William Muljibhai Jani v. State of Gujarat — 1969 DIGILAW 28 (GUJ)

JUDGMENT : P.N. Bhagwati, J. This petition raises a short question as to the validity of the first proviso to Rule 161(1) (a) of the Bombay Civil Services Rules which empowers an appointing authority to compulsorily retire a Government servant on his attaining the age of 55 years or at any time thereafter prior to his reaching the age of superannuation, namely, 58 years. The petitioner was, at the time of his compulsory retirement, a Government servant employed as a Deputy Accountant in the Treasury Office situate at Bhadra in Ahmedabad. He completed the age of 55 years on 15th June 1966 and he would have reached the age of superannuation on 15th June 1969. The second respondent who is the Director of Accounts and Treasury and as such the appointing authority for the post held by the petitioner, however, by an order dated 2/3 February 1967. made in exercise of the power conferred upon him under the first proviso to Rule 161(1) (a) compulsorily retired the petitioner from service with effect from 4th May 1967. The petitioner made a representation to the State Government against the order of compulsory retirement but the representation was unsuccessful and the petitioner thereupon filed the present petition challenging the validity of the order of compulsory retirement on the ground that the first proviso to Rule 161(1) (a) under which it was made was constitutionally invalid as offending Articles 311(2) and 14 of the Constitution. 2. Before we examine the constitutional objections against the validity of the first proviso to Rule 161(1) (a), it is necessary to refer briefly to the position as it obtained prior to the enactment of the proviso, for the constitutional validity of the proviso must be judged in the context of the background against which it was made. Originally under the unamended Rule 161(1) (a) the age of superannuation was 55 but it was extended to 58 by an amendment of Rule 161(1) (a) made by Government Notification dated 26th September 1963. The amended Rule 161fl) (a) which came into force, from 26th September 1963 read as follows: "161(1) (a). Originally under the unamended Rule 161(1) (a) the age of superannuation was 55 but it was extended to 58 by an amendment of Rule 161(1) (a) made by Government Notification dated 26th September 1963. The amended Rule 161fl) (a) which came into force, from 26th September 1963 read as follows: "161(1) (a). Except as otherwise provided in the other clauses of the rule, the date of compulsory retirement of a Government servant other than a Class IV servant, is the date on which he attains the age of 58 years: Provided - (i) An Appointing Authority may after giving three months' previous notice in writing without assigning any reasons require a Government servant to retire from the service on the date on which he attains the age of 55 years or on any date thereafter to be specified in the notice; (ii) Any Government servant may after giving at least three months' previous notice in writing to the Appointing Authority retire from service on the date on which he attains the age of 55 years or on any date thereafter to be specified in the notice; xx xx " The Government by amending the main provision in Rule 161(1) (a) extended the age of superannuation from 55 to 58 but while extending the age of superannuation, the Government by the first proviso reserved to the appointing authority power by giving three - months' previous notice in writing to compulsorily retire a Government servant at the age of 55 or at any time thereafter to be specified in the notice. A corresponding right was also given to the Government servant by the second proviso to retire from service by giving at least three months' previous notice in writing to the appointing authority, either on attaining the age of 55 or on any subsequent date specified in the notice. The question is whether the first proviso empowering the appointing authority to compulsorily retire a Government servant between the age of 55 and the age of superannuation which is 58, satisfies the constitutional requirements of a valid legislation under Articles 311(2) and 14. 3. The question is whether the first proviso empowering the appointing authority to compulsorily retire a Government servant between the age of 55 and the age of superannuation which is 58, satisfies the constitutional requirements of a valid legislation under Articles 311(2) and 14. 3. Taking up first the constitutional challenge under Article 311.(2), the argument of the petitioner was that compulsory retirement of a Government servant before the age of superannuation under the first proviso would amount to his removal from service and since the first proviso empowered the appointing authority to bring about such removal without complying with the requirements of Article 311(2). it was inconsistent with that Article and must be held to be invalid. The petitioner of course could not dispute, in view of the consistent course of decisions of the Supreme Court, that a rule of compulsory, retirement could be validly made without offending the provisions of Article 311(2) but his contention was that such a rule of compulsory retirement would be valid only if it permitted compulsory retirement of a Government servant after he had put in a reasonably long period of minimum qualifying service and since the first proviso did not impose the requirement of a minimum period of qualifying service before the power of compulsory retirement could be exercised against a Government servant, it was within the mischief of Article 311(2). This contention was rested almost entirely on certain observations in the majority judgment of the Supreme Court in Motiram Deka v. General Manager, North East Frontier Railway, A.I.R. 1964 SC 600 and it would therefore be convenient to briefly examine the effect of that judgment. 