MEHROTRA, C. J. : The petitioner Padmaram Borah was appointed a Lower Division Assistant on the 25th August 1929 in the office of the Registrar, Joint Stock Companies, Assam, Shillong as a probationer. After the expiry of his probationary period he was confirmed in his service. Later he was promoted to the post of an Upper Division Assistant and ultimately on the 1st May 1953 he was appointed Superintendent in the office of the Excise Commissioner at Shillong. He was born on the 1st January 1906 and was to be superannuated after attaining the age of fifty-five on the 1st January 1961. On the 22nd December 1960 the petitioner went on leave preparatory to retirement. On the same day at 5 P. M. he received a letter from the Secretary to the Government of Assam, Excise Department intimating that he has been placed under suspension with effect from the date of the order, that is the 22nd December 1960. On the 6th January 1961 the opposite party No. 2 the Secretary to the Government of Assam, Excise Department informed the Commissioner of Excise Assam by his letter of the same date that the services of the petitioner were extended for three months with effect from the 1st January 1961 or till the disposal of the departmental proceedings whichever was earlier. A copy of this letter was sent to the petitioner. No departmental proceedings however, were started against the petitioner. Again on the 6th 1 May 1961, the opposite party No. 3 the Undersecretary to the Government of Assam, Excise Department issued another notification a copy of which was served on the petitioner, extending the services of the petitioner for a, further period of three months with effect from the 1st April 1961 or till the disposal of the departmental proceedings whichever was earlier. It is these notifications extending the services of the petitioner which have been challenged by means of the present petition under Art. 226 of the Constitution. The petitioner has prayed for a writ of certiorari, mandamus, or prohibition directing the opposite parties to show cause why the impugned orders, referred to above should not be set aside and that they be ordered to withdraw the impugned orders and further be restrained from giving effect to those orders and from drawing up the proposed departmental proceedings.
The petitioner has prayed for a writ of certiorari, mandamus, or prohibition directing the opposite parties to show cause why the impugned orders, referred to above should not be set aside and that they be ordered to withdraw the impugned orders and further be restrained from giving effect to those orders and from drawing up the proposed departmental proceedings. (2) In response to the notice issued by this court a counter-affidavit has been filed by the Secretary to the Government of Assam in the Excise Department. (3) There is not much controversy with regard to the facts of the case except the denial in the affidavit of the assertion made by the petitioner that the proceedings are all mala fide and that he had handed over the charge on the 22nd December I960. (4) The contention of the petitioner is that; the State Government had no power under the Fundamental Rule No. 58 to extend the period of the services of the petitioner after his superannuation. It is urged that the State Government could not do so without the consent of the petitioner and further the Government had in any case no power to extend the period of his service by an order passed subsequent to his compulsory retirement. No retrospective effect could be given to any such order. Next it is contended that under the Fundamental Rule No. 56 made by the Governor of Assam in the exercise of his powers under section 241(2) of the Government of India Act 1935, the Government could retain in service any employee after he attains the age or superannuation, provided a prior sanction is accorded by the Government on public grounds. The ground, are to be recorded in writing and the proposal for such, a retention of a Government servant in service after the age of fifty-five years is not to be made except in very special circumstances. In the present case it is contended that neither .the sanction of the Government was obtained nor any proposal submitted to the Government. There are no grounds recorded in writing and the ground on which his period of service has been extended cannot be regarded as in the interest of the public, nor can it be said that there were any special circumstances demanding |.UC extension of the period of the petitioner's service.
There are no grounds recorded in writing and the ground on which his period of service has been extended cannot be regarded as in the interest of the public, nor can it be said that there were any special circumstances demanding |.UC extension of the period of the petitioner's service. (5) The relevant portion o£ F-R. 56 made by the Governor of Assam, reads as follows: "F.R. 56.-(a) Except as otherwise provided in the other clauses of this Rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances." It is urged in the counter-affidavit that the conditions of service of the petitioner are not only regulated by the provisions of the Fundamental Rule 56 but also by other orders, circulars and instructions issued by the Government from time to time. (6) I shall examine the particular circular relied upon by the counsel for the State Government in support of the action taken by the Government. For the present it is necessary to examine the phraseology of Fundamental Rule No. 56. In my judgment F.R. 56 only authorises the State Government on public grounds to retain a person in service even after his retirement. But it does not give any power to the Government to extend the period of his service from time to time by a notification giving it retrospective effect. There may be cases where although the person is about to retire, the Government thinks it desirable on public grounds to' retain his services. In that case the State has got to make up its mind before the actual retirement and to see that it will be in the public good to retain him in the service. The rule does not give any power to the State Government from time to time to extend the period of service simply because the Government has not been able to make up its mind as to be charges against an employee and to keep the employee in service on the future prospect of starting a proceeding against him.
