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Cites 7 docs - [View All]
The General Clauses Act, 1897
Article 311 in The Constitution Of India 1949
Krishena Kumar vs S.P. Saksena And Ors. on 2 February, 1973
Union Of India vs Col. J. N. Sinha And Anr on 12 August, 1970
Dr. Bool Chand vs The Chancellor, Kurukshetra ... on 4 September, 1967

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Delhi High Court
Dharam Dev Mehta vs Union Of India And Ors. on 1 November, 1974
Equivalent citations: ILR 1975 Delhi 492
Author: T Chawla
Bench: S Shankar, T Chawla

JUDGMENT

T.P.S. Chawla, J.

(1) There is only one question raised in this. apreal : wheatherv the notiece retiring the appellant on attaining the age 55 years from the post of an Auditor. which he was then holding, was issued by the 'appropriate authority".' A single Judge of this court has held that it was. Hence the appellant has appealed.

(2) In October 1952 the appellant was taken into the Subordinate Accounts Service. He was promoted on 23rd August 1962. A controversy exists whether he was then made an Assistant Accounts Officer or an Assistant Audit Officer, bill it is of no consequence. It is agreed that he functioned as an Assistant Audit Officer. By an order dated 8th April 1968 the Comptroller and Auditor General of India redesignated this post as Audit Offiiecr, the word 'Assislam.' being dropped. In every other respect the post remained the same. At that time the appellant was working in the office of the Chief Auditor, Commercial Accounts, Northern Region. New Delhi Whilst. till so employed he received a notice dated 28th August 1968 from the Director of Commercial Audit. saying that. as in his opinion . was in the public interest to do so, the appellant would retire from service on attaining the age of 55 years-, on 10t5h November 1968 or from the date of expiry of 3 months is service after service of the notice. whichever was later. The appellant's representation for an extension of his service on compassionale grounds was rejected. On 15th November 1958 the appellant moved this court for quashing that notice. and for certain consequential reliefs. His petition was admitted lo a full hearing. Meanwhile, in accordance with the notice, he was. retired. This appeal is brought against the dismissal of his petition.

(3) Rule 56(a) of the Fundamental Rules says that : 'Except as otherwise provided in this Rule, every Government' servant shall retire on the day he attain:- the age of fiftv, eight years.' One of the exceptions is in sub-.rule (j), it gives to the 'appropriate authority' the 'absolute right to j'.Lire any Govenment servant' who has rcached the age of 55 years by notice of not less than three months in writing or three months' pay and allowances in lieu' therof'. 'if it is of the opinion that it is in the public interest to do so'. Other aspects of that sub-rule are not relevant for the present purpose. The validity of the sub-rule is now beyond question : see Union of India v. J. N. Sinha and another, A.1.R. 1971 S.C. 400).

(4) At the end of Rule 56 a number of Notes occur. Note 1 reads :

'APPROPRIATEauthority means the authority which has the power to make substantive appointments to the post or service from which the Government servant is required or wants to retire.'

So, to identify the appropriate authority in relation to the appellant one must Find the authority having 'power to make substantive appointments to the post or service' of Auditor, which the appellant was holding when he was sought to be retired. In construing the Note. counsel for the appellant did initially maintain that the 'or' in the phrase 'post or service' ought to be read conjunctively; but .no reasons could be advanced why that should be done, and the contention was not sustained. To find the answer to the question which was the appropriate authority, it is necessary t.o turn to the Central Civil Services (Classification, Control and Appeal) Rules and some orders made by the President.

(5) Power is conferred on the President by the proviso to .Article 309 of the Constittion to make '"rules regulating the recruitment and the conditions of service' of persons appointed to public services posts in connection with the affairs of the Union, until 'provision to taht behalf is made by or under an Act of the.' appropriate'. With regard to 'the conditions of service of persons service in.the Indian Audit and Accounts Department' the President is aythority by Article 148 of the Constitution to make rules after consutitution with the Comptroller and Auditor General, subject to any lae made by Parliament. In exercise of these powers, the President made the Central Civil Services (Classification Control and Appeal) Rules 1957 They were published in the Gazette of India of 28th February .1957 as Notification S.R.O. 607.

