H. R. Khanna,j. ( 1 ) MANOHAR petitioner by means of this petition under Article 226 of the Constitution of India has challenged the order dated 20th September 1962 by which the President of India compulsorily retired the petitioner from service under Rule 3 of the Central Civil Serviced (Safeguarding of National Security)K Rules, 1953 (hereinafter REFERRED TO as the Rules.) The petitioner, has also further challenged the notice dated 13th March 19 which was issued to him before the above order was made. ( 2 ). The petitioner was appointed as a lower Division Clerk in the office of the Senior Deputy Accountant Genral, Posts and Telegraphs, Nagpur in the year 1945. He was promoted as upper Division Clerk in 1954 and was confirmed in that cadre in 1957. In March 1962 Shri Y. Krishan, Accountant General, Posts and Telegraphs, respondent No. 3, served the following notice upon the petitioner :- "office of the Accountant General, Posts and Telegraphs, Simla, dated the 6th March 1962. "memorandum. Whereas for the reasons stated in the annexure it is considered that you are reasonably suspected to be engaged in subversive activities and that your retention in the public service is on that account prejudicial to national security, and that consequently it is proposed to retire you from service compulsorily under Rule 3 of the Central Civil Services (Safeguarding of National Security) Rules 1953 (copy enclosed, you are hereby directed to submit to the President through the undersigned, within 14 days of the receipt of this notice, any representation you wish to make against the action proposed to be taken in regard to you. Such representation, if any, will be considered by the President before appropriate orders are passed. If you submit no representation with in the time specified, it will be assumed that you have no representation to make against the purposed action and the President will proceed to pass appropriate orders on yr case without any further reference to you. You are further asked to state whether you wish to be heard in person before orders are passed on your case. DATED this 6th day of March 1962. You are further asked to state whether you wish to be heard in person before orders are passed on your case. DATED this 6th day of March 1962. " The annexure, REFERRED TO in the above notice, reads as under :- ANNEXURE Shri M. N. Abokar 17-11-57 Attended the trip of the R. S. S. workers to Starkey point, when Shri. D. B. Thengadi addressed the gathering and stressed the need of strengthening the R. S. S. and propagating it amont gst the Government employees. 20-7-59 Participated in the Guru Puja ceremony of the R. S. S. at Resham Bag Ground, Nagpur. Associated freely with M A. Deshpande, an R. S. S. worker. 15-9-59. Visited the R. S. S. office at Nagpur. 5-9-59 -do- 25-11-1960 and 27-11-60 -do- 28-3-60 Attended the function at Reshambag Nagpur of Gudhi Padwa of the R. S. S. 14-8-60 Attended the function of Guru Dakshina at Dinanath High School of the R. S. S. 29-9-60 Attended the function vijaya Dashmi of the K. S. S. At Reshambag, Nagpur. Sd. / Y. Krishan, Accountant General, Posts and Telegraphs. "the petitioner submitted a representation in reply to the above notice, and denied the allegations made against him. The petitioner also requested for personal hearing which was granted to him by respondent No. 3. The petitioner thereafter received order dated 20th September 1962 retiring him compulsorily from service with immediate effect. The order reads as under :- " No. 17 (5) EG 1/61 Government of India Ministry of Finance (Department of Expenditure) ORDER To Shri M. N. Ambokar, Upper Division Clerk, Office of the Director of Audit and Accounts, Posts and Telegraphs, Nagpur. 1. I am directed to state that your representation dated the 23rd March, 1962 in reply to the notice served on you by the Accountant- General, Posts and Telegraphs, Simla, in his memorandum dated the 6th March 1962 has been duly considered by the President and he is of the opinion that you are associated with others in subversive activities and that your retention in public service is on that account prejudicial to national security. 2. The. President is satisfied under sub-clause (e) of the proviso to Article 311 of the Constitution that in the interest of the security of the State it is not expedient to give you any opportunity of showing cause against the action proposed to be taken in regard to you. 2. The. President is satisfied under sub-clause (e) of the proviso to Article 311 of the Constitution that in the interest of the security of the State it is not expedient to give you any opportunity of showing cause against the action proposed to be taken in regard to you. 3. Accordingly, the President, in view of the opinion he has formed regarding you, hereby orders under Rule 3 of the Central Civil Services (Safeguarding of National Security) Rules, 1953, that you be compulsorily retired from service with immediate effect. This 20th day of September, 1962 Sd. . 00 S. Bhoothlingam Secretary to the Government of India for and on behalf of the President. "the petitioner has assailed the notice and the order reproduced above inter alia on the ground that they do not refer to any activity on the part of the petitioner which can be considered tobe subversive or prejudicial to the national securitiy. ( 3 ) THE petition has been resisted by the respondents and it has been averred on their behalf that the impugned notice and the order are valid and in accordance with law. ( 4 ) THE rules in question, under which action has been taken against the petitioner, have been made by the President inexercise of the powers conferred by the proviso to Article 309 of theconstitution. Rule3, under which the impugned order was made, as also Rule 4, under which the impugned notice was issued, read as under :- "3. Where the President is of the opinion that Government servant is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with others in subversive activities and that his retention in the public service is on that account prejudicial to the national security, the President may make an order compulsorily retiring such Govenment servant from service. 