- (1.) THIS is a petition under Article 226 of the Constitution which has been referred to a Full Bench owing to the importance of the points involved. The petitioner, Dr Pritam Singh Brar, first joined service of the erstwhile Faridkot State on 27th February, 1b39 as Chief Veterinary Officer which post, according to him, was later on re-designated as Director. Veterinary Services. On the reorganisation of the State of Punjab in 1956 the petitioner was integrated in P. V. S. Class I and posted as Deputy Director. Animal Husbandry, Patiala. Respondent No 3, Shri M S. Malhi, was also Integrated in the same service at the same time. In March 1957 Shri Malhi was promoted as Director in an officiating capacity. His work was how- ever, considered unsatisfactory and he was reverted with effect from 14th August 1959 and the petitioner was promoted as Director, Animal Husbandry in the grade of Rs. 1500-60-1800 vide Annexure "a". The petitioner continued working as Director from 14th August 1959 till 29th October, 1962 on which date the Punjab Government, by an order (copy Annexure "b"), appointed him as Director on probation for a period of one year. According to the petitioner, this appointment was made with the approval of the Punjab Public Service Commission and was ordered to take effect from 14th August 1959. It was notified in the Punjab Government Gazette dated 5th December 1962 (copy Annexure "c" ). The period of probation of the petitioner was extended by the Punjab Government from time to time. He says that in June 1964 the then Chief Minister passed orders for his confirmation but these orders were not implemented by Shri B. B Vohra Secretary to Government Punjab, Agriculture Department, respondent No. 2. Shri Vohra, however, in his affidavit in Para 9 has denied that the orders of the then Chief Minister, Shri Partap Singh Kairon. dated 20th June. 1964 were not implemented by him. He states that these orders were required to be reviewed by the new Government in terms of the Chief Secretary's U. O. dated 15th July. 1964 (copy Annexure "r/5" ). The case was submitted to the new Government and it was decided by it that the petitioner should not be confirmed. In paragraph 10 of the amended petition, it was alleged that Dr. Gopi Chand Bhargava, the Chief Minister in the successor Government, endorsed the order of Shri Kairon made in June 1964 confirming the petitioner in the post of the Director but that his order also was not carried out by Shri Vohra and the period of probation was extended by short extensions from time to time till 29th July, 1965. All this has been denied by Shri Vohra. On 9th July, 1965 the Punjab Government passed an order (copy Annexure "d") by which respondent No. 3. Shri Malhi, was appointed as Director of Animal Husbandry in a purely stop-gap arrangement with effect from the afternoon of 4th August 1965 when the petitioner attained the age of 55 years. By the same order the petitioner was allowed to continue in Government service beyond the age of 55 years after being relieved of the charge of Director, Animal Husbandry. His posting orders were to be issued separately. According to the petitioner, he handed over the charge of that post on 4th August 1965 and submitted a report to the Government stating that he was handing over the charge but that no orders of his posting were received till then (copy of the report is Annexure "e" ). Shri Vohra In his affidavit (paragraph 11) has stated that orders regarding the new posting of the petitioner could not be issued simultaneously with the orders relieving him of the charge of Director. Animal Husbandry, because a new post had to be created with the same salary which the petitioner was drawing and since no such post existed In the Department on 2nd July 1965 a reference was made to the Finance Department on 16-7-1965 through the Chief Secretary which involved certain amount of procedural delay. According to the petitioner, he made a representation against the order dated 9th July. 1965 to the Chief Minister (copy Annexure "f") but that no orders were conveyed to him of his posting till 16th November, 1965. During this period he had been meeting the Secretary and the Minister of the Department concerned and the Chief Minister in order to obtain the posting orders but none of these authorities issued any orders of the assignment and posting of the petitioner and he remained "on the road without any post and salary. " On 16th November, 1965 the Government made an order appointing him as Project Officer (Milk Shed Areas') of Amritsar and Gurdaspur Districts with headquarters at Amritsar vide Annexure "g". Although the petitioner had been directed to take up his duties at Amritsar immediately, no order of the creation of the post in question had been issued by the Government till then. In paragraph 16 of the amended petition, it is stated that the petitioner submitted a representation to the Chief Minister, Punjab on 21st November, 1965 (copy Annexure "h") which contained a protest against the appointment of the petitioner as Project Officer which post was subordinate in rank to the post of a Director In paragraph 17, the petitioner says that while his representation was still pending with the Chief Minister and he was to give him a hearing in the presence of the Minister of Animal Husbandry and Agriculture on 27th January. 1966, the Deputy Secretary to Government, Punjab, Forest Department, disposed of the same by advising the petitioner to resume his duties at Amritsar. It is stated by Shri Vohra that the said representation was examined by the Administrative Department and rejected on the 6th December, 1965, with the approval of the Minister in charge. This rejection was conveyed to the petitioner under the signatures of the Deputy Secretary by means of the letter (copy of which is Annexure "r/8") Since the petitioner had forwarded an advance copy of the representation to the Chief Minister he was given a date for hearing by him also The petitioner says that he submitted another representation on 9th December, 1965 to the Chief Minister (copy Annexure "k") alleging that Shri Vohra was inimical towards him and his decisions were actuated with personal malice and ill will against him. On 23rd March 1966 an order was passed In the name of the Governor according sanction to the post of Officer on Special Duty at a fixed pay of Rs. 1800 p. m. from 5th August 1965 to 28th February 1966 