Allowed

Dharam Dev Mehta v. the Union of India & Others

Supreme Court20 Dec 19791979 INSC 273 · [1980] 2 S.C.R. 5541979 INSC 273

Case brief

AI extract

What is this about?

Government servant compulsorily retired by the Director of Commercial Audit. The Supreme Court held that under Rule 2(a) the highest authority, the Comptroller and Auditor General, alone could order retirement; the order was illegal. Appeal allowed with salary for the period till superannuation.

What did the court decide?

Retirement held illegal; salary and automatically admissible allowances payable between date of compulsory retirement and superannuation at age 58.

What the court decided

Dharam Dev Mehta versus the Union of… — Pension and Retirement Benefits | Supreme Court (1980)

554

DHARAM DEV MEHTA

THE UNION OF INDIA & OTHERS

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December 20, 1979

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[V. R. KRISHNA IYER AND R. S. PATHAK, JJ,]

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Compulsory retiren1ent-Appointing authority as per Rule 2(a) oi C.C.s ...... (CCA) Rules 1965 i::i Co111ptroller & Auditor General of lndia--Contpu!Jory retire1ne11t orders under F.R. 56(i) issued by the Director of Commercial Audit is contrary 10 law and illegal.

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C Allowing the appeal by special leave, the Court,

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0 HELD. Rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965 states, after setting out alternative authorities, that the appointing authority is one out of four categories who is the highest, by using the expression "whicbev0r authority is the highest". There is no doubt that of the four classes of authorities listed under Rule 2(a), the one falling under subrule (iii) viz. Comptroller & Auditor D General (in the present case) is the highest. Therefore the order of the retirement to be legal must be issued by the Comptroller & Auditor General. The mpugned order of retirement issued by the Director of the Commercial Audit who is a lesser officia is contrary to lav;'. On account of the contravention of F.R. 56(j) read with rnle 2(a) of the C.C.S. (C.C.A.) Rules, 1965, the retirement is iJJegal. [555 E-G, 556 B]

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E Observation :

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Administrative law i!ll a course necessary for administrative officers at the highest levels so that such flaws may not vitiate orders they pass. I

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 174 of 1976. Appeal by Special Leave from the Judgment and Order dated 1-11-1974 of the Delhi High Court in L.P.A. No. 19171.

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P. P. Rao, A. K. Ganguli and R. Venkataramani for the Appellant. T. A. Francis and Miss A. Subhashini for the Respondents.

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G The Judgment of the Court was delivered by

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}

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KRISHNA IYER, J.-This appeal by special leave raises a short ques .. tion as to whether the appellant, who was retired under Rule 56(j) of the Fundamental Rules was so retired by a competent authority contemplated by the rule. Admittedly he was appointed by the Comptroller H and Auditor General. The only point that arises or, at any rate, we are concerned with is, as to whether the retirement order is in confonnity with Rule 2(a) of the C.C.S. (C.C.A.) Rules 1965. The:appeinting

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D. D. MEHTA v. u.o.I. (Krishna Iyer, !.) 5 5 5

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:authority accordingtoRule56(j)is the competent authority.
Who
·then, is the appointing authority in the contextofthis case? The answer
istobesought under Rule2(a)which readsthus:
"Inthese rules, unless the context otherwise, requires....
2 (a) appointing authority in relation to a Government
servantmeans-
(i) the authority empowered to make appointments
to the Service of which the Government servantisfor the
time being a member or to the grade of the Service in which
theGovernment servant is for the time being included,or
(ii) the authority, empowered to make appointments
t1)the post which the Government servant for the time being
holds, or
(iii) the authority which appointed
the Government
servanttosuch Service, grade or post, as the case may be,
or
(iv) where the Government servant having been a per-
manent member of any other serviceorhaving substan-
tively held any other permanentpost,1has beenincontinuous
employment of the Government
the
authority
which
appointed him to that service or to any grade in that
service or to that post.
whichever authorityisthe highest authority."
Themost significant part of the rule states, after setting out alter-
native authorities, that the appointing authority is one outofthese four
categories who is the highest. This is emphatically brought out by the
i::xpression "whichever authority is the highest".
There is no doubt
thatamong the four classes of authorities listed under Rule2(a),the
·onefallin,gunder sub·rule(iii)viz.Comptroller and Auditor general
(in the present case) is the highest.Itevidentlyfollows-thatthe order
·of retirementtobe legal, mustbeissued by the Comptroller and Auditor
<Jenera!, but actually the irnpugned order of retirement was issued by
theDirector of Commercial Audit.Infact the order of retirement runs
ithus :

A
B
c
D
E

p
l

G

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•

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"Whereas the Director of Commercial Audit is of the ·.opinion that it is in the public interest to to do so ...... " Obviously the Director of Commercial Audit is a lesser official. The N (:Onc!usion is, therefore, inescapable that the compulsory retirement is .\ (:ontrary to law.

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•

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(1980] 2 S.C.R.

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SUPREME COURT _REPORTS

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556

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•

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A \B	TheHighCourt,in its extensive judgment, considered the scheme ofthe rules and, indeed, referredtothe point mentionedabovebutafter highlighting this question as om: most emphasised by the appellant, has slurred over the point and proceededtodiscussionofother issues. We are concerned with thevital-perhapsthefatal-aspectofthe order which has not received due attentionatthe hands of theHighCourt. ) Inthis view,onaccountofthe contravel!!ionofF.R56(j)read with Rule2(a)of the (C.C.A.), weareconstrained to cometothe conclu- sion thatf:beretirement is illegal.
	Theappellant has already become suparannuated and therefore, he willbeeligibletohis salary (by which we meantoinclude .other allow- f ances automatically admissible and going with salary) for the period ' betweenthedateofcompulsory retirement and the date of actual super- annuationatthe age of 58,
D	Itis unfortunate that this legal flaw bas proved fatal. Administrative law is a course necessary for administrative officers at the highest levels sothatsuchflawsmay not '1tiate orders they pass. Eventually Governmentisputtoconsiderable loss for no fault ofitexcept that no proper legal training in this branch of the law for the concerned officers had been given by it. With these observations we allow the appeal, butparties will beartheircosts. · V.D.K. Appealallowed.

A
\B

TheHighCourt,in its extensive judgment, considered the scheme
ofthe rules and, indeed, referredtothe point mentionedabovebutafter
highlighting this question as om: most emphasised by the appellant, has
slurred over the point and proceededtodiscussionofother issues. We
are concerned with thevital-perhapsthefatal-aspectofthe order
which has not received due attentionatthe hands of theHighCourt.
)
Inthis view,onaccountofthe contravel!!ionofF.R56(j)read with
Rule2(a)of the (C.C.A.), weareconstrained to cometothe conclu-
sion thatf:beretirement is illegal.

Theappellant has already become suparannuated and therefore, he
willbeeligibletohis salary (by which we meantoinclude .other allow- f
ances automatically admissible and going with salary) for the period '
betweenthedateofcompulsory retirement and the date of actual super-
annuationatthe age of 58,

Itis unfortunate that this legal flaw bas proved fatal. Administrative
law is a course necessary for administrative officers at the highest levels
sothatsuchflawsmay not '1tiate orders they pass.
Eventually
Governmentisputtoconsiderable loss for no fault ofitexcept that no
proper legal training in this branch of the law for the concerned officers
had been given by it. With these observations we allow the appeal,
butparties will beartheircosts. ·
V.D.K.
Appealallowed.

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Dharam Dev Mehta v. the Union of India & Others

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Dharam Dev Mehta v. the Union of India & Others

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