Shambhu Dayal vs Patiala and East Punjab States Union

Teja Singh, C.J.—This petition under Article 226 of the Constitution of India for issue of writs of certiorari, prohibition and mandamus, etc., against the Patiala & East Punjab States Union was referred by me to the Division Bench because of the importance of questions of law involved therein.

The petitioner is Shambhu Dayal who was originally employed as a clerk in the High Court of the erstwhile Patiala State. At the time of the formation of the Union, he was holding the post of a Selection Grade clerk and by order of the Government dated 18-3-1949 published in the Union Gazette of 3-4-1949 was integrated in the Gazetted cadre as a Superintendent in the Public Works'' Department Secretariat in the grade Rs. 250/- Rs. 400/- with effect from 1-9-1948. On 27-5-1949 he was reverted to the post of the Assistant Incharge and on 13-12-1951 orders were made for his compulsory retirement. The words of the latter order which was signed by the Chief. Secretary to the Government are as follows:

In pursuance of Article 9 (1) read with Article 251 of the Patiala Service Regulations His Highness the Rajpramukh is pleased to retire Mr. Shambhu Dayal, Assistant In charge, Public Works Department, Patiala with immediate effect.

The petitioner contended that both the above orders were illegal inasmuch as they contravened the provisions of law and rules. The precise grounds upon which his contention was based would be given hereafter.

Before proceeding I might also mention that one of the points raised by the petitioner was that the orders against him had been made mala fide, but since he did not give any particulars nor did he mention any facts on which he based his plea of mala - fides we refused to take notice of it.

The learned Advocate General who opposed the petition on behalf of the Government raised a number of preliminary objections in his written statement, but the only one that he pressed was that the petition was not maintainable, first because in so far as it related to the order of 27-5-49 it was very much belated and, secondly, because the petitioner had not made any demand for justice to the Government which it was necessary for him to do before moving this Court for issue of writs. In support of the second point, the learned Advocate General relied upon the affidavit of the Chief Secretary dated 24-1-1952 the relevant words of which are that:

Shambhu Dayal did not make any demand for justice to me before he filed an application for writ in the High Court and, therefore, I had no means of considering the same.

I agree that when a petitioner claims a writ of mandamus he must show that he approached the party complained of for justice and the same was refused to him, but strictly speaking, it applies only to cases relating to writs for mandamus and as is pointed out in paragraph 1307, page 771 of Halsbury''s Laws of England, Vol. 9, (Edition 1933) even to those cases there are certain exceptions. In addition it was held in Indian Quarter Master''s Union and Others Vs. P.R. Dutt and Another, that it is not necessary that the word "refuse" or any equivalent to it should be used, but that there should be enough to show that the party withholds compliance and distinctly determines not to do what is required of him. Refusal may be inferred from conduct. To start with, it must be remembered that the party against whom the petitioner prays for writs is the Government and not the Chief Secretary and whereas it was definitely stated in the petition that the petitioner made representations to the Government to revoke both the orders but obtained no redress and he also put in his affidavit in support of this allegation, the affidavit of the Chief Secretary upon which the learned Advocate General relied was silent about it and all that was mentioned therein was that the petitioner did not make any demand for justice to him before he filed his application for writ in this Court. I cannot go to the length of saying that the affidavit was worded in the manner it was deliberately with the intention of concealing true facts but I cannot help observing that it did not make out that the petitioner''s allegation that he made representations to the Government was false.

The first order which he impugns, as already mentioned, was made on 27-5-1949, and it appears from the copies that he produced in Court along with the petition that he approached the Government in the beginning of January 1950 and probably towards the end of 1949 for redress of his grievance but no action was taken on his representations. One of the representations which was described by the Chief Engineer as an appeal was forwarded to the Chief Secretary with his note on 21-1-1950. The opening words of the note are: "I am enclosing herewith another appeal from Pandit Shambhu Dayal Assistant In charge along with my office file.............." This shows that the appeal was not the first of its kind. In another note of the same date addressed to the Chief Secretary the Chief Engineer and Secretary to the Government, P. W. D. observed that the petitioner''s work was far superior to any of the Gazetted Superintendents in charge of any other Section of the Public Works Department, and he, therefore, strongly recommended the integration of the petitioner as Superintendent. The other copy placed by the petitioner on record is that of D. O. No. 994/SR dated 15th June 1951, from Sardar J. P. Singh, Superintending Engineer, to S. Sohan Singh, Deputy Secretary to Government. The copy shows that the petitioner had submitted another appeal with respect to his seniority in the provisional list and the same was forwarded to the Deputy Secretary by the Superintending Engineer with the recommendation that "because of the petitioner''s work, honesty, devotion to duty etc. a strong representation be made to the Home Government for fixing his seniority where it is due by virtue of his long experience, service and the responsible posts he has held or alternatively a case must be made out for his appointment as a Gazetted Superintendent by Selection". This letter of the Superintending Engineer was forwarded by the Chief Engineer and Secretary to the Govt. P.W.D. to the Chief Secretary on 25-6-1951 with the following note:

Shambhu Dayal is running one of the heaviest sections of P. W. D. most efficiently as Assistant In charge. None of the Substantive Superintendents who have come to P. W. D. from other departments can equal him in his efficiency and devotion to duty.

He fully deserves to be confirmed as Superintendent by "Selection" purely on merit.

Another copy produced by the petitioner is that of his petition of 20-10-1951 addressed to the Chief Secretary to Government through proper channel. It was mentioned in the penultimate paragraph of the petition that it was the last representation that the petitioner was making "in all humility and submissiveness" and he prayed that the order of his reversal from the post of Superintendent be set aside and status quo restored. The closing words of the paragraph are:

If no reply is received within two weeks I will be constrained to file my case in the High Court of Judicature at Patiala for a writ of Mandamus under the Constitution of India, and this may please be treated as a notice in that behalf.

It is not possible to say whether it was on account of the unwise threat contained in the above sentence which precipitated the matters but it appears that inspire of the fact that the representation was forwarded by the Superintending Engineer, under whom the petitioner was then serving with a strong recommendation that "Justice demanded that the applicant should be given his due place in the cadre of Superintendents" no action was taken thereon and on the 19th December 1951 orders for his compulsory retirement were made.

The learned Advocate General has not even attempted to question the genuineness of the above-mentioned documents and the affidavit of the Chief Secretary referred to above is altogether silent about them. I should think that if these representations were actually made, and I have no reason to think that they were not, they should have reached the Government and they did constitute a demand for justice. In view of the fact that the petitioner''s grievance was not redressed. I further hold that justice demanded by the petitioner was virtually refused.

As regards the order of 13-12-1951, whereby the petitioner was made to retire, the petitioner has filed an affidavit that he submitted his representation for the reconsideration of the orders to the Chief Secretary on 13-12-1951 and the same was forwarded to him by his Superintending Engineer with his recommendation. He has also produced a copy of that application together with a copy of the confidential letter addressed by the Superintending Engineer to the Chief Engineer and Secretary P. W. D. of the same date, forwarding the petitioner''s application with the following remarks:

I was shocked to know that Shambhu Dayal has been retired from service under 25 years rule. He is very hardworking man and extremely good in his work. I can confidently say that he is not corrupt and no charge of doubtful honesty can be levelled against him.

I am not aware of his fault for which he has been penalised but I am sure that if the case is investigated, he will be proved innocent. I, therefore, strongly recommend his case for your taking it up with the Chief Secretary immediately for �clemency�. etc.

Normally the representation should have reached the Government, but even if it did not and kept lying somewhere in the archives of the Secretariat, surely the petitioner cannot be blamed for it. Accordingly I find no force in the first point urged by the learned Advocate General in support of his contention that the petition was not maintainable.

As regards the plea of delay raised by the Advocate General there is no force in it whatsoever. It must be remembered that though the petitioner was reverted to the post of the Assistant on 27-5-1949 he continued to be in service and the various representations made by him challenging the legality as well as propriety of the order of his reversion had not been finally disposed of when he was made to retire. So far as the order of retirement is concerned, it was made on the 13th December, 1951 and the petition to this Court was made on the 17th, i.e. only four days after it. For these reasons, the preliminary objection is overruled.

