S.C. JAINversusSTATE OF HARYANA AND ANR.

                                                               727


                             S.C. JAIN                                A
                                  v.
                    STATE OF BARYANA AND ANR.

                          &OVEMBER 4, 1985

             [E.S. VEM<ATARAl'JIAll ANL R.li. ~J:SRA, JJ.]            B

      Punjab Civil Services Rules, Vnl. ll, Part ll, Rule 5.
32(c) and Punjab Civil Service Rules Vol. I Part I, Rule 3.26 (c)
and {d) - Premature retirement - Rule 3. 26 (c) - Applicability
of - Whether Rule 3.26(c) provides immunity to Superintending
Engineers.                                                            {,


     Rule 3.26 (c) of the Punjab Civil Service Rules Vol. I part
1 enacts: "The following are specisl rules applicable to P.W.D.
Officers :-

           1. Except as otherwise provided in this sub-clause,        r;
           Government employees in the Haryana Service of
           Engineers Class I (ll&R, 1.:s. 8lld Electricity) lllllSt
           retire on reaching the age of 58 years, 8lld may be
           required by the c JmPetent authority to retire on
           reaching the age of 50 years if they have not attained
           the rank of superintending Engineer.                       E

      The Respofldent - State of Haryana by its order No.ll/3-BR
(Estt)-6-81 dated 18 December 1981 retired the appellant, a
Superintending Engineer, prematurally after he attained the age
of 50 years in pursuance of the provisions contained in rule
5.32(c) of the Punjab Civil Service Rules, Vol.II Part II 8lld
Rule 3.26(d) of the Punjab Civil Services Rules, Vol. I, Part I       F
as applicable to the State of Baryana. The appellant's promotion
to higher and higher ·posts in quick succession in the past
unmistakably indicated thst the authorities were satisfied with
his work and integrity. He was promoted to the post of
Superintending Engineer on 27th May 1971. The appellant made
several representations against the order of premature                G
retirement, but did not receive sny reply despite repeated
reminders. Ultimately, he challenged the impugned order of
premature retirement by a writ petition in the High Court of
Punjab and Baryana on the ground, inter alia, thst in view of the
clear provisions contained in rule 3.26(c) of Punjab Civil
Services Rules Vol. I, Part I (as applicable to Barysna), which
are special rules applicable to the Public works Department           h
     728              SUPREl<JE COURT REFORTS     [1985] SUFP. 3 s.c.R.


A    Officers, the general rule contained in rule 3.26(d) empowering
     the Govermnent to compulsorily retire a public servant has no
     application 1.n his case. The High Court dismissed the writ
     petition in limine.

           Allowins the appeal,
II
          Bl!LD: l. The order of the lligh Court dated 5th January, 1984
     is set aside. The order of premature retirement dated ·18th
     December 1981 is quashed. The appellant shall be deemed to be in
     continuous service• He is entitled to his salary, emolument1 and
     other consequential benefits to which he would have been entitled
     to if he had not been prematurely retired. [738 G]
c
           2.(i) Rule 3.26(c), which is a special rule applicable to
     Govermnent employees in the Haryana Service of Engineers Class I,
     will govern the case of the appellant as the speci..l overrides
     the general. Admittedly, he was workins as the Superintending
     Engineer for the last so many years on the date when the impugned
     order of his premature retirement was passed by the Governor.
D    This rule provides an imnunity to the engineer who has attained
     the rank of Superintendins Engineer. A bare perusal of the old
     rules will also indicate that an eng1neer who has attained the
     rank of Superintending Engineer in the B.w.n. (ll&R Branch) had
     always the :Immunity ever· since the provision for premature
     retirement came into force. The old correspondins rules do not
E    improve the position for the State-respondent. [734 E; 732 E]

           2(ii) Rule 3.26(d) i.s applicable to all govermnent employees
     but not to eng1neers of the P.w.n. for whom there is a special
     rule. It is a supplement to rule 3 .26(a) because it supplies the
     procedure to be adopted in case of premature retirement of other
F    C.overmnent servants. [735 E-F]

