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PETITIONER: TAKHATRAY SHIVDATRAY MANKAD

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT: 09/04/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. SHAH, J.C. RAMASWAMI, V.

CITATION:  1970 AIR  143            1970 SCR  (1) 244  1969 SCC  (2) 120  CITATOR INFO :  RF         1977 SC1233  (13)  R          1989 SC1843  (4,10,11,12,14)

ACT: Saurashtra Covenanting States Servants (Superannuation  age) Rules  1955-Fixing age of retirement at 55 years unless  for special reasons otherwise directed by Govt.-These words mean that  retirement  age can be extended beyond  55  years-Rule would be invalid if interpreted as giving power to Govt.  to retire  a person earlier than 55 years because it  does  not lay  down  a minimum period of  service-That  interpretation should  be placed which makes Rules valid and  not  invalid- Conditions  were varies to disadvantage when r.  161(c)  (2) (ii) (1) of Bombay Civil Service Rules, 1959 was applied  to person  previously  governed by  Saurashtra  Rule-When  done without  assent  of President this was in  violation  of  s. 115(7) of the States Reorganisation Act, 1956.

HEADNOTE: The appellant originally joined the service of the State  of Junagadh  in 1934 and was after the merger of that State  in Saurashtra  confirmed  in September, 1956  as  an  executive engineer  in the service of the latter State.  Rule 3(i)  of the  Saurashtra Covenanting States Servants  (Superannuation age)  Rules 1955 provided : "A Govt. servant  shall,  unless for special reasons otherwise directed by Govt. retire  from service on his completing 55 years of age." After the merger of  Saurashtra  in  the bilingual State of  Bombay  the  old Bombay  Civil Service Rules were applied to Saurashtra  area with  effect  from  January 7, 1957.  On July  1,  1959  the Bombay Civil Service Rules, 1959 were promulgated.   Accord- ing  to  r. 161 (c) (2) (ii) (1) the age of  retirement  for class 1 Engineers in the State Service was fixed at 55 years but  it was further laid down that they "may be required  by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Engine." On the  formation  of  the State  of  Gujarat  the  appellant’s ’services  were  transferred to that State  but  the  Bombay Rules continued to apply.  Under the Bombay Rule  aforesaid, namely,  r. 161(c)(2)(ii)(1) the Government of the State  of

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Gujarat retired the appellant at the age of about 53  years. The appellant filed a writ petition in the High Court.   The High  Court  took  into  account s.  115(7)  of  the  States Reorganisation Act, 1956 but held that since the  Saurashtra Rule 3(i) also empowered the ’State Government to retire the appellant  at  an  age earlier than 55 years  there  was  no variation of conditions of service to his disadvantage under the  Bombay  Rule  and therefore the  latter  rule  was  not invalid  for  want of Presidential assent.  The  High  Court took  the  view  that the  expression  "unless  for  special reasons otherwise directed by Government" in r.        3 (i) of the Saurashtra Rules meant that the Government could  for special  reasons retire a Government servant before  he  had attained the normal superannuation age of 55 years.  Against the  High Court’s judgment dismissing his writ petition  the appellant came by special leave, to this Court. HELD  : Rule 3(i) of the Saurashtra Rules, if  construed  of interpreted  in the manner in which it had been done by  the High  Court, would bring it into direct conflict  with  Moti Ram  Deka’s  case  as well as other cases  decided  by  this Court.  In Moti Ram Deka’s case it was laid down that if any rule permitted the appropriate authorities to retire compul- sorrily  a  civil servant without imposing a  limitation  in that behalf that such                             245 civil  servant  should  have  put in  a  minimum  period  of service.  that  rule  would be  invalid  and  the  so-called retirement  ordered  under  the said rule  would  amount  to removal  of  the civil servant within the  meaning  of  Art. 311(2) of the- Constitution.  The principle is that the rule relating  to compulsory retirement of a  Government  servant must  not only contain the outside limit  of  superannuation but  there  must also be a provision for a  reasonably  long period  of  qualified service which must be  indicated  with sufficient  clarity.   For  example if 55  years  have  been specified  as the age of superannuation and if it is  sought to  retire the servant even before that period it should  be provided  in the rule that he could be retired after he  has attained the age of 50 years or he has put in service for  a period of 25 years. [248 G-249 G] On  the above principle rule 3 (i) of the  Saurashtra  Rules would have to be declared invalid if the expression  "unless for special reasons otherwise directed by Government" is  so construed as to give a power to order compulsory  retirement even  before  attaining the ’age of 55 years.   A  statutory rule, however, should be so interpreted as to make it  valid and not invalid.  The correct interpretation of Rule 3(i) is that it gives power to the Government to allow a  Government servant to remain in service even beyond the age of 55 years for  special  reasons; so construed the Rule  would  not  be invalid  and  the  appellant could not under  it  have  been retired  before  be had attained the age of  55  years.   By applying  the  Bombay Rule his conditions  of  service  were varied  to  his  disadvantage  because  he  could  then   be compulsorily  retired as soon as he attained the age  of  50 years.   As the previous approval of the Central  Government was not obtained in accordance with the proviso to s. 115(7) of  the  States Reorganisation Act, 1956,  the  Bombay  Rule could not be made applicable to the appellant. [249 G-250 C] The  appellant was thus entitled to remain in service  until he  attained  the  age of 55 years and  the  impugned  order directing  his retirement was invalid and ineffective.  [250 E-F] Bholanath  J. Thaker v. State of Saurashtra,  A.I.R.  (1954) S.C. 680, referred to.

