SHINGHAL, J. - - (1.) THESE three writ petitions arise out of facts which are quite similar. They have been argued together by the learned counsel for the parties and I shall dispose them of by this judgment as suggested by them.
(2.) ALL the three petitioners were confirmed employees of the Union of India (respondent No 1) serving in the Northern Railway. They were going on 55, when they were served by three separate orders, each of which has been marked Ex. 1, giving, inter alia three months' notice of their retirement. The orders were issued by the Dvsnl. Personal Officer with the approval of Dvsnl. Supdt., Jodhpur. They were issued on different dates. In the case of Poonamchand, order Ex. 1 was issued on September 4, 1968, retiring him finally from December 15, 1968. It is not disputed that the order was served on him on October 1, 1969. There is, however, no dispute about the inadequacy of the notices given to Pukhraj and Kanwar Singh, so that it is not necessary to give dates. The petitioners have moved this court on a number of grounds which I shall have occasion to examine when I deal with the arguments of their learned counsel. It will be sufficient to say that although it was one of grievances of the petitioners that the notices were issued by an authority subordinate to that by which they were appointed, that ground has not been pressed for my consideration. The respondents have denied the allegations regarding the invalidity of the impugned orders (Ex.1) and have pleaded, inter alia, that the question of retirement was examined objectively in each case and a decision was taken by the Divisional Superintendent in the public interest. It is common ground that the orders of retirement have been passed under rule 2046 (h) of the Indian Railway Establishment Code, Volume II, hereinafter referred to as "the Rule". It reads as follows, - "2046 (h) Notwithstanding anything contained in this Rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any railway servant on attainment of the age of 55 years or thereafter by giving him notice of not less than three months in writing. (i) Any railway servant may by giving notice of not less than three months in writing to the appointing authority retire from service on attainment of the age of fifty-five years or thereafter: Provided that it shall be open to the appointing authority to withhold permission to a railway servant under suspension who seeks to retire under this clause. Note. - Appointing Authority means the authority competent to make the first appointment to the grade which the railway servant for the time being holds. Note. - The three months' notice referred to in clause (h) or clause (i) may be given before the railway servant attains the age of fifty-five years, provided that the retirement takes place on his attaining that age." The first point for consideration is whether the rule is violative of Article 14 of the Constitution on the ground that it permits discrimination against those employees who may be picked up for retirement at the age of 55 years, and the others, and also because it does not have a rational relation to the object sought to be achieved by the rule inasmuch as the criterion of "public interest" is far too subjective and vague. The learned counsel for the petitioners have laid much emphasis on this argument and have tried to support it by a reference to Moti Ram Deka vs. N.E. Frontier Railway (1), S.G. Jaisinghani vs. Union of India (2) and Harak Chand Ratan Chand Banthia vs. Union of India (3) They have also made a reference to paragraph 9.18 (at page 201) of the "Constitutional Law of India" by H.M. Seervai. It will be sufficient for me to say however that the validity of such a law relating to retirement has been conclusively upheld in several decisions of their Lordships of the S.C. beginning from Shyamlal vs. State of Uttar Pradesh (4). As has been observed by their Lordships in I.G. Shivacharana Singh vs. State of Mysore (5), where the impugned rule applies to all Government Services, it is not open to challenge under Article 14. A similar view has been taken by a Division Bench of this court in Gopalmal vs. State (6) on the basis of the judgments of their Lordships cited above. In Motiram Deka vs. General Manager, North Eastern Frontier Railway (1), arguments were made regarding the invalidity and the validity of rules 148(3) and 1493) of the Railway Establishment Code (1959), Volume I, and even though no principle, such as the principle of "public interest" mentioned in rule 2046(h) was contained in those Rules, their Lordships of the Supreme Court did not express any opinion on the controversy so that the judgment is really of no avail to the petitioners. S. G. Jaisinghani vs. Union of India (2) cited by the learned counsel for the petitioners did not deal with the question of retirement in terms of the service rules, and is not really in point. Rule 2046(h) lays down the criterion of "public interest" for the retirement of a railway servant on attaining the age of 55 years or thereafter, and it has been argued that it is far too subjective and vague. The argument has been supported by reference to Harak Chand Ratan Chand Banthia vs. Union of India (3), and my attention has been invited to paragraph 21 where their Lordships have made the observation, inter alia, that the expression "public interest" in sec. 27(c)(g) of the Gold Control Act, 1968 does not provide any objective standard or norm or guidance. That case however related to gold control, and it was found that the criterion of "public interest" did not provide a proper objective standard in