# P.R. NAYAK v. UNION OF INDIA - **Citation:** [1972] 2 S.C.R. 695 - **Court:** Supreme Court of India - **Decided:** 1971-12-07 - **Bench:** S. M. S!Kri, J. M. Shelat, A. N. Ray, I. D. Dua D. G. Palekar, G. K. Mitter - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/p-r-nayak-v-union-of-india-5534 - **Pages:** 47 ## Headnote Civil Service-Member of Indian Civil Service-Suspension of. All hldia iervices (Dis~ipline and Appeal) Rules, 1969 r. 3--Scope of -If civil servant can be sHspellded when disciplinary proceedings are i11 contemplation. F11ndamental Rule5', rr. 56(!) and 56 (ff)-Scope of-If r. 56(/f) ultra .vires Art. 14 of the Constitution. The appellant was a member of the Indian Ci\il Service, .and under F.R. 56(f) he was due to retire on November 25, 1970. The question whether a prima facie case against him was made out with respect to cer·· tain charges was referred to a Commission under the Commission of Enquiries Act, 1952, in October 1970. On November 3, 1970, he expressed his willingness to accept extension of service by 4 months and hi~ service was extended till March 25, 1971. The appellant submitted his explanation to the Commission and the Commission after considering it, made an interim report in January 1971, that a prima facie case had been made out against the appellant. On March 23, 1971, an order was madC' under r. 3(l)(a) of the All India Services (D & A) Rules, 1969 saying "whereas disciplinary proceedings against Shri P. R. Nayak, I.C.S. are contemplated. . . . . . the President. . . . . . hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders .. " The appellant filed a petition for quashing the order of suspension but the High Court dismissed the petition. In appeal to this Court, it was contended that : (I) the order was violative of r. 3 of the All India Services (D & A) Rules; (2) Under P.R. 56(f) the date of retirement was fixed as rigid and the appellant.having retired on November 25, 1970 no further action could be taken against him as a member of the I.C.S.; (3) his retention in the post only amounted to b-employment; ( 4 f since he became Secrebry in the Ministry of Works, Housing and Urban Development in 1969 he should have been retained in that post for full 5 years till 1974 under the proviso to F. R. 56(f), and the extension for four months only was 11legal; (5) the order of suspension without specifically denying his request 10 retire on March 25, 1971, was defective; and (6) P.R. 56(ff)-by which an officer like the appellant under orders of suspension is not to be permitted to retire till the enquiry against him is concluded-is ultra vires. HELD: (Per S. M. Sikri, C.J .. I. M. Sbelat, I. D. Dua anti D. G. Palekar, JJ.) : The appeal ·must ·su~ceed on the first contention. !709 D-E) (a) There is no inherent power of suspension in Government, and the only rule on which reliance was placed for the appellant's suspension is r. 3 of the All India S-ervices (D & A) Rules. (714 B-C] (b) An order of suspension which does not adversely affect the rights and privileges of a Government Servant, but merely restrains him from discharging his official duties may be within the general inherent compc- 696 SUPREME COURT JlEPORTS [1972] 2 S.C.R. lence of the Government, but the impugned order seriously affects some of the appellant's rights and privileaes under the conditions of his service. namely; (i) During the period of suspension .he is not entitled to his fuli salary but only to some allowances; (ii) he is not permitted to retire; (iii) in order to get subsistence allowance he is prohibited from engaging in any other employment, profession or vocation and (iv) he is prohibited from leaving headquarters without prior permission of Government. Since these prejudicial consequences automatically flow from the order of suspension, the clear and explicit language of the rule must not be strained to the appellant's prejudice so as to authorise his suspension on mero cJntemplation of disciplinary proceedings. 1714 D-HJ Sub-rule (I) (a) of r. (3) empowers the Government which initiates any disciplinary proceeding to place under suspension a member of the service against who1n such proceedings are started. The language is plain and unambiguous and does not suggest that suspension can b ## Text _Characters 0–39,861 of 132,745. This is a partial read: ask again with offset=39861 for what follows._ A B c D E F G H P.R. NAYAK v. UNION OF INDIA December 7, 1971 69s; [S. M. S!KRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA D. G. PALEKAR AND G. K. MITTER, JJ.) Civil Service-Member of Indian Civil Service-Suspension of. All hldia iervices (Dis~ipline and Appeal) Rules, 1969 r. 3--Scope of -If civil servant can be sHspellded when disciplinary proceedings are i11 contemplation. F11ndamental Rule5', rr. 56(!) and 56 (ff)-Scope of-If r. 56(/f) ultra .vires Art. 14 of the Constitution. The appellant was a member of the Indian Ci\il