ivil Appeal No 1361 of 1974
From the Judgment and Order dated 21111973 of the Allahabad High Court in Special Appeal No 60 of 1972
Anil Dev Singh CVS Rao and Tara Chand Sharma for the Appellants
RD Upadhyay for the Respondent
The Judgment of the Court was delivered by KULDIP SINGH J
The short question for consideration before us is whether Rule 22 of the Liberalised Pension Rules 1950 hereinafter called Pension Rules  which permits the Central Government to retire a Government serv ant at any time after he has completed 30 years of qualify ing service by giving him three months  notice or pay in lieu of such notice confers unguided powers in the Govern ment and as such is ultra vires Articles 14 and 16 of the Constitution of India
Izhar Hussain joined the Post and Telegraph Department as a clerk on June 4 1935
The Director Postal Services by an Order dated April 21 1970 retired him from service under Rule 22 of the Pension Rules
Izhar Hussain chal lenged the order of retirement by way of a writ petition before the Allahabad High Court
The learned single Judge dismissed the writ petition holding that there was no in firmity in Rule 22 of the Pension Rules
The Special Appeal filed by Izhar Hussain before the Division Bench of the High Court was accepted and rule 22 of the Pension Rules was declared invalid and the retirement of Izhar Hussain was set aside
The Union of India has come up in appeal by special leave against the judgment of the Division Bench of the High Court Central Government servants superannuate at the age of 58 years
The Government has the absolute right under Rule 56j of Fundamental Rules to prematurely retire a servant in Public Interest  after he has attained the age of 55 years
The Government has also the power under Rule 22 of Pension Rules to retire a servant at any time 799 after he has completed 30 years of qualifying service
We may quote these Rules FR 56j 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
Provided that nothing in this clause shall apply to a Government servant referred to in clause e or clause f Rule 22 An Officer may retire from service 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 3 months before the date on which he wishes to retire
Government may also require an officer to retire any time after he has completed 30 years qualifying service provided that the appropriate authority shall give in this behalf a notice in writing to the officer 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 Fundamental Rule 56j while granting absolute fight to the Government provides that such power can only be exer cised in Public Interest 
This guide line is a sufficient safeguard against the arbitrary exercise of power by the Government
The object of this Rule is to chop off the dead wood
Rule 22 of the Pension Rules on the other hand provides no guide line and gives absolute discretion to the Government
There is no requirement under the rule to act in Public Interest 
A person who joins Government service at the age of 21 years can be retired at the age of 5152 years as by then he must have completed 30 years of qualifying service
Although the rules are mutually exclusive and have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 years can be retired prematurely under FR 56j only on the ground of Public Interest  whereas another Government servant who is only 51 and has completed 30 years of qualifying service can be retired at any time at the discretion of the Government under Rule 22 of the Pension Rules
The object of Rule 22 of Pension Rules may also be to weed 800 out those Government servants who have out lived their utility but there is no guide line provided in the Rule to this effect
The Rule gives unguided discretion to the Government to retire a Government servant at any time after he has completed 30 years of qualifying service though he has a right to continue till the age of superannuation which is 58 years
Any Government servant who has completed 30 years of qualifying service and has not attained the age of 55 years can be picked up for premature retirement under the Rule
Since no safeguards are provided in the Rule the discretion is absolute and is capable of being used arbi trarily and with an un even hand
We therefore agree with the Division Bench of the High Court and hold that Rule 22 of the Pension Rules is ultra vires Articles 14 and 16 of the Constitution of India
Mr Anil Dev Singh appearing for the Union of India contended that the Government of India has issued instruc tions dated July 11 1955 and February 8 1956 which lay down that the retirement under Rule 22 of the Pension Rules should be effected when such retirement is necessary in public interest
The instructions being supplementary to the Rule according to him the order of retirement has to be in Public Interest  and as such there is no vice of arbitrariness in the Rule
We do not agree with this conten tion of the learned counsel
A statutory rule cannot be modified or amended by executive instructions
A valid rule having some lacuna or gap can be supplemented by the execu tive instructions but a statutory rule which is constitu tionally invalid cannot be validated with the support of executive instructions
The instructions can only supplement and not supplant the rule
Shri Anil Dev Singh then placed reliance on Ministry of Home Affairs Memorandum dated November 30 1962 and argued that the same having been issued in the name of President of India is statutory and has the effect of amending Rule 22 of Pension Rules
According to him reading the two together the power under Rule 22 of Pension Rules can only be exercised to weed out unsuitable employees
The relevant part of the memorandum is as under It has now been decided and the President is pleased to direct that the age of compulsory retirement of Central Government servants should be 58 years subject to the following exception 6
Notwithstanding anything contained in the foregoing 801 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 22 of the Libera lised Pension Rules 1950 to retire an officer who has completed 30 years  qualifying serv ice 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 author ity
These provisions will have effect from the Ist December 1962
 A bare reading of the memorandum shows that there is an obvious fallacy in the argument of Mr Singh
The memorandum has not been issued under Article 309 of the Constitution of India and as such cannot be statutory
The memorandum is in the nature of executive instructions issued in the name of President of India as required under Article 771 of the Constitution of India
This was issued in anticipation of the Fundamental Sixth Amendment Rule 1965 which inter alia incorporated Rule 56j into Fundamental Rules
Even otherwise para 6 of the memorandum could not and did not add anything to Rule 22 of the Pension Rules
Rule 22 of Pension Rules was mentioned to clarify that the power to retire under para 6 was in addition to the power already contained in the Pension Rules
The words weed out unsuit able employees can only be read qua the power to retire under para 6 and not under Rule 22 of Pension Rules
There is thus no force in the argument and we reject the same
Relying on the decision of this Court in Union of India and others vs R Narasimhan  Mr Anil Der Singh contended that para 620 of the Railway Pension Manual which is identical to Rule 22 of the Pension Rules has been upheld by this Court
In Narasimhan s case the scope of Rule 2046 of the Indian Railway Establishment Code and para 620 of the Railway Pension Manual was consid ered by this Court
Rule 2046 is a statutory rule and is identical to Fundamental Rule 56j
Para 620 is in the nature of executive instructions but is similarly worded as Rule 22 of Pension Rules
A Division Bench of the Madras High Court came to the conclusion that Rule 2046 having been framed under Article 309 of the Constitution and being a compendious rule the railway employees are only gover 802 ned by the said rule and para 620 was void and inoperative
This Court while setting aside the judgment of the High Court held as under Thus the areas of operation of Para 620 of the Railway Pension Manual is different from that of clause h and k of Rule 2946 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 exer cise of its executive powers 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
 Narasimhan s case has thus no relevancy to the contro versy involved in this case
There was no challenge to any of the rules or para 620 of the manual on the ground that it gives unguided power to the Railway authorities to pick and choose railway employees for the purpose of pre mature retirement
Para 620 of the Manual being executive instruc tion supplementing the statutory Rule 2046 has no parity with Rule 22 of Pension Rule which is a statutory rule
In any case the point before us in the present case was neither involved nor raised in Narasimhan s case and as such Mr Anil Dev Singh cannot derive any support from the said judgment
There is thus no legal or equitable ground to interfer with the judgment of the Division Bench of the High Court
The appeal is dismissed with costs which we quantify as Rs3000
RSS Appeal dis missed


Summary:
The petitioner appellant is engaged in the manufacture of various varieties of soaps
The dispute arose as to the eligibility of the appellants to the concession under rule 81 of the Central Excise Rule 1944 through Notification No 46 of 1972 subsequently amended by Notification Nos
153 of 1973 dated 24773 of 25 of 1975 dated 1375
Resolving the dispute as to the interpretation of rules whether rice bran fatty acid is different from the rice Bran Oil as held by the Tribunal the Court came to the conclusion that the view taken by the Excise authorities as well as by the Tribunal proceeded upon too narrow an interpretation of the notification and erred in not granting the exemption to the assessee
While allowing the appeals this Court HELD Rice bran oil contains glycerol and other impuri ties which have to be removed by a process of hydrolysis or hydrogenation and it is only the resultant purified rice bran oil that is actually used in the manufacture of soap
843G A factory which consumes rice bran oil in the manufac ture of soap in its factory first converts the oil into hydrogenated oil or fatty acid and then manufactures soap out of the latter
844A In trying to understand the language used by an exemp tion notification one should keep in mind two important aspects a the object and purpose of the exemption and b the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted
843F Construing the notifications literally but reasonably in the light of 840 the process of manufacture as explained by the Tribunal the soap manufactured by the assessee is soap made from indige nous rice bran oil and is entitled to the exemption under the notifications to the extent permissible thereunder
844H 845A The terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself
849A Tungabhadra Industries Ltd vs CTO  and Collector of Central Excise vs Jayant Oil Mills etc
 CA 729 of 1983 and 2479 of 1987 decided by this Court on 31389 referred to