Gangaram v. State of Rajasthan — 1961 DIGILAW 3 (RAJ)

JAGAT NARAYAN, J.—These are three writ petitions under Art. 226 of the Constitution by three permanent member? of the Rajasthan Administrative Service directed against an order of the Government of Rajasthan compulsory retiring them from service under Rule 244(3) of the Rajasthan Service Rules with effect from 1.1.1960 without giving them an opportunity of showing cause against it. They can conveniently be disposed of by one judgment as the main ground taken in all of them is the same, namely that the order retiring them compulsory from service before the age of superannuation is void and inoperative as it was passed without giving them an opportunity of showing cause against it. The petitions were contested on behalf of the State, 2. The relevant part of the impugned order runs as follows?— "The following officers are retired compulsorily from the Government Service, in the public interest, under Rule 244(2) Rajasthan Service Rules, with effect from the 1st January 1960:— (1) Shri Ganga Ram Purohit, R.A.S. (2) Shri Sohan Lal Surana, R.A.S. (3) Shri Amar Nath Purohit, R.A.S." Rule 244 of the Rajasthan Service Rules is reproduced below: — Optional retirement after completing 30 years of service—(1) A Government servant may retire from service any time after completing 30 years qualifying service provided that he shall give in this behalf, a notice in writing to the appropriate authority, at least 3 months before the date on which he wishes to retire. Compulsory retirement after completion of 25 years service —(2) Government retains an absolute right to retire any Government servant 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 public interest to dispense with further service of a Government servant. NOTES. 1. The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. NOTES. 1. The right conferred by Rule 244(2) is intended to be exercised only against a Government servant whose efficiency is impaired, but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on compassionate allowance. It is not the intention to use this rule as a financial weapon, that is to say, the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. 2. Compulsory retirement under this rule does not attract the provisions of clause (2) or Art.311 of the Constitution because such retirement is not conceived as a penalty but as the exercise of a right reserved to Government of retiring a Government servant alter he has served for a certain length or time. Accoraingly, the procedure laid down in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for formal proceedings against Government servants before removing them from service is not meant to apply to such cases. 3. We have satisfied ourselves that the above notes form part of the Rules. They were inserted by the rule making authority purporting to act under Article 309 of the Constitution and were duly published as part of the Rules. 4. The Rules governing the conditions of service of the petitioners are contained in the Rajasthan Service Rules and the Rajasthan Civil Services (Classification, Control and Appeal Rules 1958 (hereinafter referred to as the R.S.R. and the C.C.A.R. respectively). The learned Advocate General conceded that these are binding both on the Civil Servants and the Government. 5. In order to understand the contentions of the petitioners it is necessary to refer to rules 14 and 16 of the C.C.A.R. relevant portions of which are reproduced below:— DISCIPLINE R. 14. The learned Advocate General conceded that these are binding both on the Civil Servants and the Government. 5. In order to understand the contentions of the petitioners it is necessary to refer to rules 14 and 16 of the C.C.A.R. relevant portions of which are reproduced below:— DISCIPLINE R. 14. Nature of Penalties — The following penalties, may, for good and sufficient reasons, which shall be recorded, and as hereinafter provided be imposed on a Government servant, namely:— (i) censure; (ii) withholding of increments or promotion; (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order; (iv) reduction to a lower service, grade or post, or to a lower time-scale or in the case of pension to an amount lower than that due under the rules; (v) Compulsory retirement on proportionate pension; (vi) removal from service which shall not be a disqualification for further employment. (vii) dismissal from service which shall ordinarily be a disqualification for future employment. (vii) dismissal from service which shall ordinarily be a disqualification for future employment. Explanation:—(1) The following shall not amount to penalty within the meaning of this rule:— (i) withholding of increments of a Government servant for failure to pass a departmental examination in accordance with the rules or orders governing the service or post or the terms of his appointment; (ii) stoppage of an increment at the efficiency bar in the time-scale on the ground of his unfitness to cross the bar; (iii) non-promotion whether in a substantive or officiating capacity of Government servant, after consideration of his case, to a service, grade or post for promotion to which he is