P. Kesava Rao Naidu vs Director of Posts and Telegraphs, Andhra Circle, Kurnool and another

P. Chandra Reddi, Offg. C.J.

The subject-matter of both these petitions is (sic)ecision of the Posts and Telegraphs Department, Andhra Circle, to retire the petitioner on his (sic)ng the age of superannuation.

W. P. No. 538 of 1955 is for the issue of a (sic) of mandamus directing the respondent i.e., (sic)or of Posts and Telegraphs (Andhra Circle), (sic)ol. to consider his case on merits and to (sic)ue him in service, according to Rule 56. (b) (1) (sic) Fundamental Rules while the other (W. P. (sic)9 of 1956) is for the issue of a writ or certi(sic)o quash the orders passed by the same au-(sic) on 21-9-1955. The material facts may be (sic) stated as follows:

The petitioner entered the service of the (sic)ment of India in the Department of Posts (sic) telegraphs in the year 1918. After serving (sic) Department in various capacities he was (sic) as a Post-Master and in July 1955 he was (sic)g as Deputy Post-Master, Nellore. He was (sic)plete 55 years on 2-8-1955. While at Nellore, (sic) a letter on 28-7-1955 from the Post-Master (sic)g a copy of the communication from the (sic)tendent of Posts and Telegraphs, the con-(sic) which are as follows:

It has been decided by the Director P. and T. (sic) Circle to retire Sri R. Kesava Rao Naidu (sic) Deputy Post-Master, Nellore who is due to (sic)nuate on 2-8-1955 after permitting him to (sic)such leave as he may desire to apply and (sic) he maybe entitled.

(sic)ipt of this, he made a written representation (sic)perintendent, Posts and Telegraphs, Nellore, (sic)the Post Master. The gist of it is that as (sic)56 (b) (1) of the Fundamental Rules he (sic) be retained in service upto the age of 60 (sic)ere being no adverse remarks proving his (sic)icy and that notice of the decision was (sic)n him only four days prior to the date of (sic)at and requesting him to reconsider his (sic).

(sic) also expressed a desire that he should be (sic) all the leave available to his credit, in case Department stuck to its decision. This was (sic)d by the Superintendent to the Director of Posts and Telegraphs immediately. He was relieved with effect from 2-8-1955. It appears that the Director issued instructions to the Superintendent of Posts and Telegraphs, Nellore, by his communication dated 5-8-1955 to grant leave to the petitioner to which he was entitled and he had applied for and that the actual date of retirement might be fixed and reported.

There seems to have been correspondence amongst various officers in regard to the fixation of leave to the credit of the petitioner. Meanwhile, W. P. No. 538 of 1955 was filed in this Court for the reliefs mentioned above, questioning the legality of the order on the twofold ground that effect was not given, to rule 56(b)(1) of the Fundamental Rules which enjoined on the Department to retain a ministerial servant till the age of 60 unless he was found inefficient, that his services were very much appreciated and that merit recognising certificates were given to him which revealed that he was highly efficient, and secondly in overlooking his claims to continue him in service the officers concerned acted capriciously and arbitrarily and that the order terminating his services was engineered by the Superintendent who wanted to wreak vengeance on him for bringing to light irregularities committed by his favourites:

Writ nisi was issued on 29-8-1955. While this was pending, the petitioner received a communication dated 5-10-1955 in response to his representation from the Superintendent, Posts and Telegraphs to the effect that the Director of Posts and Telegraphs wanted that the petitioner should be informed that since some cases were pending against him the question of retirement could not be decided earner and that he could not complain of inadequate notice as the actual date of retirement was fixed as 10-6-1956.

It may also be mentioned that a printed leave application form was sent to him with a request to fill it up and send it early to the Superintendent, Posts and Telegraphs. A fews days later i.e.; on 11-10-195,6, the petitioner was enquired whether he had received a copy of the order from the Director of Posts and Telegraphs, Andhra Circle, with regard to his retirement from service with effect from 10-6-1956. A copy of the memorandum No. B/LSG/II at Nellore, 31-8-1955 seems to have been served on him granting him leave preparatory to retirement, the particulars of which are as follows:

L. A. P. without M. C. 2 days from 2-8-55 to 3-8-55.

L. H. A. P. without M. C. 10 months 6 days from 4-8-55 to 9-6-56.

His pay and allowance are as shown below:-

Pay Rs. 200/- D. A. 60/-.

