The M~ladhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) Adhyadesh, 1967 (12 of 1967) is hereby repea1ed.l
SCHEDULE [ See sections 2 nnd 3 ] Bales I. ( I ) These rules nlay be called the Madhya Pradesh (Ani7varya Seva Nivritti-Ayu) Niyam, 1967.
(2) They shall come into force with effect f r ~ m the 15th December, 1967.
2. (1) The age of compulsory retiremzn: cf Government servants other than Class I V Government servttnts shall be 258 years.
(2) The age of co~;ipulsory retirement of Class I V Government servants shall be 60 years.
--- ___ _ _ __A_--A_---- I . Published in M.P. Rajpatra (Asadharan) dated 23-12-1967 Page 3144.
2 . Substituted by M.P. Act No. 9 of 1976.
Rr. 3 ] The M.P. (Anivarya Seva Nivritti-Ayu) Niyarn, 1967
3. Those Government Servants who have already attained the age of '58 years on the date mentioned in sub-rule ( 3 ) of rule 1 and are in service of the said date shall, as from the said date, be entitled to such leave as may be due for a period not exceeding 120 days and shall stand retired on the date next following the date of completion of such leave :
Provided that the duration of such leave shall, i n 110 case, extend beyond the date of attai~ment of the age of 58 years.
COMMENTS Synopsis
(1) Order of compulsory reiirement (3) Court's declaratory decree is not on payment of three month's monetary decree.
salary, not bad. (4) Raising age of Superannuation.
(2) Correction of entry about age. (5) Compulsory retirement.
( I ) Order of compu1sory retirement on payment of three month's salafy, not bad.-It is argued that there was a man who took his reversion wlth 111- grace, did not join on his substantive post for long seven years, went to the High Court four years after the passing of the said reversion order, deprived the State of his services in whatever capacity, and thereby exhibited lack of deyotion to duty, used intemperate and offensive language towards the superlor officer for which he was charge-sheeted and actually removed from sefvlce On that count. If the Government took all fhese factors into consideration In taking a decision as to whether it would be in public interest to retain him after the age of 55 years, could that decision be called malafide at all ? And after all, the petitioner was only promoted temporarily as Assistnnt Engineer. He had no vested right to continue cn the post and he was also not selected by Public Service Commission.
The High Court of Madhya Pradesh agreeing with the above argument of Government advocate held that the dccision of the Government in compulsor i~~ retiring the petitioner at the age of 55 years, could not be attack on the ground of 'mala fide'. , It was further argued by the petitioner that the order of retirement undel the Rule could be effective only if the State Government simultaneously offered payment to him of his three month's sa1,lry. Unless she payment of an eract amount accompanied the service of notice, the ceder of compulsori~y retirement would be bad.
In the case of the State of Uttar Pradesh Vs. Dinunath Rai, decided on 1 l th October, 1968 : 1969 Service Law Reporter 647 (SC) the relevant portion of the Rule for interpretation reads thus :
' 6 . . . . . . . . . .Provided that in the case of notice of the appointing authority the latter nlay substitute for the whole or part of this period of notice pay ,in lieu thereof provided further that it shall be open to the appointing authority torelieve a Government servant without any notice or accept notice for a short period, without requiring the Government servant to pay any penalty in lieu of notice."
Their Lordships construed the rule differently and observed :
Madllya Pradesh Services Manual [ R r , 3 "Tile ru!e does not say that ihe pay s11ouIJ be given in casll o r by iil,?
cheque at the time the ~ ~ o t i c e is issued. Knowing ;lie way tlie Governmen:
run, it nrould bc dificuli to ascribe lllis iritontiotl to ti12 rule plaking nriihc,r;;y, There is II:I dnubt that thc Gover~i~?~cc? scrvrt;:t youltj 1-i~ eillitled to the p:ly ir!
lieu of notice hnt this wo~iid be in ;hz ordin~~r j , course."
