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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: R. NARASIMHAN

DATE OF JUDGMENT01/08/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) DUTT, M.M. (J)

CITATION:  1988 AIR 1733            1988 SCR  Supl. (1) 741  1988 SCC  Supl.  636     JT 1988 (3)   304  1988 SCALE  (2)311  CITATOR INFO :  D          1989 SC2262  (9,10)  RF         1990 SC 450  (4)

ACT:      Civil Services: Indian Railway Establishment Code, Rule 2046(h) and  (k)/Railway  Pension  Manual,  1950  Para  620- Railway Servant-Compulsory  retirement of  under  para  620- Validity of.      Constitution of  India, Articles 73 & 309: Rule made in exercise of  executive power  under Art. 73-Not inconsistent with statutory  provision or  rule framed  under proviso  to Art. 309-Held-Should be treated as supplementary to.

HEADNOTE:      Sub-para (ii) of para 620 of the Railway Pension Manual empowers the competent authority to remove a railway servant from service  any time  after he  has completed  30 years of qualifying service. Clause (h) of Rule 2046 (F.R. 56) of the Indian Railway  Establishment Code  empowers the  appointing authority to retire in Public interest (i) Class I and Class II railway  servant,  who  had  entered  Government  Service before the age of 35 years, after he has attained the age of fifty years,  and (ii)  in  any  other  case  after  he  has attained the  age of  55 years.  Clause (k) of the said rule confers absolute right on the appointing authority to retire a railway  servant in Class III service, who is not governed by the Pension Rules, after he has completed thirty years of service.      The respondent,  Class  III  servant,  who  had  joined service in 1950 was compulsorily retired from service by the competent  authority   in  the   Railway  Administration  in exercise of powers under para 620 of the Manual on 14th May, 1982. He  was born  on 23.9.1929  and  was  to  continue  in service till  he completed  58 years  of service.  The  writ petition filed  by him  questioning the validity of the said order and  also of  para 620  of the Manual was dismissed by the Single Judge.      In appeal  before the  Division Bench  it was contended for him  that (i)  Rule 2406 of the Rules having been framed under the  proviso to  Article 309  of the  Constitution and being  a   compendious  code   with  regard   to  compulsory

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retirement that  provision alone  could be  invoked and  not para 620  of the  Manual  which  is  in  the  nature  of  an executive 742 order, (ii)  since rule  2046(h) opens  with a  non-obstante clause and  para 620  of the  Manual does not state that the said rule  shall prevail  notwithsanding any other provision to the  contrary, rule  2046(h) of  the Rules cannot be made subject to para 620 of the Manual, and (iii) there being two separate provisions  with regard  to compulsory  retirement, namely clause  (h) of rule 2046 of the Rules and para 620 of the Manual,  in the  absence of  any guidance as to when and which rule  could be  invoked in  a  given  case,  both  the provisions  would  be  inapplicable  and  he  could  not  be compulsorily retired.  The High  Court held that para 620 of the Railway Pension Manual was void and ineffective. It took the view  that since  rule 2046(h)  of  the  Rules  was  not applicable, as the respondent had not attained the age of 55 years on  the date he was compulsorily retired, he could not have been compulsorily retired.      Allowing the  appeal by special leave and remanding the case to the High Court, ^      HELD: 1.1  Para 620  of the  Railway Pension  Manual is valid. The  High Court  was not  right in taking the view it did. [749A]      1.2 There  is no inconsistency between rule 2046 of the Rules and para 620 of the Railway Pension Manual. Clause (h) of rule  2046 of  the Rules empowers the competent authority to retire  compulsorily a  railway servant  on his attaining the age  specified therein.  That clause has no reference to the length of service put in by a railway servant concerned. Clause (k)  of the  said rule  under  which  the  appointing authority can retire a person in the public interest after a railway servant has completed 30 years of service applies to a railway  servant holding  a Class  III post and who is not governed by pension rules. Para 620 of the Manual applies to all railway  servants governed by the pension rules. Railway servants holding  Class I  or Class  II posts  who cannot be retired under  clause (k)  of rule  2046 of the Rules can be retired on  their completing  30 years of qualifying service if they  are  governed  by  the  pension  rules.  Similarly, railway  servants  holding  Class  III  posts  and  who  are governed by  the pension  rules to  whom clause  (k) of rule 2046 of  the Rules  is not applicable can also be retired on their completing  30 years  of qualifying service. Thus, the area of  operation of para 620 of the Railway Pension Manual is different  from that  of clauses (h) and (k) of rule 2046 of the Rules. [748D-G]      1.3 Para  620 of  the Railway  Pension Manual which has been framed  by the  Union Government  in  exercise  of  its executive power under Article 73 of the Constitution should, therefore, be treated as supple- 743 mentary to  rule 2046  of the  Rules, and  given due  effect since there is no statutory provision or a rule framed under the proviso  to Article  309 of  the Constitution  which  is inconsistent with it. [748G-H]      2.  Since   the  respondent   had  raised   some  other contentions with  regard to  the validity  of  the  impugned order of  retirement in  the petition and the High Court has not expressed  its opinion on those contentions, the case is remanded to  the Division Bench of the High Court to dispose of the  appeal afresh  in the light of the submissions to be made by  the respondent  on the  other contentions raised by

