Bimalendu Choudhury vs B.K. Bhattacharjee

D. Basu, J.—The Petitioner, who was appointed a Veterinary Asst. Surgeon in the year 1936, by a series of promotions became a Veterinary Inspector in 1947 and an Asst. Professor of Bacteriology in the Bengal Veterinary College in 1961.

The Petitioner, who was holding a Class I post in the Subordinate Veterinary Services, was appointed substantively to the West Bengal Veterinary Service with effect from October 26, 1954, by the order at annEx. A to the petition and his name was mentioned fourth in that list. The said list did not, however, specify the order of seniority of the five officers who were included in that list, but it was stated that that would be fixed thereafter. In reply to the Petitioner''s correspondence for fixing seniority, the Government stated that seniority would be determined by applying certain fixed principles as indicated at annEx. B to the petition, and one of the principles was that it should follow the order of preference indicated by the Public Service Commission. Eventually the order of seniority amongst five officers, including the Petitioner, was fixed by the letter dated February 25, 1963, at annEx. C.

The Petitioner felt aggrieved by the said fixation inasmuch as he was placed third in the list, below Debendra Das and Manoranjan Sen Gupta, even though Manoranjan had been appointed to the West Bengal Veterinary Service subsequently to the appointment of the Petitioner, i.e., on December 9, 1954. As regards Debendra Das too, the Petitioner''s case is that he should be placed below him inasmuch as though their date of appointment to the West Bengal Veterinary Service was the same, the Petitioner had been appointed a Gazetted Officer in the State Services much earlier than Debendra Das (the dates being February 22, 1950 and April 6, 1953). He made a representation to this effect to the Deputy Secretary of the Department on June 27, 1964 (annex. L).

A. In C.R. 2842(W)/66, the Petitioner challenges the validity of two orders, namely:

(i) The order at annEx. C aforesaid fixing the order of seniority of the officers in the West Bengal Veterinary Services.

(ii) The order dated June 3, 1965, at annEx. Q to the petition by which (a) he was censured and (b) his increment of pay was stopped for two years.

The latter order, arose in this way: The Petitioner''s case is that, according to the Bengal Provincial Service Recruitment Rules, 1954, for the post of Joint Director of the Veterinary Services only, such an officer of the West Bengal Veterinary Services was eligible as has served for a period of at least three years as a Superintendent of Veterinary Services. But when vacancies in the said post occurred successively in the years 1960, 1961 and 1965, the claim of the Petitioner, who was then the only officer possessing such qualification, was ignored and persons not answering the description were appointed and his representations in this matter were all in vain.

After the Petitioner made his representation on July 24, 1963 (annex. D) to the Secretary of the Department of Animal Husbandry and Veterinary Services, the Secretary (Respondent No. 1) asked the Director (Respondent No. 5) to give certain facts and figures regarding the Petitioner and the Director, in his turn, asked the Principal to do the same. The Principal went on pressing the Petitioner for submitting the particulars in spite of the Petitioner''s saying that he would submit them direct to the Secretary (annex. EH). Eventually, when the Principal assured the Petitioner that the information was, in fact, required by the Secretary, he agreed to furnish the same by his letter of August 1, 1964 (annex. I).

In the meantime, however, on May 19, 1964, the Asst. Secretary of the Department communicated (annex. J) that the representation of the Petitioner could not succeed and that Government were not prepared to revise or alter the order of seniority as fixed by the order at annEx. C dated February 25, 1963.

Cases of irregular appointments of unqualified persons having come to the notice of the Finance Department of the Government of West Bengal, the Audit branch of that Department issued the memorandum at annEx. K to the petition dated July 18, 1964, directing all departments to examine such appointments and to cancel them, and it was even directed that disciplinary action should be taken against those who were responsible for such irregular appointments.

The Petitioner alleges that since the repeated representations of the Petitioner were embarrassing to the authorities who had made the irregular appointments as aforesaid, they intended to victimise the Petitioner and secured the issue of the charges at annEx. M dated July 31, 1964, asking the Petitioner to show cause why he should not be punished for "having behaved in a manner which was improper and unbecoming of a public servant and derogatory to the prestige of the Government" because of offensive language used in the Petitioner''s letter dated May 14, 1964, to the Principal (annex. H), and the letter dated June 27, 1964 addressed to the Deputy Secretary (annex. L). An inquiry was started and the Petitioner submitted his explanation to the charges on August 12, 1964, before the Inquiry Officer appointed by the Government.

In the meantime, the ''Sadachar Samity'' had been formed under the then Home Minister to the Government of India, Sri Nanda, to entertain grievances against the public services and there was no prohibition against Government servants approaching the said Samity with their grievances. Unable to obtain redress of his grievances in the matter of the irregular appointments as aforesaid the Petitioner made a representation to the Samity with a copy of his representations already presented to the West Bengal authorities. The Sadachar Samity having forwarded the Petitioner''s representation to the Government of West Bengal, the Respondents got annoyed and included an additional charge in the charges already framed against him alleging that the Petitioner was guilty of "gross indiscipline and disloyalty to the State you serve" for having sent to Sri Nanda, Chairman of the Sadachar Samity, his representation for redress which "as in effect a complaint against the State Government" (annex. O, p. 98 of the petition). The Petitioner also submitted his written statement to this additional charge which according to him was illegal. There was thereafter an enquiry held by Sri S.P. Ghose, Special Officer, and then, without supplying any copy of the inquiry proceedings or the findings arrived thereat, the Petitioner was served with the punishment order at annEx. Q dated June 3, 1965, by which a penalty of censure and stoppage of increment for two years was imposed upon the Petitioner.

The Petitioner''s appeal against the said order of punishment has been rejected by the Governor on November 8, 1965 (annex. S). The Petitioner''s separate memorial against his supersession in the matter of seniority and exclusion in the matter of appointment to the post of Joint Director has also been turned down (annex. T dated June 27, 1964, W dated August 31, 1965 and X dated November 6, 1965).

The Petitioner came to Court on February 1, 1966, challenging the validity of the various orders at annex''s. C, Q, S and W on grounds which will be stated hereafter.

The Respondents have filed a joint affidavit-in-opposition sworn by the Deputy Secretary of the Department of Animal Husbandry, Government of West Bengal, who is Respondent No. 2.

B. In C.R. 113(W)/67, the subject-matter of controversy is the order of compulsory retirement dated November 29, 1966, directing the Petitioner to retire with effect from Tune 1, 1967, on the ground that he would attain the age of 55 years on May 31, 1967, in the afternoon (annex. A to the counter-affidavit).