I n the prese!!i case the language of the rule is akin to the Iaugasge uscd i i i the Rule in Dii?nnnth i2n;'s C"a,rc~. 1959 Ser. L.R. 647 (SC) an3 we wotild prrii.r t o construe the ~i:!e in the r;?ai~ner it doilz i n ,Oi!~ii.ilnth's ca,re. Tj;e pay;;i::lt contcrnp!ated by tj1.5 P.ule is nei!!ler payment ta be insde forthwiil~, simulr:\.--eously with the nctice, nor v,-ould the mi ice be effecti\.e only upoil p ~ j ~ l l c n t l i e i n made. P n y i n ~ n t cou!d folicn in the ordinary course.
Even othcl'wise there was substantial co~np!iance of the rule. The offer of Rs. !770/- towards three month's salary, was made, presumhiy, on rile same day notice of campulsory re t i reme~~t was served or soon ~Iiereafier. The pelition does not disclose the date of service of noticz. The grievance of the petitioner is that the salary offered was calculated on the basis, as if the petitioner \xias stopped at the E?iiciency Bar. According to him, the question of crossing the Competent authority had to consider the queszion prior to or on the date <he petitioner became entitled to it and that date was 1.3.1969. If he was not considered 011 *hat date for any reason whatsoever, it would be presumed, he says, that the competent ~u thor i ty hac! no objection to llis crossing the et%c;eacy bar.
The Hik!?~ Court held that the petitioner cannot claim tile sanction to cross the Efficiency Bar simply because he had retired. The sanction could be given or ~viihheid o r even afier his retirement. If i t was given, he could claim benefits eve!l tliough retir,-d. If it was withheld, he did :~oc lose anytiling, because he 112.3 nlready stopped at that stage. It was. therefore held that no punishment inflicted. U.K. It7c~rilyo:nnan J's. Stnrz of'!1di;i!lryn Prncicsi~ itnd orl!ti,.~.
1975 M.P.L.J. 404 : 1975 J.L.J. 760.
(2) Ci;:ncertion of eafry &out age.--The facts of the case are that in ihe year I957 v ~ i ~ e n for the first time after the reorganisation of States, the petiiioner was called iipon by the Seitlement OfEcer ro disc!ose his date of birth. The year 1917 n:criiiuae~l in ilk? S:rvlce Book clid not seen: proper record a s rhe e date and the inon(h of the p~ti t iozer 's birth were noi mentioned and the Service Book i~idicat-cd n0:11ing to show t h s t the cntry was iierised with reference to any confirnint:,ry documentary e~icler7ce like r!ie i:latrisuiatio:i certificate 01' the Municipal Birih c2rtificatz. Thc pztitionzr protluced the inatrictilation cerli!icale and entered t5e date of birth as 8th April, 1915, not wi th an idea of creating conflict, nor there is reason to beiievt: that the entry :vns tnade o : ~ the insistence of Shri Ti k. Gupta. Pieslimably he made the entry haking reascn to bzlieve that the san:c: shall be acted upon. Viihatevc: be the !-c.:xl intention i n the i?lind of the pztilioner, any reasonaiile man wonld accept the declaraiicr~ t u be true and sctoil act: on I t .
d u t y 9::;s cast iipoc ihr: petitioner to di:closr his date of birth ~i!ong with confirmatory evidence. He ctlose to prodi:ce ?lie malsiculntion certificate.
H e entered the date as sho.an t!rerein ~ i t h o n t protest. We was therehre deb~!rred froin producing the horoscope instead and asserting that :.hz real date of birth 4;. I was 13th Shukla SamvzI, 1974 equivn!ent t o 20th August, 1917. I-Ie could have agitated the issue then and set the decision on the question of 11;s date of birth.
