Syn I] Other Incidents of Government Service 2119

Harnam Singh,33 that a Government servant who has declared his date of birth at
the initial stage of employment would not be debarred from later making a re-
quest to correct his age if he has irrefutable proof to support his claim. He should
do so within reasonable time if the government has not fixed any period of limi-
tation for the purpose.
But, lately, the Supreme Court has exhibited a more rigid stand on this ques-
tion. The Court has ruled in India v. C. Ramaswamy,34 that when the date of birth
of the employee is entered in the service record on his representation, the princi-
ple of estoppel would apply to the employee when he asks for a change in his
date of birth, and the authorities concerned would be justified in declining to alter
the same.
The Supreme Court has also interdicted the Courts from granting any relief in
the matter even if it is shown that the date of birth as originally recorded was in-
correct because the candidate concerned had represented a different date of birth
to be taken into consideration obviously with a view that that would be to his ad-
vantage. Once having secured entry into the service, possibly in preference to
other candidates, the principle of estoppel would be clearly applicable to him and
relief by way of change in his date of birth can be legitimately denied.35
(l) RETIREMENT
Article 311 does not apply to a case of retirement on attaining the age of su-
perannuation as it does not amount to imposing a penalty.36 The term ‘conditions
of service’ used in Art. 309 includes the power to fix and reduce the age of su-
perannuation.37
Termination of service of a civil servant by a change in the age of superannu-
ation does not attract Art. 311(2), and does not amount to removal from service
within the meaning of Art. 311(2) which applies only in three situations, viz.,
dismissal, removal and reduction in rank. When a person joined the State Civil
Service, the age of superannuation was fixed at 55 years; it was then raised to 58
years by the Government which lowered it again to 55 years. Consequently, he
had to retire. Art. 311(2) was held inapplicable to such a situation. In the instant
case, the Court also rejected the contention that the rule in question was retro-
spective. The Court held that there was no retrospectivity in the rule whatsoever
as it applied to all uniformly notwithstanding whether they entered in service
prior or subsequent to the date of the order.38

33. Union of India v. Harnam Singh, 1993 AIR SCW 1241, 1246 : (1993) 2 SCC 162.
Also see, Union of India v. Kantilal Hematram Pandya, AIR 1995 SC 1349 : (1995) 3
SCC 17; Burn Standard Co. Ltd. v. Dinabandhu Majumdar, AIR 1995 SC 1499 : (1995) 4
SCC 172.
34. AIR 1997 SC 2055 : (1997) 4 SCC 647.
35. Ibid, at 2062.
Also see, Secretary and Commissioner, Home Dept. v. R. Kirubakaran, AIR 1993 SC
2647 : 1994 Supp (1) SCC 155; Burn Standard Co. Ltd. v. Dinabandhu Majumdar, AIR
1995 SC 1499 : (1995) 4 SCC 172; G.M. Bharat Coking Coal Ltd., W.B. v. Shib Kumar
Dushad, AIR 2001 SC 72 : (2000) 8 SCC 696.
36. Union of India v. S.A. Razak, AIR 1981 SC 360 : (1981) 2 SCC 74.
37. Bishun Narain v. State of Uttar Pradesh, AIR 1965 SC 1567 : (1965) 1 SCR 693.
Also see, State of Andhra Pradesh v. S.K. Mohinuddin, AIR 1994 SC 1474.
38. Bishun Narain, op. cit.
2120 Government Services [Chap XXXVI

