S. Mangal Singh vs The Punjab State and others

R.S. Sarkaria, J.—This is a writ petition under Article 226 of the Constitution for quashing an order (notice), dated 11th November, 1966, issued by the Deputy Inspector-General of Police, Jullundur Range, for compulsory retirement of the petitioner on attaining the age of 55 years.

Briefly, the facts are, that the petitioner entered service of the Police Department in the State of Punjab on 22nd February, 1931, and by promotion attained the rank of Assistant-Sub-Inspector (officiating) in January, 1960. Since then, he has held that post. With regard to the tenure of service, the petitioner is governed by Rule 3.26 of the Punjab Civil Services Rules, Volume I, which provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 58 years. Under Rule 5.32(c) of the Punjab Civil Services Rules, Volume II, the Government has an absolute right to retire any Government servant on attaining the age of 55 years.

The petitioner was to attain the age of 55 years on 16th February, 1967, and the age of 58 years on 16th February, 1970. The petitioner, however, received the impugned notice, dated 11th November, 1966, issued by the Deputy Inspector-General of Police Jullundur Range, in which it was inter alia stated that the amendment of Rule 5.32 of the Punjab Civil Services Rules, Volume II, afforded a concession available to only those Government employees who were honest, efficient, and possessed integrity, and that the Inspector-General of Police was satisfied that this was not a fit case for the grant of that concession. Notice was being served on the petitioner that after the expiry of 3 months from the date of the service of the notice, he would be deemed to have been compulsorily retired from service. It is this notice which is being impugned, mainly on the ground that this order of compulsory retirement casts aspersion and attaches stigma to the petitioner while purporting to retire him compulsorily, and, as such, is hit by the provisions of Article 311 of the Constitution. This order is also being attacked on several other grounds which, however, are not being now pressed by the Learned Counsel for the petitioner.

Respondents 2 and 4 in their written statements, admitted the facts alleged by the petitioner with regard to his length of service, his rank, etc. They also admitted the service of the impugned notice on the petitioner, but averred that the Rule raising the age of retirement from 55 to 58 years vests a discretion in the appointing authority to order retirement of a Government servant after he attains the age of 55 years. The instructions contained in Government letter No. 5410-3GS-63/11926, dated the 28th March. 1963, lay down the guiding principles which the appointing authority was to keep in view while deciding the cases of such Government employees. In paragraph 11 of the written statement, it is urged that the compulsory retirement of the petitioner does not attach any stigma, because he has been retired without visiting him with any penal consequences; and that he has been allowed all the benefits that he had already accrued to him. It is added that the order of retirement does not amount to ''removal'' from service and hence the provisions of Article 311 of the Constitution are not attracted.

Since the counsel has given up the other grounds of attack pleaded in the petition, the controversy in this case has narrowed down to the question, whether Article 311 of the Constitution is attracted.

This point came up for consideration in the well-known case of Jagdish Mitter Vs. The Union of India (UOI), before the Supreme Court. The question for consideration before their Lordships was, whether a certain order passed by the Director of Postal Services terminating the services of the appellant amounted to his dismissal u/s 240(1) so as to attract the provisions of section 240(3) of the Government of India Act, 1935.

Those provisions of the Government of India Act were analogous to Article 311 of the Constitution. The material part of that order in that case was as follows:

Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month''s notice of discharge with effect from November 1, 1949.

Mr. Justice Gajendragadkar, who spoke for the Court, observed as follows:

No doubt, the order purports to be one of discharge and as such, can be referred to the power of the authority to terminate the temporary appointment with one month''s notice. But it seems to us that when the orders refers to the fact that the appellant was found undesirable to be retained in Government service, it expressly casts a stigma on the appellant, and in that sense, must be held to be an order of dismissal and not a mere order of discharge. It seems that anyone who reads the order in a reasonable way, would naturally conclude that the appellant was found to be undesirable, and that must necessarily import an element of punishment which is the basis of the order and is its integral part. The test in such cases must be: does the order cast aspersion or attach stigma to the officer when it purports to discharge him? If the answer to this question is in the affirmative, then notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal.

The test laid down in Jagdish Milter''s case(supra) was applied by the Supreme Court to a case of compulsory retirement from service of a Government servant in The State of Uttar Pradesh v. Shri Madan Mohan Nagar 1967. S.L.R. 147. In Nagar''s case(supra), the order of compulsory retirement of the Government servant was in the following terms :

I am directed to say that the Governor has been pleased to order in the public interest under Article 465 A and Note (1) thereof of the Civil Service Regulations, the compulsory retirement with effect from September st, 1960, of Shri Madan Mohan Nagar. Director State Musem, Lucknow who complete 52 years of age on July 1st, 1960 and 28 years and 3 months of qualifying service on 31st May, 1960 as he has outlived his utility.

Article 465 A of the Civil Service Regulations reads as follows:

Government retains the right to retire any Government servant after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account shall be entertained.

This right shall only be exercised by Government in the Administrative Department when it is in the public interest to dispense with the services of Government servant who has outlived his usefulness.

Mr. Justice Sikri, who delivered the judgment of the Court, observed as follows :

In the present case there is not only the question of implication but a clear statement appears on the face of the order that the respondent had outlived his utility; in other words, it is stated that he was incapacitated from holding the post of Director, State Musem, Luck-now. The order clearly attaches a stigma to him and any person who reads the order would immediately consider that there is something wrong with him or his capacity to work.

In the instant case, the impugned order (notice) was presumably issued by the appointing authority under Clause (c) of Rule 532 of the Civil Services Rules, Volume II, the material part of which reads as follows:

Clause (c) : A retiring person is also granted to a Government servant other that a Class IV Government servant -

(i) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than three months'' notice.

(ii) who retires on or after attaining the age of 55 years by giving not less than three months notice of his intention to retire to the appointing authority.

Provided that where the notice is given before the age of fifty-five years is attained, it shall be given effect to, from a date not earlier than the date on which the age of fifty-five years is attained.

Note.-Appointing authority retains an absolute right to retire any Government servant except a Class IV Government servant, on or after he has attained the age of 55 years without assigning any reasons. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.

The impugned order which is incorporated in the notice (Annexure ''A''), is reproduced as under :

Officiating Assistant Sub-Inspector Mangal Singh No. 189/KTH of district Jullundur will attain the age of 55 years on 16th February, 1967. Now the age of superannuation has been raised from 55 to 58 years. But this concession can be given only to those Government employees who are honest, efficient and possess integrity. I am satisfied that this is not a fit case to be permitted to avail the benefit of the raised age of superannuation. He should be served with a copy of this notice that his services are not required in Police Department after he attains the age of 55 years. This is a three months'' notice to him and that he should retire on the expiry of this notice.

(Sd.) B.R. CHADHA, Deputy Inspector-General of Police, Jullundur Range. 11/11.

Applying the test laid down by the Supreme Court in the above-mentioned cases, it is clear that in the instant case the stigma to the Government servant has been etched more deeply and clearly in the language of the impugned order than the one conveyed by the words used in the orders impugned before the Supreme Court in Jagdish Milter''s case(supra) and in Madan Mohan Nagars case (supra). The order first recites'' that continuance of a Government employee beyond the age of 55 years in service is a concession which is available to only those employees who are honest, efficient and possess integrity.'' It then says that the Deputy Inspector-General of Police (appointing authority) is satisfied that this is not a fit case to be permitted to avail the benefit of the raised age of superannuation.

Any one who reads this order will be left in no doubt, that the petitioner was not allowed to continue in service beyond the age of 55 years because he was neither honest, nor efficient, nor possessed integrity. The order carries an indelible stigma which might debar the Government servant from getting even private employment after his retirement. It thus clearly operated as a punishment, and by the test laid down by the Supreme Court, must be deemed to amount to "dismissal or removal from service" within the meaning of Article 311(2) of the Constitution.

Shri Mohinderjit Singh contends that the impugned order was not intended to be communicated to the petitioner as is apparent from a plain reading thereof. The intention of the appointing authority who passed that order, was that a separate notice under clause (c) of Rule 5.32 of the Civil Service Rules, Volume II, which should not contain any reason for the retirement, be given. Instead of issuing such a separate notice, a copy of the order itself, which contained only the motive that impelled the appointing authority to order retirement of the petitioner at the age of 55 years, was served on the petitioner. It is maintained that the appointing authority under the aforesaid Rule, had an absolute power to retire the petitioner on his attaining the age of 55 years without giving any reason, and the petitioner had no legal right to continue in the post after the age. Consequently, according to the counsel, the petition is not maintainable.

It is true, that under the service Rules, of the State the tenure held by a Government servant on attaining the age of 55 years is of a precarious character in the sense that his services can be validly terminated by serving upon him three months'' notice by the Government without assigning any reason under clause (c) of Rule 5.32 of the Civil Services Rules, Volume II. This can, however, be done in a straightforward and direct manner without assigning any reason, and, in such a case, Article 311 of the Constitution will not apply irrespective of the fact that the authority was motivated by the fact that the service record of the Government servant as regards honesty, efficiency and integrity, was not good. However, if instead of following that course, the authority chooses to exercise, its power to compulsorily retire the Government servant by an order in which it brands him ''unfit'' to be retained in service on account of his being dishonest, inefficient, or of doubtful integrity, as a punitive measure, Article 311(2) of the Constitution will be attracted with full force, and the order of the compulsory retirement will, in substance, be construed as an order of dismissal or ''removal'' from service within the meaning of the aforesaid Article. In the instant case, the authority has followed this latter course and the order of compulsory retirement on the face of it, bais and condemns the petitioner in unmistakable terms as unfit for service. It visits him with serious penal consequences.

For the reasons aforesaid, I would allow this petition, quash the order of the petitioner''s compulsory retirement, and direct that he should be deemed continuing in service on the same rank, and service conditions by which he was governed immediately before the attainment of the age of 55 years. The petitioner shall be entitled to his costs from the respondents.