Holding

The compulsory retirement order under the first proviso to Rule 161(1)(a) is arbitrary and invalid; the appellant is deemed to have retired at the normal superannuation age of 58.

Summary

The appellant, an officer who was officiating as Superintending Engineer in the Gujarat Service of Engineers, was ordered to retire compulsorily under the first proviso of Rule 161(1)(a) of the Bombay Civil Services Rules, 1959, upon attaining the age of 55. He challenged the order, arguing that having attained the rank of Superintending Engineer, he was protected by Rule 161(1)(c)(ii)(l) and that any premature retirement must be justified as being in the public interest, a condition not satisfied. The Supreme Court examined the construction of the term "rank" in the rule, held that it denotes status or grade rather than a substantive post, and that the power to retire under the first proviso is not conditioned on a public‑interest finding. Consequently, the order was deemed arbitrary and struck down, with the appellant deemed to have retired at the normal superannuation age of 58. The appeal was allowed.

Issues considered

The validity of the compulsory retirement order under the first proviso to Rule 161(1)(a) in view of Rule 161(1)(c)(ii)(l).
The proper interpretation of the word "rank" in Rule 161(1)(c)(ii)(l) – whether it requires a substantive appointment.
Whether the power to retire under the first proviso requires a finding that the retirement is in the public interest.
Whether the order violates Article 311(2) of the Constitution of India.

Legislation cited

Constitution of Indias. Article 226, s. Article 311(2)

Subjects

Compulsory retirementService rulesRank interpretationArticle 311(2)Public interestSuperannuationOfficiating officerBombay Civil Services RulesArbitrariness

Judgment

A N.C. DALWADI -r- ...-
v.
STATE OF GUJARAT

JULY 24, 1987

B [A.P. SEN AND B.C. RAY, JJ.) -{ ~
Service Law: Bombay Civil Services Rules, 1959: rr. 161(1)(a) & ~
161(1)(c)(ii)(l)-Officiating Superintending Engineer-Compulsory re-
tirement of-Consideration of puf>lic interest absent-Held rules unlike

c
FR 59(j), discriminatory and violative of Article 311(2) of the
Constitution. -
Words and Phrases: Words 'rank' and 'attained'-Meaning of. ·'f''

Rule 161(1)(a) of the Bombay Civil Services Rules, 19S9, as appli-
cable to the State of Gujarat, provides for compulsory retirement or a
D Government senant other than Class IV, on bis attaining the age of S8
years, while proviso (i) thereto empowers the appointing authority to ~
retire a Government servant on bis attaining the age or SS years or any
date thereafter. Rule 161(1)(c)(ii)(l) lays down that except as otherwise
provided, Government servants in the Service of ERgineers, Class I
must retire on reaching the age of SS years and may be required by
E Government lo retire on reaching the age of 50 years If they have not
attained the rank of Superintending Engineer. _,..__
The appellant, who was officiating as Superintending Engineer In
the Gujarat Service of Engineers, Class I was sought to be compulsorily
y
retired by the State Government under the first proviso to r.161(1)(a)
F with effect from December lS, 1967, be having attained the age of SS
years on November 12, 1967.

He assailed that order hy a petition in the High Court under Art.
226 of the Constitution, in which it was submitted for the State that the
case oftbe appellant was governed by r. 16l(l)(c)(ii)(l) of the Rules and
G not by r. 16l(l)(a) and reference to a wrong provision would not oeces- "((""
sarily invalidate the order, that the appellant had not substantively
attained the rank of Superintending Engineer before he reached the age
of SO years and therefore the Government could compulsorily retire
him at any lime after he reached that age, that by virtue of the power
vested in the Government under the first proviso to r. 161(1)(a) the
H Government could even otherwise direct the compulsory retirement of a

640
DALWADI v. STATE OF GUJARAT 641

person who had attained the rank of Superintending Engineer before A
reaching the age of SO years and that power was not excluded by reason
ofr. 16l(l)(c)(ii)(l).

The High Court held that since the appellant had not attained the
substantive rank of a Superintending Engineer he could be made to
•t retire at any time under r. 16l(l)(c)(ii)(l), i.e. on the date he attained B
the age of SS years or thereafter, that since the appellant was merely
r
'
holding the post in an officiating capacity he could not be held to have
attained the rank of Superintending Engineer, in order to have the

- benefit of the normal age of superannuation of SS years.