4. The question which arose before the Supreme Court in that case concerned the validity of Rules 148(3) and 149(3) of the Railway Rules. These Rules conferred power on the railway administration to terminate the service of all railway employees to whom the Rules applied by merely giving notice for a specified period or paying salary in lieu of such notice at any time during the period of service, long before the age of superannuation. Dealing with the question of validity of these Rules, the majority judgment observed that a person who substantively holds a permanent post has a right to continue in service subject only to the rule of superannuation and the rule as to compulsory retirement. Dealing with the question of validity of these Rules, the majority judgment observed that a person who substantively holds a permanent post has a right to continue in service subject only to the rule of superannuation and the rule as to compulsory retirement. The majority judgment accepted the position that if there is a rule fixing the age of superannuation, it would be perfectly constitutional because rules of superannuation are based on considerations of life expectation. mental capacity of the civil servants having regard to the climatic conditions under which they work and the nature of the work they do: they are not fixed on any adhoc basis and do not involve exercise of any discretion. Vide paragraph 25 of the judgment of Gajendragadkar, J. at page 610 of the report. So also in regard to the rule as to compulsory retirement, the majority judgment recognised an exception in view of the fact that there was a consistent course of decisions which had upheld the validity of the rules of compulsory retirement but made an express reservation that if a rule of compulsory retirement purported to give authority to the Government to terminate service of a permanent public servant at a very early stage of his career, the question as to whether such rule is valid may have to be considered on a proper occasion. While making this reservation, certain observations were made in the majority judgment which were strongly relied upon on behalf of the petitioner. Referring to the earlier decision of the Supreme Court in State of Bombay v. Saubhag Chand Doshi, A.I.R. 1957 SC 892, the majority judgment said:- "It would be noticed that the rule providing for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to removal under Article 311(2) because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in. If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to judgment, would violate Article 311(2) and though the termination of a servant's service may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of Article 311(2). If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to judgment, would violate Article 311(2) and though the termination of a servant's service may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of Article 311(2). With respect, we think that this statement correctly represents the true position in law." The majority judgment after referring to certain other decisions of the Supreme Court observed at the end: ". . . . we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311(2)." These observations, read literally as if they embodied some mechanical formula, might seem to suggest that a rule of compulsory retirement would not be valid unless it prescribed in so many words a specified minimum period of service after which alone compulsory retirement can be ordered against a civil servant and it would not be sufficient to prescribe merely a reasonably high age for compulsory retirement. But we do not think this is a correct reading of the observations of the Supreme Court. 5. In the first place, it must be remembered that the question which fell to be decided in Motiram Deka's case, A.I.R. 1964 SC 600 had nothing to do with any rule of compulsory retirement. It was only because an argument was advanced in that case that the previous decisions of the Supreme Court, in which the validity of the relevant rules of compulsory retirement had been upheld, logically supported the contention that the impugned Rules 148(3) and 149(3) were also valid, that it became necessary to examine those decisions and to consider what was the effect of the observations made in the course of those judgments. The Supreme Court was not directly concerned with any question relating to the validity of a rule of compulsory retirement and the observations of the majority judgment cannot therefore be read as if they contain a complete and exhaustive statement of the law on the subject. Moreover these observations must be read in the context in which they were made. The Supreme Court was not directly concerned with any question relating to the validity of a rule of compulsory retirement and the observations of the majority judgment cannot therefore be read as if they contain a complete and exhaustive statement of the law on the subject. Moreover these observations must be read in the context in which they were made. If we closely examine the majority judgment, it is clear that the trend of the majority judgment was that where a permanent Government servant is retired compulsorily before the age of superannuation, such compulsory retirement might be liable to be regarded as removal within the meaning of Article 311(2) but since there was a consistent course of decisions which had upheld the validity of the rules in regard to compulsory retirement, the majority judgment did not think it expedient "to reopen an issue which was covered by several prior reported decisions of the Court" and accepted the position that compulsory retirement constitutes an exception to the general rule that termination of service of a permanent Government