Full Judgment Text
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PETITIONER:
A.L. AHUJA
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT24/07/1987
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
KANIA, M.H.
CITATION:
1987 AIR 1907 1987 SCR (3) 632
1987 SCC (3) 604 JT 1987 (3) 148
1987 SCALE (2)103
ACT:
Fundamental Rule--R.56(j)(i)--Applies to Government
servants in Class I or Class II Service or post, whether on
substantive, temporary or officiating basis.
HEADNOTE:
Fundamental Rule 56(j) confers power on the appropriate
authority to compulsorily retire a Government servant, if it
is in the public interest to do so, by giving 3 months’
notice or 3 months’ pay and allowances in lieu of such
notice; while sub-cl. (i) thereof states that a public
servant in class I or class II service or post who had
entered service before attaining the age of 35 years can be
retired after he has attained the age of 50 years, sub-cl.
(ii) thereof states that any other public servant can be
retired after he has attained the age of 55 years. In Union
of India v. K.R. Tahiliani & Anr., this Court had held that
F.R. 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. Basing his case on this decision,
the petitioner, who had been compulsorily retired while
working in a class II post In an officiating capacity,
challenged the order of his compulsory retirement.
Overruling the decision in Union of India v. K.R. Tahi-
liani & Anr., but, allowing the petition on the ground that
the Delhi High Court, relying upon that decision, had grant-
ed relief to persons similarly placed as the petitioner,
and, directing payment of his salary and allowances upto the
date of his normal superannuation,
HELD: Sub-clause (1) of r. 56(j) of the Fundamental
Rules applies to Government servants in Class I or Class II
service or post on substantive, temporary or officiating
basis. [638E-F]
There is no reference to officiating service in sub-cl.
(i). The relevant words used in sub-cl. (i) are "if he is in
CIasa I or CIasa II service or post." A person can be in
Class I or CIasa II service or post even when he holds a
post of either ciasa substantively or temporarily or on
officiating basis. Instances are abundant where officers are
promoted to CIasa I or Class II service or post of such
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class on officiating basis and
633
such officiation lasts for a number of years. Officiating
promotion certainly does not confer a right to the post and
at any time the Government servant may be sent back to his
substantive post. There is, however, no reason why sub-cl.
(i) should be confined to service or post held on substan-
tive basis. It is not disputed that a person who is in Class
I or Class II service or post is in such service or post as
covered by sub-cl. (i). The possibility of such incumbent
being sent back to the substantive post is not at all rele-
vant in the matter of exercising powers of compulsory re-
tirement. If the officiation is not brought to an end by
reverting the Government servant to his substantive post
before the power of compulsory retirement is exercised, the
Government servant concerned must be taken to be in Class I
or Class II service or post at the relevant time and would
come within the ambit of sub-cl. (i). There is no warrant
for the conclusion that officiating Government servants in
Class I or Class II service or post are outside the purview
of sub-cl. (i). The possibility of a reversion to the sub-
stantive post is not germane to the exercise of power con-
tained in F.R. 56. [637F-H; 638A-C]
The purpose of F.R. 56(j) is to confer power on the
appropriate authority to compulsorily retire a Government
servant in the public interest and the classification of
Government servants into two categories covered by sub-cls.
(i) and (ii) has a purpose behind it. If the condition
indicated in sub-cl. (i) is satisfied, namely, the Govern-
ment servant is in Class I or Class II service or post and
he had entered into service before attaining the age of 35
years, and has attained the age of fifty, the further condi-
tion that he must substantively belong to the two classes of
service or post cannot be introduced into the scheme. The
purpose of the sub-clauses is to classify Government serv-
ants into two categories and sub-cl. (i) takes within its
sweep those Government servants who at the relevant time are
in Class I or Class II service or post, whether substantive-
ly, temporarily or on officiating basis. [638C-E]
Union of India v. K.R. Tahiliani & Ant., [1980] 1
S.L.R. 847, over rulled.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 7338 of 1981. etc.
(Under Article 32 of the Constitution of India).
Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
G. Ramaswamy, Additional Solicitor General, R.P. Srivastava
634
and Miss. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. The petitioner of this application
under Article 32 of the Constitution is an engineer who was
employed in the Central Public Works Department under the
Ministry of Works and Housing in Government of India and was
compulsorily retired by order dated 3.8.1976 with effect
from 5.11.1976 made under Rule 56(j) of the Fundamental
Rules. He has assailed that order for retirement and has
claimed payment of remuneration which he would have been
entitled to draw upto the normal date of superannuation.