          3. The headins 'Compulsory Retirement' is wide enough to
     include premature retirement within its fold. Govermnent employee
     in the Haryana service of Engineers has no right to continue in
     service if he has reached the age of superannuation which is 58
G    years in the case of ensineers, He has perforce to retire unless
     he has been granted an extension. Likewise an eng1.neer who bas
     not reached the age of superaruruation but is made to retire
     prematurely, his retirement is as much a compulsory retir=mt as
     that of an employee who has attained the age of superannuation.
     It will not be correct to say that the age of superannuation in
 H   case of ensineers who have not· attained the rank of Superint• ld-
     ing Ensfneers has b.<len reduced to 50 year,, [735 A-<:]
                     s.c. JAIN v. STATE [MISRA, J.]             729


     It. Nuufrhad>ar v. l'be State of Mysore, [1960] l s.c.R. 981
                                                                      A
relied upon.

        CIVIL APPELLATE JURISDICTION       Civil Appeal No. 4953 of
1985.

     From the Judgment and Order dated 5.l.1984 of the Punjab and
                                                                      B
Haryana High Court in Civil Writ Petition No. 4546 of 1983.

        Dr. y,s. Chitale, and A.K. Ganguli for the Appellant.

     Harbans Lal, 1.s. Goel, c.v. Subba Rao and R.•. Poddar for
the Respondents.
                                                                      c
        The judb'll"nt of the Court was delivered by

     MISRA, J. Special leave granted. This appeal by special
leave is directed against the order of the High Court of Punjab
and Haryana dated 5th January, 1984 dismissing the writ petition
                                                                      D
in a service matter.

      The appellant joined service as a Sub-divisional Officer
(Assistant Engineer) in Class II on 28th August 1953 in the
former State of PEfSU. On 1st November 1956 the State of PEPSU
and Punjab were merged and the appellant was integrated in the
                                                                      E
service of the reorganised State of Punjab. He worked on this
post for about eight years and during the period he was posted at
various places in the State and was assigned different kinds of
duties. The authorities being satisfied with his performance, ·he
w~s promoted to the post of Executive Engineer in Class I
Gazetted on 24th Y;ay, 1961. He was allowed to cross the
efficiency bar immediately when it became due. On this post he
                                                                      F
worked for about ten years. Considering the efficiency and suit-
ability of the appellant he was confirmed on the post of
Executive Engineer in Class I Gazetted on 1st April 1965.

     On lst November 1966 the State of Punjab was bifurcated into
the State of Punjab and the State of Haryana. On the
                                                                      G
reorganisation of the State of Punjab the petitioner came to be
allocated to the service of the State of Haryana. In the new
State also his performance was excellent and the authorities
satisfied with his meritorious services, gave him a selection
grade of the post of Executive Engineer. The admission of the
apellant to the selection grade itself is indication of the fact
                                                                      H
    730            SUFREME COURT liEPORTS      [1985] SUFP. 3 s.c.R.


    that the authorities were satisfied with his work, honesty,
A   integrity and his capability. In due course the appellant was
    also promoted to the post of Superintending Engineer on 9th
    February, 1970. He had hardly worked for about a month when he
    was reverted but not because of any complaint against him or his
    inefficiency but because one of the posts of Superintending
    Engineers was reduced by the Government. The appellant being
B   junior-most was reverted. But when the post of a Superintending
    Engineer again fell vacant the State of Baryana promoted the
    appellant to the said post promptly on 27th May 1971. On account
    of his meritorious service he was found fit to be posted first as
    Additional Director of Technical Education, Haryana for about
    four years and thereafter as Director P.w.D. (B & R) Reserach
    Laboratory at Nilokheri. The work of the P.W.D. Laboratory was
C   highly specialised and skilled and required care, precision and
    accuracy and only officers of the merit and proven ability,
    competence and having research aptitude are posted there. The
    appellant was considered to be the most appropriate officer for
    that post.

