State Of Madhya Pradesh And Another v. Gokulprasad Kaluram Dube

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 Honble 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 reasonable in the interest of justice.

The suit was based on the following allegations:

(i) that his transfer to Raipur was mala fide, with the object of harassing him;

(ii) that the order of his retirement under Article 465 (b) of the Civil Service Regulations was void, illegal and inoperative as the Plaintiff was not governed by Article 465 (b) ibid but by Rule 2(3)(i) (b) of the New Pension Rules, 1951 published by the State Government under Finance Department Notification No. 6725-829 /R-VI-IV, dated 9-7-1951 ;

(iii) that, in the alternative, even if the Plaintiff was governed by Article 465 (b) aforesaid, his order of retirement was not in consonance with the article in so far as there was nothing to indicate that the retirement was in the public interest;

(iv) that the order of his retirement was not passed by the appointing authority, namely, by the Inspector-General of Police, but by a person who was holding the current charge of the duties of that office in addition to his own duties as the Deputy Inspector-General of Police ;

(v) that the order of his retirement was as a measure of punishment and was passed without giving him an opportunity to show cause against it;

(vi) that the order of his retirement had not been passed on the application of the Plaintiff dated 20-4-1961, which was as yet undecided;

(vii) that the application for retirement dated 20-4-1961 filed by the Plaintiff was not voluntary as it was obtained from him under threat, fear, mental torture and against his will at a time when he was lying seriously ill and that it was, therefore void; and

(viii) that the Plaintiff was entitled to the declaration that the order of his retirement was void, illegal and inoperative, as also to the consequential relief of balance of salary, after deducting the amount of pension paid to him for the period 11-8-1961 to 31-12-1962, amounting to Rs. 4,648.

The Defendants-Appellants contested the suit, inter alia, alleging that the transfer of the Plaintiff had been made on administrative grounds by the Inspector-General of Police in the normal course and that he had been avoiding to carry out the order of his transfer by inventing excuses, making representations and proceeding on leave, so that he could continue to be at Betul; that he was governed by Article 465 (b) of the Civil Service Regulations; but that, even if the New Pension Rules were applicable to him, he was not in any way prejudiced by the order passed ; that the retirement of the Plaintiff was on his own application for retirement dated 20-4-1961 ; that his retirement was considered to be in the public interest, even though it was not specifically so said in the order dated 3-5-1961, and that the validity of the order could not be called in question on this score; that the order of his retirement could validly be passed by Shri Johar who was holding the current charge of the duties of the Inspector-General of Police at the time; that in any case the order of retirement being on the Plaintiffs own application, any irregularity in it by Shri Johar was cured by its subsequent ratification by the Inspector-General of Police and the State Government; that the order of retirement was not by way of punishment; that the application of the Plaintiff for retirement dated 20-4-1961 was not under any threat, fear or mental torture nor was it against his will, and that, even if it was under mental pressure due to his prayer for the cancellation of his transfer being refused, the circumstances were of his own making; and that the retirement, being at his own request, he should not be allowed to approbate and reprobate according as it would suit his convenience.

The trial Court, inter alia, held

(1) that the order of retirement of the Plaintiff dated 3-5-61 passed by Shri Johar was not valid as he did not hold the rank of the Inspector-General of Police; and

(2) that the retirement of the Plaintiff was not on his application dated 20-4-1961, because

it was passed under Article 465 (b) of the Civil Service Regulations and not under Article 465 (a) (iii). In the result, it granted the Plaintiff the declaration that the order of his retirement was illegal. It also decreed the Plaintiffs claim for balance of the arrears of salary in the sum of Rs. 46,661 for the period 11-8-1961 to 31-12-1962. It, however, held that the order of retirement was not as a measure of punishment.

The judgment and decree of the trial Court were confirmed by the Additional District Judge on appeal.

The first question that arises for consideration is whether the order of retirement (Ex. P-16) dated 3-5-1961 passed by Shri I.J. Johar was illegal and invalid, as it was not passed by a person who held the rank of the Inspector-General of Police but by an authority who was only holding the current charge of the duties of the Inspector-General of Police.

