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Mulchand Dasumal Pardasani Vs. Union of India, Ministry of Finance (R.D.), New Delhi - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 594 of 1968
Judge
Reported inAIR1970Guj257
ActsConstitution of India - Articles 148, 309 and 311(2); Code of Civil Procedure (CPC), 1908 - Order 7, Rule 7;
AppellantMulchand Dasumal Pardasani
RespondentUnion of India, Ministry of Finance (R.D.), New Delhi
Appellant Advocate N.V. Karlekar, Amicus Curiae
Respondent Advocate C.N. Desai, Government Pleader
Cases ReferredMoti Ram Deka v. N. E. Frontier Rly.
Excerpt:
service - retirement - articles 148, 309 and 311 of constitution of india, fundamental (amendment) rules, 1965 and order 7 rule 7 of code of civil procedure, 1908 - order made by collector against appellant retiring him on date at which he attained age of 55 years - appeal against such order - rules of 1965 raised age of retirement of government servant to 60 years - appellant entitled to be continued in service until he attained age of 60 years - impugned order beyond powers of appointed authority - violation of appellant's normal right to be retained in service till he attains age of 60 years - impugned order found unconstitutional and illegal - accordingly quashed. - - it was contended that the appellant was found to be insubordinate, insolent and unreliable while in the service.....m.u. shah, j. 1. this second appeal has come to us by a reference made by mr. justice b. g. thakore on february 18, 1969. it raises an important question concerning the age of compulsory retirement of a pre-1938 april ministerial central government servant.2. appellant mulchand dasumal pardasani was appointed as a clerk in the sindh salt department on june 10, 1930. he was transferred to bombay central excise department with effect from 15th august 1947 and was appointed as upper division clerk in about october 1948. at that time, he was drawing a salary of rs. 280/- plus rs. 50/- dearness allowance per month in the sale of rs. 130-5-160-8-200 130-5-160-8-200 e.b.-8-280-10-300. he continued to be in that scale of the date of the issuance of establishment order no. 286 of 1963 dated.....
Judgment:

M.U. Shah, J.

1. This second appeal has come to us by a reference made by Mr. Justice B. G. Thakore on February 18, 1969. It raises an important question concerning the age of compulsory retirement of a pre-1938 April ministerial Central Government servant.

2. Appellant Mulchand Dasumal Pardasani was appointed as a clerk in the Sindh Salt Department on June 10, 1930. He was transferred to Bombay Central Excise Department with effect from 15th August 1947 and was appointed as Upper Division Clerk in about October 1948. At that time, he was drawing a salary of Rs. 280/- plus Rs. 50/- dearness allowance per month in the sale of Rs. 130-5-160-8-200 130-5-160-8-200 E.B.-8-280-10-300. He continued to be in that scale of the date of the issuance of establishment order No. 286 of 1963 dated December 18, 1963 by the Collector, Central Excise, Baroda. The said order was served on him on December 28, 1963, and he proceeded on leave preparatory to retirement on March 14, 1964, the date on which he attained the age of 55years. The order reads as under:

'Central Excise Collectorate, Baroda, Establishment Order NO. 286 of 1963.

Shri Mulchand Pardasani, Upper-Division Clerk, Head Quarter Officer, Baroda, who attains the age of 55 years on 14-3-1964 is hereby informed that the Collectorate Departmental Promotion Committee, 1963, has not considered him suitable for further retention in service beyond the age of 55 years. He has the option to retire with effect from 14-3-1964 forenoon or proceed on leave as may be admissible and granted to him preparatory to retirement.

Sd: Illegible

For Collector. 18-12-1963.'

Thereafter, the appellant made several representations to the appropriate authorities in the matter, served a statutory notice on the Government and instituted Regular Civil Suit No. 343 of 1965 in the Court of the Civil Judge (Senior Division) Baroda, on March 9, 1965. Therein the appellant challenged the aforesaid order Ex. 26 as being wrongful, illegal, ultra vires, mala fide, void, unconstitutional and inoperative at law on the grounds, inter alia, that it was in contravention of his right to be continued in service until he attains the age of 58 years as per Fundamental Rule 56(i) that the order casts a stigma on the appellant and was made in violation of Art. 311(2) of the Constitution of India, that it was mala fide, that three months' notice required to be given to a Government servant to retire him on his attaining the age of 55 years was not given and further that it was against the latest orders raising the age of superannuation to 58 years. The Union of India which was sued as defendant resisted the suit contending inter alia that the Government had the right to retire the appellant on his attaining the age of 55 years. It was contended that the appellant was found to be insubordinate, insolent and unreliable while in the service during years 1944 to 1946 in the Sindh Salt Department prior to partition. It was contended that the plaintiff was not found efficient and suitable for further retention and continuation in services beyond the age of 55 years and as such, he was validly given the option as required by law. He was not found fit for promotion by the Departmental Promotion Committee the post of Head Clerk. It was contended that the impugned order was legal and gave the requisite three months notice to the appellant to retire him and further that the order was in conformity with the provisions of Fundamental R. 56 (b) (i). The learned Civil Judge found that the impugned order of compulsory retirement was not in contravention of the provisions of Fundamental R. 56 (b) (i) he found that the order did not voilate the provisions of article 311(2) of the Constitution and the departmental rules. He negatived the defence contention that the suit was barred by limitation. However, as in his view the impugned order was valid order, he dismissed the suit. In First Appeal No. 250 of 1966 that was filed by the appellant against the decree of the trial Court dismissing his suit and which came to be heard by the learned Second Extra Assistant Judge, Baroda, the decree of the trial Court has been confirmed, on the learned Judge holding that the impugned order was not in violation of the Fundamental Rule 56(b)(i) and further that it was not in violation of Art. 311(2) of the Constitution of India. The learned Judge further held that the appellant was not entitled to three months' notice. In this view of the matter, he has dismissed the appeal by his judgment and decree dated November 30, 1967. Being aggrieved, the appellant has filed this second appeal which has now reached hearing before us.

