B. K. Ghosh v. State of West Bengal — 1975 DIGILAW 251 (CAL)

Judgment : Mukherjea J. : This appeal is directed against a judgment and order of Amiya Kumar Mookerji J. dated July 7, 1975 by which his Lordship discharged a Rule. By the Rule the appellant B.K. Ghose, latterly the Director of Public Prosecutions, sought to impugn an order dated March 11, 1975 by which he was compulsorily retired by the Governor, in exercise of the power conferred by Cl. (ii) of Sub-Rule (aa) of Rule 75 of the West Bengal Service Rules. Port. I on the ground that the Governor, being the appointing authority, was of the opinion that it was in the public interest so to do. It is not in dispute that the appellant has completed the age of 56 years. 2. The appellant was appointed temporarily on August 16, 1961 to the post of Director of Public Prosecutions, West Bengal, a Class I post, in the Judicial Department. Rule 4 of the West Bengal Service (Temporary and quasi-permanent status) Rules, 1967 provides that a temporary Government servant should be deemed to be in service with permanent status if he has been in continuous temporary or quasi-permanent service for more than 5 years, and necessary declaration has been made by the appointing authority. No such declaration was made and the appellant's service therefore remained throughout of a purely temporary character and could be terminated by giving one month's notice or one month's pay and allowances in lieu thereof as prescribed by Rule 5. 3. It appears that a criminal case was started before the Court of the Sub-Divisional Magistrate, Alipore against three persons, Amiya Roy Chowdhury alias Dadaji, Anjali Banerjee and Rathindra Banerjee. 4. The charge against Amiya Roy Chowdhury was under Sec. 120 (b) read with Secs. 420/468 and 471 of the Indian Penal Code. 5. Charge-sheets were submitted against the aforesaid persons on January 16, 1975 on the basis of the opinion of the Legal Remembrancer. On the same day, the appellant filed an application before the learned Sub-Divisional Magistrate praying that Amiya Roy Chowdhury be discharged. In his petition, the appellant stated 'the case in question, implicated an August personality who is universally known as Dadaji and whose earthly name is Amiya Roy Chowdhury, widely known as a man of miracles all over India and abroad. In his petition, the appellant stated 'the case in question, implicated an August personality who is universally known as Dadaji and whose earthly name is Amiya Roy Chowdhury, widely known as a man of miracles all over India and abroad. Many eminent people of the world have spoken about him, his duties and supernatural powers, described him as an incarnation of God Himself. It is surprising that such a personality has been unnecessarily implicated in a criminal case. As late as August last year, a very important personality in the highest hierarchy of judiciary of India requested me to take careful note of the case against Dadaji. High sense of decorum and-decency prevents me from disclosing his name and identity. Being a humble servant of law and justice I took this cautious counsel in all sincerity and started an investigation myself, independently of the investigation started by the Police. I examined many luminaries both in the domain of law as well as in the field of letters and I have come to a definite conclusion that Dadaji is above all suspicion and the case against him is baseless and the allegations are not only frivolous and fantastic but seem to be a tissue of lies and falsehood. I have decided that it is a fit case where I should go out of my ordinary way and intervene for the ends of justice. 6. Thereafter, on the 17th January 1975, the Deputy Commissioner of Police, Detective Department, Calcutta sent a Report to the Commissioner of Police that the Legal Remembrancer had gone through the records, discussed with the investigating Officer and opined that there were sufficient materials to submit charge-sheets against all the accused persons including Amiya Roy Chowdhury. As per opinion of the Legal Remembrancer, charge-sheets were submitted on January 16, 1975 in the court of the Sub-Divisional Magistrate, Alipore. 7. He added that while the case was being put up before the learned Magistrate, Shri B.K. Ghose, Director of Public Prosecutions appeared in court, argued in favour of Amiya Roy Chowdhury and told the Court that he did not agree with the charge-sheet filed by the Investigating Officer and denounced the investigating agency for not having consulted him before submitting the charge-sheet. 8. The learned Magistrate heard Shri Ghose, but accepted the charge-sheet submitted against all the accused persons. 9. 8. The learned Magistrate heard Shri Ghose, but accepted the charge-sheet submitted against all the accused persons. 