JAGAT NARAYAN, J. - (1.) THESE are three writ petitions under Art. 226 of the Constitution by three permanent member? of the Rajasthan Administrative Service directed against an order of the Government of Rajasthan compulsory retiring them from service under Rule 244 (3) of the Rajasthan Service Rules with effect from 1. 1. 1960 without giving them an opportunity of showing cause against it. They can conveniently be disposed of by one judgment as the main ground taken in all of them is the same, namely that the order retiring them compulsory from service before the age of superannuation is void and inoperative as it was passed without giving them an opportunity of showing cause against it. The petitions were contested on behalf of the State,
(2.) THE relevant part of the impugned order runs as follows? - "the following officers are retired compulsorily from the Government Service, in the public interest, under Rule 244 (2) Rajasthan Service Rules, with effect from the 1st January 1960: - (1) Shri Ganga Ram Purohit, R. A. S. (2) Shri Sohan Lal Surana, R. A. S. (3) Shri Amar Nath Purohit, R. A. S. " Rule 244 of the Rajasthan Service Rules is reproduced below: - Optional retirement after completing 30 years of service - (1) A Government servant may retire from service any time after completing 30 years' qualifying service provided that he shall give in this behalf, a notice in writing to the appropriate authority, at least 3 months before the date on which he wishes to retire. Compulsory retirement after completion of 25 years service - (2) Government retains an absolute right to retire any Government servant after he has completed 25 years' qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with further service of a Government servant. NOTES. 1. THE right conferred by Rule 244 (2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the intention to use this rule 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. 2. Compulsory retirement under this rule does not attract the provisions of clause (2) or Art. 311 of the Constitution because such retirement is not conceived as a penalty but as the exercise of a right reserved to Government of retiring a Government servant alter he has served for a certain length or time. Accoraingly, the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for formal proceedings against Government servants before removing them from service is not meant to apply to such cases. We have satisfied ourselves that the above notes form part of the Rules. They were inserted by the rule making authority purporting to act under Article 309 of the Constitution and were duly published as part of the Rules. The Rules governing the conditions of service of the petitioners are contained in the Rajasthan Service Rules and the Rajasthan Civil Services (Classification, Control and Appeal Rules 1958 (hereinafter referred to as the R. S. R. and the C. C. A. R. respectively ). The learned Advocate General conceded that these are binding both on the Civil Servants and the Government. In order to understand the contentions of the petitioners it is necessary to refer to rules 14 and 16 of the C. C. A. R. relevant portions of which are reproduced below: - DISCIPLInE R. 14. Nature of Penalties - The following penalties, may, for good and sufficient reasons, which shall be recorded, and as hereinafter provided be imposed on a Government servant, namely: - (i) censure; (ii) withholding of increments or promotion; (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order; (iv) reduction to a lower service, grade or post, or to a lower time-scale or in the case of pension to an amount lower than that due under the rules; (v) Compulsory retirement on proportionate pension; (vi) removal from service which shall not be a disqualification for further employment. (vii) dismissal from service which shall ordinarily be a disqualification for future employment. Explanation: - (1) The following shall not amount to penalty within the meaning of this rule: - (i) withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment; (ii) stoppage of an increment at the efficiency bar in the time-scale on the ground of his unfitness to cross the bar; (iii) non-promotion whether in a substantive or officiating capacity of Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible; (iv) reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered after trial, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct; (v) reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; (vi) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement; fas corrected by order published in Rajasthan Gazette dated 10-12-59) (vii) termination of the services - (a) of a Government servant appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation; or Substituted by F. D. Notification No. F. 10 (1) R. /55 dated the 1st February, 1955 for the following note 2, 3, and 4 - 2. The word Government should be interpreted to mean the authority which has the power to remove the Government servants concerned from service under Civil Services (Classification, Control and Appeal) Rules. 3. Art. 311 (2) of the Constitution of India is applicable to compulsory retirement effected in pursuance of this rule. Accordingly the officer concerned has to be given a reasonable opportunity to show cause against the proposed action. 4. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules for formal proceedings against the Government servants before removing them from service is not meant to apply to cases of compulsory retirement under this rule. Compulsory retirement of a Government servant is not conceived as a "penalty" imposed for good and sufficient reasons" but as the exercise of a right reserved to itself by Government in the Service Rules. (b) of a temporary Government servant appointed otherwise than under contract on the expiration of the period of appointment; (c) of a Government servant employed under an agreement, in accordance with the terms of such agreement; (d) of a Government servant in the services of any of the integrating units of Raj. on non se-lection or non-absorption for appointment in any of the services of the integrated State of Rajasthan in accordance with the integration rules. Explanation: - (2) The discharge of a person appointed on an ad-hoc or provisional basis to any of the posts in the integrated set up of the Rajasthan services otherwise than for reasons of non-selection or non-absorption to any such services or posts in accordance with the integration rules, shall amount to removal or dismissal as the case may be. 16. Procedure for imposing major penalties - (1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950, no order imposing on a Government Servant any of the penalties specified in clauses (iv) to (vii) of rule 14 shall be passed except after an inquiry held, as far as may be, in the manner hereinafter provided. (2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement indicating whether he admits the truth of all or any of the charges, what explanation or defence, if any, he has to offer and whether he desires to be heard in person. (6) The inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing. The argument of the petitioners runs thus. Firstly it is contended on the basis of rules 14 and 16 of the C. C. A. R. that the effect of rule 14 (v) read with the explanation is to make every order of compulsory retirement before the age of superannuation a major penalty which can only be imposed after holding an enquiry in accordance with rule 16 (2) and as no enquiry was held the order is void and inoperative. With regard to rule 244 (2) of R. S. R. which provides for retiring a civil servant after completion of 25 years' qualifying service without giving any reason it is argued that it should be deemed to be abrogated by necessary implication by rule 14 with was amended by the Governor in 1958 and enforced in the amended form in 1959 subsequent to the framing of rule 244 (2) in its present form. The same argument is put forward with regard to other rules in the R. S. R. which might indicate that the rule making authority intended to retain the right to retire a civil servant on completion of 25 years' qualifing service without giving any reason. Secondly it is contended that if the rules as they stand at present are construed to contain provision for retiring a civil servant on completion of 25 years' qualifying service without assigning any reason, such provision is void inasmuch as such retirement amounts to removal within the meaning of Article 311 (2) of Constitution and no order of removal can be passed without giving a reasonable opportunity of showing cause against it. The other relevant rules of the R. S. R. to which a reference is necessary are rules 56,172, 172 A. 243, 247 and 256. The relevant portions of the first five of these rules are reproduced below: - COMPULSORY RETIREMENT R. 56 (a ). Compulsory retirement on attaining age of superannuation - Except as otherwise provided, the date of compulsory retirement of a Government servant is the date on which he attains the age of 5 5 years. MISCONDUCT OR INEFFICIENCY R. 172. Compassionate allowance - No gratuity or pension may be granted under sec. II of Chapter XXII and Chapter XXIII to a Government servant dismissed or removed for misconduct, insolvency or inefficiency; but to Government servants, so dismissed or removed compassionate allowances, may be granted when they are deserving of special consideration; provided that the allowance granted to any Government servant shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate. R. 172a. Compulsory retirement as a penalty - An officer compulsory retired from service as a penalty may be granted by the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full invalid pension admissible to him on the date of his compulsory retirement. BETIRING PENSION R. 243. Condition of grant - A retiring pension is granted to a Government servant who is permitted or required to retire after completing qualifying service for thirty years, or who is retired under Rule 244 (2 ). R. 247. Amount how regulated - The amount of pension that may be granted is determined by length of service as set forth in Rules 2 56 and 257. Fractions of a year are not taken into account in the calculation of pension. Pensions fixed in rupees should be calculated to the nearest multiple of five naye paise. Rule 247 provides that the amount of pension that may be granted is determined by length of service as set forth in Rule 256. Under the latter rule a civil servant is not entitled to any pension upto a qualifying service of ten years but only to gratuity in accordance with the scale laid down therein. After a qualifying service often years the pension earned by a Civil servant amounts