3. Mr. N. V. Karlekar, who has appeared as amicus curiae on behalf of the appellant-plaintiff has contended before us that the age of compulsory retirement of pre-April 1938 ministerial Central Government servants was raised from 55 to 58 and as such the Government had no right to retire the appellant before he attained the age of compulsory retirement. He has contended that the impugned order attached a stigma to the appellant and was in violation of Art. 311(2) of the Constitution of India. He has further contended that the impugned order is mala fide. Lastly, he has contended that the impugned order does not amount to an order of retirement within the meaning of para 6 of the offence memorandum No. 33/18/62/ESTS(A) dated 30th November 1962, issued by the Government of India, Ministry of Home Affairs. Mr. G. N. Desai, the learned Government Pleader, appearing for the respondent, Union of India, has supported the decree of the lower Court. He has contended that the Fundamental Rules 56 (b) (i) as it stood prior to November 30, 1962, was kept intact and that the age of compulsory retirement of the appellant who is a pre-April 1938 ministerial servant continues to be 55. He has contended that the impugned order amounted to notice which the meaning of para 6 of office memorandum dated 30th November 1962. According to him, evenif the memorandum is held to have the force of the statutory rule, the right of the appellant continue in service till the age of retirement was subject to the absolute right of the Government to retire a Government servant on three months' notice.

4. It is not in dispute that the plaintiff-appellant is a ministerial servant who had entered in Central Government service prior to April 1, 1938. It is also not in dispute that the appellant would have attained the age of 55 on March 14, 1964 and the age of 58 on March 14, 1967.

5. In order to appreciate the rival contentions aforesaid raised in this appeal, it will be convenient first to refer to Fundamental Rule 56 and the modifications or amendments that have been made in the rule from time to time. Fundamental Rules were applicable to members of services under the rule-making control of the Governor General in Council and were made by the Secretary of State in Council under Section 96-B of the Government of India Act, 1915. The rules as they stood on the 27th day of May 1930 were subsequently amended from time to time by the Governor General in Council in exercise of the powers conferred on him by Rules 33(2), 37, 42 and 44(d) of the Civil Services (Classification, Control and Appeal) Rules in respect of the personnel under his rule-making control. They have originally come in force with effect from the 1st January, 1922 and continue to be in force after the commencement of the Constitution. Question of compulsory retirement is dealt with in Chapter IX of the Fundamental Rules, F.R. 56 which deals with the compulsory retirement of the various classes of Government servants as prior to the 1962 amendment reads as under:

'F. R. 56(a): Except as otherwise provided in the other clauses of this Rule, the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the Local Government on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.' Proviso to cl (a) deals with the case of a workman and need not be set out. Clause (b) which is material for our purpose provides:

'(b) (i) A ministerial servant who is not governed by sub-clause (ii) may be required to retire at the age of 55 years, but should ordinarily be retained in service. If he continues efficient, upto the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the Local Government.

(Ii) A ministerial servant:

(1) who enters Government service on or after the 1st April 1938 or

(2) who being in Government service on the 31st March 1938, did not hold a lien or a suspended lien on a permanent post on the date.

Shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public ground which must be recorded in writing, and with the sanction of the Local Government and he must not be retained after the age of 60 years except in very special circumstances.'

The other clauses of the rule are not relevant for our purpose.

6. It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within Cl (b) (i) of F. R. 56 than those who fall under Cl (b) (ii) of the same rule or Govt. Servants who are not ministerial servants. For whereas in the case of these, viz.,Government servants- who are not ministerial servants, and ministerial servants under Cl (b) (ii) - retention after the age of 55 itself is intended to be exceptional to be made on publoic grounds which must be recorded in writing and with the sanction of the Local Government, in the case of ministerial servants who fall under Cl (b) (i) of F. R. 56 their retention after the age of 60 is treates as exceptional and to be made in a similar manner as retention in the case of the other servants mentioned above after the ageof 55. It is clear, therefore, that whereas the authority appropriate to make the order of compulsory retirement or of retention is given no discretion by iself to retain a ministerial servant under Cl (b) (ii) if he attains the age of 55 uears, that is not the position as regards the ministerial servants who fall under cl (b) (i). Now, Cl(b) (i) which would govern the case of the appellant provides (i) that the Government servant may be required to retire at the age of 55 years (ii) that he should be ordinarily retained in service upto the age of 60 years, the pre-condition being continued efficiency, (iii) that after he attains the age of 60 years, he cannot be retained in service except in very special circumstances. The rule as it then stood, gave no right to the ministerial servant of pre-April, 1938, to continue in service beyond the age of 55 years. The appropriate authority has the right to require the servant to retire as soon as the age of 55 is reached. Between the ages of 55 and 60, the appropriate authority is given the option to retain the Government servant, but he is not boudn to do so even if the servant continues to be efficient. His retention after the age of 60 is treated as exceptional and to be made in a prescribed manner. This is the resultant position of such a rule as found by their Lordships of the Supreme Court in the case of Kailas Chandra v. Union of India, AIR 1961 SC 1346 where the Supreme Court was dealing with the case of a railway servant falling under Rule 2045 (2)(a) of the Indian Railway Establishment Code which corresponds to fundamental Rule 56(b)(i) as it originally stood. Rule 2046 (2)(a) of the Railway Code reads:

'(2)(a) A ministerial servant who is not governed by sub-clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient upto the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writting, and with the sanction of the competent authority.'