In 1979, the A.P. Government increased the age of superannuation from 55 to

58 years. In 1983, the age was reduced from 58 to 55 years. The order was chal-
lenged but, in Nagaraj,39 the Supreme Court rejected the challenge. The Court
ruled that it was open to the Government to reduce the age of superannuation and
the reduction in age was not unreasonable. In reducing the age of retirement, the
Government did not act “arbitrarily or irrationally”. The impugned decision was
actuated and influenced predominantly by the consideration of creating new ave-
nues of employment for the youth. The reduction in age of retirement is not
therefore hit by Art. 14 or 16 as it was not “arbitrary or unreasonable.”
A member of the Indian Police Service was due to retire on 31st March,
1996. On 20th March, he was granted extension of service for six months, but,
on 23rd March, the extension was cancelled. The Supreme Court ruled that it
was not necessary to give a hearing to the concerned employee. Till the order
came into force, no vested right could have arisen. If the order of the extension
created no right, its cancellation could not have withdrawn any right and hence
the right to hearing did not arise and there was no violation of the rules of natu-
ral justice.40
(m) COMPULSORY RETIREMENT
When the Service Rules so provide, compulsory retirement of civil servants,
earlier than their normal superannuation is regarded as different from dismissal
or removal. While dismissal or removal is a punishment as it results in the gov-
ernment servant concerned losing his pensionary rights which would otherwise
have accrued to him in respect of the service already put in by him, compulsory
retirement is not regarded as penal in nature. It does not cast any stigma or impli-
cation of misbehaviour or incapacity, nor does the employee concerned lose his
retrial benefits. The government servant thus retired is entitled to pension pro-
portionate to the period of service already put in by him.41
Compulsory retirement takes place, earlier than the normal age of retirement,
when the Service Rules so provide. Under Art. 465-A of the Civil Service Regu-
lations, the Government can retire an employee, who has put in 25 years’ service,
in public interest. Compulsory retirement arises only when the Service Rules fix
one age for superannuation, and another age of compulsory retirement, and the
services of a civil servant are terminated between these two points of time.
The Supreme Court has laid down the principle that the rule provising for
compulsory retirement “must not only contain the outside limit of superannuation
but there must also be a provision for a reasonably long period of qualified serv-
ice.”42 The termination of service of a civil servant under a rule which does not
prescribe a reasonably long period of qualified service in substance amounts to
removal under Art. 311(2).43 When the rules do not fix the age of compulsory
retirement, retiring a person before the age of superannuation amounts to dis-

39. K. Nagaraj v. State of Andhra Pradesh, AIR 1985 SC 551 : (1985) 1 SCC 523.
40. State of U.P. v. Girish Behari, AIR 1997 SC 1354 : (1997) 4 SCC 362.
41. Shaymlal v. State of Uttar Pradesh, AIR 1954 SC 369 : (1955) 1 SCR 26.
42. Takhatray Shivdattrai Mankad v. State of Gujarat, AIR 1970 SC 143 : (1969) 2 SCC 120.
Also, Bombay v. Subhagchand M. Doshi,AIR 1957 SC 892 : 1958 SCR 571.
43. Gurdev v. State of Punjab, AIR 1964 SC 1585.
Syn I] Other Incidents of Government Service 2121

missal. Similarly, retiring a person earlier than the age fixed for compulsory re-
tirement would amount to dismissal or removal.44
The rationale underlying compulsory retirement is that in all organizations,
and more so in government organizations, there is good deal of dead wood, and it
is in public interest to chop off the same. The power to compulsorily retire a gov-
ernment servant is one of the facets of the doctrine of pleasure embodied in Art.
310. A balance is sought to be drawn between the rights of the individual gov-
ernment servant and the interest of the public. While a minimum service is as-
sured to the government servant, the Government is given power to energize its
machinery and make it more efficient by compulsorily retiring those who in its
opinion should not be there in public interest. Compulsory retirement is therefore
resorted to in public interest.45
As the Supreme Court has observed in Kandaswamy:46 “The Government is
given power to energise its machinery by weeding out deadwood, inefficient, corrupt
and people of doubtful integrity by compulsorily retiring them from service.” Em-
phasizing upon the need to compulsorily retire government servants, the Supreme
Court has observed in State of Orissa v. Ram Chandra Das:47
“….the settled legal proposition is that the Government is empowered and
would be entitled to compulsorily retire a government servant in public interest
with a view to improve efficiency of the administration or to weed out the peo-
ple of doubtful integrity or corrupt but sufficient evidence was not available to
take disciplinary action in accordance with the rules so as to inculcate a sense
of discipline in the service.”
It is for the Government to decide whether or not an employee’s retirement is
in public interest. The exercise of power must be bona fide and in public interest.
If the authority concerned bona fide forms the opinion that it is so, then its cor-
rectness is not liable to challenge in a Court of law.48 But the same may be chal-
lenged on the ground that the requisite opinion is based on no evidence, or has
not been formed, or the decision is based on collateral grounds, or that it is an
arbitrary decision.
As compulsory retirement is not considered to be dismissal or removal, and is
not considered as a punishment, it does not attract the procedural safeguard con-
tained in Art. 311(2).49 Therefore, no opportunity of hearing need be given to the
concerned government servant before exercising the power of compulsory re-
tirement.50
But compulsory retirement may amount to dismissal or removal in certain
situations, e.g. if the order casts a stigma on the employee retired. This happen

