INTRODUCTION:

The principles of compulsory retirement are not applicable to the termination of the service of temporary employees under the rules. When the integrity of an employee was doubtful, then he can be compulsorily retired. If a Government servant is compulsorily retired then he has no legal right to get his compulsory retirement set aside by a court of law even if the procedure mentioned in Rule 465 of Civil Services Regulations is not followed because compulsory retirement does not amount to removal and, therefore, he was not entitled to an opportunity to. show cause.¹The infringement of the right of an employee to continue in. service till the age of 55 years is equally untenable because the rules relating to premature retirement embodied one of the facets of the pleasure doctrine embodied in Article 310. When rule 3(a) of the Bihar Service Code, 1952 provides. That rules will not deprive any person of any right or privilege to which he is entitled. under law or contract it does not mean that the rules cannot be modified to effect his right or privileges. The words "under any law" means the law other than the rules. The rules regarding compulsory retirement are in pursuance of doctrine of pleasure enunciated by Article 310 of the Constitution. Such pleasure is subject to law passed by competent legislature. In view of this while making compulsory retirement the provisions of law and other rules have to be kept in mind including All-India Services (Confidential) Rules, 1970. The existence or non-existence of public interest is not a justiciable issue and it depends upon the subjective satisfaction of the authorities. Mere recital of this fact will at best be a formality. The legal foundation of the power is the rule of English law. Dulante bene placito which means 'during pleasure'. It is, therefore, a matter which is entirely left to the discretion of lln-Govcrnor subject to Article 3U. A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevails even pleasure is canalised by rules. Viewed from this perspective, security of tenure is a value in itself. In Government jurisprudence it is however open to the State to make rules under the proviso to Article 309; and Rule 56(y) is one such rule.¹

Nature and scope of compulsory retirement in India:

Compulsory retirement is distinguishable from retirement on reaching the age of superannuation. Sometimes an employee may not remain fully efficient till the age of superannuation and therefore before the age of superannuation another period is fixed at which to consider whether the employee is still efficient to discharge his obligations. If on considering efficiency the appointing authority takes a decision that in the public interest an employee should be retired, then it is called compulsory retirement. The difference between compulsory retirement and superannuation age is that after an employee reaches the age of superannuation his extension is purely with the appointing authority even if the employee continues to remain efficient and competent to discharge his obligations. But at the stage at which compulsory retirement is to be considered an employee can only be retired if competent authority comes to a decision on considering the circumstances of the case that an employee should be retired otherwise the public interest would suffer.² There is no inherent right for passing an order of compulsory retirement and the authority cannot exercise the right in absence of rules. If the rules so provide and an employee is compulsorily retired then compulsory retirement is for all purposes a retirement and an employee will be entitled to proportionate pension and all his dues as if he has been retired on reaching the age of superannuation. Such rules generally exist in Government employment but compulsory retirement is sometimes also provided in public sector corporations.

In some cases the rules provide compulsory' retirement as a lighter punishment than dismissal along with other punishments. The nature of compulsory retirement as a punishment is different from compulsory retirement in terms of the relevant rules in that behalf. When compulsory retirement is a punishment, it is imposed because an employee has committed some misconduct and a stigma is consequently attached to it. If an employee is compulsorily retired in accordance with the rules then the retirement is not on the basis of any misconduct but because it is in public interest that the employee should be. retired at that stage. Before an employee is compulsorily retired by way of punishment it is necessary to hold a departmental enquiry after issuing him a charge sheet,² but there is no such requirement when an employee is compulsorily retired in accordance with the rules which is one of the modes of passing a simple, discharge order and therefore, in this Chapter we are not concerned with compulsory retirement by way of punishment but with compulsory retirement which is a discharge simpliciter.

Compulsory retirement is really passed after taking into consideration the rights of the Government servant on the one hand and the interest of the public, ordinarily coincides with the interest of the Government, on the other.