It is not disputed that the Plaintiff was appointed to the post of a Police Prosecutor by the Inspector-General of Police, Madhya Pradesh, and that consequently the authority competent to retire him was the Inspector-General of Police, Madhya Pradesh. It is also not disputed that when the impugned order was passed, the person who held the permanent post and rank of the Inspector-General of Police, Madhya Pradesh, was on leave and that Shri Johar, Deputy Inspector-General of Police, Special Armed Force, Bhopal, was under notification No. 1757-966-Do-ba (2), Bhopal, dated 10-4-1961, holding the current charge of the duties of the Inspector-General of Police, Madhya Pradesh, in addition to his own duties. The aforesaid notification (Ex, P-1) reads as follows:



The aforesaid appointment was presumably made under Article 88 of the Civil Service Regulations.

We shall now consider the exact implications of such an appointment

Under F. R. 12,

(a) *** *** ***

(b) A Government servant cannot be appointed substantively, except as a temporary measure, to two or more permanent posts at the same time.

(c) *** *** ***"

As per the definition of the expression officiate contained in Clause (19) of F. R. 9,

A government servant officiates in a post when he performs the duties of post on which another person holds a lien. A local Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien.

Under Clause (13) of the same rule, lien means

The title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively.

The pay of an officiating Government servant is governed by F. R. 30. According to it,

(1) Subject to the provisions of Chapter VI, a Government Servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post unless the post in which he is appointed to officiate is one of those enumerated in the schedule to this rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended:

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(2) For the purpose of this rule, the officiating appointment shall not be deemed to involve the assumption of duties or responsibilities of greater importance if the post to which it is made is on the same scale of pay as the permanent post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended, or on a scale of pay identical therewith.

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Under F. R. 35,

A local Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules.

Under Auditor-Generals Instruction No. 1, one class of case falling under this rule is that in which a Government servant merely holds charge of the current duties and does not perform the full duties of the post; and under Auditor-Generals Instruction No. 2, when a Government servant is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under Fundamental Rule 35, he must not be treated as having effectually officiated in that post within the meaning of Fundamental Rule 22, or having rendered duty in it within the meaning of Fundamental Rule 26.

Under F. R. 49,

A local Government may appoint one Government servant to hold substantively, as a temporary measure, or to officiate in, two or more independent posts at one time. In such cases his pay is regulated as follows:

(a) The highest pay to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;

(b) for each other post he draws such reasonable pay, in no case exceeding half the presumptive pay (excluding oversees pay) of the post, as the local Government may fix ; and

(c) if compensatory or sumptuary allowances are attached to one or more of the posts, he draws such compensatory or sumptuary allowances as the local Government may fix, provided that such allowances shall not exceed the total of the compensatory and sumptuary allowances attached to all the posts.

Under Article 87 of the Civil Service Regulations, in certain cases it is permissible to appoint an officer provisionally or substantively pro tempore instead of appointing him to officiate.

Article 98 of the Civil Service Regulations then provides as follows:

It is also permissible instead of appointing an officer to officiate, to appoint him to be in charge of the current duties of the vacant appointment. In such cases a charge allowance is given as explained in Articles 94, 95, 165 to 169-A and 174A.

The Government of India, Ministry of Home Affairs, Memorandum No. 12 /41 /53-Est., dated the 14th August 1954, says:

The primary object of notifying any item in the Gazette is to make it known to the public. The notifications relating to Government servants, however also enable the audit authorities to regulate their pay, allowance, etc., as well as maintain History of Services. Accordingly, every important event in the official career of a gazetted Government servant effecting his pay and other conditions of service, e. g., leave, reversion, suspension, removal, dismissal, etc. requires to be notified in the Gazette. Appointment of an officer to hold current charge of the routine duties of a gazetted post does not involve any change in his emoluments and from the audit point of view a gazetted notification may not be strictly called for. Such appointment should still be notified if it is considered desirable to publicise it or if the Officer concerned is required to countersign bills as a Controlling Officer or exercise statutory or other powers conferred on holders of the post.

In this connection we may also note the provisions of Article 162 of the Civil Service Regulations, which say:

A local Government may without the sanction of the Government of India appoint one officer to hold substantively as a temporary measure, or to officiate in two or more independent appointments at one time.

Articles 94, 95 and 165 to 169, to which reference is made in Article 88, deal with charge allowances to which an officer appointed to be in charge of the current duties of an office may be entitled.

