G. Sarojini Devi vs The Indian Posts and Telegraphs Department

Nainar Sundaram, J.—The Petitioner joined the Central Government Services as a clerk in the Postal Department on 23rd June, 1949. She was confirmed in the year 1953. On the relevant date, she was working as Postal Assistant, St. Thomas Mount, Head Office, Madras-600016. By the impugned Order, dated 16th April, 1981, the Petitioner had been compulsorily retired from service on the forenoon of the day following the date of expiry of three months computed from the date following the date of service of the said Order. The impugned Order has been passed by the Respondent in exercise of the powers conferred by Rule 48 of the Central Civil Services (Pension) Rules, 1972, hereinafter referred to as the Rules, on the basis that the Petitioner completed 30 years of service qualifying for pension on 18th January, 1980.

The ground of attack put forth by Mr. K. Doraiswami, learned Counsel for the Petitioner, is that the instructions regarding premature retirement of Central Government servants have not been followed and on this ground, the learned Counsel submits that the impugned Order has got to be struck down. The learned Counsel expatiates this submission by referring to paragraph IV of the instructions, which runs as follows:

In Order to ensure that the review is undertaken regularly and in due time Ministries�Departments are requested to maintain a suitable register (or registers) of employees under their control or who belong to cadres/services controlled by them, who are due to attain the age of 50/55 years or completed 30 years of service, as the case may be, and also to instruct their attached and subordinate Offices to take similar action. This register should be scrutinized by a senior officer in the Ministry Department and in attached and subordinate offices, and review under taken according to the following Schedules:

Quarter in which review is to be made Cases of employees who will be attaining the age of 50/55 years or will be completing 30 years of service or 30 years of service qualifying for pension as the case may be in the quarter indicated below to be reviewed.

January to March July to September of the same year.

April to June October to December of the same year.

July to September January to March of the next year.

October to December April to June of the next year.

Learned Counsel submits that admittedly, the Petitioner completed 30 years of service qualifying for pension on 18th January 1980 and as such, the review, on the basis of which alone the Order of retirement under Rule 48 of the Rules could be passed, ought to have been done between July and September 1979 and in the instant case, such a review was not done and hence the impugned Orders cannot be sustained. It is now well settled that instructions of the present type are binding on the Government and cannot be violated to the prejudice of the Government servant. Vide State of Uttar Pradesh Vs. Chandra Mohan Nigam and Others, V. Ramaswami J., in Kanthimathi v. State of Tamil Nadu (1979) 2 M.I.J. 316 following the ratio of the Supreme Court in the above decision, held that if the guidelines and instructions are not followed, the Order of compulsory retirement is liable to be set aside.

The records produced by the Respondent disclose that a review was initiated in October�November, 1978 stated to be for the purpose of taking action under Rule 56(1) of the Fundamental Rules of the Central Government. If the Petitioner had to be retired by applying Rule 56(1) of the Fundamental Rules, it is possible to countenance the review done in October�November 1978, because the Petitioner completed 30 years of service with the end of 22nd June, 1979. But, in the instant case, the impugned Order has been passed under Rule 48 of the Rules. Obviously, the process stated to have been initiated under Rule 56(1) of the Fundamental Rules, was not prosecuted further and notice has been taken only under Rule 48 of the Rules. The review done in October�November, 1978 could not be of any avail at all and would not satisfy paragraph IV of the instructions extracted above, for the purpose of invoking Rule 48 of the Rules. The Petitioner completed 30 years of service, qualifying for pension on 18th January 1980, and, if action was contemplated under Rule 48 of the Rules, it could be only on the basis of a review done between July and September, 1979. Admittedly, the impugned Order under Rule 48 of the Rules does not have the backing of, and was not preceded by, such a review. As pointed out by the Supreme Court, these instructions really fill up the yawning gaps in the provisions, and are embedded in the conditions of service and they are binding on the Government and cannot be violated to the prejudice of the Government servant. I may add that these instructions are there for the purpose of being followed in both in letter and in spirit and they cannot be so easily ignored on the ground of convenience or misconception, and if there is a violation of such guidelines or instructions, prejudice must be presumed to have been caused to the Government servant. If the above principles are applied, I am not able to sustain the impugned Order.

The result is, the writ Petition is allowed, but there will be no Order as to costs. The Petitioner shall be deemed to have continued in service irrespective of the impugned Order and it will also be entitled to all the benefits and privileges as if she had continued in service without a break.