T. P. S. CHAWLA,j. ( 1 ) THE appellant, Mr. S. V. Motwani, was appointed an overseer in the Central Public Works Department of the Government of India in 1941. He rose in the service and, on 24th July 1953, was promoted to the post of Executive Engineer. On that day, he took over charge as Executive Engineer of Delhi State Division No. 1 from Mr. C. P. Govil, the Executive Engineer who previously held that post. ( 2 ) MR. C. P. Govil had been the Executive Engineer, Delhi State Division No. I since 1st May 1950. During his tenure, the work of widening Delhi-Gurgaon road mile 612 to 1315 was sanctioned by the Ministry of Transport. The technical approval and financial sanction was granted by the competent authorities on 4th December 1952. The estimated cost of the work was Rs. 3,53,4001- plus agency charges. ( 3 ) IN pursuance of the sanction, a draft notice in duplicate inviting tenders was submitted for the approval of Mr. M. L. Nanda, the Superintending Engineer. It was approved by the Superintending Engineer and returned to Mr. Govil. Item 11 of the schedule of items attached to the notice inviting tenders was as follows : 314" premix light chipping carpet with cold bitumen using 6 lbs of bitumen per eft of grit and tack coat of 20 lbs of bitumen per hundred eft of road surface quantity 3,48,489 sft, rate Rs. 21-8-0 per hundred sft amount Rs. 74,923; -. the figure 6 before ibs in this item was corrected to 5 both in the original as well as duplicate notice inviting tenders, and bore the initials of Mr. Govil. According to Mr. Govil, this correction was made by him after getting approval from the Superintending Engineer on the telephone. ( 4 ) THEREAFTER, a notice inviting tenders was issued by Mr. Govil in which item 11 showed that 5 Ibs. of bitumen were to be used per cubic foot of grit. The work was awarded to a contractor named Kam Lal Hans. By the time that Mr. Govil handed over charge to Mr. Motwani on 24th July 1953, the contractor had already been paid 5 running bills for this work. The 6th to 9th running bills and the final 10th bill were paid by Mr. Motwani between 24th July 1953 and 31st March 1954. By the time that Mr. Govil handed over charge to Mr. Motwani on 24th July 1953, the contractor had already been paid 5 running bills for this work. The 6th to 9th running bills and the final 10th bill were paid by Mr. Motwani between 24th July 1953 and 31st March 1954. Payments for all these bills were made on the basis of 5 Ibs. being the specification in item 11 of the Agreement. ( 5 ) ON 3rd August 1954, Mr. G. S. Sabharwal, Assistant Accounts Officer in the office of the Accountant General, Central Revenues, New Delhi, wrote a demi-official letter to. Mr. Motwani enclosing a note which showed that overpayment of about Rs. 16,0001- had been made to the contractor. The calculations and the note proceeded on the footing that item 11 of the Agreement required bitumen 6 Ibs , and, since the contractor had used 5 Ibs , a reduction in the rate ought to have been made. Mr. Motwani was required to recover this amount immediately from the dues of the contractor or his security deposit. He was, also, required to intimate the action proposed to be taken against the staff responsible for this overpayment. ( 6 ) MR. Motwani replied to Mr. G. S. Sabharwal by a letter dated 23rd August 1954. He said, that item 11 of the original agreement provided for 5 Ibs of bitumen per cubic foot and not 6 Ibs and bitumen was issued and recoveries made accordingly. Hence, he said, there had been no overpayment. ( 7 ) ON 14th September 1954 the contractor applied, through his attorney, to Mr. Motwani for refund of the balance 50 per cent of his security deposit. After getting reports from the concerned officials of the Division and, also, the advice of the Divisional Accountant, who was the representative of the Accountant General, Central Revenues, and financial adviser to the Executive Engineer, Mr. Motwani recommended that the refund be made, but after getting an undertaking from the contractor that he would be liable to pay any amount that may ultimately be found due from him. The refund was then made to the contractor. Motwani recommended that the refund be made, but after getting an undertaking from the contractor that he would be liable to pay any amount that may ultimately be found due from him. The refund was then made to the contractor. ( 8 ) BY a letter dated 17/24th September 1954, the Assistant Accounts Officer in the office of the Accountant General, Central Revenues, New Delhi, requested the Superintending Engineer, Delhi State Circle, New Delhi, to make a thorough and complete inquiry into the overpayment of Rs. 16,000[- to the contractor. A copy of this letter was also sent to Mr. Motwani for sending a report in the matter. ( 9 ) ON 29th December 1954, Mr. Motwani wrote a letter to the Superintending Engineer explaining the whole position in detail and asked him to obtain claritication, if necessary, from Mr. Govil. On 23rd February 1955, the Superintending Engineer, wrote to the Accountant General, Central Revenues, New Delhi, saying that he had investigated the matter and was satisfied that