The short facts are these. The petitioner was born on
10.2.1922 and secured his first appointment as a Section
Officer under the-named employer on 22.10.1947. He was pro-
moted as officiating Assistant Engineer in class II service
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with effect from’ 25.5. 1954, and came to be confirmed as
Section Officer by an order dated 8.10.1955. On 3.7.1961, he
was further promoted as officiating Executive Engineer in
Class I service but on 4.9.1965, he was reverted to the post
of Assistant Engineer in officiating position and was con-
tinuing in that post when he was compulsorily retired.
The vires of Rule 56(j) of the Fundamental Rules as also
the power to compulsorily retire a public servant have been
upheld by this Court and do not require to be re-examined.
The basis of attack to the impugned order is as specified in
Ground No. A and is to the following effect:
"The impugned order is contrary to the judg-
ment delivered by this Hon’ble Court on
26.2.1980, copy at Annexure-C hereto. (Union
of India v. K.R. Tahiliani and Anr.)-[1980] 1
SLR 847. According to the said judgment F.R.
56 (j)(i) has no application to officiating
government servants, hence can have no appli-
cation to the petitioner since the petitioner
was an officiating government servant."
The impugned notice ran thus:-
"No. 32/452/66--EC. 111
Government of India
Central Public Works Department
New
Delhi, the 3.8.76
635
ORDER
WHEREAS the Engineer-in-Chief is of
opinion that it is in public interest to do
so:
NOW, THEREFORE, in exercise of the
powers conferred by clause (j) of Rule 56 of
the Fundamental Rules, the Engineer-in-Chief
hereby gives notice to Shri A.L. Ahuja, As-
sistant Engineer (Civil), at present under
suspension, that he, having already attained
the age of fifty years on 10.2.1972, shall
retire from service with effect from the
forenoon of 3rd November, 1976, or, from the
date of expiry of three months computed from
the date of issue of the service of this
notice on him, whichever is latter.
Sd/
(V.R
.
VAISH)
ENGINEER-
IN-CHIEF
To
Shri A.L. Ahuja,
Assistant Engineer (Civil),
(Under Suspension),
A11/85, Lajpat Nagar,
New Delhi- 110024."
It is clear from it that the petitioner attained the age
of 50 years on 10.2.1972 and, therefore, on the date of the
order he had completed the age of 54 years. Admittedly, he
was holding a class II post when the impugned order was
served on him. Fundamental Rule 56(j) under which notice was
given provides:-
"(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
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retire any Government servant by giving him
notice of not less than three months in writ-
ing or three months’ pay and allowances in
lieu of such notice;
(i) if he is in Class I or Class II
service or post (and had entered Government
service before attaining the age
636
of thirty-five years), after he has attained
the age of fifty years;
(ii) in any other case after he has
attained the age of fifty-five years;
..........................................................."
The appropriate authority is entitled to exercise power
under clause (j) in the case of a Government servant in
Class I or Class II service or post where he entered into
service before attaining the age of 35 years after the said
servant attained the age of 50 years; and in other cases
after he has attained the age of 55 years. In the instant
case, the petitioner was promoted as officiating Assistant
Engineer which is a Class II post on 25.5. 1954 and contin-
ued to hold that post when the order of compulsory retire-
ment was passed. By 25.5.1954 the petitioner had not at-
tained the age of 35 years.
As already indicated above he had crossed the age of 50
years but had not attained the age of 55 years by the date
of the impugned order. Therefore, sub-clause (1) was not
contravened when the order was made. It has been argued
before us that as the petitioner was holding an officiating
appointment in Class 117 he could not have been compulsorily
retired under sub-clause (i).
Support is claimed from the observations in the Tahilia-
ni’s case (supra). The sole question that fell therein for
decision before this Court was whether a Government servant
officiating in Class I or Class II service or post could be
retired compulsorily by exercising the power under Rule
56(j)(i) after he has attained the age of 50 years. The two
Judge Bench which decided the case held:-
" An officiating hand has no right to the
post and is perhaps a fleeting. bird who may
have to go back to the substantive post from
which he has been promoted on an officiating
basis what is more to the point, a person who
has been appointed de novo may begin his
service on an officiating basis or on a tempo-
rary basis and it is obvious that he has no
right to the post and cannot be strictly said
to be in that service or post as a member of
that service. In short, an officiating Govern-
ment servant does not really belong to Class I
or Class II service until he acquires a right
thereon. Even viewed closely and meticulously,
the structure of the clause, namely, "if he is
in Class I or Class II
637
service or post", emphasises the nature of the
service or post vis-a-vis the Government
servant concerned. We need not go into the
semantic shapes, lexical niceties or linguis-
tic nuance but only go through the meaning and
purpose of the provision. When a Government
servant belonging to a Class I or Class II
service or post on regular basis has to be
retired compulsorily, Rule 56(j)(i) comes to
the rescue of the Government. But if he is
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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 officiating hand. Thus we have
reached an 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 substan-
tive capacity, and not on an officiating basis
only."
