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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: MOOL CHAND DASUMAL PARDASANI

DATE OF JUDGMENT03/09/1971

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) PALEKAR, D.G.

CITATION:  1971 AIR 2369            1972 SCR  (1) 608  1972 SCC  (3) 271

ACT: Civil   Service--Fundamental   Rule  56(b)  (i)   Pre   1938 ministerial  servant-Memorandum  dated  December  31,  1963- Memorandum  given effect to by government-Denial of  benefit would be infraction of Art. 14-Constitution of India Article 14.

HEADNOTE: Clause  b(i)  of Fundamental Rule 56, as it stood  prior  to November  30,  1962  provided that a  pre  1938  ministerial servant  might be required to retire at the age of 55  years but  should  ordinarily  be  retained  in  service,  if   he continued efficient, upto the age of 60 years.  By  memoran- dum  dated  31st  December, 1963,  the  President  of  India decided  that, subject to the right conferred by  memorandum dated  November  30,  1962 to retire any  officer  on  three months’  notice after he attained the age of 55 years,  pre- 1938  ministerial officers governed by F.R. 56(b)(i) had  to be .continued in service like all other government  servants upto the age of 58 years without an annual order sanctioning their   retention.    The  respondent  was   a   ministerial government  servant  governed by clause  b(i).   He  entered government  service  prior  to April, 1938  and  would  have attained the age of 55 years on March 14, 1964.  On December 18,  1963  the  Collector, Central Excise  passed  an  order retiring  the respondent from service.  The order  gave  the respondent option to retire with effect from March 14,  1964 or to proceed on leave as might be admissible or granted  to him  preparatory  to  retirements  The  respondent  was   on preparatory  leave extending upto 28 months after  March  14 1964 and was paid the salary that was admissible to him  for this  leave  period.  The High Court quashed  the  order  of retirement  and held that the respondent would be deemed  to be  in service until he attained the age of 60  years.   The High  Court further was of the view that the memorandum  was not   in   the  nature  of   executive   or   administrative instruction. Dismissing the appeal, HELD  :  The orders of the High Court  that  the  respondent would be deemed to be- in service until he attained the  age of 60 had to be upheld.

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The   memorandum  was  given  effect  to  in   relation   to ministerial  servants  at all relevant times  subsequent  to December 31, 1963.  The government acted on the  memorandum. The  respondent  would  be entitled to the  benefit  of  the memorandum  as  all other government servants  were  at  the relevant  time.   To deny the respondent  operation  of  the memorandum   will   be  infraction  of  Art.   14   of   the Constitution. [612 F-G] The  respondent was on preparatory leave extending  upto  28 months after March 14, 1964; and he was paid the salary that was  admissible  to  him.   Therefore,  for  28  months   he continued   to  be  a  government  servant.    Taking   into consideration these features it is clear that the respondent was  entitled  to  the  benefit  of  the  increased  age  of retirement  namely 58 years and thereafter upto 60 years  in accordance with the memorandum. [613 A] 609 The  Court did not find it necessary to express any  opinion on the question whether the memorandum was a mere  executive or  administrative  instruction  or  had  the  force  of   a statutory rule. [613 C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2201  of 1970. Appeal from the judgment and decree dated May 2, 3, and June 16, 1969 of the Gujarat High Court in Second Appeal No.  594 of 1968. L. M. Singhvi and S. P. Nayar, for the appellant. The respondent did not appear. The Judgment of the Court was delivered by Ray,  J. This appeal by certificate is against the  judgment dated  2/3 May, 1969 and 16 June, 1969 of the High Court  of Gujarat quashing the order dated 18 December, 1963 passed by the Collector, Central Excise, Baroda and further  ordering, that the respondent will be deemed to have been continued in the  service of the Government until he attained the age  of 60 years. The order impeached by the respondent was as follows :-               "Central    Excise    Collectorate,    Baroda,               Establishment Order No. 286 of 1963.               Shri Mulchand Pardasani, Upper Division Clerk,               Head  Quarter Office, Baroda, who attains  the               age  of  55  years  on  14-3-1964  is   hereby               informed  that the  Collectorate  Departmental               Promotion Committee, 1963, has not  considered               him suitable for further retention in  service               beyond the age of 55 years.  He has the option               to retire with effect from 14-3-1964  forenoon               or  proceed on leave as may be admissible  and               granted to him preparatory to retirement.               Sd/- Illegible               for Collector, 18-12-63" The  respondent filed this suit for a decree that the  order of  retirement  of the respondent passed by  the  Collector, Central  Excise, Baroda and all acts done in the  course  of the said order are illegal and that the respondent continued to  be  in service in the post he was holding on  14  March, 1964 and for other consequential reliefs.  The  respondent’s contention  was that the order was in contravention  of  his right to continue in service until he attained the age of 60 years, that the order cast a stigma on the respondent,  that three  months’  notice  was  required to  be  given  to  the

