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1966 Supreme(Pat) 181
PATNA HIGH COURT
R.L.Narasimham and A.B.N.Sinha JJ.
Basistha Narain Chaudhary
Versus
Commissioner Of Income Tax
Civil Writ Judicial No. 1060 of 1965 ;
Decided On : NOVEMBER 30, 1966
The power to compulsorily retire a Government servant on attaining the age of 55 years, conferred by the notification of the Government of India raising the age of superannuation to 58 years, is a valid exercise of the power conferred by the proviso to Article 309 of the Constitution.
Headnote:
INCOME TAX - Compulsory retirement - Validity of order - Notification of Government of India raising age of superannuation to 58 years - Power to compulsorily retire Government servant on attaining age of 55 years - Departmental proceeding pending against petitioner - Mala fide - Held, order of compulsory retirement valid - Petition dismissed.
Fact of the Case:
The petitioner, an Income-tax Officer, challenged the validity of the order of the Commissioner of Income-tax compulsorily retiring him from service on attaining the age of 55 years. The petitioner contended that the notification of the Government of India raising the age of superannuation to 58 years was merely an administrative instruction and not a rule as contemplated in Article 309 of the Constitution, that the impugned order was passed during the pendency of a regular departmental proceeding against him on specific charges and was, therefore, in essence, an order of punishment passed without complying with the provisions of Article 311(2) of the Constitution, and that the order was passed mala fide.
Finding of the Court:
The Court held that the notification of the Government of India raising the age of superannuation to 58 years was a valid rule made under the proviso to Article 309 of the Constitution, that the impugned order was not an order of punishment as it was passed in exercise of the power conferred by the notification and not on the basis of the specific charges against the petitioner, and that there was no evidence to support the allegation of mala fide.
Issues: 1. Whether the notification of the Government of India raising the age of superannuation to 58 years was a valid rule made under the proviso to Article 309 of the Constitution? 2. Whether the impugned order was an order of punishment passed without complying with the provisions of Article 311(2) of the Constitution? 3. Whether the impugned order was passed mala fide?
Ratio Decidendi: 1. The Court held that the notification of the Government of India raising the age of superannuation to 58 years was a valid rule made under the proviso to Article 309 of the Constitution because: * The proviso to Article 309 expressly empowers the President to make rules regulating the recruitment and conditions of service of persons appointed to civil services and posts in connection with the affairs of the Union. * The notification was issued by the Union Ministry of Home Affairs, which is the appropriate authority to make rules under Article 309. * The notification was in the form of an order, but this did not affect its validity as there is no specific requirement in the Constitution that rules made under Article 309 must be in the form of a rule. 2. The Court held that the impugned order was not an order of punishment passed without complying with the provisions of Article 311(2) of the Constitution because: * The impugned order was passed in exercise of the power conferred by the notification of the Government of India raising the age of superannuation to 58 years, and not on the basis of the specific charges against the petitioner. * The departmental proceeding against the petitioner was still in its preliminary stage when the impugned order was passed, and no regular departmental enquiry had been held. 3. The Court held that there was no evidence to support the allegation of mala fide because: * The petitioner had not stated any facts, apart from the initiation of departmental proceeding, to prove his allegation of mala fide against the Commissioner. * The Commissioner had a valid reason for changing his earlier view and deciding to drop the departmental proceeding, namely, that there was no evidence to substantiate the charges against the petitioner.
Final Decision: The Court dismissed the petition with costs.
R.L.Narasimham, J.
1. The petitioner was an Income-tax Officer. He has challenged the validity of the order of the Commissioner of Income-tax, Bihar and Orissa dated the 27th July, 1964 (Annexure D), which is to the following effect:-
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"Whereas you have completed the age of 55 years and whereas it has been decided to dispense with your service in terms of para 8 of the Government of India, Ministry of Home Affairs O.M. No. 33/18/62-Ests. (A) dated the 30th November, 1962, you are hereby given this notice of three calendar months from the date of its receipt and you shall retire from Government service on the expiry of the said period of notice."
Under the old rules the age of superannuation for all Government servants (with certain exceptions which are not material here) was 55 years. This age limit was raised to 58 years by O.M. No. 33/18/62-Ests. (A), dated the 30th November, 1962, from the Ministry of Home Affairs. The relevant extracts from that notification are given below:-
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"Government have had under consideration for some time past the question whether the age of compulsory retirement of Government servants should be raised above 55 years. 2. It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years subject to the following exceptions:-
- (i)........................................
(ii).......................................
(iii)......................................
3...........................................
4. ..........................................
5. .........................................
6. Notwithstanding anything contained in the foregoing paragraphs, tne appointing authority may require a Government servant to retire after he attains the age of 55 years on three months notice without assigning any reason. This will be in addition to the provisions already contained in rule 2 (2) of the Liberalised Pension Rules, 1950, to retire an officer who has completed 30 years qualifying service, and will normally be exercisea to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may, after attaining the age of 55 years, voluntarily retire after giving three months notice to the appointing authority.
7. ..........
8. ..........
9. ..........
The petitioner, on his own statement, attained the age of 55 years on the 15th June, 1964 (see paragraph 4 of Annexure H). The Commissioner of Income-tax, therefore, in purported exercise of the power conferred by the aforesaid notification, retired him from service with three months notice. It was stated in paragraph 11 of the counter-affidavit filed by one Shri Trai-lokya Narayana Sahay on behalf of the Income-tax Department that the petitioners career in the Department was very unsatisfactory, his merit was below the average, his rate of disposal was low and his relationship with his colleagues and superiors was not good. Hence it may be taken as admitted by the respondents that in pursuance of the power expressly conferred by paragraph 6 of the aforesaid notification the petitioner was superannuated with a view to weed out unsuitame employees after they have attained the age of 55 years". The impugned order has been sought to be justified on the ground that it was issued validly in exercise of the power conferred by the said notification.
2. Mr. Ghosh for the petitioner has challenged the validity of the said order on the following three main grounds:-
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(i) The notification of the Government of India was merely in the nature of an administrative instruction and not a rule as contemplated in Article 309 of the Constitution.
(ii) The impugned order was passed during the pendency of a regular departmental proceeding against the petitioner on specific charges. Hence it was, in essence, an order of punishment, and as it was passed without complying with the provisions of Article 311 (2) of the Constitution, the order was ba
