State of U. P. v. Bhagwan Saran Saxena — 1971 DIGILAW 208 (ALL)

JUDGMENT V.G. Oak, C. J.. - This special appeal arises out of a service matter. Dr. B. S. Saxena joined the U.P. Public Health Service in 1944. He was confirmed in the service in 1946. In 1963 he was promoted to officiate as Assistant Director of Medical and Health Services. He held this post till September, 1970. On 10-9-1970 the State Government passed an order compulsorily retiring him from service. The order ran thus:- "In exercise of the powers mentioned in Note I to Article 465-A of the Civil Service Regulations and all the powers in this behalf, the Governor of Uttar Pradesh on being satisfied that it is in the public interest to dispense with the further services of Dr. B.S. Saxena, P.H.S., is pleased to require the said officer to retire from service with effect from the date of relief." 2. The order of compulsory retirement was challenged by Dr. B.S. Saxena by filing a writ petition. The writ petition has been allowed by a single Judge of this Court. He has quashed the order dated 10-9-1970 retiring Dr. B.S. Saxena compulsorily. Against that order the Present special appeal has been filed by the State of Uttar Pradesh. 3. The order dated 10-9-1970 was passed under Article 465-A of the Civil Service Regulations. Article 465-A is in these terms :- "For officers in Article 349-A, the rule for the grant of retiring pension is as follows :- .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... .. .. .. Note. 1. Government retains an absolute right to retire any officer after he has completed twenty-five years' qualifying service without giving any reasons and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the Public interest to dispense with the further service of all officer........." 4. The petitioner pointed out that Article 465A is confined to officers mentioned in Article 349-A. The petitioner contended that his case was not covered by Article 349-A. Consequently, he could not be retired under Article 465-A. 5. The petitioner pointed out that Article 465A is confined to officers mentioned in Article 349-A. The petitioner contended that his case was not covered by Article 349-A. Consequently, he could not be retired under Article 465-A. 5. The learned counsel for the appellant conceded that the petitioner's case is not covered by Article 349-A; consequently, it was not possible to take action against him under Article 465-A. The appellant, however, suggested that the action may be deemed to have been taken under Article 465. 6. Article 465 of Civil Service Regulations is in these terms :- " (1) A retiring pension is granted to a Government servant who is permitted to retire after completing qualifying service for 25 years ............... Note.:- (1) Government retains the right to retire any Government servant after he has completed twenty-five years qualifying service without giving any, reasons and no claim to special compensation on this account shall be entertained. This right shall only be exercised by Government in the Administrative Department, where it is in the public interest to dispense with the services of a Government servant ..................." The appellant suggested that the order dated 10-9-1970 is amply justified by the assessment might have fallen cannot be called in aid of the assessment. 7. The learned single Judge noticed that the order dated 10-9-1970 makes a pointed reference to Article 465-A, but does not mention Article 465. He, therefore, held that it was not open to the opposite party to contend that the order was in fact passed under Article 465. The same view was taken by Lokur, J. in G. D. Pandey v. State of Uttar Pradesh, Writ No. 2843 of 1970 decided on 10-3-1971. 8. In Ram Narain v. State of U.P., A.I.R. 1957 S.C. 18, it was held that that legality of a tax imposed on the assessee must be considered with reference to the clause under which the assessment is actually made, and a different clause under which the assessment might have fallen cannot be called in aid of the assessment. 9. In P. Baldkotaiah v. Union of India, A.I.R. 1958 S.C. 232, services of the petitioner were terminated under National Security Rules. The Administration suggested that the order terminating the services might be deemed to be an order under rule 148 of the Railway Establishment Code. 9. In P. Baldkotaiah v. Union of India, A.I.R. 1958 S.C. 232, services of the petitioner were terminated under National Security Rules. The Administration suggested that the order terminating the services might be deemed to be an order under rule 148 of the Railway Establishment Code. The Supreme Court observed that it was difficult to accept the suggestion of the Administration. The Court, however, observed on page 236 :- "It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form. No exception can be taken to this proposition...." 10. In Hazari Mal v. Income-tax officer, A.I.R. 1951 S.C. 200, the Commissioner of Income-tax purported to transfer a case under a provision of the Indian Act. In fact, he should have acted under the appropriate provision of the Patiala Act. It was held that the fact he referred to the Indian Act does not make the action one without jurisdiction. 11. In Afsal Ullah v. State of Uttar Pradesh, A.I.R. 1964 S.C. 264, it was held that mention of wrong provision under which bye-laws were purported to have been made was not sufficient for declaring the bye-laws invalid. 12. In N.B. Sanjana v. Elphinstone Spinning and Weaving Mills Co. Ltd., 1971(1) Supreme Court Cases, 337, their Lordships of the Supreme Court quoted the following passage from a previous judgment of the Court on page 344:- "If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well settled proposition of law..............." 13. Mr. S.C. Khare appearing for the petitioner contended that the reference to Article 465-A in the order dated 10-9 1970 suggests that the State Government considered that the petitioner was not fit to be retained in the class of officers covered by Article 349. The decision might have been different had the Government realised that the officer's case was not covered by Article 349-A. 14. The decision might have been different had the Government realised that the officer's case was not covered by Article 349-A. 14. On comparing Articles 465 and 465-A of Civil Service Regulations we find close resemblance between the provisions of Note 1 to Article 465 and Note l to Article 465-A. In each case the Government decides to retire an officer on the ground that such a step is in the public interest. If the Government came to the decision that it was not in public interest to let the petitioner continue in service it made little difference whether the officer's case is covered by Article 349-A or not. There is, therefore, no difficulty in treating the decision as one under Article 465. 