eligible; (iv) reversion to a lower service, grade or post of a Government servant officiating in a higher service grade or post on the ground that he is considered after trial, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct; (v) reversion to his permanent service, grade or post of a Government servant appointed on probation to another service, grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation; (vi) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement; fas corrected by order published in Rajasthan Gazette dated 10-12-59) (vii) termination of the services— (a) of a Government servant appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation; or Substituted by F.D. Notification No.F.10(1) R./55 dated the 1st February, 1955 for the following note 2, 3, and 4— 2. The word Government should be interpreted to mean the authority which has the power to remove the Government servants concerned from service under Civil Services (Classification, Control and Appeal) Rules. 3. Art. 311(2) of the Constitution of India is applicable to compulsory retirement effected in pursuance of this rule. Accordingly the officer concerned has to be given a reasonable opportunity to show cause against the proposed action. 4. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules for formal proceedings against the Government servants before removing them from service is not meant to apply to cases of compulsory retirement under this rule. Accordingly the officer concerned has to be given a reasonable opportunity to show cause against the proposed action. 4. The procedure laid down in Civil Services (Classification, Control and Appeal) Rules for formal proceedings against the Government servants before removing them from service is not meant to apply to cases of compulsory retirement under this rule. Compulsory retirement of a Government servant is not conceived as a "penalty" imposed for good and sufficient reasons" but as the exercise of a right reserved to itself by Government in the Service Rules. (b) of a temporary Government servant appointed otherwise than under contract on the expiration of the period of appointment; (c) of a Government servant employed under an agreement, in accordance with the terms of such agreement; (d) of a Government servant in the services of any of the integrating units of Raj.on non se-lection or non-absorption for appointment in any of the services of the integrated State of Rajasthan in accordance with the integration rules. Explanation:—(2) The discharge of a person appointed on an ad-hoc or provisional basis to any of the posts in the integrated set up of the Rajasthan services otherwise than for reasons of non-selection or non-absorption to any such services or posts in accordance with the integration rules, shall amount to removal or dismissal as the case may be. 16. Procedure for imposing major penalties— (1) Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1950, no order imposing on a Government Servant any of the penalties specified in clauses (iv) to (vii) of rule 14 shall be passed except after an inquiry held, as far as may be, in the manner hereinafter provided. (2) The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement indicating whether he admits the truth of all or any of the charges, what explanation or defence, if any, he has to offer and whether he desires to be heard in person. (6) The inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing. 6. The argument of the petitioners runs thus. Firstly it is contended on the basis of rules 14 and 16 of the C.C.A.R. that the effect of rule 14 (v) read with the explanation is to make every order of compulsory retirement before the age of superannuation a major penalty which can only be imposed after holding an enquiry in accordance with rule 16 (2) and as no enquiry was held the order is void and inoperative. With regard to rule 244 (2) of R.S.R. which provides for retiring a civil servant after completion of 25 years qualifying service without giving any reason it is argued that it should be deemed to be abrogated by necessary implication by rule 14 with was amended by the Governor in 1958 and enforced in the amended form in 1959 subsequent to the framing of rule 244(2) in its present form. The same argument is put forward with regard to other rules in the R.S.R. which might indicate that the rule making authority intended to retain the right to retire a civil servant on completion of 25 years qualifing service without giving any reason. Secondly it is contended that if the rules as they stand at present are construed to contain provision for retiring a civil servant on completion of 25 years qualifying service without assigning any reason, such provision is void inasmuch as such retirement amounts to removal within the meaning of Article 311 (2) of Constitution and no order of removal can be passed without giving a reasonable opportunity of showing cause against it. 7. The other relevant rules of the R.S.R. to which a reference is necessary are rules 56,172, 172 A. 243, 247 and 256. 