UNION OF INDIA versus COL. J, N. SINHA AND ANR.

lJNION OF INDIA

COL. J, N. SINHA AND ANR.

August. 12, 1970

(J. C. SHAH AND K. S. HEGDE, JJ,]

Constitution of India 1950, Arts, 309, 310--Rules made under Art. 309-Pleasure doctrine embodied in Art. 310-- Fundamental Rule 56(j) 'embodies pleasure doctrine-Compulsory retirement at age of 50 after certain number of years of service does not have civil consequenceJ-Rules of natural justice cannot be invoked in such case-Rules of natural justice operate only in areas not covered by bw validly made.

The first respondent joined the post of Extra Assistant Superintendent in the Survey of India Service in 1938. Later he was taken into the Class l Service of the Survey of India and rose to the post of Deputy Director. He also officiated as Director. On August 13, 1969 the President of India pleased by •n order under Rule 56(j) of the Funda-mental Rules to compulsorily retire the first respondent from Government •ervice. No reasons were given in the order. The appellant challenged I) the order by writ petition in the Hi&h Court . The failure on the part of the concerned authority to give opportunity to the first respondent to •how cause against his compulsory retirement was held by the High Court to have amounted to contravention of the principles of natural justice. Against the judgment of the High Court the Union of India appealed.

HELD : Rules of m1tural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Cot:rt in Kraipak's case these rules can operate only in areas not covered by any law validly made. If statutory pro,ision can be read consistently with the principles of natural justice, the Courts should do so because it mmt be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But on the other hancl statutory provision either specificall¥ or by necessary implication excludes the application of any or all the pnnciples of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the exercise of power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the power. [794 G-795 CJ

Fundamental Rule 56(i) does not in terms require that any opport-G unity should be given to the concerned Government servant to show cause against his compulsory requirement. It says that the appropriate authority has the absolute right to retire government servant if it is of the opinion that it is in the public interest to do so. If that authority bona fith forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been form<:d or the decisi0n is based on collateral grounds or that it is an arbitrary decision. The respandent had not challenged the impugned order on any of these grounds. [795 D-F]

Compulsory retirement does not involve any civil consequence. person retired unde'f Rule 56(i) does not lose any of the rights acquired

by hin1 before retirc1ncnt. The rule is not intended f?r takin~ any :penal action against govcrn1ncnt servants. lt n1ercly c111bod1cs one ot the facet~ L)f the pleasure doctrine embodied in Art. 310 of the Constitution. The rule holds the balance bct\\·cen the right) of the individual government servant and the interests of the public. While minimun1 service is guarantcc<l to the govcrnn1cnt sc:vant, the g~vcrntnent is give~ pow~r. to energise its n1achincrv an0 make it more efficient by con1pulsonly retiring those \vho in its opinion should not be there in public interest, Three inonth's notil:e is provided to enable the retired en1ployee to find out other suitable cmploment. [795 G-796 Bl

On the above vic\v of the h1v.·, nan1cly, th;1t no notice to sho'.'.·-causc was required, the appeal must be allowed.

T. G. Silirncharmia Singh v. St11te of Mysore. A.LR. 1965 S.C. 280.

Kraipak and Ors. v. Union of India, A.LR. 1970, S.C. 150, State of Orissa v. Dr. (Miss) Binapmti Dei and Ors., [19671 2 S.C'.R. 625 dis-tiiilguished.

Crv1L APPELLATE JuR1sorcnoN: 1970.

Civil Appeal No. 381 of

Appeal from the judgment and order dated December 22, 1969 of the Delhi High Court in Civil Writ No. 746 of I 969.

Nil'en De, Attorney-General and S. P. Nayar, for the appellant. Sardar Bahadur, Vishnu Baliadur, and Yougindra Khusha/ani, for respondent No. 1.

G. S. Chatterjee, for respondent No. 2.

The Judgment of the Court was delivered by.

