JUDGMENT

KULDIP SINGH, J. :— The short question for consideration before us is whether R. 2(2) of the Liberalised Pension Rules, 1950 (hereinafter called Pension Rules) which permits the Central Government to retire a Government servant at any time after he has completed 30 years of qualifying service by giving him three months notice or pay in lieu of such notice, confers unguided powers in the Government and as such is ultra vires Arts; 14 and 16 of the Constitution of India.

2. Izhar Hussain joined the Post and Telegraph Department as a clerk on June 4. 1935 The Director, Postal Services by an order dated April 21, 1970 retired him from service under R. 2(2) of the Pension Rules. Izhar Hussain challenged the order of retirement by way of a writ petition before the Allahabad High Court. The learned single Judge dismissed the writ petition holding that there was no infirmity in R. 2(2) of the Pension Rules. The Special Appeal filed by Izhar Hussain before the Division Bench of the High Court was accepted and R. 2(2) of the Pension Rules was declared invalid and the retirement of Izhar Hussain was set aside. The Union of India has come up in appeal by special leave against the judgment of the Division Bench of the High Court.

3. Central Government servants superannuate at the age of 58 years. The Government has the absolute right under Rule 56(j) of Fundamental Rules to prematurely retire a servant in public Interest -after he has attained the age of 55 years. The Government has also the power under Rule 2(2) of Pension Rules to retire a servant at any time after he has completed 30 years of qualifying service. We may quote these Rules :

"F. R. 56(j) Notwithstanding anything contained in this Rule, the appropriate 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 Government servant after he has attained the age of fifty-five years by giving him notice of not less than three months in writing.

Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) or clause (f)."

"Rule 2(2) - An Officer may retire from service 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 3 months before the date on which he wishes to retire. Government may also require an officer to retire, any time after he has completed 30 years qualifying service provided that the appropriate authority shall give, in this behalf a notice in writing to the officer 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."

4. Fundamental Rule 56(j) while granting absolute right to the Government provides that such power can only be exercised in Public Interest. This guide-line is a sufficient safeguard against the arbitrary exercise of power by the Government. The object of this Rule is to chop-off the dead-wood. Rule 2(2) of the Pension Rules on the other hand provides no guide-line and gives absolute discretion to the Government, There is no requirement under the rule to act in Public Interest". A person who joins Government service at the age of 21 years can be retired at the age of 51/52 years as by then he must have completed 30 years of qualifying service. Although the rules are mutually exclusive and have been made to operate in different fields but the operational effect of the two rules is that a Government servant who has attained the age of 55 years can be retired prematurely under F. R. 56(j) only on the ground of Public Interest whereas another Government servant who is only 51 and has completed 30 years of qualifying service, can be retired at any time at the discretion of the Government under Rule 2(2) of the Pension Rules.

5. The object of Rule 2(2) of Pension Rules may also be to weed-out those Government servants who have outlived their utility but there is no guide-line