Case: Takhatray Shivdatray Mankad Vs. State of Gujarat

of discrimination between Executive Engineers who had been absorbed from a Covenanting State and those who had been appointed or recruited directely by the State Government. In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before a person had attained the age of 55 years. It was, therefore, held that the conditions in Rule 161 (c) (2) (ii) of the Bombay Rules had not been shown to the less advantageous or disadvantageous to the appellant than the conditions in Rule 3 (i) of the Saurashtra Rules by which the appellant was governed until November 1, 1956. In this manner the proviso to Section 115 (7) of the State Reorganisation Act, 1956 did not stand in the way of the applicability of the Bombay Rules.6. We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683 = (AIR 1964 SC 600 ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 = (AIR 1957 SC 892 ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of the Constitution. There were certain other decisions of this Court which were relevant on this point, viz., P. Balokotaiah v. Union of India, 1958 SCR 1052 = (AIR 1958 SC 232 ) and Dalip Singh v. State of Punjab, 1961-1 SCR 88 = (AIR 1960 SC 1305 ). All these decisions were considered in Moti Ram Dekas case, 1964-5 SCR 683 = (AIR 1964 SC 600 ) and the true legal position was stated in the majority judgment at p. 726 (of SCR) = (at p. 617 of AIR) thus:"........We think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement ordered under the said Rule would amount to removal of the civil servant within the meaning of Article 311 (2) ".In Gurdev Sing Sidhu v. State of Punjab, 1964-67 SCR 587 = (AIR 1964 SC 1585 ), it was pointed out that the only two exceptions to the protection afforded by Article 311 (2) were, -(1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed(2) that he was compulsorily retired under the Rules which prescribed the normal age of superannuation and provided a reasonably long period of qualified service after which alone compulsory retirement could be valid.The basis on which this view has proceeded is that for efficient administration it is necessary that public servants should enjoy a sense of security of tenure and that the termination of service of a public servant under a rule which does not lay down a reasonably long period of qualified service is in substance removal under Article 311 (2). The principle is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25 years.7. Now Rule 3 (i) of the Saurashtra Rules will have to be declared invalid if the expression "unless for special reasons otherwise directed by Government" is so construed as to give a power to order compulsory retirement even before attaining the age of 55 years. It is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to the appellant.8. Counsel for the State pressed us to look into certain documents for the purpose of finding out whether prior approval of the Central Government was obtained in the matter of varying the conditions of service of the appellant by applying the Bombay rules. But none of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.

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

Explanation:
1[ds]The High Court rightly looked at the provisions of Section 115 (7) of the States Reorganisation Act, 1956. It is provided thereby that nothing in the section shall be deemed to effect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State. The proviso is important and lays down that the conditions of service applicable immediately before the appointed day to the case of any person referred in sub-section (1) or sub-section (2) (of Sec. 115) shall not be varied to his disadvantage except with the previous approval of the Central Government. The case of the appellant fell within the proviso and it had, therefore, to be determined whether the conditions of service applicable to the appellant, immediately before the appointed day which admittedly were contained in the Saurashtra Rules had been varied to his disadvantage, and if so, whether the approval of the Central Government had been obtained.We find it difficult to concur with the view of the High Court. Rule 3 (i) of the Saurashtra Rules, if construed or interpreted in the manner in which it has been done by the High Court, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka v. General Manager, N.E.F. Railways Maligaon, Pandu, 1964 (5) SCR 683   = (AIR 1964 SC 600  ), which is a judgment of a bench of seven judges of this Court.One of the matter which came up for consideration was the effect of a service rule which permitted compulsory retirement without fixing the minimum period of service after which the rule could be invoked. According to the observations of Venkatarama Ayyar, J., in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571   = (AIR 1957 SC 892  ) the application of such a rule would be tantamount to dismissal or removal under Article 311 (2) of theprinciple is that the rule relating to compulsory retirement of a Government servant must not only contain the outside limit of superannuation but there must also be a provision for a reasonably long period of qualified service which must be indicated with sufficient clarity. To give an example, if 55 years have been specified as the age of superannuation and if it is sought to retire the servant even before that period it should be provided in the rule that he could be retired after he has attained the age of 50 years or he has put in service for a period of 25is well known that a law or a statutory rule should be so interpreted as to make it valid and not invalid. If this expression is confined to what was argued before the High Court, namely, that it gives power to the Government to allow a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will not be rendered invalid and its validity will not be put in jeopardy. So construed it is apparent that the appellant could not have been retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule his conditions of service were varied to his disadvantage because he could then be compulsorily retired as soon as he attained the age of 50 years. As the previous approval of the Central Government was not obtained in accordance with the proviso to Section 115 (7) of the State Reorganisation Act 1956, the Bombay rule could not be made applicable to thenone of these documents were referred to before the High Court and in the presence of a clear concession by the learned Advocate General we see no justification for acceding to such a request.