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Moti  Ram  Deka  etc. v.  General  Manager  N.E.F.  Railways Maligaon, Pandu etc. [1964] 5 S.C.R. 683, State of Bombay v. Saubhag chand M. poshi, [1958] S.C.R. 571, P. Balakotaiah v. Union of India, [1958] S.C.R. 1052, Dalip Singh v. State  of Punjab,  [1961] 1 S.C.R. 88 and Gurdev Singh Sidhu v.  State of Punjab & Anr. [1964] 7 S.C.R. 587, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 409 of 1966. Appeal  by special leave from the judgment -and order  dated July  5,  1963, of the Gujarat High Court in  Special  Civil Application No. 827 of 1961. R.   Gopalakrishnan, for the appellant. G.   L.  Sanghi, S. K. Dholakia and R. N. Sachthey, for  the respondent. The Judgment of the Court was delivered by Grover,  Y.  This  is  an appeal by  special  leave  from  a judgment  of  the Gujarat High Court dismissing  a  petition under L83Sup.CI/69-2 246 Art.  226 of the Constitution by which the  order,  retiring the  appellant from service before he had attained the  age, of 55 years, had been challenged. The appellant had joined the service of the erstwhile  State of  Junagadh on August 1, 1934.  That State merged into  the State  of  Saurashtra on January 20,  1949.   The  appellant continued to remain in the service of that State having been confirmed  as an Executive Engineer on September  24,  1956. On  the merger of Saurashtra in the new billingual State  of Bombay  on November 1, 1956, the appellant was  absorbed  in the  service of the said State.  On the bifurcation  of  the State  of  Bombay on May 1, 1960, he was  assigned  to,  the State  of Gujarat and was absorbed as a permanent  Executive Engineer  there.  On October 12, 1961 the State  of  Gujarat made  an order retiring the appellant from the service  with effect  from  January  12, 1962.  On that date  he  had  not attained the age of 55 years but he was about 53 years  old. This, order was made ’in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules, 1959.  The order of retirement was challenged by the appellant by means of  a writ petition which was dismissed. It  is  common  ground that when the appellant  was  in  the ,service  of the erstwhile State of Junagadh his  conditions of :service were governed by the Junagadh State Pension  and Parwashi Rules which had been made by the ruler of the State who  exercised sovereign legislative powers.   According  to those rules the age of superannuation was 60 years.   Before the  inclusion  of  the  Junagadh  State  in  the  State  of Saurashtra  the  Rajpramukh  had  promulgated  an  Ordinance called   the  Saurashtra  State  Regulation  of   Government Ordinance  1948.  By s. 4 of that Ordinance all the laws  in force  in the covenanting States prior to their  integration were  continued  in force in the State of  Saurashtra  until repealed  or  amended under S. 5. Notwithstanding  this  the Saurashtra  Government adopted and applied the Bombay  Civil Service  Rules  which  were then in force in  the  State  of Bombay by an order dated September 23, 1948.  This Court  in Bholanath  ,J.   Thaker v. The State of  Saurashtra(1)  held that  the Rules as regards the age of  superannuation  which prevailed  in the covenanting State which in that  case  was the  State of Wadhwan continued to govern  those  government servants who had come from that State and had been  absorbed in the services of the State of Saurashtra.  In view of that