there had been no overpayment. He said, that the correction in item II from 6 to 5 Ibs. of bitumen had been made in the original agreement by the Executive Engineer himself, but due to oversight the clerk concerned had not made the necessary correction in the duplicate and triplicate copies, and this had given an impression that an overpayment had been made. Even otherwise, he said, the rates received for this item compared favourably with the presumptive estimated rates using 6 Ibs. only . He, therefore, requested that the matter be dropped. ( 10 ) MORE than a year later, Mr. K. S. Krishnaswamy, Joint Secretary, Ministry of Works, Housing and Supply was deputed to hold a preliminary inquiry into the matter. He called Mr. Motwani on 6th June 1956 and interrogated him. Mr. Motwani maintained that the contractor had been paid according to the Agreement and that there was no question of any overpayment. In due course, the inquiry officer submitted his report. ( 11 ) AFTER another two years Mr. Molwani received a memorandum dated 11th July 1958 informing him that it was proposed to hold an inquiry against him into the three charges set out in the enclosed statement. The charges were as follows : charge I That the said Shri S. V. . ( 11 ) AFTER another two years Mr. Molwani received a memorandum dated 11th July 1958 informing him that it was proposed to hold an inquiry against him into the three charges set out in the enclosed statement. The charges were as follows : charge I That the said Shri S. V. . Motwani while functioning as Exscutive Engineer Delhi Statr Division during the period 1953 to 1954 was guilty of tampering with official documents unauthorisedly. Charge II That during the aforesaid period while functioning in the aforesaid office, the said Shri Motwani was guilty of violation of codal rules applicable to the C. P. W. D. Charge III That during the aforesaid period while functioning in the aforesaid office, the said Shri Motwani was guilty of dereliction of duty. Mr. Motwani submitted a written statement denying the charges. ( 12 ) THEREAFTER, Mr. R. F. Isar, Joint Secretary in the Ministry of Works, Housing and Supply was appointed as Inquiry Officer to conduct a joint inquiry against Mr. C. P. Govil, Mr. Motwani and some other officers on the basis of the preliminary report submited by Mr. K. S. Krishnaswamy. After completing the inquiry, the Inquiry Officer submitted a report dated 4th June 1959. So far as Mr. Motwani was concerned, the Inquiry Officer held that charge No. 1 was not proved. As regards charge No. 2, he held that Mr. Motwani had violated the codal rules of the Central Public Works Department by his failure to submit the revised estimate (necessitated by a change in the scope of the work during its progress) in the prescribed form and to draw it up in that form in the proper manner. He, also, held that the refund of the balance of the contractor s security deposit before the Accountant General, Central Revenues, had formally intimated withdrawal of the objection was a violation of para 28 and the note, under para 30 of the Central Public Works Accounts Code. He held, this charge proved to this extent. He also found ,charge No. 3 proved because Mr. Motwani had unduly depended on his staff and failed to supervise their work properly, and had been negligent in some respects. ( 13 ) A notice dated 23rd July 1959 was then served on Mr. He held, this charge proved to this extent. He also found ,charge No. 3 proved because Mr. Motwani had unduly depended on his staff and failed to supervise their work properly, and had been negligent in some respects. ( 13 ) A notice dated 23rd July 1959 was then served on Mr. Motwani requiring him to show cause why, in view of the findings of the Inquiry Officer, he should not be dismissed from service. In answer, Mr. Motwani sent a written representation containing his submissions. The matter was then REFERRED TO to the Union Public Service Commission. They concurred with the findings of the Inquiry Officer, but after taking into account all the relevant facts they advised that the requirements of the case will be met if Shri Motwani is reduced to the rank of Assistant Engineer for a period of two years and on restoration this period operates to postpone his future increments . The President accepted the advice of the Commission. Accordingly Mr. Motwani was informed by a letter dated 29th March 1961 that, in view of the findings against him, the President had decided that he should be reduced to the rank of Assistant Engineer for a period of two years and that, on restoration, this period should operate to postpone his future increments . ( 14 ) ABOUT 10 months later, Mr. Motwani sent a memorandum of appeal dated 15th January 1962 to the President against the said order. This was treated as a memorial and was rejected by the President after more than two years, and his decision was communicated to Mr. Motwani by a letter dated 5th June 1964. ( 15 ) WHILST his appeal to the President was still pending, Mr. Motwani was served with a Notice dated 19th July 1963 which reads as follows : IN accordance with para 6 of the Ministry of Home Affairs Memorandum No. 33ll8162-Ests (A) dated 30th November, 1962, Shri S. V. Motwani, Executive Engineer, Central Public Works Department, is hereby given notice that he shall retire from service w. e. f. the date of expiry of three months from the date of the service of this Notice on him. sd/- (R. F. Isar) Joint Secretary to the Government of India for and on behalf of the President Of India. the notice was served on Mr. Motwani on 1st August 1963. sd/- (R. F. Isar) Joint Secretary to the Government of India for and on behalf of the President Of India. the notice was served on Mr. Motwani on 1st August 1963. Three months later, he was retired. In February 1964, he vacated the Government accommodation which had been allotted to him and went and settled in Vrindaban. ( 16 ) MR. C. P. Govil had, also, been found guilty of some of the charges against him by the Inquiry Officer. In consequence, he was dismissed from service. He then moved a petition for quashing his dismissal before the Circuit Bench of the Punjab High Court at Delhi. This petition was dismissed by a single judge on 25th March 1964. Mr. Govil appealed against that judgment under the Letters Patent. His appeal was allowed on the ground that the Inquiry Officer had misconducted the proceedings by violating the rules of natural justice, and his dismissal was quashed. The judgment in appeal was delivered on 17th February 1965, and is reported as ( 17 ) IN July 1966, Mr. Motwani filed a petition under Article 226 of the Constitution in the Circuit Bench of the Punjab High Court at Delhi. In this petition, he prayed that the order dated 29th March 1961, by which he was demoted, and the notice dated 19th July 1963, by which he was compulsorily retired, should be quashed, and he should be reinstated in service in the same rank and cadre as he enjoyed before the imposition of these punishments; and, further, that he should be treated as having been on duty and should be paid all his dues. ( 18 ) THIS petition, filed by Mr. Motwani, was dismissed by Jagjit Singh, J by a judgment dated 26th July 1971. As regards the order dated 29th March 1961, by which Mr. Motwani was demoted, the judge held that the petition had been filed after inordinate delay and there was no satisfactory explanation therefor. Consequently, he declined to entertain the petition as against that order. With regard to the notice dated 19th July 1963, the judge held that the compulsory retirement of Mr. Motwani was valid. ( 19 ) AGAINST that judgment, Mr. Motwani has filed this present appeal under clause 10 of the Letters Patent. The points taken in the appeal are the same as those which were canvassed before the single judge. With regard to the notice dated 19th July 1963, the judge held that the compulsory retirement of Mr. Motwani was valid. ( 19 ) AGAINST that judgment, Mr. Motwani has filed this present appeal under clause 10 of the Letters Patent. The points taken in the appeal are the same as those which were canvassed before the single judge. ( 20 ) WHILST this appeal was pending, Mr. Motwani died on 7th August 1973. His son, Dr. Shyam Lal, moved an application (C. M. No. 1858 of 1973), in November 1973 for being impleaded as his legal representative. He said, in this application, that Mr. Motwani had left a will bequeathing all his move- able and immoveable property and claims against the Governmeat and others to him, and, therefore, he was entitled to be impleaded as the sole legal representative in place of Mr. Motwani. He, also, gave the names and addresses of the three other sons and two daughters of Mr. Motwani, and prayed that they be joined as respondents. ( 21 ) NOTICE of this application was sent to the Union of India, but no reply was filed. The application was allowed by the Deputy Registrar by an order dated 18th April 1974 subject to all just exceptions . Counsel for the Union of India was not present on that date. The question, therefore, still remains open whether the right to sue survives, and Dr. Shyam Lal is entitled to proceed with this appeal. Since this is a preliminary point, it needs to be decided first. ( 22 ) IN his petition, Mr. Motwani prayed for a number of reliefs. The main relief sought was a writ of certiorari to quash the order of demotion dated 29th March 1961, and the notice dated 19th July 1963 by which he was compulsorily retired. As a consequential relief he sought reinstatement, and, also, a direction to the Union of India to treat him as on duty and pay him all his dues according to rules . In his application for being impleaded as the legal representative of Mr. Motwani, it was pleaded by Dr. Shyam Lal that if the appeal were allowed he would be entitled to the arrears of salary etc. which the petitioner himself. would have been entitled to, had he been alive . In his application for being impleaded as the legal representative of Mr. Motwani, it was pleaded by Dr. Shyam Lal that if the appeal were allowed he would be entitled to the arrears of salary etc. which the petitioner himself. would have been entitled to, had he been alive . ( 23 ) IT seems to be now well settled that although a person who has been demoted or