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1965 Supreme(Pat) 92
PATNA HIGH COURT
R.L.Narasimham and R.J.Bahadur JJ.
Ram Dass Shukla
Versus
State Of Bihar
Civil Writ Judicial No. 667 of 1965 ;
Decided On : AUGUST 31, 1965
Compulsory retirement under a rule providing for a minimum period of service does not amount to removal from service and does not violate Article 311(2) of the Constitution. A statutory provision that lays down a policy or principle for the guidance of the exercise of discretion by the authority concerned in the matter of selection or classification of persons to whom the said provision should apply, will not be unconstitutional.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 311(2) - ARTICLE 14 - COMPULSORY RETIREMENT - VALIDITY OF RULE - BIHAR LIBERALISED PENSION SCHEME, 1950, PARAGRAPH 1(2)(A).
Fact of the Case:
An officiating Sub-inspector of Police challenged an order directing his retirement from service under the Bihar Liberalised Pension Scheme, 1950, paragraph 1(2)(a), arguing that it amounted to removal from service without complying with Article 311(2) and violated Article 14.
Finding of the Court:
The court held that the impugned provision did not contravene Article 311(2) as it provided for compulsory retirement after 30 years of qualifying service, which was a reasonable age of superannuation. The court also held that the provision did not violate Article 14 as it laid down a principle or policy for the guidance of the authority exercising the discretion to terminate the services of a Government servant.
Issues: 1. Whether the impugned provision contravened Article 311(2) of the Constitution. 2. Whether the impugned provision violated Article 14 of the Constitution.
Ratio Decidendi: 1. The court held that the impugned provision did not contravene Article 311(2) as it provided for compulsory retirement after 30 years of qualifying service, which was a reasonable age of superannuation. The court relied on the Supreme Court's decision in Moti Ram Deka V/s. General Manager, North East Frontier Railway, AIR 1964 SC 600, which held that compulsory retirement under a rule providing for a minimum period of service did not amount to removal from service. 2. The court held that the impugned provision did not violate Article 14 as it laid down a principle or policy for the guidance of the authority exercising the discretion to terminate the services of a Government servant. The court relied on the Supreme Court's decision in Ram Krishna Dalmia V/s. S. R. Tendolkar, 1959 SCJ 147 at p. 159, which held that a statutory provision that lays down a policy or principle for the guidance of the exercise of discretion by the authority concerned in the matter of selection or classification of persons to whom the said provision should apply, will not be unconstitutional.
Final Decision: The court dismissed the application challenging the order of compulsory retirement.
Narasimham, J.
1. This is an application under Articles 226 and 227 of the Constitution by an officiating Sub-inspector of Police against an order of the Deputy Inspector-General of Police, Southern Range, dated the 11th January, 1965 (Annexure B), directing his retirement from service with effect from the loth April, 1965. The order was passed in [exercise of the powers conferred by sub-para-graph (2) (a) of paragraph 1 of the Bihar Liberalised Pension Scheme, 1950 (hereinafter referred to as "the scheme"), which is as follows:
"(2) (a). A Government servant may retire from service any time after completing 30 years qualifying service provided that he shall give in this behalf a notice in writing to the appropriate authority, at least three months before the date on which he wishes to retire. Government may also require a Government servant to retire any lime after lie has completed 30 years qualifying service provided that the appropriate authority shall give in this behalf a notice in writing to the Government servant, at least three months before the date on which he is required to retire."
2. The order is challenged on two grounds. Firstly, in substance, it amounts to removal from service and, as the provisions of Article 311(2) have not been complied with, it is unconstitutional. Secondly, sub-paragraph (2) (a) of paragraph 1 of the scheme confers unfettered arbitrary power on the competent authority to retire a Government servant, enabling him to discriminate between two Government servants placed in identical situations; hence the said sub-paragraph violates Article 14 of the Constitution.
3. For both these contentions Mr. Prem Lal relied on the recent judgment of their Lordships of the Supreme Court in Moti Ram Deka V/s. General Manager, North East Frontier Railway, AIR 1964 SC 600. But, in my opinion, that judgment itself is sufficient to completely negative the two contentions raised by him. The question as to whether the compulsory retirement of a public servant, in exercise of the powers conferred by the Service Rules, will amount to removal from service for the purpose of Article 311 of the Constitution, has been considered in several judgments of their Lordships of the Supreme Court, beginning with the well known Shyamlals case (Shyamlal V/s. State of Uttar Pradesh, AIR 1954 SC 369). In paragraphs 36 to 50 of AIR 1964 SC 600, their Lordships have reviewed all the previous decisions on that subject. In paragraph 36 they made the following observation:
"Confining itself to the special features of compulsory retirement which was effected under Article 465-A of the Civil Service Regulations and Note I appended thereto, the Court came to the conclusion that compulsory retirement was not removal. We may add that subsequent decisions show that the same view has been taken in respect of compulsory retirement throughout, and so that branch of the law must be held to be concluded by the series of decisions to which we shall presently refer."
Note I to Article 465-A of the Civil Service Regulations is, on essential points, identical with sub-paragraph (2) (a) of paragraph 1 of the scheme, and hence the aforesaid observation will apply with full force here also. It is true that in paragraph 50 of the said judgment their Lordships observed:
"Apart from that, we think that if any rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that rule would be invalid and the so- called retirement ordered under the said rule would amount to removal of the civil servant within the meaning of Article 311(2)."
The words underlined (here into ) in this passage are significant. In the impugned provision a minimum of 30 years completed qualifying service is insisted upon before his services can be terminated. Hence the aforesaid observation cannot apply in the present case.