Service, .and under F.R. 56(f) he was due to retire on November 25, 1970. The question whether a prima facie case against him was made out with respect to cer·· tain charges was referred to a Commission under the Commission of Enquiries Act, 1952, in October 1970. On November 3, 1970, he expressed his willingness to accept extension of service by 4 months and hi~ service was extended till March 25, 1971. The appellant submitted his explanation to the Commission and the Commission after considering it, made an interim report in January 1971, that a prima facie case had been made out against the appellant. On March 23, 1971, an order was madC' under r. 3(l)(a) of the All India Services (D & A) Rules, 1969 saying "whereas disciplinary proceedings against Shri P. R. Nayak, I.C.S. are contemplated. . . . . . the President. . . . . . hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders .. " The appellant filed a petition for quashing the order of suspension but the High Court dismissed the petition. In appeal to this Court, it was contended that : (I) the order was violative of r. 3 of the All India Services (D & A) Rules; (2) Under P.R. 56(f) the date of retirement was fixed as rigid and the appellant.having retired on November 25, 1970 no further action could be taken against him as a member of the I.C.S.; (3) his retention in the post only amounted to b-employment; ( 4 f since he became Secrebry in the Ministry of Works, Housing and Urban Development in 1969 he should have been retained in that post for full 5 years till 1974 under the proviso to F. R. 56(f), and the extension for four months only was 11legal; (5) the order of suspension without specifically denying his request 10 retire on March 25, 1971, was defective; and (6) P.R. 56(ff)-by which an officer like the appellant under orders of suspension is not to be permitted to retire till the enquiry against him is concluded-is ultra vires. HELD: (Per S. M. Sikri, C.J .. I. M. Sbelat, I. D. Dua anti D. G. Palekar, JJ.) : The appeal ·must ·su~ceed on the first contention. !709 D-E) (a) There is no inherent power of suspension in Government, and the only rule on which reliance was placed for the appellant's suspension is r. 3 of the All India S-ervices (D & A) Rules. (714 B-C] (b) An order of suspension which does not adversely affect the rights and privileges of a Government Servant, but merely restrains him from discharging his official duties may be within the general inherent compc- 696 SUPREME COURT JlEPORTS [1972] 2 S.C.R. lence of the Government, but the impugned order seriously affects some of the appellant's rights and privileaes under the conditions of his service. namely; (i) During the period of suspension .he is not entitled to his fuli salary but only to some allowances; (ii) he is not permitted to retire; (iii) in order to get subsistence allowance he is prohibited from engaging in any other employment, profession or vocation and (iv) he is prohibited from leaving headquarters without prior permission of Government. Since these prejudicial consequences automatically flow from the order of suspension, the clear and explicit language of the rule must not be strained to the appellant's prejudice so as to authorise his suspension on mero cJntemplation of disciplinary proceedings. 1714 D-HJ Sub-rule (I) (a) of r. (3) empowers the Government which initiates any disciplinary proceeding to place under suspension a member of the service against who1n such proceedings are started. The language is plain and unambiguous and does not suggest that suspension can be ordered merely because discipilnary proceedings are contemplated. The language of sub-rr. (4) to (7) also does not authorise suspension merely because disciplinary pro.ceedin_gs are contemplated. The scheme underlying r. 3 is indicative of the intention of the rule-making authority to restrict its operation lo those cases in which Government has sufficient material. ""1ether after preliminary investigation or otherwise, and the disciplinary proceedings have in fact commenced, and not merely when they are contemplated. [709 E-H; 710 A-CJ (d) The view taken in Tarak Nath Ghosh's case (A.I.R. 1971 S.C. 823). that under r. 7(1) of the All India Services (D & A) Rules, 1955replac.ed by the present r. 3(1) of the 1969-rules--the Government is entitled to suspend an officer when preliminary investigation has been made, but even before definite charges have been communicated, cannot be accepted. Reliance for the view taken in that decision was placed on Govinda Menon's case [1967) 2 S.C.R. 566, but in Govinda Mtnon's case the order of suspension was held also to be the order initiating disciplinary proceedin~s. The legality of a composite order both initiating disciplinary proceedings and suspending Go,inda Menon was not questioned in the case. [710 C-E; 712 G; 714 A-Bl (e) Rule 12 of the Central Civil Services (Classification, Control anti Appeal) Rules, 1957, provides for suspension of a Government servant ~oding disciolinarv proceedin~s or when a disciplinary oroceeding i11. con· r-molated. This phraseology has been retained in the corresponding 1965-rufe. iust as the phraseology in r .. 