9. In the concluding paragraph of his Report, the Deputy Commissioner of Police stated that the conduct of Shri B. K. Ghose, Director of Public Prosecutions was highly unbecoming of his status and the facts should be brought to the notice of the Government for whatever action, the Government might think fit to take. 10. The Commissioner of Police on 18th January, 1975 forwarded the Report of the Deputy Commissioner of Police to the Chief Secretary. In his note to the Chief Secretary, the Commissioner of Police stated that Sri B. K. Ghose, Director of Public Prosecutions appeared on his own in Court and filed objection and created an embarassing situation by appearing and championing the cause of the accused No.1 Amiya Roy Chowdhury and also by denouncing the investigating Agency for not having consulted him before submitting the charge-sheet. The appearance of Shri Ghose in court was unwarranted and his conduct was unbecoming of his status. He concluded by saying that he brought all these matters to the notice of the Government for taking any action which the Government might think fit. 11. On January 24, 1975 the Chief Secretary recorded the following note in the file : "The duties of the Director of Public Prosecutions have been laid down under Rule 52(d) of the L.R.'s Manual. The Director of Public Prosecutions can only conduct a case when so required by the L. R. In this case, the Calcutta Police completed the investigation into the allegations against Shri Amiya Roy Chowdhury alias Dadaji and others. On completion of the investigation, the Calcutta Police consulted L. R. and after obtaining L. R.'s advice submitted a charge sheet against Shri Amiya Roy Chowdhury and others. It is rather strange that Shri B. K. Ghosh, the present Director of Public Prosecutions, appeared in the Sub-Divisional Magistrate's Court, Alipore filed a petition and requested the Court to discharge Shri Amiya Roy Chowdhury. The Court, however, did not accept the advice of Shri B. K. Ghosh, Director of Public Prosecutions. It is rather strange that Shri B. K. Ghosh, the present Director of Public Prosecutions, appeared in the Sub-Divisional Magistrate's Court, Alipore filed a petition and requested the Court to discharge Shri Amiya Roy Chowdhury. The Court, however, did not accept the advice of Shri B. K. Ghosh, Director of Public Prosecutions. Subsequently, Shri Ghosh held a press conference and is reported to have stated in the said press conference that he made the prayer to the Court for discharge of Shri Amiya Roy Chowdhury alias Dadaji as he received support for this conduct from some eminent Judges of the High Court. The conduct of Shri B.K. Ghosh is highly unbecoming of the position which he holds as the Director of Public Prosecutions. He also overstepped his authority and acted in violation of the rules laid down in the L. R.'s Manual. Shri Ghosh is a regular wholetime officer of the State Government. Departmental proceedings may immediately be drawn up against him. It is also for consideration whether he should be placed under suspension pending conclusion of the departmental proceedings. If Shri Ghosh has already attained the age of 50 years, he may perhaps, be retired from service under the 50 years' rule. In that case it will not be necessary to draw up any departmental proceedings." 12. On the 14th February, 1975, the Judicial Secretary wrote a note in the departmental file. It read: - 'It has been stated that Director of Public Prosecutions should be retired compulsorily under 50 years' rule. This is a case where there is no application for 50 years rule. Inasmuch as rule 75 (aa) (i) lays down that for application of the Compulsory Retirement Rule of 50 years the Government servant concerned must have entered Govt. Service before he attained the age of 35 years. In this case, L.R.s Dote and the office records show that Shri B.K. Ghosh entered Government service on the afternoon of 16.8.69. Rule 4 of the West Bengal Service (Temporary and Quasi-Permanent Status) Rules, 1967, says that a temporary Government servant should be deemed to be in service with permanent status if he has been in continuous temporary or quasi- permanent service for more than five years and necessary declaration has been made by the appointing authority. Rule 4 of the West Bengal Service (Temporary and Quasi-Permanent Status) Rules, 1967, says that a temporary Government servant should be deemed to be in service with permanent status if he has been in continuous temporary or quasi- permanent service for more than five years and necessary declaration has been made by the appointing authority. In the instant case, no such declaration has been made and hence his service can be terminated by giving one month's notice or on month's pay and allowances as enjoined by rule 5. However, it is perhaps proper to invoke the provisions of rule 75(aa) (ii) of the West Bengal Service Rules, Part I, which says the Government has an absolute right to retire any Government servant in all other cases if he has attained the age of 55 years. As present Shri B. K. Ghosh is above 56. So his service can be terminated by giving three months' pay and allowance. If approved, a draft notification is to be vetted by the Legislative Department. The file be first shown to the Home Secretary and then be laid before the H. M. Law and H. C. M. for such order or orders as may be considered proper." 