TERMINATION

MEANING:
 severance of the relationship of the employer
 May be as a punishment through dismissal, removal or compulsory retirement or may
be as termination simply.
 Based on the presumption that the relationship between the employer and the
employee has been validly brought into existence. i.e appointment of the employee
was legal and valid and not illegal and void.
 Termination of permanent employees is possible only after observing the principles of
fairness. Cannot be arbitrary.
 Moti Ram Deka v. General Manager, North Eastern Frontier Railways AIR
1964 SC 600:
1. If a person who holds a permanent post has a right to continue in the
service.
2. If for any reason his right is invaded and he is asked to leave his
service as a form of penalty, it amounts to removal from service and
attracts the protection of Art. 311.
 Principles of fairness, to be employed, differ with different forms of termination.
 No termination can take place without reason. Such reason must be express, objective,
relevant, and fairly and independently arrived by the authority.
 Termination (punitive) to be valid must be preceded by an opportunity of
representation to the employee.
 Must always be governed by the rules.
 Rules may prescribe for approval of the order of termination by another authority, in
such a case, the approval of the termination must be on application of mind by the
approving authority on the objective and justifiable reasons based on due
consideration of the facts and evidence on record.

TYPES:
1. Termination simpliciter: termination of services for reasons other than misconduct
2. Punishment through Dismissal, Removal, or Compulsory Retirement: termination
of services for Misconduct.
EFFECT:
On Probation:

 on grounds of inefficiency termination simpliciter justified and does not require

observance of principles of natural Justice.
 During probation, the employee does not gain any right to the post and thus may be
terminated on grounds of inefficiency and the seem need not be preceded by an
inquiry. As such the same can also not be challenged before a court of law except on
reasons of mala fide or arbitrariness or discriminatory attracting violation of Art. 14
and/or 16.
 During probation, punitive termination must be preceded by due observance of
principles of natural justice. If the employer chooses to hold an inquiry and then
decides to terminate the probationer employee then since the same attaches a stigma
on the service of the employee thus is considered to be punitive and must always be
followed after observance of principles of natural justice as the employee is protected
under Art. 311.
 Must in all forms be in complete consonance with the service rules.

On service:

 punitive.
 It may be in the form of dismissal: the employee cannot be re-employed and the
employee loses the retiral benefits;
 removal: the employee loses retiral benefits but can be re-employed;
 compulsory retirement: the employee doesn’t lose any retiral benefit.
 Punitive termination in one of the three forms may be on proven misconduct.

JUDICIAL REMEDY:
 Judicial review is available on both forms of termination.
 However, limited in the following ways:
 Termination simpliciter: Judicial review only in case of arbitrary or mala fide
exercise of power. Thus, appealable on grounds of procedural impropriety,
illegality.
 Punitive termination through Dismissal, removal, or Compulsory retirement:
Judicial review available on grounds of Illegality, procedural, failure of Natural
justice, irrationality, proportionality.
COMPULSORY /PREMATURE RETIREIMENT
 When an employee is directed by the employer to retire before the stipulated date of
retirement
 terms and conditions of service, whether embodied in statutory rules or otherwise,
provide for an age of retirement or superannuation
 The term "compulsory retirement" in service law means where an employee has been
directed that his services are no longer required before he reaches the normal age of
retirement by the rules.
 In other words, premature end of the relationship of master and servant before the
servant reaches the prescribed age of retirement or superannuation.

OBJECT OF PREMATURE RETIREMENT

 The purpose and object of premature retirement of a government employee is to weed out
the inefficient, the corrupt, the dishonest or the dead-wood from Government service.
 In Tara Singh v. State of Rajasthan court held that
 the right to be in public employment is a right to hold it according to rules.
 The rules speak of compulsory retirement: When given in 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
charge of inefficiency or incompetency, the Government passes orders of such
compulsory retirement.
 The Government servant in such a case does not lose the benefits which a
government servant has already earned.
 These orders of compulsory retirement are made in public interest.
 In National Aviation Co. of India Ltd. v. S.M.K Khan, court held that
 the Supreme Court again attempted to explain the object of premature retirement.
 It said that the unsatisfactory service of the employee include any consistent
misconduct or inefficiency furnishes the ground for forming a view that the
employee has become a dead wood and that he should be retired compulsorily.
 Such “compulsory retirement" is different and distinct from imposition of a
punishment of compulsory retirement (or dismissal/removal) on a specific charge
of misconduct, where the misconduct is the basis for the punishment.
 The difference is on account of two factors :
 1. firstly, the employee on account of completing a particular age or number
of years of service falls within the zone where his performance calls for
assessment as to whether he is of continued utility to the employer or has
become a dead wood or liability for the employer.
2. Secondly, the record of service, which mnay include poor performance,
unsatisfactory service or incidentally any recent conduct (which if
separately considered may constitute a misconduct subject to punishment)
when considered as a whole, leads the reviewing authority to the
conclusion that the employee in question is not fit to be continued in
service and not of utility to the employer.
 An order of compulsory retirement being not penal in nature can be subject to judicial
review:
 based on no material;
 it is arbitrary;
 it is without application of mind;
 when there is no evidence in support of the case.
 Biswanath Prasad Singh, Court explained
 the twin meanings of the expression 'compulsory retirement' in service
jurisprudence.
 Court pointed out that compulsory retirement was one of the punishments
provided in the service rules and was imposed only after a disciplinary proceeding
and therefore amounted to disciplinary upon proof of misconduct.
 The other concept of 'compulsory retirement' is better expressed as 'premature
retirement' which was not imposed as a punishment for misconduct but in exercise
of power conferred by the service rules to retire a person in public interest on the
formation of bona fide opinion that the services of the concerned employee was of
no further worth to the administration.
 Even if vests an absolute right in the appropriate authority to retire a government servant
in public interest, the State must take care not to act arbitrarily misguided by the absolute
terms of the rule.
 Supreme Court has explained the expression "public interest":
 "The public interest in relation to public administration means retention of honest
and efficient employees in service and dispensing the services of those who are
 inefficient, dead-wood or corrupt and dishonest. Therefore the rule states for
premature retirement of the inefficient, corrupt or dead-wood which would be
against the public interest."
 The Supreme Court held that power to retire compulsorily is absolute, but
authority must forms the opinion in bona fide manner that such retirement is in
public interest.

PREMATURE RETIREMENT IS NOT PUNISHEMENT

 Punishment' means penal action taken against an employee (by way of dismissal,
removal, reduction in rank, withholding of promotion, forfeiture of some accrued benefits
and casts a stigma on the employee, for misconduct after holding an enquiry.
 In Shyantlal v. State of U.P, explained
 why premature retirement is not punishment.
 The Court gave the following reasons:
1. Every termination of service was not punishment—but only those which
were brought about by "removal" or "dismissal" for misconduct after
enquiry.
2. There is no "element of charge in the case or compulsory retirement.
3. "Compulsory" retirement has no stigma or implication of misbehaviour or
incapacity.
4. Service rules indicate that dismissal or removal is a punishment as it
involves loss of benefit already earned and deprives the employee of
pension which he has earned—whereas in compulsory retirement there is
no such deprivation or loss.

PRIOR OPPORTUNITY FOR REPRESENTATION NOT NECESSARY

 Prior representation and natural justice : In M.S. Bindra v. Union of India court held
that compulsory retirement is not punishment and if it is made as per rules and regulation
then principles of natural justice has no application
 Necessity of Speaking Order: Supreme Court held that it is not necessary for the
Government to give any opportunity of being heard before passing an order of
compulsory retirement when the statutory rules or the norms expressly provide for giving
such opportunity.
EXPRESS CONFERMENT OF POWER
 The power to prematurely retire an employee must be expressly conferred by rules; or,
when the rules are silent, by administrative instruction.
 Power in rules: Since premature retirement brings the service career of an employee to an
end before the normally stipulated age of superannuation under the conditions of service
governing the employee, and, affects the employee prejudicially, it is obvious that the
employer must be clothed with legal authority to direct premature retirement,
 Power in administrative instructions: If the rules are silent on the question of premature
retirement, the employer can cover the field by administrative directions—on the basis of
the general principle that the absence of rules will not mean an absolute negation of
power

CONSTITUTIONALLY VALID RULE

 The rule empowering the employer to prematurely retire an employee must be

constitutionally valid.
 Constitutional validity: Qualifying service
 In KCP Sinha, SC discussed question
 whether it is obligatory to prescribe a minimum length of service in a provision
relating to compulsory retirement and whether in the absence of such requirement in
the provision will be held to be invalid was considered by.
 Court upheld the validity of U.P. State Mineral Development Rules which provided
that the appointing authority could at any time retire in the public interest or in the
interest of the corporation an employee at the age of 50 by giving him 3 months'
notice or pay.

