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PETITIONER: E. VENKATESWARA RAO NAIDU

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT09/01/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KHANNA, HANS RAJ VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  698            1973 SCR  (3) 216  1973 SCC  (1) 361  CITATOR INFO :  R          1976 SC1841  (9)

ACT: Fundamental  Rules-Age  of retirement-Office  Memorandum  of Home  Ministry  issued  on  Nov. 30,  1962  raising  age  of retirement  from  55  to 58 years  but  reserving  power  in appointing  authority  to  retire a  government  servant  by notice  without  giving  any  reason  at  age  of  55-Office Memorandum  whether  a  rule-Within  meaning  of  Art.   309 Constitution  of  India-Fundamental Rules  amended  in  1965 incorporating  rule in Office Memorandum of  1962  regarding raising of age to 58 years.-Notice of compulsory  retirement at  55 issued under office Memorandum-Received  by  employee after  Promulgation  of amended  Fundamental  Rules-Employee whether  could  take advantage  of  amended  rule-Compulsory retirement  need not purport to be in public  interest  when notice  issued before Promulgation of sub-rule (j)  of  rule 56(a).

HEADNOTE: Rule  56 of the Fundamental Rules originally  provided  that the  age  of compulsory retirement  for  Central  Government Servants other than ministerial servants shall be 55  years. On  November 30, 1962 the Government, of India, Ministry  of Home Affairs issued an Office Memorandum whereby the age  of compulsory  retirement was raised to 58 years.   However  by paragraph 6 of the Memorandum the appointing authority could retire  a Government servant at the age of 55 years  without giving  any reason after three months’ notice.  On July  21, 1965 Fundamental Rule 56 was amended by the Sixth  Amendment so as to incorporate, with, modifications, the provisions of the   aforesaid  Office  Memorandum.   Rule  56(a)  of   the Fundamental  (Sixth  Amendment) Rules 1965  laid  down  that except  as otherwise provided in the Rule, every  Government servant  shall  retire  at the age of  58  years.   Certain, exceptions  were provided to the Rule and that  in  sub-rule (j)  said  that  the appropriate  authority  in  the  public interest  had  the  absolute right to  retire  a  Government servant  at  the age of 55 years after  giving  him  notice. Born  on July 15, 1910 the appellant attained the age of  55 on  the corresponding date in 1965.  OF July 22, 1965  while

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he was holding the post of Assistant Commissioner of Income- tax,  he received a notice dated July 15, 1965  compulsorily retiring him from service with effect from October 21, 1965. He filed a writ petition in the High Court challenging  that notice  but  failed.   By certificate he  appealed  to  this Court. HELD : (i) The proviso to Art. 309 empowers the President to make  rules  regulating  the retirement  and  conditions  of servants  appointed  to  Union  services  and  posts   until provision  in  that  behalf  is made under  an  Act  of  the appropriate legislature.  The rules so made by the President are  effective  subject to the provisions of any  such  Act. Paragraph 2 of the Office Memorandum in terms recites  ’that the  President is pleased to direct that age  of  compulsory retirement  of  Central  Government servants  should  be  58 years;  subject  to certain exceptions paragraph  8  of  the Memorandum merely restates with particularity the true legal position  which obtains under the proviso to  Article  309., Nothing stated in that paragraph is capable of the 217 construction  that  the  Office Memorandum  was  not  to  be effective until Fundamental Rules were consequently amended. In.  fact  by Paragraph 7 the provisions of  the  Memorandum were given express effect from December 1, 1962. [219 FG] (ii) It  is  true the notice of  compulsory  retirement  was served  on  the  appellant  on  July  22,  1965  while   the Fundamental  (Sixth Amendment) Rules came into force  a  day prior  thereto viz. on July 21, 1965.  But the crucial  date is the date on which the notice was issued, namely July  15, 1965  for,  a  right which  is  validly  determined,  cannot without more-, stand revived by a later amendment  enlarging the scope of that right. [220-A B] The  appellant  continued in service beyond the  age  of  55 years  which  he  attained on July 14,  1965  by  reason  of paragraph 2. of the memorandum.  Having obtained the benefit of  that  provision  he could not  repudiate  the  exception thereto, in paragraph 6 of the memorandum. [220 G] Punjab v. Amar Singh Harika, A.I.R. 1966 S.C. 1313,  distin- guished. (iii)     Under  the  Office Memorandum the  Government  was entitled  to  retire  the  appellant  compulsorily   without assigning  any reason.  The concept of public  interest  was introduced by sub-rule (j) of Rule 56(a) of the  Fundamental (Sixth  Amendment)  Rules  1965.   The  appellant’s  service having been validly determined by a notice which was  issued prior to the date when the amended rules came into force  it was  not necessary for the authority to satisfy itself  that it   was  in  public  interest  to  retire   the   appellant compulsorily. [221-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1300 of 1967. Appeal by certificate from the judgment and order dated 19th September 1966 of the Orissa High Court at Cuttack in O.J.c. Appeal No. 272 of 1965. M.   Natesan,  P.  C.  Bhartari,  B.  Parthasarathy,  J.  B. Dadachanji, O. C.  Mathur  and  Ravinder  Narain,  for   the appellant. B. D. Sharma and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. Born on July 15, 1910 appellant attained the age  of 55 on the corresponding date in 1965.  He  hoped  to continue  in the service of the respondent-Union  of  India-

