SISIR KUMAR MITRA Vs. COMMISSIONER PRESIDENCY DIVISION

JUDGEMENT

(1.) THIS appeal under clause 15 of the Letters Patent involves a short question as to who is the appointing authority empowered as such to direct compulsory retirement of the appellant under Rule 75 (aa) of the West Bengal Service Rules, Part i (hereinafter referred to as the said rules ). The facts are more or less not in dispute. The appellant was an amusement Tax Inspector of the Calcutta Collectorate. He was served with a notice of compulsory retirement under Rule 75 (aa) of the said Rules by the first respondent, the Commissioner of Presidency Division, the material part whereof recited :

(2.) SUCH a notice was challenged by the appellant in a writ petition principally on two grounds, namely, (i) that the respondent No. 1 not being the appointing authority in respect of the petitioner had not the authority to direct his compulsory retirement, (ii) that in any event the said respondent did not do so on any independent opinion of his own but did it mechanically acting on the recommendation of a review committee. The writ petition was contested by the respondents and a learned single judge of this court dismissed the writ petition on such contest overruling both the points so raised before him. So far as the first point is concerned, the learned judge in the trial court found on the affidavit evidence that the respondent No. 1 had actually appointed the appellant as the Amusement Tax inspector, and as such, must be held to be his appointing authority. Appellant's contention to the effect that irrespective of whether respondent No. 1 had appointed him or not, when under the West Bengal Services (Classification, Control and Appeal) Rules, 1971, the Collector and not respondent No. 1 is the appointing authority in respect of holders of posts held by the appellant, the Collector and not respondent no, 1 could have exercised powers under Rule 75 (aa) of the said Rules and directed appellant's compulsory retirement was overruled by the learned judge. It was so overruled firstly because according to the learned judge Rule 6 (2) of the West, bengal Services (Classification, Control and Appeal) Rules which conferred the power of appointment on Collector is not retrospective and as such can hare no application to the present case when the appellant was appointed long ago in 1942 and secondly because when the definition of the term "appointing authority" as given by West Bengal services (Classification, Control and appeal) Rules, 1971, covers the authority who had actually made the appointment along with the authority authorised to make the appointment, respondent No. 1 would as well be the appointing authority in respect of the appellant. So far as the second point raised by the appellant is concerned it was found by the learned judge that though in directing compulsory retirement of the appellant the respondent no. 1 accepted the majority opinion of the review committee recommending such retirement he did so upon his own decision, and as such, it cannot be said that the respondent No. 1 did not apply his mind or that he did not satisfy himself about the necessity of so retiring the appellant in public interest. Feeling aggrieved by the said decision of the learned judge in the trial court the present appeal has been preferred.

(3.) IN this appeal Mr. Maitra appearing on behalf of the appellant has very strongly contended that the learned judge in the trial court went wrong in holding that the respondent no. 1 was the appointing authority authorised as such by Rule 75 (aa) of the said Rules to direct appellant's compulsory retirement. According to mr. Maitra. the term 'appointing authority' in Rule 75 (aa) must necessarily mean the authority who for the time being is competent to make an appointment to the post held by the appellant. Since under the provisions of Rule 6 (2) read with entry 10 in column 2 of the First Schedule to the west Bengal Services (Classification, control and Appeal) Rules, 1971, it was the Collector who alone is authorised to appoint an Amusement Tax Inspector he alone should be taken to be the appointing authority competent to take action under Rule 75 (aa) and not the Commissioner, an authority higher in rank to the Collector even if the Commissioner might have appointed the appellant years ago. The learned jude in The trial court over-ruled thus contention when raised before him for reasons referred to hereinbefore. Rule 6 (2) of the West Bengal services (Classification. Control and appeal) Rules, 1971, provides: