Udai Singh vs State of H.P. and Others

R.S. Pathak, C.J.—The Petitioner, a Head Constable in the Himachal Pradesh Police Force, was served with an order dated October 16, 1969, by the Superintendent of Police, Nahan, declaring that as he was permanently incapacitated he was invalided out from service with effect from January 30, 1970. The Petitioner challenges the validity of that order.

It is not disputed between the parties that the Petitioner is a permanent Government servant. The contention of the Petitioner is that no opportunity was given to him to show cause against the proposed action and therefore Article 311(2) of the Constitution has been contravened by the impugned order. It is said that there is no statutory rule permitting the premature termination of the Petitioner''s service on the ground of physical incapacity. Learned Counsel for the Respondents has been unable to show that any such rule exists. It is now settled law that a permanent Government servant is entitled to continue in service up to the age of superannuation unless a rule has been made entitling the State to prematurely terminate his service. An example of such a rule is Fundamental Rule 56. There is no such rule which governs the present case.

The premature termination of the Petitioner''s service visits him with penal consequences and, therefore, must be described as a punishment. Accordingly, it was necessary that compliance should have been made with Article 311(2) of the Constitution before the impugned order was passed.

The Supreme Court, in Mohammad Mominuddin v. Government of Andhra Pradesh 1971 (1), S.L.R. 623 , has pointed out that if no rule authorises the compulsory retirement of a Government servant before the age of superannuation, the order of retirement violates Article 311 of the Constitution. Reference was made to Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., In S.P. Shrivastava v. State of Madhya Pradesh 1970 S.L.R. 700 , the Madhya Pradesh High Court followed Moti Ram Deka (supra) and held that the compulsory retirement of a Government servant on the ground of physical incapacity amounts to a punishment and attracts the provisions of Article 311(2) of the Constitution. Learned Counsel for the Respondents relics on Shrinivas Ganesh Vs. Union of India, , but that is a case where the impugned order was made against a temporary Government servant. Indeed, the Bombay High Court in that case expressly drew a distinction between the rights of a permanent Government servant and those of a temporary Government servant.

In my opinion, the impugned order is invalid and liable to be quashed.

The petition is allowed. The order dated October 16, 1969 is quashed. The Petitioner is entitled to his costs.