The Petitioner served a notice demanding justice on December 12, 1966, and brought the instant petition under Article 226 on December 23, 1966, challenging the order of compulsory retirement as ultra vires and mala fide. The constitutional validity of the order as well as the proviso to Rule 75(a)(i) of the West Bengal Service Rules under which the impugned order is purported to have been made has also been challenged.

This Rule is also being opposed by a joint affidavit similarly.

It was suggested on behalf of the Respondents that the Rule relating to compulsory retirement should be heard and determined first, because if the Petitioner failed to dislodge that order he would have no locus standi to raise the dispute relating to seniority and the penalty of censure etc. This is, however, not wholly correct inasmuch as the stoppage of increment, which is included amongst the penalties out of which the earlier Rule arises, imposes a monetary penalty, and if the Petitioner succeeds in getting that set aside, he would be entitled to pecuniary benefits by way of arrears of increment or increase of pension even if the termination of his services be upheld: State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, .

I would, therefore, take up the two Rules chronologically particularly because the Petitioner''s case as to mala fides is founded on the earlier event.

C.R.2842(W)/66:

I. I shall first deal-with the Petitioner''s complaint in the matter of fixation of his seniority by annEx. C to the petition dated February 25, 1963.

As regards seniority the Petitioner''s case in para. 9 of the petition is founded on the Government letter at annEx. B to the petition. Respondents contend that this letter has no statutory force and that, accordingly, Petitioner has no cause of action in a proceeding for mandamus. In his reply, the Petitioner insisted that the letter has the "effect and force of a statutory Rule", but at the hearing nothing as been shown how statutory force could be imputed to this letter which is nothing but an inter-departmental note.

The plea in bar raised by the Respondents must, therefore, be upheld on this point. Apart from the general principle that a non-statutory rule cannot be enforced by mandamus, it has been settled by a number of Supreme Court decisions that seniority is a matter of discretion with the employer and that, in the absence of provisions having statutory force: Cf. S.G. Jaisinghani Vs. Union of India (UOI) and Others, and Nim v. Union of India AIR 1957 S.C. 1301 (1305) claim to a particular rank in seniority is not enforceable in a Court of law: The High Court, Calcutta Vs. Amal Kumar Roy, .

Nor does it appear that the directives contained in the Government letter at annEx. B have in fact been violated. A question was raised on behalf of the Petitioner as regards the recommendations of the Public Service Commission according to which the order of seniority was to be determined. By a supplementary affidavit of February 19, 1968, Respondents have filed the Commission''s letter (annex. X) which shows that the Commission placed the" Petitioner fifth in the order of seniority of the six officers mentioned therein. As annEx. C to the petition says, the Petitioner was subsequently elevated to the third place owing to the retirement of some of them. There has thus been no violation of the Government letter on the facts.

II. The analogous prayer of the Petitioner, namely, that the Respondents should be commanded to appoint him to the- post of Joint Director of the Veterinary Services should also fail.

The two things upon which the Petitioner relies on this point are:

(i) Finance Dept. Memorandum No. 3741F/18.7.64, which is annEx. K to the petition.

This memorandum, however, does not lay down any substantive rule but only directs that all irregular appointments should be cancelled.

(ii) The substantive provision upon which the Petitioner relies is mentioned in para. 13 of the petition. This is the Bengal Provincial Services Recruitment Rules, dated September 30, 1954, which were, of course, made under Article 309 of the Constitution and which are reproduced at pp. 132-133 of the petition (annex. U).

The controversy between the parties khas arisen as to the interpretation of para. (2) of these Rules by which the method of recruitment to the West Bengal Higher Veterinary Services was laid-down substituting the old Rule in item 5. The relevant portion of this item, as substituted, is--

(1) By selection or by promotion from amongst officers belonging to the West Bengal Veterinary Services, provided that--

* * *

(b) for promotion to a post borne on the extension of administration side of the West Bengal Higher Veterinary Services, only such officers of the West Bengal Veterinary Services shall be considered eligible as have served for a period of at least three years as a Superintendent of Veterinary Services.

The Veterinary Services in this State are divided into two ranks and the post of Joint Director belongs to the higher rank. The Rule, just reproduced, lays down that a member of the Veterinary Services shall not be eligible for promotion to the post of Joint Director belonging to the higher rank unless he has held the post of a Superintendent for three years.

The Petitioner''s case is that he is the only person in the Veterinary Services answering to the foregoing qualification but, nevertheless, in the years 1960, 1961 and 1965 successively, persons having no such qualification have been appointed to the post (para. 14 of the petition). The three persons so appointed are K.C. Mukherjee, D.R. Marwaha and A. Mukherjee.

The Respondents contend, and in my opinion rightly, that item 5, as amended, lays down two modes of filling up the higher rank, namely,, selection and promotion and that it is only when the post of Joint Director is filled up by promotion from the lower rank that the administrative qualification laid down in para, (b) of item 5 must be fulfilled and that item (b) does not apply to the method of selection. On behalf of the Petitioner emphasis was put on the word ''only'', but this word has to be read subject to the opening words in para, (b)--''for promotion''; the result is that para, (b) is attracted only when the post of Joint Director is sought to be filled up by promotion and then the promotee must be qualified in the manner laid down in para. (b).

In para. 7 of the counter-affidavit it has been stated that none of three persons, K.C. Mukherjee, Marwaha or A. Mukherjee, had been appointed to be Joint Director by promotion. All of them were already members of the higher service when they were posted as Joint Director by inter-departmental transfer. The Petitioner in his reply (para. 8) does not controvert the statement of the Respondents that these appointees were all members of the higher service at the material time, but contends that there is no provision in the said Rules for appointment of a Joint Director otherwise than by promotion. According to him, the words ''selection'' and ''promotion'' both refer to the same source, namely, the Veterinary Service in its lower rank. This interpretation would lead us to tautology as both the words would then refer to the same thing, namely, promotion from the lower to the higher rank and such interpretation cannot accordingly, be accepted. ''Selection'', according to me, means selection from people other than members of the lower rank with respect to whom the word ''promotion'' is used. Once, therefore, it is found that the three officers in question were not promoted from the lower rank, para, (b) of item 5 would not be attracted and the Petitioner''s case would fail.

Alternatively, therefore, it is argued on behalf of the Petitioner that upon the above interpretation para, (b) would contravene Articles 14 and 16 of the Constitution inasmuch as the qualification of administrative experience is insisted upon in the case of members of the lower rank, while no such administrative experience is required in the case of other persons for the same post. It has, however, been repeatedly held that there is no question of violation of these Articles where the discrimination alleged is not between members of the same class but between persons belonging to different classes. Since there has been no discrimination as between members of the West Bengal Veterinary Services to which the Petitioner belongs, the case of discrimination must also fail.

In the result, there is nothing which obliges the Government to fill in the post of Joint Director by promotion from the lower rank to which the Petitioner belongs.

