Holding

The compulsory retirement order issued by the Director of Commercial Audit is illegal because the appointing authority under Rule 2(a) is the Comptroller & Auditor General, who alone could issue such an order.

Summary

The appellant, D.D. Mehta, a government servant appointed by the Comptroller & Auditor General, was compulsorily retired under Rule 56(j) of the Fundamental Rules by an order issued by the Director of Commercial Audit. The issue before the Supreme Court was whether the Director of Commercial Audit was a competent authority to issue such retirement, given the definition of appointing authority in Rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965. The Court held that Rule 2(a) designates the highest authority among four categories, and the authority that appointed the servant (the Comptroller & Auditor General) is the highest, thus the retirement order must be issued by the CAG. Since the order was issued by a lower official, it contravened Rule 56(j) read with Rule 2(a) and was illegal. Consequently, the appeal was allowed, the retirement declared illegal, and the appellant was entitled to salary until his superannuation at age 58. The judgment also emphasized the need for administrative law training for senior officers.

Issues considered

Whether the Director of Commercial Audit is a competent authority to issue compulsory retirement under Rule 56(j) of the Fundamental Rules.
Interpretation of Rule 2(a) of the C.C.S. (C.C.A.) Rules, 1965 regarding the appointing authority for a government servant.
Whether the retirement order contravenes Fundamental Rules 56(j) when read with Rule 2(a) of the C.C.S. (C.C.A.) Rules.

Legislation cited

C.C.S. (C.C.A.) Rules, 1965s. 2(a)
Fundamental Ruless. 56(j)

Subjects

compulsory retirementappointing authorityadministrative lawFundamental RulesComptroller & Auditor Generalrule interpretationillegal order

Judgment

554

A DHARAM DEV MEHTA
v.
THE UNION OF INDIA & OTHERS
December 20, 1979
[V. R. KRISHNA IYER AND R. S. PATHAK, JJ,]
B
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.

C Allowing the appeal by special leave, the Court,
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 sub~rule (iii) viz. Comptroller & Auditor
D General (in the present case) is the highest. Therefore the order of the retire-
ment 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]

E Observation :

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
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 174 of 1976.
F Appeal by Special Leave from the Judgment and Order dated
1-11-1974 of the Delhi High Court in L.P.A. No. 19171.
P. P. Rao, A. K. Ganguli and R. Venkataramani for the Appellant.
T. A. Francis and Miss A. Subhashini for the Respondents.
G The Judgment of the Court was delivered by }

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 con-
templated 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
D. D. MEHTA v. u.o.I. (Krishna Iyer, !.) 555

~ :authority according to Rule 56(j) is the competent authority. Who A
·then, is the appointing authority in the context of this case? The answer
is to be sought under Rule 2(a) which reads thus:
"In these rules, unless the context otherwise, requires ....
2 (a) appointing authority in relation to a Government
servant means-
B

(i) the authority empowered to make appointments
to the Service of which the Government servant is for the
time being a member or to the grade of the Service in which
the Government servant is for the time being included, or
c
(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
servant to such Service, grade or post, as the case may be,
or D
(iv) where the Government servant having been a per-
• manent member of any other service or having substan-

- tively held any other permanent post,1 has been in continuous
employment of the Government the authority which
appointed him to that service or to any grade in that E
I
service or to that post.
whichever authority is the highest authority."
The most significant part of the rule states, after setting out alter-

l
native authorities, that the appointing authority is one out of these four
categories who is the highest. This is emphatically brought out by the p
i::xpression "whichever authority is the highest". There is no doubt
that among the four classes of authorities listed under Rule 2(a), the
·one fallin,g under sub·rule (iii) viz. Comptroller and Auditor general
(in the present case) is the highest. It evidently follows-that the order
·of retirement to be legal, must be issued by the Comptroller and Auditor
<Jenera!, but actually the irnpugned order of retirement was issued by G
the Director of Commercial Audit. In fact the order of retirement runs
ithus :
"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.

-- ----·--
556 SUPREME COURT _REPORTS (1980] 2 S.C.R.

A The High Court, in its extensive judgment, considered the scheme
of the rules and, indeed, referred to the point mentioned above but after
highlighting this question as om: most emphasised by the appellant, has
slurred over the point and proceeded to discussion of other issues. We
are concerned with the vital-perhaps the fatal-aspect of the order
which has not received due attention at the hands of the High Court.
\B In this view, on account of the contravel!!ion of F.R 56(j) read with
Rule 2(a) of the (C.C.A.), we are constrained to come to the conclu-
) sion that f:be retirement is illegal.
The appellant has already become suparannuated and therefore, he
will be eligible to his salary (by which we mean to include .other allow- f
ances automatically admissible and going with salary) for the period '
between the date of compulsory retirement and the date of actual super-
annuation at the age of 58,
It is unfortunate that this legal flaw bas proved fatal. Administrative
law is a course necessary for administrative officers at the highest levels
so that such flaws may not '1tiate orders they pass. Eventually
D Government is put to considerable loss for no fault of it except 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,
but parties will bear their costs. ·
•
V.D.K. Appeal allowed.

j