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PETITIONER: BISHUN NARAIN MISHRA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH AND OTHERS

DATE OF JUDGMENT: 07/10/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1965 AIR 1567            1965 SCR  (1) 693  CITATOR INFO :  RF         1970 SC1314  (14,18)  RF         1971 SC1716  (20)  F          1971 SC1997  (9)  R          1973 SC1252  (14)  R          1975 SC1646  (25)  F          1985 SC 551  (29)  D          1986 SC 210  (16,17,26)  F          1989 SC  75  (8)  RF         1991 SC  79  (25)

ACT: Constitution  of  India Arts. 311, 14-Civil  Service-Age  of superannuation-Raised from 55 to 58 years and again  reduced to 55 years-Termination of service as a result of  reduction of   age  of  superannuation  whether  attracts  Art.   311- Notification whether retrospective, discriminatory.

HEADNOTE: By a notification dated November 27, 1957 the Government  of Uttar  Pradesh raised the age of superannuation for  members of  its service from 55 to 58 years.  On May 25, 1961  by  a notification under Art. 309 the Government again reduced the age to 55 years.  By a proviso to the later notification  it was   laid  down  that  those  who  owing  to  the   earlier notification  had continued in employment beyond the age  of 55  years  will be deemed to have been retained  in  service beyond the date of compulsory retirement.  Another order was issued  by  the Government the same day directing  that  all those who were between the age of 55 years and 58 years  and had  been retained in service in the above manner  would  be retired  on December 31, 1961.  The appellant  who  attained the  age of 55 years on December 11, 1960 and was  continued in service when the age of retirement was raised to 58 years was  one  of those who were retired on  December  31,  1961. Aggrieved,  he filed a writ petition before the  High  Court which was dismissed and an appeal to the Division Bench also failed.   Appeal  was  filed before  the  Supreme  Court  by special leave. It was pointed out on behalf of the appellant that :

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(1)  the  change  in  the rule of  retirement  made  by  the notification  of  May 25, 1961, was hit by Art.  311  as  it amounted to removal of public servants from service  without complying with the requirements of Art. 311(2). (2)  the rule in question being retrospective was bad as  no notification could be made retrospectively; and (3)  the rule was hit by Art. 14 inasmuch as it resulted  in inequality   between  public  servants  in  the  matter   of retirement. HELD : (i) There is no provision which takes away the  power of   Government   to   increase  or  reduce   the   age   of superannuation  and therefore as the rule in  question  only dealt  with the age of superannuation and the appellant  had to retire because of the reduction in the age of superannua- tion  it cannot be said that the termination of his  service which thus came about was removal within the meaning of Art. 311. [697 B-E]. Moti  Ram  Deka  v. General Manager,  North  Frontier  Rly., A.I.R. 1964 S.C. 600 referred to. (ii)There  was no retrospectivity in the rule.  All that  it provided  was that from the date it came into force the  age of  retirement  would be 55 years.  The rule  would  operate only  for the period after it came into force.  Nor did  the proviso  make it retrospective.  It only provided as to  bow the period of service beyond 55 years -should be treated  in view of the earlier rule of 1957 which was being changed  by the rule of 1961.  The 694 second  order  issued on the same day  clearly  showed  that there  was  no retrospective operation of the  rule  for  in actual fact no Government servant below 58 years was retired before the date of the new rule i.e. May 25, 1961.  Thus the new rule reducing the age of retirement from 58 years to  55 years could not be held to be retrospective. [698 A-C]. (iii) There was no force in the contention that the new rule was discriminatory inasmuch as different Government servants were  retired on December 31, 1961 at different  ages.   The rule treated alike all those who were between the age of  55 and  58 years.  Those who were retired on December 31,  1961 certainly retired at different ages but that was so  because their  services were retained for different  periods  beyond the  age  of 55.  Government was not obliged to  retain  the services  of  every public servant for the  same  length  of time.  The retention of public servants after the period  of retirement depended upon their efficiency and the exigencies of public service, and in the present case the difference in the  period  of  retention  had arisen  on  account  of  the exigencies of public service. [698 F-H].

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1053  of 1963. Appeal  from the judgment and order dated March 29, 1962  of the Allahabad High Court in Special Appeal No. 249 of 1962. M.   P. Bajpal and K. K. Sinhal for the appellant. C.   B. Agarwala and 0. P. Rana, for the respondents. The Judgment of the Court was delivered by Wanchoo J. This is an appeal on a certificate granted by the High Court of Allahabad and arises in the following  circum- stances.   The appellant was in the service of the State  of Uttar Pradesh as Sub-Registrar.  He was born on December 11, 1905 and was recruited in service in July 1933.  At the time of his recruitment the age of retirement (or superannuation)