III. We should now advert to the order imposing the penalties.

(A) The first ground urged in this context is that the impugned order at annEx. Q is invalid inasmuch as no second opportunity to show cause was given to the Petitioner after completion of the enquiry. No such second opportunity, however, need be given unless Article 311(2) of the Constitution is attracted. But that provision is not applicable to a case of censure or stoppage of increment.

(B) Nor do the Civil Services (Classification, Control & Appeal) Rules, 1930, offer any aid to the Petitioner in this behalf. It is to be noted that though the inquiry was started under Rule 55 of these Rules, the Rule which is appropriate is Rule 55A, since eventually the penalty of censure and stoppage of increment only was imposed. Under Rule 55A, the only right that the delinquent has is the right to make a representation and the right to have the representation considered before the order is passed. That has been complied with in the instant case.

In my opinion, the words "no order of dismissal, removal or reduction shall be passed" in Rule 55 and the words "no order imposing the penalty specified in...shall be passed" in Rule 55A are clear enough to indicate that it is the nature of the penalty which is eventually passed in the disciplinary proceedings which determines which of the two Rules must be complied with in order that the proceedings may be valid.

The present point raised on behalf of the Petitioner is also rejected accordingly.

(C) It is next urged that the amendment of the original charges (annex. M, dated July 31, 1964) by way of addition of a third charge relating to the Petitioner''s approach to the Sadachar Samity by the Government order dated August 19, 1964 (annex. Q, p. 98 of the petition) is illegal.

But learned Advocate for the Petitioner has been unable to point out any Rule which prohibits any amendment of the charges. If Rule 55A of the Rules cited applies, as I have already held, no such question of charge arises and the only thing that the authorities have to do is to offer to the delinquent an opportunity to represent against the penalty proposed. Even if Rule 55 be applicable, there is nothing in it to prohibit the addition of a charge to those originally served upon the delinquent, provided an opportunity is given to the delinquent to submit his written defence to the added charge also in the manner laid down in the Rule, and that has been done in the case before me. Hence, the Petitioner has no legitimate grievance on this score.

(C) A more serious point raised on behalf of the Petitioner is that the facts alleged in the charges have no relevant connection with the charges, that the findings on the charges are perverse and also that the charges have no reasonable and proximate relation to the Rules in the West Bengal Government Servants'' Conduct Rules, 1959 (vide Append. 6 to the West Bengal Services Rules, Pt. I), upon which the Respondents rely.

(i) The original charge against the Petitioner (annex. M, p. 69 of the petition) was that he had

"behaved in a manner which was improper and unbecoming of a public servant and derogatory to the prestige of Government", because he had written two letters to his official superiors (which are at annex''s. H and L), the language of which was "impertinent, wild, insubordinate, disrespectful and abusive."

On behalf of the Respondents reliance has been placed on Rule 4 of the West Bengal Government Servants'' Conduct Rules, 1959 (promulgated under Article 309 of the Constitution), to support this charge. This Rule says:

No Government servant shall behave in a manner which is improper and unbecoming of a public servant and derogatory to the prestige of Government.

Mr. Ghose on behalf of the Petitioner, has argued that--

(a) Rule 4 is only a general rule of behaviour offering only a guide to the employees as to how they should behave and that it cannot per se found a charge.

(b) The Rule has not in fact been violated by the Petitioner.

(a) On the first point it is urged that the Rules in question may be divided into two parts: general instructions and particular prohibitions which, if violated, constitute offences upon which disciplinary proceedings may be brought, such as Rule 13 asking for subscriptions, Rule 15 acquiring property without permission.

This argument advanced on behalf of the Petitioner cannot be accepted because the English common law doctrine of service at the pleasure of the Crown has been adopted in India in Article 301(1) subject only to other provisions of the Constitution, such as the procedural safeguards imposed by Article 311. The English doctrine means that all servants of the Crown hold office during pleasure of the Sovereign and are, accordingly, liable to be dismissed at any time and without showing any cause in the absence of any statutory limitation: Chitty on Prerogatives, p. 81: Shenton v. Smith (1895) A.C. 229, Gould v. Stuard (1896) A.C. 575, Reilly v. R. (1934) A.C. 176. A Government employee may, therefore, be dismissed on any ground or without assigning any reason for the dismissal. As just stated, this doctrine has been adopted in Article 310(1) of our Constitution "except as expressly provided by this Constitution". The limitations imposed by the Constitution on this doctrine may be said to be threefold--

(i) Some of the provisions mention certain high dignitaries who can be removed only in the mode prescribed or on the happening of the contingencies specified in the specific provisions, such as Articles 124(4), 148(1), 218.

(ii) The provisions in the chapter on Fundamental Rights, such as Articles 14 and 16 are available to all public servants, in the matter of termination of employment as in respect of other conditions of service.

The result, in short, is that provided the procedural requirements of Article 311 are complied with, a civil servant can be dismissed on any ground, provided only such grounds are relevant to the interests of the public service: Vide Parshotam Lal Dhingra Vs. Union of India (UOI), . It is, therefore, not necessary to lay down something like specific penal provisions in order to institute disciplinary proceedings against civil servants even to punish them by the extreme penalty of dismissal.

Secondly, the safeguards regarding dismissal are irrelevant in the instant case, because the Petitioner has been punished only with censure and stoppage of increment, which do not come within the purview of Article 311. Under the common law, a master has a reasonable power of chastisement to keep the employee under proper control and discipline. This power of the State, in the case of Government employees, is not fettered by any constitutional safeguards in this behalf. On the other hand, the Government Servants'' Conduct Rules lay down certain rules of conduct for the civil servants in order to maintain their integrity and to keep them under proper discipline which is so essential to the maintenance of efficiency in the public services. These Rules form a part of the contract of employment of public servant as held by our Supreme Court in various cases. For the breach of any of these rules of conduct, therefore, the State can take disciplinary measures against civil servants, subject only to statutory limitations if any. A statutory provision relevant to the instant case is Rule 49 of the Civil Services (C.C. & A.) Rules, 1930, under which the penalty of censure and stoppage of increment has been imposed upon the Petitioner. This Rule says:

The following penalties may, for good and sufficient reason...be imposed....

The only substantive limitation, therefore, is that the reason must be ''good and sufficient'' and the procedural limitation is provided in Rule 55A which I have dealt with in another context. When, therefore, a statutory rule of conduct says that a Government servant shall not behave in a manner which is ''unbecoming of a public servant'', there is no doubt that such conduct would constitute a ''sufficient reason'', and the Government servant who behaves in such manner can be penalised in any of the modes prescribed by Rule 49, Of course, whether in a particular case his conduct is so ''unbecoming'' is a question of fact to be determined on the evidence.