the scheme of that law and in the facts and circumstances of that case. Even so, their Lordships upheld the validity of sec. 27 on the ground that it did not violate the guarantee under Art.14 of the Constitution. No substantial benefit can therefore be taken by a reference to that judgment. The question of classification and the conferment and exercise of discretionary power within the meaning of Art. 14 of the Constitution have been lucidly dealt with in Chapter IX of the "Constitutional Law of India" by Seervai, but there is nothing in paragraph 9.18 of that commentary which could be said to justify the argument that rule 2046(h) is violative of Art, 14 of the Constitution. The learned commentator has in fact gone to the extent of assuming that an unfettered discretionary power were conferred by law, and has then posed the question whether that is enough to render it void irrespective of the question whether the power has in fact been exercised arbitrarily or capriciously ? He has answered the question as follows: - "It is submitted that there is no reason for striking down a provision because it confers unguided power if the power has not been exercised at all or in fact the person exercising the power has acted on a reasonable standard." As it happens, the learned counsel for the petitioners have not shown that such a reasonable standard or criterion has not been applied in the case of the petitioners, or that the impugned orders could be said to have been passed arbitrarily for any reason whatsoever. In fact it may well be said that the rule making authority has clearly stated its legislative policy by providing in the rule that the right to retire any railway servant on attaining the age of 55 years, or thereafter, shall be exercised only if the appointing authority is of the opinion that it is in the "public interest" to do so. And such legislative policy can well provide a sufficient and satisfactory standard or criterion for the guidance of the appointing authority. It may be pointed out that the expression "interests of the general public" has been used in Art.19 (5) of the Constitution, and clause (b) of Art.304 uses the very expression "public interest" while dealing with restrictions on trade, commerce and intercourse within the country. There is therefore high authority for the view that such expressions can well serve the purpose of laying down the policy of the legislature and a criterion for the guidance of the concerned authorities. It may also be mentioned that even though the definition of "public purpose" in sec. 2(f) of the Land Acquisition Act was not useful for ascertaining the ambit of the expression, and even though it was realised that "public purpose" was bound to vary with the times and the prevailing conditions, their Lordships upheld that criterion in Smt. Somawanti vs. State of Punjab (7) for the purpose of declaring the need for the requisition of land. No objection can therefore be taken to the use of such an expression. Similarly, it has been held by their Lordships of the Supreme Court in Ramkrishna Dalmia vs. Justice S.R. Tendolkar (8) that the expression "Public importance" in sec. 3 of the Commissions of Inquiry Act, 1952, is sufficient to guide the Government in regard to the policy of the law, and that the power could not be said to be unguided or uncontrolled. I have already made a reference to Shyamlal vs. State of Uttar Pradesh (4) and T. G. Shivacharana Singh vs. State of Mysore(5), and in both of these cases the criterion of "public interest" found favour with their Lordships of the Supreme Court. Moreover, their Lordships of the Supreme Court have held in Harishanker Bagla vs. State of Madhya Pradesh(9) that once the policy underlying the legislation has been laid down, it will be sufficient to guide the discretion of the executive authority, and that its exercise can be regulated by the issue of administrative directions. In the present case, the learned counsel for the respondents has invited my attention to "Serial No. 3037-Circular No. 83l-E/9V(Eiv), dated 7-7-1965 read with "Serial No. 3829-Circular No. 831 E/169/2-II(Eiv)" dated 4-4-1967 for retention of railway servants beyond the age of 55 years. The directions contained in these Circulars are unexceptionable and the learned counsel for the petitioners have not been able to urge anything against them. I am therefore unable to think that there is any justification for the criticisms put before me that the rule gives unguided or uncontrolled power and is violative of Art.14 of the Constitution. I am fortified in this view by the decisions in Bairagiram vs. State of U. P. (10), Rishiram vs. Union of India (11), R. L. Butail vs. Union of India (12) and Somnath Misra vs. Union of India (13). The arguments of the learned counsel for the petitioners that the impugned rule gives unbridled powers to the appointing authority and is arbitrary, does not require separate consideration, and it will be sufficient to say that Prema-dhar Baruali vs. State of Assam(14) cited by them was a different case because the memorandum issued by the Government as a general order under F.R. 55 raising the age of retirement to 58 years provided, inter alia, that the appointing authority may, "without assigning any reason", require the Government servant to retire after he had completed 55 years of age. That decision cannot therefore avail the petitioners because rule 2046(h) clearly requires that the opinion of the appointing authority in this respect should be based on a consideration of the "public interest" so as to rule out any unbridled or arbitrary decision.
