ORDER K.K. Varma, J.-1. This is a miscellaneous petition under Article 226 of the Constitution of India praying for quashing of the Order No. 434 dated 13-11-1975 (Annexure-B) (purporting to be under Rule 2 (3) (ii) of the Madhya Pradesh Pension Rules, 1951] passed by respondent No.3, the Controller, Printing and Stationery Department, Madhya Pradesh, Bhopal, retiring petitioner Avodhya Prasad on 13-11-1975 in the public interest from the post of Section Holder held by him at the Government Regional Press, Lashkar, Gwalior after he had completed 25 years of qualifying superior service in the Department. 2. The impugned order runs as follows :- "OFFICE OF THE CONTROLLER, PRINTING & STATIONERY, MADHYA PRADESH, BHOPAL. ORDER No. 434 Dated 13-11-75. Whereas it is considered necessary in the public interest to do so ; Now, therefore, in exercise of the powers conferred vide Madhya Pradesh Pension Rules 1951, 2 (3) (ii) Shri A.P. Shri. Vastava, Section Holder, Govt. Regional Press, Gwalior who has completed qualifying superior service of 25 years on or before 31-7-1975, is hereby retired from service with effect from the date of service of this order on him. Sd-Controller To, Printing & Stationery, M, P., Bhopal. Shri A. P. Shrivastava, Section Holder, Govt. Regional Press, Gwalior. 3. The admitted and undisputed material facts are as follows. The petitioner's service career began on 15-9-1949 with his appointment on the post of Compositor in the Secretariat Press, Motimahal, Gwalior. Then he was promoted to the post of Proof Reader on 18-10-1949. 4. After the formation of the State of Madhya Bharat the petitioner was transferred to the establishment of the Government Central Press, Gwalior where he was promoted to the post of Assistant Foreman on 6-9-1956. 5. The petitioner who came to be absorbed in the post of the Assistant Section Holder with effect from 1st November, 1956 (the date of formation of the new State of Madhya Pradesh), filed a suit against the State of Madhya Pradesh on 14-12-1970 for a decree that he was entitled to be absorbed in the post of Section Holder, and not of Asstt. Section Holder. (The suit No. 88-A/74 had not been decided till the filing of the present writ petition). 6. It is undisputed that the impugned order was passed during the emergency period. 7. Section Holder. (The suit No. 88-A/74 had not been decided till the filing of the present writ petition). 6. It is undisputed that the impugned order was passed during the emergency period. 7. It is common ground that on 13th November, 1975 the rule in Fundamental Rule 56 (1) provided that the age of superannuation of a Government servant, other than a class (IV) Government servant, shall be the date on which he attains the age of 58 years. 8. It is also undisputed that on 15th November, 1975 the petitioner's age was 49 years and that he had by then completed only 25 years, but not 30 years of qualifying superior service as a Government servant 9. It is undisputed that clause (ii) of sub-rule (3) of Rule 2 of the M.P. New Pension Rules, 1951, referred to by respondent No.3 as the basis of the impugned order dated 15-11-1975 had been deleted by the Governor of Madhya Pradesh in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution, vide the Notification No. 478-IV-R-II-72, dated 18th March 1972 (Annexure B1), published ill the M.P. Government Rajpatra, Part IV (ba) dated 28-4-1972 at pages 161-162. 10. The aforementioned deleted clause (set out in Annexure P-A) read as follows:- “A retiring pension is also granted to a Government servant who is required to retire after completing a qualifying superior service of twenty-five years. The authority competent to retire a Government servant has an absolute right to retire him without giving any reasons after he has completed a qualifying superior service of twenty five years, and no claim to special compensation on this account will be entertained. This right shall not be exercised except when in the opinion of the competent authority it is necessary so to do in the public interest to dispense with the further services of a Government servant." 11. The petitioner gave a written representation to respondent No.4 (the Deputy Controller, Government Regional Press, Lashkar, Gwalior ) who , told the petitioner that he was not entitled to three months' notice or in lieu thereof three months' salary under Rule 2 (3) (ii) of the M.P. Pension Rules, 1951, vide letter dated 26-12-1975 (Annexure C). 12. The petitioner gave a written representation to respondent No.4 (the Deputy Controller, Government Regional Press, Lashkar, Gwalior ) who , told the petitioner that he was not entitled to three months' notice or in lieu thereof three months' salary under Rule 2 (3) (ii) of the M.P. Pension Rules, 1951, vide letter dated 26-12-1975 (Annexure C). 