In the appeal by special leave, it was contended for the appellant
that the post of Superintending Engineer was a selection post and the
C

appellant was promoted as such in a clear vacancy, that the word 'rank'
In r. 161(1)(c)(li)(l) must in collocation of the words being preceded by
the word 'attained' mean the status or the grade, that the word 'rank' is
not quallfted by the word 'substantive' and that he had acquired the
status or rank of a Superintending Engineer. D

Allowing the appeal,

HELD: 1. The order of compulsory retirement of the appellant
purported to be under the ftrst proviso to r. 161(1)(a) of the Bombay
Civil Services Roles, 19S9 is struck down as arbitrary, and he shall be E
deemed to have retired from service on attaining his normal age of
superannuation of SS years. [6S2BC]

"f 2.1 Under r. 161(1)(a) compulsory retirement of all government
servants is at the age of 58 years which is the general provision. But the
same cannot be said of the compulsory retirement of a government F
servant under proviso (i) to that rule on the date on which he attains the
age of SS years or anytime thereafter. It is not an incident of the tenure.
It is not conceived in the interests of the employee. It is the mode of
terminating his employment at the discretion of the appointing autho-
.J
rity. Tltis absolute power of the Government to direct premature retire-
--,:· ment does not exist on its satisfaction that it is necessary to do so in the G
public interest. It is unlike FR S6(j) to that extent. [647G-648B, 649RC]

2.2 Rule 161(1)(c)(ii)(l), which is a special rule dealing with
Service of Engineers, Class I, provides for two ages of superannuation.
The first part adopts the general rule of superannuation, as provided in
r. 16l(l)(a). The second part, however, confers powers on the Govern- H
•
f
642 SUPREME COURT REPORTS [ 1987] 3 S.C.R.
~·

"I"
A ment to terminate the services of such officers at the age of SO years
without giving any notice. The words 'in the public interest' are not
there in r.161(l)(c). [64!1B, DE, 649C, El

2.3 The ell'ect of r. 16l(l)(a) and r. 161(l)(c)(ii)(l) is the same.
Arbitrariness is writ large in both these rules. They enable the Govem-
B ment to deprive a permanent civil servant of his office without enquiry. -( •
The power of compulsory retirement may be used when the authority
exercising this power cannot substantiate the misconduct which may be 'ii
real cause for taking action. Both violate Art. 311(2) of the Consti-
tution. [6419A, CD)

C Union of India v. Col. J.N. Sinha & Anr., [1971] 1 SCR 791,
-
referred to.

3.1 The word used in r. 161(l)(c)(ii)(l) is 'rank' and not •substan-
tive rank' and there is no reason why it should not be understood
according to its ordinary sense as meaning grade or status, particularly
D when it is preceded by the words 'have not attained'. The word
'attained' means acquired or reached. The word 'rank' has both a
narrower as well as a wider meaning. l648G)

3.2 If the word 'rank' is so construed In its wider ~nse in its
context and setting in the collocation of words 'If they have not attained
E the rank of Superintending Engineer' as meaning status or grade then
the second part of that rule must be treated as an exception to the
special rule empowering the Government to direct superannuation of
such officers on the date they attained the age of SO years. I650D]
y
3.3 In the instant case, the appellant having attained the rank of
F Superintending Engineer he could not be compullorlly retired by the
State Government under r. 161(1)(c)(li)(l) before the age of superan-
nuation. [643G I

S. C. Jain v. State of Haryana & Anr., (1985] 4 SCC 645, referred
to.
G
Ishwarlal Kasanji Naik v. State of Gujarat, [1963) 4 Guj. LR 945,
overruled.

4.1 The words 'if they have not attained the rank of Superintend-
ing Engineer' in r. 161(1)(c)(ii)(l) do not confer an immunity on these
H officers from being compulsorily retired at any age below the normal lw
•
DALWADI v. STATE OF GUJARAT (SEN, !.] 643

age of superannuation at S8 years. The benefit which the Superintend· A
ing Engineers enjoy under the second pa~t of that rule is necesssarily
subject to the absolute power of the Gover.nment to direct compulsory
retirement of such omcers on the date they attain the age of SS years
under the first proviso to r. 161(l)(a) or under FR S6(j)(l), on which it
is based. Although the words 'in the public interest' are not there but
.. ,·i such power to direct premature compulsory retirement at the age of B
SS years can be exercised subject to the condition that the con·
cemed authority must be of the opinion that it is 'in public interest'
to do so. (6SOE·G] .

