BY THE COURT—These are five petitions by five civil servants challenging their orders of retirement under rule 244(2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules).

2. The petitions have been contested on behalf of the State.

3. When the impugned orders were passed the relevant part of rule 244 stood as follows:—

"244......................................................

(2) Government retains an absolute right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with further service of a Government servant.

NOTES

1. 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 financial weapon, that is to say, the provisions should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds.

2. Compulsory retirement under this rule does not attract the provisions of clause (2) of Art. 311 of the Constitution because such retirement is not conceived as a penalty but as the exercise of a right reserved to Government of retiring a Government servant after he has served for a certain length of time. Accordingly, the procedure laid down in the Rajasthan Civil Service (Classification, Control and Appeal) Rules for formal proceedings against Government servants before removing them from service is not meant to apply to such cases.

3. This Rule is also applicable to Government servants who are members of a Contributory Provident Fund. In their cases, the term "qualifying service" shall mean service commencing on the day a Government servant started subscribing towards Contributory Provident Fund."

4. The first contention on behalf of the petitioners is that rule 244(2) of the Rules contravenes Art.311 (2) of the Constitution. The reasoning in support of it is that a civil servant has a right to continue on his substantive post till he attains the age of superannuation and if his services are terminated before such age Art.311 (2) of the Constitution is attracted. This was the reasoning adopted by Subba Rao J. in Motiram Deka vs. North East Frontier Railway (1). This reasoning was, however, not accepted by the majority of the learned Judges of the Supreme Court. Gajendragadkar J. (as he then was) speaking for them observed that in Parshotam Lal Dhingra vs. Union of India (2)—

"In regard to permanent servants the learned Chief Justice has made some observations which it is now necessary to consider very carefully, "The appointment of a Government servant to a permanent post," observed the learned C.J., "may be substantive or on probation or on an officiating basis. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a lien on the post." On the same subject, the learned C.J. has later added that "in the absence of any special contract, the substantive appointment to a permanent post gives the servant so appointed a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years service, or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on proper enquiry after due notice to him." Reading these two observations together, there can be no doubt that with the exception of appointments held under spec

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