MAYENGHOAN RAHAMOHAN SINGH versus THE CHIEF COMMISSIONER (ADMN.) MANIPUR AND OTHERS

MAYENGHOAN RAHAMOHAN SINGH •

THE CHIEF COMMISSIONER (ADMN.) MANIPUR AND OTHERS

Noveniber 1, i976

[A. N. RAY, C. J., M. H. BEG AND P. N. SHINGHAL, JJ.]

Conzpulsory retirement-Compulsory retirement made in public interest .under the Government of India Decision No. 23i dated .30th Nov1:1nher, .1~62 below Fundamental Rule 56 (later substituted as 11ew rule fR 56(j) )--.~ere .reference to non-subsisting rule does not invalidate the order wlien the retire-ment is in public interest and boni fide. •

The appellant, Sub-ordinate Judge was compulsorily re.tired under the Government of India Decision No. 23 below Fundamental Rule No. 56 though the said rule was later substituted as FR 56(j). writ petition assailing the order of compulsory retirement as in violation of Article 311 was dismissed by the Judicial Commissioner for ~lanipur. On appeal by certificate the appellant contended that the impugned order of compulsory retirement was nu11 and void ab initio because: (1) Fundamental Rule 56 at the material time contained rio reservation of any power in the appointing authority to retire him without any reason on three month's notice after the age of 55 years: (2) the impugnca order \\'as made expressly. under non.subsisting: authority viz., Gov~rnment of India Decision Nq. 23 below Fundamental Rule 56, at the time of impugned notice and ( 3) the Government of Ind'a ·Decision not having been incorporated. in Fundamental Rule 56~ it amounted to mere executive instruction and not rule within the meaning of Article 309.

Di'>missing the appeal, the Court

HELD : ( 1) Compulsory retirement is not punishment, there hcing no stigma in it. [1024 D]

Tara Singh etc. etc. v. Stilte of Rajastl1an and Ors. [1975] (3) SCR 1002 reiterated.

(2) If pOYiCf can be traced to -valid power the fact that the po-...,.cr is purPorted to have been exercised under non--existing power does not invalidate the exercise of the power. In the present case, the affidavit evidence establishes · that the Con1n1issioner ~xercised his powers and was of the opinion that it Vi'as ·in public interest to make the order of compulsory retirement. [1024 E·1025 A]

L. llazari Mal KutliiaIJ.. v. Income-tax Office», special circle Ambala Cantt. and Anr. [1961] 1 SCR 892=41 1.T.R. 12 and Hukumc11and Mills Ltd. v. State of Madhya Bharat/• and Anr. (1964] 6 S.C.R. 857.=52 I.T.R .. 583 followed.

(3) Thi! absence of recital in the order of compulsory retirement that it \\·as made .. in public interest"· is not fatal as long as power to make compulsory retirement in public interest is there and the power, in fact, is shown in the facts and cirCumstanCes oe the case, to have been exercised in public interest. \Vhether the order is correct or not is not to be gone into by the Court. In the instant case, the Government affidavit is that the Chief Commissioner made the order because he was of the opinion that it was in public interest to do so. The order is made bona fide and nothing is on the record to show tha·t the affidavit is unbe\ievable. [1025 A·B, E-G]

Union of India v. 1. N. Sinha (1971] 1 SCR 791 ;pplied.

Butail v. Unioti of India & Ors. [1971] 2 SCR 55 referred to.

ClvIL ~PPELLATE JURISDI~TION : Civi~ Appeal No. 2022 of 1969.

Appeal from the Judgment and Order dated 26.10.1968 of the Judicial Commissioner for Manipur in Civil Appln. Case No. 23 /67)

R. K. Garg, S. C. Agarwal & V. !. Francis, for the Appellant.

V. C. Mahajan & R. N. Sachthey, for Respondent Nos. 1-3

Th~ Judgment of the Court was delivered by

,J\AY,C.J.-This appeal is by certificate from the judgment dated 26 October 1968 of the Judicial Commissioner for Manipur.

Th9 appellant by writ petition challenged the order of respondent No. 1 by which the appellant was compulsorily retired.

The Judicial Commissioner dismissed the writ petition of the appellant.

The appellant was born on 1 January 1911. He joined the erstwhile State of Manipur as jw1ior clerk in 1935. Though he was not Law Graduate, he rose to become permanent Puisne Judge in Manipur State Chief Court with ejl'ect from 5 October 1949. After the Government of India took over the administration of Manipur the appellant was appointed as Subordinate Judge with effect from 25 January 1950 on temporary basis. On the enactment of Manipur Courts Act 1955 the Court of Subordinate Judge was established on 1 March 1956. The appellant was, appointed as the Judge of that Subordinate Court from that date.

The appellant did not earn good reports from superior officers. He was reverted to the post of subordinate Judge.

