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High Court Of Madhya Pradesh
V. R. Newaskar and P. K. Tare, JJ.
BHANWARSINGH BHUPSINGH RAJPUT - Appellant
Versus
STATE OF M.P. - Respondents
Misc. Civil Petn. 39 Of 1962
Decided On : 05/03/1963
ARTICLE 311 - REMOVAL FROM SERVICE - ARTICLE 311 (2) - RETIREMENT BEFORE SUPERANNUATION - OPPORTUNITY TO SHOW CAUSE - MANDAMUS - ARTICLE 226 - RETIREMENT ORDER QUASHED.
Fact of the Case:
Petitioner, a Circle Inspector in the Police Department of Madhya Pradesh, was retired on the ground that he had attained the age of superannuation. He challenged the retirement order, claiming that his actual date of birth was later than that recorded in his service records and that he had not reached the age of 55 at the time of retirement.
Finding of the Court:
The court found that the petitioner's date of birth recorded in his service records was based on a surmise by a medical officer and not on any scientific data. The court also found that the petitioner had produced reliable evidence to support his claim that his actual date of birth was later than that recorded in his service records.
Issues: 1. Whether the date mentioned in the enlistment order and the service-book at the time of the petitioner's entry in the Police Department of the state represented his correct date of birth. 2. If not, whether prima facie his date of birth was later than that recorded therein. 3. If it so appears later whether the order directing his retirement on the assumption of that date of birth prima facie amounted to his removal from service within the meaning of the term as contemplated under article 311 of the Constitution. 4. Whether in that event it is necessary to give him opportunity to prove his age after giving him notice to Show cause why he should not be removed from service. 5. Whether failure to give such opportunity before directing his retirement constituted infringement of guarantee under Article 311 (2) of the Constitution.
Ratio Decidendi: The court held that the petitioner's retirement before he reached the age of superannuation amounted to his removal from service as contemplated under Article 311 of the Constitution. The court further held that the petitioner was entitled to an opportunity to show cause why he should not be removed from service before the retirement order was passed. The court relied on the Supreme Court decision in P. L. Dhingra v. Union of India, which held that termination of service of a government servant appointed substantively to a permanent post must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment.
Final Decision: The court allowed the petition and quashed the retirement order. The court also directed the State to give the petitioner an opportunity to show cause against any further action taken against him.
( 1 ) THIS is a petition under Article 226 of the Constitution submitted by the petitioner for the issue of a writ of mandamus or certiorari or any other kind of writ or direction.
( 2 ) THE case of the petitioner is that he had been employed as a Circle Inspector in the Police Department of the State of Madhya Pradesh till 13-8-1962 when he was retired on the ground that he had attained the age of superannuation in spite of his protest, and that he had not reached the age of Fifty-five on that date. According to the petitioner his real date of birth was 18-12-1911 and that that date had been accepted as such for the purpose of his life-Insurance by the Life, insurance Department of the Holkar State as far back as on 7-12-1934, after getting him medically examined on 22-12-1932; that he had passed the Patwari's examination in the year 1928 from the State of Jhalarapatan and the certificate of passing dated 26-10-1928 issued under the signature of the Revenue Minister of the State mentioned his date of birth as 18-12-1911; that in spite of this the petitioner was taken to have been born on 13-8-1907 on the basis of a statement in the certificate of the State Assistant Surgeon dated 13-8-1929 below the certificate of fitness for admission to the service of the State to the effect that by appearance he was 22 then although, according to the petitioner's statement, also mentioned in the same certificate he was stated to be of 19 years of age; that the petitioner had a right safe-guarded by Article 311 (2) of the Constitution to continue in service of the State of Madhya Pradesh until he attains the age of superannuation and his retirement earlier than, that amounted to his dismissal or removal from service without giving any opportunity to show cause against his removal and without making any inquiry. On these grounds he prayed for the issue or a writ or direction against the State Government as indicated above. He produced in support his horoscope, his policies issued by the Insurance Committee (of ?) Holkar State as also that issued by the Life Insurance Department of madhya Bharat State, the certificate of Revenue Minister of Jhalawar State as to his passing Patwari's examination and the copy of the register of pupils of the government Higher Secondary School Gangadhar Jhalawar State of his being a pupil in the School from 1-11-1925 to 15-4-1928.
( 3 ) IN the return submitted on behalf of the State it was contended that the petitioner had declared his age to be 19 years at the time of his entry in the service of the Police Department of Holkar State on 13-8-1929 but tnat he had been found to be of 22 years of age then by the Assistant Surgeon of the State. This latter date was accepted as the correct date of birth of the petitioner at the time of his enlistment. It was also contended that the certificate at Patwari's examination of Jhalawar State mentioned his name merely as Nandlal. It was pointed out that at the time of the petitioner's entry in the service of Holkar State he must have been in possession of the certificate of his passing Patwari examination but the same was not shown as in that case he would not have been admitted in service and would not have been enrolled. It was also asserted that the Life Insurance Department of the State of Madhya Bharat had accepted the date of birth of the petitioner as 18-12-1911 on the basis" of declaration made by the petitioner himself before 'the District Magistrate. Submission of all the documents now produced in these proceedings to the departmental officers was not disputed but it was contended that these materials were considered as unreliable. Lastly it was urged that the petitioner had been given opportunities to secure correction of entry as to his age along with all others in his position by the state of Madhya Bharat in 1950 as also in 1954. The petitioner failed to seize these opportunities. Reference was also made to Regulation No. 45 of Holkar State which
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