         The appellant by a letter dated 19th October, 1981 was
D   offered the post of Superintending Engineer on deputation to the
    Delhi Development Authority. This offer was made to the appellant
    in view of the request from the Delhi Development Authority for
    names of suitable officers. Again on 11th December 1981 the
    appellant received a telegram from the office of the Engineer-in-
    Chief seeking the willingness of the appellant for nomination for
E   the post of Civil Engineer for an assignment with the Government
    of Libya. Shortly thereafter the appellant received an other
    offer from the office of the Engineer-in-Chief, Haryana P.W.D. (B
    & R), Chandigarh on 15th December, 1981. This offer was pursuant
    to the request of the management of Dayanand University, Rohtak
    asking for names of Superintending Engineers for the post of
F   Chief Engineer. This offer was made only to the Superintending
    Engineers who were considered competent by Engineer-in-chief,
    Haryana P.w.D.(B & R), Chandigarh.

         The sequence of events and the promotion of the appellant to
    higher and higher posts in quick succession speak for themselves
G   and they unmistakably indicate that the authorities were
    satisfied with his work and integrity. So far all was well with
    him.

         It appears that on 15th December, 1981 the appellant applied
    for casual leave for four days from 21st to 24th December, 1981
H
                  S.C. JAIN v. STATE [MSRA, J.]               731


and the station leave from 19th to 27th December which was          A
sanctioned by the office of the Chief Engineer on 17th December
1981. When he was availing the leave he received a telegram
intimating that his casual leave and station leave have been
cancelled. Neither the telegram nor the confirmatory letter dated
21st December, 1981 received subsequently disclosed the reason
for the cancellation of leave. The appellant, therefore, had to     B
join and resume his duties as per instructions in the said
telegram. The appellant received the impugned order No.11/3-BR
(Estt)-6-81 dated 18th December, 1981 from the Government on 29th
December, 1981 prematurely retiring him from service after
attaining the age of 50 years. !he impugned order of premature
retirement dated 18th December, 1981 is in the following terms:     c
           ''Whereas the Governor of Raryana is of the opinion
           that it is in the public interest to retire shri s.c.
           Jain, superintending Engineer, Raryana P.w.D. ( B & R
           Branch) from service after attaining the age of SO
           yrs.                                                     D
           Now, therefore, in pursuance of the provisions
           contained in rule 5.32(c) of the Punjab Civil Service
           Rules Vol. II, Part II and rule 3.26(d) of the Punjab.
           Civil Services Rule Vol. I, Part I as applicable to
           the State of Raryana, the Governor of Raryana in the     E
           public interest hereby orders the payment of three
           months pay and allowances in lieu of notice to Shri
           s.c. Jain, Superintending Engineer and retires him
           from Raryana Government Service with effect from the
           date of receipt of this order.

                                      By Order of the Governor.     F
                                  Sd/~ Commissioner &Secretary
                              to Govt. Raryana PWD B & R Branch."

     The appellant made several representations against the order
of premature retirement on 25th January, 1982, 26th April, 1982,
25th July 1962 to the respondents with copies forwarded to the      G
Chief Minister of Haryana, Minister for P.W.D., Raryana and the
Engineer-in~ief P.W.D. B & R Branch,    Raryana. The appellant,
however, did not receive any reply despite repeated reminders.
The appellant also separately submitted representation to the
Chief Minister, Haryana in January 1962. The same was forwarded
to the then Minister for P.W.D. (B&R), Kanwar liam Pal Singh for
examining the representation in detail, who after examining the     R
position made the following remarks on the representation itself:
    732             SUPREME COURT REPORTS          [1985] SUPP. 3 s.c.R.


          "Recomnended strongly restoring him to his original post.
A
                                                      Sd/- Ram Pal Singh
                                                  P.W.M. 25th April 1982"

    Despite the recommendation of the P.w.u. tdnister the appellant
    got no relief. Under the circumstances he was constrained to take
B   recourse to court of law and he challenged the impugned order of
    premature retirement by filin& a writ petition in the High Court
    of Punjab and Baryana on grounds inter alia that in view of the
    clear provisions contained in rule 3.26(c) of Punjab Civil
    Services Rules Vol. I, Part I (as applicable to Baryana), which
    are special rules applicable to the Public Works Department
    officers, .the general rule contained in rule 3.26(d) empowering
C   the Government to compulsorily retire a public servant has no
    application t,p the present case. Curiously enough the High Court
    dismissed the writ petition in limine by a cryptic order: "No
    merit. Dismissed," The appellant has now approached this Court by
    special leave. lie has taken ell those grounds taken by him in
    the writ petition.

