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PETITIONER: GOVT OF TAMIL NADU

       Vs.

RESPONDENT: P.A. MANICKAM

DATE OF JUDGMENT:       27/02/1996

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) HANSARIA B.L. (J)

CITATION:  1996 SCALE  (2)759

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R                C.A.Nos. 4159 AND 4158 OF 1996    (Arising out of S.L.P.(C) NOS. 13848/86 & 4958 -/85:)      Special leave granted. C.A.No.4126/85:      Learned counsel  for  the  appellant  states  that  the respondent in  this appeal  has died and he has instructions to  withdraw  this  appeal.  This  appeal  is  dismissed  as withdrawn.      This is  a batch  of appeals arising from judgments and orders of  the High  Court of Madras. The principal judgment of the  High Court was delivered by a full Bench and that is the subject  matter of  C.A.No.352/85. In  the other matters the full Bench judgment was followed.      The respondent in each of these appeals was an employee of the  appellant, State  of Tamil Nadu. He was compulsorily retired from  service in  the public  interest after  he had attained the  age on  the ground  that the provisions of the rule and  the directions  of the State Government applicable to compulsory  retirement had  not been  followed. The  full Bench came to the conclusion that the case of the respondent had  to   be  upheld  and  he  was  related  or  treated  as reinstated, as the case might with consequential benefits.      The rule  in question  is Fundamental Rule 56(d), which reads thus:      "F.R.56(d):         Notwithstanding           anything  contained   in  this           rule,     the      appropriate           authority shall  if it  is  of           the opinion  that it is in the           public interest so to do, have           the absolute  right to  retire           any  Government   Servant   by           giving    months    pay    and           allowances  in  lieu  of  such           notice, after  he has attained

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         the  age  of  fifty  years  or           after he has completed twenty-           five   years   of   qualifying           service.    Any     Government           servant who  has attained  the           age of  fifty years or who has           completed twenty-five years or           qualifying     service     may           likewise retire  from  service           by giving  notice of  not less           than three  months in  writing           to the appropriate authority."      The  State   Government,  by   G.O.Ms.  No.761   Public (Services A) Department dated 19.3.1973, gave directions for the constitution  of review  committees and the procedure to be followed  for scrutiny  in matters relating to compulsory retirement. Clause 4 thereof reads thus:      "The Government  also  direct  that      cases  coming   up  for  retirement      during the  first half  year of any      year shall  be sent  up for  review      before the 1st July of the previous      year. The  case of  persons who are      due for  review in  the second half      of any  year shall  be sent  before      the 1st January of the year."      The High  Court posed  the question: what is the effect of not  referring the matter of his compulsory retirement to the review  committee six months before the employee attains the age  of 50  years or  completes 25  years of service. It held that  there was a duty cast on the heads of departments to consider every one of the cases of employees who were due for review in accordance with the instructions and, "in such circumstances it shall be presumed that if an officer’s name had not  been sent  up to  the review committee the Heads of Departments and the Government considered that there were no grounds for  sending up the proposal to the review committee in respect  of that there were no grounds for sending up the proposal to  the review committee in respect of that officer ..............  ..............We   are,  therefore,  of  the opinion that  if an  officer’s name who is due to attain the age of 50 years or has completed 25 years of service had not been sent  to the review committee it shall be presumed that there was  no ground  for sending his name for consideration for  compulsory   retirement  and   that  it   is  in  those circumstances the  competent authority  had not referred the matter to the review committee."      The High  Court went  on to  say that  "it may  even be presumed that  there was  an assessment in favour of further continuance of  the officer and any review subsequent to the attainment of  50 years  of age  shall be considered to be a second review...................."      On a  plain reading  of the  rule and the instructions, the view  taken by  the High  Court cannot be sustained. The rule  permits   the  appropriate  authority  to  retire  any Government servant after he has attained the age of 50 years or after  he has  completed 25  years of qualifying service. The rule prescribes a starting point, which is the attaining of the  age of  50 years  or the  completion of  25 years of service, but  it does  not prescribe  a terminus ad quem. It is, therefore,  open to  the appropriate authority under the rule to  consider the  case  of  a  Government  servant  for premature retirement  at any  time after  the aforementioned starting points.  The direction  contained in the Government Order aforementioned,  even assuming  that it  is mandatory,

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does not assist the respondents for the only direction is to the heads  of departments  to send  up cases  coming up  for retirement for  review :  those  coming  up  for  retirement during the  first half  of any  year before  1st July of the previous year  and those  due for  retirement in  the second half of  any year  before 1st  January  of  that  year.  The direction is not to carry out and complete the review before such dates.      Learned counsel  for the respondents drew our attention to Explanation-II  of the Fundamental Rule which states that the three  months notice  may be given before the Government servant attains  the age  of  50  years  provided  that  the retirement takes  place after  he has attained that age. The Explanation is  only intended  to enable  the three  months’ notice to  be given  before an officer attains the age of 50 years so  that he may be compulsorily retired immediately he attains that age can assist the respondents.      Learned counsel for the appellant drew our attention to the judgment  of this  Court in  Union of  India &  Ors. vs. Nasirmiya Ahmadmiya Chauhan, 1994 (Suppl.) 2 S.C.C. 537. The case dealt  with a  rule and Government instructions similar to those  aforementioned. This  Court held that a Government servant could  not say  that, though the order of retirement was justified  on the  basis of  the service  record, it was liable to  be quashed  since there  was a  violation of  the Government instructions.  The Government  instructions  were only guidelines laid down by the Government.      Learned counsel  for the  respondent cited the judgment in State  of Uttar  Pradesh vs.  Chandra Mohan Nigam & Ors., 1978 (1)  S.C.R. 521.  The rule  with which  the  Court  was concerned was  similar to the provisions of Fundamental Rule 56 (d),  but the  instructions issued  by the  Government of India in that case stated:      "Six  months   before  an   officer      attains the  age of  25, his record      should be carefully examined by the      State Government, or if the officer      is  serving   under   the   Central      Government    by     the    Central      Government,   and   a   provisional      judgment formed  whether he  should      be retired  on attaining the age of      55 years." This Court  said that the correct position that emerged from the rule  read with the procedural instructions was: "Once a review has  taken place  and no  decision to  retire on that review has  been ordered  by  the  Central  Government,  the officer gets  a lease  in the case of 50 years upto the next barrier at  55 and, if he is again cleared at that point, he is free  and untrammeled  upto 58 which is his usual span of the service career."      It  will   have  been   noticed  that   the  Government instructions in  Nigam’s case  were that  the record  of the officer should be examined before he attained the stated age and it  was therefore  he attained the stated age and it was therefore that this Court held as it did. In the case before us the  instructions are  not that the service record should be examined but that heads of departments should send up the service record  of officers  who  are  about  to  reach  the aforementioned starting points before the stated dates.      In C.A.  No.352/85 this  Court, when it granted special leave, noted  that the  respondent had  attained the  age of superannuation and  it directed that he would be entitled to all the  necessary benefits  flowing from the impugned order and judgment  irrespective of the result of the appeal. That

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direction must stand.      We are  of the  view that, in the other appeals, if the respondents have already been paid amounts in excess of what they should  have received  by reason of this judgment, such excess shall not be recovered.      The appeals  are allowed accordingly. The judgments and orders under  appeal are  set aside  and the  writ petitions filed by  the respondents dismissed. There shall be no order as to costs.