Under the ordinary law of master and servant ''insubordination'' is an established ground for termination of service and in the case of public servant, this is more so, because discipline is essential for the maintenance of efficiency as I have already said. Writing of an ''impertinent'' letter to a superior discloses such insubordination.

(b) We have, therefore, to see whether the language used in the letters at annexs. H and L are ''impertinent'' or ''insubordinate'' so as to render the Petitioner guilty of conduct ''unbecoming of a public servant'' within the purview of Rule 4 of the Government Servants'' Conduct Rules.

The Inquiry Officer held that though the part of the charge which alleged the language to be ''abusive'' or ''wild'' was not established, it was ''impertinent''. Government agreed with this finding. Though ordinarily this Court, sitting under Article 226 of the Constitution, cannot revise this finding as if sitting in appeal, it can interfere if the finding be perverse or that the conclusion is such as no reasonable man would draw from the materials which, in this case, are two letters on the record the construction of which is within the competence of any lay man of average education.

Where the material in question is correspondence, it goes without saying that in order to arrive at a proper construction thereof, the language must be read in the context in which the letters were written by the Petitioner. That context, in this case, is that the Petitioner had made repeated representations regarding his seniority which, according to him, had not been expeditiously disposed of, and he was exasperated because he was being asked to furnish further particulars through the Principal. Read in this light, I do not find anything going to the length of impertinence in the letter at annEx. H (dated May 14, 1964), addressed to the Principal. Of course, the words ''dragging me'' and ''tactional approaches'' are instances of bad English which the Petitioner may have acquired while in the American Universities (referred to in para. 5 of the petition). In his own interest the Petitioner may be told that the word ''tactional'' is not to be found in any of the dictionaries on the English language. If the words ''erratic'', ''unwarranted'', ''whims'' and ''caprice'', to which the Inquiry Officer takes exception, are read in the light of the expression ''factional approaches'', the only conclusion that one might reasonably arrive at is that, notwithstanding the Petitioner''s receiving higher veterinary education from foreign Universities, he did not know proper use of these English words and at most his use of these words has been ''injudicious'' or incorrect. But the use of bad English does not necessarily constitute ''impertinence'' to entail punishment. If that were so, there would be a flood of such cases as the standard of proficiency in the English language goes down with our national policy to substitute that language so long as it is not completely replaced. Besides, as I shall presently show, the Inquiry Officer has failed to read both the letters in the context in which they were written even though he has stated that background at the beginning of his order.

As regards the letter to annEx. L written to the Deputy Secretary, which is referred to in the second charge, the same conclusion should be arrived at. The offensive words pointed out by the Inquiry Officer from this letter are ''requested to revise'', ''absolutely necessary'' and ''extremely''. So far as the first expression is concerned, it is the usual language in the ''memo, form of correspondence''. It no doubt sounds a little unpalatable in the representation of a subordinate seeking redress regarding the orders of the very person who is addressed. But the use of the memo, form of letter cannot be penalised so long as there is no Government circular prohibiting the use of this form of correspondence from a subordinate to a superior. And it is because of the absence of such provision, perhaps, that at the hearing before the Inquiry Officer "the Government representative did not explain how this memo, shows a deliberate lack of official decorum in the matter of address", and the Inquiry Officer was, therefore, obliged to reject this part of the charge. For the same reason, the use of the memo, form and the consequential expression ''requested to revise'' cannot be held to be ''impertinent'' or unbecoming of the Petitioner as a Government servant.

The other two expressions merely reflect the feelings in the minds of the Petitioner that his grievance was not being taken seriously. The words ''absolutely necessary'', again, have to be read with the words which follow, which show that the Petitioner had been labouring under the assumption that the Government principle for fixing seniority had not been followed by the order of the Deputy Secretary in question. Whether such assumption of the Petitioners are legitimate or not is another question. The point before me is whether the use of such language, which may at best be said to be foolish or indiscreet, can be held to be ''impertinent''. In my opinion, such conclusion would not be ''reasonable'' and must, therefore, be held to be perverse.

The conclusion arrived at by me, in fact, follows from the observations of the Inquiry Officer himself which are self-conflicting. The Inquiry Officer has found that the language used by the Petitioner in these letters does not exhibit "a deliberate lack of official decorum" and yet it is ''impertinent'' and "unbecoming conduct on the part of a public servant". In my opinion, a subordinate cannot be held to be guilty of ''impertinence'' or "of conduct unbecoming of a public servant" in a case where his conduct is not ''deliberate'' or it does not constitute "a lack of official decorum", if all these expressions, in the absence of any authoritative interpretation in the Rules, are to be interpreted in their literal sense.

Firstly, ''impertinence'' on the part of a subordinate can never be a conduct consistent with official decorum.

Secondly, even though for a moment I would not encourage the use of any improper language by a subordinate to a superior, I do not think he can be rationally held to be guilty of ''impertinence'' or "conduct unbecoming of a public servant" where the use of such language is not ''deliberate''. Impertinence, as I have said earlier, is an element of insubordination and neither can take place unless the conduct is deliberate or, at least, the Petitioner justifies or persists in such conduct, after he is cautioned or asked why he had used such language.

The most striking feature of the instant case is that when the Petitioner wrote the two letters at annexs. H and L, nobody pointed out to him that the language used by him was offensive or asked him why he had used such language. The Respondents straightway launched the disciplinary proceedings. I do not suggest that the Respondents had no such power; what I say is that there is no evidence that the Petitioner insisted upon the use of such language even after it was objected to.

Secondly, in a matter like this, his defence to the charge in question cannot also be overlooked, in adjudging his conduct with respect to the language used in the letters. His defence is, in fact, summarised in paras. 8 and 9 of the report of the Inquiry Officer as follows:

Regarding the charges...he has stated that in Memo. No. 1777 (to the Principal)...he had used proper language and he never intended to use any indecorous, impertinent, insubordinate, disrespectful or abusive language. It is stated that he was anxious to have his grievances redressed, and he did not pay such attention to the language he had used:

Regarding Memo. No. 1606 (to the Deputy Secretary.... Sri Choudhury states that he never intended to use language which was impertinent.... He wanted justice to be done to his cause.

A man cannot be impertinent in his sleep; it must be intentional and also deliberate, because some amount of malus or insolence is involved in the expression ''impertinence'' when it is used to denote an objectionable conduct towards a man worthy of respect or at least obedience. It was, accordingly, essential for the Inquiry Officer to determine whether the Petitioner''s plea that he had not used the language objected to with a view to insulting his superiors but had used it inadvertently in his zeal to have his grievances redressed and to secure justice being done. Unfortunately, however, I do not find any observation of the Inquiry Officer under his treatment of charges (1) and (2), as to the legitimacy of the plea raised by the Petitioner in his defence. The failure of the Inquiry Officer to consider the defence becomes all the more glaring because, in his Statement of facts in para. 2, he acknowledges that the Petitioner was making representations for redress of his grievances, an inquiry into the legitimacy of which was beyond the scope of the proceedings before him:

It was not necessary in these proceedings to consider whether the Government decisions were correct or not. Sri Bimalendu Choudhury was not, however, satisfied with the Government decisions. He accordingly sent a confidential letter....

