Chittoor Varadaraja Iyer Narayana Iyer vs State of Travancore-Cochin

Koshi, C.J.—This is an application under Article 226 of the Constitution seeking ''inter alia'' to quash the proceedings of the Travancore-Cochin Government, dated 22-4-1950, sanctioning the retirement from service of Shri C.V. Narayana Iyer, the Petitioner herein, who was then Additional District and Sessions Judge, Ernakulam, Though the said proceedings stated that the retirement is to take effect "forthwith" for reasons which do not concern us here the Petitioner relinquished office only on 5-6-1950. By Government Proceedings dated 27-11-1950 the original proceeding was modified to this extent. A copy of the original proceedings reached the Petitioner on 24-4-1950 and on the same date he moved the Government for a reconsideration of the matter and to keep the original order in abeyance until after such reconsideration. Government, however, did not agree to the operation of the original order (vide letter dated 26-5-1950). It was after that refusal that the Petitioner handed over charge of his office on 5-6-1950. The review petition was not disposed of until 17-1-1952 on which date Government dismissed it stating that they did not see their way to reconsider the orders already issued. The Petitioner received a copy of that order on 18-1-1952 and soon after filed this application on 1-2-1952. The prayer the Petitioner makes in his application is in these terms:

The Petitioner, therefore, humbly prays that this honourable Court be pleased to call up the records relating to the above matter, quash the orders referred to, and issue any direction, order or writ in the nature of mandamus or certiorari to the Respondent, and direct him to restore the Petitioner to his legitimate post with all the emoluments attached to the same, and grant such other incidental reliefs as are necessary in the interests of justice, and the costs of this application.

The facts leading up to the Government proceedings dated 22-4-1950 sanctioning the retirement of the Petitioner from service may be briefly stated as follows: The integration of the States of Travancore and Cochin brought in its wake the problem of the integration of the services of the two States. Soon after the integration it came to the notice of Government that the dates of birth of several of their officers as entered in the Civil lists of the two States did not agree with the dates of birth of those officers as they were entered in the admission'' registers of the colleges or schools in which these officers had prosecuted their studies. Some high-placed officers quitted office immediately or were soon made to quit. The Government, however, soon found that the malady they had unearthed was far more widespread than what they had anticipated and wherever discrepancy between the age given in the Civil lists and that in the College admission register was noticed the officer concerned was asked to explain. On 9-2-1950 the Chief Secretary to Government sent a confidential communication to the Chief Justice of this Court stating that discrepancies of the nature referred to above were seen in the dates of birth of seven officers of the Judicial Department. The learned Chief Justice was requested to obtain the explanation of the officers as respects the discrepancies and forward the same to Government at a very early date. The Petitioner''s name was included in the list the Chief Secretary sent to the Chief Justice. According to the admission register of the Maharaja''s College, Ernakulam, where the Petitioner had his intermediate course, he was born on 10-7-1070 (January 1895). The date of birth of the Petitioner as entered in the Cochin Civil list was 17-7-1074 (27-2-1899). The Chief Justice in his turn sent confidential communications to the officers concerned and the Petitioner received the communication addressed to him on 23-2-1950. On the self-same date he submitted his explanation to the Chief Justice affirming that the date of birth given in the Civil List was correct and sought to support the same by certain documents. The Chief Justice was apparently impressed with the truth of the explanation and in forwarding the same stated that the Petitioner''s case deserved favourable consideration. Government had, however, in the meanwhile made their decision as to the general lines by which the problem of these discrepancies in the dates of birth of their officers should be solved. On 20-2-1950 Government issued a "Press Note" embodying what in current parlance may be called their policy statement concerning the problem. A copy of the same has been produced in the case and it reads thus:

The Government have decided that action will be taken on the following lines in the case of officers whose official and academic ages differ:

(i) Gazetted Officers with over 25 years'' service will be compulsorily retired.

(ii) Gazetted Officers with less than 25 years'' service and non-gazetted officers will be required to accept the dates of birth in the College Admission Register as the correct age.

