Desai, J. - (1.) Appellant joined service as a Clerk in the Civil Supplies Department of the erstwhile Patiala and East Punjab States Union ('PEPSU' for short) on September 2, 1949. He was a temporary employee and he was discharged from service on September 30, 1953. On February 22, 1954, he was again recruited as a clerk in the consolidation department of PEPSU. In course of time, he was promoted as senior clerk and came to be allocated to Punjab State on the merger of PEPSU with erstwhile Punjab State. The Deputy Commissioner of Bhatinda transferred the appellant and posted him as Assistant in his office after obtaining concurrennce of the Subordinate Service Selection Board, Punjab with effect from January 1, 1962. On the reorganisation of Punjab State in 1966, the appellant came to be allocated to Punjab State. After declaration of national emergency, the Governor of Punjab in exercise of the power conferred by the proviso to Art. 309 of the Constitution and all other powers enabling thereto and with the previous approval of the Central Government under sub-sec. (7) of S. 115 of the States Reorganisation Act, 1956 and sub-sec. (6) of the Sec. 82 of the Punjab Reorganization Act, 1966 framed Punjab Civil Services (Premature Retirement) Rules, 1975 ( 'Premature Retirement Rules' for short). Rule 3 conferred power on the appropriate authority to order premature retirement of the Government servant governed by the rules. It reads as under:"3(1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving any employee prior notice in writing to retire that employee on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in notice. (b) The period of such notice shall not be less than three months: Provided that where at least three months' notice is not given or notice for a period less than three months is given, the employee shall be entitled to claim a sum equivalent to the amount of his pay and allowances at the same rates at which he was drawing them immediately before the date of retirement for a period of three months or, as the case may be, for the period by which such notice falls short of three months. (2) Any Government employee may, after giving at least three months' previous notice in writing to the appropriate authority retire from service on the date on which he completes twenty five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice; Provided that no employee under suspension shall retire from service except with the specific approval of the appropriate authority." In exercise of the power conferred by rule 3(1)(a), Deputy Commissioner, Bhatinda passed an order of the premature retirement of the appellant dated August 20, 1975. It reads as under: '"No. 173 Dated 20-8-1975 Under Rule 3(1)(a) of the Punjab Civil Services (Premature Retirement) Rules, 1975, Shri Hans Raj. Sub-Divisional Assistant, S. D. O. (Civil) office. Bhatinda who has completed more than 25 years service is hereby retired from service from the date of order, 2. He shall be entitled to three months, pay in lieu of notice as is admissible under proviso below rule 3(1)(b) of the Rules ibid. 3. He shall further be entitled to the benefits of retiring pension and death cum retirement gratuity, admissible under the rules. Sd/- Deputy Commissioner, Bhatinda." The appellant was accordingly prematurely retired by the appropriate authority on the ground that he has completed more than 25 years of service and that even though he was prematurely retired, he was entitled to the benefits of retiring pension and death cum retirement gratuity, admissible under the rules. The appellant questioned the validity, legality and correctness of the order of premature retirement in C. W. P. No. 6461 of 1976 in the High Court of Punjab and Haryana at Chandigarh, It was inter alia contended before a Division Bench of the High Court that on the relevant date, the appellant had not completed 25 years of qualifying service and therefore, he could not have been retired under Rule 3(1). It was also contended that the impugned order of premature retirement suffered from the vice of non-application of mind in as much as it does. not state that the power of prematurely retiring the appellant was exercised in public interest. It was urged that the power to prematurely retire a Government servant conferred by Rule 3 postulates two pre-requisites (i) that it is in public interest to prematurely' retire the Government servant and (if) that either he has completed 25 years of qualifying service or he has attained 50 years of age. It was accordingly contended that if the pre-requisites for exercise of power, are, not satisfied, the order would be ab intitio, void and would not have the effect of brining about the termination of service. There were other contentions raised on behalf of the appellant before the High Court with which we are not concerned in this appeal.
(2.) A return was filed. on behalf of the respondents by the third respondent Deputy Commissioner, Bhatinda, who has passed the impugned order. It was stated that the conduct of the applicant in the Year 1971-72 wits found unsatisfactory. His integrity was found doubtful. It was specifically contended that the appellant was prematurely retired from service on his completion of more than 25 years of service and the computation that he had completed 25 years of service was correct because the break in service from October 4, 1953 to February 21, 1954 was condoned by the PEPSU Government vide Revenue Department Letter No. RD-13(25)SS-/56-7101 dated June 28, 1956 and that once the break in service was condoned, the appellant on the date of premature retirement had completed 25 years of qualifying service. A bald statement was made that the power was exercised in public interest but the impugned order is wholly silent on this material point.
(3.) A Division Bench of the High Court rejected the writ petition observing that once the break in service from September, 1953 to February 21, 1954 was, condoned, the appellant had completed 25 years of service and after recording the statement of the learned counsel appearing on behalf of the respondents that the Memo No. XI IN XI/Misc. file/ 75-76/1618-19 dated January 1, 1976 issued by the Accounts Officer attached to the Office of the Accountant General, Punjab and addressed to the Sub-Divisional Officer (c), Bhatinda stating therein that the service of the appellant for the period from October 1, 1953 to February 21, 1954 do not qualify for pension as service prior to the break was for a period less than five years which would not be given effect to and thereupon concluded that the pre-requisite for exercise of power under Rule 3(1)(a) was satisfied. Hench this appeal by special leave.;