# [1955] 1 S.C.R. 26

- **Citation:** [1955] 1 S.C.R. 26
- **Court:** Supreme Court of India
- **Decided:** 1953-10-01
- **Case number:** Civil Appeal No. 248 of 1953
- **Bench:** B. K .. MuKHERJEA, S. · R. DAs, Bhagwati, fAG~N"!ADffA DA~, Venkatarama Ayya~
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-26-387
- **Pages:** 18

## Headnote

Constitution · of· lndia...:_Article Jll-Compulsory retirement-"
Whether amounts to' dismissal or r.emoval within the meaning of the
Articly-Civil . Serv1:ce
J?.egulations-Article
465-A
a,nd
Note
1
appended thereto-Interpretation of-Rule 4 of the new Rules published in 1919-Government of India Act, Section 96-B.
·
He!/ that Artide 465-A and Note 1 thereto of the Civil
Service !{egulatio'ns tel~ting to
the
retlnng
pensions
of officers
was
applicable to
the
appellant Who was employed in 1923 as a
member of.'the Indian Service of ·Engineers because Rule 4 of the
new Rules published by the Government of India on 15th Novem~
ber, 1919,
providing for compulsory retirement of any
officer after
the con1pletion of 25 years' service was validated and confirmed by
section 96-:B-"of the
Government of India
Act, 1919, which came
into force.on 23rd December,. 1919, and the language of Note 1 to
Article 465,A published in 1920
clearly indicates that the Government's right to co!npulsorily retire an officer .was not derived from
Note 1 as Note 1 assumed its eXistence aliunde 'and the Government's right was'
derived from new l{ule 4
published
on 15th
November; 1919.
•
--
Held also, ·that· a coinpuls6ry retirement under the Civil Services (Classification:, Control and :Appeal)
Rules, does not amount
to dismissal or
ren1oval withiμ the meaning 0£ Article· 311 of the
Constitution and therefore does
not f:all \Vithin the provisions
of
the said Article.
·
'
......
The word "removal" used synonymously \vith the term "dismissal" . generally implies that the· Officer is regarded as in some
manner
blan1e\vorthy) or
defiGient.
The · action of removal is
fouoded on some ground pe.rsonal
to the officer and
there is a
levelling
of so1ne in1putation or charge against him.
But there is
no su.ch' ele'ment of ·ch<1;rge qr 'imputat.ion in -the cacse ,of c9mpuls0ry
retirement: · In other words a: compulsory· retirement does not involve ati.y stlgn1a·or ·implication of ·misbehaviou·r or incapacity.·
·' Dismissal or removal is
a punishment and involves loss of
benefit already earned. The Officer, dismissed· or removed, does not
get
pension; •Which .he. has earned.
On compulsory retirement the
Officer \vill be entitled to the pension that he has actually earned
and there is no diminution of the accrued benefit.
Rangachari v. Secretary of State (L.R. 64 I.A. 40; A.LR. 1937
P.C. 27) ; Venkata Rao v. Secretary of State (L.R. 64
I.A. 55;
A.LR. 1937 P.C. 37) ; I.M. Lat's case (LR. 75 I.A. 225 ; A.LR. 1948
'
•
--·
-
•
S.C.R.
SUPREME COURT REPORTS
27
P.C. 121); Satischandra Anand v. The Union of India (1953 S.C.R.
655 at p. 659) referred to.
C1VIL
APPELLATE
JuRISDICTION:
Civil
Appeal
No. 248 of 1953.
Appeal under Article 132(1) of the Constitution of
India from the Judgment and Order dated the 1st
October, 1953, of the High Court of Judicature at
Allahabad in Civil Miscellaneous Writ No. 379 of 1953.
N. C. Chatterjee (P. K. Chatterjee, with him) for the
appellant.
C. K. Daphtaray Solicitor-General for India, K
L.
Misra, Advocate-General of Uttar Pradesh
( C. P. Lal,
with them) for respondent No. 1.
C. K. Daphtary, Solictor-General for
India
(Porus
A. Mehta, with him) for respondent No. 2.
,
1954. March 30. The Judgment of the Court was
delivered by
DAs J.-This appeal arises out of an application
made by the appellant to the High Court of Allahabad
under article 226 of the Constitution praying for an
appropriate writ quashing the order made by the President of India on the 17th April, 1953, ordering the compulsory retirement of the appellant who had completed
25 years' qualifying service. The High Court by its
judgment dated the 1st October, 1953, dismissed the
application but,
as
the case involved a substantial
question of the interpretation of the Constitution, the
High Court granted leave to the appellant to appeal to
this Court.
The material facts may be shortly stated as follows :
The appellant passed his Civil Engineering degree
examination from the Thomason College

## Text

_Characters 0–39,320 of 40,348. This is a partial read: ask again with offset=39320 for what follows._

1954
March 3o.
26
. ·.~
. •I'
SUPREME COURT RE'.PORTS
"
.,
1SHYAM.LAL
v .
