- (1.) This appeal, which has come before us on special leave obtained by the plaintiff appellant, is directed against a judgment of a Letter Patent Bench of the High Court of Punjab dated the 10th July 1952, reversing, on appeal, a decision of a single Judge of that Court passed in Second Appeal No. 884 of 1950.
(2.) The suit, out of which the appeal arises, was commenced by the plaintiff, in the Court of the Subordinate Judge at Ambala for a declaration that the order passed by the Government of India, which is the defendant in the suit, retiring the plaintiff from his service was wrongful, void and inoperative and that the plaintiff should be deemed to continue still in the service of the defendant. The material facts, which are for the most part uncontroverted, may be shortly narrated as follows: The plaintiff entered the service of the Government of India as a clerk in the Central Research Institute at Kasauli on the 7th of May, 1912. Under Rule 56 (b) (i) of Chapter IX of the Fundamental Rules, which regulate the civil services, a ministerial servant may be required to retire at the age of 55 but should ordinarily be retained in service if he continues efficient, till the age of 60 years. The plaintiff was to complete 55 years on the 26th November 1946. It appears, however, that in 1945 he himself was anxious to retire from service and on the 7th of May 1945 wrote a letter to the Director of the Institute to the following effect : "Sir, Having completed 33 years' service on the 6th instant I beg permission to retire and shall feel grateful if allowed to have the leave admissible." This permission was not granted by the Director of the Institute on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter dated the 30th May 1945. In that letter it was stated that owing to the untimely death of his brother, his family circumstances did not permit him to serve the Institute any longer. He, therefore, prayed for leave preparatory to retirement - four months on average pay and the rest on half average pay - from 1st of June 1945,or the date of his availing the leave, to the date of superannuation which was specifically stated to be the 26th of November 1946. The letter plainly indicates that the impression in the mind of the plaintiff was that he was due to retire on the 26th of November 1946 and all that he wanted was that he might be granted leave preparatory to retirement from 1st of June 1945 or as early as possible after that. This time also the plaintiff's prayer was refused and the Head of the Institute endorsed a note on his application that he could not be speared. A third application was presented by the plaintiff on the 18th of September 1945 praying for reconsideration of his petition and urging one additional ground in support of the same, namely, that the war was already at an end. This application too shared the fate of its predecessors and the Director of the Institute did not agree to his retirement. After this the plaintiff kept silent for nearly 8 months and on the 28th May 1946 he made his fourth application which, it appears, met with a favourable response. In this application also it was stated that the plaintiff would attain the age of 55 years on the 27th of November 1946 and he prayed, therefore, that the full amount of preparatory leave, as was admissible to him under the rules, might be granted to him. The Director of the Institute sanctioned the leave and the question as to how much leave and of what kind would be available to him was left to the decision of the accountant-General, Central Revenues. On the 11th of July 1946 the Accountant-General communicated his order to the Director of the Institute and his decision was that the plaintiff was entitled to leave preparatory to retirement on average pay for six months from 1st June 1946 to 30th November 1946 and on half average pay for five months and twenty-five days thereafter, the period ending on 25th of May 1947. Just 10 days before this period of leave was due to expire, the plaintiff on the 16th of May 1947 sent an application to the Director of the Institute stating that he had not retired and asked for permission to resume his duties immediately. The Director informed him in reply that be could not be permitted to resume his duties, as he had already retired, having voluntarily proceeded on leave preparatory to retirement. The plaintiff continued to make representations but ultimately the matter was concluded so far as the Government of India was concerned by a letter dated the 28th of April 1948 in which it was stated that the plaintiff having availed himself of the full leave preparatory to retirement due to him and having actually retired from service of his own volition, the question of his having any right to return to duty and to continue service till the age of 60 years did not at all arise. It was in consequence of this letter that the present suit was filed by the plaintiff on the 5th of July 1949.
(3.) The legality of the Government communication mentioned above has been attacked in the plaint substantially on a two-fold ground. The first ground alleged is, that under Rule. 56(b) (I), Chapter IX of the Fundamental Rules, the age of retirement is not 55 but 60 years. The rule no doubt gives the Government a right to retire a ministerial servant at the age of 55, but that can be done only on the ground of his inefficiency, Consequently, before a servant coming within that category is required to retire at 55, it is incumbent upon the Government to give him an opportunity to say what he has to say against this premature retirement in accordance with the provision of Section 240 (3) of the Government of India Act, 1935 and unless this is done, the order terminating his service cannot be held to be valid. The other contention is, that although the plaintiff on his own application obtained leave preparatory to retirement, yet there was nothing in the rules which prevented him from changing his mind at any subsequent time and expressing a desire to continue in service provided he indicated this intention before the period of his leave expired.;