Judgment:
Chauhan, J.
1. Shri Hemant Choudhary was directed to take notice on behalf of the respondent department and he was served copy of the petition and learned counsel for the parties were heard.
2. The instant writ petition has been filed against the order dated 12.5.2000 passed by the Rajasthan Civil Service Appellate Tribunal by which the order of compulsory retirement dated 1.12,1997 has been set aside but back-wages had not been given.
3. The facts and circumstances giving rise to this case are that present petitioner was a Patwari in the Colonisation Department and he had been compulsorily retired vide order dated 1.12.1997. The said order was challenged before the Tribunal only on the ground that the order dated 1.12.1997 compulsorily retiring the petitioner-appellant was passed under the provisions of Rule 244(2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as 'the Rules of 1951') though the said Rules had been repelled by the Rajasthan Civil Service (Pension) Rules, 1996 (hereinafter referred to as 'the Rules of 1996') and as the order dated 1.12.1997 had been passed giving reference to the Old Rules, the order of compulsory retirement was bad and was quashed. As the order of compulsory retirement dated 1.12.1997 was quashed on technical ground and not examining the merit of the case, the learned Tribunal did not award the back-wages on the principle of 'no work no wages'. Hence, this petition.
4. Admittedly, the judgment and order of the Tribunal quashing the order dated 1.12.1997 is only on the ground that on 1.12.1997 the Rules of 1951 were not in application and the order could have been passed under the Rules of 1996 and in view of the fact and as the Rules of 1951 stood repealed by the Rules of 1996, the order stood vitiated.
5. It is settled legal proposition that mere mentioning a wrong statutory provision does not vitiate the order, if the authority had the power to pass the said order. Thus, vide order dated 21.12.2000 this Court suo moto issued notice to the petitioner to set aside the judgment and order of the Tribunal in view of the above settled legal proposition.
6. Being aggrieved and dissatisfied of the said show cause notice, the petitioner preferred the Special Appeal that the Court could not suo moto take such an action and the special appeal was dismissed vide order dated 16.2.2001 and the petitioner was directed to file the reply to the said show cause notice.
7. Shri Jain, learned counsel appearing for the petitioner has filed the reply to show case notice and the matter has been considered with the help of Shri Hemant Choudhary, learned counsel appearing for the respondent.
8. It has been submitted by Shri Jain that there is a difference in the statutory provisions of Rules of 1951 and Rules of 1996. Rule 244(2) of the Rules of 1951 provides for absolute right of the appointing authority to retire the employee in public interest while Rule 53(1) of the Rules of 1996 merely provides that an employee may be required by the appointing authority to retire in the public interest.
9. On the other hand, Shri Choudhary has submitted that both the provisions empowers the appointing authority to pass an order of compulsory retirement after examining the service record of the employee and in both these cases the power of the appointing authority is absolute though the power is to be exercised objectively and there must be attending circumstances which may require the order of compulsory retirement.
10. I find force in the submission made by Shri Choudhary. Both the provisions confer the power upon the appointing authority to pass an order of compulsoryretirement and it remains undisputed and undeniable that the order dated 1.12.1997 was passed by an authority fully competent under a statute. The Tribunal could not have set aside it only on the ground that a reference to the repealed provision had been made therein.
11. A Constitution Bench of the Hon'ble Supreme Court in Afzal Ullah v. State of U.P. (1), considered the case under the provisions of U.P. Municipalities Act, 1916 which empowered the Municipal Board to make by-laws for establishment and regulation of markets on private land. Validity of the said provisions of the said Rules was challenged on the ground that the provision under which the Rules were purported to have been made did not confer the power to frame the Rules. The Apex Court placed reliance upon its earlier judgment in P. Balaakotaiah v. Union of India and Ors. (2), and held that the validity of the by-laws must be tested by reference to the question as to whether the Board had power to make those by-laws. If the power is otherwise established, the fact that the source of power has been incorrectly indicated in the preamble of the by-laws, would not make the by-laws invalid and as in the said case the power to frame the by-laws was there with the Municipal Board under some other provision, the by-laws were upheld.
12. Similar view has been taken by the majority judgment in the Constitution Bench of the Hon'ble Supreme Court in Union of India v. Tulsi Ram Patel (3).
13. In State of Sikkim v. Dorjee Tshering Bhutia and Ors. (4), some officers had been appointed under the special circumstances by holding the selection process dehors Sikkim State Service Rules, 1977 but it was purported to have been made under the said Rules of 1977. The Apex Court held that the executive orders under Article 162 or 166(3) of the Constitution cannot be exercised in the field occupied by the statutory provisions. However, in special circumstances where the Rules could not be enforced for one reason or the other and the executive powers were exercised and there was no case of arbitrariness or malafides, the appointment could not be struck down merely because it had been purported to have been made under the Rules of 1977 for the reason that source of power could be validly traced and the said action in exercise of that power cannot be struck down on the ground that it had been labelled under a different provision.
14. In Peerless General Finance Ltd. and Investment Co. Ltd. and Anr. v. Reserve Bank of India (5), the Apex Court examined a similar issue and observed as under :-
'It is settled law that so long as the power is traceable to the statute, mere omission to recite the provision does not denude the power of the Legislature or rule making authority to make the regulations, nor considered without authority of law. Section 114(e) of the Evidence Act drawn a statutory presumption that financial acts are regularly performed satisfactorily on consideration of relevant facts.'
15. In the said case, as the powers were found to be existing under the statute though the order purported to have been passed under a different provision, the action/order was saved.
16. In B.S.E. Brokers Forum, Bombay and Ors. v. Securities and Exchange Board of India and Ors. (6), the Hon'ble Supreme Court examined a case as to whether the collection of fee purported to have been made under Section 12(2) of the Securities and Exchange Board of India Act, 1992 was a valid and came to the conclusion that it could have been collected under the provisions of Section 11(2)(k) of this Act. The Apex Court held as under :-
'It is well settled principle of law that so long as the impugned order is traceable to the statute concerned, mere omission or error in reciting the correcting provision of law does not denude the power of the authority from taking statutory action so long as its action is legitimately traceable to a statutory power governing such action. Insuch cases, the Court will always rely upon Section 114(III)(e) of the Evidence Act to draw the statutory presumption that the financial acts are regularly performed and if satisfied that the action in question is traceable to statutory power, the courts will uphold said action.'
17. In view of the above, undoubtedly the powers of the State Government to pass an order of compulsory retirement is traceable to the provisions of Rule 53(1) of the Rules of 1996. Thus, I am of the considered opinion that the impugned order passed by the learned Tribunal cannot be sustained in the eyes of law as the learned Tribunal failed to take note of the settled legal proposition. Thus, the impugned judgment passed by the learned Tribunal is liable to be set aside.
18. However, it is stated at the Bar that after the order of the Tribunal, the petitioner was reinstated and a fresh order of compulsory retirement had been passed on 6.12.2000.
19. In view of the facts and circumstances of the case, as the State did not challenge the order of the Tribunal and reinstated the petitioner and gave him compulsory retirement again by order dated 6.12.2000, no substantial order is required but as the order dated 12.5.2000 passed by the Tribunal cannot be sustained in the eyes of law, the relief of back-wages etc. cannot be sustained in the eyes of law, the relief of back-wages etc. cannot be granted to the petitioner.
20. In view of the above, there is no force in the petition and the same is hereby dismissed. There shall be no order as to the costs.