13. The Home Secretary on 15th February, 1975 endorsed the suggestion of the Judicial Secretary. The Minister-in-Charge of Law accepted the suggestion on 19th February 1975 and the Chief Minister also did so on the 21st February. 1975. Thereafter, the order for compulsory retirement was issued on 11th March, 1975. 14. Mr. Arun Kumar Dutt, appearing on behalf of the appellant, contended that there was no material on the basis of which the competent authority could form its opinion that it was in public interest to retire the appellant and therefore the impugned order was illegal and made without jurisdiction. Furthermore, the opinion was formed not by the competent authority but by others on the basis of which the competent authority acted in retiring the appellant. It was not the opinion of the Judicial Department but the opinion of the Police and of the Chief Secretary. 15. It was then contended that the expression of the opinion that the conduct of the appellant was highly unbecoming of his status and reprehensible throws a stigma on the appellant which attracts the provisions of Art. 311 (2) of the Constitution. 16. 15. It was then contended that the expression of the opinion that the conduct of the appellant was highly unbecoming of his status and reprehensible throws a stigma on the appellant which attracts the provisions of Art. 311 (2) of the Constitution. 16. It was further urged that Rule 75 (aa) (ii) of the relevant Rules providing for compulsory retirement of an employee is invalid, having regard to the fact that the Rules do not prescribe a minimum period of service and compulsory retirement under such a Rule is 'removal' within the meaning of Art. 311 (2) of the Constitution. It was also submitted that Rule 75 (aa) (ii) of the Rule offends against Art. 14 of the Constitution as no guide line has been provided for the exercise of power under the said Rule. 17. In (1) Union of India v. J.N. Sinha, AIR 1971 SC 40 it was held that the right to retire a Government servant conferred on the appropriate authority by Fundamental Rule 56(J) is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to retire a Government servant. If that authority bonafide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. 18. In the present case, the entire record has been placed before the Court by a supplementary affidavit. There is nothing in the record to justify the inference that the opinion was not formed in good faith or that there is no material on the basis of which the opinion could be formed. 19. The appellant, in making a private enquiry of his own independently of the police enquiry and in asking for discharge of Amiya Roy Chowdhury on the result of his private enquiry without reference to the Government appears to have exceeded the bounds of his powers and the scope of his duties which are laid down in Rule 52(c) and 52(d) of the Legal Remembrancer's Manual, to say nothing of the impropriety inherent in such a course of conduct. The statement in the petition that a very important person in the highest rank of the judicial hierarchy of India requested him to take careful note of the case against the accused is, to say the least, highly unfortunate. No less unfortunate is his reference to the opinion reported to be held by luminaries in the domain of law and in the field of letters. There is an implied suggestion, a dark hint that in asking for the discharge of Amiya Roy Chowdhury he was acting under the advice of those annonymous and exalted persons, which may be construed, not without reason, as an attempt to influence the learned Sub- divisional Magistrate in his decision. On a consideration of the appellant's petition before the learned Sub-divisional Magistrate, it is hardly possible to hold that there are no materials on the basis of which the appointing authority could have bonafide come to the conclusion that it was in public interest to retire him. On the question that the opinion was formed not by the appropriate authorities, that is to say, the Judicial Department, but by the Police and the Chief Secretary, it is abundantly clear that the Judicial Secretary, on a careful consideration of the records, the reports and observations of the Commissioner of Police and the Chief Secretary, endorsed the opinion expressly or implidly that it was in public interest to retire the appellant compulsorily. He merely disagreed on the question of the procedure to be accepted. Instead of applying the 50 years rule in the present case as recommended by the Chief Secretary, he sought to invoke the provisions of Rule 75 (aa) (ii). The learned Judge has rightly pointed out that it was necessary to send the file to the Home Secretary because of the Police Report. Rule 29(1)(d) of the Rules of Business provides that a proposal for compulsory retirement of any Gazetted Officer is to be submitted before the Chief Minister before the issue of the order. That was done in the present case. In those circumstances, it can hardly be disputed that the opinion was not formed by the