In my opinion, on this ground alone, namely, the failure of the Inquiry Officer to give due consideration to the defence, his findings on charges (1) and (2) are liable to be struck down as perverse and arbitrary.

(D) We are thus brought to the third charge relating to the Petitioner''s complaint to the Sadachar Samity which was introduced by amendment.

This charge (vide annEx. O to the petition) was that the Petitioner was guilty of

(a) ''gross indiscipline'' and

(b) "disloyalty to the State you serve", because of the Petitioner''s writing a confidential letter No. 2790 (July 15, 1964) "directly to Sri Gulzarilal Nanda, Chairman, Sadachar Samity"; seeking "enquiry, protection, justice and immediate action", "which you were not entitled to do, and which in effect was a complaint against the State Government".

At the outset, it must be pointed out that the impugned order of the State Government at annEx. Q is vitiated by an error apparent on the face of the record as regards the finding on charge No. (3). It is not stated in this order that the Government was overriding the finding of the Inquiry Officer on any point; the Government was awarding the punishments ''whereas'' the Petitioner had been found guilty of the charges by the Inquiry Officer, viz., charge No. 3 in whole and charges Nos. 1 and 2 in part.

Now, in stating that the Inquiry Officer had found the Petitioner guilty of ''charge No. (3)'', the State Government overlooked the material fact that the Inquiry Officer had exonerated the Petitioner of a substantial part of charge No. (3). It has just been stated that charge No. 3 consisted of two parts, namely, that the Petitioner was guilty of (a) gross indiscipline as well as (b) "disloyalty to the State Government". The Inquiry Officer categorically rejected the second part of charge No. 3 with the words--

it has not been established that Sri Choudhury was guilty of disloyalty to the State Government he serves (para. 22).

The matter did not deserve to be overlooked since in the preceding paragraph, the Inquiry Officer had given his reasons (to which I shall advert presently) for rejecting the charge of ''disloyalty'' against the Petitioner. We shall deal with the effects of this "error apparent on the face of the record" once more hereafter.

The second part of the charge having been rejected, the only question which remains to be considered is whether the finding of the Inquiry Officer that the Petitioner had been guilty of ''gross indiscipline'' in having written the letter in question to the Chairman of the Sadachar Samity was perverse. In his Order, the Inquiry Officer seems to have relied on Rule 4 of the Government Servants'' Conduct Rules, in finding the Petitioner guilty of conduct "unbecoming of a public servant" and also of indiscipline. As I have said earlier, ''indiscipline'' cannot be held to be a conduct becoming of a public servant. Hence, the charge of indiscipline may be brought under Rule 4.

Besides, the learned Senior Government Advocate has drawn my attention to Rules 21 and 22 of the same Rules as to why it was a conduct unbecoming of a public servant on the part of the Petitioner to have addressed the letter in question to the Chairman of the Sadachar Samity. Rules 21 and 22 of the said Rules should be reproduced at once:

Submission of petitions:

No Government servant shall submit any petition direct to Government or to any higher authority otherwise than through his immediate departmental superior and no Government servant shall send copies of such petitions to outside authorities, that is to say, authorities who are not directly connected with the consideration thereof (e.g. Ministers of other departments, Members of the Legislature).

Canvassing of non-official or other outside influence:

No Government servant shall bring or attempt to bring any political or other outside influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service under Government.

I agree with the learned Advocate for the Petitioner that Rule 21 is not attracted to the facts of this case, but I am of the opinion that Rule 22 may be applicable. I say that Rule 21 is not applicable inasmuch as it is clear from a reading of the Rule together with its note that the first part of the Rule is violated only when a Government servant approaches a superior departmental authority otherwise than through his departmental superior. But the Sadachar Samity was not a departmental superior of the Petitioner. The fact that he addressed the letter to Sri Nanda, who happened to be the Home Minister to the Government of India, does not lead to the conclusion that he had addressed a Minister to the Government of India without going through the State Government, because in the very charge, No. 3 brought by the State Government, it was clearly stated that the Petitioner''s letter had been addressed to "Sri Guljarilal Nanda, Chairman, Sadachar Samity".

The second part of Rule 21 is also not violated in the instant case inasmuch as the Petitioner did not send copies of his petitions to any ''outside authority'', because the word ''authority'' implies some persons or body exercising power or jurisdiction conferred upon it by the Executive or the Legislature. But the Sadachar Samity did not wield any power or authority whatever. It owed its genesis not in any statute or governmental policy but in the pious wishes of some well-meaning leader in his personal capacity. But, not backed by any authority of the State it met with a natural death, being unable to cope with the cobweb of official corruption which it was intended to crush. It is perhaps of the failure of such private institutions in this venture that the authoritative institutions of Lokpal and Lok Ayukt are now proposed to be launched into this arena.

But, as I have said, Rule 22 is violated if a Government servant approaches any outsider, whether public or private, with a view to obtaining a favourable decision in matters pertaining to his service.

In fact, the words ''outside influence'' can only mean some person or body outside the governmental organisation, who is approached with the expectation that such person or body might exert some influence, not necessarily legal, upon the Government in a matter relating to the service of the Government servant. There is little doubt that if a Government servant does this, he would be guilty of indiscipline as well as conduct unbecoming of a Government servant, because even a private employer would not relish his domestic servant negotiating with a neighbour to influence him in his dealing with his personal servant. Whether the Sadachar Samity was, in fact, competent to be of any help in this matter is not necessary for us to determine if we find that the Petitioner, when he approached the Samity, had such an expectation or desire in his mind. An answer to this question is to be found in the averments of the Petitioner himself in para. 30 of the petition:

Since your Petitioner had been fruitlessly trying to get redress against his genuine grievances from different authorities for over a long period and as your Petitioner apprehended that his representations and appeals might never be properly treated and disposed of before his retirement, which lay a few years ahead, your Petitioner in good faith made a representation to the Hon''ble Sri Nanda, as the Chairman of the Sadachar Samity, forwarding copies of his various representations submitted to the appropriate authorities....

In para. 11 of the counter-affidavit we find that apart from his general representations regarding other grievances referred to earlier, a specific representation of the Petitioner with respect to some adverse confidential remarks in the Annual Report was actually pending before the highest authorities of the State for their decision, and copies of those representations were forwarded by the Petitioner to the Chairman of the Sadachar Samity "for protection and immediate action" and in his very letter to the Chairman he wrote that he had the idea that "the Sadachar Samity was formed with a view to assist and collaborate with the State Government". The object of the Petitioner to influence the State Government through the Chairman of the Samity was thus obvious.

I must, therefore, hold that in writing the letter in question to the Sadachar Samity the Petitioner had been guilty of violating Rule 4 read with Rule 22 of the Government Servants'' Conduct Rules.

In this connection, we must mention that the Inquiry Officer has upheld the Petitioner''s plea that he had approached the Samity in "a bona fide manner" on the idea that "it was formed with a view to assist the State Government". I must further point out that the statement in para. 30 of the petition that "it was not announced by the Government that Government servants were debarred from approaching" the Samity or its Chairman has not been contradicted. Good faith, of course, is no defence to a violation of Rule 22. Nevertheless, it is, in my opinion, a consideration to be taken into account in determining the quantum of punishment. More than that I cannot say.

(E) Before I part with charge No. 3, I have to refer to an episode which is striking because it arises out of the affidavit-in-opposition filed by a Deputy Secretary to the Government of West Bengal.

I have already stated that the impugned order dated June 3, 1965, a copy of which as communicated to the Petitioner is at annEx. Q to the petition, gives not the slightest indication that the Government was differing from the findings of the Inquiry Officer on any point. On the other hand, the recitals at p. 2 of the order made it clear that the Government was punishing the Petitioner on the basis of the findings of the Inquiry Officer.

And whereas after proper departmental proceedings the said Shri Bimalendu Choudhury was not found guilty of the part of charge No. 1 to the effect that the language used...was abusive and charge No. 2 to the effect that the language used...was wild, but was found guilty of the remaining parts of each of these charges No. 1 and No. 2 and charge No. 3,

The Governor is pleased to order that....

If we read this with the last sentence of para. 13, the last sentence of paras. 16 and 18 and the last sentence of paras. 21 and 22 of the report of the Inquiry Officer, it would be evident that the Government was punishing the Petitioner on the basis of the findings of the Inquiry Officer that the Petitioner was guilty of part only of charges Nos. 1 and 2, but that as regards charge No. 3 Government made a mistake in assuming that the Inquiry Officer had held the Petitioner guilty of charge No. 3 in its entirety. It was not possible for the Petitioner to plead this mistake in the petition for the simple reason that the Respondents never supplied a copy of the report of the Inquiry Officer to the Petitioner.

I call it a ''mistake'' because there is nothing in the impugned order to show that the Government was disagreeing with the Inquiry Officer and coming to a finding of its own as regards charge No. 3. The recital in para. 2 of p. 2 of the impugned order just reproduced, does not say that the State Government or the Governor finds the Petitioner guilty of charge No. 3, in its entirety, overriding the finding of the Inquiry Officer, but merely stated that "after proper departmental proceedings" the Petitioner was found guilty of ''charge No. 3''. This recital cannot, therefore, refer to anything but the finding of the Inquiry Officer and cannot but be taken as a case of mistake made by the Government in making the statement in the impugned order.

But at p. 11 of the counter-affidavit, under para. 11, it is categorically stated by the Deputy Secretary, Sri Nripendra Krishna Sen Gupta, that--

Having carefully considered the report of the Inquiry Officer, the evidence both oral and documentary and Shri Choudhury''s statement, Government agreed with the findings of the Inquiry Officer with the exception that

(a) in respect of charge No. 2, it was also established that Shri Choudhury exhibited deliberate lack of official decorum, and

(b) in respect of charge No. 3, it was also established that Shri Choudhury was guilty of disloyalty to the State he serves; after all, disloyalty admits of various forms, and the conduct of Shri Choudhury showed utter lack of confidence in the State Government authorities.

This averment was made by the deponent on the basis of "information derived from the records of the case" but no extracts or copies of any such decision having been taken by the Government were annexed to the counter-affidavit. I wonder if the deponent would be told, if he did not know that already, that in the face of the recitals, in the impugned order the deponent should have attached to his counter-affidavit relevant extracts of the Government decision, in order to avoid the risk of being liable for swearing an untruth.

Be that as it may, even assuming that on some other papers the Government had recorded its decision to differ from the findings of the Inquiry Officer on the points just referred to, that cannot have any legal consequences in this case, because the impugned order at annEx. Q is the order formally made and communicated to the Petitioner and the State Government has to maintain its validity which has been questioned by the Petitioner. It must stand or fall oh its own recitals as it is a speaking order in a disciplinary or penal proceeding, which has been held to be a quasi-judicial proceeding, even outside the pale of Article 311(2) of the Constitution. Vide Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, and Calcutta Dock Labour Board v. Imam (1965) 2 S.C.A. 1077.

Further, even assuming that I am to take cognizance of the alleged modifications in the findings as stated in para. 11 of the counter-affidavit, I am certain that such modifications cannot but be held to be perverse, on their merits, for the following reasons:

(i) It cannot be reasonably held that in writing the memo, to the Deputy Secretary (annex. L) the Petitioner was guilty of a "deliberate lack of official decorum",

(a) unless the use of the memorandum form by a subordinate to a superior is prohibited; and

(b) in the face of the statement of the Inquiry Officer at para. 14 of his report that--

At the time of hearing the Government representative did not explain how this memo, showed a deliberate lack of official decorum in the matter of address.

(ii) Similarly, as regards charge No. 3, it cannot reasonably be held that the Petitioner, in writing to the Chairman of the Sadachar Samity, was guilty of ''disloyalty'' to his employer, the State Government of West Bengal, for the following reasons:

The word ''disloyalty'' means lack of allegiance and may be traced to the feudal concept of ''liege'' or allegiance to the overlord. In modern times, it is used to denote breach o� faith or unfaithful conduct. In the words used in para. 11 of the counter-affidavit (p. 11) the State Government is said to have held that the Petitioner was guilty of that form of disloyalty which consists of "utter lack of confidence in the State Government authorities". But the one does not rationally follows from the other and an employee who has ceased to have confidence in his employer cannot ipso facto be held to have been disloyal to the employer for the simple fact that disloyalty postulates an overt act expressing hostility and not merely a mental condition.

I must, therefore, hold that'' the alleged modifications of the findings on charges Nos. 2 and 3, even if true, have no existence in law as they are perverse. I have also held that the findings of the Inquiry Officer himself on charges Nos. 1 and 2 are perverse and should be struck down.

The result is that the only finding upon which the State Government is competent at law to punish the Petitioner is that part of charge No. 3 which accused the Petitioner of a conduct which was "improper and unbecoming of a public servant and derogatory to the prestige of Government", by reason of his having written to the Chairman of the Sadachar Samity in the manner alleged.

