Full Judgment Text
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PETITIONER:
DR. L.P. AGARWAL
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT21/07/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
ANAND, A.S. (J)
CITATION:
1992 AIR 1872 1992 SCR (3) 567
1992 SCC (3) 526 JT 1992 (4) 220
1992 SCALE (2)54
ACT:
Civil Service-All India Institute of Medical Sciences
Regulations, 1958-Regulations 30(2), 30(3) 35 read with Rule
56(i) of the Fundamental Rules-Post of Director, AIIMS-
Tenure post-"Tenure"-Construction-Retirement before
completion of tenure-Legality of.
HEADNOTE:
The appellant was appointed as Director, AIIMS, with
effect from 18.2.1979 for a period of five years or till he
attained the age of 62 years whichever was earlier. With
effect from 19.2.1980 he was confirmed in the said post.
On 24.11.1980 the appellant was prematurely retired
from service in public interest by giving him three months
pay and allowances, in lieu of notice.
The appellant challenged the order of the Institute-
Body filing a writ petition under Article 226 of the
Constitution of India before the High Court.
The respondents contended before the High Court that
the appellant was retired under Regulation 30(3) of the All
Institute of Medical Sciences Regulations, 1958 in public
interest after he attained the age of 55 years; that
Fundamental Rule 56(j) was also applicable to the AIIMS
employees by virtue of Regulation 35 of the Regulations;
that even if Regulation 30(3) was not attracted, the
Institute had the power to prematurely retire the appellant,
in public interest, under Fundamental Rule 56(j) and that
despite the fact that the appellant was on a tenure post
there was no bar to prematurely retire him by invoking
either Regulation 30(3) of Fundamental Rule 56(j).
The appellant on the other hand contended before the
High Court that the post of Director of the AIIMS is a
tenure post under the Recruitment Rules of the Institute and
he was appointed to the said post by way
568
of direct recruitment; that his tenure could not be cut
short by bringing in the concept of superannuation or
premature retirement which was alien to a tenure post.
The High Court dismissed the writ petition, against
which the present appeal by special leave was filed before
this Court.
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The appellant reiterated the contentions made by him
before the High Court, in this appeal.
On the question, "whether the incumbent of the post of
Director, AIIMS could be pematurely retired before the
completion of his tenure?" Allowing the appeal of the
employee-doctor, this Court,
HELD 1.01. ‘Tenure’ means a term during which an office
is held. It is a condition of holding the office. Once a
person is appointed to a tenure post, his appointment to
the said office begins when he joins and it comes to an end
on the completion of the tenure unless curtailed on
justifiable grounds. Such a person does not superannuate,
he only goes out of the office on completion of his tenure.
The question of prematurely retiring him does not arise.
[577F]
1.02. Under the Recruitment Rules the post of Director
of the AIIMS is a tenure post. The said rules further
provide the method of direct recruitment for filling the
post. These service-conditions make the post of Director a
tenure post and as such the question of superannuating or
prematurely retiring the incumbent of the said post does not
arise. The age of 62 years provided under proviso to
Regulation 30(2) of the All India Institute of Medical
Sciences Regulations, 1958 only shows that no employee of
the AIIMS can be given extension beyond that age. This has
obviously been done for maintaining efficiency in the
Institute-Services. [577C]
1.03. Simply because the appointment order of the
appellant mentions that "he is appointed for a period of
five years or till he attains the age of 62 years", the
appointment does not cease to be a tenure-post. Even an
outsider (not an existing employee of the AIIMS) can be
selected and appointed to the post of Director. Can such
person be retired prematurely curtailing his tenure of five
years? Obviously not. The appointment of the appellant was
on a five years tenure but it could be curtailed in the
event of his attaining the age of 62 years before completing
the said tenure. The
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High Court failed to appreciate the simple alphabet of the
service jurisprudence. [577D-E]
1.04. Concept of superannuation which is well
understood in the service jurisprudence is alien to tenure
appointments which have a fixed life span. The appellant
could not therefore have been prematurely retired and that
too without being put on any notice whatsoever. [577G-H]
1.05 Since the appellant has since attained the age of
62 years, there is no question of reinstating him in the
office of the Director of the AIIMS. He shall, however, be
entitled to his salary less the non practising allowance,
for the period from December 1, 1981 to January 21, 1984.
