PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
R. NARASIMHAN
DATE OF JUDGMENT01/08/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
DUTT, M.M. (J)
CITATION:
1988 AIR 1733 1988 SCR Supl. (1) 741
1988 SCC Supl. 636 JT 1988 (3) 304
1988 SCALE (2)311
CITATOR INFO :
D 1989 SC2262 (9,10)
RF 1990 SC 450 (4)
ACT:
Civil Services: Indian Railway Establishment Code, Rule
2046(h) and (k)/Railway Pension Manual, 1950 Para 620-
Railway Servant-Compulsory retirement of under para 620-
Validity of.
Constitution of India, Articles 73 & 309: Rule made in
exercise of executive power under Art. 73-Not inconsistent
with statutory provision or rule framed under proviso to
Art. 309-Held-Should be treated as supplementary to.
HEADNOTE:
Sub-para (ii) of para 620 of the Railway Pension Manual
empowers the competent authority to remove a railway servant
from service any time after he has completed 30 years of
qualifying service. Clause (h) of Rule 2046 (F.R. 56) of the
Indian Railway Establishment Code empowers the appointing
authority to retire in Public interest (i) Class I and Class
II railway servant, who had entered Government Service
before the age of 35 years, after he has attained the age of
fifty years, and (ii) in any other case after he has
attained the age of 55 years. Clause (k) of the said rule
confers absolute right on the appointing authority to retire
a railway servant in Class III service, who is not governed
by the Pension Rules, after he has completed thirty years of
service.
The respondent, Class III servant, who had joined
service in 1950 was compulsorily retired from service by the
competent authority in the Railway Administration in
exercise of powers under para 620 of the Manual on 14th May,
1982. He was born on 23.9.1929 and was to continue in
service till he completed 58 years of service. The writ
petition filed by him questioning the validity of the said
order and also of para 620 of the Manual was dismissed by
the Single Judge.
In appeal before the Division Bench it was contended
for him that (i) Rule 2406 of the Rules having been framed
under the proviso to Article 309 of the Constitution and
being a compendious code with regard to compulsory
retirement that provision alone could be invoked and not
para 620 of the Manual which is in the nature of an
executive
742
order, (ii) since rule 2046(h) opens with a non-obstante
clause and para 620 of the Manual does not state that the
said rule shall prevail notwithsanding any other provision
to the contrary, rule 2046(h) of the Rules cannot be made
subject to para 620 of the Manual, and (iii) there being two
separate provisions with regard to compulsory retirement,
namely clause (h) of rule 2046 of the Rules and para 620 of
the Manual, in the absence of any guidance as to when and
which rule could be invoked in a given case, both the
provisions would be inapplicable and he could not be
compulsorily retired. The High Court held that para 620 of
the Railway Pension Manual was void and ineffective. It took
the view that since rule 2046(h) of the Rules was not
applicable, as the respondent had not attained the age of 55
years on the date he was compulsorily retired, he could not
have been compulsorily retired.
Allowing the appeal by special leave and remanding the
case to the High Court,
^
HELD: 1.1 Para 620 of the Railway Pension Manual is
valid. The High Court was not right in taking the view it
did. [749A]
1.2 There is no inconsistency between rule 2046 of the
Rules and para 620 of the Railway Pension Manual. Clause (h)
of rule 2046 of the Rules empowers the competent authority
to retire compulsorily a railway servant on his attaining
the age specified therein. That clause has no reference to
the length of service put in by a railway servant concerned.
Clause (k) of the said rule under which the appointing
authority can retire a person in the public interest after a
railway servant has completed 30 years of service applies to
a railway servant holding a Class III post and who is not
governed by pension rules. Para 620 of the Manual applies to
all railway servants governed by the pension rules. Railway
servants holding Class I or Class II posts who cannot be
retired under clause (k) of rule 2046 of the Rules can be
retired on their completing 30 years of qualifying service
if they are governed by the pension rules. Similarly,
railway servants holding Class III posts and who are
governed by the pension rules to whom clause (k) of rule
2046 of the Rules is not applicable can also be retired on
their completing 30 years of qualifying service. Thus, the
area of operation of para 620 of the Railway Pension Manual
is different from that of clauses (h) and (k) of rule 2046
of the Rules. [748D-G]
1.3 Para 620 of the Railway Pension Manual which has
been framed by the Union Government in exercise of its
executive power under Article 73 of the Constitution should,
therefore, be treated as supple-
743
mentary to rule 2046 of the Rules, and given due effect
since there is no statutory provision or a rule framed under
the proviso to Article 309 of the Constitution which is
inconsistent with it. [748G-H]
2. Since the respondent had raised some other
contentions with regard to the validity of the impugned
order of retirement in the petition and the High Court has
not expressed its opinion on those contentions, the case is
remanded to the Division Bench of the High Court to dispose
of the appeal afresh in the light of the submissions to be
made by the respondent on the other contentions raised by
him. [749C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1583 of
1987.
From the Judgment and Order dated 22.4.1987 of the
Madras High Court in W.A. No. 367 of 1983.
G. Ramaswamy, Additional Solicitor General, P.
Parmeshwaran, B. Parthasarthy for the Appellants.
M.N. Krishnamani and S. Balakrishnan for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH, J. The short question involved in this
case is whether Para 620 of the Manual of Railway Pension
Rules, 1950, (hereinafter referred to as the ‘Railway
Pension Manual’) under which the competent authority is
empowered to retire a railway employee before his normal
date of retirement is for any reason void, ineffective or
unconstitutional.
The respondent, R. Narasimhan, joined the Southern
Railway as a Ticket Collector in the year 1950 and on being
promoted at different stages he was working as a Travelling
Ticket Examiner on 14th of May, 1982 when he was
compulsorily retired from service by the competent authority
in the Railway Administration in exercise of his powers
under Para 2(2) of the Railway Ministry’s Letter dated
8.7.1950 (incorporated as Para 620 of the Railway Pension
Manual). The respondent was born on 23.9.1929 and if the
order of retirement had not been passed, as stated above, he
would have continued in service till he completed 58 years
of age. Aggrieved by the order of retirement, the respondent
filed a Writ Petition in the High Court of Madras in Writ
Petition No. 4079 of 1982 questioning the validity of the
said
744
order and also of Para 620 of the Railway Pension Manual
which empowered the Railway Administration to retire its
employees on their completing 30 years of service. The Writ
Petition was contested by the Railway Administration and
ultimately it was dismissed by the learned Single Judge of
the High Court of Madras. Aggrieved by the judgment of the
learned Single Judge the respondent filed an appeal before
the Division Bench of the High Court in Writ Appeal No. 367
of 1983. The Division Bench held that Para 620 of the
Railway Pension Manual whose validity had been impugned in
the Writ Appeal was void and ineffective and hence the order
of retirement passed by the Railway Administration in
exercise of the power conferred by the said para was liable
to be set aside. Aggrieved by the judgment of the Division
Bench, the Union of India and the Railway Administration
have filed this appeal by special leave.
In order to appreciate the contentions of the parties,
it is necessary to set out the relevant rules governing the
retirement of railway employees. Rule 2046 of the Indian
Railway Establishment Code (hereinafter referred to as ‘the
Rules’) deals with compulsory retirement of railway
servants. The relevant part of the said rule reads thus:
“2046 (F.R. 56).-(a) Except as otherwise provided
in this rule, every railway servant shall retire
on the day he attains the age of fifty-eight
years.
………………………………………
(h) Notwithstanding anything contained in
this rule, the appointing authority shall, if it
is of the opinion that it is in the public
interest to do so, have the absolute right to
retire any railway servant giving him notice of
not less than three months in writing or three
months’ pay and allowances in lieu of such notice-
(i) if he is in Class I or Class II service or
post and had entered Government Service
before attaining the age of thirty-five
years, after he has attained the age of fifty
years.
(ii) in any other case after he has attained the
age of fifty-five years.
(i) Any railway servant may by giving notice of
not
745
less than three months in writing to the
appointing authority retire from service after he
has attained the age of fifty years if he is in
Class I or Class II service or post and had
entered Government service before attaining the
age of thirty-five years, and in all other cases
after he has attained the age of fifty-five years.
………………………………………
(k) Notwithstanding anything contained in
clause (h) the appointing authority shall, if it
is of the opinion that it is in the public
interest to do so, have the absolute right to
retire a railway servant in Class III service or
post who is not governed by any pension rules
after he has completed thirty years’ service by
giving him notice of not less than three months in
writing or three months’ pay and allowances in
lieu of such notice.”
Para 620 of the Railway Pension Manual reads thus:
“620(i). A Railway servant may retire from service
at any time after completing 30 years’ qualifying
service, provided that he shall give in this
behalf a notice in writing to the appropriate
authority, at least three months before the date
on which he wishes to retire.
………………………………………
(ii) The authority competent to remove the
Railway servant from service may also require him
to retire any time after he has completed 30
years’ qualifying service provided that the
authority shall give in this behalf, a notice in
writing to the Railway servant, at least three
months before the date on which he is required to
retire or three months’ pay and allowances in lieu
of such notice.”
There is no dispute that the respondent is governed by
the pension rules as he has exercised his option to be
governed by them. His contentions before the Division Bench
were: (i) Rule 2046 of the Rules having been framed under
the proviso to Article 309 of the Constitution and being a
compendious code relating to a retired railway servant that
provision alone could be invoked for the purpose of
compulsory retirement and not para 620 of the Railway
Pension Manual which is in
746
the nature of an executive order; (ii) Since rule 2046(h) of
the Rules opens with a non obstante clause and para 620 of
the Railway Pension Manual does not state that the said rule
shall prevail notwithstanding any other provision to the
contrary, rule 2046(h) of the Rules cannot be made subject
to para 620 of the Railway Pension Manual; and (iii) there
being two separate provisions with regard to compulsory
retirement, namely clause (h) of rule 2046 of the Rules and
para 620 of the Railway Pension Manual, in the absence of
any guidance as to when and which rule could be invoked in a
given case, both the provisions would be inapplicable and
the respondent could not be compulsorily retired. A reading
of the relevant part of rule 2046 of the Rules and para 620
of the Railway Pension Manual shows that ordinarily every
railway servant has to retire on the date he attains the age
of 58 years. Notwithstanding the said rule the appointing
authority, if it is of the opinion that it is in the public
interest to do so, has the power to retire any railway
servant giving him notice of not less than three months in
writing or three months’ pay and allowances in lieu of such
notice, if he is in Class I or Class II service or post and
had entered Government service before attaining the age of
35 years, after he has attained the age of 50 years and in
any other case after he has attained the age of 55 years.
Similarly a railway servant may by giving notice of not less
than three months in writing to the appointing authority
retire from service if he is in Class I or Class II service
or post and had entered Government service before attaining
the age of 35 years, after he has attained the age of fifty
years, and in all other cases after he has attained the age
of 55 years. These two kinds of retirement are dealt with in
clauses (h) and (i) of rule 2046 of the Rules. The governing
factor in clauses (h) and (i) of rule 2046 is the age of the
employee concerned at the time when it is proposed to retire
him from service or when he wishes to retire from service
voluntarily as the case may be. This rule applies no doubt
to all employees irrespective of the fact whether they are
governed by the pension rules or not. Clause (k) of rule
2046 provides that notwithstanding anything contained in
clause (h) the appointing authority shall, if it is of the
opinion that it is in the public interest to do so, have the
absolute right to retire a railway servant in Class III
service or post who is not governed by any pension rules
after he has completed thirty years’ service by giving him
notice of not less than three months in writing or three
months’ pay and allowances in lieu of such notice. Clause
(1) of rule 2046 of the Rules provides that a railway
servant in Class III service or post who is not governed by
any pension rules, may by giving notice of not less than
three months in writing to the appointing authority, retire
from service after he has completed thirty years’ service.
It may be noted that in clauses (k) and
747
(1) of rule 2046 of the Rules the governing factor is not
the age of the railway servant concerned but the length of
the qualifying service rendered by him. They are applicable
only to a railway servant in Class III service who has
completed 30 years of service in railway administration. If
a railway servant in Class III service has entered the
service during his 21st year he can be retired by the
Government on his completing 30 years of service in his 51st
year or he may elect to retire from service in his 51st year
after completing 30 years of service by following the
prescribed formalities. Clauses (k) and (I) of rule 2046, as
already stated above, do not apply to railway servants who
are governed by pension rules. Para 620 of the Railway
Pension Manual, which is extracted above, contains
provisions corresponding to clauses (k) and (I) of rule 2046
of the Rules. Under sub-para (i) of para 620 a railway
servant governed by the pension rules may retire from
service at any time after completing 30 years of qualifying
service provided that he has given a notice in writing to
the appointing authority three months before the date on
which he wishes to retire. Sub-para (ii) of para 620 of the
Railway Pension Manual, which corresponds to clause (k) of
rule 2046 of the Rules, empowers the competent authority to
remove a railway servant from service any time after he has
completed 30 years of qualifying service provided that the
authority has given in this behalf a notice in writing to
the railway servant at least three months before the date on
which he is required to retire or three months’ pay and
allowances in lieu of such notice. It may also be noted that
while clauses (k) and (1) of rule 2046 of the Rules apply
only to a railway servant in Class III service or post not
governed by any pension rules para 620 of the Railway
Pension Manual applies to all railway servants governed by
the pension rules.
The Division Bench of the High Court has held that para
620 of the Railway Pension Manual was ineffective and
invalid on the ground that it was `unable to see any logic
or reason or any guidance for the purpose of invoking either
one or other of the provisions’ and also has further
observed thus:
“In the circumstances therefore, particularly
in view of the fact that the Railway Establishment
Code is intended to govern the service conditions
of all the individual railway servants and the
Pension Rules are intended only to govern the
determination of pension, and Rule 2046 itself is
in a way of compendious rule relating to
retirement at the age of 58 years and compulsory
retirement earlier we are of the view that the
case is governed by Rule 2046(h) only and not
748
by Rule 620 of the Pension Rules. This is also for
the reason as rightly contended by Mr. N.C.
Raghavachari, learned counsel for the appellant,
that while Rule 2046(k) starts with saying that
notwithstanding anything contained in Clause (h)
there is no such non obstante clause in Rule 620,
nor clause (h) of Rule 2046 is made subject to
Rule 620. In the circumstances, therefore, it is
open to the railway servant to contend that he is
governed by Rule 2046(h) and not Rule 620. In the
absence of any guiding principle specifically, it
is not open to the Department to exercise an
option either to invoke Rule 620 or clause (h) of
Rule 2046.”
Having observed thus, the Division Bench was of the
view that since Rule 2046(h) of the Rules was not
applicable, as the respondent had not attained the age of 55
years on the date when he was compulsorily retired, he could
not have been compulsorily retired. We do not find any
inconsistency between rule 2046 of the Rules and para 620 of
the Railway Pension Manual. As already stated by us clause
(h) of rule 2046 of the Rules empowers the competent
authority to retire compulsorily a railway servant on his
attaining the age specified therein. That clause has no
reference to the length of service put in by a railway
servant concerned. Clause (k) of rule 2046 of the Rules
under which the appointing authority can retire a person in
the public interest after a railway servant has completed 30
years of service applies to a railway servant holding a
Class III post and who is not governed by pension rules.
Para 620 of the Railway Pension Manual applies to all
railway servants governed by the pension rules. Railway
servants holding Class I or Class II posts who cannot be
retired under clause (k) of rule 2046 of the Rules can be
retired on their completing 30 years of qualifying service
if they are governed by the pension rules. Similarly railway
servants holding Class III posts and who are governed by the
pension rules to whom clause (k) of rule 2046 of the Rules
is not applicable can also be retired on their completing 30
years of qualifying service. Thus the area of operation of
para 620 of the Railway Pension Manual is different from
that of clause (h) and (k) of rule 2046 of the Rules. Para
620 of the Railway Pension Manual should be treated as
supplementary to rule 2046 of the Rules. The said para which
has been framed by the Union Government in exercise of its
executive power under Article 73 of the Constitution should
be given due effect since there is no statutory provisions
or a rule framed under the proviso to Article 309 of the
Constitution which is inconsistent with it.
749
We, therefore, overrule the view expressed by the
Division Bench of the High Court on the above question and
uphold the validity of para 620 of the Railway Pension
Manual.
Unfortunately, the case does not end here. It appears
that the respondent had raised some other contentions with
regard to the validity of the impugned order of retirement
in the petition. But the Division Bench of the High Court
has not expressed its opinion on those contentions since it
agreed with the first contention urged on behalf of the
respondent, namely, para 620 of the Railway Pension Manual
was invalid. We are, therefore, constrained to send the case
back to the Division Bench of the High Court to decide the
other questions raised by the respondent. We, therefore, set
aside the judgment passed by the Division Bench of the High
Court and remand the case to the Division Bench of the High
Court to dispose of the appeal afresh in the light of the
submissions to be made by the respondent on the other
contentions raised by him.
The appeal is accordingly disposed of. There is no
order as to costs.
P.S.S. Appeal allowed.
750