State Of Rajasthan And Anr vs Sripal Jain

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

Court: supreme-court

Case Number: Civil Appeal No. 299/62

Decision Date: 24 January 1963

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, M. Hidayatullah, J.C. Shah

In this case the Supreme Court of India delivered its judgment on 24 January 1963 in the matter of State of Rajasthan and another versus Sripal Jain. The bench consisted of Justice K.N. Wanchoo, Justice Bhuvneshwar P. Sinha, Justice P.B. Gajendragadkar, Justice M. Hidayatullah and Justice J.C. Shah. The citation for the decision is reported in the law reports 1963 AIR 1323 and 1964 SCR (1) 742. The statutes and rules examined included the State Service Order of Compulsory Retirement and the power of the Inspector‑General of Police to issue an order that may amount to punishment. The requirement that such an order be submitted to the Governor was also considered, together with the constitutional provisions of Articles 166 and 311. Relevant provisions of the Rajasthan Service Rules, specifically rules 56 and 244(2), were examined by the Court in detail. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, particularly rules 14 and 34, were also taken into account. Rules of Business, namely rules 21 and 31(vii), were considered together with sections 32(33) and 32(75) of the Rajasthan General Clauses Act, 1955. The respondent, Sripal Jain, held the rank of Circle Inspector in the Rajasthan State Service at the time of his retirement. He was compulsorily retired from his position and the retirement order was communicated to him by the Inspector‑General of Police. Challenging this order, he filed a writ petition before the Rajasthan High Court seeking its set aside.

The High Court allowed the writ petition on the ground that Rule 31(vii)(a) of the Rules of Business applied to a compulsory retirement made under Rule 244(2) of the Rajasthan Service Rules. The High Court also found that the required papers had not been laid before the Governor, thereby rendering the retirement order defective. The State of Rajasthan subsequently obtained special leave to appeal the High Court’s decision before this Court in this matter. The principal question that arose for determination was whether a case of compulsory retirement made under Rule 244(2) of the Service Rules must be referred to the Governor. The issue was to be decided in view of Rule 31(vii)(a) of the Rules of Business, which governs the submission of such matters to the Governor. The respondent further contended that Rule 244(2) contemplated an order of compulsory retirement issued by the Government and not by the Inspector‑General of Police, as had occurred in the present case. He also argued that the order was invalid because it did not conform to the form prescribed by Article 166 of the Constitution. Additionally, he submitted that, under Section 32(75) of the Rajasthan General Clauses Act, any order issued under Rule 244(2) should be treated as an order of the Governor. The Court held that the retirement provided for in Rule 31(vii)(a) was a compulsory retirement imposed as a penalty, distinct from the two other categories of compulsory retirement. The two other categories were retirement upon reaching the age of superannuation and retirement under Rule 244(2), neither of which constituted punishment. Consequently, the Court concluded that it was not necessary to submit the papers relating to the respondent’s retirement under Rule 244(2) to the Governor. The Court further observed that a defect in the form of an order does not automatically render it illegal. It stated that the only effect of non‑compliance with the form prescribed by Article 166 is to shift the burden onto the Government to demonstrate that the order was in fact issued by it.

The Court observed that once a compulsory retirement order is challenged, the responsibility shifts to the Government to demonstrate that the order was genuinely issued by it. In the present case, a high‑level committee had recommended the compulsory retirement of the respondent, and that recommendation was subsequently approved by both the Home Minister and the Chief Minister. By virtue of rule twenty‑one, such approval renders the impugned order a Government order. The Court further noted that the definitions of “Government” and “State Government” contained in the Rajasthan General Clauses Act do not lend support to the respondent’s argument, especially when read together with the interpretation of rule thirty‑one clause seven sub‑a of the Business Rules, which the Court had earlier explained.

