Jai Ram vs Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 11 of 1953

Decision Date: 22 January, 1954

Coram: M.C. Mahajan (CJ), B.K. Mukherjea, S.R. Das, V. Bose, Ghulam Hasan

In the matter titled Jai Ram versus Union of India, the Supreme Court of India delivered its judgment on 22 January 1954. The decision was reported in AIR 1954 SC 584 and authored by Justice B K Mukherjea, who also read the judgment. The bench that heard the appeal consisted of Chief Justice M C Mahajan, Justice B K Mukherjea, Justice S R Das, Justice V Bose and Justice Ghulam Hasan. The appeal, recorded as Appeal (Civil) 11 of 1953, was filed by the petitioner Jai Ram against the respondent Union of India and was taken on a special leave granted to the plaintiff-appellant.

The appeal challenged a decree of the Letter-Patent Bench of the Punjab High Court dated 10 July 1952. That decree had set aside, on appeal, an earlier decision rendered by a single judge of the same High Court in Second Appeal No. 884 of 1950. The original suit, from which the present appeal arose, had been instituted by the plaintiff before the Subordinate Judge at Ambala. In that suit the plaintiff sought a declaration that the order issued by the Government of India—named as the defendant in the suit—retiring him from service was wrongful, void and inoperative, and that consequently he should be deemed to remain in the service of the Government.

The material facts, which were largely uncontested, may be summarised as follows. The plaintiff entered Government service as a clerk in the Central Research Institute at Kasauli on 7 May 1912. Under Rule 56(b)(i) of Chapter IX of the Fundamental Rules governing civil services, a ministerial servant could be required to retire upon attaining the age of fifty-five, but could ordinarily be retained in service, provided he remained efficient, up to the age of sixty. Accordingly the plaintiff would attain the retirement age of fifty-five on 26 November 1946.

In 1945 the plaintiff, however, expressed a desire to retire earlier. On 7 May 1945 he wrote to the Director of the Institute requesting permission to retire, stating that he had completed thirty-three years of service on the preceding day and asking to be granted leave admissible for retirement. The Director declined the request on the ground that the plaintiff could not be spared at that time. The plaintiff reiterated his request in a second letter dated 30 May 1945, explaining that the untimely death of his brother had created family circumstances that prevented him from continuing his duties at the Institute. In that correspondence he prayed for leave preparatory to retirement, proposing to receive four months’ full average pay followed by the balance on half-average pay, commencing either on 1 June 1945 or on the date he actually availed the leave, and extending to his superannuation date of 26 November 1946. The language of this letter makes clear his intention to obtain leave preparatory to retirement rather than to contest the statutory retirement age.

In this case the plaintiff believed that his retirement was fixed for 26 November 1946 and that his only request was to be granted leave preparatory to retirement beginning 1 June 1945 or as early as possible thereafter; this request was again refused and the Head of the Institute annotated his application with a note that the plaintiff could not be spared. A third application was filed on 18 September 1945 in which the plaintiff asked the Director to reconsider his petition and added a further ground that the war had already ended, but this application suffered the same fate as the earlier ones and the Director did not consent to his retirement. After remaining silent for approximately eight months the plaintiff submitted a fourth application on 28 May 1946, which appears to have received a favorable response; in that application he stated that he would attain the age of 55 on 27 November 1946 and therefore prayed that the full amount of preparatory leave admissible to him under the rules be granted. The Director sanctioned the leave but left the determination of the quantity and character of the leave to the Accountant General, Central Revenues. On 11 July 1946 the Accountant General communicated his order to the Director, deciding that the plaintiff was entitled to six months’ preparatory leave on full average pay from 1 June 1946 to 30 November 1946 and thereafter to half average pay for five months and twenty-five days, the period ending on 25 May 1947. Ten days before the expiry of this leave, on 16 May 1947, the plaintiff wrote to the Director stating that he had not retired and requesting permission to resume his duties immediately; the Director replied that the plaintiff could not be permitted to resume because he had already retired by voluntarily proceeding on preparatory leave. The plaintiff continued to make representations, but the matter was finally concluded for the Government of India by a letter dated 28 April 1948, which asserted that having availed himself of the full preparatory leave and having voluntarily retired, the question of any right to return to service until the age of 60 did not arise. Consequently, the plaintiff instituted the present suit on 5 July 1949. The legality of the Government’s communication was thereafter placed in issue.

The plaintiff’s pleading challenged the communication referred to earlier on two principal grounds. The first ground asserted that, pursuant to Rule 56(b)(i) of Chapter IX of the Fundamental Rules, the statutory age of retirement for a ministerial servant was not fifty-five years but sixty years. Although the rule indeed authorized the Government to retire a ministerial servant at the age of fifty-five, the plaintiff contended that such retirement could be effected only on the basis of proven inefficiency. Accordingly, the plaintiff argued that before compelling a servant falling within that category to retire at fifty-five, the Government was obliged to provide the servant an opportunity to be heard, in compliance with Section 240(3) of the Government of India Act, 1935. The plaintiff maintained that, in the absence of such a hearing, any order terminating his service could not be regarded as legally valid. The second ground advanced by the plaintiff was that, although he had voluntarily taken leave preparatory to retirement, there was nothing in the Fundamental Rules that prohibited him from later revoking that decision, provided he expressed his intention to continue in service before the expiration of his leave period.