The Petitioner had entered the service of the erstwhile Cochin State in November 1920 and he was confirmed in August 1924. He had therefore, more than twenty five years service on the date of the above "Press Note" and as per the same he had to be compulsorily retired. A decision to that effect was taken by the Council of Ministers on 19-4-1950: vide the extract of the proceedings produced by the State. Pursuant to this decision Government issued their proceedings dated 22-4-1950 which are now sought to be quashed. Subsequent events leading up to the presentation of this application have already been set forth in the preceding paragraph and there is no need to repeat them again.

The petition and the affidavit in support thereof run into several pages and it would be wearisome to put down here all the grounds mentioned there with their details. The main grounds urged before us in support of the petition could be conveniently summarised as follows:

(i) That the order for retirement of the Petitioner from service is ''ultra vires'' as it offends the Cochin Service Regulations which notwithstanding the integration continue to govern officers of the erstwhile Cochin State service and that the said order is hence illegal, invalid and inoperative in law.

(ii) That the said order was made in contravention of the rules of natural justice without due enquiry or even affording sufficient opportunity to the Petitioner to substantiate his case.

(iii) That the order has been made in violation of the inhibition against removal from service embodied in Article 311(2) of the Constitution in that reasonable opportunity of showing cause against the action proposed to be taken in regard to the Petitioner was not given to him.

(iv) That the order made without consulting the State Public Service Commission as required by Article 320(3)(c) cannot be sustained as a valid order.

(v) That the order offends Article 311(1) of the Constitution in that the removal was by an authority subordinate to that by which the Petitioner was appointed. The point of the objection was that inasmuch as Article 233(1) read with Article 236(a) and Article 238 provided inter alia that an additional District Judge shall be appointed by the Raj Pramukh in consultation with the High Court the Council of Ministers are incompetent to order the retirement which according to the Petitioner tantamounts to removal from service.

(vi) That the order of retirement is invalid as it has not been expressed to be taken in the name of the Raj Pramukh nor properly authenticated as such as required by Article 166 of the Constitution and relevant rules.

(vii) That the order is in violation of Article 19(1) of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of Travancore-Cochin State guaranteeing the continuance in service of the permanent members of the Public Services of the Covenanting States on conditions not less advantageous than those on which they were serving immediately before the integration.

The Travancore-Cochin State, the sole Respondent to this proceeding, oppose it and joined issue with the Petitioner on almost all the points referred to above. Besides it was also contended on its behalf that this Court''s jurisdiction under Article 226 could not be invoked to quash the order directing the retirement of the Petitioner from the service of the State as it is a mere executive order. The main plank of opposition, however, was that the officers of the civil service of the State hold office during the pleasure of the Raj Pramukh and that no public servant has an unqualified or indefeasible right to continue in service till he reaches a particular age. Furthermore it was contended that Article 19(1) of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of Travancore-Cochin State expressly, authorised the State to retire any officer of either Covenanting State on proportionate pension.

Learned and elaborate arguments were addressed before us on this petition by Shri T.M. Mahalinga Iyer for the Petitioner and by the Advocate General for the Respondent State. The petition came up before us for final hearing on 19th and 20th June. Soon afterwards on 27-6-1952 a similar application, O.P. 51 of 1952, happened to be referred to a Full Bench for decision. Exigencies of court work and convenience of counsel engaged in that case did not permit the hearing of that petition to be concluded before 7-8-1952. Both of us were members of the Full Bench and before the arguments in that case commenced we announced that the order on this petition will be pronounced only along with the disposal of that case. The arguments in that case were being watched by the Petitioner or his counsel and we thought it proper to repost this case for further hearing aftsr O.P. 51 was fully heard. That rehearing took place on 11-8-1952. The Full Bench has pronounced its order in O.P. 51 just now and we now proceed to give the decision on this petition.