Hegde, J. In this appeal lly certificate the only question that was canvassed·· before us was as regards the validity of the order contained in memorandum No. F. 16-42/68-S.1, dated August J 3. 1969 issued by the Government of India. Ministry of Education and Youth Services, retiring the !st respondent compul-sorily from government service in exercise of the powers conferred under cl. (j) of Fundamental Rule 56 with effect from August 14, 1969. That order was attacked before the High Court on various grounds. The High Court rejected some of those grounds. It did not find it necessary to. decide few others but accepting the contention of the respondent that in making the order, the appel-lant had violated the principles of natural justice, it held that the impugned order is invalid. The High Court accordingly issued writ of certiorari quashing that order.

Before us the only contention presented for our decision was whether the High Court was right in holding that in making the impugned order the appellant had violated the principles of natural justice. No other contention was taken before us. Hence we shalI address ourselves only to that question.

Before proceeding to examine the contention above-formulated, it is necessary to set out the material facts. The 1st respondent herein Col. .I. N. Sinha successfully competed in the examination held by the Federal Service Commission in 1938 for the post ot Extra-Assistant Superintendent in the Survey of India Service. After selection. he was appointed as an Extra-Assistant Supcrin-B tendent. He worked as probationer for period of three. )Cars and thereafter he was confirmed in that post in 1941. During the second world war, he volunteered for active service in the a1my and was granted an emergency Commission in the army. He , was granted regular commission in the army with effect from October 23, 1942.

Jn exercise of ihe powers conferred by the proviso to Art. 309 of the Constitution, the President of India made on August 17. 1950 rules called the Survey of India (Recruitment from Corps of Engineering Oflicers) Rules, 1950 for regulating the recruitment and conditions of service of persons appointed from the Corps of Engineering Officers of the Defence Ministry to the Survey of India Class I Service. Rule 2 of the said Rules provides for the recruitment of Military Oflicers to the Survey of India Class I Service and Rule 3 provides that the recruited oflicers will be on probation for two years which may be extended by the Govern-ment on the advice of the Surveyor General. The 1st respondent was taken into the Survey of r ndia Class I Service under Rule 2 cf the aforesaid 1950 R;iles as Deputy Superintendent Surveyor with effect from June 1951. Thereafter the President of India in exercise of the powers under the proviso to Art. 309. made on July 1. 1960 the Survey of India Class I (Recruitment) Rules. 1 960 for regulating the recruitment of Survey of India Class I Service. The 1st respondent was subsequently promoted firstly as Superintending Surveyor and then as Deputy Director. After sometime he was promoted as Director and lastly as Director (Selection G~acle). The last mentioned promotion was made with effect from October 27, 1966. On May 17. 1969, Funda-mental Rule 56!,j) was amended: Thereafter on August 13, 1969, the Ministry of Education and Youth Services issued the impuimed order. The 1st respondent was given three months pay and allowances in lieu of three months notice prescribed in Funda-mental Rule 56!j). The !st respondent bein!! aggrieved by that order. challenged the validity of the same. As mentioned earlier. the High Court accepted his plea. The Union of India has appeal-ed against that order.

Fundamental Rule 56(j) reads:

"Notwithstanding anything contained in this Rule the appropriate authority shall. if it is of the opinion that it is in the public interest so to do have the absolute right

to retire any Oovernment servant by giving him notice of not Jess than three months in writing or three months pay and allowances in lieu of such notice

( i) if he is in Class I or Class II Service or post the age limit for the purpose of direct recruitment to which is below 35 years, after he has attained the oge of 50 years.

(ii) In any other case after he has attained the age of 55 years.

Provided that nothir.g in this clause shall apply ro Government servant referred to in clause ( e) who enter-ed Government service on or before 23rd July, I 966 and to Government servant referred to in clause (f) ."

The order impugned merely says that in pursuance of cl. 56(j), the President was pleased to decide that in public interest the 1st respondent should retire from government service with effect from August 13, 1969 and that he would be given three months pay and allowances in lieu of three months notice provided in the said rule. No reasons are given for compulsorily retiring the 1st respondent. Admittedly no opportunity was given to him to show cause against his compulsory retirement. The failure on the part bf the con-cerned authority to give an opportunity to the 1st respondent to show cause against his compulsory retirement was held by the High Court to have amounted to contravention of the principles of natural justice.

The validity of Fundamental Rule 56(j) was not questioned before the High Court nor before us. Its validity is not open to question in view of the decision of this Court in T. G. Shivacharana Singh and Ors. v. State of M,vsore([1]).

Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. government servant serving under the Union of India holds his office at the pleasure of the President as provided in Art. 310 of the Constitu-tion. But this "pleasure" doctrine is subject to the rules or law made under Art. 309 as well as to the conditions prescribed under Art. 311. Rules of natural justice are not embodied rules nor can thev be elevated to the position of fundamental rights. As observed bv this Court in Kraipak and Ors. v. Union of India(') "the aim o.f rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. Tn other words they do not supplant the law but supplement it." Tt · (I) A. I. R. 1965 S. C. 280 (2) A. I. R. 1970. S. C. 150.

is true that if statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authori-ties intend to act in accordance with the principles of naural justice. But if on the other hand statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the man-date of the legislature or the statutory authority and read into the concer~ed provision the principles of natural justice. Whether the exercise of power conferred should be made in accordance with •my of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is con-c ferred and the effect of the exercise of that power.Now coming to the express words of Fundamental Rule 56 (j), it says that the appropriate authority has the absolute right to retire government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised sub-ject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground .if m11/a fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us.. The impugned order was not attacked on the ground that the required opini<m was not formed or that the opinion formed was an arbi-f trary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory reti-rement involves no civil consequencies. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. 310 of the Consti-tution. Various considerations may weigh with the appropriate authority .while exercisir.g the power conferred under the rule. ln some cases. the government may feel that particular post may be more usefully held in public interest by an officer more compete~! than the one who is holding. It may liti. that the officer who, ts holding the post is not inefficient but tJ\e appropriate authonty may prefer to have more efficient officer. lt may further be

that in certain key posts public interest may require that person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in govern-m~nt organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual government ., servant and the interests of the public. . While minimum service is guaranteed to t.he goyernment servant, the government is given power to energise its machinery and make it · more efficient by compulsorily Tetiririg those who .in its opinion should not be there i.n public interest.

It is true that compulsory retirement is bound to have some udverse effect on the government servant who is compulsorily retired but then as the rule provides that such retirements can be made only after the officer attains the prescribed age. Further compulsorily retired government servant does not lose any of the benefits earned by him. till the date of his retirement. Three mont~s'. uoti~e is provided so as to enable him to fi'1d out other suirable, employment.

In our Q.ilJnion the High Court erred in thinking that the com-pulsory retirement involves civil consequences. Such retirement does not take away any of the rights that have accrued to the government servant because of his past service. It cannot be said that if the retiring age of all or section of the government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniformretirement age for all government servants. The retirement age is fixed not merely on the basis of the interest of the government servant but also .. depending on the requirements of the society. The High Court was not justified in seeking support for its conclusion from the decision of this Court in State of Orissa v. Dr. (Miss) Binapani Dei and ors.(') and A. K. Kraipak v. Union of J11dia('). ,,, ,

In Bi11apa11i Dei's· cate(') Dr, Binapani Dei's aate of birth was refixed by the government witllout giving her proper opportunity to show that the enquiry~ .officer's report was not correct. It is under those circumstances this Court. held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justice. Therein the impugned order took away some of the existing rights of the petition~r.

In Krapak's case('), committee consisting of Chief Conservator of Forest, Kashmir and others was appointed to r~commend names of the officers from Kashmir Forest Service for

.A being selected for the Indian Forest Service. The Chief Conser-vator of Forests, Kashmir was one of the candidates for selection. Further it was established therein that some of the officers who competed with him had earlier challenged his seniority and conse· quently his right to be the Chief Conservator and that dispute was pending. Under those circumstances this Court held that there 8 was contravention of the principles of natural justice.

For the reasons mentioned above, we are unable to agree wilh the conclusion reached by the High Court that the impugned order is invalid. We accordingly allow this appeal, set aside the judg-ment and decree of the High Court and dismiss the \vrit petition. In the circumstances of the case we make no order as to costs.

[The Court by order dated November 18, 1970 and January 19, 1971 on an application for review filed by the respondent vacated its order dismissing the writ petition. Instead, the pro-ceedings were remanded to the High Court for decision on such points as were not dealt with and decided in the judgment of that court . . ed.]

G.C. Appeal allowed. Proceedings remanded.