Case: Union Of India Vs. Mool Chand Dasumal Pardasani

2. The order impeached by the respondent was as follows:"Central Excise Collectorate, Baroda, Establishment Order No. 286 of 1963Shri Mulchand Pardasani, Upper Division Clerk, Head Quarter Office, Baroda, who attains the age of 55 years on4 is hereby informed that the Collectorate Departmental Promotion Committee, 1963, has not considered him suitable for further retention in service beyond the age of 55 years. He has the option to retire with effect from4 forenoon or proceed on leave as may be admissible and granted to him preparatory to retirement1. This appeal by certificate is against the judgment dated 2/3 May, 1969 and 16 June, 1969 of the High Court of Gujarat quashing the order dated 18 December, 1963 passed by the Collector, Central Excise, Baroda and further ordering that the respondent will be deemed to have been continued in the service of the Government until he attained the age of 60 years.

Reasoning: 7. The respondent was governed by Fundamental Rule 56 (b) (i) as it stood prior to 30 November, 1962 with the result that he might be required to retire at the age of 55 years and that he should be ordinarily retained in service upto the age of 60 years, if he continued to be efficient and after the age of 60 years he could not be retained in service except under special circumstances8. This Court in Kailash Chandra v. The Union of India, (1902) 1 SCR 374 = (AIR 1961 SC 1346  ) considered Rule 2046 (2) (a) of the Indian Railway Establishment Code. Rule 2046 (2) (a) is totidem verbis as Fundamental Rule 56 (b) (i). This Court held that the ministerial servant falling within the said clause might be compulsorily retired on attaining the age of 55, but when the servant is between the age of 55 and 60, the authority will have the option to continue him in service subject to the condition that the servant continues to be efficient. Therefore, there would be no right to continue in service beyond the age of 559. In the present case there came into existence two memoranda. The first was dated 30 November. 1962. The second was dated 31 December 1963. The December, 1963 memorandum was in partial modification of the memorandum dated 30 November, 1962. Under the December, 1963 memorandum it is stated that the President of India is pleased to decide that subject to the right of Government to retire any officer on three months notice after he had attained the age of 55 years, the pre1938 ministerial officers governed by F. R. 56 (b) (i) should be continued in service like all other Government servants (except those whose age of retirement is 60) upto the age of 58 years without an annual order sanctioning their retention. After the age of 58 years and till they attain the age of 60 years however, such an annual order would be necessary. It was also provided in the memorandum that there will be a review in the case of all employees to assess their suitability for retention beyond the age of 55 years. It is not necessary to refer to the other parts of the memorandum for the purposes of the present appealThat is not disputed. Therefore, as a result of the changes introduced by the memorandum to Fundamental R. 56 the respondent who was a, 1938 ministerial Government servant would be entitled to the benefit of the increased age of compulsory retirement subject to the right of the Government to review his case for retention beyond the age of 55 and the right of the Government to retire him on three months noticeIn this view of the matter to deny the respondent operation of the memorandum will be an infraction of Article 14 of the Constitution. There is nothing in the record to indicate that the respondent was not efficient. On the contrary, the order in the present case gave the respondent an option to retire with effect from 14 March, 1964 when he would have attained the age of 55 years. The same order gave the respondent option to retire with effect from 14 March, 1964 or to proceed on leave as might be admissible or granted to him preparatory to retirement. The stand taken by the Government in the present case in all the courts was that the respondent was on preparatory leave extending upto 28 months after 14 March, 1964. In fact, the records show that the respondent was paid the salary that was admissible to him for this leave period for 28 months. Therefore, for 28 months after 14 March, 1964 he continued to be a Government servant. Taking into consideration these features it is clear that the respondent was thus entitled to the benefit of the increased age of retirement viz. 58 years and thereafter upto 60 years in accordance with the memorandum. The memorandum became a part of the Fundamental Rules as a result of the Fundamental (Sixth) Amendment Rules, 196513. The order challenged by the respondent in the present case is not legal and it cannot be sustained in view of the fact that the respondent would be entitled to the benefit of the memorandum as all other Government servants were at the relevant time14. It is not necessary for us to express any view on the question as to whether the memorandum would be a mere executive and administrative instruction or have the force of statutory rules. We rest the decision in the present case on the consideration that the order complained against suffers from the vice of violation of Article 14 of the Constitution. The order of the High Court that the respondent would be deemed to be in Government service until he attained the age of 60 years on 14 March, 1969 is upheld.