The crucial point for determination in the case is whether the Petitioner''s retirement was ordered by-way of disciplinary action or whether it was in the exercise of the inherent right of the State to decide and determine the terms, and conditions of service under which the civil posts of the State shall be held and the policies behind them. At the rehearing the Petitioner''s learned Counsel virtually conceded that there would be an end of the Petitioner''s case if we were to hold that the Petitioner''s retirement was not brought about by any disciplinary action taken, against him. Very able arguments addressed at the Bar concerning questions arising from Articles 311, 320, etc., of the Constitution will then cease to have any importance to the decision of the case. Mr. Mahalinga Iyer did not also contend that though the age of retirement of civil servants in the superior service of either Covenanting State was fifty five the integrated State had not the right to fix a lower age for retirement if it so desires. We are not seeking to rest a decision on any concession but all that we state is that when the proposition was put to the learned Counsel at the rehearing he did not demur to it. We are unhesitatingly of the opinion that notwithstanding anything contained in the service regulations of either Covenanting State the integrated State has undoubtedly the right to fix afresh an age of retirement for their officers. We do not think it necessary to cite authorities for the proposition but be they needed we find them in two recent decisions, one in - Kewal Mal Singhi Vs. Heta Ram and Others, and the other in - ''State of Saurashtra v. Bholanath'' AIR 1952 Sau 49 (FB). It is worthy of note that those two States have also been formed by the integration of independent sovereign States following the declaration of independence for India. As a preliminary to the integration of these two States similar covenants as the Rulers of Travancore and Cochin entered into for the formation of Travancore-Cochin State were made by the Rulers of the independent sovereign States that went to constitute the respective Unions of Rajasthan and Saurashtra. For this part of the case we are not, however, placing any reliance on the provisions of the Covenant but as a matter of general proposition we hold that every State has the undoubted right of fixing an age of retirement, for its officers. No doubt usually it will not be done to the prejudice of the existing service personnel but that there is no legal bar or constitutional impediment against such action being taken is clear from the provisos to Articles 125(2), 148(3), 221(2), 314, 317, etc. of the Constitution. As observed in the Rajasthan case referred to above unless the State had the right to change the conditions of service, etc., there was no need to provide such safeguards as we obtain in the above provisions of the Constitution for Judges of the Supreme Court and High Courts, the Auditor General, Members of the Public Service Commission and such officers as come under Article 314. To hold otherwise than as stated above will be to convert a tenure during the pleasure of the Raj Pramukh (Article 310) into one during good behaviour.

With this premise we shall proceed to examine what the State of Travancore-Cochin actually did after its formation with regard to the age of retirement of its officers. As noticed earlier and as the counter affidavit filed on behalf of the State sets out the integration of the two States gave rise to the problem of the integration of the services. As the counter affidavit proceeds to state a working formula had to be evolved to deal with the surplus service personnel. The authorities would then seem to have hit upon the idea of taking advantage of the discrepancies regarding the age of some of their civil servants disclosed by comparing the entries in the Civil Lists of the two Covenanting States with those in the admission registers of the Educational institutions where those civil servants had studied and to adopt the dates given in the registers of the Educational institutions concerned as the dates to determine their retirement. Evidently ay in this case and in the case of the other officers mentioned in the Chief Secretary''s communication to the Chief Justice dated 9-2-1950 the admission registers of the Educational institutions concerned showed that according to the entries there several officers were much older than they were according to the Civil list entries. The above rule of thumb was evolved to solve the problem. No doubt it is both arbitrary and unscientific, but that is characteristic of all rules of thumb, its virtue being that it is a roughly practical method. The age of retirement remaining fifty five a different method of reckoning that age than with reference to the Civil list was evolved. We cannot on principle find any difference between this and the fixation of a lower age of retirement. However crude the idea or the language of the "Press Note" might appear to us to be its substance is what we have stated above. It does not in our view offend the Constitution or any law or rule. No doubt it is just possible that, in some cases the civil list entries will show a higher age than what the College registers disclose. The records produced give an indication that there has at least been one such instance and that the officer concerned got the benefit of the new rule by having his service extended. The statement made at the Bar that there were other stray instances of a similar nature was not sought to be controverted. Whatever that be so long as Government had the right to fix a higher or a lower age of retirement than what the existing service regulations stipulated it was not beyond them to evolve the policy or the rule they adopted.