7. The other relevant rules of the R.S.R. to which a reference is necessary are rules 56,172, 172 A. 243, 247 and 256. The relevant portions of the first five of these rules are reproduced below: — COMPULSORY RETIREMENT R. 56(a). Compulsory retirement on attaining age of superannuation—Except as otherwise provided, the date of compulsory retirement of a Government servant is the date on which he attains the age of 5 5 years. MISCONDUCT OR INEFFICIENCY R. 172. Compassionate allowance—No gratuity or pension may be granted under sec. II of Chapter XXII and Chapter XXIII to a Government servant dismissed or removed for misconduct, insolvency or inefficiency; but to Government servants, so dismissed or removed compassionate allowances, may be granted when they are deserving of special consideration; provided that the allowance granted to any Government servant shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate. R. 172A. Compulsory retirement as a penalty— An officer compulsory retired from service as a penalty may be granted by the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full invalid pension admissible to him on the date of his compulsory retirement. BETIRING PENSION R.243. Condition of grant—A retiring pension is granted to a Government servant who is permitted or required to retire after completing qualifying service for thirty years, or who is retired under Rule 244 (2). R. 247. Amount how regulated—The amount of pension that may be granted is determined by length of service as set forth in Rules 2 56 and 257. Fractions of a year are not taken into account in the calculation of pension. Pensions fixed in rupees should be calculated to the nearest multiple of five naye paise. Rule 247 provides that the amount of pension that may be granted is determined by length of service as set forth in Rule 256. Under the latter rule a civil servant is not entitled to any pension upto a qualifying service of ten years but only to gratuity in accordance with the scale laid down therein. After a qualifying service often years the pension earned by a Civil servant amounts to No. of completed years of qualifying service of the average emoluments/80 upto a maximum of 30/80 earned on completion of thirty years of qualifying service. After a qualifying service often years the pension earned by a Civil servant amounts to No. of completed years of qualifying service of the average emoluments/80 upto a maximum of 30/80 earned on completion of thirty years of qualifying service. Average emoluments are worked out on the basis of the emoluments earned during the last three years of service. 8. We have considered the relevant rules from all angles and are satisfied that the intention of the rule making authority was to retain the power to retire a civil servant on completion of 25 years qualifying service without assigning any reason. 9. Service Rules in Rajasthan were framed on the model of Civil Service Regulations and the Civil Services (Classification, Control and Appeal) Rules applicable to Central Services as they stood in 1950, the corresponding provisions of which were as follows:— CIVIL SERVICE REGULATIONS Art. 465A.:............the rule for the grant of retiring pension is as follows:— (i) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 25 years.................. (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years, qualifying service or more, Note 1.—Government retains an absolute right to retire any officer after he has completed twenty-five 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. CIVIL SERVICES (Classification, Control and Appeal) RULES. Rule 49.—The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely:— (i) Censure. (ii) Withholding of increments or promotion, including stoppage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (v) Suspension. (vi) Removal from the civil service of the Crown, which does not disqualify from future employment. (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment. I Explanation—The discharge:— (a) of a person appointed on probation, during the period of probation, (b) of a person appointed otherwise than under contract to hold a temporary appointment, on the expiration of the period of the appoint ment, (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule. Rule 55.—Without prejudice to the provisions of the Public Servants Inquiries Act 1850, no order of dismissal, re0loval or reduction shall be passed on a member of a Service (other than an order based on facts which had led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so directs, an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing, be waived, where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged. 10. The administrative decision of the Government of India on the provision of compulsory retirement under Note 1 to Art. 465 A as contained in G.I.M.H.A. letter No. 26/8/48-Ests. dated 17.7.1948 was as follows:— "It has been held that sec. 240(3) of Government of India Act, 1935, (corresponding to Art. 311(2) of the Constitution of India) is applicable to compulsory retirement effected in pursuance of Note 1 to Art. 465A of the Civil Service Regulations, as it stands, i.e. including the words "without giving any reasons etc." Accordingly the officer concerned has to be given a reasonable opportunity to show cause against the proposed action under that Section. The Government of India, however, add that the procedure laid down in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules for formal proceedings against Govern ment servants before removing them from service is not meant to apply to cases of compulsory retirement mentioned in the preceding paragraph because Rule 5 5 should be read with Rule 49 of the Rules and regarded as applying only when dismissal, removal or reduction is imposed as a penalty under Rule 49. Compulsory retirement of an officer in pursuance of Note 1 to Art.464-A of the Civil Service Regulations is not conceived as a "penalty" imposed "for good sufficient reasons" under Rule 49 but as the exercise of a right reserved to itself by Government under the Regulations." 11. Rule 244 (2) of the R.S.R. and notes 3 and 4 appended originally thereto were based on Article 465 A Note 1 and decision of the Government of India referred to above. 12. The provision of Article 465A Note I came up for consideration before their Lordships of the Supreme Court in Shyamlal Vs. State of U.P. (1). Rule 244 (2) of the R.S.R. and notes 3 and 4 appended originally thereto were based on Article 465 A Note 1 and decision of the Government of India referred to above. 12. The provision of Article 465A Note I came up for consideration before their Lordships of the Supreme Court in Shyamlal Vs. State of U.P. (1). It was held that compulsory retirement under it does not amount to removal and does not attract the provisions of Article 311 (2) of the Constitution or of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. It was also held that compulsory retirement as contemplated under Note 1 to Art. 465 A of the C.S.R. is not repugnant to Article 311 of the Constitution. When the attention of the Government of Rajasthan was drawn to this decision Notes 2,3 and 4 to rule 244 of the R.S.R. were deleted and substituted by existing Note 2 in which it is mentioned that compulsory retirement under rule 244 (2) does not attract the provisions of Article 311 (2) of the Constitution and that it is not necessary to hold an inquiry in accordance with the procedure laid down in the C.C.A.R. for imposing the penalty of removal. This was done by F.D. Notification dated 1st February 1955 published in the Rajasthan Gazette dated 12.2.53 at page 697, Parti. 13. Under the R.S.R. as they stood then there was no difference between the consequences of imposing the penalties of removal and of compulsory retirement before the age of superannuation. This was because both these penalties were treated as penalties of removal under clause (vi) of rule 15 of the Civil Services (Classification, Control and Appeal) Rules 1950—"removal from the civil service which does not disqualify for future employment including compulsory retirement before the age of superannuation". The procedure provided in rule 16 of these rules was to be followed for imposing either of these two penalties. This rule 15 was however not susceptible of the interpretation that every order of compulsory retirement before the age of superannuation amounted to a penalty. 14. Two further amendments were made to the R.S.R. in 1958. Rule 243 was amended so as to make it clear that a civil servant retired under rule 244 (2) was entitled to the full retiring pension earned by him. Rule J72A was added after rule 172. 14. Two further amendments were made to the R.S.R. in 1958. Rule 243 was amended so as to make it clear that a civil servant retired under rule 244 (2) was entitled to the full retiring pension earned by him. Rule J72A was added after rule 172. Under rule 172A it was laid down that a civil servant compulsory retired by way of penalty is entitled to pension at a rate not less than two-thirds the retiring pension. He can be awarded even full retiring pennon at the discretion of the competent authority. Under rule 172 a civil servant removed from service by way of penalty can only be granted a compassionate allowance at the discretion of the competent authority at a rate not exceeding two-thirds the retiring pension. The rate of retiring pension is given in rule 256. 15. In 1957 the Government of India framed the Central Civil Services (Classification, Control and Appeal) Rules 1957. Effect was given in these rules to the decision of the Supreme Court in Shyamlals case (1). Compulsory retirement was included as a penalty under rule 13 of these rules in addition to removal from service. An explanation was added in which it was laid down that "compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement" shall not amount to a penalty within the meaning of this rule. When the new C.C.A.R. were framed by the Rajasthan State in 1958 this explanation was adopted but in doing so a clerical error crept in and explanation (vi) to rule 14 read as follows: — "Compulsory retirement of a Government servant in accordance with the provisions rela ting to his superannuation for retirement." 