The appellant was served with notice dated 30 June 1966 that he was required to retire from Government service with effect from 1 Octobsr 1966 in pursuance of the dirl!ctions of the President in Para-graph 6 of the Government of India. Decision No. 23 noted below Fundamental Rule 56. ·

The above Decision No. 23 was contained it\ the Memorandum of the Government of India, Ministry of Home Affairs dated 30 Novem-ber 1%2. The pecision came into force on 1 December 1962. Under Paragraph 6 of the Decision the appointing authority was em-powered to require Government servant to retire after he had attain-ed the age of 55 years on three months notice without assigning any reason. This provision was really intended to retire au officer wJ:to h~~ completed 30 years' qual~ying serVice. ·The purpose of the pro-v1s1on was to weed out unsmtable employees after they attained the age of 55 years. ·

The Government Decision No. 23 below Fundamental Rule No. 56 which came into force on 1 December 1962 as aforesaid was sub-stituted by new Rule on 21 July 1965. The new rule provided that

if the appropriate ~uthority is o~ opinion that it is in public interest to do so, he has the absolute right to retire any Government ~ervant after he attained the age of 55 years with. notice of not less than three months.

The appellant on receiving the notice for retirement prayed for his being retained in service after the age of 55 years in public interest. The representation of the appellant was rejected. It is in this back-ground that the appellant filed the writ petition.

The principal contention of the appellant was that the impugned order of compulsory retirement was null and void ab initio bi\~rnse the Fundamental Rule 56 at the material time contained no reserva-tion, of any powers in the appQinting authority to retire him without any reason on three months notice after the age of 55 yea~. Em-phasis was placed by counsel on the fact that the impugned order was made expressly under the authority of Government of India Decision No. 23 below Fundamental Rule 56 and this Decision was not sub-sisting at the time of the impugned notice. It was also contended that the Government Dec!ision was not incorporated in Fundamental Rule 56 and therefore it amounted to mere executive instruction and not rule within the meaning of Article 309. The appellant also contended that in substancei the compulsory retirement was removal under Article 311.Compulsory retirement is not punishment. There is no stigma in compulsory ret;irement. See Tara Singh etc. etc. v. State of Rajas-than and ors.(1) It is also the view of this Court that if power can be traced to valid powe~ the fact that the power is purported to have been exercised under non-existing power does not invalidate the exercise of the power. See .L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle Ambala Court and Anr.(') and Hukumchand Mills Ltd. v. State of Madhya Bharath & anr.([3 ])

The Government case is that the Chief Commissioner by reason of the order of the President contained in Government of India, Minis-try of Home Affairs Memorandum No. 33/18162-ESTS(A) dated 30 November 1962, followed by Fundamental (Sixth Amendment) Rules, 1965, had the power to retire the Government servant without assign-ing any reason if he was of opinion that it was in tpe public interest to do so.

The relevant Fundamental Rufo 56(J) is as follows :-

"Notwithstanding anything contained 1.n this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age

of 55 .years by giving him notice of not l~ss than three months in writing".

The affidavit evidence is that the order of compulsory retirement -was made in public interest. The absence of recital in the order of compulsory rt'.tirement that it is made in. public ~terest is. n<?t fatal ~s long as power to make compulsory retirement Ill pub~c mterest 1s there and the power in fac~ is shown in the facts and circumstances ·of the case to have been exercised in public interest. ln.R. L. Butail v. Union of India & Ors.([1]) this Court considered ·Fundamental Rule 56(j) and the circumstances under which compul-sory retirement can be made in public interest. It is true that in Butail'secase (supra), the notice in terms of Fundamental Rule 56(j) was served, namely that the ordet of complusory retirement was made in public interest. comparision between Paragraph 6 of Decision No. 23 below Fundamental Rule 56 and Fundamental Rule 56(j) of amended F. R. 56 shows that the two deal with the identical matter of compulsory retirement. The common features are that the Government servant may be asked to retire. after the age of 55 years. Second, such retire-ment is ordered to be made by giving the Government servant notice of three months. Third, the power to retire is an absolute right witho.ut assigning any reason. Fourth, under the amended Funda-mental Rule 56(j) the power is exerci,<;ed only if the appropriate autho-rity is of opinion that it is in public interest to do so. The Government affidavit is that the Chief Commissioner made the order because he', was of opinion that it was in public interest to do so. Whether the order is correct or not is not to be gone into by the court. See Union of India v. J. N. Sinha.([2 ]) In the present case, Counsel foI1 the appellant contended thaf it did 11ot appear in the order that there was any application of mind that !he orde~ was being made in public interest. In Butail's case (supra) ~t wa~ said ~hat the pl~a t~at the appropriate authority had not applied its mmd failed there m view of the clear averments made in that re-gard in the affidavit and no reason was adequately shown to discord those statements as untrue or otherwise unbelievable. In the pre-sent case, the affidavit evitlence establishes that the Commissioner exercised his powe~ because he was of the opinion that it was in pub-lic interest to make the order of compulsory retirement. The order hi the present case is made bona fide and nothing is on the record to show that the affidavit is unbelievable.

For the foregoing reasons the appeal rails and is dismissed with no order as to costs.

(1) [1971] 2 S.C.R .. 55.

Appeal dismissed.