(3.) IT has next been argued that the rule violates the principles of natural justice because it does not provide for a show cause notice to the employee against his retirement even though he has a right to serve up to the age of 58 years under the rule. The argument has been supported by a reference to the decision in Col. J.N. Sinha vs. Union of India (15), State of Orissa vs. Dr. (Miss) Binapani Dei (16) and A.K. Kraipak vs. Union of India (17). A reading of the whole of rule 2046 shows, however, that while a railway servant may be said to have the expectation that he would continue in service until he attains the age of 58 years in accordance with clause (a), that is subject to the right of the railway administration to retire him under clause (h) on attaining the age of 55 years, Or thereafter, in accordance with the conditions of that clause. The one right is therefore counter-balanced by the other. The use of the expression "notwithstanding" in the opening words of clause (h) in fact leaves no room for doubt that the clause has an overriding effect, so that it cannot be doubted that clause (a) is subject to it. The non-obstante clause has the effect of providing that it shall prevail and will have full operation inspite of the other provision in the rule, so that it is futile to contend that a railway servant has a right to serve up to the age of 58 years. This view is supported by the reasoning adopted in South India Corporation (P.) Ltd. vs. Secretary, Board of Revenue (18) and K. Parasuramaiah vs. Pokuri Lakshmamma (19). It cannot therefore be doubted that the appointing authority had the power to retire the petitioners on attaining the age of 55 years or thereafter, and the question is whether it was necessary for it to give them any notice before passing the impugned orders (Ex. 1) Now the question of giving show cause notice is connected with the question whether the order is likely to effect any right of the other party? As I have taken the view that any right of the petitioners to retire at the age of 58 years was subject to the right of the railway administration to retire them at the age of 55, the petitioners cannot justifiably make a grievance because a show cause notice was not given to them before the passing of the impugned orders. It is by now well settled by the decisions of their Lordships of the Supreme Court in Shyamlal vs. State of Uttar Pradesh (4), the State of Bombay vs. Saubhag chand M. Doshi (20) and Dalip Singh vs. State of Punjab (21) that an order of compulsory retirement in accordance with the service rules has no stigma or implication of misconduct, misbehaviour or incapacity and does not entail the loss of the benefits already earned by the empolyee. They have further held that such an order of retirement cannot be challenged on the ground that the employee was not afforded an opportunity of showing cause against the action sought to be taken in regard to him. So when retirement under the service rule is not a punishment and does not involve the loss of any benefit, there is really no scope for the argument that natural justice requires that the person concerned should be given a show cause notice or hearing before the making of the order of retirement. It cannot be disputed that any such principle of natural justice will have no application when an employee is retired, in the normal course, on attaining the age of superannuation, and there is, a priori, no reason why it should not equally be so when he retires in terms of his service rule without any detriment to his terminal benefits. There is no force therefore in the argument that the petitioners should have been given a show cause notice, or a hearing, before the making of the impugned orders. I am fortified in this view by the decisions in Abdul Ahad vs. Inspector General of Police, U.P. (22), Gopinath Gupta vs. Post Master General (23) and Abdul Rahim Ahmed vs. State of Mysore (24) which are directly in point. It has to be appreciated that the question of retirement under the service rules is not typically justiciable and the absence of notice cannot be considered an affront to justice. Moreover any such show cause notice will really be futile and meaningless in such cases, for what cause will the employee show if he is served with such a notice? The issue of the notice will therefore be an empty formality. If, however, the argument for the issue of the notice is based on the ground that it will enable the employee to make a factual representation to appointing authority, that purpose will amply be served by the three months' notice provided by the rule, so that he can always have the opportunity of making his representation well before the date of retirement. ;