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1953 DIGILAW 105 (KER)

Zainuddin v. State

1953-08-18

KOSHI, M.S.MENON

body1953
Judgment :- 1. The petitioner was an Assistant Excise Commissioner in the service of the Travancore-Cochin State and his prayer is for an appropriate writ or direction quashing an order of the Travancore-Cochin Government, No. S5-3672/50/CS dated the 16th August 1950 (Ext. A) and for consequential reliefs. The order in question reads as follows: "Government sanction the retirement from service of Sri. M. Zainnudin, Assistant Excise Commissioner, forthwith." 2. In pursuance of the order the petitioner had to hand over charge of his office and according to him the order amounts to a dismissal or removal from service in violation of: (a) Art. 311(2) of the Constitution in that he was not given an opportunity to show cause against the action proposed to be taken; (b) Art. 320(3) of the Constitution in that the State Public Service Commission had not been consulted, and (c) The Travancore Service Regulations which have been preserved by Art. 313 of the Constitution. 3. According to the State there has been no dismissal or removal from service and what we are dealing with is not a case of disciplinary action at all but an order directing the retirement of an officer on his attaining the superannuation age of 55, his age being calculated in pursuance of a general governmental decision on the basis of his date of birth as entered in the College records in preference to the one given in the Civil List. 4. Ext. VIII is the application made by the petitioner for admission to the F.L. Class of the Law College on the 3rd July 1922 and Ext. IX is a similar application made by him to the same College for the admission to the B.L. Class on the 7th July 1923. In both the applications he has clearly stated that his date of birth was 30.1.1069 (M.E.) and both the applications conclude with the declaration: "I do hereby solemnly declare that to the best of my belief the information I have given above is correct." 30.1.1069 (M.E.) corresponds to 13th September 1893 and if that date can afford a basis, there can be no doubt that the petitioner was well past the superannuation age of 55 on the 16th August 1950 when the State by Ext. A directed his retirement from the Government service. 5. A directed his retirement from the Government service. 5. The petitioner's date of birth as it originally appeared in the Civil List was 2.4.1076 (17th November 1900). On the 5th of January 1942 the Government of Travancore issued a circular (Ext. N) in the following terms: "Instances of incorrect entries of the ages of Government servants in their records of service having frequently come to notice, Government are led to believe that the instruction contained in Art. 352(c) of the Travancore Service Regulations regarding evidence of age have not been correctly followed by Heads of Departments and Offices who are also partly responsible for such wrong recordss., A system seems to have grown up under which the ages of Government Officers were for various reasons either over-stated or under-stated at the time they entered service Government have now resolved that the system should be rectified. One year's time is given from 1.1.1942 to all public servants in the State to make any correction that they wish to make in their recorded ages. If after the expiry of this period any discrepancies are found out, Government will take suitable disciplinary action and the pensions of the officers may also be affected, Heads of Departments and Officers are, therefore, directed to issue the necessary instructions in the matter to all subordinates and arrange for the necessary corrections based on proper evidence being made promptly as and when cases are brought to their notice after obtaining the necessary sanction therefor." Subsequent to the circular the petitioner made a representation to the Government of Travancore (Ext. V) through the Excise Commissioner, Trivandrum, stating that the date of his birth as entered in the Civil List was wrong and that it should be corrected as the 22nd June 1899 (9.11.1107 M.E.) He also forwarded a horroscope in support of his request. The order of the Government on the representation is embodied in Ext. VII, the reply to the Commissioner of Excise dated the 8th January 1943: "With reference to your letter No. 15280/E 1465 dated the 16th December, 1942, I have the honour to inform you that Government sanction the date of birth of Mr. M. Zainnuddin, I Grade Excise Inspector, being corrected as 22nd June 1899 corresponding to 9th Mithunam 1074. The horroscope of the Inspector received with your letter under reference is returned herewith." 6. On the date of Ext. M. Zainnuddin, I Grade Excise Inspector, being corrected as 22nd June 1899 corresponding to 9th Mithunam 1074. The horroscope of the Inspector received with your letter under reference is returned herewith." 6. On the date of Ext. A -16th August 1950 - the entry in the Civil List was the corrected date, namely, the 22nd June 1899 and if that entry should form the basis, the petitioner had certainly not reached the superannuation age of 55 and will do so only by the 22nd June 1954. 7. The Government's decision to prefer the dates given in the College records in all cases of discrepancy between those dates and the dates given in the Civil List was embodied in a Press Note dated the 20th February 1950. That Press Note is extracted in 1952 I.L.R.T.C. 756 - a decision in which many of the aspects we are asked to consider have been fully considered - and it reads as follows: "The Government have decided that action will be taken on the following lines in the case of officers whose official and academic ages differ: (i) Gazetted Officers with over 25 years' service will be compulsorily retired. (ii) Gazetted Officers with less than 25 years' service and non-gazetted officers will be required to accept the dates of birth in the College Admission Register as the correct age". 8. As pointed out in (1953) S.C.A. 293; "The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank. Under S. 240 of the Government of India Act, 1935, the safeguards were limited to those two cases. Under the present Constitution, a third was added, namely, removal from service". The judgment goes on to say : "In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rules which governed, and with modifications still govern, the "services" in India because of Art. 313 of the Constitution". "Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and Discipline includes R. 