- (1.) THE petitioner was born on 1-11-1922 He was appointed as Sub-Inspector of Police in the Police Department of ert while Princely State of Bikaner, on 1-8-1947. THE petitioner was confirmed as Sub Inspector on 6 9-1952 with effect from 1-8-1952. He was thereafter promoted as Inspector of Police by the Inspector General of Police vide his order dated 27-7-1957. He was compulsory retired under a notice dated 25-11-1972 issued by the Inspector General of Police Rajasthan under Rule 244 (2) of the Rajasthan Service Rules, hereinafter called 'the Rules', requiring the petitioner to retire with effect from the date of expiry of three calendar months from the service of the aforesaid notice on the petitioner This notice was received by the petitioner on 29-11-1972 and as such the services of the petitioner were to come to an end on 1 3-1973 under the aforesaid notice.
(2.) ANOTHER order No. 734 dated 4-12-1972 was issued by the District Superintendent of Police, Sikar, vide Ex. 3 whereunder it was ordered that the petitioner shall compulsory retire retrospectively with effect from 30th November, 1972 fore-noon. Yet another order issued by the Inspector General of Police on 13-2-1973 purporting to be under rule 244 (2) of the Rules ordering the compulsory retirement of the petitioner retrospectively with effect from 4-12-1972 fore noon vide Annexure 4. It may be mentioned here that the petitioner while working as Home Inspector in the office of the Superintendent of Police was granted extra-ordinary leave from 25-1-1966 to 28-3-66, and 8-4 66 to 5-9-66 i. e. for 214 clays (7 months and 4 days ). This period, it is not disputed, cannot be computed for the purpose of 25 years qualifying service. The petitioner has, therefore, challenged his order of compulsory retirement on various grounds the principal ground being that the petitioner had not completed the 25 years qualifying service when the original order of compulsory retirement by the Inspector General of of Police and therefore, the retirement was bad in law. It was further contended by the petitioner that the subsequent orders dated 4-12-1972, 13-2-1973 and 20-7-76 passed by the various authorities of the Police were not valid as they did not fulfill the requirement of Rule, 244 (2) of the Rules and deserves to be quashed The petitioner, therefore, on the above grounds and some other grounds prayed for quashing of the orders dated 25-11-72, 4-12-72, 13- 2-73, and 20-7-76, in this writ petition. The writ petition has been opposed by the State. The State has admitted that the petitioner had availed extraordinary leave of 214 days but as the same was not entered in the service book this period could not be excluded from the qualifying service. However, lateron this period was excluded and the compulsory retirement order of the petitioner was modified by the Inspector General of Police after concurrence of the State Government vide his order dated 20-7-76 (Ex. 9 ). The main anchor sheet of the State defence is that the original order dated 25-11-72 although bad was subsequently modified and, therefore, the petitioner cannot challenge the order of retirement. It has been firstly argued by the learned counsel for the petitioner that the original orders relating to compulsory retirement of the petitioner dated 25. 11. 1972, 4. 12. 72, 13 2. 73 were void as they tended to premature retire the petitioner before he had completed 25 years qualifying service. This fact is not disputed by the State also The State has frankly admitted that as the petitioner had availed 214 days extraordinary leave that period has to be excluded while computing the 25 years qualifying service. If that period is excluded then the petitioner could not be held to have completed 25 years of qualifying service, It is, however, contended by the State that the orders pertaining to compulsory retirement of the petitioner was rectified by modifying it by order dated 20-7-76. Under Ex. 9 the petitions was to compulsorily retire with effect from 6. 7. 1973 instead of 4. 12 72 as specified in Ex. 4 dated 13-2-73. Now this order is not pass d in presuance of rule 244 (2) by applying independently the mind but is merely a mod fiction of the order date 13-2-1973 The orders dated 25. 11 72, 4-2-72 and 13-2-1973 were void and the void orders are not capable of being rectified or modified as till then the petitioner has not completed 25 years of qualifying service. The position of law in this behalf is well settled. If the original order is void and inoperative the fact that the order was confirmed on appeal by the Head of the Department cannot cure the initial defect. Likewise if the initial order of compulsory retirement is void it is non est and is not at all capable of rectified or modified The reason is, what is void, is a nullity. Such an order is lifeless order and life cannot be infused into it by subsequent rectification or modification In M. S. Subramainam vs. B. S. D. Baliga (1) it has been held that a notice for a short period would not be a notice in accordance with the provisions of the Rule of the compulsory retirement. In other words it is not a notice at all and it would be ignored. It has further been held that subsequent extension of time for making up the deficit of time is not at all permissible and would not make the original notice which was otherwise invalid, to be a valid notice. In Shri Desraj Bhatia vs. The State of Himachal Pradesh (2) it has been held that the order of compulsory retirement with retrospective effect cannot be held to be valid as there is nothing in the fundamental rule 54 which envisages the pissing of the order of retirement with retrospective effect. In Baradakanta Mishra vs. High Court of Orissa (3) it has been held that if the order of the initial authority is void, order of the appellate authority cannot make it valid. The reason is that the void order cannot make it valid. The reason is that the void order cannot have legal force and therefore is not capable of being rectified or modified. In Mysore State Road Transport Corporation vs. Mirja Khasim Ali Beg (5) an employee of Mysore State Road Transport Corporation was dismissed by the Subordinate Authority although the appointment was made by the Head of the Department. The order of dismissal was, therefore, without jurisdiction and void and inoperative, having been passed in contravention of Art. 311 (2) of the Constitution of India However, that order was challenged by way of appeal by the employee and the Head of the Department who was the appellate authority, confirmed the order of the subordinate authority in appeal. It was held that the fact that the order was confirmed on appeal by the Head of the Department cannot cure the initial defect. The position of law is well settled that if the original order is void the defect cannot be remedied by mere modification or rectification of the order. Now in the instant case it is not in dispute that the original orders dated 25-11-1972, 4-12-1972, and 13-2-73, were void and without jurisdiction having been passed in contravention of Rule 244 (1) of the Rules. Such orders obviously could not have been rectified or modified by the subsequent order under Ex. 9 as has been sought to be done by the Inspector General of Police. The Inspector General of Police could not remedy the invalidity in the original orders by merely substituting extended date in place of the original date contained in the orders. It is also well settled that it was beyond the competence of the Inspector General of Police to have modified the order dated 25-11-1972, by his order dated 20 7. 1976, with retrospective effect from 20 7. 1976. Such a course of action is not at all permissible under the Rajasthan Service Rules. If we look at Rule 244 (1) of the Rules it will be at once be clear that compulsory retirement with retrospective operation is beyond the purview of rule 244 of the Rules The Inspector General of Police could not have validated the order by extending the date of compulsory retirement with retrospective effect. Ex. 9 dated 20-7-76 modifying the date of compulsory retirement with retrospective effect is equally void and has no legal existence. Such orders could not terminate the services of the petitioner. The result is that the petitioner's services having not been lawfully terminated he still remains in service. Accordingly, the writ petition is accepted. The impugned orders dated 25-11-72, 4-12-72, 13-2-73, and 20-7-76, are quashed, The respondents are directed to treat the petitioner to be in service and allow him all the benefits which he would have lawfully received but for the above illegal orders of compulsory 'retirement. In the facts and circumstances of the case the parties are left to bear their own costs. . ;