Article 165, which alone may be said to be relevant for our purpose, says;

An officer appointed to be in charge of the current duties of an office in addition to his own duties may, if the charge in the opinion of the Local Government entails a substantial increase of responsibility and some additional work, be granted a charge allowance, to be fixed by the Local Government, not exceeding one tenth of the pay of the office: provided that if the office is open to and may in practice be held by a member of the Indian Civil Service or a Military Officer, the allowance shall not be less than Rs. 100

A reading of the provisions of the Fundamental Rules and the Civil Service

Regulations shows:

When the holder of a permanent post goes on leave, is transferred, is retired, dies or is otherwise not available to discharge the functions of his office, some one else, who is eligible under the rules, is asked to discharge the duties of his office. Such an appointment may be permanent, officiating, or temporary. When a permanent appointment is made, no difficulty arises because the appointee enjoys the rank, status and the salary of the post. However, often times, it is not administratively feasible to make a permanent appointment at once. The Government, therefore, makes an officiating appointment.

A careful reading of the aforesaid provisions further shows that while ordinarily 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 post is in the nature of a short-term stop-gap arrangment which does 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 arrangment 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 arrangment 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.

Now, the question arises whether a person, who held the current charge of the duties of the office of the Inspector-General of Police, was competent to accept the resignation of the Plaintiff-Respondent or to pass orders of his retirement under the Civil Service Regulations or under the Civil Service Regulations read with the New Pension Rules, as the case may be.

The learned Counsel for the Plaintiff-Respondent contends, on the authority of Ramratan v. State of M. P. 1964 M P L J 86, that he could not. In that case, a Division Bench of this Court held:

A protection like the one given by Article 311(1) cannot be taken away even by rules framed either under Article 309 or under any relevant statute. The reason is that, by such rules, the subordinate authority is entrusted with the functions of the appointing authority without giving to him the rank of that authority. In Clause (1) of Article 311, the word subordinate has reference to the rank and not to functions.

The emphasis was thus placed on the rank as contradistinguished from functions of an office. The judgment assumed, in the context of Article 311 of the Constitution, that the Deputy Inspector-General of Police, who held the current charge of the duties of the Inspector-General Police, did not hold the rank of an Inspector-General of Police, though he performed the functions of an Inspector-General of Police. It was, therefore, held that as the Deputy Inspector-General of Police, who held the current charge of the duties of the Inspector-General of Police, did not possess the rank of an Inspector-General of Police, he could not also pass an order of dismissal of a Sub Inspector of Police because, under the Constitution, such an order could validly be passed only by a person who held the rank of an Inspector-General of Police. The ruling throws no light on the question why a person, who holds the current charge of the duties of an office, is not, while so discharging the functions of that office, clothed with the rank of that office. It appears to have been assumed that he does not hold the rank of that office but only performs the functions. In any case, in our opinion, the ruling, which is in the context of Article 311 of the Constitution is distinguishable and can have no application to the facts of this case.

In the instant case, both under Article 465 (b) of the Civil Service Regulations as well as under Rule 2 (3) of the New Pension Rules, the power has been given to the appropriate authority. The expression appropriate authority has not been defined either in the Civil Service Regulations or in the Fundamental Rules. Article 465A of the Civil Service Regulations gives the power to retire to Government; and under Government of India, Finance Department memorandum No. 6/LXXXV-R II /33, dated 1-11-1931, the word Government is interpreted to mean the authority which has the power of removing the officer concerned from service under the Civil Services (Classification, Control and Appeals) Rules.

A perusal of Rule 12 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 shows that the power is conferred on the appointing authority. The appointing authority of the Plaintiff-Respondent was the Inspector-General of Police and consequently the person performing the functions of or discharging the duties of the Inspector-General of Police at the relevant time was competent in his case to pass the impugned order as the appropriate authority.

No doubt, the aforesaid decision in Ramratans case also says that the person holding the current charge of the duties of a post can perform only the administrative functions but not the statutory functions pertaining to the post; but the observations, besides being obiter, may require reconsideration in an appropriate case because it is a bit difficult to understand that if such person cannot perform the statutory functions of the office, what else he can do. All the functions, which the holder of post, performs and all the duties, which he discharges, whether administrative, executive judicial or otherwise, owe their origin to some Act, statutory rule or order, and there is no function which he can legitimately perform for which there is no sanction in some statute or statutory rule or regulation.