The rule does not give any power to the State Government from time to time to extend the period of service simply because the Government has not been able to make up its mind as to be charges against an employee and to keep the employee in service on the future prospect of starting a proceeding against him. (7) It is contended by the counsel for the State that on the 22nd December 1960 a notification was issued by which the petitioner was placed under suspension. The foot-note to that notification shows that it was sent to the Commissioner of Excise, Assam for information and necessary action. It is further laid down in the note that as Shri Borah is due to retire with effect from the 1st January 1961 his services will have to be extended beyond that date till the completion of the departmental proceedings. Necessary order in this respect will be issued in due course. This foot-note shows that the Government had decided before his retirement to extend his services and thus though the actual order was issued on the 6th January 1961, the action had been taken to retain the petitioner in service before he actually retired. There is no substance in this contention. The foot-note to the notification dated 22nd December 1960 only shows that the necessary order will be issued in due course. There was no order passed by the Government under F.R. 56 prior to his actual retirement. The Government may have intended to extend the period of his service, but actual extension was done by the order dated the 6th January 1961 which was after the date of his retirement. It is also difficult to appreciate the argument of the counsel for the State that even though the employee is not willing to continue in service after retirement, he can be forced to remain in service for an indefinite period only for the purposes of the proposed inquiry. It is in effect continuing his suspension and not retention in service. (8) It was urged by Dr. Medhi for the petitioner that the retention in service for the purpose of completing the departmental proceedings cannot be regarded as a public ground. The public ground according to Dr. Medhi, must relate to the efficiency or otherwise of the employee. This argument cannot be accepted.
(8) It was urged by Dr. Medhi for the petitioner that the retention in service for the purpose of completing the departmental proceedings cannot be regarded as a public ground. The public ground according to Dr. Medhi, must relate to the efficiency or otherwise of the employee. This argument cannot be accepted. There may be cases where the retention of an employee in service after his retirement may be regarded as retention on public grounds if the departmental! proceedings have to be completed against the employee. The words ''public grounds" cannot be confined to the efficiency or otherwise of the1 employee only. Each case will have to be considered on its own circumstances. I am however of opinion that on the facts of the present case where there were no proceedings pending on the date of retirement or even on the; date when the notifications were issued extending the period of service it cannot be said that the extension was on public grounds merely because; there was a possibility in future of starting depart-; mental proceedings. The Government was still if investigating into the matter and after such a preliminary investigation it may be that they may not have thought of proceeding departmentally against the petitioner. In such a state of affairs it cannot be said that the extension of the petitioner's period of service was on public grounds. Moreover no reasons are given in writing. It does not appear from the material before us that there was any prior sanction obtained from the Government for such an action or that tiny proposal was submitted to the Government as required under F.R. 56. (9) The State counsel has relied upon a certain circular dated 8-11-45 issued by the Government of India, Finance Department which was adopted by the State Government, in support of the contention that F. R. 56 was modified by the State Government. This circular was adopted and forwarded to all heads of the departments and they were directed to follow the same procedure in the case of the State Government servants vide the State Government circular dated the 29th November 1945.