However demeaning and unpleasant it may be for the services it is a matter of common knowledge that since the initial wave of unrest and uncertainty following the integration subsided wherever needed the civil list has been corrected so as to bring the dates of birth of the civil servants in conformity with the entries in the College or School admission registers. Where there was no discrepancy no correction was made, but that does not mean the governing dates for even those officers are not the dates entered in the admission registers of the Colleges or schools they prosecuted their studies.

Government have the right to evolve such a rule or regulation or policy, whatever name one might give to it, and determine when a particular officer should retire from service on superannuation in accordance with it. It cannot be said it is a disciplinary measure. It is not one aimed at any individual officer. It is something done in the exercise of the inherent right which a Government has. Further that it is not a disciplinary measure is seen from the fact that some, though only a very few, benefited by that rule in that they have been able to serve for a greater length of time than they would have been able to do as per the entries in the Civil List. If the suspicion or the feeling that several officers gave wrong age when they entered service furnished the ''motif'' for the action in evolving such a rule or policy the existence of surplus personnel provided the occasion for it. It is but an act of policy and judgment but not one conceived as a measure of discipline. Moreover so far as Petitioner was concerned, on 20-2-1950 when the "Press Note" was issued, according to the entries in the College admission register, he was past fifty five, he having completed that age as per that, entry in January 1950. That is, by the application of the new method of reckoning a civil, servant''s age the Petitioner had automatically to go out by reason of superannuation. His case also came expressly within Clause (1) of the "Press Note".

It may well be that the entry in the College register was a mistake but with all the good-will in the world towards the Petitioner we fail to find our way to hold that his retirement was ordered by way of disciplinary action. Once this rule or policy was adopted, not to have asked him to retire would have been to treat, him differently from Ors. who continue in service after the entries as to their dates of birth in the Civil list are brought into conformity with the corresponding entries in the Admission registers of their Colleges or Schools. It is no doubt true that consequent on the formation of the Travancore-Cochin State the question of surplus personnel did not arise so far as the Judiciary was concerned. The Petitioner is right when his affidavit goes on to state that after the integration, both before and after his retirement, there have been fresh, recruitments to the cadre of Additional District and Sessions Judges, but when a policy or rule is introduced Government have in justice and equity to apply the same to all their civil servants and not to discriminate one department from Anr. .

This right of Government to regulate or determine the tenure of their employees is part and parcel of, or implicit in, the theory that the civil servants hold office during the pleasure of the President or the Governor or the Raj Pramukh as the case may be. On this part of the case the discussion Tyabji J. makes at p. 215 of the report in - ''Jehangir M. Cursentji v. Secy. of State'' 27 Bom 189 and that made by Broomfield J. at p. 271 Col. 1 in - The District School Board Vs. Parameshwar Gattu Naik, make useful reading. The former case arose out of the publication by Government of the resolution passed by the Governor-in-Council degrading the Plaintiff in that case from the office he then held in the Provincial service, stopping all further promotion for him and deciding to compulsorily retire him at the age of fifty-five. The second case arose from a suit the Plaintiff there brought for damages for compulsorily retiring him from public service as a measure of retrenchment before he reached the age of fifty five. So long as the statutory inhibitions, if any, are not contravened the civil servants have no right to complain or any cause of action against the Government for or on account of the Government terminating their services. We have such inhibitions in Clauses (1) and (2) of Article 311 of the Constitution. An order for compulsory retirement pursuant to a policy of the Government or by the application of a hew rule does ''not, however, in our opinion amount to "removal" within the meaning of that Article, The decision in Kewal Mal Singhi Vs. Heta Ram and Others, adopts this view. That case related to a case of compulsory retirement of a public servant in accordance with the procedure laid down and principles adopted to facilitate the integration of service in the various Covenanting States of the Rajasthan Union. The removal contemplated, in Clauses (1) and (2) of Article 311 applies to cases of removal which are due to some fault or misconduct of the civil servant and does not apply to an order for retirement we have in this case pursuant to a general policy or programme of the Government. No doubt in a certain sense it is removal from service but not such as to attract the application of Article 311. It is a question of fact in each case whether the termination of the services of an employee amounts to removal (or dismissal) within the meaning of the Article. That must be determined on a consideration of the circumstances of the case C. Sambandam Vs. The General Manager, South Indian Railway, Tiruchirapalli, In all the circumstances of the case on hand we cannot find our way to take a view different from that indicated by us above, throughout the Respondent''s case has been that and the Petitioner himself understood it to be so. An extract from ground 1 (b) at sheet 5 of his petition may be usefully quoted here:

