Case: Bishun Narain Mishra Vs. State Of Uttar Pradesh And Others

superannuation was held by the majority in Moti Ram Dekas case, AIR 1964 SC 600 , as out of the application of Article 311. We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the present case.6. The next contention on behalf of the appellant is that the rule can be made. As we read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective in operation.7. The last argument that has been urged is, that the new rule is discriminatory as different public servants have in effect been retired at different ages. We see no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail.

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

Explanation:
0[ds]We have not been shown any provision which takes away the power of Government to increase or reduce the age of superannuation and, therefore, as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service which thus came about was removal within the meaning of Article 311. The alteration in the circumstances of this case at least cannot be regarded as unreasonable. The argument that the termination of service resulting from change in the age of superannuation amounts to removal within the meaning of Art. 311 and, therefore, the necessary procedure for removal should have been followed is negatived by the very case on which the appellant relies. We, therefore, hold that Art. 311 has no application to the termination of service of the appellant in the presentwe read the rule we do not find any retrospectively in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957 and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961. Further the second order issued on the same day also clearly shows that there was no retrospective operation of the rule for in actual effect no Government servant was retired before the date of the new rule, i.e., May 25, 1961 and all of them were continued in service up to December 31, 1961 except those who completed the age of 58 years between May 25, 1961 and December 31, 1961 and were therefore, to retire on reaching the age of superannuation according to the old rule. We are, therefore of opinion that the new rule reducing the age of retirement from 58 years to 55 years cannot be said to be retrospective. The proviso to the new rule and the second notification are only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, cannot be struck down on the ground that it is retrospective insee no force in this contention either. So far as the rule is concerned it applies equally to all public servants and fixes the age of retirement at 55 years. There is no discrimination in the rule itself. It is, however, urged that the second notification by which all public servants above the age of 55 years were required to retire on December 31, 1961 except those new who completed the age of 58 years between May 25, 1961 and December 31, 1961 shows that various public servants were retired at various ages ranging from 55 years and one day to upto 58 years. That certainly is the effect of the second order. But it is remarkable that the order also fixed the same date of retirement namely December 31, 1961 in the case of all public servants who had completed the age of 55 years but not the age of 58 years before December 31, 1961. In this respect also, therefore, there was no discrimination and all public servants who had completed the age of 55 years which was being introduced as the age of superannuation by the new rule by way of reduction were ordered to retire on the same date, namely, December 31, 1961. The result of this seems to be that the affected public servants retired at different ages. But this was not because they retired at different ages but because their services were retained for different periods after the age of fifty-five. Now it cannot be urged that if Government decides to retain the services of some public servants after the age of retirement it must retain every public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service, and in the present case the difference in the period of retention has arisen on account of exigencies of public service. We are, therefore, of opinion that the second notification of May 25, 1961 on which reliance is placed to prove discrimination is really not discriminatory, for it has treated all public servants alike and fixed December 31, 1961 as the date of retirement for those who had completed 55 years but not 58 years up to December 31, 1961. The challenge, therefore, to the two notifications on the basis of Art. 14 must fail.