This circular was adopted and forwarded to all heads of the departments and they were directed to follow the same procedure in the case of the State Government servants vide the State Government circular dated the 29th November 1945. The circular of the Government of India, Finance Department referred to above reads as follows : "The undersigned is directed to say that the Government of India have been considering what should be done if a Government servant under suspension, against whom an enquiry into a charge of misconduct is pending, attains, meanwhile the age of compulsory retirement. They have decided that, notwithstanding anything contained in clauses (a), (b) and (c) of Fundamental Rule 56, a Government servant under suspension on. charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement, but should be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by competent authority. Steps are accordingly being taken to insert; the necessary provision in Fundamental Rule 56, with the sanction of the Secretary of State for India to cover the cases of officers under his rule-making control. In the meantime the Governor-General in Council has been pleased to decide that the retention in service (with the sanction of the authority competent to accord it) of the Government servant) in question, beyond the date of compulsory retirement should be treated as retention on 'public grounds' or 'in very special circumstances' within the meaning of clause (a) or clause (b) of Fundamental Rule 56.'' (10) This circular consists of two parts. The first paragraph points out the difficulty felt by the Central Government arid in order to meet the difficulty the Central Government was taking steps to amend Fundamental Rule 56.
The first paragraph points out the difficulty felt by the Central Government arid in order to meet the difficulty the Central Government was taking steps to amend Fundamental Rule 56. After this circular was issued, the Central Government amended Fundamental Rule 56 and added clause (d) to the same rule which reads as follows; "Notwithstanding anything contained in clauses (a), (b) and (c) a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the 'date of compulsory retirement, but shall be retained in service until the enquiry into the charge Ss concluded and a final order is passed thereon by competent authority." The second paragraph only refers to the interpretation by the Governor-General of the two expressions occurring in the Fundamental Rule 56, clause (a), namely "public grounds" and ''in very special circumstances''. The Governor-General interpreted these expressions in clauses (a) and (b) of Fundamental Rule 56 to include the retention for the purposes of completing departmental inquiry. This circular was sent to tie heads of the departments of the State of Assam with the remark that similar procedure should be followed in the case of Provincial Government. This only means that it was 'open to the State Government to suitably amend the Fundamental Rule and further that the Departments could treat retention in service for the purposes of completion of the inquiry as a "public ground". In spite of the circular no steps "were taken by the Government of Assam to; amend it own Fundamental Rule 56 and incorporate clause (d) of the Central Fundamental Rule 56 in their own rules. The interpretation put by the State Government on the expression "public grounds'' in the existing rule 56 cannot be binding on this court. As I have already pointed out, the order is not an order of retention in service but by the said order the period of service has been extended. Such an action is not contemplated by Fundamental Rule 56. (11) A similar matter came up for consideration before a Special Bench of the Calcutta High Court in the case of 'Nripendra Nath Bagchi v. Chief Secretary, Govt. of West Bengal, AIR 1961 Cal 1 .
Such an action is not contemplated by Fundamental Rule 56. (11) A similar matter came up for consideration before a Special Bench of the Calcutta High Court in the case of 'Nripendra Nath Bagchi v. Chief Secretary, Govt. of West Bengal, AIR 1961 Cal 1 . The facts of that case briefly were that one Sri Nripendra Nath Bagchi, a senior member of the West Bengal Judicial Service, officiating in the Higher Judicial Service as an Additional District Judge, was served with an. order by the State Government retaining him in service after his compulsory retirement. Disciplinary proceedings were continued against him and after the departmental inquiry he was dismissed from service by the State Government. His appeal to the Governor was also rejected. Thereafter he 'filed a petition under Article 226 of the Constitution challenging the validity of the order of dismissal. A number of points were referred to the Special Bench. The first point which was considered by the Special Bench was whether the Judicial Officer could be departmentally dealt with by the State Government without the consent of the High Court. It was also contended by the petitioner that this services could not be retained after his compulsory retirement at the age of fifty-five years without his consent, nor could it be regarded as a public ground. The relevant Bengal rule is Rule 75 (a) which is the same as Rule 56 of Assam with slight modification which is not relevant for our purposes. The contention of the petitioner was accepted. It was observed by P. B. Mukharji J. who gave the leading judgment that- "Where a public servant belonging to the judicial service in West Bengal has reached the age of 55 which is the age of compulsory retirement under his conditions of service, his service cannot, under Rule 75(a) of the West Bengal Service Rules (which contains no provision similar to Fundamental Rule 56(d) be simultaneously extended and suspended as a "public ground" only for the purpose of departmental enquiry and disciplinary -action, especially, when the charges can be publicly tried and determined". Such extension is illegal and void. The words ''be retained in service" and "Public ground" must mean that the public ground is based on his performing the service." In this case the order of retention was passed before the petitioner had actually retired.