Compulsory retirement simpliciter does not deprive the Government servant of the benefit earned by him till the age of his retirement. An order has to be treated as one of compulsory retirement simpliciter if it involves no civil consequences nor does it cast any stigma on the Government servant.

If the authority bona fidely forms an opinion to pass an order of compulsory retirement hi public interest, the correctness of the opinion cannot be challenged.³

Even if an order of compulsory retirement passed in conformity with the relevant rules has been made in the background that the Government servant had outlived his utility to the Government but the order did not say so, such an order cannot be held to contain any stigma against the Government servant. While misconduct and inefficiency are factors that enter into account both where the order is one of dismissal or removal and one of retirement, the difference between the two is that while in the case of retirement they merely furnish the background, in the case of dismissal or removal they form the very basis or gravamen of the order. In such latter typ.-of cases the provisions of Article 311(2) will be attracted.

The pleasure doctrine in Article 310 of the Constitution is subject to the conditions prescribed in Article 311 although it is doubtful as to whether rules made under Article 309 can in any way be said to limit the doctrine a? durante bene placit.

Even where there has been an enquiry merely for the satisfaction of the authority concerned before an order of compulsory retirement is passed, although such an enquiry is not essential, the order cannot ultimately be attacked if ex facie the order does not show that it has been passed for the purpose of punishing the Government servant or that any stigma has been cast upon him.³

Article 310 of the Constitution provides that the services of the Government servants will be at the pleasure of the Governor or the President as the case may be. This Article is subject to Article 311 which provides that no order of dismissal, removal or reduction in rank will be made without giving reasonable opportunity to the Government servant. This shows that in case of dismissal, removal or reduction in rank the requirements of Article 311 will have to be complied with and save and except the cases covered by Article 311 Article 310 will apply in all other cases and the services of Government servants will be at the pleasure of the Governor or the President as the case may be.

It is well established that compulsory retirement in accordance with rule does not amount to dismissal, removal or reduction in rank even if the motive is misconduct or inefficiency. The reasoning is traced to English doctrine of service tenure being during the pleasure of Crown as applied to India and which is modified to the extent of the protection afforded under Article 311 of the Constitution but outside the field of Article 311 of the Constitution there is a large area where the doctrine operates subject to only such limitations as may flow from requirements of rule of law enshrining other Articles of the Constitution.² The rules of service themselves treat dismissal as punishment and compulsory retirement as simple exercise of the pleasure of the Government to terminate his service. Compulsory retirement is on the ground that his services are no longer required in future. Dismissal etc. are on the ground that the past misconduct has been such as to merit punishment. Punishment is a positive order taking away something whereas compulsory retirement is a negative order refusing to do something in future. The idea that on account of some misconduct, inefficiency, etc. the servant must be punished does not exist when he is compulsorily retired. The idea behind compulsory retirement is that the State will not find his services useful after the date fixed for his retirement and it is not the idea to punish him for something done by him prior to that date. While punishing, the State looks to the past, while compulsorily retiring, it looks to the future, that his services will not be found useful. The ground that the servant has outlived his utility is not finding any fault with him while he is in service. Compulsory retirement under the rule does not amount to punishment. The compulsory retirement is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and it does not involve any stigma or punishment. The assessment by superior officer shows that he was an average officer and sometimes he was reckless, impolite and suffered from' other infirmities. The principles of compulsory retirement are not applicable to the termination of the service of temporary employees under the rules. When the integrity of an employee was doubtful, then he can be compulsorily retired. If a Government servant is compulsorily retired then he has no legal right to get his compulsory retirement set aside by a court of law even if the procedure mentioned in Rule 465 of Civil Services Regulations is not followed because compulsory retirement does not amount to removal and, therefore, he was not entitled to an opportunity to.⁴ Show cause.The infringement of the right of an employee to continue in. service till the age of 55 years is equally untenable because the rules relating to premature retirement embodied one of the facets of the pleasure doctrine embodied in Article 310. When rule 3(a) of the Bihar Service Code, 1952 provides. That rules will not deprive any person of any right or privilege to which he is entitled. under law or contract it does not mean that the rules cannot be modified to effect his right or privileges. The words "under any law" means the law other than the rules. The rules regarding compulsory retirement are in pursuance of doctrine of pleasure enunciated by Article 310 of the Constitution. Such pleasure is subject to law passed by competent legislature. In view of this while making compulsory retirement the provisions of law and other rules have to be kept in mind including All-India Services (Confidential) Rules, 1970.⁴ The existence or non-existence of public interest is not a justiciable issue and it depends upon the subjective satisfaction of the authorities. Mere recital of this fact will at best be a formality. The legal foundation of the power is the rule of English law. Dulante bene placito which means 'during pleasure'. It is, therefore, a matter which is entirely left to the discretion of lln-Govcrnor subject to Article 3U. A Government servant ordinarily holds service at the pleasure of the State but in our Republic where the rule of law prevails even pleasure is canalised by rules. Viewed from this perspective, security of tenure is a value in itself. In Government jurisprudence it is however open to the State to make rules under the proviso to Article 309; and Rule 56(y) is one such rule.