[578D]
Dr. Bool Chand v. The Chancellor, Kurukshetra
University, [1968] 1 S.C.R. 434 and Dr. D.C. Saxena v. State
of Haryana, [1987] 3 S.C.R. 346, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 227 of
1982.
WITH
C.M.P. No. 7004/85, I.A. No. 1/91.
From the Judgment and Order dated 7.12.81 of the Delhi
High Court in C.W.No. 1673 of 1980.
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Appellant-In-Person.
J.D.Jain, A.K.Ganguli, Ms. Indira Sawhney, C.V. Subba
Rao and A.Mariaputham for the Respondents.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Dr. L.P. Agarwal was appointed as
Director, All India Institute of Medical Sciences, New Delhi
(AIIMS) with effect from February 18, 1979. The appointment
order dated April 6, 1979 stated that he was appointed as
Director "for a period of five years, or till he attains the
age of 62 years, whichever is earlier". He was confirmed in
the said post with effect from February 19, 1980. By an
order dated November 24, 1980 he was retired from service,
in the public interest, with immediate effect, by giving him
three months pay and allowances, in lieu of notice.
570
The Recruitment Rules governing the post of Director
provide direct recruitment as the only method of recruitment
to the said post. The post of Director, under the Rules, is
a tenure post for five years inclusive of one year
probation.
The question for our consideration is whether the
incumbent of the post of Director, AIIMS can be prematurely
retired before the completion of his tenure ? In other words
whether the service law concept of "premature retirement in
public interest" is applicable to a tenure post filled by
way of direct recruitment.
Dr. L.P. Agarwal entered the service of the AIIMS as a
Professor of Ophthalmology on February 23, 1959 at the age
of 37 years. He was appointed Dean of the AIIMS on November
19, 1977 being the senior-most member of the staff. He was
also appointed Chief Organiser of Dr. Rajendra Prasad Eye
Centre in the AIIMS. The post of the Director of the AIIMS
fell vacant in November, 1978 and nominations of suitable
candidates were invited from all the Vice-Chancellors of the
India Universities and also from Institutions of Medical
Education and Medical Research in the Country. The Special
Selection Committee met on February 7, 1979 and recommended
the name of Dr. L.P. Agarwal for appointment as Director.
The recommendation was accepted by the Institute-Body and
was approved by the Government of India. The then president
of the AIIMS, there upon issued the memorandum dated April
6, 1979 appointing Dr. L.P. Agarwal as Director of the AIIMS
with effect from February 18, 1979, the date from which he
was officiating as Director. The said memorandum reads as
under :-
"All India Institute of Medical Sciences"
Ansari Nagar
New Delhi-10016
6th April, 1979
Subject : Appointment of Director and Professor of
Ophthalmology of AIIMS, New Delhi.
MEMORANDUM
With the approval of the Central Government as
conveyed by
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its letter No. V.16012/38/78-ME (PG) dated
4.4.1979, Dr. L.P. Agarwal, Chief Organiser &
Professor of Ophthalmology, Dr. R.P. Centre for
Ophthalmic Sciences, New Delhi, is hereby appointed
as Director & Professor of Ophthalmology, All India
Institute of Medical Sciences, New Delhi, with
effect from 18.2.1979, for a period of five years,
or till he attains the age of 62 years, whichever
is earlier.
He will be paid remuneration at the rate of Rs.
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3,500 per month (fixed) with effect from the date
aforesaid mentioned.
Sd/- Dr. M.M.S. Sidhu
President All India Institute of Medical Sciences,
Ansari Nagar, New Delhi- 29"
According to Dr. Agarwal he was congratulated by the
Institute-Body and also by the President of the AIIMS for
doing effective and efficient work during the period of
probation. He earned excellent report for the year 1979-80.
He was confirmed in the post of the Director of the AIIMS
with effect from February 19, 1980 by a resolution of the
Institute-Body passed in the meeting held on February 14,
1980. The confirmation order dated February 15, 1980 reads
as under :-
"Dr. M.M.S.SIDHU,
M.P. PRESIDENT
ALL INDIA INSTITUTE OF MEDICAL SCIENCES,
ANSARI NAGAR, NEW DELHI- 16
15 February, 1980
MEMORADUM
Subject : Confirmation of Prof.L.P. Agarwal,
Director, AIIMS,
New Delhi.
