Compulsory retirement under service rules need not be treated as a penalty where the scheme shows only penal retirement was intended.

Compulsory retirement under Rule 244(2) of the Rajasthan Service Rules was held not to require submission to the Governor under Rule 31(vii)(a), because that rule, read with its surrounding clauses, was confined to penal dismissals, removals and compulsory retirement as a penalty. The court also held that an executive order is not invalid merely for want of the formal wording required by Article 166 if the competent Government in substance made the decision; the file showed the requisite governmental approval, and the mode of communication did not change the source of authority. The compulsory retirement order was therefore upheld as valid governmental action.

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Issues: (i) Whether compulsory retirement under Rule 244(2) of the Rajasthan Service Rules was required to be submitted to the Governor under Rule 31(vii)(a) of the Rajasthan Rules of Business. (ii) Whether the retirement order was invalid because it was not issued in the form required by Article 166 of the Constitution of India or because it was not in law an of the Government.

Issue (i): Whether compulsory retirement under Rule 244(2) of the Rajasthan Service Rules was required to be submitted to the Governor under Rule 31(vii)(a) of the Rajasthan Rules of Business.

Analysis: The language of Rule 31(vii)(a) is broad, but it must be read in its setting alongside clauses (b) and (c), which show that the reference to dismissal, removal, and compulsory retirement is a reference to penalties. Rule 14 of the Classification Rules treats compulsory retirement as a penalty only in the penal context, while compulsory retirement on superannuation and retirement under Rule 244(2) are not penalties. The scheme of the Business Rules therefore does not extend the Governor-submission requirement to retirement under Rule 244(2).

Conclusion: Compulsory retirement under Rule 244(2) was not required to be submitted to the Governor, and the objection based on Rule 31(vii)(a) failed.

Issue (ii): Whether the retirement order was invalid because it was not issued in the form required by Article 166 of the Constitution of India or because it was not in law an order of the Government.

Analysis: A defect in the form of an executive order does not by itself invalidate the order if the Government in fact made it. The materials from the file showed approval by the competent governmental authorities, and the communication through the Inspector General of Police did not alter the true source of the decision. The Rajasthan General Clauses Act did not assist the respondent once the Business Rules were read as conferring the relevant authority on the Minister-in-charge for such matters.

Conclusion: The order was in substance an of the Government and was not invalid merely because of the form of its communication.

Final Conclusion: The impugned judgment could not be sustained, and the compulsory retirement order stood upheld as a valid governmental action.

Ratio Decidendi: A reference in business rules to compulsory retirement will be confined to compulsory retirement as a penalty where the surrounding clauses and the statutory scheme show that penal retirement alone was intended, and a defect in the formal expression of an executive order does not invalidate it if the order was in fact made by the competent Government.

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