Shyam Lal vs The State of Uttar Pradesh and The Union of India

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 248 of 1953

Decision Date: 30 March 1954

Coram: B.K. Mukherjea, Natwarlal H. Bhagwati, B. Jagannadhadas, DAS

In the case titled Shyam Lal versus the State of Uttar Pradesh and the Union of India, the Supreme Court of India delivered its judgment on the thirtieth day of March, 1954. The petition was filed by Shyam Lal and the respondents were the State of Uttar Pradesh and the Union of India. The judgment was authored by a bench that included Justice B. K. Mukherjea, Justice Natwarlal H. Bhagwati and Justice B. Jagannadhadas. The record also indicates the presence of judges identified as Das, Sudhi Ranjan, Mukherjea, B. K. Bhagwati, Natwarlal H. Jagannadhadas, B. AiyyAr and T. L. Venkatarama. The official citation of the decision appears as 1954 AIR 369 and 1955 S.C.R. 26. In addition, the judgment is referenced in a series of citator entries that include citations such as RF 1957 S.C. 886 (5), E 1957 S.C. 892 (7, 8, 9, 11), F 1958 S.C. 36 (28, 40), R 1958 S.C. 232 (18), and many others extending through the years up to RF 1992 S.C. 1020 (10, 25). The case concerned the interpretation of provisions of the Constitution of India, specifically Article 811, in relation to compulsory retirement, and the question whether such retirement constitutes dismissal or removal within the meaning of the Article. The discussion also involved the Civil Service Regulations, particularly Article 465-A and Note 1 appended thereto, as well as the interpretation of Rule 4 of the new Rules published in 1919 and Section 96-B of the Government of India Act, 1919.

The headnote of the judgment recorded that the Court held Article 465-A and Note 1 to the Civil Service Regulations concerning retiring pensions applied to the appellant, who had been employed since 1923 as a member of the Indian Service of Engineers. The Court explained that Rule 4 of the Rules issued by the Government of India on 15 November 1919, which mandated compulsory retirement after an officer had completed twenty-six years of service, was validated and confirmed by Section 96-B of the Government of India Act, 1919, which had come into force on 23 December 1919. The Court further observed that the language of Note 1 to Article 466-A, published in 1920, made clear that the Government’s authority to retire an officer compulsorily was not derived from Note 1, which assumed the existence of such authority elsewhere, but rather from the newly issued Rule 4 of 1919. The Court also held that compulsory retirement under the Civil Services (Classification, Control and Appeal) Rules did not amount to dismissal or removal within the meaning of Article 311 of the Constitution and therefore did not fall within the protective provisions of that Article. The Court explained that the term “removal”, when used synonymously with “dismissal”, normally implies that the officer is considered blameworthy or deficient in some respect, and that the action of removal is based on a personal ground against the officer. The judgment stopped at this point, leaving the discussion of the officer’s conduct and the absence of any stigma attached to compulsory retirement incomplete.

The Court explained that when an officer is dismissed or removed, there is a charge or imputation leveled against him, implying blame or deficiency. In contrast, compulsory retirement does not carry any such charge or imputation. Consequently, compulsory retirement does not attach any stigma or suggestion of misbehaviour or incapacity to the officer. Dismissal or removal is a punitive action that results in the loss of benefits already earned, and an officer who is dismissed or removed does not receive the pension to which he was entitled. By contrast, an officer who is compulsorily retired remains entitled to the pension he has actually earned, and there is no reduction in the accrued benefit. The Court referred to several authorities on this point, including Rangachari v. Secretary of State (L.R. 64 I.A. 40; A.I.R. 1937 P.C. 27), Vankata Rao v. Secretary of State (L.R. 64 I.A. 55; A.I.R. 1937 P.O. 37), I.M. Lal’s case (L.R. 76 I.A. 225; A.I.R. 1948 27 P.C. 121), and Satischandra Anand v. The Union of India (1953 S.C.R. 665 at p. 659).