BAN ON REAPPOINTMENT
 Supreme Court in P. Radhakrishna Naidu v. Government held that Rules or
administrative instructions may legitimately provide for a ban on reappointment in public
service of a public servant who has been prematurely retired.

PROVISION FOR SPECIFIED AGE AND SPECIFIED PERIOD SERVICE

 The rules (or administrative instructions) confer power of premature retirement must
provide:
 specific age on attaining which, or,
  that the employee must have rendered a specific period of service before which such
power could be exercised
 Basis of the rule
 Both these requirements are the essential attributes of public service i.e security of
tenure.
 For efficient administration it is necessary that public servants should enjoy a sense of
security of tenure and that the termination of service of a public servant under a rule
which does not lay down a reasonably long period of service leads to removal under
Art. 31 1(2).
 Attaining specific age: The rules relating to premature retirement must fix the age for
premature retirement in contrast to the normal age of retirement
 Specified period of service: If the rule relating to premature retirement does not specify
an age as when the power of premature retirement is to be exercised, then it must provide
a specified period of service on the completion of which the order can be made

CONDITIONS PRECEDENT
 The conditions precedent for exercise of the power of premature retirement for a valid
exercise of the power. The conditions precedent are:
 Formation of opinion that it is in the public interest to order premature retirement.
 The concerned employee has completed the stipulated period of qualifying service or
has attained the stipulated age.

OPINION ON RELEVANT MATERIALS

 The formation of the opinion that it was in public interest to prematurely retire an
employee must be based on relevant materials
 Materials must have nexus with public interest: Public interest is the guiding factor in
considering whether the power of premature retirement should be exercised or not. It
would be formation of opinion must be based on that materials, have reasonable nexus
with public interest.
 Efficiency of the employee — documentary proof
 The Courts will not interfere with the exercise of the power if the opinion has been
formed bonafide and on the basis of materials available on record.
 If, however, the opinion is founded on material which does not justify such opinion
then the exercise would be bad and the order for preretirement has to be struck down
  However, once the employer on the basis of materials on record decided that the
punishment of compulsory retirement was too harsh, it could not (on same materials)
later contend that the punishment was appropriate.

JUDICIAL REVIEW
 There is limited scope and grounds of judicial review of an order of premature retirement
 Grounds for interference: Judicial review of premature compulsory retirement would be
permissible
 if it is either arbitrary or malafide or based on no evidence.
 court will interfere if it is satisfied that the order was not made in public interest
 The order was made arbitrarily
 If there has been a contravention of the rules
 The order is based on irælevant ntaterials
 Non-formation of the requisite opinion.
 If there has been non-application of mind.
 The order was made malafide or in abuse of power.
 if the decision of the competent authority is vitiated by bias
 If the order is made by way of punishment
 If the order is made by an authority not competent to do so
 If the employee concerned is under order of suspension.

ORDER BY COMPETENT AUTHORITY

 The order of premature retirement must be made by the competent authority. The competent
authority will be the authority who is specified under the rules or the administrative instructions.
 If power of appointment is vested in particular authority, then order of premature
retirement would be made by that authority or that will be the competent authority.
 Example: if the Chief Security Officer was the competent authority to make the appointment then
the order of premature retirement could be made by the Chief Security Officer only.

PREMATURE RETIREMENT AND PUNISHMENT

 An order of premature retirement in substance or in reality amounts to a punishment, the
order would be illegal and void.

