N.C. DALWADI versus STATE OF GUJARAT

Citation: [1987] 3 S.C.R. 640 · Decided: 24-07-1987 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

cites 2 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
N.C. DALWADI 
v. 
STATE OF GUJARAT 
JULY 24, 1987 
[A.P. SEN AND B.C. RAY, JJ.) 
Service Law: Bombay Civil Services Rules, 1959: rr. 161(1)(a) & 
161(1)(c)(ii)(l)-Officiating Superintending Engineer-Compulsory re-
tirement of-Consideration of puf>lic interest absent-Held rules unlike 
FR 59(j), discriminatory and violative of Article 311(2) of the 
Constitution. 
Words and Phrases: Words 'rank' and 'attained'-Meaning of. 
Rule 161(1)(a) of the Bombay Civil Services Rules, 19S9, as appli-
cable to the State of Gujarat, provides for compulsory retirement or a 
Government senant other than Class IV, on bis attaining the age of S8 
years, while proviso (i) thereto empowers the appointing authority to 
retire a Government servant on bis attaining the age or SS years or any 
date thereafter. Rule 161(1)(c)(ii)(l) lays down that except as otherwise 
provided, Government servants in the Service of ERgineers, Class I 
must retire on reaching the age of SS years and may be required by 
Government lo retire on reaching the age of 50 years If they have not 
attained the rank of Superintending Engineer. 
The appellant, who was officiating as Superintending Engineer In 
the Gujarat Service of Engineers, Class I was sought to be compulsorily 
retired by the State Government under the first proviso to r.161(1)(a) 
with effect from December lS, 1967, be having attained the age of SS 
years on November 12, 1967. 
He assailed that order hy a petition in the High Court under Art. 
226 of the Constitution, in which it was submitted for the State that the 
case oftbe appellant was governed by r. 16l(l)(c)(ii)(l) of the Rules and 
-r- ...-
-{ ~ 
~ 
-
·'f'' 
~ 
_,..__ 
y 
G 
not by r. 16l(l)(a) and reference to a wrong provision would not oeces-
"(("" 
sarily invalidate the order, that the appellant had not substantively 
attained the rank of Superintending Engineer before he reached the age 
of SO years and therefore the Government could compulsorily retire 
him at any lime after he reached that age, that by virtue of the power 
vested in the Government under the first proviso to r. 161(1)(a) the 
H 
Government could even otherwise direct the compulsory retirement of a 
640 
"'
DALWADI v. STATE OF GUJARAT 
641 
person who had attained the rank of Superintending Engineer before 
A 
reaching the age of SO years and that power was not excluded by reason 
ofr. 16l(l)(c)(ii)(l). 
• t 
r 
The High Court held that since the appellant had not attained the 
substantive rank of a Superintending Engineer he could be made to 
retire at any time under r. 16l(l)(c)(ii)(l), i.e. on the date he attained 
the age of SS years or thereafter, that since the appellant was merely 
holding the post in an officiating capacity he could not be held to have 
attained the rank of Superintending Engineer, in order to have the 
benefit of the normal age of superannuation of SS years. 
B 
-
.J 
• 
'
' 
In the appeal by special leave, it was contended for the appellant 
C 
that the post of Superintending Engineer was a selection post and the 
appellant was promoted as such in a clear vacancy, that the word 'rank' 
In r. 161(1)(c)(li)(l) must in collocation of the words being preceded by 
the word 'attained' mean the status or the grade, that the word 'rank' is 
not quallfted by the word 'substantive' and that he had acquired the 
status or rank of a Superintending Engineer. 
D 
Allowing the appeal, 
HELD: 1. The order of compulsory retirement of the appellant 
purported to be under the ftrst proviso to r. 161(1)(a) of the Bombay 
Civil Services Roles, 19S9 is struck down as arbitrary, and he shall be 
E 
deemed to have retired from service on attaining his normal age of 
superannuation of SS years. [ 6S2BC] 
"f 
2.1 Under r. 161(1)(a) compulsory retirement of all government 
servants is at the age of 58 years which is the general provision. But the 
same cannot be said of the compulsory retirement of a government 
F 
servant under proviso (i) to that rule on the date on which he attains the 
age of SS years or anytime thereafter. It is not an incident of the tenure. 
It is not conceived in the interests of the employee. It is the mode of 
terminating his employment at the discretion of the appointing autho-
rity. Tltis absolute power of the Government to direct premature retire-
--,:· ment does not exist on its satisfaction that it is necessary to do so in the 
G 
public interest. It is unlike FR S6(j) to that extent. [647G-648B, 649RC] 
2.2 Rule 161(1)

Excerpt shown. Read the full judgment & AI analysis in Lexace.