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him. [749C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1583 of 1987.      From the  Judgment and  Order dated  22.4.1987  of  the Madras High Court in W.A. No. 367 of 1983.      G.  Ramaswamy,   Additional   Solicitor   General,   P. Parmeshwaran, B. Parthasarthy for the Appellants.      M.N.  Krishnamani   and   S.   Balakrishnan   for   the Respondents.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The short  question involved in this case is  whether Para  620 of  the Manual of Railway Pension Rules,  1950,  (hereinafter  referred  to  as  the  ’Railway Pension Manual’)  under which  the  competent  authority  is empowered to  retire a  railway employee  before his  normal date of  retirement is  for any  reason void, ineffective or unconstitutional.      The respondent,  R.  Narasimhan,  joined  the  Southern Railway as  a Ticket Collector in the year 1950 and on being promoted at  different stages he was working as a Travelling Ticket  Examiner   on  14th   of  May,   1982  when  he  was compulsorily retired from service by the competent authority in the  Railway Administration  in exercise  of  his  powers under Para  2(2) of  the  Railway  Ministry’s  Letter  dated 8.7.1950 (incorporated  as Para  620 of  the Railway Pension Manual). The  respondent was  born on  23.9.1929 and  if the order of retirement had not been passed, as stated above, he would have  continued in  service till he completed 58 years of age. Aggrieved by the order of retirement, the respondent filed a  Writ Petition  in the  High Court of Madras in Writ Petition No.  4079 of  1982 questioning  the validity of the said 744 order and  also of  Para 620  of the  Railway Pension Manual which empowered  the Railway  Administration to  retire  its employees on  their completing 30 years of service. The Writ Petition was  contested by  the Railway  Administration  and ultimately it  was dismissed  by the learned Single Judge of the High  Court of  Madras. Aggrieved by the judgment of the learned Single  Judge the  respondent filed an appeal before the Division  Bench of the High Court in Writ Appeal No. 367 of 1983.  The Division  Bench held  that  Para  620  of  the Railway Pension  Manual whose  validity had been impugned in the Writ Appeal was void and ineffective and hence the order of  retirement  passed  by  the  Railway  Administration  in exercise of  the power conferred by the said para was liable to be  set aside.  Aggrieved by the judgment of the Division Bench, the  Union of  India and  the Railway  Administration have filed this appeal by special leave.      In order  to appreciate the contentions of the parties, it is  necessary to set out the relevant rules governing the retirement of  railway employees.  Rule 2046  of the  Indian Railway Establishment  Code (hereinafter referred to as ’the Rules’)  deals   with  compulsory   retirement  of   railway servants. The relevant part of the said rule reads thus:           "2046 (F.R.  56).-(a) Except as otherwise provided           in this  rule, every  railway servant shall retire           on the  day he  attains  the  age  of  fifty-eight           years.           .............................................                (h)  Notwithstanding  anything  contained  in