The Respondent does not pretend to have passed the order of 22-4-1950, as a matter of disciplinary measure against the Petitioner. On the other hand, the Respondent has presumably acted under a mistaken belief that it has powers vested in it to compulsorily retire even an erstwhile Cochin State Officer who has completed 25 years of qualifying service.

In this view of the matter points (ii), (iii) and (v) of Mr. Mahalinga Iyer''s arguments do not call for any further discussion. Inhibitions in Clauses (1) and (2) of Article 311 are against removal, dismissal, etc. Once it is established that the termination of the Petitioner''s services by compulsory retirement does not amount to removal as contemplated by the Article no question of any failure to afford him an opportunity to defend or an opportunity to show cause against the action proposed to be taken in regard to him arises in the case. The Petitioner''s date of birth as given in the College admission register being 10-6-1070 and Government having resolved to treat such entries as the governing date to determine the date of retirement the rest of what happened to the Petitioner followed as night follows day.

The view we take regarding the nature of the action of the Government in causing the Petitioner to retire would also make Article 320(3)(c) inapplicable to the case. The said provisions so far as material for our purpose states that the Public Service Commission shall be consulted on all disciplinary matters affecting a civil servant. Once we hold that the Government did not order the retirement of the Petitioner as a disciplinary measure point (iv) of the Petitioner''s arguments ceases to have any relevance.

Yet Anr. reason for sustaining the action of the Government as against the Petitioner is the provision in Article 19(1) of the Covenant entered into by the Rulers of Travancore and Cochin for the formation of the State of Travancore-Cochin. Clause (i) of Article 19 reads thus:

The United State hereby guarantees either the continuance in service of the permanent members of the public service of either covenanting State on conditions which will not be less advantageous than those on which they are serving immediately before the appointed day or payment of reasonable compensation or retirement on proportionate pension.

Mr. Mahalinga Iyer contended that the option this clause gives is to the civil servant and not to the State. We regret we cannot agree that the clause does not confer a right or option in the Government to dispense with a civil servant''s services on payment of reasonable compensation or to retire him on proportionate pension. To hold otherwise would not only be to go against the plain meaning of the words of the Article and the intendment thereof but would also be a negation of the Constitutional doctrine that ordinarily the civil servants hold office during the pleasure of the Crown (now the President, or the Governor or the Raj Pramukh as the case may be). Similar provisions in the Covenants entered into by the Rulers of the Constituent States of the Rajasthan and Saurashtra Unions have been so interpreted by the High Courts of those States in the two cases referred to earlier viz. - Kewal Mal Singhi Vs. Heta Ram and Others, and - ''State of Saurashtra v. Bholanath'' AIR 1952 Sau 49 (FB). This view involves that point No. (vii) of the Petitioner''s arguments is also without substance. Like the Rajasthan case the Saurashtra case also arose from an order compulsorily retiring a public servant prematurely.

An alternative argument raised by Mr. Mahalinga Iyer under the above head is equally untenable. It was argued that assuming the option vests with the Government they had already exercised it as per Section 6(2) of Ordinance I of 1124. The Covenant was to take effect from 1-7-1949 and the Ordinance was promulgated on that date. To accept this argument would mean that Article 19(1) of the Covenant served, no purpose. It is common knowledge that the integration of the services in our State is not yet fully over. With it alone the power conferred by Article 19(1) would if at all cease. It is for the purpose of the proper integration of the services that power was so expressly reserved in the Government to dispense with the services of civil servants of either Covenanting State on payment of reasonable compensation or by retirement on proportionate pension.

