Gurdev Singh Sidhu vs State Of Punjab And Anr

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

Court: Supreme Court of India

Case Number: Writ Petition No. 200 of 1963

Decision Date: 1 April, 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K.C. Das Gupta, N. Rajagopala Ayyangar

In this matter the petitioner, Gurdev Singh Sidhu, challenged a notice issued by the Inspector‑General of Police and Joint Secretary to the Government of Punjab on 25 March 1963. The notice was issued under the second proviso to Article 9.1 of the Pepsu Services Regulation, as amended by a notification dated 19 January 1960. The petitioner had been appointed Assistant Superintendent of Police in 1942 in the former Patiala State, was integrated into the Pepsu Police Service in 1948 after the creation of Patiala and East Punjab States, and was promoted to officiate as Superintendent of Police in 1950 by the Rajpramukh of Pepsu. By invoking Article 32 of the Constitution, the petitioner sought to have the notice quashed on the ground that the proviso under which the notice was issued was ultra vires and inoperative because it violated Article 311(2) of the Constitution. The petitioner also relied upon the decision reported in Frontier Railway, A.I.R. 1964 S.C. 600, to support the contention that the statutory provision was untenable. The proviso in question stated that the Government retained an absolute right to retire any Government servant after he had completed ten years of qualifying service without giving any reason, and that a claim for special compensation on this account would be entertained. It further provided that this power would be exercised only when it was in the public interest to dispense with the further services of a Government servant on grounds such as inefficiency, dishonesty, corruption or infamous conduct.

The Court examined whether the stipulation in Article 9.1 of the Pepsu Services Regulation, which prescribed a minimum period of ten years of service as a condition for compulsory retirement, was consistent with the protection afforded by Article 311(2) of the Constitution. The Court held that the provision contravened Article 311(2) and therefore had to be struck down. The Court identified two valid exceptions to the protection under Article 311(2). The first exception applied where a permanent public servant was asked to retire because he had reached a reasonably fixed age of superannuation. The second exception applied where compulsory retirement was effected under rules that prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which compulsory retirement could be validly imposed. The Court concluded that the first exception did not amount to dismissal or removal from service within the meaning of Article 311(2), and that the second exception was justified by the Court’s earlier decisions. Consequently, the notice issued to the petitioner under the ten‑year service proviso was held to be invalid.

The Court explained that a rule which allows a State to retire a permanent public servant after ten years of service cannot be regarded as dismissal or removal within the meaning of Article 311(2) of the Constitution, and that such a rule would be invalid unless it fell within the narrow exceptions recognised by this Court in a long series of decisions. It was held that a State may not preserve the power of compulsory retirement by first fixing a normal age of superannuation and then, by a separate rule, retire a permanent servant merely because he has completed ten years of qualified service, because that second rule would be outside the protection guaranteed by Article 311(2). The Court relied on the authorities in Moti Ram Deka etc. v. General Manager, North East Frontier Railway etc., A.I.R. 1964 S.C. 600, and also referred to Shyam Lal v. State of U.P. and Union of India, [1955] 1 S.C.R. 26 and State of Bombay v. Saubhag Chand M. Doshi, [1958] S.C.R. 571. The Court clarified that the present decision should not be interpreted to mean that the present petition is automatically maintainable under Article 32 of the Constitution.

In the original jurisdiction matter, the petitioner, S. Gurdev Singh Sidhu, filed Writ Petition No. 200 of 1963 under Article 32 of the Constitution seeking enforcement of his fundamental rights. The petition was argued by counsel for the petitioner and by counsel for the respondents, and the judgment was delivered on April 1, 1964 by Chief Justice Gajendragadkar. The petition challenged the validity of Article 9(1) of the Pepsu Services Regulations, Volume 1, as amended by a notification issued by the Governor of Punjab on 19 January 1960. The amendment was made under the proviso to Article 309 of the Constitution and under the Governor’s other delegated powers. The petitioner contended that Article 9(1) violated the constitutional protection given to individuals employed in civil capacities under Article 311. He traced his service history, stating that he was appointed Assistant Superintendent of Police in the former Patiala State by His Highness Maharaja Adhiraj of Patiala on 4 February 1942, his conditions of service being governed by the Patiala State Service Regulations issued by the sovereign ruler of the State. He was later confirmed in rank after a regular vacancy arose, having completed district training courses in Punjab in 1947. Following the creation of the Patiala and East Punjab States Union on 20 August 1948, he was incorporated into the Pepsu Police Service and was promoted to officiate as Superintendent of Police in February 1950 by His Highness the Rajpramukh of Pepsu. On 25 March 1963, respondent No. 2, S. Gurdial Singh, Inspector General of Police and Joint Secretary to the Government of Punjab, issued a notice to the petitioner, claiming authority under the second proviso to Article 9.1 of the Pepsu Services Regulations. The petitioner alleged that the second proviso was invalid and therefore sought quashing of the notice on the ground that the underlying article was ultra vires and inoperative. The respondents, the State of Punjab and the Inspector General, denied the petitioner's claim and defended the constitutionality of Article 9.1. The sole issue for determination was whether the impugned article was constitutionally invalid.