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-decision  the  State  of  Saurashtra  made  the  Saurashtra Covenanting  State  Servants (Superannuation  age).   Rules, 1955,   hereainafter  called  the  "Saurashtra  Rules",   in exercise  of the power conferred by Art. 309 of the  Consti- tution.  Rule 3(i) provided (1)  A.I.R. 1954 S.C. 680.                             247               "A  Govt.  servant shall, unless  for  special               reasons  otherwise  directed by  Govt.  retire               from  service  on his completing 55  years  of               age." After the integration of the Saurashtra State into the State of Bombay a resolution was passed by the Government on Janu- ary  7, 1957 applying the old Bombay Civil Service Rules  to Saurashtra area.  On July 1, 1959 the Bombay Civil  Service, Rules 1959, hereinafter called the "Bombay Rules" were  pro- mulgated under Art. 309 of the Constitution.  Clause (c)(2) (ii) (1) of Rule 161 is as follows               "Except  as  otherwise provided in  this  Sub-               clause  Government  servants  in  the   Bombay               Service of Engineers, Class 1, must retire  on               reaching  the  age  of 55 years,  and  may  be               required  by  the  Government  to  retire   on               reaching  the  age of 50 years, if  they  have               attained   to  the  rank   of   Superintending               Engineer." It was under this rule that the order retiring the appellant was made. In  the High Court the writ petition filed by the  appellant was  heard and disposed of with two other similar  petitions in  which identical questions had been raised.  A number  of points were -raised in the High Court but it is  unnecessary to refer to them because the questions on which the  present appeal  can  be disposed of are only two : (1)  Whether  the appellant was governed by the Saurashtra Rules or the Bombay Rules  and (2) even if the Saurashtra Rules were  applicable could the retirement of the appellant be ordered before  he, had  attained the age of 55 years.  The High  Court  rightly looked  at  the  provisions  of  s.  115(7)  of  the  States Reorganisation  Act  1956.   It  is  provided  thereby  that nothing  in the section shall be deemed to affect after  the appointed. day the operation of the provisions of Chapter  1 of  Part  XIV  of  the  Constitution  in  relation  to  ’the determination  of  the  conditions  of  service  of  persons serving  in connection with the affairs of the Union or  any State.   The  proviso is important and lays  down  that  the conditions  of  service applicable  immediately  before  the appointed day to the case of any person referred to in  sub- section  (1)  or sub-section (2) (of s. 115)  shall  not  be varied to his disadvantage except with the previous approval in  the Central Government.  The case of the appellant  fell within the proviso and it had, therefore, to be,  determined whether   the  conditions  of  service  applicable  to   the appellant   immediately  before  the  appointed  day   which admittedly  were contained in the Saurashtra Rules had  been varied to his disadvantage, and if so, whether the  approval of  the  Central  Government  had  been  obtained.   It  was conceded before the High Court by the, learned 248 Advocate  General,  who  appeared for  the  State,  that  no previous  approval  of  the  Central  Government  had   been obtained  to vary the conditions of service of those  public servants  who were serving in the State of Saurashtra  until November  1,  1956.   The  High  Court  in  this   situation proceeded  to decide whether by the application of Rule  161

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of  the  Bombay  Rules  the conditions  of  service  of  the appellant contained in the Saurashtra Rules had been  varied to  his  disadvantage.   It  was argued  on  behalf  of  the appellant  that the expression "unless for  special  reasons otherwise  directed  by  Government" in Rule 3  (i)  of  the Saurashtra  Rules  provided  for extension  of  the  age  of superannuation  beyond  55  years  and  not  for   reduction thereof.   The  Advocate General had argued  that  what  was meant by the aforesaid words was that Government could,  for special  reasons, retire a Government servant before he  had attained   the  age  of  55  years  which  was  the   normal superannuation  age.  If that was so Rule 161 (c)  (2)  (ii) (1)  of  the Bombay Rules could not be  regarded  as  having varied the conditions of service contained in the Saurashtra Rules  to the disadvantage of the Government servants.   The High Court was of the view that while framing the Saurashtra Rules  the  draftsmen who must have been well aware  of  the then Bombay Civil Service Rules which were in the same terms as  Rule 161 of the Bombay Rules could not have  framed  the clause  in  such  manner  as  to  introduce  an  element  of discrimination  between  Executive Engineers  who  had  been absorbed  from  a Covenanting State and those who  had  been appointed or recruited directly by the State Government.  In the  opinion  of the High Court even  under  the  Saurashtra Rules  retirement  could  be ordered  before  a  person  had attained the age of 55 years.  It was, therefore, held  that the conditions in Rule 161 (c) (2) (ii) of the Bombay  Rules had   not   been   shown  to   be   less   advantageous   or disadvantageous to the appellant than the conditions in Rule 3  (i)  of the Saurashtra Rules by which the  appellant  was governed until November 1, 1956.  In this manner the proviso to  s. 115(7) of the States ReOrganisation Act 1956 did  not stand in the way of the applicability of the Bombay Rules. We  find  it difficult to concur with the view of  the  High Court.  Rule 3 (i) of the Saurashtra Rules, if construed  or interpreted  in the manner in which it has been done by  the High Court, would bring it into direct conflict with the law laid  down  by this Court in Moti Ram Deka etc.  v.  General Manager, N.E.F. Railways Maligaon, Pandu etc.(1), which is a _judgment of a bench of seven judges of this court.  One  of the  matters which came up for consideration was the  effect of  a  service rule which  permitted  compulsory  retirement without fixing the minimum period of service after which the rule could be invoked.  According to the (1)  [1964] 5 S. C. R. 683.                             249 observations  of  Venkatarama  Ayyar, J., in  The  State  of Bombay v. Saubhagchand M. Doshi(1) the application of such a rule would be tantamount to dismissal or removal under  Art. 311(2)  of  the  Constitution.   There  were  certain  other decisions  of this Court which were relevant on this  point, viz.   P.  Balakotaiah v. The Union of India &  Ors.(2)  and Dalip Singh v. The State of Punjab(3).. All these  decisions were  considered  in Moti Ram Deka’s case(4)  and  the  true legal  position was stated in the majority judgment at  page 726 thus :               "We think that if any Rule permits the  appro-               priate  authority  to  retire  compulsorily  a               civil servant without imposing a limitation in               that  behalf  that such civil  servant  should               have put in a minimum period of service,  that               Rule  would  be  invalid  and  the   so-called               retirement  ordered under the said Rule  would               amount to removal of the civil servant  within               the meaning of Art. 311(2)."

