Judgment

K. S. HEGDE

( 1 ) IN this appeal by certificate the only question that was canvassed before us was as regards the validity of the order contained in memorandum No F. 16-42/68-S. 1, dated 13/08/1969 issued by the Government of India. Ministry of Education and Youth Services, retiring the 1st respondent compulsorily from Government service in exercise of the powers conferred under clause (j) of Fundamental Rule 56 with effect from 14/08/1969. That order was attacked before the High Court on various grounds. The High Court rejected some of those grounds. It did not find it necessary to decide a few others but accepting the contention of the respondent that in making the order, the appellant had violated the principles of natural justice, it held that the impugned order is invalid. The High Court accordingly issued a writ of certiorari quashing that order.

( 2 ) BEFORE us the only contention presented for our decision was whether the High Court was right in holding that in making the impugned order the appellant had violated the principles of natural justice. No other contention was taken before us. Hence we shall address ourselves only to that question.

( 3 ) BEFORE proceeding to examine the contention above formulated, it is necessary to set out the material facts. The 1st respondent herein Col J. N. Sinha successfully competed in the examination held by the Federal Service Commission in 1938 for the post of Extra-Assistant Superintendent in the Survey of India Service. After selection, he was appointed as an Extra-Assistant Superintendent. He worked as probationer for a period of three years and thereafter he was confirmed in that post in 1941. During the second world war, he volunteered for active service in the army and was granted an emergency Commission in the army. He was granted a regular commission in the army with effect from 23/10/1942.

( 4 ) IN exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President of India made on 17/08/1950 rules called the Survey of India (Recruitment from Corps of Engineering Officers) Rules, 1950 for regulating the recruitment and conditions of service of persons appointed from the Corps of Engineering Officers of the Defence Ministry to the Survey of India Class I Service. Rule 2 of the said Rules provides for the recruitment of Military Officers to the Survey of India Class I Service and Rule 3 provides that the recruited officers will be on probation for two years which may be extended by the Government on the advice of the Surveyor General. The 1st respondent was taken into the Survey of India Class I Service under Rule 2 of the aforesaid 1950 Rules as Deputy Superintendent Surveyor with effect from June 1951 Thereafter the President of India in exercise of the powers under the proviso to Art. 309, made on 1/07/1960, the Survey of India Class I (Recruitment) Rules, 1960 for regulating the recruitment of Survey of India Class I Service. The 1st respondent was subsequently promoted firstly as Superintending Surveyor and then as Deputy Director. After sometime he was promoted as Director and lastly as Director (Selection Grade ). The last mentioned promotion was made with effect from 27/10/1966. On 17/05/1969, Fundamental Rule 56 (j) was amended Thereafter on 13/08/1969, the Ministry of Education and Youth Services issued the impugned order. The 1st respondent was given three months pay and allowances in lieu of three months notice prescribed in Fundamental Rule 56 (j ). The 1st respondent being aggrieved by that order, challenged the validity of the same. As mentioned earlier, the High Court accepted his plea. The Union of India has appealed against that order.

FUNDAMENTAL Rule 56 (i) reads:

"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