(6) The rules are grouped under a number of Parts.. and a Sehedule is annexed. It is not easy at the first acquaintance to comprehand the framework of services and posts created by these rules but not on a closer application a coherent picture does emerge. Part 11 is entitled 'Classification'. Civil services of the Union are of four classes : see Rule 6. The particular services and grades of services comprised in each of these classes are specified in the Schedule : see Rule 7. Parallel with the classification of services is the classification of civil posts under the Union, also, into four classes : see Rule 8. It is implicit in Rule 9 that ordinarily Central Civil Posts of 'any class will be allocated to a Central Civil Service, presumably of the like class : for example, a class I post to a class I service, a class Ii post to a class Ii service, and so on. However, for many diverse reasons it may happen that a civil post is not included in a Central Civil Service. Such posts 'not included in any other Central Civil Service' are by Rule 9 'deemed to be included in the General Central Service of the corresponding class and a Government servant appointed to any such post shall be deemed to be a member of that Service unless he is already a member of any other Central Civil Service of the same class'. In this way, a fictional 'General Central Service' is created. Like the 'real' civil services of the Union it has four similar classes. It exists as a faithful reflection of the former.

(7) But there are differences which are tangible. In the case of the 'real' services, as distinguished from the notional ones, a man is first admitted into the service and then appointed to a post included in it. Therefore, it follows, that if he were merely deprived of his post he would still continue to be in service. To eliminate him altogether it would be necessary to oust him from the service in addition. The converse is true in the case of the General Central Service. Here, as rule 9 makes plain, appointment to a post deemed to' be included in this service, procures entry into the service. The sequence is reversed. Consequently, removal of a man from the General Central Service would not prevent him from being a Government servant for he would still hold his post. To fully extrude him from employment under the Union, dislodgement from his post would be essential.

(8) All this is borne out by Part Iii of the rules. That Part is entitled 'Appointing 'Authorities'. Respecting Classes Ii, Iii and Iv of 'the Central Civil Services (other than the General Central Service)', it is significant that Rule 11(1) speaks only of appointments to the services, and not to posts. The power to make appointments to these services is vested in the authorities specified in the Schedule in this behalf. In noticeable contrast Rule 11(2), which deals with 'Central Civil Posts, Classes Ii, Iii and Iv included in the General Central Service', confers power solely to make appointments to such posts, but not to any service. And, a further difference is that appointments to these posts are to be made 'by the authorities specified in that behalf by a general or special order of the President, or, where no such order has been made, by the authorities specified in the Schedule in this behalf'. So, here, the Schedule authorities have power to appoint only in the event, and till such time, that no general or special order has been made by the President specifying the authorities in that behalf. But as soon as a Presidential order is made, the power to appoint inhering in the Schedule authorities is destroyed. This is an important conclusion for purposes of the present case. As regards Class I Central Civil Services and Posts, Rule 10 preserves the distinction between services and posts. Since, however, the power to appoint in respect of both is vested in the President or his delegate. further manifestations of the dichotomy cannot be observed.

(9) In consonance with the scheme of things outlined above, the Schedule to the Rules is divided into four parts. Each of them deals with a class of Central Civil Service, and contains a description of the various particular services included in that class. Excepting Part I, the other Parts are in -tabular form. It was admitted that the post of Assistant Auditor was in Class II. No specific reference to this post is found in Part Ii of the Schedule. The third last entry in this Part refers to 'Posts in any Ministry or Department of the Government of India', and the second column of the table specifies the 'Secretary in the Ministry or Department' as the 'Appointing Authority'. As a complement, the second last entry refers to 'Posts outside a Ministry or Department of the Government of India', and the 'Appointing Authority' is the "Head of the Department'. In both these entries it is expressly stated that they apply to posts 'other than the posts in respect of which specific provision has been made by a general or special order of the President'. This is more or less a repetition of what is already stated in Rule 11(2). One or the other of these entries might possibly have applied to the case of the appellant had the President made no order.

