SJSIR KUMAR MITRA Vs. COMMISSIONER PRESIDENCY DIVISION

JUDGEMENT

(1.) THE petitioner, an amusement Tax Inspector of the calcutta Collect orate has, in this Rule, challenged the legality and propriety of the order dated August 6, 1974 of the respondent no. 1, the Commissioner of presidency Division, directing the compulsory retirement of the petitioner from service with effect from november 14, 1974 in the public interest under Rule 75 (aa) of the West Bengal service Rules, Part I. The petitioner has also challenged the action of the respondents in refusing to entertain his appeal against the said order.

(2.) MR. Maitra, learned Advocate for the petitioner has urged the following points : (1) The respondent no. 1 was not the appointing authority of the petitioner and, as such, he had no authority to pass the impugned order ; (2) the respondent no. 1 did not form any independent opinion as to whether it was necessary to retire the petitioner in the public interest, but ho acted as per the recommendation of the Review committee ; (3) no notice having been served upon the petitioner as mentioned in the impugned order, the same is illegal and should not be given effect to, and (4) the respondents have illegally refused to entertain his appeal under section 16 (1) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971.

(3.) REGARDING the first point, it is contended on behalf of the petitioner that under Rule 75 (aa) of the West bengal Service Rules, Part I, it is only the appointing authority who can direct the retirement of a Government servant. There can be no doubt that the power under Rule 75 (aa) can only be exercised by the appointing authority. The question is, therefore, whether the respondent no. 1, the Presidency Divisional Commissioner, is the appointing authority of the petitioner. In the petition, there is no statement as to the authority who appointed the petitioner. The respondents have in their affidavit-in-opposition categorically stated that the respondent no. 1 appointed the petitioner as the Amusement Tax Inspector. This statement has not been denied by the petitioner, but his contention is that under column (2) of item no. 10 of schedule I of the West Bengal Services (Classification, Control and Appeal)Rules, 1971, the appointing authority in respect of class III services to which the petitioner belongs is the ''head of offices belonging to West Bengal State service, Class I in respect of their own establishment or where there are no such officers, the officers just above the heads of Offices. '' It is argued that notwithstanding the fact that the petitioner was appointed by the presidency Divisional Commissioner, he can be retired from service only by the Head of the office of the Calcutta Collectorate, who is the Collector. This argument, in my opinion, has no substance at all. The words "appointing authority" have been defined in clause (II) of Rule 3 of the said Rules as follows :-"appointing authority" in relation to a Government servant means (i) * * * * (ii) * (iii) the authority which appointment the Government servant to such service, grade or post as the case may be, or, (iv) * * * * in view of the definition of the term appointing authority' as given in clause (iii) of Rule 3 (II) quoted above, the respondent no. 1 who appointed the petitioner is his appointing authority the Schedule to the said Rules have been framed for the purposes of Rules 6 (2), 9 (ii) and 15 (2) of which Rule 6 (2) is only relevant for our purpose. Under Rule 6 (2), all appointments to the West Bengal State Services, Class iii and Class IV, specified in the entries in column (1) of Schedule I shall be made by the authorities mentioned in the corresponding entries in column (2)of that schedule. Rule 6 (2) is, therefore, prospective and it has no retrospective operation. After the framing of the Rules, appointments to Class III and Class IV services shall be made by the appointing authorities as mentioned in column (2) of the schedule. The petitioner was appointed as an amusement Tax Inspector on July 23. 1941, and he was confirmed in the said post on September 1, 1942 by the presidency Divisional Commissioner. In my opinion, item no. 10 of the schedule referred to above has no manner of application to the instant case, and because of the definition of the term 'appointing authority', there can be no manner of doubt that the respondent no. 1, the presidency Divisional Commissioner, was the appointing authority of the petitioner and he was competent to exercise the power under Rule 75 (aa ). In the view which I take and the above definition rule out the application of the decisions in Gurdial Singh Bawa v. The Director of Industries, Haryana, 1971 (1) S. L. R. Vol. 5, 161 and Nanak saran Srivastava v. State of U. P. , 1971 (1)' S. L. R. Vol. 5, 169, strongly relied on by the petitioner. The contention of the petitioner relating to the first point is accordingly rejected.