I.N.Saksena Vs. State of Madhya
Pradesh [1967] INSC 23 (30 January 1967)
30/01/1967 WANCHOO, K.N.
WANCHOO, K.N.
RAMASWAMI, V.
CITATION: 1967 AIR 1264 1967 SCR (2) 496
CITATOR INFO :
RF 1970 SC1314 (12,13) R 1971 SC2151
(17,18,19) RF 1971 SC2369 (11) R 1976 SC2547 (24) RF 1980 SC1242 (11) R 1984 SC
636 (11) D 1990 SC1368 (20A)
ACT:
Constitution of India, 1950, Arts. 309 and
311-State Government memorandum raising age of retirement of its servants from
55 to 58 years--Provision for earlier compulsory retirement of 'unsuitable'
employees--order of compulsory retirement containing no express words of
stigma--Stigma whether can be inferred from provisions of memorandum--Such
compulsory retirement whether amounts to removal within meaning of Art.
311-Rules in memorandum whether rules under Art. 309.
Madhya Pradesh Judicial Service
(Classification, Recruitment and Conditions of Service) Rules, 1955, r.
7(2)-Rule whether makes All India Services (Death-cum--Retirement Benefits)
Rules, 1958 applicable to District Judges in Madhya Pradesh.
HEADNOTE:
On February 28, 1963 the Government of Madhya
Pradesh issued a memorandum whereby the age of retirement of its employees was
raised from 55 to 58 years. Clause 5 of the memorandum however said that the
appointing authority may require a Government servant to retire after be
attained the age of 55 years on three months' notice without giving any
reasons.
The clause further said that this power was
normally to be used to weed out unsuitable employees. The appellant who was a
District and Sessions Judge in the service of the State Government would
normally have retired at the age of 55 years in August 1963, but under the
above memorandum his services were extended beyond that date. In September 1963
however, Government communicated to him an order that he was to retire on
December 31, 1963. On December 6, 1963, a notification was issued by the State
Government amending rule 56 of the Fundamental Rules applicable to the State of
Madhya Pradesh. By the amended F.R. 56 the age of retirement of Government
servants was raised to 58 years with effect from March 1, 1963. All the
provisions of cl. 5 of the aforesaid memorandum of February 28, 1963 were not
incorporated into the new rule by this amendment. The appellant filed a writ
petition in the High Court challenging the order compulsorily retiring him on
December 31, 1963. It was rejected and the appellant came, with certificate, to
this Court.
The questions that fell for consideration
were : (i) Did the order compulsorily retiring the appellant cast a stigma on
him in view of the language of cl. 5 of the memorandum and if so whether Art.
311 of the Constitution was attracted ? (ii) Was the Memorandum a, rule under
Art. 309 of the Constitution ? (iii) If it was not a rule, would not the
appellant be liable to retire in August 1963? (iv) Were the All India Services
(Death-cum-Retirement Benefits) Rules, 1958 applicable to the appellant by
virtue of r. 7(2) of the Madhya Pradesh Judicial Service (Classification,
Recruitment and Conditions of Service) Rules, 1955 ?
HELD (i) Where there are no express words in
the order of compulsory retirement itself which would throw a stigma on the
Government servant, the Court would not delve into Secretariat files to
discover whether some kind of stigma could be inferred on such research. Since
in the present case there were no words of stigma in the order compulsorily
retir497 ing the appellant, there was no removal requiring action under Art.
311 of the Constitution. [501 E; 502 A] Jagdish Mitter v. Union of India,
A.I.R. 1964 S.C. 449 and State of U.P. v. M, M. 'Nagar [1967] 2 S.C.R. 333,
distinguished.
(ii) The memorandum of February 28, 1963
contained merely executive instructions and was not a rule under Art. 309 of
the Constitution. The only rule which the Government had made on the question
of superannuation was by the notification of December 6, 1963. This rule would
apply to the appellant and it did not empower the Government to retire
Government servants over the age of 55 years on three months' notice without
assigning any reason. As this rule would apply to the appellant from the date
it came into force, the notice which had been served retiring him from December
31, 1963 must fall. [504 B-C] Shyam Lal v. State of U.P. [1955] 1 S.C.R. '26,
distinguished..