Dealing with the case, Das Gupta, J., speaking for the Supreme Court, has observed at page 1349:

'The correct interpretation of Rule 2046 (2)(a) of the Code is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55, but when the servant is between the age of 55 and 60 the appropriate authority hs the option to continue him in service., subject to the condition that the servant continues to be efficient.'

On a party of reasoning F.R. 56 (b) (i) gives the plaintiff-appellant no right to continue in service beyond the age of 55. This would be the legal position if the F.R. 56 (b) (i) was not amended.

7. By office memorandum No. 33/18/62-ESTS (A) dated 30th November, 1962, Ministry of Home Affairs and M. F. (D.R.) F. No. 6/25/62-Coord (644), dated 4th December 1962 published at pages 531 and 532 of the C.B.R. Bulletin, Customs and Central Excise Administration and Land Customs October-December, 1962 - Part under the caption 'Age of Compulsory retirement - Raising of' amendment was made in Fundamental Rule 56. The office memorandum may be here conveniently set out:

'Government have had under consideration for some time past the question whether the age of compulsory retirement of Government servants should be raised above 55 years.

2. It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government Servants should be 58 years subject to the following exceptions:

(i) The existing rules under which ministerial Government servants recruited before 1-4-1938 are to be retained in service upto the age of 60 years subject to their continuing to be efficient and physically fit after attaining the age of 55 years will remain in force.

(Ii) The age of compulsory retirement for those categories of Class IV staff who are at present entitled to serve upto the age of 60 years including new entrants should continue to be 60 years.

(Iii) xx xx xx xx 3. xx xx xx xx4. xx xx xx xx5. xx xx xx xx. 6. Notwithstanding anything contained in the foregoing paragraphs, 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. This will be in addition to the provisions already contained in Rule 2(2) of the liberalized Pension Rules 1950 to retire an officer who has completed 30 years' qualifying service, and will normally be exercised to wee out unsuitable employees after they have attained the age of 55 years. The Government servant also may, after attaining the age of 55 years voluntarily retire after giving three months' notice to the appointing authority.

7. These provisions will have effect from 1st December, 1962. 8. xx xx xx xx.'

By para 2 of the aforesaid memorandum the age of compulsory retirement of all Central Government servants was raised to 58 yeas but this was subject to the relevant exceptions (i), (ii), (iii) to be found in para 2 thereof. Exception (i) which is relevant for our purpose will govern the case of the Ministerial servants recruited before 1-4-1938, the appellant being the servant falling in that cateogry. The exception is carved out in the general rule which raises the age of compulsory retirement of the Central Government servant to 58 years. However, in so far as it applies to the pre-April 1938 ministerial Central Government servants, it does not introduce any substantial modification in Fundamental Rule 56(b)(i) as it stood earlier which provided that a Government servant may be retained in service after he attains the age of 55 and upto the age of 60 subject to the pre-condition of the Government servant continuing to be efficient upto the age of 60 years. Only the words 'and physically fit' are added to it, thus adding one more pre-condition for being retained in service after 55. This is indicated by the use of the significant expression 'after attaining the age of 55 years' used in the last sentence in exception (i) which age still remained the starting point for the exercise of the discretion by the appropriate authority to retain the Government Servant in service upto the age of 60 yhears and between the ages of 55 and 60. In out opinion, therefore, although the age of compulsory retirement is increased from 55 to 58 and thus appears at first sight to create an impression that the servant may be required to retire as soon as he reaches the age of 58 and not 55 as before, in substance, the modification relating to retention of a Government servant between the ages of 55 and 60 is insubstantial and to this extent the original Rule 56(b)(i) appears to have been kept intact. The memorandum, however, confers an absolute right in the appointing authority to require a Government servant to retire after he attains the age of 55 years on three months' notice.

8. The aforesaid office memorandum was subsequently modified by the decision of the President contained in Home Ministry's No. M.R.A.O.M. 33/2/63-Ests. 'A' dated 31-12-1963 and Finance Ministry's No. M.F. (D.R.)F. No. 6/4/64/Co-or (11) dated 15-1-1964, published in C.B.R. Bulletin, Customs and Central Excise Administration, January-March, 1964. Part, at Pages 3, 4, and 5 as item No. 6 under Caption 'Age of compulsory retirement-raising of Clarifications in respect of 'pre-1938 entrant Minsiterial Government Servants, which reads:

'In partial modification of Ministry of Home Affairs Office Memorandum No. 33/18/62-Ests. (A) dated the 30th November 1962, and 31st December 1962 and the Ministry of Finance Officer Memorandum No. F. 22 (1)0EV/63, dated the 14th April, 1963, inserted as Government of India's decision No. (2) below F.R. 56 in the Posts and Telegraphs Compilation of F.R. and S.Rs., the President is pleased to decide that subject to the right of Government to retire any Officer on 3 months notice after he has attained the age of 55 years, the pre-1938 ministerial officers governed by F.R. 56(b)(i) should also be continued in service like all other Government servants except those whose age of retirement is (60) upto the age of 58 years without any annual order sanctioning their retention. After the age of 58 years and till he attains the age of 60 years however, such an annual order would be necessary. There will, however, be a review in the case of all employees (whether pre-1938 or post-1938) to assess their suitability for retention beyond the age of 55 years. Instructions detailing the procedure for conducting this review are being issued separately. In view of this, the date of compulsory retirement of a Government Servant who is the substantive holder of a ministerial post and is governed by Cl (b) (i) of F.R. 56 but who was officiating in a non-ministerial post on 1st December, 1962, or who may have been appointed to officiate in such a post after this date, will be the date on which he attains the age of 58 years. If such a person would like to become eligible for further retention in service under F.R. 456(b)(i) or the grant of any leave (including leave preparatory to retirement) extending beyond that date, he must revert to a ministerial post before he actually attains the age of 58 years.