I now turn to the merit of the case, and deal with the two orders separately. With regard to the order of 27-5-1949 whereby the petitioner was reverted to the post of an Assistant the following are the points urged by his counsel: (1) It was an order reducing the petitioner in rank and before it could be made it was necessary to consult the Public Service Commission; (2) that the case was governed by Article 311 of the Constitution of India, and under that Article it was incumbent on the part of the Government to give him an opportunity of showing cause against the action proposed to be taken. Article 320 of the Constitution of India deals with the functions of Public Service Commissions and clause (3) of it lays down that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted, inter alia, on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters. The proviso to cl. (3) empowers the President as respects the all India Services, etc. and the Governor or the Rajpramukh, as the case may be. as respects other services and posts in connection with the affairs of a State, to make regulations specifying the matters in which either generally or in any particular class of case, or in any particular circumstances it shall not be necessary for a Public Services Commission to be consulted.

In this State we have an Ordinance called the Patiala and East Punjab States Union Public Service Commission Ordinance (No. VI of 2006) which in so far as it is not inconsistent with the Constitution of India is still in force. The Ordinance provides for the constitution of a Public Service Commission for the State and Section 9 of it specifies the matters on which the Commission shall be consulted. Clause (c) of sub-section (1) of this Section is similarly worded as sub-clause (c) of Clause (3) of Article 320. Regulations were made by the Rajpramukh u/s 8 of the Ordinance vide Notification No. 6 of 20th April 1949 and were published in the Union Gazette of 3rd July 1949. Later on, regulations were framed under the proviso to Clause (3) of Article 320 of the Constitution of India. At the time, the petitioner was reduced to the post of Assistant the rules of 26th (20th?) April, 3949 were in force. Practically there is no difference between the two sets of regulations, and Regulation 5 of one set and 4 of the other set provide that it shall not be necessary to consult the Commission (a) on any original or appellate order connected with a matter of discipline.......(b) Before an order is passed in any disciplinary case other than (1) 2. Reduction to a lower post of time-scale, or to a lower state in a time scale. This means that according to the said regulation before an order reverting the petitioner to a lower rank than the one which he was holding could be made it was necessary for the Government to consult the State Public Service Commission, but it is admitted that this was not done. So far as the opportunity of showing cause is concerned, the petitioner''s counsel relies upon Section 14 of the Patiala & East Punjab States Union General Provisions (Administration) Ordinance (No. 16 of 2005) amended by Ordinance No. 18 of 2006 as well as Article 311 of the Constitution of India. Section 14 of the Ordinance is to the effect that

No person who is a member of a civil service of the Union or holds any civil post in the Union shall be dismissed from service or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him.

To the same effect is clause (ii) of Article 311 of the Constitution with this difference that it applies also to cases of removal from service. It being admitted that no notice of any kind or opportunity to show cause against the proposed order of reduction was given to the petitioner, there can be no denying the fact that these mandatory provisions of law were contravened. The explanation of the learned Advocate General is that though the petitioner was once appointed a Superintendent in the Gazetted cadre that appointment was provisional, but the Notification of 18-3-1949 published in the Gazette of 3-4-1949 regarding the appointment does not support his contention. The words of the notification are:

His Highness the Rajpramukh is pleased to form a separate cadre for the Public Works Department Superintendents and to integrate the following as Gazetted Superintendents in the Public Works Department Secretariat in the grade of Rs. 250/- etc., with effect from 1-9-1948.

Then follow the names of the three officers, including that of the petitioner, who were integrated. The Advocate General argued that according to the scheme followed by the Union Government integration of all officers was provisional and subject to reconsideration, but the Notification mentioned above does not say so nor has the Government cared to produce before us any other notification bearing on the point. As I read the notification, my opinion is that the petitioner was integrated as Superintendent and was appointed as such with effect from 1-9-1948 and this being the case before he could be reverted to the rank of the Assistant which he once occupied it was incumbent upon the Government to consult the Public Service Commission and to give the petitioner an opportunity to show cause against his proposed reversion. Since they did not do so the order in question was illegal and inoperative.

As regards the order of 13-12-1951 which has been reproduced in the earlier part of this order it purported to have been made under Article 9 (1) read with Article 251 of the Patiala Service Regulations. Article 9 (1) before it was amended by Notification No. F/Est. 11 (31) 51/99 dated 23rd July 1951 laid down that Gazetted Officers shall retire on pension to which the rules entitled them on attaining the age of 55 years and a non-Gazetted employee may, when necessary in the interests of the State, be permitted under the orders of the Ijlas-i-Khas to serve over the age of 55 on production of Medical certificate certifying to his continued efficiency in the public service. The amendment of 1951 recast the whole rule and divided it into four clauses. The first clause reads as below:

Every Government servant shall, on attaining the age of 55 years retire on such pension as may be admissible to him under the rules for the time being in force, provided that the Government may without giving any reason retire any Government servant on pension after such Government servant has completed a qualifying service of 25 years.