(iii) Though ordinarily the power of
Government to extend the services of Government servants, as contemplated by
the then existing F.R 56 is to be exercised in individual case under individual
orders, there is nothing to prevent the Government passing a general order if
it decides that all 'Government servants be retained up to a certain a . The
memorandum of February 28, 1963 amounted to an order of Government under the
then existing F.R. 56, retaining the services of all Government servants up to
the age of 58 years subject to the conditions prescribed in the memorandum till
an appropriate rule as to the, age of superannuation was framed. Therefore
under this memorandum the appellant became entitled to continue in service
beyond the age of 55 years and consequently he did not have to retire in August
1963. [504 F-505 C] (iv) Rule 7(2) of the Madhya Pradesh Judicial Service
Rules, 1955 can only take in rules which applied to officers holding superior
posts in the cadre of the Indian Administrative Service on the date it came
into force in 1956. The Rule does not say that all future amendments to the
rules relating to officers holding superior posts in the cadre of the Indian
Administrative Service would also apply to District Judges. In these
circumstances the respondent could not take advantage of the All India Service
Rules, 1958, particularly of a rule which came into force in 1963.
[505 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 670 of 1965.
Appeal from the judgment and order dated
April 30, 1964 of the Madhya Pradesh High Court in Misc. Petition No. 132 of
1964.
Rameshwar Nath and Mahinder Narain, for the
appellant.
B. Sen, Ai. N. Shroff and I N. Shroff, for
the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal on a certificate granted by the High Court of
Madhya Pradesh and arises in the following circumstances. The appellant was in
the service of the State of Madhya Pradesh as a District and Sessions Judge.
He was born on August 498 22, 1908 and would
in the normal course have retired on completing the age of 55 years in August
1963. But on February 28, 1963, the Government of Madhya Pradesh issued a
memorandum to all the Collectors in the, State. Copy of this memorandum was also
sent to the Registrar, High Court as well as the Finance Department and the
Accountant General. The relevant part of this memorandum is as follows :"The
State Government have decided that the age of compulsory retirement of State
Government's servants should be raised to 58 years subject to the following
exceptions....................
2. . . . . .
3. . . . . .
4. . . . . .
5. 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 reasons................ the power will normally be exercised to
weed out unsuitable employees after they have attained the age of 55 years. A
Government servant may also after attaining the age of 55 years voluntarily
retire after giving three months' notice, to the appointing authority.
6. These orders will have effect from the 1st
March, 1963.
7. Necessary amendments to the State Civil
Service Regulations will be issued in due course." in consequence of this
memorandum, the appellant who, would have otherwise retired in August 1963,
continued in service. On September 11, 1963 the Government sent an order to the
appellant in the following terms "In pursuance of the orders contained in
General Administration Department memorandum No. 433-258-1 (iii)/63, dated the
28th February, 1963, the State Government have decided to retire you with
effect from the afternoon of the 31st December, 1963." This order was
obviously in terms of the fifth paragraph of, the memorandum which said that
"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." 499 On November 29, 1963 a notification was issued by the Finance
Department which was published in the Madhya Pradesh Gazette dated December 6,
1963 in the following terms :"In exercise of the power conferred by the
proviso to Article 309 of the Constitution, the Governor of Madhya Pradesh
hereby directs that the following further amendments shall be made in the
Fundamental Rules applicable to the State of Madhya Pradesh namely "All
Rules in Chapter IX of the said Rules regarding Compulsory Retirement shall be
deleted and the following shall be inserted as a new Rule 56, namely :"F.
R. 56 :-The date of compulsory retirement of a Government servant, other than a
Class IV employee, is the date on which he attains the age of 58 years. Only
Scientific and Technical personnel may be retained in service after the age of
compulsory retirement with the sanction of the? competent authority subject to
their fitness and suitability for work, but they should not ordinarily be
retained beyond the age of 60 years." "The date of retirement of a Class
IV Government servant is the date on which he attains the age of 60 years.
"The rule has come into, effect from 1st
March, 1963." It will be seen that this amendment to the Rules did not
include that part of the fifth paragraph which gave power to the appointing
authority to require a Government servant to retire after he attains the age of
55 years on three months' notice without assigning any reason. Thereafter the
appellant was retired. He then filed a writ petition on March 24, 1964
challenging the order retiring him. His contention was two-fold, namely-(1)
that the rule as it stood after the amendment of November 29, 1963, published
in the Gazette of December 6, 1963, contained no provision reserving power in
Government to retire a Government servant after he attains the age of 55 years
on three months' notice without assigning any reason, and therefore the
appellant could not be retired on December 31, 1963 in the face of the rules,
and (ii) that as the order of his retirement cast a stigma on him it amounted
to his removal, and therefore action under Article 311 of the Constitution was
necessary, and that was admittedly not complied with.