whose service has been terminated can obviously no longer be restored or reinstated after his death if the impugned order is set aside, nevertheless, the pecuniary benefits which would have accrued to him, in the event of restoration or reinstatement, form part of his estate and can be recovered by his legal representatives. Hence, the right to sue survives. Thus, in the. heirs of an officer who had been reverted were allowed to continue the proceedings as they would be entitled to recover the amount of the salary to which he would have been entitled if the order of reversion was set aside. That case was followed in in which the deceased officer had been dismissed, and not merely reverted. It was, also, followed in Shri Jang Bahadur vs. Union of India and ors. , 1973 (1) SLR 366 (4), by a single judge of this court in the case of a deceased officer who had been compulsorily retired. Another single judge of this court applied it to an officer who was removed from service :the legal representatives were allowed to recover arrears of pay, allowances, gratuity, pension etc. after a suit for a declaration that the dismissal of the employee was wrongful had been decreed. ( 24 ) I concur with the view taken in these cases. But, counsel for the Union of India contended that in the present pro" ceedings an order for payment of salary could not be made. He cited The Managing Director, Uttar Pradesh Warehousing Corporation and Ors vs. Vijay Narayan Vajpayee, 1980 S. L. J. 204 (7 ). It was held in that case that in exercise of the jurisdiction to issue writs of certiorari, the High Court should ordinarily not give a positive direction for payment to the employee (of) full back wages . That case, however, does not deal with the position when, as here, a writ of mandamus is, also, sought. It was held in that case that in exercise of the jurisdiction to issue writs of certiorari, the High Court should ordinarily not give a positive direction for payment to the employee (of) full back wages . That case, however, does not deal with the position when, as here, a writ of mandamus is, also, sought. The decision was by a bench of two judges of the Supreme Court. In other cases, benches of equal strength of the Supreme Court have ordered payment of back wages while quashing an order terminating the services of an employee. Such an order was made in where an order of compulsory retirement Was held to be illegal. It was ruled in that case that the appellant would be eligible to his salary. . . . . for the period between the date of compulsory retirement and the date of actual superannuation at the age of 58. Likewise, in arrears of salary were ordered to be paid to an employee who was reinstated. back wages were also ordered to be paid by the Supreme Court in a single judge of this court ordered payment of arrears of salary for the period when the employee was under suspension. ( 25 ) MOREOVER, there are observations of the Supreme Court in Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh and others, AIR 1962 S. C. 1334 (13), which clearly imply that the High Court does have power to order payment of salary when allowing a petition under Article 226 of the Constitution. The relevant passage reads : THE High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of O. 2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court. this judgment was delivered by a bench comprising four judges of the Supreme Court. this judgment was delivered by a bench comprising four judges of the Supreme Court. In it was laid down that where there is a conflict between the views expressed by larger and smaller benches of the Supreme Court, the proper course for the High Court is to try to find out and follow the opinion expressed by the larger benches in preference to those expressed by the smaller benches. This practice, it was said, had hardened into a rule of law and was followed by the Supreme Court itself. ( 26 ) THUS, apart from the fact that the Supreme Court has itself, in the cases to which I have REFERRED TO, ordered payment of salary, I think, we are bound to follow the ratio emerging from the passage which I have quoted from Davindra Pratap Narain Rai Sharma s case (Supra) in preference to Vijay Narain Vajpayee s case (Supra ). I would, therefore, held that the right to prosecute the appeal survives, and Dr. Shyam Lal has been rightly impleaded in place of Mr. Motwani. ( 27 ) I come then to the merits. The first half of the case is aimed against the order dated 29th March 1961. By that order, the President directed that Mr. Motwani should be reduced to the rank of Assistant Engineer for a period of two years and that, on restoration, this period should operate to postpone his future increments. This was the punishment awarded to Mr. Motwani for being found guilty of charges Nos. 2 and 3 as a result of the inquiry. The inquiry into the charges against Mr. Motwani was held jointly with the inquiries against Mr. C. P. Govil, Executive Engineer, Mr. Harsaran Singh, Assistant Engineer, and Mr. Sudarshan Kumar, Accounts Clerk, in the Central Public Works Department, Delhi State Division No. 1. There were, also, some other officers