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IN THE HIGH COURT OF MADHYA PRADESH
T.P. Naik and S.P. Bhargava JJ.
State of Madhya Pradesh and another
Vs.
Gokulprasad Kaluram Dube
S.A. No. 585/1965
Decided On: 24.11.1970
While an officiating appointment goes to the next senior eligible man and carries with it the rank and the salary of the post, the appointment to hold the current charge of the duties of a pest he nature of a short-term stop-gap arrangement which not carry the salary of the post. Instead of the salary of the post, the appointee is given a 'charge allowance' according to the Civil Service Regulations. This arrangement is more convenient for the administration and involves less expenditure of public revenue, because, instead of appointing the next senior eligible man to officiate which in case of a short-term arrangement involves needless movement of the personnel with its consequent financial burden, the man on the spot is asked to discharge the current duties of the office and paid a 'charge allowance' in accordance with set regulations. [Para 18
A person appointed to hold current charge of the duties of a post may exercise the powers of an appropriate authority mentioned in Article 465 (b) of the Civil Service Regulations as well as under rule 2 (3) of the New Pension Rules. 1966 JLJ 24 distinguished and doubted. [Paras 21, 22 & 23
(2) Civil Service Regulations-Articles 465-A (iii) & 465 (b) person applying for retirement retired-Article 465-A (iii) applies-wrong mention of Article 265 (b)-does not invalidate the retirement if power is there under Article 465-A (iii).
Where a civil servant applied for retirement, and the New Pension Rules were not applicable to him and he was retired under Article 465 (b) of the Civil Service Regulations:
Held: The more appropriate rule under which the plaintiff-respondent should have bee6 retired was 465-A (iii) because when the plaintiff had himself requested for his retirement and when he was not governed by the provisions of section I of the New Pension Rules, he could have been permitted to retire under article 465-A (iii) of the Civil Service Regulations. [Para 29
If, on facts, the retirement of the plaintiff could be justified under Article 465-A (iii) of the Civil Service Regulations, the mere wrong mention of article 465 (b) thereof in the order cannot make it invalid. [Para 30
(3) Civil Service Regulations-Art. 465 (b)-applicability of-compulsory retirement-opinion that retirement is in public interest-not a condition precedent-need not be mentioned in the order- no inquiry necessary.
The provision in Article 465 (b) of the Civil Service Regulations that the right will not be exercised except when it is in the opinion of the competent authority in the public interest to dispense with the further service of a Government servant is not made a condition precedent for the exercise of power but merely furnished the back ground for the exercise of the power and the enquiry. There is no duty to hold a formal inquiry. The inquiry is only for the satisfaction of the authorities who have to take action. The civil servant cannot claim such inquiry, when no stimga is cast on him in the order. AIR 1967 SC 1260, AIR 1960 SC 1305, AIR 1957 SC 892 & AIR 1954 SC 369 discussed. [Paras 37 & 38
(4) Evidence Act, 1872-S. 115-person taking advantage of compulsory retirement-cannot challange the order.
In the instant case, on the basis of his order of compulsory retirement, the plaintiff-respondent took advantage of the leave preparatory to retirement and availed himself of it and thereafter also claimed the pension due to him. He had thus accepted his compulsory retirement and could not seek to challange it as not binding on him. [Para 45
T.P. Naik, J.
The suit of the Plaintiff-Respondent for a declaration that the order of his retirement dated 3-5-1961 passed by Shri I. J. Johar, who held the current charge of the duties of the Inspector-General of Police on that date, was illegal and inoperative and for the arrears of his salary for period 11-8-1961 to 31-12-1962 has been decreed by the two Courts below. The Defendants, the State of Madhya Pradesh and the Inspector-General of Police, Madhya Pradesh, have, therefore, come up in second appeal.
The Plaintiff-Respondent Gokul Prasad Dubey was, on 1-1-1933, appointed as a Sub-Inspector of Police in the Madhya Pradesh State Police Service on probation for two years. He was confirmed in the said post in 1936. Later on, on 10-1-1947, he was promoted as Police Prosecutor by the Inspector-General of Police and was confirmed in the said post in 1949. From 2-3-1959 he was holding the charge of the permanent post of a Police Prosecutor at Betul.
On 21-3-1961 there was a house-breaking and theft at his house at Betul. As the investigation was not to his satisfaction, on 23-3-1961 he moved the Deputy Inspector-General of Police, Jabalpur, vide Ex. P-2, for deputing an Inspector of C.I.D. to conduct the investigation.
On 7-4-1961, he was transferred to Raipur vide Ex. P. 3. On or about the same date, i. e. on 7-4-1961, his application dated 17-3-1961 for leave on medical grounds for 15 days, i. e., from 15-4-1961 to 29-4-1961 was sanctioned, vide Ex. P-5.
He made attempts to get his transfer order postponed or cancelled. He also saw the Inspector-General of Police personally in this connection. But all his efforts failed. Nonetheless, he neither joined at Raipur nor handed over charge of his office to his successor at Betul on the allegation that he was ill and unfit to attend office: (see Exs. P-20, P-22, P-23 and P-25), even though he was being pressed to hand over charge at Betul and proceed to Raipur: (see Exs. P-21 and P-24).
On 20-4-1961, he applied to the Inspector-General of Police for sanctioning his retirement under Rule 2(3)(i) (b) of the New Pension Rules and for grant of four months' earned leave preparatory to retirement with effect from 10-5-1961.
By a separate application (Ex. P-15) to the Secretary to Government, Madhya Pradesh, Police Department, he also prayed for permission to file a writ petition in the High Court against the State Government. He also applied for the grant of copies of complaints made against him by the Superintendent of Police to the Deputy Inspector-General of Police and the Inspector-General of Police; (see Ex, P-18).
By order No. PHQ/X/(ii) 655-B/61, dated 3-5-1961, (Ex. P. 16), the Inspector-General of Police accorded sanction to the retirement of the Plaintiff-Respondent under Article 465 (b) of the Civil Service Regulations. He was also granted four months' leave preparatory to retirement from 11-4-1961 to 10-8-1961. The previous order sanctioning fifteen days' leave to him (Ex. P-5) was cancelled. It was further ordered that his pension case be prepared on top priority basis.
The Plaintiff-Respondent went on leave preparatory to retirement and, while on leave, pressed for the finalization of his pension papers, which accordingly was done.
On 10-9-1962, he gave a notice to the Defendants-Appellants under Section 80 of the Code of Civil Procedure; and on 23-1-1963, he filed a civil suit against them which has given rise to this appeal. He prayed for the follwing reliefs:
That the Hon'ble Court be pleased to declare
(a) that the order of retirement dated 3-5-1961 is void, illegal and inoperative and the Plaintiff be deemed to be in service onwards from 10-8-1961.
(b) Grant a decree for Rs.4,648 against the Defendants on account of balance of salary for the period commencing from 11-8-1961 to 31-12-1962.
(c) Grant interest at the rate of 9% per annum from the date of notice, i.e. 10-9-1962 till realisation of whole decretal amount.
(d) Grant any other relief which the Court deems reasonabl
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