S.C. JAIN v. STATE OF BARYANA AND ANR.

727

S.C. JAIN A v. STATE OF BARYANA AND ANR.

&OVEMBER 4, 1985

[E.S. VEM<ATARAl'JIAll ANL R.li. ~J:SRA, JJ.] B

Punjab Civil Services Rules, Vnl. ll, Part ll, Rule 5. 32(c) and Punjab Civil Service Rules Vol. I Part I, Rule 3.26 (c) and {d) - Premature retirement - Rule 3. 26 (c) - Applicability of - Whether Rule 3.26(c) provides immunity to Superintending Engineers. {,

Rule 3.26 (c) of the Punjab Civil Service Rules Vol. I part 1 enacts: "The following are specisl rules applicable to P.W.D. Officers :-

1. Except as otherwise provided in this sub-clause, r; Government employees in the Haryana Service of Engineers Class I (ll&R, 1.:s. 8lld Electricity) lllllSt retire on reaching the age of 58 years, 8lld may be required by the c JmPetent authority to retire on reaching the age of 50 years if they have not attained the rank of superintending Engineer. E

The Respofldent - State of Haryana by its order No.ll/3-BR (Estt)-6-81 dated 18 December 1981 retired the appellant, a Superintending Engineer, prematurally after he attained the age of 50 years in pursuance of the provisions contained in rule 5.32(c) of the Punjab Civil Service Rules, Vol.II Part II 8lld Rule 3.26(d) of the Punjab Civil Services Rules, Vol. I, Part I F as applicable to the State of Baryana. The appellant's promotion to higher and higher ·posts in quick succession in the past unmistakably indicated thst the authorities were satisfied with his work and integrity. He was promoted to the post of Superintending Engineer on 27th May 1971. The appellant made several representations against the order of premature G retirement, but did not receive sny reply despite repeated reminders. Ultimately, he challenged the impugned order of premature retirement by a writ petition in the High Court of Punjab and Baryana on the ground, inter alia, thst in view of the clear provisions contained in rule 3.26(c) of Punjab Civil Services Rules Vol. I, Part I (as applicable to Barysna), which are special rules applicable to the Public works Department h

728 SUPREl<JE COURT REFORTS [1985] SUFP. 3 s.c.R.

A Officers, the general rule contained in rule 3.26(d) empowering the Govermnent to compulsorily retire a public servant has no application 1.n his case. The High Court dismissed the writ petition in limine.

Allowins the appeal, II Bl!LD: l. The order of the lligh Court dated 5th January, 1984 is set aside. The order of premature retirement dated ·18th December 1981 is quashed. The appellant shall be deemed to be in continuous service• He is entitled to his salary, emolument1 and other consequential benefits to which he would have been entitled to if he had not been prematurely retired. [738 G] c 2.(i) Rule 3.26(c), which is a special rule applicable to Govermnent employees in the Haryana Service of Engineers Class I, will govern the case of the appellant as the speci..l overrides the general. Admittedly, he was workins as the Superintending Engineer for the last so many years on the date when the impugned order of his premature retirement was passed by the Governor. D This rule provides an imnunity to the engineer who has attained the rank of Superintendins Engineer. A bare perusal of the old rules will also indicate that an eng1neer who has attained the rank of Superintending Engineer in the B.w.n. (ll&R Branch) had always the :Immunity ever· since the provision for premature retirement came into force. The old correspondins rules do not E improve the position for the State-respondent. [734 E; 732 E]

2(ii) Rule 3.26(d) i.s applicable to all govermnent employees but not to eng1neers of the P.w.n. for whom there is a special rule. It is a supplement to rule 3 .26(a) because it supplies the procedure to be adopted in case of premature retirement of other F C.overmnent servants. [735 E-F]

3. The headins 'Compulsory Retirement' is wide enough to include premature retirement within its fold. Govermnent employee in the Haryana service of Engineers has no right to continue in service if he has reached the age of superannuation which is 58 G years in the case of ensineers, He has perforce to retire unless he has been granted an extension. Likewise an eng1.neer who bas not reached the age of superaruruation but is made to retire prematurely, his retirement is as much a compulsory retir=mt as that of an employee who has attained the age of superannuation. It will not be correct to say that the age of superannuation in H case of ensineers who have not· attained the rank of Superint• ld- ing Ensfneers has b.<len reduced to 50 year,, [735 A-<:]

s.c. JAIN v. STATE [MISRA, J.] 729

It. Nuufrhad>ar v. l'be State of Mysore, [1960] l s.c.R. 981 A relied upon.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 4953 of 1985.