. L THE STATE OF UT1'AR PRADESH
2. THE UNION OF INDIA
[1955)
..
[B. K .. MuKHERJEA, S. · R.
DAs, BHAGWATI,
fAG~N"!ADffA DA~ and VENKATARAMA AYYA~ JJ.)
Constitution · of· lndia...:_Article Jll-Compulsory retirement-"
Whether amounts to' dismissal or r.emoval within the meaning of the
Articly-Civil . Serv1:ce
J?.egulations-Article
465-A
a,nd
Note
1
appended thereto-Interpretation of-Rule 4 of the new Rules published in 1919-Government of India Act, Section 96-B.
·
He!/ that Artide 465-A and Note 1 thereto of the Civil
Service !{egulatio'ns tel~ting to
the
retlnng
pensions
of officers
was
applicable to
the
appellant Who was employed in 1923 as a
member of.'the Indian Service of ·Engineers because Rule 4 of the
new Rules published by the Government of India on 15th Novem~
ber, 1919,
providing for compulsory retirement of any
officer after
the con1pletion of 25 years' service was validated and confirmed by
section 96-:B-"of the
Government of India
Act, 1919, which came
into force.on 23rd December,. 1919, and the language of Note 1 to
Article 465,A published in 1920
clearly indicates that the Government's right to co!npulsorily retire an officer .was not derived from
Note 1 as Note 1 assumed its eXistence aliunde 'and the Government's right was'
derived from new l{ule 4
published
on 15th
November; 1919.
•
--
Held also, ·that· a coinpuls6ry retirement under the Civil Services (Classification:, Control and :Appeal)
Rules, does not amount
to dismissal or
ren1oval withiμ the meaning 0£ Article· 311 of the
Constitution and therefore does
not f:all \Vithin the provisions
of
the said Article.
·
'
......
The word "removal" used synonymously \vith the term "dismissal" . generally implies that the· Officer is regarded as in some
manner
blan1e\vorthy) or
defiGient.
The · action of removal is
fouoded on some ground pe.rsonal
to the officer and
there is a
levelling
of so1ne in1putation or charge against him.
But there is
no su.ch' ele'ment of ·ch<1;rge qr 'imputat.ion in -the cacse ,of c9mpuls0ry
retirement: · In other words a: compulsory· retirement does not involve ati.y stlgn1a·or ·implication of ·misbehaviou·r or incapacity.·
·' Dismissal or removal is
a punishment and involves loss of
benefit already earned. The Officer, dismissed· or removed, does not
get
pension; •Which .he. has earned.
On compulsory retirement the
Officer \vill be entitled to the pension that he has actually earned
and there is no diminution of the accrued benefit.
Rangachari v. Secretary of State (L.R. 64 I.A. 40; A.LR. 1937
P.C. 27) ; Venkata Rao v. Secretary of State (L.R. 64
I.A. 55;
A.LR. 1937 P.C. 37) ; I.M. Lat's case (LR. 75 I.A. 225 ; A.LR. 1948
'
•
--·
-
•
S.C.R.
SUPREME COURT REPORTS
27
P.C. 121); Satischandra Anand v. The Union of India (1953 S.C.R.
655 at p. 659) referred to.
C1VIL
APPELLATE
JuRISDICTION:
Civil
Appeal
No. 248 of 1953.
Appeal under Article 132(1) of the Constitution of
India from the Judgment and Order dated the 1st
October, 1953, of the High Court of Judicature at
Allahabad in Civil Miscellaneous Writ No. 379 of 1953.
N. C. Chatterjee (P. K. Chatterjee, with him) for the
appellant.
C. K. Daphtaray Solicitor-General for India, K
L.
Misra, Advocate-General of Uttar Pradesh
( C. P. Lal,
with them) for respondent No. 1.
C. K. Daphtary, Solictor-General for
India
(Porus
A. Mehta, with him) for respondent No. 2.
,
1954. March 30. The Judgment of the Court was
delivered by
DAs J.-This appeal arises out of an application
made by the appellant to the High Court of Allahabad
under article 226 of the Constitution praying for an
appropriate writ quashing the order made by the President of India on the 17th April, 1953, ordering the compulsory retirement of the appellant who had completed
25 years' qualifying service. The High Court by its
judgment dated the 1st October, 1953, dismissed the
application but,
as
the case involved a substantial
question of the interpretation of the Constitution, the
High Court granted leave to the appellant to appeal to
this Court.
The material facts may be shortly stated as follows :
The appellant passed his Civil Engineering degree
examination from the Thomason College, Roorkee, in
1922. He stood first in order of merit and carried
away the Gold Medal and other prizes awarded to the
best student of that year. He was appointed by the
Secretary of State for India in Council to the Indian
Service of Engineers as an Assistant Executive Engineer
with effect from the 20th October, 1923. The conditions
governing the appellant's terms
of appointment, promotion, leave, pension, etc., will be found recorded in
3-86 S. C. India/59
1954
Shyam Lal
v.
