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i.N. Saksena Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 132 of 1964
Judge
Reported inAIR1964MP248; 1964MPLJ713
ActsConstitution of India - Articles 14, 309 and 311(2)
Appellanti.N. Saksena
RespondentState of Madhya Pradesh
Appellant AdvocateY.P. Verma, Adv.
Respondent AdvocateM. Adhikari, Adv. General and ;R.J. Bhave, Govt. Adv.
DispositionApplication dismissed
Cases ReferredBlackpool Corporation v. Locker
Excerpt:
- - and (ii) government servants who are on leave preparatory to retirement on the 1st march 1963 will not be entitled to the benefit of the increased age of compulsory retirement unless they are permitted to resume duty after the appointing authority is satisfied that they are efficient and physically fit. 309 of the constitution the governor bad the undoubted right to amend the service rules from time to time or to make new rules regulating, inter alia, the conditions of service of persons appointed to services and posts in connection with the affairs of the state; we are referring to this aspect of the matter for the purpose of showing that the assumption made by this court in making the observations to which we have just referred may not be well founded in fact. 8. now, in the.....dixit, c.j.1. by this application under art. 226 of the constitution of india the petitioner seeks a writ of certiorari for quashing an order made by the government on 11th september 1963 retiring him from service with effect from 31st december 1963. the petitioner further prays that the state government be restrained by a suitable direction from giving effect to the aforesaid order of the government and it be declared that he is still in service.2. the relevant facts are that the applicant was born on 22nd august 1908. he entered the judicial service of the old central provinces and berar in 1935 as a subordinate judge. about a year after the formation ef the new state of madhya pradesh the petitioner was appointed as a district and sessions judge in november 1957 and was confirmed in.....
Judgment:

Dixit, C.J.

1. By this application under Art. 226 of the Constitution of India the petitioner seeks a writ of certiorari for quashing an order made by the Government on 11th September 1963 retiring him from service with effect from 31st December 1963. The petitioner further prays that the State Government be restrained by a suitable direction from giving effect to the aforesaid order of the Government and it be declared that he is still in service.

2. The relevant facts are that the applicant was born on 22nd August 1908. He entered the Judicial Service of the old Central Provinces and Berar in 1935 as a Subordinate Judge. About a year after the formation ef the new State of Madhya Pradesh the petitioner was appointed as a District and Sessions judge in November 1957 and was confirmed in that post in April 1962. In accordance with Fundamental Rule 56 as it stood until 1st March 1963 fixing the age of 55 years as the age of superannuation, the applicant would have retired from service on 21st August 1963 when he attained the age of 55 years. But on 28th February 1963 by a memorandum issued 'By order and in the name of the Governor of Madhya Pradesh', the age of superannuation was raised to 58 years with effect from 1st March 1963, subject to certain exceptions stated in the memorandum. That memorandum runs as follows:

'Subject:- Age of compulsory retirement - Raising of.

*** *** ***

The State Government have decided that the age of compulsory retirement of State Government servants should be raised to 58 years subject to the following exceptions:-

(i) the age of compulsory retirement for class IV employees will stay at 60 as at present; and

(ii) Government servants who are on leave preparatory to retirement on the 1st March 1963 will not be entitled to the benefit of the increased age of compulsory retirement unless they are permitted to resume duty after the appointing authority is satisfied that they are efficient and physically fit.

(2) Those who have already retired before the 1stMarch 1963 or who are on refused leave on the 1st March 1963 beyond the date of their compulsory retirewflt arenot entitled to resume duty under these orders. However,those who on the 1st March, 1963 are on refused leavebeyond the date of compulsory retirement may fee re-employed if fit.

(3) Scientific and technical personnel may be given extension of service beyond the age of 58 years subject to their fitness and suitability for work, but not ordinarily beyond the age of 60 years.

(4) Persons on extension of service on the 1st March 1963 may be allowed to continue in service up to the age of 58 years.

