D. P. Gupta, J. - (1.) Heard learned counsel for the petitioner. The petitioner was employed as a Head Constable by the order Ex. 1 with effect from April 4, 1950. While he was working as such, certain charges were levelled against him and by the order dated May 31, 1975, he was held guilty of grave irregularities and of making false entries in the police records. Consequently, the punishment of reduction in rank or demotion to the post of a Constable for a period of three years was imposed upon the petitioner. During this period, while the petitioner was working on the post of a constable, he was compulsorily retired under Rule 244 (2; of the Rajasthan Service Rules (hereinafter referred to as the Rules') by the order of the Superintendent of Police, Nagaur, dated August 28, 1976 and a Bank Draft in respect of three months' pay and allowances, in lieu of three months' previous notice was given to him. The petitioner has challenged the order of his compulsory retirement by means' of the present writ petition.
(2.) The first submission of learned counsel is that the order of compulsory retirement of the petitioner amounts to the imposition of the penalty of compulsory retirement on proportionate pension, as provided in Rule 14 (v) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1955' Learned counsel argued that compulsory retirement of the petitioner, at the time when he was working on the post of a constable on account of his temporary reduction in rank for a period of three years, caused loss of earned benefits to the petitioner, because the amount payable to him by way of pension would thereby be reduced. Learned counsel relied upon the decisions of their Lordships of the Supreme Court in Parshottam Lal Dhingra v. Union of India (A I.R. 1958 Supreme Court 36) and Shyam Lal v. State of Uttar Pradesh (A.I.R. 1954 Supreme Court 369) . In Purshottam Lal Dhiagra's case (supra), it was held by S.R. Das, C. J. "Likewise the termination of service by compulsory&retirement in terms of a specific rule regulating the conditions of service is not tantamount to the instruction of a punishment and does not attract Art. 311(2)............It is true that the misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to lake action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists, under the contract or the rules to terminate the service, the motive operating on the mind of the Government is,.........wholly irrelevant." The petitioner was punished alter a proper enquiry and he was reduced in rank to' the post of a constable tor a period of three years, which resulted in the reduction of his pay and allowances and the loss of his seniority and postponement of his future chances of promotion. However, by the order of compulsory retirement of the petitioner it cannot be said that he was visited with any evil consequences. The argument of the learned counsel is that had the petitioner not been compulsorily retired within this period of three years, during which he was demised to the post of a constable and would .have been retired thereafter, then he would have been enrolled to obtain the pension payable on the post of the Head Constable and even if the petitioner would have been retired prior to the infliction of the aforesaid punishment upon him, then also he would have received the pension payable to him as a Head Constable, the answer to this submission is simple. If the petitioner would have attained the age of superannuation or would have expired or would have been otherwise incapacitated during the period he was working as constable, on account of the punishment imposed upon him earlier by the order dated May 31, 1975, in that event he would have received only such pension as was payable according to the rules applicable to him at the relevant time. Similar will be the situation on his compulsory retirement, under the provisions of Rule 144 (2) of the Rules, during the period the petitioner worked' on the post of a constable. In Shyam Lal's case (supra) their Lordships of the Supreme Court observed that compulsory retirement leaves no stigma or implication of misbehaviour or incapacity and it has no effect of causing loss of benefits already earned, their Lordships expressed similar view in the aforesaid case and observed:- "On compulsory retirement, he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit, it is sard that compulsory retirement like dismissal or removal, deprives the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension and that is certainly a punishment, it is true that in that wide sense the officer may consider himself punished but there is a clear distinction between the loss of benefit already earned and the loss of prospect of earning something mere. In the first case it is a present and certain loss and is certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of law as a punishment....... (emphasis added) If the aforesaid principle is applied to the present case, the petitioner cannot be held to be deprived of any earned benefits as he will be entitled to get his pension at the rate prescribed according to the Rules in force at the time of his compulsory retirement. I may observe here that to obtain the pension according to the Rules may be an earned benefit but to get the pension at a particular rate cannot be termed as an earned benefit. The State Government has altered from time to time the basis as well as the rate at which the pension is to be calculated or paid to its employees on retirement. If at present, under rule 250 (C) of the Rajasthan Service Rules, the pension is to be calculated on the basis of the emoluments which the officer received immediately before his retirement, it cannot be said that the order of compulsory retirement of the petitioner has deprived him of any earned benefits. The period of service rendered by the petitioner as a constable as well as a Head Constable will certainly be counted for the purposes of calculating the amount of pension and gratuity payable to him. What amount should be considered as 'emoluments' for the purpose of calculating the quantum of pension and gratuity payable to the petitioner is a subject matter of the rules prevalent at the particular time when the order of compulsory retirement ,is passed or the Government servant is otherwise superannuated 1 am, therefore, unable to accept this contention of the learned counsel.
(3.) Another submission made by learned counsel was that Appendix-9 contained in the Rules (Volume II) has been amended by the order Ex. 4 dated September 19, 1975 passed by the Governor in administrative capacity and that it was not a rule made under Article 309 of the Constitution and as such the said amendment was illegal. This argument also deserves to be repelled. Rule 7 (6) of the Rules provides that a competent authority in relation to the exercise of any power means the Governor or any authority to which the power is delegated by or under the Rules Further, Rule 5 provides that the Government may delegate, to any of its officers subject to any conditions which it may think fit to impose, any power conferred upon or taken under the Rules. Thus, the Government was perfectly justified within its authority to delegate the power of compulsory retirement under Rule 244 (2) of the Rules to such officers and subject to such conditions as it deemed proper and the order of delegation by the Governor dated September 19, 1975 is in accordance with the provision of Rule 7 (6) read with Rule 5 of the Rules. The delegation made under Appendix-9 to the Rules (Volume II) has been held to be valid by their Lordships of the Supreme Court in Tara Singh v. State of Rajasthan (A.I.R. 1975 Supreme Court 1487) .;