- 4.2 In the instant case, there was no material placed to show that
such compnlsory retirement was necessary in the public interest. The C
appellant has had an unblemished record and there was nothing against
him to doubt his integrity, fitness and competence. [6S1E]

H.C. Gargiv. State of Haryana, (1986] 4 SCC 1S8, referred to.

Union of India v. K.R. Tahiliani & Anr., [1980] 2 SCR 1092, D
·'< distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1939
(N) of 1972.

From the Judgment and Order dated 24.1.1972 of the High E
Court of Gujarat at Ahmedabad in LP.A. No. 263 of 1971.

V.M. Tarkunde, V.N. Ganpule and P.C. Kapur for the
Appellant.

Vimal Dave and M.M. Shroff for the Respondent. F

The Judgment of the Court was delivered by

SEN, J. The only question involved in this appeal by special
leave from the judgment and order of the High Court of Gujarat dated
.1 'I\ January 24, 1972 is whether the appellant who was officiating as G
Superintending Engineer in 'the Gujarat Service of Engineers, Class I
could be retired by the State Government on the date on which he
attained the age of 55 years on the ground that he was merely official·
ing in that post and had not "attained to the rank of a Superintending
Engineer" within the meaning of r. 161(1)(c)(ii)(l) of the Bombay
Civil Services Rules, 1959 as applicable to the State of Gujarat. H
644 SUPREME COURT REPORTS [ 1987] 3 S. C.R.

A The facts giving rise to the case are as follows. The appellant was
an officer of the Bombay Service of Engineers, Class I in the erstwhile
State of Bombay and was promoted to the post of Executive Engineer.
In July 1965 when the post of Superintending Engineer fell vacant the
State Government promoted him to officiate as Superintending
Engineer in the Gujarat Service of Engineers, Class I until further
B orders. On account of his meritorious service as Superintending
Engineer the appellant was put in charge of the Minor Irrigation Pro-
ject Circle. The work undoubtedly is of a highly specialised and skilled
nature and officers of merit and proven ability, skill and competence
are usually posted there. The appellant did excellent record of service
without any blemish and earned encomiums for his meritorious service
his new capacity. In 1966 the Chief Engineer, Public Works Depart-
c inment addressed a letter to the appellant communicating the State
Government's appreciation of the valuable work which the appellant
and the officers and staff under him had put up during the scarcity
relief operations in that year. However, the State Government all of a
sudden on September 13, 1967 purported to compulsorily retire him
D under the first proviso tor. !61(1)(a) w.e.f. December 15, 1967 after
giving him three months notice he having attained the age of 55 years
on November 12, 1967. Normally, the appellant would have as
Superintending Engineer retired on November 12, 1970, the date on
which he attained the age of 58 years. He had by then put up 29 years
of service and there was no adverse entry in any of his confidential
E reports questioning his integrity or his efficiency or ability for reten-
tion in service. The appellant accordingly assailed the order of com-
pulsory retirement by a petition in the High Court under Art. 226 of
the Constitution.

In contesting his claim, the State Government in its return
F pleaded that the case of the appellant was governed by r. 161(l)(c)
(ii)(l) of the Rules and not by r. 161(1)(a) and reference to a wrong
provision woulcl not necessarily invalidate the order, that the appellant
had not substantively attained to the rank of Superintending Engineer
before he reached the age of 50 years and therefore the Government
could compulsorily retire him at any time after he reached that age. It
G was asserted that the Government was entitled to review the cases of ~
government servants who were to attain the age of 55 years as per the
terms of the circular issued by the Government in the General
Administrative Department dated October 25, 1963, as amended from
time to time, and that in accordance with the procedure laid down the
case of the apellant was reviewed before he attained the age of 55 years
H and it was decided that it was not desirable in the public interest to
., DALWADI v. STATE OF GUJARAT [SEN, J.]

continue him in government service and that he should be compul-
sorily retired by giving three months notice. Even otherwise, it was
contended that by virtue of the power vested in the Government under
645

