Case: S.N. Pallegar Vs. State of Mysore

the Governor on 25th March, 1959 under Art. 309 of the Constitution validated the action of retiring Padmanabhacharya and certain other officers on their attaining the age of 55 years. The High Court rejected both these two contentions and allowed the petition. On appeal, this Court held with regard to the first contention that under Rule 294 (a) as it was before 29th April 1955, the normal age of retirement was 55 years for all including trained teachers but it gave discretion to the Government to extend the service of efficient of 55 years. The position, however, was changed in regard to trained teachers as a result of the addition of Note 4 to Rule 294 (a) which entitled them to continue in service till the age of 58 years unless the Government came to the conclusion that they did not have a good record of service and were not upto the mark. The net effect of this decision was that apart from trained teachers, the normal age of superannuation was 55 years unless Government decided to extend it upto 58 years on the ground of fitness. 5. This Court was called upon to construe the effect of Article 305 of the Seventh Edition of the Mysore Services Regulations in Civil Appeal Nos. 476 to 478 of 1969, D/- 15-7-1969 (SC). In that case Sadasiva Murthy was a "superior service" employee of the Mysore State Railways. After the merger of the State of Mysore with the Indian Union he became an employee of the Indian Railway Administration. On 5th January 1969 he received an order compulsorily retiring him from service. Sadasiva Murthy moved a writ petition in the High Court of Mysore in which he asked for a declaration that the Indian Railway Administration was bound to continue him in service till he attained the age of 60 years. His contention was upheld by the High Court and the order of compulsory retirement was quashed. Upon an appeal from that decision this Court confirmed the decision of the High Court. The appellant before us strongly relied on this latest decision of this Court. 6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation. 7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years. 8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and in ex-Company and ex-State Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/- 15-7-1969 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which the petitioner-appellant is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules. 9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. Before the High Court an attempt was made on behalf of the State to explain the difference between the latest decision of this Court and the two earlier decisions by pointing out that Article 305 of the Seventh Edition contained a ruling of the Government which indicated that Article 305 and Article 428 should be read together. It was contended that Art. 428 suggests that an officer in the superior service could be retired before reaching 60 years only on the ground of inefficiency. The argument was that this Clause (c) which attracts the operation of Article 428 was omitted in the Eighth Edition and Article 294 of that Edition standing by itself indicated 55 years to be the age of superannuation7. In our opinion, it is not necessary for us to examine the question whether Art. 428 of the Seventh Edition which is essentially a rule regarding pension supports the contention that the normal age of superannuation is 60 years8. So far as the instant case is concerned, we consider the two earlier decisions to be more apposite for two reasons. First, it appears from the judgment of the High Court of Mysore that it was a common ground of the parties to the instant case that the conditions of service governing the services of the appellant are those contained in the Eighth Edition. Since in the two earlier decisions it was the rule of the Eighth Edition which was construed those are the decisions with which we are concerned directly in the instant case. Secondly, the decision in the latest case may be supported on an entirely different ground. Rule 2046 of the Indian Railway Fundamental Rules as amended on 11 January 1967 provided, inter alia, that if a ministerial railway servant, who entered Government service on or before 31 March 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post, he was to be retained in service till he attains the age of 60 years. This rule was modified on 23rd December 1967 so that the expression "Government service" in that rule included service rendered in a former provincial Government and iny ande Railway, if the rules of the Company or of the State had a similar / provision. In the facts of the case of Sadasiva Murthy, he, it appears, completely answered the description of a ministerial railway servant given in Rule 2047. Therefore he could claim 60 years to be his age of retirement. From that point of view the judgment in Sadasiva Murthys case, Civil Appeal Nos. 476 to 478 at 1969, D/9 (SC) is unexceptionable. One facts, however, that case is entirely distinguishable from the facts of the present case in which thet is not a Railway Officer and does not, therefore, claim the benefit of Rule 2046 of the Indian Railway Fundamental Rules9. Apart from the considerations we have just mentioned, in our opinion Art. 294 does not leave any room for doubt on this point. The discretion to retire an officer whether of the superior service or of the inferior service at 55 years has been given in clear unmistakable language to Government. All officers attaining that age "may be required to retire." It is clear that the officers themselves have no option in the matter. If Government decides to retire them, they must go out. At the same time, however, the Government has been given the discretion to retain them in service if the Government considers them to be fit and efficient. There is nothing in the language of Art. 294 which makes it incumbent on Government to give this extension after the age of 55 years.