44. Moti Ram Deka v. N.E.F. Rly., AIR 1964 SC 600 : (1964) 5 SCR 683; Ram Parshad v. State
of Punjab, AIR 1966 SC 1607; Takhatray, op. cit.; Murari Mohan v. Union of India, AIR
1985 SC 931 : (1985) 3 SCC 120.
45. Union of India v. J.N. Sinha, AIR 1971 SC 40 : (1970) 2 SCC 458.
46. K. Kandaswamy v. Union of India, AIR 1996 SC 277 : (1995) 6 SCC 162.
47. AIR 1996 SC 2436 : (1996) 5 SCC 331.
48. Union of India v. J.N. Sinha, op. cit.; T.G. Shivacharana Singh v. State of Mysore, AIR 1965
SC 280; N.V. Puttabhatta v. State of Mysore, AIR 1972 SC 2185 : (1972) 3 SCC 739; Tara
Singh v. State of Rajasthan, AIR 1975 SC 1487; Union of India v. M.E. Reddy, AIR 1980 SC
563; Baldev Raj v. Union of India, AIR 1981 SC 70; S. Ramachandra Raju v. State of
Orissa, (1994) 3 SCC 424; Bishwanath Prasad Singh v. State of Bihar, (2001) 2 SCC 305.
49. Dinesh Chandra v. State of Assam, AIR 1978 SC 17 : (1977) 4 SCC 441.
50. Union of India v. J.N. Sinha, AIR 1971 SC 40 : (1970) 2 SCC 458.
2122 Government Services [Chap XXXVI

when the order of retirement contains words from which a stigma, misbehaviour
or incapacity may be inferred against the officer retired, or, if he is being made to
lose the benefit already earned by him.51 For example, a civil servant was retired af-
ter 28 years’ service on the ground that he had outlived his utility. The Supreme
Court ruled that as the order on its face stated that he was incapable of holding the
post and, as this was a stigma against the employee, it amounted to dismissal and
attracted Art. 311(2).52
An order of compulsory retirement may be couched in innocuous language
without making any imputations against the concerned government servant. But,
if challenged, the Court can lift the veil, look into his service record and consider
whether the order was based on any misconduct of the employee, or was made
bona fide and not with any oblique or extraneous purpose. If the Court finds that
the order of compulsory retirement was by way of casting stigma on the reputa-
tion or career of the employee concerned, then the order would be regarded as
being in contravention of Art. 311(2).53 The Supreme Court has observed in the
instant case: “Mere form of the order in such cases cannot deter the Court from
delving into the basis of the order if the order in question is challenged by the
concerned government servant.”
In Anoop,54 the Court has stated: “If the Court holds that the order though in
the form is merely a determination of employment is in reality a cloak for an or-
der of punishment, the Court would not be debarred, merely because of the form
of the order, in giving effect to the rights conferred by law upon the employee.”
An employee can be compulsorily retired if there is material to doubt his in-
tegrity.55
The Supreme Court has laid down the following propositions concerning
compulsory retirement in Baikuntha Nath Das v. Chief District Medical Officer,
Baripada56 and Posts and Telegraphs Board v. C.S.N. Murthy:57
(1) An order of compulsory retirement is not a punishment as it implies no
stigma nor any suggestion of misbehaviour.
(2) Principles of natural justice do not apply to an order of compulsory retire-
ment.
These two propositions have already been discussed above.
(3) The order is passed in its subjective satisfaction by the Government on
forming the opinion that it is in public interest to retire a government servant
compulsorily.