Compulsory retirement violates Articles 14 and 16 of the Constitution:

Compulsory retirement in public interest does not violate Articles 14 and 16 of the Constitution. -Article 14 of the Constitution provides that tin-State shall not deny to any person equality before the law or equal protection of law within the territory of India. Under Article 12 of the Constitution the State is defined to include statutory corporations and other authorities, such as universities and Government schools etc. Full description of such authorities which are governed by Article 12 of the Constitution arc discussed in Note I, Chapter II of the book "Employment Its Terms and Conditions" by the Author. Article 16 of the Constitution specifically provides equality of opportunity in matters of public employment. Thus so far as public employment is concerned, Articles 14 and 16 practically cover the same ground that there should be no discrimination. If any rule providing for compulsory retirement contravenes Article 14 or Article 16 of the Constitution, then such a rule is invalid on account of violation of the fundamental rights.

It is now well established that if the criterion for compulsorily retiring a Government employee is vague then such a rule will violate Articles 14 and 16 of the Constitution. The reason is that although for purposes of applying any rule the. Government can make any classification but if the classification is vague, then in practice the rule can be applied against any Government employee at the sweet will or naked discretion of the authorities. Articles 14 and 16 therefore prohibit such rules because they are likely to lead to arbitrary action.⁵

Rule 244(2) of the Rajasthan Service Rules which provides for compulsory retirement, does not violate Articles 14 and 16 of the Constitution on the ground that it gives arbitrary powers to the Government to pick and choose persons for compulsory retirement. Where Fundamental Rule 56(f) provides that a Government servant attaining age of 55 years can be compulsorily retired in public interest, then it does not confer arbitrary powers and is not violative of Article 14 of the Constitution. The requirement of public interest is a sufficient safeguard against arbitrary exercise of powers. Though public interest is not capable of precise definition and its content varies from time to time but it is not a vague concept and it means proper functioning of the public service. Note 1 of Article 465 of the Civil Service Regulations providing for compulsory retirement in public interest is not vague or arbitrary and does not violate Article 14 or 1.6 of the Constitution on the ground that it does not confer any guidance.¹² Note I, Article 465 of Civil Service Regulations authorises the Government to retire a servant compulsorily in public interest which is a condition precedent for the exercise of power. Thus the power cannot be exercised in absence of requisite satisfaction of' that fact.⁶ The absence of public interest would render the power arbitrary and discriminatory. As held in Writ Petition Nos. 3958 & 4033 of 1968, dated February 23, 1970 the term 'public interest' is not vague and, therefore, the ordinance is valid. If the order of compulsory retirement complies with the requirement of the Regulation by mentioning that it was passed in public interest, it cannot be said to cast any stigma. Public interest means public purpose and it may well be the efficient working of the Government machinery by weeding out inefficient officers or dispensing with the services of officers who became static. The first proviso to Rule 56(a) of the Fundamental Rules providing for compulsory retirement does not contravene Article 14 or 16 of the Constitution. State Government passed a resolution raising age of compulsory retirement from 55 to 58 years but empowering the Government to weed out unsuitable employee after 55 years age.

