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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