servant amounts to his removal within the meaning of Article 311(2). But while affirming this exception the majority judgment took care to make a reservation that if a rule of compulsory retirement purports to give authority to Government to terminate the service of a permanent public servant at a very early stage of his career, the question of validity of such rule may have to be examined. This reservation was made because it was apprehended that otherwise security of tenure guaranteed to Government servants under Article 311(2) might be rendered illusory by a rule permitting compulsory retirement at any stage of the career of the Government servant. The majority judgment appeared to take the view that a rule of compulsory retirement would not be valid if, having fixed a proper age of superannuation, it permits a permanent Government servant to be retired compulsorily at a very early stage of his career and as a corollary of that proposition, the majority judgment pointed out that if a rule of compulsory retirement permits the appropriate authority to retire compulsorily a permanent Government servant, without prescribing a minimum period of service, it would not stand the scrutiny of Article 311(2). The requirement of a minimum period of service was insisted only with a view to emphasising that it should not be possible to terminate the service of a permanent Government servant at a very early stage of his career by taking action under the rule. He should have put in a reasonably long period of service before he can be compulsorily retired, for otherwise it would be a misnomer to call it "retirement". But that does not mean that if, instead of insisting upon a minimum period of service, a rule of compulsory retirement provides a reasonably high age after which alone compulsory retirement can be ordered against a Government servant, such rule would be invalid. The provision of a reasonably high age for compulsory retirement would be merely another mode of ensuring that compulsory retirement does not take place at a very early stage of the career of a Government servant. Ordinarily a person would join Government service at a fairly early age - as a matter of fact Rule 32 of the Bombay Civil Services Rules lays down that a person whose age exceeds twenty-five years may not be appointed to a post in superior pensionable service, that is, a pensionable service other than Class IV service and by the time he reaches the age at which compulsory retirement can be ordered under such a rule, he would have put in a reasonably long period of service and the principle that a rule of compulsory retirement should not be such as to authorise termination of service of a permanent Government servant at an early stage of his career would be satisfied. Moreover compulsory retirement, as pointed out by Venkatarama Aiyar, J. in Saubhag Chand Doshi's case, A.I.R. 1957 SC 892, is merely another mode of retirement and having regard to the ordinary acceptation of the word "retirement" in the context of service rules, termination of service of a Government servant at a reasonably high age could appropriately be called retirement. If therefore a rule of compulsory retirement provides that a Government servant may be compulsorily retired on attaining a reasonably high age, such a rule would not fall within the reservation made in the majority judgment and would have to be held to be valid. 6. If therefore a rule of compulsory retirement provides that a Government servant may be compulsorily retired on attaining a reasonably high age, such a rule would not fall within the reservation made in the majority judgment and would have to be held to be valid. 6. This position becomes abundantly clear if we refer to the subsequent decision of the Supreme Court in Gurdev Singh v. The State of Punjab, A.I.R. 1964 SC 1585. The question which arose in that case was whether clause (1) of Article 9.1 of the Pepsu Service Regulations which conferred on the Government (power to compulsorily retire a Government?) servant after he had put in ten year's qualifying service contravened Article 311(2) and was on that account invalid. The Supreme Court held that since the rule of compulsory retirement contained in cl. (1) of Article 9.1 purported to give power to the Government to compulsorily retire a permanent Government servant only after ten year's service, it was within the mischief of Article 311(2) and was therefore liable to be struck down as invalid. Gajendragadkar, C. J. speaking on behalf of the Supreme Court stated: "If a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311(2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service, that cannot, we think, be treated as falling outside Article 311(2). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is in substance removal under Article 311(2). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is in substance removal under Article 311(2). It is because it was apprehended that rules of compulsory retirement may purport to reduce the prescribed minimum period of service beyond which compulsory retirement can be forced against a public servant that the majority judgment in the case of Moti Ram Deka, A.I.R. 1964 SC 600 clearly indicated that if such a situation arose, the validity of the rule may have to be examined, and in doing so, the impugned rule may not be permitted to seek the protection of the earlier decisions of this Court in which the minimum qualifying period of service was prescribed as high as 25 years, or the age of the public servant at 50 years." The last part of these observations clearly shows that rules of compulsory retirement in the earlier decisions of the Court were held to be valid because the minimum qualifying period of service prescribed was as high as 25 years or the age at which a public servant could be compulsorily retired was fixed as high as 50 years. It would therefore seem that if a rule of compulsory retirement provides that a Government servant may be compulsorily retired on his attaining the age of 50 years, such a rule would be valid as being within "the protection of the earlier decisions of this Court." 