Class II Service or post on a
regular basis has to be retired compulsorily,
Rule 56(j) comes to the rescue of the Govern-
ment. But if he is only a temporary hand, he
has no right to the post and can always be
reverted to the post, if any, on which he has
a lien. Similar is the position of an offici-
ating hand. Thus, we have rigid and inevitable
conclusion that Rule 56(j) is meant to cover
only those who are in a post on a regular
basis, i.e., in a substantive capacity, and
not on an officiating basis only."
The submission therefore is that the benefit of the exemp-
tion under r. 161(1)(c)(ii)(1) can be had only by a govern-
ment servant holding the post of a Superintending Engineer
on a regular basis i.e. in a substantive capacity. The
subsequent decision in S.C. Jain’s case is sought to be
distinguished on the ground that the Court there was dealing
with
647
the case of a person holding the post of a Superintending
Engineer on a regular basis.
In order to appreciate the rival contentions, it is
necessary to refer to some of the provisions of r. 16 1(1)
which deals with the age of superannuation, insorfar as
material:
"161. (1)(a). Except as otherwise provided in
the other clauses of this rule, the date of
compulsory retirement of a Government servant
other than a Class IV servant is the date on
which he attains the age of 58 years.
Provided:
(i) An appointing authority may after giving
three months previous notice in writing re-
quire a Government servant to retire from the
service on the date on which he attains the
age of 55 years or on any date thereafter to
be specified in the notice."
"161. (1)(c) The following rules are applica-
ble to particular services:
(ii)(1) Except as otherwise provided in this
sub-clause, Government servants in the Bombay
Service of Engineers, Class I, must retire on
reaching the age of 58 years, and may be
required by Government to retire on reaching
the age of 50 years if they have not attained
to the rank of Superintending Engineer."
Age of superannuation is an incident of government
service; it is’ for the benefit of the employee who earns a
well-earned rest with or without pensionary benefits for the
rest of his life. It is common to all permanent civil serv-
ants; it depends on an event that inevitably happens by
passage of time unless the employee dies earlier or resigns
from the post. We must give to the different clauses of r.
161(1) which find place in Chapter IX headed "Compulsory
Retirement" their plain ordinary meaning in furtherance of
the object and purpose with which they have been-flamed.
Under r. 161(1)(a) compulsory retirement of all government
servants is at the age of 58 years which is the general
provision. But the same cannot be said of the compulsory
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retirement before the age of superannuation. It is not an
incident of the tenure; it is not conceived in the interests
of the employee; it is a mode of
648
terminating the employment at the discretion of the appoint-
ing authority. The words ’except as otherwise provided in
the other clauses of this rule’ appearing in r. 161(1)(a)
make the general rule of superannuation at the age of 58
years 1subject to other clauses of that rule. That is to
say, the Government is empowered to provide for different
ages of compulsory retirement for different classes of
government servants. Proviso to r. 161(1)(a) however is the
absolute power of the Government to direct the premature
retirement of a government servant on the date on which he
attains the age of 55 years or at any time thereafter. R.
161(1)(c) is the special rule framed for that purpose. To
illustrate, r. 161(1)(c)(i)(1) says that except as otherwise
provided in that sub-clause, holders of posts of the Chief
Judge of the Court of Small Causes, Bombay and the Adminis-
trator General and Official Trustee, Bombay whether they are
recruited directly or are promoted from subordinate posts
should ordinarily be retained in service till the age of 60
years, if they continue efficiently upto that age, otherwise
they may be required to retire at the age of 55 years or at
any point thereafter. This clearly brings out that there are
two ages of superannuation depending upon efficiency, integ-
rity and ability for further retention in service. Similar-
ly, r. 161(1)(c)(ii)(1) deals with another class of offi-
cers, namely. government servants in the Bombay Service of
Engineers, Class I and similarly provides for two ages of
superannuation. The first part of sub-cl. (1) adopts the
general rule contained in r. 161(1)(c)(ii)(1) for that class
of officers as provided in r. 161(1)(a), namely, that they
shall retire on the date on which they attain the age of 58
years. The second part however confers power on the Govern-
ment to retire any such officer on his reaching the age of
50 years. Such power of the Government to direct premature
compulsory retirement of these officers is subject to a
qualification. The words "if they have not attained to the
rank" of Superintending Engineer read in conjunction with
the opening words ’except as otherwise provided in this
sub-clause’ clearly carve out an exception in the case of
persons holding the posts of Superintending Engineer. The
words ’if they have not attained to the rank’ of Superin-
tending Engineer in r. 161(1)(c) (ii)(1) are plainly bad
English and must be read as ’if they have not attained the
rank’ of Superintending Engineer. The word used in that rule
is ’rank’ and not ’substantive rank’ and there is no reason
why it should not be understood according to its ordinary
sense as meaning grade or status, particularly when it is
preceded by the words ’have not attained the rank’. The word
’attained’ means acquired or reached. The word ’rank’ has
both a narrower as well as a wider meaning.