7 (dealing with suspension during disciplinary proceedings) in the All India Services (D & A) Rules, 1955. has been retained in the corresponding r. 3 of the 1969-rules. Courts n1av presume that the draftsman knew of the existence of the various rules. and if with that knowledge he used different phraseology in the respective rules. it can be assumed that the actual words used in the different rule."- were ourooselv selected to exoress precisely intention o.f the rule m'.lking authoritv. [715 A-H; 716 A-BJ (f) The existence of r. 40(1) of the Railwav Protection Force Rules. 1959. providing for suspension of a member of the Force when investigation into charges a.eainst him is contemplated, further fortifies our inter· nretation of r. 3 of the All fndia Services (D & A) Rules, 1969. {:7'16 {'-El nn this view, the majority did not consider the other contentions.] (Per A. N. Rav and G. K. Mitter. JJ.\ dissentin11 : The appeal must be dismissed. A B c [) E F G H , A B c D F G H P. R. NAYAK V. UNION 697 (I) (a) The three features of r. 3 of the All India Services (D & A) Rules. 1969. are, (i) the authority which places a member of the service under suspension, namely, the Government which initials any disciplinary proceedings; (ii) the time when the order is made, namely, when the Government is satisfied that it is necessary or desirable to order suspension; and (iii) the person against whom the order is made, namely, the member of the service against whont such proceedings are started. The words 'which initiates any disciplinary proceedings' and 'against whom >uch proceedings are started' are merely descriptive of the Governnr.nt ~nd the m.cmber of the servile, re:>pecllvely. There is no restriction on the power of suspension by making it dependent on .the· condition precedent of the commencement of inquiry into articles of charge against the Government seryant. The rule does not say that the Government which h"s jnifial,ed disciplinary proceedings may order suspension, or that a n1en1ber against who111 such proceeding.~ lu11·e b('en staried can be suspended. [731 C·Fl (b) The provision cannot be interpreted by the consideration that the powers may be abused by arbitrary exercise, because, the victim of any such arbitrary exercise bas a right to con:o to court and the court will protect him against any ma/a fide action. (731-G-H] ( c) The order of suspension indicates that President of India was satisfied thot it was necessary and desirable to suspend th! appellant on an objective consideration of all the available material and that the order was not passed merely to humiliate the appellant. [732 A, E-F] (d) The sub-rules to r. 3 establish that the power of suspension is exercisable in instances other than an enquiry under r. 8, {or example. when l:Thninal charges and investigation or trial arc pending. That is, there cnn h\.' suspension earlier th:in th.:! trial during investigation. [.733 A·B] (e) Rule 8 of the Rules provides that when it is proposed to hold an c1uluiry, the disciplinary authority sha11 draw up articles of charge, while r. 3 requires rcg~rd to the nature of charges. The meaning of the word ·charge' in the t\vo expressions is not tb! fame. Rule 3 is of Wider amplitude as it deals \Vith the stage of a prin1a facie case and the word charaes has the \\'ider meaning of accusations and imputations. [733 G·HJ Gorii;cla Menon v. Union of /ndie1, f,1967] 2 S.C.R. 566, followed. (g) ~les 3, ·7, 8 and 9 indicate the different stages._ of disciplinary proceedings. Therefore, disciplinary proceedings can be saia· to have· been started when complaints about the misconduct of a Government servant arc entertained followed by a preliminary enquiry culminating in the satisfaction of the Government that a prima facie case had been made out for framing formal ch:irges. No formal order is necessary for initiationof disciplinary proceedings and the order of suspension in the context of the preliminary investigation and a prima facie case ca~ itself be treated as ~n initiation of d!sciplinarv P!~eedings. Such suspension is not a punishment. but IS tn aid of d1Sc1plmary proceedings and is ordered tof:icilitate free investi~ation and collection of evidence, When such an order of suspension itself shows that the Government was of the view th'1t a prima facie case had been made out. the fact that the order aJso. mentions that disciplinary proceedings are contemplated makes no difference. Also. the fact that in other rules of service an order of suspension may be made when disciplinarv proceedings are contemplated does not· require that a memher of an All India Ser.ice should be dealt 'with dit'fer~ntly [736 A-C; 737 G-H; 738 A·F) 698 SUPREME COURT REPORTS [1972] 2 S.C.R. S. Govinda Menon v, Union of India, Ll967] 2 S.C.R. 566 and Go»- ernment of India v. Tarak Nath Ghosh, A.LR. 1971 S.C. 823, followed. ' Champak/al Chimaula/ Shah v. Union of India, Ll964] 5 S.C.R. 190 .:ind Kapur v. Union of India, L1964] 5 S.C.R. 431, referred to. (g) The explanation to r. 6 of the All India Services (Death-cum· A Retirement Benefit) Rules. 