IMPORTANT POINT
The amendment introduced in Rule 244(2) of the Rajasthan Service Rules, 1951 by notification dated March 11, 1976, cannot be held to be invalid on the basis that the said amendment sought to amend a provision which was not in existence.

JUDGMENT

S.C. Agrawal, J.-The question that falls for consideration in this appeal relates to the validity of the amendment introduced in Rule 244(2) of the Rajasthan Service Rules, 1951 (hereinafter referred to as the Rules ) by notification dated March 11, 1976. Rule 244(2) makes provision for compulsory retirement of a Government servant.

2. The respondent was employed as an Upper Division Clerk with the Government of Rajasthan. After he had completed 25 years of qualifying service he was compulsorily retired by order of the Collector, Ajmer dated March 31, 1973 on payment of three months pay and allowances in lieu of notice. The said order was passed under sub-rule (2) of Rule 244 of the Rules. Along with the order of compulsory retirement a bank draft for a sum of Rs. 1,494/- representing three months pay and allowances was sent to the respondent. The respondent filed a writ petition in the Rajasthan High Court challenging the said order of compulsory retirement. The said writ petition was allowed by the learned Single Judge of the High Court by order dated January 17, 1978 on the ground that there was non-compliance with the provisions of sub-rule (2) of Rule 244 of the Rules inasmuch as the amount paid to the respondent towards three months pay and allowances along with the order of compulsory retirement was short by Rs. 120/-. On January 28, 1978 notification dated March 11, 1976 was published in the Rajasthan Gazette. By the said notification sub-rule (2) of Rule 244 of the Rules was substituted. The said amendment was operative from August 19, 1972 and was to remain in force up to September 1, 1975. Under the amended provision the requirement of payment of three months pay and allowances in lieu of notice at the time of compulsory retirement was dispensed with and it was prescribed that on retirement the Government servant would be entitled to claim three months pay and allowances in lieu of notice. In the special appeal filed by the appellant State against the judgment of the learned Single Judge reliance was placed by the appellant on the said amendment in Rule 244(2) and it was urged that in view of the said amendment it was not pre-requisite that the payment of three months pay and allowances in lieu of notice should have accompanied the order of compulsory retirement and that the order of compulsory retirement could not be invalidated if a shorter amount was paid or no payment at all was made at the time of service of the order of compulsory retirement upon the concerned Government servant. The said contention was negatived and the special appeal was dimissed by the Division Bench of the High Court by the impugned judgment dated April 15, 1980 on the view that the amendment made in the Rules vide notification dated March 11, 1976 was invalid. Hence this appeal. While granting special leave by order dated April 14, 1981, this Court imposed the condition that "whatever be the decision of this Court it shall not affect the respondent and the High Court s decision in his favour shall remain undisturbed."

3. On March 31, 1973, the date of the passing of the order of compulsory retirement, sub-rule (2) of Rule 244 of the Rules provided as under :

"(2) The Government, may, after giving at least three months previous notice in writing or by payment of three months pay and allowances in lieu of such notice require a Government servant to retire from the service on the date on which he completes 25 years of qualifying service or on any date thereafter."

The said provision was introduced vide notification dated August 19, 1972.

By notification dated September 2, 1975, sub-rule (2) of Rule 244 of the Rules was substituted by the following provision :

"(2) The Government, may, after giving at least three months previous notice in writing or by payment of three months pay and allowances in lieu of such notice require a Government servant to retire from the service on the date on which he completes 20 years of qualifying