A question may arise as to the purport and effect of these
rules.
649
The effect of r. 161(1)(a) which is the general rule dealing
with all government servants except with respect to the
enumerated categories and of r. 161(1)(c)(ii)(1) which is a
special rule dealing with government servants belonging to
Bombay Scrvice of Engineers, Class I is the same; the dif-
ference is only superficial which lies more in clever draft-
ing than in their content..The Government may terminate the
services of a permanent government servant under the first
proviso to r. 161 (1)(a) at any time on or after he attains
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the age of 55 years after giving three months notice i.e.
before the normal age of superannuation, by way of compulso-
ry retirement. It will be noticed that the power of the
Government under the first proviso to direct premature
retirement does not exist on its satisfaction that it is
necessary to do so in the public interest. It is unlike FR
56(j) to that extent. The Government may terminate the
services of a government servant belonging to the Bombay
Service of Engineers, Class I under r. 161(1)(c)(ii)(1) at
the age of 50 years without giving him any notice. Arbi-
trariness is writ large in both the rules but the rules
enable the Government to deprive a permanent civil servant
of his office without enquiry. The power of compulsory
retirement may be used when the authority exercising this
power cannot substantiate the misconduct which may be real
cause for taking action. Both violate Art. 311(2) of the
Constitution. Primafacie it appears to us that the first
proviso to r. 161(1)(a) was on lines of FR 56(j) and could
be sustained on the strength of the decision in Union of
India v. Col. J.N. Sinha & Ant., [1971] 1 SCR 791 being
based on the ground that the compulsory retirement of a
particular government servant was in the public interest but
the words ’in the public interest’ are not there in r.
161(1)(c). In Col. J,N. Sinha’s case it was laid down that
the appropriate authority has the absolute right to retire a
government servant if it is of the opinion that it is in the
public interest to do so. The right conferred on the appro-
priate authority is an absolute one. That power can be
exercised subject to the conditions mentioned in the rules.
one of which is that the concerned authority must be of the
opinion that it is in the public interest to do so. If that
authority bona fide forms that opinion, the correctness of
that opinion cannot be challenged before Courts. It is
however open to an aggrieved party to contend that the
requisite opinion has not been formed or the decision is
based on collateral grounds or that it is an arbitrary
decision. Compulsory retirement involves no civil conse-
quences. The aforementioned FR 56(j) is not intended for
taking any penal action against government servants. That
rule merely embodies one of the facts of the "pleasure
doctrine" embodied in Art. 3 10 of the Constitution. It was
said:
650
"There is no denying the fact that in all
organisations and more so in government organ-
isations, there is good deal of dead wood. It
is in the public interest to chop off the
same. Fundamental Rule 56(j) holds the balance
between the rights of the individual govern-
ment servants and the interest of the public.
While a minimum service is guaranteed to the
government servant, the Government is given
power to energize its machinery and make it
more efficient by compulsorily retiring those
who in its opinion should not be there in
public interest."
These considerations do not arise either under the first
proviso to r. 161(1)(a) or under sub-cl. (1) to r.
161(1)(c)(ii) because the concept of public interest is not
there.
It seems to us that on a proper construction of r.
161(1)(c)(ii)(1) which is identical to r. 3.26.(c)(1) of the
Punjab Civil Services Rules, the word ’rank’ in the colloca-
tion of the words ’if they have not attained to the rank of
Superintending Engineer’ in r. 161(1)(c)(ii)(1) must in its
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context and setting was to be construed in its wider sense
as meaning status or grade, and if so regarded, the second
part of that rule must be treated as an exception to the
special rule empowering the Government to direct superannua-
tion of such officers on the date they attain the age of 50
years. This has been the view expressed by the Court in S.C.