D         Dr. Y.s. Chitale appearing for the appellant forcefully
    urged that in view of the provisions of rule 3.26(c) of the
    Punjab Civil Service Rules, Vol. I, Part I, the appellant could
    not be retired prematurely. We heard the counsel for the parties
    on this point first and indicated that if the first contention of
    Dr. Chi tale win; not acc.epted we would hear the counsel for the
E   parties on other points involved in the case. Having heard the
    counsel for the parties at some length we are of the view that
    the first point raised Ly Dr. Chitale is formidable and the
    appeal must succeed on this point alone. It is, therefore, not
    necessary to hear the parties on other points involved in the
    case.
F
          In order to appreciate the contention of Dr. Chitale it will
    be pertinent to quote rule 3.26(a) to 3.26(d) of the Punjab Civil
    Services Rules, Vol. I, Part I applicable to the present case
    (1980 Print) :

G                       "COMPULSORY RETIRE.MEN!

               3.26(a) Except as otherwise provided in other clauses
               of thts rule, every Government employee shall retire
               frOID service on the afternoon of the last day of the
               month in which he attains the age of fifty-eight
H
        S.C. JAI1' v. ST1'1E [hlSRA, J. J          733


 years. lie must not be retained in service after the
 age of compulsory retirement, except in exceptional     A
 circumstances with the sanction of the competent
·authority in public interest, "hich must be recorded
 in writing:

Frovided that the age of compulsory retirement for
class IV Government employee shall be sixty years:       B

Provided further that a Government employee whose date
of birth is the first of a month shall retire from
service on the afternoon of the last day of the
preceding month on attaining the age of fifty-eight or
sixty years as the case may be.                          c
(b) ......

(c) The following are special rules applicable to
P.w.n. Officers :-

 (l) Except as otherwise provided in this sub-clause,
{;overnment employees in the liaryana Servke of
Engineers, Class I (~ & K, I.B. and Electricity) must
retire on reaching the age of 58 years, and may be
required by the competent authority to retire on
reaching the age of 50 years if they have not attained   E
the rank of Superintending Engineer.

(2) Subject to the requirements of this sub-clause as
to r.e-appointment, the competent authority may, in
speical circumstances, which should be recorded in
writing, grant an extension of service, not exceeding
three months , to a Chief Engineer.                      F

(3) No Chief Engineer shall, without re-appointment,
hold the post for more than five years, but
re-appointment to the posts may be made as often, and
in each case for such period not exceeding Jive years
as the competent authority may decide: Provided that     G
the term of re-appointment shall not extend more than
three months beyond the date on which the Government
employee attains the age of 58.

(d) The appointing authority shall, if it is of the
opinion that it is in the public interest so to do,
                                                         B
    734               SUPIIBME COURT REPORTS       [1985] SUPP. 3 S.C.R.


               h~ve    the absolute   right    to retire any Government
A              employee, other than Class IV Government employee 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 class I or class II Service or post and
B              had entered Government service, before attaining the
               age of thirty-five years, after he has attained the
               age of fifty years; and

               (ii) (al If he is in class 111 Service or post, or

               (b) If he is in class I or Class 11 service or post
c              and entered Government service after attaining the age
               of thirty-five years;

               after he has attained the age of fifty-five years.

               The Government employee would stand retired immediate-
               ly on payment of three months' pay and allowances in
D              lieu of the notice period and will not be in service
               thereafter."