When order of premature retirement amounts to punishment

 Union of India v. Tulsiram Patel:
 An order of premature retirement is sometimes assailed on the ground that authority
has made the order by way of punishment with the necessary corollary that it amounts
to misuse of power and since it was made without complying with the principles of
natural justice, it is void.
 It is now settled by decisions of Court that where an order of compulsory retirement is
imposed by way of penalty, it amounts to removal from service and the provisions of
Art. 311 are attracted.
 The Court identified the two tests:
1. To ascertain whether the order of compulsory retirement is of punishment, it
has to be ascertained whether in the order of compulsory retirement there was
any element of charge or stigma or imputation or any implication of
misbehaviour or incapacity against the officer.
2. whether by compulsory retirement the officer is losing the benefit he has
already earned as he does by dismissal or removal.
 But this approach of the Court was not justified for the following reasons:
 Supreme Court in Jagadish Mitter's case said that the in order, real character
must be determined by reference to the material facts that existed prior to the
order. Although Jagadish Mitter was dealing with a termination order in the case
of a temporary servant, the observations of the Supreme Court are of universal
application on related issues. This principle of 'substance and not the form' is now
upheld by 7 Judge Bench of the SC in Samsher Singh v. State of Punjab.
 Supreme Court held that for the purpose of deciding whether the order of
compulsory retirement is punitive or not, the Court will be entitled to lift the veil
of an innocuously worded order.
 In fact, the Courts have lifted the veil in several cases—including cases of
compulsory retirement to find out whether in reality it is an order of punishment.
The Supreme Court, even while hearing appeals, has gone through the service
records of the employee in order to ascertain the true character of the order.
 In Baldev Raj Chadha v. Union of India, looking into the relevant records for
examining the validity of the order.
  If it is suggested that the Court is powerless to travel beyond the language of the
order, then premature retirement would be the easiest device for inflicting
punishment without holding any disciplinary proceedings.

Judical Remedy: Judical Review and PIL

 Adjudicatory bodies which exercise the powers of judicial review in deciding service disputes are:
 Supreme Court
 The High Courts
 Civil Courts including the High Courts which have original civil jurisdiction
 Tribunals.

THE SUPREME COURT

 SC jurisdiction is to be found in Article 32 of the Constitution which in itself is a fundamental
right for the enforcement of the fundamental rights enshrined in Part Ill of the Constitution.
 Article in Part III which deals with public service is, Article 16 which provides for equality of
opportunities in matters of public employment.
 Article 16 is a prohibition imposed upon the State from indulging in hostile discrimination in
matters relating to employment or appointment to any office under the state
 Article 16(2) expressly prohibits the state from discriminating against any person in respect of
any employment or office under the state on the grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them.
 But at the same time, Article 16 permits protective and positive discrimination in relation to
backward classes of citizens and reservations for Scheduled Castes and Scheduled Tribes.
 If public servant contends that he has been discriminated against in breach of Article 16, he
has a fundamental right to directly move the Supreme Court for enforcement of that right and
seek appropriate relief including striking down a statute, statutory rules and regulation or
administrative instructions.

THE HIGH COURT

 An aggrieved public servant can also invoke the constitutional jurisdiction of the High Courts for
remedying his complaint that not only his fundamental right under Articles 14 and 16 of the
Constitution has been violated but also his legal' right derived from the Constitution or ordinary
laws of the land have been affected.
 Such jurisdiction is conferred by Article 226 of the Constitution which is wider than the area
covered by Article 32 as it is not limited to fundamental rights under the Constitution.
ADMINISTRATIVE TRIBUNALS
 A government servant holding a "civil post" can also avail the jurisdiction of Administrative
Tribunals constituted under the Administrative Tribunals Act, 1985 for redressal of such
grievances.
 This Act was enacted to make in effect Article 323A of the Constitution which empowers the
Central Government and the State Governments to establish tribunals for resolution of service
disputes and further attempted to oust the jurisdiction of the Supreme Court under Article 32 and
High Courts under Article 226 in service matters.
 In L. Chandra Kumar v. UOI, the Supreme Court held that the constitutional power of judicial
review conferred under Article 226 and Article 32 was a feature of the basic structure of the
Constitution However, instead of pronouncing that a person could directly approach the High
Court under Article 226, the Court appears to have adopted a policy to lay down its own
"amendment" of the Constitution by holding that a person could not have direct access to Article
226 but would have to first have recourse to jurisdiction of the Administrative Tribunal and
thereafter approach the HC, if still aggrieved by the decision of an Administrative Tribunal.

