Jai Ram vs Union Of India (Uoi)
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Not extracted
Decision Date: 22 January, 1954
Coram: B.K. Mukherjea, Ghulam Hasan
Jai Ram versus Union of India was listed before the Supreme Court of India with the judgment dated 22 January 1954. The judgment was authored by Justice B.K. Mukherjea, and the bench was composed of the Chief Justice, Justice B.K. Mukherjea, and Justice Ghulam Hasan. The matter arose on special leave to appeal that had been granted to the plaintiff‑appellant. The appeal was directed against a judgment of the Letters Patent Bench of the High Court of Punjab dated 10 July 1952, a judgment which had set aside, on appeal, an earlier decision of a single judge of that High Court rendered in Second Appeal No. 884 of 1950.
The suit from which the present appeal originated had been instituted by the plaintiff in the Court of the Subordinate Judge at Ambala. The plaintiff sought a declaration that the order issued by the Government of India, which was the defendant in the suit, retiring him from his government service, was wrongful, void and inoperative. Accordingly, the plaintiff asked that he be treated as continuing to be in the service of the Government of India. The material facts underlying the suit were largely uncontested and can be summarised as follows. The plaintiff entered the service of the Government of India 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 compelled to retire at the age of fifty‑five, but could ordinarily be retained in service, provided he remained efficient, until the age of sixty. Consequently, the plaintiff would attain the age of fifty‑five on 26 November 1946.
In the year 1945 the plaintiff expressed a personal desire to retire. On 7 May 1945 he wrote a letter 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 that he would be grateful if his request for leave preparatory to retirement were allowed. The Director declined the request on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his request by a second letter dated 30 May 1945. In that communication he explained that, owing to the untimely death of his brother, his family circumstances no longer permitted him to continue serving the Institute. He therefore prayed for preparatory leave—four months at the rate of average pay and the remainder at half‑average pay—starting from 1 June 1945 or as soon as the leave could be granted, and extending to the date of superannuation, which he specifically identified as 26 November 1946. The language of the letter makes clear that the plaintiff regarded 26 November 1946 as his definite retirement date and that his sole objective was to obtain the appropriate leave from the earliest possible date after 1 June 1945.
After the earlier refusals, the plaintiff again submitted a third request on 18 September 1945, asking the Director of the Institute to reconsider his earlier petition and adding a new argument that the war had already ended. The Director gave the same response as before and did not approve the plaintiff’s request for retirement. Following this denial the plaintiff remained silent for roughly eight months. He then filed a fourth application on 28 May 1946, which appears to have been met with a more favourable attitude. In that petition the plaintiff stated that he would attain the age of fifty‑five on 27 November 1946 and therefore prayed that he be granted the full amount of preparatory leave to which he was entitled under the applicable rules. The Director of the Institute approved the grant of leave, but left the precise amount and the character of the leave to be decided by the Accountant‑General, Central Revenues. On 11 July 1946 the Accountant‑General communicated his order to the Director, holding that the plaintiff was entitled to preparatory leave on full average pay for six months, covering the period from 1 June 1946 to 30 November 1946, and thereafter on half average pay for a further five months and twenty‑five days, 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 allowed to resume work because he had already retired by voluntarily taking the approved preparatory leave. Although the plaintiff continued to make representations, the matter was finally settled from the Government of India’s point of view by a letter dated 28 April 1948. That letter declared that the plaintiff, having taken the full period of preparatory leave and having retired of his own volition, had no right to return to service or to continue in employment until the age of sixty years. Consequently, the plaintiff filed the present suit on 5 July 1949. The plaintiff’s complaint challenged the legality of the Government’s communication on two main grounds. First, he argued that Rule 56(b)(i) of Chapter IX of the Fundamental Rules fixes the retirement age at sixty years, not fifty‑five, and that the Government may retire a ministerial servant at fifty‑five only on grounds of inefficiency, which requires giving the servant an opportunity to be heard under Section 240(3) of the Government of India Act, 1935; otherwise the termination would be invalid. Second, he contended that although he had obtained leave preparatory to retirement, the rules did not forbid him from changing his mind before the leave period ended and expressing a desire to continue in service. The trial Court rejected both arguments and dismissed the suit, holding that the Government possessed discretionary authority under Fundamental Rule 56(b)(i) to decide whether a ministerial servant should be required to retire at fifty‑five.