A

the first proviso to r.161(1)(a) the Government could direct the com-
pulsory retirement even of a person who had attained the rank of
Superintending Engineer before reaching the age of 50 years and that
power was not excluded by reason of r. 161(1)(c)(ii)( 1). B

The learned Single Judge (A.O. Desai, J.) relying upon the deci-
sion of a Division Bench in Ishwarlal Kasanji Naik v. State of Gujarat,
[ 1963] 4 SLR 945 hel.d that since the appellant had not attained the

- substantive rank of a Superintending Engineer, he could be made to
retire at any time under r. 161(1)(c)(ii)(l) i.e. on the date he attained
the age of 55 years or thereafter. He observed that the decision in
c
Ishwar/al Kasanji Naik's case being that of a Division Bench, the
construction placed by the learned Judges on r. 16l(l)(c)(ii)(l) were
clearly binding on him and that since the appellant was merely holding
the post in an officiating capacity he could not be held, according to
the view expressed in Ishwarlal Kasanji Naik's case. to have attained D
>(' the rank of Superintending Engineer, in order to have the benefit of
the normal age of superannuation of 58 years. It has been laid down by
a Division Bench in Ishwarlal Kasanji Naik's case that the benefit of
exemption from r. 161(1)(c)(ii)(l) could be had only by government
servants in the Bombay Service of Engineers, Class I who were in the
posts of Superintending Engineers i.e. held the rank of a Superintend- E

-+ ing Engineer on a regular basis, in a substantive capacity and not in an
officiating capacity. The decision is reflected in a laconic sentence:

"In order to get the benefit of exemption from the rule
[r. 161(1)(c)(ii)(l)] it is necessary that he should have sub-
stantively attained the post or the rank of a Superintending F
Engineer.''

We are unable to subscribe to the view expressed by the learned
Judges in Ishwarla/ Kasanji Naik's case. The word 'substantive' does
not find place in r. !6!(1)(c)(ii)(l) of the Rules.
} G
In assailing the correctness of the judgment of the High Court,
learned counsel for the appellant contends that the post of Superin-
tending Engineer is a selection post and the appellant was promoted as
such in a clear vacancy, and though he was working as a Superintend-
ing Engineer in an officiating capacity, he was given the benefit of the
revised pay-scale for post of Superintending Engineer and also given H
646 SUPREME COURT REPORTS [1987] 3 S.C.R.

A two yearly increments. According to him, the word 'rank' in r. 161
( l)(c)(ii)(l) must in the collocation of the words being preceded by the
word 'attained' mean the status or the grade. It is pointed out that the
word 'rank' is not qualified by the word 'substantive' as erroneously
assumed i:• Ishwarlal Kasanji Naik's case. He places reliance on the
recent judgment of this Court in S.C. Jain v. State of Haryana & Anr.,
B [1985] 4 SCC 645 where an identical provision r. 3.26(c)(l) of the -\, •'
Pun jab Civil Services Rules was treated to be a special rule conferring
immunity on an Engineer who has attained the rank of Superintending
Engineer in the Public Works Department (Buildings & Roads
Branch) on the ground that premature retirement of Executive
Engineers promoted to the rank of Superintending Engineer because
of their merit and proven ability and competence was clearly not in the
C public interest and therefore they must get protection from premature
retirement under r. 3.26(c)(l). It is pointed out that even though the
appellant was working as a Superintending Engineer, his pension has
been fixed by the Oovemment on the basis of the pay-scale of Superin-
tending Engineer presumably because he had been promoted to the
D post in an officiating capacity but in a clear vacancy i.e. had acquired
the status or rank of a Superintending Engineer.

The contention to the contrary by learned counsel for the
respondents based upon an earlier decision of this Court in Union of
India v. K.R. Tahiliani & Anr., [1980] 2 SCR 1092 is that the appellant
E was only officiating as Superintending Engineer and had no right to
the post. Our attention is drawn to the following observations made by
the Court:

"When a Government servant belonging to a Class I or Class II t
Service or post on a regular basis has to be retired compulsorily,
F Rule 56(j) comes to the rescue of 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 rigid and
inevitable conclusion that Rule 56(j) is meant to cover only those
who are in a post on a regular basis, i.e., in a substantive capa-
G city, and not on an officiating basis only." y-

The submission therefore is that the benefit of the exemption under
r. 161(l)(c)(ii)(l) can be had only by a government servant holding the
post of a Superintending Engineer on a regular basis i.e. in a substan-
tive capacity. The subsequent decision in S. C. Jain's case is sought to
H be distinguished on the ground that the Court there was dealing with
DALWADI v. STATE OF GUJARAT (SEN, l.J 647

the case of a person holding the post of a Superintending Engineer on
A
a regular basis.