The question remains as to what legal consequences should follow the finding just arrived at by me.

It is an established proposition of law, reiterated, since the decision of the Federal Court in AIR 1943 1 (Federal Court) , in various decisions of the Supreme Court, such as, Dr. Ram Krishan Bhardwaj Vs. The State of Delhi and Others, , Shibban Lal Saksena Vs. The State of Utter Pradesh and Others, , Dwarka Dass Bhatia Vs. The State of Jammu and Kashmir, , that when an order or decision is based on several grounds or charges and some of those grounds are found by the Court to be non-existent or irrelevant, the Court must strike down the resultant order or decision, because it can never be certain how far the bad reasons had operated on the authority in making the order, except where it can be predicated that the irrelevant ground was of an unsubstantial or inconsequential nature. The above principle was imported into the sphere of Government employment by a Special Bench of this High Court in Nripendra Nath Bagchi Vs. Chief Secretary, Govt. of West Bengal, which went up to the Supreme Court on other points. It should be pointed out at once that the charges of disloyalty or impertinence which I have held to be perverse and nonexistent and which take away a bulk of the three charges upon which the impugned order is founded cannot be brushed aside as insignificant or unsubstantial.

But, before the impugned order can be quashed on this ground, we must refer to another decision of the Supreme Court in State of Orissa Vs. Bidyabhushan Mohapatra, , where there are certain observations which go to suggest that the Court cannot interfere with an order in a disciplinary proceeding where there is at least one amongst several charges with respect to which the finding of guilt cannot be wiped off. But since in this judgment there was no reference to the long line of cases or the principle laid down therein, it cannot be held that the Supreme Court has overruled or at least dissented from them; hence, the observations in Bidyabhusan''s case must be reconciled with the established principle and should be read as confined to the facts of the case before the Supreme Court. What was patently untenable in Bidyabhusan''s case was that the High Court had directed the Government to decide whether "on the basis of those charges which remained, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice". There is little doubt that the Court could not itself revise the penalty or direct the Government to consider it and the only order that the Court could make was to quash the impugned order with liberty to the Government to pass a fresh order according to law. If the decision in Bidyabhusan''s case be read from this formal point of view, there would be no conflict with the established principle.

Secondly, in Bidyabhusan''s case, the Court was persuaded by the view that there was some finding "as to substantial misdemeanour" for which the punishment of dismissal could be lawfully made. In the instant case, there was no doubt, the finding that it was improper for the Petitioner to write to the Sadachar Samity, but there is nothing in the counter-affidavit to suggest that his plea of bona fide belief that the Samity was an adjunct of the governmental machinery, which was accepted by the Inquiry Officer, had been duly considered by the State Government in imposing the punishment of stoppage of increment apart from censure.

Thirdly, there is also some force in the contention of Mr. Ghose, on behalf of the Petitioner, that while in Bidyabhusan''s case, there were several distinct charges, in the instant case, there was only one charge (vide p. 69 of the petition), namely, that the Petitioner had "behaved in a manner which was improper and unbecoming of a public servant and derogatory to the prestige of Government", and what the Inquiry Officer described as three ''charges'' were, in fact, three instances which were specified by the Government in order to establish that he was guilty of such behaviour or misconduct.

I would, therefore, hold that the decision in Bidyabhusan''s case is not applicable to the case before me and would, accordingly, quash the impugned order with liberty to the State Government to make a fresh order, in accordance with law, upon the finding that the Petitioner is guilty only of that part of ''charge 3'' which remains after striking off "disloyalty to the State he serves". The Rule in C.R. 2842 (W)/66 is made absolute in part, in the above terms and without any order as to costs.

C.R. 113(W)/67:

I. The first ground on which the order of compulsory retirement at annEx. A is challenged is that it is ultra vires Rule 77 of the West Bengal Services Rules, Pt. I. That Rule says that when disciplinary proceedings are pending on a charge of misconduct against an employee, he shall continue in service till the termination of proceedings which means the date of the ''original order'' of punishment or exoneration in those proceedings.

The order of compulsory retirement is dated November 29, 1966. The disciplinary proceedings which resulted in the order of punishment at annEx. Q to the other Rule [C.R. 2842(W)/66] was passed, terminated on June 3, 1965, i.e., prior to the order of compulsory retirement. Hence, prima facie, there has been no violation of Rule 77. It is, however, contended that the impugned order was passed during the pendency of C.R. 2842 before this Court in which the Petitioner challenged the validity of the disciplinary proceedings. But such a contingency does not plainly come within the mischief of Rule 77.

II. It has next been urged that the impugned order is ultra vires the proviso to Rule 75(A) of the said Rules under which the impugned order purports to have been made.

It is contended that since the Petitioner would attain the age of 55 years on May 31, 1967, the notice is bad, because it was issued earlier than that date, viz., November 29, 1966. The interpretation given by the learned Advocate for the Petitioner to the proviso, however, is not correct. It only provides that the Government servant cannot be retired at any time earlier than the date when he attains 55 years. The impugned order does not ask the Petitioner to retire earlier than that date. The proviso does not say that the notice cannot be issued prior to the date of attaining 55 years. The argument on this point must, accordingly, be rejected.

III. The next point taken by the learned Advocate for the Petitioner is that the provide to Rule 75(a) itself contravenes Article 14 inasmuch as it offers no guide to the appointing authority in the matter of exercise of his discretion and leaves it to him to pick and choose anybody he likes.

It has, however, been already held by the Supreme Court in T.G. Shivacharana Singh and Others Vs. The State of Mysore, that a provision for compulsory retirement cannot be held to be discriminatory if it extends to all employees of the same class and makes no discrimination inter se. Of course, if the order is mala fide, the order issued under the Rule may be struck down on that ground. The plea of mala fide raised by the Petitioner will be dealt with separately.

Nor can any discrimination be inferred from the mere fact that persons senior in age to the Petitioner have not so far been retired. In connection with retrenchment it has been held by the Supreme Court that no discrimination can be inferred from the mere fact that a senior employee has been retrenched while persons junior to him have been retained. The principle underlying that decision is applicable to a case of compulsory retirement. In order to succeed in the plea of denial of equal protection in the administration of the rule of compulsory retirement, a case of hostile discrimination or mala fide application of the Rule against the Petitioner must be established, apart from the mere fact that he alone has been selected for the purpose. The reason is that the rule of compulsory retirement is founded on the policy of public interest and administrative convenience on which the departmental superior is the best judge in the absence of mala fides.

