Holding

Sub‑clause (i) of Rule 56(j) applies to government servants in Class I or Class II service or post irrespective of whether the post is held substantively, temporarily or on an officiating basis.

Summary

A.L. Ahuj a, an engineer in the Central Public Works Department, was compulsorily retired under Rule 56(j)(i) of the Fundamental Rules while holding an officiating Class II post. He challenged the retirement, arguing that the earlier Supreme Court decision in Union of India v. K.R. Tahiliani held that Rule 56(j)(i) does not apply to officiating officers. The Court examined the language of sub‑clause (i) and held that it makes no distinction between substantive, temporary or officiating service; therefore the rule applies to any officer who is in Class I or Class II service or post at the relevant time. The earlier Tahiliani decision was overruled. Consequently, the petition was allowed, the retirement order was set aside, and the petitioner was awarded salary and allowances up to his normal superannuation date.

Issues considered

Whether sub‑clause (i) of Rule 56(j) of the Fundamental Rules applies to government servants holding an officiating post in Class I or Class II service.
Whether the earlier decision in Union of India v. K.R. Tahiliani is binding on the present case.

Legislation cited

Fundamental Ruless. Rule 56(j)

Subjects

Compulsory retirementFundamental RulesOfficiating postClass I serviceClass II servicePublic interestArticle 32Writ petitionSupreme Court

Judgment

£-"~
A.L. AHUJA
A
v.
UNION OF INDIA

JULY 24. 1987

B [RANGANATH MISRA, M.M. DUTI AND M.H. KANIA, JJ.] i. ,

Fundamental Rules-R.56(j) (i)-Applies to Government servants ~·
in Class I or Class II Service or post, whether on substantive, tempor-
ary or officiating basis.

c rlty toFundamental Rule S6(j) confers power on the appropriate autho- -
y .
compulsorily retire a Government servant, if It is in the public
Interest to do so, by giving 3 months' notice or 3 months' pay and
allowances in lieu of such notice; while sub-el. (i) thereof states that a '
public servant in class I or class II service or post who had entered
service before attaining the age of JS years can be retired after he has
D attained the age of SO years, sub-cl. (li) thereof states that any other
~
..
public servant can be retired after he has attained the age of SS years.
In Union of India v. K.R. Tahiliani & Anr., Ibis Court had beld that
F.R. S6(j) is meant to cover only those who ·are in a post on a regular
basis, I.e., In a substantive capacity, and not on an ofticlating basis
only. Basing his case on this decision, the petitioner, who had been
E compulsorily retired while working in a class II post In an ofticiating
capacity, challenged the order of his compulsory retirement. .1--
Overruling the decision in Union of India v. K. R. Tahiliani &
Anr., but, allowing the petition on the ground that the Delhi High 'y '
Court, relying upon that de~lsion, had granted relief to persons simi·
F larly placed as the petitioner, and, dlreding payment of his salary and
allowances upto the date of his normal superannuation,

HELD: Sub-clause (i) of r. 56(j) of the Fundamental Rules
applies to Government servants in Class I or Class II service or post on
substantive, temporary or officiating basis. [638E·F]
G '
There ls no reference to officiating service in sub-cl. (i). The rele·
vant words used in sub.cl. (I) are "lf he ls in Class I or Class II service
"'
or post." A person can be in CIBS1; I or Class II service or post even
when he holds a post of either class substantively or temporarily or on
omclatlng basis. Instances are abundant where officers are promoted to
H Class I or Class II service or post of such class on officiating basis and
632
A.L. AHUJA v. U.0.1. 633

such omciatlon lasts for a number of years. Officiating promotion cer- A
tainly does not confer a right to the post and at any time the Govern·
ment servant may be sent hack to his substantive post. There is, how·
ever, no reason why sub-cl. (i) should be confined to service or post held
on substantive basis. It is not disputed that a person who is in Class I or
Class II service or post is in such service or post as covered by sub-cl.
(I). The possibility of such Incumbent being sent back to the substantive B
_. J post Is not at all relevant In the matter of exercising powers of com·
pulsory retirement. If the officiation Is not brought to an end by revert·
ing the Government servant to his substantive post before the power of
compulsory retirement is exercised, the Government servant concerned