2. xx xx xx xx3. xx xx xx xx 4. Action to make necessary formal amendments in F.R. & S.Rs. C.S. Rs. Is being taken separately. 5. xx xx xx xx.'

9. The aforesaid decision of the President thus covers the case of pre-April 1938 Ministerial officers who are governed by F.R. 56(b)(i). The decision is to continue such servants like all other Government servants except those whose age of retirement is 60 upto the age of 58 years and without requiring an annual order sanctioning the retention. Thus, the pre-1938 ministerial servants are, as a general rule, put on par with all other Government servants except the servants whose age of retirement was 60. But, this again is subject to these absolute rights of the Government to retire any officer on 3 months' notice after he has attained the age of 55 years. Thus to the pre-1938 ministerial officers, para 6 of the 1962 office memorandum was continued or made applicable. In case of all servants whether pre-1938 or post-1938 ministerial servants, however, a provision for review in order to assess their suitability for their retention beyond the age of 55 years was made. The language of the second memorandum which extends the period of compulsory retirement of the Government servant to the age of 58 years and dispenses with an annual order sanctioning the retention of the Government servant beyond the age of 55 years and upto the age of 58 years is intrinsic evidence of the intention of the rule-making authority to put the pre-April 1938 ministerial Government servants on par with other Government servants whose age of retirement was formerly 55 years and which by virtue of the first memorandum was raised to 58 years as stated in para 2 thereof. The use of the expression 'like all other Government servants' to be found in the second office memorandum thus strengthens our view that the age of retirement of pre-April 1938 Central Government servants was raised to 58 years. This 1963 memorandum thus substantially amends the fundamental Rule 56(b)(i). The result is that every Government servant shall retire on the date he attains the age of 58 years which appears to be the age of superannuation fixed. This will be subject to (a) the option of the appropriate authority to retain him in service after he attains the age of 58 years and till 60 years, (b) the right of the Government to review the case of all employees for retention beyond the age of 55 years in order to assess their suitability for retention, after following a prescribed procedure for conducting the review and (c) the absolute right of the appointing authority to retire any officer on 3 months' notice, after he attains the age of 55 years.

10. The 1962 office memorandum set out earlier which will hereafter be referred to as 'the first memorandum' and the aforesaid memorandum containing Home Ministry's letter dated 31-12-1962 Hand Finance Ministry's letter dated 15-1-1964, which will hereafter be referred to as the second memorandum' thus introduce substantial amendments in fundamental R. 56 (b)(i) and create substantive rights and liabilities and as a result the corresponding provisions of the Service Code already in operation stand amended by implication as they are not expressly saved, and this is independently of the consideration whether the consequential changes in accordance therewith are or are not incorporated in the relevant service Code, viz., in F.R. 56 (b)(i), the act of incorporating the consequential changes in the Service Code in such cases being mostly a procedural part of law. The result is that the appellant who was a pre-April 1938 Ministerial Government servant would be entitled to the benefit of the increased age of compulsory retirement subject to right of the Government to review his case for rentention beyond the age of 55 and the absolute right of the Government to retire him on 3 months notice as provided for in para 6 of the First memorandum.

11. Mr. Desai has, however, contended that neither of the two memorandum aforesaid can be said to be a rule or a condition of service. His submission was that the two memorandums were merely executive or adminsitrative directions or instructions not having the force of a rule. His submission further was that the memorandums were not gazetted and that they were not in the usual form in which such Presidential decisions or rules are issued. Now, as regars the first memorandum, it may be remembered that, in our opinion, it kept the original Fundamental Rule 56 (b)(i) intact in a way so far as the appellant was concerned at the time of the issuance of the first memorandum, and therefore, it may be said that by itself and without the second memorandum following it had no impact on the rights of the appellant after he attained the age of 55 years. Even then, as Mr. Desai's contention covers both the memorandums the first and the second, we would deal with the question also as far as it concerns the first memorandum. Para 2 of the first memorandum in terms says that 'It has now been decided and the President is pleased to direct' that the age of the complusory retirement of Central Government employees should be 58 years subject to the exceptions which follow. The second memorandum says that 'the President is pleased to decide' in partial modification of the first memorandum that pre-1938 ministerial officers governed by F.R. 56 (b)(i) should also be continued in service like all other Government servants except those whose age of retirement is 60, upto the age of 58 years. Thus, both the memorandum contain the rules, in the form of the directions or decisions made by the President in the matter. The proviso to Art. 309 of the Constitution lays down that it shall be competent for the President to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under the Article and any rules so made shall have effect subject to the provisions of any such Act if made by an Act of the appropriate Legislature. No such relevant Act is shown to have been made. The President had thus the powers to make rules regulating the conditions of service of persons appointed to Central Government services in connection with the affairs of the Union. The rules are not shown to be inconsistent with any provision of the Constitution. In our opinion, therefore, the two memorandums are in substance rules made by the President regulating the conditions of service of the Central Government Servants. The rules will have the same effect as if they are in the Act and are to be judicially noticed for all purposes of construction of rights and obligations.

12. It was contended by Mr. Desai that the office memorandums were not published or gazetted and as such, they had no force or validity. There is no merit in the contention. Neither the proviso to Article 309 of the Constitution, nor the Rules of Business lay down any condition that the rule made in exercise of the powers under the proviso to Art. 309 shall not be effective or binding until the same has been published or posted in the relevant Service Code. The question of publication in the gazette or otherwise in such circumstances is a matter of property and desirability so that all person concerned therewith may have necessary notice in regard thereto. But surely that cannot lead to the conclusion that until the publication of the rules (the memorandums) is effected, any rule made in exercise of the powers given in the proviso to Art. 309 of the Constitution shall have no force as a statutory rule as contemplated therein. This is apart from the fact that the two memorandums have been published in the C.B.R. Bulletins.