We have, therefore, no hesitation in holding that the impugned order could validly be passed by Shri I. J. Johar who held the charge of the current duties of the office of the Inspector-General of Police, Madhya Pradesh, on 3-5-1961.

We have next to determine whether the impugned order was passed on the application of the Plaintiff himself for his retirement or whether it was passed by the appointing authority on its own.

The Plaintiff Respondent had made an application (Ex. D-1) for his voluntary retirement from service on 20-4-1961. The retirement was sought under Rule 2(3)(i) (b) of the New Pension Rules on the ground that on account of the recent death of his mother, he was required to look after his domestic affairs and to manage the property at Hoshangabad. He had also prayed for four months leave preparatory to retirement.

The Deputy Inspector-General of Police, Jabalpur, vide Ex. D-3, dated 25-4-1961, had written to the Deputy Inspector-General of Police, Administration, Bhopal,

Now that he wants to go out of service of his own accord, I think we should seize the opportunity without a moments delay and allow him to retire.

On this the Deputy Inspector-General of Police made the following endorsement:

"I. G. may please see. Action is being taken to retire the officer," which was followed by the endorsement of the Inspector-General to the effect

I agree. Dube should proceed on retirement and he may be granted 4 months leave preparatory to retirement. We will have to examine whether Dube can exercise option to retire although he has less than 30 years service.

Action referred to by the Deputy Inspector-General of Police in the aforesaid endorsement, which was being taken for the retirement of the Plaintiff, is contained in Ex. D-2. On 22-4-1961, the office had proposed that the Plaintiff be compulsorily retired under Article 465 (b) of the Civil Service Regulations which, at it then stood, read as follows:

A retiring pension is also granted to a Government servant who is required to retire after completing a qualifying superior service of 25 years.

The authority competent to retire a Government servant has an absolute right to retire him without giving any reasons after he has completed a qualifying superior service of 25 years and no claim to special compensation on this account will be entertained. This 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.

The period of service of the Plaintiff was got verified from the Accountant-General who also reported that he had no objection to the retirement of the Plaintiff under Article 465 (b) of the Civil Service Regulations. By this time the application of the Plaintiff dated 20-4-1961 for his voluntary retirement under Rule 2(3)(i) (b) of the New Pension Rules had been received. The office, therefore, on 29-4-1961, noted

In his application dated 20-4-1961, the PP has requested that his retirement be - sanctioned under Rule 3 (1) (b) (sic) of the new M. P. Pension Rules, 1951. Since the PP has elected to be governed by Rule 8 (i) (c) of the New Pension Rules, the provisions of new Pension Rules referred to by him are not applicable in his case and accordingly his retirement cannot be sanctioned. He is governed by Article 465 CSR.....

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Since the PP is on leave from 11-4-61, 4 months L. A. P. may be granted to him from 11-4-61 to 10-8-61 as leave preparatory to retirement and his retirement under Article 465 (b) CSR be sanctioned, and the orders regarding grant of 15 days leave and 4 months leave issued by the Estt. Section be treated as cancelled.

The aforesaid recommendation was accepted by the Inspector-General of Police on that very date (i. e., on 29-4-1961) and his order of retirement dated 3-5-1961 (Ex. P-16) followed. That order (Ex. P-16) reads as follows:

The I. G. of Police, M.P. has accorded sanction to the retirement of Shri G.P. Dubey, P. P. under Article 465 (b) C. S R. He has been granted 4 months L. A. P. preparatory to retirement from 11-4-1961 to 10-8-61. His retirement will take effect from 11-8-61 F. N Previous orders sanctioning him leave for 15 days and 4 months vide this office memo No. SB/I-B/II/1709/61 D/- 4-4-61 and endt No PHQ./I-B/II/1801/61, dated 10-4-61 are hereby cancelled.

The services of Shri Dubey from 1-1-33 to 31-3-61 have been verified by the A. G. M. P. Gwalior vide his D. O. No. PR II /Rep I/QSR-22/61-62/557, dated 27-4-61. A copy of the same is enclosed for ready reference. His services from 1-4-61 should be got verified from the A. G. M. P., Nagpur Branch. The objections pointed out by the A. G., Gwalior, may please be got rectified.