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In  Gurdev Singh Sidhu v. State of Punjab & Anr.(5), it  was pointed out that the only two exceptions to the,  protection afforded  by Art. 311(2) were,-(1) where a permanent  public servant  was  asked  to retire on  the  ground-that  he  had reached  the  age  of superannuation  which  was  reasonably fixed; (2) that he was compulsorily retired under the  Rules which  prescribed  the  normal age  of  superannuation  -and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.  The basis on  which  this  view has proceeded is  that  for  efficient administration  it is necessary that public servants  should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does  ,not lay down a reasonably long period of qualified service is in substance removal under Art. 311(2).  The principle is  that the  rule relating to compulsory retirement of a  Government servant   must  not  only  contain  the  outside  limit   of superannuation  but  there must also be a  provision  for  a reasonably  long period of qualified service which  must  be indicated  with sufficient clarity.  To give an example,  if 55  years have been specified as the age  of  superannuation and  if it is sought to retire the servant even before  that period  it should be provided in the rule that he  could  be retired after he has attained the age of 50 years or he  has put in service for a period of 25 years. Now Rule 3 (i) of the Saurashtra Rules will have to be  dec- lared invalid if the expression "unless for special  reasons other- (1) [1958] S.C.R. 571.                    (2) [1958]  S.C.R. 1052. (3)  [1961]  1 S.C.R. 88.                     (4)  [1964]  5 S.C.R. 683. (5)  [1964] 7 S.C.R. 587. 250 wise  directed by Government" is so construed as to  give  a power  to order compulsory retirement even before  attaining the  age  of  55 years.  It is well-known that a  law  or  a statutory rule should be so interpreted as to make it  valid and not invalid.  If this expression is confined to what was argued before the High Court, namely, that it gives power to the  Government to allow a Government servant to  remain  in service even beyond the age of 55 years for special  reasons the rule will not be rendered invalid and its validity  will not  be put in jeopardy.  So construed it is  apparent  that the appellant could not have been retired compulsorily under the  Saurashtra Rules before he had attained the age  of  55 years.   By  applying  the Bombay  rule  his  conditions  of service  were  varied to his disadvantage because  he  could then be compulsorily retired as soon as he attained the  age of  50  years.   As the previous  approval  of  the  Central Government  was not obtained in accordance with the  proviso to  s.  115(7) of the States Reorganisation  Act  1956,  the Bombay rule could not be made applicable to the appellant. Counsel for the State pressed us to look into certain  docu- ments for the purpose of finding out whether prior  approval of  the  Central Government was obtained in  the  matter  of varying  the  conditions  of service  of  the  appellant  by applying the Bombay rules.  But none of these documents were referred  to before the High Court and in the presence of  a clear  concession by the learned Advocate General we see  no justification for acceding to such a request. In  this view of the matter this appeal must succeed and  it is hereby allowed with costs in this Court.  It is  declared that  the appellant was entitled to remain in service  until he attained the age of 55 years and that the impugned  order

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directing his retirement was invalid and ineffective. G.C. Appeal allowed. 251