16. The argument of the learned counsel for the petitioners was based on this incorrect version of the explanation. In that form rule 14 was no doubt susceptible of the interpretation that every form of compulsory retirement except the one at superannuation amounted to a penalty. But this explanation was corrected by an order published in the Rajasthan Gazette dated December 10, 1959. The amended explanation now reads: — "The following shall not amount to a penalty within the meaning this rule:— (vi) Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement." 17. But this explanation was corrected by an order published in the Rajasthan Gazette dated December 10, 1959. The amended explanation now reads: — "The following shall not amount to a penalty within the meaning this rule:— (vi) Compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement." 17. It is thus made clear that compulsory retirement in accordance with the provisions relating to superannuation as well as compulsory retirement in accordance with the provisions relating to retirement do not amount to a penalty within the meaning of rule 14. The provision relating to compulsory retirement at superannuation is contained in rule 56 (a). The provision relating to compulsory retirement of a Government servant otherwise than as a penalty is contained in rule 244 (2). It is laid down in this rule that a Government servant can be retired without giving any reasons after he has completed 25 years qualifying service and under the above explanation this does not amount to a penalty under rule 14. It is therefore not necessary to hold an inquiry as contemplated by rule 16 of the C.C.A.R. in order to compulsory retire a Government servant under rule 244(2). 18. It will thus be seen that the effect of the R.S.R. and the C.C.A.R. is to provide for the termination of service of a civil servant before he attains the age of superannuation in one of the following ways:— (1) & (2) by dismissal from service which disqualified for future employment or by removal which does not disqualify for further employment. These are penalties under rule 14 (vi) and (vii) and an inquiry is to be held as provided under rule 16 C.C.A.R. The Government servant so dismissed or removed is not entitled to any pension, but he may be granted a compassionate allowance at the discretion of the competent authority not exceeding two/thirds the retiring pension; vide rule 172 R.S.R. (3) by compulsory retirement on proportionate pension imposed as a penalty under rule I4(v) of the C.C.A.R. This attracts the provisions of rule 16 and a formal inquiry is to be held. The officer compulsory retired from service as a penalty is entitled to pension at a rate not less than two-thirds and not more than the full retiring pension admissible to him on the date of his compulsory retirement; vide rule 172A. The officer compulsory retired from service as a penalty is entitled to pension at a rate not less than two-thirds and not more than the full retiring pension admissible to him on the date of his compulsory retirement; vide rule 172A. (4) by compulsory retirement after completion of 25 years qualifying service without assigning any reasons under rule 244 (2) of the R.S.R. This is not a penalty as it is covered by Explanation (1) (vi) to rule 14 of the C.C.A.R. The Government servant so retired is entitled to full retiring pension under rule 243 in accordance with the scale laid down in rule 256 of the R.S.R. The compulsory retirement of all the three petitioners comes within the last mentioned category. It does not amount to a penalty under rule 14 of the C.C.A.R. and it is not necessary to hold an inquiry in accordance with rule 16 of those rules. The impugned order is therefore not bad for want of an inquiry under the service rules governing the petitioners, 19. Coming now to the second contention raised on behalf of the petitioners that a service rule framed under Article 309 enabling the termination of the service of a Government servant without assigning any reason is void inasmuch as such retirement amounts to removal within the meaning of Article 311 (2) of the Constitution and cannot be ordered without giving an opportunity of showing cause against it, we find that there is no force in it in view of several decisions of their Lordships of the Supreme Court in which similar argument was repelled. We may refer in particular to the following decisions:— Shyamlal Vs. State of Uttar Pradesh (1) State of Bombay Vs. Saubhagchand Doshi (2), P.L. Dhingra Vs. Union of India (3) and Dalip Singh Vs. State of Punjab (4). In Shyamlals case (1) it was recognised that compulsory retirement operates as punishment inasmuch as it deprives the officer of the chances of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension. But it was observed that the loss of future prospect is too uncertain to be regarded in the eye of law as a punishment. It was held that compulsory retirement under Note 1 to Article 465A C.S.R. does not amount to removal under Article 311(2) of the Constitution. 20. But it was observed that the loss of future prospect is too uncertain to be regarded in the eye of law as a punishment. It was held that compulsory retirement under Note 1 to Article 465A C.S.R. does not amount to removal under Article 311(2) of the Constitution. 