9911796707
TMI Blog1954 (3) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant to appeal to this Court. The material facts may be shortly stated as follows: The appellant passed his Civil Engineering degree examination from the Thomason College. Roorkee, in 1922. He stood first in order of merit and carried away the Gold Medal and other prizes awarded to the best student of that year. He was appointed by the Secretary of State for India in Council to the Indian Service of Engineers as an Assistant Executive Engineer with effect from the 20th October, 1923. The conditions governing the appellant's terms of appointment, promotion, leave, pension, etc., will be found recorded in a letter issued from India Office, London, on the 13th February, 1924. A copy of that letter is annexed to the Petition filed under article 226. He was posted in ,the United Provinces. In 1944 the appellant was promoted to the rank of officiating Superintending Engineer. After the attainment of independence by India a fresh agreement was entered into by and between the appellant the Governor of the United Provinces and the Governor General of India on the 16th September, 1948 confirming the appellant's terms of appointment contained in the letter of the 13th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 465-A of the Civil Service Regulations. Before this order could be served on him the appellant on the 24th April, 1953, filed -before the Allahabad High Court a petition under article 226 of the Constitution praying that the order made by the President on the 17th April, 1953, be quashed on the ground, inter alia, that the order was illegal and void in that it was made without affording him any opportunity to show cause against the action proposed to be taken in regard to him. As already stated, the High Court dismissed the application on, the 1st October, 1953. The present appeal is directed against that order of dismissal. The order of the President which is impugned by the appellant shows that action was purported to be taken in regard to the appellant under Note 1 to article 465-A of the Civil Service Regulations. Chapter XVIII of the Civil Service Regulations deals with Conditions of Grant of Pension. Article 465-A appears in that Chapter under section V the heading of which is Retiring Pension. There are two notes appended to the article of which the first one is important for our present purpose. The relevant part of -article 465-A and Note 1 thereto are set out belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all that has been shown is only that the article in question was amended and brought. up to its present form in 1922 it cannot be said to have been validated by subsection (4) of section 96B. Reference is then made to sub-section (2) of that section which empowered the Secretary of State in Council to make rules for regula- ting the classification of the Civil Services in India, the methods of their recruitment, their conditions, of service, pay and allowances, and discipline and conduct and, by such rules, to delegate the power of making rules to the Governor-General in Council or to local Governments or to authorise the Indian Legislature or local Legislatures to make laws regulating the public services. It is pointed out that sub-section (2) did not empower the Secretary of State in Council to delegate the power to make rules concerning pensions to any authority in India. Our attention is next drawn to sub-section (3) of section 96B which specially safeguarded the interests of the civil servants employed by the Secretary of State in Council by providing that their right to pensions and the scale and conditions ,of pensions should be regulated in accordance with the rules in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounced certain new rules relating to retiring pensions of the officers (other than military officers or members of the Indian Civil Service) and the 'services specified therein.. The services so specified included the Public Works Department. The new rules were,, by rule 1, made to apply only to officers joining the above services after the 29th August, 1919, And to those existing officers who elected in writing to come under their provisions,. The appellant was, employed in October, 1923, and consequently these new rules applied to him. The material I part of rule 4 of these new rules was as follows :- Government will have an absolute right to retire any officer after he has completed twenty-five years' service, without necessity to give reasons and without any claim for compensation in addition to pension, and in that event.............. These rules which came into force on their publication in the Official Gazette of the 15th November, 1919, were, therefore, in operation on the 23rd December, 1919, when the Government of India Act, 1919, was passed and were accordingly validated and confirmed by sub-section (4) of section 96B of that Act to which reference has alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Government of India Act, 1919, had been passed and therefore cannot be said to have been confirmed by section 96B (4) and being a pension rule made after the date of that Act but not being a rule made by the Secretary of State in Council it cannot under section 96B (3) apply to the appellant who was employed by the Secretary of State. We are unable to accept this argument as sound. As already stated, the new rules were announced by Resolution No. 1085-E. A. passed and published on the 15th November, 1919, and were in force on the 23rd December, 1919, when the Government of India Act, 1919, was passed and consequently acquired statutory force by virtue of section 96B (4) of,that Act. The subsequent Resolution No. 714-C.S.R. dated the 10th May, 1920, and Resolution No. 1003-C.S.R. referred to above did not and could not affect the validity or force of the new rules announced on the 15th November, 1919. The purpose of publishing the new rules in the form of amendments to the Civil Service Regulations, as Resolution No. 714-C.S.R. itself stated expressly, was only to clarify the exact scope of those new rules and not, As suggested by learned counsel for the appellant, to bring th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or India. We, therefore, agree with the High Court, though on different grounds, that the first question raised by the appellant must be answered against him. It is unfortunate that the Gazette of India notifications of the several earlier resolutions referred to above were not made available to the High Court. Re. (ii) and (iii).-It will be convenient to deal with these two questions together. Learned counsel for the appellant urges that even assuming that rule 4 announced by Resolution No. 1085-E.A. and on which Note I to article 465-A of the Civil Service Regulations was based had, on the passing of the Government of India Act, 1919, become binding on the appellants it nevertheless became void on the coming into operation of the Constitution of India by reason of its being repugnant to the provisions of article 31 1 of the Constitution. The argument is that a compulsory retirement of an officer was nothing but his removal from service within the meaning of article 311 and as rule 4 as well as Note I to article 465-A of the Civil Service Regulations sanctioned compulsory retirement without assigning any reason which, in substance, meant without giving him any opportunity to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne and conduct. In exercise of this power the Secretary of State for India in Council framed certain rules in December, 1920, which with subsequent modifications were published on the 27th May, 1930, as The Civil Services (Classification, Control arid Appeal) Rules. Rule 49 provides: 49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services, comprised in any of the classes (1) to (5) specified in rule 14, namely:- (i) Censure. (ii)Withholding of increments or promotion, including stoppage at an efficiency bar. (iii)Reduction to a lower post or time-scale, or to a lower stage in a time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. Explanation.-The termination of employment(a) of a person appointed on probation during or at the end of the period of probation, in accordance with the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion of the Crown to dismiss a servant at pleasure and that the remedy of the servant for the violation of the rules was not by a law suit but by 'an appeal of an official or political kind. Then came the Government of India Act, 1935. Section 240 is important for our purpose. The relevant portions of that section were as follows: 240. (1) 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. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid 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. The rest of the section is not material for the present discussion. In short, sub-section (1) reiterated the English constitutional theory, sub-section (2) reproduced the restriction introduced by section 96B (1) of the 1919 Act and sub-section (3) gave statutory protec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of service. That was a case of a contract for temporary service being terminated by notice under one of the clauses of the contract itself and fell within clause (c) of the Explanation to rule 49 and article 311 was held by this Court not to have any application to the case. The question then is whether a termination of service brought about by compulsory retirement is tantamount to a dismissal or removal from service so as to attract the provisions of article 311 of the Constitution. The answer to the question will depend on whether the nature and incidents of the action resulting in dismissal or removal are to be found in the action of compulsory retirement. There can be no doubt that, removal--I am using the term synonymously with dismissal-generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the pension etc. that he has actually earned. There is no diminution of the accrued benefit It is said that compulsory retirement, like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superan- nuation and thereafter to get an enhanced pension and that is certainly a punishment. It is true that in that wide sense the officer may consider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something more. In the first- case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore,, be regarded in the eye of the law as a punishment. The more important thing is to see whether b y compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative. The second element for determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
