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M.M. Mital Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 38 of 1972
Judge
Reported inILR1972Delhi671
ActsCivil Service Regulations - Regulation 459
AppellantM.M. Mital
RespondentUnion of India and anr.
Advocates: S.K. Mehta and; R.L. Tandon, Advs
Cases ReferredSkidmore v. Swift
Excerpt:
.....such review till after the government servant has attained the age of 50 or 55 or has completed 30 years service, then the government may pull up such authority administratively for its slackness or negligence. but the right of the government to retire a government servant under the statutory rules is not affected by the slackness of the authorities concerned in complying with the ideal laid down in the instructions.; (ii) interpretation of statutes--interpretations put on statutory rules by government are not binding on courts.; that when the government understands statutory rules or statutes in a particular way and advises the concerned authorities about the interpretation of statutes and statutory rules, such interpretation is not final and is not binding on the courts. - - the..........such review till after the government servant has attained the age of 50 or 55 or has completed 30 years service, then the government may pull up such authority administratively for its slackness or negligence. but the right of the government to retire a government servant under the statutory rules is not affected by the slackness of the authorities concerned in complying with the ideal laid down in the instructions. that the government also so understood the statutory rules is shown by the latter part of paragraph 3 which makes it clear that the government could retire a government servant even by changing a decision previously arrived at in favor of the government servant not to retire him and to allow him to continue in service. if even a positive decision in favor of the government.....
Judgment:

V.S. Deshpande, J.

(1) After having withdrawn a previous writ petition No. 1150 of 1971, this new writ petition No. 38 of 1972 has been filed by Shri M.M. Mital, substantially on the same allegations, challenging the validity of the order of compulsory retirement passed against him by the Government of India on 25-9-1971 under clause (h) of Article 459 of the Civil Service Regulations.

(2) The impugned order gave notice to Shri Mital 'that he shall retire from service with effect from the date of expiry of three months from the date of service of the notice'.

(3) Clause (h) of C.S.R. 459 (corresponding to clause (j) of F.R. 56) under which the petitioner has been retired is as follows:-

'NOTWITHSTANDINGanything contained in this rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice:-

(I)if he is in Class I or Class Ii service or post and had entered Government service before attaining the age of thirty- five years after he has attained the age of fifty years; and

(II)in any other case after he has attained the age of fifty five years.

Provided that nothing in this clause shall apply to a Government servant referred to in clause (f) who entered service on or before 23rd July, 1966.'

(4) The language of clause (h) of C.S.R. 549 is very wide. Not only does it give the Government the absolute right to retire any Government servant but it also states that such retirement could be made 'after he has attained the age of fifty years' if he is in Class I or Class Ii service and had entered Government service before attaining the age of 35 (or in any other case after he has attained the age of 55 years). On a plain reading of this language, it is clear that the Government had the right to retire the petitioner who belonged to Class I service 'after he has attained the age of 50 years'. While the retirement could not be before the age of 50 was attained, it could be at any time after the age of 50 was attained. This is brought out by the use of the word 'after' which only fixes the anterior limit at the attainment of the age of 50 but does not fix any posterior limit thereafter. It plugs only one end but leaves the other end open. The result is that the retirement need not take place precisely on the date on which the age of 50 is attained but may take place even some time after the age of 50 has been attained.

(5) The petitioner attained the age of 50 on 24.11.1969. The impugned order purported to retire him after he had attained the age of 50 but before he had attained the age of 55. His contention is that he could be retired either on the date on which he attained the age of 50 or on the date on which he would attain the age of 55 but not in between. He relies on the following part of the Ministry of Home Affairs O.M. No.F. 33/13/61-Ests (A) dated 23.6.1969 in support of this contention:-

'2.(1) The cases of all Government servants in Class I and Ii service/posts other than those mentioned in F. R. 56(j) (ii) [corresponding to C.S.R. 459 (h) (ii)] should be reviewed six months before they attain the age of 50 years. Similarly the cases of Government servants in Class Iii service/post should be reviewed six months before they complete 30 years of service.

