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SUPREME COURT OF INDIA
30th March 1954.
B.K. MUKHERJEA, S.R. DAS, BHAGWATI, JAGANNADHA DAS, VENKATARAMA AYYAR, JJ.
Shyamlal, Appellant
Versus
State of U.P. and another, Respondents
Civil Appeal No. 284 of 1953.
Advocates appeared
Mr. N. C. Chatterjee, Senior Advocate (Mr. P. K. Chatterjee, Advocate, with him), for Appellant; Mr. C. K. Daphtary, Solicitor-General for India and Mr. K. L. Misra, Advocate-General of Uttar Pradesh (Mr. C. P. Lal, Advocate with them), and Mr. C. K. Daphtary, Solicitor-General for India (Mr. Porus A Metha Advocate with him), instructed by Mr. R. H. Dhebar, Agent , for Respondents (Nos. 1 & 2 respectively).
S was appointed by the Secretary of State for India-in-Council to the Indian Service of Engineers in October 1923. The conditions governing the terms of his appointment, promotion, leave, pension etc. were recorded in a letter issued from India office, London on the 13th February, 1924. He was posted in the United Provinces. After the attainment of independence by India, a fresh agreement was entered into by and between him, the Governor of the United Provinces and the Governor-General of India on the 16th September, 1948 confirming his terms of appointment contained in the letter of the 13th February, 1924-.
In January 1950, a letter was addressed by the Public Works Department of the U. P. Government to S calling upon him to show cause within three weeks why he should not be compulsorily retired under the provisions of article 465-A, Civil Service Regulations, as it appeared (I) that he had been making systematic and gross overpayments apparently for no other reason than to benefit the contractors concerned and (2) that he had spent large amounts of public money for his own personal convenience, and (3) that he had taken recourse to devious and unscrupulous methods. No less than six instances on which these charges were based were then set out. On receipt of Ss explanations, the case was referred to the Union Public Service Commission. The Commission came to the conclusion that five out of the six charges had been proved and submitted their report accordingly. On the 17th April, 1953 the President after considering the case and the recommendations of the Commission, decided that S should retire forthwith from service under Note 1 to Article 465-A of the Civil Service Regulations. Before this order could be served on S, he filed a petition before the Allahabad High Court, under Art. 226 of the Constitution, praying that the order made by the President on the 17th April, 1953 be quashed on the ground inter alia, that the order was illegal and void in that it was made without affording him an opportunity to show cause against the action proposed to be taken in regard to him. The petition was dismissed by the High Court, and against that order there was appeal to the Supreme Court. The following contentions were urged:
(1) that Article 465-A of the Civil Service Regulations is not applicable or binding on the appellant;
(2) that compulsory retirement is nothing but removal from service and the provisions of Article 311 of the Constitution apply to the case of compulsory retirement;
(3) that note 1 to Article 465-A of the Civil Service Regulations, in so far as it confers on the Government an absolute right to retire an officer who has completed twenty-five years qualifying service without giving any reason, is repugnant to Article 311 of the Constitution.
Held: (1) It appears that by Resolution No. 1085•E A. passed on the 15 November, 19 I 9 and published in the Gazette of India on the same date, the Government of India, Finance Department; with the approval of the Secretary of State for India, announced certain new rules relating to retiring pensions of the officers (other than military officers or members of the Indian Civil Service) and the services specified therein. The services so specified included the Public Works Department. The new rules were, by rule I, made to apply only to officers joining the above services after the 29th August, 1919 and to those existing officers who elected in writing to come under their provisions. These rules were, therefore, in operation on the 23rd December 1919 when the Government of India Act, 1919 was passed and were accordingly validated and confirmed by subsection (4) of section 96•B of that Act. The rules thus confirmed by section 96•B (4) became applicable to S on his employment by the Secretary of State in October, 1923.
(2) In Resolution No. 714-C.S.R. dated the 10th May, 1920, it was announced that with a view to the exact scope of the new pension. rules published in Resolution No. 1085-E.A. dated the 15th November, 1919 being made clear the Government of India intended to publish those rules in the form of amendments to the Civil Service Regulations. Accordingly Resolution No. 1003-C.S.R. dated the 18th June, 1920 along with certain amendments to the Civil Service Regulations were published in the Gazette of India of the 19th June, 1920 for general information. The amendments so published provided for the insertion in the Civil Service Regulations of a new Article 349-A stating that the rules in certain Articles including Article 465•A would apply to officers in the services specified therein, which included the Public Works Department. The amendments also provided for the insertion in the Civil Service Regulations, amongst others, of a new rule as Article 465-A with two notes appended thereto. Thus, the purpose of publishing the new rules in the form of amendments to the Civil Service Regulations, as Resolution No. 714-C S.R. itself stated expressly, was only to clarify the exact scope of these new rules and not to bring them into force for the first time. The new rules came into operation ex proprio vigore on their publication in the Official Gazette on the 15th November, 1919 and their subsequent publication for general information in the form of amendments to the Civil Service Regulations only served to make their exact scope clear.