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Government servant to retire on his attaining the age of 55 5-L3Sup.C.I./72 610 years,  the  order of the Collector was against  the  orders issued under the authority of the President of India raising the age of superannuation to 58 years. The contention of the Government on the other hand was  that prior to 30 November, 1962 Fundamental Rule 56(b) (i) stated the  age  of  compulsory retirement  of  a  pre-April,  1938 ministerial servant to be 55 years.  He might be retained in service after the age of 55 years if he continued efficiency but  it  was  not  a right.  The  other  contention  of  the Government  was  that the orders  regarding  the  respondent raising  the age of superannuation to 58 years  and  further that  three  months’ notice was required ’LO be given  to  a Government servant to retire him on his attaining the age of 55 years were contained in memoranda dated 30 November, 1962 and  31 December, 1963, and the said memoranda did not  have the  force  of  statutory  rule  and  were  mere   executive instructions.   It  was  also contended  that  even  if  the memorandum was held to have the force of the statutory rule, the right of the respondent to continue in service till  the age  of retirement was subject to the absolute right of  the Government  to retire a Government servant on three  months’ notice. There  is no dispute that the respondent was  a  ministerial Government   servant  who  had  entered  into  the   Central Government  service prior to April, 1938 and that  he  would have attained the age of 55 on 14 March, 1964. Fundamental  Rule 56 as it stood prior to 30 November,  1962 in  clause  (b)  thereof dealt  with  ministerial  servants. Clause (b) (i) provided that a pre-1938 ministerial  servant who  was  not governed by sub-clause (ii) thereof  might  be required  to  retire  at the age of 55  years,  ’but  should ordinarily be retained in service, if he continued efficient upto  the  age of 60 years.  After the age of  60  years  he could  not be retained except in very special  circumstances to be recorded in writing and with the sanction of the Local Government.   Fundamental  Rule  5 6  (b)  (ii)  dealt  with ministerial  servants who entered Government service  on  or after 1 April, 1938 or who being in Government service on 31 March,  1938  did not hold a lien or a suspended lien  on  a permanent post on that date and stated that such ministerial servants  would ordinarily be required to retire at the  age of  55 years and must not be retained after that age  except on  public grounds to be recorded in writing, and  with  the sanction of the Local Government.  Such ministerial servants in  clause (b) (ii) would not be retained in  service  after the age of 60 years except in very special Circumstances. The respondent was governed by Fundamental Rule 56(b) (i) as it stood prior to 30 November, 1962 with the result that  he might be required to retire at the age of 55 years and  that he 611 should be ordinarily retained in service upto the age of  60 years, if he continued to be efficient and after the age  of 60  years he could not be retained in service  except  under special circumstances. This Court in Kailash Chandra v. The Union of India (1) con- sidered   Rule   2046  (2)  (a)  of   the   Indian   Railway Establishment Code.  Rule 2046 (2) (a) is totidem verbis  as Fundamental  Rule  5 6 (b) (i).  This Court  held  that  the ministerial servant falling within the said clause might  be compulsorily  retired on attaining the age of 55,  but  when the  servant is between the age of 55 and 60  the  authority

