Vidyanand Sinba v. State Of Bihar — 1977 DIGILAW 213 (PAT)

Judgment Lalit Mohan Sharma, J. 1. The petitioner was employed in Class II senior service in the Agriculture Department of the State of Bihar and was prematurely retired in November, 1974 by the order contained in Annexure 2, dated 19.11.1974 sent to the petitioner with the letter Annexure 2 (1), dated 22.11.1974. On 25.11.1974, the petitioner filed the present writ application under Articles 226 and 227 of the Constitution of India for quashing Annexures 2 and 2 (1 ). The impugned order stated that the Government had taken a decision of compulsorjly retiring the petitioner under Rule 74 (a) of the Bihar Serivce code and he should treat himself retired with effect from the date of the order. 2. Mr. Baidyanath Prasad, learned Counsel for the petitioner, raised two points in support of this application, namely, - (i) the application of Rule 74 (a) is confined to ministerial officers of the Government only and the petitioner being a member of the class II the Class II service is not a ministerial officer and he cannot be retired under this rule and (ii) by the impugned order, which contains a stigma against the petitioner, he has been condemned without being an opportunity to place his case and this has resulted in violation of Article 311 of the Constitution. 3. Under Rule 74 (b) of the Bihar Service Code, as it stood before its repeal by cartain Ordinances of 1976, the appointing authority of a Government servant could require him, in public interest, to retire from the service on the date on which he completed 30 years of qualifying srvice or attained 50 years of age or on any date thereafter after giving a three months notice. An option to retire was also given to the Government seavant. 4. Rule 74 (a) of the Bihar Service Code, which is under consideration in the present case, runs as follows : "the State Government may require any Government servant who has completed twenty one years of duty and twenty-five years of total service calculated from the date of his first appointment, to retire from Government service, if it considers that his efficiency or conduct is not such as to justify his retention in service. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained. " 5. Mr. Where any Government servant is so required to retire, no claim to any special compensation shall be entertained. " 5. Mr. Baidyanath Prasad, in support of the first point, referred to a number of earlier orders passed by the Government on the question of retirement showing that before the present rules occupied the field, separate rules were framed applicable to ministerial Government servants and other government servants. The Rules relating to the ministerial servants took efficiency and physical fitness in consideration. It was argued that as in rule 74 (a), efficiency and good conduct are mentioned, the Rule must be held to apply to ministerial servant only. The contention further is that there cannot be any purpose in having both Rule 74 (a) and 74 (b) applicable to the non-ministerial Government servants. After considering the language of Rule 74 (a) and other relevant Rules of the Bihar Service Code, I do not find myself in a position to accept the petitioners argument. The use of the words "any Government servant" in Rule 74 (a) does not permit a restricted application of the rule and it must be held that it governs all the servants under the Government irrespective of the class to which they belong the fact that the word efficiency used in the Rule was mentioned in some other Orders applicable only to ministerial officers cannot limit the scope of the Rule. The historical background, strongly relied upon by Mr. Prasad merely indicates that before the present Rule 74 (a) was framed, the policy of the Government was different, but it was open to it to frame an uniform rule applicable to all, as was actually done. The language of the sub-rule does not permit any doubt whatsoever and in absence of any ambiguity the plain meaning has to be accepted. With respect to the argument as to why the matter of premature retirement was subjected to two Rules, the answer is not difficult to find. A perusal of the two sub rules clearly indicates that they applied in different conditions. Under sub-rule (a), only such a government servant can bs retired who has completed 21 years of duty or 25 years of total service and further if it is considered that his efficiency or conduct is not such as to justify his retention in service. Under this sub-rule, the power to act is given only to the Government. Under sub-rule (a), only such a government servant can bs retired who has completed 21 years of duty or 25 years of total service and further if it is considered that his efficiency or conduct is not such as to justify his retention in service. Under this sub-rule, the power to act is given only to the Government. Under Rule 74 (b), an option was given to both sides, i. e. , the Government and its servants. The period of service is also differently fixed and an alternative thereto is provided by the age of the servant. Further, a provision of three months notice has also been made. The sub-rules also made a distinction on the question of monetary benefit available to the retiring employee. 6. I, therefore, hold that Rule 74 (a) of the Bihar Service Code is of general application and was not limited only to ministerial servants. 7. Although no reference was made to the petitioners efficiency or conduct in the impugned order, Rule 74 (a) is mentioned as the Rule under which the order was passed. This, by itseif, according to the petitioner amounts to a stigma. Mr. Prasad argued that by referring to Rule 74 (a)the petitioner has been condemned as inefficient or not having good conduct. In the writ application, it has further been stated that some adverse remarks were made in the service records of the petitioner in the year 1967-68 and in the year 1968-69. He has also referred to certain remarks made in the years 1970-71 and 1971-72, but has said that they could not be properly characterised as adverse remarks. Some of these remarks are mentioned in Annexure 1 to the writ application and it has been contended that these remarks did not call for a premature retirement of the petitioner. 8. The cases relating to compulsory retirement decided by the Supreme court are by now numerous and the distinction between removal from the service, attracting Article 311 of the Constitution, and compulsory retirement is well established. An order of retirement is not a form of punishment as is an order of dismissal or removal and does not involve any penal consequence inasmuch as the person retiring is entitled to pension proportional to the period of his service. An order of retirement is not a form of punishment as is an order of dismissal or removal and does not involve any penal consequence inasmuch as the person retiring is entitled to pension proportional to the period of his service. The real criterion for deciding whether an order terminating the service of a servant is by way of removal or not, is to ascertain, as pointed out bv the Supreme Court in The State of Bombay V/s. Subhagchand M. Doshi, (ATR 1957 SC 892) whether the order involves penal consequence. Applying this test, the impugned order in the case before me cannot be held to be one of dismissal or removal. The first Important case decided by the Supreme Court on the point was Shyamlal V/s. State of uttar Pradesh, (ATR 1954 Supreme Court, 369) and the decision therein has been followed by the Supreme Court in a large number of cases. In that case, the Government gave to the officer concerned the notice of charges of misconduct and inefficiency and called for his explanation, but no formal enquiry was held. The Government servant was, however, retired compul-sorily and he challenged the order by a writ application before the Allahabad high Court. The High Court rejected the application and on appeal the supreme Court confirmed the decision holding that there was, no doubt, some imputation against the appellant which he was called upon to explain but that was not in relation to an enquiry for disciplinary action and the limited enquiry was to help the Government to make up its mind as to whether it was in public interest to dispense with his service. The decision was followed in the State of Bombay V/s. Subhagchand M. Doshi, ( AIR 1957 SC 892 ) where the officer was retired under a rule which permitted retirement of Government servants in the pubic interest on account of inefficiency or dishonesty. " The Rule expressly said that a Government servant whose efficiency was impaired but against whom it was not desirable to make formal charges, and case where corruption was clearly established but no specific instance was likely to be proved in a formal enquiry, the Government servant could be compulsorily retired. The Supreme Court held that the Rule was intra vires and that the order of retirement passed thereunder was valid. The Supreme Court held that the Rule was intra vires and that the order of retirement passed thereunder was valid. It was observed 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 in the case of dismissal or removal, they form the very basis on which the order was made. The arguments similar to those pressed in the present case were advanced before the Supreme Court and were rejected. In the case of the State of U. P. V/s. Shyamlal Sharma, (AIR l971 Supreme Court 2151), the Supreme Court while allowing the appeal on behalf of the State of Uttar Pradesh, ruled that where there are no words in the order of compulsory retirement which throw any stigma, there should not be any inquiry into Government files to discover whether it was a case of stigma. The reason is that it is the order compulsory retirement which alone is for examination and if the order itself does not contain any imputation, the considerations of inefficiency or misconduct which might have weighed with the Government in coming to a conclusion to retire the officer compulsorily do not amount to stigma. For this reason, the reference made in the writ application to the adverse remarks entered into the service records of the petitioner is irrelevant, 9. The only matter which remains for consideration is as to whether the mention of Rule 74 (a) in the impugned order vitiates it. The decision in the state of Bombay V/s. Subhagchand M. Doshi (Supra) where the officer was retired under a Rule similar to Rule 74 (a) applies to the present case. The facts in the case of Tara Singh V/s. State of Rajasthan, AIR 1975 Supreme Court 1487, were also similar to the case before me so far as this point is concerned. In the order of compulsory retirement of the petitioner, it was expressly mentioned that he was being retired under Rule 244 (2) of the Rajastban Service Rules and the Notes below Rule 244 (2) stated that only such Government servants could be retired whose efficiency was impaired. Over ruling the objections of the petitioner, his writ application was dismissed. Mr. In the order of compulsory retirement of the petitioner, it was expressly mentioned that he was being retired under Rule 244 (2) of the Rajastban Service Rules and the Notes below Rule 244 (2) stated that only such Government servants could be retired whose efficiency was impaired. Over ruling the objections of the petitioner, his writ application was dismissed. Mr. Prasad attempted to distinguish the case on the ground that the inefficiency in that case was mentioned not in the main Rule but in the Notes. There is no substance in this argument inasmuch as the Supreme Court in paragraph 23 of the judgment declared the Notes as part of the Rule. In substance, the position is that if the misconduct or inefficiency of a Government servant is taken into account, merely as furnishing the background while passing an order of compulsory retirement, it is not illegal, but if they are the very foundation on which the order rests, it may be bad. For this whether the order of retirement is actually founded on an imputation, the service records of the officer and other connected documents will not be examined by the Court and the Court will be content by considering the order itself. The Rule 74 (a) of the bihar Service Code is intra vires and an order passed thereunder cannot be held to be illegal for the reason that the Rule is mentioned therein. For these reasons, the second point urged on behalf of the petitioner also must be rejected. 10. In the result, the writ application fails and is dismissed, but without costs. Writ petition dismissed.