appropriate authorities but by others- 20. In (1) Union of India & Ors. v. J. N, Sinha where Rule 56 (J) of the Fundamental Rules came up for consideration, it was said : "compulsory retirement involves no civil consequences. In those circumstances, it can hardly be disputed that the opinion was not formed by the appropriate authorities but by others- 20. In (1) Union of India & Ors. v. J. N, Sinha where Rule 56 (J) of the Fundamental Rules came up for consideration, it was said : "compulsory retirement involves no civil consequences. The aforementioned Rule 56 (J) is not intended for taking any penal action against Government servants. That rule merely embodies one of the facts of the 'pleasure' doctrine embodied in Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding it. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts, public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in Government organizations, there is a good deal of dead wood. Fundamental Rule 56 (J) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest." 21. Rule 75 of the West Bengal Service Rules, Part I, under which the appellant has been compulsorily retired, is substantially the same as Rule 56 (1) of the Fundamental Rules. On a parity of reasoning it must therefore be held that retirement under Rule 75 without anything more, does not involve an element of penalty. 22. The contention that compulsory retirement under the said Rule amounts to removal of the employee within the meaning of Art. 311 (2) of the Constitution has to be closely examined. The appellant was a temporary employee. It has been held consistently that Art. 311 (2) applies to temporary as also to permanent posts. 22. The contention that compulsory retirement under the said Rule amounts to removal of the employee within the meaning of Art. 311 (2) of the Constitution has to be closely examined. The appellant was a temporary employee. It has been held consistently that Art. 311 (2) applies to temporary as also to permanent posts. In order to attract the operation of that Article it is necessary that the person in question has been dismissed or removed or reduced in rank. In (2) Motiram Deka v. North Eastern Frontier Railway, AIR 1964 SC 600 the constitutional validity of Rules 148 (3) and 149 (3) of the Railway Establishment Code, Vol. I arose for consideration. Those Rules provide for termination of service of a Railway employee by notice on either side. The question arose whether termination of service of a permanent Railway servant under either of the aforesaid Rules amounted to his removal under Art. 311 (2) of the Constitution. The case was heard by a Bench of seven Judges. At page 607 of the Report Gajendragadkar, J. speaking for the majority said : "In regard to temporary servants, or servants on probltion, every case of termination of service may not amount to removal. In cases falling under these categories, the terms of contract of service rules may provide for the termination of the services on notice of a specified period, or on payment of salary for the said period and if in exercise of the power thus conferred on the employer, the services of a temporary or probationary servant are terminated, it may not necessarily amount to removal and if it is shown that, the termination of services is no more than discharge simpliciter effected by virtue of the contract or the relevant rules, Art. 311. (2) may not be, applicable to such a case. If, however, the termination of a temporary servant's services, in substance, represents a penalty imposed on him or punitive action taken against him, then such termination would amount to removal and Art. 311 (2) would be attracted." The learned Judge further observed : "In regard to servants holding substantively a permanent post who may conveniently be described hereafter as permanent servants, it is similarly well settled that if they are compulsorily retired under the relvant service rules, such compulsory retirement does not amount to removal under Art. 311 (2)." 23. In (3) State of Bombay v. Saubhag Chand Doshi, AIR 1951 SC 892 a question arose whether compulsory retirement under Rule No. 165 (A) of the Bombay Civil Services Rules as adopted and amended by the Saurashtra Government was in effect removal from service within the meaning of Art. 311 (2) of the Constitution. Under those Rules the age of superannuation was 55, Rule 165 (A) conferred an the Government an absolute right to retire any Government servant after he had completed 25 years qualifying service or 50 years of age, whatever the service without giving any reason, arid no claim to special compensation on that account was to be entertained. 