On 27-10-1955, the Superintendent wrote him a letter giving the same information as contained in Memorandum No. R/LSG/II at Nellore 31-8-1955. The only response which these communications elicited from the petitioner was a reply dated 8-10-1955 telling the Superintendent of Posts and Telegraphs that he had already filed a writ petition in the High Court for quashing the wrongful order of retirement and that he had alleged in the affidavit that his retirement was engineered by the Superintendent to wreak vengeance against him for reporting against some of the subordinates at Kavali in whom he is interested, and reiterating his rights in the matter.

He also called upon the Director by that letter that he should desist from proceeding with enquiries into the charges that were framed against him. Finally a copy of the retirement order issued by the Deputy Director on 21-9-1955 was served on him in No. B/LSG/II dated 14-4-1956 which reads thus:

Sri P. Hesavarao Naidu, Officiating Deputy Post-Master, Nellore, is hereby ordered to retire from service with effect from 10-6-1956.

On receipt of this, he filed the other writ petition basing it on several grounds i.e., reiterating the contentions urged in the first petition and also alleging that there was violation of Art. 311 of the Constitution. It was also recited in the petition that there was infringement of Art 14 of the Constitution in that the superannuated Post Master similarly situated and with bad record were continued in service after the age of 55 thus there being discrimination against him.

In support of the first petition, four contentions are put forward by Sri R. Venkata Subba Rao, counsel for the petitioner:

that there was no order passed by a competent authority;

that under rule 56(b)(1) of the Fundamental Rules the petitioner had a right to be in service till he reached the age of 60 since he was not found to be inefficient;

that the circulars issued by the concerned departments of the Government of India have not been obeyed; and

in any event the order dated 28-7-1955 was not passed bona fide.

To take them seriatim, the first point is elaborated thus by the learned counsel for the petitioner. Under the Rules relating to Appointments, penalties and appeals of Central Services, Class II and Class IV, the authority to appoint Post-Masters etc.; is the Deputy Director of Post and Telegraphs so far as the State of Andhra is concerned and consequently it was not competent for the Director to take a decision regarding the retirement of the petitioner. This argument lacks substance. The petitioner had not alleged this in the affidavit filed by him in support of his petition.

Such being the case, it is not open to him to advance this argument for first time at the hearing of the petition. He should be confined to the objections put forward in the petition and cannot be permitted to travel beyond them. Again, we cannot lose sight of the fact that the very prayer in the petition is to direct the Director to do certain things. That apart, the order in effect was passed only by the Deputy Director as could be seen from the relevant records. Even otherwise, we are not impressed with that argument. Under item 11 of schedule No. 1-A of the Rules relating to Appointments etc. the authority empowered to appoint Post Master, Grade B in Higher Selection Grade, is the Director of Postal Service or Deputy Director Posts and Telegraphs. We do not think there is anything in the rules precluding a higher authority from deciding whether a ministerial servant could be retained in service after he reached the age of 55. We can understand a grievance of an employee if an order to his detriment is passed by a person subordinate to an authority that appoints him. There can be really cause for complaint if the adjudication is made a higher tribunal and we are not shown how it in any way prejudiced him. However, that n not detain us as the actual order was passed by Deputy Director. Obviously, that order was exhibited by the Department for the reasons no ground was taken in this behalf.

As regards the disobedience of rule 5 (1) of the Fundamental Rules and the rele(sic) Memorandum called in aid by the petitioner, will deal with it presently as this was debated the other petition also.

Now coming to the ground of attack on the order dated 2-8-1955 was passed in disregard his claims out of ill-will which the Superintendent of Posts and Telegraphs bore towards him, it is (sic)ally baseless and not founded on any material. (sic) summing for a moment that the Superintende (sic) Posts and Telegraphs had any grudge against (sic) petitioner, that has no bearing on this enquiry (sic) cause the decision to be taken in that regard (sic) by the Director or Deputy Director as the case (sic) be, and not by the Superintendent, Posts and (sic) graphs.