1958, states that a disciplinary proceeding B shall be deeme~ to be institute.! when charges framed against the pensioner are issued to him, or, if he has been placed under suspension fron1 an earlier date, on such date, This rule applies to all Government servants who can be placed under suspension under r. 3 of the All India Services (D & A) Rules. 1969. It is illogical and incongruous to bold that in case of other Government servants disciplinary proceedings commenced when he is placed under suspension, but it will not be so in the case of a member of the Indian Civil Service. [733 H; 734 A-CJ C Thep~fore, on the facts and circumstances of the pfesent ~~e, the order of suspension was properly and validly made. P38 G] (2) The contention that a member of the Indian Civil Service on completion of :J.5 years service retires compulsorily and that there cannot be any extension of service, is opposed to the language of F.R.. 56(f) and inconsistent with the practice in the service. The present rule, and the earlier rules and regulations, indicate that there may be an extension of service beyond the date of compulsory retirement. The date of retirement in such a case is the extended date. [723 F-H] (3) Sanction of retention of post at the end of 35 years, which is mentioned in F.R. 56(f) contains intrinsic authority for extension of service, and therefore the appellant's extension of sef' ... ;ce was not a new employment after retirement. Nor is it a case of a fresh contract, because, a valid contract of employment is to be in compliance with Art. 299 of the Constitution. There is no authority for saying that at the end of 35 years compulsory retirement has happened and is complete and there can be no extens.ion in service. It is incomprehensible how one can be permitted to retain a post he was holding at the end of 35 years service, if one bas already retired compulsorily at the end of 35 years. The facts that an officer, when he is retained in a post after 35 years service, could not have any promotion or that his leave lapses and that there is a change in his entitlement to leave, do not.-n1ake the extension of service a new appointment. The service is continuous with such adjustments as to leave or promotion or posting as are permissible or possible. [724 A-D; 725 C-El (4) (a) The contention of the appellant that he was entitled to an extension of 5 years is against the terms of !'. 56(f). The «ppellant is estoppel from challenging this extension till March 25, 1971. The appellant hims.elf asked for the extension, and has proceeded, in the petition. on the basis of the extension and asked for a declaration that he retired from service on March 25, 1971. The estoppel rightly raised against the appellant in regard to F.R. 56(f) and 56(ff) is that the order of suspension was passed at a time when the appellant was in service as a result of being permitted by the President to be retained in service for a period oi 4 months pursu·:int to the appellant's agreement to an extension. [725 F-H; 726 A-E; 736 G-H] (b) Though the order of extension did not state as to what post the appellant held, when his services were extended. for 4 months, he was permitted to retain the post he was holding. These words mean that he D E F G H P, R, NAYAK V. UNION 699 A remained a me!l'.ber of the Indian Civil Service and that he was kept in the place or position held by him. The word 'post' means in effect 'office'. [728 E-H] B c D E F G H (c) Retention of post with the sanction of the President under .~F.R. 56(f) is not a matter of right. The practice, shown by the various instances of extension of service establishes, ( 1) that the order ol"' extension does not indicate that the person concerne n(lt exceed 5 years. [720 H; 730 A.CJ (5) The order of suspension is under r. 3 of the All India ServlCes (D & AJ Rule,, and F.R. 56(ff) is a rule laying down the consequences of tne order ot suspension. They are (i) F.R. 56(f) is deleted so as not to come into operation during the period of suspension inasmuch as the words used are, 'notwithstanding anythinJ! contained in cl. (f) ', (ii) the member of the service shall not be requlfed or permitted to retire, and (iii) the member shall be retained in service until the enquiry into the charges is concluded. When the date of compulsory retirement is allowecl to pass by an extension of service under F.R. 56(f). the words 'reaching the date of compulsory retirement" in F.R. 56(ff) will apply to the postponed date of retirement, because the actual date of retirement is shifted. .It will be illogical to hold that a member of the Indian Civil Service c~no.t retire because the order of suspension is before the date of compulsory retirement, but when he is on extension of service he can retire .even when an order of suspension has been passed. Therefore, the order of suspen· sion n1eans that he is in service, but his services are temporarily suspended and hence, no retirement can take place. The prohibition against retirement is embedded in P.R. 56(ff) and therefore no separate order is required or necessary to the effect that the appellant shall not be required or permitted to retiro. !739 A-H; 740 A·BJ (6) Fundamental Rule 56(ff) dos not violate Art. 14 on the ground that under the Civil Service Regulation 351A, a Government servant against whom disciplinary proceedings were pending could be permitted to retire. But F.R. 56(Jf) reintroduced in 1970 the old cl. (d) of the rule, which was deleted in 1962. Under F.R .. 56(d) also a Government scrva~t under suspension shall not ~ required or permitted to retire on reachmg the date of compulsory retirement. but shall be retained in service until t_he en!l~iry is _con~luded. That rule governed by the members of the Indian CtVJI Service till 1962. Its restoration by insertins FR. 5?(ff) cannot be said to be an infraction of Art. 14. There are so~1e differences between the members of the Indian Civil Service and members of t~e All India Servi_c~s. but the differences also indicate. that there are special nghts and nnvtleg<:s for members of the Indian Civil Service. [740 B-H; 741 A-CJ CIVIL APPELLATE JURISDICTION : Civil Appeal No 875 of 1971. . Appeal ~om the Judgment and Order dated May 6 1!:171 of the Delhi High Court in Civil Writ No. 350 of 197 I. ' C. _K. Daph 1ary, B. R. L. Iyengar,/. C. Ta/war, S. C. Patel and B1shamber Lal, for the appellant. Niren De, Attorney-General for India, 0. P. Malhotra, Ram Panjwani and S. P. Nayar, for the respondents. 700 SUPREME COURT REPORTS [1972) 2 S.CR. The Judgment oi the Court was delivered by Dua, J. This appeal on certificate of fitness granted by a Division Bench of the High Coun of Delhi under Art. 133(1 )(c) ·of tlle Constitution is directed against its judgment and order dated M.!tY 6, 1971 dismissing the appellant's writ petition under Art. 226 of the Constitution. The appellant joined the India.'l Civil Service after being selected pursuant to his success at the competitive examination held in London in 1934. He underwent the necessary period of probation and was thereafter duly admitted to the s;;id Service. He signed the necessary covenant with the then Secretary of State for India. He arrived in India on November 25, 1935. It is not disputed before us that according to Fundamental Rule 56(f) the appellant as a member of the Indian Civil Service had to retire after 35 years' of service counted from the date of his arrival in India subject to the proviso that if he had at the end 35 years' service held his post for less than five years, he might, with the sanction of the President of India be permitted !v 1"-etain his post until he had held it for live years. The appellant's date of retirement in the normal course would thus be November 25, 1970 and this is not controverted in this Court. The appellant was appointed as Managing Director of the Indian Refineries Ltd., a Public Sector undertaking,-in October. 1963. He was appointed as Chairman and Managing Direct.or of the said undertaking and he continued to hold that office till August, 1964 when he was appointed as Chairman of the Oil and Natural Gas Commission. In January, 1965 he was appointed a~ Secretary to the Government of India in the Ministry of Petroleum and Chemicals and in February, 1969 he was appointed as Secretary in the Ministry of Works, Housing and Urban Development. In the meantime. in June, 1967 reference was made to Shri S. N. Rao, the Central Vigilance Commissioner, to inquire into the circumstances necessitating cliange iri the alignment of the pipeline of the Indian Oil Corporation in the coalfield areas of Bihar and West Bengal. The report submitted by Shri S. N. Rao in April, 1970 did not contain any finding adverse to the appellant. It appears that the Parliamentary Committee on Public Undertakings had also examined the Pipeline Division of the Indian Oil Corporation and submitted its report to Parliament on April 30, 1970. As in this report there were some findings adverse to the appellant the Government framed 9 charges against him and referred them for advice to Shri S. Dutt, the Central Vigilance Commissfoner, who, for certain personal reasons, dee lined to give any advice. In the meanwhile the Government had in August, 1970 appointed a one man ComA c D E F G H B c D E F G H P, R. NAYAK V. UNION (Dua, J.) 701 m1ss10n consisting of Shri J. N. Takru, a retired Judge of the Allahabad High Court under the Commissions of Enquiries Act, 1952, for enquiring