UNION OF INDIA ETC.versusK. R. TAHILIANI & ANR.

     1092

.A                             UNION OF INDIA ETC .
                                              v.
                             K. R. TAHILIANI & ANR.
                                   February 26, 1980
                                                                                            •
B                   [V. R. KRISHNA IYER AND A. D. KDSIIAL, JJ.J
         Fundatnental Rflfcs-Rule 56(i) (i)-Scopc of--Governn1cnt servant           of]i~
     elating in a class I or class Tl post-If could be con1pulsorily retired.

        On the question whether a GovErnment servnnt olTiciating in a class 1 or
     class JI service or post tould be retired compulsorily by exercising pow'er under
     r. 56(j) (l) of the Fonda.mental Rules after he. has attained! the agC' of 50 years.
c
        JlELD: 1. Rule 56(j) (i) is mea.nt to cov'er only those who are in a post on
     a regular basis, that is, in a substantive capacity and not on an officiating basis
     only.    [1094El
        2. A government servant ordinarily holds service at the pleasure of the State
     which means pleasure canalised by rules. [1093H]
D         3. An officiating hand bas no right to the post and cannot be strictly said
     to be in tha.t service or post as a member of that servic'e. Jn short an officiating
     go\:ernment servant does not really b'e1ong to class I or class II service until he
     acquires a. right thereon. The stn1cture of the clause "if he is in class I or class
     II service or post" emphasises the natur'e of the service or post vis-a-vis the
     Govern1nent servant concerned. When a government servant belonging ttJ class
     I or class II service or post on a regular basis has to b'e retired compulsorily
E    rule 56(j) (i) comes to the rescue of the Governn1ent. But if he is only a tem-
     porary hand ¥/ho has no right to the post he can alw2.ys be reYerted to lhc post,
      if any, on which he has a lien. Sin1ilar is the po~ition of an officiating hand.
     [1094B-DJ
         4: Although the rule vests an absolute right in the appropriate authority to
     retire a government servant in public interest absolutis1n and arbitranness are
F    ccntrar:v to the scheme of the rules of this kind. Even while exercising lh.e po\ver
     under this rule the Stare should take care not to act arbitrarily, misguided by the
     absolute expression in the nde. [1094F-G]
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 850 of 1978
        Appeal by special leave from the judgment and order dated
     22-7-1977 of the Delhi High Court in LP.A. No. 97 of 1977.
G
                                            AND
             Civil Appeal No. 2008 of 1978.
        Appeal by special leave from the judgment and Order dated
     19-5-1978 of the Allahabad High Court in Civil Misc. Writ No.
H    1592/76.
          G. L. Sanghi, R. B. Datar and Miss A. Subhashini for the Appel-
     lant in both the appeals.
                   UNION v. K. R. TAlllLIANI   (Krishna Iyer, J.)            I 093


• '<        M. K. Ramamurthy, G. D. Gupta and Miss Anita for the Respon-             A
         dent in CA No. 850/78.
            Shanti Bhushan and P. K. Pillai for the Respondent in CA No.
         2008/78 .
    •       The Judgment of the Court was delivered by
                                                                                     8
            KRISHNA IYER,    J.-Two government servants have been retired
        from service in exercise of the powers vested in the Central Govern-
        ment by Rule 56 (j) (i) of the Fundamental Rules. They have
        successfully challenged compulsory retirement by petitions under
        Article 226 of the Constitution and the Union of India has come up
        in appeal to this Court by special leave. The sole question to be            c
        decided is whether a government s·ervant officiating in a Class I or
        Class II service or post can be retired compulsorily by exercising the
        power under Rule 56 (j) (i) after he has attained the age of 50
        years.
            The biographical details of these two officials in government scr-       D
•       vice need not detain us because the facts arc admitted and the only
        point at issue is whether Rule 56(j) (i) will apply to a government
        servant who is only officiating in a Class I or q~ss II post or service.
        We agree with the High Court that on a correct interpretation of that
        Rule, an officiating hand will not be caught in the claws of the com-
        pulsory retirement provision. The reasons may briefly be stated by           E
        u·s now although these have been elaborately set out by the High
        Court (in the Delhi case).
            We may extract the relevant part of the Ruic at this stage:
                 "56. (j) Notwithstanding anything contained in this
             rule the appropriate authority shall, if it is of the opinion           F
             that it is in public inters! to do so have the absclute
             right to retire 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 pest and had           G
                   entered Government service before attaining the age
                   of thirty live years after he has attained the nge of
                   fifty years."                        ·
           A Government servant ordinarily holds service at the pleasure of
        the State but in our Republic where the rule of law prevails even            H
        pkasure is canalised by rules. Viewed from this perspective security
'       of tenure is a value in itself. In Government jurisprudence it is,
     1094               SUPREME COURT REPORTS               [J 98()j 2 S.C.R.

A    however, open to the State to make rules under the proviso to Article
     309; and Rule 56 (j) is one such rule. Assuming as we do, the
     validity of the said Rule, the question of construction causes little
     difficulty once the scheme of the provision is understood correctly.
        An officiating hand has no righJ to the post and is perhaps a            •
B fleeting bird who may have to go back to the substantive post from
   which he has been IJromoted on an officiating basis. What is more
   to the point, a person who has been appointed de novo may begin
   his service on an officiating basis or on l! temporary basis aJ!d it is
   obvious that he has no right to the post and cannot be strictly said
   to be in that service or pq_st as a member of that service. In short,
c an ofijciating Government servant does not really belong to Class l
   or Class II service until he acquires a right thereon. Even viewed
   closely and meticulously, the structure of the clause, namely, "if he
   is in Class I or Class II services or post", emphasises the nature of the
   service or post vis-a:-v.is the Government servant concerned. We
   need not go into the sel\lantic shapes, lexical 11iceties or linguistic
D
    nuances but only go through the mf_aning and purpose of the pro-                 •
    vision. When a Governm.ent servant belo.llging to a Class I or Class
    II service or post on a regular basis bas to !Je retired compulsorily,
    Rule 56 (j) (i) 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
 E 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 in-
    evitable conclusion that Rule 56 (j) (i) 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.
          In passing, we may make it clear that although the Rule vests
 F
      an absolute right in the appropriate authority to retire a Gove!lllllent
      servant in public interest, Y,et absolutism arid arbitrariness are con-
      trary to the scheme of the rul~s we are concerned with. We, there-
      fore emphasise the fact that even while exercising power under Rule
      56 (j) (i) the State will take care not to act arbitrarily, misguided by
G     the a_bsolute expression in the Rule.                                          ~\
           We dismiss the two Appeals and vacate the stay in Civil Appeal
       No. 850 of 1978. In each case, costs quantified in a sum of Rs.
      2,500/- (Two Thousand and Five Hundred) will be paid. The
      counsel for the respondents in both the cases have generously agreed
      that Rs. 1,000/- (One Thousand), out of the said sum be p_aid over
 H     to the Free Legal Aid Society in each case.

      P.B.R.                                              Appeals dismissed.         '