Clauses two and three relate to extensions of service. Clause four lays down that

Notwithstanding anything contained in clause 1 a Government servant who completes qualifying service of 30 years shall be entitled to claim retirement.

The following note was also added to the amended clause:

The right under the proviso to clause (1) will not be exercised except when it is in the public interest to dispense with further services of an officer.

Article 251 of the Patiala Service Regulations, though quoted in the order, has no relevancy in the present case whatsoever and it is, therefore, not necessary to say anything about it.

The first objection raised by the petitioner to the legality of the order of his compulsory retirement is that since the amendment of Rule 9 (1) in 1951 was made after he had entered service it could not apply to him. nor was it intended to apply to him. The position taken up by his learned counsel was that when a man enters service and there exist certain rules that govern the conditions of service he is bound only by those rules and if the rules are subsequently modified or amended, the modification or amendment cannot affect him, unless (i) it is definitely provided therein that they would have retrospective effect, and (ii) if the authority that makes the amendment or modification has the power to give a retrospective effect to them.

The learned Advocate General frankly admitted that the notification whereby Rule 9 (1) was amended in 1951 does not state that the amendment will apply to persons who were already in service, but he maintained that by the very nature of things such a provision was implicit in the words of the amended rule. He further maintained that the amendment of the rule was made under the powers vested in the Rajpramukh by Article 309 of the Constitution of India and according to the proviso to the Article rules once made by the Rajpramukh apply not only to persons who are to be recruited in future but also to persons who are in service already. The relevant words of the proviso are: -

It shall be competent for the Rajpramukh to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this Article and any rules so made shall have effect subject to the provisions of any such Act.

They show, in the first place, that so far as the power of making rule is concerned there is no difference between those of the Rajpramukh and the legislature except that when rules are made by the Rajpramukh they will have effect subject to the rules that the legislature may subsequently make. As regards the persons to whom these rules can apply the words "persons appointed to such services and posts" do not in my opinion mean only the persons that are appointed after the rules are made but also include those that were appointed before and were holding services and posts at the time of the rules. Accordingly this objection is overruled.

The second objection taken by the petitioner against the legality of the order is that the amendment of Rule 9 (1) contravened clause (1) of Article 16 of the Covenant entered into by the Rulers of the various States that form the Patiala and East Punjab States Union at the time of the formation of the Union which guaranteed to the petitioner and all other permanent members of public services of each of the Covenanting States that the conditions under which they had originally entered service will not be modified or varied to their disadvantage. Clause (1) of the Article XVI says:

The Union hereby guarantees either the continuance in service of the permanent members of the public services of each of the Covenanting States on conditions which will be not less advantageous than those on which they were serving on the 1st of February 1948 or the payment of reasonable compensation or retirement on proportionate pension.

18a. The learned Advocate General did not join issue with the petitioner''s counsel on the binding nature of the said Article of the Covenant and frankly admitted that the Government was bound by the guarantee given thereby. He, however, argued that the Article did not give the guarantee that every permanent servant of the Covenanting States will continue in service on the conditions under which he had joined service originally, but gave the Government the option either to allow him to continue in service on the same conditions or to dispense with his services on payment of compensation or to retire him on payment of proportionate pension and since the petitioner had been made to retire on pension there had been no violation of the Article. So far as the interpretation of the Article is concerned, I am in agreement with the Advocate General and I hold that so long as the Government exercised one of the options given to them by the Article it was not open to any member of service to insist that some course other than the one resorted to by the Government should have been adopted by them.

Learned counsel for the petitioner also accepted this view but he urged that in this case Government having integrated and appointed the petitioner as Superintendent with effect from 1st September. 1948 by their order of 18-3-1949 exercised the option and having done so once it was not within their power to change their mind later and if they wanted to do so they were bound to conform to the provisions of rules, that is to say, to consult the Public

Service Commission and give the petitioner an opportunity of showing cause against the action proposed. In my judgment this contention must prevail and since I am of the view that the petitioner was appointed Superintendent by the order of 18-3-1949 and that appointment was not provisional, Government did exercise the option given to them by the said Article of the Covenant.

The question now is whether the amendment of Rule 9 (1) that was made in 1951 changes the condition of the petitioner''s service so as to make them less advantageous than those on which he was previously serving. It was argued by the learned Advocate General that the Government possessed the power to retire a public servant before he attained the superannuation age even prior to the amendment of the Rule in 1951 and he relied in this connection upon Rule 278 of the Patiala Service Regulations. This is how the Rule reads:

For all cases of pension, a person who desires to obtain pension is required to submit his application before any pension can be granted to him. The State reserves to itself the right to retire any of its employees on pension on political or on other grounds.

There is no doubt that the rule gave the Government right to retire a public servant on pension and that power could be exercised on political or other reasons which means that it was an unrestricted power and to this extent the amended Rule 9 (1) which laid down that the right to retire a public servant under that Rule will not be exercised except when it is in the public interest to dispense with the further services of an officer, was not less advantageous to the petitioner than rule 278 of the Patiala Service Regulations. There is, however, one important difference between the case of a person who is made to retire under Rule 278 from that of a person whose retirement takes place under Rule 9 (1).Clause (2) of the amended rule lays down that the Government might re-employ any retired Government servant, except a Government servant retired under the proviso to Clause (1) on contract basis if in the opinion of the Government it is necessary so to do in the interests of the State. The implication of the clause is that if a person retires on attaining superannuation age or even if he is made to retire before that age under Article 278 of the Patiala Service Regulations he can be re-employed on a contract basis but when a person is made to retire under clause (1) of the amended Rule, as is the case with the petitioner, his re-employment is prohibited. Surely this is a very serious handicap to which the amended rule subjects the petitioner and consequently the new condition of service imposed by the amended rule is less advantageous to Rule 278 by which the petitioner was governed previously and it was not open to the Government to order the petitioner''s retirement under the amended rule.

Before turning to the next point, I might mention that the learned Advocate General cited before us a decision of the Rajasthan High Court, Kewal Mal Singhi Vs. Heta Ram and Others, . In that case also, the petitioner had been made to retire before he attained the age of superannuation under a rule of service that was framed by the Rajpramukh of Rajasthan Union and one of the points raised on behalf of the petitioner was that the rule being repugnant to Article 16 of the Covenant that had been entered into by the Rulers of the Covenanting States could not apply to the petitioner''s case. This contention was repelled by the learned Judges. One of the reasons given by them in support of the decision was that the Covenant provided three alternatives and since the petitioner had not been integrated and appointed to a post before the order of his retirement was made it was open to the Government to select one of the alternatives and the petitioner had no right to insist that they were bound to retain him in service. As I have already pointed out in the case of the present petitioner Government exercised the option given to them by the Article of the Covenant long before they decided to retire him.

It may also be mentioned that whereas in the Rajasthan case the rule under which the petitioner was made to retire was not found to be less advantageous to the one that existed before, in this case my finding is to the contrary and the Rajasthan case is, therefore, distinguishable from the present case on this ground.

The third objection raised by the petitioner''s counsel is that the order for the petitioner''s retirement could only be made if it was in the public interest to dispense with his further services but the order was altogether silent on this point which means that this aspect of the matter was not even considered by the authority who made the order. The Advocate General denied that there was any necessity to make any mention of public interest in the order and in view of the words of the proviso to clause (1) of the rule that the Government "may without giving any reasons retire any Government servant" etc. I am inclined to agree with him. As regards the question whether the requirements of the note to the rule to which reference has already been made were in fact complied with the Advocate General referred us to the affidavit of the Chief Secretary wherein it is mentioned that it was in the public interest to dispense with the petitioner''s services. Though I am inclined to think that the affidavit does not throw much light on the precise question that is now before us and it is also defective, inasmuch as it was not verified according to the provisions of law, the general presumption being that all official acts are performed in accordance with the rules and procedure and no evidence having been adduced by the petitioner that this was not done in the present case, I cannot hold that before the order for the petitioner''s retirement was made the appropriate authority did not apply his mind to the question whether dispensing with further services of the petitioner was in the public interest. Accordingly I do not find any force in this objection and overrule it.

The fourth objection taken by the petitioner''s counsel was that as a matter of fact his retirement before time was not in public interest and in support of his contention he referred us to the opinions of the various officers of the Public Works Department in which he was serving as well as the Chief Engineer who is the head of the Department. Reference to some of the opinions has already been made. The other opinions are contained in copies of various notes and letters produced by the petitioner. This is what the Superintending Engineer observed in the D. O. that he addressed to the Deputy Secretary on 16th June 1951 while forwarding one of the petitioner''s appeal:

It seems that he (petitioner) is a victim of circumstances which have conspired against him. In his hard work, honesty and devotion to duty, he is second to none. He has put in more than 27 years'' service and this must be one of the longest put in only by a few other superintendents and assistants given in the list published. The uninterrupted hard work for years has shattered his health completely and all efforts must be made to save him from further degradation. We cannot afford to lose him and the case must be very strongly represented to the Home Department for fixing his seniority.

The note made by the Chief Engineer, probably while forwarding the petitioner''s appeal which was recommended by the Superintending Engineer reads thus:

Pt. Shambhu Dayal is running one of the heaviest sections of the P. W. D. most efficiently as an Assistant In charge. None of the substantive Superintendents who have come to P. W. D. from other departments can equal him in his efficiency and devotion to duty.

While forwarding one of the representations made by the petitioner against his retirement the following note was made by the Superintending Engineer:

His work in the department and before has been of an extremely high calibre and so has been his conduct all these years.

To this the following note was added by the Deputy Secretary:

I endorse the above remarks of the Superintending Engineer: Pt. Shambhu Dayal was one of our best workers known for his hard work, clear grasp and quick disposal of cases. He often put in long hours to cope with the heavy and ever increasing work of the B & R Branch of the P. W. D. and I must say that the output and quality of his work were indeed very good.

The Chief Engineer''s note was

I agree with the above remarks of the Deputy Secretary and the Superintending Engineer B & R and strongly recommend the case for reconsideration.

The Advocate-General did not make the least effort to question the opinions of the high officers of the P. W. Department contained in above notes and expressed his inability to say how in the face of these opinions & on what data it had been decided that the retirement of the petitioner was in public interest. All what he urged was that it was for the Government to take the final decision in the matter and since, they came to the conclusion that it was in the public interest to dispense with the petitioner''s services the High Court could not go into the reasons which weighed with them and he cited a number of decided cases in support of the stand taken by him. After having perused those cases, my opinion is that the contention of the learned Advocate General must prevail. It is necessary to mention only one case of the Madras High Court. Dr. M. Krishnamoorthy Vs. The State of Madras and Another, , in which it was held that the fact that the rules are made to safeguard the rights of servants in matters of disciplinary action does "not mean that the High Court has jurisdiction to quash orders of Government because one or other of the rules has been contravened. Accordingly this objection must also be overruled.

The fifth and the last objection was that before the petitioner could be retired the Government were bound to give him an opportunity to show cause under Article 311 of the Constitution of India. The Article consists of two clauses. The first clause lays down that

no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

The words of the second clause are

No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

The proviso to second clause mentioned the cases in which opportunity mentioned therein can be dispensed with. Both sides were agreed that this case does not come within the ambit of the proviso. The petitioner''s counsel argued that though his client was made to retire under the Rule 9 (1) it amounted to removal. The learned Advocate General urged that the terms ''dismissed'' and ''removed'' were used in a technical sense and applied only to those cases where a person''s services are dispensed with for some fault of his. He also argued that since according to Article 310 the petitioner held service during the pleasure of the Rajpramukh unless the case can be shown to fall within the clause second of Article 311, Government had the power to dispense with his services in any manner they liked and without giving any notice to him. I had the occasion to discuss all these matters recently in ''ISHAR DASS v. STATE OF PEPSU'', Criminal Misc. No. 181 of 1951 (Pepsu) which I decided only recently. I held in that case that Article 310 was to be read with Article 311 that the provisions of Article 311 were mandatory and when the order was made in contravention of that Article it was illegal and inoperative. I also discussed in that case the scope of terms ''dismissed'' and ''removed'' and the Allahabad case '' Jayanti Prasad Vs. The State of Uttar Pradesh, that the counsel for the State had cited. This is what I held:

The terms ''dismissed'' and ''removed'' are not defined in the Constitution. In fact counsel have not been able to point out any law in which they are defined. Mr. Chetan Dass urges that they are used in Clause (2) of Article 311 in a technical sense and refer only to cases where a man''s services are put an end to for misconduct. In this connection he relies upon ''JAYANTI PARSHAD''S CASE'', mentioned above.