The State of Uttar
Pradesh and
The Union
of India.
Das].
1954
Shyam LO.l
v.
TM State of Uttar
Pradtsh and
The -UnioR
of India
Das].
28
SUPREME COURT REPORTS
a letter issued from India Office, London, on the 13th
February, 1924.
A copy of that letter is
annexed to
the petition filed under article 226. He was posted in
the United Provinces. In 1944 the appellant was
promoted to the rank of officiating Superintending Engineer.
After the attainment of independence by
India
a fresh agreement was entered into by and between the
appellant,
the Governor of the United ·Provinces .and
the Governor-General of India on the 16th September,
1948,
confirming the appellant's terms of appointment
contained in the letter of the .13th February,
1924. At
or about this
time the appellant along with several
other officers was ·recommended by the Chief Engineer
for confirmation
as
Superintending
Engineer. The
appellant, ·however, was not confirmed but continued
to officiate as Superintending Engineer until the time
hereinafter stated.
On ·the 4th January,
1950,
the
Public Works Department of the U. P. Government
addressed
a letter to the Chief Engineer, Irrigation
Branch, U. P. requesting him
to
communicate the
letter enclosed therewith to the appellant and to ask
him to submit as early as possible whatever explanation he might desire to give. The enclosed letter called
upon the appellant to show ·cause within three weeks
why he should not ·be compulsorily
retired under the
provisions of article 465-A, Civil Service Regulations, as
it appeared ( 1) that he had been making systematic
and gross overpayments
apparently for no other reason
than to benefit the contractors concerned and (2) that
he had spent large amounts of public money for his
own personal convenience and (3) that he had taken
recourse ·to devious and unscrupulous methods. No
less than ·six instances on Which these charges were
based were then set out. The covering letter concluded
with the •following ·remarks.:
"Under the rules Government reserVe
the fight to
compulsorily
retire
any
·officer
whose
retention in
serviae they consider not to be in the public interest.
This js not, therefore, a formal enquiry under the. Classification,
Control and Appeal Rules· but before . taking
the action ·indicated above
Government were pleased
to afford ·an opportunity
to Shri· Shyam Lil, I.S.E.,
•
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)
S.C.R.
SUPREME COURT REPORTS
29
to show cause why he should not be compulsorily
retired."
A copy of the letter of the 4th January 1950, together with a copy of the enclosure was sent to the
appellant with the request that his
explanation might
be forwarded within the period mentioned by
the
Government.
The appellant
submitted his explanations which, together with the
Chief Engineer's comments thereon, were placed before the Union Public
Service Commission. The Commission came to the conclusion that five out of the six charges had been groved
and submitted their report
accordingly.
On the
17th
April, 1953, the President, after considering the
case
and the recommendations of the Commission, decided
that the appellant should retire forthwith from service
under Note 1 to article 465-A of the Civil Service Regulations.
Before this order could be served
on him
the appellant on the 24th April, 1953, filed before the
Allahabad High Court a petition under article 226
of
the Constitution praying that the order made by
the
President on the 17th April,
1953, be quashed on the
ground, inter alia, that the order was illegal and void
in that it was made without affording him any opportunity to show cause against the action proposed to be
taken in regard to him. As already stated, the High
Court dismissed the application on
the
1st
October,
1953. The present appeal is directed against that order
of dismissal.
The order of the President which is impugned by the
appellant shows that action was purported to be taken
in regard to the appellant under Note 1 to article 465-A
of the Civil Service Regulations. Chapter XVIII of . the
Civil Service Regulations deals with Conditions of Grarit
of Pension.
Article 465-A
appears
m
that
Chapter
under section V the heading of which is "Retiring Pension." There are two notes appended to the article of
which the first one is important for
our preserit purpose. The relevant ·part of article 465-A and Note 1
thereto are set out below :-
"465-A. For officers mentioned in article 349-A, the
rule for the grant of retiring pension is as follows :
1954
'Shyam Lal
v.
The State of Ultra
Pradesh and
The Uni1n
of India
Das].
1954
Shyam Lal
v.
The State of Uttar
Pradesh and
The Union
of India.
Dasj.
30
SUPREME COURT REPORTS
[1955]
(1) ................................................... .
.......................................................
(2) A retiring pension is also granted to an officer
who is required by Government to retire after
completing twenty-five years' qualifying service or more.
Note 1.-Government retains an absolute right to
retire any officer 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 an officer."
Officers of the Indian Service of Engineers are included amongst the officers mentioned in article 349-A of
the Civil Service Regulations.
The contentions urged before us are that the President's Order of the 17th April, 1953, is invalid and
inoperative for the following reasons:
(i) that article 465-A of the Civil Service Regulations is not applicable to or binding on the appellant ;
(ii) that compulsory retirement is nothing but
removal from service and the provisions of article 311
of the Constitution apply to the case of compulsory
retirement ;
(iii) that Note 1 to article 465-A of the Civil Service Regulations, in so far as it confers on the Government an absolute right to retire an officer who has
completed twenty-five years'
qualifying service without
giving any reason, is repugnant to article 311 of the
Constitution.