The application was opposed on behalf of the
State Government, and their case was-(i) that the order in question cast no
stigma on the appellant, and therefore no action under Art. 311 2Sup.CI/67-3
500 was necessary, (ii) that the memorandum of February 28, 1963 was in itself
a rule and therefore the appellant was rightly retired in view of paragraph 5
of that memorandum (iii) that if the memorandum was not a rule the -appellant
must be deemed to have retired in August 1963 in view of the old rule which
prescribed 55 years as the age of retirement, for he could not take advantage
of the memorandum, and (iv) that in any case the appellant's case would be
covered by the All India Services (Death-cum-Retirement Benefits) Rules, 1958,
as amended in 1963 and the order retiring him on three months' notice after the
age of 55 years was therefore valid.
The High Court held that the order in
question retiring the appellant cast no stigma on him. It further held that the
memorandum of February 28, 1963 was in itself a rule under Art. 309 and
therefore the appellant was rightly retired under that rule. The High Court
also held that if the memorandum was not a rule, the appellant could not have
continued in service after August 1963 in view of the old rule and could not
therefore get the benefit of the new rule raising the age of retirement to 58
years. In this view the High Court did not consider the question whether the
All India Services (Death-cum-Retirement Benefits) Rules, 1958 would apply in
the present case or not. In the result, the High Court dismissed the petition,
but granted a certificate to the appellant as prayed by him, and that is how
the matter has come before us.
The first point that the appellant has raised
is that the order in question requiring him to retire cast a stigma on him and
therefore it amounted to removing him from service and action under Art. 311
was required. In this connection reliance has been placed on Jagdish Mitter v.
the Union of India.(1) In that case the order was in these terms "Shri
Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found
undesirable to be retained in Government service is hereby served with a
month's notice of discharge with effect from November 1, 1949." It was
held that when the order referred to the fact that Jagdish Mitter was found
undesirable to be retained in Government Service, it expressly cast a stigma on
him, and in that sense must be held to be an order of dismissal and not a mere
order of discharge. This case has been recently followed in the State Of U.P.
v. M. M. Nagar.(2) There also the order in express terms contained words which
cast a stigma on the Government servant who was compulsorily retired and it was
held in those circumstances that the order was in fact an order of removal from
service. This Court (1) A.I.R. 1964. S. C. 449.
(2) [1967] 2 S.C.R. 333.
501 has consistently held that where , the
order directing compulsory retirement expressly contains words which cast a
stigmaon a Government servant, the order is equivalent to an order of removal
and action under Art. 311 is necessary.
But we asked learned counsel for the appellant
to point out any case of this Court where in the absence of any express words
in the order itself casting stigma on a Government servant, this Court has held
that the order of compulsory retirement amounts to removal. Learned counsel was
unable to refer to any such case. But what he argues is that though the order
in question in this case contains no words from which any stigma can be
inferred to have been cast on the appellant, we should look to the memorandum,
which is referred to in the order and then infer that a stigma was cast on the
appellant because the memorandum at the end of paragraph 5 says that the power
to retire will normally be exercised to weed out unsuitable employees after
they attain the age of 55 years. It is urged that we should read those words in
the order retiring the appellant from December 31, 1963.
We are not -prepared to extend the decisions
of this Court on this aspect of the matter in the manner contended for by the
appellant. (Where an order requiring a Government servant to retire
compulsorily contains express words from which a stigma can be inferred, that
order will amount to removal within the meaning of Art. 31 1. But where there
are no express words in the order' itself which would throw any stigma on the
Government servant, we cannot delve into Secretariat files to discover whether
some kind of stigma can be inferred on such research. Besides, Para 5 of the
memorandum is obviously in two parts' The first part lays down that
"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." There is no stigma here. The second part to which the appellant
refers is nothing more than a direction from Government to the appointing
authority that it will not use the above power except to weed out unsuitable
employees after they have attained the age of 55 years. When, therefore, the
order in question refers to the memorandum it really refers to the first part
of paragraph 5 wherein power is given to the appointing authority to retire a
Government servant after he attains the age of 55 years on three months' notice
without assigning any reason. It may be mentioned that the order assigns no
reason.In the circumstances we hold that as the order does not expressly
contain any words from which any stigma can be in-ferred it cannot amount an
order of removal. What the appellant wants us to hold is that the mere fact that
a Government servant is compulsorily retired before he reaches the age of
superannuation is in itself a stigma. But this is against the consistent view
of the Court that if the order of compulsory retirement before the age 502 of
superannuation contains no words of stigma it cannot be held to be a removal
requiring action under Art. 311.
