Judgement

VENKATARAMA AIYAR J. - This is an appeal against the judgment and order of the High Court of Saurashtra in a writ petition filed by the respondent, setting aside an order passed by the State of Saurashtra on October 30, 1952 retiring him from service.

2. The respondent was appointed in 1948 Memandari, that is, Superintendent of State Guest Houses, in what was the State of Junagadh when it was administered by the Government of India and was later on, confirmed in that appointment. In 1949 Junagadh became integrated into the State of Saurashtra, and thereafter, the services of the respondent were continued by that State, and he was appointed from time to time to various posts. On June 15, 1950, he was appointed Sales Tax Officer, Madhya Saurashtra, Rajkot, and was confirmed in that post an April 16, 1952. On October 30, 1952 the Government of Saurashtra purporting to act under Government Resolution No. 60 of 1948 as it then stood, passed an order compulsorily terminating his services. The respondent thereupon filed a writ application in the High Court of Saurashtra, challenging the validity of this order on the ground that it was made without any notice to him of any charge of misconduct or inefficiency and without any enquiry, and was, in consequence, in contravention of Art. 311(2). The learned Judges upheld this contention, and set aside the order in question on the ground that it was, in effect, one of dismissal, and that, as there had been no enquiry, it was illegal and void. This appeal has been preferred against their judgment and order on a certificate under Art. 133(1) (c).

3. It will be convenient at this stage to refer to the relevant rules bearing on the question. Rule 161 of the Bombay Civil Services Rules, which Rules had been adopted by the State of Saurashtra with some modifications runs as follows:

"Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of a Government servant, other than an inferior servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement only with the previous sanction of Government, on public grounds which must be recorded in writing."

It may be stated that the respondent was not an inferior servant, and this rule was therefore applicable to him.

4. Then, there was R. 165-A, which was in these terms:

"A competent authority may remove any Government servant subject of these rules from Government service or may require him to retire from it on the ground of misconduct, insolvency or inefficiency:

Provided, that, before any such order is issued, the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services, Conduct, Discipline and Appeal Rules shall be followed."

Note 1 referred to above is as follows:

"For the procedure to be followed before an order of dismissal, removal or reduction in rank can be passed, see R. 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, which has been reproduced in Appendix I to these Rules. The instructions issued by the Government for the guidance of officers in taking proceedings under that Rules are contained in Appendix II to these Rules."

Rule 55, referred to above, in so far as it is material, is as follows:

"Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the allegations which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the c