It will be necessary to deal with the above points
seriatim.
Re. (i) .-It will be remembered that the appellant
was employed by the Secretary of State in Council in
October, 1923,
that is to say, after the Government of
India Act,
1919, came into operation. Sub-section
( 4)
of section 96B of that Act provided, for removal of
doubts, that all rules in operation at the time of the
passing of that Act, whether made by the Secretary of
State in Council or by any other authority, relating to
'·
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-
•.
)
(
..
•
-
-
J
S.C.R.
SUPREME COURT REPORTS
31
the Civil Service of the Crown in India, were duly made
in accordance with the powers in that behalf and it
confirmed the same. But it is urged that as there is nothing to show that article 465-A of
the Civil Service
Regulations was in nperation at the time of the passing
of the Government of India Act, 1919, and that as all
that has been shown is only that the article in question
was amended and brought up to its present form in
1922 it cannot be said to have been validated by subsection ( 4) of section 96B. Reference is then made to
sub-section (2) of that section which empowered the
Secretary of State in Council to make
rules for regulating the classification of the Civil Services in India, the
methods of their recruitment, their conditions of service,
pay and allowances, and discipline and conduct
and, by such rules,
to delegate the power of making
rules to the Governor-General m Council or to local
Governments or to authorise the Indian Legislature
or local Legislatures to make laws regulating the public services. It 1s pointed out that sub-section (2) did
not empower the Secretary of State in Council to delegate the power to make rules
concerning pensions
to
any authority in India. Our attention
1s next drawn
to sub-section (3) of section 96B which specially safeguarded the interests of the civil servants employed
by the Secretary of State m Council by providing that
their right to pensions and the scale and conditions of
pensions should be regulated m accordance with the
rules in force at the time of the passing of that Act and
that, although such rules might be varied or added to
by the Secretary of State in Council, such variations
or additions should not adversely affect the pension of
any member of the service appointed before the date
thereof. It is urged that not only has article 465-A not
been shown to have been in force at the time of the
passing of the Government of India Act, 1919, it has
also not been shown to have been made by the Secretary
of State in Council. In the premises, it is contended
that article 465-A which ts set out in section V of
Chapter XVIII of the Civil Service Regulations and
deals with retiring pensions and has presumably been
made by the Governor-General in Council cannot be
1954
Shyam Lal
v.
The State of Utlar
Pradesh and
The Union
of India.
Das].
19541
Shyam Lal,
v,,
The ~state. of· Uttar
Pradesh and,
Tiu Unia1i.
of India.
Das].
32'
SUPREME. COURT REPORTS
[1955]
supporte& as a valid rule under sub"sections (2), (3) or
(4) of section 96B and can· have no application to the
appellant who was appointed by the Secretary of State
in Council and• consequently the order of the President
made m accordance with Note l to that article is
illegal and void.
The above line of reasoning found favour with the
High Court but nevertheless the High Court repelled
the conclusions sought to be established by it on the
ground that rule 7 of the Civil Services (Classification,
Control and Appeal) Rules read with rule 26 of those.
Rules
impressed the
stamp of validity upon article
465-A of the Civil Service
Regulations and made it
applicable to the All India Services. Learned
counsel
for
the appellant challenges the correctness of the
decision of the High Court in so- far as it is founded on
a construction of rules 7 and 26 of the Civil Services
(ClassifiGation, Control and Appeal) Rules which were
first
made in December, 1920, and were again published in
1930 with subsequent amendments. While
agreemg with learned counsel that there is some force
in his contention that the construction put upon rule 7
may not be quite cogent or convincing we do not consider it necessary to express any final opinion on that
matter, for, in our judgment, the major premise assum:
ed by the High Court that Note 1 to article 465-A has
no application to the appellant cannot be supported
or sustained.
It appears that by Resolution No. 1085-E.A. passed
on the 15th November, 1919, and published in the
Gazette 0£ India on the same date the Government of
India, Finance Department, with
the approval of the
Secretary of State for India, announced certain new
rules relating to retiring pensions . of the officers (other
than · military officers or members of the ·Indian Civil
Service). and the services specified therein. The ·services so specified included the ·Public W arks Depart~
ment; ... The new rules were, by rule 1, made. to. apply.
only. to
officers joining the above
service~ after . the
29th. August, . · 1919, and ·to those existing officers . who
elected. ih writlng
to come • under . their provisions.
Tlie appellant was emp'!oyed
i~ October, 19Z3, and
)
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S.C.R.