The S. R. S. Bs. in 2 posts and the memo of history of service are sent herewith.

The pension case of Shri G. P. Dubey may please be prepared correctly after undergoing all the formalities and the same be sent to this office well in advance.

Top priority should be given to the matter.

The aforesaid sequence of events amply shows that the retirement oj(sic) the Plaintiff-Respondent was on his own application dated 20-4-1961, though, in view of the noting that the provisions of section I of the New Pension Rules were not applicable to him, he was retired under Article 465 (b) of the Civil Service Regulations. In our opinion, the more appropriate rule under which the Plaintiff Respondent should have been retired was 465A (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 465A (iii) of the Civil Service Regulations, which says:

a retiring pension is granted to a Government servant

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(iii) who is permitted to retire after completing a qualifying superior service of 25 years otherwise than in the interest of Government.

The above provision is almost in the same terms as the provisions of Rule 2(3)(i) (b) of the New Pension Rules.

It is contended that as the order of retirement (Ex. P-16) in terms speaks of Article 465 (b) of the Civil Service Regulations, we cannot construe it to be one under Article 465A (iii) of the Civil Service Regulations. We do not agree. If, on facts, the retirement of the Plaintiff could be justified under Article 465A (iii) of the Civil Service Regulations, the mere wrong mention of Article 465 (b) thereof in the order cannot make it invalid.

However, we need not base our decision on the aforesaid circumstances alone. In our opinion, the impugned order is unassailable even if it be one which was passed under Article 465 (b) of the Civil Service Regulations.

Article 465 (b) of the Civil Service Regulations permits the compulsory retirement of a Government servant who has completed 25 years qualifying superior service. It is not disputed that the Plaintiff-Respondent had completed 25 years qualifying superior service. In fact, the Plaintiff himself had asked for his retirement under Rule 2(3)(i) (b) of the New Pension Rules on the ground that he had completed 25 years qualifying superior service. The Article further provides that the authority competent to retire a Government servant has an absolute right to retire him without giving any reasons after he has completed a qualifying superior service of 25 years. It then goes on to say 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. It is, therefore, contended that the right under Article 465 (b) cannot 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, which is a condition precedent to the exercise of the right. It is contended that the order ought to specifically say so; and as such an order would necessarily cast an aspersion or stigma on the Government servant concerned, it could not be passed without giving him an opportunity to show cause. In our opinion, there is no merit in the contention.

In Shyamlal v. State of U. P. : AIR 1954 S C 369, speaking about the power of compulsory retirement, the Court said:

It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power. In other words, a compulsory retirement has no stigma or imputation of misbehaviour or incapacity.

In State of Bombay v. Saubhagchand : AIR 1957 S C 892, the order of compulsory retirement was passed under Rule 165A of the Bombay Civil Services Rules, which, on the relevant date, read as follows:

A competent authority may remove any Government servant subject to these rules from Government service or may require him to retire from it on the ground of misconduct, insolvency or inefficiency.

Government retains an absolute right to retire any Government servant after he has completed 25 years qualifying service or 50 years of age, whatever the service, without giving any reason, and no claim to special compensation on this account will be entertained This right will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty. Thus the rule is intended for use:

(i) Against a Government servant whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or against one who has ceased to be fully efficient (i. e , when a Government servants value is clearly incommensurate with the pay which he draws) but not to such a degree as to warrant his retirement on a compassionate allowance; and (ii) in case where corruption is clearly established even though no specific instance is likely to be proved under the Bombay Civil Services Conduct, Discipline and Appeal Rules.

Setting aside the order of the High Court, which had held that, in so far as the order of compulsory retirement was without any notice to the Plaintiff-Respondent of any charge of misconduct or inefficiency and without any enquiry, it was in violation of Article 311 (2) of the Constitution and as such illegal and void, the Supreme Court said:

The ratio decidendi of that decision (Shyamlals case) is this: Under the rules, an order of dismissal is a punishment laid on a Government servant, when it is found that he has been guilty of misconduct or inefficiency or the like, and it is penal in character, because it involves loss of pension which under the rules would have accrued in respect of the service already put in.

An order of removal also stands on the same footing as an order of dismissal, and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed, is An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit.

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.. the real criterion for deciding whether an order terminating the services of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying this test, an order under Rule 165-A cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services.