tried along with them. The Inquiry Officer held only one proceeding in which the evidence in respect of the charges against all these various officers was recorded. He submitted one consolidated report. ( 28 ) AS I have mentioned already, Mr. Govil was ultimately successful in a Letters Patent Appeal, decided by the Circuit Bench of the Punjab High Court at Delhi, in having his dismissal quashed on the ground that the Inquiry Officer had misconducted the proceedings by violating the principles of natural justice. Mr. He submitted one consolidated report. ( 28 ) AS I have mentioned already, Mr. Govil was ultimately successful in a Letters Patent Appeal, decided by the Circuit Bench of the Punjab High Court at Delhi, in having his dismissal quashed on the ground that the Inquiry Officer had misconducted the proceedings by violating the principles of natural justice. Mr. Harsaran Singh, Assistant Engineer, was also dismissed. He filed a petition (Civil Writ No. 615-D of 1964) which was allowed by a single judge of this court on 14th December 1966. The judgment in C. P. Govil s case (Supra) was followed, and the order of dismissal passed against Mr. Harsaran Singh was quashed. Thus, in these two cases it has been held that the very same inquiry, in which Mr. Motwani was found guilty of two charges, was vitiated, and the orders of dismissal made in consequence thereof were set aside. It must necessarily follow that the punishment awarded to Mr. Motwani would, also, have to be set aside. So, as regards the merits, Mr. Motwani s case against the order dated 29th March 1961 is unanswerable. ( 29 ) THE single judge, however, declined to entertain Mr. Motwani s petition as against that order, on the ground that there had been too much delay in moving the court. Mr. Motwani has given an explanation for the delay in his petition and, also, the affidavit-in-rejoinder. He says, that he sent a memorandum of appeal dated 15th January 1962 to the President against that order. Since no appeal lay against such an order, it was treated as a memorial. The rejection of this memorial was communicated to Mr. Motwani on 5th June 1964. In the meanwhile, the notice dated 19th July 1963 was served on Mr. Motwani by which he was compulsorily retired. In February 1964, he vacated the Government accommodation allotted to him and went and settled in Vrindaban to spend his retired life there . He was, thus, out of touch with events in Delhi. He says, that he became disgusted and disappointed when he learnt that the petition filed by Mr. C. P. Govil had been dismissed by a single judge of the Punjab High Court on 25th March 1964. The legal advice which he received at that time also discouraged him from taking any further action. He says, that he became disgusted and disappointed when he learnt that the petition filed by Mr. C. P. Govil had been dismissed by a single judge of the Punjab High Court on 25th March 1964. The legal advice which he received at that time also discouraged him from taking any further action. ( 30 ) MATTERS rested there, until he happened to come to Delhi in February 1966. It was then that he learnt from a friendthat Mr. Govil had succeeded in appeal and had been reinstated. So, he started making inquiries about the judgment. After reading the judgment, he sent a petition to the President under Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules 1965 on 3rd March 1966 requesting that he, too, be reinstated in service, and be paid arrears of salary and allowances. He says, that thereafter he waited for some time, but not having received any reply he sent a representation dated 24th March 1966 to the Minister of Works, Housing and Supply. As there was still no reply, he sent ft reminder dated 3rd June 1966 to the Minister. Ultimatly, in July 1966 be filed the petition in this court. ( 31 ) SUCH, then, is the explanation for the delay given by Mr. Motwani. It will be observed that he moved this court nearly five and a half years after he was ordered to be reverted by the order of 29th March 1961. His conduct throughout indicates that he had really resigned himself to that order. Even his memorandum of appeal against that order was not sent till ten months later, that is, on 15th January 1962. When he was informed, by the letter dated 5th June 1964, that it was rejected, he did nothing further in the matter, but continued to live a retired life in Vrindaban. Two more years went by, during which he showed no intention whatsoever to question his reversion or even his compulsory retirement. ( 32 ) THE judgment in the Letters Patent Appeal filed by Mr. C. P. Govil was delivered on 17th February 1965. Mr. Motwani took yet another year and a half to file his petition in July 1966. Two more years went by, during which he showed no intention whatsoever to question his reversion or even his compulsory retirement. ( 32 ) THE judgment in the Letters Patent Appeal filed by Mr. C. P. Govil was delivered on 17th February 1965. Mr. Motwani took yet another year and a half to file his petition in July 1966. For a part of this period, it was said, that he was hoping to obtain redress from the President on the