GENDA LAL SHARMA Vs. STATE OF M.P.

JUDGEMENT

(1.) FEELING aggrieved by the impugned order dated 28.6.88 (Annexure -C) by which the petitioner was retired compulsorily he has filed this petition. This petition was originally filed by petitioner before this Court, which was registered as Misc. Petition No. 3621/88, however, on the establishment of Madhya Pradesh Administrative Tribunal the same was transferred to it and thereafter on abolition of the Tribunal this petition has been received by this Court again. The impugned order dated 28.6.88 (Annexure -C) which has been challenged by the petitioner, is the order retiring him compulsorily. This order was issued by the State of Madhya Pradesh Local Self Government under R.30 of the Madhya Pradesh Municipal Service (Executive) Rules, 1973, which reads as under : -

(2.) THE contention of learned counsel for petitioner is that petitioner has been wrongly retired by applying the above said rule. According to him, petitioner was serving on the post of Chief Municipal Officer and, therefore, he is a government employee. In support of his contention he has placed reliance on Full Bench decision of this Court in the case of Suresh Chandra Sharma Vs. State of M.P. and another : 2000 (11) MPJR (FB) 449 = [2000(2) M.P.L.J. 530]. It has been further contended by learned counsel that if a government servant is required to be retired compulsorily, the relevant provision under the law is F.R. 56 (3). He has invited my attention to the said provision which reads thus : -

(3.) ON the other hand, Shri Jaideep Singh, learned counsel appearing for the respondents, argued in support of the impugned order. After having heard the learned counsel for the parties I am of the view that this petition deserves to be allowed. This fact has not been disputed by the respondents that the petitioner was serving on the post of Chief Municipal Officer when the order retiring him compulsorily was passed and if that be the position, in my opinion, he is a government servant as has been held by the Full Bench of this Court in the case of Suresh Chandra Sharma Vs. State of M.P. and others (supra) and, therefore, R.30 of the Madhya Pradesh Municipal Service (Executive) Rules, 1973, has no application and F.R. 56 (3) would be applicable to petitioner, since by applying wrong provision of law the petitioner has been compulsorily retired from his service vide Annexure -C dated 28.6.88, it cannot be allowed to stand in the eyes of law. The next question is that if the petitioner is a government servant whether he could be retired compulsorily earlier to the age of 55 years. In that regard F.R. 56 (a) (3) is quite clear which I have already quoted hereinabove. On going through the said provision it is luminously clear that a government servant cannot be retired compulsorily earlier to 55 years. Shri Pandey, learned counsel for the petitioner, has also invited my attention to the Division Behch decision of this Court in the case of State of M.P. and another Vs. Noor Jama Khan [ : 2002 (5) M.P.H.T. 537] wherein the Division Bench in para 6 and 10 has laid down the law, which I think it proper to rewrite as under : - Before we delve into the rival submissions raised at the Bar we must deal with the contention canvassed by Mr. Yadav that the Committee had recorded its subjective satisfaction and once subjective satisfaction has been recorded the Court should not interfere. In support of the aforesaid stand the learned Counsel has placed reliance on the decision rendered in the case of Union of India and others Vs. Dulal Dutt. : (1993) 2 SCC 179, wherein a three Judge Bench of the Apex Court has held as under: -