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1969 DIGILAW 18 (DEL)

UNION OF INDIA v. T. S. MALHOTRA

1969-01-17

I.D.DUA, S.N.SHANKAR, V.S.DESHPANDE

body1969
SHANKER ( 1 ) THE question for decision before the Fullbench is whether the notice dated 23/09/1966, issuedby the Secretary to Government of India under Rule 56 (j) ofthe Fundamental and Supplementary Rules is Valid when admittedly the appropriate authority to issue this notice in this casewas the President and the notice is signed by the Secretary tothe Government of India and does not Indicate that the appropriate authority formed an opinion that it was in public interest to retire the Government servant concerned. ( 2 ) THE petitioner joined service on 27/05/1929. On 13/06/1946, he was promoted to the post of Secretariat Superintendent Class II (Gazetted) and was later confirmed substantivelyon 24/04/1956 in the rank of Section Officer (Gazette ). Witheffect from 22/01/1966, he was promoted and sent ondeputation to a Senior Class I post as Administrative Officer,central Mechanised Farm, Suratgarh. This appointment required the sanction of the President which was duly accordedand published in Part I. Section 2 of the Gazette of India. The petitioner contended that as a Ministerial Government servant,having been appointed substantively before Match 31, 1938,with a lien on the permanent post, he was governed by Fundamental Rule 56 Clause (c) and was entitled to be retamed inservice till be attamed the age of 60 years on Septemner 14,1971. In August, 1966, however, memorandum No. 2-40/66-Estt. I, dated 30/08/1966 was served on him and he wasinformed that the question of his retention in service beyond55 years of age was reviewed in terms of the Ministry of Homeaffairs Memorandum No. 33/2/63-Estt (A) dated 3/12/1963 and that it was decided not to retain him in service afterhe attained the age of 55 years on 14/09/1966 and that"under F. R. 56 (j) of the Fundamental and Supplementary Rules,vol. I he will be deemed to have retired on the expiry of threemonths from the date of this Memorandum. " Later, however,in supersession of this Memorandum another notice No. 2-40/66-Estt. I, dated 23/09/1966 was sent to him whichstated that he shall retire from service on the expiry of threemonths from the service of that notice. Invoking Articles 226and 227 of the Constitution, the petitioner attacked thisnotice and prayed that the same may be quashed on thegrounds mentioned in the petition. I, dated 23/09/1966 was sent to him whichstated that he shall retire from service on the expiry of threemonths from the service of that notice. Invoking Articles 226and 227 of the Constitution, the petitioner attacked thisnotice and prayed that the same may be quashed on thegrounds mentioned in the petition. By order dated 2 6/04/1968, this petition was accepted by the learnedsingle Judge who held that the order of retirement passedagainst the petitioner was in contravention of provisions of Rule56 (j) and was, therefore, invalid and ineffective. The respondent, aggrieved from this order, came up in appeal orderclause 10 of the Letters Patent and the Division Bench havingregard to the nature of the points involved and the reference tothe full Bench in an other case of a point urged in this case atthat stage, that the impugned order was duly authenticated, referred this case also to a larger Bench and this is how this matteris now before this Bench for decision. ( 3 ) IT is not disputed by the learned counsel for the appellantthat the action against the petitioner was taken under the provisions of Rule 56 (j) of the Fundamental and Supplementaryrules and the notice was issued to him by the appropriateauthority under this provision. Fundamental Rule 56 (j) assubstituted by the Fundamental (6th Amendment) Rules, 1965. hereafter called "the Rules" reads as under : "56 (J ). Notwithstanding anything contained in this Rule,the appropriate authority shall, if it is of the opinionthat it is in the public interest to do so, have theabsolute right to retire any Government servant afterhe has attained the age of 55 years by giving himnotice of not less than 2 months in writing; Provided that nothing in this clause shall apply to agovernment servant referred to inclause (e) whoentered Government service on or before the 2 3/07/1956, and to a Government servant referredto in Clause (f ). NOTE 1 : "appropriate authority" means the authoritywhich has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire. NOTE 2 : The three months notice referred to in clause (j) or clause (k) may be given before the Government servant attains the age of 55 years, providedthat the retirement takes place after he has attainedthat age. NOTE 2 : The three months notice referred to in clause (j) or clause (k) may be given before the Government servant attains the age of 55 years, providedthat the retirement takes place after he has attainedthat age. " ( 4 ) A bare reading of the Rules shows that before action canbe taken under this Rule, the appropriate authority has (1)to form opinion that it is in public interest to retire the Government servant concerned after he has attained the age of 55years (2) then to serve a notice of not less than three monthson him. in writing. The appropriate authority according tonote 1 appended to this rule means the authority which has thepower to make the substantive appointment to the post fromwhich the Government servant is required to retire. The petitioner in this case was admittedly, appointed by the President tothe post held by him at the time the impugned notice was servedon him, and it is not disputed before us that in this case theappropriate authority to take action against him under clause (j), Rule 56, was the President. ( 5 ) THE notice issued to the petitioner, copy of which hasbeen filed on the record as Annexure "f" is in the followingterms: "no. 2-40/66-Estt. 1. Government of Indiaministry of Food, Agriculture,comnaunity Development and Corporation (Department of Agriculture)New Delhi, dated 23/09/1966noticesabjeet : Retirement from service -Notice to Shrit. S. Malhotra, Section Officer, of C. S. S. IN accordance with para 6 of the Ministry of Home Affairso. M. No. 33/18/62-Estts (A) dated the 30/11/1962,shri T. S. Malhotra, a Section