- 'y
must be taken to be in Class I or Class II service or post at the relevant
time and would come within the ambit ofsuh·cl. (i). There is no warrant C
for the conclusion that officiating Government servants In Class I or
Class II service or post are outside the purview of sub-cl. (I). The
) possibility of a reversion to the substantive post is not germane to the
exercise of power contained in F.R. 56. [637F·H; 638A·Cl

The purpose of F.R. 560) is to confer power on the appropriate D
authority to compulsorily retire a Government servant in the public
interest and the classification of Government servants into two
categories covered by sub-els. (i) and (ii) has a purpose behind it. If the
condition Indicated in sub-cl, (I) is satisfied, namely, the Government
servant Is In Class I or Class II service or post and he had entered
into service before attaining the age of 35 years, and has attained E
the age of fifty, the further condition that be must substantively
belong to the two classes of service or post cannot be Introduced
into the scheme. The purpose of the sub-clauses Is to classify
Government servants into two categories and suh·cl. (i) takes within its
sweep those Government servants who at the relevant time are in Class
I or Class II service or post, whether substantively, temporarily or on F
officiating basis. [638C·E]

Union of India v• . K.R. Tahiliani & Anr., (1980] l S.L.R. 847,
overrulled.

ORIGINAL JURISDICTION: Writ Petition No. 7338of 1981. etc. G

(Under Article 32 of the Constitution of India).

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.

G. Ramaswamy, Additional Solicitor General, R.P. Srivastava H
634 SUPREME COURT REPORTS [ 1987] 3 S.C.R.

A and Miss. A. Subhashini for the Respondent.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. The petitioner of this application
under Article 32 of the Constitution is an engineer who was employed
B in the Central Public Works Department under the Ministry of Works _'- •
and Housing in Government of India and was compulsorily retired by
order dated 3.8.1976 with effect from 5.11.1976 made under Rule 56(j) ~
of the Fundamental Rules. He has assailed that order for retirement
and has claimed payment of remuneration which he would have been
entitled to draw upto the normal date of superannuation.
c The short facts are these. The petitioner was born on 10.2.1922
and secured his first appointment as a Section Officer under the-
l
named employer on 22.10.1947. He was promoted as officiating
Assistant Engineer in class II service with effect from 25.5.1954, and
came to be confirmed as Section Officer by an order dated 8.10.1955.
D On 3.7.1961, he was further promoted as officiating Executive
Engineer in Class I service but on 4.9.1965, he was reverted to the post
of Assistant Engineer in officiating position and was continuing in that
post when he was compulsorily retired.

The vires of Rule 56(j) of the Fundamental Rules as also the
E power to compulsorily retire a public servant have been upheld by this
Court and do not require to be re-examined. The basis of attack to the
impugned order is as specified in Ground No. A and is to the following
effect:
"The impugned order is contrary to the judgment delivered y'
by this Hon'ble Court on 26.2.1980, copy at Annexure-C
F
hereto. (Union of India v. K.R. Tahiliani and Anr.)-
[1980] 1 SLR 847. According to the said judgment F.R. 56
(j)(i) has no application to officiating government servants,
hence can have no application to the petitioner since the
petitioner was an officiating government servant."
G
The impugned notice ran thus:- '
''No.32/452/66-EC.III
Government of India
Central Public Works Department

H New Delhi, the 3.8.76
A.L. AHUJA v. U.0.1. [MISRA, J.J, 635

ORDER A
WHEREAS the Engineer-in-Chief is of opinion that
it is in public interest to do so:

. )
NOW, THEREFORE, in exercise of the powers con-
ferred by clause (j) of Rule 56 of the Fundamental Rules,
the Engineer-in-Chief hereby gives notice to Shri A.L.
B

Ahuja, Assistant Engineer (Civil), at present under sus-
pension, that he, having already attained the age of fifty
years on 10.2.1972, shall retire from service with effect

- from the forenoon of 3rd November, 1976, or, from the
date of expiry of three months computed from the date of
issue of the service of this notice on him, whichever is
c
latter.

Sd/

-
(V.R. YAISH)
ENGINEER-IN-CHIEF D

To

Shri A.L. Ahuja,
Assistant Engineer (Civil),
(Under Suspension), E
All/85, Lajpat Nagar,
New Delhi-110024."