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for   government  servants  of  his  class  was  55   years. Therefore,  normally he should have retired on December  11, 1960.   But by a notification dated November 27,  1957,  the Government of Uttar Pradesh (hereinafter referred to as  the Government) raised the age of retirement (or superannuation) to  58  years.   This meant that the  appellant  would  have retired  on  December  11,  1963.   On  May  25,  1961,  the Government again reduced the age of retirement (or  superan- nuation)  to 55 years by a notification of that date  issued under  Art. 309 of the Constitution.  Further a proviso  was added in the rules relating to retirement in these terms               "Provided  that a Government servant  who  had               not  retired oil or before June 17,  1957  but               has subsequently attained the age of 55  years               and  has on May 25, 1961 not attained the  age               of  58  years  shall, for the  period  he  has               continued to serve after attaining the age  of               55               695               years  be  deemed  to have  been  retained  in               service   beyond   the  date   of   compulsory               retirement,  i.e., the age of 55 years  within               the meaning of the Rule aforesaid." Further  as this change in the age of retirement would  have resulted in immediate retirement of all government  servants above  the  age of 55 years with consequent  dislocation  of public service, another order was issued by the Governor  on the  same day directing that any government servant who  had on or before the date of the order already been directed  in pursuance of the proviso set out above to be retained beyond the  age of compulsory retirement (or superannuation)  shall be  so retained in accordance with the Schedule attached  to the order.  This Schedule provided that-               (1)   Government  servants who had on May  25,               1961  crossed the age of .57 years were to  be               retained  .up  to  the  date  on  which   they               attained the age of 58 years or up to December               31, 1961 whichever was earlier;               (2)   Government  servants who had on May  25,               1961  crossed the age of 55 years but had  not               crossed  the  age  of  57  years  were  to  be               retained up to December 31,1961; and               (3)   Government servants, who would cross the               age  of  55  years between May  25,  1961  and               December  30, 1961 were to be retained  up  to               December 31, 1961. The  effect of this order was that all  government  servants who  would have retired because of the change in the age  of retirement  after May 25, 1961 and before December 30,  1961 were  retained  in service up to December  31,  1961  except those who reached the age of 58 years before December  -’II. 1961  in  which case they were to retire at the  age  of  58 years.  In consequence of this order, the appellant who  had crossed the age of 55 rears before May 25, 1961 but had  Pot crossed  the  age of 57 years was retired  on  December  31, 1961,  though if the earlier rule of November 27,  1957  had continued lie would have retired on December 11, 1963. This  reduction  in  the age of retirement  led  to  a  writ petition  by  one  Ram  Autar  Pandey  in  the  High   Court challenging  the  power of Government to reduce the  age  of retirement.  That petition was heard by a Full Bench of  the Allahabad High Court and was dismissed on December 21,  1961 : (see Ram Autar Pandey v. State of U.P.) (1).  The petition out  of  which the present appeal has arisen was  filed   on December 4, 1961 and was

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(1) I.L.R. [1962] 1  793. 696 dismissed  on March 29, 1962 following the decision  in  Ram Autar  Pandey’s case(1).  Thereupon there was an  appeal  to the  Division  Bench which was also dismissed  on  the  same basis.  Then followed an application for leave to appeal  to this Court which was granted; and that is how the matter has come up before us. Three  points have been urged on behalf of the appellant  in support of the appeal.  It is urged that-               (1)   The  change  in the rule  of  retirement               made  by notification of May 25, 1961 was  hit               by Art. 311 of the Constitution as it amounted               to  removal  of public servants  from  service               without  complying  with the  requirements  of               Art. 311(2);               (2)   The rule in question being retrospective               was  bad  as  no notification  could  be  made               retrospectively; and               (3)   The rule was hit by Art. 14 inasmuch  as               it  resulted  in  inequality  between   public               servants in the matter of retirement. The  first  question  that arises is  whether  the  rule  of retirement by which the age of retirement was reduced to  55 years  resulting  -in  the  retirement  of  public  servants earlier  than what was provided by the  previously  existing rule can be said to amount to removal within the meaning  of Art.  311.  Reliance in this connection has been  placed  on Moti Ram Deka v. General Manager, North Frontier Railway(1). That case dealt with a rule in the Railway Code giving power to  the Railway Administration to terminate the services  of all  permanent servants to whom the rule applied  merely  on giving notice for a specified period or on payment of salary in  lieu thereof at any time during the service long  before the  age  of  retirement.   It was  held  therein  that  the termination of a permanent public servant’s tenure which was authorised  by  the rule in -question was nothing  more  nor less than removal from service within Art. 311 and therefore they  were entitled to the protection of Art. 311(2).   That case  in our opinion has no application to the facts of  the present  case,  for  that case did not deal  with  any  rule relating to age of retirement.  Further it was made clear in that very case that a rule as to superannuation (retirement) or  as  to compulsory retirement shortly before the  age  of superannuation resulting in the termination of service of  a public  servant did not amount to removal.  In  the  present case  what has happened is that the Government first  raised the age of retirement from 55 years to 58 years in the  year 1957 and the appellant got the advantage of (1) I.L.R. [1962] All. 793. (2) A.I.R. 1964 S.C. 600. 697 that  inasmuch as he remained in service after December  11, 1960  on  which  date he would  have  otherwise  retired  on completing  the  age of 55 years.  Thereafter in  1961,  the Government  seems to have changed its mind as to the age  of superannuation and reduced it back again to 55 years.   Even so  the  rule dealt with the age of superannuation  and  the termination of service on reaching the age of superannuation was  held by the majority in Moti Ram Deka’s case(1) as  out of the application of Art. 311.  We have not been shown  any provision  which  takes  away the  power  of  government  to increase, or reduce the age of superannuation and  therefore as  the rule in question only dealt with the age  of  super- annuation  and  the appellant had to retire because  of  the

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reduction  in  the age of superannuation it cannot  be  said that  the termination of his service which thus  came  about was removal within the meaning of Art. 311.  The  alteration in  the  circumstances  of  this case  at  least  cannot  be regarded as unreasonable.  The argument that the termination of   service   resulting  from  change.  in   the   age   of superannuation amounts to removal within the meaning of Art. 311 and therefore the necessary procedure for removal should have  been followed is negatived by the very case  on  which the  appellant relies.  We therefore hold that Art. 311  has no  application  to  the  termination  of  service  of   the appellant in the present case. The  next contention on behalf of the appellant is that  the rule is retrospective and that no retrospective rule can  be made.    As   we  read  the  rule  we  do   not   find   any retrospectivity  in it.  All that the rule provides is  that from  the  date it comes into force the  age  of  retirement would be 55 years.  It would therefore apply from that  date to  all government servants, even though they may have  been recruited before May 25, 1961 in the same way as the rule of 1957  which  increased  the age from 55 years  to  58  years applied  to  all government servants even though  they  were recruited  before  1957.  But it is urged that  the  proviso shows  that the rule was applied retrospectively.   We  have already  referred  to  the  proviso  which  lays  down  that government servants who had attained the age of 55 years  on or  before June 17, 1957 and had not attained the age of  58 years on May 25, 1961 would be deemed to have been  retained in  service  after  the date of  superannuation,  namely  55 years.   This proviso in our opinion does not make the  rule retrospective;  it  only provides as to how  the  period  of service  beyond  55 years should be treated in view  of  the earlier rule of 1957 which was being changed by the rule  of 1961.  Further the second order issued on the same day  also clearly shows that there was (1)  A.I.R 1954 S.C. 600. 698 no retrospective operation of the rule for in actual  effect no government servant was retired before the date of the new rule  i.e., May 25, 1961 and all of them were  continued  in service  up to December 31, 1961 except those who  completed the  age of 58 years between May 25, 1961 and  December  31, 1961  and  were therefore to retire on reaching the  age  of superannuation   according-  to  the  old  rule.   We   are, therefore, of opinion that the new rule reducing the, age of retirement  from 58 years to 55 years cannot be said  to  be retrospective.   The proviso to the new rule and the  second notification  are  only methods to tide over  the  difficult situation which would arise in the public service if the new rule  was  applied at once and also to  meet  any  financial objection  arising out of the enforcement of the  new  rule. The new rule therefore, cannot be struck down on the  ground that it is retrospective in operation. The  last argument that has been urged is that the new  rule is  discriminatory  as  different public  servants  have  in effect  been retired at different ages.  We see no force  in this contention either, retirement namely December 31,  1961 in  the  case of all public servants and fixes  the  age  of retirement  at 55 years.  There is no discrimination in  the rule   itself.   It  is  however  urged  that   the   second notification  by which all public servants above the age  of 55 years were required to retire on December 31, 1961 except those few who completed the age of 58 years between May  25, 1961,  and  December  31, 1961  shows  that  various  public servants were retired at various ages ranging from 55  years

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and one day to up to 58 years.  That certainly is the effect of  the second order.  But it is remarkable that  the  order also  fixed the same date of retirement namely December  31, 1961  in the case of all public servants who  had  completed the  age  of  55 years but not the age of  58  years  before December  31, 1961.  In this respect also, therefore,  there was  no  discrimination  and all  public  servants  who  had completed the age of 55 years which was being introduced  as the  age  of  superannuation  by the  new  rule  by  way  of reduction  were ordered to retire on the same  date,  namely December 31, 1961.  The result of this seems to be that  the affected  public  servants retired at different  ages.   But this  was  not because they retired at  different  ages  but because  their services were retained for different  periods after the age of fifty-five.  Now it cannot be urged that if Government  decides  to retain the services of  some  public servants  after the age of retirement it must  retain  every public  servant for the same length of time.  The  retention of  public servants after the period of  retirement  depends upon their efficiency and the 699 exigencies  of Public service  and in the present  case  the difference    n  has  arisen on  account  of  exigencies  of exigence of public service. we are therefore of opinion that the second  notification of may 25,1961 on which reliance is placed to prove discrimination is really not  discriminatory for  it  has  treated all public servants  alike  and  fixed December  31, 1961 as the date of retirement  for-those  who had  completed 55 years but not 58 years up to December  31, 1961.  The challenge therefore, to the, two notifications on the basis of Art. 14 must fail. We  therefore, dismiss the appeal but in  the  circumstances pass no order as to costs. Appeal dismissed. 700