(5) Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require Government servant to retire, after he attains the age of 55 years, on three months' notice without assigning any reason. This will be in addition to the provisions already contained in Rule 2 (2) of the Madhya Pradesh New Pension Rules, 1951 or the corresponding rule in the former Madhya Bharat Civil Pensions and Commutation Rules and in the Liberalised Pension Rules, 1950 applicable to Government servants coming from Bhopal and Vindhya Pradesh units, enabling the State Government to retire an officer who has completed 30 years' qualifying service; the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. A Government servant may also, after attaining the age of 55 years, voluntarily retire after giving three months' notice to the appointing authority.

(6) These orders will have effect from the 1st March 1963.

(7) Necessary amendments to the State Civil Service Regulations will be issued In due course.

By order arid in the name of

the Governor of Madhya Pradesh,

Sd/- R. S. S. Rao

Deputy Secretary to Government,

Madhya Pradesh,

General Administration Department.'

3. On 29th November 1963, Fundamental Rule 56 as It existed till 1st March 1963 was substituted by new Fundamental Rule 56. This was done by a direction made by the Governor in the exercise of the powers conferred on him by the proviso to Article 309 of the Constitution. The notification bringing about this change, which was published in the Madhya Pradesh Gazette dated 6th December 1963, was in the following terms:-

'Bhopal, the 29th November 1963 -- Agrahayana 9,1885.

No. 2125 C. R. -- 708-1V-R. -- In exercise of the powers coaferred by-the proviso to Art. 309 of the Constitution, the Governor oi Madhya Pradesh hereby directs that the following further amendments shall be made in ihe Fundamental Rules applicable to the State of Madhya Pradesh, namely:- All Rules in Chapter IX of the said rules regarding Compulsory Retirement shall be deleted and the following shall be inserted as a new Rule 56, namely:-

'F. R. 56. The date of compulsory retirement of a Government servant, other than a class IV employee, is the date on which he attains the age of 58 years. Only Scientific and technical personnel may foe retained in service after the age of compulsory retirement with the sanction of the competent authority subject to their fitness and suitability for work, but they should not ordinarily be retained beyond the age of 60 years. The date of retirement of a class IV Government servant is the date an which he attains the age of 60 years.' this rule has come into effect from 1st March 1963.

By order and in the name of the

Governor of Madhya Pradesh.

Sd/- M. Y. Godbole, Secy.'

4. The petitioner's case as formulated in the application and put before us is that as a result of the amended fundamental R. 56, which came into force from 1st March 1963, he was entitled to be continued in service till the attainment of the age of 58; that the memorandum which was issued 'By order and in the name of the Governor' on 28th February 1963 was not any rule made by the Governor under Article 309 of the Constitution, that it only embodied an administrative decision of the Government to raise the age of superannuation to 58 and to take upon itself the power to retire a Government servant after he attains the age of 55 years, and to make these decisions operative from 1st March 1963; that the memorandum by itself did not either enhance the age of superannuation or give to the Government the power to compulsorily retire a civil servant after net attains the age of 55 years; that ihe memorandum itself contemplated that these decisions of the Government would be implemented by making appropriate amendments in the State Civil Service Regulations; and that whereas Fundamental Rule 56 was amended so as to raise the age of superannuation to 58 years by the order reproduced above made by the Governor in the exercise of his powers under the proviso to Article 309 of the Constitution, no rule was at all made by the Governor giving to the Government the power to retire a Government Servant after he attains the age of 55 years. It was said that in the absence of any rule empowering the Government to retire a civil servant who has attained the age of 55 years, the petitioner's compulsory retirement before the age of superannuation of 58 years amounted to his removal from service, and being contrary to Article 311 of the Constitution was illegal. It was also said that if paragraph 3 of the memorandum had the effect of giving to the Government the power to compulsorily retire a Government servant after he attains the age of 55 years, then that provision was repugnant to Art. 14 of the Constitution and was invalid.