From the Judgment and Order dated 5.l.1984 of the Punjab and B Haryana High Court in Civil Writ Petition No. 4546 of 1983.

Dr. y,s. Chitale, and A.K. Ganguli for the Appellant.

Harbans Lal, 1.s. Goel, c.v. Subba Rao and R.•. Poddar for the Respondents. c The judb'll"nt of the Court was delivered by

MISRA, J. Special leave granted. This appeal by special leave is directed against the order of the High Court of Punjab and Haryana dated 5th January, 1984 dismissing the writ petition in a service matter.

The appellant joined service as a Sub-divisional Officer (Assistant Engineer) in Class II on 28th August 1953 in the former State of PEfSU. On 1st November 1956 the State of PEPSU and Punjab were merged and the appellant was integrated in the service of the reorganised State of Punjab. He worked on this post for about eight years and during the period he was posted at various places in the State and was assigned different kinds of duties. The authorities being satisfied with his performance, ·he w~s promoted to the post of Executive Engineer in Class I Gazetted on 24th Y;ay, 1961. He was allowed to cross the efficiency bar immediately when it became due. On this post he worked for about ten years. Considering the efficiency and suit- ability of the appellant he was confirmed on the post of Executive Engineer in Class I Gazetted on 1st April 1965.

On lst November 1966 the State of Punjab was bifurcated into the State of Punjab and the State of Haryana. On the reorganisation of the State of Punjab the petitioner came to be allocated to the service of the State of Haryana. In the new State also his performance was excellent and the authorities satisfied with his meritorious services, gave him a selection grade of the post of Executive Engineer. The admission of the apellant to the selection grade itself is indication of the fact H

730 SUFREME COURT liEPORTS [1985] SUFP. 3 s.c.R.

that the authorities were satisfied with his work, honesty, integrity and his capability. In due course the appellant was also promoted to the post of Superintending Engineer on 9th February, 1970. He had hardly worked for about a month when he was reverted but not because of any complaint against him or his inefficiency but because one of the posts of Superintending Engineers was reduced by the Government. The appellant being junior-most was reverted. But when the post of a Superintending Engineer again fell vacant the State of Baryana promoted the appellant to the said post promptly on 27th May 1971. On account of his meritorious service he was found fit to be posted first as Additional Director of Technical Education, Haryana for about four years and thereafter as Director P.w.D. (B & R) Reserach Laboratory at Nilokheri. The work of the P.W.D. Laboratory was highly specialised and skilled and required care, precision and accuracy and only officers of the merit and proven ability, competence and having research aptitude are posted there. The appellant was considered to be the most appropriate officer for that post.

The appellant by a letter dated 19th October, 1981 was offered the post of Superintending Engineer on deputation to the Delhi Development Authority. This offer was made to the appellant in view of the request from the Delhi Development Authority for names of suitable officers. Again on 11th December 1981 the appellant received a telegram from the office of the Engineer-in- Chief seeking the willingness of the appellant for nomination for the post of Civil Engineer for an assignment with the Government of Libya. Shortly thereafter the appellant received an other offer from the office of the Engineer-in-Chief, Haryana P.W.D. (B & R), Chandigarh on 15th December, 1981. This offer was pursuant to the request of the management of Dayanand University, Rohtak asking for names of Superintending Engineers for the post of F Chief Engineer. This offer was made only to the Superintending Engineers who were considered competent by Engineer-in-chief, Haryana P.w.D.(B & R), Chandigarh.

The sequence of events and the promotion of the appellant to higher and higher posts in quick succession speak for themselves G and they unmistakably indicate that the authorities were satisfied with his work and integrity. So far all was well with him.

