Full Judgment Text
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PETITIONER:
S.N.PALLEGAL
Vs.
RESPONDENT:
STATE OF MYSORE
DATE OF JUDGMENT22/12/1972
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
GROVER, A.N.
CITATION:
1973 AIR 671 1973 SCR (3) 199
1973 SCC (4) 153
ACT:
Mysore Civil Service Regulations Eighth Edition (1953)
of Art 294-Age of superannuation under Article whether 55 or
60.
HEADNOTE:
The appellant was an officer of the old State of Mysore. A
the States Reorganisation Act of 1956, he entered service of
the new State of Mysore constituted under that Act. The
appellant was entitled to the benefits of the service rules
which obtained before his transfer to the. new State of
Mysore, the relevant rules being the Mysore Services
Regulations as they stood on 1 November, 1956. According to
the State of Mysore the appellant was due to retire at the
age of 55 years. He claimed however in a writ petition
before the High Court that the age of superannuation under
the rules was 60 years. The High Court rejected the
petition. In appeal before this Court it was common ground
between the parties that it was the Eighth Edition of the
Regulations published in 1953 that was applicable to the
case.
HELD : Art. 294 of the Eighth Edition does not leave any
room for doubt on the point at issue. The discretion to
retire an officer whether of the superior service or of the
inferior service at 55 years All officers attaining that age
’may be required to retire.’It is clear that the
officers themselves have no option in the matter. If
Government decides to retire them, they must go out. At the
same time, however, the Government has been given the
discretion toretain them in service if the Government
considers them to be fit and efficient. There is nothing in
the language of Art. 294 which makes it incumbent on
Government to give this extension after the age of 55 years.
[205BC]
There was therefore no merit in the appeal which must
accordingly be dismissed.
M.Narasimhachar v. The State of Mysore, [1960] 1 S.C.R.
981 and State of Mysore v. Padmanabhacharya, [1966] 1 S.C.R.
994, applied.
Union of India and Ors. v. R. V. Sadasiva Murthy etc., Civil
Appeals Nos. 476 to 478 of 1969; Judgment delivered on 15
July 1969. distinguished.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2262 of 1971.
Appeal by, special leave from the judgment and ’Order dated
November 25, 1969 of the Mysore High Court in Writ Petition
No. 6201 of 1969.
C. K. Daphtary and R. B. Datar for the appellant.
B. Sen and M. Veerappa for the respondent.
200
The Judgment (A the Court was delivered by
MUKHERJEA, J. This appeal by special leave is directed
against a judgment of the High Court of Mysore by which that
High Court disposed of several writ petitions in which the
principal ,,question at issue was a common question of law.
The appellant was an officer of the old State of Mysore.
After the States Reorganisation Act of 1956, he entered
service of the new State of Mysore constituted under that
Act. The question-that has arisen is : what is the
superannuation age of the appellant ? It is admitted that
the appellant was entitled to the benefits of the service
rules which obtained before his transfer to the new State of
Mysore. The relevant rules are the Mysore Services,
Regulations as they stood on 1 November 1956. According to
the appellant the age of superannuation is 60 years while
according to the respondent the age of superannuation is 55
years. Difficulty has arisen for two reasons. First,,
there are two versions of the pre1956 Service Regulations,
one to be found in the Seventh Edition of the Regulations
published in 1945 and the other to be found in the Eighth
Edition published in 1953. Secondly, there are three
decisions of this Court, two of which namely Al. Narasimha-
,char v. The State of Mysore(1) and State of Mysore v.
Padmanabhacharya (2) interpreting Art. 294 of the Eighth
Edition have held that 55 years is the age of superannuation
while the third decision in Union of India and ors. v. R. V.
Sadasiva Murthy etc.(3) dealing with Art. 305 of the Seventh
Edition which incidentally corresponds to Art. 294 of the
Eighth Edition has held that the age of superannuation is 60
years. According to the High Court the latest decision of
this Court in Union of India and ors. v. R. V. Sadasiva
Murthy etc. ( 3 ) which has supported the petitioners’ case
of 60 years being the age of superannuation rested on the
effect of clause (c) of the old Art. 305. On behalf of the
appellant, however, it was urged that the latest decision of
this Court in Sadasiva Murthy’s ( 3 ) case in the correct
decision to be followed in interpreting Art. 294 of the
Eighth Edition as well as Art. 305 of the Seventh Edition.
It is necessary at the outset to set out Art. 305 of the
Seventh Edition as well as Art. 294 of the Eighth Edition
one after the other for making an effective comparison of
these two Articles. It is also of some importance in this
connection to set out the provisions of Art. 428 of the
Seventh Edition.
Art. 305 of the Seventh Edition
"(a) An officer in superior service, who has attained the
age of fifty-five years, may be required to retire,
(1) [1960] 1 S.C.R. 981. (2) 11966] 1 S.C.R.
994.