The matter before the Court was a civil appeal (No. 248 of 1953) filed under Article 132(1) of the Constitution of India, challenging a judgment and order dated 1 October 1953 of the Allahabad High Court in Civil Miscellaneous Writ No. 379 of 1953. The appellant was represented by counsel, while the respondents were represented by the Solicitor-General for India, the Advocate-General of Uttar Pradesh, and other appointed counsel. The appeal, decided on 30 March 1954 by Justice DAS, arose from an application made by the appellant to the High Court under Article 226 of the Constitution, seeking a writ to set aside an order issued by the President of India on 17 April 1953 that compulsorily retired the appellant after he had completed twenty-five years of qualifying service. The High Court dismissed the application but, recognizing that the case involved a substantial question of constitutional interpretation, granted the appellant leave to appeal to this Court. The material facts were summarized as follows: the appellant passed the Civil Engineering degree examination of Thomason College, Roorkee, in 1922, securing the first rank, the gold medal, and other prizes for that year. He was appointed by the Secretary of State for India in Council to the Indian Service of Engineers as an Assistant Executive Engineer effective 20 October 1923. The terms of his appointment, promotion, leave, pension, and related conditions were recorded in a letter issued by the India Office, London, on 13 February 1924, a copy of which was annexed to the petition filed under Article 226. He was subsequently posted to the United Provinces. In 1944 he was promoted to the rank of officiating Superintending Engineer, and after the attainment of independence by India…

In 1948 the appellant entered into a fresh agreement with the Governor of the United Provinces and the Governor General of India dated 16 September 1948, which confirmed the terms of his appointment that had been set out in the letter of 13 February 1924. Around that time the Chief Engineer recommended the appellant and several other officers for confirmation as Superintending Engineer, but the appellant was not confirmed and continued to act as an officiating Superintending Engineer.

On 4 January 1950 the Public Works Department of the United Provinces sent a letter to the Chief Engineer of the Irrigation Branch asking him to forward the enclosed communication to the appellant and to request that the appellant submit any explanation he wished to give as soon as possible. The enclosed letter required the appellant to show cause within three weeks why he should not be compulsorily retired under article 465-A of the Civil Service Regulations, alleging that (i) he had made systematic and gross over-payments that appeared to benefit contractors, (ii) he had spent large sums of public money for his personal convenience, and (iii) he had employed devious and unscrupulous methods. The letter listed six specific instances on which these charges were based. The covering note added that the government reserved the right to retire any officer whose continued service was not in the public interest, that this was not a formal enquiry under the Classification, Control and Appeal Rules, but that the appellant should nevertheless be given an opportunity to show cause.

The appellant’s response, together with comments from the Chief Engineer, was placed before the Union Public Service Commission. The Commission examined the material and concluded that five of the six charges were proved, and it submitted its report accordingly. After considering the Commission’s findings, the President, on 17 April 1953, decided that the appellant should retire forthwith from service under Note I to article 465-A of the Civil Service Regulations. Before the order could be served, the appellant filed a petition on 24 April 1953 before the Allahabad High Court under article 226 of the Constitution, praying that the President’s order be set aside on the ground that it was illegal and void because he had not been afforded an opportunity to show cause against the proposed retirement.

The High Court had dismissed the petition on 1 October 1953, and the present appeal was filed against that dismissal order. The appeal challenged the President’s order dated 17 April 1953, which indicated that the Government intended to take action against the appellant under Note 1 to article 465-A of the Civil Service Regulations. Chapter XVIII of those regulations dealt with the conditions for granting a pension, and article 465-A was placed in that chapter under section V, which bore the heading “Retiring Pension.” Two notes were attached to the article, and the Court considered the first note to be the one relevant for the present case. The Court reproduced the relevant portion of article 465-A and Note 1 as follows: “465-A. For officers mentioned in article 349-A, the rule for the grant of retiring pension is as follows: (1) … (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years’ qualifying service or more. Note I. Government retains an absolute right to retire any officer after he has completed twenty-five years’ qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further services of an officer.” Officers of the Indian Service of Engineers were included among “the officers mentioned in article 349-A of the Civil Service Regulations.” The appellant argued that the President’s order of 17 April 1953 was invalid and could not operate for three reasons: (i) article 465-A of the Civil Service Regulations did not apply to or bind the appellant; (ii) compulsory retirement was equivalent to removal from service and therefore fell within the protection of article 311 of the Constitution; and (iii) Note I to article 465-A, by granting the Government an absolute power to retire an officer after twenty-five years of qualifying service without giving any reason, was inconsistent with article 311 of the Constitution. The Court indicated that each of these points would be examined separately.