51. State of Uttar Pradesh v. Shyam Lal Sharma, AIR 1971 SC 2151 : (1971) 2 SCC 514.
52. State of Uttar Pradesh v. Madan Mohan, AIR 1967 SC 1260 : (1967) 2 SCR 333; I.N. Sax-
ena v. State of Madhya Pradesh, AIR 1967 SC 1264.
53. Ram Ekbal Sharma v. State of Bihar,, AIR 1990 SC 1368 : (1990) 3 SCC 504;
54. Anoop Jaiswal v. Government of India, AIR 1984 SC 636 : (1984) 2 SCC 369.
Also, State of Uttar Pradesh v. Abhai Kishore Masta, (1995) 1 SCC 336 : 1995 SCC
(L&S) 317.
55. S. Govinda Menon v. Union of India, AIR 1967 SC 1274 : (1967) 2 SCR 566; Periyar and
Pareekanni Rubber Ltd. v. State of Kerala, AIR 1990 SC 2192 : (1991) 4 SCC 195; Union of
India v. A.K. Patnaik, AIR 1996 SC 280 : (1995) 6 SCC 442.
56. AIR 1992 SC 1020 : (1992) 2 SCC 299.
57. (1992) 2 SCC 317 : AIR 1992 SC 1368.
Also see, Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109 : (2001) 3 SCC 314.
Syn I] Other Incidents of Government Service 2123

(4) The Government has to consider the entire record of service before taking
a decision in the matter. The record to be considered would include the entries in
the confidential records/character rolls, both favourable and adverse.
(5) An order of compulsory retirement is not challengable merely on the
ground that while passing the same, uncommunicated adverse remarks were also
taken into consideration.58
(6) As regards the judicial scrutiny of an order of compulsory retirement, the
High Court or the Supreme Court does not act as a Court of appeal; the Court can
interfere if the order is passed on any of the following grounds, viz.:
(a) mala fides; or
(b) extraneous reasons;59 or
(c) based on no evidence;
(d) it is arbitrary which means that no reasonable person would form the
requisite opinion on the given material; in short, if it is found to be a
perverse order. In this connection, the Supreme Court has stated in In-
dia v. V.P. Seth:60
“….an order of compulsory retirement can be made subject to
judicial review only on grounds of mala fides, arbitrariness or perver-
sity and that the rule of audi alteram partem has no application since
the order of compulsory retirement in such a situation is not penal in
nature.”
A few words need be said concerning proposition (5), stated above. There has
been some shift in the judicial opinion on the question whether the uncommuni-
cated adverse entries in the service record can be considered for the purposes of
compulsory retirement. In Union of India v. M.E. Reddy,61 the Court had laid
down that uncommunicated adverse remarks can be relied upon while passing an
order of compulsory retirement. But, then, the Court took a different view in Brij
Mohan Singh Chopra v. State of Punjab62 and Baidyanath.63 The Court ruled
therein that uncommunicated entries could not legally be relied upon while
making an order of compulsory retirement. It was also held in Baidyanath that if
a representation was pending against the adverse remarks, then these remarks
could not be taken into consideration unless the representation itself was consid-
ered and disposed of. But in Baikuntha Nath,64 as stated above, the Reddy view
has been adopted and reiterated and the view expressed in Baidyanath and Brij
Mohan was overruled. The Baikuntha Nath ruling is now the prevailing norm and
has been followed in a number of cases.65 The position, therefore, is that uncom-