(3) The language of Note I to Article 465•A make3 it abundantly clear that the Governments right to compulsorily retire an officer is not derived from Note 1. Note I only assumes its existence aliunde and indicates when that existing right is to be exercised and what consequences are to follow if that right is exercised. That right is obviously derived from new rule 4 which was announced by Resolution No. 1085-E.A. on the 15th November 1919. Being in operation at the date of the passing of the Government of India Act, 19]9 that rule, by virtue of sub-section (4) of section 96-8 of that Act, became binding on the appellant though he was employed by the Secretary of State for India. The first question raised by the appellant must accordingly be answered against him.
(4) A .compulsory retirement does not amount to dismissal or removal, and therefore does not attract the provisions of Article 311 of the Constitution or of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, and Note] to Art. 465-A of the Civil Service Regulations is not repugnant to Art. 311. The order of the President of India compulsorily retiring an officer cannot therefore be challenged <;m the ground that he had not been afforded full opportunity of showing cause against the action sought to be taken in regard to him. - Article 311- Civil Service Regulations, 1920, Article 465-A-Note I. - Compulsory retirement.
Judgment
DAS. J. : This appeal arises out of an application made by the appellant to the High Court of Allahabad under Articles 226 of the Constitution praying for an appropriate writ quashing the order made by the President of India on the 17th April 1953 ordering the compulsory retirement of the appellant who had completed 25 years qualifying service. The High Court by its judgment dated the 1st October 1953 dismissed the application but, as the case involved a substantial question of the interpretation of the constitution, the High Court granted leave to the appellant to appeal to this Court.
2. The material facts may be shortly stated as follows: The appellant passed his Civil Engineering degree examination from the Thomason College, Roorkee, in 1922. He stood first in order of merit and carried away the Gold Medal and other prizes awarded to the best student of that year. He was appointed by the Secretary of State of India in Council to the Indian Service of Engineers as an Assistant Executive Engineer with effect from the 20th October 1923. The conditions governing the appellant s terms of appointment promotion, leave, pension, etc., will be found recorded in a letter issued from India Office, London, on the 13th February 1924.
A copy of that letter is annexed to the petition filed under Article 226. He was posted in the United Provinces. In 1944 the appellant was promoted to the rank of officiating Superintending Engineer. After the attainment of independence by India a fresh agreement was entered into by and between the appellant, the Governor of the United Provinces and the Governor-General of India on the 16th September 1948 confirming the appellant s terms of appointment contained in the latter of the 13th February 1924.
At or about this time the appellant along with several other officers was recommended by the Chief Engineer for confirmation as Superintending Engineer. The appellant, however, was not confirmed but continued to officiate as Superintending Engineer until the time hereinafter stated. On the 4th January 1950 the Public Works Department of the U. P. Government addressed a letter to the Chief Engineer, Irrigation Branch, U. P. requesting him to communicate the letter enclosed therewith to the appellant and to ask him to submit as early as possible whatever explanation he might desire to give.
The enclosed letter called upon the appellant to show cause within three weeks why he should not be compulsorily retired under the provisions of Article 465A, Civil Service Regulations, as it appeared (1) that he had been making systematic and gross overpayments apparently for no other reason than to benefit the contractors concerned and (2) that he had spent large amounts of public money for his own personal convenience and (3) that he had taken recourse to devious and unscrupulous methods. No less than six instances on which these charges were based were than set out. The covering letter concluded with the following remarks:
"Under the rules Government reserve the right to compulsorily retire any officer whose retention in service they consider not to be in the public interest. This is not, therefore, a formal enquiry under the Classification, Control, and Appeal Rules but before taking the action indicated above Government were pleased to afford an opportunity so Shri Shyam Lal, I.S.E., to show cause why he should not be compulsorily retired".
A copy of the letter of the 4th January 1950 together with a copy of the enclosure was sent to the Appellant with the request that his explanation might be forwarded within the period mentioned by the Government. The appellant submitted his explanations which, together with the Chief Engineer s comments thereon, were placed before the Union Public Service Commission. The Commission came to the conclusion that five out of the six charges had been proved and submitted their Report accordingly. On the 17th April 1953 the President after considering the case and the recommendations
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