1964 Supreme(MP) 71

High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
I.N.SAKSENA - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 132 Of 1964
Decided On : 04/30/1964

Headnote:(1) Constitution of India - Arts. 311 (2) and 309 - Government servant compulsorily relied before age of superannuation - power to retire given to Government by rule - retirement cannot be regarded as dismissal or removal.

       A permanent civil servant has a right to remain in service until he reaches the age of superannuation, and if there is no rule made under Article 309 of the Constitution giving to the Government the power to order compulsory retirement of a civil servant before he reaches the age of superannuation then the Government servant cannot be retired before he reaches the age of superannuation. If he is compulsorily retired before that date, that retirement would amount to dismissal or removal within Article 311 (2) of the Constitution. If there is a rule permitting the Government to retire compulsorily a civil servant before he attains the age of superannuation, then the retirement of the Government servant pursuant to that rule cannot be regarded as removal or dismissal within the meaning of Article 311 (2) of the Constitution. AIR 1960 SC 1305 and AIR 1964 SC 600, relied on. [Paras 6 & 7]

       (2) Constitution of India - Art. 309 - Fundamental Rule - R. 56 - Memorandum issued by Governor on 28-2-63 raising age of superannuation to 58 stating that orders will have effect from 1-3-63 - Memorandum not administrative instructions but became effective as a rule from 1-3-1963 - Government servant due to retire from 1-8-63 - Government passing order on 11-9-1963 retiring him from 31-12-1963 - order not illegal - condition of previous publication not application to rules made under Article 309, Constitution of India.

       Petitioner, a government servant, was liable to retire from service on 21-8-1963 on attaining the age of 55 years according to Fundamental Rule 56 as it stood until 1-3-1963. On 28-2-1963 a Memorandum was issued by the Governor of the State raising the age of superannuation to 58 years with effect from 1-3-1963 under certain circumstances. On 29-11-1964 the Governor substituted New Fundamental Rule 56 for rule 56 which existed till 1-3-1963 under the proviso to Article 309 of the Constitution. On 11-9-63 the Government passed an order retiring the petitioner from service with effect from 31-12-1963. The petitioner challenged the validity of this order contending that as a result of the amended Fundamental Rule 56 which came into force on 1-3-1963 he was entitled to be continued in service till the attainment of 58 years.

       Held: The directions contained in the Memorandum acquired statutory force by virtue of the proviso to Article 309 as a rule made by the Governor. The publication of those directions in the form of amendments to the State Civil Service Regulations was not in any way intended to affect the validity or effectiveness of the directions. As Article 309 of the Constitution does not contain any provision with regard to the previous publication of rules made there under, section 23 of the General Clause Act, 1897 could not be invoked for contending that the publication of the Memorandum in accordance with section 23 was necessary. If section 23 does not apply, then there is no general statutory requirement of publication in the Gazette of the rules made under Article 309. Merely because the Memorandum was not published in the Gazette or was not couched in the standard language of rules, it could not be held that the directions contained therein were not statutory rules. The amendment incorporated in Fundamental Rule 56 on 29th November 1963 has not the affect of retrospectively raising the age of superannuation as from 1st Mach 1963, The order of compulsory retirement was a valid order. (1948) I All ER 85, relied on. AIR 1951 SC 467, distinguished. [Paras 11, 13 & 17]

       (3) Constitution of India - Art. 14 - power of Government to compulsorily retire unsuitable Government servant after attaining age of 55 years - not discriminatory - possibility of misuse or abuse of power does not render conferment of power illegal.

       The rule about compulsory retirement was applicable to all Government servants and the discretionary power given to the Government to compulsorily retire Government servants who are unsuitable and who have attained the age of 55 years is not a discriminatory power. The possibility that the power may be misused or abused cannot render illegal the conferment on the Government of the power to retire compulsorily. The possibility of the abuse and misuse of the power is very remote and those who have been given the power can be trusted to use it with wise and reasonable discretion. [Para. 18]