7. The decision of the Supreme Court in Shivacharana v. The State of Mysore, A.I.R. 1965 SC 280 is also decisive of the point. The rule of compulsory retirement which came up for consideration in that case provided that the Government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age. Now under this rule of compulsory retirement a Government servant could be compulsorily retired on his attaining 50 years of age even if he had put in less than 25 years of active service and yet the Supreme Court took the view that it was a valid rule. Now under this rule of compulsory retirement a Government servant could be compulsorily retired on his attaining 50 years of age even if he had put in less than 25 years of active service and yet the Supreme Court took the view that it was a valid rule. The Supreme Court after referring to the decision in Moti Ram Deka's case, A.I.R. 1964 SC 600 observed: "The only exception the majority judgment made in that behalf was that it may be necessary to consider whether such a rule of compulsory retirement would be valid if having fixed a proper age of superannuation, it permits a permanent servant to be retired at a very early stage of his career. This consideration does not arise in the present case, because, as we have already seen, note 1 to R. 285 requires that the Government servant against whom an order of compulsory retirement is proposed to be passed must have completed either 25 years of active service or attained 50 years of age." So also in Ram Prasad v. State of Punjab, A.I.R. 1966 SC 1607, the Supreme Court upheld the validity of a rule of compulsory retirement which vested power in the Board of Directors of the Bank of Patiala at their discretion and without giving any reasons to retire compulsorily any employee from service of the Bank after he had completed the age of 50 years or service of 25 years, whichever happened first. The validity of the first proviso cannot therefore be assailed on the ground that it does not prescribe any minimum period of service for enforcing compulsory retirement against a Government servant but permits the appointing authority to retire compulsorily a Government servant on his attaining the age of 55 years. The age fixed by the first proviso for enforcing compulsory retirement against a Government servant is as high as 55 and having regard to Rule 32 of the Bombay Civil Services Rules, it is clear that ordinarily a Government servant would have put in at least 30 years of service by the time he reaches the age of 55 years. Moreover it may also be noted that, the age which has been fixed for compulsory retirement is the same as the original age of superannuation prior to the amendment of 26th September 1963. Moreover it may also be noted that, the age which has been fixed for compulsory retirement is the same as the original age of superannuation prior to the amendment of 26th September 1963. By the amendment the Government extended the age of superannuation from 55 years to 58 years and while extending the age of superannuation, the Government provided that on attaining 55 years, which was the original age of superannuation, a Government servant may be compulsorily retired. The first proviso which provides for compulsory retirement of a Government servant after he has attained the age of 55 years cannot therefore be held to be violative of Article 311(2) and the constitutional challenge based on that Article must fail. 8. That takes us to the constitutional challenge under Article 14. The argument of the petitioner & under this head of challenge was that the first proviso conferred unguided arbitrary power on the appointing authority to pick and choose, out of Government servants who have attained 55 years or above, any Government servant it liked for compulsory retirement before the age of superannuation and there was no guiding policy or principle laid down by the rule making authority to control or regulate the discretion of the appointing authority in exercising its power under the first proviso. The discretion given to the appointing authority was wholly unguided and unfettered and arbitrary and uncontrolled power was left to the appointing authority to select at its sweet will out of Government servants who have attained 55 years or above any person against whom action may be taken under the first proviso. The whole matter was left to the unrestrained will of the appointing authority, without there being anything to ensure proper execution of the power and the power was so conferred as to enable the appointing authority to discriminate between two Government servants similarly situated by taking action in one case and not taking action in the other without offending the language of the first proviso. The first proviso was therefore, said the petitioner, discriminatory and violative of the equal protection clause contained in Article 14. 9. The first proviso was therefore, said the petitioner, discriminatory and violative of the equal protection clause contained in Article 14. 