According to the petitioner this order was not conveyed to him till 22nd April, 1966 On that date he received a communication to the effect that the Government was pleased to redesignate the post of Officer on Special Duty as Project Officer (Milk Shed Areas) for Amritsar and Gurdaspur districts with headquarters at Amritsar He was directed to take charge of that post at Amritsar immediately and report compliance to the Government. Respondent No. 3 had simultaneously issued a letter to him on 22nd April 1966 asking him to proceed to Amritsar and to take charge of his new assignment. It was stated in that letter that the Government was being requested to sanction for the petitioner a post of Stenographer and a peon and the petitioner was asked to furnish adequate justification for any additional staff (Annexure "m") On 30th April 1966 the petitioner filed a writ petition in this Court challenging the order dated 9th July 1965 and 20th April 1966. During the pendency of the writ petition an order was made on 1st July 1966 serving three months' notice on the petitioner with reference to Rule 5. 32 (c) of the Punjab Civil Services Rules. Volume II and the petitioner was informed that he would be deemed to have been retired from service on the expiry of that period from the date of receipt of the notice by him. The petitioner sought permission to amend the petition so as to attack the notice dated 1st July 1966 which he was allowed to do and then the amended petition was filed from which all the allegations which have been set out before have been substantially taken. The petitioner has also introduced a number of other facts which will be subsequently noticed to the extent necessary containing particulars of mala fides on the part of Shri Vohra in amplification of his allegations in that behalf against Mm.
(2.) WHEN the petition was heard by a Division Bench consisting of myself and Shamsher Bahadur J. the challenge of the petitioner was directed mainly towards the legality and validity of the notice dated 1st July 1966 and the same matter has been canvassed before the Full Bench An endeavour has also been made to establish that the impugned orders culminating in the notice of 1st July 1966 were actually by mala fides. In order to decide the questions which have been raised, relevant service rules may be adverted to Rule 326 of the Punjab Civil Service Rules Volume I Part I runs thus:- "3. 26 (a) Except us provided in other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV Government servant is the date on which he attains the age of 58 years. He must not be retained in service- after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority on public grounds which must be recorded in writing. (b) ****** (c) The following are special rules applicable to P. W. D. Officers: - (1) Except as otherwise provided in this sub-clause, Government servants in the Punjab Service of Engineers, Class I (B and R I. B. and Electricity) must retire on reaching the age of 58 years, and may be required by the competent authority to retire on reaching the age of 30 years if they have not attained the rank of Superintending Engineer. * * * * " It may be mentioned that originally the age of compulsory retirement was 55 years but it was raised to 58 years with effect from 18th March 1963.
(3.) RULE 5. 32 contained in Volume II of the Punjab Civil Services Rules relating to pensions and provident funds is as follows:- "5. 32 (a ). A retiring pension is granted to a Government servant who is permitted to retire from service after completing qualifying superior service for twenty-five years or such less time as may for any special class of Government servants prescribed. (b) A retiring pension is also granted to a Government servant who is required by Government to retire after completing 25 years qualifying service or more and who has not attained the age of 55 years. Note 1. Govt. retains an absolute right to retire any Government servant after he has completed 25 years of service qualifying for pension if he is holding a pensionable post or has completed service for a similar period if he is holding a non-pensionable post but is entitled to the benefits of contributory provident fund (vide GSR-115/article 309/const/63 dated 13-5-1953), except when it is in the public interest to dispense with the further services of a Government servant such as on account of inefficiency, dishonesty, corruption or infamous conduct. Thus Clause (b) is intended for use:- (i) Against a Government servant whose efficiency is impaired but against whom it is not desirable to make charges of inefficiency or who has ceased to be fully efficient (i. e. when a Government servant's value is clearly incommensurate with the pay which he draws) but not to such a degree as to warrant his retirement on a compassionate allowance It is not the intention to use the provision of this note as a financial weapon that is to say the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds: (ii) In cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific Instance is likely to be proved under the Punjab Civil Services (Punishment and Appeal) Rules. Appendix 24 Vol. I Part II or the Public Service (Inquiries) Act (37 of 1850 ). * * * * * * * * * * Note 2. Government servant should be given a reasonable opportunity to show cause against the proposed action under Clause (b) of this rule. No Gazetted Government servants shall however be retired without the approval of Council of Ministers. In all cases of compulsory retirement of gazetted Government servants belonging to the State Services, the Public Service Commission shall be consulted. In the case of non-gazetted Government servants the Heads of Departments should effect such retirement with the previous approval of the State Government. * * * * * * * * * * (c) (Vide No. 12435 FRI-64/1143 dated 4-2-1964) A retiring pension is also granted to a Government servant other than a Claw IV Govt. servant: (i) who if retired by the Appointing Authority on or after he attains the age of 55 years, by giving him not less than I 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 55 years is attained, it shall be given effect to from a date not earlier than the date on which the age of 55 years is attained Note: Appointing authority retains an absolute right to retire any Government servant except a Class IV servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years ";