It is worthy of note that nothing has beer (sic)gested against either of the two officers, na(sic) the Director or the Deputy Director in any (sic) petitions. Nor is it stated as to what hold the (sic) superintendent had on these two officers or in (sic) manner he could influence them except alleging (sic) the order was engineered by the Superintend (sic) Posts. Mala fides cannot be presumed against officers concerned and the burden of established lies heavily on the person that asserts it. Fa(sic) discharging his burden, the memorial which he admitted to the Director of Posts and Telegra (sic) May 1955 furnishes sufficient material for the superintendent framing some charges against (sic) which form the foundation for the present (sic)tion by the petitioner against that officer.

That memorial disclosed that all the subordinate staff including postmen, signallers etc. of the (sic) Office, Kavali, where he was working as Su(sic) Master prior to his shifting to Nellore had co(sic)ed to the higher authorities against the pet(sic) Further, it was stated that he was looking (sic) upon schedule caste employees, and a Men (sic) Parliament to whom complaints were carri(sic) also brought it to the notice of the Minister f(sic) (sic)munications, Government of India, by hi(sic) dated 1-2-1955.

In addition, all the people of Kavali h(sic) (sic)mahajars complaining against the behaviour petitioner. However, we are not concerned v(sic) truth or otherwise of the complaints or char(sic) were levelled against him. Suffice it to say (sic) argument that the order in question emanat(sic) the desire of the Superintendent to victim (sic) is without any foundation and this need not (sic) sued further. As already pointed out, the Superintendent of Posts Offices is not the author (sic) communication dated 28-7-1955.

We cannot also give any weight to (sic) mission that, in fact, no order was passed (sic) Director or the Deputy Director to retire t(sic) (sic)tioner from service as pretended to by the p(sic) and the Superintendent, Posts and Telegraph (sic)lore, retired him from service unauthorized own responsibility. To say the least, this is ut-(sic) (sic)ly devoid of merits.

For one thing, no such ground had been taken (sic)either of the two petitions. Nor has there been (sic) whisper in that behalf prior to it. If he had (sic) that the- Superintendent himself was proceeding (sic) terminate his services without any authority from (sic) official superiors, the petitioner could have re-(sic)red him to produce a copy of that order. More-(sic)r we were shown the order actually passed by (sic) Deputy Director as aforementioned. That not (sic) embodies the decision of the Deputy Director (sic) to retain the petitioner in service but also con-(sic) the reasons therefor. Further, all the subsequent correspondence that ensued between the petitioner and the authorities concerned was only on (sic) basis and in pursuance of the order of 28-7-1955.

We are invited to infer the non-existence of (sic) earlier order by a competent authority from the (sic)s of the order dated 21-9-1955, namely, "hereby referred to retire from service." It is stressed that (sic)tally the petitioner was retired on 28-7-1955, the (sic)ession "hereby" etc.; is unmeaning. This argument has not even the merit of plausibility. By the (sic)r of 28-7-1955, the petitioner was only intimation about the decision of the Department not to con-(sic) him in service on his attaining the age of sup-(sic)nuation.

It is specifically recited in that order that the (sic)ment would take effect after the officer had (sic)ed himself of such leave as he might desire to (sic) and to which he might be entitled. It is in (sic) to the query in that communication that he (sic) in his representation that he wanted to be (sic)ed all the leave available to his credit. On (sic) the Deputy Director issued instructions to (sic)ly with this request of the petitioner.

Thereafter, the Department had to ascertain (sic) consulting the relevant records, his earned (sic) etc. After this was done, the petitioner was (sic) both in September and October, 1955 what (sic) he was entitled to leave on full average pay (sic)ut medical certificate and leav,e on half aver-(sic)ay without medical certificate.

The actual retirement had to commence (sic) after the expiry of this leave. This is how (sic) of July 1956 came to be fixed as the date of (sic)ment and it is this that is the subject of the (sic) dated 21-9-1955. There is thus nothing ir-(sic)cilable or inconsistent between the two orders, (sic) second order merely gave effect to the first (sic).

(sic) or is the. grievance that there was considerable (sic) in sending a copy of the second order a (sic)e one. The information that was imparted (sic) in September and October, 1955, regarding (sic)tal period of leave that he could get, indicated (sic) as to when his retirement would come into (sic) Further, he was asked in October, 1955, (sic) whether he was in receipt of the order in (sic)on. and if he had not replied by adopting a (sic)t. attitude, he had to thank himself. Even (sic)ise, nearly two months notice cannot be re-(sic) as inadequate.

For these reasons, it is futile for the peti-(sic) to advance this contention, which appears, to (sic)rivolous one.

The main problem to solve is the nature of the right which a ministerial servant possesses to be continued in service after the age of 55. This depends mainly upon the interpretation of F. R. 56(b)(1) and other instructions issued by the Home Ministry, Government of India and Director-General, Posts and Telegraphs etc. as also on Arts. 311 and 14 of the Constitution, Rule 56 of the Fundamental Rules is in these words:

(a) Except as otherwise provided in this rule, a Government servant, other than a ministerial servant, is required to retire on attaining the age of 55 years. He may be retained in service after that age with the sanction of Local Government on public grounds, which must be recorded in writing; but he must not be retained after the age of 60. years except in very special circumstances.

(b) (i) A ministerial servant who is not governed by sub-clause 2 may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the Local Government.

(ii) A ministerial servant.

(1) who enters Government service on or after 1-4-1938, or

(2) who being in Government service on 31-3-1938 did not hold a lien or a suspended Hen on a permanent post on that date shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing, and with the sanction of the Local Government and he must not be retained after the age of 60 years,except in very special circumstances.

We are here concerned only with Rule 56(b)(1) because there is no dispute that he is a ministerial servant who entered service prior to 1-4-1938 and as such not governed by Rule 56(b)(2). The relevant portions of Memorandum No. 33/10/53-estt. Dated 17-7-1954, Government of India, Ministry of Home Affairs called in aid by the petitioner read thus:

In para 4 of the Ministry of Home Affairs Office Memorandum No. 2676/52 Ests. D/-11-11-1952, it was laid down that the cases of ministerial Government servants who are governed by F. R. 56(b)(1) should be reviewed periodically between the ages of 55 and 60 years to ensure that they are retained in service beyond the age of 55 years only if they continued to be efficient. The matter has been under further consideration of Government who have decided that-

(a) a high standard of efficiency should be insisted upon for allowing such a ministerial Government servant to continue in service beyond the age of 55 years and that competent authority should consider the case of each individual on the basis of the standard at periodical reviews, say once a year;

(b) an annual medical examination of such ministerial Government servants who satisfy the Standard referred to at (a) above should be held to determine their physical fitness, and their continuance in service beyond the age of 55 years, should be subject to their being declared physically fit as a result of such an examination

2 (1). At the periodical reviews mentioned in (a) above, the competent authority should prepare, after consultations with the appropriate Departmental Promotions Committee, if one exists,

(i) a list of such ministerial Government servants as are considered efficient and suitable for further retention in service. Such persons may be retained in service for a period not exceeding one year at a time, subject to their being declared physically fit as a result of the annual medical examination referred to (b) above.

(ii) A list of such persons as are not considered suitable for retention in service beyond the age of 55 years, or after the expiry of the period beyond the age of 55 years for which their retention has been previously approved.

(2) Every person whom the competent authority decides to retain in service as in (1) above should be informed that such retention (upto a date to be specified) will be subject to his continued efficiency for which the competent authority will be the sole judge.

(3) Every person whose name is included in list (ii) or who is not declared physically fit as in (1) above, should be informed in advance that he has the option either to retire with effect from the date to be specified or to proceed on such leave preparatory to retirement as he may apply for and may be admissible and granted to him. Such leave will in no case extend beyond the date of his attaining 60 years.

We may here extract Art. 465-A of Civil Service Regulations which was substituted for item No. (3) of the Government of India''s decision which interpreted Rule 56(b)(1) of the Fundamental Rules and which throws light on the present enquiry:

X X X X

(3) F. R. 56(b)(1) provides a condition of service of a ministerial Government servant that he may be required to retire at the age of 55 but should ordinarily be retained in service upto the age of 60 provided he continues to be efficient. It would therefore be the option of the Government or other competent authority to continue him in service after 55, although the option should be ordinarily exercised in favour of the Government servant if he continues to be efficient. The Judge of continued efficiency must also be the Government or other competent authority. The retirement of a ministerial Government servant on or after attaining the age of 55 will not be ''dismissal'' or ''removal'' in terms of Art. 311(2) of the Constitution and it is unnecessary to give him an opportunity to show cause on account of such retirement.