SUPREME COURT REPORTS_
33.
consequently these new rules applied to him. The material part of rule 4 of these new rules was as follows :-
"Government will have an absolute right to retire
any officer after he. has
completed twenty-five
years'
service, without necessity to give reasons and without
any claim for compensation in addition to pension, and
in that event ..... ; ........ "
These rules which came into force on their publication in the Official Gazette of the 15th November,
1919, were,
therefore, in operation on the 23rd December,
1919, when the Government of India Act, 1919,
was passed and were accordingly validated and confirmed by sub-section ( 4) of section 96B of that Act to
which reference has already been made. The rules thus
confirmed by section 96B( 4) became applicable to the
appellant on his employment by the Secretary of State
in October, 1923.
In Resolution No. 714-C.S.R. dated the 10th May,
1920, it was announced that with a view to the exact
s.cope of the new pension rules published in Resolution
No. 1085-E.A. dated the 15th November, 1919, being
made clear the Government of India intended to publish those rules in the form of amendments to the Civil
Service
Regulations.
Accordingly
Resolution
No.
1003-C.S.R. dated the 18th
June,
1920, along with
certain amendments to the Civil Service
Regulations
were published in the Gazette of India of the 19th
June,
1920, for general information. The amendments
so
published provided for the insertion in
the Civil
Service Regulations of a new article 349-A stating that
the rules
in certain articles including article 465-A
would apply to officers in the services specified therein.
The services so specified
included the Public Works
Department. The amendments also provided for
the
insertion in the Civil
Service Regulations, amongst
others, of a new rule as article 465-A with two notes
appended thereto. Omitting clause (1) and note (2)
which are not relevant for our present purpose that
article read as follows :
"465-A.-For officers mentioned in ·article 349-A the
rule for the grant of retiring pension is as follows :_:_
1954
Shyam Lal
v ..
The State of Uttar
Pradesh arul
The Union
of India.
Das].
1954
Shyam Lal
v.
The State of Uttar
Pradesh and
Tm Union
of India.
Das] •.
34.
SUPREME COURT REPORTS
[1955]
(1) ............................................... .
( 2) A retiring pension is also granted to an officer
who is required by Government to retire after completing twenty-five years' service or more.
Note 1.-Government retains an absolute right to
retire any officer after he has completed twenty-five
years'
service
without giving
any
reasons and no
claim to spei:ial compensation on this account will be
entertained."
It will be noticed that clause (2) and Note 1 quoted
above are word for word the same as c!ause (2) and
Note 1 of article 465-A as we find i'< now except that
the last sentence in Note 1 m the present rule was
not in article 465-A Note 1 when it was published in
1920.
It seems that this addition was subsequently
made by amendment in 1922 as referred to in the High
Court judgment under appeal.
It is contended by learned counsel for the appellant
that article 465-A and Note 1 thereto came into force
only in June, 1920, that is to say, after the Government
of India Act, 1919, had been passed and therefore cannot be said to have been confirmed by section 96B (4)
and being a pension rule made after the date of that
Act but not being a rule made by the Secretary of State
in Council it cannot under section 96B (3) apply to the
appellant who was employed by the Secretary of State.
We are unable to accept this argument as sound. As
already stated,
the new rules were announcea by Resolution No. 1085-E. A. passed and published on the 15th
November, 1919, and were in force on the 23rd December, 1919, when the Government of India Act,
1919,
was passed and consequently acquired
statutory force
by virtue of section 96B ( 4) of that Act. The subsequent Resolution No. 714-C.S.R.
dated the 10th May,
1920,
and Resolution No. 1003-C.S.R. referred to above
did not and could not affect the validity or for.ce of the
new rules announced on the 15th November, 1919. The
purpose of publishing the new rules in the form of
amendments to the Civil Service
Regulations, as Resolution No. 714-C.S.R. itself stated expressly, was
only
to clarify
the exact scope of those new rules and not,
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+
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f
S.C.R.
SUPREME COURT REPORTS
35
as suggested by learned counsel for the appellant, to
bring them into force for the first time. The new rules
came into operation ex proprio vigore on their publication
in the official Gazette on the 15th November, 1919, and
their subsequent publication for general information in
the form of amendment to the Civil Service Regulations only served to make their exact scope clear. The
real purpose of the incorporation of these rules in the
Civil Service Regulations was
not to make any new
rule at the date of such incorporation but to distribute
and post up the rules announced m November, 1919,
at appropriate places in the Civil
Service
Regulations
for ready reference. A comparison of the language used
in Note 1 to article 465-A with that employed in new
rule 4 announced
by Resolution No. 1085-E.A. dated
the 15th November, 1919, will also make it clear beyond
doubt that the purpose of Note 1 is not to confer on
the Government any new right to
compulsorily retire
an officer on completion by him of twenty-five years'
service but that it is intended to serve as a reminder
that the Government already has such right which it
means to "retain". One "retains" only what one already
possesses and the word "retain" is wholly inappropriate
for the purpose of conferring a fresh right. The last
sentence of Note 1 is only an administrative
direction
as to when the existing right of the Government is to
be exercised.
