Shiv Kumar Sharma, J. - (1.) The petitioner vide order dated Feb. 15, 1988 was retired compulsorily under Rule 244(2) of the Rajasthan Service Rules 1956 (for short the Rules) when he was 49 years of age. Instant writ petition was instituted by him on April 18, 1988 seeking quashing of the aforequoted order and direction that he be declared in continuous service. Validity of Rule 244(2) of the Rules and amendment in clause (a) to Rule 3 of the Rajasthan Tehsildars Service Rules 1956 has also been called in question by the petitioner.
(2.) The petitioner has by now almost completed 60 years. Had he been not retired compulsorily, he would have been otherwise superannuated. In view of this examining the validity of the aforementioned Rule 244(2) shall only be academic exercise. The questions that remain to be considered are whether the petitioner was victim of malafide action on the part of Mr. J.M. Lalwani, Ex. Chairman Board of Revenue Rajasthan (Respondent No. 4) and whether amendment in clause (a) to Rule 3 of the Rajasthan Tehsildars Service Rules 1956 was justified. Mr. J.M. Lalwani was Chairman of Board of Revenue from 1979 to 1982. It appears that Mr. J.M. Lalwani placed the petitioner under suspension vide order dated April 1, 1982. The State Government after withdrawal of strike of the employees issued a wireless message on April 9, 1982 to withdraw the order of suspension but Mr. J.M. Lalwani despite the wireless message, did not reinstate the petitioner and the petitioner was reinstated by the successor of Mr. J.M. Lalwani. The petitioner was retired compulsorily on Feb. 15, 1988 and I do not see any reason to connect the incident of 1982 with the order passed in the year 1988. From the material on record it is not established that the petitioner was victim of malafide action.
(3.) Under Rule 30(2) of the Rajasthan Tehsildar Service Rules 1956 'Board of Revenue' was the appointing authority of the petitioner. Amendment was made in clause (a) to Rule 3 of the aforequoted Rules of 1956 by insertion of new expressions 'appointing authority' substituting the word 'Chairman' for the words 'Board of Revenue' vide Notification dated July 19, 1982. It was contended by the learned counsel appearing for the petitioner that at the time of appointment of the petitioner, Board of Revenue was the appointing authority and in view of guarantee laid down under Article 311(1) of the Constitution, it was not open for the respondents to substitute the word 'Chairman' in place of 'Board of Revenue' and this extent the amendment made vide notification dated July 19, 1982 was unconstitutional as the petitioner was deprived of an accrued right vested in him under a statute. Reliance was placed on U.O.I. v. Tushar Ranjan Mohanti (1994) 5 SCC 450 wherein it was indicated that though the Legislature and the competent authority has power under Article 309 of the Constitutionof India to make laws with retrospective effect yet this power cannot be used to justify the arbitrary illegal or unconstitutional acts of the executive.;