(10) On the very day on which the Central Civil Services (Classification, Control and Appeal) Rules were published, the President issued an order. It is published in the same Gazette of India as a Notification S.R.O. 639. The recital shows that the President made the order in exercise of the powers conferred on him by three rules in the Central Civil Services (Classification, Control and Appeal) Rules, notably Rule 11(2). Paragraph I of this order says that

'In respect of the posts in the General Central Service, Class Ii, specified in column I of Part I of the Schedule to this order, the authority specified in column 2 shall be the Appointing Authority............'

Part I of the Schedule to this order, which again is in tabular form, is entitled 'General Central Service, Class II". The first heading under the column entitled 'Description of Post' is Indian Audit and Accounts Department'. Under it the second entry is 'Assistant Audit Officer'. Against this entry, column 2 specifies the 'Comptroller and Auditor- General' as the 'Appointing Authority' for the post. This, it was contended for the appellant, established that the Comptroller, exclusively, was the 'appropriate authority' envisaged by Note 1 to Rule 56 of the Fundamental Rules, and the notice of retirement issued by the Director of Commercial Audit to the appellant was a nullity.

(11) But, the order made by the President was amended by a Notification S.R.O. 3658 dated 29th November 1962. So far as the present question is concerned the important change was that, in the Schedule to the order, under column 2 relative to the entry 'Assistant Audit Officer' the words 'Director of Audit, defense Services; Director of Commercial Audit; Director of Audit, Food, Rehabilitation, Supply, Commerce, Steel and Mines; Chief Auditor Railways' were substituted for 'Comptroller and Auditor-General'. Clearly, after the amendment, the Director of Commercial Audit was one of the specified appointing authorities, and, in consequence, an 'appropriate authority'. Some reliance was placed by the appellant on an instruction in the Comptroller and Auditor Generals' Manual of Standing Orders which states that 'substantive appointments are made by the Comptroller and Auditor General'. This cannot assist him because the instruction was. framed much before the amendment. No doubt it was in accord with the legal position then existing; nevertheless, it cannot preclude the amendment from having effect.

(12) Nor can the fact that the post which the appellant was holding was redesignated as 'Auditor' affect the reasoning or the result. That was a mere change of title or description, and the post remained the same. Even supposing it enhanced the rank of the appellant, as to which there is no suggestion on the record, the appointing authority was not altered. For purposes of the order made by the President the post continued to be what it previously was.

(13) Although the Central Civil Services (Classification, Control and Appeal) Rules of 1957 were replaced in 1965 by another set of rules of the same name, it was agreed that for the question under consideration the differences between the two were immaterial. It was also accepted that by virtue of proviso (a) to Rule 34 of the 1965 Rules, the notifications and orders made under the earlier Rules remained in force. That is why, in the discussion, the 1965 Rules were ignored.

(14) In the end the argument on which the appellant mainly relied was based on the definition in Rule 2(a) of the Central Civil Services (Classification, Control and Appeal) Rules. That rule states that : 'In these rules, unless the context otherwise requires (a) 'Appointing Authority' in relation to a Government servant means

(I)the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in. which the Government servant is for the time being included, or

(II)The authority empowered to make appointments to the post which the Government servant for the time being holds, or

(III)the authority which appointed the Government servant to such Service, grade or post, as the case may be, or

(IV)where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority.'