There now remain for consideration points (1) and (vi) of Mr. Mahalinga Iyer''s arguments. Point (1) is that the impugned order is in violation of the Cochin Service Regulations. While Article 309 of the Travancore Service Regulation expressly conferred a right on Government to retire an officer who has completed twenty five years of qualifying service without giving any reasons, the Cochin Service Regulations contained no such provision. Article 205 of the Cochin Service Regulations states that a retiring pension is granted to an officer, who voluntarily retires after completing qualifying superior service of twenty eight years. The Petitioner never asked to be retired nor had he twenty eight years of qualifying superior service on the date Government passed their order. It is true that even now Cochin Service Regulations apply to and govern officers of the former Cochin State service but those regulations and Standing Orders are only for the guidance of the Government and their officers. Any violation thereof will not confer a right of action for the aggrieved civil servant against the Government. See - ''Ramdas Hajra v. Secy. of State'' 17 Cal LJ 75 ,- AIR 1937 31 (Privy Council) , - AIR 1945 47 (Federal Court) , - AIR 1948 121 (Privy Council) , - Dr. M. Krishnamoorthy Vs. The State of Madras and Another, and - ''Sambayya v. Thrupatayya'' 65 MLW 659. Article 310(1) of the Constitution so far as relevant states that except as expressly provided by the Constitution every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Raj Pramukh of the State. As pointed out in - ''District School Board, North Canara v. Parmeswar Naik'' AIR 1943 Bom 263 at p. 271 this in effect means at the pleasure of the Government. We have already referred to what the express provisions of the Constitution qualifying this doctrine are and have held that those qualifying provisions have not been contravened in this case.

We shall next pass on to the sixth point which relates to the authentication of the impugned order of 22-4-1950. The fifth point will again have to be referred in the course of the discussion. The impugned order is as follows:

PROCEEDINGS OF THE TRAVANCORE-COCHIN GOVERNMENT.

Chief Secretariat, Service Section.

Sub: Government Officers - Discrepancy in the dates of birth.

Order No. S. 5-3672/50/C.S. dated the 22nd April 1950.

Government sanction the retirement from service of Sri C.V. Narayana Iyer, Additional District Judge, Ernakulam forthwith.

(By Order)

Sd. Assistant Secretary to Government.

The question of authentication was not raised in the petition or in the affidavit accompanying the same. It is seen mentioned for the first time in a supplementary affidavit filed on 2-6-1952. The Court never took any notice of it nor was any leave sought to amend the original application with a view to raise any fresh point. We should not be taken to mean such an application would have been allowed as a matter of course in a proceeding like the one before us now. We are only pointing out that the necessary formalities to enable the Petitioner to raise this point have not been gone through, but we do not want to dispose of the argument on this technical ground.

The order is no doubt not in terms of Clauses (1) and (2) of Article 166 of the Constitution but two recent pronouncements of the Supreme Court go to show that the order will not be null and void for that reason and that the defect is one curable by extraneous evidence to the effect that the decision was taken by competent authority. We have in mind the decisions in- Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, and - The State of Bombay Vs. Purushottam Jog Naik, Clause (3) of Article 166 provides that the Raj Pramukh shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Raj Pramukh is by or under the Constitution required to act in his discretion. The "Rules of Business" made by the Raj Pramukh u/s 5 of Ordinance I of 1124 (which is in the same terms as Article 166(3)) have been adopted by notification published in a Gazette Extraordinary dated 26-1-1950, as the rules under Article 166(3). A copy of those rules was made available to us by the Advocate General at the rehearing of this petition and under those rules the Council of Ministers or for that matter the Minister in charge of the Department in consultation with the Chief Minister is competent to take the decision now impugned. In fact with the adoption of a new policy as to the fixation of the age of retirement the order of retirement against the Petitioner came as a matter of course and the papers produced show that the decision was taken at a meeting of the Council of Ministers held on 19-4-1950. Mr. Mahalinga Iyer''s only attack on the "Rulers of Business" was that under Article 166(3) the rules made thereunder cannot relate to business with respect to which the Raj Pramukh is by or under the Constitution required to act in his discretion. There is nothing in the Constitution nor was anything also placed before us to show, that the retirement of a District or Additional District Judge relates to business with respect to which the Raj Pramukh is to act in his discretion. Reference was made to Articles 233(1) and 236(a) which state that the appointment of an additional District Judge shall be made by the Raj Pramukh in consultation with the High Court and it was argued that under Article 311(1) the Council of Ministers cannot validly remove the Petitioner from service. We have already held that what has happened in this case is not removal within the meaning of Article 311. Besides by no stretch of imagination can an appointment or removal of an additional District Judge which the Raj Pramukh is to do in consultation with the High Court taken to be a business which the Constitution requires the Raj Pramukh to act in his discretion. A close study of the Constitution would show that there is no function which the Raj Pramukh is to exercise in his discretion. The following extract from page 475 of Durga Das Basu''s well-known Commentary on the Constitution of India (2nd Edn.) may be usefully quoted here. The extract forms part of the author''s commentaries to Article 163 and appears under the heading "The Governor and his Council of Ministers".