into several matters arising out of the report of the Parliamentary Committee on Public Undertakings. Wh~ Shri S. Dutt declined to give his advice the Government in the Ministry of Petroleum and Chemicals in October, 1970 relerred to the Takru Commission for advice, the question whether prima facie charges had been made out against the appellant. The charge-sheet containing nine charges against the appellant were also forwarded to that Commission. On November 7, 1970 the Government of India intimated Shri J. N. Takru that he was·· further required to suggest if any other charge or charges appeared to him to have been prima facie made out against the appellant. The Takru Commission examined 14 charges against the appellant and before starling the enquiry required him on November 16, 1970 to submit his written statement in defence. The appellant submitted his explanation in more communications than one. They were dated 7th and 19th December, 1970 and 5th January, 1971. Shri Takru submitted to the Government an interim report on January 13, 1971 in which prima facie case against the appellant in respect of majority of the charges was stated to have been established. It was in these circumstances that it was decided to hold disciplinary proceedings against the appellant and with that end in view an order suspending him was passed on March 23. 1971. In the meantime, on November 3, 1970 the appellant had written to Shri B. Sivaraman, Cabinet Secretary t':!e following letter : "Shri J. N. Takru is enquiring into certain matters connected with the Pipeline projects of the Indian Oil Corporation, on which the Public Undertakings Committee of Parliament had made a report in April, 1970. These matters cover certain allegations against me, in respect of which I have not so far had an opportunity of having my say. I understand that Shri. Takru has been requested to advise Government within the next few months on whether there is any prima facie basis for these allegations. In doing so, he will give me an opportunity to explain my point of view, where necessary. On the basis of Shri Takru's report, Government will take a decision on what further action, if any, is needed. To facilitate such a course, I am willii;ig to accept an extension of service by about 4 rr.onths from the 25th November, 1970, the date of my retirement otherwise, should government decide to grant mch exterrtion." 14-L643SupCI/72 _, 702 SUPREME COURT REPORTS (1972) 2 S.C.R. On November 23, 1970 the President of India passed the following order extending the appellant's sef\'.ice upto March 25, 1971 : "The President is pleased to order under the proYiso to F. R. 56(f) that the services of Shri P. R. Nayak, a member of the Indian Civil Service, who completed 35 years' of service on the 25th November, 1970, shall be extended upto the 25th March, 1971." The order of suspension dated March 23, 1971 reads as under : A "Whereas disciplinary proceedings against Shri P. R. Nayak, JCS are contemplated; C "AND WHEREAS the President, after carefully considering the available material, and having regard to the nature of the charges against him and the circumstances of the case, is satisfied that it is necessary ·and desirable to place the said Shri P. R. Nayak under -tt-" 1 - suspension; NOW THEREFORE the President, in exercise of the powers conferred by clause (a) of sub-rule ( 1) of rule 3 of the All India Services (Discipline and Appeal) Rules, 1969 and all other powers enabling him in that behalf hereby places the said Shri P. R. Nayak under suspension with immediate effect until further orders. It is further ordered that during the period that this order shall remain in force, the said• Shri P. R. Nayak shall be paid such subsistence allowance as is admissible under the rules and his headquarters shall be New Delhi which he shall not leave without obtaining the previous permission of the Central Government." It was under these circumstances that the appellant approached the High Court of Delhi with a petition under Art. 226 of the Constitution praying for quashing the order of suspension and for a declaration that the appellant had retired from service on March 25, 1971 rnd was entitled to full benefits of retirement permissible under the covenant and the rules as guaranteed by the Constitution. It was further prayed that F. R. 56(ff) be declared as ultra vires the Constitution. The High Court dismissed the writ petition. It held th.rt when the appellant was permitted by the President under the proviso to F.R. 56(f) to continue ito hold the post held by him at the end of D E F G H A B c D E F G H P. R. NAYAK "· UNION (Dua,/.) 703 35 years' of his service, he continued to hold that post as a member of the Indian Civil Service and not in any other capacity. He could be permitted to hold that post for a period not exceedin1g five years as contemplated by the said proviso. According to tlfe High Court even the appel!ant had understood this to ~ •the correct meaning ·and scope of cl. (f) of P.R. 56 as he had himself prayed in the writ petition for a declaration that J:i.