4. Before an order under Rule 3 is made- (a) the competent authority shall by notice in writing inform the Government servant of the action proposed to be taken in regard to him and give him an opportunity to make to the President, within such period as may be specified in the notice, representation in writing against that action ; and (b) the President shall take into consideration the representation, if any, so made by him. "persual of rule 3 shows that it contemplates compulsory retirement from service of a Government servant who m the opinion of the President, (a) is engaged in subversive activities, or (b) is reasonably suspected to be engaged in subversive activities, or (e) is assiciated with others in subversive activities and whose retention in the public service is on that account prejudicial to national security. As an opinion has to be formed that the Government servant is engaged in or is reasonably suspected to be engaged in subversive activities or is associated with. others in subversive activities, it is necessary that the conduct of the Government servant, on the basis of which that opinion is formed, should be such from which a reasonable inference of one of the three alternatives can-be drawn.- In other words there should be some rational connection or nexus between the conduct of the Government servant and subvervise activity. In case such nexus is there, it would be for the authority concerned to decide about the veracity or reliability of the allegations and on the point as to whether the case falls on one of the three alternatives as also whether the retention of the Government servant in the question in the public service is on that account prejudicial to national security, and the court cannot substitute its own opinion for that of the authority concerned. All the same the imperative requirement is that such a nexus should be there and if such a nexus is found to be non-existant, the order would suffer from serious infirmity and would on that account be liable to be struck down. In the present case we are not concerned with the first two alternatives mentioned in rule 3 because action against the petitioner has been taken on the ground that he was associated with others in subversive activities as is clear from the impugned order dated 20th September 1962. The order makes reference to the memorandum REFERRED TO the activities of the petitioner which were specified in the annexure to-that memorandum. Those activities, according to the memorandum, constituted the reasons for taking the proposed action against the petitioner. On going through the annexure to the memorandum I find that the gravmen of the charge against the petitioner relates to his attending the various functions of the R. S. S. and its office. Those activities, according to the memorandum, constituted the reasons for taking the proposed action against the petitioner. On going through the annexure to the memorandum I find that the gravmen of the charge against the petitioner relates to his attending the various functions of the R. S. S. and its office. The attendance by the petitioner of the various functions of the R. S. S. or visits to its office do not, in my opinion, by them selvesin the absence of anything more show that the petitioner was engaged in association with others in subversive activities. I may in this context refer to the case of V. S. Menon v. Union of India. That was also a case. in which the appellant was compulsorily retired from service under, rule 3 of Civil Service (Safeguarding of National Security) Rules, 1949. The allegation, en the basis of which the appellant was proceeded against, were as under :- "soon after your arrival in Nagpur important local communists were reported to have interested yourself in the political activities of the Communist party and other political organisations and groups in Nagpur. You are also reported to be actively continuing your association with Shri B. N. Mukherjee and other prominent local Communists. "except for some variations with which we are not concerned in the present case, rules 3 and 4 of the 1949 Rules were similiar to rules 3 and 4 of the 1953 Rules reproduced above. The charge against the appellant in that case was that he had associated with others who were engaged in subversive activities. It was held that this was not a charge that could be sustained under rule 3 which was of a penal character and had to be construed strictly. As the charge against the appellant was not in accordance with the rules, the Court found that there was no lagis for the precedure adcpted in pursuance of the charge. It was held that this was not a charge that could be sustained under rule 3 which was of a penal character and had to be construed strictly. As the charge against the appellant was not in accordance with the rules, the Court found that there was no lagis for the precedure adcpted in pursuance of the charge. The appeal was accepted and it was held that the services of the appellant had net been legally terminated in accordance with the rules, It was also observed-- "apart from the initial serious defect in the charge laid against the appellant even in the allegations made against him it was only said that after his arrival in Nagpur important local communists were reported to have contacted him, and that he was interested in political activities of the Communist party and ether political organisations and groups in Nagpur, and finally, that he was reported to be continuing his association with Shri B. N. Mukherjee and other prominent local Communists. But nowhere it is alleged that the appellant had taken any part in subversive activities- by himself or along with others with whom he is said to have been associated. Taking interest in political activities of the Communist party would not amount to taking part in subversive activities so long as the Communist party continued to be a recognised political organisation, which has notbeen banned. It cannot be asserted that simply talking with members of the Communist party or associating with such members would amount to engaging in subversive activities. Subversive activity, in order to bring the person within the purview of the rules must amount to actively pursuing such activities as are calculated to subvert the Government established by law. No such allegations appear to have been made against the appellant. "the above observations, in my opinion, fully apply to the present case, apart from the fact that the party concerned in that case was Communist party while