H e has come io ths Rig11 Court thirteeil ymrs afier when the Cc)vernment hss chosen t o act on his own admission , they gave him extension of service fsr n year and retired him with erect from 22nd April, 1971 Rr. 3 1 The M.P. (Anivarya Seva Nivritti-Ayu) Niyam, 1967 1137 It was held that the petitio~zer !!as guiity of acquiescence He accepted the date of birth as 8th April, 1915. The case also attracts ihe doctrine of estoppel by negligence. Th:: petitioner allowed the two entries to continue and thereby led the Government to choose tile entry which pri/?ln . f i r c i ~ appeared.
genuine and had the support of contirmatory evid-.nce. The petitioner cannot now turn round and say that he has been prejudiced. Ile should have taken steps to get one of the entries prejudicial to him scored out. I-le had permitted them .to continue and the Govern~nent could legitimately act on tlle enlry whlch WJS supporlecl by the petitioner's matriculation certificate. It wss custolhary with the Government to rely oa the lnatriculation certificate mostly. for pufpose of date of birth. The petitioner's negligence lay in permitting the two entrles to continue, and the latter entry in particular to be construed as his own adn~issinrl in the matter of date of birth.
Further it was held that the petitioner was guilty of supression and nlisstatement of facts inasnmch as he did not disclose initially that he had himself entered in Part I1 of his Service Book the 8th April, 191 5, to be his date of birth. He also did not speak about the declaration he had submitted in February,
1960. If he was force t o make the entry as he later contended, that viould be a disputed question of facts on which the High Court would not go in evidence.
In so fix as the adinission in the declaration of February, 1960 is concerned, there is no such plea of undue influence or coercion or misapprehension. Prilijcr facie, however, the two documents were held to be voluntarily exect~ted. Ildnkrilci'ilroraj Sing!t KT. Stntc of Madhya Prndesh nrrd another. 1974 M.P.L,J. 31.
(5) Court's declaratory decree is not monetary decree.-In Civil Appeal No.
670 of 1965 J N . Snxelza Vs. State of M.P., decided on the 3CI-1: January, 1967, tllc Supreme Court held that retirement of a Goverriment servanr, after he attains the age of 55 years, on three month's notice on the basis of the General Administration Departinent Memorandurn No. 433-2-58-1 (iii) 763 dated thc 28th February, 1963 is invalid in since the said n~en~oranduin was lnerely an executive direction,and not a rule governing the conditions of service of Government servants. The decision affected a large number of retirements ordered on the basis of the aforesaid memoraildunl and involved considerable financial burden on the State Exchequer by way of payment of arrears. There were likely to be other complications regarding continuance in service etc.
Therefore after the decision sf that qppeal the Governor had pronlulgated an Ordinance which was replaced on April 20, 1963 by the M.P. Slzaskiya Sevak Anivarya Sevaniviriti ka Vidl~irn~yatakardn Vidyayak Takaram Vidyeyak Adki- .
niyam, 1967 (5 of 1967) validating tile retirement of certain Govcrnment servants, including that of appellant, despite the jugment of Supreme Court.
BY virtue of this Act, the State is vested with a right not to pay the dues of appellant from the date of his retire~nent (December 3, 1963) onwards, In egect this Act has inade pr~vjsions of Compulsorily Retirement Rules, 1965 npplicab!e from March 1, 1963.
The appellant again moved the High Court challenging the validiiy of thc Act which was dismissed so an appeal was filed to the Supreme Court.
It is argued 011 behalf of the appellant ; (i) that a right of property being a judgment-debt, protected by Article 19 (1) (f) of the Constitution, had been created by the Supreme Court's Decree dated 30th January, 1367 in favour of the appellant and against the State. Since the impugned Act to effect, seeks to expropriate the appellant oi that right without providing for any compensation it is ultra vires Article 31 (?? 4s" the Constitution ;
1135 Madhya Ptatfesh Services hli~tiu3'r [ Rr, 3
(ii) That thn i~npragned Act is ultra v i r s ti:e Co~rstitution inasmuch as it seeks to validzte th:: retirement of the appellavt dnd other like llim by chawing their ser~ic: conditions with retrospective effect, In so so doing, the State Ieglslatu,e has over-stepped the limits of legislat've powers conferred on it Article 309 of the Const~t~~tiou. Reliance was placed on the decision of the Suprene Court I U the State gf %flrsoi'e VS. ~ada77ifl:ii?nci'?ap etc. (1966) Z SCR 394.