Indeed, article 1 m Chapter I of the
Civil
Service
Regulations
clearly provides
that the
regulations therein are intended only to regulate salaries,
leave, pension and other allowances and that they
do not deal otherwise than indirectly with matters relating to recruitment, promotion, official
duties,
discipline or the like.
In short, the language of Note 1 to
article 465-A makes it abundantly clear that the Government's right to compulsorily retire an
officer
1s
not
derived frorr. Note 1. Note 1 only asssumes its existence
aliunde and indicates when that existing right is to be
exercised and what consequences are to follow if that
right is exer:ised. That right is obviously derived from
new rule 4 which was announced by Resolution No.
1085-E.A. on the 15th November, 1919. Being in operation at the date of the passing of the Government of
1954
Shyam Lal
v.
The State of Uttar
Pradesh and
The Union
of India.
Das].
1954
Shyam Lal
V;
T ht State of· Uttar
Pradesh and·
The Union
of lhdiQ.
Das];
36
SUPREME COURT REPORTS
[1955].
lhdia Act,
191.9, that rule, by virtue of _ sub-section ( 4)
of section 96B of that Act,. became binding on tlie
appellant althoμgh he was employed by the
Secretary
of State for India. We, therefore, agree with the High
Court, though. on different grounds, that the first' question raised by the appellant must be answered
against
him. It is unfortunate that the Gazette of India notifications of the several earlier resolutions referred to
above were not made available to the High. Court.
Re. (ii) and (iii) .-It will be convenient to deal with
these two questions together. Learned counsel for the
appellant urges that even assuming that rule 4 announced by. Resolution No. 1085-E.A. and on which Note 1
to article 465-A of the Civil Service Regulations
was
based had, on the passing of the Government of India:
Act,
1919, become binding on the appellant,
it nevertheless became void on the coming into operation of
the Constitution of India by reason of its being repugnant to the provisions of article 311 of the Constitution.
The argument 1s that a compulsory retirement of an
officer was nothing but his removal from service within,
the meaning of article 311 and as rule 4 as well as Note
1 to article 465-A
of
the . Civil
Service
Regulations
sanctioned
compulsory
retirement without
a:ss1gmng·
any reason which, in substance, meant without g1vmg
him any opportunity to show cause against such action
being taken in regard to him, it became repugnant
toarticle 311 of the Constitution and, therefore, became
void. The argument, although plausible and attractive,.
was nevertheless rejected by the High Court and we·
think it rightly did so. A brief study of the history
and development of the rule
now embodied in artick
311 and a consideration of the language of that article·
and the relevant
rules will amply confirm the. correctness of this conclusion.
In England the rule was well established from very·
early times that public offices were held at the pleasure
of the Crown. The English constitutional theory was
th.at the King could do no wrong and accordingly the
services of a civil servant could be terminated 'without
assigning any reason and no action ~ould be
maintained in the King's Courts for damages for wrongful
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SUPREME COURT REPORTS
37
dismissal. This principle appears to have been applied
even to the servants of the East India Company and
certainly to the civil servants after the British Crown
took over the territories and the administration · there"
of from the East India Company. This state of affairs
continued until 1919 when section 96B of the Government of India Act,
1919, while maintaining that the
tenure was during His Majesty's pleasure, introduced a
minor restriction on this power of dismissal. The relevant portion of sub-section (1) of that section was in the
terms following :-
"96B. (1) Subject to the provisions of this Act and
of rules made thereunder, every person in the civil
service of the Crown in India holds office during His
Majesty's pleasure, and may be
employed in any manner required by a proper authority within the scope of
his duty, but no person in that service may be dismissed by any authority subordinate to that by which he
was
appointed, and the Secretary of State in Council
may (except so far as he may provide by rules • to the
contrary) reinstate any person in that service who has
been dismissed.
,,
The rest of the sub-section need not be quoted. As
already stated, sub-section ( 4) of this section validated
and confirmed the then existing rules and
sub-section
(2) gave power to the Secretary of State for India m
Council to make rules for regulating the classification
of the civil services m India, the methods of their
recruitment, their conditions of service, pay _and allowances, and discipline and conduct. In exercise of this
power the Secretary of State for India in Council framed certain rules in December, 1920, which with subsequent modifications were published on the 27th May,
1930, as "The Civil Services (Classification, Control and
Appeal) Rules." Rule 49 provides :
·
"49. The following penalties may, for good
and
sufficient reason and as hereinafter · provided, be imposed upon members of the services1 comprised in. any
of the classes (1) to (5) specified in rule 14, namely:-
~i}1 Censure .
. . . . . . .
.
' ,
1954
Shyam
L~l
v.
The State of Uttar
Pradesh and
The Union
of India.
Das].
1954
Shyam Lal
v.
The State of Utt"'
Pradesh and
The Union
of India.
Das].
38
SUPREME COURT REPORTS
[1955]
(ii) Withholding of increments or promotion, including stoppage at an efficiency bar.