On satisfactory completion of usual probationary
period, the Institute at their meeting held on 14th
February, 1980 has approved the confirmation of Dr.
L.P. Agarwal in the post of Director of the All
India Institute of Medical Sciences, w.e.f. 19.2.80
(Forenoon). Accordingly, Dr. L.P. Agarwal is con-
572
firmed in the post of Director, AIIMS w.e.f.
19.2.1980 (Forenoon).
The other conditions of his service shall remain
unaltered.
Sd/- M.M.S. Sidhu
PRESIDENT
15.2.1980"
Unfortunately for Dr. l.P.Agarwal, the Institute-Body
in its meeting held on November 24, 1980 decided to
prematurely retire him from service. The resolution is
reproduced hereunder :-
"RESOLUTION
The Institute resolves, in the public interest, to
retire Dr. L.P. Agarwal, Director, All India
Institute of Medical Sciences, New Delhi, with
immediate effect, by giving him three months’ pay
and allowances, in lieu of notice".
Dr. L.P. Agarwal challenged the above quoted resolution
of the Institute-Body by way of a writ petition under
Article 226 of the Constitution of India before Delhi High
Court on several grounds. On the basis of the rival
contentions of the parties, the High court formulated the
following points for its consideration:-
1. Who was the appointing authority of the
petitioner and in consequence the authority who
could compulsorily retire the petitioner when the
compulsory retirement is not by way of a penalty
imposed after disciplinary action ?
2. Whether the prior approval of the Central
Government was necessary to compulsorily retire the
Director of the Institute.
3. Whether the Director of the Institute and for
the matter of that the petitioner could be
compulsorily retired under Regulation 30(3) ?
Alternatively, whether compulsory retirement is
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permissible under F.R. 56(j) read with Regulation
35 ? If so, what would be the effect of the stand
of the contesting respondents that the petitioner
was compulsorily retired by virtue of the
provisions of Regulations 30(3).
573
4. Whether the provisions of Regulation 30(3) or
alternatively of F.R. 56(j) would apply to a tenure
post and, particularly, to the tenure post to which
the petitioner was appointed?
5. Whether the resolution to compulsorily retired
the petitioner was properly and legally moved at
the meeting of the Institute Body held on November
24, 1980 ?
6. Whether the decision to compulsorily retire the
petitioner was arrived at by considering relevant
material germane to the issue of compulsory
retirement ?
7. Whether the decision to compulsorily retire the
petitioner is vitiated by mala fides and amounts to
arbitrary exercise of power.
8. Whether the petitioner, even if it is held that
he has been validly compulsorily retired from the
post of Director, continues to hold the post of a
Professor of Ophthalmology in the Institute."
A Division Bench of the Delhi High Court by its
judgment dated December 7, 1981 rejected all the contentions
raised by the petitioner and decided all the points against
him. The writ petition was dismissed leaving the parties to
bear their own respective costs. This appeal by way of
special leave is against the judgment of the Division Bench
of the Delhi High Court.
The appellant contended before the High Court and
reiterated in the special leave petition before this Court
that he was appointed by the Janta Government and after the
change of the government he was removed from the post of
Director on the ground that he had close links with the
Janta party, Shri C.B. Gupta and Shri Raj Narain. He
alleged mala fide against the then Health Minister and
various other authorities. As mentioned above, the High
Court rejected all the contentions raised by the appellant
including the challenge based on legal and factual mala
fide.
It is not necessary for us to go into the various
points formulated and decided by the High Court as we are of
the view that the appellant must succeed on the sole
question which we have posed in the beginning of this
judgment.
574
Regulation 30 of the All India Institute of Medical
Sciences Regulations, 1958 (Regulations) which deals with
superannuation and pre-mature retirement reads as under :-
"30 (1) The age of superannuation of the employees
of the Institute other than members of the teaching
faculty and class IV employees shall be 58 years.