20. In Doshis case(2) it was recognised that stigma attaches to an officer who is compulsorily retired before the age of superannuation inasmuch as Government will not pass such an order unless it has some good reason for doing so and that reason in general would be misconduct or inefficiency. But it was pointed out that while misconduct and inefficiency merely furnish the back-ground for passing an order of compulsory retirement before the age of superannuation without assigning any reason, they form the very basis of the order in the case of dismissal or removal. The argument advanced before their Lordships that an order retiring an officer before the age of superannuation was in substance one of removal and must, in order to be valid, satisfy the requirements of Article 311 (2) and that rule authorising the Government to terminate the service without giving any reason and without holding an inquiry was repugnant to Article 311 (2) and was therefore void was repelled by their Lordships. 21. In Dhingras case (3) it was held that the words "dismissed, removed and reduced in rank" as used in Article 311 of the Constitution refer to three major punishments which could be inflicted on Government servants under the service rules which were in force at the time of the commencement of the Constitution, which could only be imposed after holding an inquiry in accordance with rule 55 of the Civil Services (Classification, Control and Appeal) Rules framed by the Secretary of State for India under the Government of India Act and that it is only in those cases where the Government intends to inflict those three forms of punishment that the Government servant must be given a reasonable opportunity for showing cause against the action proposed to be taken in regard to him. In that case, Dhingra, who was officiating in a substantive vacancy in which he would have been confirmed if his work had been found to be satisfactory, was reverted to his substantive post without giving him an opportunity of showing cause against the order.* It was held by four out of five learned Judges constituting the Bench that as the order of reversion was not passed by way of punishment Article 311 (2) was not attracted. Bose J. in a dissentient judgment expressed a contrary opinion in the following words: — "It is here that I venture to dissent, with the greatest respect, from my Lords construction of Art. 311. If I read his judgment aright, I gather that his view, and that of my learned brothers, is that Art. 311 is confined to the penalties prescribed by the various rules and that one must look to all the relevant rules to determine whether the order is intended to operate as a penalty or not. With deep respect, I do not think that the gist of the matter is either the form of the action or the procedure followed; nor do I think it is relevant to determine what operated in the mind of a particular officer. The real hurt does not lie in any of those things but in the consequences that follow and, in my judgment, the protections of Art. 311 are not against harsh words but against hard blows. It is the effect of the order alone that matters, and in my judgment, Art. 311 applies whenever any substantial evil follows over and above a purely "contractual one". I do not think the article can be evaded by saying in a set of rules that a particular consequence is not a punishment or that a particular kind of action is not intended to operate as a penalty. In my judgment, it does not matter whether the evil consequences are one of the "penalties" prescribed by the rules or not. The real test is, do they in fact ensue as a consequence of the order made?" 22. In Dalip Singhs case(4) the decisions in Shyamlals and Doshis cases were affirmed and it was held that even a rule giving authority to the Government to retire a Government servant at any time during his tenure of service without assigning any reason was valid. 23. In Dalip Singhs case(4) the decisions in Shyamlals and Doshis cases were affirmed and it was held that even a rule giving authority to the Government to retire a Government servant at any time during his tenure of service without assigning any reason was valid. 23. We accordingly hold that an order passed under rule 244(2) of the R.S.R. does not attract the provisions of Art.311 (2) of the Constitution. Nor is rule 244(2) of the R.S.R. repugnant to Art.311 (2) of the Constitution. 24. We shall now consider individually the additional grounds taken in the petitions. 25. Taking Civil Writ Petition No. 475/59 first Writ No. 475/59, Shri Ganga Ram Purohit who was ordered to be retired with effect from 1.1.60 was due to retire in normal course on attaining the age of superannuation on 19.1.60. When the impugned order was served on him, he offered to retire voluntarily from 19.1.60 under rule 244(1) as he had already completed 30 years qualifying service. This offer was not accepted by the Government and the order of compulsory retirement was enforced. Shri Ganga Ram was the Director of Rehabilitation upto 8.1.59. This post carries a special pay of Rs. 150/- per month. Thereafter he was posted as Additional District Magistrate Pali which also is a post of responsibility carrying a special pay of Rs. 100/-per month. He was allowed to cross efficiency bars in January 