In this matter, the petitioner argued that the government’s communication was illegal on two principal grounds. First, he contended that Rule 56(b)(i) of Chapter IX of the Fundamental Rules did not merely permit a ministerial servant to be retired at the age of fifty‑five on the basis of inefficiency, but that it required the government to give the servant a chance to be heard before imposing premature retirement, as mandated by Section 240(3) of the Government of India Act, 1935. He asserted that without such a hearing, any order terminating the servant’s employment could not be considered valid. Second, the petitioner maintained that although he had voluntarily taken leave preparatory to retirement, the rules contained no provision that barred him from later changing his mind and expressing a desire to continue in service, provided that he communicated this intention before the expiry of his leave period. The Subordinate Judge rejected both of these arguments and dismissed the suit, holding that the government possessed discretion under Fundamental Rule 56(b)(i) either to require retirement at fifty‑five or to retain a ministerial servant until sixty, and that no statutory breach occurred by retiring the petitioner before he reached sixty. The judge further ruled that there was no statutory right for a government servant to resume his former duties simply by choosing to return before the end of his leave; such a return could occur only with the permission of the superior authority, which was absent in the present case. The District Judge of Ambala affirmed the Subordinate Judge’s decision, and the petitioner subsequently appealed to the High Court of Punjab. A single judge, Falshaw, J., heard the appeal and allowed it, upholding both of the petitioner’s contentions and granting a decree in his favour. The decision was then challenged before a Bench of the same High Court sitting under Clause 10 of the Letters Patent. That Bench reversed the single judge’s order and dismissed the suit. The petitioner now appealed to this Court, and counsel for the petitioner reiterated before the Court the two contentions that had been advanced in the lower courts. Regarding the first contention, counsel placed particular emphasis on the wording of Rule 56(b)(i) of Chapter IX of the Fundamental Rules, which states: “A ministerial servant who is not governed by Sub‑clause (ii) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years. He must not be retained after that age except in very special …”
The Court observed that the provision allows a ministerial servant to be retained in service until the age of sixty, provided that the servant continues to be efficient. Accordingly, the Court assumed for the present case that the plaintiff possessed the right to remain in service up to the age of sixty and could be retired only on the ground of inefficiency. However, the Court noted that this assumption alone did not resolve the issue that required determination. The plaintiff was not forced or compelled by any authority to retire. If the Government had invoked Rule 56(b)(i) to require his retirement, the plaintiff would have been entitled to demonstrate that he remained efficient and capable of performing his duties, and therefore could not have been retired merely because of his age. In contrast, the circumstances in this case arose entirely from the plaintiff’s own initiative. Beginning in May 1945, when the plaintiff had not yet completed his fifty‑fourth year, he repeatedly petitioned his superior officer for permission to retire. In his initial application he highlighted that he had completed thirty‑three years of service, using that length of service as a basis for seeking retirement permission. The Court referred to a rule in the Civil Service Regulations that grants a retiring pension to an officer who retires after completing thirty years of service, although it was not clear whether that rule applied to the plaintiff’s situation. Nevertheless, the plaintiff’s subsequent applications for leave preparatory to retirement emphasized two points: the length of his service and the fact that he would attain the age of superannuation in November 1946. When his application was finally approved, the leave was granted on the condition that he would retire on 27 November 1946. Following that date he was placed on post‑retirement leave for approximately six months pursuant to Rule 86, Chapter X of the Fundamental Rules, on the ground that he had previously applied for leave that was creditable but had been refused earlier because of public service requirements. The Court held that the plaintiff could obtain this post‑retirement leave only because his service was deemed to have ended on 27 November 1946. Finally, the Court concluded that Rule 56(b)(i), which provides that a ministerial servant is “ordinarily” retained in service until the age of sixty, does not contemplate a scenario such as the present one and does not prevent a servant from voluntarily relinquishing, by express agreement, a right that he might otherwise have enjoyed.
The Court held that when a government servant has reached the age of fifty‑five, acknowledges his own inability to continue in service, and formally seeks permission to retire, it is unnecessary to require him to show cause why his service should not be terminated; such a requirement would be a mere formality devoid of any real purpose. The Court further observed that Section 240(3) of the Government of India Act, 1935 could not be applied to a situation where the servant himself has voluntarily expressed the desire to retire. Consequently, the Court concluded that the first contention raised by the appellant fails in law and should be rejected. In light of this finding, the Court noted that the second issue raised by the appellant loses its practical significance, because the resolution of the first issue removes the basis for the second argument.
The Court acknowledged that a servant who has expressed a wish to retire and has obtained permission from his superior may later change his mind and request the cancellation of that permission, provided that he remains in service and the change of mind occurs before the termination of his employment. However, the Court emphasized that the plaintiff’s service terminated on 27 November 1946, and the leave granted after that date was post‑retirement leave issued under the special circumstances described in Fundamental Rule 86. Because the plaintiff could not be regarded as remaining in service after 26 November 1946, he was not competent to apply for reinstatement on 16 May 1947, even though his post‑retirement leave had not yet expired. The Court therefore affirmed that the decision of the Letters Patent Bench of the High Court was correct, and ordered that the appeal be dismissed. Since the plaintiff was a pauper and had not yet been allowed to draw his pension, the Court declined to make any order as to costs.