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IN THE HIGH COURT OF BOMBAY
(V.S. Deshpande and G.N. Vaidya JJ.)
JAGGANNATH DWARKANATH RAIE - Petitioner
Versus
STATE OF MAHARASHTRA - Respondents
Advocates appeared
For petitioner - K.K. Singhavi with C.J. Sawant.
For respondents - A.M. Setalvad instructed by Little and Co.
BOMBAY CIVIL SERVICES RULES - COMPULSORY RETIREMENT - REVIEW OF CASES OF CLASS II OFFICERS FOR JUDGING THEIR SUITABILITY TO CONTINUE IN SERVICE UPTO THE AGE OF 55 YEARS OR 58 YEARS - REVIEW COMMITTEE - RECOMMENDATIONS - GOVERNMENT ORDER OF COMPULSORY RETIREMENT - JUDICIAL REVIEW - SCOPE - PUBLIC INTEREST - MATERIAL - BURDEN OF PROOF - PRIVILEGE.
Fact of the Case:
The petitioner, a Police Inspector, was compulsorily retired from service by the Government under the Bombay Civil Services (7th Amendment) Rules, 1971. The petitioner challenged the order of compulsory retirement on the grounds that the Rule under which he was compulsorily proposed to be retired was illegal inasmuch as the prior approval of the Central Government as required by the provisions of the States Reorganisation Act was not taken by the Government of Maharashtra before enacting the said Rule or before enforcing it, that the said Rules were ultra vires article 311 (2) of the Constitutions of India, that the Amendment Rules were not consistent with the terms and conditions approved by the Central Government under section 115 (7) of the States Reorganisation Act, 1956, and that even if the said Rules were not invalid for any of the reasons set forth above, the impugned order dated June 9, 1971 quoted above and the order compulsorily retiring the petitioner dated July 21, 1971 referred to above (challenged by amending the petition, and the order was passed subsequent to the admission of the petition) were both in contravention of Rule 161 (c-1) of the Bombay Civil Services Rules.
Finding of the Court:
The Court held that the Government was unable to place any material or to point out any material on the basis of which the order of compulsory retirement was made against the petitioner. It was not disputed that such an order could be only made if his work was unsatisfactory and his health was indifferent or defective for discharging his duties. Health appears to us to be an objective fact. What is stated merely in, the affidavit is that his superior officers had made remarks that he was keeping indifferent health. Remarks are not produced before us and we do not see how such remarks could be passed against a person who was found fit for promotion in 1968 and who never went on sick leave thereafter.
Issues: 1. Whether the Bombay Civil Services (7th Amendment) Rules, 1971 violated articles 14 to 16 of the Constitution of India? 2. Whether the said Rules were ultra vires article 311 (2) of the Constitutions of India? 3. Whether the Amendment Rules were not consistent with the terms and conditions approved by the Central Government under section 115 (7) of the States Reorganisation Act, 1956? 4. Whether the impugned order dated June 9, 1971 and the order compulsorily retiring the petitioner dated July 21, 1971 were both in contravention of Rule 161 (c-1) of the Bombay Civil Services Rules?
Ratio Decidendi: The Court held that the Government had no material whatsoever to come to the conclusion that it was in the public interest to prematurely retire the petitioner. The Court further held that the Government was not entitled to rely on its confidential records and compulsorily retire the petitioner without placing any material before the Court to show that the public interest required the discontinuance of the petitioner.
Final Decision: The petition was allowed. The Court quashed the confidential order dated June 9, 1971 Exh. 'A' and the order dated July 21,1971 Exh. 'D', and directed that the respondents, their officers, servants and agents shall forbear from taking any action in furtherance of the said order dated July 21, 1971 and shall further pay to the petitioner his salary and all other emoluments, including the increments due, on the basis that he continued in service notwithstanding the impugned orders, as Inspector of Police.
VAIDYA J.-This petition raised a difficult question under the Bombay Civil Services Rules, as amended by the Bombay Civil Services (7th Amendment) Rules, 1971.
2. The petitioner challenges the order dated June 9, 1971 and the order dated July 21, 1971 purporting to have been passed by the Inspector General of Police, Maharashtra State, under the said Amendment Rules of 1971 comoulsorily retiring the petitioner "from the date of expiry of three months period from the date of receipt of the notice" dated July 21,1971.
3. The petitioner was born on December 24, 1918. He was commissioned as an Officer in the Indian Army and after his service of 4i years he was relieved from the Army in the year 1946. He was then selected for training at the Police Training Centre at Nasik. After completion of the training, he was appointed as a. Sub-Inspector of Police at Poona in the year 1948. He was confirmed in that post with effect from July 1, 1949. On July 3, 1968 he was promoted to officiate as Inspector of Police. First he was posted at the Police Training Centre at Nasik. He worked there up to December 12, 1968. Thereafter he was posted at Parbhani. His work throughout was satisfactory and without any blemish. He secured as many as 62 rewards for his services. He was also given a reward for doing strenuous duties during the riots of 1965. The remarks appreciating his services were placed on record by the Superintendent of Police, Satara. He had not received any adverse remarks in his work. He was keeping good health. He had never taken sick leave. Only on one occasion he made an application for leave on the ground of sickness, but the same was refused by the administration on the ground that he was fit to carry out executive work. The petitioner was never asked by the administration to subject himself to any medical examination. The petitioner, therefore, submitted in his petition that he was quite fit to discharge his duties as Police Inspector.
4. Notwithstanding these facts, however, the petitioner received on November 2, 1970 a confidential memo or order dated October 15, 1970 through the Superintendent of Police, Parbhani, informing him that the Government had decided that he should be retired from service prematurely", unless he himself would elect to retire voluntarily by giving three months notice. The said order was challenged by the petitioner in Special Civil Application No. 2805 of 1971 contending, inter alia, that the Rule under which he was compulsorily proposed to be retired was illegal inasmuch as the prior approval of the Central Government as required by the provisions of the States Reorganisation Act was not taken by the Government of Maharashtra before enacting the said Rule or before enforcing il. After the petition was admitted, the Government withdrew the order and the petitioner dropped the application.
5. On June 9, 1971, he was, however, served with the impugned order annexed at exh. A to the petition which is as follows:
"Confidential Immediate No. A (R) 5288-PI (JDR) /70
Bombay,09 June, 1971.
Subject : Review of cases of Class II Officers of the Police Department for judging their suitability to continue in service upto the age of 55 years or 58 years.
Shri J. D. Raje, Police Inspector has attained the age of 52 years on 24-12-1970. ·It has been decided he should b;: retired from service prematurely unless he himself would elect to retire voluntarily by giving three months notice He is, therefore, advised to give the requisite notice and retire voluntarily. If no such notice is received from him within a period of one month from the date of receipt of this Memo by him, necessary notice to retire him will be issued by the I. G.
2. It will be open to him while giving the notice to apply for such leave preparatory to retirement as may be admissible to him so that he would actually retire from service on the expiry of the leave that may be granted to him as leave preparatory to retirement. 3. He should pl
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