(iii) th:tt the impugned Act, encroaches upon ~11:: ~udlclal field inasmuch :kt i t overrules and make ui~enforceable the decision clated 30th January, 1967 in Silpreme Court in Civil Appeal No 670 of 2963, and in so doing, it offends Articies 141, 142 gild 144 of the Consitntion ;
(iv) Z ~ e n if the impugned Act is valid, clauses (b) and (c) of section 5 of the Act , oa a properconstructio:?, do not vacate #he decree of the Supreme Court, requiiing the respondent to the appelta~it the pecuni3ry benefits resulting from the succzss of his earlier appeal (CAA, 670;65) in Supreme Cotlrt.
CkiLlse (b) of section 5 merely bars themaintenance or contirluation of any proceeding f?r any amount as payment, towards salary. The appellant is not seeking to mxintai!~ or contiaue any execution proceeding io Court, for the recovery of any aalount tow2rd; salary, the decree being a declaratcry one None of these coote~~tions were Irdd to be tenable.
On perus;rl of the Supreme Court decree rcferrecl to above would s h o ~ that it is not 3 money decree, raising a judgnlent-debt. It: is a declaratory decree declaring that the respondent's order dated Sep~ember 1 I , 1963, complllsorily retiriflg the appellant was invalid, and consequently the appellant would be deenled to have continued in service ti!] he attairied the age of 53 Years The fu1tht.r declaration that he will be entitled to such beliefits as may accrue to him by virtue 0:' thz success of the writ perition was only incldenlal or ancilliary to the main relief and will fall or stand with the same. This being the position the decree did not create an indefeasible right of property in fdvour of the appellant.
The distinction between a 'legislative and a 3 judicial act is well known, thougll in some specific instance the line which separ,ttes one category from +Y the ot!:sr niny 11ot be easily disceriliblc Adjudication of the parties according to 1 3 ~ enncted by the iegislature is a judicial ful~ction. In the performance of l bk Lcnclion r!ie court interprets and eflect to the intent and illandate of the legisldC111t: as ernbodied i : ~ the statute. On the other hand, it is for the legislature to lay dawn the Inw prescribir~g norms of conduct which wilt Eolrern parlies and transactions and to require and to give effect to tllaf law.
It W d S Che:efore, held that in enacting the inlpugned provisions, the 1%- islature has not euceecled the Iirfiits of its legislative powers nor encroached on the judici:,l field. I N. Srlkrena Vs. Tile S t o t ~ o/' il4~dlz1'ra Prcl(je.yh. 1976 U.J. (SC) 223.
111 Piore Dr~snrlc~ nrzd otl1~1.s Vs. Tlzc Ki ;g Ei;-i:pc>ror 1944 F.C.R. 61, the t.
Governor General by Orclinance repealed the Special Criminal Courts Ordin- d,, .
ante J I of 1943. Tilere was a provision ill the repealing ordii~ance for confinnation and contiiiunnce of sentences of Special courts and retrial of peildiag cases. The appellant therein had been convicted and sentenced by Special Crimiza! Court which was held have to jurisdiction to try the case by an order or a c o ~ ~ r t Section 3 (1) of the Special Criminal Courts (Repeal) Or- R1. J ] i'he M.P (Anivaiya Scva Plivr itti-hyt~) Nlyam, 196 7 1139 dillance, 19-13 conferxed valiciity rr~ltl Ci.ill effkcli~en~ss 011 sellterlccs passed hy Special Criminal courts by conferring jurisdiction on them with retrospective effect, Tile FeJeral Courl hc!ii [!?at bj. pl-~!li~ilgati~: and rcpettlirig Ordirlance of 1943, thc Izgis!ative autl~ority had 1101 attempted to do indirectly what it could not do directly or to exercise judicial power in tlze guise of lcgislaiion It was fu:ihcl, held thai the Ordinance was not invalid on the ground that the Icgisl:iiive autIioiity h:id valida ted by respective legislation preceedirlgs held in couris which were void for want ofjurisdiction as there wias nothing in the Tndi~tn Cons!i[ution which prectcded legislntive from doing so.
