{"id":196271,"date":"1967-01-30T00:00:00","date_gmt":"1967-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/i-n-saksena-vs-state-of-madhya-pradesh-on-30-january-1967"},"modified":"2018-11-29T03:56:03","modified_gmt":"2018-11-28T22:26:03","slug":"i-n-saksena-vs-state-of-madhya-pradesh-on-30-january-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/i-n-saksena-vs-state-of-madhya-pradesh-on-30-january-1967","title":{"rendered":"I.N.Saksena vs State Of Madhya Pradesh on 30 January, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
I.N.Saksena vs State Of Madhya Pradesh on 30 January, 1967<\/div>\n
Equivalent citations: 1967 AIR 1264, \t\t 1967 SCR (2) 496<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nI.N.SAKSENA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF  MADHYA PRADESH\n\nDATE OF JUDGMENT:\n30\/01\/1967\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nRAMASWAMI, V.\n\nCITATION:\n 1967 AIR 1264\t\t  1967 SCR  (2) 496\n CITATOR INFO :\n RF\t    1970 SC1314\t (12,13)\n R\t    1971 SC2151\t (17,18,19)\n RF\t    1971 SC2369\t (11)\n R\t    1976 SC2547\t (24)\n RF\t    1980 SC1242\t (11)\n R\t    1984 SC 636\t (11)\n D\t    1990 SC1368\t (20A)\n\n\nACT:\nConstitution  of  India,  1950,\t Arts.\t309  and   311-State\nGovernment  memorandum\traising\t age of\t retirement  of\t its\nservants   from\t 55  to\t 58  years--Provision  for   earlier\ncompulsory  retirement of 'unsuitable'\temployees--order  of\ncompulsory   retirement\t containing  no\t express  words\t  of\nstigma--Stigma\twhether can be inferred from  provisions  of\nmemorandum--Such  compulsory retirement whether\t amounts  to\nremoval\t within\t meaning  of Art.  311-Rules  in  memorandum\nwhether rules under Art. 309.\nMadya Pradesh Judicial Service (Classification,\t Recruitment\nand Conditions of Service) Rules, 1955, r. 7(2)-Rule whether\nmakes  All India Services  (Death-cum--Retirement  Benefits)\nRules, 1958 applicable to District Judges in Madhya Pradesh.\n\n\n\nHEADNOTE:\nOn February 28, 1963 the Government of Madhya Pradesh issued\na memorandum whereby the age of retirement of its  employees\nwas raised from 55 to 58 years.\t Clause 5 of the  memorandum\nhowever\t said  that the appointing authority may  require  a\nGovernment servant to retire after be attained the age of 55\nyears  on three months' notice without giving  any  reasons.\nThe  clause further said that this power was normally to  be\nused  to weed out unsuitable employees.\t The  appellant\t who\nwas  a\tDistrict and Sessions Judge in the  service  of\t the\nState  Government would normally have retired at the age  of\n55 years in August 1963, but under the above memorandum\t his\nservices were extended beyond that date.  In September\t1963\nhowever, Government communicated to him an order that he was\nto  retire  on December 31, 1963.  On December\t6,  1963,  a\nnotification  was  issued by the State\tGovernment  amending\nrule 56 of the Fundamental Rules applicable to the State  of\nMadhya\tPradesh.   By  the  amended  F.R.  56  the  age\t  of\nretirement  of\tGovernment servants was raised to  58  years\nwith effect from March 1, 1963.\t All the provisions of cl. 5\nof  the aforesaid memorandum of February 28, 1963  were\t not\nincorporated  into  the\t new rule by  this  amendment.\t The\nappellant   filed  a  writ  petition  in  the\tHigh   Court\nchallenging the order compulsorily retiring him on  December\n31,  1963.   It was rejected and the  appellant\t came,\twith\ncertificate, to this Court.\nThe questions that fell for consideration were : (i) Did the\norder  compulsorily retiring the appellant cast a stigma  on\nhim  in view of the language of cl. 5 of the memorandum\t and\nif  so whether Art. 311 of the Constitution was attracted  ?\n(ii)  Was  the\tMemorandum a, rule under  Art.\t309  of\t the\nConstitution  ?