THE CIVIL COURTS

An aggrieved public servant can also have recourse to a civil court for redressing grievances but as far
as persons holding "civil post" are concerned they would have to move the Tribunal first before filing
of such civil suit by reason of the decision in L. Chandra Kumar.

This means that in the civil suit, the holder of the civil post would have to challenge the decision of
the Tribunal and his cause of action would be based on the infirmity in the decision of the Tribunal.

DIRECTIONS TO MAKE REPRESENTATIONS

 The reviewing courts often direct representations to be made to the concerned authority for
redressal of grievances instead of reviewing on its own.
 Directions for departmental remedy
 When a litigant approaches the court for a remedy, the reviewing court directs the litigant to
make a representation to the concerned authority for redressal of his grievances. Such
directions are given in that exercise of its discretion.
 Such directions should be given only on a finding that it was the duty of the authority under
the law to deal with a representation already made but the authority has failed to discharge its
duty of considering and disposing of the representation, the courts often adopt a liberal
approach and consoles the litigant by giving such direction instead of rejecting the application
for judicial review on the merits.
JUDICIAL REVIEW AND PUBLIC INTEREST LITIGATION (PIL)
Public interest litigation (PIL):

 PIL is a litigation initiated in the interest of the public. It connotes that a case which is filed by a
private person for vindicating his own personal rights, whether constitutional or otherwise, cannot
be subject matter of a PIL.
 In Balco Employee v. UOI, the Court was of the view that the PIL was not meant to be a weapon
to challenge the financial or economic decisions which are taken by a government in exercise of
their administrative power.
 The Court summarized the legal principles in Gurpal Singh v. state of Punjab, to having recourse
to PIL in service matters. The Court has to be satisfied about
 the credentials of the applicant;
 the prima facie correctness or nature of information given by him;
 the information being not vague and indefinite.
 The information should show gravity and seriousness involved
 Avoid mischievous petitions to assail, for oblique motives: In such case, the court has to be
extremely careful to see that under the guise of redressing a public grievance, it does not
encroach upon the sphere reserved by the Constitution to the executive and the legislature.
 Hari Bansh Lal v. Sahodar Prasad Mahto: The Court has gone to the extent in absolute terms
that PIL is not maintainable in-service matters.
 Dr. Duryodhan Sahu v. Jitendra Kumar Mishra: Tribunals constituted under Administrative
Tribunals Act had no jurisdiction to entertain a PIL.

VOLUNTARY RETIREMENT

OPTION TO THE EMPLOYEE

Voluntary retirement is an option given to a public servant to retire from service on the fulfil- ment of
the specified terms and conditions

STATUTORY CONDITION OF VOLUNTARY RETIREMENT

Fundamental Rules provides that any Government servant might by giving notice of not 'less than
three months in writing to the appropriate authority retire from service after he has attained a
particular aoe (ranging from 50-55 years depending on the group to which he belongs) and subject to
the various other stipulations contained in the proviso to that rule. Two of these conditions are of
practical importance namely: (l) It is open to the authority to withhold permission where the employee
is under suspension. (2) On a request by the employee the competent authority might accept a notice
of less than 3 months
CONCEPT OF VOLUNTARY RETIREMENT
Voluntary retirement is a condition of service which (unless a different intendment is disclosed) gives
an option in absolute terms to a public servant to voluntarily retire aftei giving the requisite notice and
after he has reached the qualifying age or rendered the qualifying service, as the case may
be.retirement is Inade by the employee, by the employer. As the Supreme thete is no question of
acceptance of the request Court has pointed out: Nant, "While even the acainst government his wish,
reserves its right to compulsorily retire a Government servoluntarily retire there is a con-esponding
right of the Government from service . But like almost all rights it is hedged with certo tain
qualification as will be presently seen.

VOLUNTARY RETIREMENT DISTINGUISHED FROM RESIGNATION

Voluntary retirement is a condition of service created generally by statutory provi- sion whereas
resignation is an implied term of any employer-employee relationship. The point of distinction of
practical importance is that whereas voluntary retirement does not require acceptance once the
conditions for making the request are fulfilled, resignation is not effective until it is accepted by the
employer. It has also been pointed out that whereas an employee can resign at any point of time i.e.
even on the second day of his appointment, in the case of retirement, he retires •only after attaining
the age of superannuation or in the case of voluntary retirement on completion of qualifying service. It
has been held that even if a voluntary retirement scheme authorises the employer not to grant the
request on reasonable grounds, the court can scrutinise such grounds to see whether they are
reasonable.

