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1978 DIGILAW 249 (KAR)

M. MOHAMED NABI v. STATE OF KARNATAKA

1978-11-20

M.RAMA JOIS

body1978
( 1 ) THE petitioner who was a Second Grade Revenue Inspector in the revenue Departmeht, of the State Government has presented the writ petition praying for quashing the order of premature retirement made against him by the State Government in exercise of their powers under Note 1 to r. 285 of the Karnataka Civil Services Rules (hereinafter referred to as the rules. ( 2 ) FACTS: By an order dated 21-6-1976 (Ext. A), the State Government in exercise of its power under Note 1 Rule 285 of the Rules directed his premature retirement on the ground that it is necessary in public interest to retire him. The petitioner had already put in 25 years of service though he was only aged about 46 years. Aggrieved by the said order the petitioner made a representation tp the State Government requesting them to reconsider the matter. As no such reconsideration was made he presented this writ petition on 13-6-1977 praying for quashing the order of retirement, (Ext. A) which reads as follows: -"proceedings of the Government of Karnataka sub: Retirement of Government Officials in the non-gazetted cadre in Bangalore Division under Note-1 to Rule 285 of KCSRs. Order No. R. D. 4 ATS. 76, Bangalore, (it. 21-6-1976 whereas the Government of Karnataka are of the opinion that it is necessary in the public interest to retire the following officials from service. 15. Sri Mohamed Nabi, Second Grade Revenue Inspector, Holakere, chitradurga District. Now, therefore, under Note 1 to Rule 285 of the KCSRs the Government of Karnataka hereby retire from Government Service the above officials with effect from the dates of service of this order on the officials. They shall be paid a sum equivalent to the amount of their salary for a period of three months in lieu of notice under the said note. The Deputy Commissioners of Shimoga, Bangalore, Kolar, Tumkur and Chitradurga Dists. should cause this order to be served on the above officials pertaining to their districts together with a Bank Draft for an amount equal to their three months salary. By order and. in the name of the Governor of Karnataka, sd/- Under Secretary to Govt. , Revenue Department""during the pendency of this writ petition, the State Government has passed an order dated 15/18-4-1978. The said order reads as follows: (Ext. E ). By order and. in the name of the Governor of Karnataka, sd/- Under Secretary to Govt. , Revenue Department""during the pendency of this writ petition, the State Government has passed an order dated 15/18-4-1978. The said order reads as follows: (Ext. E ). Proceedings of the Government of Karnataka sub : Review of the case of Shri M. Mohd. Nabi retired under Note 1 to Rule 285 of KCSRs - for re-employment. Order No. 17 Ars 78 Bangalore Dated 15/18-4-1978. Read: 1. Government Notification No. RD. 4 ATS. 76, dated 23-6-1976. PREAMBLE in Government Notification dated 23-6-1976 read above, Shri M. Mohd. Nabi was ordered to be retired from service under Note 1 to Rule 285 of KCSRs. In accordance with the instructions contained in official Memoranda nos. 1) FD. 5 R and I 78 2) DPAR 4 SRR 78 dated 24-1-1978 and 3) DPAR 4 SRR 78 the case of Shri M. Mohd. Nabi has been reviewed. His service particulars are as furnished below: date of birth 30-6-1930 date of Superannuation 30-6-1985 date of entry into service 3-7-1950 date of retirement under rule 285 of KCSRs 23-6-1976 he would have retired from service in the normal course on 30-6-1985 but for his premature retirement. ORDER on careful consideration of all aspects of the case, Government of karnataka are pleased to order that Shri M. Mohd. Nabi retired II Grade revenue Inspector be re-employed in Government Service as SDC in. Chitradurga District/dn,. till he attains the age of superannuation. By order etc. , sd/ S. R. Sakhare under Secretary to Govt. Rev. Dept. "in the aforesaid order the Government has stated that on careful consideration of all aspects of the matter, the Government has decided that the petitioner should be re-employed in Government Service till the date on which he attains the age Of superannuation. After the aforesaid order was passed the petitioner filed I. A. II for urging additional grounds in support of the prayer made in the writ petition. The additional ground urged is that as the State Government itself on reconsideration decided to re-employ the petitioner till the date of his superannuation, it follows that there was no justification for passing the impugned order of retirement under Note 1 rule 285 of the Rules. The additional ground urged is that as the State Government itself on reconsideration decided to re-employ the petitioner till the date of his superannuation, it follows that there was no justification for passing the impugned order of retirement under Note 1 rule 285 of the Rules. Further, the case of the petitioner is that having come to the conclusion that the petitioner should be cotitinued in service till he attains the age of 55 years, the State Government ought to have revoked the order of retirement, but they have proceeded to re-employ the petitioner and as a result he is not in a position to gel all the benefits to which he would have been entitled to had the retirement order been revoked and he was reinstated. ( 3 ) THEREFORE, the question that arises for consideration in this case is whether the order of compulsory retirement made against the petitioner under Note 1 to Rule 285 of the Rules is valid. The said provision reads as follows: - note 1 to Rule 285 of the Rules: -"note-1: A Government servant may retire from service any time after completing 30 years' qualifying service provided that he shall give in this behalf a notice in writing to the appropriate auhtority, at least three months before the date on which he wishes to retire. Government may, by order, retire any Government servant after he has completed twenty-five years of qualifying service or after he has attained fifty years of age, if such retirement is in their opinion necessary in the public interest, provided that the Government servant concerned is given notice of three months before the date of retirement, or in lieu of such notice, a sum equivalent to the amount of his salary for a period of three months but the pension shall not be payable for the period in respect of which he receives salary in lieu of notice. " (underlining (italics) is mine ). " (underlining (italics) is mine ). According to the above Rule a Civil Servant of the State Government can be retired prematurely before he attains the age of 55 years which is the age of superannuation fixed under Rule 95 of the Rules, if the said Civil servant has attained either 50 years of age or put in 25 years of qualifying service and further if the State Government comes to the conclusion that such retirement of the concerned Civil Servant is necessary m the public interest. Therefore, the condition precedent lor the exercise of the power under the said Note is the formation ot the opinion by the Government that it is not in public interest to continue the concerned civil servant in service after he has attained either 50 years of asc olr 25 years of qualifying service, (See Union of India v. J. N. Singha, AIR 1971 SC. 40 . ( 4 ) IN the aforesaid case the Supreme Court has laid down as to what are the grounds on which an order of compulsory retirement made under R. 56 (j) of the Fundamental Rules governing employees of Central Government, which is similar to Note 1 to R. 285 of the Rules can be set aside by the courts. Relevant portions of the judgment reads as follows: - (At page 42 (para - 8 ). "if that authority bona fide 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. "in the light of the abo,ve decision, I shall proceed to consider the case of the petitioner. ( 5 ) THE contention of the petitioner in this case is that the order of retirement is liable to be set aside either on the ground that no requisite opinion was formed by the State Government or on the ground that it is an arbitrary decision. ( 6 ) IN view of the order passed by the State Government on 15 18-4-1978 according to which, the petitioner is re-employed till 55 years, it. follows that public interest does not suffer by the continuance of the petitioner in service till superannuation. ( 6 ) IN view of the order passed by the State Government on 15 18-4-1978 according to which, the petitioner is re-employed till 55 years, it. follows that public interest does not suffer by the continuance of the petitioner in service till superannuation. Therefore, the inevitable conclusion, that should follow is, that the order of compulsory retirement was made against the petitioner either without formation of the necessary opinion that the continuance of the petitioner in service is not in public interest or the decision taken was an arbitrary decision. Therefore the decision of the Government to re-employ the petitioner till he attains the age of retirement is itself, sufficient to hold that the earlier decision of the Government directing the premature retirement of the petitioner was not in public interest and consequently not authorised by Note 1 Rule 285 of the rules. ( 7 ) AFTER coming to the aforesaid conclusion, the State Government itself ought to have withdrawn the order of compulsory retirement, but instead of doing so, the State Government has only given re-emplpyment to the petitioner. The effect of re-employment order is that though the petitioner is found fit for being continued in the service he is deprived of full salary from the date of compulsory retirement till the date of re-employment and he is not entitled to all the benefits which he would have got had he continued in service without such retirement. ( 8 ) FOR the reasons stated above, I make the following order: (1) Rule made absolute. (2) The order of compulsory retirement dated 21-6-1976 made against the petitioner is quashed. (3) The petitioner will be entitled to all the consequential benefits flowing from the quashing of the said order, notwithstanding the order of re-employment dated 15/18-4-1978. (4) No costs. --- *** --- .