TMI Blog1954 (1) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... laration that the order passed by the Government of India, which is the defendant in the suit, retiring the plaintiff from his service was wrongful, void and inoperative and that the plaintiff should be deemed to continue still in the service of the defendant. The material facts, which are for the most part uncontroverted, may be shortly narrated as follows: The plaintiff entered the service of the Government of India as a clerk in the Central Research Institute at Kasauli on the 7th of May, 1912. Under Rule 56 (b) (i) of Chapter IX of the Fundamental Rules, which regulate the civil services, a ministerial servant may be required to retire at the age of 55 but should ordinarily be retained in service if he continues efficient, till th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be spared. A third application was presented by the plaintiff on the 18th of September 1945 praying for reconsideration of his petition and urging one additional ground in support of the same, namely, that the war was already at an end. This application too shared the fate of its predecessors and the Director of the Institute did not agree to his retirement. After this the plaintiff kept silent for nearly 8 months and on the 28th May 1946 he made his fourth application which, it appears, met with a favourable response. In this application also it was stated that the plaintiff would attain the age of 55 years on the 27th of November 1946 and he prayed, therefore, that the full amount of preparatory leave, as was admissible to him under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears did not at all arise. It was in consequence of this letter that the present suit was filed by the plaintiff on the 5th of July 1949. 3. The legality of the Government communication mentioned above has been attacked in the plaint substantially on a two-fold ground. The first ground alleged is, that under Rule 56 (b) (i), Chapter IX of the Fundamental Rules, the age of retirement is not 55 but 60 years. The rule no doubt gives the Government a right to retire a ministerial servant at the age of 55, but that can be done only on the ground of his inefficiency. Consequently, before a servant coming within that category is required to retire at 55, it is incumbent upon the Government to give him an opportunity to say what he has to say ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appeal to the High Court of Punjab and the appeal was heard by Falshaw, J. sitting singly. The learned Judge allowed the appeal, upholding both the contentions raised by the plaintiff and decreed the suit. Against this decision there was a further appeal to a Bench of the same High Court under Clause 10 of the Letters Patent and the Letters Patent Bench reversed the judgment of the single Judge and dismissed the plaintiff's suit. The plaintiff has now come up to this Court and Mr. Umrigar, who appeared in support of the appeal, reiterated before us both the contentions that were pressed on behalf of his client in the Courts below. 6. As regards the first point, Mr. Umrigar lays stress mainly upon Rule 56 (b) (i) of Chapter IX of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, the plaintiff began making importunate requests to his official superior to allow him to retire from service. It will be noticed that in his first application he mentioned the fact of his having completed 33 years of service as a ground for obtaining the permission prayed for. There is, in fact, a rule in the Civil Service Regulations under which a retiring pension is granted to an officer who is permitted to retire after completing service for 30 years. It is not clear whether this rule which relates to superior service was at all applicable to the plaintiff. But it is a fact that in his applications for leave preparatory to retirement he laid great stress on two facts, one of which was the length of his service and the other that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point practically loses its force. It may be conceded that It is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus Obtained; but he can be allowed to do so long as he continues in service and not after it has terminated. As we have said above, the plaintiff's service ceased on the 27th of November 1946; the leave, which was allowed to him subsequent to that date, was post-retirement leave which was granted under the special circumstances mentioned in F. R. 86. He could not be held to continue in service after the 26th of November 1946, and consequently it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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