Judgement

RANGANATH MISRA, J.:- The petitioner of this application under Art. 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 up to the normal date of superannuation.

2. 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 promoted as officiating Assistant Engineer in Class II service 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 continuing in that post when he was compulsorily retired.

3. 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 judgment delivered by this Honble Court on 26-2-1980, copy at Annexure-C hereto. (Union of India v. K. R. Tahiliani, (1980) 1 Serv LR 847 : (AIR 1980 SC 953)). According to the said judgment F. R. 56(j)(i) has no application to officiating Government servants, hence can have no application to the petitioner since the petitioner was an officiating Government servant."

The impugned notice ran thus :-

"No. 32/452/66-EC. III

Government of India

Central Public Works Department

New Delhi, the 3-8-76

O R D E R

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 Cl. (j) of Rule 56 of the Fundamental Rules, the Engineer-in-Chief hereby gives notice to Shri A. L. Ahuja, Assistant 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 or the service of this notice on him. whichever is later.

Sd/-

(V. R. VAISH)

ENGINEER-IN-CHIEF

To,

Shri A. L. Ahuja,

Assistant Engineer (Civil),

(Under Suspension),

All/85, Lajpat Nagar,

New Delhi- 110024."

4. 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 retire any Government servant by giving him notice of not less than three months in writing 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 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 Cl. (j) in the case of a Government servant in Class I or Class II service or post where he entered into service before