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until attaining the age of 58, but on July 22, 1965 while he was  holding the post of Assistant  Inspecting  Commissioner Income-tax,  Cuttack,  he received a notice dated  July  15, 1965 compulsorily retiring him from service with effect from October 21, 1965.  He filed in the High Court of Orissa writ petition  challenging  that notice but  failed.   The  High, Court, however, granted him leave to appeal to this Court. First, we will notice the provisions on which the  appellant bases his challenge to the order of compulsory retirement. 218 Originally,  Rule  56 of the Fundamental  Rules  read  thus; "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".  On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an Office   Memorandum  under  which  the  age  of   compulsory retirement   of  Central  Government  servants  was   raised from  .55  to  58 years, subject to the  three  exceptions mentioned  is  paragraph  2 thereof.   Paragraph  6  of  the Memorandum provided :               "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               Liberalised  Pension Rules 1950 to  retire  an               officer who has completed 30 years’ qualifying               service 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               authority." The Memorandum was to take effect from December 1, 1962. On  July  21, 1965 Fundamental Rule 56 was  amended  by  the Sixth  Amendment so as to incorporate,  with  modifications, the  provisions  of the aforesaid Office  Memorandum.   Rule 56(a) of the Fundamental (Sixth Amendment) Rule, 1965 says : "Except as otherwise provided in this Rule, every Government servant shall retire on the day he attains the age of  fifty eight years".  A number of exceptions are engrafted as  this rule, relevant amongst them being the one contained in  sub- rule (j).  That exception reads thus :               "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". In  the  High Court the order of compulsory  retirement  was challenged on two grounds, one of them being that the Office Memorandum and the Sixth Amendment to Fundamental Rules were void  as  being  violative of  the  guarantee  contained  in Article 311(2) of the Constitution.  The High Court rejected that  contention  by a common judgment dated  September  19. 1966, 219 governing  the  case of the petitioner and of  one  Batahari Jena. The contention of the letter in this petition was that