(ii) Baishng the age of superazrnuniioa.-h the case of 3atnhai.i .lerza Vs.
Tile State 0ri.rsrr. A L.15. 1971 S.C. 1516, iciiance was placed on certaitl objervaiioils iil tiie tiecisioll ol the siiprerne Cowl ~ J I Gurdev Singh Sindhu Vs. Srilrc of PiliSiLlb. (1964) SCR 587 : A.T.R. 1964 S.C. 1585. There the Supreme Court struclc down Article 9.1 of the Pepsu Service Wegtllations under which the Goverixneut sought to retain an absolute right to retire any Government servant after he hail completed teli years qualifying service \vitllout giving ally reasoil. In that case the petitioner who had been appointed as an Assistant Superintendent of Police in the erstwliilc Patiala State on February 4, 1942 and confirmed in that rank on the reg~ilar vacancy after undergoing practicni district .training courses, and after promotion to the rank sf Superinteadent of Police in a.n oificiating capacity in February 1950 in the said State of Pepsu, was asked to show muse by nolice dated 25th March i963 as to why he should not be compulsorily retired. The gctitiocrr cornplaiued that the notic: issued to ilia was invalid on the groiltid that the arlicle 011 whish it was based was iiself ulira vircs and inoperative a i d oiliy question before the Court was wheiher the i~npaigned articie was showii to be consiituticually imaiiil. Referring i o S(ztisi1 Ci~cii/~J."? L4.~~f l~~( l KT. If%lc iI~?ion oj' f i l h 1953 SCR 585 : A.I.R. 1953 S C 250, ;lnd LO ccriain dicta of i he majorif Judges in Moii Ronz Dckn Kc.. Generctl ltfanqer, ,niorth Eiut FI-o~rtier. R ~ ! l ~ ~ i ~ ? - .
A.I.R. 1961 S.C. 60d : (i964) 5 SCR 683, the Supreme COUI i observed by way of cxplanation that : " . . . . . . . . . . Ihct majority juiignent took ihc precaution of adding a note of calltion that if a rule of compulsory rctjrelilcat pxrposted to give authority to the Government. to terri~inate tile services of a permanent public servant at a very early stage of llis career the question about the vali-.
..* dity of such a rule lway have to be examined. That is how in accepting hlhe view that a rule of CoilIpLlisory retirement Gail be treated as valid and as constituting a]- zxceptiol? to :he Grneial rule that the ierminat'w of the rer- -vices of a perlnanc. . ~?liblic servant ~.vouid ainou!lt to his semo+al t:-. . r 31 1 (4, the Supreli~e Court added a r:dcr zu~~d made it perfectly c l ~ a r t i~a t if the minimum pzriod of set vlcc which \?!as piescri bed by the reievanr, rules uplleld by the earlier decisions was 25 ycars, i t could aoi be reasoilably reduced in that behalf. In other words, ihe majority judgtnent indicates that what cates what influenced the decision was the Sact that a fairiy large nuinbzr cf years had been prescribed by the rule of co~npulsoryret~rement as constituting the minimum pcriod of service :tfier which alone the said:rulc could bz invoked.
