E. VENKATESWARA RAO NAIDU

UNION OF INDIA January 9, 1973 '

{H, R. KHANNA, Y. V. CHANDRACHUD AND c: A. VAIDIALINGAM,

JJ.]

fundaJnental Rules-Age of retiren1ent-Office Afenioranduni of llome ·/o.Jinistry issued on Nov. 30, 1962 raising age of . retirement fron1 55 to 58 .Years but resving pott•er in appointing authority to retire a , qovernrnent servant by notice without zh:ing any reason at age of 55-0ffice Me1noranduni lvhethei' a rule-fVithin meaning of Art.

309. Constitution of India-Fundan1ental Rules a111ended in 1965 incorporating rule in OjJice Men1orandun1 of 1962 ireJ?arding raising pf age to -58 years~-Notice of con1pulsory retirement at 55 issued under office Memorandum--'-Received b, v eniployee after proniulgation of an1ended Fundcmenta{ J?..u!es-t:niptovee lvhether could take advanta;:e of arnend~ ed rule-Cornpu!sory retirenzent need not puroort to be in public interest when notice issued before pro1nulgatiCnr of sub-rule (j) of rule 56(aJ. ·

Rule 56 of the Fundamental Rules originally provided that the age of compulsory retiren1ent for Central Governn1ent Seryan!s other 1han miniiterial servants shall be 55 years. On November 30. 1962 the Govcrnme:rrt of Indi-a,· 1\1inistry of llome Affairs issued an Office :rvlemo'randum whereby . the age of compulspry rctiren1nt \Vas raised to 58 years.

Jlo\vever by paragraph 6. of the l\fcmorandum the appoint~ ing authority could retire a Govenunent servant at the age of 55 years ,- without giving any reason after three months' notice.

On July 21, ' 1965 Fundan1cntal , H.ulc 56 \Vas amc:n<lcd by the Sixth Amendment so as to incorporate,. with modifications, the p'rovisions of the aforesaid Office Memorandum.

Rule 56(a) of the Fundamental (Sixth Amendment) Rules 1965 laid down that except as otherwise provid"d in the Rule, every Government servant shall retire at the age , of

58. years.

Certain exceptions \Vere provided to the Rule a.nd that in . sub-rule (j) said that the approp'riate authority in the public interest had the absolute right to. retire a Govcrnn1ent servant at the age of 55 years after

givin~ him notice.

Born on July 15, 1910 tho appellanf attained. the age of 55 on the corresponding date in 1965.

O.n July 22, 1965 while he was holding the post of Assistant Commissioner of Income-tax, he received a notice dated July 15, 1965 compulsorily. retiring him from service with effect from October 21, 1965.

He filed a writ peti tion in the High Court challenging that notice but failed; By certificate he app.ealed to this Couri. ·

HELD : (i) The proviso to Art. 309 empowers the President to make rules regulating the retirement and conditions of servants appoint ed to Un'ion services and -posts until provision in that behalf is made under an Act of the appropriate legislature. The rules so made by the President are effective subject to the provisions of any such Act.

Paragraph 2 ol the Offic~ l\femorand\lm in terms recites that the President is . pleased to direct that age of compulsory retirement of Central Government servants should be 58 years; subject to certain exceptions Paragraph 8 of the Memorandum merely re-states with , particularity the true legal pos'ition which obtains under the proviso to Article 309. Nothing stated in that paragraph is capable of the

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constructiori that the Office 11emora0.dum was not to be effective until Ftindamcntal nutes were consequently ame:nde<l.

In. {act by Para~ gr-aph 7 the provisions of the 1femorandum v.ere given express effect_ from December 1, 1962, [219 FG] ·

(ii) It is true the notice ot' con1pulsory retirement \Va.s served ?n the appellant on July 22, 1965 while the Fundamental (Sixth Amendment) Rules came into force a day prior thereto viz. O; rt July 21, 1965.

But the crucial date is the date on \vhich the notice \Vas b:s'Jed, namely July 15, 1965 for, a right.which is validly determined, cannot without more, stand revived by -a later amendment enlarging the scope of that right. [220-A Bl .

The appellant\ continued in' service beyorrd the ag-~ of 55 years which he attained on July 14,' 1965 by reason of paragraph 2 of the memorandum.

Having_ obtained the benefit of that provision he could not repudiate the exception the'reto, in paragraph 6 of the memorandum. [220 Gl . ..