In order to appreciate the rival contentions, it is necessary to
refer to some of the provisions of r. 161( 1) which deals with the age of
superannuation, insorfar as material:
-.... )
B
;
"161. (1)( a). Except as otherwise provided in the other
' clauses of this rule, the date of compulsory retirement of a

f" Government servant other than a Class IV servant is the
date on which he attains the age of 58 years.

Provided:
c
(i) An appointing authority may after giving three months
previous notice in writing require a Government servant to
retire from the service on the date on which he attains the
age of 55 years or on any date thereafter to be specified in
the notice." D
·f'
"161. (l)(c) The following rules are applicable to particu-
lar services:

(ii)(l) Except as otherwise provided in this sub-clause,
__,. Government servants in the Bombay Service of Engineers, E
Class I, must retire on reaching the age of 58 years, and
may be required by Government to retire on reaching the
age of 50 years if they have not attained to the rank of
Superintending Engineer."

Age of superannuation is an incident of government service; it is F
for the benefit of the employee who earns a well-earned rest with or
without pensionary benefits for the rest of his life. It is common to all
permanent civil servants; it depends on an event that inevitably hap-
pens by passage of time unless the ef1'ployee dies earlier or resigns
from the post. We must give to the different clauses of r. 161(1) which
.; <Iii find place in Chapter IX headed "Compulsory Retirement" their plain G
ordinary meaning in furtherance of the object and purpose with which
they have been framed. Under r. 161(1)(a) compulsory retirement of
all government servants is at the age of 58 years which is the general
provision. But the same cannot be said of the compulsory retirement
before the age of superannuation. It is not an incident of the tenure; it
is not conceived in the interests of the employee; it is a mode of H
648 SUPREME COURT REPORTS [1987] 3 S.C.R.

A terminating the employment at the discretion of the appointing
authority. The words 'except as otherwise provided in the other
clauses of this rule' appearing in r.161(1)(a) make the general rule of
superannuation at the age of 58 years subject to other clauses of that
rule. That is to say, the Government is empowered to provide for
different ages of compulsory retirement for different classes of govern-
B ment servants. Proviso tor. 16l(l)(a) however is the absolute power
of the Government to direct the premature retirement of a govern-
ment servant on the date on which he attains the age of 55 years or at
any time thereafter. R. 161(l)(c) is the special rule framed for that
purpose. To illustrate, r. 16l(l)(c)(i)(I) c-iys that except as otherwise
provided in that sub-clause, holders of posts of the Chief Judge of the
C Court of Small Causes, Bombay and the Administrator General and
Official Trustee, Bombay whether they are recruited directly or are·
promoted from subordinate posts should ordinarily be retained in
service till the age of 60 years, if they continue efficiently upto. that
age, otherwise they may be required w retire at the age of 55 years or
at any point thereafter. This clearly brings out that there are two ages
D of superannuation depending upon efficiency, integrity and ability for
further retention in service. Similarly, r. 16l(l)(c)(ii)(l) deals with
.....
another class of officers, namely. government servants in the Bombay
Service of Engineers, Class I and similarly provides for two ages of
superannuation. The first part of sub-cl. (1) adopts the general rule
contained in r. 161(1)(c)(ii)(l) for that class of officers as provided in
E r. 161(1)(a), namely, that they shall retire on the date on which they
attain the age of 58 years. The seond part however confers power on
the Government to retire any such officer on his reaching the age _of 50
years. Such power of the Government to direct premature compulsory
retirement of these officers is subject to a qualification. The words "if
they have not attained to the rank" of Superintending Engineer read
F in conjunction with the opening words 'except as otherwise provided
in this sub-clause' clearly carve out an exception in the case of persons
holding the posts of Superintending Engineer. The words 'if they have
not attained to the rank' of Superintending Engineer in r. 161(1)(c)
(ii)(l) are plainly bad English and must be read as 'if they have not
attained the rank' of Superintending Engineer. The word used in that
G rule is 'rank' and not 'substantive rank' and there is no reason why it
should not be understood according to its ordinary sense as meaning
grade or status, particularly when it is preceded by the words 'have not
attained the rank'. The word 'attained' means acquired or reached.
The word 'rank' has both a narrower as well as a wider meaning.