The Court noted that the appellant had been appointed by the Secretary of State in Council in October 1923, which meant his employment began after the Government of India Act 1919 had come into force. Sub-section (4) of section 96B of that Act was introduced to remove any doubt by declaring that all rules in operation at the time of the Act’s passage, whether made by the Secretary of State in Council or by any other authority and relating to the Civil Service of the Crown in India, were properly made under the powers then existing and were thereby confirmed. However, the appellant contended that there was no evidence to show that article 465-A of the Civil Service Regulations was in force at the time the Government of India Act 1919 was enacted, and consequently it could not be said to have been validated by sub-section (4) of section 96B. The Court therefore prepared to consider the contention that article 465-A might not have been operative when the appellant’s service commenced.

It was observed that the Government of India Act of 1919 had been passed before the article in dispute, identified as article 465-A of the Civil Service Regulations, had been amended and brought to its present form in 1922. Consequently, the Court noted that there was no evidence that the article had been validated by subsection (4) of section 96B of the 1919 Act, because the article was not in existence at the time the Act was enacted.

The discussion then turned to subsection (2) of section 96B, which conferred on the Secretary of State in Council the authority to make rules governing the classification of the civil services in India, the methods of recruitment, conditions of service, pay, allowances, discipline and conduct. Subsection (2) also permitted the Secretary of State, by means of such rules, to delegate rule-making power to the Governor-General in Council, to local governments, or to authorize either the Indian Legislature or local legislatures to enact laws related to the public services. The Court pointed out that subsection (2) expressly did not give the Secretary of State the power to delegate authority for making rules concerning pensions to any body in India.

The Court’s attention was then directed to subsection (3) of section 96B, which was designed to protect the interests of civil servants employed by the Secretary of State in Council. Subsection (3) stipulated that the right to pensions, as well as the scale and conditions of those pensions, should be regulated in accordance with the rules that were in force at the time the 1919 Act was passed. It further provided that, although the Secretary of State in Council might vary or add to those rules, any such variation or addition could not adversely affect the pension of any member of the service who had been appointed before the date of the amendment.

It was argued that not only had article 465-A not been shown to be in force at the time of the Government of India Act, 1919, but it also had not been demonstrated that the article had been made by the Secretary of State in Council. On this basis, the appellant contended that article 465-A, which is set out in section V of Chapter XVIII of the Civil Service Regulations and deals with retiring pensions, had apparently been made by the Governor-General in Council and therefore did not satisfy the requirements of subsections (2), (3) or (4) of section 96B. Accordingly, the appellant asserted that article 465-A could not be applied to him, because he had been appointed by the Secretary of State in Council. He further argued that the order of the President, which was issued in accordance with Note I to article 465-A, was therefore illegal and void.

The High Court had initially given credence to this line of reasoning, but subsequently rejected the conclusions that the appellant sought to establish. The High Court based its rejection on the view that rule 7 of the Civil Services (Classification, Control and Appeal) Rules, read together with rule 26 of the same set of rules, conferred validity upon article 465-A of the Civil Service Regulations and extended its application to the All-India Services.

The appellant’s counsel challenged the correctness of the High Court’s decision, contending that the High Court’s conclusion was founded on an improper construction of rule 7, and therefore should not stand.