58. State of Uttar Pradesh v. Lalsa Ram, AIR 2001 SC 1137 : (2001) 3 SCC 389.
59. State of Gujarat v. Umedbhai M. Patel, supra.
60. AIR 1994 SC 1261.
61. AIR 1980 SC 563 : (1980) 2 SCC 15.
62. AIR 1987 SC 948.
63. Baidyanath Mahapatra v. State of Orissa, AIR 1989 SC 2218 : (1989) 4 SCC 664.
64. AIR 1992 SC 1020 : (1992) 2 SCC 299.
65. Posts and Telegraphs Board v. C.S.N. Murthy, AIR 1992 SC 1368 : (1992) 2 SCC 317; Sec-
retary to the Govt., Harijan & Tribal Welfare Dept. v. Nityananda Pati, AIR 1993 SC 383 :
1993 Supp (2) SCC 391; Union of India v. V.P. Seth, AIR 1994 SC 1261 : 1994 SCC (L&S)
1052; M.S. Bindra v. Union of India, (1998) 7 SCC 310 : AIR 1998 SC 3058; Gujarat v.
Suryakant Chunilal Shah, (1998) 8 JT (SC) 326; Madan Mohan Choudhary v. State of Bihar,
AIR 1999 SC 1018 : (1999) 3 SCC 396.
2124 Government Services [Chap XXXVI

municated adverse remarks may also be considered for the purpose of compul-
sory retirement of an employee.
The Supreme Court has emphasized in State of Uttar Pradesh v. Bihari Lal66
that the entire service record should be considered before taking a decision to
compulsorily retire a government servant including any adverse remarks whether
communicated to him or not. “It is on an overall assessment of the record that the
authority would reach a decision whether the government servant should be
compulsorily retired in public interest.”
While considering the entire record of the employee concerned, before taking
a decision as regards his compulsory retirement, more importance is to be at-
tached to the record of performance during the later years which would include
entries in his character roll both favourable and unfavourable. If a government
servant is promoted to a higher post, notwithstanding the adverse remarks, then
such remarks lose their sting, more so, if the promotion is based upon selection
and not upon seniority.67
In Baldev,68 the order of compulsory retirement was held to be arbitrary when
it was based on old confidential entries made 20 years earlier. The Court empha-
sized that such stale entries could not be taken into consideration for retiring an
employee compulsorily, particularly when he had been promoted subsequent to
these entries. The Court observed that on promotion to a higher post, any prior
adverse entries in his service record lost all significance and such entries re-
mained on record as part of the past history.
There was one solitary adverse entry and after this entry the employee con-
cerned was promoted to a higher post. The order of compulsory retirement was
quashed. The Court observed that his entire service record had not been taken
into consideration objectively.69
In State of Orissa v. Ram Chandra Das,70 the Supreme Court has observed that
if the Government on consideration of the entire service record comes to the con-
clusion “as a reasonable prudentman” that the employee should be compulsorily
retired, then the Court would not interfere with such a decision. The Court went
on to say that merely because a promotion was given to the concerned employee
after adverse entries had been made against him, it would be no ground to hold
that the compulsory retirement of the employee could not be ordered. This ruling
seems to modify the Baldev Raj and Baikuntha Nath,71 rulings to some extent.
In State of Punjab v. Gurdas Singh,72 the Court has reiterated the view ex-
pressed by it in Ram Chandra Das, and it has observed:
“Before the decision to retire a government servant prematurely is taken the
authorities are required to consider the whole record of service. Any adverse
entry prior to earning of promotion or crossing of efficiency bar or picking up

66. AIR 1995 SC 1161, 1162 : 1994 Supp (3) SCC 594.
67. Baikunith Nath Das, supra; Posts and Telegraphs Board, supra.
68. Baldev Raj v. State of Punjab, AIR 1984 SC 986 : 1984 Supp SCC 221.
69. S. Ramachandra Raju v. State of Orissa, AIR 1995 SC 111 : 1994 Supp (3) SCC 424.
70. AIR 1996 SC 2436 : (1996) 5 SCC 331.
Also see, K. Kandaswamy v. Union of India, AIR 1996 SC 277 : (1995) 6 SCC 162; Un-
ion of India v. V.P. Sethi, AIR 1994 SC 1261 : (1994) 2 LLJ 411.
71. Supra, footnotes 67 and 68.
72. AIR 1998 SC 1661, 1666 : (1998) 4 SCC 92.
Syn I] Other Incidents of Government Service 2125