5. In support of the stand taken by the State in the return filed on behalf of the State opposing the petition, learned Advocate-General first contended that under the proviso to Art. 309 of the Constitution the Governor bad the undoubted right to amend the service rules from time to time or to make new rules regulating, inter alia, the conditions of service of persons appointed to services and posts in connection with the affairs of the State; that Art. 309 did not prescribe any special procedure for the making of rules thereunder; that the memorandum issued on 28th February 1963 'By order and in the name of the Governor' was itself a rule made by the Governor in the exercise of his powers under the proviso to Article 309 of the Constitution raising the age of superannuation to 58 years subject to the exceptions mentioned in the memorandum and giving to the Government the power to retire a Government Servant after the age of 55 years on giving to the Government servant three months' notice without assigning any reason; that the memorandum itself said that the orders of the Governor contained therein would be effective from 1st March 1963; that paragraph 7 of the memorandum that 'necessary amendments to the State Civil Service Regulations will be issued in due course' did not contemplate the making of any new rules implementing the decision of the Government embodied in the earlier paragraphs of the memorandum but only indicated that the rules contained in the earlier paragraphs of the memorandum would be incorporated at the appropriate places in the Civil Service Regulations for ready reference in due course; and that the directions contained in the memorandum raising the age of superannuation to 58 and giving to the Government the right to compulsorily retire a Government servant on attaining by him the age of 55 years became legally effective from 1st March 1963 itself and their effectiveness was not postponed to the date of the incorporation of those directions in the State Civil Service Regulations. In this connection learned Advocate General relied on the decision of the Supreme Court it Shyamlal v. State of U. P. AIR 1954 SC 369.

In the alternative, the submission of the learned Advocate-General was that as the petitioner was in the Judicial .Service of the old Madhya Pradesh before it was reorganized in 1956, he was governed by the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955, that R. 7 of these Rules made the Rules and other provisions relating to pension and gratuity applicable to officers holding superior posts in the cadre of the Indian Administrative Service, applicable mutatis mutandis to District Judges also; that, therefore, the petitioner was governed by the All India Services (Death-cum-Retirement Benefits) Rules, 1958, in the matter of retirement, pension and gratuity; and that rules 16 and 17 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended in 1963, while raising the age of retirement to 58 years gave to the State Government the power to retire compulsorily a Government servant on completion by him of 30 years of qualifying service or on his attaining the age of 55 years after giving him at least three months' previous notice in writing. It was further said that the impugned order retiring the petitioner from service no doubt referred to the memorandum issued on 28th February 1963, but if the petitioner's case was governed by Rule 17 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended in 1963, than the incorrect reference in the impugned order to the memorandum would not make the o.rder of retiring the petitioner invalid as the action which the Government took in retiring the petitioner was referable to the power which the Government possessed under the aforesaid Rule 17. it was pointed out by the learned Advocate-General that if according to the petitioner the memorandum had not the force of a rule made under the proviso to Article 309 of the Constitution, then the petitioner stood retired on 21st August 1963 under Fundamental Rule 56 as it stood on that date; and that in that event the petitioner would not even be entitled to the benefit of the amendment made in Fundamental Rule 56 by the notification dated 29th November 1963 raising the age of retirement from 55 to 58 with effect from 1st March 1963.

6. There is no dispute that a permanent civil servant has a right to remain, in service until he reaches the age of superannuation, and if there is no rule made under Article 309 of the Constitution giving to the Government the power to order compulsory retirement of a civil servant before he reaches the age of superannuation, then the Government servant cannot be retired before he reaches the age of superannuation and if he is compulsorily retired before that date, that retirement would amount to dismissal or removal within Article 311 (2) of ths Constitution. This position is now firmly settled by the decisions of the Supreme Court in 1955-1 SCR 26 : AIR 1954 SC 369; State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 : (S) AIR 1957 SC 892, Dalip Singh v. State of Punjab, 1961-1 SCR 88 : AIR 1960 SC 1305 and Moti Ram Deka v. N. E. Frontier Railway, AIR 1964 SC 600. In the cases of 1955-1 SCR 26 : AIR 1954 SC 369; 1958 SCR 571 : (S) AIR 1957 SC 892 and Dalip Singh, 1961-1 SCR 88 : AIR 1960 SC 1305 (Supra), the tests to be applied for ascertaining whether a termination of service by compulsory retirement amounts to dismissal or removal so as to attract Article 311 of the Constitution have been pointed out and it has been observed that while misconduct and inefficiency are factors that enter into account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held -- and there is no duty to hold an enquiry --is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry must satisfy the requirement of Article 311 (2).