The judgment is recorded under the Civil Appellate Jurisdiction as Civil Appeal number two‑nine‑nine of sixty‑two, filed by special leave against the judgment and order dated twenty‑third February nineteen‑sixty‑one of the Rajasthan High Court in D. B. Civil Writ number four‑one‑six of nineteen‑sixty. The Advocate‑General, G. C. Kasliwal, appeared for the State of Rajasthan, while counsel S. K. Kapur and P. D. Menon represented the appellants, and counsel Veda Vyasa and K. K. Jain appeared for the respondent. The judgment was delivered on twenty‑fourth January nineteen‑sixty‑three by Justice Wanchoo. The appeal concerned a circle inspector who was in the service of the State of Rajasthan and who, at the material time, held the post of circle inspector. He was compulsorily retired on the third of September nineteen‑sixty pursuant to rule two‑four‑four sub‑two of the Rajasthan Service Rules, hereinafter referred to as the Service Rules. The retirement order was initially communicated to him by the Inspector General of Police, Rajasthan, on the eleventh of April nineteen‑sixty. The respondent subsequently made representations to the Government, resulting in the order being held in abeyance. After the Government rejected his representations, the order was finally effected from the third of September nineteen‑sixty. On the second of September nineteen‑sixty, the Government ordered that the earlier April order regarding compulsory retirement should be implemented immediately. Consequently, the respondent filed a writ petition in the High Court, contending, among other points, that the Inspector General of Police lacked authority to order his compulsory retirement under rule two‑four‑four sub‑two of the Service Rules. He further argued that the order amounted to a punishment within the meaning of rule fourteen of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, nineteen‑fifty‑eight, hereinafter referred to as the Classification Rules, and therefore, as it was passed without affording him an opportunity to show cause as required by Article three‑eleven of the Constitution, the order was invalid. The State of Rajasthan opposed the petition, maintaining that an order of compulsory retirement under rule two‑four‑four sub‑two of the Service Rules did not constitute a punishment within the meaning of the Classification Rules, and consequently Article three‑eleven was inapplicable. It was also submitted that the order had been passed by the Government, not by the Inspector General of Police, who had merely issued the order under the Government’s direction. The appellants’ case was that, under rule two‑four‑four sub‑two of the Service Rules, the Government possessed unqualified discretion to retire any officer compulsorily in the public interest, and therefore the provisions of Article three‑eleven of the Constitution did not apply to such a retirement.

In this case the Court observed that, according to the Service Rules, the Government held an unfettered power to retire any officer compulsorily whenever it considered such retirement to be in the public interest, and that this power was exercised outside the protection of Article 311 of the Constitution. The appellant further explained that a high‑powered Committee, chaired by the Chairman of the Public Service Commission, had been constituted to examine the cases of officers whose continuation in service after twenty‑five years of qualifying service was deemed contrary to the public interest. That Committee had examined the respondent’s case and had recommended his compulsory retirement. The recommendation was then placed before the Home Minister of Rajasthan, who accepted the Committee’s findings, and subsequently the matter was forwarded to the Chief Minister, who also concurred with the Home Minister. Following these approvals, the Inspector General of Police was instructed to issue the order of retirement against the respondent.

When the matter was presented before the High Court, counsel for the respondent argued that Rule 31(vii)(a) of the Rules of Business required that every case of compulsory retirement in which the appointing authority is the Government must first be submitted to both the Governor and the Chief Minister. The respondent pointed out that, in the present instance, the retirement order had not been laid before the Governor, and therefore, even if the Government had authorized the retirement, the order was illegal because it violated the Business Rules. The appellant responded that Rule 31(vii)(a) applied only to compulsory retirements that were imposed as punishments under Rule 14 of the Classification Rules, and not to other categories of compulsory retirement. The High Court, however, accepted the respondent’s contention that Rule 31(vii)(a) was applicable to retirements made under Rule 244(2) of the Service Rules, held that the failure to submit the matter to the Governor rendered the order invalid, and consequently allowed the writ petition, setting aside the retirement order.

The principal issue therefore for determination was whether a compulsory retirement invoked under Rule 244(2) of the Service Rules must be presented to the Governor in accordance with Rule 31(vii)(a) of the Rules of Business. The Court noted that Rajasthan law recognises three distinct categories of compulsory retirement. First, compulsory retirement on a proportionate pension basis is treated as a penalty under Rule 14 of the Classification Rules and may be ordered irrespective of the length of service of the civil servant. Second, compulsory retirement is provided under Rule 56 of the Service Rules as an automatic consequence when a civil servant attains the age of super‑annuation, stated as five and a half years of age in the Rules. Third, compulsory retirement may be effected under Rule 244(2) of the Service Rules, which confers upon the Government the absolute right to retire any government servant after twenty‑five years of qualifying service without assigning any reason and without any entitlement to special compensation, though the exercise of this right is to be undertaken only when it is deemed to be in the public interest.