9. The principles governing the determination of the question of validity of a statute attacked as discriminatory and violative of the equal protection clause are now well settled and they were stated succinctly and with great clarity by the Supreme Court in Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, A.I.R. 1958 SC 538. The Supreme Court in this case pointed out that a statute which may come up for consideration on a question of its validity under Article 14 may fall within one or the other of five classes. Of these five classes, the third and the fourth are material for our purpose and they were as follows: "(iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law, as it did in State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 234 : A.I.R. 1952 SC 75, Dwarka Prasad v. State of Uttar Pradesh, 1954 SCR 803 : A.I.R. 1954 SC 224 and Dhirendra Kumar Mandal v. Superintendent and Remembrancer of Legal Affairs, 1955-1 SCR 224 : A.I.R. 1954 SC 424. (iv) A statute may not make a classification of the persons or things for the purpose of applying its provisions and may have it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification, the Court will uphold the law as constitutional, as it did in Kathi Raning Rawat v. The State of Saurashtra, 1952 SCR 435 : A.I.R. 1952 SC 123." The first proviso obviously does not make a classification of the Government servants to whom its provisions are intended to apply but leaves it to the discretion of the appointing authority to select the Government servants who may be proceeded against under its provisions and the question therefore arises, in what class does the first proviso fall: does it fall within the third class or the fourth? The answer to the question depends upon whether there is any policy or principle laid down by the rule-making authority to guide the exercise of the discretion of the appointing authority in the matter of selection of the Government servants against whom action may be taken under the first proviso." 10. It is no doubt true that neither the first proviso nor any other Rule expressly lays down any principle or policy to guide the appointing authority in the exercise of its discretion under the first proviso. But on that account the conferment of the discretion does not become bad. It is no doubt true that neither the first proviso nor any other Rule expressly lays down any principle or policy to guide the appointing authority in the exercise of its discretion under the first proviso. But on that account the conferment of the discretion does not become bad. It is now well settled, as pointed out by the Supreme Court in Jyoti Prasad v. Union Territory of Delhi, A.I.R. 1961 SC 1602 that it is not "essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself". The policy or principle to guide the exercise of discretion vested in the authority under a statute may be gathered from the provisions of the statute, from the preamble read in the light of the surrounding circumstances taken in conjunction with well known facts and, if necessary, from the object and purpose sought to be achieved by the enactment. If the legislation indicates a definite policy or objective which inspires it and which it seeks to attain and as a means of achieving that object, it vests discretion in the authority, the discretion so vested cannot be said to be unfettered or unguided: the guidance in such a ease would be derived from the policy and purpose of the legislation. Vide, A.I.R. 1952 SC 123 and Jyoti Prasad's case, A.I.R. 1961 SC 1602 (supra). We must therefore proceed to examine whether the discretion conferred on the appointing authority under the first proviso is arbitrary, unfettered and uncontrolled or there is any guiding policy or principle to control and regulate the exercise of-such discretion. 11. Before we proceed to examine this question, it is necessary to refer to an argument advanced on behalf of the State based on a circular dated 25th October 1963 issued by the Government laying down certain criteria and procedure to be followed by the appointing authority in exercising its power under the first proviso. The contention of the State was that this circular provided guidance to the appointing authority in exercising its power under the first proviso and the first proviso could not therefore be said to be invalid as conferring an unfettered and unguided power on the appointing authority. The contention of the State was that this circular provided guidance to the appointing authority in exercising its power under the first proviso and the first proviso could not therefore be said to be invalid as conferring an unfettered and unguided power on the appointing authority. But this contention is without force since the question whether the first proviso is discriminatory in character or not has to be decided on the terms of the first proviso and not having regard to any subsequent action which might have been taken by the Government. 12. Now, so far as the first proviso is concerned, the power conferred by it is exercisable by the appointing authority who would ordinarily be a senior officer of the Government. When the appointing authority is called upon to decide whether a Government servant should be compulsorily retired on his attaining the age of 55 or above, the question to which he would have to address himself would be whether, despite the age of superannuation being 58, he should be compulsorily retired from service at an earlier age. It must be assumed that when the appointing authority considers this question, it will act reasonably and bona fide and take into account only relevant factors and circumstances bearing on the question whether the Government servant should be compulsorily retired. If the appointing authority take into account any irrelevant or extraneous factors and circumstances for the purpose of compulsorily retiring a Government servant, such compulsory retirement would obviously be bad. To illustrate, suppose an appointing authority compulsorily retires a Government servant on the ground that he does not keep a beard or moustache or belongs to a particular religious or linguistic group or any other similar reason which is wholly irrelevant or extraneous, the order of compulsory retirement would certainly be liable to be struck down. The appointing