The Court further observed that that the safeguards which Article 31 1
(2). afforcls to permanent public servallcz is no more than this that in case it is 111tendeS to dismiss, renlove or reduce thein iil rank a reasonable opportunity should be given to them of showillg wgainst the action proposed to be taken in regard to them. A claim for security it) tenure does not rneaa sccurity to tenure for dishc~csi, corrupt, or inefficient public servauts. The -lain! lllerely insists illat bcfore they are remove!l, the permanent public servants should be given an opportunity to meet tllc charge on which they are sought to be re- 1140 Madhya Pladesh Servmc Matiual 1 XI. 3
1110vcd. Therefore, it scems t h ~ t ooly i5 o cxcel,iious can bc treatcd c i , vril~d in dealing with t i le scope and effect of the protection afforded by Arti lc 3 1 1 (?), if a permsizmt public servant i s asked to retire on the ground Ihzt i:e has reached t l lc age of superannuation wlltcli has been reasonably fixed, i \r~lcle 3 11 (1) doe> not apply, becdus:: sucii retiretnent is ~zcitllzr dismissal nor r rcioval of the p~b l i c s:rvdnts. If' a.perinanent public servant is compulsorily retired undx the rule; which prescribe the normal age of superannuation and rrovide for a red~nilabiy lo ~g period of qudified servicz arter which alone coril: ,llsoiy retirzmsnt c.ln bo ordercd, that again may nat amount to dis~uissal o: i..ific\:al tinder Artic!e 31 1 (2) 1-inin1y because that is the eRcct ~f 2 long series ofdccibions of Supreme Court But where while reserving the power io the State to compuisoriip retire a permanent public servant, a rule is framed preccrjbing a proper age of superannuation, and ano'her rule i h added giving thr: power to the StLite LO conlga!s3riJy retire a public servant at the c'ld of 10 ycars of his service, that cannot, be treated as falliilg outside Article 311 (2) . The termination of the service of a permaueut pnblic serirant uncler such a rulc though compuisory retirement, is. iu substsuce re~noval under Article 3 11 (2 )" .
Tlzc abokc obscrvatiolis rrlicd on thc counsel clo not help the ai~peilatlt The above ob~crristioras sllow that a rule which permits a Government to ask an ol'ficer to r e h e after au ui~reasonablp short period of service must bcforc t i le narllxal age of supernnultion would be hit by Ariiclc 31 1. They cannot apply cvb:n the psi'iod of qudltFyiilg EC: ICB mentioned in the rule i s !lot u n - reasonably shot and the normal age of superuuation iixed is not ~ ~ q x c o u u - tably eaiiy. %<fore May 1363 a Gover~iment servant i n Go\.ernmeiit servznt in 0riss:i !?ad t c retire on att~ining thc agc of 55 y~ai-s \- !lether he ! ~ s b can - pleted 30 years' qualifying service or not. The Fdci rhnt the age of superannu- :ition was ral\?d from 55 or 58 kiiblle Govercme~\t reserved to itself a right to ask any emplojee to retire at ille age of 55 Jogs nct xiolatc t'lLticIe 311 (3).
Sccondly tilc ~ r d e r d ~ d not ~ 1 s t nnj7 aspcrrions or siigrn;~ on the rppellont which ~ ~ o u l d attract Articlr 31 1, A f?overnn~ent has : I right to rguir t : tilt Govcrnmcn'; servant tir retire at the agz of 55 n i t l ~ou t assigning an) I.casoi1.
Tile faci that by the noLific%tiou of St11 February. (964 certaiil 2ujdcli;les were indicated lo the I-f;e~ds 01 Depzrirnents in considerillg whcliler 2 Goi2:rmi~eilt servant shouIJ contillue in service beyond the case of 57 years, onc of the 4 .
+-actors for consideration bsing lack of inteyr icy, did not 1inpIy that ally offrcer wl~ose continua~ice in service \?]as no1 advised lacked in integrity. Bntnifnre Jcncl V Y . Tile Or i~sa . A.T.R. S C . 1516.