The Court observed that the Civil Services (Classification, Control and Appeal) Rules, specifically rules 7 and 26, were first issued in December 1920, republished in 1930 and subsequently amended. While the Court acknowledged that counsel for the appellant raised a reasonable point that the interpretation given to rule 7 might lack persuasiveness, the Court declined to render a definitive judgment on that particular issue because the principal premise adopted by the High Court—that Note 1 to article 465-A did not apply to the appellant—could not be sustained. The Court then turned to the historical background of the pension rules. It noted that Resolution No. 1085-E.A., passed on 15 November 1919 and immediately published in the Gazette of India, was issued by the Government of India Finance Department with the approval of the Secretary of State for India. That resolution announced new retiring-pension rules applicable to officers who were not military personnel or members of the Indian Civil Service, and to the services expressly listed therein, the list including the Public Works Department. By virtue of rule 1, these new provisions were intended to govern only those officers who joined the specified services after 29 August 1919, as well as existing officers who voluntarily elected in writing to submit themselves to the new rules. Because the appellant entered service in October 1923, the Court concluded that the new pension regime necessarily applied to him. The Court reproduced the essential portion of rule 4, which declared that the Government possessed an absolute right to retire any officer after twenty-five years of service, without needing to give reasons and without any entitlement to compensation beyond the pension. Since these rules took effect upon their publication on 15 November 1919, they were already operative on 23 December 1919 when the Government of India Act 1919 was enacted. Consequently, they were validated and confirmed by sub-section (4) of section 96B of that Act, a point the Court emphasized. The validation made the rules applicable to the appellant at the time of his appointment in October 1923. Subsequently, the Government sought to clarify the scope of the pension rules announced in Resolution 1085-E.A. In Resolution No. 714-C.S.R., dated 10 May 1920, it announced its intention to publish those rules as amendments to the Civil Service Regulations. Accordingly, Resolution No. 1003-C.S.R., dated 18 June 1920, together with the relevant amendments, was issued in the Gazette of India on 19 June 1920 for general information. Those amendments inserted a new article 349-A into the Civil Service Regulations, providing that the rules contained in certain articles, including article 465-A, would apply to officers serving in the services specified therein, which again covered the Public Works Department. The amendments also made further insertions, as detailed in the subsequent portion of the record.

In the Civil Service Regulations a new rule was inserted as article 465-A together with two accompanying notes. The text of article 465-A, excluding clause (1) and note (2) because they were not relevant to the present matter, read as follows: “465-A. – For officers mentioned in article 349-A the rule for the grant of retiring pension is as follows: – (1) …………………………………………. (2) A retiring pension is also granted to an officer who is required by Government to retire after completing twenty-five years’ service or more.” The first note, designated as Note I, stated: “Government retains an absolute right to retire any officer after he has completed twenty-five years’ service without giving any reasons and no claim to special compensation on this account will be entertained.” It was observed that clause (2) and Note I quoted above were exactly the same as the present clause (2) and Note 1 of article 465-A, except that the final sentence now appearing in Note 1 was not present in the original Note I when the rule was first published in 1920. That additional sentence appeared later by amendment in 1922, as mentioned in the High Court judgment that was under appeal. Counsel for the appellant argued that article 465-A and its Note I had only become operative in June 1920, that is, after the Government of India Act 1919 had been enacted, and therefore could not be said to have been confirmed by section 96B(4) of that Act. The appellant’s counsel further asserted that because the rule was not a rule made by the Secretary of State in Council, it could not fall within section 96B(3) and therefore could not apply to the appellant, who was employed by the Secretary of State. The Court was unable to accept that argument. It reiterated that the new rules had been announced by Resolution No 1085-E.A. on 15 November 1919, had been in force as of 23 December 1919, the date on which the Government of India Act 1919 was passed, and consequently had acquired statutory force by virtue of section 96B(4) of that Act. Later resolutions, namely No 714-C.S.R. dated 10 May 1920 and No 1003-C.S.R., could not affect the validity or operative force of the rules that had already been announced on 15 November 1919. The purpose of publishing those rules as amendments to the Civil Service Regulations, as expressly stated in Resolution No 714-C.S.R., was solely to clarify the exact scope of the rules, not to bring them into effect for the first time. The rules had come into operation ex proprio vigore upon their publication in the Official Gazette on 15 November 1919, and their later publication as amendments to the Civil Service Regulations served only to make their precise scope clear. The incorporation of the rules into the Civil Service Regulations was intended to distribute and post the November 1919 rules at appropriate places for ready reference, not to create a new rule on the date of incorporation.

It was explained that the incorporation of the new rules into the Civil Service Regulations was not intended to create a fresh rule at the time of incorporation. Rather, the purpose was to distribute and post the rules that had been announced in November 1919 at suitable places in the Regulations so that they could be easily referenced. A comparison of the wording used in Note 1 to article 465-A with the language employed in new rule 4, which had been announced by Resolution No 1085-E.A. on 15 November 1919, made it clear that Note 1 was not meant to give the Government a new authority to compulsorily retire an officer after twenty-five years of service. Instead, Note 1 served as a reminder that the Government already possessed such a right and intended to “retain” it. The term “retain” can only apply to something already owned and is therefore unsuitable for conferring a new right. Consequently, the final sentence of Note 1 was identified as merely an administrative direction indicating when the existing Governmental right should be exercised. Moreover, article I of Chapter I of the Civil Service Regulations expressly stated that the Regulations were meant only to govern salaries, leave, pensions and other allowances, and that they dealt at most indirectly with recruitment, promotion, official duties, discipline or similar matters. In short, the wording of Note 1 to article 465-A demonstrated unequivocally that the Government’s power to compulsorily retire an officer did not arise from Note 1; the note merely assumed the existence of that power elsewhere and specified the timing and consequences of its use.