authority would, of necessity, have to take into account only relevant factors and circumstances such as the nature of functions and duties attached to the post, physical and mental condition of the Government servant and his fitness or suitability for being continued in the post having regard to his past record which would also include integrity, and in doing so he would be guided by considerations of public interest and administrative efficiency. The Power to compulsorily retire a Government servant at the age of 55 or above & a power conferred on the appointing authority for protection of public interest and administrative efficiency and it may be reasonably assumed that the power will be exercised by the appointing authority for effectuating the purpose and policy for which it has been given. There is undoubtedly a discretion vested in the appointing authority but every discretionary power is not necessarily discriminatory and the possibility of abuse of power cannot invalidate the conferment of power. There is in our view a clear policy discernible in the scheme of the rules relating to the circumstances in which the power is to be exercised and the power being conferred for the purpose of effectuating that policy must be held to be valid. The first proviso cannot therefore be struck down on the ground that it confides absolute and un-canalised power in the appointing authority. 13. This view which we are taking finds support from the decision of Shah, J. in Moti Ram Deka's case, A.I.R. 1964 SC 600. There also the validity of Rule 148(3) was attacked on the ground that it conferred unfettered and unguided power on the railway administration to terminate service of a railway employee without there being any principle or policy to guide the exercise of such power. Out of the seven judges who decided this case, four speaking through Gajendragadkar, J. and Subba Rao, J. in a separate judgment did not examine the merits of this contention since they were of the view that there was another ground on which Rule 148(3) was violative of Article 14. Das Gupta, J. . took the view that Rule 148(3) did not give guidance to the authority who would take action on it as regards the principle to be followed in exercising the power and the rule was therefore liable to be struck down as contravening the requirements of Article 14. Shah, J. on the other hand took a different view and upheld the validity of Rule 148(3) in these words: "The Rule, it is true, does not expressly provide for guidance to the authority exercising the power conferred by Rule 148 but on that account the, Rule cannot be said to confer an arbitrary power and be unreasonable, or be in its operation unequal. The power is exercisable by the appointing authority who normally is, if not the General Manager, a senior officer of the Railways. In considering the validity of an order of determination of employment under Rule 148, an assumption that the power may be exercised mala fide and on that ground discrimination may be practised is wholly out of place. Because of the absence of specific directions in Rule 148 governing the exercise of authority conferred thereby, the power to terminate employment cannot be regarded as an arbitrary power exercisable at the sweet will of the authority, when having regard to the nature of the employment and the service to be rendered, the importance of the efficient functioning of the rail transport in the scheme of our public economy, and the status of the authority invested with the exercise of the power, it may reasonably be assumed that the exercise of the power would appropriately be exercised for the protection of public interest or on grounds of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully, and possibility of abuse of power will not invalidate the conferment of power. Conferment of power has necessarily to be coupled with the duty to exercise it bona fide, and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. If in the scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme, and is not open to attack as infringing the equality clause. It may be remembered that the rules relating to termination of employment of temporary servants and those on probation, and even those relating to compulsory retirement generally do not lay down any specific directions governing the exercise of the power conferred thereby. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in, the cadre and the larger interests of the public being served by retaining the public servant concerned in service. The reason is obvious: the appointing authority must in all these cases be left with discretion to determine employment having regard to the exigencies of the service, suitability of the employee for absorption or continuance in, the cadre and the larger interests of the public being served by retaining the public servant concerned in service. In my view Rule 148(3) cannot, therefore, be regarded as invalid either as infringing Article 311(2) of the Constitution or as infringing Article 14 of the Constitution. For the same reasons Rule 149(3) cannot also be regarded as invalid." These observations are undoubtedly not binding upon us since they represent the view of only one Judge as against a different view taken by another Judge, the majority not expressing any opinion on the point, but with the greatest respect, we agree with the view expressed in these observations and for the reasons stated there, we hold that the first proviso does not offend the equal protection clause contained in Article 14. 14. Since the only ground on which the validity of the order of compulsory retirement was challenged in the present case was that the first proviso was invalid, the petition fails and the rule is discharged. There will be no order as to costs of the petition. Petition dismissed.