TAKHATRAY SHIVDATRAY MANKAD versus STATE OF GUJARAT

TAKHATRAY SIDVDATRAY MANKAD

STATE OF GUJARAT

April 9, 1969

[J. C. SHAH, V. RAMASWAM! AND A. N. GROVER, JJ.]

Saurashtra Co\•tnanting States Serve.nu (Superannuation age) Rr1le1, 19SS-Flxing at• of "''"""'"' al SS Y•ars unl.ss for sp.cial r"1SOns oth"· wlu 'directed by Govt.-These u:ords 111tcn that retirement QJlt can bt utended beyond SS years-Rule h'OUid be Invalid if lnterpWed as givir.~ pawer to Govt. to retire person ~rlier than 55 years because r~ does not lay d<111·n n1inimu11: period of service-Thct interpretation sho11!d b~ placed 14•/Jicli 11z.akes Rn/es valid and not invalid-Conditions were varied to disadvantage when r. 16l(c) (2) (ii) (I) of Bombay Civil Sen·ice Ru~s, 1959 'k'as applied to person previously governed by Sawashtra Rule-When done without a.'isenl of President this was in t:iolation of s. 115(7) of the States Reori:anisation Act, 19S6.

The appellant originally joined the service of the Stale of Junaradh in 1934 and \vas after the mergt!r of that State in Saurashtra confirmcJ in September. 1956 as an executive engineer in the service of the latter State. Rule 3 ( i) of the Saur"'htra Covenanting States Servants (Superan· nuation age) Rules 1955 provided: "A Govt. servant shall, unless for special reasons otherwise directed by Govt. retire from sc'rvicc on his complctin~ 55 years of age." After the merger of Saurashtra in the bilingual Slate of Bombay the old Bombay Civil Service Rules we?e applied to Saurashtra area ""-ith effect from January 7, 1957. On July I. 19S9 the Bombay Civil Service Rules, 1959 were promulgated. Ac.:nrd· ing tor. 161(c)(2)(ii)(I) the age of retirement for class I Engineer; 10 the State Service v.·as fixed ~t 55 years but it y..·as further laid Jown that they "may be required by the Government to retire on reaching the age of 50 years, if they have attained to the rank of Superintending Enginc.:r." On the formation of the State of Gujarat the appellant's services \VCrl" transferred 10 that State hut the Bombay Rules continued to apply. Und<r the Bombay Ruic aforesaid, namely, r. 161 (c)(2)(ii)( l) the Government of the Stale of Gujarat retired the appellant at the age of about 53 re•" The appellant filed writ petition in the High Court. The Hi~h ('.ourt took into account s. 115(71 of the Slates Reorganisation Act, !956 ~ut held that since the Saurashtra Rule 3(i) also empowered the Slate Govern-ment to retire the appellant at an age earlier than 55 years thcr'! ":~.; no variation of condition'.'; of service to hi.~ disadvantage undet the Bomh~v Rule and therefore the latter rule was not invalid for want of Presidcotiitl assent. 'fhe High Court took the view that the expression "unless fv:-spccia1 reasons otherwise directed by Government" in r. 3(i) of the Saun1shtr;1 Rulec-; meant that the Government could for special reason.., rctir~· .1 Govcrnmcrit servant before he had attained the normal ~u~r:1n­nuatton ~gc of 55 years. Against the l~igh Coort's judgment dismi~\ing his writ petition the appellant came by special leave, to this Court

HELD : Rule 3(i) of the Saurashtra Rules. if construed Or inter· pretcd in the manner in which it had been done by the Hi~h Court, would bring it into direct conflict with Motl Ram Dtka's case as well .. other cases decided by this Court. In Motl Ram Deka's case it was laid down that if any ru1e .permitted the appropriate authorities to retire cC1mpul-sorily civil servant without imposing limitation in that behalf that such

civil servant should have put in minimum period of service, that rule would be invalid and the so-called retirement ordered under the said rule would amount to remcval of the civil servant within the meaning of Art. 311(2) of the Constitution. The principle is that the rule relating to compulsory retirement of Government servant must not only contain the outside limit of superannuation but there must also be provision for reasonably long period of qualified service which must be indicated with sufficient clarity. For exµmple if 55 years have been specified as the age of superannuation antl 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 bas attained the age of 50 years or he has put in service for period of 25 years. [248 G-249 G]

On the above principle rule 3 (i) of the Saurashtra Rules would have IG be declared invalid if the expfcssion "unless for special reasons otherwise directed by Government" is so construed as to give power to enter compulsory retirement eve::i before attaining the ·age of 55 years. sta-tutory rule, however, should be so interpreted as to make it valid and not invalid. Tile correct interpretation of Rule 3(i) is that it gives ·power to the Government to allow, Government servant to remain in service even beyond the age of 55 years for special reasons; so constru~d the Rule would not be invalid and the appellant could not under it have been retired be'fore he had attained the age of 55 years. By applying die. 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 Ji'oviso to s. 115 (7) of the States Reorganisation Act, 1956, the Bombay Rule could not be made applicable to the appellant. [249 G-250 C]

The appellant was thus entitled to remain in service until he attained the age of SS years and the impugned order directing hi• retirement was invalid and ineffective. [250 E--F]

Bholanath !. Thaker v. St<te of Saurashtra, A.l.R. (1954) S.C. 680, refer'red to.

Moti Ram Deka etc. v. General Manager N.E.F. Railways MaUgaon,. Pcndu etc. [1964] 5 S.C.R. 683, State of Bombay v. Saubhagchand M. poshi, [1958] S.C.R. 571, P. Balakotaiah v. Union of India. [1958] S.C.R. 1052, Da/ip Singh v. Statt of Punjab, [1961] 1 S.C.R. 88 and Gurdev Singh Sidhu v. State of Punjab & !4nr. [1964] 7 S.C.R. 587, applied. CIVIL APPBLLATJ! JUlllSDICTION : Civil Appeal No. 409 of 1966.

Appeal by special leave from the judgment and order dated July 5, 1963, of the Gujarat High Court in Special Civil Applica-G tion No. 827 of 1961.

R. Gopalakrishnan, for the appellant.

G. L. Sanghi, S. K. Dholakia and R. N. Sachthey, for the respondent.

The Judgment of the Couri was deliveted by

Grover, J. This is an appeal by special leave from judgment of the Gujarat High Court dismissing petition under L83Sup.Cl/69-2

Art. 226 of the Constitution by whi~h tho order, retiring the appellant from service before he had attained the age of 55 years, )lad been challenged.

The appellant had joined the service of the erstwhile State of Junagadh on August 1, 1934. That State merged into the State of Saurashtra on January 20, 1949. The appellant continued to remain in the service of that State having been confirmed as an Executive Engineer on September 24, 1956. On the merger of Sauras}ltra in the new billingual State of Bombay on November l, 19S6, the appellant was absorbed in the service of the said State. On the bifurcation of the State of Bombay on May l, 1960, he was assigned to the State of Gujarat and was absorbed as permanent Executive Engineer there. On October 12, 1961 the State of Gujarat made an order retiring the appellant from the service with effect from January 12, 1962. On that date he had not attained the age of 55 years but he was about 53 years old. This order was made in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules, 1959. The order of retirement was challenged by the appellant by means of writ petition which was dismissed.

It is common ground that when the appellant was in the -service of the erstwhile State of Junagadh his conditions of service were governed by the Junagadh State Pension and Par-washi Rules which had been made by the 71!ler of the State who exercised sovereign legislative powers. According to those rules the age of superannuation was 60 years. Before the inclusion of the Junagadh State in the State of Saurashtra the Rajpramukh had promulgated an Ordinance cailed the Saurashtra State ~gu­lation of Government Ordinance 1948. By s. 4 of that Ordinance all the Jaws in force in the covenanting States prior to their integration were continued in force in the State of Saurashtra until repealed or amended under s. 5. Notwithstanding this th.~ Saurashtra Government adopted and applied the Bombay Civil Service Rules which were then in force in the State of Bombay by an order dated September 23, 1948. This Court in Bho/anath J. Thaker v. The State of Saurashtra(') held that the Rules as regards the age of superannuation which prevailed in the coven-anting State which in that case was the State of Wadhwan conti-nued to govern those government servants who had come from that State and had been absorbed in the services of the State of Saurashtra. In view of that <!ecision the State of Saurashtra made the Saurashtra Covenanting State Servants (Superannuation age) Rules, 1955, hereainaftcr called the "Saurashtra Rules'', in exercise of the power conferred by Art. 309 of the Consti-tution. Ruic 3(i) provided: (I) A.i.R. 1954 s.c. 680.

"A Govt. servant shall, unless for special reasons otherwise directed by Govt. retire from service on his completing 55 years of age."

After the integration of the Saurashtra State into the State of Bombay resolution was passed by the Government on Janu-ary 7, 1957 applying the old Bombay Civil Service Rules to Saurashtra area. On July 1, 1959 the Bombay Civil Service Rules 1959, hereinafter called the "Bombay Rules" were pro-mulgated under Art. 309 of the Constitution. Clause (c)(2)-(ii)(l) of Rule 161 is as follows: "Except as otherwise provided in this Sub-clause, Government servants in the Bombay Servi'ce of Engi-neers, Class I, must retire on reaching the age of 55 years, and may be required by the Government to re-tire on reaching the age of 50 years, if they have attained to the rank of Superintending Engineer."

It was under· this rule that the order retiring the appellant was made. ·

In the High Court the writ petition filed by the appellant was heard and disposed of with two other similar petitions in which identical questions had been raised. number of points were raised· in the High C01,1rt but it is unnecessary to refer io them because the. questions on which the present appeal can be dis-posed of are only.two : (1) Whether the appellant was governed by the Saurashtra Rules or the Bombay Rules and (2) even if the Saurashfra Rules were applicable could the retirement of the appellant be ordered before he had attained the age of 55 years. The High Court rightly looked at the provisions of s. 115(7) of the States Reorganisation Act 1956. It is provided thereby that nothing in the section shall be deemed to affect after the appoint-ed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the condi-tions of service of persons serving in connection with the affairs of the Union or any State. The proviso is important and Jays down that the conditions of service applicable immediately be-G fore the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) (of s. 115) shall not be varied to his disadvantage except with the previous approval in 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 be-H fore 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 ob-tained. It was conceded before the High Court by the learned

Advocate General, who appeared for the State, that no previous approval of the Central Government had been obtained to vary the conditions of service of those public servants who were serv-ing in the State of Saurashtra until November I, 1956. The High Court in this situation proceeded to decide whether by the application of Rule 161 of the Bombay Rules the conditions of service of the appellant contained in the Saurashtra Rules had been varied to his disadvantage. It was argued on behalf of the appellant that the expression "unless for special reasons otherwise directed by Government" in Rule 3 (i) of the Saurashtra Rules provided for extension of the age of superannuation beyond 55 years and not for reduction thereof. The Advocate General had argued that what was meant by the aforesaid words was that Gov-ernment could, for special reasons, retire Government servant before he had attained the age of .55 years which was the normal superannuation age. U that was so Rule 161 ( c) ( 2 )(ii) ( I ) of the Bombay Rules could not be regarded as having varied the. conditions of service contained in the Saurashtra Rules to the disadvantage of the Government servants. The High Court was of the view that while framing the Saurashtra Rules the drafts-men who must have been well aware of the then Bombay Civil Service Rules which were in the same terms as Rule 161 of the Bombay Rules could not have framed the clause in such manner as to introduce an element of discrimination between Executive Engineers who had been absorbed from Covenanting State and those who had been appointed or recruited directly by the State Government In the opinion of the High Court even under the Saurashtra Rules retirement could be ordered before person had attained the age of 55 years. It was, therefore, held that the conditions in Rule 16l{c)(2){ii) of the Bobmay Rules had not been shown to be less advantageous or disadvaniageous 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 s. 115(7) of the States Re-organisaiion Act 1956 did not stand in the way of the applicabi-lity of the Bombay Rules.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 Couri, would bring it into direct conflict with the law laid down by this Court in Moti Ram Deka etc. v. General Manager, N.E.F. ·Railways Maligaon, Pandu etc. ([1]), which is judgment of bench of seven judges of this court. One of the matters which came up for consideration was the effect of service rule which permitted compulsory retirement without fixing the minimum period of ser-vice after which the rule could be invoked. According to the Cn i!964J 5 S. C. R. 683.

observations of Venkatarama Ayyar, J., in The State of Bombay v. -Saub_hagchand M. Doshi(') the application of such rule would be "tantamount to dismissal or removal under Art. 311 (2) of the Constitution. There were _cJlrtain other decisions of this Court which wert; relevant on "this_ point, viz. P. Balakotaiah v. The UoiQn pf India & Ors.(') and D_q/ip,Singhv. The State. of Punjab('). All these decisions were considered in Moti Ram Deka's case(4l and the true legal position was stated in the ;najo-rity judgment at page 726 thus :

. " ..... "We think. that if any Rule permits the appro-priate authority to retire compulsorily civil servant without imposing limitation in that behalf that such ·~ civil servant should have put in 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 Art. 311 (2)."

In Gurdev Singh Sidhu v. State of Punjab & Anr. ([5]), it _was D,. pointed out that the orily two exceptions to the protection afford-ed by Art. 311(2) were,-(1) where permanent public ser-vant was asked to retire on the ground that he had reache4 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 reasonably long period of qualified service after which alone compulsory retire-E ment could be valid. The basis on which this .view has proceed-ed is that for efficient administration it is necessary that public servants should enjoy sense of s.ecurity of tenure and that the iermination of service of l)Ublic servant under rule which does not lay down a· reasonably long period of qualified service is in substance removal under Art. 311 (2). The principle is that the· rule relating to compulsory retirement of Government servant must not only contain the outside limit of superannuation but there must also be provision for reasonably Jong period of qualified service which must .. be indicated with sufficient clarity. To give an example, if 55 years ha".e been specified as the age of superannuation and if it is sought to refire 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 )le ha~ put in service for period of 25 years.

Now Rule 3 (i) of the Saurashtra Rules will have to be dee-. Jared invalid if the expression "unless for special reasons other-

[!no) I s.c.il.

SUl'REME COURT REPORTS '

wise directed by Government" ·.is so construed as· to give power to order compulsory retirement even before attaining the age of :;5 years. It is well-known that Jaw or·a statutory r11le should be so interpreted as to make it valid and riot invalid. If this expression is confined to what was argued 'before the High Court, namely, that it gives power tp the Government to alJow Govern-ment 3ervant to remain in service even .beyond the age of 55 years for special reasons the rule will nbt be rendered invalid and its validity will not be put iri jeopardy. So. construed it is apparent that the appellant could not have bePn. retired compulsorily under the Saurashtra Rules before he had attained the age of 55 years. By applying the Bombay rule hi> ·conditions of service were varied to his disadvantage because he could then be com-pulsorily retired as s9on >is he attained the; age of 50 years. As the previous approval of the.Central Governueht was not obtained in accordance with the proviso to s. 115(7) of the States Reor-ganisation Act 1956, the Bombay. rule could n·ot be made _appli-cable to the appellant.·

Cour.sel for the State pressed us to look into certain docu-ments 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 Bom-bay rules. But none· of these documents were .referred to before the Hi_gh Court and itt the presence of Clear concession by the iearned Advocate General we see no justification fqr acceding to· such request.

In ·this view of the matter this appeal must succeed and it is hereby.. allowed with .costs in thi~· Court.. It is declared t':a.t the appellant was entitled to remain in service until he attained the a)le of 55 years and that the· impugned .order directing his retirement was invalid and ineffective. ·

Avpeal al/owect.