(3) Civil Appeals Nos. 476 to 478 of 1969.: Judgment
delivered on 15 July, 1969
201
unless Government considers him efficient, and
permits him to remain in the service. But as
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the premature retirement of an efficient
officer imposes a needless charge on the
State, this rule should be worked
with discretion. And in cases in which the
rule is enforced, a statement of the reasons
for enforcing it shall be placed on record.
Note x x x
(b) x x x
"(c) The following ruling should be kept
carefully in view in applying the rules
regarding compulsory retirement-
’As some misapprehension appears to exist on
the subject of the rule regarding the
compulsory retirement of officers after the
age of fifty five years, it is desirable to
state that not only do Article 305 and Article
428 of these Regulations read together, not
require the compulsory retirement of any
efficient officer of whatever age, but that
though the Articles authorise the Heads of
Departments, at their discretion, to presume
that an officer is inefficient at fifty five
years of age conditionally, at sixty years of
age absolutely, yet the whole tenor of the
rules is that such presumption shall be
exercised with careful consideration both for
the individual who would suffer by being
deprived of his appointment while capable of’
discharging its duties. and for the finances
of the country, which would suffer we’re offi-
cers, still efficient prematurely thrown upon
the pension list.,
Art. 428 of the Seventh Edition
"If an officer in superior service, whose age
is less than sixty years, is required to
retire under Article 305 (a), the Head of his
office must certify in the column for any
other remarks on the third page of the
application for his pension, the cause of the
applicant’s inefficiency, and quote the order
of Government or of any officer to whom power
under Article 308 (a) (2) may have been
delegated. sanctioning the applicant’s
retirement as superannuated. If the officer
wishes to retire of his own accord under
Article 310, the fact should be stated."
Art. 294 of the Eighth Edition
"294(a)-A Government servant in superior or
inferior service, who has attained the age of
fifty-five years, may be required to retire,
unless the Government
202
considers him efficient, and permits him to
remain in the service. But as the premature
retirement of an efficient Government servant
imposes a needless charge on the State, this
rule should be worked with discretion And in
cases in which the rule is enforced, a
statement of the reasons for enforcing it
shall be placed on record.
NOTE l.-It is trusted that the Heads of
Departments will always be disposed to extend
to this rule a very liberal interpretation, so
that the State may, in no case, be deprived of
the valuable experience of really efficient
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Government servants by the untimely exercise
of the powers of compulsory retirement on
pension.
NOTE
(b)-These rules apply to all Government ser-
vants without reference to their nationality.
(c)-Heads of Departments are authorised to
retire all non-gazetted Government servants
under them when they attain the age of fifty-
five, and to grant extension of service for a
period not exceeding six months only in very
exceptional cases if the Government servant is
considered to be efficient and such extension
is considered absolutely necessary in the
interest of public service. In no case.
extension be given beyond six months without
orders of Government."
The first case that came up to this Court for interpretation
of these Regulations was the case of M. Narasimhachar v. The
State of Mysore(1). In that case this Court was called upon
to construe the effect Art.294(a) of the Eight Edition of
Mysore Services Regulations. The petitioner, who was
retired from service from a particular date on the ground
that he had attained superannuation on that date, challenged
the order of compulsory retirement on various grounds. One
of the grounds was that the order was contrary to Art.
294(a) of the Regulations. The petitioner, in particular,
relied on Art. 297 of the Mysore Services Regulations which
laid down that a government servant in superior services who
has attained the age of 55 years, may at his option retire
from the service on his superannuation pension. The
petitioner urged that Art. 297 indicated clearly that the
option is with the public servant whether he retires at the
age of 55 years or not. This court rejected that contention
and held : first, that under Art. 294(a) the age of
retirement is 55 years and, secondly, Art. 297 which is
complementary to Art. 294(a) allows the government servant,
if the Government wants to keep him in service after 55. to
opt for retirement. Wanchoo J.
(1) [1960]1 S.C.R. 981
203
observed that Art. 297 did not mean that Government cannot
retire him at the age of 55 years if he does not exercise
the option..
The next case that came up before this Court was the case of
State of Mysore v. Padmanabhacharva(1). In that case,
Padmanabhacharya who was a trained teacher completed the age
of 55 years on 3 February 1958 and was ordered to be retired
from service from that date on the ground of superannuation.