Officer of the C. S. S. in the cadreof the Ministry of Food, Agriculture, Community Developmentand Corporation (Department of Agriculture) at present ondeputation as Administrative Officer, Central Mechanised Farm,suratgarh is hereby given notice that he shall retime from serviceon the expiry of three months from the date of service of thisnotice on him. (This supersedes this Department Memo ofeven number dated the 30/08/1966.)". sd/-B. SIVARAMAN,secretary to the Government of India. Shri T. S. Malhotra, Administrative Officer, Centralmechanised Farm, Suratgarh. " ( 6 ) THIS notice does not state that any one had exercised hismind and formed an opinion that it was in public interest toretire the petitioner nor has anything been placed on the recordon referred to at the time of arguments. to show that this hadbeen done in this case. " ( 6 ) THIS notice does not state that any one had exercised hismind and formed an opinion that it was in public interest toretire the petitioner nor has anything been placed on the recordon referred to at the time of arguments. to show that this hadbeen done in this case. It is signed by Shri B. Sivaraman, Secretary to the Government of India. At the stage when thematter was argued before the Division Bench, a suggestion wasmade that this notice was an instrument duly authenticatedwithin the meaning of sub-clause (2) of Article 77 of the Constitution but this Argument has not been taken new. Nor hasany independent evidence been placed on the record to showthat the notice was made and executed In the name of thepresident within the first part of sub-clause (2) of Article 77 ofthe Constitution. ( 7 ) SHRI Prakash Narain, learned counsel appearing for theappellant, has now referred as to Rules 3 and 11 of the Government of India, Transaction of Business Rules, 1961. Theserules simply provide that all business allotted to a Department under the Government of India (Allocation of Business)Rules 1961, shall be disposed of by or under the general orspecific directions of the Ministers in charge and that in eachdepartment the Secretary shall be the administrative head thereof responsible for the proper transaction of business and theobservance" of these Rules. The Transaction of Business Rules,however, only lay down the framework in which the Minister,the Secretary and the Officers subordinate to them have. to act. They do not, confer powers on particular officers to act onbehalf of the President in particular matters. On the other hand,rule 3 thereof implies that other provisions of these Rules provide for consultation with other Departments and submission ofspecified eases to the Prime Minister, the Cabinet and its Comimttees and the President. It also says that the rest of thebusiness allotted to the Department shall be disposed of by orunder the general or specific directions of the Minister-in-charge. It is necessary, therefore, to know the general or specific directions of the Minister-in-charge as to which typeof cases are to be disposed of by whom, viz. by the MINISTER, by the Secretary or by the other Officers. Ruleii does not, show that the Secretary has to discharge all theother business. It is necessary, therefore, to know the general or specific directions of the Minister-in-charge as to which typeof cases are to be disposed of by whom, viz. by the MINISTER, by the Secretary or by the other Officers. Ruleii does not, show that the Secretary has to discharge all theother business. The appellants have, therefore, failed to showto the Court that the Secretary had been empowered to compulsorily retire the respondent by virtue of a general or specificdirections of the Minister-in-charge. ( 8 ) DURING the arguments we sought to know from the learned counsel for the appellant as to to which type of cases are tobe dealt with by whom in the Department or the Ministry. Thelearned counsel invited our attention to Part II of the officeorder No. 10 of 1962 dated 9/05/1962 at page 229 of therecord. Though this document has not been referred to in thepleadings and this appeal can be disposed of without referenceto it, it may be observed that a reference to this documentwould confirm what we have said above. This document is anorder which fills in the details, which are not covered by Ruleno. 3 of the Transaction of Business Rules. Paragraph 2 of thisorder states that all cases of appointments to Class I posts, whichdo not require the approval of the Appointment Committee ofthe Cabinet and relate to subjects mentioned inparagraph 1of the order, would be submitted to the Minister of State foragriculture or the Deputy Minister for approval. The appointment of the respondent was to the Suratgarh Agriculture Farm. They very first item of group A in the first paragraph of the Orderdeals with cases relating to agricultural production. Presumably,therefore, the appointment to the Suratgarh Agricultural Farm isincluded in this item. Alternatively, group C in paragraph 1deals with all other cases relating to the Department of Agriculture. This residuary item would include the Suratgarh Agricultural Farm if it is not included in the first item of group. A. In either case, a reference for approval to one of the Ministersis necessary for appointment to Class I Post in the Suratgarhagricultural Farm, like the one held by the respondent. According to F. R. 56 (i), the appropriate authority means the authority. which has the power to make substantive appointments to thepost from which the Government servant is required to retire. According to F. R. 56 (i), the appropriate authority means the authority. which has the power to make substantive appointments to thepost from which the Government servant is required to retire. SUCH an authority in this case was, therefore, one of the Ministermentioned in the order referred to above. The learned counselfor the appellant had to concede that there is nothing to showthat any such reference for approval was made to any of theministers before the respondent was asked to retire compulsorily. This would mean that the appropriate authority has not orderedthe compulsory retirement of the respondent. It was orderedby the Secretary, who was not the appropriate atuhority. ( 9 ) IN view of the above reasons the appeal is dismissed, butwithout costs.