The notice issued by respondent No. 2 was based on the second proviso of article 9.1 of the Pepsu Services Regulations, and the petitioner was required to show cause why he should not be compulsorily retired. The petitioner contended that the second proviso invoked by the notice was invalid, and consequently filed a petition under article 32 seeking to have the notice set aside on the ground that the provision on which it relied was itself ultra vires and inoperative. Respondent No. 1, the State of Punjab, together with respondent No. 2, responded by filing counter‑affidavits in which they denied the petitioner’s allegation that the impugned article 9.1 was constitutionally invalid and they opposed his application for quashing the notice. Thus, the sole question that required determination by the Court was whether the challenged article could be shown to be constitutionally invalid. Before addressing that issue, the Court found it necessary to reproduce the exact wording of the article in question. The amendment added after the first proviso to clause (1) of article 9.1 reads as follows: “Provided further that Government retains an absolute right to retire any Government servant after he has completed ten years qualifying service without giving any reason and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in public interest to dispense with the further services of a Government servant such as on account of inefficiency, dishonesty, corruption or infamous conduct. Thus the rule is intended for use: (a) against a Government servant whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient, i.e., when a Government servant’s value is clearly incommensurate with the pay which he draws, but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the proviso as a financial weapon; that is, the proviso should be applied only in cases of Government servants who are considered unfit for retention on personal as opposed to financial grounds; (b) in cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved under the Punjab Civil Services Punishment and Appeal Rules, Appendix 24 of Volume 1, Part 11 or the Public Servants (Inquiries Act) XXXVII of 1850. The word ‘Government’ used in this proviso should be given a reasonable opportunity to show cause the power of removing the Government servant concerned from service under the Civil Services (Punishment and Appeal) Rules”. The amendment further provided that a Government servant shall be given a reasonable opportunity to show cause against the proposed action under the rule. No gazetted Government servant shall, however, be retired without the approval of the Council of Ministers. In all cases of compulsory retirement of gazetted Government servants belonging to the State Services, the Public Service Commission shall be consulted. In the case of non‑gazetted Government servants the Heads of Departments shall effect such retirement with the prior approval of the State Government.

For non‑gazetted Government servants, the Heads of Departments were required to implement retirement only after obtaining prior approval from the State Government. The provision demonstrates that the absolute authority retained by respondent No 1 to manage public servants could be exercised against those servants if respondent No 1 perceived that the servants displayed inefficiency, dishonesty, corruption or infamous conduct. The amendment to the Pepsu Services Regulations was evidently intended to enable respondent No 1 to invoke this power in situations where a reputation for corruption, dishonesty or infamous conduct could be established to the satisfaction of respondent No 1, even though no specific instance might be provable under the Punjab Civil Services (Punishment and Appeal) Rules. The same power was also meant to be applied where the Government servant’s incompetence was not severe enough to justify retirement on compassionate grounds. The only limitation introduced by the amended article was that the power could not be exercised on financial grounds; consequently, the grounds for its use were strictly personal to the servant against whom the power was exercised.

