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Judgment
Jaishree Thakur, J—The challenge in the present writ petition filed under Article 226 of the Constitution of India is by the legal heirs of late Shri Rajendra Prasad Nigam to the order dated 15.3.2001 whereby the said late Shri Rajendra Prasad Nigam was compulsorily retired.
Late Shri Rajendra Prasad Nigam was appointed on the post of Lower Division Clerk, on 22.1.1973. While working in the office of the Sub-Treasury, Kushalgarh, District Bhilwara, he was compulsorily retired vide order dated 15.3.2001. After retirement, he expired within a period of five months thereafter.
Mr. P.S. Chundawat counsel appearing for the petitioners has assailed the order dated 15.3.2001 on the ground that the said order was passed in violation of General Administrative department Notification dated 7.3.2001 which specifically provided that before finally retiring any person compulsorily, his case ought to be placed before a High Powered Committee constituted for the purpose of examination of such a case and only after the Committee had accorded its approval, a Government Servant can be retired compulsorily. It is also pleaded that the order dated 15.3.2001 by which late Shri Rajendra Prasad Nigam was compulsorily, retired, was accompanied by a Demand Draft in a sum of Rs. 31,746/- which was encashed while not being aware that the amount remitted to him did not constitute three months'' pay and allowances as enumerated under Rule 53(2) of the Rajasthan Civil Services Pension Rules, 1996(for short ''the Rules of 1996''). It is contended that apart from the shortage in remitting three months'' salary which became payable in lieu of three months'' notice, a sum of Rs. 1,18,070/- which was due and payable to late Shri Rajendra Prasad Nigam as leave encashment had not been paid. Further more it is submitted that one Shri Devi Singh, Patwari was also sought to be compulsorily retired by the Department without following the procedure as specified by Notification dated 7.3.2001. Said Devi Singh challenged his retirement before the Rajasthan Civil Services Appellate Authority, Jodhpur on the ground that the matter had not been considered by the High Power Committee before issuance of the order retiring him compulsorily. The Appellate Authority allowed the petition which was not challenged by the Department and the said person was taken back in service. The petitioners seek parity with the case of Devi Singh claiming that the case of late Shri Rajendra Prasad Nigam too had not been put up before the High Power Committee before retiring him compulsorily.
Per contra Mr. N.S. Rajpurohit counsel for the respondents has contended that the retirement of Shri Rajendra Prasad Nigam was in public interest since he had been given several charge sheets and warnings to improve his work but to no avail. It was also submitted that the late government servant had accepted his retirement since the demand draft sent in lieu of three months'' notice had been accepted.
I have heard the learned counsel for the parties.
Rule 53 of the Rules of 1996 deals with the procedure of compulsorily retiring an employee on completion of 15 years of qualifying service. The same is reproduced hereunder:-
"53. Compulsory retirement on completion of 15 years qualifying service. (1) At any time, after a Government servant has completed 15 years qualifying service or has attained the age of 50 years, whichever is earlier, the appointing authority, upon having been satisfied that the concerned government servant has on account of his indolence or doubtful integrity or incompetence to discharge official duties or inefficiency in due performance of official duties, has lost his utility, may require the concerned Government servant to retire in public interest after following the procedure laid down by the Government in Department of Personnel/Administrative Reforms Department. In case of such retirement, the Government servant shall be entitled to retiring pension.
(2) In such a case, the appointing authority shall give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months'' pay and allowances in lieu of such notice.
(3) The appointing authority may publish the order of such retirement in Rajasthan Rajpatra, and the Government servant shall be deemed to have retired on such publication, if he has not been served with the retirement order earlier.
(4) In such a case, the compulsorily retired employee may represent against the order of compulsory retirement within a period of 30 days to:-
Provided that before deciding the representation, comments of the appointing authority shall be obtained.
(5) In case it is decided to re-instate a prematurely retired Government servant in service after considering his representation, the authority shall pass order regarding the period intervening between the date of premature retirement and the date of re-instatement/age of superannuation, as the case may be. EXPLANATION - For the purpose of this rule, the expression "appointing authority" shall mean the authority which is competent to make appointments to the service or post from which the Government servant is retired."
A reading of the Rule 53 of the Rules of 1996 shows that after a Government Servant has completed 15 years qualifying service or has attained the age of 50 years whichever is earlier, the Appointing Authority can retire such a Government Servant compulsorily who is incompetent, has doubtful integrity or inefficient in performing his official duties and has lost his utility, after following the procedure laid down by the Government in the Department of Personnel/Administrative Reforms Department. In case of such retirement, the Government Servant shall be entitled to retiring pension. The Appointing Authority is also required to give a notice in writing to such Government Servant at least three months before the date on which he is required to retire in public interest or give three months'' pay and allowances in lieu of such notice. The Department of Personnel had issued a Notification dated 7.3.2001 to the effect that before finally retiring any Government employee compulsorily, his case is to be placed before a High Powered Committee constituted for the purpose of examination of the case of the employee. By the same Notification a High Power Committee was constituted.
The counsel for the respondent has not been able to dispute that the case of late Shri Rajendra Prasad Nigam was not put up for consideration before High Powered Committee. It is also to be noted that the District Collector, Banswara vide a letter dated 25.5.2001, acknowledged the fact that the matter relating to compulsory retirement pertaining to late Government servant had not been put up before the High Power Committee. The notification dated 7.3.2001 has not been complied with. Administrative instructions have a binding effect on State authorities and non-compliance of the same therewith give rise to malice in law. Suffice to note, other than the bald assertion in the written statement that the petitioner had been given several warnings regarding his performance, there is nothing available on record of this case to show that the Appointing Authority formed an opinion that the Government Servant on account of his indolence, doubtful integrity, incompetence to discharge official duties had lost his utility and it would be in the public interest to retire such a Government servant.
The contention raised by the counsel for the respondents that late Shri Rajendra Prasad Nigam had accepted the retirement order dated 15.3.2001 since he had encashed Demand Draft of Rs. 31,746/-, will have no bearing in the case since the amount so sent in lieu of three months'' notice was short and cannot be said to be full payment. The counsel for the respondents has not been able to show that the payment was adequate nor is there any specific denial in the pleadings.
I therefore am of the opinion that there has been a gross violation of Rule 53 of the Rules of 1996, as there is nothing forth coming from the record of the case to show that the Appointing Authority had considered the case of the petitioner while exercising powers under Rule 53(1) of the Rules of 1996. Moreover, there has also been a violation of the rule in so far as the administrative instructions and the procedure specified in the Notification dated 7.3.2001, which clearly specified that cases of compulsory retirement are to be considered by the High Powered Committee, has not been adhered to making the procedure a nullity. Resultantly, the order dated 15.3.2001 is held to be unsustainable and is hereby set aside.
Ordinarily the Government employee would have been entitled to reinstatement but as the Government employee expired soon thereafter, the question of reinstatement would not arise. The question that survives would be to the benefits available to the legal heirs/dependents of the late Shri Rajendra Prasad Nigam. Once the order of compulsory retirement is set aside, the legal heirs of late Shri Rajendre Prasad Nigam would naturally become entitled to grant of retiral dues/family pension, including the wages for the period he remained under suspension.
Consequently, the writ petition is allowed. The dependents of late Shri Rajendra Prasad Nigam would be entitled to all consequential benefits that would accrue to him.