12. Mr. Desai has relied upon a decision of the Supreme Court in the case of I.N. Saksena v. State of Madhya Pradesh, AIR 1967 SC 1264 where Wanchoo, J., speaking for the Court, had, while dealing with a memorandum raising the age of compulsory retirement of State Government servants to 58 years issued by the Government of Madhya Pradesh to all Collectors of the State, construed the memorandum as merely an executive direction and not a rule. In the case before their Lordships, the memorandum in question was issued by the State Government and stated that the State Government had decided that the age of compulsory retirement of the State Govt., servants should be raised to 58 years. The memorandum inpara 5 contained a provision conferring a right upon the Government or the appointing authority to require a Govt. Servant to retire after he attains the age of 55 years on 3 months' notice. It stated that necessary amendments to the Civil Service Rules will be issued in due course. In the subsequent notification which was issued by the Finance Department and was published by the Madhya Pradesh Gazette, this para 5 of the memorandum did not find its place. The subsequent notification was stated to have been issued by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the Constitution. The earlier memorandum was not in the form of a rule. The memorandum in question was issued not by the Governor as required under proviso to Art. 309, but it was issued by the State Government. It was on the peculiar facts of the case that the Supreme Court took the view that the memorandum in question was merely an executive direction or instruction of the Government to the Collectors. In the case before us, the second memorandum in its para 4 clearly states that action to make necessary amendments in F.R. & S.Rs. C.S.Rs. is being taken separately. Thus, the second memorandum itself was considered as a rule and what remained to be done was merely to make necessary formal amendments in the fundamental rules, etc.

14. As regards the form in which the order is to be expressed, we do not find any data or warrant for the contention of Mr. Desai that it should be in a particular form. In support of his contention, Mr. Desai invited our attention to the Fundamental (6th) Amendment Rules, 1965, which are expressed to be made in exercise of the powers conferred by proviso to Art. 309 and are made in the form of rules. Para 1 of the amendment states that 'in the exercise of the powers conferred by proviso to Art. 309 of the Constitution and Clause 5 to Art. 148 of the Constitution and all other powers enabling him in this behalf and after consultation with the Comptroller and Auditor General in reltion to persons serving in Union or Accounts Departments, the President makes the rules'. It is true that the said rules are so expressed to be made. But that does not mean that in every case the rules or the office memorandums should be expressed to have been made by the President in exercise of the powers under the Articles of the Constitution. The two memorandums in terms say that they have been made under the directions of the President. They contain the decisions of the President in the matter. The form in which the memorandums are issued is not material if the memorandums can be treated as issued under the powers of the President under the proviso to Art. 309. Again, the purpose of publishing a new rule in the form of amendment to the Civil Service Rules is, as observed by Their Lordships of the Supreme Court in Shyamlal v. State of Uttar Pradesh AIR 1954 SC 369, only to clarify the exact scope of those new rules and not to bring them into force for the first time. There can be no escape from the conclusion that the provisions made in the two memorandums as to the increase of age viz age of superannuation and of premature compulsory retirement had the character of statutory rules contemplated under the proviso to art. 309 of the Constitution and are not administrative orders or executive instructions. We cannot, therefore, accept Mr. Desai's contention that the memorandums are in the nature of administrative or executive instructions and that the entire Fundamental Rule 56(b)(i) as it stood prior to the issuance of the President's directions to be found in the two memorandums was kept intact.

15. As aforesaid the second memorandum introduces substantial amendments to the F.R. 56(b) (i) and creates substantive rights in the Government servants to be continued in service upto the age of 58 years subject to the right of the Government to dispense with his services on 3 months' notice and the right of review. It would follow that the appellant who was a ministerial Government servant within the meaning of fundamental Rule 56(b)(i) will be entitled to the benefit of the increased age of compulsory retirement subject to the right of the Government to review his case of retention beyond the age of 55 years and the absolute right of the Government to retire him on 3 months' notice. Here, we wish to make it clear that neither Mr. Karlekar nor the appellant himself has contended that the proviso in para 6 of the first memorandum which purports to give the Government an absolute right to retire a Government servant on three months' notice, as also a similar provision contained in the second memorandum amount to the removal of the servant in question and is inconsistent with the provisions contained in Art. 311(2) of the Constitution. We have, therefore, not examined the question of validity of the provision and proceeded on the assumption that it is valid.

16. Now, at the date hen the impugned order Ex. 26 was served on the appellant, viz, on December 28, 1963, the appellant had not attained the age of 55. It is true that the order gave him an option to retire with effect from March 14, 1964 forenoon on which date he would have attained the age of 55 years. But, the order gave another option to the appellant, viz.,to proceed on leave as may be admissible and granted to him preparatory to retirement. The appellant is not shown to have retired on the date on which he attained the age of 55 years. On the contrary, it appears to have been contended on behalf of the Government in the lower appellate Court, and the same arguments have been adopted here by Mr. Desai, that the plaintiff-appellant was on preparatory leave extending upto 28 months after 14-3-1964. In fact, the appellant was paid the salary that was admissible to him for this leave period of 28 months. Thus, for 28 months after he attained the age of 55 he continued to be the Government servant. The petitioner was granted leave preparatory to retirement and this precludes the concept of the retirement before the expiry of such leave. The use of the word 'preparatory' indicates that the leave granted preceeds the retirement. It means that the servant retires only after the expiry of the leave, notwithstanding the fact that he attained the age of 55 years when the period of leave commenced. Thus, at the date of the issuance of the second memorandum which must necessarily have been some time prior to the end of the year 1963 A.D., the appellant continued to be in service. He was thus entitled to the benefit of the increased age of compulsory retirement, viz., 58 years as aforesaid. In this view of the matter, the impugned order Ex. 26 was clearly beyond the powers of the Collector who issued the order. The order was in violation of the right of the appellant normally to continue in service until he attained the age of 58 years and now 60 years by virtue of the Fundamental (Sixth Amendment) Rules 1965, as we shall later on see, and as such, is illegal and unconstitutional.