Counsel for the petitioner contended that the issue raised in the present petition had already been resolved by the recent decision of this Court in Moti Ram Deka v. The General Manager, North East Frontier Railway. According to that argument, the majority judgment in the earlier case indicated that the impugned rule conflicted with Article 311(2) of the Constitution and therefore ought to be declared invalid. The Court therefore needed to briefly consider the effect of that judgment. In the cited case, the Court examined the validity of Rules 148(3) and 149(3) of the Railway Rules, which authorised the termination of railway employees either by serving a notice for the prescribed period or by paying salary in lieu of such notice. The majority observed that an individual holding a permanent post is entitled to continue in service, subject only to two exceptions: the rule of superannuation and the rule of compulsory retirement. The Court held that a rule fixing the age of superannuation, applicable uniformly to all Government servants within a particular category, was constitutionally valid because it was based on general considerations such as life expectancy, mental capacity, climatic conditions of service and the nature of the work, rather than on arbitrary or ad hoc criteria.

In the judgment, the majority affirmed a second exception to the general rule that a permanent servant could be removed only under the protection of article 311(2) of the Constitution. The majority held that rules of compulsory retirement were valid if they first fixed a proper age of superannuation, and then allowed the compulsory retirement of a public servant provided that the servant had completed a minimum period of service. However, the Court expressly reserved that if a rule of compulsory retirement authorised the authority to retire a permanent servant at a very early stage of his career, the validity of such a rule would have to be examined on a proper occasion. In other words, the acceptance of the doctrine that compulsory retirement rules constituted a permissible exception to the general rule that termination of a permanent servant amounted to removal under article 311(2) was not an absolute principle but a qualified one.

The judgment explained why this reservation was inserted. The issue arose in the case of Moti Ram Deka, where the question of compulsory retirement was not directly raised, but the argument for the validity of the railway rules relied on the view that earlier Supreme Court decisions upholding the validity of similar compulsory retirement rules logically supported the contention that rules 148(3) and 149(3) of the Railway Rules were also valid. Accordingly, the Court felt it necessary to review those earlier decisions to determine whether the observations made therein supported the validity of the railway rules. The Court briefly referred to several precedents. In Shyam Lal v. State of U P. and the Union of India, the Court examined article 465‑A of the Civil Service Regulations, which gave the Government an absolute right to retire any officer after twenty‑five years of service without assigning any reason, and barred the officer from claiming special compensation; the Court held that article to be valid. In State of Bombay v. Saubhag Chand M. Deshi, the Court considered rule 165‑A of the Bombay Civil Services Rules as amended by the Saurashtra Government. That rule similarly permitted the Government to retire a servant after completing twenty‑five years of qualifying service or upon reaching fifty years of age, without giving a reason or allowing a claim for special compensation, and it stipulated that the power would be exercised only when it was in the public interest to dispense with the servant’s further services. The Court noted these authorities in assessing the validity of the railway rules.

In this part of the judgment the Court considered the circumstances in which a permanent Government servant could be compelled to retire on grounds such as inefficiency or dishonesty, and it noted that the rule allowing such compulsory retirement had also been upheld by earlier decisions. The Court then turned to the arguments presented in support of the validity of the Railway Rules that were challenged in the case of Moli Ram Deka. The learned Additional Solicitor‑General argued that the earlier authorities upheld the impugned rules on the basis that a premature termination of a permanent servant’s service did not necessarily constitute a removal within the meaning of Article 311(2) of the Constitution. He therefore insisted that those precedents, which dealt with the concept of compulsory retirement, had to be examined, even though the specific question of compulsory retirement was not directly addressed in the decision of Moti Ram Deka.

The majority opinion in Moti Ram Deka’s case, as recorded in the cited reports (1) [1955] 1 S.C.R. 26, (2) [1958] S.C.R. 571 and (3) A.I.R. 1964 S.C. 600, indicated that the Court was not prepared to revisit the issue of whether the compulsory‑retirement rules that had previously been upheld were themselves constitutionally valid. The reasoning of the majority suggested that it would be logically consistent to hold that a premature termination would not amount to removal under Article 311(2) only when such termination results from a general superannuation rule. In contrast, any situation where a permanent servant is asked to retire compulsorily on the basis of incompetence, inefficiency or dishonesty could plausibly be regarded as a removal within Article 311(2).

Since the 1953 decision in Satish Chandra Anand v. Union of India (1) S.C.R. 655, the Court has consistently upheld the validity of rules governing compulsory retirement. Although the Anand case involved a five‑year contract employee in the Resettlement and Employment Directorate of the Ministry of Labour, the judgment contained observations that have been repeatedly cited in subsequent cases dealing with compulsory retirement. The majority in Moti Ram Deka accordingly held that reopening the issue would be inappropriate and inexpedient because it had already been settled by several prior reported decisions, and because the specific point did not arise directly in that case. Nevertheless, the Court added a cautionary note that if a compulsory‑retirement rule were to empower the Government to terminate a permanent public servant’s service at a very early stage of his career, the validity of such a rule might still require examination.

In this case the Court accepted that a rule of compulsory retirement could be treated as valid and could constitute an exception to the general rule that the termination of a permanent public servant’s service would amount to his removal under Article 311(2). However, the Court added a clear qualification, stating that where earlier decisions had upheld a minimum period of service of twenty‑five years, that period could not be unreasonably reduced. The majority opinion explained that the decision was influenced by the fact that the compulsory‑retirement rule required a fairly large number of years of service before it could be invoked. Consequently, the Court observed that the argument of Mr. Bhandari, who contended that the present article reducing the minimum period of service to ten years was open to challenge in light of the majority decision in Moti Ram Deka, was correct. The Court further emphasized that efficient administration of the State required permanent public servants to enjoy a sense of security of tenure. The safeguard provided by Article 311(2) was described as merely ensuring that, when dismissal, removal, or reduction in rank was contemplated, the servant should be given a reasonable opportunity to show cause against the proposed action. This security of tenure did not protect dishonest, corrupt, or inefficient officials; it simply required that they be afforded a chance to meet the charges before removal.

The Court identified only two exceptions that could be regarded as valid concerning the scope and effect of the protection afforded by Article 311(2). First, when a permanent public servant was asked to retire because he had reached a reasonably fixed age of superannuation, Article 311(2) did not apply, because such retirement was neither dismissal nor removal. Second, when a permanent public servant was compulsorily retired under rules that prescribed the normal age of superannuation and required a reasonably long period of qualified service before compulsory retirement could be ordered, that retirement also did not amount to dismissal or removal, a conclusion drawn from a series of earlier decisions of this Court. However, the Court warned that if, while reserving to the State the power to compulsorily retire a permanent public servant, a rule was framed prescribing a proper age of superannuation and an additional rule was added giving the State power to retire a permanent public servant after only ten years of service, such a rule could not be placed outside the operation of Article 311(2). In substance, termination of service under such a rule, though termed compulsory retirement, would be equivalent to removal under Article 311(2), and the validity of the rule might therefore require examination.

In this case, the Court observed that a rule permitting the termination of a public servant after ten years of service could not be regarded as outside the operation of Article 311(2) of the Constitution. The Court explained that although such termination was described as compulsory retirement, its substance amounted to removal within the meaning of Article 311(2). The Court noted that there was a concern that compulsory retirement rules might seek to shorten the minimum qualifying period of service that could trigger compulsory retirement. The Court further observed that the majority judgment in Moti Ram Deka (1) had expressly warned that in such circumstances the validity of the rule required examination. The Court further stated that, when examined, the impugned rule could not rely on the protection of earlier decisions of this Court. Those earlier decisions had set the minimum qualifying period of service at as much as twenty‑five years or the age of the public servant at fifty years. Consequently, the Court agreed with the submission of Mr. Bhandari that the effect of the majority decision in Moti Ram Deka (1) was that the challenged Article 9.1 violated Article 311(2). The Court therefore held that the article had to be struck down as invalid. Accordingly, the petition was allowed, and Article 9.1 as amended by the Governor of Punjab by a notification dated 19 January 1960 was declared invalid. As a result, the notice issued by respondent No. 2 against the petitioner on 25 March 1963 was ordered to be cancelled. Before concluding, the Court observed that the respondents had not argued that the writ petition was incompetent under Article 32. The respondents also did not contend that the proper remedy was a petition under Article 226 to the Punjab High Court. The Court attributed this omission to the respondents’ desire for a determination by this Court on the validity of the challenged article. The Court clarified that its decision should not be interpreted as a declaration that a petition of this nature is competent under Article 32. Finally, the Court ordered that the petitioner be awarded costs against respondents No. 1 and No. 2, and the petition was allowed. (1) A.I.R. 1964 S.C. 600.