\t (iii) If it_was not a rule, would  not\t the\nappellant be liable to retire in August 1963? (iv) Were\t the\nAll  India Services (Death-cum-Retirement  Benefits)  Rules,\n1958 applicable to the appellant by virtue of r. 7(2) of the\nMadhya Pradesh Judicial Service (Classification, Recruitment\nand Conditions of Service) Rules, 1955 ?\nHELD (i)  Where there are no express words in the  order  of\ncompulsory  retirement itself which would throw a stigma  on\nthe  Government\t servant,  the Court would  not\t delve\tinto\nSecretariat  files to discover whether some kind  of  stigma\ncould  be inferred on such research.  Since in\tthe  present\ncase there were no words of stigma in the order compulsorily\nretir-\n\t\t\t    497\ning  the  appellant, there was no removal  requiring  action\nunder Art. 311 of the Constitution. [501 E; 502 A]\nJagdish\t Mitter v. Union of India, A.I.R.<\/a> 1964 S.C. 449\t and\nState  of  U.P.\t v.  M,\t M.<\/a>  'Nagar  [1967]  2\tS.C.R.\t333,\ndistinguished.\n(ii) The  memorandum of February 28, 1963  contained  merely\nexecutive instructions and was not a rule under Art. 309  of\nthe  Constitution.  The only rule which the  Government\t had\nmade   on  the\tquestion  of  superannuation  was   by\t the\nnotification of December 6, 1963.  This rule would apply  to\nthe  appellant\tand  it did not empower\t the  Government  to\nretire Government servants over the age of 55 years on three\nmonths'\t notice without assigning any reason.  As this\trule\nwould  apply  to the appellant from the date  it  came\tinto\nforce,\tthe notice which had been served retiring  him\tfrom\nDecember 31, 1963 must fall. [504 B-C]\nShyam\tLal   v.  State\t of  U.P.  [1955]  1   S.C.R.\t'26,\ndistinguished..\n(iii)\t  Though  ordinarily  the  power  of  Government  to\nextend the services of Government servants, as\tcontemplated\nby the then existing F.R 56 is to be exercised in individual\ncase  under individual orders, there is nothing\t to  prevent\nthe  Government passing a general order if it  decides\tthat\nall 'Government servants be retained up to a certain a . The\nmemorandum  of\tFebruary 28, 1963 amounted to  an  order  of\nGovernment  under the then existing F.R. 56,  retaining\t the\nservices  of  all Government servants up to the\t age  of  58\nyears subject to the conditions prescribed in the memorandum\ntill  an appropriate rule as to the, age  of  superannuation\nwas  framed.  Therefore under this memorandum the  appellant\nbecame entitled to continue in service beyond the age of  55\nyears  and consequently he did not have to retire in  August\n1963. [504 F-505 C]\n(iv) Rule 7(2) of the Madhya Pradesh Judicial Service Rules,\n1955  can  only\t take in rules\twhich  applied\tto  officers\nholding\t  superior  posts  in  the  cadre  of\tthe   Indian\nAdministrative\tService\t on the date it came into  force  in\n1956.\tThe Rule does not say that all future amendments  to\nthe rules relating to officers holding superior posts in the\ncadre of the Indian Administrative Service would also  apply\nto District Judges.  In these circumstances  the  respondent\ncould  not  take advantage of the All India  Service  Rules,\n1958, particularly of a rule which came into force in  1963.\n[505 E-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal No.  670\tof
\n1965.\n<\/p>\n
Appeal\tfrom the judgment and order dated April 30, 1964  of
\nthe Madhya Pradesh High Court in Misc.\tPetition No. 132  of
\n1964.\n<\/p>\n
Rameshwar Nath and Mahinder Narain, for the appellant.
\nB. Sen, Ai.  N. Shroff and I N. Shroff, for the respondent.
\nThe Judgment of the Court was delivered by
\nWanchoo,  J. This is an appeal on a certificate\t granted  by
\nthe High Court of Madhya Pradesh and arises in the following
\ncircumstances.\t The  appellant was in the  service  of\t the
\nState  of Madhya Pradesh as a District and  Sessions  Judge.