The trial court rejected both of the plaintiff’s arguments and dismissed the suit. In its view, the Government possessed a discretionary power under Fundamental Rule 56(b)(i) either to require a ministerial servant to retire at the age of fifty-five or to permit him to remain in service until he reached sixty years, and the Government’s exercise of that discretion did not constitute a breach of any statutory duty. Consequently, the trial court held that there was no violation of law in the plaintiff’s forced retirement before the age of sixty. Regarding the second point, the trial court held that no statutory provision granted a Government servant an automatic right to resume his former duties merely by electing to return before the end of his leave period. Such a return, the court observed, could only occur with the express permission of the appropriate superior authority, permission that was absent in the present case.

The decision of the trial court was affirmed on appeal by the District Judge at Ambala. Un dissatisfied, the plaintiff proceeded to file a second appeal before the High Court of Punjab, where the matter was heard by a single judge, Falshaw, J. The learned judge set aside the lower courts’ rulings, upheld both of the plaintiff’s contentions, and consequently decreed in favour of the plaintiff. The Government then lodged a further appeal before a Bench of the same High Court constituted under Clause 10 of the Letters Patent. That Bench reversed the single judge’s judgment and dismissed the plaintiff’s suit. The plaintiff now appealed to the Supreme Court, and counsel Mr Umrigar, appearing on behalf of the appellant, reiterated before the Court the same two contentions that had been advanced in the proceedings before the subordinate tribunals.

Concerning the first contention, Mr Umrigar stressed primarily Rule 56(b)(i) of Chapter IX of the Fundamental Rules, which read as follows: “A ministerial servant who is not governed by sub-clause (ii) may be required to retire at the age of fifty-five years, but should ordinarily be retained in service, if he continues efficient, up to the age of sixty years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the local Government.”

The rule cited states that a ministerial servant who is not covered by sub-clause (ii) may be required to retire at the age of fifty-five years, but that such a servant should ordinarily be retained in service if he continues to be efficient, up to the age of sixty years. The rule further provides that after the age of sixty a servant must not be retained except in very special circumstances, that such circumstances must be recorded in writing, and that they must be sanctioned by the local Government. The Court considered that the language of this rule can reasonably be understood to confer on a ministerial servant who falls within its scope a normal right to remain in service until he attains sixty years of age, provided that he continues to perform his duties efficiently. Accordingly, for the purposes of the present dispute the Court assumed that the plaintiff possessed the right to continue in service up to the age of sixty and that he could not be retired before that age unless he was found to be inefficient. However, the Court observed that this assumption alone does not resolve the question that needed to be answered in the present case. The plaintiff was not compelled or ordered by any authority to retire. Had the Government required his retirement under Fundamental Rule 56(b)(i), it could have been argued that the plaintiff should have been given an opportunity to demonstrate his continued efficiency and his ability to discharge his duties, thereby preventing retirement on the basis of age alone. In contrast, the present situation arose entirely from the plaintiff’s own initiative. From May 1945, when the plaintiff had not yet attained his fifty-fourth birthday, he repeatedly made urgent requests to his immediate superior seeking permission to retire from service. In his initial application, the plaintiff highlighted that he had completed thirty-three years of service, using this fact as a basis for the permission he sought. There exists a provision in the Civil Service Regulations that grants a retiring pension to an officer who is allowed to retire after completing thirty years of service. It was not clear whether this provision, which pertains to super-annuated service, applied to the plaintiff. Nonetheless, the plaintiff’s subsequent applications for leave in preparation for retirement emphasised two principal points: the length of his service and the fact that he would reach the superannuation age in November 1946. When his application was eventually approved, the leave was granted on the condition that he would retire from service on 27 November 1946. Following this, the plaintiff was allotted post-retirement leave for approximately six months commencing from that date, pursuant to Rule 56, Chapter X of the Fundamental Rules, on the ground that he had previously applied for leave that was credited to him but had been refused due to the requirement of public service. The plaintiff could obtain this period of post-retirement leave only on the premise that his service terminated on

In this case the plaintiff’s service ended on the twenty-seventh of November 1946. The Court observed that Rule 56 (b)(i), which provides that a ministerial servant is ordinarily retained in service until the age of sixty, was not intended to cover a situation such as the present one. The rule, according to the Court, does not prevent a ministerial servant from voluntarily relinquishing, by a clear agreement, a right that the rule might otherwise have afforded him. The Court further noted that when a servant reaches the age of fifty-five and, for whatever reason, acknowledges his own inability to continue serving and asks for permission to retire, it is a mere formality to require him to show cause why his service should not be terminated. The Court explained that Section 240(3) of the Government of India Act, 1935, could not be applied to these circumstances. Consequently, the first contention raised by the appellant was dismissed.

The Court then turned to the second point raised by the appellant and held that, in view of the decision on the first issue, the latter point lost its relevance. While it could be accepted that a servant who has expressed a desire to retire and has obtained permission from a superior may later change his mind and request the cancellation of that permission, the Court clarified that such a reversal is permissible only so long as the servant remains in service. Once the service has terminated, the servant cannot revive his appointment. The Court reiterated that the plaintiff’s service had ceased on the twenty-seventh of November 1946 and that the leave granted to him after that date was post-retirement leave, given under the special circumstances described in Fundamental Rule 86. Because the plaintiff could not be deemed to remain in service after the twenty-sixth of November 1946, he was not competent to apply for reinstatement on the sixteenth of May 1947, even though his post-retirement leave had not yet expired. Accordingly, the Court affirmed that the decision of the Letters Patent Bench of the High Court was correct and that the appeal must be dismissed. Since the plaintiff is a pauper and has not yet been allowed to draw his pension, the Court ordered that no costs be awarded.