This does not give unguided powers to Government.Note 1 to Article 465 provides for compulsory retirement in public interest which in the context of public service requires efficiency in administration. This provides ample guidance to the competent authority to exercise powers of termination of service, and such provisions do not violate Article 14 or 16 of the Constitution. The equality of opportunity under Article 16 is not violated by provisions for compulsory retirement of Government servant in public interest because the provisions are equally applicable to all employees. The Article does not prohibit reasonable rules for compulsory retirement.It cannot be contended that the explanation (Public Interests) in the premature retirement rules is vague in our opinion the expression in the context of premature retirement has a well settled meaning. It refers to cases where the interest of public interests administration required the retirement of a Government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competence and utility called for by the Government service, to which he belongs. The normal age of retirement is fixed by sub-rule (a): it is subject to extension not exceeding 60 years, save for special circumstances under sub-rule (b), it is subject also to premature termination in public interest under sub-rule (j). Sub-rule (i) as such is neither arbitrary nor illegal. Action can be taken only in public interest. When rules make no mention that the power to retire compulsorily will be used in public interest but it is mentioned on the other hand in Rule 55 that the whole time of a Government servant is at the disposal of the Government and this will be considered in passing the order. In this case the discretion conferred on the Government is not unguided and arbitrary. Absence of specific direction in the rule governing the exercise of powers conferred cannot by itself lead to an inference that it is arbitrary. It may be assumed that, the exercise of the power would appropriately be exercised for the protection of the public interest or on ground of administrative convenience. Power to exercise discretion is not necessarily to be assumed to be a power to discriminate unlawfully and possibility of abuse of power will not invalidate the conferment of power.The age of retirement was increased from 55 years to 60 years and after some time it was again reduced to 55 years. The Government further fixed November 30, 1967 as the date for founding the classification of teachers who should retire at, the age of 55 years and those who should get the benefit of interim order extending the age to 58 or 60 years. The classification is not irrational.⁷ The problem of unemployment is a complex problem and opinion might differ how best to solve it, but it would not raise any question of fundamental right. It cannot also be said that the retirement age cannot be reduced by Government. When the retirement age is reduced the employee cannot contend that the principle of 'last come, first go' should be applied. An employee was compulsorily retired under Rule 5.32(i) of the Punjab Civil Service Rules, Vol. II. The validity of the rule was upheld by the Punjab High Court. Subsequently the rule was declared as unconstitutional by the Supreme Court and a subsequent suit was filed. It was held by majority decision that the previous decision" of the Punjab High Court operated as res judicata although it may be erroneous and second suit is barred. Where Fundamental Rule 56(6) provides that a Government servant attaining the age of 55 years can be compulsorily retired after the age of 55 years in public interest, then it does not confer arbitrary powers and is not violative of Article 14 of the Constitution. The requirement of public interest is a sufficient safeguard against arbitrary exercise of powers. Though public interest is not capable of precise definition and its content varies from time to time but it is not a vague concept and it means proper functioning of the public service.