In this connection it has further been decided that a periodical review of the cases, all such ministerial Government servants between the ages of 55 and 60 years should be made annually to ensure that their efficiency has not deteriorated so as to render their further retention in service contrary to the public interest, and action should be taken to retire officers where the review disclosed to be necessary. It should also be clearly understood that in passing orders in such cases the competent authority would be free to take all the factors into account in order to ensure in every case that the retention of a man in service after attaining the age of 55 is on the whole in the public interest and not merely in the interest of the individual Government servant concerned.

The provision in Note I below Art. 465-A (sic) the C. S. R. is similar in character to that in F. (sic) 56 (b)(1) and is the one of the terms and conditi(sic) of the service. Therefore, when a Government servant to whom the provision is applicable ta(sic) up service he must presume to have done so (sic) the full understanding that the duration of (sic) service will be up to end of 25 years qualify (sic) service or till the attainment of the age of 55 y(sic) at the discretion of competent authority. Since the applicability of Arts. 311 and 14 of (sic) Constitution to the instant case rests upon (sic) character of the right that a ministerial ser(sic) derives under Rule 56(b)(1), we will first pro(sic) to interpret Rule 56 and the relevant circular (sic) (sic)structions.

The argument pressed upon us for the (sic)tioner is that the ministerial servant employed (sic) to April, 1938 has acquired an indefeasible rigl(sic) be retained in service till the age of 60 unle(sic) is affirmatively established that he was proved (sic) efficient and if he is to be retired earlier he sh(sic) be given an opportunity to show that he has (sic) become inefficient and failure to give the peti(sic) or adequate notice of the termination would am(sic) to an infraction of Art. 311 of the Constitution (sic).

If the petitioner had a legal and enforc(sic) right and if his services were terminated before (sic) age of 60 there may be substance in the conten(sic) Can the language of Rule 56(b)(1) lend itself t(sic) interpretation that the servant falling within the (sic) view of sub-rule I has a vested right which (sic) be agitated in a court of law and is his non (sic)tinuance tantamount to removal within the (sic) of Art. 311 of the Constitution?

The clause in the rule which has given r(sic) the contention that a ministerial servant has (sic) allowed to continue in service till 60 is: "should (sic)narily be retained in service if he continues (sic)cient.

We do not think that this is susceptible (sic) construction that is sought to be placed on it. (sic)use of the expression "ordinarily" is significa(sic) denotes that a servant need not be invariab(sic) without exception retained in service. The (sic)ing of the word "ordinarily" as found in S(sic) Oxford English Dictionary is : "in conformity (sic) the rule; as a matter of regular occurrence; i(sic) cases; usually commonly; to the usual exte(sic) in normal or usual." This is subject to the f(sic) restriction that the competent authority sho(sic) satisfied that the ministerial servant has ma(sic)ed in service the same standard of efficien(sic) other words the continuance in service is con(sic) upon the employee continuing to be efficien(sic) before this rule can come into play, the test (sic) efficiency should be satisfied.

No ministerial servant can claim as a ma(sic) right to be in service till the age of 60 and (sic) employee concerned is made to retire at the (sic) 55, he cannot complain of any breach of st(sic) obligation. Thus, we feel that F. R. 56(b)((sic) not confer any actionable right on the emp(sic) be retained in service after the age of supei(sic)tion. It is discretionary for the authority c(sic)ed to retain a person in service who, in his (sic) has maintained at least the same degree (sic)ncy as before and he is the sole judge of continued efficiency and a court cannot control his (sic)retion.

We are supported in this view of ours by a judgment of the Allahabad High Court in Raghunath Narain Mathur Vs. Union of India (UOI), It was laid down by Sapru and Chaturvedi, JJ., (sic) under the State Railway Establishment Code, (sic) II Rule 2046(2)(a) the railway authorities have (sic) unfettered option to retire a person at the age (sic)5 though, normally, they are expected to con-(sic)e them in service unless found inefficient till the (sic) of 60. Sri Venkatasubba Rao for the petitioner (sic)pted to distinguish this on the ground that (sic)rule interpreted was one framed under the State (sic)way Establishment Code and that ruling can-(sic) apply to a case arising under the Fundamental (sic)s. We cannot accede to this. The language (sic)e rule in the State Railway Establishment Code (sic) pari materia with F. R. 56(b)(1). That is in (sic) following language:

A ministerial servant who is not governed by (sic) clause (b) may be required to retire at the (sic) of 55 years, but should ordinarily be retained (sic)vice, if he continues efficient, upto the age of (sic)ars. He must not be retained after that age (sic)t in very special circumstances, which must be (sic)led in writing, and with the sanction of the (sic)tent authority.