15. We may point out that the order dated 10-9-1970 ran thus: "In exercise of the powers mentioned in Note I to Article 465-A of the Civil Service Regulations and all the powers in this behalf ................" The expression "and all the powers in this behalf" suggests that the State Government was prepared to utilise all the necessary powers which are analogous to Article 465-A. We have already pointed out that the provision of Note I to Article 465 is similar to the provision of Note 1 to Article 465-A. So, upon reading the order dated 10-9-1970 as a whole, we find no difficulty in supporting the order as one under Article 465 of Civil Service Regulations. 16. It was next contended by Mr. S.C. Khare that Article 465 of Civil Service Regulations stands cancelled by virtue of U.P Fundamental Rule 56. This rule has recently been amended by U.P. Act No. 5 of 1970. U.P. Fundamental Rule 56 is now a part of the statute. The first proviso to rule 56 now runs thus :- "Provided that : (1) the appointing authority may, at any time, without assigning any reason, require the Government servant to retire on three months' notice or pay in lieu of the whole or part thereof, after he attains the age of 55 years.." According to the explanation to rule 56, the decision of the appointing authority under the first proviso to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest. 17. Mr. 17. Mr. S.C. Khare contended that the provision of U.P. Fundamental Rule 56 is similar to the provision of Article 465 of Civil Service Regulations. He, therefore, suggested that Article 465 of Civil Service Regulations stands cancelled or repealed. 18. In this connection reliance was placed upon Article 309 of the Constitution of India. The proviso to Article 309 of the Constitution of India lays down that a rule framed by the Governor regulating conditions of service shall remain in operation until provision in that behalf is made by or under an Act of the appropriate Legislature. Mr. S.C. Khare contended that U.P. Legislature having taken action in the matter, Article 465 of Civil Service Regulation no longer prevails. 19. This argument would have carried weight, had the two provisions been in the same field. It is true that both the provisions deal with compulsory retirement of Government servants, and in both cases Government has to decide that such a step is in the public interest. But on comparing the two provisions, we find that the circumstances in which action is taken under two provisions are different Under Article 465 of Civil Service Regulations, action is permissible when an officer has completed 25 years of service. Under U.P. Fundamental Rule 55, action can be taken when an officer has attained the age of 55 years. In the present case the State Government took action when the petitioner was only 53 years old. Obviously, action could not be taken against him under U.P. Fundamental Rule 56. It is, therefore, incorrect to suggest that the two provision cover the same field. Since the two provisions operate under different circumstances, the U.P. Fundamental Rule 56 has not the effect of cancelling or repealing Article 465 of Civil Service Regulations. 20. Mr. S.C. Khare also suggested that existence of two provisions of the same subject permits discrimination. As already pointed out, the two provisions operate under different circumstances. There is, therefore no room for complaint on the ground of discrimination. 21. Lastly, it was urged for the petitioner that action against him was arbitrary. In the writ petition the petitioner described his service extending over a number of years. He was allowed to cross the efficiency bar in the senior scale in 1966. He was given increments regularly. There is, therefore no room for complaint on the ground of discrimination. 21. Lastly, it was urged for the petitioner that action against him was arbitrary. In the writ petition the petitioner described his service extending over a number of years. He was allowed to cross the efficiency bar in the senior scale in 1966. He was given increments regularly. In paragraph 8 of the writ petition it was stated that the petitioner has got a clean record of service. In paragraph 12 of the petition it was stated that he is mentally and physically quite fit to work. 22. The opposite party filed a counter-affidavit before the learned single Judge. But lie declined to receive the counter affidavit as evidence in the case due to delay in filing the counter-affidavit. We condoned the delay, and permitted the present appellant to use the counter-affidavit as evidence in the case. The counter-affidavit filed before the learned single Judge is not now traceable on the record. We, therefore, permitted the appellant to file a copy of the counter -affidavit filed previously. The petitioner filed a rejoinder affidavit. 23. In paragraph 9 of the counter-affidavit it is stated that adverse entries were given to the petitioner during the years 1963-64, 1964-65, 1966-67, 1967-68, 1968-69 and 1969-70. It is stated in the rejoinder affidavit that only for the year 1964-65 the so-called adverse entry was communicated to the petitioner. The other so-called adverse entries were never communicated to him. 24. It is unfortunate That the adverse entries were not communicated to the petitioner. But that does not alter the fact that the petitioner received adverse entries for a number of years up to 1969-70. 25. In State of Punjab v. Dewan Chuni Lal, A.I.R. 1970 S.C. 2086, it was held that reports relating to the period earlier then the year in which an officer was allowed to cross efficiency bar should not be considered in an enquiry against him. In the present case we are not dealing with any enquiry pending against the petitioner. The petitioner has been retired compulsorily. Assuming that the entries before he was permitted to cross the efficiency bar are of little importance, we cannot overlook the adverse entries for 1968-69 and 1969-70. 26. The petitioner's character roll is not before us. According to the petitioner, he has a clean record. According to the appellant, the petitioner's record is unsatisfactory. The petitioner has been retired compulsorily. Assuming that the entries before he was permitted to cross the efficiency bar are of little importance, we cannot overlook the adverse entries for 1968-69 and 1969-70. 26. The petitioner's character roll is not before us. According to the petitioner, he has a clean record. According to the appellant, the petitioner's record is unsatisfactory. The State Government decided to retire him from service on the ground that it is not in public interest to retain him in service It is not for the Court to decide whether the retention of the petitioner is or is not in public interest. That is a matter for the discretion of the State Government. All that the Court is concerned with is whether action against the petitioner is arbitrary or not. Paragraph 9 of the counter-affidavit suggest that action against the petitioner was not arbitrary. Thus, all the Contention advanced on behalf of the petitioner fail. The writ petition should have been dismissed. 27. The special appeal is allowed, and the writ petition is dismissed Parties shall bear their own costs throughout.