This brings us to the next question, viz.,
whether the memorandum itself amounts to a rule under Art. 309 of the
Constitution as held by the High Court. The High Court seems to have relied in
this connection on the judgment of this Court in Shyam Lai v. the State of
U.P.(1) where a Resolution of November 15, 1919 was held to be a rule by this
Court, though later that Resolution was incorporated in the Civil Service Regulations
in June 1920, It is however clear that facts in that case with respect to the
Resolution of November 15, 1919 were very different. In the first place the.
Resolution was published in the Gazette of India while in the present case the
memorandum which has been treated by the High Court as amounting to rules made
under Art. 309, has never been published in the Gazette. As already indicated,
it is only in the form of a letter to the Collectors with copies to the High
Court, the Finance Department and the Accountant General. Secondly, the
Resolution of November 15, 1919 in terms said that it was announcing certain
new rules relating to retiring pensions of certain officers in the services
specified therein. The present memorandum is not in the form of rules. Further
it is said definitely in paragraph 7 of the memorandum that necessary
amendments to the State Civil Service Regulations would be issued in due
course. It is one thing to issue rules and thereafter incorporate them in the
Civil Service Regulations, it is quite another thing to issue a memorandum of
this nature which is merely a letter from Government to all the Collectors with
the specific direction that necessary amendments to the State Civil Service
Regulations will be issued in due course. It is true that the letter says that
the order will have effect from March 1, 1963, but that does not make the
memorandum of the State Government a rule issued under Art. 309, when it is
said in the memorandum itself that necessary amendments to the State Civil
Service Regulations will be issued in due course. We have already set out the
relevant parts of the memorandum and the very first sentence shows that the
memorandum is merely an executive direction and not a rule, for we cannot
understand how a rule could be in the following words, namely-"The State
Government have decided that the age of compulsory retirement of State
Government's servants should be raised to 58 years." The very form of
these words shows that it is conveying an executive decision of the State
Government to Collectors to be followed by them and is not a rule issued under
Art. 309 of the Constitution. The form in which a rule is issued under Art. 309
is clear from what happened on November 29, 1963 when the amendment was
actually made. We have set out that already, and the contrast in the language
would show that the latter was (1) [1965] 1 S.C.R. 26.
503 a rule while the former was merely an
executive instruction by Government to its Collectors with a copy to the High
Court, the Finance Department and the Accountant General.
It is however urged that when the rule was
framed in November 1963 it stated that it had come into effect from March 1,
1963, and that shows that the memorandum must amount to a rule. It is true that
the rule said so. It is not necessary for us to decide whether a rule of this
kind which was notified on December 6, 1963 could be made retrospectively. If
it could be made retrospectively, the notification of December 6, 1963 itself
would make it retrospective and one need not go to the memorandum for that
purpose. If it could not be made retrospectively, the fact that the
notification of December 6, 1963 said that the rule had come into force from
March 1, 1963 would still not make the memorandum a rule. As we shall show later
the memorandum could be legitimately justified as an executive order of
Government in view of F.R. 56 as it was up to February 28, 1963. We therefore
see no reason to hold that this memorandum of February 28, 1963, which was
never published in the Gazette, which was in the form of a letter addressed to
Collectors with a copy to the High Court, the Finance Department and the
Accountant General and which itself said that necessary amendment to the State
Civil Service Regulations will be issued in due course, was anything more than
a mere executive instruction of Government. If there was any doubt about the
matter, it is in our opinion removed by what happened when the amendment to
F.R. 56 was made and published on December 6, 1963. That amendment has been set
out by us above. It says nothing about what is contained in paragraph 5 of the
memorandum.
If it was the intention of Government that
the first part of para 5 of the memorandum should also form a part of the rule,
we fail to see why that was not inserted as a note, proviso or explanation to
F.R. 56 when it was in terms amended on .November 29, 1963 and the amendment
was published in the Gazette of December 6, 1963. The omission of the first
part of paragraph 5 from the notification is itself an indication that the
memorandum of February 28, 1963 contained mere executive instructions. It may
be that later Government decided not to include the first part of paragraph 5
in the rule and therefore it did not find place in the amendment of November
29. The analogy that the High Court has drawn between the Resolution of
November 15, 1919 which was discussed in Shyamlal's case (1) does not therefore
apply and we are of opinion that the memorandum of February 28, 1963 contained
merely executive instructions.
The rule framed on the basis of these
executive instructions does -not contain the first part of paragraph 5.
Apparently the Government dropped the idea of retiring compulsorily Government
ser(1) [1955] 1 S.C.R. 26.
