Judgement

SEN, J. :- The only question involved in this appeal by special leave from the judgment and order of the High Court of Gujarat dated January 24, 1972 is whether the appellant who was officiating as Superintending Engineer in the Gujarat Service of Engineers, Class I could be retired by the State Government on the date on which he attained the age of 55 years on the ground that he was merely officiating in that post and had not "attained to the rank of a Superintending Engineer" within the meaning of R. 161(1)(c)(ii)(1) of the Bombay Civil Services Rules, 1959 as applicable to the State of Gujarat.

2. The facts giving rise to the case are as follows. The appellant was an officer of the Bombay Service of Engineers, Class I in the erstwhile State of Bombay and was promoted to the post of Executive Engineer. In July 1965 when the post of Superintending Engineer fell vacant the State Government promoted him to officiate as Superintending Engineer in the Gujarat Service of Engineers, Class I until further orders. On account of his meritorious service as Superintending Engineer the appellant was put in charge of the Minor Irrigation Project Circle. The work undoubtedly is of a highly specialised and skilled nature and officers of merit and proven ability, skill and competence are usually posted there. The appellant had excellent record of service without any blemish and earned encomiums for his meritorious service in his new capacity. In 1966 the Chief Engineer, Public Works Department addressed a letter to the appellant communicating the State Governments appreciation of the valuable work which the appellant and the officers and staff under him had put up during the scarcity relief operations in that year. However, the State Government all of a sudden on September 13, 1967 purported to compulsorily retire him under the first proviso to R. 161(1)(a) w.e.f. December 15, 1967 after giving him three months notice he having attained the age of 55 years on November 12, 1967. Normally, the appellant would have as Superintending Engineer retired on November 12, 1970, the date on which he attained the age of 58 years. He had by then put up 29 years of service and there was no adverse entry in any of his confidential reports questioning his integrity or his efficiency or ability for retention in service. The appellant accordingly assailed the order of compulsory retirement by a petition in the High Court under Art.. 226 of the Constitution.

3. In contesting his claim, the State Government in its return pleaded that the case of the appellant was governed by R. 161(1)(c)(ii)(1) of the Rules and not by R. 161(1)(a) and reference to a wrong Provision would not necessarily invalidate the order, that the appellant had not substantively attained to the rank of Superintending Engineer before he reached the age of 50 years and therefore the Government could compulsorily retire him at any time after he reached that age. It was asserted that the Government was entitled to review the cases of government servants who were to attain the age of 55 years as per the terms of the circular issued by the Government in the General Administrative Department dated October 25, 1963, as amended from time to time, and that in accordance with the procedure laid down the case of the appellant was reviewed before he attained the age of 55 years and it was decided that it was not desirable in the public interest to continue him in government service and that he should be compulsorily retired by giving three months notice. Even otherwise, it was contended that by virtue of the power vested in the Government under the first proviso to R. 161(1)(a) the Government could direct the compulsory retirement even of a person who had attained the rank of Superintending Engineer before reaching the age of 50 years and that power was not excluded by reason of R. 161(1)(c)(ii)(1).

4. The learned single Judge (A. D. Desai J.) relying upon the decision of a Division Bench in Ishwar