BERI J. - (1.) THIS is a petition under Art.226 of the Constitution of India. The petitioner has prayed for a writ of certiorari for quashing the order passed by the Inspector General of Police, Rajasthan, Jaipur, compulsory retiring the petitioner under R. 224(2) of the Rajasthan Service Rules.
(2.) THE petitioner joined the service of the erst-while State of Alwar in 1926. In 1948 in Matsya State the petitioner was a Circle Inspector. When the Matsya State came to merge in the State of Rajasthan the petitioner was holding the rank of a Circle Inspector and in 1952 he was confirmed on that post. THE petitioner alleges that he has had a spotless career and his name stands included in the list of promotion and appointment as Deputy Superintendent of Police. In point of fact the petitioner says that he had acted as Deputy Superintendent of Police on two occasions. THE petitioner says that he has been often deputed to discharge difficult duties and presumably as a result of his recognised efficiency his name was included in the list of 12 persons who were recommended for Police Medal. On nth April, 1960 the Inspector General of Police ordered that the petitioner be compulsorily retired under R. 244(2) of the Rajasthan Service Rules. THE petitioner made a representation and without availing himself of the leave preparatory to retirement he continued to hold the office of Circle Inspector until 2nd September, 1960 when he was called upon to relinquish his charge pursuant to the aforesaid order. As a result of the above order passed by the Inspector General of Police the petitioner says that he has been deprived of his full pension and he has otherwise been prejudiced in his career. He challenges the order as being illegal on various grounds. He says that the Inspector General of Police had no jurisdiction to pass the order of his compulsory retirement under R. 244(2) of the Rajasthan Service Rules as he was a State servant and could be only dealt with under that Rule by the Government itself. The respondent have submitted an answer to this petition. They dispute that the services of the petitioner were uniformly of good order. It is stated on behalf of the respondents that the State Government under order No.F. 24(55) Apptts/A/57 dated 27th November, 1958 constituted a committee to scrutinize the cases of gazetted officers for compulsory retirement under R.244 (2) of the Rajasthan Service Rules and it recommended that action under R.244 (2) betaken against the petitioner. This recommendation of the committee was accepted by the Home Minister of the State and was eventually approved by the Chief Minister. Thereafter it was communicated by the Inspector General of Police to the petitioner. The respondents submit that the order has been passed properly and also by an authority competent to do so. We have heard Shri Ved Pal Tyagi for the petitioner and Shri Rajnarain, Assistant Government Advocate on behalf of the respondents. Shri Tyagi has contended that the petitioner held the rank of a Circle Inspector which is a Gazetted post in the State service and, therefore, he could only be appointed and removed by the Government. Under R. 244 (2) it is the State Government again who retains an absolute right to retire a Government servant after he has completed 25 years qualifying service without giving any reasons to the civil servant. This right is to be exercised in the public interest. Therefore, Mr. Tyagi contends that the Inspector General of Police had no authority to exercise the powers under R. 244 (2) of the Rajasthan Service Rules in respect of the petitioner. The learned counsel further contended that under R. 12 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 the appointments to a State Service have to be made by the Government or by an authority specially empowered by the Government in that behalf. The petitioner thus could not be retired under R. 244(2) by the respondent No.1. The learned counsel also urged that under the Business Rules framed under Art. 166 clauses (2) and (3) read with Art. 238 of the Constitution of India it is the Chief Minister and the Governor alone who can decide cases falling under R. 244(2) of the Rajasthan Service Rules. He invited our attention to R.31(vii) of the Business Rules and he placed before us a copy of these Rules, the correct-ness of which has not been controverted on behalf of the State. It will be apporpriate at this stage to examine the relevant rules. R.244(2) of the Rajasthan Service Rules. - 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." R.31(vii) of the Business Rules. - "31. The following classes of casts shall be submitted to the Rajpramukh and the Chief Minister before the issue of orders..... Proposals for dismissing, removing or compulsory retiring of any officer where the appointing authority is the Government." Mr. Kan Singh contends that under R. 31 (vii) of the Business Rules only such cases of compulsory retirement are placed before the Governor as is imposed by way of penalty and not cases of compulsory retirement contemplated by R. 244 (2) of the Service Rules. We are unable to accept that contention. The Rajasthan Service Rules under Article 309 of the Constitution of India were made in 1951. The Business Rules under Article 166 of the Constitution were made in 1955 and the retirement by way of a penalty came to be added in r.14 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules in 1959-From this historical retrospect it is more than evident that when the Business Rules were formulated the framers had only R. 244 (2) of the Rajasthan Service Rules in their mind. They could not have obviously anticipated that compulsory retirement would come to be included as penalty in 1959. R. 31(vii) therefore, clearly contemplated esses of compulsory retirement under R. 244 (2) and not only cases of premature retirement by way of penalty envisaged by R. 14 (v) of Civil Services (Classification, Control and Appeal) Rules. Again, it appears that R. 31 (vii) of the Business Rules itself does not make any distinction between a compulsory retirement as contemplated by R. 244 (2) of the Rajasthan Service Rules and R. 14 (v) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules. What is insisted by R. 31 is that cases of compulsory retirement shall be submitted to the Chief Minister and the Rajpramukh (now the Governor) before issuance of any order in those cases. It is nobody's case that at any point of time the case of the petitioner was submitted to the Rajpramukh, now the Governor. The doctrine of holding office during the pleasure of the President and the Governor as the case may be, appears to have been partly embodied in R. 244 (2) of the Rajasthan Service Rules. Both from the language of the R. 244 (2) as well as from the nature of this doctrine it would appear that where the law has repo;:ed confidence for the exercise of this pleasure in a particular functionary it is that functionary alone who can exercise this discretion and none else. A close examination of R. 244 (2) reveals that it is the Government alone which has retained the absolute right to retire any Government servant of the petitioner's rank after he has completed 25 years qualifying service without giving any reasons. The right also is to be exercised in cases where public interest so demands. The determination whether public interest demands retirement in such cases or not is the responsibility of the said functionary and is a matter within his discretion. This Rule when read with R. 31 (vii) of the Business Rules would appear to have re-emphasised that this function, the Governor and the Chief Minister in a case of this nature have reserved tor themselves to perform. Its performance by any other functionary, however high, would not be in accordance with law. In the case before us,we have already noticed that the petitioner's case never travelled the Chief Minister, to the Governor as it should have done under R. 31 (vii) of the Business Rules. The words are "the Rajpramukh and the Chief Minister" and not "the Rajpramukh or the Chief Minister" (the underlines are ours). In this view of the matter we have no option but to quash the order No.PHQ-A/ Estt-REtm-2(1) 58/877 dated the 11th April, 1960, passed by the Inspector General of Police, which is invalid and ineffective. This writ petition is, therefore, allowed and the petitioner entitled to his costs.;