\nHe was born on August
\n498<\/span>
\n22,  1908  and would in the normal course  have\t retired  on
\ncompleting  the\t age  of 55 years in August  1963.   But  on
\nFebruary 28, 1963, the Government of Madhya Pradesh issued a
\nmemorandum  to\tall the Collectors in the, State.   Copy  of
\nthis  memorandum was also sent to the Registrar, High  Court
\nas  well  as  the  Finance  Department\tand  the  Accountant
\nGeneral.  The relevant part of this memorandum is as follows
\n:-\n<\/p>\n
\t      “The  State Government have decided  that\t the
\n\t      age   of\t compulsory  retirement\t  of   State
\n\t      Government’s  servants should be raised to  58
\n\t      years   subject\tto  the\t  following   excep-
\n\t      tions………………..\n<\/p><\/blockquote>\n
\t      2.  .\t .\t.\t .\t  .\n<\/p><\/blockquote>\n
\t      3.  .\t .\t.\t .\t  .\n<\/p><\/blockquote>\n
\t      4.  .\t .\t.\t .\t  .\n<\/p><\/blockquote>\n
\t      5.    Notwithstanding  anything  contained  in
\n\t      the   foregoing  paragraphs,  the\t  appointing
\n\t      authority may require a Government servant  to
\n\t      retire after he attains the age of 55 years on
\n\t      three  months’  notice without  assigning\t any
\n\t      reasons…………….\t the   power\twill
\n\t      normally\tbe exercised to weed out  unsuitable
\n\t      employees after they have attained the age  of
\n\t      55 years.\t A Government servant may also after
\n\t      attaining\t the  age of  55  years\t voluntarily
\n\t      retire  after giving three months’ notice,  to
\n\t      the appointing authority.\n<\/p><\/blockquote>\n
\t      6.    These  orders will have effect from\t the
\n\t      1st March, 1963.\n<\/p><\/blockquote>\n
\t      7.    Necessary amendments to the State  Civil
\n\t      Service  Regulations  will be  issued  in\t due
\n\t      course.”\n<\/p><\/blockquote>\n
\t      in   consequence\tof  this   memorandum,\t the
\n\t      appellant who, would have otherwise retired in
\n\t      August   1963,  continued\t in   service.\t  On
\n\t      September\t 11,  1963 the\tGovernment  sent  an
\n\t      order to the appellant in the following terms
\n\t      “In  pursuance  of  the  orders  contained  in
\n\t      General  Administration Department  memorandum
\n\t      No.   433-258-1  (iii)\/63,  dated\t  the\t28th
\n\t      February,\t 1963,\tthe  State  Government\thave
\n\t      decided  to  retire you with effect  from\t the
\n\t      afternoon of the 31st December, 1963.”\n<\/p><\/blockquote>\n
This order was obviously in terms of the fifth paragraph of,
\nthe memorandum which said that “the appointing authority may
\nrequire a Government servant to retire after he attains\t the
\nage  of 55 years on three months’ notice  without  assigning
\nany reason.”\n<\/p>\n
499<\/span><\/p>\n
On  November 29, 1963 a notification was issued by  the\t Fi-
\nnance  Department which was published in the Madhya  Pradesh
\nGazette dated December 6, 1963 in the following terms :-\n<\/p>\n
\t      “In  exercise  of the power conferred  by\t the
\n\t      proviso  to Article 309 of  the  Constitution,
\n\t      the Governor of Madhya Pradesh hereby  directs
\n\t      that the following further amendments shall be
\n\t      made  in the Fundamental Rules  applicable  to
\n\t      the State of Madhya Pradesh namely
\n\t      “All  Rules  in Chapter IX of the\t said  Rules
\n\t      regarding\t  Compulsory  Retirement  shall\t  be
\n\t      deleted and the following shall be inserted as
\n\t      a new Rule 56, namely :-\n<\/p><\/blockquote>\n
\t      “F. R. 56 :-The date of compulsory  retirement
\n\t      of a Government servant, other than a Class IV
\n\t      employee, is the date on which he attains\t the
\n\t      age   of\t58  years.   Only   Scientific\t and
\n\t      Technical personnel may be retained in service
\n\t      after  the age of compulsory  retirement\twith
\n\t      the  sanction  of\t the?  competent   authority
\n\t      subject  to their fitness and suitability\t for
\n\t      work,  but  they\tshould\tnot  ordinarily\t  be
\n\t      retained beyond the age of 60 years.”