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         this rule,  the appointing  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  railway servant  giving him  notice of           not less  than three  months in  writing or  three           months’ pay and allowances in lieu of such notice-           (i)  if he  is in  Class I  or Class II service or                post  and   had  entered  Government  Service                before  attaining   the  age  of  thirty-five                years, after he has attained the age of fifty                years.           (ii) in any  other case  after he has attained the                age of fifty-five years.           (i)  Any railway  servant may  by giving notice of           not 745           less  than   three  months   in  writing   to  the           appointing authority  retire from service after he           has attained  the age  of fifty  years if he is in           Class I  or Class  II  service  or  post  and  had           entered Government  service before  attaining  the           age of  thirty-five years,  and in all other cases           after he has attained the age of fifty-five years.           .............................................                (k)  Notwithstanding  anything  contained  in           clause (h)  the appointing  authority shall, if it           is of  the  opinion  that  it  is  in  the  public           interest to  do so,  have the  absolute  right  to           retire a  railway servant  in Class III service or           post who  is not  governed by  any  pension  rules           after he  has completed  thirty years’  service by           giving him notice of not less than three months in           writing or  three months’  pay and  allowances  in           lieu of such notice."      Para 620 of the Railway Pension Manual reads thus:           "620(i). A Railway servant may retire from service           at 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 three  months before the date           on which he wishes to retire.           .............................................                (ii) The  authority competent  to remove  the           Railway servant  from service may also require him           to retire  any time  after  he  has  completed  30           years’  qualifying   service  provided   that  the           authority shall  give in  this behalf, a notice in           writing to  the Railway  servant, 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."      There is  no dispute that the respondent is governed by the pension  rules as  he has  exercised his  option  to  be governed by  them. His contentions before the Division Bench were: (i)  Rule 2046  of the  Rules having been framed under the proviso  to Article  309 of the Constitution and being a compendious code  relating to a retired railway servant that provision  alone   could  be  invoked  for  the  purpose  of compulsory retirement  and  not  para  620  of  the  Railway Pension Manual which is in 746 the nature of an executive order; (ii) Since rule 2046(h) of the Rules  opens with  a non obstante clause and para 620 of the Railway Pension Manual does not state that the said rule shall prevail  notwithstanding any  other provision  to  the

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contrary, rule  2046(h) of  the Rules cannot be made subject to para  620 of  the Railway Pension Manual; and (iii) there being two  separate provisions  with  regard  to  compulsory retirement, namely  clause (h) of rule 2046 of the Rules and para 620  of the  Railway Pension  Manual, in the absence of any guidance as to when and which rule could be invoked in a given case,  both the  provisions would  be inapplicable and the respondent  could not be compulsorily retired. A reading of the  relevant part of rule 2046 of the Rules and para 620 of the  Railway Pension  Manual shows  that ordinarily every railway servant has to retire on the date he attains the age of 58  years. Notwithstanding  the said  rule the appointing authority, if  it is of the opinion that it is in the public interest to  do so,  has the  power to  retire  any  railway servant giving  him notice  of not less than three months in writing or  three months’ pay and allowances in lieu of such notice, if  he is in Class I or Class II service or post and had entered  Government service  before attaining the age of 35 years,  after he  has attained the age of 50 years and in any other  case after  he has  attained the age of 55 years. Similarly a railway servant may by giving notice of not less than three  months in  writing to  the appointing  authority retire from  service if he is in Class I or Class II service or post  and had entered Government service before attaining the age  of 35 years, after he has attained the age of fifty years, and  in all other cases after he has attained the age of 55 years. These two kinds of retirement are dealt with in clauses (h) and (i) of rule 2046 of the Rules. The governing factor in clauses (h) and (i) of rule 2046 is the age of the employee concerned at the time when it is proposed to retire him from  service or  when he  wishes to retire from service voluntarily as  the case  may be. This rule applies no doubt to all  employees irrespective  of the fact whether they are governed by  the pension  rules or  not. Clause  (k) of rule 2046 provides  that notwithstanding  anything  contained  in clause (h)  the appointing  authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right  to retire  a railway  servant in  Class  III service or  post who  is not  governed by  any pension rules after he  has completed  thirty years’ service by giving him notice of  not less  than three  months in  writing or three months’ pay  and allowances  in lieu  of such notice. Clause (1) of  rule 2046  of the  Rules  provides  that  a  railway servant in  Class III service or post who is not governed by any pension  rules, may  by giving  notice of  not less than three months  in writing to the appointing authority, retire from service  after he  has completed thirty years’ service. It may be noted that in clauses (k) and 747 (1) of  rule 2046  of the  Rules the governing factor is not the age  of the  railway servant concerned but the length of the qualifying  service rendered by him. They are applicable only to  a railway  servant in  Class III  service  who  has completed 30  years of service in railway administration. If a railway  servant in  Class III  service  has  entered  the service during  his 21st  year he  can  be  retired  by  the Government on his completing 30 years of service in his 51st year or he may elect to retire from service in his 51st year after completing  30  years  of  service  by  following  the prescribed formalities. Clauses (k) and (I) of rule 2046, as already stated  above, do  not apply to railway servants who are governed  by pension  rules. Para  620  of  the  Railway Pension  Manual,   which  is   extracted   above,   contains provisions corresponding to clauses (k) and (I) of rule 2046 of the  Rules. Under  sub-para (i)  of para  620  a  railway