         Rule 3.26(c), which is a special rule applicable to
    Government employees in the Haryana Service of Engineers Class I,
    will govern the case of the appellant as the special overrides
E
    the general. Admittedly he was working as the Superintending
    Engineer for the last so many years on the date when the impugned
    order of his premature retirement was passed by the Governor.
    This rule provides an immunity to the engineer who has attained
    the rank of Superintending Engineer. The appellant, therefore,
    gets the protection of clause (1) of rule 3.26(c).
F
          tihri Harbans Lal appearing for the State of Haryana in reply
    refutes the contention raised by Ur. Chi tale and contends that
    the second part of rule 3.26(c)(l) only authorises the Secretary
    to Government in consultation with the Finance Department, to
    reduce the age of superannuation below 58 and above 50 with
G
    regard to class I officers of the P.W.V. if they have not
    attained the rank of Superintending Engineers. This rule
    according to him is an enabling provision authorising the
    secretary to Government to reduce the age of superannuation of
    all Class I officers of the P.W.D. if they have not attained the
    rank of Superintending Engineers and if they did so then all such
H
    officers who have attained 50 years should retire.
                        S.C. JAIN v. STATE [hISRA, J.]                735


         The contention of. Shri liarbans Lal has absolutely no force
                                                                            A
    for a variety of reasons: Firstly, the heading 'Compulsory
    Retirement' is wide enough to include premature retirement within
    its fold. A Government employee in the Raryana service of
    Engineers has no ri~ht to continue in service if he has reached
    the age of superannuation which is 58 years in the case of
    engineers. lie has perforce to retire unless he has been granted
    an extension. Likewise an engineer who has not reached the age of
    superannuation but is made to retire prematurely, his retirement
    is as much a co1Lpulsory retirement as that of an empl-0yee who has
    attained the age of superannuation. It will, in our opinion, not
    be correct to say that the age of superannuation in case of
    engineers who have not attained the rank of Superintending,
    Engineers has been reduced to 50 years. his contention, if
                                                                            c
    accepted, would result in an absurdity. The inevitable result
    will be that all Executive Engineers will have to retire at the
    age of 50 which could never have been intended by the rule
    makers. The argtlllient of the learned counsel for the State is a
    desperate one indeed.
                                                                            L
         Shri Barbans Lal tried to bring this case within the fold of
    rule 3.26(d). This rule gives the appointing authority the
    absolute right to retire any Government employee other than class
    IV Government employee by giving him notice of not less than
    three months in writing or three months' pay and allowances in
                                                                            E
    lieu of such notice.

         This rule is applicable to all Government employees but not
    to engineers of the P.w.D. for whom there is a special rule. In
    our opinion it is a supplement' to rule 3.26(a) because it
    supplies the procedure to be adopted in case of premature retire-
    ment of other Government servants. We get support for our view
                                                                            F
    from M. Narash... char v. The State of kysore, [1960] 1 S.C.R.
    981.   That case involved the interpretation of article 294
    provides   that   a Government   servant   in superior    or inferior
    service who has attained the age of fifty five years may be·
    required to retire unless the Government considers him efficient
    and permits him to remain in service. But as the premature
                                                                            G
    retirement of an efficient Government servant imposes a needless
    ~harge on the State this rule should be worked with discertion.
    Article 297 laid down that a Government servant in superior
    service who has attained the age of fifty-five years may
    at his option retire from service on a superannuation pension~ .It
    was sought to be urged in that case that article 297 gave option
•   to the public servant whether he ret.ire& at     that    age or not •
                                                                            Ii
        736            SUPREME COURT REPORTS       [1985] SUPP. 3 s..c.R.


        This Court interpreting article 297 held that this article was
A       canplementary to article 294(a) which gives government the power
        of keeping Government servants in service beyond the age of 55
        years. Article 297 allows the Government servant, if the Govern-
        ment wants to keep him in service after 55 years to opt for
        retirement. It does not mean that it is entirely at the option of
        the Government servant to continue beyond the age of 55 years and
B       the Government cannot retire him at that age if he does not
        exercise the option.

             That decision involved the interpretation of different rules
        but the reasoning adopted in that case is applicable in the
        construction of rule 3.26(d) of the Punjab Civil Services Rules.

C            Shri Barbans Lal in support of his contention referred to
        the old corresponding rules. The relevant portion of the old
        rules is quoted hereunder:

                   "Rule 3.26 of c.s.R. (pb) 1941 Edition.

                   Compulsory Retirement
D
                   3 .26 (a) Except as otherwise ~rovided in the other
                   clauses of this rule the date of compulsory retirement
                   of a Government servant, other than a ministerial
                   servant, is the date on which he attains the age of 55
                   years. He may be retained in service after the date of
E                  compulsory retirement with the sanction of competent
                   authority on public grounds, which must be recorded in
                   writing, but he must not be retained after the age of
                   60 years, except in very special circumstances.