After referring to the facts of the case and quoting a passage from the Judgment of that case I then went on:

As regards the applicability of Article 311 to the cases where a man''s services are terminated on the expiry of the term for which he was employed or on the expiry of the notice given to him in accordance with the terms of service. I am in respectful agreement with the above observation, but the dictum of the learned Judges that Article 311 comes into operation only when a man is dismissed or removed from service for misconduct, if I may say so with respect unduly restricts its scope, because as I read the words of the Article it appears to me that it is meant to cover all kinds of cases irrespective of the fact whether a man''s services are terminated because of his misconduct or otherwise. Let us take the case where it is sought to terminate man''s services because he is inefficient. Inefficiency strictly speaking does not amount to misconduct and can it be said that action can be taken against him without giving him an opportunity under Article 311. Let us then take the case where a certain post is brought under reduction and it is intended to terminate the services of the person holding the post on that account. Is he not entitled to an opportunity under Article 311? In my judgment, the answer can only be in the negative because to hold otherwise would be tantamount to narrowing down the scope of the Article for which there is no justification. It cannot be denied that the object of Article 311 is to guarantee the security of service of all persons holding civil posts in the Union and different States and if the terms ''dismissal'' or ''removal'' are so interpreted as to be confined to cases where persons'' services are terminated because of misconduct, the effect would be that it will become very easy for the authorities to avoid its operation.

Then I referred to another case cited by the State counsel and concluded with the following words:

My own opinion is that terms ''dismissal'' and ''removal'' are used in Article 311 in their ordinary sense. Dismissal though not confined to cases of misconduct generally implies that the person dismissed is blameworthy i.e., either he has done something which is objectionable or improper or he lacks the ability or capacity or the will to discharge his duties as he should. Removal of a man from service on the other hand need not be for any fault on his part. Unlike dismissal, it involves no ignominy, nor does it carry any stigma. It merely means that a man''s services are no longer required or it is not possible to retain him in service.

The learned Advocate General argued that the view taken in the above case was not correct but he was unable to convince us. He cited three rulings. The first is Jayanti Prasad Vs. The State of Uttar Pradesh, that I discussed in ''ISHAR DASS''S CASE''. Apart from what I had to say in that case as regards the view taken by the Allahabad High Court I wish to add that the case was distinguishable on two grounds. The one that according to the terms of service that applied to the petitioner in that case he was given a notice on the expiry of which he ceased to be a member of service automatically and accordingly no question of giving him any opportunity under Article 311 could arise. The second is that in the order by which his services were dispensed with the authority who made the order stated that the case came within the purview of one of the provisos to the clause and for this reason no opportunity to show cause could be given to him.

The other case is '' Kewal Mal Singhi Vs. Heta Ram and Others, eferred to above. In that case, the petitioner was made to retire by virtue of a general order of the Government that all Government servants who had completed 55 years age or 30 years qualifying service on 1st May, 1949, were to be retired. It was urged on his behalf that the order reining him was bad because the provisions of Clause (2) of Article 311 of the Constitution had not been complied with. While repelling this contention, the learned Judges made the following remarks:

It has been urged that retirement of a person before he completes the age of superannuation amounts to removal within the meaning of Article 311(2) of the Constitution. In. support of this reference is made to Rajasthan Service (Classification, Control and Appeal) Rules, 1950 where it is provided in Rule 15(6) that removal from the civil service includes compulsory retirement before the age of superannuation. This is provided in these rules as one of the penalties which may be inflicted on a Government servant for good and sufficient reasons. In a loose sense there is no doubt that a person who is retired before the age of superannuation is removed from service, but the question that falls for consideration is whether removal as used in Article 311(2) means any kind of removal from public service or only a particular kind of removal. So far as the Civil Services (Classification, Control and Appeal) Rules are concerned, the removal by means of compulsory retirement before the age of superannuation is a penalty which can be inflicted for good and sufficient reasons. These rules however, do not apply to the applicant as they were passed in November, 1950 after the applicant had been retired and are only helpful in understanding the meaning of the word "removal" as used in Article 311(2). We feel that the word "removal" applies to a removal which is due to some fault of the civil servant concerned. It seems to us that there would be no point in giving a reasonable opportunity of showing cause to a public servant if the removal is unconnected altogether with his conduct.