17. As observed earlier, the normal right of the Government servant to continue upto the age of 58 years and now 60 is subject to (i) the power of the Government to review the case of the servant to assess the suitability of the servant for retention beyond the age of 55 years, the power to be exercised according to the procedure prescribed for conducting the review, and (ii) the absolute right of the Government to retire the Government servant on 3 months' notice after he attains the age of 55 years. Now, the impugned order does not purport to be a review order. In the very nature of things. Ex. 26 cannot be said to have been made by the Collector in the exercise of the power of review for the simple reaosn that the second memorandum was issued some time in the end of the year 1963 Although we have nothing on record to show on what particular date the President had passed the order and thus made the rules contained in the second office memorandum. Mr. Desai being unable to point out the date of the Presidential order, it is clear by a reference to the second memorandum as published in C.B.R. Bulletin, January-March, 1964, at pages 3, 4, and 5 that the second memorandum contains the Ministry of Home Affairs memorandum dated December 31, 1963, and Ministry of Finance memorandum dated January 15, 1964. It follows that the second memorandum must necessarily have been issued some time prior to December 31, 1963. It might very probably have been issued prior to December 28, 1963, when the impugned order Ex. 26 was received by the appellant. Apart from that, at the date of issuance of the impugned order which was on December 18, 1963, instructions detailing the procedure for conducting the review are not shown to have been issued, nor is it shown that the Collectorate Departmental Promotion Committee which appears to have considered the appellant unsuitable as stated in the impugned order had the right or authority to review the case. The second memorandum, in terms, says that instructions for detailing the procedure for conducting the review are being issued separately. Thus there was no question of Government exercising the power of review at the time of the issuance of the impugned order. Therefore, the contention of Mr. Desai that the impugned order was an order in exercise of the power of review as contemplated by the second memorandum has no merit and cannot be accepted.

18. This will take us to the next question, viz., the absolute right of the Government to retire a Government servant on 3 months' notice after he has attained the age of 55 years. This restriction on the normal right of the Government servant to continue in service until he attains the age of 58 years, the benefit of which was conferred on the pre-April, 1938 Ministerial Government servants by the second memorandum has to be read, in the context of para 6 of the first memorandum which we have set out earlier. It was urged that para 6 of the first memorandum which provides that the appointing authority may require a Government servant to retire after he attains the age of 55 years on 3 months' notice without assigning any reason, would be operative in the case of pre-April 1938 ministerial Government servants only after the issuance of the second office memorandum some time in December, 1963. Apart from that, we have to see whether the impugned order Ex. 26 amounts to the exercise of such absolute right of the Government. What is contemplated by the powers under para 6 of the first memorandum is to require a Government servan to retire after he attains the age of 55 years. That can be on 3 months' notice and without assigning any reasons. Now, the impugned order Ex. 26 which we have set out earlier does not conform to this requirement as we shall presently see. The order merely communicates the view of the collectorate Departmental Promotion, Committee, 1963, that the appellant was not found to be suitable for further retention in service beyond the age of 55 years. But, it does not require him to retire after he attained the age of 55 years. He was, on the contrary, given an option (i) to retire with effect from March 14, 1964, forenoon, or (ii) to proceed on leave as may be admissible and granted to him preparatory to retirement. In pursuance of this order, the appellant did not retire on that date, nor was he made to retire on that day; but on 14-3-1964, he simply proceeded on leave admissible and as granted to him preparatory to retirement. Again, it is to be remembered that the order was admittedly received by the appellant on 28-12-1963 and he was called upon to exercise the option on 14-3-1964, within 3 months of the date of the order. Obviously, the order did not give him 3 months' time. Considering the tenor of the document as a whole and in the context of the appellant opting for 28 months' preparatory leave which was granted to him and for which he was paid salary admissible under the rules, it could not be said that the impugned order amounts to the exercise by the appointing authority of the absolute right of the Government to retire the pre-April 1938 ministerial servants on 3 months' notice after he has attained the age of 55 years. Further, it is clear that no action can be taken against any public servant in the exercise of the power given in para 6 of the first memorandum unless 3 months' notice was given to him. The impugned order does not fulfil this reqirement either. In any view of the matter, therefore, the impugned order cannot be said to be an order of compulsory retirement passed by the Government in the exercise of its absolute right under the memorandums. Thus the two restrictions which are put on the normal right of the Government servant to continue in service until he attains the age of 58 and now 60, cannot be invoked in this case. The resultant effect is that the impugned order must be found to be illegal and unconstitutional and as such not effectual at law. The appellant thus would be entitled to the benefit of the increased age of compulsory retirement.

19. In the aforesaid view of the matter which we are inclined to take in this appeal, it is not necessary for us to go into the other questions which have been raised by Mr. Karlekar on behalf of the appellant, viz., (i) that the impugned order Ex. 26 attaches stigma to the appellant and amounts to his removal and therefore, is in violation of the provisions of Article 311(2) of the Constitution as he has not been offered any opportunity to meet the charge and (ii) that the order is mala fide. However, when such contentions have been raised, it would be but appropriate to decide these questions. Considering the first question, we may say that the impugned order merely states that the Collectorate Departmental Promotion Committee, 1963, has not considered the appellant suitable for further retention in service beyond the age of 55 years. The use of the expression 'suitable' appears to have been made in an attempt to bring the order in conformity with para 6 of the first memorandum. As observed by the Supreme Court in AIR 1954 SC 369, a compulsory retirement has no element of stigma or any implication of misbehaviour or incapacity. The observations have been approved in P.L. Dhingra v. Union of India, AIR 1958 SC 36 at p. 49, wherein S.R. Das, C.J., speaking for the Court has while summarising the position of law relating to termination of service observed: 'x x x x Likewise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a publishment and does not attract Art. 311(2) as has also been held in AIR 1954 SC 369.' A larger Bench of the Supreme Court has reviewed the position in Moti Ram Deka v. N. E. Frontier Rly., AIR 1964 SC 600. Gajendragadkar, J., expressing the majority view has therein observed at page 610:

'x x x x A person who substantively holds a permanent post has a right to continue in service, subject of course, to the rule of superannuation and the rule as to compulsory retirement. If for any other reason that right is invaded and he is asked to leave his service, the termiantion of his service must inevitably mean the defeat of his right to continue in service and as such, it is in the nature of a penalty and amounts to removal. In other words, termination of the services of a permanent servant otherwise than on the ground of superannuation or compulsory retirement must amount per se to his removal x x x x x.'

The learned Judge has earlier observed at p. 607:

'In regard to servants holding substantively a permanent post who may conveniently be descriebed hereinafter as permanent servants, it is similarly well settled that if they are compulsorily retired under the relevant service rules, such compulsory retirement does not amount to removal under Art. 311(2) x x x'.

The point is concluded by the observations in a recent decision of the Supreme Court in AIR 1967 SC 1264, at p. 1266 that

'Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Article 311. But, where there are no express words in the order itself which would throw any stigma on the Government servant, we cannot delve into Secretariate files to discover whether some kind of stigma can be inferred on such research x x x x.'

Now, looking to the language used in the impugned order. We do not find express words throwing any stigma on the appellant. In our opinion, therefore, it does not amount to his 'removal' within the meaning of the expression as used in Article 311 of the Constitution. Thus, it cannot be said to contravene Art. 311(2) of the Constitution. Mr. Karlekar's contention in this behalf must, therefore, fail.

20-21. On the question of mala fides, it was contended that a long drawn out correspondence had ensued between the appellant and the appropriate authorities of the Government which would show that the authorities had a bias against the appellant. For this purpose, our attention was invited to letters Exs. 18, 20, 21, 34, 35, 36, 22, 74, 23, 39 and 41. It appears from these letters that the appellant was making complaints about his transfer being discriminative. We have been taken through this correspondence by the appellant himself who was also allowed to argue the appeal in person, as Mr. Karlekar who was appointed as Amicus Curiae did not dwell on this point. The correspondence does not reveal the mala fides of the appropriate authorities, viz., the Collector or the Collectorate Departmental Committee, 1963, which had considered appellant's case for retention beyond the age of 55 years and had found him not suitable for the purpose. We cannot, therefore, accept the appellant's contention that the impugned order suffers from the vice of mala fides.

22. It was contended by Mr. Desai that, in any view of the matter, the right of the appellant who was a pre-April 1938 Ministerial Government servant was only to have salary of 3 months' period in lieu of a notice required under para 6 of the first office memorandum. Now, this is an attempt to introduce the ordinary concept of the relationship between the master and servant. But the appellant is a permanent Government servant and as such, he has the right to the security of his service tenure as guaranteed by the Constitution of India. He has a right to continue in service, subject, of course, to the rule of superannuation and the rule as to compulsory retirement. The concept of master and servant has no application. Again, there is no service rule that a permanent Government servant can be compulsorily retired on payment of salary in lieu of 3 months' notice. In any view of the matter, therefore, Mr. Desai's contention in this behalf must, therefore, be rejected.

23. Mr. Desai has lastly contended that Fundamental Rule 56 (b) (i) was amended for the first time by the Fundamental (Sixth) Amendment Rules, 1965, which substituted new Rule for original F.R. 56 and therefore, the amendments in the original F.R. 56 should be considered to have been made, not by the first or the second memorandum, but by the Sixth Amendment Rules, 1965, and as such, the appellant was not entitled to the benefit of the increased age of retirement at 58 under the two office memorandums. This contention, as we shall presently see, is fallacious and has no substance. The Sixth Amendment Rules, on the contrary, increse the age of retirement of a Government servant from 58 to 60 and make the benefit of the increased age available to the appellant who must be deemed to have continued in service when the Fundamental (Sixth Amendment) Rules, 1965, came into force.

24. Now, Fundamental (Sixth Amendment) Rules, 1965, were made by the President further to amend the Fundamental Rules and this is stated to have been made in exercise of the powers conferred by the proviso to Art. 309 and Clause 5 of Art. 148 of the Constitution. The rules are to be found in Notification No. M.F. 12(2) LV (C)/63 dated 21-7-65. Para 2 of the notification says that these rules may be called the Fundamental (Sixth Amendment) Rules 1965. Para 3 reads:

'3. In the Fundamental Rules for Rule 56 the following rule shall be substituted namely:-

56(a). Except as otherwise provided in this rule, every Government servant shall retire on the day he attains the age of fifty-eight years.

(b) xx

(c) xx

(d) xx

(e) xx

(f) xx

(g) xx

(h) xx

(i) xx

(j) Notwithstanding anything 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 after he has attained the age of fifty-five years by giving him notice of not less than three months in writing ............'.

It clearly appears from the substituted Rule 56(a) aforesaid that it merley clarifies the scope of the rules increasing the age of retirement of Government servants to be found in the first and the second memorandums and does not bring them into force for the first time. The relevant rules in the two office memorandums came into operation ex proprio vigore on the issuance of the said memorandums and their subsequent publication for general information in the form of amendment to the fundamental rules was only to make their scope clear. It does not appear to be the intention of the rule-making authority to make any such new rule on the date of such incorporation. The Sixth Amendment Rules do not bring about any new change in the rule as to the increased age of superannuation or as to age of premature compulsory retirement. They had already been in existence prior to the date of the Sixth Amendment. Therefore, the argument of Mr. Desai that the rule raising of age of superannuation of the preministerial Government servant to 58 was made for the first time in the Sixth Amendment Rules, 1965, is incapable of acceptance.