(sic)hus mainfest that this is a verbatim reproduction (sic) F. R. 56(b)(1) with which we are concerned (sic) consequently the principle of AIR 1953 All (sic)) certainly governs the instant case. This (sic)lent was followed1 by a Judge of the Calcutta (sic) Court in Basanta Kumar Pal Vs. The Chief Electrical Engineer and Others, as also by (sic), J, of the Punjab High Court in Kuldip Singh (sic)te, AIR 1954 Punj 247 (C). The learned (sic) of the Calcutta and Punjab High Courts have (sic)d to the interpretation of F. R. 56(b)(1) by Government of India to which we have already (sic)ed, that it would be the option of the Government (sic)or other competent authority although "the (sic) should be ordinarily exercised in favour of (sic) Government servant if he continued to be effici-(sic).

(sic)e Judge of continued efficiency must also (sic) Government or the competent authority. It (sic) that the interpretation of the rule by the Government of India is not binding on a Court, but (sic)ed out in those decisions, that brings out the (sic)lent of the rule as originally framed.

(sic)) Sri Venkata Subba Rao cited to us a (sic)t of the Supreme Court in Jai Ram Vs. Union of India (UOI), on that his client had an enforcebale right (sic)pt in the employment till the age of 60 and (sic)hat the rule laid down in the case cited above (sic)ed to the principle of Jai Ram Vs. Union of India (UOI), . Judgment of the Supreme Court does not help (sic)llant in any way. It is not laid down there (sic) relevant rule has bestowed on the ministerial (sic) legal right. All that was stated there was (sic) was a possible view to take that he had a (sic) continue till 60 but this is qualified by re-(sic) that this was conditional upon his continu-(sic)d efficient.

(sic)ght cannot be said to be an indefeasible one (sic)subject to a qualification. Before an employee could claim retention in service till 60 he should satisfy his departmental superior regarding his efficiency. We do not think that the Ministerial servant has any statutory guarantee by reason of F. R. 56(b)(1) to be continued in service till the age of 60.

Another argument advanced on behalf of the petitioner was that it was not within the competence of the Department to retire a Ministerial servant without complying with the instructions dated 17-7-1954 from the Government of India which have already been cited, namely, to undertake periodical review of the work of the Ministerial servant and to submit him to annual medical examination. This also lacks force. Firstly, it is not the cumulative effect of the periodical review of the "work and of the medical examination that should be taken into account in determining the efficiency within the scope of that rule. A medical examination should be held only if the ministerial servant satisfies the standard referred to in clause (a) and it would be unnecessary to have a medical examination if he does not conform to the standard of high efficiency contemplated by clause (a).

That apart, clauses (a) and (b) will come into operation only with regard to persons who continue in service after that age, the purpose being to ensure that they continue to be efficient between the age of 55 and 60. These were instructions for the guidance of the Departmental heads and were conceived more in the interests of public administration rather than for the benefit of the ministerial servant. Moreover, it cannot be postulated in this case that the competency of the petitioner was not judged on the basis of the periodical review.

We will here deal with the point raised on behalf of the petitioner that his services, were terminated out of improper motives as could be gathered from the fact that in the years preceding the relevant year the petitioner had obtained high marks of rating and it was unintelligible how all of a sudden the Department could discover deterioration in him. It should be assumed that his efficiency remained unimpaired especially when no average remarks were ever communicated to him prior to this period, continues the learned counsel.

We do not think we can give any weight to this argument. There can be little doubt that the petitioner was made aware of not only adverse comments and warnings but of the punishments awarded to him such as censure etc. In the counter-affidavit filed by the respondent therein, it was alleged that the petitioner''s service was not uniformly good, that he was severely warned in 1950-51 in connection with the loss or National Saving Certificates, that his promotion to the L. S. G. cadre was: withheld for one year from 7-8-1951 and that he was censured for bad work during 1951-52.