The mere fact that this policy is not expressly stated in Rule 75 does not matter, because it has been laid down in various decisions that the policy underlying a law is to be determined from a reading of all its provisions as well as their object: Jyoti Pershad Vs. The Administrator for The Union Territory of Delhi, and R.S. Seth Gopikrishan Agarwal Vs. R.N. Sen, Assistant Collector of Customs and Others, . The object of Rule 75 and the standards to be applied in its administration can be ascertained from a reading of the criteria and procedure laid down under Note 4, particularly from Clauses (iii)-(vi). These clauses leave no doubt that the Rule is to be applied against a Government servant when his continuance in service beyond 55 years would not be conducive to the public interest because of his physical or mental inability, inefficiency in work or unsatisfactory record of service, lack of integrity or unsatisfactory conduct. The Rule itself cannot, therefore, be struck down as violative of Article 14.

IV. It is next contended that the impugned order of compulsory retirement is bad for non-compliance with the requirement of Article 311(2) or of natural justice.

It is to be noted that the impugned order at annEx. A does not impose any penalty in addition to the termination of the service nor does it-contain any stigma against the Petitioner. Hence, this contention cannot be accepted in view of a number of Supreme Court decision, such as The State of Uttar Pradesh Vs. Madan Mohan Nagar, and I.N. Saksena Vs. State of Madhya Pradesh, .

V. Along with this we must consider the argument of Mr. Ghose on behalf of the Petitioner that the proviso to Rule 75(a); is itself violative of Article 311(2) because it enables the competent authority to terminate the services of a permanent employee without giving him an opportunity of being heard or showing cause.

On this point, Mr. Ghose, on behalf of the Petitioner, relied upon certain observations of Subba Rao, J. (as he then was), in the minority, in Moti Ram v. N.E.F. Railway AIR 1964 S.C. 66 (paras. 65, 72, 77 and 78), where it was opined that the requirement of Article 311(2) was not necessarily dependent on a charge of misconduct and that by whatever means the services of a permanent employee were sought to be terminated, Article 311(2) should be complied with. It was also observed that even in a case of compulsory retirement, it was possible for the person against whom it was sought to be applied to show that he was not a person against whom the Rule should be applied.

These observations of Subba Rao, J., however, have not been shared by any other Bench of the Supreme Court so far and the well-established principle that Article 311(2) is attracted only when there is some imputation or allegation against the Government servant which may be objectively rebutted, still remains unshaken, Hence, this argument of Mr. Ghose cannot be accepted.

VI. More serious is the last argument of Mr. Ghose that the impugned order of compulsory retirement is actuated by mala fides and should, accordingly, be struck down.

Though legal authority on this point is still scanty, observations of the Supreme Court in Shivacharana''s case Supra lend support to the contention that mala fides is an independent ground for challenging an order of compulsory retirement, even though Article 31(2) of the Constitution might not be attracted. In fact, the principle of any statutory action being vitiated by mala fides has nothing to do with the constitutional requirement of giving an opportunity of showing cause under Article 311(2).

It is one of the basic principles of Anglo-Saxon jurisprudence that any statutory power must be exercised bona fide: Biddaulph v. St. George''s Square (1875) 3 Deo. G.J. 93 and R. v. Paddington Rent Tribunal (1949) 1 All E.R. 820 (825). Mala fides, therefore, vitiate any statutory action even where the power conferred by the statute is discretionary: R. v. Cothan (1898) 1 Q.B. 802, R. v. Brighton Corporation (1916) 85 L.T. K.B. 1552 (1555). Mala fides is of two kinds--(a) actual malice or malice in fact and (b) malice at law or implied malice.

For the latter kind, the existence of any ill-will or corrupt motive is not necessary; it is constituted as soon as a statutory power is used for a purpose other than that for which it was given by the Legislature or other law-making authority and is, therefore, otherwise known as a ''colourable use'' of power: Galloway v. Mayor of London (1886) 1 H.L. 344, Sydney Municipal Council v. Campbell (1925) A.C. 388, and Earl Fitxwilliam''s Estates v. Minister of Town and County Planning (1951) 1 All E.R. 822 (C.A.). When the statutory authority uses his power for a purpose other than that for which it had been conferred, such exercise of power also becomes ultra vires, i.e., in excess of the power conferred by the Legislature: Associated Pictures v. Wednesbury Corporation (1947) 2 All E.R. 680.

We have, therefore, to determine whether the power conferred by the proviso to Rule 75(a) of the West Bengal Services Rules was applied against the Petitioner for a purpose other than that for which that power was intended. I have already held that though the proviso does not expressly say so, when read with its notes, it becomes clear that the power is to be exercised only in the public interests, i.e., for the efficiency and integrity of the public services, after making an assessment of the physical and mental conditions of the employees and their efficiency in work.

The facts upon which the Petitioner founds his case of mala fides are stated in paras. 8-9 of the petition. It is stated that the impugned order of compulsory retirement was made on November 29, 1966, the very date fixed for return of the other Rule obtained by the Petitioner in C.R. 2842(W)/66 regarding his seniority and punishment for approaching the Sadachar Samity etc. More grievous is the statement made in para. 8(iii) of the petition that the Rule was issued (on October 4, 1966), after notice to the Respondents of the motion and "in the presence of the Respondents'' counsel", and in para. 9 it is stated that the impugned order was issued with the object of prejudicing the proceedings in C.R. 2842. When we turn to the averments in the counter-affidavit corresponding to these statements in paras. 8-9 it is evident that there is little or no denial to the foregoing allegations of the Petitioner except that the Rules were duly complied with in making the impugned order.

It cannot be overlooked that the Government had already punished the Petitioner for his conduct in writing offensive letters to his superiors and in writing to the Sadachar Samity by censure and stoppage of increment. Compulsory retirement was not then thought of as a proper remedy for such misconduct. It was ordered just when the Petitioner came to Court and obtained the Rule after notice of his application to the Respondents. The Respondents were, of course, free to make the impugned order at any time on the eve of his attaining the age of 55 years, but the timing of the order in the instant case cannot be taken to be accidental in the face of the ex parte statement of the Petitioner that it was made in order to prejudice the normal course of the proceedings in C.R. 2842, and as a reaction to the Petitioner''s dragging the Respondents to Court. As the records stand, there is nothing to controvert the Petitioner''s case that the impugned order would not have been made had the Petitioner not obtained the Rule in C.R. 2842 in the manner alleged. If this be correct, the impugned order must be struck down as vitiated by mala fides.

The Rule in C.R. 113(W)/67 is, accordingly, made absolute and the Respondents are restrained from giving effect to the order at annEx. A to the petition, without prejudice to their right to take any other action that might be open to them under the law. There will be no order as to costs.

As prayed by the learned Advocate on behalf of the Respondents the operation of the order in both the Rules will remain stayed for one month from this date.