in the present case it is R. S. S. It is not disputed that none of these two parties has been banned. No such allegations appear to have been made against the appellant. "the above observations, in my opinion, fully apply to the present case, apart from the fact that the party concerned in that case was Communist party while in the present case it is R. S. S. It is not disputed that none of these two parties has been banned. A case still nearer the point is Chintamani Purushottam Nurgaonkar v. Post Master Greneral, Central Circle, Nagpur", decided by a. Division Bench of Bombay High Court This was a case of two petitioners to whom notices had been issued as to why they should act be retired from service compulsorily under rule 3 of the 1953 Rules. Annexed to these notiees were statements of allegations purporting to show the subversive activities in which the petitioners were suspected to be engaged. Those allegations were similar and it would be useful to reproduce the allegations against one of the petitioners in that case as under :- "1. Shri C. P. Nurgaonkar, Sub-Postmaster, Tilak Statue, Nagpur, has been associating and taking active part in the acitivities of R. S. S. 2. He attended the R. S. S. trip at Starkey point at Nagpur on the 17th November 1957. 3. He participated in the Sankrant Mahotsava of the R. S. S. at Mohite ground. Nagpur on 14th January 1960. 4. Visited the R. S. S. office at Nagpur on 23rd January 1960. "while accepting the two petitions and quashing the notices issued to the petitioners, the learned Judges observed that the statement of allegations should show prima frcie that the activities which are indicated in the allegations are capable of being interpreted as subversive activiies, and that the. allegations against the petitioners in that case could not be reasonably considered as subversive activities. It was further observed: "in the case of the petitioner Chintamani the first allegation is that he has been associated and taking active part in the activities -of R. S. S. Though Chintamani has denied this allegation we may assume that the allegation is true according to the respondent. But the R. S. S is not an organisation which is declared unlawful. The allegation also does not disclose what are the activities of the R. S. S. participation in which or association with which is considered subversive. To that extent the averment is extremely vague. But the R. S. S is not an organisation which is declared unlawful. The allegation also does not disclose what are the activities of the R. S. S. participation in which or association with which is considered subversive. To that extent the averment is extremely vague. Unless a person is reasonably suspected of being engaged in doing something unlawful, or EX FACIE prejudicial to public security, it is difficult to countenance the suggestion that mere association with an institution which is neither declared as unlawful nor is alleged or shown to be indulging in. any anti-social or treasonable activities or activities leading to breach of the peace, can form a foundation for action under rule 3. "argument was advanced on behalf of the respondent in that case that the Court was not entitled to adjudicate whether or not the allegations could lead reasonably to an inference of being engaged m subversive activities. This contention, in the broad terms it was put, was not accepted and it was observed : "the action that is permitted to be taken under rule 3 as. a result of notice under rule 4, infringes on the normal rights of the public servant to continue in service till the end of his tenure. The action is admittedly taken in the interests of national security, and to. that extent is immune from challenge on merits. But what is immune is the decision of the President that it is necessary in the interest of national security to terminate the services of the public servant concerned, but it has still to beestablished -that the subversive activities:. of which the delinquent servant is charged are in fact subversive and to that extent the opinion of the President must be grounded on material which has a rational probative valuer" ( 5 ) MR. Shankar on behalf of the respondents has REFERRED TO the case Of P. Balakotaiah v. Union of india". In that case their Lordships while upholding the vires of rules 3, 4, 5 and 7 of Railway Services (Safegarding of National Security) Rules 1949, which were similar to the rules in question, refused to quash the termination of services of the appellant under rule 3 of those Rules. In that case their Lordships while upholding the vires of rules 3, 4, 5 and 7 of Railway Services (Safegarding of National Security) Rules 1949, which were similar to the rules in question, refused to quash the termination of services of the appellant under rule 3 of those Rules. Persual of the notice, which has been reproduced in that decision, goes to show that the charge against the appellant in that case was that apart from being thickly associated with communists in subversive activities and apart from attending their meetings, he carried on agitation amongst Railway workers for a general strike from November 1948. toJanuary 1949 evidently to paralyse communication and movement of assential supplies and thereby create disorder and confusion in the country. It would thus appear that there were concrete allegations in that case about the appellant being suspected to be engaged in subversive activities. Such allegations are lacking in the present case, and, in the circumstances, the respondents in my opinion, can derive no help from P. Balkotaiah s case" (supra ). ( 6 ) I may also state that in the memorandum dated 6th March 1962 the charge against the petitioner was that he was reasonably suspected to be engaged in subversive activities, while in the impugned order dated 20th September 1962 the basis of the order was that the petitioner was associated with others in subversive activities. It is however not necessary to go into this aspect of the matter because the impugned order otherwise so liable to be quashed for the reasons mentioned earlier. I would accor dingly, quash the impugned notice dated 6th March 1962 and order dated 20th September 1962, and hold that the petitioner has not been validly retired from service. In the circumstances of this case, I make no order as to costs of this petition.