to No. of completed years of qualifying service of the average emoluments/80 upto a maximum of 30/80 earned on completion of thirty years of qualifying service. Average emoluments are worked out on the basis of the emoluments earned during the last three years of service. We have considered the relevant rules from all angles and are satisfied that the intention of the rule making authority was to retain the power to retire a civil servant on completion of 25 years' qualifying service without assigning any reason. Service Rules in Rajasthan were framed on the model of Civil Service Regulations and the Civil Services (Classification, Control and Appeal) Rules applicable to Central Services as they stood in 1950, the corresponding provisions of which were as follows: - CIVIL SERVICE REGULATIONS Art. 465a. :. . . . . . . . . . . . the rule for the grant of retiring pension is as follows: - (i) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years. . . . . . . . . . . . . . . . . . (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years', qualifying service or more, Note 1.- Government retains an absolute right to retire any officer after he has completed twenty-five years' qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer. CIVIL SERVICES (Classification, Control and Appeal) RULES. Rule 49.- The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely: - (i) Censure. (ii) Withholding of increments or promotion, including stoppage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. I Explanation - The discharge: - (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appoint ment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule. Rule 55.- Without prejudice to the provisions of the Public Servants Inquiries Act 1850, no order of dismissal, re0loval or reduction shall be passed on a member of a Service (other than an order based on facts which had led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged.
(3.) THE administrative decision of the Government of India on the provision of compulsory retirement under Note 1 to Art. 465 A as contained in G. I. M. H. A. letter No. 26/8/48-Ests. dated 17. 7. 1948 was as follows: - "it has been held that sec. 240 (3) of Government of India Act, 1935, (corresponding to Art. 311 (2) of the Constitution of India) is applicable to compulsory retirement effected in pursuance of Note 1 to Art. 465a of the Civil Service Regulations, as it stands, i. e. including the words "without giving any reasons etc. " Accordingly the officer concerned has to be given a reasonable opportunity to show cause against the proposed action under that Section. THE Government of India, however, add that the procedure laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules for formal proceedings against Govern ment servants before removing them from service is not meant to apply to cases of compulsory retirement mentioned in the preceding paragraph because Rule 5 5 should be read with Rule 49 of the Rules and regarded as applying only when dismissal, removal or reduction is imposed as a penalty under Rule 49. Compulsory retirement of an officer in pursuance of Note 1 to Art. 464-A of the Civil Service Regulations is not conceived as a "penalty" imposed "for good sufficient reasons" under Rule 49 but as the exercise of a right reserved to itself by Government under the Regulations. " Rule 244 (2) of the R. S. R. and notes 3 and 4 appended originally thereto were based on Article 465 A Note 1 and decision of the Government of India referred to above. The provision of Article 465a Note I came up for consideration before their Lordships of the Supreme Court in Shyamlal Vs. State of U. P. (1 ). It was held that compulsory retirement under it does not amount to removal and does not attract the provisions of Article 311 (2) of the Constitution or of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It was also held that compulsory retirement as contemplated under Note 1 to Art. 465 A of the C. S. R. is not repugnant to Article 311 of the Constitution. When the attention of the Government of Rajasthan was drawn to this decision Notes 2,3 and 4 to rule 244 of the R. S. R. were deleted and substituted by existing Note 2 in which it is mentioned that compulsory retirement under rule 244 (2) does not attract the provisions of Article 311 (2) of the Constitution and that it is not necessary to hold an inquiry in accordance with the procedure laid down in the C. C. A. R. for imposing the penalty of removal. This was done by F. D. Notification dated 1st February 1955 published in the Rajasthan Gazette dated 12. 2. 53 at page 697, Parti. Under the R. S. R. as they stood then there was no difference between the consequences of imposing the penalties of removal and of compulsory retirement before the age of superannuation. This was because both these penalties were treated as penalties of removal under clause (vi) of rule 15 of the Civil Services (Classification, Control and Appeal) Rules 1950 - "removal from the civil service which does not disqualify for future employment including compulsory retirement before the age of superannuation". The procedure provided in rule 16 of these rules was to be followed for imposing either of these two penalties. This rule 15 was however not susceptible of the interpretation that every order of compulsory retirement before the age of superannuation amounted to a penalty. ;