The power in question was clearly derived from new rule 4, which had been issued by Resolution No 1085-E.A. on 15 November 1919. Because that rule was already in force at the time the Government of India Act 1919 was passed, sub-section (4) of section 96B of that Act made the rule binding on the appellant, even though he was employed by the Secretary of State for India. Accordingly, the Court agreed with the High Court—though on different grounds—that the first issue raised by the appellant had to be decided against him. The Court noted with regret that the Gazette of India notifications relating to the several earlier resolutions mentioned earlier had not been produced before the High Court. Regarding issues (ii) and (iii), the Court found it appropriate to consider them together. Counsel for the appellant contended that, assuming rule 4 (upon which Note 1 to article 465-A was based) had become binding on the appellant after the passage of the Government of India Act 1919, the rule nevertheless became void when the Constitution of India came into force because it conflicted with article 311 of the Constitution. The appellant’s argument was that compulsory retirement amounted to removal from service without assigning any reason, thereby denying the officer an opportunity to show cause, and that such a provision was repugnant to article 311 and should be declared void.

In the appeal, the argument was that rule 4, as announced by Resolution No. 1085-E.A. and incorporated in Note I to article 465-A of the Civil Service Regulations, allowed compulsory retirement without stating any reason. Because the rule gave no opportunity for the officer to show cause, it was said to be inconsistent with the protection offered by article 311 of the Constitution, and therefore to be void. The Court observed that, although this contention was logically attractive, it had been rejected by the High Court and that the rejection was correct. A concise review of the origin and evolution of the principle now codified in article 311, together with an examination of the language of that article and the relevant rules, confirmed the soundness of the High Court’s view. Historically, English law had long held that public offices were held at the pleasure of the Crown. Under the English constitutional doctrine the King could not be wrong, so a civil servant could be dismissed without any stated reason, and the servant could not maintain an action for wrongful dismissal in the King’s Courts. This doctrine appears to have been applied to employees of the East India Company and later to civil servants after the Crown assumed control of Indian administration. The doctrine persisted until the year 1919, when section 96B of the Government of India Act 1910 introduced a limited restriction on the Crown’s power of dismissal while still affirming that tenure continued to be “during His Majesty’s pleasure.”

Section 96B, sub-section (1), provided that every person in the civil service of the Crown in India held office during His Majesty’s pleasure and could be employed as required by a proper authority, but that no one could be dismissed by an authority subordinate to the appointing authority. It further empowered the Secretary of State in Council, subject to any contrary rule, to reinstate any dismissed person. Sub-section (4) of the same section validated the existing rules, and sub-section (2) authorised the Secretary of State for India in Council to make regulations concerning classification, recruitment, conditions of service, pay, allowances, discipline and conduct of the civil services. Exercising this authority, the Secretary framed rules in December 1920, which, after subsequent amendments, were published on 27 May 1930 as “The Civil Services (Classification, Control and Appeal) Rules.” Rule 49 of those regulations stated that, for good and sufficient reason and as provided later, certain penalties could be imposed upon members of the services, thereby setting out the permissible disciplinary measures.