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a  Resolution. dated May 21, 1963 and a  notification  dated February  6, 1964 of the Government of Orissa, on the  basis of which he was retired compulsorily were void as  offending Article  .311  (2).   In an appeal filed  by  Batahari  Jena (1971,2  S.C.C. 232) this Court upheld the validity  of  the Resolution  and the notification.  As the Office  Memorandum dated  November 30, 1962 and Rule 56(a) of  the  Fundamental (Sixth  Amendment) Rules, 1965 are in terms similar  to  the resolution and the notification impugned in Batahari  Jena’s case,  learned counsel for the appellant did  not,  rightly, challenge the constitutional validity thereof. The  first of the three points urged before us is  that  the notice retiring the appellant compulsorily is invalid as the Office  Memorandum on the strength of which it  was  issued, did  not have the force of a rule made under Article 309  of the  Constitution.  This contention is based on Paragraph  8 of the Memorandum which provided that "The amendment of  the relevant  rules covering the All.  India Services so  as  to make  these  orders  applicable  to  the  members  of  those services is being undertaken in consultation with the  State Governments".   We see no merit in the contention.   Article 309 provides that subject to the provisions of the Constitu- tion,  Acts of the appropriate Legislature may regulate  the recruitment  and conditions of service of persons  appointed to public services and posts in connection with the  affairs of  the  Union or of any State.  In regard to  services  and posts  in  connection  with the affairs of  the  Union,  the proviso to Article 309 empowers the President to make  rules regulating  the  recruitment  and  conditions  of   servants appointed to such service, and posts until provision in that behalf is made under an Act of the appropriate  Legislature. The rules so made by the President are effective subject  to the  provisions of any such Act.  Paragraph 2 of the  Office Memorandum  in terms recites that "the President is  pleased to  direct that the age of compulsory retirement of  Central Government servants should be 58 years", subject to  certain exceptions.   Paragraph 8 of the Memorandum merely  restates with  particularity  the true legal position  which  obtains under  the proviso to Article 309.  Nothing stated  in  that paragraph  is  capable of the construction that  the  Office Memorandum  was not to be effective until Fundamental  Rules were  consequently  amended.  In fact, by  Paragraph  7  the provisions of the Memorandum were given express effect  from December 1, 1962. It  is then contended that as the appellant was lawfully  in service when the amended Fundamental Rules came into  force. he  would be governed by these rules and so he could not  be asked- 220 to  retire  by  a notice founded on the  provisions  of  the Office  Memorandum.   Now,  it is true that  the  notice  of compulsory  retirement was served on the appellant  on  July 22, 1965 while the Fundamental (Sixth Amendment) Rules  came into  force day prior thereto viz., on July 21,  1965.   But the crucial date is the date on which the notice was  issued viz., July 15, 1965, for a right which is validly determined cannot,  without  more, stand revived by a  later  amendment enlarging  the scope of that right.  Therefore,  the  notice having been valid when it was issued, cannot become  invalid by reason of the fact that the Rule on which it was   founded had undergone an amendment before it was received by     the appellant. In   support   of  the  argument  that  the   amendment   of Fundamental Rules prior to the receipt of the notice by the. appellant  would  render the notice  invalid,  reliance  was

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placed  on  a decision of this Court in State of  Punjab  v. Amar  Singh  Harika(1) in which it was held  that  the  mere passing of an order of dismissal is not effective unless  it is  published  and communicated to  the  officer  concerned. This decision has no bearing because there the question  was not one of the initial validity of the order but of the time from which it would take effect.  An order of dismissal  was passed  on  June 3, 1949 but it was not until May  28;  1951 that  the officer concerned came to know about it.  In  that context it was held that an order of dismissal passed by  an Authority but kept on its file with communicating it to  the officer   concerned  can  only  take  effect  after  it   is communicated  or  is otherwise published.  It  was  observed that  in the interregnums, the authority could  well  change its   mind   and  modify  the  order   and   several   other complications would arise as for example whether the officer lawfully  drew  his salary for the intervening  period.   No such considerations arise in the instant case. Besides,  under  the  unamended  Fundamental  Rule  56,  the appellant  would  have retired on attaining the age  of  55, that  is  .on  July  14,  1965.   He  continued  in  service thereafter,  though for a short period, solely by reason  of the  provision  contained  in  Paragraph  2  of  the  Office Memorandum, by which the age of retirement was raised to 58. Having obtained the benefit of that provision, the appellant cannot   repudiate  the  exception  thereto,  contained   in Paragraph 6 of the Memorandum.  The benefit of an instrument carries  with it the obligation to be subject to the  burden ’which it imposes. Finally,  it  was  contended that the  order  of  compulsory retirement  is bad because it does not purport to have  been issued  in "the public interest".  This  argument  assumes that the amended (1)  A.I.R. 1965 S.C. 1313. 221 Fundamental  Rules  would  govern  the  conditions  of   the appellant’s.  service, which is a wrong assumption to  make’ Under the Office Memorandum, the Government was entitled  to retire  the  appellant compulsorily without as  signing  any reason.  The concept of "public interest" was introduced  by sub-rule  (j)  of  Rule  56(a)  of  the  Fundamental  (Sixth Amendment) Rules, 1965.  The appellant’s service having been validly determined by a notice which was issued prior to the date  when  the  amended rules came into force  it  was  not necessary for the authority to satisfy itself that it was in public interest to retire the appellant compulsorily. The Miscellaneous Petition filed by the appellant contending that  he  should  have  been  heard  before  the  order  of’ compulsory retirement was passed has no substance in view of the decision in Union of India v. Col.  J. N. Sinha and Anr. (1) It was held’ therein that compulsory retirement does not involve civil consequences and therefore it is not necessary to  afford  to a Government servant an opportunity  to  show cause against his compulsory retirement.  For  these  reasons  we  dismiss  the  appeal  but  in  the circumstances there will be no order as to costs. G.C.                    Appeal dismissed, (1) (1971) 1 S.C.R. 791. 222