These allegations are not denied in the reply affidavit but were sought to be belittled and explained away. In this position, it is not necessary to consider whether the Department would have violated the rule which requires that adverse remarks made in the confidential sheets should be communicated to him by the officer making it, etc. In these circumstances, this submission has to be overruled. Granting that the competent authority had not chosen to communicate them to the petitioner we do not think that would invest the employee with a right to compel the competent authority to retain him in service after the age or 55. That authority in determining the efficiency of the ministerial servant, will take into account all these matters.

It is for him to judge the standard of efficiency of the subordinate and the court cannot sit in judgment over, his estimate of the capabilities of the employee. Discretion is vested in the Departmental head to continue him in service or not under F. R. 56(b)(1) taking into considerations several factors which determine the efficiency or otherwise of the employee. He is the sole judge of the efficiency or otherwise of the ministerial servant and this court cannot substitute its judgment for that of the competent authority.

The next point is whether there was any breach of Art. 311 of the Constitution in this case. Article 311 comes into operation only if a member of the Civil Services was dismissed, removed or reduced in rank. The non-continuance of a Ministerial servant after the age of superannuation cannot be regarded as either dismissal or removal etc. within the mischief of Art. 311(2). When a Government servant reaches the age of Superannuation, in the normal course he cannot claim to be employed thereafter. F. R. 56(b)(1) makes a departure from this rule in regard to a ministerial servant, but the continuance is made to depend on the conditions laid down therein.

The applicability of Art. 311(2) will be attracted to cases of termination of service by way of dismissal or removal etc., if he had an unqualified right to hold the post. The retirement of an officer will not be dismissal, removal etc. in terms of that Article. As such, the Constitutional guarantees envisaged in that Article cannot apply to cases of this description. In order to arrive at a decision whether a person is efficient enough to be continued in service or not, it is not necessary to frame charges and give the employee an opportunity of explanation.

In this context, the counsel for the petitioner relied again on Jai Ram Vs. Union of India (UOI), . We cannot derive any guidance from this ruling in this behalf. Their Lordships did not decide that a Ministerial Government servant was entitled to a notice to show cause why he should not be retired from service. All that was stated was that "it might be argued that he should have been given an opportunity to show that he was still able to discharge his duties and could not be retired at that age." This does not amount to a pronouncement of any opinion in that behalf. It was not necessary for their Lordships to consider that aspect of the matter for the reason that the retirement of the appellant was of his own seeking and therefore the observation extracted above would only seem that such an argument would not avail him.

The judgment of the Supreme Court in Parshotam Lal Dhingra Vs. Union of India (UOI), which was called in aid on behalf of the petitioner also does not render any assistance to him. That decision defines the ambit and scope of Art. 311 of the Constitution. There, it was laid down inter alia that if a Government servant had a right to a post or to a rank, the termination of the services of such a servant or reduction etc. would fall within the ambit of that Article because such a termination or reduction etc., would operate as a forfeiture of his right. It was further remarked that (sic) the termination was based on the right of the employer flowing from a contract or service rules prima facie, the termination was not a punishment and hence would not attract that Article. It is only when the removal, reduction etc. (sic) done by way of punishment that an opportunity should be given to the civil servant to show ca(sic) against the proposed action to be taken against him. It follows that the argument founded upon (sic) article also is inadmissible and has to be repelled (sic).

There are also other reasons why no relief could be granted to the petitioner herein, he was aggrieved by the orders he could pre(sic) an appeal to the Director General. Instead of availing himself of that remedy, he has resorted in Art. 226 of the Constitution. This court will (sic) exercise its extraordinary jurisdiction under (sic) Article when there is a specific, effective (sic) alternative remedy.

There remains the question whether (sic) fundamental right enshrined in Art. 14 of the constitution has been invaded for the reasons al(sic) mentioned. Apart from the question whether (sic) concept of equality underlying this Article w(sic) apply to a case where a servant has no right (sic) are not satisfied in this case that the petitioner (sic) discriminated against. We sent for the cone(sic) records of all the employees in whose favour (sic) discretion is said to have been exercised not h(sic) (sic)ly but with motives extraneous to the matte(sic) discretion committed to them and found that (sic) competent authority was satisfied that this (sic)sterial servant continued to be efficient. Ther(sic) this contention has also to be negatived.