\n\t      “The   date  of  retirement  of  a  Class\t  IV
\n\t      Government  servant  is the date on  which  he
\n\t      attains the age of 60 years.\n<\/p><\/blockquote>\n
\t      “The  rule  has  come into,  effect  from\t 1st
\n\t      March, 1963.”\n<\/p><\/blockquote>\n
It  will  be seen that this amendment to the Rules  did\t not
\ninclude that part of the fifth paragraph which gave power to
\nthe appointing authority to require a Government servant  to
\nretire after he attains the age of 55 years on three months’
\nnotice\t without  assigning  any  reason.   Thereafter\t the
\nappellant  was\tretired.  He then filed a writ\tpetition  on
\nMarch  24,  1964 challenging the order\tretiring  him.\t His
\ncontention  was\t two-fold, namely-(1) that the\trule  as  it
\nstood after the amendment of November 29, 1963, published in
\nthe  Gazette  of December 6, 1963,  contained  no  provision
\nreserving power in Government to retire a Government servant
\nafter he attains the age of 55 years on three months’ notice
\nwithout\t assigning any reason, and therefore  the  appellant
\ncould not be retired on December 31, 1963 in the face of the
\nrules,\tand (ii) that as the order of his retirement cast  a
\nstigma\ton  him it amounted to his  removal,  and  therefore
\naction under Article 311 of the Constitution was  necessary,
\nand that was admittedly not complied with.
\nThe  application was opposed on behalf of the State  Govern-
\nment, and their case was-(i) that the order in question cast
\nno  stigma on the appellant, and therefore no  action  under
\nArt. 311
\n2Sup.CI\/67-3
\n500<\/span>
\nwas necessary, (ii) that the memorandum of February 28, 1963
\nwas in itself a rule and therefore the appellant was rightly
\nretired in view of paragraph 5 of that memorandum (iii) that
\nif  the\t memorandum was not a rule the\t-appellant  must  be
\ndeemed\tto  have retired in August 1963 in view of  the\t old
\nrule which prescribed 55 years as the age of retirement, for
\nhe could not take advantage of the memorandum, and (iv) that
\nin any case the appellant’s case would be covered by the All
\nIndia Services (Death-cum-Retirement Benefits) Rules,  1958,
\nas  amended  in\t 1963 and the order retiring  him  on  three
\nmonths’\t notice\t after\tthe age of 55  years  was  therefore
\nvalid.\n<\/p>\n
The High Court held that the order in question retiring\t the
\nappellant  cast no stigma on him.  It further held that\t the
\nmemorandum  of February 28, 1963 was in itself a rule  under
\nArt.  309  and therefore the appellant was  rightly  retired
\nunder  that  rule.   The High Court also held  that  if\t the
\nmemorandum  was\t not a rule, the appellant  could  not\thave
\ncontinued  in service after August 1963 in view of  the\t old
\nrule and could not therefore get the benefit of the new rule
\nraising the age of retirement to 58 years.  In this view the
\nHigh  Court  did not consider the question whether  the\t All
\nIndia  Services (Death-cum-Retirement Benefits) Rules,\t1958
\nwould apply in the present case or not.\t In the result,\t the
\nHigh Court dismissed the petition, but granted a certificate
\nto  the\t appellant  as prayed by him, and that\tis  how\t the
\nmatter has come before us.\n<\/p>\n
The  first point that the appellant has raised is  that\t the
\norder  in question requiring him to retire cast a stigma  on
\nhim  and therefore it amounted to removing him from  service
\nand action under Art. 311 was required.\t In this  connection
\nreliance  has been placed on Jagdish Mitter v. the Union  of
\nIndia.(1) In that case the order was in these terms
\n\t      “Shri Jagdish Mitter, a temporary 2nd Division
\n\t      Clerk   of  this\toffice\thaving\tbeen   found
\n\t      undesirable  to  be  retained  in\t  Government
\n\t      service is hereby served with a month’s notice
\n\t      of  discharge  with effect  from\tNovember  1,
\n\t      1949.”\n<\/p>\n
It  was held that when the order referred to the  fact\tthat
\nJagdish\t Mitter\t was  found undesirable to  be\tretained  in
\nGovernment  Service, it expressly cast a stigma on him,\t and
\nin  that sense must be held to be an order of dismissal\t and
\nnot a mere order of discharge.\tThis case has been  recently
\nfollowed in the State Of U.P. v. M. M. Nagar.<\/a>(2) There\talso
\nthe  order  in express terms contained words  which  cast  a
\nstigma\ton  the\t Government  servant  who  was\tcompulsorily
\nretired\t and  it was held in those  circumstances  that\t the
\norder  was in fact an order of removal from  service.\tThis
\nCourt
\n(1)  A.I.R. 1964.  S. C. 449.\n<\/p>\n
(2) [1967] 2 S.C.R. 333.\n<\/p>\n
501<\/span><\/p>\n
has  consistently  held\t that where ,  the  order  directing
\ncompulsory retirement expressly contains words which cast  a
\nstigmaon a Government servant, the order is equivalent to an
\norder  of  removal and action under Art. 311  is  necessary.