EFFECTIVE DATE OF VOLUNTARY RETIREMENT (NOT COPY)

Tek Chand v. Dib Rani,33a 3 Judge Bench of the Supreme Court catalogued the (a) Where voluntary
retirement automatically comes into force on expiry of no_ tice period; (b) Where retirement comes
into force unless an order is passed during the no_ tice period withholding permission to retire; (c)
Voluntary retirement does not come into force unless permission to this ef- fect is granted by the
competent authority.

The effective date of voluntary retirement is the day when the Government accepts such application
and not from the date of communication of acceptance.3

WITHDRAWAL OF THE NOTICE

Since the retirement becomes effective from the date mentioned in the notice, an employee is entitled
to withdraw the notice before that date
PUNISHMENT AFTER VOLUNTARY RETIREMENT
Since voluntary retirement brings about cessation of relationship of employer and employee, a
punishment sought to be imposed after such retirement will be of no effect

JUDICIAL REVIEW
Judicial review of a VRS under Article 226 is maintainable inter alia on the grounds: (i) The employer
is an authority under the State. (ii) The action of such authorities should pass the tests of Article 14.
(iii) Right of employee to continue in employment under Article 21 could not be 61 taken away except
in accordance with law

SUPERANNUATION

DISCHARGE BY RETIREMENT
Service conditions provide a terminal point when the tenure of employment comes to a compulsory
end. This is referred to as retirement or superannuation. The employer may, however, grant extension
of service in its discretion.

MEANING OF SUPERANNUATION
Superannuation means discharge from a post on account of age—the act of retiring a person on a
pension

Where the appointment is contractual and the contract incorporates a rule relatino to retirement as
conditions of service, e.g., upto 60 years, then such an appointed ern_ ployee is entitled to serve upto
the age of sixty.

This retirement is compulsory retirement in the true sense because there is no option on the part of the
employee or emploxer to continue the employee's service even after attaining the age of
superannuation. A person retires automatically on the day he completes the age of superannuation and
therefore the question of application of principles of natural justice are not applicable

3 MATTER OF POLICY
The fixation of the age of retirement is essentially a matter „18 of executive policy17 largely
dependent on the "felt need of the administration and when the policy is questioned, its justification
will be tested in Indian conditions and neither the American nor the English notions or norms for
fixing retirement age would be relevant
DIFFERENT RETIREMENT AGE FOR DIFFERENT CATEGORIES OF STAFF—
WHETHER DISCRIMINATORY
It is now well settled that it is permissible to have different retirement 27 ages for difthe ferent classes
or categories of the staff in the same organisation. In Nagaraj, supreme Court perceived the
unreasonableness of the concept of a uniform age Of retirement all over India. Even the prescription
of the qtge of superannuation in respect of a single person vis-a-vis others has been upheld. But
differential treatment of 31male and female employees for retirement age has been held to be
unconstitutional.

6 REDUCTION IN AGE OF RETIREMENT

Rashan Lai Tandon v. Union oflndia: It is now settled law that unless there is an express legislative
bar, a State or its in- stamentalities have the power to reduce the age of retirement and this can be
done unilaterally because a public servant relationship is ultimately governed by the prin- ciple of
status. That there is no Constitutional limitation has been expressly recog- nised by the Supreme
Court.

DATE OF BIRTH
Union of India v. Harnam Singh: A Government servant, after entry into service, acquires the right to
continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating
conditions of service, unless the services are dispersed with on other grounds contained in the relevant
service rules after following the procedure prescribed therein. The date of birth entered in the service
records of a civil servant is, thus of utmost importance for the reason that the right to continue in
service stands decided by its entry in the service record. A Government servant who has declared his
age at the initial stage of the employment, is of course, not precluded from making a request later on
for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in
possession of irrefutable proof relating to his date of birth as different from the one earlier recorded
and even if there is no period of limitation prescribed for seeking correction of date of birth, the
Government servant must do so without any unreasonable delay