Rule 49 of the Civil Services (Classification, Control and Appeal) Rules enumerates the penalties that may be imposed on members of the services who belong to any of the classes 1 to 5 specified in rule 14. The penalties listed are censure; withholding of increments or promotion, which may include stoppage at an efficiency bar; reduction to a lower post or a lower stage in a time-scale; recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of orders; suspension; removal from the civil service of the Crown, which does not disqualify the officer from future employment; and dismissal from the civil service of the Crown, which ordinarily disqualifies the officer from future employment. An explanatory note clarifies that the termination of employment of a person appointed on probation, whether during or at the end of the probationary period, in accordance with the terms of the appointment and the rules governing probationary service, does not constitute removal or dismissal within the meaning of this rule. Similarly, the termination of a temporary Government servant appointed otherwise than under contract, pursuant to rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, and the termination of a person engaged under a contract, in accordance with the terms of that contract, are also excluded from the definition of removal or dismissal. Rule 55, without prejudice to the provisions of the Public Servants Inquiries Act, 1850, requires that no order of dismissal, removal or reduction may be passed on a member of a service—except where the order is based on facts that led to his conviction in a criminal court or by a court-martial—unless the member has been informed in writing of the grounds on which action is proposed and has been given an adequate opportunity to defend himself; the detailed procedural requirements of the rule are not reproduced here. Article 353 of the Civil Service Regulations provides that an officer dismissed or removed for misconduct, insolvency or inefficiency is not entitled to a pension, although a compassionate allowance may be granted when the officer deserves special consideration, the allowance not exceeding two-thirds of the pension that would have been payable had he retired on a medical certificate. The rules therefore treat dismissal and removal alike with respect to pension rights, both resulting in loss of pension and only a reduced allowance; the sole distinction is that dismissal ordinarily bars future employment whereas removal does not. It may also be mentioned that, although the power of dismissal at pleasure was described as subject to the provisions of the Act and the rules made thereunder, the Judicial Committee, in the cases of Rangachari v. Secretary of State and Venkatarao v. Secretary of State, held that the opening words of section 96B(1) did not give the Crown unfettered discretion to dismiss a servant at pleasure and that the servant’s remedy lay in an official or political appeal rather than a lawsuit.

In the earlier authorities of State (1) and Venkatarao v. Secretary of State (2), the Court observed that the opening words of section 96B(1) did not give the Crown unlimited power to dismiss a servant at pleasure, and that a servant whose rights under the rules were violated could not seek relief by a suit of action but only by an official or political appeal. The Government of India Act, 1935 then introduced section 240, which was central to the present analysis. The relevant portions of that section read as follows: “240. (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty’s pleasure. (2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed. (3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.” The remaining parts of the section were not relevant to the present discussion. Sub-section (1) reiterated the English constitutional principle that office is held at pleasure; sub-section (2) incorporated the restriction that had been introduced by section 96B(1) of the 1919 Act; and sub-section (3) gave statutory effect to the rights conferred by rule 55 of the Civil Service (Classification, Control and Appeal) Rules, rights that the Privy Council had previously found ineffective against the Crown’s plenary power of dismissal in the two cases cited above. It was noticeable that sub-section (3) used the term “dismissed” but omitted the word “removed”, although the term “removed” appeared in rule 55 and in the other rules previously referred to. Nevertheless, in the case of I. M. Lal (1) it had been held that removal fell within the scope of section 240(3), a conclusion that implied that removal was subsumed within dismissal. Consequently, both under the rules and according to the Judicial Committee’s decision, there was no substantive distinction between dismissal and removal except that dismissal disqualified the officer from future employment whereas removal did not. Finally, the newly enacted Constitution reaffirmed the constitutional theory of tenure by stating in Article 310(1) that office was held during the pleasure of the President, the Governor or the Rajpramukh, as appropriate. Article 311(1) reproduced the provision of section 240(2) of the Government of India Act, 1935. Clause (2) of Article 311, omitting the proviso, read: “(2) No such person aforesaid shall be dismissed, removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.” The word “removed”, which was also used in the rules, could therefore safely be understood, for the reasons set out above, to place removal on the same footing as dismissal, differing only with respect to future employment.

The Court observed that the word “removal” appears in the constitutional provision and, for the reasons explained earlier, it may be regarded as having the same effect as “dismissal” under the Constitution, the only distinction being that dismissal disqualifies a person from future employment while removal does not. Accordingly, removal is treated as a kind of dismissal. The Court cited its recent decision in Satischandra Anand v. the Union of India (1) L.R-75 I-A-225; A.I.R. 1948 P.C. 121, where it was stated that the terms “removal” and “dismissal” are used in the same sense in Article 311. The Court noted that, although removal—as with dismissal—necessarily results in termination of service, not every termination of service amounts to either dismissal or removal. By referring to the Explanation to Rule 49, the Court pointed out that several modes of termination do not qualify as removal or dismissal. The Court further relied on its earlier judgment in Satishchandra Anand v. the Union of India (supra), which affirmed that Article 311 does not extend to all terminations of service. In that case, a temporary-service contract was ended by notice under a contractual clause, which fell within clause (c) of the Explanation to Rule 49, and the Court held that Article 311 was inapplicable. The Court then posed the question whether a termination of service caused by compulsory retirement should be considered a dismissal or removal for the purposes of invoking Article 311. It held that the answer depends on whether the characteristics and consequences that define dismissal or removal are present in compulsory retirement. The Court explained that “removal,” used synonymously with “dismissal,” normally implies that the officer is in some way blameworthy or deficient—either guilty of misconduct or lacking the ability, capacity, or willingness to perform duties properly. Such removal is based on a personal ground against the officer, involving an imputation or charge that the officer can contest or explain. In contrast, the Court observed that compulsory retirement lacks any such charge or imputation. The two conditions for compulsory retirement are: completion of twenty-five years of service and a determination that it is in the public interest to cease the officer’s further service. While acknowledging that, as noted in [1953] S.C.R. 655 at p. 659, compulsory retirement may be employed when the authority cannot substantiate misconduct that might underlie the action, the Court emphasized that the directions in the final sentence of Note 1 to Article 465-A make it abundantly clear that an imputation or charge is not a condition for exercising the power of compulsory retirement.

The Court observed that exercising the power of compulsory retirement does not carry any stigma or suggestion of misconduct or incapacity. In the case before the Court, the appellant faced an imputation that required explanation, but the letter dated 4 January 1950 made clear that the Government was not conducting a formal inquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules. Instead, before proceeding with compulsory retirement, the Government intended to give the appellant an opportunity to show cause why the retirement should not be ordered. Thus the inquiry was intended solely to assist the Government in deciding whether it was in the public interest to terminate his service. Consequently, one of the principal tests for deciding whether a termination amounts to dismissal or removal is absent in compulsory retirement. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules states that dismissal or removal is a punishment imposed as a penalty. It entails loss of benefits already earned. An officer who is dismissed or removed does not receive the pension he has accrued; at most he may receive a compassionate allowance, which under article 353 of the Civil Service Regulations is always less than the earned pension and also less than the pension he would have received had he retired on medical grounds. By contrast, an officer who is compulsorily retired does not forfeit any part of the benefit he has earned. Upon compulsory retirement, he becomes entitled to the pension and other benefits that he has actually accrued, with no reduction of the accrued benefit. Some submissions suggested that compulsory retirement, like dismissal or removal, deprives the officer of the chance to serve and to receive salary until he reaches superannuation age, after which he would obtain an enhanced pension, and that this constitutes punishment. While the officer may feel punished in this broad sense, the Court distinguished between loss of benefit already earned—a present and certain loss, which is unmistakably punitive—and loss of a future prospect of additional earnings, which is uncertain because the officer might die or become incapacitated before gaining further service. The law therefore does not treat the uncertain loss of future prospect as punishment. The crucial issue is whether compulsory retirement causes the officer to lose the benefit he has already earned, as occurs with dismissal or removal. The Court found that it does not. Thus the second element required to characterize a termination as dismissal or removal is also missing in a termination effected by compulsory retirement. Accordingly, the discussion leads to the conclusion.

In its reasoning, the Court held that a compulsory retirement of an officer did not constitute a dismissal or a removal. Because the retirement was not classified as dismissal or removal, the statutory safeguards provided in Article 311 of the Constitution and in Rule 55 were not applicable to the case. Article 311 contains provisions that protect civil servants against arbitrary dismissal, removal or reduction in rank, while Rule 55 requires that a civil servant be given a reasonable opportunity to show cause before any punitive action is taken. Consequently, the Court concluded that the order issued by the President could not be challenged on the ground that the appellant had been denied a full opportunity to show cause in respect of the action proposed against him. The Court further observed that both of the legal questions that were before it had to be answered against the appellant. As a result of this analysis, the Court found that the appellant’s challenge could not succeed, and it accordingly dismissed the appeal. The Court also specified that, given the circumstances of the proceedings, it would not award any order as to costs. The final disposition therefore was that the appeal was dismissed.