petition which he filed under Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules on 3rd March 1966. As justification for this hope, a copy of an order dated 8th December 1967 by which the President reinstated Mr. Sudarshan Kumar, Accounts Clerk, in exercise of powers under the said Rule 29 has been filed along with the memorandum of appeal. But this order was made about a year and a half after Mr. Motwani had already filed his petition, and was not available earlier to provide any expectation to Mr. Motwani. In my opinion, the conclusion is irresistible that Mr. Motwani had no intention until February 1966 to seek legal redress against the order by which he was reverted. He was, thus, guilty of grave laches. ( 33 ) CLEARLY, a suit for setting aside the order of reversion dated 29th March 1961 would have been barred by time when the petition was filed in July 1966. It is true that the Supreme Court has said in that the rule that the High Court will not inquire into belated and State claims is not a rule of law but a rule of practice based on sound and proper exercise of jurisdiction, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition . But, in the very next sentence the court said : each case must depend on its own facts . Reference was, also, made to. In that case Hidayatullah, C. J. , said : If then there is no period prescribed what is the standard for this court to follow ? I should say that utmost expedition is the sine qua non for such claims. Reference was, also, made to. In that case Hidayatullah, C. J. , said : If then there is no period prescribed what is the standard for this court to follow ? I should say that utmost expedition is the sine qua non for such claims. ( 34 ) THE question whether in a given case the delay is such that it disentitles a person to relief under Article 226 of the Constitution involves the exercise of discretion by the High Court having regard to the surrounding circumstances : the petition was dismissed because there was a delay of 4 years and no satisfactory explanation was furnished. Though in a petition was entertained 10 years after the order of transfer was made, the petitioner had been making representations continually and had received no reply. Besides, the judge was of the opinion that the order of transfer constituted a continuing wrong. Without in any way subscribing to that proposition, I need only say that it certainly does not apply to an order of reversion. ( 35 ) IT was argued that since Mr. C. P. Govil had filed a petition questioning his dismissal, Mr. Motwani was entitled to await the result of that case and was not bound to file a petition of his own. This submission is not true to the facts. Mr. Motwani does not say that he delayed filing the petition to await the result of the appeal filed by Mr. Govil. On the contrary, he says, that after learning about the dismissal of Mr. Govil s petition by the single judge he became disgusted and disappointed and continued to live in retirement at Vrindaban. He does not say that he made any attempt to find out whether Mr. Govil had filed an appeal or keep in touch with the progress of his case. It is only by chance, when he happened to come to Delhi in February 1966, that he learnt of Mr. Govil s success in appeal. Therefore, it is not true to say that he was waiting for the final result of Mr. Govil s case. ( 36 ) IN the position was very different. O. P. Gupta was No. I in the seniority list of Assistant Engineers in the Municipal Corporation of Delhi, and R. L. Gupta was No. 3. Govil s success in appeal. Therefore, it is not true to say that he was waiting for the final result of Mr. Govil s case. ( 36 ) IN the position was very different. O. P. Gupta was No. I in the seniority list of Assistant Engineers in the Municipal Corporation of Delhi, and R. L. Gupta was No. 3. R. L. Gupta filed a petition questioning ad hoc promotions to the post of Executive Engineer. The High Court dismissed his petition. He then filed a petition in the Supreme Court which was admitted. This petition was later withdrawn.-At or about this time, a petition filed by O. P. Gupta, raising the same question, was admitted by the High Court. Thereafter, R. L. Gupta filed another petition in the High Court which was admitted. In declining to dismiss the second petition filed by R. L. Gupta on the ground of delay, one of the aspects which influenced the judge was that since a similar petition, filed by 0. P. Gupta, had been admitted, R. L. Gupta could well have thought that if any relief was given to O. P. Gupta the same would be available to him, also. It is apparent hat he circumstances of that case were very different. And, further, the important point is, that R. L. Gupta had moved both the High Court and the Supreme Court before or at the same time as 0. P. Gupta. There was no remissness on his part in seeking relief. Besides, there were other aspects taken note of by the judge which caused him to ignore the delay. ( 37 ) IN the present case, the single judge had a discretion in ruling on the question of delay in filing the petition as regards the order of reversion. It is not suggested that he allowed him.