12. After lifting of the emergency (and with a change in the administration) the petitioner made a written complaint about the impugned order to the authority (hereinafter referred to as the Excesses Authority) appointed by the State Government of Madhya Pradesh to enquire into complaints of alleged excesses committed by the previous administration during the emergency period 13. The Officer-on-Special Duty of the G.A.D. wrote a letter dated 11-1-1979 (Annexure D) informing the petitioner that Excesses Authority had enquired into and sent its report on the petitioner's complaint about the impugned order to respondent No.3 (the Controller of the Printing and Stationery Department, Madhya Pradesh, Bhopal) for further action, and advised the petitioner to contact the Controller. A copy of the letter was sent to the Controller for taking appropriate action within three months in accordance with the Excesses Authority's recommendations. 14. The Controller (respondent No.3) then wrote the following letter (dated 9-2-1979) (Annexure-G) to the petitioner:- e/;izns’k ‘kklu rkj% ‘kklu eqnz.k eqnz.k rFkk ys[ku lkexzh foHkkx nwjHkk”k ¼fu;a=.k ˆƒŒ‡„ vjsjk fgYl] gchcxat jksM+] Hkksiky †ˆ„ŒŒˆ ¼mifu;a=d ˆ„‹‡‡ dzekad thñ chñ „ ¼ƒ½@‰…@ƒ„„ fnukWd ‰&„&‰‹ izfr] Jh ,ñ ihñ JhokLro fjVkñ lsDlu gksYM+j] xouZesUV jhtuy izsl]Xokfy;jA fo”k;%&vfuokZ lsok fuo`fr ds fo:} izkIr vH;kosnuksa dh dk;ZokghA mijksDr fo”k; ij vkids }kjk ‘kklu dh lsok esa iqu% ysus gsrq vH;kosnu fn;k x;k gSA bl laca/k esa ‘kklu ds funsZ’kkuqlkj vkids pfj=kofy;ksa esa o”kZ ‰ƒ ls ‰‡ rd tks izfrdwy Vhdk,a ikbZ xbZ vkSj tks vkidks lalwfpr ugha dh xbZ dh xbZ og layXu Kkiu esa lalwfpr dh tk jgh gSaA i= izkfIr ds ƒ‡ fnu ds Hkhrj vkidk vH;kosnau bl dk;kZy; esa izkIr gks tkuk pkfg;s vU;Fkk ;g ekuk t;xk fd vkids laca/k esa vafdr dh xbZ izfrdwy vfHk;qfDr;ka vkidks ekU; gSaA „- o”kZ ‰„&‰… ls ‰…&‰† dh izfrdwy vfHk;qfDr;ka iwoZ esa vkidks bl dk;kZy; ds Kki dzekad thñchñ ƒƒ lhñ vkjñ ƒ†„ˆ] fnukad ƒŠ&ƒƒ&‰† }kjk lalwfpr dh xbZ gSa ftl ij vkidk vHkkosnu vkt rd izkIr ugha gqvkA layxu&ƒ gLrkñ mi&fua=d okLrs fu;a=d eqnz.k rFkk ys[ku lkezxh eñ izñ] HkksikyA 15. The petitioner sent by registered post a written representation dated 24-2-79 (Annexure I) to the Controller about refuting the correctness of the adverse entries referred to in the Controller's letter dated 9-2-79 (Annexure-G) on 12th March, 1979. 16. On 12th March, 1979 the petitioner referring to his written representation dated 24-2-79 wrote a letter to the Controller requesting him to pass an order in terms of the letter dated 11-7-79 (Annexure-D) of the O.S.D. of the G.A.D. 17. On 4th June 1979 the petitioner sent a letter (Annexure-J) to respondent No. 1 (the Chief Secretary) by registered post complaining that respondent No.3 (The Controller) had not passed any order in the light of the Excesses Athority's recommendation, and requesting him (the Chief Secretary) to pass himself the requisite order. On 16th July 1979 the petitioner requested the Chief Secretary (Annexure-O) to pass necessary orders in his case by 31st July 79 or to face a litigation. 18. On 8-10-79 the petitioner's counsel sent notices of Demand of Justice to the respondents 1 to 5, vide Annexure Q. 19. Respondent No.3 (the Controller) sent a letter dated 19-10-79 (Annexure R) with reference to the petitioner's letters to the Chief Secretary ( Annexures J & Q ) that his case had been sent to the Commissioner, Gwalior Division, Gwalior because a Committee had been constituted and authorised to decide the matter, vide G. A. D's. Memo No. 3-7/78/3/1, dated 25-10-78. 20. Respondent No.3 sent a letter No. 928, dated 28-11-79 to the Secretary, Madhya Pradesh Government, Revenue (Branch-5) Department, Bhopal, enclosing parawise reply (Annexure T) to the petitioner's notice of Demand of Justice (Annexure Q). recommending the appointment of an Officer-in charge to defend such cases as might be filed by the petitioner in Court. 21. Ultimately the respondent No.3 (the Controller) informed the petitioner vide his letter dared 31-1-80 ( Annexure U) that the Committee constituted under the G.A.D. Memo. No. 3-7/78/3/1, dated 25-10-78 had considered on 5-9-79 and rejected his representation. The respondents have stated at paragraph 17 of their return that the Committee's meeting had been held on 5-12-79, and not on 5-9-79, which was a typing error in the letter dated 31-1-80 (Annexure t!). 22. The petitioner bas attacked the impugned Order dated 13-11-75 (Annexure B) as well as the aforementioned Committee's decision rejecting his representation. 23. The respondents have stated at paragraph 17 of their return that the Committee's meeting had been held on 5-12-79, and not on 5-9-79, which was a typing error in the letter dated 31-1-80 (Annexure t!). 22. The petitioner bas attacked the impugned Order dated 13-11-75 (Annexure B) as well as the aforementioned Committee's decision rejecting his representation. 