PETITIONER: I.N.SAKSENA Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 30/01/1967 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. RAMASWAMI, V. CITATION: 1967 AIR 1264 1967 SCR (2) 496 CITATOR INFO : RF 1970 SC1314 (12,13) R 1971 SC2151 (17,18,19) RF 1971 SC2369 (11) R 1976 SC2547 (24) RF 1980 SC1242 (11) R 1984 SC 636 (11) D 1990 SC1368 (20A) ACT: Constitution of India, 1950, Arts. 309 and 311-State Government memorandum raising age of retirement of its servants from 55 to 58 years--Provision for earlier compulsory retirement of 'unsuitable' employees--order of compulsory retirement containing no express words of stigma--Stigma whether can be inferred from provisions of memorandum--Such compulsory retirement whether amounts to removal within meaning of Art. 311-Rules in memorandum whether rules under Art. 309. Madya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955, r. 7(2)-Rule whether makes All India Services (Death-cum--Retirement Benefits) Rules, 1958 applicable to District Judges in Madhya Pradesh. HEADNOTE: On February 28, 1963 the Government of Madhya Pradesh issued a memorandum whereby the age of retirement of its employees was raised from 55 to 58 years. Clause 5 of the memorandum however said that the appointing authority may require a Government servant to retire after be attained the age of 55 years on three months' notice without giving any reasons. The clause further said that this power was normally to be used to weed out unsuitable employees. The appellant who was a District and Sessions Judge in the service of the State Government would normally have retired at the age of 55 years in August 1963, but under the above memorandum his services 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, a notification was issued by the State Government amending rule 56 of the Fundamental Rules applicable to the State of Madhya Pradesh. By the amended F.R. 56 the age of retirement of Government servants was raised to 58 years with effect from March 1, 1963. All the provisions of cl. 5 of the aforesaid memorandum of February 28, 1963 were not incorporated into the new rule by this amendment. The appellant filed a writ petition in the High Court challenging the order compulsorily retiring him on December 31, 1963. It was rejected and the appellant came, with certificate, to this Court. The questions that fell for consideration were : (i) Did the order compulsorily retiring the appellant cast a stigma on him in view of the language of cl. 5 of the memorandum and if so whether Art. 311 of the Constitution was attracted ? (ii) Was the Memorandum a, rule under Art. 309 of the Constitution ? (iii) If it_was not a rule, would not the appellant be liable to retire in August 1963? (iv) Were the All India Services (Death-cum-Retirement Benefits) Rules, 1958 applicable to the appellant by virtue of r. 7(2) of the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955 ? HELD (i) Where there are no express words in the order of compulsory retirement itself which would throw a stigma on the Government servant, the Court would not delve into Secretariat files to discover whether some kind of stigma could be inferred on such research. Since in the present case there were no words of stigma in the order compulsorily retir- 497 ing the appellant, there was no removal requiring action under Art. 311 of the Constitution. [501 E; 502 A] Jagdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 and State of U.P. v. M, M. 'Nagar [1967] 2 S.C.R. 333, distinguished. (ii) The memorandum of February 28, 1963 contained merely executive instructions and was not a rule under Art. 309 of the Constitution. The only rule which the Government had made on the question of superannuation was by the notification of December 6, 1963. This rule would apply to the appellant and it did 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. [504 B-C] Shyam Lal v. State of U.P. [1955] 1 S.C.R. '26, distinguished.. (iii) Though ordinarily the power of Government to extend the services of Government servants, as contemplated by the then existing F.R 56 is to be exercised in individual case under individual orders, there is nothing to prevent the Government passing a general order if it decides that all 'Government servants be retained up to a certain a . The memorandum of February 28, 1963 amounted to an order of Government under the then existing F.R. 56, retaining the services of all Government 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 superannuation was framed. Therefore under this memorandum the appellant became entitled to continue in service beyond the age of 55 years and consequently he did not have to retire in August 1963. [504 F-505 C] (iv) Rule 7(2) of the Madhya Pradesh Judicial Service Rules, 1955 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 amendments to the rules relating to officers holding superior posts in the cadre of the Indian Administrative Service would also apply to District Judges. In these circumstances the respondent could not take advantage of the All India Service Rules, 1958, particularly of a rule which came into force in 1963. [505 E-F] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 670 of
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, Ai. N. Shroff and I N. Shroff, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal on a certificate granted by
the High Court of Madhya Pradesh and arises in the following
circumstances. The appellant was in the service of the
State of Madhya Pradesh as a District and Sessions Judge.
