P L D 1956 Lahore 129 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal from the judgment of a learned judge of this Court dismissing the appellant's suit against the Provincial Government for a decla ration that his compulsory retirement from the post of Deputy Collector, Irrigation, was illegal, mala fide and ultra vires and therefore inoperative and that despite that order he continued to be in service. The suit was instituted in the Court of a local Civil judge but was transferred to this Court to be tried on its original side in view of the importance of the point involved in it. Muhammad Ismail appellant was at the time of his com pulsory retirement a Deputy Collector in the Irrigation Department of the Province. He was to complete his 55th year on 16th July 1957 on which date he was due to retire under Rule 3.28 of the revised Civil Services Rules (Punjab),Vol. I. As the appellant had completed 25 years' qualifying service and his work and reputation were not satisfactory, his case was examined by the Scrutinising Committee with a view to considering whether he should be required to retire under Rule 5.33 (b) of the revised Civil Services Rules (Punjab), Volume II. After scrutinising the appellant's case the Committee reported that because of his inefficiency and doubt ful honesty the appellant should be asked to retire from service on pension. Consequently the Secretary to Govern ment Punjab, P. W. D. Department, Irrigation Branch, by his letter dated 6th February 1952 informed the appellant that his record had been examined with a view to his retention in service after 25 years' qualifying service and that it indicated that the appellant had ceased to be efficient and that his integrity was doubtful. The letter stated that since the appel lant had completed 25 years' qualifying service, the Govern ment considered that he was no longer a useful member of the service and that it was intended to retire him under Rule 5.33 (b). The letter was accompanied by copies of adverse reports earned by the appellant in the past and the appellant was required to show cause within ten days against his intend ed retirement. In reply the appellant submitted a written reply on 17th February 1952 and the Government after considering the whole case, by its order dated 10th March 1952 ordered his compulsory retirement. The appellant was advised that his retirement from service was wrongful and therefore after giving notice to Government under section 80 of the Code of Civil Procedure he instituted a suit for declaration that the order of his compulsory retire ment was ineffective and that he still continued to be in service. The learned judge who heard the suit has held that the appellant's retirement is not "removal" within the meaning of section 277 of the Government of India Act and that therefore the appellant could be retired from service without the Gov ernment giving him an opportunity of showing cause against his retirement. The learned judge has further found that even if the appellant's retirement were taken to be removal from service he was given reasonable opportunity to show cause against the removal as required by section 240 read with section 277 of the Government of India Act, and that if it be found that there was no inquiry as required by the rules or that the inquiry was defective, on the authority of the Privy Council decision in R.T. Rangachari v. Secretary of State (AIR 1937PC27) the appellant has no cause of action for trial before a Court of law and that his only remedy was a petition to the Government . In the appeal before us it has been contended by the learned counsel for the appellant that since under section 277 of the Government of India Act removal from service of the Crown stands for purposes of section 240 of the Gov ernment of India Act on the same footing as dismissal and that appellant was not given a reasonable opportunity of show ing cause against his removal because no proper inquiry prescribed by the riles was held into his conduct, the removal is unconstitutional' and therefore void. It is obvious that if this contention of the appellant be repelled as being unsus tainable, the judgment of the earned judge dismissing the suit must be upheld. The short question therefore we have to determine is whether a retirement under Rule 5.32 (5.33 revised) amounts to removal to which the restrictions imposed lay section 240 read with section 277 of the Government of India Act apply: In order to answer this question reference is necessary to the relevant rules on the subject. Under Rule 328 of the Civil Services Rules, Vol. I, the date of compulsory retirement of a Government servant, other than a ministerial servant, is which he attains the age of 55 years. This rule has nothing to do with the pension that a Government servant is entitled to earn and merely affirms the principle that on the attainment of the age of 55 years a Government servant who is not in ministerial service generally becomes physically unfit to discharge his duties. In the case of a ministerial servant where the nature of public duties is to some extent different from that of other Government servants, the age of compulsory retirement is 60 years. Sections IV and V of Chapter V of Civil Services Rules, Vol. II, deal with pensions. Section IV defines "conditions of grant" in the case of superannuation pensions and section V those in the case of retiring pensions. This arrangement of the rules shows that pension is of two kinds, namely, superannuation pension and retiring pension. Under Rule 528 superannuation pension is granted to a Government servant in superior service entitled or compelled by rule to retire at a particular age. The rule makes reference to Rule 529 which says that a Government servant in superior service who has attained the age of 55 years may at his option retire on a superannuation pension and to Rule 3'28 of Vol. I of the Rules which fixes the date of compulsory retire ment of a Government servant other than a ministerial servant as the date on which he attains the age of 55 years. When these two rules are put in juxtaposition, the principle that can be deduced from their combined operation is (1) that a Government servant in superior service may at his option claim retirement on pension at the age of 55, and (2) that a Government servant cannot be kept in service after he attains the age of 55 years. This distinction between the right to retire and the obligation to retire is maintained in section V, in the case of retiring pension clause (a) of Rule 5'33 of that section declares that a retiring pension is granted to a Govern ment servant who is permitted to retire after completing qualifying service for 25 years or such less time as may for any special class of Government servants be prescribed, while clause (b) of the same rule provides that a retiring pension is also granted to a Government servant who is required by Government to retire after completing 25 years qualifying service or more. Rule 5'36 of the same section which deals with procedure directs each competent Authority carefully to examine the record of every Government servant, who has completed 25 years' qualifying service, with particular reference to his integrity or otherwise, and if it is desirable in the public interest that he should be retired. to take action accordingly. When this procedural rule is read with rule 533 (b) there can remain no doubt that the intention of the rules is that if Government is not satisfied with the work of a Government servant who has put in 25 years of service, a whether such dissatisfaction is referable to lack of integrity or want of efficiency or to something else, the Government has the right to require his retirement on pension. This, position is also clear when clause (a) of Rule 5'33 is compared with clause (b) of that rule. The former gives to the Govern ment servant concerned the right to retire on pension after completing qualifying service for a certain period while clause (b) gives to the Government the right to require such servant to retire after completing 25 years qualifying service or more. The departmental note under clause (b) is as follows :‑ " Government retains an absolute right to retire any Government servant 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 a Government servant such as on account of inefficiency or dishonesty. Thus the rule is intended for use :‑ (i) against a Government servant whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency, or against one 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 ; and (ii) in cases where corruption is clearly established even though no specific instance is likely to be proved under the Punjab Civil Services (Punishment and Appeal) Rules, Chapter XIV of Vol. I of these rules, or the Public Servants (Inquiries) Act XXXVII of 1850." This note to the Rules seeks to draw a distinction between a case where a Government servant is required to retire after 25 years' qualifying service either because his efficiency has been impaired or because the Government believes him to be guilty of corruption though such corruption is not likely to be proved in any inquiry held under the Punishment and Appeal Rules or the Public Servants (Inquiries) Act of 1850, and a case where it is intended to dismiss or remove for misconduct or inefficiency a Government servant who has not completed 25 years' qualifying service, the intention underlying the rule being that for either of the reasons stated in the note a Govern ment servant may be retired without holding any inquiry against him on a forma( charge. If this interpretation of the rule be correct then the order of retirement in the present case cannot be described to be an order of removal within the meaning of section 277 of the Government of India Act or Rule 14.10 of the Civil Services Rules, Vol. I, for which a regular inquiry under Punishment and Appeal Rules or the Public Servants (Inquiries) Act is necessary, and an omission to follow which procedure may amount to refusing to the Government servant a reasonable opportunity to show cause against the action intended to be taken against him as enjoined by section 240 of the Government of India Act. It is true that an involuntary retirement is in a sense removal from service but the essential question is whether such retirement is "removal" within the meaning of section 277 of the Government of India Act or Rules 14.10 of the Civil Services Rules, Vol. I where this word clearly appears to have been used to signify removal for misconduct. There is no provision in the Civil Services Rules which specifically declares that a Government servant shall not be made to retire before he attains the age of

55. Though Rule 3.28 provides that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years, that rule means no more than that, irrespective of the length of a Government servant's service, he cannot except in certain cases be kept in service on his attaining the age of 55 years because after that age a Govern ment servant generally becomes physically unfit to discharge the duties of his office. Even where a person is employed by Government say at the age of 50 years, he must under the rules retire at the age of.55, and the same will be the result if he was employed much earlier and has even completed 25 years service before he attains the age of

55. The rule cannot be construed so as to infer from it a positive rule that no Government servant can be asked to retire unless he attains the age of 55 years. On the contrary there is, as pointed out above, Rule 5.33 clause (b) which expressly provides that a person may be required by Government to retire after completing 25 years' qualifying service and Rule 5.36 which directs all competent authorities to retire Government servants who have completed 25 years' qualifying service if such retirement is considered necessary in the public interests. These rules occur in the chapter which deals with "conditions of Service" and must therefore be considered to embody in them the condition that a Government servant may be required by Government to retire on his completing 25 years' qualifying service. When Government takes action under Rule 5.33 (b) it is not necessary for it to state any reason or to communicate it to the Government servant concerned. The procedure of com municating confidential remarks in the service book to the servant whom it is intended to retire is adopted not because it is a legal or departmental necessity but merely with a view to giving him an opportunity of showing that the adverse remarks on the strength of which action is proposed to be taken against him were in fact unfounded or that they were made by the superior officer maliciously or on the basis of false or incor rect data. The servant concerned cannot as of right claim that this procedure be adopted because the rules do not recognize any such right in him and they do not impose upon the authority entitled td take action the obligation to adopt such procedure. Nor is this procedure the same as or analogous to the procedure prescribed by Rule 14.13 of the Civil Services Rules, Vol., I, when dismissal or removal of a Government servant is contemplated under Rule 14.10 of that Volume. The true position in such cases is that Government may require a servant in its employ to retire after 25 years' qualifying service, and even if the reason for such retirement be corruption or inefficiency or some other similar reason, the 8overnaient cannot withhold the pension which that servant has earned. It is of course open to the Government not to take action under Rule 5.33 (b) and to institute a regular inquiry under Rule 14.13 of the Civil Services Rules (Punjab), Vol. 1, and if the inquiry establishes any such ground as Government considers to be sufficient for his dismissal or removal, to dismiss or remove him from service, and in such a case the dismissal or removal will amount to a penalty anti may disqualify him for pension which in the case of an action under Rule 5.32 he would be entitled to. We are, therefore, of the view that the retire ment in the present case did not amount to the penalty of dismissal or removal, that, no inquiry into the appellant's conduct was necessary, that the Government had an absolute right to retire him on his completing 25 years' qualifying service, that the right to so' retire him was one of the conditions of the appellant's service, that the appellant had no enforce able claim that he must be allowed to continue in service till he attains the age of 55 and that his compulsory retirement before attaining the age of 55, Government being willing to grant him a pension on the basis of 25 years' qualifying service, gave him no cause of action against the Government. The view taken by the learned Judge was, therefore, right and this appeal is dismissed with costs. A. H. Appeal dismissed.