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servant governed  by  the  pension  rules  may  retire  from service at  any time after completing 30 years of qualifying service provided  that he  has given  a notice in writing to the appointing  authority three  months before  the date  on which he  wishes to retire. Sub-para (ii) of para 620 of the Railway Pension  Manual, which  corresponds to clause (k) of rule 2046  of the Rules, empowers the competent authority to remove a  railway servant from service any time after he has completed 30  years of  qualifying service provided that the authority has  given in  this behalf  a notice in writing to the railway servant 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. It may also be noted that while clauses  (k) and  (1) of  rule 2046 of the Rules apply only to  a railway  servant in Class III service or post not governed by  any pension  rules  para  620  of  the  Railway Pension Manual  applies to  all railway servants governed by the pension rules.      The Division Bench of the High Court has held that para 620 of  the  Railway  Pension  Manual  was  ineffective  and invalid on  the ground  that it was ‘unable to see any logic or reason or any guidance for the purpose of invoking either one or  other  of  the  provisions’  and  also  has  further observed thus:                "In the circumstances therefore, particularly           in view of the fact that the Railway Establishment           Code is  intended to govern the service conditions           of all  the individual  railway servants  and  the           Pension Rules  are intended  only  to  govern  the           determination of  pension, and Rule 2046 itself is           in  a   way  of   compendious  rule   relating  to           retirement at  the age  of 58 years and compulsory           retirement earlier  we are  of the  view that  the           case is governed by Rule 2046(h) only and not 748           by Rule 620 of the Pension Rules. This is also for           the  reason  as  rightly  contended  by  Mr.  N.C.           Raghavachari, learned  counsel for  the appellant,           that while  Rule 2046(k)  starts with  saying that           notwithstanding anything  contained in  Clause (h)           there is  no such non obstante clause in Rule 620,           nor clause  (h) of  Rule 2046  is made  subject to           Rule 620.  In the  circumstances, therefore, it is           open to  the railway servant to contend that he is           governed by  Rule 2046(h) and not Rule 620. In the           absence of  any guiding principle specifically, it           is not  open to  the  Department  to  exercise  an           option either  to invoke Rule 620 or clause (h) of           Rule 2046."      Having observed  thus, the  Division Bench  was of  the view  that   since  Rule   2046(h)  of  the  Rules  was  not applicable, as the respondent had not attained the age of 55 years on the date when he was compulsorily retired, he could not have  been compulsorily  retired. We  do  not  find  any inconsistency between rule 2046 of the Rules and para 620 of the Railway  Pension Manual.  As already stated by us clause (h) of  rule  2046  of  the  Rules  empowers  the  competent authority to  retire compulsorily  a railway  servant on his attaining the  age specified  therein. That  clause  has  no reference to  the length  of service  put in  by  a  railway servant concerned.  Clause (k)  of rule  2046 of  the  Rules under which  the appointing authority can retire a person in the public interest after a railway servant has completed 30 years of  service applies  to a  railway servant  holding  a Class III  post and  who is  not governed  by pension rules.

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Para 620  of the  Railway  Pension  Manual  applies  to  all railway servants  governed by  the  pension  rules.  Railway servants holding  Class I  or Class  II posts  who cannot be retired under  clause (k)  of rule  2046 of the Rules can be retired on  their completing  30 years of qualifying service if they are governed by the pension rules. Similarly railway servants holding Class III posts and who are governed by the pension rules  to whom  clause (k) of rule 2046 of the Rules is not applicable can also be retired on their completing 30 years of  qualifying service.  Thus the area of operation of para 620  of the  Railway Pension  Manual is  different from that of  clause (h)  and (k) of rule 2046 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 exercise of its executive power  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. 749      We, therefore,  overrule  the  view  expressed  by  the Division Bench  of the  High Court on the above question and uphold the  validity of  para 620  of  the  Railway  Pension Manual.      Unfortunately, the  case does  not end here. It appears that the  respondent had  raised some other contentions with regard to  the validity  of the impugned order of retirement in the  petition. But  the Division  Bench of the High Court has not  expressed its opinion on those contentions since it agreed with  the first  contention urged  on behalf  of  the respondent, namely,  para 620  of the Railway Pension Manual was invalid. We are, therefore, constrained to send the case back to  the Division  Bench of the High Court to decide the other questions raised by the respondent. We, therefore, set aside the  judgment passed by the Division Bench of the High Court and  remand the case to the Division Bench of the High Court to  dispose of  the appeal  afresh in the light of the submissions to  be made  by  the  respondent  on  the  other contentions raised by him.      The appeal  is accordingly  disposed of.  There  is  no order as to costs. P.S.S.                                 Appeal allowed. 750