1955 and June 1958 respectively on the due dates. It was contended that the petitioner could not have suddenly become so inefficient as to render his further retention in service injurious to public interest and in any case public interest would not have been put in jeopardy if he had been allowed to continue on his post for 18 days more. It was alleged that he came into conflict with the present Chief Secretary when he was Commissioner at Bikaner and the petitioner was working as Extra Magistrate at Churu and that he also claimed seniority over him in his representation on the first seniority list of R.A.S. officers, which gave cause for further annoyance to him, and that the impugned order was passed malafide out of vindictiveness to humiliate him. 26. On behalf of the State it was denied that the order was malafide. 26. On behalf of the State it was denied that the order was malafide. It was asserted that the Government were not aware of any conflict having taken place between the petitioner and the present Chief Secretary, but that the former was found guilty of gross irregularities when he was posted as Extra Magistrate Churu and disciplinary action was taken against him in consultation with the Public Service Commission. He remained under suspension for an year and his pay was reduced by Rs. 50/- per month for two years and he was not treated as being on duty during the period of his suspension vide order contained in G.O. No. F. 1(210) Apptts..(A)/52 dated 15.7.52. With regard to the petitioners claim of seniority over the present Cheif Secretary there is no denial on behalf of Government, but it is mentioned that his claim was duly considered. 27. We are unable to hold that the petitioner has succeeded in establishing affirmatively that the order passed against him is malafide. If any conflict had taken place between him and the present Chief Secretary when these Officers were posted to Bikaner division there was a quasi judicial determination of it as a result of which the petitioner was held to be in the wrong. As for his representation in which he claimed seniority over the present Chief Secretary the latter was subsequently selected to the Indian Administrative Service whereas the petitioner continued in the Rajasthan Administrative Service. The present Chief Secretary is not likely to nurse any grudge against him now for claiming seniority over him. The additional ground urged in this petition has thus not been established. 28. Two additional grounds have been urged in Writ No. 469/59, Civil Writ Petition No. 460/59 filed by Shri Amar Nath Purohit. 29. The first ground is that Shri Amar Nath Purohit having opted for Contributory Provident Fund rule 244(2) which occurs in Part VIII of the R.S.R. has no application to him. The heading of Part VIII is "Pension Rules." Rule 168 which is the first rule contained in this Part provides that the rules in this Part shall apply to all Government servants other than those entitled to the benefit of a Contributory Provident Fund in lieu of pension. Rule 244 however does not deal with pension at all. The heading of Part VIII is "Pension Rules." Rule 168 which is the first rule contained in this Part provides that the rules in this Part shall apply to all Government servants other than those entitled to the benefit of a Contributory Provident Fund in lieu of pension. Rule 244 however does not deal with pension at all. The first clause of it deals with optional retirement after completing 30 years qualifying service and the second clause deals with compulsory retirement after completion of 25 years qualifying service. We are of the opinion that this rule is of general application and is not governed by rule 168 despite the fact that it occurs in Part VIII if R.S.R. 30. It was argued that the term "qualifying service" is peculiarly applicable to those who are entitled to pension and has no application to those who opt for Contributory Provident Fund. We are unable to accept this argument. This term in our opinion is equally applicable to those who opt for Contributory Provident Fund. In their case qualifying service means service which would qualify for pension if they were entitled to pension. What is qualifying service is given in R. 179 of the R. S. R. 31. We may mention here that under the Jodhpur Government Service Regulations which govern the Contributory Provident Fund in the case of the petitioner only a Government servant holding a permanent post was eligible to subscribe to the Fund vide para 2 chapter VIII. An apprentice or an officer on probation was not permitted to subscribe to Fund until he was made permanent. The conditions of qualifying service laid down in rule 179 of the R. S. R. are the same. This rule runs as follows:— "The service of an officer does not qualify for pension unless it conforms to the following three conditions: — First—The service must be under Govt. Second—The employment must be substan tive and permanent. Third—The service must be paid by Govt." It will thus be seen that an officer is eligible to subscribe towards Contributory Provident Fund only during the period of his qualifying service. 