A challenge to the date of birth as recorded in the service book, made on the eve of retirement should
not normally be entertained and the onus lies on the employee concerned to prove by irrefutable
evidence his plea of error in the service book

In the controversy relating to date of birth, it is the service record which has primacy and
superannuation etc. will be determined on the basis of the service record and not on what the
employee claims to be his date of birth, unless the service record is first corrected in conformity with
the appropriate procedure
POWER OF EXTENSION
The rules or administrative instructions may provide for extension of service of an employee after
reaching the age of superannuation. It is not necessary that such a power of extension has to be
conferred by statute. On the settled principle that where the field is not covered by statutory
provisions the executive can always exercise its administrative powers, the provision for extension
may be included in administrative instructions. Further, it is always open to the authorities to enter
into a contract with an employee who attains the age of superannuation whereby his services are ex
tended for a further period provided of course there are good reasons for entering into such a contract
consistent with public interest and exigencies of administration.

2 EFFECT OF EXTENSION
When an officer has been given extension, he cannot be removed within the extended period without
com(not copy)

CONTINUATION IN SERVICE AFTER RETIREMENT/RE-EMPLOYMEN

It has been already noted that an employee is not entitled to continue in service after retirement. The
question of re-employment arises only when employment has ceased. Hence, if an employee is
permitted 40 to continue in service after retirement at 55, it must be treated as re-employment. If,
however, an employee remains in service after attaining the age of superannuation by virtue of an
order of court, he must (not copy)

LEAVE AND BREAK IN SERVICE

CLAIMING LEAVE IS NOT A MATTER OF RIGHT

 No Right TO LEAVE: In public service, generally, leave cannot be claimed as of right.
 Leave is a condition of service. The various aspects of leave are generally governed by rules or
administrative instructions.
 It is in the nature of a grant and it is not a right of a government servant. So, no govt. servant can
compel the sanctioning authority to grant leave extending beyond the date of retirement. There is
recognition of the discretion of the authorities by providing leave and if any emergency due to
public service so leave might be refused or revoked.
 Leave being a condition of service, once sanctioned cannot be cancelled or varied retrospectively
without affording an opportunity of being heard otherwise it would be arbitrary and violate Art
14, 16.

COMMENTS ON LEAVE
1. Extension of Leave
There is power to extend the leave which must be exercise on reasonable grounds and refusal should
also be on reasonable grounds.

2. Period of leave within tenure of service and not outside of tenure

3. Employer cannot force leave on employee: Just as leave cannot claim as right same like
employer has no power to send employee on forced leave without pay
4. Formal application for applying for leave and leave account:
 Leave cannot be presumed or inferred. Onus is on the employee to prove that he had
actually sent a leave application.
 The rules contain specific provisions with regard to the form of the application as well as
the Competent Authority to whom the application is to be made.
 Rules also generally provide for maintenance of leave account.
5. When leave is not to be granted
 The rules may provide for circumstances when leave is not granted to employee.
 The circumstances usually are dismissal, removal or compulsory retirement.

KINDS OF LEAVE
1. Earned leave:
 An employee can earn leave. For example, Rule 4 Of the All India Services (Leave)
Rules, says that leave shall be earned by duty only.
 Earned leave can be carry forward.
 The leave so carry-forward plus the credit for the half year is not to exceed the maximum
limit of 240 days.
2. Half-pay leave:
 is a leave which is granted on medical certificate or on private affairs.
 It is different from the concept of earned leave
 Generally service rules provide that a public servant shall be entitled to half pay leave for
20 days in respect of each completed year of service.
 No such leave shall be granted to a Government servant who is not a permanent employee
or quasi-permanent employee unless the authority competent to leave has reasons to
believe that the servant will return to duty.
3. Commuted leave: Commuted leave can be granted on ground of sickness of a member of the
family though not economically dependent on the civil servant
4. Extraordinary Leave
 Extraordinary leave may be granted to a government servant (other than a military
officer) in special circumstances: -
a) when no other leave is admissible;
 b) when other leave is admissible, but the Government servant applies in writing for
the grant of extraordinary leave.
c) The rules normally specify time-limits for which such extraordinary leave may be
granted. Although under special circumstances such leave requested and granted
on medical grounds
5. Sick leave
 Sick leave can be granted only on production of a medical certificate from registered
medical practitioner.'
6. Maternity leave
 A female Government servant may be granted maternity leave for a period of 90 days
from the date of its commencement.
 During such period should be entiled to salary equal to the pay
 Maternity leave shall not be debited from the leave account and could be combined with
leave of any other kind.
7. Study leave
 The rules may provide for the granting of study leave to a Government servant with due
regard to the exigencies of public service to enable him to undergo in or out of India, a
special course of study consisting of higher studies or specialised in a professional or
technical subject having a direct and close connection with sphere of his duty
 Study leave is not debited against the leave account and may combined with other kinds
of leave.
 The rules for study leave should have nexus with the performance of duties of theclass of
employees concerned.
 During study leave the public servant is normally allowed to draw equal pay drawn
immediately before proceeding on such leave.
 If government servant resigns or retires from service within a period of 3 years after
return to duty, he shall be required to refund the actual amount of leave salary and other
allowances in connection with the course of study
8. Leave preparatory to retirement