Punjab v. Ama'r Singh flarika, A.I.R. 1966 S.C. 1313, distinguished. • • (iii), Under the Office }..len1orandum the Government \Vas entitled to retire the appellant compulsorily without assigning any reason.

The concept of public interest was introduced . by subrulc (j) of Ruic 56(a) of the Fundamental (Sixth Amendme:r, t) Rules .1965.

The appellant's scrvjce having been validly determined by a : notice \vhich \Vas issued prio:r to the date \vhcn the amended rules came into force it \Vas not necessary for the authority to satisfy itself thnt it \Vas in public interest to retire the appellant compulsorily. [221-B] CIVIL APPELLATE JURISDICTION :Civil Appal No. 1300 of 1967. .Appeal by certificate from the judgment and order dated 19th September 1966 of the Orissa High Court at Cuttack in O.J.C.

Appeal No. 272 of 1965. _ · M. Natesan, P. C. Bhartari, B. Parthasarathy, J. B. Dadac/1a11ji,

0. C. Mathur and Ravinder Narain, for the appellant.

B. D. Sizar ma and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, J, Born on July 15, 1910 appellant attained the age of 55 on the corresponding date in' 1965. He hoped to continue in the service of the respondent-Union of India-until attaining the age of 58, but on July 22, 1965 while he was holding the post of Assistant Inspecting Commisisoner Income1ax, Cuttack, he received a notice dated July 15, 1965. compulsorily retiring him from service with effect from October 21, 1965. He filed in the High Court of Orissa a writ petition challenging that notice but failed. The High Court, however, granted him leave to appeal to this Court. ··

First, . we wiH notice the provisions on which the appellant bases his challenge to the order of compulsory. retirement.

; Originally, Rule 5 6 of the Fundamental Rules read thus : . "Except as otherwise provided in the other clauses. of this Rule 'the date of c9mpulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years". On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an Office Memorandum under which the age of compulsory retirement of Central Government servants was raised from 55 to 58 years, subject to the three exceptions mentioned is paragraph 2 thereof. Paragraph 6 of the Memorandum provided: .

"Notwithstanding anything contained in the foregoing 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 2(2) of the Liberalised Pension Rules 1950 to retire al! officer who has. completed 30 years' qualifying service 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, volun tarily re.tire after giving three. months' notice to the appointing authority."

The Memorandum was to take effect from December 1, 1962.

On July 21, 1965 Fundamental Rule 56 was-amended by the : Sixth Amendment so as to incorporate, with modifications, the provisions of the aforesaid Office Mel!lorandum. Rule 56(a) of the Fundamental (Sixth Amendment) Rule, 1965 says: "Except

as otherwise provided in this Rule, every Government servant shall retire on the dav he attains the age of fifty eight years". A number of exceptions are engrafted as this rule, relevant amongst them being the one contained in sub-rule (j). That exception reads thus:

"Notwithstanding. anything contained .in this Rule the appropriate authority shall, if it is of the opinion thatiit 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" . . Jn the High Court the order of compulsory retirement was challenged on two grounds, one of them being that the Office Memorandum and the Sixth Amendment to Fundamental Rules were void as being violative of the guarantee contained in Article 311 (2) of the Constitution. The High Court rejected. that co11r tenticn by a common judgment dated_ September 19. 1966,

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governing the case of the petitioner and of one Batahari Jena.

The contention of the letter in this petition was that a Resolution dated May 21, 1963 and a notification dated February 6, 1964 of the Government of Orissa, on the basis of which he was retireq compulsorily were void as offending Article 311(2). In an appeal filed by Batahari Jena (1971,2 S.C.C. 232) this Court upheld the validity of the Resolution and the notification. As the Office Mrmorandum dated November 30, 1962 and Rule 56(a) of the Fundamental (Sixth Amendment) Rules, 196 S are in terms simi Jar to the resolution and the notification im1mgned in Batahari Jena's case, learned counsel for the appellant did not, rightly, challenge the constitutional validity thereof.

The first of the three points urged before us is that the notice retiring the appellant compulsorily is invalid as the Office Memorandum on the strength of which it was issued, did not have the force of a rule made under Article 309 of the Constitution. This contention is based on Paragraph 8 of the Memorandum which provided that "The amendment of the relevant rules covering the All India Services so as to make these orders applicable to the members of those services is being undertaken in consultation with the State Governments".

