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Orissa High Court
C.K.MISRA,B.C.DAS
Binapani Dei - Appellant
Versus
State of Orissa - Respondent
O.J.C. No. 395 of 1967
Decided On : 11/03/1970
RETIREMENT - AGE OF RETIREMENT - EXTENSION OF SERVICE - TERMINATION OF SERVICE - EXECUTIVE INSTRUCTIONS - ESTOPPEL - MALA FIDE - DISCRIMINATION - VALIDITY OF RESOLUTIONS - INTERPRETATION OF RULES AND RESOLUTIONS - POWER OF GOVERNMENT TO RETIRE EMPLOYEES - DISCRETIONARY POWER - ABUSE OF POWER - PRINCIPLE OF ESTOPPEL - MALA FIDE EXERCISE OF POWER - BURDEN OF PROOF.
Fact of the Case:
The petitioner, an Assistant Director of Health Services, was served with a notice requiring her to retire from government service three months from the date of service of the notice. The petitioner challenged the notice on the grounds that it was contrary to law, mala fide, and discriminatory. The petitioner also argued that the government was estopped from terminating her service in view of its averment in a leave application to the Supreme Court that she would continue in service till she attained the age of 58 years.
Finding of the Court:
The court held that the impugned notice was not contrary to law. The court found that the Resolutions of 1963 and 1965, which allowed the government to terminate the services of government servants without assigning any reason, were valid executive instructions and not rules framed under Article 309 of the Constitution. The court also held that the government was not estopped from terminating the petitioner's service in view of its averment in the leave application to the Supreme Court. The court further held that the impugned notice was not mala fide and that the petitioner had failed to establish any discrimination.
Issues: 1. Whether the impugned notice was contrary to law? 2. Whether the government was estopped from terminating the petitioner's service in view of its averment in the leave application to the Supreme Court? 3. Whether the impugned notice was mala fide? 4. Whether the petitioner had established any discrimination?
Ratio Decidendi: 1. The Resolutions of 1963 and 1965, which allowed the government to terminate the services of government servants without assigning any reason, were valid executive instructions and not rules framed under Article 309 of the Constitution. 2. The government was not estopped from terminating the petitioner's service in view of its averment in the leave application to the Supreme Court. 3. The impugned notice was not mala fide. 4. The petitioner had failed to establish any discrimination.
Final Decision: The writ application was dismissed.
Judgement
G. K. MISRA, C. J. :- The petitioner was the Assistant Director of Health Services (Maternity and Child Welfare), Government of Orissa. Her date of birth is 10th April, 1910. She completed her 55th year on 10th of April, 1965 and 58th year on 10th April, 1968. The State Government asked her to show cause why her date of birth should not be accepted as 4th April, 1907. After some correspondence, Government by their letter dated 27th of June, 1963 determined her date of birth as 16th April, 1907 and declared that she should be deemed to have retired on 16th April, 1962 subject, however, to extension of service granted from 16th April, 1962 till afternoon of July 15, 1963. Thus the petitioner was deemed to have retired on 15th July, 1963 though she should have retired on 10th April, 1968. Against the order of the Government retiring her prematurely, the petitioner filed O. J. C. No. 254 of 1963 in the High Court.
The order was quashed by the judgment reported in AIR 1965 Orissa 81 (Dr. Miss Binapani Dei v. State of Orissa). The appeal filed by the State of Orissa against the judgment of the High Court was dismissed (AIR 1967 SC 1269 State of Orissa v. Dr. (Miss) Binapani Dei). In the Supreme Court Appeal No. 56 of 1964 filed by the State of Orissa, the State took the stand that they were entitled to leave being granted by the High Court as on the basis of its judgment the petitioner was to retire on 10th of April, 1968 whereby she would get a financial benefit to the extent of about Rs. 48,000/-. The valuation being more than Rs. 20,000/-, on the aforesaid basis leave was granted by the High Court under Article 133 of the Constitution. After the petitioner's success in the Supreme Court she was allowed to join her post. Sometimes thereafter, the notice (Annexure - 1) (hereinafter to be referred to as the impugned notice) dated 11th August, 1967 was issued to her. It runs thus :-
"To,
Dr. (Miss) Binapani Dei,
Assistant Director of Health Services,
(Maternity and Child Welfare),
Directorate of Health Services, Orissa,
Bhubaneswar.
Whereas you have completed the age of 55 years on 9-4-1965 (The Ninth April, Nineteen Hundred Sixty Five), the State Government therefore do hereby direct and require you to retire from Government service with effect from the date of expiry of three months from the date of service of this notice.
By order of the Governor
Sd/-. U. C. Agarwal Secretary to Government."
This notice was served on the petitioner on 14-8-1967 and she was made to retire on 14-11-1967. Thus, the petitioner was superannuated about five months earlier. The petition averred that there were other employees in the Health Department in between age of 55 and 58 who were not served with similar notices, and thereby a discrimination was made and the impugned notice is hit by Article 14 of the Constitution. It was also stated that the impugned notice was mala fide and was issued vindictively as the petitioner had succeeded in the High Court and the Supreme Court in a fight with the Government and that in view of the averment made by the State of Orissa in the application for leave to Supreme Court that the petitioner would continue in service till 10-4-1968 as of right, the Government is estopped from issuing the notice of termination. This writ application has been filed for quashing the impugned notice and for a declaration that the petitioner shall be deemed to be continuing in service from 14-11-1967 to 10-4-1968. No counter has been filed on behalf of the opposite parties.
2. Mr. Mohanty for the petitioner raises the following contentions :
(i) The petitioner by virtue of Resolution No. 7406-Gen. - 2R/-1-23/63 dated 21st of May, 1963 (hereinafter to be referred to as the 1963 Resolution) of the Government of Orissa, Political and Services Department, had a right to continue in service till the expiry of her 58th year and the impugned notice is contrary to law.
(ii) In view of the stand taken by the opposite parties in the application for l
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