GORAKHANATH RAMSWROOP SINGH Vs. GOVT OF M P

JUDGEMENT

(1.) THIS petition is directed against the order of the petitioner's retirement purporting to have been made under rule 2 (3) of the New Pension Rules, 1951.

(2.) A brief history of the petitioner's service career may be stated. The petitioner entered the service of the Government as a constable in the Special Armed Forces and was appointed on 29 -9 -1942. On 1 -4 -1947 he was promoted as Head -constable, Police and in due course of time promoted as a Platoon Commander with effect from 28 -4 -1957. Lastly, he was promoted as Company Commander on 10 -1 -1972. There was some dispute as regards the date of birth of the petitioner but for the purposes of this petition, it is not disputed that his date of birth is 15 -4 -1921. On 17 -6 -1974, by an order ostensibly made under rule 2 (3) (ii) of the New Pension Rules, 1951, the petitioner was given a three months notice for compulsory retirement. The order stated that the petitioner had completed 25 years of qualifying superior service and it was decided to retire him under rule 2 (3) (ii) of the New Pension Rules. 1951. It further stated that after the expiry of the three months period, he would be retired. The petitioner seeks to challenge the validity of this order.

(3.) THE question for consideration is whether the order could be said to be made under rule 2 (3) (ii) or rule 2(3) (i) of the New Pension Rules, 1951. Merely because a wrong provision was quoted the order of retirement could not be struck down unless it was found that the Government had no power to make the order of retirement or that the pre -requisite for invoking such power were not satisfied. The Government has powers to retire a Government servant under the New Pension Rules under rule 2 (2) and rule 2 (3). The rules are mutually exclusive and deal with different circumstances. Under rule 2(2), the Government may require the Government servant to retire at any time after he has completed 30 years qualifying superior service provided the appropriate authority shall give in this behalf a notice in writing to the Government servant at least three months before the date on which he is required to retire. This power has necessarily to be exercised after the Government servant completed 30 years qualifying superior service and the Government servant has been given three months notice before he is required to retire. The order has to be passed by the appropriate authority.