CHAUHAN, J. - (1.) SHRI Hemant Choudhary was directed to take notice on behalf of the respondent department and he was served copy of the petition and learned counsel for the parties were heard.
(2.) THE instant writ petition has been filed against the order dated 12. 5. 2000 passed by the Rajasthan Civil Service Appellate Tribunal by which the order of compulsory retirement dated 1. 12. 1997 has been set aside but back-wages had not been given. The facts and circumstances giving rise to this case are that present petitioner was a Patwari in the Colonisation Department and he had been compulsorily retired vide order dated 1. 12. 1997. The said order was challenged before the Tribunal only on the ground that the order dated 1. 12. 1997 compulsorily retiring the petitioner-appellant was passed under the provisions of Rule 244 (2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as `the Rules of 1951') though the said Rules had been repelled by the Rajasthan Civil Service (Pension) Rules, 1996 (hereinafter referred to as `the Rules of 1996') and as the order dated 1. 12. 1997 had been passed giving reference to the Old Rules, the order of compulsory retirement was bad and was quashed. As the order of compulsory retirement dated 1. 12. 1997 was quashed on technical ground and not examining the merit of the case, the learned Tribunal did not award the back-wages on the principle of "no work no wages". Hence, this petition. Admittedly, the judgment and order of the Tribunal quashing the order dated 1. 12. 1997 is only on the ground that on 1. 12. 1997 the Rules of 1951 were not in application and the order could have been passed under the Rules of 1996 and in view of the fact and as the Rules of 1951 stood repealed by the Rules of 1996, the order stood vitiated. It is settled legal proposition that mere mentioning a wrong statutory provision does not vitiate the order, if the authority had the power to pass the said order. Thus, vide order dated 21. 12. 2000 this Court suo moto issued notice to the petitioner to set aside the judgment and order of the Tribunal in view of the above settled legal proposition. Being aggrieved and dissatisfied of the said show cause notice, the petitioner preferred the Special Appeal that the Court could not suo moto take such an action and the special appeal was dismissed vide order dated 16. 2. 2001 and the petitioner was directed to file the reply to the said show cause notice.
(3.) SHRI Jain, learned counsel appearing for the petitioner has filed the reply to show case notice and the matter has been considered with the help of SHRI Hemant Choudhary, learned counsel appearing for the respondent. It has been submitted by Shri Jain that there is a difference in the statutory provisions of Rules of 1951 and Rules of 1996. Rule 244 (2) of the Rules of 1951 provides for absolute right of the appointing authority to retire the employee in public interest while Rule 53 (1) of the Rules of 1996 merely provides that an employee may be required by the appointing authority to retire in the public interest. On the other hand, Shri Choudhary has submitted that both the provisions empowers the appointing authority to pass an order of compulsory retirement after examining the service record of the employee and in both these cases the power of the appointing authority is absolute though the power is to be exercised objectively and there must be attending circumstances which may require the order of compulsory retirement. ;