(15) Great emphasis was laid on the last words 'whichever authority is the highest authority'. It was said that when the appellant was promoted on 23rd August 1962, he was. in fact appointed Assistant Audit Officer by the Comptroller and Auditor General. There is no clear allegation to this effect in the petition, but probably that would be so because before the amendment in November 1962 of the order made by the President, only the Comptroller and Auditor General was specified as the appointing authority. On this basis, the authority contemplated by clause (iii) of Rule 2(a) was the Comptroller. On the other hand, after the amendment, and at the time when the appellant was sought to be retired, one of the authorities empowered to make appointments to the post which the appellant was holding, was the Director of Commercial Audit. This authority, thus, came within clause (ii) of the rule. Out of the two, the Comptroller was the higher authority and, so it was maintained, was alone competent to decide whether the appellant should be retired.

(16) Further, it was said, that even out of the various authorities simultaneously specified as appointing authorities by the order of the President after its amendment in November 1962, only the highest of them could be treated as the Appointing Authority in view of the Rule 2(a). But this argument is patently unsound. The rule requires a selection to be made from out of authorities falling within different clauses of the rule. It neither requires nor furnishes any method of selection from out of a number of authorities falling within the same clause. And, all the authorities specified by the President as appointing authorities would come only within clause (ii).

(17) However, in my opinion, in the search for the 'appropriate authority', Rule 2(a) has no role at all. Its obvious purpose is to ensure that in the working of the rules there is no violation of Article 311 of the Constitution which prohibits dismissal or removal of a person by an authority subordinate to that by which he was appointed'. Rule 14(4) read with Rule 13 repeats and gives effect to this constitutional injunction. Counsel for the appellant conceded that retirement under Fundamental Rule 56(1) was not tantamount to dismissal or removal. Yet, he contended, that the principle underlying Article 311 was a rule of natural justice, which applied whenever the employment of a Government servant was sought to be terminated, whatever the mode. He referred to section 16 of the General Clauses Act 1897 and cited Dr. Bool Chand v. Chancellor, Kurukshetra University, A.I.R. 1968 S. C. 2920. The section only states that 'the authority' having 'power to make any appointment' by a Central Act or Regulation 'shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power'. And, in the cited case, the Supreme Court holds that the word 'dismiss' as used in the equivalent of that section in the Punjab General Clauses Act 1898 is not restricted to 'the sense of determination of employment as a measure of punishment'. None of this shows that there is any rule of natural justice which ordains that the employment of a Government servant should not be terminated by an authority subordinate to that by which he was appointed. Of course, no direct authority for such a proposition could be found.

(18) As the opening words of Rule 2 intimate, the definitions in that rule are meant for interpreting the words defined wherever they occur in the rules. The words 'Appointing Authority' do not occur in Rule 11(1) or (2). They do occur in Rule 14 which is their natural habitat, concerned, as it is, with identifying Disciplinary Authorities with reference to various kinds of punishment. Although those words also occur in the order made by the President, and are the title of a column in its Schedule, the order is not a part of the rules, notwithstanding that it is made virtue of a power conferred by them. Rule 11(2) does not say that the order made by the President shall be deemed to be a part of the rules. Nor does any other rule suggest that that is how the order ought to be read. Note I to Fundamental Rule 56 does not also use those words. It simply directs the mind to the question who has power to 'make substantive appointments to the post'. Perusal of the relevant portions of the Central Civil Services (Classification, Control and Appeal) Rules, especially Rule 11, and the order made by the President, furnishes the answer. Throughout the process of unravelling the position, Rule 2(a) does not appear on the scene, as the earlier part of this judgment testifies. Another Division Bench of this Court reached the same conclusion in Civil Writ No. 460 of 1967 entitled Krshan Kumar v. S. P. Saksena decided on 16th December 19680. The Supreme Court dismissed an appeal against that judgment on rather different grounds, but noticed the reasoning of the High Court and did not disapprove of it : see Krishan Kumar v. S. P. Saksena and others, . In my opinion, Rule 2(a) has no bearing whatsoever on the question.

(19) For these reasons, I would dismiss the appeal with costs.