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E. Venkateswara Rao Naidu Vs. Union of India [1973] INSC 2 (9 January 1973)

CHANDRACHUD, Y.V.

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 he was holding the post of Assistant Commissioner of Incometax, 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, distinguished.

(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]

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 Indiauntil 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 subrule (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 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 Constitution, 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 asked220 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 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 un amended 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.

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