Such extension is illegal and void. The words ''be retained in service" and "Public ground" must mean that the public ground is based on his performing the service." In this case the order of retention was passed before the petitioner had actually retired. In the case before us, the order was passed after the retirement and at any rate there was no question in the Calcutta case of extending the period of service from time to time. The other learned Judge Bose, J. has not based his decision on that point. P. N. Mukharjee J. has however, held as follows at page 24 of the report: "The validity of the retention or extension of the petitioner's service after the age of superannuation or compulsory retirement in the manner, it was done in the present case, and, particularly, for disciplinary action and departmental enquiry for the purpose, is not altogether free from doubt, but, in the facts of this case, I agree with my Lord (P. B. Mukharji J-) in answering the said point in the negative. Rule 75(a), no doubt, by its very terms, contemplates, and permits extension or retention of service after the age of superannuation or compulsory retirement, but that can be done only "on public grounds to be stated in writing.'' It is at least, doubtful whether the mere use of the expression 'in the interest of public service' would suffice for the purpose, or, whether the holding of a departmental enquiry in the so-called disciplinary jurisdiction would be 'interest of public service or public ground' in the facts of this particular case, or, at all, for purposes of the above Rule, particularly, when, in enacting the said relevant Rule 75 (a) of the West Bengal Service Rules, the State Government has chosen to omit the express provision for such cases, contained in its predecessor, Rule 56 of the Fundamental Rules (vide cl. (d)), and the benefit of this doubt must go to the person charged, that is to say, to the petitioner in the instant case." (12) In my opinion when the Assam Government has not adopted clause (d) of Rule 56 of the Central Fundamental Rules, the contention of the petitioner has great force that the words 'public grounds' in the existing Rule 56 do not mean the extension of service for the purpose of completing an inquiry.
In the present case it is more so when the extension was done after the retirement had taken place and when there was no proceedings pending at) the time of retirement against him, nor any steps were taken even subsequent to the retirement for six months to frame any charges against the petitioner. On the mere possibility of the disciplinary proceedings the extension of service cannot be regarded as on 'public grounds.' Besides this, in the present case it does not appear that there was any compliance with the provisions of Rule 56. No previous .sanction was taken from the Government. No proposals were put up before the Government inviting its sanction for the retention in-service of the petitioner. The order retaining him in service besides extending the period of his service does not set out any reasons, much less ground which can be regarded as: a public ground. (13) It is contended by the counsel for the State that the Calcutta case does not apply to the facts of the present case as by virtue of the order passed by this State on the 29th November 1,8.45 circulating the Central' Government Circular dated the 8th November 1945 provision like the one contained in clause (d) of Fundamental Rule 56 has been incorporated [n the Assam Fundamental Rule 56. In my opinion this argument cannot be accepted. I have already dealt with this point and it cannot be said that the circular issued by the Central Government communicated to the Heads of the Departments of the Assam Government will have the force of amending the Assam Fundamental Rule 56. (14) It was then contended that if Fundamental Rule 56 is interpreted not to include an extension of service for the purpose of disciplinary proceeding, within the words 'public grounds,' it will be easy for the public servant to escape any departmental punishment on committing culpable acts on the eve of his retirement. If the public servant has committed any culpable act;, the arms of the law are wide enough to punish them. The civil and criminal courts are still available to the Government. Even if such a result follows, that is no ground for interpreting the plain language of the rule differently.
If the public servant has committed any culpable act;, the arms of the law are wide enough to punish them. The civil and criminal courts are still available to the Government. Even if such a result follows, that is no ground for interpreting the plain language of the rule differently. In the result therefore, I allow this petition and direct the opposite parties not to give effect to the order dated 9th May 1961, by which the term of the service of Sri Padmaram Borah under suspension was extended for a further period of three months with effect from the 1st April 1961. As the earlier order was superseded by ^this order, it is not necessary to issue any direction in, regard to the earlier order. The petitioner will be entitled to his costs which we assess at Rs. 100/-. (15) S. K. DUTTA, J. : I agree. Petition allowed-