Strong reliance was placed by counsel for the petitioner
on the reasons extracted above.
It is clear that sub-clause (ii) is the general rule
applicable to all Government servants and sub-clause (i)
carves out a class of Government servants into a category
and makes a special provision. We have already indicated
that sub-clause (ii) did not apply to the facts of this case
as the petitioner had not attained the age of 55 years by
the date of the order. The observations made in Tahiliani’s
case indisputably support the petitioner. But the correct-
ness thereof is disputed by learned Additional Solicitor
General appearing for the Union of India and that is why
this writ petition was directed to be heard by a larger
Bench.
There is no reference to officiating service in sub-
clause (i). The relevant words used in sub-clause (i) are
"if he is in Class I or Class II service or post". A person
can be in Class I or Class II service or post even when he
hold a post of either class substantively or temporarily or
on officiating basis. Instances are abundant where officers
are promoted to Class I or Class II service or post of such
class on officiating basis and such officiation lasts for a
number of years. Officiating promotion certainly does not
confer a right to the post and at any time the Government
servant may be sent back to his substantive post. There is,
however, no reasons why sub-clause (i) should be confined to
service or post held on substantive basis. Learned counsel
for the petitioner does not dispute the position that a
person who is in Class I or Class II service or post is in
such service or post as covered by sub-clause (i). The
possibility of such incumbent being sent back to the
638
substantive post is not at all relevant in the matter of
exercising powers of compulsory retirement. If the officia-
tion is not brought to an end by reverting the Government
servant to his substantive post before the power of compul-
sory retirement is exercised, the Government servant con-
cerned must be taken to be in Class I or Class II service or
post at the relevant time and would come within the ambit of
sub-clause (i). There is no warrant for the conclusion that
officiating Government servants in Class I or Class II
service or post are outside the purview of sub-clause (i).
The possibility of a reversion to the substantive post is
not germane to the exercise of power contained in F.R. 56.
The purpose of Fundamental Rules 56(j) is to confer power on
the appropriate authority to compulsorily retire Government
servant in the public interest and the classification of
Government servants into two categories covered by sub-
clauses (i) and (ii) has a purpose behind it. If the condi-
tion indicated in sub-clause (i) is satisfied, namely, the
Government servant is in Class I or Class II service or post
and he had entered into service before attaining the age of
35 years, and has attained the age of fifty, the further
condition that he must substantively belong to the two
classes of service or post cannot be introduced into the
scheme. The purpose of the sub-clauses is to classify Gov-
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ernment servants into two categories and sub-clause (i)
takes within its sweep those Government servants who at the
relevant time are in Class I or Class II service or post,
whether substantively, temporarily or on officiating basis.
We would accordingly hold that the ratio of the decision
in Tahiliani’s case is not correct and sub-clause (i) of
Rule 56(j) applies to Government servants in Class I or
Class II service or post on substantive, temporary or offi-
ciating basis.
On this conclusion the writ petition is liable to be
dismissed. It has been represented to us by counsel for the
petitioner that the similarly placed persons had gone before
the Delhi High Court challenging the orders of compulsory
retirement and the Delhi High Court relying upon Tahiliani’s
case give them relief. Such judgments have become final and
Union of India has given effect to the decisions of the
Delhi High Court. When this was put to learned Additional
Solicitor General he agreed that the Union of India will
have no objection to treat the petitioner alike and would be
prepared to give the same relief to the petitioner.
The petitioner would have superannuated from service on
29.2.1980 if he had not been compulsorily retired with
effect from
639
5.11. 1976. Even if the writ petition is allowed and the
order of compulsory retirement is set aside the petitioner
cannot go back to service. But he would be entitled to
pecuniary benefit of salary and allowances admissible under
the rules. Accordingly, we allow the.writ petition and
direct the respondent to pay to the petitioner the salary
and other allowances which would have been payable for the
period between 5.11. 1976 and 29.2. 1980. Such payment be
made within two months from today. There will be no order
for costs.
WRIT PETITION NOS. 6251 & 8189 OF 1981
Each of the petitioners in these two writ applications
under Article 32 of the Constitution was employed in the
Central Public Works Department in the Ministry of Works and
Housing of Government of India and has been compulsorily
retired under Fundamental Rule 56(j). The facts of each of
these applications are more or less similar to those in Writ
Petition No. 7338 of 1981 which we have disposed of today.
For the reasons given therein we allow each of the writ
petitions and quash the order of compulsory retirement made
against each of the petitioners. By now both the petitioners
would have retired from service and, therefore, they cannot
be resorted in service. They would, however, be entitled to
salary and other service allowances payable to them from the
date of compulsory retirement till the date of their normal
superannuation. There will be no order for costs.
H.L.C. Petition allowed.
640