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PETITIONER: SENIOR SUPDT. OF POST OFFICE & ORS.

       Vs.

RESPONDENT: IZHAR HUSSAIN

DATE OF JUDGMENT10/08/1989

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) MISRA RANGNATH

CITATION:  1989 AIR 2262            1989 SCR  (3) 796  1989 SCC  (4) 318        JT 1989 (3)   411  1989 SCALE  (2)222  CITATOR INFO :  RF         1990 SC 450  (4)

ACT:     Administrative  Law: Statutory rule--Cannot be  modified or  amended by executive instructions  constitutionally  in- valid    rule    cannot   be    validated    by    executive instructions--Instructions  can  only  supplement  and   not supplant the rule.     Fundamental       Rules:      Rule        56J--Premature retirement--Only in ’public interest’.     Liberalised  Pension Rules, 1960: Rule  2(2)--Compulsory retirement-Permissible after 30 years qualifying service  at ’discretion’ of Government--No guide-line provided--Rule  in valid.

HEADNOTE:     The respondent, and employee in the Posts and  Telegraph Department, was retired from service under Rule 2(2) of  the Liberalised Pension Rules, 1950 which empowered the  Govern- ment to retire a servant at any time after he had  completed 30 years of qualifying service. The respondent’s writ  peti- tion  in  the  Allahabad High Court  was  dismissed  by  the learned Single Judge holding that there was no infirmity  in the Rule. The Division Bench, however, accepted the  Special Appeal  filed by the respondent and declared Rule  2(2)  in- valid.     Before  this  Court, it was contended on behalf  of  the appellant  that the Government of India had issued  instruc- tions  dated July 11, 1955 and February 8, 1956  which  laid down  that  the retirement under Rule 2(2)  of  the  Pension Rules should be effected when such retirement was  necessary in public interest. It was further contended that the Minis- try of Home Affairs Memorandum dated November 30, 1962 which was issued in the name of the President of India, was statu- tory and had the effect of amending Rule 2(2) of the Pension Rules, and reading the rule and the memorandum together  the power  under Rule 2(2) could only be exercised  to  weel-out unsuitable employees. Dismissing the appeal, this Court,     HELD:  (1) Central Government servants  superannuate  at the  age of 58 years. The Government has the absolute  right

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under Rule 56(j) of 797 Fundamental Rules to prematurely retire a servant in ’Public Interest’  after  he has attained the age of 55  years.  The Government has also the power under Rule 2(2) of the Libera- lised Pension Rules to retire a servant at any time after he has completed 30 years of qualifying service. [798H-799A]     (2) Fundamental Rule 56(j) while granting absolute right to  the  Government  provides that such power  can  only  be exercised  in ’Public Interest’. This guide-line  is  suffi- cient  safeguard against the arbitrary exercise of power  by the  Government.  The  object of this Rule  is  to  chop-off dead-wood. Rule 2(2) of the Pension Rules on the other  hand provides no guide-line and gives absolute discretion to  the Government. There is no requirement under the rule to act in ’Public Interest’. [799E-F]     (3)  Although the rules are mutually exclusive and  have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 can be retired prematurely under F.R. 56(j) only on the ground of ’Public Interest’ whereas anoth- er  Government servant who is only 51 and has  completed  30 years  of qualifying service, can be retired at any time  at the  discretion  of the Government under Rule  2(2)  of  the Pension  Rules. Any Government servant who has completed  30 years of qualifying service and has not attained the age  of 55  years  can be picked up for premature  retirement  under Rule  2(2). Since no safe-guards are provided in  the  Rule, the  discretion  is absolute and is capable  of  being  used arbitrarily  and  with  an un-even hand. Rule  2(2)  of  the Pension Rules is therefore ultra vires Articles 14 and 16 of the Constitution of India. [799G, 800B-C]     (4)  A statutory rule cannot be modified or  amended  by executive  instructions. A valid Rule having some lacuna  or gap can be supplemented by the executive instructions, but a statutory  rule which is constitutionally invalid cannot  be validated  with the support of executive  instructions.  The instructions can only supplement and not supplant the  rule. [800E]     (5) The  Ministry  of  Home  Affairs,  Memorandum  dated November  30, 1962 has not been issued under Article 309  of the  Constitution of India and as such cannot be  statutory. The  memorandum is in the nature of  executive  instructions issued  in  the name of the President of India  as  required under Article 77(1) of the Constitution of India. [801D] 798     Union of India & Ors. v. R. Narasimhan, A.I.R. 1988 S.C. 1733, distinguished-

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1361  of 1974.     From  the  Judgment and Order dated  21.11.1973  of  the Allahabad High Court in Special Appeal No. 60 of 1972.     Anil Dev Singh, C.V.S. Rao and Tara Chand Sharma for the Appellants. R.D. Upadhyay for the Respondent. The Judgment of the Court was delivered by     KULDIP  SINGH, J. The short question  for  consideration before  us is whether Rule 2(2) of the  Liberalised  Pension Rules,  1950  (hereinafter  called  ’Pension  Rules’)  which permits the Central Government to retire a Government  serv- ant at any time after he has completed 30 years of  qualify-

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ing  service  by giving him three months’ notice or  pay  in lieu of such notice, confers unguided powers in the  Govern- ment  and as such is ultra vires Articles 14 and 16  of  the Constitution of India.     Izhar  Hussain joined the Post and Telegraph  Department as a clerk on June 4, 1935. The Director, Postal Services by an  Order  dated April 21, 1970, retired  him  from  service under  Rule 2(2) of the Pension Rules. Izhar  Hussain  chal- lenged  the  order of retirement by way of a  writ  petition before  the Allahabad High Court. The learned  single  Judge dismissed  the writ petition holding that there was  no  in- firmity  in  Rule  2(2) of the Pension  Rules.  The  Special Appeal  filed by Izhar Hussain before the Division Bench  of the  High  Court was accepted and rule 2(2) of  the  Pension Rules  was  declared  invalid and the  retirement  of  Izhar Hussain  was  set aside. The Union of India has come  up  in appeal by special leave against the judgment of the Division Bench of the High Court-      Central Government servants superannuate at the age  of 58  years. The Government has the absolute right under  Rule 56(j)  of Fundamental Rules to prematurely retire a  servant in  ’Public  Interest’ after he has attained the age  of  55 years. The Government has also the power under Rule 2(2)  of Pension Rules to retire a servant at any time 799 after  he has completed 30 years of qualifying  service.  We may quote these Rules:               "F.R. 56(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.                         Provided that nothing in this clause               shall  apply to a Government servant  referred               to in clause (e) or clause (f)."               "Rule 2(2) An Officer may retire from  service               any time after completing 30 years’ qualifying               service  provided that he shall give  in  this               behalf a notice in writing to the  appropriate               authority at least 3 months before the date on               which he wishes to retire. Government may also               require  an officer to retire, any time  after               he  has completed 30 years qualifying  service               provided that the appropriate authority  shall               give,  in this behalf a notice in  writing  to               the  officer at least three months before  the               date  on  which he is required to  retire,  or               three  months’ pay and allowances in  lieu  of               such notice."     Fundamental Rule 56(j) while granting absolute fight  to the  Government provides that such power can only  be  exer- cised in ’Public Interest’. This guide-line is a  sufficient safeguard  against  the arbitrary exercise of power  by  the Government.  The  object  of this Rule is  to  chop-off  the dead-wood. Rule 2(2) of the Pension Rules on the other  hand provides no guide-line and gives absolute discretion to  the Government. There is no requirement under the rule to act in ’Public Interest’. A person who joins Government service  at the age of 21 years can be retired at the age of 51/52 years as  by  then he must have completed 30 years  of  qualifying service. Although the rules are mutually exclusive and  have been made to operate in different fields but the operational

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effect of the two rules is that a Government servant who has attained  the  age of 55 years can  be  retired  prematurely under  F.R.  56(j) only on the ground of  ’Public  Interest’ whereas  another Government servant who is only 51  and  has completed 30 years of qualifying service, can be retired  at any time at the discretion of the Government under Rule 2(2) of the Pension Rules. The  object  of Rule 2(2) of Pension Rules may  also  be  to weed- 800 out  those  Government  servants who  have  out-lived  their utility  but there is no guide-line provided in the Rule  to this  effect.  The  Rule gives unguided  discretion  to  the Government to retire a Government servant at any time  after he  has completed 30 years of qualifying service  though  he has a right to continue till the age of superannuation which is  58  years. Any Government servant who has  completed  30 years of qualifying service and has not attained the age  of 55 years can be picked-up for premature retirement under the Rule.  Since  no safeguards are provided in  the  Rule,  the discretion  is absolute and is capable of being  used  arbi- trarily and with an un-even hand. We, therefore, agree  with the Division Bench of the High Court and hold that Rule 2(2) of  the Pension Rules is ultra vires Articles 14 and  16  of the Constitution of India.     Mr.  Anil Dev Singh, appearing for the Union  of  India, contended  that the Government of India has issued  instruc- tions  dated  July 11, 1955 and February 8, 1956  which  lay down  that  the retirement under Rule 2(2)  of  the  Pension Rules  should be effected when such retirement is  necessary in public interest. The instructions being supplementary  to the  Rule, according to him, the order of retirement has  to be  in  ’Public Interest’ and as such there is  no  vice  of arbitrariness in the Rule. We do not agree with this conten- tion  of  the learned counsel. A statutory  rule  cannot  be modified or amended by executive instructions. A valid  rule having some lacuna or gap can be supplemented by the  execu- tive  instructions but a statutory rule which  is  constitu- tionally  invalid  cannot be validated with the  support  of executive instructions. The instructions can only supplement and not supplant the rule.     Shri Anil Dev Singh then placed reliance on Ministry  of Home  Affairs Memorandum dated November 30, 1962 and  argued that  the same, having been issued in the name of  President of  India, is statutory and has the effect of amending  Rule 2(2)  of  Pension Rules. According to him  reading  the  two together the power under Rule 2(2) of Pension Rules can only be exercised to weed-out unsuitable employees. The  relevant part of the memorandum is as under:               "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               exception:               6.  Notwithstanding anything contained in  the               foregoing               801               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  Libera-               lised Pension Rules 1950 to retire an  officer               who  has completed 30 years’ qualifying  serv-