25. On the contrary, it was urged by the appellant in person and with substance that he was entitled to the benefit of clause (c) of para 3 of the Fundamental (Sixth Amendment) Rules, 1965 aforesaid as notified. The submission was that the appellant was a pre-1938-April ministerial Central Government servant falling within the purview of the original Fundamental Rule 56(b)(i) as it stood on the relevant date and sub-clause (ii) of clause (b) thereof did not apply to him and as such, he was entitled to be retained in service till he attaind the age of 60 years. Now, clause (c) of F.R. 56 as amended by the Fundamental (Sixth Amendment) Rules, 1965 provides:

'A ministerial Government servant who entered Government service on or before the 31st March, 1938, and heldon that date:

(i) a lien or a suspended lien on a permanent post, or

(ii) a permanent post in a provisional substantive capacity under clause (d) of Rule 14 and continued to hold the same without interruption until he was confirmed in that post.

Shall be retained in service till the day he attains the age of sixty years.'

26. It was never in dispute that the appellant was a pre-1938 April Ministerial servant of the Central Government and held a permanent post. As he was governed not by F.R. 56(b)(ii) but by F.R. 56(b)(i), in the very nature of things, he must be having a lien on a permanent post on the relevant date. The term 'lien' has been defined in F.R. 2(13) as meaning 'the title of a Government servant to hold substnatively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, the which he has been apointed substantively. The appellant was a substantive holder of a ministerial post. His case would thus fall within the purview of sub-clause (i) of clause (c) of F.R. 56 as amended by the Amendment Rules, 1965. It was contended by the learned Government Pleader that such was never the plea that was raised by the appellant-plaintiff in his plaint and further that the question whether the appellant held a lien or a suspended lien on a permanent post was a question of fact and as such could not be allowed to be heard in this second appeal. Now, in the very nature of things, it was not possible for the appellant to have raised such a specific plea in the plaint that was instituted on March 6, 1965, the amendment Rules which extended the retiring age of a Government servant in service till he attained the age of 60 years having been enacted in the Fundamental (Sixth Amendment) Rules, 1965 published by a notification No. M.F. 12(2) LV (C)/63 dated 21-7-1965. Even then we find that in para 3(a) of the plaint, the plaintff has claimed that he was entitled to continue in his service upto the age of 60 years as per the Fundamental Rule 56 (b)(i) although this prayer was made on the ground that he was not made physically unfit or inefficient. Again, the granting of the consequential relief to the appellant does not require any question of fact to be determined. Having regard to the facts and circumstances of the case, we are not inclined to accept Mr. Desai's contention that the appellant cannot be permitted to invoke clause (c) of Rule 56 as amended by the 6th Amendment. In this view of the matter, in our opinion, the appellant would ordinarily be entitled to be retained in service till the day he attained the age of 60 years.

27. Mr. Desai had, in passing contended that the impugned order Ex. 26 was one contemplated by clause (j) of Fundamental Rules 56 as amended. Now, it is true that clause (j) set out earlier is a non obstante clause and confers on the appropriate authority the absolute right to retire a Government servant, after he has attained the age of 55 years by giving a notive of not less than three months. But such a right is exercisable only if the appropriate authority is of the opinion that it is in the public interest to do so which is not the case here. Again, this clause has come into effect on July 21, 1965. In any view of the matter, therefore, the impugned order Ex. 26 dated December 18, 1963, which is relied upon by Mr. Desai to canvass the view that the appropriate authority has given such a notice falling within the purview of clause (j) of the amended Fundamental Rule 56 cannot be construed as the requisite notice. This is apart from the question of validity of clause (j) which has not been challenged before us.

28. As aforesaid, the first and the second memorandums introduced substantial amendments in original Fundamental Rule 56(b)(i), as it stood prior to the date of the issuance of these office memorandums. The second memorandum has put the pre-April, 1938 Ministerial Government servants of the Central Government on par with all other Government Servants and they have been given the benefit of the increased age of retirement that was conferred on other Government servants by the first memorandum. The Fundamental (Sixth Amendment) Rules 1965 raised the age of retirement of the Government servant to 60 years. The resultant effect is that the appellant was entitled normally to be continued in service until he attained the age of 60 years subject to the right of the appropriate authority to review his case for furtehr retention beyond the age of 55 years in the prescribed manner and the absolute right of the appointing authority to retire him on 3 months' notice. We have found that the impugned order is not falling under either of the two accepted ategories. The impugned order was thus beyond the powers of the appointing authority and is in violation of the appellant's normal right to be retained in service till he attains the age of 60 years. The impugned order Ex. 26 must, therefore, be found to be unconstitutional and illegal and as such ineffectual.

29. For the aforesaid reasons, we cannot sustain the impugned order and uphold the decree now under appeal. Accordingly, we allow the appeal, set aside the decree of the lower appellate Court, as also of the trial Court and quash the impugned order Ex. 26. The appellant will be deemed to have been continued in the service of the Government until he attained the age of 60 years. As, however, the appellant has attained the age of 60 years on March 14, 1969, it is not possible now to declare that he continues in service. Nonetheless, he will be entitled to his salary for the period and such benefits and emoluments of service as might have accrued to him and to which he was otherwise entitled to if he had been continued in service untill he attained the age of 60 years. The appellant will get his costs from the respondent throughout. Decree accordingly.

30. We express our thanks to Mr. N. V. Karlekar who has appeared as amicus curiae at out request.

31. Appeal allowed.


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