It is clear from it that the petitioner attained the age of 50 years
on 10.2.1972 and, therefore, on the date of the order he had completed
the age of 54 years. Admittedly, he was holding a class II post when F
the impugned order was served on him. Fundamental Rule 56(j) under
which notice was given provides:-

"(j) Notwithstanding anything contained in this rule, the
appropriate authority shall, if it is of the opinion that it is in
~· the public interest so to do, have the absolute right to retire G
any Government servant by giving him notice of not less
than three months in writing or three months' pay and
allowances in lieu of such notice;

(i) if he is in Class I or Class II service or post (and
had entered Government service before attaining the age H
636 SUPREME COURT REPORTS [ 1987] 3 S.C.R.

of thirty-five years), after he has attained the age of fifty
A
years;

(ii) in any other case after he has attained the age of
fifty-five years;
"
B
The appropriate authority is entitled to exercise power under clause (j)
in the case of a Government servant in Class I or Class II service or
post where he entered into service before attaining the age of 35 years
after the said servant attained the age of 50 years; and in other cases
after he has attained the age of 55 years. In the instant case, the
C petitioner was promoted as officiating Assis_tant Engineer which is a
-
Class II post on 25 .5 .1954 and continued to hold that post when the
order of compulsory retirement was passed. By 25.5.1954 the peti-
tioner had not attained the age of 35 years.

As already indicated above he had crossed the age of 50 years but
D had not attaine.d the age of 55 years by the date of the impugned order.
Therefore, sub-clause (1) was not contravened when the order was
made. It has been argued before us that as the petitioner was holding
an officiating appointment in Class II, he could not have been com-
pulsorily retired under sub-clause (i).

E Support is claimed from the observations in the Tahiliani's case
(supra). The sole question that fell therein for decision before this
Court was whether a Government servant officiating in Class I or Class
II service or post could be retired compulsorily by exercising the power
under Rule 56{j)(i) after he has attained the age of 50 years. The two Y '
Judge Bench which decided the case held:-
F
" An officiating hand has no right to the post and is
perhaps a fleeting bird who may have to go back to the
substantive post from which he has been promoted on an
officiating basis what is more to the point, a person who has
been appointed de novo may begin his service on an of-
G ficiating basis or on a temporary basis and it is obvious that
he has no right to the post and cannot be strictly said to be
in that service or post as a member of that service. In short,
an officiating Government servant does not really belong
to Class I or Class II service until he acquires a right
thereon. Even viewed closely and meticulously, the struc-
H ture of the clause, namely, "if he is in Class I or Class II
-.,
A.L. AHUJA v. U.0.1. [MISRA, J.) 637

service or post", emphasises the nature of the service or A
post vis-a-vis the Government servant concerned. We need
not go into the semantic shapes, lexical niceties or linguistic
nuance but only go through the meaning and purpose of
the provision. When a Government servant belonging to a
Class I or Class II service or post on regular basis has to be
retired compulsorily, Rule 56(j)(i) comes to the rescue of B
the Government. But if he is only a temporary hand, he has
no right to the post and can always be reverted to the post,
if any, on which he has a lien. Similar is the position of an
officiating hand. Thus we have reached an inevitable con-
clusion that Rule 56(j) is meant to cover only those who are
in a post on a regular basis, i.e. in a substantive capacity, C
and not on an officiating basis only."

Strong reliance was placed by counsel for the petitioner on the
reasons extracted above.

It is clear that sub-clause (ii) is the general rule applicable to all D
.lt' Government servants and sub-clause (i) carves out a class of Govern-
ment servants into a category and makes a special provision. We have
already indicated that sub-clause (ii) did not apply to the facts of this
case as the petitioner had not attained the age of 55 years by the date
of the order. The observations made in Tahiliani's case indisputably
support the petitioner. But the correctness thereof is disputed by E
--f learned Additional Solicitor General appearing for the Union of India
and that is why this writ petition was directed to be heard by a larger
Bench.