In absence of guidelines the rule providing for compulsory retirement will be unconstitutional. - It was stated in the memorandum that the appointing authority may compulsorily retire a Government servant after he attains the age of 55 years on three months' notice. In Shri Ram Krishna Dalmia, it was held that when no classification was shown on the face of the statute and discretion is given to the Government to make the selection or classification, then the Court can examine whether the statute has laid down any principle or policy for the guidance or exercise of discretion. When no such principle or policy has been laid down and arbitrary and uncontrolled power is left with the executive, then the rule will be discriminatory. The power to compulsorily retire would normally be exercised to weed out unsuitable employees but this was not mentioned in the rule. When uncanalised power is given that the Government would compulsorily retire after 55 years, then the rule is discriminatory. Though under Article 310 the pleasure of the Governor or President, cannot be curtailed by law, but it does not mean that the pleasure can be so exercised as to take away or curtail the fundamental rights. As held in the case of GolakNath, absolute arbitrary power in defiance of fundamental rights docs not exist in India. Rule 2(ii) of the Liberalised Pension Rules of Central Government provided that Government may require an officer to retire after completing 30 years qualifying service on three months' notice.

The Fundamental Rule 56(j) provides for compulsory retirement if the Government is of opinion that it is in public interest to do so. Note I to Rule 285 of the Mysore Civil Services Rules also contained similar restrictions. But there is no such guidance in the Liberalised Pension Rules and in the absence of guidance it is conceivable that competent and efficient officer may also be retired. In the absence of any reference to the public interest in the rules, the rule is devoid of any guidance to the Government officer who is empowered to exercise the rights. The rule is, therefore, unconstitutional and void. Rule 56(A) of the Civil Service Fundamental Rules provides that the age of retirement is 58 years but the proviso to the said rule empowers the Government to retire a public servant on three months' notice after he attains the age of 55 years. This rule cannot be interpreted to mean that the age of retirement is 55 years. If the Government decides to retire a public servant after he attains the age of 55 years then there must be some indication to show the circumstances under which Government servant can be deprived of the benefit of the enhanced age of retirement. When by the rule itself such a power can be exercised without assigning reason then it is idle to contend that it will be exercised for good and cogent reasons. The allegation that a statute violates guarantee of equality cannot be considered in vacuum and, therefore, a person challenging the statute must plead the facts essential to sustain the charge. However, when it is pleaded that only the plaintiff received a notice for retirement, at 55 years of age and all others were allowed to continue in service up to the age of 58 years and it is alleged that the statute confers an unguided discretion on the competent authority then the petition cannot be dismissed in liming. Whether a rule is discriminatory must depend upon its own language and context and its history and facts surrounding it. On such a question there can be no binding precedent though one can take the aid of decisions on statutes which are in pari materia. Regulatipn 67 of the Municipal Service Regulations framed by Municipal Corporation of Bombay provided that the service of a Government servant can be-terminated on three months' notice without showing any reason after attaining the age of 55 years. This regulation does not explicitly provide guidance to the competent authority but it is not necessary that such a guideline should be furnished expressly by the statute itself. As held in Jyoti Pershad v. Union Territory of Delhi, such a guidance can be afforded by the preamble along with the surrounding circumstances in conjunction with the well-known fact of which the Court may take judicial notice' or of which it is apprised by evidence before it in the form of affidavit or there may be guidance from the policy or purpose of the enactment. When no classification was shown on the face of the statute and discretion was given to the Government to make the selection or classification then the Court can examine whether the statute laid down any principle or policy for the guidance or exercise of discretion. When no such principle or policy has been laid down and arbitrary and uncontrolled power is given to the executive then the rule will be discriminatory.⁸

The Fundamental Rule 56(i) regarding compulsory retirement in public interest is not ultra vires because it is not sufficiently specific. The provisions were held ultra vires in Kirparam Gupta. R. K. Talwar™, because there was nothing in the provisions to control the exercise of powers and when public interest was added the validity was upheld. Even when statutes confer naked power to compulsorily retire employee, it was held that the governing factor was public interest. It is only when there is nothing in the statute or in the history from which guidelines could be deduced that the power should be unconstitutional. There was a circular that only the employees having bad records during 3 years preceding the age of 55 years should be made to retire after giving 3 months' notice. Such a circular can be issued by the Municipal Commissioner. The rule itself shows that the corporation did not intend to continue all employees after 55 and in principle the test contemplated was fitness and suitability. By issuing the circular the Commissioner only filled up the gap and made explicit what was implicit. It was in furtherance of the regulations and not in derogation of it and the Commissioner was competent to issue the same. Rule 17(2) of the All India Services (Death-cum-retirement Benefit) Rules, 1958 are not unconstitutional on the ground that they confer arbitrary powers on the Government regarding compulsory retirement. In one case it is held that even though no guideline is given it is implied in the rules that power to retire an officer is to be exercised in public interest and not on the sweet will of the authorities.