\nBut we asked learned counsel for the appellant to point\t out
\nany  case of this Court where in the absence of any  express
\nwords  in  the order itself casting stigma on  a  Government
\nservant,  this Court has held that the order  of  compulsory
\nretirement  amounts to removal.\t Learned counsel was  unable
\nto  refer  to  any such case.  But what he  argues  is\tthat
\nthough the order in question in this case contains no  words
\nfrom  which any stigma can be inferred to have been cast  on
\nthe  appellant, we should look to the memorandum,  which  is
\nreferred  to in the order and then infer that a\t stigma\t was
\ncast  on the appellant because the memorandum at the end  of
\nparagraph  5 says that the power to retire will normally  be
\nexercised to weed out unsuitable employees after they attain
\nthe age of 55 years.  It is urged that we should read  those
\nwords in the order retiring the appellant from December\t 31,
\n1963.\n<\/p>\n
We  are not -prepared to extend the decisions of this  Court
\non this aspect of the matter in the manner contended for  by
\nthe  appellant.\t (Where\t an  order  requiring  a  Government
\nservant\t to retire compulsorily contains express words\tfrom
\nwhich  a stigma can be inferred, that order will  amount  to
\nremoval within the meaning of Art. 31 1. But where there are
\nno express words in the order’ itself which would throw\t any
\nstigma\ton  the\t Government servant, we\t cannot\t delve\tinto
\nSecretariat  files to discover whether some kind  of  stigma
\ncan  be inferred on such research.  Besides, Para 5  of\t the
\nmemorandum  is obviously in two parts’ The first  part\tlays
\ndown  that “notwithstanding anything contained in the  fore-
\ngoing  paragraphs,  the appointing authority may  require  a
\nGovernment servant to retire after he attains the, age of 55
\nyears on three months’ notice without assigning any reason.”
\nThere  is  no  stigma here.  The second part  to  which\t the
\nappellant  refers  is  nothing more than  a  direction\tfrom
\nGovernment to the appointing authority that it will not\t use
\nthe  above  power except to weed  out  unsuitable  employees
\nafter  they  have  attained  the age  of  55  years.   When,
\ntherefore, the order in question refers to the memorandum it
\nreally refers to the first part of paragraph 5 wherein power
\nis given to the appointing authority to retire a  Government
\nservant\t after\the  attains the age of\t55  years  on  three
\nmonths’\t notice\t without assigning any reason.\t It  may  be
\nmentioned   that   the\torder  assigns\tno   reason.In\t the
\ncircumstances  we hold that as the order does not  expressly
\ncontain any words from which any stigma can be in-ferred  it
\ncannot amount an order of removal.  What the appellant wants
\nus  to hold is that the mere fact that a Government  servant
\nis  compulsorily  retired  before  he  reaches\tthe  age  of
\nsuperannuation\tis in itself a stigma.\tBut this is  against
\nthe  consistent\t view  of the Court that  if  the  order  of
\ncompulsory retirement before the age
\n502<\/span>
\nof  superannuation contains no words of stigma it cannot  be
\nheld to be a removal requiring action under Art. 311.
\nThis  brings  us  to the next question,\t viz.,\twhether\t the
\nmemorandum  itself amounts to a rule under Art. 309  of\t the
\nConstitution  as  held by the High Court.   The\t High  Court
\nseems  to have relied in this connection on the judgment  of
\nthis  Court  in Shyam Lai v. the State of  U.P.(1)  where  a
\nResolution  of\tNovember 15, 1919 was held to be a  rule  by
\nthis Court, though later that Resolution was incorporated in
\nthe  Civil Service Regulations in June 1920, It\t is  however
\nclear that facts in that case with respect to the Resolution
\nof  November  15, 1919 were very different.   In  the  first
\nplace the.  Resolution was published in the Gazette of India
\nwhile  in  the present case the memorandum  which  has\tbeen
\ntreated\t by the High Court as amounting to rules made  under
\nArt.  309,  has\t never been published in  the  Gazette.\t  As
\nalready indicated, it is only in the form of a letter to the
\nCollectors  with  copies  to the  High\tCourt,\tthe  Finance
\nDepartment  and\t the  Accountant  General.   Secondly,\t the
\nResolution  of November 15, 1919 in terms said that  it\t was
\nannouncing  certain new rules relating to retiring  pensions
\nof certain officers in the services specified therein.\t The
\npresent memorandum is not in the form of rules.\t Further  it
\nis  said  definitely in paragraph 7 of the  memorandum\tthat
\nnecessary amendments to the State Civil Service\t Regulations
\nwould  be  issued in due course.  It is one thing  to  issue
\nrules  and thereafter incorporate them in the Civil  Service
\nRegulations, it is quite another thing to issue a memorandum
\nof  this nature which is merely a letter from Government  to
\nall   the  Collectors  with  the  specific  direction\tthat
\nnecessary amendments to the State Civil Service\t Regulations
\nwill  be issued in due course.\tIt is true that\t the  letter
\nsays that the order will have effect from March 1, 1963, but
\nthat does not make the memorandum of the State Government  a
\nrule  issued  under  Art.  309,\t when  it  is  said  in\t the
\nmemorandum  itself  that necessary amendments to  the  State
\nCivil Service Regulations will be issued in due course.\t  We
\nhave  already set out the relevant parts of  the  memorandum
\nand  the  very first sentence shows that the  memorandum  is
\nmerely an executive direction and not a rule, for we  cannot
\nunderstand  how\t a  rule could be in  the  following  words,
\nnamely-“The  State Government have decided that the  age  of
\ncompulsory retirement of State Government’s servants  should
\nbe  raised to 58 years.” The very form of these words  shows
\nthat  it  is conveying an executive decision  of  the  State
\nGovernment to Collectors to be followed by them and is not a
\nrule issued under Art. 309 of the Constitution.\t The form in
\nwhich  a  rule is issued under Art. 309 is clear  from\twhat
\nhappened  on  November\t29,  1963  when\t the  amendment\t was
\nactually  made.\t  We  have set out  that  already,  and\t the
\ncontrast in the language would show that the latter was
\n(1)  [1965] 1 S.C.R. 26.\n<\/p>\n
\t\t\t    503<\/span><\/p>\n
a rule while the former was merely an executive\t instruction
\nby  Government\tto its Collectors with a copy  to  the\tHigh
\nCourt, the Finance Department and the Accountant General.
\nIt  is\thowever\t urged\tthat when the  rule  was  framed  in
\nNovember  1963 it stated that it had come into\teffect\tfrom
\nMarch  1,  1963,  and that shows that  the  memorandum\tmust
\namount to a rule.  It is true that the rule said so.  It  is
\nnot  necessary for us to decide whether a rule of this\tkind
\nwhich  was  notified  on  December 6,  1963  could  be\tmade
\nretrospectively.   If it could be made retrospectively,\t the
\nnotification  of  December  6, 1963  itself  would  make  it
\nretrospective and one need not go to the memorandum for that
\npurpose.  If it could not be made retrospectively, the\tfact
\nthat the notification of December 6, 1963 said that the rule
\nhad come into force from March 1, 1963 would still not\tmake
\nthe  memorandum\t a  rule.   As\twe  shall  show\t later\t the
\nmemorandum  could be legitimately justified as an  executive
\norder  of  Government  in view of F.R. 56 as it\t was  up  to
\nFebruary 28, 1963.  We therefore see no reason to hold\tthat
\nthis  memorandum  of  February 28,  1963,  which  was  never
\npublished in the Gazette, which was in the form of a  letter
\naddressed  to Collectors with a copy to the High Court,\t the
\nFinance\t Department  and the Accountant\t General  and  which
\nitself\tsaid  that necessary amendment to  the\tState  Civil
\nService\t Regulations  will  be issued  in  due\tcourse,\t was
\nanything   more\t than  a  mere\texecutive   instruction\t  of
\nGovernment.  If there was any doubt about the matter, it  is
\nin  our opinion removed by what happened when the  amendment
\nto F.R. 56 was made and published on December 6, 1963.\tThat
\namendment  has\tbeen set out by us above.  It  says  nothing
\nabout  what is contained in paragraph 5 of  the\t memorandum.
\nIf it was the intention of Government that the first part of
\npara  5\t of the memorandum should also form a  part  of\t the
\nrule,  we fail to see why that was not inserted as  a  note,
\nproviso\t or  explanation  to F.R. 56 when it  was  in  terms
\namended\t on  .November\t29,  1963  and\tthe  amendment\t was
\npublished in the Gazette of December 6, 1963.  The  omission
\nof  the first part of paragraph 5 from the  notification  is
\nitself\tan  indication that the memorandum of  February\t 28,
\n1963 contained mere executive instructions.  It may be\tthat
\nlater  Government decided not to include the first  part  of
\nparagraph 5 in the rule and therefore it did not find  place
\nin the amendment of November 29.  The analogy that the\tHigh
\nCourt has drawn between the Resolution of November 15,\t1919
\nwhich  was  discussed  in  Shyamlal’s  case  (1)  does\t not
\ntherefore apply and we are of opinion that the memorandum of
\nFebruary 28, 1963 contained merely executive instructions.
\nThe rule framed on the basis of these executive instructions
\ndoes -not contain the first part of paragraph 5.  Apparently
\nthe  Government\t dropped the idea of  retiring\tcompulsorily
\nGovernment ser-\n<\/p>\n
(1) [1955] 1 S.C.R. 26.\n<\/p>\n
504<\/span><\/p>\n
vants  after they had attained the age of 55 years on  three
\nmonths’\t notice;  otherwise we do not see why this  was\t not
\nincluded in the amendment when it was published on  December
\n6, 1963.  We may note in contrast that the-contents of\tpara
\n3  of  the  memorandum were incorporated in  the  rule.\t  We
\ntherefore hold that the memorandum of February 28, 1963 does
\nnot  amount  to\t rules under Art. 309;\tit  contains  merely
\nexecutive   instructions,  and\tthe  only  rule\t which\t the
\nGovernment has made on the question of superannuation is  by
\nthe notification of December 6, 1963.  That rule would apply
\nto  the appellant and it does not empower the Government  to
\nretire Government servants over the age of 55 years on three
\nmonths’\t notice without assigning any reason.  As this\trule
\nwould  apply  to the appellant from the date, it  came\tinto
\nforce,\tthe notice which had been served retiring  him\tfrom
\nDecember  31,  1963  must  fall in  the\t face  of  the\trule
\npublished on December 6, 1963.\n<\/p>\n
Then it is urged that if the memorandum of February 28, 1963
\ndoes not amount to rules under Art. 309, the appellant would
\nhave ,to retire in August 1963 and therefore could not\ttake
\nadvantage  of the rule published on December 6, 1963  fixing
\nthe age of retirement at 58.  We are of opinion. that  there
\nis no force in this contention.\t Fundamental Rule 56, as  it
\nexisted\t before March 1, 1963, provided 55 years as the\t age
\nof  retirement.\t  It  further  provided\t that  a  Government
\nservant\t might be retained in service after that  date\twith
\nthe sanction of the local Government on public grounds which
\nmust  be  recorded in writing, but he must not\tbe  retained
\nafter\tthe  age  of  60  years\t except\t in   very   special
\ncircumstances.\t It is clear therefore that it was  open  to
\nGovernment to extend the date of retirement of a  Government
\nservant under F.R. 56 (a) or 56 (aa), if it so desired.\t  It
\nis  true  that the extension contemplated by this  rule\t was
\ngenerally for individuals and an individual order is  passed
\nin  such  a  case.   But  we  see  nothing  illegal  if\t the
\nGovernment came to the conclusion generally that services of
\nall  Government servants should be retained till the age  of
\n58 in public interest. -In such a case a general order would
\nbe  enough and no individual orders need be passed.  We\t are
\nof  opinion  that the memorandum of February , 28,  1963  is
\nmerely in the nature of such a general order of extension of
\nservice\t by Government under F.R. 56 as it existed  on\tthat
\ndate.  It seems that the Government thought it proper in the
\npublic interest to retain all Government servants up to\t the
\nage  of\t 58 under F.R. 56 and these  executive\tinstructions
\nmust be taken to provide such retention till a proper  rule,
\nas envisaged in the memorandum, came to be made.  As we have
\nindicated already, we see nothing in F.R. 56 as it was which
\nwould  in  any way bar the Government from  passing  such  a
\ngeneral\t order\tretaining  the services\t of  all  Government
\nservants  up to the age of 58, though ordinarily  one  would
\nexpect\tan  individual order in each individual\t case  under
\nthat  rule.   Even  so,\t if  the  Government  comes  to\t the
\nconclusion generally that
\n505<\/span>
\nservices of all Government servants should be retained up to
\nthe age of 58 years, we cannot see why the Government cannot
\npass  a general order in anticipation of the  relevant\trule
\nbeing  amended raising the age of retirement in\t the  public
\ninterest.   We\ttherefore read\tthe  executive\tinstructions
\ncontained  in  the memorandum as amounting to  an  order  of
\nGovernment retaining the services of all Government servants
\nup  to\tthe  age  of 58\t years\tsubject\t to  the  conditions
\nprescribed in the memorandum till an appropriate rule as  to
\nage  of superannuation is framed.  Therefore, the  appellant
\nwould  continue in service after he attained the age  of  55
\nyears in August 1963.  But when actually the rule came to be
\nframed\ton  November  29, 1963\tit  dropped  the  conditions
\nmentioned  in  the memorandum; thereafter it  is  that\trule
\nwhich would apply to him after it was published on  December
\n6,  1963, and as that rule contained no reservation  of\t any
\npower in Government to retire a Government servant on  three
\nmonths’ notice without assigning any reason after the age of
\n55 years, the notice issued to the appellant must fall.
\nLastly,\t it  is urged that the appellant  could\t be  retired
\nunder the All India Services (Death-cum-Retirement Benefits)
\nRules, 1958.  It is urged that those rules apply to District
\nJudges\tin  view  of the  Madhya  Pradesh  Judicial  Service
\n(Classification,  Recruitment  and  Conditions\tof  Service)
\nRules, 1955.  Rule 7(2) thereof provides that “the Rules and
\nother  provisions  relating to pension\tand  gratuity  which
\napply to officers holding superior posts in the cadre of the
\nIndian\tAdministrative Service shall apply mutatis  mutandis
\nto  District  Judges  also.” We are  of\t opinion  that\tthis
\nprovision  can\tonly  take in the  rules  which\t applied  to
\nofficers  holding superior posts in the cadre of the  Indian
\nAdministrative\tService\t on the date it came into  force  in
\n1956.\tThe rule does not say that all future amendments  to
\nthe Rules relating to officers holding superior posts in the
\ncadre of the Indian Administrative Service shall also  apply
\nto  District  Judges  appointed\t under\tthe  Madhya  Pradesh
\nJudicial Service (Classification, Recruitment and Conditions
\nof  Service)  Rules,  1955.   In  these\t circumstances\t the
\nrespondent  cannot take advantage of the All India  Services
\n(Death-cum-Retirement Benefits) Rules, 1958, particularly of
\na rule which came into force in 1963.\n<\/p>\n
Our attention has also been drawn to the Madhya Pradesh\t New
\nPension\t Rules,\t 1951.\t But those rules  do  not  apply  to
\nDistrict  Judges.   Further in any case the  provision\twith
\nrespect to retiring at the age of 55 years on three  months’
\nnotice\twas  introduced in those rules\tin  August,September
\n1964, and the Government could not therefore take  advantage
\nof that rule at the time when the appellant was retired.
\nWe  therefore allow the appeal, set aside the order  of\t the
\nHigh Court and quash the order of retirement passed in\tthis
\ncase.  The appellant will be deemed to have continued in the
\nservice
\n506<\/span>
\nof  the Government in spite of that order.  As\thowever\t the
\nappellant  attained the age of 58 years, in August 1966,  it
\nis not possible now to direct that he should be put back  in
\nservice.   But he will be entitled to such benefits  as\t may
\naccrue\tnow  to him by virtue of the success%  of  the\twrit
\npetition.  The appellant will get his costs from the State 1
\nthroughout.\n<\/p>\n
G.C.\n<\/p>\n
Appeal allowed.\n<\/p>\n
507<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India I.N.Saksena vs State Of Madhya Pradesh on 30 January, 1967 Equivalent citations: 1967 AIR 1264, 1967 SCR (2) 496 Author: K Wanchoo Bench: Wanchoo, K.N. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-196271","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nI.N.Saksena vs State Of Madhya Pradesh on 30 January, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/i-n-saksena-vs-state-of-madhya-pradesh-on-30-january-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"I.N.Saksena vs State Of Madhya Pradesh on 30 January, 1967 - 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