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Madhya Pradesh High Court · body

1978 DIGILAW 632 (MP)

Gorakhnath v. Government of M. P.

1978-08-29

A.R.Navkar, K.K.Dube

body1978
ORDER K.K. Dube, J. 1. This petition is directed against the order of the petitioner's retirement purporting to have been made under rule 2 (3) of the New Pension Rules, 1951. 2. A brief history of the petitioner's service career may be stated. The petitioner entered the service of the Government as a constable in the Special Armed Forces and was appointed on 29-9-1942. On 1-4-1947 he was promoted as Head-constable, Police and in due course of time promoted as a Platoon Commander with effect from 28-4-1957. Lastly, he was promoted as Company Commander on 10-1-1972. There was some dispute as regards the date of birth of the petitioner but for the purposes of this petition, it is not disputed that his date of birth is 15-4-1921. On 17-6-1974, by an order ostensibly made under rule 2 (3) (ii) of the New Pension Rules, 1951, the petitioner was given a three months notice for compulsory retirement. The order stated that the petitioner had completed 25 years of qualifying superior service and it was decided to retire him under rule 2 (3) (ii) of the New Pension Rules. 1951. It further stated that after the expiry of the three months period, he would be retired. The petitioner seeks to challenge the validity of this order. 3. The first contention raised before us is that the order could not have been made under rule 2 (3) (ii) and, therefore, the order deserves to be struck down. It is true that the provision quoted in the order is wrong. At the time of retirement rule 2(3) (ii) had been deleted and there was no question of applying it in the petitioner's case. The sub-rule referred to also does not deal with retirement. 4. The question for consideration is whether the order could be said to be made under rule 2 (3) (ii) or rule 2(3) (i) of the New Pension Rules, 1951. Merely because a wrong provision was quoted the order of retirement could not be struck down unless it was found that the Government had no power to make the order of retirement or that the pre-requisite for invoking such power were not satisfied. The Government has powers to retire a Government servant under the New Pension Rules under rule 2 (2) and rule 2 (3). The rules are mutually exclusive and deal with different circumstances. The Government has powers to retire a Government servant under the New Pension Rules under rule 2 (2) and rule 2 (3). The rules are mutually exclusive and deal with different circumstances. Under rule 2(2), the Government may require the Government servant to retire at any time after he has completed 30 years qualifying superior service provided the appropriate authority shall give in this behalf a notice in writing to the Government servant at least three months before the date on which he is required to retire. This power has necessarily to be exercised after the Government servant completed 30 years qualifying superior service and the Government servant has been given three months notice before he is required to retire. The order has to be passed by the appropriate authority. 5. It would be seen that the order served on the petitioner states that since he has completed 25 years of qualifying service, the Government is exercising its power to retire. In the return filed by the Government it is painted out that the provision has been wrongly mentioned and the Government is seeking to invoke powers under rule 2 (2). The petitioner completed 32 years of qualifying superior service and he is made to retire after the expiry of the notice. It is, therefore, urged that all the conditions under rule 2 (2) have been satisfied. 6. Under rule 2(3) (i), the Competent authority has an absolute right to retire a Government servant without giving any reasons after he had completed a qualifying service of 25 years. But this right shall not be exercised except when in the opinion of the Competent authority it is necessary to do so in public interest to dispense with the services of the Government servant i.e. when administrative convenience is served or economy is effected by his retirement. Though the right• is absolute under this rule, this right has necessarily to be exercised when it is in the public interest to dispense with the service of the Government servant. No order has been produced to show that the retirement has been made looking to the public interest. The order, however, cannot be struck down. As already stated, the conditions necessary for sub-rule (2) (ii) are to be satisfied. If the Government servant has completed 30 years of qualifying superior service the appropriate authority could retire him on giving at least three months notice. The order, however, cannot be struck down. As already stated, the conditions necessary for sub-rule (2) (ii) are to be satisfied. If the Government servant has completed 30 years of qualifying superior service the appropriate authority could retire him on giving at least three months notice. This has been done. The order has been passed by a competent authority we would therefore, hold that merely on the ground that the order mentions the wrong provision and describes that the petitioner has completed qualifying service of 15 years though, in fact, he has rendered 32 years of qualifying superior service the order is not invalid or ineffective. 7. The other contention put forth before us is that the petitioner has not completed qualifying superior service of 30 years and, therefore, he cannot be retired under any of the two rules. It is contended that superior service means service in the promoted cadre or at the most from the time the petitioner was promoted as Platoon Commander. Superior service, it is urged would mean service in a superior post and if his services from April 1957 are reckoned the petitioner would be found to have not completed even 25 years of service. Therefore, the necessary conditions have not been fulfilled. We do not see any force in this contention. Superior service is indicated to be one which is not classified as Class IV service. The service rendered in all other posts is superior except service rendered in post classified as Class IV which is designated inferior. Now, the constable and a hold-constable holds a post which is classified as Class III and, therefore, it is superior service. We may refer to Civil Service Regulations No. 395 and 396. The New Pension Rules are supplementary to Civil Service Regulations which provide for how the superior service is to be reckoned. The definitions given in Civil Service Regulations for the purpose of understanding superior service in New Pension Rules can legitimately be taken from there. We hold that superior service has to be construed in accordance with the meaning assigned to it in the Civil Service Regulations and not according to the ordinary meaning of the word. It certainly cannot be used to denote the superior service in promoted cadre. Reckoning the services from the time the petitioner was appointed as a constable he has completed about 32 years of service. It certainly cannot be used to denote the superior service in promoted cadre. Reckoning the services from the time the petitioner was appointed as a constable he has completed about 32 years of service. We therefore, think that rule 2 (2) would apply in this case and his retirement after giving three months notice is fully justified. 8. We, therefore, dismiss this petition. In the circumstances of the case, we make no order as to costs. The outstanding amount of security shall be refunded to the petitioner.