In Doshi's case,- 1958 SCR 571 : (S) AIR 1957 SC S92 (Supra), while dealing with the question as to when compulsory retirement would amount to removal Venkatarama Ayyar, J. observed that --

'questions of the above character could arise only when the rules fix both an age of superannuation and an age of compulsory retirement and the services of a civil servant are terminated between these two points of time. But where there is no rule fixing the age of compulsory retirement, or if there is one and the servant is retired before the age prescribed therein, then that can be regarded only as dismissal or removal within Article 311 (2).'

In regard to these observations it has been said in MotiRam's case, AIR 1964 SC 600 (Supra), that they 'correctlyrepresent the true position in law'. Gajendragadkar, J.,(as he then was) after referring to the above observationsof Venkatarama Aiyar, J. stated in Moti Ram's case, AIR1964 SC 600:

'It would be noticed that the rule providing for compulsory retirement was upheld on the ground that such compulsory retirement does not amount to removal under Article 311 (2) because it was another mode of retirement and it could be enforced only between the period of age of superannuation prescribed and after the minimum period of service indicated in the rule had been put in. If, however, no such minimum period is prescribed by the rule of compulsory retirement, that according to judgment, would violate Article 311 (2) and though the termination of a servant's services may be described as compulsory retirement, it would amount to dismissal or removal within the meaning of Article 311 (2). With respect, wo think that this statement correctly represents the true position in law.'

7. Again, later in the judgment in Moti, Ram's case,AIR 1964 SC 600, while dealing with the comment madein Dalip Singh's Case, 1961-1 SCR 88 : AIR 1960 SC1305, that the above observations of Venkatarama Aiyar, J.in Doshi's case, 1958 SCR 571 : (S) AIR 1957 SC 392,'should not be taken to have laid down any rule of universal application in that behalf', Gajendragadkar, J. expressed himself thus:

'It is, however, necessary to point out that the said observations were made on the assumption that the Patiala Rules did not lay down any minimum period of service which had to be put in by civil servant before he could be compuisorily retired under Rule 278. We have already seen that the validity of Rule 278 was not challenged before the Court in Dalip Singh's case, 1961-1 SCR 88 : AIR 1960 SC 1305, besides we have now been referred to the relevant Patiala Rules, and it appears that the combined operation of Rules 53, 54, 125, 236, 239, 240, 243 and 278 would tend to show that no officer could have been compulsorily retired under Rule 278 unless he had put in at least 12 years' service. We are referring to this aspect of the matter for the purpose of showing that the assumption made by this Court in making the observations to which we have just referred may not be well founded in fact. Apart from that, we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311 (2).'

The decisions in Shyam Lal's case, 1955-1 SCR 26 : AIR 3954 SC 369 and Saubhagchand M. Doshi's case, 1958 SCR 571 : (S) AIR 1957 SC 892 (Supra) which were regarded in Moti Ram's case, AIR 1964 SC 600, as concluding the matter of compulsory retirement, so far as it was coverd by those decisions, thus leave no doubt that If there is a rule permitting the Government to retire compulsorily a civil servant before he attains the age of superannuation, then the retirement of the Governmant servant pursuant to that rule cannot be regarded as removal or dismissal within the meaning of Article 311 (2) of the Constitution.