2.(5) The cases of Government servants in Class I and Class Ii service/post, the age limit for the purpose of direct recruitment to which is 35 years and above, will also be reviewed in accordance with the procedure outlined above six months before they attain the age of 55 years.

3.Once a decision has been taken by the appropriate authority to retain a Government servant beyond the age of 50 years (in the case of employees referred to in F.R. 56 (j)(i) or beyond the age of 55 years [in case of those referred to in sub-paragraph (5) of para 2 above] or beyond the date of completion of 30 years of service in the case of Government servants in Class Iii service/post, he would continue in service till he attains the age of superannuation, subject to review at the age of 55 years in accordance with Mha Om No. 33/15/66-ESTs (A) dated 10.11.1966, in the case of those concerned by F.R. 56 (j) (i) and Government servants in Class Iii service or post. If, however, the 'appropriate authority' considers at any time after a review aforesaid that the retention of the Government servant will not be in the public interest, that authority may take necessary action to retire the officer by following the procedure laid down in the preceding paragraphs or that laid down in this Ministry Om of 10.11.1966 as the case may be.'

(6) The argument is that the option to retire a Class I or Caiss Ii Government servant who had joined service before the age of 35 could be exercised by the Government only once, namely, on the date on which he attains the age of 50. Such option is to be exercised after the case for retirement is reviewed within six months of the date on which he attains the age of 50. The administrative instructions contained in this Om were issued on 23.6.1969 before the petitioner had attained the age of 50. The Government was, thereforee, bound to review his case before he attained the age of 50 and decide to retire him on the date on which he attained the age of 50. Having failed to do so, the Government could not compulsorily retire him at all till he attained the age 55 or of superannuation which is 58. Reference is made to the Supreme Court decision in R.L. Butail v. Union of India, 1970 S 926(1), to show that in that case the retirement of Shri Butail had been made on the date on which he attained the age of fifty-five years under F.R. 56 (j) (ii) corresponding to C.S.R. 459 (h) (ii). These contentions are clearly untenable.

(7) The legal position is as follows :-

UNDERArticle 310 of the Constitution, the petitioner holds his office during the pleasure of the President. The only fetter placed on the exercise of the power of the President under Article 310 is to be found in Article 311. Compulsory retirement is not one of the punishments referred to in Article 311(2). It is, thereforee, outside the purview of Article 311(2). The statutory rules which are deemed to have been framed under the proviso to Article 309 can, thereforee, regulate the conditions of service only in consonance with Article 310. It is because the Supreme Court held in Moti Ram Deka v. General Manager, N. E. F. Railways, : (1964)IILLJ467SC , that the fixation of the date of compulsory retirement too early in the period of service of a Government servant would be likely to be regarded as removal from service contrary to Article 311(2) that the retirement after the age of 50 is confined only to those persons who joined service before they were 35 so that they could have at least a minimum period of 15 years of service before being compulsorily retired. The object was thus to ensure a mininmum period of service. The statutory rules Csr 459 (h)(i) and F.R.. 56 (j)(i), thereforee, empasised that the retirement could not be made before the age of fifty was attained. There was absolutely no reason why the retirement should not be made any time after the age of 50 was attained. There was nothing sacrosanct about the precise date on which the age of 50 was attained. The fact that Shri Butail was retired precisely on the date on which he attained the age of fifty five does not mean that he could not be retired thereafter. On the contrary, Shelat J. pointedly referred to the latter portion of paragraph 3 of the Home Ministry's O.M. reproduced above to show that even if a decision is taken at the appropriate time not to retire a person at the age of 50 or 55 or on completion of 30 years of service, nevertheless the Government can thereafter change this decision and compulsorily retire the officer concerned at any time after he had attained the age of 50 or 55 or had completed 30 years of service. The contention that the petitioner could have been retired only on the date on which he attained the age of 50 is thus contrary not only to the express language of C. S. R. 459(h) (i) but is also negatived by the latter portion of paragraph 3 of the O. M. relied upon by the petitioner.