Lastly, an objection was urged on (sic) of the petitioner that the Deputy Director h(sic) jurisdiction to pass an order retiring the pet(sic) from service after the issue of writ nisi. It is (sic)tained that once the respondent was acqu(sic) with the proceedings started in this court (sic) petitioner he should not do the very thing (sic) is sought to be prevented.

The foundation for this argument is two (sic) of the Travancore Cochin High Court - Ouse(sic)seph v. Minister for Food, AIR 1951 Trav-Co. (sic) (F) & P. J. Joseph v. Asst. Excise Commr. AIR TC 146 (G). It was held in the first (sic) a party in order to circumvent the proceed (sic) a court does anything with the object of re(sic) the relief to be granted, ineffective, a court (sic) diction to pass orders in a mandatory form (sic)ing the status quo ante to the extent possi(sic) unaffected. It was an a fortiori case w(sic) prayer asked for was for the issuance of (sic) The proposition enunciated therein is a famil(sic).

It is a settled rule of law that if a par something with the object of getting the (sic) of advantage in the action before a court c(sic) (sic)terfere, he will not be permitted to plead th(sic) he had already done the thing, it should not (sic) done. Such a person does that act at (sic) risk. The court has ample powers to direct (sic)toration of the status quo ante.

In the other case there was no (sic) (sic)since the collection was already made tho(sic) (sic)sequent to the filing of writ, the Government be directed to restore it. Yet, the learned Judge (sic)o delivered the opinion of the Court and who was (sic)party to AIR 1951 TC 226(2XF) wanted to (sic)terate the principle referred to above and to re(sic) to two decisions of English Courts - Daniel v. (sic)guson, 1891 2 Ch. 27 (H) and Von Joel v. (sic)msey, (1895) 2 Ch. 774 (I), as laying down the (sic) that

When an application is made for a writ or direc(sic)ts for prohibiting anything being done, and the (sic)rt admits the petitioner and issues notice, the respondent should not after getting notice do the (sic) thing sought to be prevented. There need not (sic) any separate order or injunction restraining the (sic)ng of it In cases of urgency, the orders of the (sic)rt. should be taken for the duration of the pro-(sic)lings or a prayer made for expeditious disposal (sic) he proceedings themselves.

The doctrine of the two English cases (sic) in the above judgment is in conformity with (sic) principle stated above in 1895 2 Ch. 774 (I) which (sic)wed the precedent in 1891 2 Ch. 27 (H). The (sic)ndant began the erection of building so as to (sic)fere with the plaintiff''s light in spite of the (sic)ling of the plaintiff that he would sue him. The (sic)adant also evaded service of summonses for a (sic) days. On a motion for an interlocutory mandatory injunction, ordering the defendant to pull down (sic)such of the building as has been erected after (sic) warning given by the plaintiff, the. objection (sic)put forward on behalf of the defendant on the (sic)d that no case was made out to pull down building since it was not done in defiance of (sic) order of the Court. This was overruled by (sic)wich, J. and the rule was issued as prayed for (sic)e plaintiff. This was affirmed on appeal, by (sic) ey L. J., Lopes L. J. and Rigby L. J. in dis-(sic)g the appeal, Lindley L. J. observed: If builders will take the chance of running (sic) building in that way, they must take the risk (sic)lling it down, and to that extent I think Keke-(sic) J., was perfectly justified in the view that he and this appeal must be dismissed, with costs." (sic) rulings are only authorities for die position (sic)d up above. They do not lay down that any (sic) passed subsequent to the issuance of a writ (sic) without jurisdiction and consequently should (sic)ck down. It is one thing to say that a party (sic)ot be permitted to take advantage of his (sic) wrong and put forward some thing done by (sic) with a view to render an order passed by (sic)neffective, as an accomplished fact.

(sic)it, any action by a Administrative Tribunal (sic)g a decision in a court of law without any (sic)cutory order cannot partake of a character (sic)can be described as void and inoperative, (sic)st petition, W. P. No. 538 of 1955, was to (sic)he Director to consider the case of the petition merits and to allow him to continue in (sic) So, there was nothing which he had to be (sic)d from doing. The relief sought for was (sic) a prohibitory form. That being so, there (sic) thing illegal in the order passed on 21-9-(sic) Thus, there are not valid grounds disclosed (sic) issuance of either of the writs. The result (sic) two petitions are dismissed with costs which (sic) at Rs. 250/-.