8. Now, in the present case it is common ground that the age of superannuation was raised to 58 years from 1st March 1963. But whereas the petitioner relies on the amendment made in Fundamental Rule 56 by the notification issued on 29th November 1963 for this enhancement in age and contends that no rule was framed under Article 309 of the Constitution giving to the Government the power to retire a civil servant compulsorily on attaining the age of 55 years, the State founds itself on the memorandum both for the raising of the age ef superannuation as well as for the power of the Government to retire a Government servant after he attains the age of 55 years. The controversy thus centres round the question whether the memorandum issued on 28th February 1983 is a rule made by the Governor in the exercise of his powers under the proviso to Article 309 of the Constitution raising the age of superannuation to 58 years and giving to the Government the power to retire a civil servant after he attains the age of 55 years.

9. Learned counsel for the petitioner urged that the memorandum in question only contained an administrative decision of the Governor to raise, the age of superannuation to 58 years and to give to the Government the power to campulsorily retire a Government servant who has attained the age of 55 years by making suitable amendments in the State Civil Service Regulations; and that thus the memorandum only embodied an expression of intention to be implemented in future. We are unable to accede to this contention. 'The memorandum no doubt begins with the statement that 'The State Government have decided that the age of compulsory retirement of State Government servants should be raised to 58 years' subject to the exceptions stated in the first paragraph of the memorandum. We are not concerned with paragraphs 2, 3 and 4 of the memorandum. The fifth paragraph which is very material here stated that notwithstanding anything contained in the earlier paragraphs of the memorandum, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reason; and that this power will be in addition to the provisions already contained in the Rules referred to in paragraph 5. The paragraph also laid down that the power of compulsory retirement 'will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years'. It also added that a Government servant may, after attaining the age of 55 years, voluntarily retire after giving three months' notice to the appointing authority.

The sixth paragraph of the memorandum saying that 'these orders will have effect from the 1st March 1963' unmistakably shows that the decisions of the Government embodied in the first five paragraphs of the memorandum became a rule from 1st March 1963. The words, 'These order will have effect from the 1st March 1963' of paragraph 6 are very significant. They point to the conclusion that what was stated in the earlier paragraphs was not merely an expression of intention ta be implemented at a certain indefinite date in future, but was an order of the Governor which became legally effective from 1st March 1963. The directions contained in the first six paragraphs of the memorandum have all the characteristics of a rule made under a statutory power. It cannot be denied that wider the proviso to Article 309 of the Constitution the Governor is empowered to make rules regulating conditions of service of Government servants In the State, and the subject-matter of the memorandum was one which fell within the purview of the powers of delegated legislation conferred on the Governor by Article 309. The source of the memorandum was thus the constitutional provision contained in the proviso to Article 309. The memorandum when it directed that the age of superannuation would be raised to 58 years from 1st March 1983 and said that as from that date the Government would have the power to retire compulsorily a Government servant on his attaining the age of 55 years on giving three months' notice laid down a general rule of conduct without reference to particular cases, and that rule of conduct came into force from 1st March 1963. That being so, it cannot be contended with any degree of force that the memorandum only embodied an administrative decision of the Governor or contained administrative directions' or executive instructions in a matter falling under the proviso to Article 309 and did not contain any rule made by him, regulating these matters in the exercise of his delegated legislative powers under the proviso to Article 309. A rule after all is that which prescribes or lays down a general standard or guide to conduct; and when such a. general established standard or guide to conduct is made effective from a certain date and has behind it the sanction of a statutory provision, then the general principle of conduct so laid down is a statutory rule having the force of law from the date fixed for the commencement: of its operation. In our opinion, the memorandum embodied the 'legislative decision' of the Governor in regard to matters falling under the proviso to Article 309 of the Constitution and that decision became legally effective as a rule as from 1st March 1963.

10. Learned counsel laid all emphasis on the fast paragraph of the memorandum which said that, 'Necessary amendments to the State Civil Service Regulations will be issued in due course'. It was said that this paragraph indicated that the memorandum itself was hot a rule raising the age of superannuation or giving to the Government the power of compulsory retirement and that for this purpose the Government intended to frame appropriate rules in appropriate form later on. In our view, having regard to the direction contained in paragraph 6 of the memorandum that the orders contained In the memorandum would be effective from 1st March 1963, paragraph 7 cannot be read in the manner suggested by learned counsel for the petitioner. The directions contained in the memorandum having already come into force on 1st March 1933, the real object of making suitable amendments in the State Civil Service Regulations incorporating those directions was not to make any new rule raising the age af retirement or giving to the Government the power of compulsorily retiring a Government servant from the date of the intended amendments; but it was to bring the State Civil Service Regulations up to date by incorporating in them at appropriate places the directions contained in ihs memorandum.

