LexTARA SINGH ETC. ETC. versus STATE OF RAJASTHAN AND ORS.
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1002 TARA SINGH ETC. ETC. v. STATE OF RAJASTHAN AND ORS. March 19, 1975 [A. N. RAY, C.J., K. K. MATHEW AND v. R. KRISHNA IYER, JJ.] .. Rajasthan Service Rules, r. 244 (2 )-Scope of-Compulsory retireme/lt of Government Servants-if violates fundamental rights-De/egatidn of power to collectors, if excessive. All the petitioners were compulsorily retired from Government service under r. 244(2) of the Rajasthan Service Rules. In all the cases the orders stated that compulsory retirement was being done in public interest. In petitions under art. 32 of the Constitution the petitioners contended (i) that compulsorv retire- ment under r. 244(2), which does not prescribe the minimum age of compul- sory retirement is not only removal within the meaning of art. 311 but is also unguided discretionary and discriminatory power and (ii) that permanence in- vol?es right to continue in service till one attains the age of superannuatien. Dismissing the petitions. HELD : (1) The right to be in public employment is a right to hold it -according to rules. The right to hold is defensible according tO' ~ules. · The rules speak of compulsory retirement. There is guidance in the rules as to when such compulsory retirement is made. When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any char.ge& of inefficiency or incompetency the Government passes orders of com- pulsory retirement. The Government servant in such cases does not lose the benefits which a government servant has already earned. These orders of com- pulsory retirement are made in public interest. This is a safety valve of making such orders so .that no arbitrarines or bad faith creeps in. [1009 E-Gl In appendix 9 to Rajasthan Service Rules, Vol. II the power to retire a Gov- ernment servant after completion of 25 years of service in the case of ministerial service is ~onfem~d on the appointing authorities. In the present case the appointing authority is the Collector. The content of the power is not changed by any amendment of the rule. Therefore, the delegation is valid. There is no stigma in any of the impeached compulsory orders of retirement. [1009 G-HJ (2) (a) Rule 244(2) as it stands now does not specifically mention that an aider is to be passed in the public interest. 'The notes to the rule indicate that the right to pass an order of compulsory retirement is to be exercised only against the Government servant whose efficiency is impaired and against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient but not to such a degree as to warrant his retirement on com- passionate allowance. The notes further say that it is not the intention to use this rule as a financial weapon, that is to say, that the provision should be used only in the case of Government servants who are considered unfit for retention on personal as opposed to financial grounds. [1007 G-1008 Al (b) The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that wlten rules are silent the notes wil! fi!L up gaps. [1008 A-Bl (c) The notes which are appended to rules are to aid not only in applying the rules but also in interpreting the true import of the rules. [1009 A-Bl A B c D E F G Shyam Lal v. The State of U.P. [1955) 1 S.C.R. 26 and T.C. Shiracharana H Singh v. The State of Mysore, A.LR. 1965 S.C 280 referred to. (d) Although the Government cannet supersede statutory rules by a?minis- trative instructions yet if the rules framed under art. 309 of the Constitullon are A B c D TARA SI.NGH v. RAJASTHAN (Ray, C.J.) 1903 silent on any particular point, the Government could fill up gaps and supple- ment the rules and issue instructions not inconsistent with the rules already framed and these insu-uctions will govern the cond!ti-Ons of service. [I 009 CJ In the present case the notes are part of the rules because they are for the guidance of the parties. They are no1 inconsistent with the rules but are inten- ded to fill ilp gaps where the rules are silent. The only question here is that formerly the rules said that compulsory retirement would be made in public interest but the present rule does not contain that part of the old rule. The de- l
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