I. N. SAKSENA versus STATE OF MADHYA PRADESH

J. N. SAKSt::lliA

STATE OF MADHYA PRADESH

January 30, I 967

(K. N. WANCHOO AND V. RAMASWAMI, JJ.j

Cons1i1utio1l of J11diu, 1950, Arts. 309 uucl 31 l-Stale Govtrunren .nie1norand11n1 raising age <>/ re1iren1c111 of its serva111s froin SS 10 58 years-Provision for earlier cornpulsory re1irc1ne111 of 'uu.r11itublc' r111-ployees--Order of co1npu/sory re1ircn1ent co111ai11ing no cxpre.'iS u·nrds of .\·tignJO-Stigma whether can be inferred /ro1n proVi!iiOns of 111en1orc111du:11 -Such conipulsory retirc1nc111 whether arnounts to re1no,·al \\.'ilhin meaning ·Of Art. 311-Ru/es i11 1ne11rorandum whether rule_,. under Art. 309.

Madhya Pradesh Judicial Service (Clt1.lsi{icatio11, Recruitn•"!llt and Con· dition.r of Service) Rules, 1955, r. 7(2)-R11/e whether makr.s All India Services (Death-cum-Retirement Benefits) Rules, 1958 app//cab/e to Di.<· trict Judges in Madhya Prade.rlt.

On February 28, 1963 the Government of Madhya PraJcsh mucd memorandum whereby the age of retirement of its employees wa'i raised from 55 to 58 years. Clause 5 of the memorandum howcvzr said that th<: appointing authority may require Government ser\·ant to rc1irc after he .attained the age of SS years on three monThs' notice without giving any reasons. The clau<e further said that this power was normally to he used to weed out unsuitable employees. The appellant who wit~ o District and Sa.sions Judge in the service of the State Government would normally have retired at the age of 55 years in August 1963, but under 1he abcvc mem<>-randum his servi= were extended beyond that date. In September 1963 however. Government communicated to him an order that he was to retire on December 31, 1963. On December 6, 1963, o notifica!ion was issued by the Sta\e Government amending rule 56 of the Fundamental Rules applicable to the State of Madhya Prade<;h. By the amended F.R. 56 the age of retirement of Government servants was raised to SS ycaPi with effect from March I, 1963. All the provisiom of cl. 5 of the aforesaid mem<>-randum or February 28, 1963 were not incorporated into the new rule by this amendment. The appellant filed writ petition in the High Coun challenging the order compulsorily retiring him on December 31. 1963. II was rejcclcd and rhe appellant came. wilh certificate, to this Court.

The question• 1hat fell for consideration were: (i) Did the order com-pulsorily retiring the appellanl cast stigma on him in view of the language of cl. 5 of the memorandum and if so whether Art. 311 of the Constitution was attracled ? (ii) Was the Memorandum rule under Art. 309 of the Constitution? (iii) If it was not rule, would not the appellant be liable to retire in August 19557 (iv) Were the All India Services (Death-cum-Retirement Benefits) Rules. 1958 applicable tD the appellant by virtue of r. 7(2) of the Madhya Pradesh Judicial Service (Clos.<ification, Recruit-ment and Conditions of Service) Rules, 1955 7

HELD : (i) Where there are no express words in the order of com-pulsory retirement itself which would throw stigma on the Government Krvant. the Court would not delve into Secretariat files to di'.tcovcr whether some kind of stigma could be inferred on such research. Since in the present case there "'·ere no words of stigma in the order compulsorily retir·

ing the appellant, there was no removal requiring action under Art. 311 of the Constitution. [501 E; 502 A)

Jngdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 and State of U.P. v. M, M. Nngar (1967] 2 S.C.R. 333, distinguished.

(ii) The memorandum of February 28, 1963 contained merely execu-tive instructions and was not rule under Art. 309 of the Constitution. The only rule which the Government had made on the question of superannua-tion was by the notification of December 6, 1963. This rule would apply to the appellant and it did not empower the Government to retire Govern-. ment servants over the age of 55 years on three months' notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall. [504 B-C] Shyam Lal v. Slate of U.P. [1955] 1 S.c:R. 26, distinguished.

(iii) Though ordinarily the power of Government lo extend the .services of Government servants, as ·contemplated by the then existing P.R. 56 is to be exercised in individual case under individual o.rders, there is nothing to prevent the Government passing general order if it decide• that all Government servants be retained up to certain age. The memo-randum of February 28, 1963 amounted to an order of Government under the then existing P.R. 56, retaining the services of all Go.vernment servants up to the age of 58 years subject to the conditions prescribed in the memorandum till an appropriate rule as to the age of superaQlluation was framed. Therefore under this memorandum the appellant became entitled to continue in service beyond the age of SS years and consequently he did not have to retire in August 1963. [S04 F-S05 CJ

(iv) Rule 7(2) of the Madhya Pradesh Judicial Service Rules, 19S5 can only take in rules which applied to officers holding superior posts. in the cadre of the Indian Administrative Service on the date it came into force in 1956. The Rule does not say that all future :unendments to the rules relating to officers holding supenor posts in the cadre of the Indian Administrative Service would also apply to District Judges. In these circumstances the respondent c<:!uld not .take advantage of the All India Service Rµles, 1958, particularly of rule which came into force in 1963. (505 E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1965.

Appeal from the judgment and order dated April 30, 1964 of the Madhya Pradesh High Court in Misc. Petition No. 132 of 1964.

Rameshwar Nath and Mahinder Narain, for the appellant.

B. Sen, M. N. Shroff an<!/. N. Shroff, for the respondent.

The Judgment of the Court was delivered by

Wanchoo, J. This is an appeal on certificate granted by the High Court of Madhya Pradesh and arises in the following cir-cumstances. The appellant was in the service of the State of Madhya Pradesh as District and Sessions Judge. He, was born on August

22, 1908 and would in the normal course have retired on comp-leting the age of 55 years in August 1963. But on February 28, 1963, the Government of Madhya Pradesh issued memorandum to all the Collectors in the State. Copy of this memorandum was also sent to the Registrar, High Court as well as the Finance Department and the Accountant General. The relevant part of this memorandum is as follows :-

"The State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 years subject to the following excep-tions .................. .

5. Notwithstanding anything contained in the fore-going paragraphs, the appointing authority may require Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reasons ................ the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. Govern-ment servant may also after att:iining the age of 55 years voluntarily retire after giving three months' notice to th<.' appointing authority.

6. These orders will have effect from the I st March,

7. Necessary amendments to the State Civil Service Regulations will be issued in due course."

In consequence of this memorandum, the appellant who, would have otherwise retired in August 1963, continued in service. On September 11, 1963 the Government sent an order to the appel-lant in the following terms :-

"In pursuance of the orders contained in General Ad-ministration Department memorandum No. 433-258-1 (iii)/63, dated the 28th February. 1963, the State Govern-ment have decided to retire you with effect from the after· noon of the 31st December. 1963.''

This order was obviously in terms of the fifth paragraph of the memorandum which said thal ··111c appointing authority may require Government servant to r~tire after he attains the age of 55 years on. three month>° notice without assigning any reason.''

On November 29, 1963 notification was issued by the Fi-nance Department which was published in the Madhya Pradesh Gazette dated December 6, 1963 in the following terms :-

"In exercise of the power conferred by the proviso to Article 309 of the Constitution, the Governor of Madhya .Pradesh hereby directs that the following further amend-ments shall be made in the Fundamental Rules applicable to the State of Madhya Pradesh namely :-

"All Rules in Chapter IX of the said Rules regarding Compulsory Retirement shall be deleted and the following shall be inserted as new Rule 56, namely :-

"F. R. 56 :-The date of compulsory retirement of Government servant, other than Class IV em-ployee, is the date on which he attains the age of 58 years. Only Scientific and Technical personnel may be retained in service after the age of compulsory retire-ment with the sanction of the competent authority subject to their fitness and suitability for work, but they should not ordinarily be retained beyond the age of 60 years.''

c'The date of retirement of Class IV Government servant is the date on which he attains the age of 60 years.

"The rule has come into effect from !st March, 1963."

It will be seen that this amendment to the Rules did not include that part of the fifth paragraph which gave power to the appoint-ing authority to require Government servant to retire after he attains the age of 55 years on three months' notice without assign-F ing any reason. Thereafter the appellant was retired. He then filed writ petition on March 24, 1964 challenging the order re-tiring him. His contention was two-fold, namely-(i) tjiat the rule as it stood after the amendment of November 29, 1963, pub-lished in the Gazette of December 6, 1963, contained no provision reserving power in Government to retire Government servant after he attains the age of 55 years on three months' notice without assigning any reason. and therefore the appellant could not be re-tired on December 31, 1963 in the face of the rules, and (ii) that as the order of his retirement cast stigma on him it amounted to his removal, and therefore action under Article 31 l of the Con-stitution was necessary, and that was admittedly not complied with.

The application was opposed on behalf of the State Govern-ment, and their case was-(i) that the order in question cast no stigma on the appellant, . and therefore no action under Art. 311 M2Sup.Cl/67-3

was necessary, (ii) that the memorandum of February 28, 1963 was

in itself rule and therefore the appellant was rightly retired in view of paragraph 5 of that memorandum, (iii) that if the memo-Tandum was not rule the appellant must be deemed to have retired in August 1963 in view of the old rule which prescribed 55 years as the age of retirement, for he could not take advantage of the memorandum, and (iv) that in any case the appellant's case would be covered by the All India Services (Death-eum-Retirement Benefits) Rules, 1958, as amended in 1963 and the order retiring him on three months· notice after the age of 55 years was therefore valid.

The High Court held that the order in question retiring the

appellant cast no stigma on him. It further held that the memo-randum of February 28, 1963 was in itself rule under Art. 309 and therefore the appellant was rightly retired under that rule. The High Court also held that if the memorandum was not rule, the appellant could not have continued in service after August 1963 i11 view of the old rule and could not therefore get the bene-fit of the new rule raising the age of retirement to 58 years. In this view the High Court did not consider the question whether the All India Services (Death-cum-Retirement Benefits) Rules, 1958 would apply in the present case or not. In the result, the High Court dismissed the petition, but granted certificate to the appel-lant as prayed by him, and that is how the matter has come be-fore us. The first point that the appellant has raised is that the order in question requiring him to retire cast stigma on him and therefore it amounted to removing him from service and action under Art. 31 I was required. In this connection reliance has been placed on Jagdish Mitter v. the Union of India.(') In that case the order was in these terms : -

"Shri Jagdish Mitter, temporary 2nd Division Clerk of this office having been found undesirable to be retained inGovernrnent service is hereby served with month's notice of discharge with effect from November I, 1949."

It was held that when the order referred to the fact that Jagdish Mitter was found undesirable to be retained in Government Service, it expressly cast stigma on him, and in that sense must be held to be an order of dismissal and not mere order of dis-charge. This case has been recently followed in the State of U.P. v. M. M. Nagar.(2) There also the order in express terms contained words which cast stigma on the Government servant who was compulsorily retired and it was held in those circumstances. that the order was in fact an order of removal from service. This Court (I) A.!.R. 1964. S. C. 449. (2) [1967] 2 S.C.R. 333.

has consistently held that where the order .directing compulsory retirement expressly contains words which cast stigmaon Govern-ment servant, the order is ·equivalent to an order of wmoval and action under Art. 311 is necessary. But we asked learned counsel for the appellant to point out any case of thisCourt where in the absence of any express words in the order itself casting stigma on Govern-B ment servant, this Court has held that the order of compulsory retirement amounts to removal. Learned counsel was unable to refer to any such case. But what he argues is that though the order in question in this case contains no words from which any stigma can be inferred to have been cast on the appellant, we should look to the memorandum,- which is referred to in the otder and then infer that stigma was cast on the appellant because the memorandum at the end of paragraph 5 says that the power to retire will normally be exercised to weed out unsuitable employees after they attain thi~ age of 55 years. It is urged that we should read those words in the order retiring the appellant from December 31, 1963.

We are not prepared to extend the decisions of this Court on this aspect of the matter in the manner contended for by the appellant. Where an order requiring Government servant to retire compulsorily contains express words from which sti~ can be inferred, that order will amount to removal within the mean· ing of Art. 311. But where there are no express words in the order itself which would throw any stigma on the Government servant, we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research. Besides, para 5 of the memorandum is obviously in two parts. The first part lays down that "notwithstanding anything contained in the foi'e" going paragraphs, the arpointing authority may require Govern-ment servant to retire after he attains the age of 55 years- on three. ~onths' notice without assigning any reason."· Ther~ is no stigma here. The second part to which the appellant refers is nothing more than direction from Government to the appointing authority that it will not use the above power except to weed out unsuitable employees after they have attained the age of 55 years. When, therefore, the order in question refers to the memorandum it really refers to the first part of paragraph 5 wherein power is given to the appointing authority to retire Government servant after he attains the age of 55 years on three months' notice without assign-ing any reason. It may be mentioned that the order assigns no reason. In the circumstances we hold that as the order does not expressly contain any words from which any stigma can be in-ferred it cannot amount an order of removal. What the appellant wants us to hold is that the mere fact that Government servant is_ compulsorily retired before he reaches the age of superannuation is in itself stigma. But this is against the consistent view of the Court that if the order of compulsory retirement before the age

cannot be

of superannuation contains no words of stigma it held to be removal requiring action under Art. 311.

This brings us to the next question, viz., whether the memoran-dum itself amounts to rule under Art. 309 of the Constitution as held by the High Court. The High Court seems to have re-lied in this connection on the judgmen\ of this Court in Shyam Lal v. theState of U.P.([1]) where Resolution of November 15, 1919 was held to be rule by this Court, though later that Resolution was incorporated in the Civil Service Regulations in June 1920. It is however clear that facts in that case with respect to the Reso-lution of November 15, 1919 were very different. In the first place the Resolution was published in the Gazette of India while in the present case the memorandum which bas been treated by the High Court as amounting to rules made under Art. 309, has never been published in the Gazette. As already indicated, it is only in the form of letter to the Collectors with copies to the High Court, the Finance Department and the Accountant General. Secondly, the Resolution of November 15, 1919 in terms said that it was announcing certain new rules relating to retiring pensions of certain officers in the services specified therein. The present memorandum is not in the form of rules. Further it is said definitely in paragraph 7 of the memorandum that necessary amendments to the State Civil Service Regulations would be issued in due course. It is one thing to issue rules and thereafter incorpo-rate them in the Civil Service Regulations, it is quite another thing to issue memorandum of this nature which is merely letter from Government to all the Collectors with the specific direction that necessary amendments to the State Civil Service Regulations will be issued in due course. It is true that the letter says that the order will have effect from March I, 1963, but that does not make the memorandum of the State Government rule issued under Art. 309, when it is said in the memorandum itself that r.ecessary amendments to the State Civil Service Regulations will be issued in due course. We hav~ already set out the relevant parts of the memorandum and the very first sentence shows that the memoran-dum is merely an executive direction and not ruJ;!, for we cannot understand how rule could be in the following words, namely-"The State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 years." The very form of these words shows that it is conveying an executive decision of th~ State Government to Collectors to be followed by them and is not rule issued under Art. 309 of the Constitution. The form in which rule is issued under Art. 309 is clear from what happened on November 29, 1963 when the amendment was actually made. We have set out that already, and the contrast in the language would show that the latter was

(I) (t9651 I S.C.R. 26.

rule while the former was merely an executive instruction by Government to its Collectors with copy to the High Court, the Finance Department and the Accountant General.

It is however urged that when the rule was framed in November 1963 it stated that it had come into effect from March 1, 1963, and that shows that the memorandum must amount to rule. It is true that the rule said so. It is not necessary for us to decide whether rule of this kind which was notified on December 6, 1963 could be made retrospectively. If it could be made retrospectively, the noti-fication of December 6, 1963 itself would make it retrospective and one need not go to the memorandum for that purpose. If it could not be made retrospectively, the fact that the notification of Decem-c ber6, 1963 said that the rule had comeintoforcefromMarch l, 1963 would still nol make the memorandum rule. As we shall show later the memorandum could be legitimately justified as an executive order of Government in view of F.R. 56 as it was up to February 28, 1963. We therefore see no reason to hold that this memorandum ofFebruary28, 1963, which was never published in the Gazette, which was in the form of letter addressed to Collectors with copy to the High Court, the Finance Department and the Accountant General and which itself said that necessary amendment to the State Civil Service Regulations will be issued in due course, was anything more than mere executive instruction of Government. If there was any doubt about the matter, it is in our opinion removed by what happened when the amendment to F.R. 56 was made and published on December 6, 1963. That amendment has been set out by us above. It says nothing about what is contained in paragraph 5 of the memorandum. If it was the intention of Government that the first part of para 5 of the memorandum should also form part of the rule, we fail to see why that was not inserted as note, proviso or explanation to F.R. 56 when it was in terms amended on November 29, 1963and theamendment was published intheGazette of December 6, 1963. The omission of the first part of paragraph 5 from the notification is itself an indieation that the memorandum of February 28, 1963 contained mere executive instructions. It may be that later Government decided not to include the first part of paragraph 5 in the rule and therefore it did not find place in the amendment of November 29. The analogy that the High Court has drawn between the Resolution of November 15, 1919 which was discussed in Shyamlal' s case ([1]) does not therefore apply and we are of opinion that the memorandum of February 28, 1963 contained merely executive instructions.

The rule framed on the basjs of these executive instructions does not contain the first part of paragraph .5. Apparently the Govern-ment dropped the idea of retiring compulsorily Government ser-(1) [l 955] l S. C.R. 26.

vants after they had attained the age of 55 years on three months' notice; otherwise we do not see why this was not included in the amendment when it was published on December 6, 1963. We may note in contrast that the contents of para 3 of the memorandum were incorporated in the rule. We therefore hold that the memo-randum of February 28, 1963 does not amount to rules under Art. 309; it contains merely executive instructions, and the only rule which the Government has made on the question of superannuation is by the notification of December 6, 1963. That rule would apply to the appellant and it does not empower the Government to retire Government servants over the age of 55 years on three months' notice without assigning any reason. As this rule would apply to the appellant from the date it came into force, the notice which had been served retiring him from December 31, 1963 must fall in the face of the rule published on December 6, 1963. · Then it is urged that if the memorandum of February 28, 1963 does not amount to rules under Art. 309, the appellant would have to retire in August 1963 and therefore could not take advantage of the rule published on December 6, 1963 filling the age of retire-ment at 58. We are of'opinion that there is no force in this conten-tion. Fundamental Rule 56, as it existed before March I, 1963, provided 55 years as the age of retirement. It further provided that Government servant might bC retained in service after that date with the sanction of the local Government on public grounds which ~be~~in~~~he~~be~~~~ age of 60 years except in very special circumstances. It is clear therefore that it was open to Government to extend the date of re-tirement of Government servant under F.R. 56 (a) or 56 (aa), if it so desired. It is true that the extension contemplated by this role was generally for individuals and an individual order is passed in such case. But we see nothing illegal if the Government came to the conclusion generally that services of all Government servants should be retained till the age of 58 in public interest. In such case general order would be enough and no individual orders need be passed. We are of opinion that the memorandum of February, 28, 1963 is merely in the nature of such general order of extension of service by Government under F.R. 56 as it existed on that date. It seems that the Government thought it proper in the public in-terest to retain all Government servants up to the age of 58 under .R. 56 and these executive instructions must be taken to provide such retention till proper rule, as envisaged in the memorandum, came to be made. As we have indicated already, we see nothing in F.R. 56 as it was which would in any way bar the Government from passing such general order retaining the services of all Govern-ment servants up to the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that

services of all Government servants schould be retained up to the· age of 58 years, we cannot see why the Government cannot pass general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We theerfore read the executive instructions contained in the memorandum as amoun-ting to an order of Government retaining the services of all Govern-B ment servants up to the age of 58 years subject to the conditions prescribed in the memorandum till an appropriate rule as to age of superannuation is framed. Therefore, the appellant would conti-nue in service after he attained the age of 55 years in August 1963. But when actually the rule came to be framed on November 29, 1963 it dropped the conditions mentioned in the memorandum; thereafter it is that rule which would apply to him after it was published on December 6, 1963, and as that rule contained no reservation of any power in Government to retire Government servant on three months' notice without assigning any reason after the age of S5 • years, the notice issued to the appellant must fall .

Lastly, it is urged that the appellant could be retired under the All India Services (Death-cum-Retirement Benefits) Rules, 1958. It is urged that those rules apply to District Judges in view of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. Rule 7(2) thereof provides that "the Rules and other provisions relating to pension and gratu-ity which apply to officers holding superior posts in the cadre of the Indian Administrative Service shall apply mutatis mutandis to District Judges also." We are ofopinion that this provision can only take in the rules which applied to officers holding superior posts in the cadre of the Indian Administrative Service on the date it came into force in 1956. The rule does not say that all future amendments to the Rules relating to officers holding superior posts in the cadre of the Indian Administrative Service shall also apply to District Judges appointed under the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. In these circumstances the respondent cannot take advantage of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, particularly of rule which came into force in 1963.

Our attention has also been drawn to the Madhya Pradesh New Pension Rules, 1951. But those rules do not apply to District Judges. Further in any case the provision with respect to retiring at the age of 55 years on three months' notice was introduced in those rules in August-September 1964, and the Government could not therefore take advantage of that rule at the time when the appel-lant was retired. .

We therefore allow the appeal, set aside the order of the High Court and quash the order of retirement passed in this case. The appellant will be deemed to have continued in the service

of the Government in spite of that order. As however the appellant attained the age of 58 years in August 1966. it is not possible now to direct that he should be put back in service. But he will be entitled to such bcnefiL~ as may accrue now to him by virtue of the success of the writ petition. The appellant will get his costs from the State throughout.

Appeal a/lo\\'ed.