24. The respondent had completed the age of 50 but had not completed 25 years of service. Before he had completed 55 years of. age, that is to say, the age of superannuation, he was retired compulsorily. The respondent claimed that the order of compulsory retirement amounted to an order of removal from service in the sense of Art. 311 (2) of the Constitution. Venkatarama Iyer J. delivering the judgment of the Court observed : "Now, the policy underlying 311(2) is that when it is proposed to take action against a servant by way of punishment and that will, entail forfeiture of benefits already earned by him, he should be heard and given an opportunity to show cause against the order. But that consideration can have no application where the order is not one of punishment and results in no loss of benefits already accrued, and in such a case, there is no reason why the terms of employment and the rules of service should not be given effect to. Thus, the real criterion for deciding whether an order terminating the service of a servant is one of dismissal or removal is to ascertain whether it involves any loss of benefits previously earned. Applying the test, an order under Rule 165(A) cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services." 25. Applying the test, an order under Rule 165(A) cannot be held to be one of dismissal or removal, as it does not entail forfeiture of the proportionate pension due for past services." 25. At page 895 of the Report, the learned Judge pointed out that the question whether an order of compulsory retirement is, in effect, an order of removal or not will arise only when the rules fix both an age of superannuation and an age of compulsory retirement and the services of the civil servants are terminated between these two points of time. Where there is no rule fixing the age of compulsory, retirement or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Art. 311(2). 26. The Rule providing for compulsory retirement was upheld on the ground that under that Rule compulsory retirement 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 and did, not entail any loss of benefit earned by the Government servant. 27. Moreover, the order itself did not attract Article 311 (2) because, it did not make any imputation on the conduct or efficiency of the respondent or suggest that it was made by way of penalty or punishment. 28. In the case of (2) Motiram Deka v. North Eastern Frontier Railway, Gajendragadkar J. understood that decision as having laid down, that: in dealing with the question as to whether compulsory retirement, amounted to removal or not, the tests which are to be applied were in regard to the loss of benefits already accrued and stigma attached to the civil servant. 29. In (4) Dalip Singh v. State of Punjab, AIR 1960 SC 1305 a question arose whether an order for compulsory retirement of the appellant amounted to his removal from service within the meaning of Art.311(2) of the Constitution and the provision of that Article not having been complied with, the, termination of his service was void and inoperative in law. The order was made under Rule 278 of the Patiala, State Regulations which provided that the State reserved the right to retire any of its employees on pension for political or other reasons. The order was made under Rule 278 of the Patiala, State Regulations which provided that the State reserved the right to retire any of its employees on pension for political or other reasons. Das Gupta, J. speaking for the Court, pointed out that the question whether the termination of service by compulsory retirement in accordance with Service Rules amounts to removal from service was considered by the Court in (5) Shyamlal v. State of U. P., AIR 1954 SC 369 and in (3) State of Bombay v. Saubhag Chand Doshi. The learned Judge said : "The Court decided in Shyamlal's case that two tests had to be applied for ascertaining whether termination of service by compulsory retirement amounted to removal or dismissal so as to attract provisions of Article. 311 of the Constitution. The first is whether the action is by way of punishment and to find that out, the Court said it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal". The Court found that the order was not passed on any charge of misconduct or inefficiency of the officer. The order as stated was that the compulsory retirement was necessary for administrative reasons. Moreover, the officer had not lost the benefit he had already earned. I fact, full pension was granted to him on retirement. 30. In Motiram Deka's case Gajendragadkar J. pointed out that although in Dalip Singh's case the Court proceeded on the assumption that no minimum period of service bad been prescribed under the relevant Rules and expressed the view that the observation in Saubhagchand's case should not be read as laying down the law that retirement under Rule 278 would be invalid for the reason that a minimum period of service had not been prescribed before the said Rule could be enforced, it appeared on close examination that in the scheme of the Patiala Service Rules, no officer could have been compulsorily retired under Rule 278, unless he had put in at least 12 years of service. 