CONCLUSION:

Fundamental of Conclusion 56 (a) 56 (a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years:

Provided that, a Government servant whose date of birth is the first of a month shall retire front service on the afternoon of the last day of the preceding month on attaining the age of sixty years, Provided further that a Government servant who has attained the age of fifty-eight years on or before the first day of May, 1998 and is on extension in service, shall retire from the service on expiry of his extended period of service.

Or on the expiry of any further extension in service granted by the Central Government in public interest, provided that no such extension in service shall be granted beyond the age of 60 years.

(b) A workman who is governed by these rules shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.

(bb) The age of superannuation in respect of specialists included in the Teaching, Non-Teaching and Public Health Sub-cadres of Central Health Service shall be 62 years,

"Provided that for the specialist included in the Teaching sub-cadres of the Central Health Service who are engaged only in teaching activities and not occupying administrative positions, the age of superannuation shall be sixty-five years: provided further that such specialist of the Teaching Sub-cadres of Central Health Service who are occupying administrative positions shall have the option of seeking appointment to the teaching positions in case they wish to continue in service up to sixty-five years."

(bbb) The age of superannuation in respect of nursing teaching faculty with M.Sc. in Nursing in the Central Government Nursing Institutions shall be 65 years subject to the condition that they continue to function as faculty members after the age of 60 years,

(d) No Government servant shall be granted extension in service beyond the age of retirement of sixty years;

Provided that a Government servant dealing with budget work or working as a full-time member of a Committee which is to be wound up within a short period of time may be granted extension of service for a period not exceeding three months in public interest;

Provided further that a specialist in medical or scientific fields may be granted extension of service up lo the age of sixty-two years, if such extension is in public interest and the grounds for such extension are recorded in writing;

Provided also that an eminent scientist of international stature may be granted extension of service up to the age of 64 years, if such extension is in public interest and the grounds for such extension are recorded in writing.

Provided also that notwithstanding anything contained in any rule, the Central Government may, if considered necessary in public interest so lo do. give extension in service to a Cabinet Secretary in the Central Government for such period or periods as it may deem proper subject to the condition that his total term as such Cabinet Secretary does not exceed four years.

Provided also that the Central Government may, if considers necessary in public interest so to do, give extension in service to the Defence Secretary, Foreign Secretary, Home Secretary Director Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation in the Central Government for such period or periods as it may deem proper on a case-to-case basis, subject to the condition that the total term of such Secretaries or Directors, as the case may be, who are given such extension in service under this rule, does not exceed two years.

Provided also that notwithstanding anything contained in the fifth proviso, the Central Government may, if considers it necessary, in public interest, so to do, give an extension in service for a further period not exceeding three months beyond the said period of two years to the Home Secretary and the Defence Secretary.

Provided also that, the Central Government may, if considered necessary in public interest so to do, give extension of service to the Secretary, Department of Space and the Secretary, Department of Atomic Energy, for such period or periods as it may deem proper subject to a maximum age of 66 years, Provided also that the Appropriate Authority shall have the right to terminate the extension of service before the expiry of such extension by giving a notice in writing of not less than three months in the ease of a permanent or a quasi-permanent Government servant, or of one month in the case of a temporary Government servant, or pay and allowances in lieu of such notice,

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Received on 15.11.2021 Modified on 07.12.2021

Int. J. Rev. and Res. Social Sci. 2021; 9(4):164-170.