(8) It is then said that the review of the petitioner's case was not made six months prior to the attainment of the age of 50 by him as required by paragraph 2 (1) of the O. M. read with the former part of paragraph 3 thereof. This contention ignores the object of the administrative instructions. These instructions are guidelines laid down for the exercise of the power of compulsory retirement so that the power should be exercised fairly and impartialy. But these instructions are not either a statute or statutory rules. They are purely administrative for the internal guidance of the concerned authorities. They themselves do not create a right in favor of the petitioner or any other Government servant concerned. The rights have to be found out only in C. S. R. 459 or F. R. 56 themselves. The very wide language of C.S.R. 459 (h) and F.R. 56 (j) shows that the right of the Government to compulsorily retire a Government servant in public interest is absolute once the minimum period of service is completed by the Government servant concerned. The intention of the administrative instructions was not to fetter the exercise of this right, in fact, administrative instructions are incapable of doing so. The instructions lay down the ideal which should be followed by the authorities. The very object of compulsory retirement is to weed out that the Supreme Court called in Union of India v. Col. J. N. Sinha, 1970 S.L.R. 78(3), 'dead wood' in Government service. The ideal aimed at by the instructions is that the consideration to chop off such 'dead wood' should take place at the earliest opportunity. This is why paragraph 2(1) of the instructions states that the cases of such Government servants 'should be reviewed six months before they attain the age of 50 years'. If any of the authorities is slack in reviewing the case of a Government servant and delays such review till after the Government servant has attained the age of 50 or 55 or has completed 30 years service, then the Government may pull up such authority administratively for its slackness or negligence. But the right of the Government to retire a Government servant under the statutory rules is not affected by the slackness of the authorities concerned in complying with the ideal laid down in the instructions. That the Government also so understood the statutory rules is shown by the latter part of paragraph 3 which makes it clear that the Government could retire a Government servant even by changing a decision previously arrived at in favor of the Government servant not to retire him and to allow him to continue in service. If even a positive decision in favor of the Government servant could be changed, then a fortiori, the Government could retire a Government servant in whose favor no such positive decision had been taken but only the review of whose case was not made prior to his attaining the age of 50 but was made thereafter. It is true that the administrative instructions do not expressly state that the review could be made even after the age of fifty had been attained. This was because the Government did not want to detract from ideal laid down in the instructions by expressly permitting a departure from the ideal. A slack Government authority would then have been able to cover its slackness by resorting to that part of the instructions which sanctioned a departure from the ideal.

(9) It is well known that the Government have to issue numerous administrative instructions as guidelines for the authorities concerned. They cannot, however, control the clear meaning of the statutory rules or statutes. In the present case, the instructions do not interpret the meaning of C.S.R. 459 of F.R. 56. They only advise the authorities how to quickly implement these statutory rules. But even when the Government understands statutory rules or statutes in a particular way and advises the concerned authorities about the interpretation of statutes and statutory rules, such interpretation is not final and is not binding on the Courts. As observed by the U.S. Supreme Court in Skidmore v. Swift & Co., (1944) 323 U.S. 134 at 140(4), the weight of the judgment of the Government in issuing administrative instructions will depend upon 'the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control'. Just as the Court can disagree with the administrative instructions if they are wrong, the Government which issued the administrative instructions can also be advised that they are wrong. Unless any question of estoppel arises, Government will not be precluded from acting according to the correct advice even if this be contrary to administrative instructions which are wrong. It follows, thereforee, that the force of the statutory rules cannot be controlled by contrary administrative instructions and the petitioner could, thereforee, be retired even after he had attained the age of 50 though the review of his case was not made ideally before he attained the age of 50 but was made actually thereafter.

(10) On merits also, the petitioner has no case. His record was bad according to the confidential reports. It was for that reason that the Committee recommended his compulsory retirement which was approved in the public interest by the appropriate authority.

(11) The writ petition is, thereforee, dismissed before admission but after hearing both the parties on the question of its admission.


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