Later on the learned Judges observed that:

Though, therefore, in a loose sense it may be said that the applicant was removed from public service when he was retired before the age of superannuation this is not the kind of removal contemplated under Article 311.

With all deference. I find myself unable to follow this dictum. As I held in ''ISHAR DASS''S CASE'', (Criminal Misc. No. 181 of 1951 Pepsu) the term "removed" appears to me to have been used in Article 311 in the ordinary sense and the retirement of a person before he attains the age of superannuation with all the consequences that it involves is not only "removal" in the loose sense but in the real sense.

Next is the decision of their Lordships of the Privy Council AIR 1948 121 (Privy Council) I. M. Lall who was a member of Indian Civil Service was found guilty by a Commission appointed to hold inquiry into his conduct of nepotism and victimisation of certain Government servants and was removed from service. He instituted a suit questioning the legality of the order of his removal on the ground, inter alia, that opportunity to show cause against removal had not been given to him u/s 240 of the Government of India Act, 1935. Their Lordships held that opportunity to show cause was necessary and since this was not done the order of removal was illegal and inoperative. Sub-section (3) of S. 240 which corresponds to clause (2) of Article 311 of the Constitution laid down that

No such person, i.e. the person mentioned in sub-section (1) of the Section, shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

It was contended on behalf of the Government that the Section did not apply to cases of removal from service. Their Lordships did not accept this contention and observed:

Before dealing with the important questions of construction their Lordships may note that the terms "dismissal" and "removal" from the service were accepted as synonymous, and that the respondent did not maintain before the Board, as he had unsuccessfully maintained in the High Court and the Federal Court, that the appellant had not authority under the Constitution to remove a member of the Indian Civil Service from service. Their Lordships may add that, in their opinion, this question is concluded by the terms of the respondent''s covenant, already quoted, under which he agrees to accept the signification of His Majesty''s pleasure under the hand of the appellant. Their Lordships have no doubt that the purported removal of the respondent was intended to operate by virtue of sub-section (1) of Section 240.

Sub-section (1) of Section 240 corresponded to Clause (1) of Article 310 of the Constitution. The words of the Sub-section were:

Except as expressly provided by this Act. every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty''s pleasure.

Now, reading the observations of their Lordships with sub-section (1) of Section 240, there can be no doubt that what their Lordships laid down was that since I. M. Lall held office during His Majesty''s pleasure the Crown had the power not only to dismiss him but also to remove him from service, and this being the case requirements of opportunity as laid down in sub-section (3) of Section 240 must be satisfied when it is intended either to dismiss a person or to remove him from service inspire of the fact that the sub-section did not refer to "removal" in so many words. In the view that I take I do not think this ruling goes against the petitioner. I wish also to add that taking into consideration the consequences of his retirement under Article 9 (1) it is tantamount to a sort of penalty. In the first place, it would make it impossible for him to be reemployed in any Government department. Then it would mean the cutting short of his career while he is still in the prime of life. and the pension to which he would be entitled would by the very nature of things be much less than he would have got had he been allowed to serve till he attained the age of 55. This means that even though it falls short of an order of dismissal it is penal in nature and, for this reason, the principle observed in the Privy Council decision should apply and opportunity to show cause against compulsory retirement should have been given to him.

Incidentally I may also add that the fact that the framers of the Constitution inserted the term "removed" in clause (2) of Article 311, and I am entitled to presume that they must have done so with the knowledge that this term did not exist in sub-section (3) of Section 240, their intention was to extend the operation of the clause to all kinds of cases of removal from service. The net result is that though some of the objections urged by the petitioner''s counsel have been held to be untenable the order by which he was made to retire was vitiated on account of more than one reason.

In the result, I would accept the petition to the extent that I would declare both the orders complained of, one dated 27th May 1949, by which the petitioner was reverted to the post of an Assistant and the other dated 13th December 1951 by which he was made to retire, void and inoperative. I would, further declare, as was done in the Privy Council case, that the petitioner still continues to be in the service of the State.

The respondent will pay the petitioner''s costs.

Counsel''s fee Rs. 100/-.

Gurnam Singh, J.

I agree.