It is \veil known t1i.tt a law or st,.~ltory rult should bc so interpreted as to iilake il valid and not valid. :f this c.:, ression 1s confined to \;I~at was arg~aed before the High Court namely that i t gives power to the Goternment to allov; a Government servant to remain in service even beyond the age of 55 years for special reasons the rule will ilot be rendered invalid and its validity will a o ~ be put in jeopardy. So consrrucd it is apparent that the appellant could not have hem retired conpu!sory under the Saurashtra Rules before he had attained age of 55 years. By applying the Bombay rule his conditions of service were varied to his disad~az~tagr: because he could then bc compul- d corily retired as soon as he attained the age of 50 years. Takhcrrnrl T I i i ~ r J ~ ~ f f ~ i ~ 4: - . l f c c ~ z k r r i l T f t . Slcttc of Girjcnnt. A 1.R 1 770 S.C 143.
(5) ~oit~pulsosy retirerncnl .-In A loti Rnnz DeX n J's. General iM:l?i(lgel. N.
1- 1'. R~ihvq l . A la l igc~o~~ Prtid~i. 1'154 ( 5 ) S.C.R. 1964 L.C.R. 683 . !\ .I .R. 1964 S.C. 603 one of the matters w h ~ c h cnnlc up for consideration \;'as ille efl'ecc of sci bicc 1 ule which perniit ted coinpulsury rctiremerlt T' ithout fi i ing the rlliuimum period or service a f ~ e r wllicik ihe ruie could be iiivoked. According to the of Veukataram Ayyat. J. ill S l c t ~ of B~f l?bc /~ vs. Suubhugcllcli,g n r . ~ o ~ h ; . 1958 S.C.R. 571 : A.X.R. 1957L.C. 892, thc npplication of a rule %rould be tantal-uounl lo dibmissal rcn;oval under k f i c i e 31 (2) of the Constitutlou. There were ceriain other dec;sionr o i tl-ie Supreme Court which %c:c relevdot 011 this poilit viz. P Bl~I~i l io lui~h I's. i iric;!r oJC Iirdii~, 1958 S,C.R, JC)~:! : 4 1.R. 195s S.C. 232 ail:{ Dal$Sijzgh VX. State oj'P111ja6. 1961- v b I S.C.R. 88: A.1.R. 1960 S.C. 1305. All these decisioils were considered in .
l\[oiir~rrr Deka Vs. Ger~cral Muutzgc i. X.E F. X ~ f i l ~ l ' u ~ . ~ , A.I. R. i964 S.C. 600 and 1 the true legal position was stated in the majority judg:~>cnt at page 726 of of S.C.R. and at page 617 of L'=.T.R. thus : .' . . . .We tbifik that if any rule .
permits t h i appropriate ~iuthoriiy to retire compu!surily n civil servant without impositlg a limitation in that behaif that srrch civil serv; nt should have put in a minimum period of service, that rule would bc inxilid 2nd the so-called reti;e:uent ordered under the s a ~ d RuIc W O U I ~ amour l~ to rcinoval of the civil servant within the meaning of Article 31 1 (2)".