He was born on August
498
22, 1908 and would in the normal course have retired on
completing the age of 55 years in August 1963. But on
February 28, 1963, the Government of Madhya Pradesh issued a
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………………..
2. . . . . .
3. . . . . .
4. . . . . .
5. 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
reasons……………. the power will
normally be exercised to weed out unsuitable
employees after they have attained the age of
55 years. A Government servant may also after
attaining the age of 55 years voluntarily
retire after giving three months’ notice, to
the appointing authority.
6. These orders will have effect from the
1st March, 1963.
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 appellant in the following terms
“In pursuance of the orders contained in
General Administration Department memorandum
No. 433-258-1 (iii)/63, dated the 28th
February, 1963, the State Government have
decided to retire you with effect from the
afternoon of the 31st December, 1963.”
This order was obviously in terms of the fifth paragraph of,
the memorandum which said that “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.”
499
On November 29, 1963 a 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 amendments 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
a new Rule 56, namely :-
“F. R. 56 :-The date of compulsory retirement
of a Government servant, other than a Class IV
employee, 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 retirement 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.”
“The date of retirement of a Class IV
Government servant is the date on which he
attains the age of 60 years.
“The rule has come into, effect from 1st
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 appointing authority to require a Government servant to
retire after he attains the age of 55 years on three months’
notice without assigning any reason. Thereafter the
appellant was retired. He then filed a writ petition on
March 24, 1964 challenging the order retiring him. His
contention was two-fold, namely-(1) that the rule as it
stood after the amendment of November 29, 1963, published in
the Gazette of December 6, 1963, contained no provision
reserving power in Government to retire a 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 retired on December 31, 1963 in the face of the
rules, and (ii) that as the order of his retirement cast a
stigma on him it amounted to his removal, and therefore
action under Article 311 of the Constitution 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
2Sup.CI/67-3
500
was necessary, (ii) that the memorandum of February 28, 1963
was in itself a rule and therefore the appellant was rightly
retired in view of paragraph 5 of that memorandum (iii) that
if the memorandum was not a 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-cum-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
memorandum of February 28, 1963 was in itself a 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 a rule, the appellant could not have
continued in service after August 1963 in view of the old
rule and could not therefore get the benefit 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 a certificate
to the appellant as prayed by him, and that is how the
matter has come before us.
The first point that the appellant has raised is that the
order in question requiring him to retire cast a stigma on
him and therefore it amounted to removing him from service
and action under Art. 311 was required. In this connection
reliance has been placed on Jagdish Mitter v. the Union of
India.(1) In that case the order was in these terms
“Shri Jagdish Mitter, a temporary 2nd Division
Clerk of this office having been found
undesirable to be retained in Government
service is hereby served with a month’s notice
of discharge with effect from November 1,
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 a stigma on him, and
in that sense must be held to be an order of dismissal and
not a mere order of discharge. 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 a
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
(1) A.I.R. 1964. S. C. 449.
(2) [1967] 2 S.C.R. 333.
501
has consistently held that where , the order directing
compulsory retirement expressly contains words which cast a
stigmaon a Government servant, the order is equivalent to an
order of removal and action under Art. 311 is necessary.
But we asked learned counsel for the appellant to point out
any case of this Court where in the absence of any express
words in the order itself casting stigma on a Government
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 order and then infer that a 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
the 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 a Government
servant to retire compulsorily contains express words from
which a stigma can be inferred, that order will amount to
removal within the meaning of Art. 31 1. 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 fore-
going 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.”
There is no stigma here. The second part to which the
appellant refers is nothing more than a 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 a Government
servant after he attains the age of 55 years on three
months’ notice without assigning 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 a Government servant
is compulsorily retired before he reaches the age of
superannuation is in itself a stigma. But this is against
the consistent view of the Court that if the order of
compulsory retirement before the age
502
of superannuation contains no words of stigma it cannot be
held to be a removal requiring action under Art. 311.
This brings us to the next question, viz., whether the
memorandum itself amounts to a rule under Art. 309 of the
Constitution as held by the High Court. The High Court
seems to have relied in this connection on the judgment of
this Court in Shyam Lai v. the State of U.P.(1) where a
Resolution of November 15, 1919 was held to be a 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 Resolution
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 has 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 a 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 incorporate them in the Civil Service
Regulations, it is quite another thing to issue a memorandum
of this nature which is merely a 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 1, 1963, but
that does not make the memorandum of the State Government a
rule issued under Art. 309, when it is said in the
memorandum itself that necessary amendments to the State
Civil Service Regulations will be issued in due course. We
have already set out the relevant parts of the memorandum
and the very first sentence shows that the memorandum is
merely an executive direction and not a rule, for we cannot
understand how a 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 the State
Government to Collectors to be followed by them and is not a
rule issued under Art. 309 of the Constitution. The form in
which a 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
(1) [1965] 1 S.C.R. 26.
503
a rule while the former was merely an executive instruction
by Government to its Collectors with a 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 a rule. It is true that the rule said so. It is
not necessary for us to decide whether a rule of this kind
which was notified on December 6, 1963 could be made
retrospectively. If it could be made retrospectively, the
notification 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 December 6, 1963 said that the rule
had come into force from March 1, 1963 would still not make
the memorandum a 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 of February 28, 1963, which was never
published in the Gazette, which was in the form of a letter
addressed to Collectors with a 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 a 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 a part of the
rule, we fail to see why that was not inserted as a note,
proviso or explanation to F.R. 56 when it was in terms
amended on .November 29, 1963 and the amendment was
published in the Gazette of December 6, 1963. The omission
of the first part of paragraph 5 from the notification is
itself an indication 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 basis of these executive instructions
does -not contain the first part of paragraph 5. Apparently
the Government dropped the idea of retiring compulsorily
Government ser-
(1) [1955] 1 S.C.R. 26.
504
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 memorandum 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 fixing
the age of retirement at 58. We are of opinion. that there
is no force in this contention. Fundamental Rule 56, as it
existed before March 1, 1963, provided 55 years as the age
of retirement. It further provided that a Government
servant might be retained in service after that date with
the sanction of the local Government on public grounds which
must be recorded in writing, but he must not be retained
after the age of 60 years except in very special
circumstances. It is clear therefore that it was open to
Government to extend the date of retirement of a Government
servant under F.R. 56 (a) or 56 (aa), if it so desired. It
is true that the extension contemplated by this rule was
generally for individuals and an individual order is passed
in such a 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 a case a 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 a 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 interest to retain all Government servants up to the
age of 58 under F.R. 56 and these executive instructions
must be taken to provide such retention till a 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 a
general order retaining the services of all Government
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
505
services of all Government servants should be retained up to
the age of 58 years, we cannot see why the Government cannot
pass a general order in anticipation of the relevant rule
being amended raising the age of retirement in the public
interest. We therefore read the executive instructions
contained in the memorandum as amounting to an order of
Government retaining the services of all Government 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 continue 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 a Government servant on three
months’ notice without assigning any reason after the age of
55 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 gratuity 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 of opinion 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
a 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 appellant 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
506
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 benefits as may
accrue now to him by virtue of the success% of the writ
petition. The appellant will get his costs from the State 1
throughout.
G.C.
Appeal allowed.
507