EXTRA COMMENT
1. Revocation Of Leave
 Leave may be revoked and the public servant may be recalled to duty before expiry of his
leave.
 such recall to duty shall be treated as compulsory in all cases.
2. Holidays And Leave
 The rules may provide as to when holidays may be combined with leave.
  Similarly, when his leave expires immediately following a holiday or series of holidays he
shall be permitted to return to his station on the day following such holiday or series of
holidays.
 The rules also generally provide
a) if holidays are prefixed to leave, pay and allowances take effect from the day
after the holidays; and
b) if holidays are suffixed to leave, pay and allowances takes effect from the day on
which the leave would have ended.
3. Return Not At Employees Discretion
 Return from leave is not at the discretion of the employee.
 When leave is granted to employee then employer has to make administrative
arrangements including e.g. engaging others by deputation etc. to discharge function so in
order to avoid administrative inconvenience, the rules generally provide that a public
servant on leave shall not return to duty before the expiry of the period of leave
4. Overstayal After Expiry
 Every leave has a commencement date and a termination date.
 Unless extended, an employee who remains absent after the end of the leave has to meet
with certain penal consequences.
5. Overstayal/unauthorised absence
 Overstayal means continuation of the position immediately before the end of the leave.
 In other words, a public servant overstays when after the end of the leave he continues to
stay away from work without the sanction of the competent authority.
 It amounts to unauthorised absence and could amount to misconduct or breach of
discipline.
6. Consequence of overstaying leave
 The immediate consequence of overstayal is that the employee will not be entitled to
leave salary.
 Unauthorised absence by reason of overstayal could amount to misconduct and could
even be a circumstance for removal.
9. Leave salary
 Leave necessarily means that the public servant is absent from his duty yet such absence
being authorised the right of the employee to receive remuneration during the period of
leave.
10. Amount of leave salary
 The amount of leave salary varies with the different kinds of leave.
  The rules generally provide that in the case of earned leave, the employee will be entitled
to leave salary equal to the pay
 in the case of half pay leave, the entitlement would be half the amount receivable on
earned leave;
 In the case of extra ordinary leave, the employee is not entitled to any leave salary.

BREAK IN SERVICE

MEANING
 Unauthorized absence in certain circumstances amount to break in service
 The rule, however, provides that such unauthorised absence shall not be considered as interruption
or break in service for the limited purpose of lease travel concession, quasi-permanency and
eligibility for appearing in a departmental examination, for which a minimum period of
continuous service is required, if the Competent Authority so decides.
 Although the rules generally do not lay down in express terms "interruption", it has been held that
absence from duty without leave does not necessarily mean break in service of the employee
whose leave has been refused.

NATURAL JUSTICE
 Since a break in service has serious civil consequences, an order to such cannot be passed
without giving a reasonable opportunity to the employee.

CONDONATION OF BREAK IN SERVICE

 In the absence of any specific rule, the Government has inherent power to a break in service.
 The power of condonation must be exercised fairly, e.g. the authority should consider whether the
break was on account of reasons beyond the control of the employee.
 In certain cases, the court can direct that the employee is entitled to condonation but this would
depend on the facts of each case.