(iii) Reduction to a lower post or time-scale, or to a
lower stage in a time-scale.
(iv) Recovery from pay of the whole or part of any
pecuniary loss caused to Government by
negligence or
breach of orders.
( v) Suspension.
(vi) Removal from the civil service of the Crown,
which does not disqualify from future employment.
(vii) Dismissal from the civil service of the Crown,
which ordinarily disqualifies from future employment.
[Explanation.-The termination of employment-
( a) of a person appointed on probation during or
at the end of the period of probation, in accordance
with the terms of the appointment and the rules governing the probationary service ; or
(b) of a temporary Government servant appointed
otherwise than under contract, in accordance with rule
5 of the Central Civil Services
(Temporary Service)
Rules, 1949 ; or
( c) of a person engaged under a contract, in accordance with the terms his contract does
not amount to
removal or dismissal within the meaning of this rule or
of rule 55].
The relevant portion of rule 55 runs thus :-
"55. Without prejudice to the
provisions
of
the
Public Servants Inquiries Act,
1850, no order
of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts
which had led to his conviction in a criminal Court or
by a Court martial)
unless he has been informed in
writing of the grounds on which it is proposed to take
action, and has been afforded an adequate opportunity
of defending himself .............................. " .
The rest of this rule which lays down the details of
procedure to be followed need not be quoted for our
present purpose. Under article 353 of the Civil Service
Regulations, no pension may be granted to an officer
dismissed or removed for
misconduct,
insolvency or
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SUPREME COURT REPORTS
39
1954
Shyam Lal
v.
inefficiency, but to officers so dismissed or removed
compassionate allowances may be granted when they c
are deserving of special consideration, provided that
such allowance shall not exceed two-thirds of the pension which would have been admissible to him if he had
retired on medical certificate.
[ The State of Uttar
Pradesh and
The Union
It will be noticed that the rules just referred to contemplate and provide for both
dismissal and removal
from service. As regards pension both dismissal and
removal stand on the same footing, namely, that both
of them entail loss of pension and even when a compassionate allowance is granted in either case such allowance is much less than the pension that had been earned.
The only difference between dismissal
and removal is
that while dismissal ordinarily disqualifies
the
officer
from future employment, removal does not. It may
also be mentioned here that although the power of dismissal at pleasure was "subject to the provisions of
this Act and of the rules made thereunder" the Judicial
Committee held in Rangachari v. Secretary ofi State(1)
and
in Venkatarao v. Secretary of State (2)
that those opening words of section 96B(l) did not qualify the unfettered discretion of the Crown to dismiss a servant at
pleasure and that the remedy of the servant for the
violation of the rules was not by a law suit but by an
appeal of an official or political kind.
Then came the Government of India Act, 1935. Section 240 is important for our purpose. The relevant
portions of that section were as follows :
"240. (I) Except
as
expressly provided by this
Act, every person who is a member of a civil service of
the Crown in India, or holds any civil post under the
Crown in
India, holds office during His Majesty's
pleasure.
(2) No such person as aforesaid shall be dismissed
from the service of His Majesty by any authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be
dismissed
or reduced in rank until he has been given a reasonable
(1) L.R.64 I.A. 40; A.I.R. 1937 P.C. 27.
(2) L.R. 64 I.A. 55; A.I.R. 1937 P.C. 37.
ef India.
Das].
1954
S~yam Lal
v.
The State of Ultar
"Pradesh and
The Union
of India.
Das].
40
:SUPREME '.COUR!f •REPORTS
['1955]
ro11por.tunity of showing . cause .against the action .proposed to be taken in regard to him."
The rest of the section ·is not material for the present
.discussion.
In short,
sub.,section
(1)
reiterated
the
English constitutional
theory,
sub-section
(2)
reproduced the restriction introduced by section 96B ( 1) of
the 1919 Act and sub-section (3) gave statutory protection to the rights conferred by rule 55 of the Civil Services
(Classification, Control and Appeal) Rules but
which, prior to this Act of 1935, had been held by the
Privy Council in the two last cited cases .to be ineffective against the Crown's plenary .power of dismissal.
It will, however, be noticed that in sub-section (3) the
word "removed" was
not used, although that word
occurred in rule 55 and the other rules quoted above.
It was, however, held in 1. M. Lat's case(')
that removal was within section 240(3), which conclusion implies
that removal
is comprised within dismissal. The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial
Committee there is
no distinction between a .dismissal
and a removal except that the former disqualifies from
future .employment while the latter does not.
Finally, we have our new Constitution. Article 310(1)
reiterates
the
constitutional theory of the tenure
of
office being during the pleamre of the President, the
Governor or Rajpramukh as the case
may be. Article
311 ( 1) reproduces the provisions of sectiqn 240(2)
of
the Government of India Act, 1955. Clause (2) of article 311, leaving out the proviso, runs thus :
"(2). No such person aforesaid
shall be dismissed,
removed or reduced in rank until he has been given a
reasonable ·opportunity of showing cause
against the
action proposed to be taken in regard to him."