All this reproduction of the provisions of the Government of India Act, 1935, is however, not of, much value, for the Constitution (as finally passed) requires very little function to be exercised by the Governor in his discretion. The only instances of such a function are to be found in para. 18 (3) of the 6th Schedule which provides that until a notification is issued under the paragraph, the Governor of Assam shall carry on the administration of a tribal area specified in Part B, as the ''agent'' of the President and acting ''in his discretion'' and in para. 9 (2) of the same schedule which says that any dispute as to the share of mining royalties between the Government of Assam and a District Council shall be determined by the Governor ''in his discretion''. So, no Governor other than of Assam has any authority to act in his discretion and the discretionary authority of the Governor of Assam is also limited to the above matters only. To a certain extent, therefore, the retention of the words ''in his discretion'' in the present article may be said to be a drafting anomaly.

These remarks must apply with equal force to the expression ''in his discretion'' occurring in Article 166(3).

In the face of the proceedings of the Council of Ministers held on 19-4-1950 and the counter affidavit filed on behalf of the State by one of their Assistant Secretaries in the Services Section the defect as to the form of the impugned order stands in our opinion cured. The "Rules of Business" does not require the matter of retirement of a District Judge to be submitted to the Raj Pramukh and the question whether any and if so what advice was tendered by Ministers to the Raj Pramukh is prohibited to be enquired into by the Court under Article 163(3) of the Constitution. In these circumstances we cannot hold that there is any merit in the objection as to the form of competence of the order impugned. Under the "Rules of Business" no function of the Government of the State is reserved to be exercised directly by the Raj Pramukh. Rule 16 gives a catalogue of the ''cases'' which are to be submitted to the Raj Pramukh beforte the issue of orders and a ''case'' of retirement or even ''removal'' of a District Judge is not one such. The ''Business Rules'' show how well we have imbibed the British constitutional practice of the King'' being only the mask under which His Majesty''s Ministers discharge Governmental functions.

The foregoing discussion shows that the petition cannot succeed. It is, therefore, unnecessary for us to discuss the further points raised on behalf of the State. We are not called upon to pronounce whether the entry in the Cochin Civil List as to the Petitioner''s age is wrong or not. Even when the arguments started we made it clear that we will not enter into that question. However, the Petitioner''s explanation as to the discrepancy had favourably impressed the then Chief Justice of this Court and even when the order of retirement was communicated to him the learned Chief Justice would appear to have taken the view that the question of the Petitioner''s age should be made the subject of a judicial enquiry. If the rule or policy evolved by the Government had a ruler added to it that if an officer did not agree to his date of birth being corrected as per his college or school admission register or demanded an enquiry, the same will be held, and in the event of the result being unfavourable to the officer it will entail his dismissal or even a prosecution, the bitterness or the sense'' of frustration this policy engendered in the minds of the civil servants, of the State would not have been there. Government''s policy that there should not be a premium put on those who gave wrong dates of birth when joining the service is understandable, nay commendable, but that policy should not in fairness penalise those whose dates of birth happened to be wrongly entered in their college or school admission registers. So far as the Petitioner''s case is concerned that is still an open question. In these circumstances in dismissing the petition we make no order for costs.

We certify that the case involves substantial questions of law as to the interpretation of the Constitution and accordingly grant the leave sought for.