It appears that on 15th December, 1981 the appellant applied for casual leave for four days from 21st to 24th December, 1981 H

S.C. JAIN v. STATE [MSRA, J.] 731

and the station leave from 19th to 27th December which was sanctioned by the office of the Chief Engineer on 17th December

1981. When he was availing the leave he received a telegram intimating that his casual leave and station leave have been cancelled. Neither the telegram nor the confirmatory letter dated 21st December, 1981 received subsequently disclosed the reason for the cancellation of leave. The appellant, therefore, had to join and resume his duties as per instructions in the said telegram. The appellant received the impugned order No.11/3-BR (Estt)-6-81 dated 18th December, 1981 from the Government on 29th December, 1981 prematurely retiring him from service after attaining the age of 50 years. !he impugned order of premature retirement dated 18th December, 1981 is in the following terms: c ''Whereas the Governor of Raryana is of the opinion that it is in the public interest to retire shri s.c. Jain, superintending Engineer, Raryana P.w.D. ( B & R Branch) from service after attaining the age of SO yrs. D Now, therefore, in pursuance of the provisions contained in rule 5.32(c) of the Punjab Civil Service Rules Vol. II, Part II and rule 3.26(d) of the Punjab. Civil Services Rule Vol. I, Part I as applicable to the State of Raryana, the Governor of Raryana in the E public interest hereby orders the payment of three months pay and allowances in lieu of notice to Shri s.c. Jain, Superintending Engineer and retires him from Raryana Government Service with effect from the date of receipt of this order.

By Order of the Governor. F Sd/~ Commissioner &Secretary to Govt. Raryana PWD B & R Branch."

The appellant made several representations against the order of premature retirement on 25th January, 1982, 26th April, 1982, 25th July 1962 to the respondents with copies forwarded to the G Chief Minister of Haryana, Minister for P.W.D., Raryana and the Engineer-in~ief P.W.D. B & R Branch, Raryana. The appellant, however, did not receive any reply despite repeated reminders. The appellant also separately submitted representation to the Chief Minister, Haryana in January 1962. The same was forwarded to the then Minister for P.W.D. (B&R), Kanwar liam Pal Singh for examining the representation in detail, who after examining the R position made the following remarks on the representation itself:

p. 732

"Recomnended strongly restoring him to his original post. A Sd/- Ram Pal Singh P.W.M. 25th April 1982"

Despite the recommendation of the P.w.u. tdnister the appellant got no relief. Under the circumstances he was constrained to take recourse to court of law and he challenged the impugned order of premature retirement by filin& a writ petition in the High Court of Punjab and Baryana on grounds inter alia that in view of the clear provisions contained in rule 3.26(c) of Punjab Civil Services Rules Vol. I, Part I (as applicable to Baryana), which are special rules applicable to the Public Works Department officers, .the general rule contained in rule 3.26(d) empowering the Government to compulsorily retire a public servant has no application t,p the present case. Curiously enough the High Court dismissed the writ petition in limine by a cryptic order: "No merit. Dismissed," The appellant has now approached this Court by special leave. lie has taken ell those grounds taken by him in the writ petition.

D Dr. Y.s. Chitale appearing for the appellant forcefully urged that in view of the provisions of rule 3.26(c) of the Punjab Civil Service Rules, Vol. I, Part I, the appellant could not be retired prematurely. We heard the counsel for the parties on this point first and indicated that if the first contention of Dr. Chi tale win; not acc.epted we would hear the counsel for the E parties on other points involved in the case. Having heard the counsel for the parties at some length we are of the view that the first point raised Ly Dr. Chitale is formidable and the appeal must succeed on this point alone. It is, therefore, not necessary to hear the parties on other points involved in the case. F In order to appreciate the contention of Dr. Chitale it will be pertinent to quote rule 3.26(a) to 3.26(d) of the Punjab Civil Services Rules, Vol. I, Part I applicable to the present case (1980 Print) :

G "COMPULSORY RETIRE.MEN!

3.26(a) Except as otherwise provided in other clauses of thts rule, every Government employee shall retire frOID service on the afternoon of the last day of the month in which he attains the age of fifty-eight H

S.C. JAI1' v. ST1'1E [hlSRA, J. J 733

years. lie must not be retained in service after the age of compulsory retirement, except in exceptional A circumstances with the sanction of the competent ·authority in public interest, "hich must be recorded in writing:

Frovided that the age of compulsory retirement for class IV Government employee shall be sixty years: B

Provided further that a Government employee whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of fifty-eight or sixty years as the case may be. c (b) ......

(c) The following are special rules applicable to P.w.n. Officers :-

(l) Except as otherwise provided in this sub-clause, {;overnment employees in the liaryana Servke of Engineers, Class I (~ & K, I.B. and Electricity) must retire on reaching the age of 58 years, and may be required by the competent authority to retire on reaching the age of 50 years if they have not attained E the rank of Superintending Engineer.