H A question may arise as to the purport and effect of these rules.
DALWADI v. STATE OF GUJARAT [SEN, J.J 649

~ The effect of r. 161(1)(a) which is the general rule dealing with all A
government servants except with respect to the enumerated categories
and ofr. 161(1)(c)(ii)(l) which is a special rule dealing with govern-
ment servants belonging to Bombay Service' of Engineers, Class I is the
same; the difference is only superficial which lies more in clever draft-
ing than in their content. .The Government may terminate .the services B
of a permanent government servant under the fir.i proviso to r. 161
~- (l)(a) at any time on or after he attains the age of 55 years after giving
three months notice i.e. before the normal age of superannuation, by
way of compulsory retirement. It will be noticed that the power of the
Government under the first proviso to direct premature retirement
does not exist on its satisfaction that it is necessary to do so in the
public interest. It is unlike FR 56(j) to that extent. The Government c
may terminate the services of a government servant belonging to the
Bombay Service of Engineers, Class I under r. 16l(l)(c)(ii)(l) at the
age of 50 years without giving him any notice. Arbitrariness is writ
large in both the rules but the rules enable the Government to deprive
a permanent civil servant of his office without enquiry. The power of
D
coptpulsory retirement may be used when the authority exercising this
( power cannot substantiate the misconduct which may be real cause for
taking action. Both violate Art. 311(2) of the Constitution. Primafacie
it appears to us that the first proviso tor. 161(1)(a) was on lines of FR
56(j) and could be sustained on the strength of the decision in Union of
India v. Col. l.N. Sinha & Anr., [1971] 1 SCR 791 being based on the
ground that the compulsory retirement of a particular government E
servant was in the public interest but the words 'in the public interest'
are not there in r. 161(l)(c). In Col. J.N. Sinha's case it was laid down
that the appropriate authority has the absolute right to retire a govern-
ment servant if it is of the opinion that it is in the public interest to do
so. The right conferred on the appropriate authority is an absolute
one. That power can be exercised subject to the conditions mentioned F
in the rules, one of which is that the concerned authority must be of the
opinion that it is in the public interest to do so. If that authority bona
fide forms that opinion, the correctness of that opinion cannot be
challenged before Courts. It is however open to an aggrieved party to
contend that the requisite opinion has not been formed or the decision
is based on collateral grounds or that it is an arbitrary decision. G
~ Compulsory retirement involves no civil consequences. The aforemen-
tioned FR 56(j) is not intended for taking any penal action against
government servants. That rule merely embodies one of the facts of
the "pleasure doctrine" embodied in Art. 310 of the Constitution. It
was said:
H

~·
650 SUPREME COURT REPORTS (1987) 3 S.C.R.

"There is no denying the fact that in all organisations and
A
more so in government organisations, there is good deal of
dead wood. It is in the public interest to chop off the same.
Fundamental Rule 56(j) holds the balance between the
rights of the individual government servants and the
interest of the public. While a minimum service is guaran-
B teed to the government servant, the Government is given
power to energize its machinery and make it more efficient
by compulsorily retiring those who in its opinion should not
1
be there in public interest."

These considerations do not arise either under the first proviso to
C r. 16l(l)(a) or under sub-cl. (1) tor. 161(1)(c)(ii) because the con-
cept of public interest is not there.

It seems to us that on a proper construction of r. 161(1)(c)(ii)(l)
which is identical tor. 3.26.(c)(l) of the Punjab Civil Services Rules,
the word 'rank' in the collocation of the words 'if they have not
D attained to the rank of Superintending Engineer' in r. 161(1)(c)(ii)~l) )
must in its context and setting was to be construed in its wider sense as
meaning status or grade, and if so regarded, the second part of that
rule must be treated as an exception to the special rule empowering the
Government to direct superannuation of such officers on the date they
attain the age of 50 years. This has been the view expressed by the
E Court in S. C. Jain's case but we find it difficult to support the conclu-
sion that the words 'if they have not attained the rank of Superintend-
ing Engineer' in r. 161(1)(c)(ii)(l) confer an immunity on Superin·
tending Engineers from being compulsorily retired at any age below
the normal age of superannuation at 58 years. Under the scheme of the
Rules, the benefit which the Superintending Engineers enjoy under
F the second part of r. 161(1)(c)(ii)(l) is necessarily subject to the abso-
lute power of the Government to direct compulsory retirement of such
officers on the date they attain the age of 55 years under the first
proviso to r. 161(1)(a) or under FR 56(j)(l) on which it is based.
Although the words 'in the public interest' are not there but such
power to direct premature compulsory retirement at the ag~ of 55
G years can be exercised subject to the conditions indicated in Col. J.N. Y.
Sinha's case, one of which is that the concerned authority must be of
the opinion that it is in the public interest to do so.