higher rank is not wiped out and can be taken into consideration while consid-
ering the overall performance of the employee during whole of his tenure of
service whether it is in public interest to retain him in the service. The whole
record of service of the employee will include any uncommunicated adverse
entries as well.”
As regards proposition (6), stated above, over time, the Courts have quashed a
number of orders of compulsory retirement. A few examples may be cited here.
Such an order was quashed in Madan Mohan Choudhary v. State of Bihar,73 on
the ground that it was arbitrary in the sense that no reasonable person could have
come to the conclusion, on the material available, that the concerned employee
had outlived his utility and become a dead wood which had to be chopped off.
An order of compulsory retirement of an employee would be unjustified when
there is nothing adverse against him in the service record.74
In Ramaswami,75 charges were framed against a civil servant but were dropped
and he was promoted to a very responsible post. Thereafter, he was compulsorily
retired. The Supreme Court held that there was nothing even mildly suggestive of
inaptitude or inefficiency after promotion, and there was no entry in the service
record to his discredit, or even hinting even remotely that he had outlived his
utility as a government servant, and, therefore, the order of retirement was held to
be invalid.
A judge after having been allowed to cross the second efficiency bar was
compulsorily retired by the High Court. The Supreme Court quashed the order of
retirement as there was nothing to show that suddenly there was deterioration in
the quality of his work or integrity so as to deserve compulsory retirement.76
The Supreme Court quashed an order of compulsory retirement in S.R.
Venkataraman v. Union of India,77 on the ground of abuse of power by the con-
cerned authority. In Sonam Lama,78 the reason given for issuing an order of com-
pulsory retirement was that “the better talent which is available in the department
can be used and entrusted with the functions of these officers who can be com-
pulsorily retired….the functions of these officers can be better done by more
qualified persons.” The Supreme Court quashed the order as being “wholly erro-
neous” which could not be sustained in law. The Court observed:
“Apparently the above reasoning cannot be the basis for compulsorily retir-
ing any official. The report does not state that in the public interest the officers
cannot be continued. The assessment of performance of the officers is only to
the effect that there are better talented persons available in the department and
the work performed by the officials could be better done by more qualified per-
sons. This is wholly extraneous consideration for compulsorily retiring any of-
ficial. ‘The better talent’ is a relative term. That does not mean that the incum-
bent in the office has become a dead wood.”

73. AIR 1999 SC 1018 : (1999) 3 SCC 396.

74. High Court of Judicature at Allahabad v. Sarnam Singh, (2000) 2 SCC 339 : AIR 2000 SC
2150.
75. D. Ramaswami v. State of Tamil Nadu, AIR 1982 SC 793 : (1982) 1 SCC 510.
76. Swami Saran v. State of Uttar Pradesh, AIR 1980 SC 269 : (1980) 1 SCC 12.
77. AIR 1979 SC 49 : (1979) 2 SCC 491.
78. Sikkim v. Sonam Lama, AIR 1991 SC 534 : 1991 Supp (1) SCC 179.
2126 Government Services [Chap XXXVI