Does it make any difference in the position as is contended by the Respondent, that Rule 165-A provides, unlike Note to Article 465-A in Shyamlal v. State of UP. (supra), that the power is not to be exercised except in cases of misconduct or inefficiency When the Government decides to retire a servant before the age of superannuation, it does so for some good reason, and that, in general would be misconduct or inefficiency.

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.. .in providing that no action would be taken except in case of misconduct or inefficiency, Rule 165A only made explicit what was implicit in Note I to Article 465A. The fact to be noted is that while misconduct and inefficiency are factors that enter into the accounts where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held and there is no duty to hold an enquiry-in only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Article 311 (2).

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... the provision in Rule 165A on which the Respondent relies does not, on its true construction, impose any fetter on the power previously conferred on the State in terms absolute, to terminate the services of its servants without assigning any reason. It is really in the nature of departmental instructions to be followed when action is proposed to be taken under that rule, and makes it clear that the enquiry into the charges is only for the satisfaction of the authorities.

In Dalip Singh v. State of Punjab AIR 1960 S C 1305, the order of compulsory retirement read as follows:

His Highness the Rajpramukh is pleased to retire from service Sardar Dalip Singh, Inspector-General of Police, Pepsu (on leave) for administrative reasons with effect from the 18th August 1950.

It was held that the order did not amount to dismissal or removal from service within the meaning of Article 311 (2) of the Constitution.

Doshis case (supra) re-affirmed in State of U.P. v. Madan Mohan : A I R 1967 S C 1260 where the compulsory retirement of a Governmont servant was under Article 465A of the Civil Service Regulations as amended by the U. P. Government, which was in the following terms:

Government retains the 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 shall be entertained.

This right shall only be exercised by Government in the Administrative Department when it is in the public interest to dispense with the services of a Government servant who has outlived his usefulness.

The order of compulsory retirement in terms said that it was passed as the Respondent had outlived his utility. The Supreme Court held that the impugned order was invalid as it clearly attached a stigma because a clear statement appeared on the face of the order that the Respondent had outlived his utility. Enunciating the principles governing such cases, the Supreme Court said:

(1) When an order of discharge refers to the fact that the Appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the Government servant and in that sense it must be held to be an order of dismissal and not a mere order of discharge. The same test must apply in case of compulsory retirement. If it casts an aspersion or attaches a stigma, it is not simply an order of compulsory retirement but attracts Article 311 of the Constitution.

(2) In Doshis case (supra), though Rule 165A laid down that the right of compulsory retirement will not be exercised except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency or dishonesty, the impugned order did not contain any aspersion that Doshi was inefficient or suffered from some other defect.

(3) Two tests (which were deduced from Shyamlals case in Dalipsingh v. State of Punjab (supra) for determining whether an order of compulsory retirement amounted to dismissal or removal were

(a) whether the action was by way of punishment which would be if a charge or imputation against the Government servant was made a condition for the exercise of the power; and

(b) whether the officer was losing the benefits he had already earned.

(4) The opinion of the High Court of Allahabad that as the order of compulsory retirement must always be on the ground that he can no longer render useful service, it did not become worse because what is implied is expressed by reciting in the order that the Government servant had outlived his utility, was not acceptable because the position does become worse if a stigma is attached expressly.

In the instant case also 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 was not made a condition precedent for the exercise of the power but, in the words of the Supreme Court in Saubhagchand Doshis case (supra), it merely furnished the background for the exercise of the power and the enquiry, if anyand there was no duty to hold an enquirywas only for the satisfaction of the authorities who had to take action.

The fact that it was in the public interest to dispense with the further service of the Plaintiff-Respondent was not a condition precedent for the exercise of the power under Article 465 (b) of the Civil Service Regulations and, therefore, need not find place in the operative order (Ex. P-16). Also, if there was some sort of a noting on the official file as disclosed in Ex. D-2, where observations were made that the retention of the Plaintiff-Respondent in Government service was not in the public interest, it was only for the purpose of informing the authorities that the action taken was not arbitrary or capricious. There being no duty to hold an inquiry, the Plaintiff-Respondent could not claim that there should have been formal enquiry. On the face of it the impugned order contained in Ex. P-16 neither cast an aspersion on the Plaintiff-Respondent nor attached a stigma to him and was, therefore, perfectly valid. Also, there was nothing in the order to show that it was as a measure of punishment or involved penal consequences inasmuch as the Plaintiff-Respondent was entitled to pension proportionate to the period of service standing to his credit.

We, therefore, hold that the order was valid, even if it was one passed under Article 465 (b) of the Civil Service Regulations.

It was contended that the Plaintiff-Respondent was governed by the New Pension Rules, 1951 and could, therefore, be retired compulsorily under those Rules only. We find no merit in this contention also.

The Plaintiff-Respondent was a pre-1933 entrant. He had joined service on 1-1-1933 as a probationer. Under Government of India letter No. F 24 (35) EV/53, dated the 17 September, 1953 (Note (5) under Rule 8 of the New Pension Rules), he was also eligible to exercise the options under Rule 8 of the New Pension Rules. The Plaintiff Respondent had three options as enumerated under Clauses (a), (b) and (c) under Sub-rule (1) of Rule 8. He had exercised his option under Clause (c) of Sub-rule (1) of Rule 8 only, which was in respect of drawing pension, including additional pension, under the existing rule applicable to him before the introduction of the New Pension Scheme, reduced by the pension equivalent of the gratuity admissible under the New Pension Scheme and receiving in lieu of this reduction the death-cum-retirement gratuity as provided under this Scheme: (see Ex. P-17). In view of Sub-rule (2) of Rule 8, the provisions of section I of the New Pension Rules, in which Rule 2 occurs, were not applicable to such persons. The allegation of the Appellant State in paragraph 2 of the written statement that the Respondent, having exercised option under Rule 8(1)(c) was not governed by the New Pension Rules in the matter of his compulsory retirement but by Article 465 (b) of the Civil Service Regulations is thus correct.42. It was also contended by the learned Counsel for the Plaintiff-Respondent that the application of the Plaintiff-Respondent dated 20-4-1961 for his retirement was under threat, fear, mental torture and against his will. The allegation was made in paragraph 2 (c) of the plaint and the finding of the trial Court on the point is that the said application According to the learned Judge of the trial Court, but, even if it were so, it could not be said that it was under any threat or coercion by the Appellant. The Plaintiff-Respondent was free to take a decision; but, if he was mentally disturbed at the time because things were not working to his liking, he could not lay any blame for his action at the doors of the Appellant nor could he disown responsibility for his acts on the ground that he was mentally disturbed. The facts on which the findings of the trial Court are based are



But, in our opinion, the aforesaid facts, even if proved, do not justify a finding that the letter dated 20-4-1961 was not binding on the Plaintiff-Respondent as it was written by him under any coercion or threat. On the other hand, Ex. D-9 shows that he was thinking of retirement for quite sometime and the application for retirement dated 20-4-1961 was his voluntary and well-considered act.

Another contention of the learned Counsel for the Appellant was that the Plaintiff-Respondent having obtained the benefit of the order of compulsory retirement was estopped from challenging it. The order was passed on 29-4-1961. It was communicated to the Plaintiff-Respondent by memorandum dated 3-5-1961 (vide Ex. P-16). The said memorandum directed the preparation of the pension papers of the Plaintiff-Respondent on top priority basis. Thereafter, after his retirement, the Plaintiff-Respondent requested the Superintendent (Pension Section) vide Ex. D-12 dated 5-10-1961 and to the Inspector General of Police vide Ex. D-11 dated 13-2-1961, Ex. D-16 dated 11-1-1962 and Ex. D-20 dated 1-12-1962 for early disposal of his pension case. He had also addressed a memorandum to the Accountant-General, vide Ex D-13 dated 12-12-1961 and Ex. D-18 dated 12-5-1962. He had also addressed a memorandum to the Deputy Inspector-General of Police dated 27-12-1961, vide Ex. D-15. The Plaintiff-Respondent had thus accepted his retirement and prayed for pension due to him which was sanctioned to him. Having accepted the retirement, the Plaintiff-Respondent could not seek to challenge it.

Under Section 115 of the Evidence Act, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. 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 challenge it as not binding on him. We, however, need not examine the point elaborately as we have already held on merits that the order of his compulsory retirement was legal and valid and was, therefore, binding on him.

In the result, the appeal is allowed and the suit of the Plaintiff-Respondent dismissed with costs throughout.