Provided that the non-faculty employees may be
granted extension of service or re-employment upto
the age of 60 years under very special
circumstances for reasons to be recorded in writing
on the merits of each such case and subject to
physical fitness and continued efficiency of the
employee concerned.
(2) the age of superannuation of the members of the
teaching faculty and class IV employees shall be 60
years. Provided that the services of the members
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of the teaching faculty may be retained upto the
age of 62 years in cases of persons who are
exceptionally talented for reasons to be recorded
in writing on the merits of each such case and
subject to physical fitness and continued
efficiency of the person concerned.
3. Notwithstanding anything in sub-regulations (1)
and (2), the appointing 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 employee of the Institute by giving him notice
of not less than three months in writing or three
month’s pay and allowance in lieu of such notice :
(i) if he is a Group A or Group B service or post
and had entered the service of the Institute before
attaining the age of thirty five years; after he
has attained the age of fifty years; and
(ii) in any other case, after he has attained the
age of fifty-five years : Provided that nothing in
this sub-regulation shall apply to an employee in
Group D service of post who entered service on or
before the 1.12.62.
(4) *
EXPLANATION :
575
In this regulation the expression member of the
teaching faculty, means "Professors, Associate
Professors, Assistant Professors and lecturers" and
such other employees of the Institution as may be
declared to be member of teaching faculty by the
Central Government."
Regulation 35 of the Regulations which provides for
other conditions of service is reproduced as under :-
"35. In respect of matters not provided of in these
regulations, the rules as applicable to Central
Government Servants regarding the general
conditions of service, pay, allowances including
travelling and daily allowances, leave salary,
joining time,foreign service terms etc., and orders
and decisions issued in this regard by the Central
Government from time to time shall apply mutatis
mutandis to the employees of the Institute."
The respondents argued before the High Court that the
appellant was retired by the AIIMS under Regulation 30(3) of
the Regulations in public interest after he attained the age
of 55 years. It was further contended that fundamental Rule
56(j) was also applicable to the AIIMS employees by virtue
of Regulation 35 of the Regulations. It was argued that
even if Regulation 30(3) was not attracted the Institute had
the power to prematurely retire the appellant, in public
interest, under fundamental Rule 56(j) applicable to the
Central Government employees. It was contended that despite
the fact the appellant was on a tenure post there was no bar
to prematurely retire him by invoking either Regulation
30(3) or fundamental Rule 56(j).
The appellant on the other hand contended before the
High Court and reiterated the same before us that the post
of Director of the AIIMS is a tenure post under the
Recruitment Rules of the Institute and he was appointed to
the said post by way of direct recruitment. According to
him his tenure could not be cut short by bringing in the
concept of superannuation or premature retirement which is
allien to a tenure post.
The High Court rejected the contention of the appellant
on the following reasoning :-
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"Though the Director’s post is mentioned as a
tenure post in
576
the amended schedule to the recruitment rules
relied upon (and at this stage we make no comment
as to whether the said rules are statutory), the
petitioner’s appointment itself was for a period of
5 years or the date when he attains the age of 62
years, whichever is earlier.........In our view,
reading the order of appointment of the petitioner
the concept of superannuation is to be clearly
found to be existing. The order of appointment
does not state that the petitioner was being
appointed Director for a period of 5 years or on a
tenure of 5 years. The tenure mentioned in the
appointment order is 5 years or attainment of the
age of 62 years, whichever is earlier. The age of
62 years mentioned in the appointment order is
obviously in consequence of the proviso to
Regulation 30(2) which permits the normal age of
superannuation to the extended from 60 years to 62
years for members of the teaching faculty in cases
of persons who are exceptionally talented, subject
of course to their physical fitness and continued
efficiency. The petitioner cannot be heard to say
that he was appointed for a tenure of 5 years. The
post may or may not be tenure post what is relevant
is the terms on which the petitioner was
appointed........We now turn to the argument
regarding what the petitioner claims to be a
statutory rules which respondents 1 to 3 say is not
a statutory rule. We need not express any firm
opinion as to whether the rule relied upon is or is
not statutory. The Schedule relied upon is of the
Recruitment Rules. It states that the post of the
Director is as Class I post to be filled direct
recruitment. The upper age limit for the post is
50 years and the tenure is 5 years inclusive of one
year probation. As the Supreme Court had held in
Dr. Bool Chand’s case the tenure of 5 years fixed
by the rules is a limitation placed upon the
appointing authority and does not create an
indefeasible right in the person appointed as
Director to a five year term. In any case, as we
have held earlier, the petitioner is bound by the
terms of his own appointment which was to the
effect that the tenure was to be of five years or
till the petitioner attained the age of 62 years
whichever was earlier. Indeed, the manner in which
the appointment order is worded makes it clear that
the appointing authority was conscious of the
limitation placed upon it that
577
the tenure should not be more than 5 years. That
is why it fixed the maximum period of tenure at 5
years or till the petitioner attained the age of 62
years, whichever expired earlier".
