State of Assam and Ors. vs Padma Ram Borah

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

Court: Supreme Court of India

Case Number: Appeal (civil) 301 of 1962

Decision Date: 23 November 1962

Coram: S.K. Das, J.L. Kapur, A.K. Sarkar, M. Hidayatullah, R. Dayal

In this appeal filed by special leave, the Court recorded that the petitioner was the State of Assam and others and the respondent was Padma Ram Borah. The judgment was rendered on 23 November 1962 by a bench comprising S K Das, J L Kapur, A K Sarkar, M Hidayatullah and R Dayal, and cited as 1965 AIR (SC) 473. The factual background began with the appointment of Padma Ram Borah on 25 August 1929 as a lower‑division assistant in the Registrar’s office of Joint Stock Companies, Assam, located at Shillong. He started as a probationer, was confirmed after the probationary period, subsequently promoted to upper‑division assistant, and on 1 May 1953 elevated to superintendent in the Excise Commissioner’s office at Shillong. Born on 1 January 1906, he was scheduled to retire upon attaining the age of fifty‑five on 1 January 1961. He applied for four months of leave preparatory to retirement beginning 1 September 1960, but actually commenced the leave only on 22 December 1960. On that same date an order of suspension was issued under notification 4/60/42, stating that Shri P R Borah, Superintendent of the Excise Commissioner’s office, Assam, was placed under suspension effective from the date of the order until the departmental proceedings against him were finalized. A copy of this notification, together with a memorandum, was sent to the respondent, indicating that because his retirement was to take effect on 1 January 1961 his services would need to be extended beyond that date until the departmental proceedings concluded, and that appropriate orders would follow. The State of Assam alleged that the respondent left the office on 22 December 1960 without obtaining any formal orders. Subsequently, on 6 January 1961 a second notification, No 229/59/16, was issued, extending the term of his services for three months from 1 January 1961 or until the disposal of the departmental proceedings, whichever occurred earlier. This second notification was also dispatched to the respondent. The departmental proceedings, however, were not resolved within the three‑month period, which ended on 31 March 1961.

On 9 May 1961 a third notification numbered 229/59/30 was issued, stating that the term of service of Shri P. B. Borah, who was then superintendent (under suspension) of the Office of the Commissioner of Excise, Assam, Shillong, was extended for a further period of three months with effect from 1 April 1961 or until the disposal of the departmental proceedings, whichever occurred earlier. On 23 May 1961 the respondent filed a petition before the High Court of Assam invoking Articles 226 and 227 of the Constitution. In that petition the respondent challenged the two orders issued by the appellant on 6 January 1961 and on 9 May 1961, contending that those orders were without jurisdiction. The respondent asserted that he had ceased to be an employee of the appellant with effect from January 1961 and therefore could not be subjected to any further departmental proceedings. He further pleaded that the appellant possessed no authority to extend his period of service retrospectively after his retirement had already taken effect.

The respondent relied on Fundamental Rule 56, made by the Governor of Assam under the powers conferred by sub‑section (2) of Section 241 of the Government of India Act, 1935, which provides that the compulsory retirement date of a government servant is the day on which he attains the age of fifty‑five years. The rule also states that a government servant may be retained in service after that age only with the written sanction of the State Government on public grounds. The respondent argued that there was no public ground for retaining him in service after the age of fifty‑five.

Accordingly, the respondent prayed that the High Court issue an order quashing the impugned orders dated 6 January 1961 and 9 May 1961. The High Court examined Fundamental Rule 56 as it applied to services and posts under the rule‑making control of the Secretary of State, although the rule applicable to the respondent was the one made by the Governor of Assam. The Court concluded that, based on the facts before it, the appellant had no jurisdiction to extend the respondent’s period of service when no proceedings were pending against him on the date of retirement and even on the dates when the notified extensions were issued. Relying on observations of Mr Justice P. B. Mukharji in the Calcutta High Court decision reported in Nripendra Nath v. Chief Secretary, Government of West Bengal, 1961 AIR (Cal) 1 (SB) at pages 9 and 10, the High Court further held that the mere possibility of continuation of disciplinary proceedings could not be regarded as a public ground within the meaning of Rule 56. The Court also noted that no prior sanction had been obtained from the State Government and no proposals had been placed before the Government seeking its approval for retaining the respondent in service.

