- (1.) THIS is a special appeal under sec. 18 of the Rajas-than High Court Ordinance, 1949, against the order dated April 21, 1970 by a learned Single Judge of this Court whereby the learned Judge allowed the petitioner's writ petition No. 159 of 1967, in part, and directed that the order of compulsory retirement of the petitioner shall take effect from the date of the order by the Central Government dated February 28, 1967 (Ex. 7), but disallowed the other reliefs. The State has not filed appeal from the order of the learned Single Judge but aggrieved by the order of the learned Judge the petitioner has preferred this appeal.
(2.) THE only point for decision in this appeal is whether the order of compulsory retirement of the petitioner by the Government of India dated February 28, 1967 (Ex. 7) is correct. Before we proceed to deal with the appeal on the merits, we have to decide a preliminary objection raised by Mr. D. S. Shishodia, Government Advocate for the State of Rajasthan, that the appeal has abated and must be dismissed as such as the appellant Keshavpuri expired during the pendency of this appeal and his legal representatives are not entitled to continue it. The appellant Keshavpuri, (deceased) was a member of the Indian Administrative Service posted in Rajasthan at the relevant time as Gold Control Officer-cum-Deputy Secretary to the Government of Rajasthan. By its letter dated November 5, 1965 (Ex. 1), the Government of Rajasthan, Appointments (A. I) Department gave a notice to Shri Keshavpuri that the Government of Rajasthan, had under the provisions of Rules 17 (2) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, and with the approval of the Central Government, decided in public interest to retire him from service with effect from the date of his attaining age of 55 years, i. e. . February 5, 1966. Here, it may be noted that under the Notification dated September 1, 1965 (Ex. 9) in exercise of the powers conferred by sub-sec. (1) of sec. 3 of the All India Services Act, 1951 (61 of 1951), the Central Government after consultation with the Governments of the States concerned, had amended the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, whereby, inter-alia, the following sub-rule (3) to rule 16 was inserted : - "the Central Government, in consultation with the State Government, may require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 years to retire in the public interest provided that at least three months previous notice in writing will be given to the member concerned. " By the same notification, old Rule 17 (2) which reads as follows was deleted : - "the State Government may, with the approval of the Central Government and after giving him at least three months previous notice in writing, require a member of the service, who has completed 30 years qualifying service, to retire from the service. " It will be noticed that before September 1, 1965, the State Government, with the approval of the Central Government, was competent to order compulsory retirement of a member of the Service. However, from September 1, 1965, this power vested in the Central Government. It appears that in ignorance of this change in law the notice of compulsory retirement (Ex. 1) was issued by the Government of Rajasthan. Realising this mistake, the Government of Rajasthan, issued another letter dated November 24, 1965 (Ex. 2) wherein it was mentioned that "rule 17 (2)" of the All India Service (Death-Cum-Retirement Benefits) Rules, 1958, appearing in line 2 of Ex. 1 may be corrected so as to read as "rule 16 (3 ). " Thereafter by letter dated December 22, 1965, (Ex. 3) the Government of Rajasthan ordered that Shri Keshavpuri on attaining the age of 55 years is retired from service with effect from 5th February, 1966 under rule 16 (3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. But the Accountant General, Rajasthan, Jaipur, while dealing with the pension case of Shri Keshavpuri noticed that the order for retirement of Shri Keshavpuri was not in conformity with Rule 16 (3) of the All India Services (Death-cum-Retirement Benefits) Rules inasmuch as the Government of India alone was competent to pass such order and, consequently, the Accountant General addressed a letter to the Government of Rajasthan (Ex. 4) to set the matter right. Yet by another letter (Ex. 5 ). the Accountant General requested the Government of Rajasthan that orders of the Government of India may be obtained in this matter so as to avoid legal complications at a later stage. Thereafter, on February 28, 1967, Government of India, Ministry of Home Affairs issued the following order (Ex. 7): - "government of India, Ministry of Home Affairs, ORDER No. 29/39/65-AIS (II ). In pursuance of the powers conferred by sub-rule (3) of rule 16 of the All India Services (Death-cum-Retirement Benefits)' Rules, 1958, the President, in consultation with the Government of Rajas-than, is pleased to order the retirement of Shri Keshavpuri, who attained the age of 55 years on 5th February, 1966, from the Indian Administrative Service in the public interest on the expiry of three months notice served on him with the approval of the Central Government in the order No. F1 (137) Apptts. (A) 51 dated 5th November, 1965 of the Government of Rajasthan. By Order of the President, Sd/- (P. K. Dave), Joint Secretary to the Government of India. New Delhi, the 28th February, 1967. To Shri Keshav Puri. " It is this order Ex. 7 which was challenged by Shri Keshavpuri by the writ petition on the following three grounds : - (i) that it is violative of the mandatory provisions contained in rule 16 (3) of the Rules, because no previous notice as required by law was given by the Central Government to the petitioner prior to the issue of the impugned order; (ii) that the notice served by the State Government Ex. 1 dated November 5, 1965, was illegal and void as it was issued in pursuance of the decision by the Government of Rajasthan, who had no authority to retire the petitioner, and (iii) that in any ease the order by the Central Government Ex. 7 cannot take effect retrospectively from 1966.
(3.) AS already stated above, the last ground, i. e. ground No. (iii) was accepted by the learned Single Judge and the writ petition was partially allowed. Shri Keshavpuri filed this special appeal on July 6, 1970 and expired during the pendency of this appeal on June 22, 1972. On the death of Shri Keshavpuri, his widow and other legal representatives were ordered to be brought on the record (vide order-sheet dated September 29, 1972 ). The preliminary objection raised by Shri D. S. Shishodia is that the right involved in this case was purely personal to Shri Keshavpuri and consequently, his legal representatives cannot maintain the appeal. In support of his contention, he has relied upon Gul Mohammad vs. The Union of India (1), Vridhachalam vs. State of Mad. (2), T. N. Venkatanathachari vs. State of Andhra Pradesh (3), Roshan Lal vs. Union of India (4) and Phool Rani vs. Maubat Rai Ahlu-walia (5 ). In this connection, he has also referred to sec. 306 of the Indian Succession Act. He has further argued that all that the legal representatives of Shri Keshavpuri can claim is arrears of salary and other emoluments which Shri Keshavpuri would have been entitled to in case the impugned order was set aside, but a suit for arrears of salary and emoluments cannot be filed now on account of the bar of limitation under Art. 102 of the Limitation Act, 1963. To fortify his submission in this respect, he has relied upon Jai Chand Sowhney vs. Union of India (6 ). On the other hand, Mr. A. K. Mathur, learned counsel for the appellant, submits that if the Government passes on unconstitutional or wrong order, which is sought to be declared null and void, it is no legal right of the Government to say that the order should not be annulled merely because in the changed circumstances the Government would not be able to pass a fresh order, in accordance with law. He goes on to argue that if the officer is dead, before the annulment of the order, that cannot take away the legal rights of the heirs of the deceased to claim emoluments, to which the deceased would have been entitled if the order of his illegal retirement from service were found to be illegal. In short, his submission is that the right to continue the appeal survives to the legal representatives. In support of his submission, he has relied upon Manmohan Anand Vs. State of Punjab (7), Jang Bahadur Vs. Union of India (8), Ibrahim Bhai Vs. State of Gujarat (9) and C. Rly. , Workshop, Jhansi vs. Vishwanath (10 ). As to the question of limitation, for a suit for arrears of salary and. other emoluments, Mr. Mathur has relied upon State of MP. vs. State of Maharashtra (11 ). ;