The decision of the Supreme Court in 1955-1 S C R 26 : AIR 1954 SC 369 (Supra) supports this view of th9 effect of the amendments spoken of by paragraph 7 of the memorandum. For the purpose of this case the material facts to be noted are that in the case of Shyam Lal, 1955-1 SCR 26 : AIR 1954 SC 369, by a resolution passed on 15th November 1919 and published in the Gazette of India on the same date the Government of India, Finance Department, with the approval of the Secretary of State for India, announced certain new rules relating to retiring pensions of the officers and the services specified therein. On the coming into force of the Government of India Act, 1919, these rules were validated and confirmed by Section 96-B (4) of that Act. On. 10th May 1920 the Government announced by a resolution that with a view to the exact scope of the new pension rules published in the resolution dated 15th November, 1919, being made clear, the Government intended to publish those rules in the form of amendments to the Civil Service Regulations. Accordingly, another resolution dated 18th June, 1920, along with certain amendments to the Civil Service Reflations, was published in the Gazette of India of 19th June 1920. It was argued before the Supreme Court that the rutes published on 19th June, 1920, affected the validity and force of the rules announced on 15th November, 1919; and as the rules made on 19th June 1920 had not bean made by the Secretary of State for India in Council, they could not under Section 96-8 (3) apply to the appellant before the Supreme Court who was employed by the Secretary of State. The Supreme Court rejected this contention by observing that the rules which were published on 15th November, 1919, came into operation 'ex proprio vigore or, their publication in the Official Gazette on 15th Ndvember, 1919, and their subsequent 'publication in the form of amendments to the Civil Service Regulations only served to make their exact scope clear; and that

'the real purpose of the incorporation of these rules in the Civil Service Regulations was not to make any new rule at the date of such incorporation but to distribute and post up the rules announced in November 1919 at appropriate places in the Civil Service Regulations for ready reference.'

11. The position is not different here. The directions contained in the memorandum came into operation from 1st March 1963 and acquired statutory force by virtue of the proviso to Article 309 of the Constitution as a rule made by the Governor in the exercise of the oower conferred on him by that proviso. The publication at thosa directions in the form of amendments to the State Civil Service Regulations was not in any way intended to affect the validity or effectiveness of the directions contained in the memorandum.

12. It was then submitted by learned counsel for the applicant that the memorandum was not a rule framed under Article 309 as it was not couched in the language generally used in rules; and that it was not even published in the Gazette. It is no doubt true that the memorandum does not contain a recital that

'in the exercise of the powers conferred on him by the proviso to Article 309 of the Constitution, the Governor of Madhya Pradesh is pleased to direct ...... . '

It is no doubt very desirable that in the making of rules under statutory provisions the standard form and language should be adhered to; and if what is contained in the memorandum had been couched in that language, then no ground would have been perhaps available to the petitioner for challenging the order of his retirement. But the absence of a formal recital in the memorandum to the effect that 'the Governor has been pleased to make the directions in the exercise of the powers conferred on him by the proviso to article 309' does not in any way detract from the character and effectiveness, as rules, of the directions contained in the memorandum, if they ara in substance rules made under the proviso to Article 309 of the Constitution, It is the substance and not the form or the name that matters. As we have already endeavoured to point out earlier, the memorandum contains directions which became legally effective as statutory rules from 1st March 1963.