- self to be misdirected on any wrong principle or ignored the right principles. Consequently, there is no ground to interfere with the exercise of his discretion in appeal, even if I myself may not have come to the same conclusion. But, as it happens, I am in entire agreement with the single judge. ( 38 ) I turn then to the other part of the case, which is directed against the notice dated 19th July 1963 by which Mr. Motwani was compulsorily retired. At that time, the normal age of retirement was 55 years. But, as it happens, I am in entire agreement with the single judge. ( 38 ) I turn then to the other part of the case, which is directed against the notice dated 19th July 1963 by which Mr. Motwani was compulsorily retired. At that time, the normal age of retirement was 55 years. The relevant part of Fundamental Rule 56 provided as follows : except as otherwise provided in the other Clauses of this Rule the date of Compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the Local Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. mr. Motwani reached the age of 55 on 17th July 1963. There- fore, he would in the normal course have retired on that day. ( 39 ) HOWEVER, the Ministry of Home Affairs, Government of India, issued an office memorandum dated 30th November 1962 by which the age of compulsory retirement was raised. Paragraph 2 of this office memorandum stated : IT has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years subject to the following exceptions : the exceptions are not relevant. Paragraph 6 of this office memorandum provided as follows : notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months notice without assigning any reason. This will be in addition to the provisions already contained in rule 2 (2) of the Liberalised Pension Rules 1950 to retire an officer who has completed 30 years qualifying service, and will normaly be exercised to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may, after attaining the age of 55 years voluntarily retire after giving three months notice to the appointing authority. mr. Motwani claims that by virtue of this office memorandum he was entitled to continue in service till he reached the age of 58 years. The Government servant also may, after attaining the age of 55 years voluntarily retire after giving three months notice to the appointing authority. mr. Motwani claims that by virtue of this office memorandum he was entitled to continue in service till he reached the age of 58 years. Fundamental Rule 56 was not amended to raise the age of retirement to 58 years till 21st July 1965. Thus, the right claimed by Mr. Motwani is based solely on the office memorandum and not Fundamental Rule 56, because in 1963 that rule had still not been amended. This position is not disputed. In fact, the notice dated 19th July 1963 is expressed to have been issued in exercise of the power conferred by paragraph 6 of the office memorandum. ( 40 ) COUNSEL for the Union of India cited to show that the memorandum could not have the same legal force as a rule, and, hence, Mr. Motwani could not claim any rights thereunder. In that case it was held, in respect of a very similar memorandum, that it only amounted to an executive instruction. However, in a similar memorandum was under consideration, and it was held that since it had been applied to other Government servants, it would be a violation of Article 14 of the Constitution not to apply it to the petitioner in that case. In it was argued, in respect of the very memorandum on which Mr. Motwani relies, that it did not have the force of a rule made under Article 309 of the Constitution . This argument was rejected. Consequently, I proceed on the footing that the office memorandum does furnish the basis of an enforceable legal right to Mr. Motwani. The question, then, is whether the power given by para 6 of the office memorandum was validly exercised by the appointing authority. ( 41 ) IT was contended on behalf of Mr. Motwani that there could be no other reason for compulsorily retiring him except the findings of the Inquiry Officer against him, for which he had already been punished. On the other hand, in the counteraffidavit filed on behalf of the Union of India it is stated that, as Mr. ( 41 ) IT was contended on behalf of Mr. Motwani that there could be no other reason for compulsorily retiring him except the findings of the Inquiry Officer against him, for which he had already been punished. On the other hand, in the counteraffidavit filed on behalf of the Union of India it is stated that, as Mr. Motwani was due to attain the age of 55 years on 17th July 1963, his case for retention in service upto the age of 58 years was reviewed, and the Chief Engineer wrote to the Ministry on 6th May 1963 that in view of the past record of service of Mr. Motwani he may be compulsorily retired by giving 3 months notice. This recommendation was accepted by the Ministry of Works, Housing and Supply, and, accordingly, the notice of 19th July 1963 was issued to Mr. Motwani. It is further stated in that affidavit, that this decision was taken independently of the departmental inquiry held against Mr. Motwani. ( 42 ) COUNSEL for the appellant cited a number of cases to show that no notice could be taken of any adverse remarks made against an officer in his confidential report unless they had been communicated to him : Nor if they were too remote in time : Since no adverse remarks had ever been communicated to Mr. Motwani, it was agued, that either there were no such remarks, or, if there were, no notice could be taken of them. Therefore, the decision to compulsorily retire Mr. Motwani was not justified. ( 43 ) PARAGRAPH 6 of the office memorandum is in pan materia with Fundamental Rule 56 (j ). So, cases dealing with that rule are very relevant. In the Supreme Court explained the role of the court in a case of compulsory retirement. It said: the right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in the public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in the public interest to do so. 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 collatoral grounds or that it is an arbitrary decision. further, it was said that compulsory retirement involves no civil consequences . A passage which then follow? is particularly instructive for the present case. It reads : various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more compe tent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organisations and more so in government organisation there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 (j) holds the balance between the rights of the individual government servant and the interest? of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. ( 44 ) FOLLOWING this case, it was held by a division bench of this court in Colonel that since the rule provides for the formation of the requisite opinion by the appropriate authority and not by a court, the sufficiency of the ground or material is not justiciable . A full bench of this court said the same in ( 45 ) APPLYING these authorities to the present case, the only question for consideration is whether the decision to compulsorily retire Mr. Motwani was based on collateral grounds or was arbitrary. A full bench of this court said the same in ( 45 ) APPLYING these authorities to the present case, the only question for consideration is whether the decision to compulsorily retire Mr. Motwani was based on collateral grounds or was arbitrary. Of course, if there was no material at all on which such a decision could be formed, then, necessarily it would be arbitrary and, thus, violate Article 14 of the Constitution : Likewise, if it is not possible reasonably to come to the conclusion that the compulsory retirement was justified the court may interfere : see Swami Saran Saksena vs. The State of U. P. , 1979 (2) SLR 781 (34 ). ( 46 ) AS I have mentioned already, the affidavit filed on behalf of the Union of India says that the decision to compulsorily retire Mr. Motwani was taken on the basis of his past record . There is no reason that I can see for doubting this statement. However, in order to satisfy ourselves we have looked at his service record. The confidential reports made on him show that he was an average officer. In 1956, the Government of India communicated its displeasure to Mr. Motwani because he was careless in the discharge of his duties . A copy of that communication was ordered to be placed in the file containing his confidential reports. In June 1959, as a result of some disciplinary action against him, it was ordered that Mr. Motwani should be reduced in his time scale by one stage for a period of one year and that the period of reduction should operate to postpone his future increments . His dossier contains no confidential reports for the period July 1957 to June 1959 as he remained under suspension. There are, also, no reports for the period April 1961 to May 1963 as he took long leave and did not join duty till June 1963. ( 47 ) THE confidential reports of an officer can certainly be considered by the appointing authority, when deciding whether to pass an order of compulsory retirement, even though they are not communicated to the officer concerned : The lack of adverse reports does not mean that the office-r is efficient or suitable for continued retention in Government service. The judgment has to be based on an overall assessment which is not easy of articulation. The judgment has to be based on an overall assessment which is not easy of articulation. Perhaps, that is why para 6 of the office memorandum gives power to retire without assigning any reason . ( 48 ) IN my opinion, there was nothing arbitrary or unreasonable in the appointing authority coming to the conclusion that Mr. Motwani was unsuitable for being retained in Government service beyond the age of 55. It was reasonable for the appointing authority to replace him by a more efficient officer. There is no allegation of mala fides against the appointing authority. Nor is there any material suggesting the same. Consequently, I find no ground for interfering with the order compulsorily retiring Mr. Motwani ( 49 ) FOR these reasons, I would dismiss this appeal. However, having regard to all the circumstances of the case, I would make no order as to costs,