H.R.Sodhi, J. - (1.) The petitioner was employed as Sanitary Inspector in the Municipal Committee, Nabha, and was suspended by a resolution on 31st July, 1964. The office order No. 47 was, however, issued by the President-cum-Executive Officer, on 11th Jan., 1965. The petitioner represented against his suspension to the State Government and the Governor of Punjab by an order dated 6th Oct., 1965, passed under Sec. 236 (2) of the Punjab Municipal Act, 1911 (hereinafter called the Act), annulled the resolution and also the office order with the result that the petitioner stood reinstated to his previous job. The petitioner was again compulsorily retired as per resolution No. 408(5) (4), dated 23rd Sept., 1968, and an office order was issued by the Executive Officer on the same day. A copy of this order has been appended as Annexure 'E' with the writ petition. It is alleged by the petitioner that some of the members of the Municipal Committee were inimical to him and it was at their instance that he was first suspended and then compulsorily retired.
(2.) No return has been filed on behalf of the State but there is one by respondents 3 and 4. It is denied in the return filed by them that the petitioner was a Sanitary Inspector though it is admitted that he was also required to function as a Sanitary Inspector. There is no dispute raised by them about the order of compulsory retirement having been passed. The position taken up by the respondents in their return to justify compulsory retirement before the petitioner attained the age of 58 years is that it was open to the Municipal Committee to observe general principles which the Government has approved in several departments of administration. It is, however, not denied by them that the age of superannuation has in fact been raised from 55 to 58 years by an amendment of the General Rules (hereinafter called the Rules) framed under Sec. 240 of the Act. It is, however, averred by them that the petitioner has been compulsorily retired under Sec. 45 of the Act, according to which the services of a municipal employee could be terminated on one month's notice. Rule 13 is in the following terms: "13. Termination of appointment at the age of 55 (sic 58). Every committee should after the 30th Nov., 1962, terminate the appointment of every servant of the committee upon his attaining the age of 58 years in the case of superior servants and sixty years in the case of inferior servants. He must not be retained in service after that age except in exceptional circumstances on public grounds which must be recorded in writing, with the prior approval of the State Government, which should be obtained well in time beforehand. Provided that the Deputy Commissioner or the Sub-Divisional Officer may without the approval of the State Government sanction the re-employment of a patwari or kanungo by the municipal committee for a period of six months in pay fixed in such manner that on reemployment, it does not exceed the pay which the re-employed person would have got had he been re-employed under Government." A bare reading of this rule makes it clear beyond any manner of doubt that a servant of a Municipal Committee can be permitted to continue in service up to the age of 58 years unless his service is terminated for some misconduct in accordance with the Act or the rules applicable to his service. It is the only rule to which my attention has been invited by the learned counsel to show that the age of superannuation has been fixed at 58 years in the case of municipal employees. Up to 30th Nov., 1962, the age limit was 55 years but later raised to 58 years by an amendment introduced by notification No. CSR 226/P.A.3/11/S.240/ 63, dated 30th Sept., 1963, filed as Annexure 'D' with the writ petition. The rule merely gives a direction to the Committee to terminate the services of a municipal employee upon his attaining the age of 58 years in the case of superior servants and 60 years in the case of inferior servants, except in exceptional circumstances on public grounds which too must be recorded in writing and the previous approval of the State Government obtained well in advance. It does not necessarily follow by implication that an employee gets a legal right to be retained in service of a Municipal Committee until he attains the age of 58 years or 60 years as the case may be. This rule only places a restriction on the power of a committee in the matter of retaining an employee after a certain age limit. The language of the rule is quite different from and rather in contradistinction to that of Rule 3.26 of the Punjab Civil Services Rules, Volume I, Part I, where it is specifically provided that the date of compulsory retirement of a Government servant other than Class IV Government servant, is the date on which he attains the age of 58 years. In other words, a Government servant cannot be compulsorily retired before he attains the age of 58 years, and Rule -3.26 is so worded that it gives a right to a Government servant to claim that he can continue in service up to a certain age but no such right flows from Rule 13 of the Rules. The language of the two rules is quite different. We have in the Act Sec. 45 which runs as under: "45. (1) In the absence of a written contract to the contrary, every officer or servant employed by a committee shall be entitled to one month's notice before discharge or to one month's wages in lieu thereof, unless he is discharged during a period of probation or for misconduct or was engaged for a specified term and discharged at the end of it. (2) x x x x x x x x x x x x In the absence of any statutory rules framed under Sec. 240 of the Act which may regulate the exercise of power under Sec. 45 of the Act, the only protection given to an officer or servant of the committee is that he is entitled to one month's notice before the discharge or to one month's wages in lieu thereof. If his services are terminated for misconduct or during the period of probation or when he was engaged for specified term and discharged at the end of the same, he is not even entitled to one month's notice or wages in lieu thereof. In case of termination of service for misconduct, certain procedure is required to be followed under statutory rules framed under the rule making power given by the Act, and several Municipal Committees, by virtue of their by-laws, have adopted the Punjab Civil Services (Punishment and Appeal) Rules, 1952. When such is the case, an employee may possibly have a legal right to claim that his services cannot be terminated without the necessary procedure having been followed. A municipal employee, unless there is statutory protection given to him by the Act or the Rules made thereunder, is at the mercy of the municipal committee, and he can be discharged from service at any time after one month's notice as envisaged under Sec. 45 without any cause being assigned. Sec. 45 incorporates the right of the master as it exists under the general law, according to which it is open to him, in the absence of any contract to the contrary, to dismiss a servant at any time as the latter always holds office during the pleasure of his master.
(3.) Mr. Thapar, learned counsel for the petitioner, submitted that compulsory retirement was only a colourable exercise of power by the Municipal Committee respondent and the services of the petitioner had, in fact, been terminated by way of punishment. He has, in this connection, referred to resolution No. 108(5) (4), dated 23rd Sept., 1968, passed by the Municipal Committee, by which the decision to compulsorily retire the petitioner was taken. The petitioner did not file a copy of this resolution with the writ petition, nor did the respondents. I had the resolution translated and a copy thereof placed on the record. It is true that the Committee was apprised by the President of some acts of indiscipline and non-co-operation on the part of the petitioner but the ultimate decision taken was that it was not in public interest that the petitioner be allowed to continue after he had attained the age of 56i years, and that keeping in view his conduct and work, it was considered proper to retire him compulsorily. The order, as conveyed to the petitioner, did not cause any stigma on him and he cannot reasonably urge that his so-called compulsory retirement was by way of punishment. The Committee was within its rights to take into consideration the allegations against the petitioner as made by the President of the Committee during its deliberations in order to decide whether the petitioner be retained in service or not, and they only constituted a motive for discharging the petitioner from the service of the Committee after due notice. The petitioner has filed annexures in which he claims to have made certain allegations against the Municipal Commissioners who were responsible for the impugned order against him but it is unnecessary to go into those matters. He has not impleaded those persons against whom he has made averments, nor are any such averments relevant for the purposes of the present writ petition. The ultimate result was that the Committee by its resolution discharged the petitioner from service in terms of Sec. 45 of the Act. If the petitioner considers his removal from service in any way to be wrongful, the only remedy that is available to him is by a suit for damages in a civil Court and a petition for the issuance of a writ or direction by this Court under Articles 226 and 227 of the Constitution of India is wholly misconceived. It is not open to this Court, in the exercise of its extraordinary jurisdiction, to enforce a contract of personal service except in exceptional circumstances which have not been shown to exist.;