Padmanabhacharya challenged the validity of the order in a
writ petition before the High Court of Mysore and contended
that Rule 294(a) of the Mysore Services Regulations which
prescribed the age, of retirement fixed the normal age of
superannuation at 58 years instead of 55 years as the result
of an amendment made in April 1955. The State of Mysore
raised two contentions : First, that even after the
amendment of 1955 the age of superannuation in, the case of
trained teachers continued to be 55 years though it was open
to the State to allow them upto the age of 5 8 years if they
were fit and efficient and, secondly that a notification
issued by the Governor on 25 March 1959 under Art. 309 of
the Constitution validated the action of retiring
Padmanabhacharya and certain other officers on their,
attaining the age of 55 years. The High Court rejected both
these two contentions and allowed the petition. On appeal,
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this Court held with regard to the first contention that
under Rule 294(a) as it was before 29 April 1955, the normal
age of retirement was 55 years for all including trained
teachers but it gave discretion to the Government to extend
the service of efficient government servants beyond the age-
of 55 years.. The position, however, was changed in regard
to trained, teachers as a result of the addition of Note 4
to Rule 294(a) which entitled them to continue in service
till the age of 58 years. unless the Government came to the
conclusion that they did not have a good record of service
and were not upto the mark. The net effect of this decision
was that apart from trained teachers, the, normal age of
superannuation was 55 years unless Government decided to
extend it upto 58 years on the ground of fitness.
This Court was called upon to construe the effect of Art.
305’ of the Seventh Edition of the Mysore Services
Regulations in Union of India v. R. V. Sadasiva Murthy(3).
In that case Sada-siva Murthy was a "superior service"
employee of the Mysore, State Railways. After the merger of
the State of Mysore with the Indian Union he became an
employee of the Indian Railway Administration. On 5 January
1969 he received an order compulsorily retiring him from
service. Sadasiva Murthy moved a writ petition in the High
Court of Mysore in which he asked for a, declaration that
the Indian Railway Administration was bound to continue him
in service till he attained the age of 60 years. His,
(1) [1966] 1 S.C.R. 994.
(2) C. As. Nos. 476-478 of 1969 decided on 15-7-1969.
204
contention was upheld by the High Court and the order of
compulsory retirement was quashed. Upon an appeal from that
decision this Court confirmed the decision of the High
Court. The appellant before us strongly relied on this
latest decision of this ’Court.
Before the High Court an attempt was made on behalf of
the .State to explain the difference between the latest
decision of this ’Court and the two earlier decisions by
pointing out that Art. 305 of the Seventh Edition contained
a ruling of the Government which indicated that Art. 305 and
Art. 428 should be, read together. It was contended that
Art. 428 suggests that an officer in the superior service
could be, retired before reaching 60 years only on the
ground of inefficiency. The argument was that this clause
(c) which attracts the operation of Art. 428 was omitted in
the Eight ’Edition and Art. 294 of that Edition standing by
itself indicated 5.5 years to be the age of
superannuation.
In our opinion, it is not necessary for us, to examine the
question whether Art. 428 of the Seventh Edition which is
essentially a rule regarding pension supports the contention
that the normal age of superannuation is 60 years.
So far as the instant case is concerned, we consider the
two .-earlier decisions to be more apposite for two reasons.
First, it appears from the judgment of the High Court of
Mysore that it was a common ground of the parties to the
instant case that the conditions of service governing the
services of the appellant are those contained in the Eighth
Edition. Since in the two earlier decisions it was the rule
of the Eighth Edition which was construed those are the
decisions with which we are concerned directly in the
instant case. Secondly, the decision in the latest case may
be supported on an entirely different ground. Rule 2046 of
the Indian Railway Fundamental Rules as amended on 11
January 1967 provided, inter-alia, that if a ministerial
railway servant, who entered Government service on or before
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31 March 1938 and held on that date (i) a lien or a
suspended lien on a permanent post, or (ii) a permanent
posit in a provisional substantive capacity and continued to
hold the same without interruption until be was confirmed in
that post, he was to be retained in service till he attains
the age of 60 years. This rule was modified on 23 December
1967 so that the expression "Government service" in that
rule included service rendered in a former provincial
Government and in ex-Company and ex-State Railway, if the
rules of the Company or’ of the State had a similar
provision. In the facts of the case of Sadasiva Murthy, he,
it appears, completely answered the description of a
ministerial railway servant given in Rule 2047. Therefore
he could claim 60 years to be his age of retirement. From
that point of view the judgment in Sadasiva Murthy’s case is
un-
205
exceptionable. On facts, however, that case is entirely
distinguishable from the facts of the present case in which
the petitioner appellant is not a Railway officer and does
not, therefore, claim the benefit of Rule 2046 of the Indian
Railway Fundamental Rules.
Apart from the considerations we have just mentioned, in our
opinion Art. 294 does not leave any room for doubt on this
point. The discretion to retire an officer whether of the
superior service or of the inferior service at 55 years has
been given in clear unmistakable language to Government.
All officers attaining that age "may be required to retire".
It is clear that the officers themselves have no option in
the matter. If Government decides to retire them, they must
go out. At the same time, however, the Government has been
given. the discretion to retain them in service if the
Government considers them to be fit and efficient. There is
nothing in the language of Art. 294 which makes it incumbent
on Government to give this extension after the age of 55
years.
In these circumstances we do not think there is any merit in
the appeal which is accordingly dismissed. We do not,
however, make any order as to costs.
G.C. Appeal dismissed.
206