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will  have the option to continue him in service subject  to the  condition that the servant continues to  be  efficient. Therefore,  there would be no right to continue  in  service beyond the age of 55. In   the  present  case  there.  came  into  existence   two memoranda.   The,  first was dated 30 November,  1962.   The second  was  dated 31 December, 1963.   The  December,  1963 memorandum  was  in partial modification of  the  memorandum dated   30  November,  1962.   Under  the   December,   1963 memorandum  it  is  stated that the President  of  India  is pleased to decide that subject to the right of Government to retire  any  officer on three months’ notice  after  he  had attained  the  age  of 55 years,  the  pre-1938  ministerial officers  governed by F.R. 56(b) (i) should be continued  in service  like  all other Government servants  (except  those whose  age  of retirement is 60) upto the age  of  58  years without  an annual order sanctioning their retention.  After the  age  of  58 years and till they attain the  age  of  60 years, however, such an annual order would be necessary.  It was  also  provided in the memorandum that there will  be  a review  in  the  case  of  all  employees  to  assess  their suitability for retention beyond the age of 55 years.  It is not necessary to refer to the other parts of the  memorandum for the purposes of the present appeal. Paragraph  6  of 30 November, 1962 memorandum  which  stated that notwithstanding anything contained there the appointing authority might require to retire a Government servant after he  attained  the age of 55 years on  three  months’  notice without  assigning  any  reason  was  not  modified  by   31 December,  1963 memorandum.  The decision of the  Government to  continue a pre-1938 ministerial servant upto the age  of 58 years without annual order sanctioning the retention  was of  course  on  a  review  to  asesss  the  suitability  for retention  beyond 55.  If the Government wanted to retain  a pre-1938 ministerial servant after the age of 55 as a result of the November, 1962 and December, 1963 memoranda he  would be continued upto the age of 58 years without annual  orders sanctioning  retention  and thereafter upto the  age  of  60 years with annual orders sanctioning retention. (1)  [1962] 1 S.C.R. 374. 612 The respondent contended that on 28 December, 1963 the  date of  the impeached order the respondent had not attained  the age of 55 and he would have attained the age of 55 years  on 14  March,  1964.  That is not disputed.   Therefore,  as  a result  of  the  changes introduced  by  the  memorandum  to Fundamental Rule 56 the respondent who was a pre-April, 1938 ministerial  Government  servant would be  entitled  to  the benefit  of  the  increased  age  of  compulsory  retirement subject  to the right of the Government to review  his  case for  retention  beyond the age of 55 and the  right  of  the Government  to  retire him on three  months’  notice.   This Court  in  I. N. Saksena v. State of  Madhya  Pradesh(1)  in dealing  with the effect of orders issued by the  Government of Madhya Pradesh that the age of compulsory retirement of a ministeriat  Government servant would be raised to 58  years held  that  it was merely an executive direction and  not  a rule.    The   respondent   contended   that   there    were distinguishing features in the memoranda in the present case and  the  memoranda would be considered as a rule.   It  was particularly   emphasised   by  the  respondent   that   the memorandum was under the direction of the President and  the memorandum itself stated that action was being taken to make necessary  amendments  in the Fundamental Rules as  well  as Supplementary  Rules and Civil Service Rules  and  therefore

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the  memorandum amounted to a rule and all that remained  to be  done  was to make formal amendments in  the  Fundamental Rules.   The  High  Court held that the  memorandum  in  the present  case  was  not  in  the  nature  of  executive   or administrative instruction. Counsel  for the Government stated that the  memorandum  was given  effect to in relation to ministerial servants at  all relevant  times  subsequent  to  31  December,  1963.    The Government   acted  on  the  memorandum.   The   ministerial servants  were also treated as governed by  the  memorandum. The  age of superannuation subsequent to 31  December,  1963 became  58  as  a result  of  the  memorandum.   Ministerial servants  continued to be in service upto 58 and  thereafter to  60  in  accordance  with the  tenor  and  terms  of  the memorandum., In this view of the matter to deny the  respon- dent  operation of the memorandum will be an  infraction  of Article  14  of the Constitution.  There is nothing  in  the record  to indicate that the respondent was  not  efficient. On  the  contrary, the order in the present  case  gave  the respondent  an option to retire with effect from  14  March, 1964  when he would have attained the age of 55 years.   The same order gave the respondent option to retire with  effect from  14  March,  1964 or to proceed on leave  as  might  be admissible or granted to him preparatory to retirement.  The stand taken by the Government in the present case in all the Courts  was  that the respondent was  on  preparatory  leave extending upto 28 months after 14 March, 1964.  In fact, the records show that (1) [1967] 2 S.C.R. 496. 613 the  respondent was paid the salary that was  admissible  to him for this leave period for 28 months.  Therefore, for  28 months after 14 March, 1964 he continued to be a  Government servant.   Taking  into consideration these features  it  is clear  that the respondent was thus entitled to the  benefit of  the  increased  age  of retirement  viz.  58  years  and thereafter upto 60 years in accordance with the  memorandum. The  memorandum became a part of the Fundamental Rules as  a result of the Fundamental (Sixth) Amendment Rules, 1965. The  order challenged by the respondent in the present  case is not legal and it cannot be sustained in view of the  fact that the respondent would be entitled to the benefit of  the memorandum  as  all other Government servants  were  at  the relevant time. It  is  not  necessary for us to express  any  view  on  the question  as  to  whether the memorandum  would  be  a  mere executive  and administrative instruction or have the  force of  statutory  rules.  We rest the decision in  the  present case on the consideration that the order complained  against suffers  from  the vice of violation of Article  14  of  the Constitution.   The  order  of  the  High  Court  that   the respondent would be deemed to be in Government service until he attained the age of 60 years on 14 March, 1969 is upheld. For  these reasons, the appeal fails and is dismissed.   The appellant will pay costs to the respondent. K.B.N.                                                Appeal dismissed. 614