(2) Subject to the requirements of this sub-clause as to r.e-appointment, the competent authority may, in speical circumstances, which should be recorded in writing, grant an extension of service, not exceeding three months , to a Chief Engineer. F

(3) No Chief Engineer shall, without re-appointment, hold the post for more than five years, but re-appointment to the posts may be made as often, and in each case for such period not exceeding Jive years as the competent authority may decide: Provided that G the term of re-appointment shall not extend more than three months beyond the date on which the Government employee attains the age of 58.

(d) The appointing authority shall, if it is of the opinion that it is in the public interest so to do, B

734 SUPIIBME COURT REPORTS [1985] SUPP. 3 S.C.R.

h~ve the absolute right to retire any Government A employee, other than Class IV Government employee by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice:-

(i) If he is class I or class II Service or post and B had entered Government service, before attaining the age of thirty-five years, after he has attained the age of fifty years; and

(ii) (al If he is in class 111 Service or post, or

(b) If he is in class I or Class 11 service or post c and entered Government service after attaining the age of thirty-five years;

after he has attained the age of fifty-five years.

The Government employee would stand retired immediate- ly on payment of three months' pay and allowances in lieu of the notice period and will not be in service thereafter."

Rule 3.26(c), which is a special rule applicable to Government employees in the Haryana Service of Engineers Class I, will govern the case of the appellant as the special overrides the general. Admittedly he was working as the Superintending Engineer for the last so many years on the date when the impugned order of his premature retirement was passed by the Governor. This rule provides an immunity to the engineer who has attained the rank of Superintending Engineer. The appellant, therefore, gets the protection of clause (1) of rule 3.26(c). F tihri Harbans Lal appearing for the State of Haryana in reply refutes the contention raised by Ur. Chi tale and contends that the second part of rule 3.26(c)(l) only authorises the Secretary to Government in consultation with the Finance Department, to reduce the age of superannuation below 58 and above 50 with regard to class I officers of the P.W.V. if they have not attained the rank of Superintending Engineers. This rule according to him is an enabling provision authorising the secretary to Government to reduce the age of superannuation of all Class I officers of the P.W.D. if they have not attained the rank of Superintending Engineers and if they did so then all such officers who have attained 50 years should retire.

S.C. JAIN v. STATE [hISRA, J.] 735

The contention of. Shri liarbans Lal has absolutely no force for a variety of reasons: Firstly, the heading 'Compulsory Retirement' is wide enough to include premature retirement within its fold. A Government employee in the Raryana service of Engineers has no ri~ht to continue in service if he has reached the age of superannuation which is 58 years in the case of engineers. lie has perforce to retire unless he has been granted an extension. Likewise an engineer who has not reached the age of superannuation but is made to retire prematurely, his retirement is as much a co1Lpulsory retirement as that of an empl-0yee who has attained the age of superannuation. It will, in our opinion, not be correct to say that the age of superannuation in case of engineers who have not attained the rank of Superintending, Engineers has been reduced to 50 years. his contention, if c accepted, would result in an absurdity. The inevitable result will be that all Executive Engineers will have to retire at the age of 50 which could never have been intended by the rule makers. The argtlllient of the learned counsel for the State is a desperate one indeed. L Shri Barbans Lal tried to bring this case within the fold of rule 3.26(d). This rule gives the appointing authority the absolute right to retire any Government employee other than class IV Government employee by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice.

This rule is applicable to all Government employees but not to engineers of the P.w.D. for whom there is a special rule. In our opinion it is a supplement' to rule 3.26(a) because it supplies the procedure to be adopted in case of premature retire- ment of other Government servants. We get support for our view from M. Narash... char v. The State of kysore, [1960] 1 S.C.R.

981. That case involved the interpretation of article 294 provides that a Government servant in superior or inferior service who has attained the age of fifty five years may be· required to retire unless the Government considers him efficient and permits him to remain in service. But as the premature retirement of an efficient Government servant imposes a needless ~harge on the State this rule should be worked with discertion. Article 297 laid down that a Government servant in superior service who has attained the age of fifty-five years may at his option retire from service on a superannuation pension~ .It was sought to be urged in that case that article 297 gave option • to the public servant whether he ret.ire& at that age or not • Ii

736 SUPREME COURT REPORTS [1985] SUPP. 3 s..c.R.

This Court interpreting article 297 held that this article was canplementary to article 294(a) which gives government the power of keeping Government servants in service beyond the age of 55 years. Article 297 allows the Government servant, if the Govern- ment wants to keep him in service after 55 years to opt for retirement. It does not mean that it is entirely at the option of the Government servant to continue beyond the age of 55 years and the Government cannot retire him at that age if he does not exercise the option.