Jain’s case but we find it difficult to support the conclu-
sion that the words ’if they have not attained the rank of
Superintending Engineer’ in r. 161(1)(c)(ii)(1) confer an
immunity on Superintending Engineers from being compulsorily
retired at any age below the normal age of superannuation at
58 years. Under the scheme of the Rules, the benefit which
the Superintending Engineers enjoy under the second part of
r. 161(1)(c)(ii)(1) is necessarily subject to the absolute
power of the Government to direct compulsory retirement of
such officers on the date they attain the age of 55 years
under the first proviso to r. 161(1)(a) or under FR 56(j)(1)
on which it is based. Although the words ’in the public
interest’ are not there but such power to direct premature
compulsory retirement at the age of 55 years can be exer-
cised subject to the conditions indicated in Col. J.N.
Sinha’s case, one of which is that the concerned authority
must be of the opinion that it is in the public interest to
do so.
We are not oblivious of the fact that the construction
that we put on the word ’rank’ in r. 161(1)(c)(ii)(1) does
not accord with the view expressed by the Court in Tahilia-
ni’s case that FR 56(j) is meant to
651
cover only those who are in a post on a regular basis, i.e.
in a substantive capacity and not on an officiating basis
only. It. proceeds on the principle that the constitutional
provision under Art. 311(2) protecting a government servant
from reduction in rank without hearing refers only to a
person who is occupying a higher post in a substantive
capacity, for which he alone has a legal right to occupy the
post. The Court laid down while interpreting FR 56(j) that a
person who is occupying a higher post in an officiating
capacity has no such right and can be deprived of his post
by the competent authority. The facts are not clear from the
judgment in Tahiliani’s case. From the passage extracted
above, it is clear that the Court laid down that when a
government servant belonging to a Class I or Class II serv-
ice or post on a regular basis has to be retired compulsori-
ly, the Government can fall back on FR 56(j). It however
held that FR 56(j) is meant to cover only those who are in a
post on a regular basis i.e. in a substantive capacity and
not on an officiating basis only. If that be so, then we are
at a loss to understand why a person who has not attained
the rank of Superintending Engineer i.e. is merely officiat-
ing as Superintending Engineer cannot be compulsorily re-
tired from his substantive post of Executive Engineer if the
other requirements of FR 56(j) are fulfilled. We need not
dilate on this aspect further inasmuch as the State Govern-
ment in the return filed before the High Court stated that
it only intended and meant to act under the first proviso to
r. 161(1)(a) and not under r. 161(1)(c)(ii)(1). It is avert-
ed in the return that the case of the appellant was reviewed
and it was decided to compulsorily retire him on his attain-
ing the age of 55 years. There is no material placed to show
that such compulsory retirement was necessary in the public
interest. The appellant has had an unblemished record and
there was nothing against him to doubt his integrity, fit-
ness and competence. In somewhat similar circumstances this
Court in H.C. Gargi v. State of Haryana, [1986] 4 SCC 158
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
struck down the order of compulsory retirement under r. 3.
25(d) of the Punjab Civil Services Rules, observing:
"The power of compulsory retirement under Rule
3.25 (d) of the Rules can be exercised subject
to the conditions mentioned in the rule, one
of which is that the concerned authority must
be of the opinion that it is in public inter-
est to do so. The test in such cases is public
interest as laid down by this Court in Union
of India v. Col. J.M. Sinha. It does not
appear that there was any material on the
basis of which the State Government could have
formed an opinion that it was in public inter-
est to compulsorily retire the
652
appellant at the age of 57 years. There was
really no justification for his compulsory
retirement in public interest."
There is no reason for us to take a different view in the
facts and circumstances of the present case. The impugned
order of compulsory retirement of the appellant purporting
to be under the first proviso to r. 16 1(1)(a) of the Rules
must therefore be struck down as arbitrary.
In the result, the appeal succeeds and is allowed. The
impugned order passed by the State Government dated Septem-
ber 13, 1967 for compulsory retirement of the appellant made
under the first proviso to r. 161(1)(a) of the Bombay Civil
Services Rules, 1959 is quashed and he shall be deemed to
have retired from service on attaining his normal age of
superannuation of 58 years on November 12, 1970. We under-
stand that the pension of the appellant has already been
fixed on the pay scale of Superintending Engineer and the
effect of this order is confined to payment of the differ-
ence between salary and pension for three years and to the
benefit of the revised pay scale of Superintending Engineer
in the matter of computation of pension.
P.S.S. Appeal allowed.
653