KEWAL MAL SINGHI Vs. HETA RAM

JUDGEMENT

(1.) This is an application by Kewal Mal Singhi under Article 226 of the Constitution of India praying for a writ of 'mandamus' and 'certiorari' and 'prohibition' or any of these or any other order that may be appropriate to be issued' to the State of Rajasthan.

(2.) The facts, on which the present petition is based, are these. The applicant was serving as Section Superintendent in the Audit Department of the former State of Jodhpur under an order of appointment of the Finance Minister of Jodhpur, and under the Rules of service operative in Jodhpur on the 1st November, 1948. Under these Rules, he was entitled to continue in service till the completion of the age of 55 years, and was a permanent member of the public services of the former Jodhpur State. On the formation of the present State of Rajasthan on the 7th of April, 1949, the applicant continued to be employed in the service of the State of Rajasthan from that date in the Audit Department on a salary of Rs. 168/- per month in the grade of Rs. 120-6-180, and thus held a civil post under the State of Rajasthan. In May, 1949, however, the Government of Rajasthan laid down certain procedure and principles to be followed in carrying out the programme of integration of services in the various Covenanting states. Under that procedure, all Government servants who had completed 55 years oi' age or 30 years' qualifying service on the 1st May, 1949, were to be retired. In pursuance of this, the Accountant General, Jodhpur, directed, by an order dated 27th July, 1949, that the applicant be retired from service from the 15th of August, 1949. Later, however, this order was cancelled, and the Accountant General, Jodhpur, informed the applicant on the 16th of August, 1949, that his retirement had been deferred. The applicant thus continued in service up to the 26th of January, 1950, when the Constitution of India came into force. Thereafter, on the 25th of February, 1950, the applicant was informed that he would be retired with effect from the 28th of February, 1950, and he was actually retired from that date. The present application is directed against this order of retirement.

(3.) In the application a large number of grounds have been taken, which it would be cumbersome to put down here in detail. It is enough to say that the main points urged on behalf of the applicant are these: (1) In view of the Rules of Service in force in the former Jodhpur State, and in view of the guarantee given in Article XVI of the Covenant creating the United State of Rajasthan, the applicant submits that the order of retirement passed against him was 'ultra vires', illegal, invalid, and inoperative in law. (2) As the applicant had been appointed by the Finance Minister of the former Jodhpur State, and was continued in service by the State of Rajasthan, he could not be removed from service by any authority which was subordinate to that by which he had been appointed, and as such the Accountant General, Jodhpur could not order his retirement. (3) The order of his retirement before he completed the age of superannuation amounted to removal from service, and this could not be done without complying with the provision of Article 311(2) of the Constitution of India. As the provisions of that Article were not complied with, the applicant's removal was illegal. (4) The principle laid down by Government that those who had completed the age of 55 years or 30 years' qualifying service on the 1st of May, 1949, would be retired was 'ultra vires' their powers, as it was against Article 14 of the Constitution of India.