PETITIONER:
MAYENGHOAN RAHAMOHAN SINGH
Vs.
RESPONDENT:
THE CHIEF COMMISSIONER (ADMN.) MANIPUR ANDOTHERS
DATE OF JUDGMENT01/11/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1976 AIR 2581 1977 SCR (1)1022
1976 SCC (4) 709
ACT
Compulsory retirement---Compulsory retirement made in
public interest under the Government of India Decision No.
23 dated 30th November, 1962 below Fundamental Rule 56
(later substituted as a new rule FR 56(j))--Mere reference
to a non-subsisting rule does not invalidate the order when
the retirement is in public interest and bona fide.
HEADNOTE
The appellant, a Sub-ordinate Judge was compulsorily
retired under the Government of India Decision No. 23. below
Fundamental Rule No. 56 though the said rule was later
substituted as FR 56(j). A writ petition assailing the
order of compulsory retirement as in violation of Article
311 was dismissed by the Judicial Commissioner for Manipur.
On appeal by certificate the appellant contended that the
impugned order of compulsory retirement was null and void ab
initio because: (1) Fundamental Rule 56 at the material time
contained no reservation of any power in the appointing
authority to retire him without any reason on three month’s
notice after the age of 55 years: (2) the impugned order was
made expressly under a non-subsisting authority viz., Gov-
ernment of India Decision No.. 23 below Fundamental Rule 56,
at the time’ of impugned notice and (3) the Government of
India Decision not having been incorporated in Fundamental
Rule 56, it amounted to a mere executive instruction and not
a rule within the meaning of Article 309.
Dismissing the appeal, the Court
HELD: (1) Compulsory retirement is not a punishment,
there being no stigma in it. [1024 D]
Tara Singh etc. etc. v. State of Rajasthan and Ors.
[1975] (3) SCR 1002 reiterated.
(2) If power can be traced to a valid power the fact
that 1he power is purported to have been exercised under
non-existing power does not invalidate the exercise of the
power. In the .present case, the affidavit evidence estab-
lishes that the Commissioner exercised his powers and was of
the opinion that it was in public interest to make the order
of compulsory retirement. [1024 E-1025 A]
L. Hazari Mal Kuthiala v. Income-tax Officer, special
circle Ambala Cantt. and Anr. [1961] 1 SCR 892-----41 I.T.R.
12 and Hukumchand Mills Ltd. v. State of Madhya Bharath and
Anr. [1964] 6 S.C.R. 857=52 I.T.R. 583 followed.
(3) The absence of recital in the order of compulsory
retirement that it was made "in public interest" is not
fatal as long as power to make compulsory retirement in
public interest is there and the power, in fact, is shown in
the facts and circumstances of the case, to have been exer-
cised in public interest. Whether the, order is correct or
not is not to be gone into by the Court. In the instant
case, the Government affidavit is that the Chief Commission-
er made the order because he was of the opinion. that it was
in public interest to do so. The order is made bona fide and
nothing us on the record to show that the affidavit is
unbelievable. [1025 A-B, E-G]
Union of India v. J. N. Sinha [1971] 1 SCR 791 applied.
Butail v. Union of India & Ors. [1971] 2 SCR 55 referred to.
1023
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2022 of 1969.
Appeal,from the Judgment and Order dated 26.10.1968 of
the Judicial Commissioner for Manipur in Civil Appln. Case
No. 23/67)
R.K. Garg, S.C. Agarwal & V.J. Francis, for the Appel-
lant.
V.C. Mahajan & R.N. Sachthey, for Respondent Nos. 1-3
The Judgment of the Court was delivered by
RAy,C.J.--This appeal is by certificate from the judg-
ment dated 26 October 1968 of the Judicial Commissioner for
Manipur.
The appellant by a writ petition challenged the order of
respondent No. 1 by which the appellant was compulsorily
retired.
The Judicial Commissioner dismissed the writ petition
of the appellant.
The appellant was born on 1 January 1911. He joined
the erstwhile State of’ Manipur as a junior clerk in 1935.
Though he was not a Law Graduate, he rose to become a
permanent Puisne Judge in Manipur State Chief Court with
effect from 5 October 1949. After the Government of India
took over the administration of Manipur the appellant was
appointed as a Subordinate Judge with effect’ from 25 Janu-
ary 1950 on a temporary basis. On the enactment of Manipur
Courts Act 1955 the Court of Subordinate Judge was estab-
lished .on 1 March 1956. The appellant was appointed as
the Judge of that Subordinate Court from that date.
The appellant did not earn good reports from superior
officers. He was reverted to the post of subordinate Judge.
The appellant was served with a notice dated 30 June
1966 that he was required to retire from Government service
with effect from 1 October 1966 in pursuance of the direc-
tions of the President in Paragraph 6 of the. Government of
India Decision No. 23 noted below Fundamental Rule 56.
The above Decision No. 23 was contained in the Memoran-
dum of the Government of India, Ministry of Home Affairs
dated 30 November 1962. The Decision came into force on 1
December 1962. Under Paragraph 6 of the Decision the
appointing authority was empowered to require a Government
servant to retire after he had attained the age of 55 years
on three months notice without assigning any reason. This
provision was really intended to retire an officer who had
completed 30 years’ qualifying service. The purpose of the
provision was to weed out unsuitable employees after they
attained the age of 55 years.
The Government Decision No. 23 below Fundamental Rule
No. 56 which came into force on 1 December 1962 as aforesaid
was substituted by new Rule .on 21 July 1965. The new rule
provided that
1024
if the appropriate authority is of, opinion that it is in
public interest to do so, he has the absolute right to
retire any Government servant after he attained the age of
55 years with notice of not less than three months.
The appellant on receiving the notice for retirement
prayed for his being retained in service after the age of 55
years in public interest. The representation of the appel-
lant was rejected. It is in this background that the appel-
lant filed the writ petition.
The principal contention of the ,appellant was that the
impugned order of compulsory retirement was null and void ab
initio because the Fundamental Rule 56 at the material time
contained no reservation, of any powers in the appointing
authority to retire him without any reason on three months
notice after the age of 55 years. Emphasis was placed by
counsel on the fact that the impugned order was made ex-
pressly under the authority of Government of India Decision
No. 23 below Fundamental Rule 56 and this Decision was not
subsisting at the time of the impugned notice. It was
also. contended that the Government Decision was not incor-
porated in Fundamental Rule 56 and therefore it amounted to
a mere executive instruction and not a rule within the
meaning of Article 309. The appellant also contended that
in substance, the compulsory retirement was removal under
Article 311.
Compulsory retirement is not a punishment. There is no
stigma in compulsory retirement. See Tara Singh etc. etc.
v. State of Rajsthan and ors.(1)
It is also the view of this Court that if power can be
traced to a valid power the fact that the power is purported
to have been exercised under non-existing power does not
invalidate the exercise of the power. See L. Hazari Mal
Kuthiala v. Income-tax Officer, Special Circle Ambala Court
and Anr.(2) and Hukumchand Mills Ltd. v. State of Madhya
Bharath & anr.(3)
The Government case is that the Chief Commissioner by
reason of the order of the President contained in Government
of India, Ministry of Home Affairs Memorandum No. 33/18/62-
ESTS(A) dated 30 November 1962, followed by Fundamental
(Sixth Amendment) Rules, 1965, had the power to retire the
Government servant without assigning any reason if he was of
opinion that it was in the public interest to do so.
The relevant Fundamental Rule 56(J) is as follows :--
"Notwithstanding anything contained in this
Rule, the appropriate authority shall, if it
is of the opinion that it is in the public
interest to do so, have the absolute right to
retire any Government servant after he has
attained the age
(1) [1975] S.C.R. 1002. (2) [1961] 1 S.C.R.
892.=41.I.T.R. 12.
(3) [1964] 6 S.C.R. 857=52 I.T.R. 583.
1025
of 55 years by giving him notice of not
less than three
months in writing".
The affidavit evidence is that the order of compulsory
retirement was made in public interest. The absence of
recital in the order of compulsory retirement that it is
made in public interest is not fatal as long as power to
make compulsory retirement in public interest is there and
the power in fact is shown in the. facts and circumstances
of the case to have been exercised in public interest.
In R.L. Butail v. Union of India & Ors.(1) this Court
considered Fundamental Rule 56(j) and the circumstances
under which compulsory retirement can be made in public
interest. It is true that in Butail’s case (supra), the
notice in terms of Fundamental Rule 56(j) was served,
namely that the order of complusory retirement was made in
public interest.
A comparision between Paragraph 6 of Decision No. 23
below Fundamental Rule 56 and Fundamental Rule 56(j) of
amended F.R. 56 shows that the two deal with the identical
matter of compulsory retirement. The common features are
that the Government servant may be asked to retire after the
age of 55 years. Second, such retirement is ordered to be
made by giving the Government servant a notice of three
months. Third, the power to retire is an absolute right
without assigning any reason. Fourth, under the amended
Fundamental Rule 56(j) the power is exercised only if the
appropriate authority is of opinion that it is in public
interest to do so.
The Government affidavit is that the Chief Commissioner
made the order because he was of opinion that it was in
public interest to do so. Whether the order is correct or
not is not to be gone into by the court. See Union of India
v. J. N. Sinha.(2)
In the present case, Counsel for the appellant contended
that it did not appear in the order that there was any
application of mind that the order was being made in public
interest. In Butail’s ease (supra) it was said that the
plea that the appropriate authority had not applied its mind
failed there in view of the clear averments made in that
regard in the affidavit and, no reason was adequately shown
to discord those statements as untrue Or Otherwise unbeliev-
able. In the present case, the affidavit evidence estab-
lishes that the Commissioner exercised his powers because he
was of the opinion that it was in pub, lie interest to make
the order of compulsory retirement. The order in the
,present case is made bona fide and nothing is on the record
to show that the affidavit is unbelievable.
the foregoing reasons the appeal fails and is dismissed
with no order as to costs.
S.R. Appeal dismissed.
(1) [1971] 2 S.C.R.. 55. (2) [1971] 1 S.C.R. 791.
1026