On the question of compulsory retirement of a government servant, the Su-

preme Court has warned:79
“To dunk an officer into the puddle of “doubtful integrity”, it is not enough
that the doubt fringes on a mere hunch. That doubt should be of such a nature
as would reasonably and consciously be entertainable by a reasonable man on
the given material. Mere possibility is hardly sufficient to assume that it would
have happened. There must be preponderance of probability for the reasonable
man to entertain doubt regarding that possibility. Only then there is justification
to ram an officer with the label ‘doubtful integrity’”
In the following case,80 the respondent was suspended from service on charges
of misconduct and an inquiry was ordered against him. Pending completion of
the inquiry, he was retired from service. The Supreme Court concluded that the
order of compulsory retirement though innocuously worded was in fact an order
of his removal from service and could not thus be sustained.
In the case noted below,81 an order of compulsory retirement was quashed as
having been passed for extraneous grounds for the following reasons :
(1) There was no adverse entry in the respondent’s confidential record;
(2) He has crossed the efficiency bar at the ages of 50 and 55;
(3) He had less than two years to retire;
(4) A disciplinary inquiry initiated against him was not completed within a
reasonable time. The authorities did not wait for the conclusion of the inquiry and
decided to dispense with his services on the basis of unproved allegations.
An employee appointed for a fixed term of five years does not superannuate;
he only goes out of office on completion of his tenure. Therefore, the question of
prematurely retiring him does not arise.82
(n) VOLUNTARY RETIREMENT
A government servant can seek voluntary retirement from service before the
age of normal superannuation if he has put in the specified numbers of years of
service as required by the Service Rules applicable to him.
It is a matter of interpretation of the relevant Service Rules whether an em-
ployee has a right to seek voluntary retirement—(i) without the employer having
any say in the matter; or (ii) subject to the permission of the employer.
Interpreting fundamental Rule 56(c), the Supreme Court held in Dinesh,83 that
“there is no question of acceptance of the request for voluntary retirement by the
Government, when the government servant exercises his right under FR56(c).”
Under Rule 56(c), a government servant enjoys an option in absolute terms to
voluntary retire with three months’ previous notice, after he reaches 50 years of age,
or has completed 25 years of service, and the consent of the Government is not nec-

79. M.S. Bindra v. Union of India, (1998) 7 SCC 310 : (1988) 7 SCC 310.
80. High Court of Punjab and Haryana v. Ishwarchand Jain, AIR 1999 SC 1677 : (1999) 4 SCC
579.
81. State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109 : (2001) 3 SCC 314.
82. L.P. Agarwal v. Union of India, AIR 1992 SC 1872 : (1992) 3 SCC 526.
83. Dinesh Chandra Sangma v. State of Assam, AIR 1978 SC 17 : (1977) 4 SCC 441.
Also, B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109.
Syn I] Other Incidents of Government Service 2127

essary to give legal effect to the voluntary retirement of the government servant un-
der that rule.
In B.J. Shelat v. Gujarat,84 the rule in question gave a right to say ‘no’ to the
Government to the employee’s request to voluntary retire if any departmental
proceedings were pending or contemplated against him. The right of the em-
ployee to seek voluntary retirement under this rule is conditional, but the gov-
ernment has to pass an order withholding permission to retire on one of the con-
ditions mentioned in the rule. If no such order is made and communicated to the
concerned employee, he retires at the end of the notice period.
Interpreting the Service Rules of a corporation, the Supreme Court concluded
that after completion of 25 years’ service, or on attaining the age of 50 years,
whichever is earlier, the employee has a right to make a request for voluntary
retirement, but his request becomes effective only if he is “permitted” to retire.
The employee has a right to make a request to permit him to retire, but if his re-
quest is not accepted and permission is not granted, the employee cannot retire.
There cannot be automatic retirement under the rules.85
In Syed Muzaffar Mir,86 the respondent, a railway employee, was under sus-
pension. He sought premature retirement by giving three months’ notice. No or-
der withholding retirement was passed. The notice period expired on 21-10-1985
and thereafter an order of removal was passed against him on 4-11-1985. The
question arose whether the order of removal was validly passed. Interpreting the
relevant Railway Service Rules, the Supreme Court ruled that the order of re-
moval was non-est. Under the Rules, permission to retire could be withhled in
case the employee was under suspension. In the instant case, no such order was
passed.
But, then, the Court changed its position in this matter. A government em-
ployee expressed his intention for voluntary retirement and gave a three months’
notice for the purpose on Sept. 20, 1993. He handed over charge on February 11,
94, even without acceptance of voluntary retirement. On February 25, 1994, the
concerned authority declined to accept his request to retire.
The matter fell under Rule 5.32(B) of the Punjab Civil Services Rules. Prose-
cution against the petitioner for certain offences were pending trial. The Court
distinguished the fact-situation in this case from that in Muzaffar where the re-
spondent was under suspension and not facing criminal trial. Upholding this or-
der in Baljit,87 the Court pointed out that “when serious offences are pending trial
it is open to the appropriate Government to decide whether or not the delinquent
should be permitted to retire voluntarily or such disciplinary action as is available
should be taken under the law. Therefore, mere expiry of three months’ period of
notice given, does not automatically put an end to the jural relationship of em-
ployer and employee between Government and the delinquent official. Only on
acceptance by the employer of resignation or request for voluntary retirement
their jural relationship ceases. It would, therefore, be of necessity that the Gov-
ernment takes appropriate decision, whether the delinquent would be permitted to
retire voluntarily from service pending the action against him.” In the instant