The word "removal" which is used in the rules is
also used in this clause and it may· safely be taken, for
reasons
stated above,
that under the ·Constitution removal and dismissal stand on the same
footing except
as to future employment.
In this sense removal is but
a species of dismissal. Indeed, in our recent decision
(1) L.R. 75 I.A. 225; A.LR. 1948'P:C. 121 ..
.
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SUPREME COURT REPORTS
41
. in Satischandra Anand v. The Union of India( 1 ) it has
·been said that these terms have been used in the same
sense in article 311.
Removal, like dismissal,
no doubt brings about a
termination of service but every termination of
service
does not amount to ·dismissal or removal. A reference
to the Explanation to rule 49 quoted above will show
that several kinds of termination of servJCe do not
amount to removal or dismissal.
Our recent decision
m Satishchandra Anand v. The Union of India (supra)
fully supports the conclusion that article 311 does not
apply to all cases of termination of service.
That was
a case of a contract for temporary service being terminated by notice under one of the clauses of the contract
itself and fell within clause ( c) of the Explanation to
rule 49 and article 311 was held 'by this Court not to
have any application to the case.
The question
then
is whether a termination of service brought about by
compulsory retirement is tantamount to a dismissal or
removal from service so as to attract the provisions of
article 311 of the Constitution.
The answer
to
the
question will depend on whether the nature and incidents of the action resulting m dismissal or removal
are to be found in the action of compulsory retirement.
There can be no doubt that removal-I am using the
term
synonymously with dismissal-generally implies
that the officer
1s regarded as in some manner blameworthy or deficient, that is to say,
that he has
been
guilty of some misconduct or is
lacking in ability or
capacity or the will to discharge his duties as he should
do. The action of removal taken against him m such
circumstances is thus founded and justified on some
ground personal to the officer. Such grounds, therefore,
involve
the levelling of some imputation or charge
against the officer which may conceivably be controverted or explained by the officer. There 1s no
such
element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory
retirement are that the officer has
completed
twenty~
five years' service and that it is in the public interest
to dispense with his further services. It is
true that
.
(1) [1953] S.C.R. 655 at p. 659.
1954
Shyam Lal
v.
The State of Uttar
Pradesh and
The Union
of India.
Das].
1954
S/filam Lal
v.
The State of Uttar
Pradesh and
The Union
of India.
Das].
42
SUPREME COURT REPORTS
(1955]
this power of compulsory retirement may be used when
the authority exercising this power cannot substantiate
the misconduct which may be the real cause for taking
the action but what is important to note 1s that the
directions in the last sentence in Note 1 to article 465-A
make it abundantly clear that an imputatiori or charge
is not in terms made a condition for the exercise of the
power. In other words, a compulsory retirement has
no stigma or implication of misbehaviour or incapacity.
In the present case there was no doubt some imputation against the appellant which he was called upon to
explain but it was made perfectly clear by the letter of
the 4th January, 1950, that the Government was not
holding any formal enquiry under rule 55 of the Civil
Services (Classification, Control and Appeal) Rules and
that before taking action for his compulsory retirement
the Government desired to give him an opportunity to
show cause why that action should not be
taken. In
other words, the enquiry was to help the Government
to make up its mind as to whether it was in the public
interest
to dispense
with his
services. It follows,
therefore, that one of the principal tests for determmmg whether a termination of service amounts to
dismissal or removal is absent in the case of compulsory
retirement.
Finally, rule 49 of the Civil Services (Classification,
Control and Appeal) Rules clearly indicate
that dismissal or removal is a punishment. This is imposed on
an officer as a penalty. It involves loss of benefit
already earned. The officer dismissed or removed does
not get pension which he has earned. He may be
granted a
compassionate allowance
but that,
under
article 353 of the Civil Service Regulations, 1s always
less than the pension actually earned and is
even less
than the pension which he would have got had he retired on medical certificate. But an officer who is compulsorily retired does not lose any part of the benefit
that he has earned. On compulsory retirement he will
be entitled to the pension etc. that he has actually
earned. There is no diminution of the accrued benefit.
It is said that compulsory retirement. like dismissal or
removal, deprives the officer of the chance
of serving
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SUPREME COURT REPORTS43·
and getting his pay till he attai~s the age of superannuation and thereafter to get an enhanced pension and
that is certainly . a punishment. It is true that in that
wide sense the officer may
consider himself punished
but there 1s a clear distinction between the loss
of
benefit already earned and the loss of prospect of earning something more. In the first case it is a present
and certain loss and is certainly a punishment but the
loss of future prospect is too uncertain, for the officer
may die or be otherwise
incapacitated froin serving a
day longer and cannot, therefore, be regarded in thr.
eye of the law as a punishment. The more important
thing is to see whether by compulsory retirement the
officer loses the benefit he has earned as he does by dismissal
or removal.