We see no merit in the contention.

Article 309 provides that subject to the provisions of the Constituti<>n, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. In regard to services and posts in connection with the affairs of the Union, the proviso to Article 309 empowers the President to make rules regulating the recruitment and conditions of servants appointed to such service, and posts until provision in that behalf is made under an Act of the appropriate Legislature.

The rules so made by the President are effective subject to the provisions of any such Act. Paragraph 2 of the Office Memorandum in terms recites that "the President is pleased to direct that the age of compulsory retirement of Central Government servants should he 58 years", subject to certain exceptions. Paragraph 8 of the Memorandum merely re-states with particularity the true legal position which obtains under the proviso to Article 309.

Nothing stated in that paragraph is capable of the construction that the Office Memorandum was not to be effective until Fundamental Rules were consequently amended. In fact, by Paragraph 7 the provisions of the Memorandum were given express effect frnm December 1, 1962.

It is then contended that as the appellant was lawfully in service when the amended Fundamental Rules came. into force. he would be governed by these rules and so he collld not be asked

to retire by a notice founded on the provisions o.f the Office A Memorandum.

Now, it is true that the notice of compulsory retirement was served on the appellant on July 22, 1965 while the Fundamental (Sixth Amendment) Rules came into force day prior thereto viz., on July 21, 1.965.

But the crucial date is the date on which the 11otice was issued viz .. July 15, 1965, for a right which is validly detennined cannot, without more, stand B revived by a later amendment enlarging the scope of that right.

Therefore, the notice having been valid when it was issued, cannot become invalid by reason of the fact that the Rule on which it was founded had undergone an amendment before it was received by the appellant.

In support of the argument that the amendment of Funda- C mental Rules prior to the receipt of the notice by the appellant would render the notice invalid, reliance was placed on a decision of this Court in State of Punjab v. Amar Singh Harika(1) in which it was held that the mere passing of an order of dismissal is not e!fective unless it is published and communicated to the officer concerned. This decision has no bearin_g tiecause there the question was D not one of the initial validity of the order but of the time from which it would take effect. An order of dismissal was passed on June 3, 1949 but it was not until May 28, 1951 that the officer concerned came to know about it. In that context it was held that an order of dismissal passed by an Authority but kept on its file with communicatin_g it to the officer concerned can only take effecf after F. it is communicated or is otherwise published. rt was observed that in the interregnum, the authority could well change its mind and modify the order and several other complications would arise as for example whether the officer lawfully drew his salary for the intervening period.

No such considerations arise in the instant case.

Besides, under the unamended Fundamental Rule 56, the appellant would have retired on attaining the age of 55, that is on July 14, 1965. He continued in service thereafter,, though for

a short period, solely by reason of the provision contained in Paragraph 2 of the Office Memorandum, by which the age of retirement was raised to 58. Having obtained the benefit of that G provision, the appellant cannot repudiate the exception thereto, contained in Paragraph 6 of the Memorandum. The benefit of an instrument carries with it the obligation: to be subject to the burden which it imposes.

Finally, it was contended that the order of compulsory retirement is bad because it does not purport to have been issued in H '"the public interest". This argument assumes that the amended

(l) A.l.R. 1966 S.C. 1313.

E. v. RAO v. UNION (Chondrachud, /..) 221

A Fundamental Rules would govern the conditions of the appellant'!!'

service, which is a wrong assumption to make. Under the Office Memorandum, the Government was entitled to retire the appellant compulsorily without assigning any reason. The concept of "public interest" was introduced by sub-rule (j) of Rule 56(a) of the Fundamental (Sixth Amendment) Rules, 1965. The appellant's B service having been validly determined by a notice which was issued prior to the date when the amended rules came into force it was not necessary for the aut\}ority to Soatisfy itself that it was in public interest to retire the appellant compulsorily.

The Miscellaneous Petition filed by the appellant contending that he should have been heard before the order of compulsory C retirement was passed has no substance in view of the decision in Union of India v. Col. 1. N. Sinha and Anr. (1) It was held therein that compulsory retirement does not involve civil consequences and therefore it is not necessary to afford to a Government servant an opportunity to show cause against his compulsory

retirement.

D For these reasons we dismiss the appeal but in the circumst-· ances there will be no order as to costs.

G.C.

Appeal dismissed~

(1) (1971 1 S.C.R. 791.