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             ice,  and will normally be exercised  to  weed               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 author-               ity.               7. These  provisions  will  have  effect  from               the  Ist December, 1962."     A bare reading of the memorandum shows that there is  an obvious fallacy in the argument of Mr. Singh. The memorandum has not been issued under Article 309 of the Constitution of India and as such cannot be statutory. The memorandum is  in the  nature of executive instructions issued in the name  of President  of India as required under Article 77(1)  of  the Constitution  of India. This was issued in  anticipation  of the  Fundamental  (Sixth Amendment) Rule, 1965  which  inter alia  incorporated Rule 56(j) into Fundamental  Rules.  Even otherwise para 6 of the memorandum could not and did not add anything  to  Rule 2(2) of the Pension Rules. Rule  2(2)  of Pension  Rules  was mentioned to clarify that the  power  to retire  under  para 6 was in addition to the  power  already contained in the Pension Rules. The words "weed-out  unsuit- able  employees"  can only be read qua the power  to  retire under para 6 and not under Rule 2(2) of Pension Rules. There is thus no force in the argument and we reject the same.     Relying on the decision of this Court in Union of  India and others v. R. Narasimhan, A.I.R. 1988 S.C. 1733 Mr.  Anil Der  Singh  contended that para 620 of the  Railway  Pension Manual,  which  is  identical to Rule 2(2)  of  the  Pension Rules,  has been upheld by this Court. In Narasimhan’s  case the  scope of Rule 2046 of the Indian Railway  Establishment Code and para 620 of the Railway Pension Manual was  consid- ered  by  this Court. Rule 2046 is a statutory rule  and  is identical  to  Fundamental Rule 56(j). Para 620  is  in  the nature of executive instructions but is similarly worded  as Rule  2(2) of Pension Rules. A Division Bench of the  Madras High Court came to the conclusion that Rule 2046 having been framed  under  Article 309 of the Constitution and  being  a compendious rule, the railway employees are only gover- 802 ned by the said rule and para 620 was void and  inoperative. This  Court  while setting aside the judgment  of  the  High Court held as under:               "Thus  the areas of operation of Para  620  of               the  Railway Pension Manual is different  from               that of clause (h) and (k) of Rule 2946 of the               Rules. Para 620 of the Railway Pension  Manual               should  be  treated as supplementary  to  Rule               2046  of  the Rules. The said para  which  has               been  framed by the Union Government in  exer-               cise of its executive powers under Article  73               of the Constitution should be given due effect               since  there is no statutory provisions  or  a               rule  framed under the proviso to Article  309               of the Constitution which is inconsistent with               it. "     Narasimhan’s  case has thus no relevancy to the  contro- versy  involved in this case. There was no challenge to  any of the rules or para 620 of the manual on the ground that it gives unguided power to the Railway authorities to pick  and choose  railway  employees  for the  purpose  of  pre-mature retirement. Para 620 of the Manual being executive  instruc- tion  supplementing  the statutory Rule 2046 has  no  parity with Rule 2(2) of Pension Rule which is a statutory rule. In

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any case the point before us in the present case was neither involved  nor  raised in Narasimhan’s case and as  such  Mr. Anil  Dev  Singh  cannot derive any support  from  the  said judgment.     There  is thus no legal or equitable ground to  interfer with  the judgment of the Division Bench of the High  Court. The  appeal  is dismissed with costs which  we  quantify  as Rs.3,000. R.S.S.                                          Appeal  dis- missed. ?803