31. In (6) Gurudev Singh v. State of Punjab, AIR 1964 SC 1585 an order for compulsory retirement made under Art. 9(1) of the Pepsu Services Regulations was struck down. 31. In (6) Gurudev Singh v. State of Punjab, AIR 1964 SC 1585 an order for compulsory retirement made under Art. 9(1) of the Pepsu Services Regulations was struck down. The relevant Clause of Art. 9(1) read : "Provided further that Government retains an absolute right to retire any Government servant after he had completed 10 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 public interest to dispense with the further services of the Government servant such as on account of inefficiency; dishonesty corruption or infamous conduct. "The Court found that the minimum qualifying period of service prescribed under the Regulations, that is to say, 10 years, was too short. In course of his judgment, Gajendragadkar, CJ. observed: "It seems that only two exceptions can be treated as valid in dealing with the scope and effect of the protection afforded by Art. 311 (2). If a permanent public servant is asked to retire on the ground that he has reached the age of superannuation which has been reasonably fixed, Art. 311(2) does not apply because such retirement is neither dismissal nor removal of the public servant. If, a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a resonably long period of qualifying service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Art. 311(2). But where while reserving 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 power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service that cannot we think, fall outside Art. 311(2). The termination of service of a permanent public servant under such a rule, though called compulsory retirement, is in substances, removal under Art. 311(2)." 32. In (7) Shiva Charan v. State of Mysore, AIR 1965 SC 280 the Court had to consider an order for, compulsory retirement under Rule 285 of Mysore Civil Services Rules 1958. The termination of service of a permanent public servant under such a rule, though called compulsory retirement, is in substances, removal under Art. 311(2)." 32. In (7) Shiva Charan v. State of Mysore, AIR 1965 SC 280 the Court had to consider an order for, compulsory retirement under Rule 285 of Mysore Civil Services Rules 1958. The normal age of retirement of a Government servant governed by the Mysore Civil Services Rule 1958 was 55 years but under Rule 285 it was competent to the Government to retire compulsorily a Government servant permanently if it was thought that such permanent retirement was necessary in the public interest. The power could however be exercised only in cases where the Government servant had completed 25 years of service or 50 years of age. The Court examined the relevant decisions and observed that the only exception the majority judgement in Motiram Deka's case made was that it may be necessary to consider whether a rule of compulsorily retirement would be valid if after having fixed a proper age of superannuation, it permits a permanent servant to retire at a very early stage of his career. The Court observed that "this consideration does not arise in the present case because, as we have already seen, Note 1 to Rule 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." 33. In (8) T.S. Mankad v. State of Gujrat, AIR 1970 SC 143 , Rule 3(1) of Saurashtra Covenanting State Service (Super annuation Age) Rule 1955 came up for consideration. The Rule provided; "A Government servant shall, unless for special reasons otherwise directed by Government, retire from service on his completing 55 years of age". The Court held that Rule 3(1) of the Saurashtra Rules did not validly confer on the Government power to retire a servant compulsorily before he reached the age of 55 years was no minimum period of service fixed after which the servant could be compulsorily retired. In the context of Rule 3(1) of the Saurashtra Rules, it was found that compulsory retirement of a Government servant before he had attained the age of superannuation was tentamount to dismissal or removal, under Art. 311(2) of the Constitution. In the context of Rule 3(1) of the Saurashtra Rules, it was found that compulsory retirement of a Government servant before he had attained the age of superannuation was tentamount to dismissal or removal, under Art. 311(2) of the Constitution. The Court pointed out that for efficient administration it is necessary that public servants enjoy a sense of security of tenure and the termination of service of a public servant under a rule which does not lay down a reasonably long period of qualifying service before he is made to retire is, in substance, removal under Art. 311(2). Grover J. speaking for the Court observed : "The principle is that the Rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must be also a provision for a reasonably long period of qualifying service which must be indicated with sufficient clarity". 34. In the (9) State of U.P. v. Shyamlal, AIR 1971 SC 2151 , A.N. Ray J. in delivering the judgment of the Court referred to a long series of decisions of the Supreme Court and on the basis of those decisions, pointed out that in deciding whether the order of compulsory retirement, is one of punishment it has to be ascertained whether in the order of compulsory retirement there was any element of charge or stigma or imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Moreover, an order of compulsory retirement will not be held to, be an order in the nature of punishment or penalty on the ground that there is possibility of loss of furture prospects namely that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. 35. In the present case, it has not been contended that the appellant has lost any benefit which he has already earned as a result of the order of retirement. The order, on the face of it does not contain any stigma or any imputation or suggestion of inefficiency or misconduct. 35. In the present case, it has not been contended that the appellant has lost any benefit which he has already earned as a result of the order of retirement. The order, on the face of it does not contain any stigma or any imputation or suggestion of inefficiency or misconduct. It is true that if one goes behind the order and looks into the files imputations of misconduct may easily be discovered. Those imputations do not however appear on the order itself. The position was made clear in (3) State of Bombay v. Saubhagchand. It was pointed out that while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference, that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Art. 311 (2). 36. In (10) J.N. Sakesena v. State of Madhya Pradesh AIR 1967 SC 1264 it was held that where there are no words in the order of compulsory retirement which throw any stigma there should not be any enquiry into Government files to discover whether any remark amounting to stigma could be found in the files. In (9) State of U. P. v. Shyamlal, Ray J. in alluding to that observation, pointed out that the reason is that it is the order of compulsory retirement, which alone is for examination. He relied on Dalip Singh's case where it was said that if the order itself does not contain any imputation or change against the officer, the fact that "considerations of misconduct" or misbehaviour weighed with the Government in coming to its conclusion whether any action, could be taken under Rule 278, does not amount to any imputation or charge against the officer. The learned Judge concluded by saying that where the authorities can make an order for compulsory retirement for any reason and no reason is mentioned in the order it cannot be predicated, that the order of compulsory retirement has an inherent stigma in it. The learned Judge concluded by saying that where the authorities can make an order for compulsory retirement for any reason and no reason is mentioned in the order it cannot be predicated, that the order of compulsory retirement has an inherent stigma in it. 37. In the present case, the order of compulsory retirement has been made, as the order itself recites, in the public interest. That by itself, does not predicate, as has been explained in (1) Union of India v. J. N. Sinha that the employee in question is inefficient or that there is any charge of acts of ommission or commission against him. In that view of the matter, it must be held that the order makes no imputation in respect of the appellant's efficiency or conduct. 38. It was submitted that Rule 75 (aa) (ii) is invalid and is, ultra vires Article 14 and Article 311 (2) of the Constitution. By compulsory retirement under the Rule, an employee does not lose any benefit he has earned, nor does the order make any imputation on his conduct or efficiency. In these circumstances, retirement does not amount to 'dismissal' or 'removal' within the meaning of Art. 311(2) of the Constitution and that Article therefore, has no application. 39. As regards the objection on the score of Art. 14 of the Constitution, the learned Judge has pointed out that the words 'in all other cases' in clause (ii) of Rule 75 (aa) refer to all cases other than those, covered by Clause (i) of Rule 75 (aa) (1). The Rule applies equally to all persons who attain the age of 55 years. Under Rule 75, the age of compulsory retirement for those who enter Government service at the age of 35 years or earlier, is 50, while the age of compulsory retirement for those who enter Government service after the age of 35 years is 55. These are therefore different categories, which are treated differently. We are in agreement with the learned Judge that Rule 75 (aa) (ii) does not offend against the rule of, equality before the law. At all events, having regard to the relevant notification made under Clause (1) of Art, 359 of the Constitution by which operation of Art. 14 has been suspended, no exception can be taken to the Rule on that ground. 40. At all events, having regard to the relevant notification made under Clause (1) of Art, 359 of the Constitution by which operation of Art. 14 has been suspended, no exception can be taken to the Rule on that ground. 