We are not oblivious of the fact that the construction that we put
on the word 'rank' in r. 16l(l)(c)(ii)(l) does not accord with the view
H expressed by the Court in Tahiliani's case that FR 56(j) is meant to
DALWADI v. STATE OF GUJARAT [SEN, J.] 651

cover only those who are in a post on a regular basis, i.e. in a substan· A
tive capacity and not on an officiating basis only. It proceeds on the
principle that the constitutional provision under An. 311(2) protecting
a government servant from reduction in rank without hearing refers
only to a person who is occupying a higher post in a substantive capa·
city, for which he alone has a legal right to occupy the post. The Court

]
laid down while interpreting FR 56(j) that a person who is occupying a B
higher post in an officiating capacity has no such rigbt and can be
deprived of his post by the competent authority. The facts are not clear
from the judgment in Tahiliani's case. From the passage extracted
above, it is clear that the Court laid down that when a government
- servant belonging to a Class I or Class II service or post on a regular
basis has to be retired compulsorily, the Government can fall back on C
• ..,. FR 56(j). It however held that FR 56(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 officiating basis only. If that be so, then we are at a loss to
understand why a person who has not attained the rank of Superin·
tending Engineer i.e. is merely officiating as Superintending Engineer
cannot be compulsorily retired from his substantive post of Executive D
Engineer if the other requirements of FR 56(j) are fulfilled. We need
not dilate on this aspect further inasmuch as the State Government in
the return filed before the High Court stated that it only intended and
meant to act under the first proviso to r. 161(1)(a) and not under
r. 161(1)(c)(ii)(l). It is' averred in the return that the case of the appel·
lant was reviewed and it was decided to compulsorily retire him on his E
attaining the age of 55 years. There is no material placed to show that
such compulsory retirement was necessary in the public interest. The
appellant has had an unblemished record and there was nothing
against him to doubt his integrity, fitness and competence. In some·
what similar circumstances this Court in H. C. Gargi v. State of
Haryana, [1986] 4 SCC 158 struck down the order of compulsory F
retirement under r. 3. 25(d) of the Punjab Civil Services Rules,
observing:

"The power of compulsory retirement under Rule 3.25 (d)
of the Rules can be exercised subject to the conditions
mentioned in the rule, one of which is that the concerned G
authority must be of the opinion that it is in public interest
to do so. The test in such cases is public interest as laid
down by this Court in Union of India v. Col. J.M. Sinha. It
does not appear that there was any material on the basis of
which the State Government could have fonned an opinion
that it was in public interest to compulsorily retire the H
652 SUPREME COURT REPORTS [ 1987] 3 S.C.R.

A appellant at the age of 57 years. There was really no justifi-
cation for his compulsory retirement in public interest."

There is no reason for us to take a different view in the facts and
circumstances of the present case. The impugned order of compulsory
B retirement of the appellant purporting to be under the first proviso to
r. 161( l)(a) of the Rules must therefore be struck down as arbitrary.

In the result, the appeal succeeds and is allowed. The impugned
order passed by the State Government dated September 13, 1967 for
compulsory retirement of the appellant made under the first proviso to
r.161(1)(a) of the Bombay Civil Services Rules, 1959 is quashed and he
C shall be deemed to have retired from service on attaining his normal
age of superannuation of 58 years on November 12, 1970. We under-
stand that the pension of the appellant has already been fixed on the
pay scale of Superintending Engineer and the effect of this order is
confined to payment of the difference between salary and pension for
D three years and to the benefit of the revised pay scale of Superintend-
ing Engineer in the matter of computation of pension.

P.S.S. Appeal allowed.