No proposals had been placed before the State Government seeking its sanction for retaining the respondent in service, and consequently the High Court allowed the writ petition and directed the appellant, the Government, not to give effect to the order dated 9 May 1961. The appellant then applied for special leave to this Court, obtained such leave, and filed an appeal against the High Court decision dated 13 July 1961, which had permitted the writ petition. The Court first examined Fundamental Rule 56, made by the Governor of Assam under Section 241(2)(b) of the Government of India Act, 1935, as it stood at the relevant time, because the respondent’s case was governed by that rule. The rule provided that the compulsory retirement of a government servant occurred on the date on which he attained the age of fifty‑five years, but it also allowed that the servant could be retained in service after that age with the written sanction of the Provincial Government on public grounds, and it required that proposals for such retention be made only in very special circumstances. Counsel for the appellant vigorously argued that the High Court was wrong in holding that the respondent’s retirement automatically took effect upon his attaining the age of fifty‑five years. He contended that, on a proper construction of Rule 56, the rule did not confer any right on the servant to retire at that age and that the State Government retained the discretion to keep him in service even after he had turned fifty‑five. He further maintained that the High Court was equally mistaken in holding that the completion of departmental proceedings against the respondent could not be treated as a “public ground” for retaining him in service within the meaning of the rule. He asserted that the observations of Justice P. B. Mukharji in the 1961 Calcutta High Court decision were mis‑interpreted and were based on a wrong assumption that to be “in service” meant the servant must be actively performing the duties of his office. He pointed out that the suspension order dated 22 December 1960 itself indicated that the respondent was to continue in service until the departmental proceedings against him were finalised, and that suspension does not necessarily deprive an employee of service status even though he may not perform any duties. The Court found that these contentions raised by the appellant’s counsel possessed a degree of merit, but it considered that it was unnecessary to finally decide those arguments because the appellant faced another difficulty, which the Court would address subsequently.

In this case the Court accepted the argument presented by counsel for the appellant that the order dated 22 December 1960 functioned as an order retaining the respondent in service until the departmental proceedings against him were finally concluded. For the purposes of this analysis the Court also presumed that the finalisation of those departmental proceedings constituted a public ground upon which the respondent could be kept in service. Because the order had been issued directly by the State Government, the Court held that there was no requirement to obtain any further sanction from the Government, and consequently the High Court was mistaken in concluding that the absence of such sanction rendered the order invalid. The Court therefore recognised two effects flowing from the 22 December 1960 order: first, it placed the respondent under suspension; second, it retained him in service pending the completion of the departmental proceedings. The Court treated the order as an order made under Fundamental Rule 56. Since that order was made before 1 January 1961—the date of the respondent’s retirement—it could not be challenged on the ground of retrospectivity.

The Court then turned to the subsequent order dated 6 January 1961. That order clearly altered the earlier one by fixing a period of three months beginning 1 January 1961, or until the disposal of the departmental proceedings, whichever occurred first, as the period during which the respondent would remain in service. The three‑month period therefore expired on 31 March 1961. The effect of the 6 January 1961 order was that, unless the departmental proceedings were disposed of before 31 March 1961, the respondent’s service would terminate on that date. It was admitted that the departmental proceedings had not been concluded before 31 March 1961; consequently the service of the respondent unequivocally ended on that day. The Court emphasized that this termination was not a consequence of an automatic retirement but resulted from the State Government itself having fixed the date of cessation of service.

Subsequently, the State Government did not issue any further order before 31 March 1961. However, about a month later, on 9 May 1961, the Government issued an order purporting to extend the respondent’s service for an additional three‑month period, effective from 1 April 1961. The Court expressed the view that the State Government lacked jurisdiction to make such an order on 9 May 1961. According to the earlier order, the respondent’s service had already ceased on 31 March 1961, and the Government could not, by a unilateral act after that date, create a fresh contract of service to commence on 1 April 1961. If the State Government had intended to continue the respondent’s service beyond 31 March 1961, the appropriate procedure would have required the issuance of a notification before that date. In the absence of such a timely notification, the later order was regarded as beyond the Government’s authority.

In the decision of T. Rangachari v. Secretary of State 64 Ind App 40: 1937 AIR(PC) 27 the Privy Council examined a case involving a Sub‑Inspector of Police who had been charged with irregular and improper conduct while performing his duties. After that Sub‑Inspector retired on an invalid pension and his pension was paid for three months, the matter was reopened and an order was subsequently issued removing him from service as from the date on which he had been invalided. Lord Roche, speaking for the Board, observed that it required no further argument to recognise that an order attempting to remove the appellant from service when, as the Privy Council had held, he had already properly ceased to be in service for several months was a pure nullity and could not be sustained. The Court applied the same principle to the present case, noting that the respondent had definitively ceased to be in service on 31 March 1961 by the order issued by the State Government. The later order that sought to retain the respondent in service, which was passed more than a month after his cessation, was therefore treated as a mere nullity that could not be given effect. On this basis, the Court concluded that the order of the High Court allowing the writ petition was properly justified, even though the High Court’s own reasons for the decision were not correct. Accordingly, the appeal was dismissed, and the Court decided that no order for costs would be made in the circumstances.