504 vants after they had attained the age of
55 years on three months' notice; otherwise we do not see why this was not
included in the amendment when it was published on December 6, 1963. We may
note in contrast that the-contents of para 3 of the memorandum were
incorporated in the rule. We therefore hold that the memorandum of February 28,
1963 does not amount to rules under Art. 309; it contains merely executive
instructions, and the only rule which the Government has made on the question
of superannuation is by the notification of December 6, 1963. That rule would
apply to the appellant and it does not empower the Government to retire
Government servants over the age of 55 years on three months' notice without
assigning any reason. As this rule would apply to the appellant from the date,
it came into force, the notice which had been served retiring him from December
31, 1963 must fall in the face of the rule published on December 6, 1963.
Then it is urged that if the memorandum of
February 28, 1963 does not amount to rules under Art. 309, the appellant would
have ,to retire in August 1963 and therefore could not take advantage of the
rule published on December 6, 1963 fixing the age of retirement at 58. We are
of opinion. that there is no force in this contention. Fundamental Rule 56, as
it existed before March 1, 1963, provided 55 years as the age of retirement. It
further provided that a Government servant might be retained in service after
that date with the sanction of the local Government on public grounds which
must be recorded in writing, but he must not be retained after the age of 60
years except in very special circumstances. It is clear therefore that it was
open to Government to extend the date of retirement of a Government servant
under F.R. 56 (a) or 56 (aa), if it so desired. It is true that the extension
contemplated by this rule was generally for individuals and an individual order
is passed in such a case. But we see nothing illegal if the Government came to
the conclusion generally that services of all Government servants should be
retained till the age of 58 in public interest. -In such a case a general order
would be enough and no individual orders need be passed. We are of opinion that
the memorandum of February , 28, 1963 is merely in the nature of such a general
order of extension of service by Government under F.R. 56 as it existed on that
date. It seems that the Government thought it proper in the public interest to
retain all Government servants up to the age of 58 under F.R. 56 and these
executive instructions must be taken to provide such retention till a proper
rule, as envisaged in the memorandum, came to be made. As we have indicated
already, we see nothing in F.R. 56 as it was which would in any way bar the
Government from passing such a general order retaining the services of all
Government servants up to the age of 58, though ordinarily one would expect an
individual order in each individual case under that rule. Even so, if the
Government comes to the conclusion generally that 505 services of all
Government servants should be retained up to the age of 58 years, we cannot see
why the Government cannot pass a general order in anticipation of the relevant
rule being amended raising the age of retirement in the public interest. We
therefore read the executive instructions contained in the memorandum as
amounting to an order of Government retaining the services of all Government
servants up to the age of 58 years subject to the conditions prescribed in the
memorandum till an appropriate rule as to age of superannuation is framed.
Therefore, the appellant would continue in service after he attained the age of
55 years in August 1963. But when actually the rule came to be framed on
November 29, 1963 it dropped the conditions mentioned in the memorandum;
thereafter it is that rule which would apply to him after it was published on
December 6, 1963, and as that rule contained no reservation of any power in
Government to retire a Government servant on three months' notice without
assigning any reason after the age of 55 years, the notice issued to the
appellant must fall.
Lastly, it is urged that the appellant could
be retired under the All India Services (Death-cum-Retirement Benefits) Rules,
1958. It is urged that those rules apply to District Judges in view of the
Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of
Service) Rules, 1955. Rule 7(2) thereof provides that "the Rules and other
provisions relating to pension and gratuity which apply to officers holding
superior posts in the cadre of the Indian Administrative Service shall apply
mutatis mutandis to District Judges also." We are of opinion that this
provision can only take in the rules which applied to officers holding superior
posts in the cadre of the Indian Administrative Service on the date it came
into force in 1956. The rule does not say that all future amendments to the
Rules relating to officers holding superior posts in the cadre of the Indian
Administrative Service shall also apply to District Judges appointed under the
Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of
Service) Rules, 1955. In these circumstances the respondent cannot take
advantage of the All India Services (Death-cum-Retirement Benefits) Rules,
1958, particularly of a rule which came into force in 1963.
Our attention has also been drawn to the
Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to
District Judges. Further in any case the provision with respect to retiring at
the age of 55 years on three months' notice was introduced in those rules in
August September 1964, and the Government could not therefore take advantage of
that rule at the time when the appellant was retired.
We therefore allow the appeal, set aside the
order of the High Court and quash the order of retirement passed in this case.
The appellant will be deemed to have continued in the service 506 of the
Government in spite of that order. As however the appellant attained the age of
58 years, in August 1966, it is not possible now to direct that he should be
put back in service. But he will be entitled to such benefits as may accrue now
to him by virtue of the success% of the writ petition. The appellant will get
his costs from the State 1 throughout.
G.C.
Appeal allowed.
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