The provision under rule two hundred forty‑four, clause two, states that the Government possesses an absolute power to retire any government servant who has completed twenty‑five years of qualifying service without providing any reason, and that no claim for special compensation on that basis will be entertained. The provision further adds that this power will be exercised only when it serves the public interest to discontinue the further service of a government servant. In the High Court, the respondent argued that every type of compulsory retirement must be referred to the Governor under rule thirty‑one, sub‑clause seven, sub‑clause (a) of the Business Rules, relying on the language of that rule. Consequently, the Court set out rule thirty‑one in its entirety. The rule reads: “Thirty. The following classes of cases shall be submitted to the Governor and the Chief Minister before the issue of orders (i)… (vi)… (vii)(a) Proposals for dismissing, removing or compulsory retiring of any officer where the appointing authority is the Government. (b) Where a review petition is proposed to be rejected and it is against an order issued after submission to the Governor under item (vii)(a) of Rule 31. (c) In a case where, on review, the Governor decides to enhance the penalty already imposed and the enhanced penalty is one of dismissal, removal or compulsory retirement of an officer whose appointing authority or appellate authority is Government.” There is no doubt that the expression “proposals for … compulsory retiring of any officer” in sub‑clause (vii)(a) is broad and is not qualified by the words “as penalty,” which could lead to the interpretation that all three categories of compulsory retirement mentioned earlier must be referred to the Governor. However, when these words are read in the context of the clause in which they appear, it appears that the reference to “compulsory retiring of any officer” is intended to denote compulsory retirement as a penalty. The phrase follows the words “dismissing” and “removing,” both of which are penalties provided by rule fourteen of the Classification Rules, indicating that “compulsory retiring” in the same passage should be understood as a penalty similar to dismissing and removing. Moreover, consideration of sub‑clauses (b) and (c) of item (vii), which the High Court did not address, supports this conclusion. Sub‑clause (b) states that when a review petition is proposed to be rejected and it concerns an order issued after submission to the Governor under item (vii)(a) of Rule 31, the matter must be referred to the Governor. This reference to review petitions therefore pertains to orders passed under item (vii)(a) for dismissal, removal or compulsory retirement. It is difficult to conceive of any reason for a review petition in the case of compulsory retirement that occurs merely upon attaining the age of super‑annuation, that is, fifty‑five years, under rule fifty‑six of the Service Rules. The presence of clause (c), which requires that if, on review, the Governor decides to increase an already imposed penalty and that increased penalty is one of dismissal, removal or compulsory retirement, the matter must again be referred to the Governor, makes clear that the compulsory retirement mentioned therein is a penalty. Consequently, the language of rule thirty‑one, sub‑clause (vii)(a) must be read as referring only to compulsory retirement imposed as a penalty, and not to retirement that is merely a statutory right after twenty‑five years of service.

In assessing the scope of a “review petition” the Court observed that such a petition could arise in the context of a compulsory retirement that is based on reaching the statutory superannuation age of fifty‑five years under rule fifty‑six of the Service Rules. The Court further noted that the Classification Rules themselves contain provisions for the filing of review petitions in Part VII, and that rule thirty‑four of those Rules specifically vests the Governor with the power to conduct a review. Consequently, whenever clause (b) of the relevant provision refers to a review petition, it must be understood as a reference to the review mechanism set out in Part VII of the Classification Rules.

The Court explained that clause (b) is limited to cases that fall under clause (a), which mentions dismissal, removal or compulsory retirement. This limitation demonstrates that each of those three measures is to be treated as a penalty, as defined in rule fourteen of the Classification Rules. Moreover, clause (c) provides that if, upon review, the Governor decides to increase the penalty that has already been imposed, and if the enhanced penalty consists of dismissal, removal or compulsory retirement of an officer, the matter must again be referred to the Governor. This wording makes it clear that the compulsory retirement contemplated in clause (c) is also a penalty, and the Court saw no doubt that, read together with clause (a), the term “compulsory retirement” in that clause likewise signifies a penal measure.

Viewing the three clauses of item (vii) collectively, the Court held that the item establishes a complete scheme covering three distinct penalties—dismissal, removal and compulsory retirement—and obliges that any case involving one of these penalties be referred to the Governor. The Court therefore disagreed with the High Court’s broader interpretation that the term “compulsory retirement” in item (vii)(a) embraces all three varieties of compulsory retirement. Instead, the Court upheld the appellants’ contention that the phrase in item (vii)(a) refers specifically to compulsory retirement imposed as a penalty, and does not include the other two categories: (1) compulsory retirement on reaching the age of superannuation and (2) compulsory retirement under rule two hundred and forty‑four (2), neither of which constitutes a punishment.