IQ Curdev Slngh SiLilrrl k5. Sra t~ 0-f P~rirji~B. 1904 7 3.C.d. Sb7 : A,I.lZ. 1964 s C. 1585, jr. v,as poiilted out that tlic only two exceptions to the protection diyDsde-j by Artl& 3) 1 (2) were, ( I ) nkere a permanent piiblic servant was asked to retire on the ground that he had reached the age of superannuatiol~ \$hi& was bxed ; (2) that he was compulsoi~iy rctired under the rule which piescribed the norn~al GZ ~Fsuperaanation 2nd proirided a reasonably lorlg p r i 0$ of qualified service afrcr whish a l ~ n e ~o~npu!sorq. retirement could be valid. The basis on :vhich this k ~ z w has proceeded is that for efficient ndmiaistratioil it is necessary that public servaurs shou!d elljoy a sense of security of tenure and that the terminstion of service of a public servant under Iule which docs not I,ty down a reasonabiy long pe~iocl of qualified ser,:ce is in substaucc relnova. ander Article 311 (2): The pri:ldp!e is that the rule relating t o con~puIsory re tircmel~t oT Gor ernmeot servalil rnus t not only , ontaiu t!le outside limrt of superannuation but therc ruust also bc a provision for 3 rcas~nailly long period of qualified sci.i ice which must be iadicatcd \?it-fi su&- ciollt clarity. To give an example, if 55 ycars hme becu specified as the age of superannuation and if i t is sought to retire ihe servant even before that period it should be pr~vided in the rule that he could be lctired al'ier he has attained the age of 50 years or hc has put: j r i service for a period of 25 years It is well setiled that a law or a htatutory rule 5l;ould be so interpreted as to make it vdlid not invalid. It this expr~ssion is confinec! to what was argued 'I, before the High Court, namely that i t : :ves power to government to allow a Goverumcnl senant to ietunin in servlcc .. Seyond the age of 55 years for syccial reasons the rule will not be rrtldered invalid aud its validity will not be put i n jeopardy. So construed it is appare~~t t h a ~ the appellant could not have been letired compulsoriiy under the Saurashtra Rules hefore he had attained the aSe of 55 years. By applying the Bombay rule h i s corldition or service wcrc varied t o his disadvaniage because hc could then be compulsorily retired as soon ai; he attained the of' 50 ycars As the previous approval of the Central Govcrmc:lt wa3 ilot obiailled i n accordance with the proviso t o Section 115 (7) of the States Re-organisation Act, 1956, the Bombay Rule could not be made ,tpplicable to the appel ]ant, T'ah hcli*crrj Slri~'durtni-y Illnl!lcud Jrs. State of Grljarrrl A,I.R. 1970 S.C. 143 : I969 Ser. 572 : (1970) 1 S.C.A. 138 : 11 Guj. L.R. 325 :
(1970) 1 S.C.R. 144.
4. h Govcr:111ient scrvant n:<iy b,: glren extcnsro~~ of selvice beyond the agc 5b years subject to his pllpical il tor,s and oulst,rn~ling qunlity o f his work but not ortlil~~tiily be) ond the 'lge of 60 years 1142 Madhya k'rrdssh Servlsss Manual [ Rr 4=i1-5 14-A. Notwithstanding anything contained i ; ~ rule 4, a Go:i,-rn~~len: Servant who had beell a f r e e d m figbier may, on pr'oductioil of a ccrtiscatc; i;r the form below and subject to his o th~rwise being fit rd b; continued scri~ic:: be g i~e i i extension of :enice beyond the age of 55yclrrs f ~ r srichpeiiod i;ot t:;ceeding the period for u41ich suclt goscrnment servnnc x r l s in actmi dctz:?rion andior imprisonme~lt including the period undergoce as under rial i:1 conilectio~~ ::.jib the freedom movenlent, srrbject to msxirnu;n of rllree years.
Explanation.-For the pzrposcs of !!]is ru!e "a freedor;,] fighterq' ii;ebu a Government servant who W ~ S detained and/or irnprisoiltd. on :~ccou n' ~f his activities in connection with ireedom mover,eill c1uri:ig [hi: p':riod from 1919 to 1946.1
5. The Madhja Pradesh (Age of C~mpulsory Rell;erren'i) Rules, 1365 arc hereby repealed .
2[FlaRM OF CERTIFICATE CERTIFIED that Shri.. . . . . . , . .S/o . . . . . . . ; . , . . . . . . . . . . . , . . . . . . . . . - . .
Ria . . . . . . . . . . . .was ilnpriso~led ar?d:'or detained in connecfl~i~ ~ i i 1 1 the freedom ~norelllellt at the [slsce, for the period nlid uilder the provisions of the law mentioned below.
Datod thr Dist~-ici .I la,oisir'~lc.
Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10