84. AIR 1978 SC 1109 : (1978) 2 SCC 202.

85. HPMC v. Shri Suman Behari Sharma, AIR 1996 SC 1353 : (1996) 4 SCC 584.
86. Union of India v. Sayed Muzaffar Mir, AIR 1995 SC 176 : (1994) 6 JT 288.
87. Baljit Singh v. State of Haryana, AIR 1997 SC 2150 : (1997) 1 SCC 754.
2128 Government Services [Chap XXXVI

case, serious offences were pending trial against the employee. The Government,
therefore, rightly refused to permit him to retire voluntarily from service. “Each
case should be considered in its own backdrop of facts. Until the jural relations of
employer and employee comes to a close according to law, the employer always
has power to decide and pass appropriate order.”
But the Court overruled Baljit in Singhal88 interpreting the same Rule. The
Court ruled that under the Rule, a government employee can seek voluntary re-
tirement after 20 years of service by giving a three months’ notice for the pur-
pose. If the appointing authority does not refuse to grant permission for retire-
ment within the notice period the retirement becomes effective from the date of
expiry of the notice period. Under this Rule, the Government could say ‘no’ to
the request of retirement within the notice period but it was not necessary for the
Government to say ‘yes’.
The Court held that the Baljit ruling went against the rulings in Dinesh and
Shelat where the Court had taken the view under similar rules that “a positive
order had to be passed within the notice period withholding permission to retire
and that the said order was also to be communicated to the employee during the
said period.”
(o) PENSION
Right to receive pension is a valuable right vesting in a civil servant. Payment
of pension to a government servant depends not on government’s discretion but
on rules. A government servant falling within the rules is entitled to receive pen-
sion. It may be that an order is needed for quantification of the pension, but the
right to receive the same flows not from the order but from the rules.
Pensionary benefits as well as any other terminal benefits constitute conditions
of service. Therefore, the employer can revise these benefits and fix a date from
which the revised benefits shall take effect. Such a date may be set prospectively
or retrospectively so long as it is set in a reasonable manner. If questioned, the
only question will be whether the prescription of the date is unreasonable or dis-
criminatory.89
Pension is not a bounty depending on the sweet will and pleasure of the gov-
ernment, but is right to property.90 Therefore, an order imposing a cut in the pen-
sion of a retiring civil servant cannot be passed without giving the affected em-
ployee a reasonable opportunity of being heard against the proposed reduction in
the amount of his pension as the order adversely affects him.91
A government servant can be deprived of the whole or part of his pensionary
rights only in accordance with the rules. Under R. 9(1) of the Civil Service Pen-
sion Rules, 1972, the President can withhold the whole or part of the pension of a

88. State of Haryana v. S.K. Singhal, AIR 1999 SC 1829 : (1999) 4 SCC 293.
Also see, Tek Chand v. Dile Ram, AIR 2001 SC 905 : (2001) 3 SCC 290.
89. West Bengal v. Ratan Behari Dey, (1993) 4 SCC 62 : 1993 SCC (L&S) 1123.
90. Deokinandan Prasad v. State of Bihar, AIR 1971 SC 1409 : (1971) 2 SCC 330; Kerala v.
Padmabhan Nair, AIR 1985 SC 356 : (1985) 1 SCC 429; D.S. Nakara v. Union of India,
AIR 1983 SC 130 : (1983) 1 SCC 305.
Also see, supra, Ch. XXXIV, under Art. 41.
91. Punjab v. Iqbal Singh, AIR 1976 SC 667 : (1976) 2 SCC 1; State of Punjab v. K.R. Erry,
AIR 1973 SC 834.
Also see, Union of India v. P.D. Yadav, (2002) 1 SCC 405.