The Court pointed out that Note 2 of rule two hundred and forty‑four (2) expressly clarifies that action taken under that rule is not a penalty. This clarification is reinforced by Explanation (vi) to rule fourteen of the Classification Rules, which states that “if compulsory retirement of a Government servant is in accordance with the provisions relating to his superannuation or retirement, it is not a penalty.” Since rule fifty‑six of the Service Rules deals with superannuation and rule two hundred and forty‑four (2) deals with retirement, both are excluded from the definition of a penalty under the said explanation.

Accordingly, the Court concluded that when rule thirty‑one (vii)(a) speaks of “compulsory retiring of an officer,” it must be interpreted as compulsory retirement imposed as a penalty, and not as retirement that occurs merely because an officer has attained the age of superannuation or because of the provisions of rule two hundred and forty‑four (2). For that reason, the Court held that it was unnecessary to forward the documents relating to the respondent’s compulsory retirement under rule two hundred and forty‑four (2) to the Governor.

In this case, the Court observed that the High Court had allowed the writ petition only on the point concerning the Governor, and consequently the appeal had to succeed. The respondent argued that Rule 244 (2) of the Service Rules required an order of compulsory retirement to be issued by the Government, and that the order in the present matter had been issued not by the Government but by the Inspector General of Police. It was further contended that if the order were a Government order it should have been framed in the form prescribed by Article 166 of the Constitution, and because the order did not follow that form, there was, in law, no Government order effecting the compulsory retirement of the respondent. The order itself read: “The following Inspectors of Police are compulsorily retired from the Government service under Rule 244 (2) of P.S.R. … Shri Sripal Jain son of Shri Sohanlal, C.I. Sanganer, District Jaipur ….” The Court acknowledged that the order clearly did not conform to the format required under Article 166. However, it was well settled that a defect of form did not automatically render an order illegal; the only consequence of such a defect was that the burden shifted to the Government to demonstrate that the order had, in fact, been issued by it.

The Court noted that the appellants had stated that the order had been communicated by the Inspector General of Police on the direction of the Government. The language of the order was in the passive voice and did not expressly state that the Inspector General of Police had ordered the retirements, although a reader might naturally infer that the retirement order was being issued by the Inspector General. Because of this formal defect, the burden fell on the appellants to prove that the Government had indeed passed the order. The Court found that the appellants had satisfied this burden by producing documents from the relevant file showing that the recommendation of a high‑powered Committee had been approved by the Home Minister and the Chief Minister, thereby indicating that the compulsory retirement order had been issued by the Government of Rajasthan. The Court further referred to Rule 21 of the Business Rules, which provides that cases are ordinarily disposed of by or under the authority of the Minister‑in‑charge unless another rule provides otherwise. The only exception, Rule 31 (vii)(a), was previously held not to apply to compulsory retirements under Rule 244 (2). Accordingly, the Court concluded that, despite the defect in form and the fact that the order had been communicated by the Inspector General of Police, the order was indeed a Government order passed by a proper authority and could not be declared invalid on the ground of procedural irregularity.

The Court held that the order could not be said to be invalid in law. It was further urged that, under the Rajasthan General Clauses Act, No VIII of 1955, the expression “Government” or “the Government” includes both the Central Government and any State Government pursuant to section 32(33), and that the phrase “the State Government” means, under section 32(75), as from 1 November 1956, the Governor. Accordingly, when rule 244(2) requires an order by the Government, the order should be issued by the Governor. However, the definitions contained in section 32 are to be read subject to any provision that is repugnant in the subject or context or to any contrary intention. That approach leads back to the Business Rules framed under Article 166 of the Constitution, where rule 21 vests the power to deal with a case of this kind in the Minister‑in‑charge. Consequently, the definitions of “Government” and “the State Government” in the Rajasthan General Clauses Act are of no assistance to the respondent once it is held that rule 31(vii)(a) of the Business Rules, when it speaks of “compulsory retiring of any officer”, refers only to compulsory retirement as a penalty under rule 14 of the Classification Rules and not to the two other kinds of retirement, namely superannuation under rule 56 or retirement under rule 244(2) of the Service Rules. The appeal was therefore allowed, the order of the High Court was set aside, and no order as to costs was made. The appeal was allowed.