Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, is valid and the exercise of discretion by the State Government under the sub-rule is not arbitrary provided that the impugned orders are based on the petitioners' service records and are in the public interest.

Headnote:
RULE 244(2) - COMPULSORY RETIREMENT - VALIDITY - INTERPRETATION - NOTE 1 - PUBLIC INTEREST - ARBITRARINESS - STIGMA - PECUNIARY LOSS - DELEGATION OF POWER - CIRCULAR OF JUNE 19, 1972 - SCRUTINY OF SERVICE RECORD - EXTRANEOU CONSIDERATION - ARTICLE XVI OF THE COVENANT - LANGUAGE OF THE ORDER - ENGLISH.
Fact of the Case:

The petitioners, officers of the Rajasthan Administrative Service, were compulsorily retired under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951. They challenged the orders of retirement on various grounds, including the validity of the rule, the exercise of discretion by the State Government, the casting of stigma, pecuniary loss, delegation of power, and extraneous considerations.
Finding of the Court:

The Court upheld the validity of Sub-rule (2) of Rule 244, holding that it was not violative of Article 311 of the Constitution and that the Note 1 to the sub-rule provided ample safeguards against the arbitrary exercise of power. The Court also held that the impugned orders did not cast any stigma on the petitioners, that they did not result in pecuniary loss, that the power of compulsory retirement had not been illegally delegated, and that the circular of June 19, 1972, regulating the procedure for compulsory retirement, did not interfere with the exercise of discretion by the State Government. The Court further held that there was no evidence of extraneous considerations influencing the impugned orders and that the use of English in the orders did not render them invalid.
Issues: 1. Whether Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, is valid? 2. Whether the exercise of discretion by the State Government under Sub-rule (2) of Rule 244 was arbitrary? 3. Whether the impugned orders cast any stigma on the petitioners? 4. Whether the compulsory retirement resulted in pecuniary loss to the petitioners? 5. Whether the power of compulsory retirement was illegally delegated? 6. Whether the circular of June 19, 1972, regulating the procedure for compulsory retirement, interfered with the exercise of discretion by the State Government? 7. Whether there was any evidence of extraneous considerations influencing the impugned orders? 8. Whether the use of English in the impugned orders rendered them invalid?
Ratio Decidendi: 1. Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, is valid as it is not violative of Article 311 of the Constitution and the Note 1 to the sub-rule provides ample safeguards against the arbitrary exercise of power. 2. The exercise of discretion by the State Government under Sub-rule (2) of Rule 244 was not arbitrary as the impugned orders were based on the petitioners' service records and were in the public interest. 3. The impugned orders did not cast any stigma on the petitioners as they did not contain any express words that would throw any stigma on them. 4. The compulsory retirement did not result in pecuniary loss to the petitioners as they did not exercise the option to seek voluntary retirement. 5. The power of compulsory retirement was not illegally delegated as the final order was passed by the State Government. 6. The circular of June 19, 1972, regulating the procedure for compulsory retirement, did not interfere with the exercise of discretion by the State Government as it provided for a thorough scrutiny of the service records of the employees concerned. 7. There was no evidence of extraneous considerations influencing the impugned orders as the news items and hand-out relied upon by the petitioners did not contain anything objectionable. 8. The use of English in the impugned orders did not render them invalid as there was no direction from the State Government to use Hindi.
Final Decision: The petitions were dismissed.

JUDGMENT

1. - The petitioners were officers of the Rajasthan Administrative Service and feel aggrieved because they have been retired compulsorily under Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, hereinafter referred to as "the Rules" As the orders of retirement in the two cases are of the same date (July 29, 1972) and are quite similar, and as common questions of law have been raised by the learned Counsel for the petitioners, the two petitions have been heard together and will be disposed of by this common judgment. Fourteen points have been urged for my consideration and I shall deal with them one by one.

2. Before doing so it will be proper to examine the question which arises at the threshold, namely, whether Note 1 appearing below Sub-rule (2) of Rule 244 of the Rules is a part of the sub-rule or is by way of a subsequent executive or administrative instruction in clarification of the basic provision of the sub-rule? The Note appears at the end of the proviso to Sub-rule (2) of Rule 244, in the fourth edition of Rules issued by the Cabinet Secretariat of the State Government, and reads as follows:

The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the intention to use this rule as a financial weapon, that is to say, the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds.

3. An examination of the Rules as a whole shows that notes appear at the end of the main texts of several rules. A question arose before a Division Bench of this Court in Ganga Ram v. State of Rajasthan ILR (1961) 11 Rajasthan 371 whether the Notes formed part of the Rules and it was held that this was so because they had been inserted by the rule making authority in the exercise of its power under the proviso to Article 309 of the Constitution and were duly published as a part of the Rules There is no reason to reconsider that decision. The Rules were, however, amended by notification No. F. 1(84)FD A(Rules)/62 dated August 31, 1963, appearing in the State Gazette of September 19, 1963. That amendment was also made in exercise of the Governor's power under the proviso to Article 309 of the Constitution-One of the amendments related to Rule 244, inasmuch as the new rule mentioned in the notification was substituted for the earlier rule Sub-rule (2) of the amended rule, leaving out the proviso which is not relevant, reads as follows:

(2) The Government may, after giving him at least three months previous notice in writing, require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice.
The Note which occurred in the earlier sub-rules was not reproduced in the amended sub-rule, and the question is whether it ceased to exist as a result of the amendment or continued to remain a part of the sub-rule in the form of a Note

4. A perusal of the aforesaid notification of August 31, 1963 shows that the rule making authority thought it proper to refer to the rules and Notes separately, so much so that if, as in the case of Clause 2 of the notification, it was thought proper to substitute Clause (a) of Rule 56 and the Note thereunder by a new clause, specific reference was made to the Note also and it was stated that the new clause supplanted the earlier Clause (a) of Rule 56 as well as the Note there under. Similarly, a perusal of Clause 5 of the notification shows that while deleting Rule 242, the rule making authority thought it proper to say that it was deleting not only that rule but also the Note appearing thereunder it is there

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1972 Supreme(Raj) 260

RAJASTHAN HIGH COURTP.N.Shinghal, J.Deep Chand Jain and anr. - AppellantVersusState of Rajasthan and ors. - RespondentS.B. Civil Petition No. 1654 of 1972.Decided On : 1-11-1972

Sub-rule (2) of Rule 244 of the Rajasthan Service Rules, 1951, is valid and the exercise of discretion by the State Government under the sub-rule is not arbitrary provided that the impugned orders are based on the petitioners' service records and are in the public interest.

Cases Referred (1)

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RAJASTHAN HIGH COURT
P.N.Shinghal, J.
Deep Chand Jain and anr. - Appellant
Versus
State of Rajasthan and ors. - Respondent
S.B. Civil Petition No. 1654 of 1972.
Decided On : 1-11-1972