K. C. OOMMEN v. STATE BANK OF TRAVANCORE — 1984 DIGILAW 291 (KER)

Judgment :- 1. The petitioner who was working as an officer in the State Bank of Travancore retired on 30-11-1983 on his attaining the age of retirement. Before retirement he had applied to the management for an extension of the period of his service in terms of the first proviso to sub-clause (1) of Clause.19 of the State Bank of Travancore (Officers') Service Regulations, 1979, for short, the Regulations. This request was rejected, according to the petitioner, by Ext. P2 memo. 2. The challenge in the Original Petition is against Ext. P2. 3. The only question that arises for consideration is whether the petitioner has a right to have his services extended in terms of the first proviso to sub-clause (1) of Clause.19 of the Regulations. Clause.19(1) and the relevant proviso read: "19. Age of retirement. (1) An officer shall retire from the service of the Bank on attaining the age of fifty eight years or upon the completion of thirty years' service whichever occurs first. Provided that the Competent Authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty eight years or has completed thirty years' service as the case may be, should such extension be deemed desirable in the interest of the Bank." Sub-clause (1) above provides that the officer shall retire from the service of the Bank on attaining the age of fifty eight years or upon the completion of thirty years' service whichever occurs first. But such an officer can continue in service on extension, should such extension be deemed desirable in the interest of the Bank. 4. The counsel for the petitioner and also the counsel for the additional 3rd respondent contended that this proviso read along with certain circulars pertaining to the age of retirement would suggest that an officer has a right to have the period of his service extended by the management provided the materials available from the Confidential Records show that the officer is of sound health and recognised capacity. In this connection they laid emphasis on the expression in the proviso, "at its discretion". According to the learned counsel what the management should do in such circumstances was to consider the application and extend the period of service. In this connection they laid emphasis on the expression in the proviso, "at its discretion". According to the learned counsel what the management should do in such circumstances was to consider the application and extend the period of service. In other words, according to them, the discretion vested in the authority is a discretion coupled with duty and therefore the management shall not act capriciously and arbitrarily in disposing of the application for extension of service. In the case on hand, they say that the Confidential Records prove to the hilt that the petitioner has had a meritorious career and as such in not extending the period of his service the management has failed to exercise the discretion in a judicious manner and therefore the order is liable to be quashed and a direction issued to the management to reconsider the issue afresh. 5. The learned counsel for the Bank submitted that the moment the officer retires from service, he ceases to be a servant of the Bank. Thereafter he has no manner of legal right to continue in service and if that be the position the rejection of the request of the petitioner for extension of the period cannot be said to be an illegal order, passed without jurisdiction. He submitted that the proviso is only one. enabling the Bank to obtain the services of an officer in the interest of the Bank. The management after evaluating the service records of the petitioner was satisfied that if the period of service of the petitioner were to be extended, it may not be in the interest of the Bank. The rejection of his request in the circumstances cannot be aid to be illegal or without jurisdiction. The learned counsel in this connection relied on two decisions of the Supreme Court reported in State of Assam v. Premdhar, A. I. R.1970 S. C. 1314, and S.N. Pallegar v. State of Mysore, AIR. 1973 SC. 671. The Supreme Court in State of Assam v. Premdhar, was considering the scope of R.56(a) of the Fundamental Rules, the wordings of which are more or less similar to the wordings of the proviso to sub-clause (a) of Clause.19 of the Regulations. 1973 SC. 671. The Supreme Court in State of Assam v. Premdhar, was considering the scope of R.56(a) of the Fundamental Rules, the wordings of which are more or less similar to the wordings of the proviso to sub-clause (a) of Clause.19 of the Regulations. The Supreme Court after considering the various aspects of the matter has stated thus: "Under F. R.56(a) a Government servant may be retained in service after the age of 55 years and such retention shall not be made except in special circumstances. It, therefore, follows that even according to F. R.56(a) no legal right can be said to exist in relation to any Government servant to continue in service after the age of 55 years. It is a discretion which the Government will exercise in some cases. F. R.56(a) is in two parts. The first part is that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. The second part is that the retention of the Government servant in service after attaining the age of 55 years should not be made except in special circumstances Such a rule cannot be said to found any right in any employee to continue in service after the age of 55 years".(emphasis supplied) To the same effect is the other decision reported in S. N. Palleghar v. State of Mysore, In the present case also Clause.19(1) provides that the officer shall retire from the service of the Bank on attaining the age of fifty eight years. That means on his attaining the age of superannuation the officer ceases to be in the service of the Bank and therefore the relationship of master and servant comes to an end. The proviso speaks of a discretion vested in the management and in the exercise of the discretion the management may retain the officer in service even after attaining the age of fifty eight years provided the management is satisfied that the extension of the period of his service is in the interest of the Bank. Such a rule cannot be said to found any right in the officer to continue in service even after he attained the age of superannuation. Here the management bad before it sufficient materials (Exts. Such a rule cannot be said to found any right in the officer to continue in service even after he attained the age of superannuation. Here the management bad before it sufficient materials (Exts. R1 (a) to R1 (c)) to come to the conclusion that it was not in the best interest of the Bank to extend the period. 6. The argument of the petitioner that he has a legal right to get the period of bis service extended thus fails. The same is rejected. 7. The learned counsel for the additional 3rd respondent has a further argument that inasmuch as the Bank has already extended the period of service of a large number of officers after retirement, the order not extending the period of service of the petitioner is discriminatory, in that he has been picked out for differential treatment resulting in violation of his fundamental rights guaranteed under Art.14 and 16 of the Constitution of India. This argument has as its basis, the following ground in the Original Petition: "Ground G: Other officers of the Bank, who are similarly situated as the petitioner, are given extension of service beyond 58 years. Hence Exhibit P-2 is violative of Art.14 and 16 of the Constitution of India." To appreciate this argument it must be borne in mind the difference between 'the law' and 'the administration of law'. Here we are concerned with only the administration of law. 8. 'Law' and 'administration of law' are two different concepts. The tests to decide whether a law is discriminatory are different and distinct from the tests which would settle the question whether the authority who has to administer the law, has acted in violation of Art.14 and 16 of the Constitution of India. The decision of the authority who administers the law, depends on the facts and circumstances of each case and therefore uniformity of decision is practically impossible. Similarly erroneous actions also cannot be ruled out. Our Constitution does not profess or assure uniformity of decisions or immunity from erroneous decisions/ actions and therefore the complaint of the petitioner that the denial of extension of the period of service in his case while the period of service in the case of others similarly situated was extended, is an infringement of his fundamental right guaranteed under Art.14 and 16 cannot be taken cognizance of. The authorities noted hereunder support this view. The authorities noted hereunder support this view. Before I cite them I wish to make a note of the observation of Frankfurter J. in Snowden v. Hughes, (1943) 321 U.S.I. It reads thus: "the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State." 9. The Supreme Court in Budhan Choudhry v. State of Bihar. AIR. 1955 SC. 191, has noted the above judgment of Frankfurter J. and held thus: "The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination."(emphasis supplied) 10. This view has been reiterated by the Supreme Court in State of Jammu & Kashmir v. Ghulam Rasool, AIR. 1961 SC. 1301. The petitioner in this case moved the Jammu & Kashmir High Court under Art.32(2A) of the Constitution of India for an order directing the State not to give effect to the order demoting him to the post of Divisional Engineer and to reinstate him to the post of the Chief Engineer which post he held, when he was suspended, with all the emoluments of that office. In the petition the petitioner inter alia contended that he was reduced in rank without complying with the procedure prescribed under the Kashmir Civil Service Rules and such non compliance with the Rules has resulted in a denial of equal protection of law enshrined in Art.14 of the Constitution. Rejecting this plea the Supreme Court held thus: "The only fundamental right however on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by Art.14, namely, the right to the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. He said that the respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws. It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law. But