23. The petitioner's main ground of attack is that Rule 2(3) (ii) having been deleted by the Government on 18-3-72, the impugned order passed on 13-11-75 on the basis of the aforementioned non-existent rule is illegal and of no binding force. 24. In their return dated 26-11-80 the respondents defend the validity of the impugned orders dated 13-11-75 by referring to Rule 2 (3) (ii) and the, orders of the Madhya Pradesh Government contained in G.A.D. Memo. No.322/419/1 (iii) /72, dated 30-5-72 (Annexure R-B), Memo. No.3-23/75/3/1 dated 27-7-75 (Annexure R-C) and Memo. No. 3-23/75/3/1, dated 8-9-75 (Annexure R-D). It is stated that accordingly the departmental screening committee examined the character rolls of the petitioner. There were recorded adverse entries in them for the years 72-73, 73-74 & 74-75 (Annexures R-F, & R-G) against the petitioner. He was found to be inefficient. It was recommended that he be compulsorily be retired. The State Government considered the recommendation and took a decision to retire the petitioner, vide Revenue Department Memo. No 3692/9134/75/VII/Estt. dated 10-11-75 (Annexure R-E) and then the respondent No.3 passed the impugned order in accordance with the Rule 2(3) (ii) of the New Madhya Pradesh Pension Rules, 1951. 25. The respondents dealt with the position arising out of the deletion of Rule 2 (3) (ii) of the M.P. New Pension Rules 1951 before 13-11-75 by saying that the Government had inherent power to retire a Government servant on completion of 25 years qualifying superior service. The argument is sought to be buttressed by' a reference to Clause (i) of sub-rule (3) of Rule 2 of M. P. Pension Rules 1951, which runs as follows:- "(3) (i) After completion of a qualifying superior service of 25 years a Government servant may be permitted by the appropriate authority to retire- (a) in the interest of Government, i.e., where administrative convenience is served or economy is affected by his retirement; or (b) otherwise than in the interest of Government". The respondents contend that the petition is liable to be dismissed on the ground of laches. 26. The respondents contend that the petition is liable to be dismissed on the ground of laches. 26. The first point for determination is whether the impugned order was grounded in any provisions of law or rules having force of law. 27. It is not in dispute that clause (ii) of sub-rule (3) of Rule 2 of the Pension Rules, 1951 had been deleted by the Governor of Madhya Pradesh, vide the notification No. 478-IV-R-II-72. dated 18-3-72 (Annexure B-1), published in the M.P. Government Rajpatra, Part IV (ba), dated 28-4-72 at pages 161-162 and, as such, the power to retire a Government servant in the conditions referred to in the repelled rule was not available to the State Government of Madhya Pradesh or the respondent No.3 (the Controller). It is, therefore, established that the impugned order dated 13-11-75 (Annexure B) cannot be sustained in law, on the ground and the authorities stated therein. 28. The provision of clause (i) of sub-rule (3) of Rule 2 was also not applicable because it enables a Government servant to apply for permission to the appropriate authority to retire after completion of a qualifying superior service of 25 years. In the case before me the petitioner had not applied to the appropriate authority for permission to clause (i) of sub-rule (3) of Rule 2 of the New Pension Rules, 1951. 29. During arguments respondents learned counsel defended the impugned order on the authority of sub-rule (ii) of Rule 2 of M.P. New Pension Rules, 1951 which runs as follows :- A Government servant may, after giving at least three month's previous notice in writing to the appropriate authority retire from service un the date on which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified In the notice. The appropriate authority may, after giving him atleast three month's previous notice in writing, also require a Government servant to retire from service on the date on which he completes 30 years of qualifying service or attains the age of 55 years or on any date thereafter to be specified in the notice." Since the petitioner was aged only 49 years and had not completed 30 years qualifying superior service by l3th November 1975, and no 3 months previous notice in writing having been given to him by the appropriate authority, there is no force in the respondents learned counsel's submission that the validity of the impugned order can be defended under Rule (ii) sub-rule 2 of Rule 2 of the Madhya Pradesh New Pension Rules, 1951. 30. The respondents learned counsel has relied on Shyamlal v. State of Uttar Pradesh & Another AIR 1954 SC 369 and Dalip Singh v. State of Punjab AIR 1960 SC 1305 . They are distinguishable because in those cases it was found that the orders of compulsory retirement were in accordance with the rules in force conferring power's on the appropriate authority to compulsorily retire the Government servant in question. 