Judgment

GAJENDRAGADKAR, G.J.I. : This petition which has been filed by the petitioner S. Gurdev Singh Sidhu under Art. 32 of the Constitution, challenges the validity of Article 9 (1) of the Pepsu Services Regulations, Volume I, as amended by the Governor of Punjab by the notification issued by him on the 19th January, 1960 in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution and all other powers enabling him in that behalf. The petitioner s contention is that the said article contravenes the constitutional right guaranteed to the persons employed in civil capacities either under the Union or the State, by Art. 316.

2. The petitioner was appointed as Assistant Superintendent of Police in the erstwhile Patiala State by His Highness, Maharaja Adhiraj of Patiala on the 4th of February, 1942. The conditions of his service were governed by the Patiala State Service Regulations which had been issued by the Ruler of Patiala State who was at the relevant time the sovereign legislature of the State. Later, the petitioner was confirmed in the rank on the occurrence of a regular vacancy after he had undergone practical district training course in Punjab in 1947. On the formation of Patiala and East Punjab States Union on the 20th August, 1948,the petitioner was integrated in Pepsu Police Service. In due course, he was promoted to officiate as Superintendent of Police in February, 1950 by His Highness, the Rajpramukh of the erstwhile State of Pepsu.

3. On the 25th March, 1963, respondent No. 2 S. Gurdial Singh ,Inspector General of Police and Joint Secretary to the Government of Punjab, issued a notice against the petitioner purporting to act under the second proviso to Article 9.1 of the Pepsu Services Regulations to show cause why he should not be compulsorily retired. The petitioner alleges that the second proviso to Article 9.1 under which the said notice has been issued against him, is invalid, and so, he has moved this Court under Art. 32 for quashing the said notice on the ground that the article on which it is based is itself ultra vires and inoperative. Respondent No. 1, the State of Punjab, and respondent No. 2 have by their counter-affidavit denied the petitioner s contention that the impugned Article 9.1 is constitutionally invalid and they have resisted his claim for quashing the notice issued by respondent No. 2 against the petitioner. That is how the only point which arises for our decision in the present petition is whether the impugned article is shown to be constitutionally invalid.

4. Before dealing with this point, it is necessary to read the said article:

"The following shall be added after the first proviso to clause (1) of Article 9.1 of the said regulations:

(ii) "Provided further that Government retains an absolute right to retire any Government servant after he has completed ten years qualifying service without giving any reason and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with the further services of a Government servant such as on account of inefficiency, dishonestly, corruption or infamous conduct. Thus the rule is intended for use;

(a) against a Government servant whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient, (i.e. when a Government servant s value is clearly incommensurate with the pay which he draws), but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the proviso as a financial weapon, that is to say the proviso should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds;

(b) in cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved u