ISHWARLAL KASANJI NAIK Vs. STATE OF GUJARAT
LAWS(GJH)-1963-7-8
HIGH COURT OF GUJARAT
Decided on July 11,1963

ISHWARLAL KASANJI NAIK Appellant
VERSUS
STATE Respondents

JUDGEMENT

J.M.SHELAT - (1.) These three orders have been challenged on various grounds which as aforesaid have been taken by the respective petitioners in their petitions. As aforesaid in Special Civil Application No 827 of 1961 the petitioner therein has raised certain additional grounds which we will deal separately. The first ground amongst the several grounds common to these three petitions is that the three impugned orders have been passed mala fide and are therefore invalid. The petitioner in Special Civil Application No. 604 of 1961 has alleged (1) that the order impugned by him is mala fide because it has been passed to circumvent the orders passed in his favour in the aforesaid suit filed by him against the respondent (2) to bring pressure against him for obtaining the said order from the Civil Court (3) that the impugned order was passed at a time when the aforesaid suit had become ripe for hearing and (4) to deprive him of the possible fruits of the result of the aforesaid suit. The petitioner in Special Civil Application No. 745 of 1961 has also alleged that the impugned order was passed against him mala fide with a view to circumvent his just claim for promotion. Both the petitioners have alleged that it was significant that rule 161 was not invoked against them by the State Government when both of them attained the age of 50 years.
(2.) It is not in dispute that rule 161 vests power in the State Government to require a Government servant in the Bombay Service of engineers Class I on his reaching the age of 50 years if he has not attained the rank of a Superintending Engineer. Admittedly this provision in rule 161 is a condition of service and is exercisable at the discretion of the Government. That being so no question of these impugned orders having been passed mala fide can arise. Moreover on behalf of the respondent the Deputy Secretary to the Government of Gujarat Public Works Department has filed an affidavit in reply in which the allegations of the three orders having been passed mala fide have been categorically denied. Barring some suggestions made in the petitions and also in the petitioners affidavit in rejoinder there is hardly any concrete material on which it could with any certitude be said that these orders were passed mala fide by the respondent. Mr. Daru who appears for the petitioner in Special Civil Application No. 827 of 1961 in fact did not press the allegation as to the mala fides of the respondent in passing the order against the petitioner. In these circumstances it is impossible to accept the allegation that these orders have been passed mala fide.
(3.) The orders are next attacked upon the ground (1) that inasmuch as rule 161 was invoked after a lapse of about three years from the petitioners attaining the age of 50 years and also because the rule being a term of service for the benefit of the State the State must be said to have waived the power under the rule by not invoking it when the petitioners reached their respective 50th year It is contended that when the petitioner completed his 50th year the power under rule 161 could have been invoked then only and not later. The reply of the learned Advocate General briefly stated was that rule 161 authorised the Government to require a Government servant in the Bombay Service of Engineers to retire if he has reached the age of 50 years and has not attained the rank of a Superintending Engineer. The learned Advocate General argued that there was nothing in clause (c)(ii)(2) of rule 161 to warrant the construction that the power thereunder should be invoked the moment that such an employee reached the age of 50 years. He argued that the rule conferred a right on the Government as a condition of service and became available upon the employee reaching the age of 50 years provided that such an employee has not attained the rank of a Superintending Engineer. That power can be availed of at any time after the employee has reached the age of 50 years until he retires in normal course upon reaching the age of 55 years. The learned Advocate General therefore argued that there was no question of waiver on the part of the respondent.;


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