31. Ram Narain v. State of M.P. 1964 JLJ 427 – 1964 MPLJ 387 decided on 13-2-64 does not help the respondents at all. It related to a case where a Government servant had been made to retire under Rule 2 (3) (ii) for inefficiency after completing 30 years' service. In that case also the impugned order bad not been passed under sub-rule (ii) of Rule 2 but under clause (ii) of sub-rule (3) of Rule 2 of the M.P. New Pension Rules, 1951, It was held as follows:- "In the present case, the impugned order was passed under sub-rule (3) (ii) which did not at all apply to the petitioner. That order cannot be treated as one made under sub-rule (2) as the Government did not give to the petitioner a notice in writing at least three months before the date on which he was retired, The order of the petitioner's retirement was thus not in accordance with rule 2 (2). It was in contravention of that rule; and that being so, it must be held to be illegal." 32. It was in contravention of that rule; and that being so, it must be held to be illegal." 32. In S.S. Shrivastava v. State of M.P. & Others 1977 (1) MPWN 560 and Bhaiyalal Kasar v. General Manager, South Eastern Railway Calcutta & Others 1977 (1) MPWN 381, all that was held was where an order (either or reversion from officiating post or even compulsory retirement) ex facie casts no stigma on the petitioner, stigma cannot be discovered from some other records. Hence these rulings are not relevant to the matter under discussion in this case, 33. Now I will consider the respondents contention that the writ petition deserves to be dismissed on the ground of inordinate delay in filing it. 34. In this background the following averments at paragraph 6 of his petition were submitted to this Court: "Since, order was made during emergency the representation of the petitioner was not forwarded by the authorities to the State Government and the petitioner was threatened to be detained under MISA if he made, if he approached any of the higher authority." The averments are supported by an affidavit. The respondents admit at paragraph 6 of their return that the petitioner did make a representation to the State Government. It was also stated that the representation was rejected on 30-10-76. Hence the petitioner did pursue the matter by making a representation to the State Government where it remained pending till 30-10-76. Since the events related to emergency period the petitioner's averment that he had been threatened that he would be detained in MISA in case he chose to approach any of the higher authority cannot be said to be implausible. His failure to file a writ petition then is excusable. As to the period after the lifting of emergency, the petitioner had approached the appropriate authority for reinstatement in service. He had every justification for doing so because there had been a change in the administration and the emergency period was over. 35. Thus, taking a cumulative view of all the circumstances in the case I find that the delay in filing the writ petition is not such as would justify throwing out of the petition on that score. The delay is understandable and held to be excusable. 36. 35. Thus, taking a cumulative view of all the circumstances in the case I find that the delay in filing the writ petition is not such as would justify throwing out of the petition on that score. The delay is understandable and held to be excusable. 36. In view of the grounds on which the impugned order has been found to be invalid I do not think it necessary to consider the other objections based on communication or non-communication of the adverse entries in the petitioner's character rolls or the motive behind the impugned order. Since the impugned order has been found to be unsustainable in law, and illegal, the decision of the Committee rejecting the petitioner's representation on 5-12-79, becomes as unsustainable in law as the impugned order. 37. In the result, the petition succeeds and the impugned order dated 13-11-75 (Annexure B) and the decision of the State Government of Madhya Pradesh in this respect-contained in the order No. 3792/9134/75/Saat/Isthapana 1/4 Bhopal, dated the 10th November, 75 of the Revenue Department; establishment of the State of Madhya Pradesh (Annexure R-I) are, hereby quashed as unsustainable in law. An appropriate writ shall be issued to the respondents with the following direction; the petitioner shall be re-instated in service w. e. f., 13-11-1975 and shall get salary and other allowances and other benefits as per his service conditions and such other rules, regulation and instructions of the Government as are found applicable to his case. 38. The outstanding amount of security deposit be refunded to the petitioner. 39. The respondents shall pay the costs of the petitioner and shall bear their own. Counsel's fee Rs.150/-.