40. In (1) Union of India .v. J. N. Sinha it was expressly stated that the validity of Fundamental Rule 56 (J) is not open to question in view of the decision in (7) T.G. Shivacharana Singh v. State of Mysore, The statement, is equally applicable to Rule 75 of the West Bengal Service Rules, Part I. 41. It was contended on behalf of the appellant that, compulsory retirement under Rule 75 (aa) (ii) amounts to 'removal' within the meaning of Art. 311 (2) of the Constitution because that Rule does not provide for a minimum period of qualifying service before the employee can be made to retire. 42. Learned Advocate heavily relied on an observation in the majority judgment in Motiram Deka's case, at page 613 of the Report : There, Gajendragadkar, J. referring to the judgment in (3) State of Bombay v. Saubhag Chand Doshi, stated : "It would he noticed that the rule providing for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to removal under Art. 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 the Judgment, would violate Art. 311 (2) and though the termination of a servant's services may be described as compulsory retirement it would amount to dismissal or removal within the meaning of Art. 311 (2). With respect, we think that this statement correctly represents the true position of law." 43. Taken literally, and bereft of its context, the observation lends support to the contention raised by counsel. With respect, we think that this statement correctly represents the true position of law." 43. Taken literally, and bereft of its context, the observation lends support to the contention raised by counsel. However, on closer examination, it will be clear that the observation was not intended to mean that in order to avoid the mischief of Art. 311 (2) of the Constitution, and to be effective, a reasonable minimum qualifying period of service has to be prescribed in the rules for compulsory retirement of Government servants, even though the rules provide for a reasonable age of compulsory retirement in the context of the age of superannuation. 44. In fact, in Saubhagchand Doshi's case, on which Gajendragadkar, J. relied for the observation, the Rules enjoined that an order for compulsory retirement could be made if the employee had completed 25 years of qualifying service, or 50 years of age. The age of superannuation under the Rules was 55 years. Nowhere has the Supreme Court laid down, that where the Rules prescribe an age of superannuation and also a reasonable age of compulsory retirement, a minimum qualifying period of service has also to be provided for. What is required is either a reasonable minimum qualifying period of service or a fair age of compulsory retirement and not the one as the other. 45. In (7) Shivacharan v. State of Mysore where the Rules, for compulsory retirement were upheld, the Rules provided for an age of superannuation which was 55 years, and completion of either 25 years of service or 50 years of age. 46. In (8) T. S. Mankad v. State of Gujrat, where compulsory retirement was held to amount to 'removal' within the meaning of Art. 311 (2) of the Constitution, the Rules did not provide either for a minimum qualifying period of service or for an age of compulsory retirement. In the judgment of the Court, Grover, J. made it clear by an example that if 55 years have been specified as the age of superannuation and if it is sought to retire a servant even before that period, it should be provided in the Rule that he could be retired after tie has attained the age of 50 years or he has put in service, for a period of 25 years. It is therefore clear that the requirements of a minimum qualifying period of service and an age of compulsory retirement are in the alternative 47. Under the Rules with which we are concerned, the age of superannuation is 58. For those who enter the service at the age of 35 or before the age of compulsory retirement is 50, For others who are governed by Clause (ii) of Sub-Rule (aa) of Rule 75, the age of compulsory retirement is 55. In either case the Rules provide for a fair age of compulsory retirement in the context of the age of superannuation. Rule 75 (aa), (ii) does not cause any hardship or work any injustice to those who enter Government service after the age of 35, On the contrary, the Rule must be held to benign, because for those who enter the service after they had completed the age of 35, the age of compulsory retirement is 55, while in the cases of those who enter the service at the age of 35 or before, the age is 50. A fair age of compulsory retirement has been provided for in the present case. That is all that the law requires. 48. In any event, the appellant was a temporary employee. His service could be terminated by a month's notice or a month's salary in lieu thereof. He has been retired with three month's pay and allowances. In these circumstances, even if the Rules had not provided for an age of compulsory retirement, his retirement in the absence of any loss of benefit or imputation of inefficiency or misconduct, could not, in our opinion, be regarded as dismissal or removal within the meaning of Article 311 (2) of the Constitution. 49. In the view we have taken, the appeal fails, and is dismissed. The order of the learned Judge is affirmed, There will be no order for costs. Basu, J. : I agree.