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. "Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to conduct and Discipline includes R. 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct. They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service. The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely, reduction in rank and dismissal from service. The Constitution has added a third to the list. The distinction which is drawn between the two is explained in R. 49. There is first removal from service "which does disqualify from future employment" and there is next dismissal from service "which ordinarily disqualifies from future employment". 9. The main contention on behalf of the petitioner is that the implementing of the decision embodied in the Press Note in a case like the present with the consequent severance of the nexus of employment prior to the date of superannuation as calculated according to the entry in the Civil List amounts to a dismissal or removal from service. This is a contention with which we are not prepared to agree. 10. The petitioner was asked to hand over charge not by way of a penalty or punishment for any act or default of his. He ceased to be a Government servant simply because of a governmental decision to calculate his age of retirement as of other officers similarly placed according to their College records in preference to the entries in the Civil List. Such a decision however detrimental to an individual officer cannot possibly be construed as punishment inflicted upon him and in that view no question of statutory safeguards or their violation will also arise for consideration. 11. It is true that the petitioner was given an opportunity to explain the discrepancy between the entries in the college records and the Civil List (Ext. H1), that he submitted an explanation (Ext. H) and that the Government considered the said explanation unsatisfactory (Ext. G). This was urged as a circumstance to show that the retirement ordered was a punishment for the giving of a false date of birth and not merely the result of a governmental policy to accept in cases of discrepancy one type of document in preference to another. We are unable to agree. 12. G). This was urged as a circumstance to show that the retirement ordered was a punishment for the giving of a false date of birth and not merely the result of a governmental policy to accept in cases of discrepancy one type of document in preference to another. We are unable to agree. 12. The only further question that has to be considered is whether the Government of Travancore-Cochin is in any way precluded from proceeding on the basis of any date other than that given in the Civil List by virtue of the provisions of the Travancore Service Regulations. Regulation 352F(c) of the said Regulations provides that: "Once the date of birth has been accepted and recorded in the service register, it should form conclusive evidence of the same in respect of all future governmental transactions." Such a provision in the Service Regulations cannot in our opinion bind the discretion of the State, and a decision on the lines embodied in the Press Note is well within its competence. 13. In his petition to this Court the petitioner has summed up his position regarding this part of the case as follows: "The Travancore Service Regulations have gained statutory force by virtue of Art. 313 of the Constitution of India. Their infringement is tantamount to violation of the Constitution." This is clearly incorrect. Art. 313 of the Constitution is only a transitional provision which provides that Regulations like the Travancore Service Regulations shall continue in force so far as they are consistent with the provisions of the Constitution and the Art. does not in any way make an infringement of those Regulations a violation of the Constitution itself. 14. At one stage of the correspondence that led up to this petition (Ext. B and Ext. IV) the Government seems to have taken the view that its action can be justified under the Note to Regulation 309 of the Travancore Service Regulations. That Note reads as follows: "Government retains an absolute right to retire any officer after he has completed 25 years' qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. That Note reads as follows: "Government retains an absolute right to retire any officer after he has completed 25 years' qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised, except when it is in the public interest to dispense with the further services of an officer." To this stage belongs the concession given to the petitioner by which the petitioner's qualifying service which was less than 25 years on the date he was ordered to be retired was raised to 25 years (Exts. J and M) by giving him credit of an ex gratia service of ten months and fourteen days. It is unnecessary for us to decide in this case whether an action under the Note to Regulation 309 will amount to dismissal or removal from service as we have come to the conclusion that it is not in pursuance of that Note that the services of the petitioner were terminated but on superannuation by reaching the age of 55, his age being calculated on the basis of his College records in pursuance of a definite governmental policy in that behalf. 15. In the light of what is stated above our conclusions are: 1. that the Government was clearly within its rights in deciding that in all cases of discrepancy between the dates of birth as entered in the College registers and the Civil Lists the former shall prevail; 2. that such a decision does not violate any of the provisions of the Constitution: 3. that even if the implementing of the decisions acts to the detriment of an officer it does not savour of a penalty and where it leads to a premature retirement on the basis of the Civil List though not of the College records it does not amount to a dismissal or removal from service; and 4. that the petition should be dismissed. 16. The State's invocation of Regulation 309 of the Travancore Service Regulations and the lack of precision and promptness in the correspondence concerned may have to some extent confused the issue and led to the present petition. In view of this even though the State succeeds, we think we should direct the parties to bear their respective costs. Dismissed.