                   (b) •••••••••
    F
                   (c) The following are special rules applicable to
                   particular services :-

                   (i) ....•....

    G              (ii) Except as otherwise provided in this sub-clause
                   Civil Engineers of the Public ~arks Department nust
                   retire on reaching the age of 55 years, and may be
                   required by the competent authority to retire on
                   reaching the age of 50 years if they have not attained
                   the rank of Superintending Engineer.
    H
        S.C. JAIN v. STATE [MISRA, J.]             737


Rule 3.26 of Punjab c.s.R. Vol. I, Part l, 1953 Edi-      A.
tion.

Compulsory Retirement

3.26(a) Except as provided in other clauses of this
rule, the date of compulsory retirement of a              B
Government servant other than a Class IV Government
servant, is the date on which he attains the age of 55
years. Re inllst not be retained in service after the
age of compulsory retirement, except in exceptional
circumstances with the sanction of competent authority
on public grounds, which mus~ be recorded in writing.     c
(b) •••••

(c) lhe following are special rules applicable to
P.w.D. Officers :-
                                                          D
(1) Except as otherwise provided in this sub-clause,
Government servants ·in the Punjab Service of Engineers
Class l (B & R, l.B. and Electricity) must retire ·on
reaching the age of 55 years, and may be required by
the competent authority to retire ou reaching the age
of 50 years, if they have not attained the rank of        E
Superintending Engineer.

Rule 3.26 of Punjab Civil Services Rules, Volume l,
Fart l, 1963 Edition.

Compulsory Retirement
                                                          F
3.26(a) Except as provided in other clauses of this
rule, the date of compulsory retirement of a
Government servant which he attains the age of 58
years. He must not be retained in service after the
age of compulsory retirement, except in exceptional
circumstances with the sanction of competent authority    G
on public grounds, which must be recorded in writing.

(b) ••••••

(c) The following are special rules applicable to
P.w.D. Officer:-

(l) Except as otherwise provided in this sub-clause,
Government servants in the Punjab Service of
        738               SUPREME COURT REPORTS      [1985] SUPP. 3 s.c.R.


                   Engineers, Class I (B & R, I.B. Electricity) nrust
A                  retire on reaching the age of 58 years, and may be
                   required by the competent authority to retire on
                   reaching the age of 50 years 1f they have not attained
                   the rank of Superintending Engineer.

                   Clause (d) inserted in rule 3.26 vide Notification No.
B                  4118-3FR-74/24837 dated 12th July 1974.

                   3.26{d) The appointing authority may, if it is of the
                                                                               ,,
                   opinion that it is in the public interest so to do,
                   retire any Government servant, other than a Class IV
                   Government servant, by giving him a notice of not less      ;.
                   than three months in writing:-
c
                   (i) If he is in class I or class II service or post
                   and had entered Government service before attaining
                   the age of thirty-five years, after he has attained
                   the age of fifty years, and

                   (ii)     .......                                 .....      ·:or.
D
              A bare  perusal of the old rules will indicate that an
        engineer who has attained the rank of Superintending Engineer in
        the P.W.D. (B & R Branch) had always the iilllllUnity ever since
        the provision for premature retirement came into force. The old
        correspondini; rules do not improve the position for the State.
E       They rather support the contention of the appellant.

             .We enquired frolli Shri Harbans Lal Whether any other engineer
        in the Engineering Service of P.w.D. who had attained the rank of
        Superintending Engineer had ever been prematurely retired and he
        frankly admitted that there baa been no such case.
    F
              For the foregoing discussion the appeal must succeed. It is
        accordingly allowed with costs and the order of the l!igh Court
        dated 5th January, 1%4 is set aisde. 1he writ petition stands
        .allowed and the o~der of premature retirement dated 18th
        December, 1981 is quashed. The appellant shall be deemed to be in
    G   continuous-service. He is entitled to his salary; emoluments and
        other consequential benefits to which he would have been entitled
        to if he had not been prematurely retired.



    H   M.L.A.                                             Appeal allowed.