13. In regard to the publication of the memorandum in the Gazette, it ,is no doubt true that it was not published in the Gazette. The memorandum was, however, sent to all Departments of Government, the President Board of Revenue, all Commissioners of Divisions, all Heads of Departments, all Collectors of Madhya Pradesh, the Registrar, High Court of M. P., the Secretary, Public Service Commission, the Secretary/Military Secretary to Governor, M.P., the Secretary, M. P. Vidhan Sabha Sachivalays, Bhcpal, the Establishment Officer/Registrar/Accounts Officer/Records Officer, M. P. .Secretariat, Bhopal and the Private Secretaries to Chief Minister/Ministers, and the Personal Assistants to Deputy Ministers; and to the Finance Department for communication to the Accountant-General, Madhya Pradesh. It was published and made known to the persons affected thereby. Article 309 of the Constitution does not contain any provision with regard to the previous publication of rules made thereunder. That being so, Section 23 of the General Clauses Act, 1897, cannot be invoked for contending that the publication of the memorandum in accordance with Section 23 was necessary. If Section 23 does not apply, then there is no general statutory requirement of publication in the Gazette of the rules made under Article 309. It is without doubt highly desirable that rules made under delegated legislative powers should be published for the benefit of the general public and the persons affected by them; and it is very essential these days when delegated legislation is limitless that the persons whose rights are affected by a legislation should have the source of information about their rights and duties. But, however, desirable publicity of rules may be, a rule, if not published, cannot be struck down as 'invalid if there is no general statutory requirement of publicity in a particular manner with regard to it. In our judgment, merely because the memorandum was not published in the Gazette or was not couched in the standard language or rules, it cannot be held that the directions contained therein, are not statutory rules.

14. Learned counsel for the apolicant referred us tothe decision of the Supreme Court in Harta v. State ofRajasthan, AIR 1951 SC 467, to support his contentionthat publication in the Gazette of the memorandum wasnecessary before it could be regarded as a rule. In ouropinion, the decision is clearly distinguishable on factsand is not in point here. That was a case where theGovernment of the former State of Jaipur enacted theJaipur Opium Act by merely passing a resolution withoutpromulgating or publishing it in the Gazette, or in anyother manner. The Act was a penal Act. It was in thissetting that the Supreme Court held that the mere passing of a resolution by a Council of Ministers purporting taenact the Jaipur Opium Act without promulgation' or publication in the Gazette or other means to make the Actknown to the public was not sufficient to make it law.The Supreme Court stressed the necessity of promulgationand publication of a law on the principle that it would beagainst the rules of natural justice to permit oersons tobe punished or penalised by laws of which they had noknowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge.It is of course of supreme Importance to the continuanceof the rule of law Under our Constitution that the publicaffected should know what the law is. It was this aspectof the matter which was emphasized by the SupremeCourt in Maria's case, AIR 1951 SC 467 (Supra) by sayingnot that publication of a law in the Gazette is essentialbut that promulgation or publication of some reasonablesort is essential. In the present case, though the memorandum was not published in the Gazette, it was circulated and publicized to ail the Government servants affectedby the directions contained therein.

15. In this connection it would be useful to refer to the decision of the Court of Appeal in Blackpool Corporation v. Locker, 1948-1 All ER 85. That was a case in which the Minister of Health delegated his power under Regulation 51 of the Defence (General) Regulations, 1939, to take possession of dwelling houses to local authorities, by communications which were styled as 'circulars'. The circulars were addressed to all local councils with powers of local government above the level of parish councils. The Court of Appeal held that the circulars issued by the Minister of Health were riot mere executive directions but delegated legislation with statutory force. Scott L.J., with whom Asquith L. J. agreed said:

'The startling feature of the whole story before the Court is that both the corporation and the officers of the Ministry of Health, when writing the letters in the correspondence and taking the views and actions therein appearing, radically misunderstood their own legal rights and duties, and appear to have been oblivious of the rights of the private house-owners affected. That the Minister's 'circulars' were not mere executive directions, but delegated legislation with statutory force, conferring powers on the corporation which they would not otherwise have possessed and imposing on them duties for the 'reasonable protection of the individual house-owner, does not seem to have entered the minds of either the corporation or the Ministry of Health, yet the nature of delegated legislation is quite plain and the senior officials of the Ministry had no excuse for ignorance.'