There is no reference to officiating service in sub-clause (i). The
relevant words used in sub-clause (i) are "if he is in Class I or Class II F
service or post". A person can be in Class I or Class II service or post
even when he hold a post of either class substantively or temporarily or
on o~ficiating basis. Instances are abundant where officers are pro-
moted to Class I or Class II service or post of such class on officiating
basis and such officiation lasts for a number of years. Officiating pro-
'f<' motion certainly does not confer a right to the post and at any time the G
\
Government servant may be sent back to his substantive post. There
is, however, no reasons why sub-clause (i) should be confined to
service or post held on substantive basis. Learned counsel for the
petitioner does not dispute the position that a person who is in Class I
or Class II service or post is in such service or post as covered by
sub-clause (i). The possibility of such incumbent being sent back to the H
638 SUPREME COURT REPORTS [1987] 3 S.C.R.
•
'r-
A substantive post is not at all relevant in the matter of exercising powers
of compulsory retirement. If the officiation is not brought to an end by
reverting the Government servant to his substantive post before the
power of compulsory retirement is exercised, the Government servant
concerned must be taken to be in Class I or Class II service or post at
the relevant time and would come within the ambit of sub-clause (i).
B There is no warrant for the conclusion that officiating Government -\ 4
servants in Class I or Class II service or post are outside the purview of
sub-clause (i). The possibility of a reversion to the substantive post is "'f
not germane to the exercise of power contained in F.R. 56. The
purpose of Fundamental Rules 56(j) is to confer power on the
appropriate authority to compulsorily retire Government servant in the
C public interest and the classification of Government servants into two
categories covered by sub-clauses (i) and (ii) has a purpose behind it.
-•
If the c:ondition indicated in sub-clause (i) is satisfied, namely, the Y
Government servant is in Class I or Class II service or post and he had
entered into service before attaining the age of 35 years, and has
attained the age of fifty, the further condition that he must substan-
0 tively belong to the two classes of service or post cannot be introduced
into the: scheme. The purpose of the sub-clauses is to classify Govern- ~
men! servants into two categories and sub-clause (i) takes within its
sweep those Government servants who at the relevant time are in
Class I or Class II service or post, whether substantively, temporarily
or on officiating basis.
E
We would accordingly hold that the ratio of the decision in
Tahiliani's case is not correct and sub-clause (i) of Rule 56(j) applies to
Government servants in Class I or Class II service or post on substan-
tive, temporary or officiating basis. y ...

F On this conclusion the writ petition is liable to be dismissed. It
has been represented to us by counsel for the petitioner that the simi-
larly placed persons had gone before the Delhi High Court challenging
the orders of compulsory retirement and the Delhi High Court relying
upon Tahiliani's case give them relief. Such judgments have become
final and Union of India has given effect to the decisions of the Delhi
G High Court. When this was put to learned Additional Solicitor r-~
I General he agreed that the Union of India will have no objection to ,, - '!'!
treat the petitioner alike and would be prepared to give the same relief
to the petitioner.

lbe petitioner would have superannuated from service on
H 29.2.1980 if he had not been compulsorily retired with effect from
AL AHUJA v. U.0.1. [MISRA, J.) 639

5.11.1976. Even if the writ petition is allowed and the order of com- A
pulsory retirement is set aside the petitioner cannot go back to service.
But he would be entitled to pecuniary benefit of salary and allowances
admissible under the rules. Accordingly, we allow the writ petition and
direct the respondent to pay to the petitioner the salary and other
allowances which would have been payable for the period between B
,. ~· 5.11.1976 and 29.2.1980. Such payment be made within two months
• from today. There will be no order for costs.

WRIT PETITION NOS. 6251 & 8189 OF 1981

- Each of the petitioners in these two writ applications under Arti-
cle 32 of the Constitution was employed in the Central Public Works C
Department in the Ministry of Works and Housing of Government of
India and has been compulsorily retired under Fundamental Rule
56(j). The facts of each of these applications are more or less similar to
those in Writ Petition No. 7338 of 1981 which we have disposed of
today. For the reasons given therein we allow each of the writ petitions D
and quash the order of compulsory retirement made against each of
the petitioners. By now both the petitioners would have retired from
service and, therefore, they cannot be resorted in service. They would,
however, be entitled to salary and other service allowances payable to
them from the date of compulsory retirement till the date of their
normal superannuation. There will be no order for costs.
E
--f- H.L.C. Petition allowed .

.'!