S. Anup Singh vs The State

Teja Singh, C.J.—The Petitioner, S. Anup Singh, who was a permanent member of the Police service of Patiala and East Punjab States Union and held the rank of Superintendent of Police was retired from service on 29th December, 1951 by the order of the Government under Rule 9(1) read with Rule 251 of the P.S.R. He has come to this Court with a petition under Article 226 of the Constitution of India alleging that the order under which he was made to retire was illegal and inoperative, for reasons mentioned in the petition and praying that either the Government be restrained from giving effect to their order by issue of an appropriate writ or any other direction or order which the Court might think proper be made.

The petition is opposed by the learned Advocate General on behalf of the State on almost all grounds. The learned Advocate General also urged that since the Petitioner did not make any demand for justice to the Government and the latter had no means to consider the same the petition is not maintainable. As we have held today in another case - ''Shambhu Dayal v. Patiala and East Punjab States Union'' C.M. No. 208 of 1951 (Pepsu), the rule that a petition for writ does not lie until it is shown that the Petitioner has made a demand for justice to the respondent and the same had been refused, is generally recognised but strictly speaking the operation of it is confined to a writ of mandamus and since in the present case writ of mandamus is neither pressed nor do we think there is any scope for it, the preliminary objection is devoid of force-Moreover by the very nature of the defence raised by the respondent in the written statement and the stand taken by their counsel i.e., Advocate General, in the course of arguments it appears to us that even though the Petitioner, had made a representation to the Government against the order the legality of which he impugns in this Court, there was no chance of the respondent granting him any relief. Accordingly the preliminary objection is overruled,

As regards the merits of the petition all the points urged by the Petitioner''s counsel against the Government order, with the exception of one that is peculiar to his case, were taken in - ''Shambhu Dayal''s petition'' C.M. No. 208 of 1951 (Pepsu), in so. far as it related to the Government order by which he was made to retire. Some of those points did not appeal to us but two of them were upheld by us and we found that the order of Shambhu Dayal''s retirement was illegal and inoperative. Of these two, one viz., that the compulsory retirement ordered under Rule 9(1) of P.S.R. came within the ambit of Article 311 of the Constitution of India and before it could be made It was incumbent upon the Government to give the Petitioner an opportunity of showing cause against it, applies equally to the present petition.

The second point that we found in Shambhu Dayal''s favour was that the amendment of Rule 9(1) as made in 1951 by virtue of which retirement order was made was inconsistent with the guarantee held out to all the civil employees of the Covenanting States under Article XVI of the Covenant entered into by all the Rulers of the said States and accordingly the order was not legal. In Shambhu Dayal''s case the position of the Government was that though he was at one time integrated and appointed as Superintendent the integration was provisional and accordingly the Government of the Union was within their rights in making an order for compulsory retirement, as it was one of the alternatives given to them by the article. We found that Shambhu Dayal''s integration was not provisional and since the amended rule was less advantageous to the Petitioner than the conditions of service under which he was previously governed it could not apply in his case. So far as the present Petitioner is concerned the Government did not even allege that his integration as Superintendent of Police which took effect from 1-9-1948 was provisional. All that they pleaded in paragraph three of their written statement was that he was not integrated as senior most Superintendent of Police as alleged by him. Accordingly in the matter of integration the position of Anup Singh was similar to that of Shambhu Dayal and for reasons given by us in Shambhu Dayal''s case we hold that Rule 9(1) as amended did not apply to him either.

The additional point taken by the Petitioner''s counsel in this case was that his client belonged to Class I Service and before Government could order his compulsory retirement they were bound to submit his case to and obtain the orders of His Highness the Rajpramukh under Rule 34 of the Rules of Business and since this was not done the order was illegal. The exact position in the words of the application made by the Petitioner on 4-3-1952 was as follows:

II. That the Petitioner now learns that with a view to obtain orders from H.H. the Rajpramukh as contemplated by Rule 34 of the Pepsu Rules of Business the file of the Petitioner was sent to him for orders;

III. That the matter was receiving consideration by H.H. the Rajpramukh and no final order had been passed by him when in direct contravention of Rule 35 of the Pepsu Rules of Business, the order of the compulsory retirement of the Petitioner No. 624 dated 29-12-1951 was passed by the Chief Secretary.

The words of Rule 34 are that the classes of cases mentioned therein, which include proposals for dismissing, removing or compulsorily retiring of any officers belonging to a Class I or Class II Service, shall be submitted to the Rajpramukh and the Chief Minister before the issue of orders. Rule 35 says that where in any case the Rajpramukh considers that any further action should be taken or that action should be taken otherwise than in accordance with the orders passed by the Minister-in-charge, the Rajpramukh may require the case to be laid before the Council of Ministers for consideration, whereupon the case shall be so laid. To explain the position of the Government on this point the learned Advocate General placed on record the following affidavit of the Chief Secretary dated 20-3-1952.

I solemnly affirm that the procedure prescribed by the Government for issuing orders about retirement of officers under Article 9(1) of the Patiala Service Rules was observed in the case of retirement of S. Anup Singh,

I solemnly affirm that the sanction of the appropriate authority was obtained by me before the retirement order was issued;

I solemnly affirm that the contention of the Petitioner that the matter was not considered by His Highness the Rajpramukh before the issue of the orders is wrong.

I solemnly affirm that the above statement of mine is correct to the best of my knowledge and belief and nothing has been concealed from the Court.

It will thus be seen that though it is stated in the affidavit that the procedure prescribed by Government was followed and the sanction of the appropriate authority was obtained before the order retiring the Petitioner was issued it is silent about the precise allegations made by the Petitioner in his application of 4-3-1952, viz. that while the papers relating to his case were still pending before His Highness the Rajpramukh and the matter was receiving his consideration the order of retirement was passed by the Chief Secretary. The omission is significant and following the ordinary rules we are entitled to presume that since the said allegations were not denied they were correct, notwithstanding this as we read Rules 34 and 35 we cannot hold that the order of retirement is invalidated because of them. The position would have been quite different had the papers not been submitted to His Highness at all or had the order of retirement been passed in contravention of the directions, if any, given by His Highness the Rajpramukh under Rule 35, but this is not the Petitioner''s case. This point is, therefore, decided against the Petitioner. Since, however, we have held that the order of retirement offends against the provisions of Article 311 of the Constitution and violates the guarantee given to members of services by Article XVI of the Covenant entered into by the Rulers, of the Covenanting States, we allow the petition to the extent that we declare that the Government order of 29th December, 1951 whereby the Petitioner was retired from service, is illegal and inoperative. We further declare that the Petitioner still continues to be in the service of the State.

We make no order as to costs.

Gurnam Singh, J.

I agree.