That decision involved the interpretation of different rules but the reasoning adopted in that case is applicable in the construction of rule 3.26(d) of the Punjab Civil Services Rules.

C Shri Barbans Lal in support of his contention referred to the old corresponding rules. The relevant portion of the old rules is quoted hereunder:

"Rule 3.26 of c.s.R. (pb) 1941 Edition.

Compulsory Retirement D 3 .26 (a) Except as otherwise ~rovided 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 E compulsory retirement with the sanction of competent authority 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.

(b) ••••••••• F (c) The following are special rules applicable to particular services :-

(i) ....•....

G (ii) Except as otherwise provided in this sub-clause Civil Engineers of the Public ~arks Department nust retire on reaching the age of 55 years, and may be required by the competent authority to retire on reaching the age of 50 years if they have not attained the rank of Superintending Engineer. H

S.C. JAIN v. STATE [MISRA, J.] 737

Rule 3.26 of Punjab c.s.R. Vol. I, Part l, 1953 Edi- A. tion.

Compulsory Retirement

3.26(a) Except as provided in other clauses of this rule, the date of compulsory retirement of a B Government servant other than a Class IV Government servant, is the date on which he attains the age of 55 years. Re inllst not be retained in service after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority on public grounds, which mus~ be recorded in writing. c (b) •••••

(c) lhe following are special rules applicable to P.w.D. Officers :- D (1) Except as otherwise provided in this sub-clause, Government servants ·in the Punjab Service of Engineers Class l (B & R, l.B. and Electricity) must retire ·on reaching the age of 55 years, and may be required by the competent authority to retire ou reaching the age of 50 years, if they have not attained the rank of E Superintending Engineer.

Rule 3.26 of Punjab Civil Services Rules, Volume l, Fart l, 1963 Edition.

Compulsory Retirement F 3.26(a) Except as provided in other clauses of this rule, the date of compulsory retirement of a Government servant which he attains the age of 58 years. He must not be retained in service after the age of compulsory retirement, except in exceptional circumstances with the sanction of competent authority G on public grounds, which must be recorded in writing.

(b) ••••••

(c) The following are special rules applicable to P.w.D. Officer:-

(l) Except as otherwise provided in this sub-clause, Government servants in the Punjab Service of

p. 738

Engineers, Class I (B & R, I.B. Electricity) nrust A retire on reaching the age of 58 years, and may be required by the competent authority to retire on reaching the age of 50 years 1f they have not attained the rank of Superintending Engineer.

Clause (d) inserted in rule 3.26 vide Notification No. B 4118-3FR-74/24837 dated 12th July 1974.

3.26{d) The appointing authority may, if it is of the ,, opinion that it is in the public interest so to do, retire any Government servant, other than a Class IV Government servant, by giving him a notice of not less ;. than three months in writing:- c (i) If he is in class I or class II service or post and had entered Government service before attaining the age of thirty-five years, after he has attained the age of fifty years, and

(ii) ....... ..... ·:or. D A bare perusal of the old rules will indicate that an engineer who has attained the rank of Superintending Engineer in the P.W.D. (B & R Branch) had always the iilllllUnity ever since the provision for premature retirement came into force. The old correspondini; rules do not improve the position for the State. E They rather support the contention of the appellant.

.We enquired frolli Shri Harbans Lal Whether any other engineer in the Engineering Service of P.w.D. who had attained the rank of Superintending Engineer had ever been prematurely retired and he frankly admitted that there baa been no such case. F For the foregoing discussion the appeal must succeed. It is accordingly allowed with costs and the order of the l!igh Court dated 5th January, 1%4 is set aisde. 1he writ petition stands .allowed and the o~der of premature retirement dated 18th December, 1981 is quashed. The appellant shall be deemed to be in G continuous-service. He is entitled to his salary; emoluments and other consequential benefits to which he would have been entitled to if he had not been prematurely retired.

H M.L.A. Appeal allowed.