We have given our thoughtful consideration to the
reasoning and the conclusions reached the High Court. We
are not inclined to agree with the same. Under the
Recruitment Rules the post of Director of the AIIMS is a
tenure post. The said rules further provide the method of
direct recruitment for filling the post. These service-
conditions make the post of Director a tenure post and as
such the question of superannuating or prematurely retiring
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the incumbent of the said post does not arise. The age of
62 years provided under Proviso to Regulation 30(2) of the
Regulations only shows that no employee of the AIIMS can be
given extension beyond that age. This has obviously been
done for maintaining efficiency in the Institute-Services.
We do not agree that simply because the appointment order of
the appellant mentions that "he is appointed for a period of
five years or till he attains the age of 62 years", the
appointment ceases to be to a tenure-post. Even an outsider
(not an existing employee of the AIIMS) can be selected and
appointed to the post of Director. Can such person be
retired prematurely curtailing his tenure of five years?
Obviously not. The appointment of the appellant was on a
Five Years Tenure but it could be curtailed in the event of
his attaining the age of 62 years before completing the said
tenure. The High Court failed to appreciate the simple
alphabet of the service jurisprudence. The High Court’s
reasoning is against the clear and unambiguous language of
the Recruitment Rules. The said rules provide "Tenure means
for five years inclusive of one year probation" and the post
is to be filled "by direct recruitment". Tenure means a
term during which an office is held. It is a condition of
holding the office. Once a person is appointed to a tenure
post, his appointment to the said office begins when he
joins and it comes to an end on the completion of the tenure
unless curtailed on justifiable grounds. Such a person does
not superannuate, he only goes out of the office on
completion of his tenure. The question of prematurely
retiring him does not arise. The appointment order gave a
clear tenure to the appellant. The High Court fell into
error in reading "the concept of superannuation" in the said
order. Concept of superannuation which is well understood
in the service jurisprudence is alien to tenure appointments
which have a fixed life span. The appellant could not
therefore have been prematurely retired and that too without
being put on any notice whatsoever. Under what
circumstances can an
578
appointment for a tenure be cut short is not a matter which
requires our immediate consideration in this case because
the order impugned before the High Court concerned itself
only with premature retirement and the High Court also dealt
with that aspect of the matter only. This Court’s judgment
in Dr. Bool, Chand, v. The Chancellor, Kurukshetra
University, [1968] 1. S.C.R. 434 relied upon by the High
Court is not on the joint involved in this case. In that
case the tenure of Dr. Bool Chand was curtailed as he was
found unfit to continue as Vice-Chancellor having regard to
his antecedents which were not disclosed by him at the time
of his appointment as Vice-Chancellor. Similarly the
judgment in Dr. D.C.Saxena v. State of Haryana, [1987] 3
S.C.R. 346 has no relevance to the facts of this case.
We, therefore, allow the appeal with costs, set aside
the judgment of the High Court,, allow the writ petition of
the appellant and quash the resolution of the Institute-Body
dated November 24, 1980 and the consequent order retiring
the appellant. Since the appellant has already attained the
age of 62 years, there is no question of reinstating him in
the office of the Director of the AIIMS. He shall, however,
be entitled to his salary less the non-practising allowance,
for the period from December 1, 1981 to January 21, 1984.
Respondents 1 and 2 are directed to pay the arrears of the
salary to the appellant within three months from today. The
appellant shall also be entitled to 12% interest on the said
arrears. We quantify the costs as Rs. 10,000.
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V.P.R. Appeal allowed.
579