UNION OF INDIA Vs. T S MALHOTRA

JUDGEMENT

(1.) The question for decision before the FullBench is whether the notice dated 23/09/1966, issuedby the Secretary to Government of India under Rule 56(j) ofthe Fundamental and Supplementary Rules is Valid when admittedly the appropriate authority to issue this notice in this casewas the President and the notice is signed by the Secretary tothe Government of India and does not Indicate that the appropriate authority formed an opinion that it was in public interest to retire the Government servant concerned.

(2.) The petitioner joined service on 27/05/1929. On 13/06/1946, he was promoted to the post of Secretariat Superintendent Class II (Gazetted) and was later confirmed substantivelyon 24/04/1956 in the rank of Section Officer (Gazette). Witheffect from 22/01/1966, he was promoted and sent ondeputation to a Senior Class I post as Administrative Officer,Central Mechanised Farm, Suratgarh. This appointment required the sanction of the President which was duly accordedand published in Part I. Section 2 of the Gazette of India. The petitioner contended that as a Ministerial Government servant,having been appointed substantively before Match 31, 1938,with a lien on the permanent post, he was governed by Fundamental Rule 56 Clause (c) and was entitled to be retamed inservice till be attamed the age of 60 years on Septemner 14,1971. In August, 1966, however, memorandum No. 2-40/66-Estt. I, dated 30/08/1966 was served on him and he wasinformed that the question of his retention in service beyond55 years of age was reviewed in terms of the Ministry of HomeAffairs Memorandum No. 33/2/63-Estt(A) dated 3/12/1963 and that it was decided not to retain him in service afterhe attained the age of 55 years on 14/09/1966 and that"under F. R. 56(j) of the Fundamental and Supplementary Rules,Vol. I he will be deemed to have retired on the expiry of threemonths from the date of this Memorandum." Later, however,in supersession of this Memorandum another notice No. 2-40/66-Estt. I, dated 23/09/1966 was sent to him whichstated that he shall retire from service on the expiry of threemonths from the service of that notice. Invoking Articles 226and 227 of the Constitution, the petitioner attacked thisnotice and prayed that the same may be quashed on thegrounds mentioned in the petition. By order dated 2 6/04/1968, this petition was accepted by the learnedSingle Judge who held that the order of retirement passedagainst the petitioner was in contravention of provisions of Rule56(j) and was, therefore, invalid and ineffective. The respondent, aggrieved from this order, came up in appeal orderclause 10 of the Letters Patent and the Division Bench havingregard to the nature of the points involved and the reference tothe full Bench in an other case of a point urged in this case atthat stage, that the impugned order was duly authenticated, referred this case also to a larger Bench and this is how this matteris now before this Bench for decision.

(3.) It is not disputed by the learned counsel for the appellantthat the action against the petitioner was taken under the provisions of Rule 56(j) of the Fundamental and SupplementaryRules and the notice was issued to him by the appropriateauthority under this provision. Fundamental Rule 56(j) assubstituted by the Fundamental (6th Amendment) Rules, 1965.hereafter called "the Rules" reads as under :