~ had re.tired from service on March 25, 1971. The argument that an order of suspension under r. 3 (1 )(a) of All India Services (Discipline and Appeal) Rules, 191'19 could only be made against the appellant..._ after the initiation of disciplina~y· proceedings was also not accepted by the High Court. According to that Court it was enough if there were accusations or imputations against the appellant which ca1Jed for an enquiry and the Government felt satisfied that • it was necessary in the circumstances to suspend him. The -contention that P.R. 56(ff) was violative of the rule of equality guarall'teed by Art. 14 of the Constitution was also repelled and it was observed by the High Court that members of the -Indian Administrative Service who were earlier members of. the Intliim. Civil Service constituted a class distinct from the other members of the Indian Administrative Service and further that P.R. 56(ff) merely re-introduced in October, 1970 the old cl. ( d) of P.R. 56 which had beem deleted in August, 1962. By restoring the old position, according to the High Court, no new liability was imposed on the former members of the Indian Civil Service. In this Court a number of points were raised on behalf of the appel1ant and elaborate arguments were addressed on both sides. We, however, do not consider it necessary to deal with them at Jen)!th and express our considered opinion on all of them because in our view 1his appeal can be disposed of on the short· point th!it the order suspending the appellant is bad, being violative of the relevant statutory rule. Fundamental Rules, to regulate the conditions of se:vice of civil servants in India, were made by ·the Secretary of State in Council in exercise of the powers conferred upon him bv s. 96-B of the Government of India Act as amended in 1919. Thev came into force with effect from January, 1922 replacing the substantive rules in C:ivil Service Regulations exceot in respect of pensions. Article 565 of the Civil Services Re~ulations (replaced by the Fundamen•tal Rules in 1922) dealing with "compulsory retirement" so far as relevant provided : "565 (a) After thirty-five years' service, counting from the date of his arrival in India. an officer shal! not, except for special reasons, and with the sanction of the Secretary of Sta•te retain his office or be appointed to- any new office: 7 04 SUPREME COURT REPORTS [ 1972] 2 S.C.R. Provided that, if such an officer has held his office for less than five years, he may, for special reasons, with the sanction of the Government of India, be permiNed - to retain his office until he has held it for five years. The 'term "office" in this article includes an officiating appointment. Note.-[This rul·~ does not apply to an officer holding the appointment of a Judge of a Chief Court. Such an officer is required to vacate his appointment on attaininl! the age. of 60 years.l (b) The period of five years begins to run from the date on which the officer firnt takes up the office, whether substantively or temporarily, provided that, if temporary, he is confirmed without reverting to his substantiw appointment; but the currency of the period is not interrupted by any subsequent temporary promotion to a higher appointment. - Note.-[The term "office" as used in this Article does not include any office held under direct appointment by His Majesty the King-Emperor of India. but the retention of such an office should be subject 'to the condition prescribed in Article 563.] F.R. 56(f) and (ff) which provide for the retirement, and retention in service, when under suspension, of a member of the Indian Civil Service, occur in Chapter IX of the Fundamental Rules, headed "Retirement". The heading of this chapter before June 26, 1970 used to be "compulsory retirement." According to the learned Attorney General the word "compulsory" was removed from the heading b.!cause of the substitution of the new clause (k) in F.R. 56 which enables certain ca't.egories of Government Servants, subject to ce~tain conditions to voluntarily retire by giving three months' notice in writing. F.R. 56(f) and (ff) read : "56(f) A member of the Indian Civil Service shall r~rnment of India, then, his retention to that post should have been for the full period of five years beginning from Februaty. 1969 and his service could not be extended for a period le&s than five years : in other words, it could not be extended only upto March 25, 1971, as was ordered by the President on November 23, 1970. According to the appellant's contention if a member of the servic~ exercises his choice under the proviso then he must be permitted to hold that p..>st to complete five years in that post. Tile next argumell't pressed before us on. behalf of the appelc D E F G lant was that under r.