16. After referring to certain passages from the Report of the Ministers' Powers Committee (Cmd. 4060 of 1932) Scott L. J. proceeded to say:

'As the committee point out on p. 19, the content of any given instrument issued by a Minister in exercise of a power of delegated legislation may include administrative or executive instructions and directions and other matter not legislative in character, which (to use the committee's own phrase on p. 19) 'might equally well oe expressed in a circular letter'. It is the substance, not the form, of the content which matters. I am tempted to wonder whether someone in the Ministry of Health thought the name 'circulars' would save them from recognition as delegated legislation. As the ministers' Powers Committee itself pointed out, it is the substance, and not the form or the name, that matters.'

Scott L.J. also emphasized the importance and desirability of facilitating the ascertainment by private citizens of the manner in which his rights are affected by subdelegated legislation and stressed the necessity of publicity of delegated and sub-delegated legislation by saying--

'The modern extent of sub-delegated legislation Is almost boundless, and it seems to me vital to the whole English theory of the liberty of the subject that the affected person should be able to any time to ascertain what legislation affecting his rights has been passed under sub-delegated powers.'

In our country, those on whom the rule-making power has been conferred by statutory provisions will find in the observations of Scott L. J. in the case of Blackpool Corporation, 1948-1 All ER 85 (Supra) useful comment and advice for the proper performance of the function of rule-making.

17. What Scott L.J. said in the case of Blackpool Corporation, 19484 All ER 85, makes it very clear that the memorandum which the Governor issued in the exercise of the delegated legislative power conferred on him by the proviso to Article 309 is not destitute of legal effect as a rule merely because it is styled as a memorandum and is not couched in the form in which rules are generally issued. The conclusion that the memorandum is a rule made under Article 309 which came into force on 1st March 1963 is reinforced by the statement in the amendment incorporated in Fundamental Rule 56 by the notification dated I29th November 1963, namely,--

'This rule 'has come into effect' from 1st March 1963.'

(Underlining (here in ' ') is ours).

This statement is not a deeming provision with regard to the retrospective operation of the enhancement of the age of superannuation from 1st March 1963. It is a statement as regards the factual reality that the age of superannuation was raised to 58 from 1st March 1953. If the petitioner's contention that the memorandum is not a rule is accepted and if, as we think, the amendment in-corporated in Fundamental Rule 56 on 29th November 1933 has not the effect of retrospectively raising the age of superannuation as from 1st March 1963, then the petitioner cannot escape the situation of a person who attained the age of superannuation of 55 some months before the age of superannuation was raised to 58 years by a rule on 29th November 1963 and who is not entitled to the benefit of the raised age of superannuation as the rule is not retrospective.

18. The petitioner's contention that paragraph 5 of the memorandum is repugnant to Article 14 of the Constitution and gives to the Government arbitrary power to select persons for retirement 'op. the ground of unsuitability' may be disposed of by saying that the rule about compulsory retirement is applicable to all Government servants and the discretionary power given to the Government to compulsorily retire Government servants who ara unsuitable and who have attained the age of 55 years is not necessarily a discriminatory power. The possibility that the power may be misused or abused cannot render illegal the conferment on the Government of the power to retire compulsorily. Indeed, the possibility of the misuse and abuse of the power is very remote and those who have been given the power can be trusted to use it with wise and reasonable discretion.

19. The view we have taken of the legal effect of the memorandum renders it unnecessary for us to consider the alternative contention advanced on behalf of the State that the petitioner's compulsory retirement can also be supported with reference to Rule 17 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended in 1963.

20. For the foregoing reasons our conclusion is that the order passed by the Government on 11th September 1963 compulsorily retiring the applicant with effect from 31st December 1963 is a valid order. This application is, therefore, dismissed with costs. Counsel's fee is fixed at Rs. 150A. The outstanding amount of the security deposit after deduction of costs shall be refunded to the petitioner.


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