that does not amount to a violation of the right to the equal protection of the laws. Otherwise every breach of law by a Government would amount to a denial of the equal protection of the laws. We are not aware of any authority in support of that proposition and none has been cited to us. Nor are we able to find any support for it in principle. It is not the respondent's case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him." (emphasis supplied) In H. J. Siddappa v. State of Mysore, AIR. 1967 Mysore 67, considering a similar question Hedge J. (as he then was) has expounded the law thus: "Every wrong interpretation of a Rule or law does not amount to a hostile discrimination. What is of the essence is hostile discrimination an intentional unequal treatment of persons similarly placed. We are unable to agree with Mr. S.K. Venkataranga Iyengar, that any and every contravention of a Rule brings the case within Art.14 and the equality clause requires that if one person is wrongly selected, every one else similarly situated is also entitled to be selected. This contention is wholly untenable. In cases of this nature, there is no hostile discrimination. To take an erroneous view of the law does not amount to a hostile discrimination, against any one. In such a case there is no question of contravention of Art.14." To the same effect is the decision of the Supreme Court in Narain Dass v. Improvement Trust, Amritsar, AIR. 1972 SC. 865. See J. Fernandes & Co. v. Dy. Chief Controller, T & E., AIR. 1975 SC. 1208, and Jagmohan Singh v. State of U.P., AIR. 1973 SC. 947. 10. 1972 SC. 865. See J. Fernandes & Co. v. Dy. Chief Controller, T & E., AIR. 1975 SC. 1208, and Jagmohan Singh v. State of U.P., AIR. 1973 SC. 947. 10. As already noted the petitioner has no case that the benefit of the proviso to Clause.19 of the Rules has been designedly or intentionally or purposefully denied to him alone. (Vide Ground G.) The plea of the petitioner that in not extending his period of service, his fundamental right to equal protection of law enshrined in Art.14 and 16 of the Constitution of India therefore is rejected. 11. It is necessary for me to deal with the merits of the case also. The learned counsel for the petitioner submitted that the Confidential Reports of the petitioner reveal that he had had a meritorious career in the service of the Bank. It was without referring to such career the management arbitrarily rejected his application for extension of the period of service and therefore in any event it requires to be re-considered by the management. It was further contended that only the 'competent authority' as defined in Clause.3(e) of the Regulations, is competent to decide the question. Such an authority has not considered his case. His claim was considered only by the Review Committee. The impugned order therefore is liable to be vacated. The management has disputed these contentions. Referring to Clause.3(e) of the Regulations the learned counsel for the Bank submitted that a competent authority can as well be the authority designated by the Board. He further submitted, the Review Committee which considered the application of the petitioner is one designated by the Board. In this connection he called my attention to the following averments in the counter-affidavit of the Bank: "The Review Committee is entrusted with the task by the Board of Directors of the Bank and are accordingly the competent authority to discharge such functions even within the meaning of Regulation.3(e) of the relevant Regulations." In the light of the above. I am of the view that the order rejecting the application for extension by the Review Committee is valid. With reference to the assertion of the petitioner that his career in the Bank was meritorious, there is no need for an enquiry It is enough if reference is made to Exts.R1(a) to R1 (c). These documents cut at the very root of this case of the petitioner. With reference to the assertion of the petitioner that his career in the Bank was meritorious, there is no need for an enquiry It is enough if reference is made to Exts.R1(a) to R1 (c). These documents cut at the very root of this case of the petitioner. I do not deem it necessary to touch every aspect dealt with in these documents. It is enough if reference is made to the statements contained in Ext. R1 (c). For reference they are extracted hereunder: "With reference to your letter No. RMV/5/3 dated 5-7-1982. while the above officer is at liberty to go to any branch to clear his doubts, his action in having closed the branch before the scheduled time is not in order" (emphasis supplied) This is a communication dated 30th July, 1982, signed by the Regional Manager and addressed to the petitioner. In the light of these documentary evidence and other similar materials, it would be difficult to hold that the management was not justified in not extending the period of service of the petitioner after his retirement. The Original Petition therefore is without merit, and hence liable to be dismissed. I accordingly dismiss the Original Petition. No order as to costs. Dismissed.