32. The second ground is that Shri Amarnath had not completed qualifying service for 25 years on 1.1.1960 and could not be retired under rule 244(2) R. S. R. 33. 32. The second ground is that Shri Amarnath had not completed qualifying service for 25 years on 1.1.1960 and could not be retired under rule 244(2) R. S. R. 33. Shri Amarnath Purohit joined service under the erstwhile Jodhpur State on 27.11.34 as a probationary Naib Hakim in a subprotem vacancy created by the deputation of Naib Hakim Jethmal Sheonath Singh to the Hawala Department. On the expiry of this period he continued to hold the post of a probationary Naib Hakim. He was confirmed as a Naib Hakim with effect from 1.10.37 in the vacancy caused by the confirmation of Shri Chhaganlal as Hakim vide Council Resolution No. 4 dated 17-12-41. His qualifying service within the meaning of R. 179 therefore commenced on 1.10.37 and he would be completing 25 years qualifying service on 1.10.62. On the date of the impugned order he had only put in qualifying service for 22 years and 3 months. 34. In reply our attention was drawn to R. 189 A of the R.S.R. under which the service of a probationer who holds a substantive office and draws substantive pay also qualifies for pension. No material has been furnished which would go to show that with effect from 27.11.34 or some other date earlier than 1.10.37 the petitioner was employed in a vacancy reserved for him, in which no other officer simultaneously counted service. On the contrary it appears from the order of his first appointment that he was employed temporarily for one year only in a temporary vacancy caused by the deputation of one Jethmal Sheonath Singh to the Hawala Department. He was not confirmed in this vacancy but was confirmed in another vacancy caused by the promotion of one Chhaganlal as Hakim. We are therefore unable to hold on the material before us that any part of the service of Shri Amarnath before 1.10.37 was qualifying service under rule 189A. 35. We accordingly hold that Shri Amarnath Purohit not having completed 25 years qualifying service on 1.1.60 could not be retired compulsory with effect from that under R. 244(2). 36. On behalf of the State it was argued that even if rule 244 (2) is not applicable Article 310 of the Constitution is applicable to the present case as the order of compulsory retirement has not been passed by way of punishment. We are unable to accept this argument. 37. 36. On behalf of the State it was argued that even if rule 244 (2) is not applicable Article 310 of the Constitution is applicable to the present case as the order of compulsory retirement has not been passed by way of punishment. We are unable to accept this argument. 37. Article 310 lays down that a civil servant holds office during the pleasure of the President or the Government as the case may be except as expressly provided by the Constitution. Article 309 gives power to the President or the Governor to make rules regulating the conditions of service of civil servants. The rules so framed put a fetter upon the powers of the President or the Governor to dispense with the services of an officer at pleasure. Rule 56 (a) of the R.S.R. framed under Article 309 of the Constitution thus puts a fetter upon the powers of the Governor to dispense with the services of a Government servant. It lays down that a civil servant shall not be retired before he attains the age of 55 years "except as otherwise provided", that is, except as provided in the rules. As has been pointed out above, the rules governing the conditions of service of the petitioner namely the R.S.R. and the C.C.A.R. provide for termination of service before the age of superannuation only in one of the four ways mentioned above and not otherwise. The service of the petitioner cannot therefore be terminated otherwise than under one of the rules. As the termination of service in this case does not come under any of the rules it is void and inoperative. 38. The decision of their Lordships of the Supreme Court in Bholanath J. Thaker Vs. State of Saurashtra (5) may be referred to in this connection. In that case a civil servant whose age of superannuation under the rules was 60 years was retired on attaining the age of 55 years otherwise than by way of punishment. It was held that the order of retirement was void and that the civil servant was enti:led to his full salary upto the date of attaining the age of superannuation as if he had actually continued in service till that date. 39. No additional ground has been taken in Writ No. 24/60 Civil Writ Petition No. 24/60 filed by Shri Sohan Lal. 40. In the result Civil Writ Petitions Nos. 39. No additional ground has been taken in Writ No. 24/60 Civil Writ Petition No. 24/60 filed by Shri Sohan Lal. 40. In the result Civil Writ Petitions Nos. 475/59 and 25/60 filed by Shri Ganga Ram Purohit and Shri Shan Lal respectively are dismissed. Civil Writ Petition No. 560/59 filed by Shri Amar Nath Purohit is allowed, the order compulsory retiring him from service with effect from 1.1.1960 is set aside as being void and inoperative and the State of Rajast-han is directed to reinstate him in service. 41. We direct that parties shall bear their own costs of these writ petitions.