Case Note & Summary
The appellant, a Central Government servant born on July 15, 1910, was holding the post of Assistant Inspecting Commissioner of Income-tax at Cuttack. Under the original Fundamental Rule 56, his compulsory retirement age was 55 years, but an Office Memorandum dated November 30, 1962 issued by the Ministry of Home Affairs raised the age to 58 years. Paragraph 6 of the Memorandum permitted the appointing authority to retire a government servant at 55 years on three months' notice without assigning any reason, and paragraph 7 made the Memorandum effective from December 1, 1962. On July 21, 1965, Fundamental Rule 56 was amended by the Sixth Amendment, incorporating the Office Memorandum and introducing sub-rule (j), which required the appropriate authority to be of the opinion that retirement was in public interest before retiring a servant at 55. The appellant attained the age of 55 on July 15, 1965. A notice dated July 15, 1965 was issued retiring him compulsorily with effect from October 21, 1965; he received the notice on July 22, 1965, one day after the amended rules came into force. He challenged the notice by writ petition in the Orissa High Court, which dismissed the petition on September 19, 1966 but granted a certificate to appeal to the Supreme Court. Before the Supreme Court, the appellant argued that the Office Memorandum lacked the force of a rule under Article 309 because paragraph 8 stated that amendment of rules for All India Services was being undertaken in consultation with state governments; that since he was in service when the amended rules came into force on July 21, 1965, he could not be retired under the earlier Office Memorandum; and that reliance on State of Punjab v. Amar Singh Harika required communication of an order before it could take effect. The Union of India contended that the Memorandum was valid and effective from December 1, 1962 under the President's power in the proviso to Article 309; that the validity of the notice depended on the date of issue, not service; and that public interest was not required because the notice was issued before the amended rules came into force. The Supreme Court rejected all contentions. It held that paragraph 2 of the Office Memorandum recited the President's direction to raise the retirement age, paragraph 8 merely restated the legal position under Article 309, and paragraph 7 gave express effect from December 1, 1962. The court distinguished Amar Singh Harika as dealing with the time from which an order of dismissal takes effect, not its initial validity. It reasoned that the appellant continued in service beyond 55 only because of the Office Memorandum, and having obtained that benefit, could not repudiate the exception in paragraph 6. The court further held that because the notice was valid when issued on July 15, 1965, before the amended rules incorporated the public interest requirement, that requirement did not apply. Accordingly, the appeal was dismissed and the order of compulsory retirement was upheld.
Headnote
A) Service Law - Compulsory Retirement - Article 309 proviso Constitution of India 1950 - Office Memorandum dated 30.11.1962 raising retirement age to 58 with exceptions - The Office Memorandum was a rule made by the President under Article 309 proviso and was effective from 01.12.1962 as stated in paragraph 7; paragraph 8 did not postpone its operation until amendment of Fundamental Rules; Held that the Memorandum had legal force (Paras not mentioned). B) Service Law - Notice of Retirement - Right Validly Determined - Fundamental Rules Rule 56(a) Sixth Amendment 1965 - The crucial date for testing validity of compulsory retirement notice was the date of issue (15.07.1965), not the date of service; a right validly determined could not be revived by a later amendment enlarging the right; State of Punjab v. Amar Singh Harika distinguished on communication of dismissal order; Held notice valid (Paras not mentioned). C) Service Law - Public Interest Requirement - Fundamental Rules Rule 56(a)(j) Sixth Amendment 1965 - Notice issued under Office Memorandum before the amended rules introduced public interest concept did not need to state or satisfy public interest; the authority could retire without assigning any reason; Held that public interest requirement did not apply retrospectively to the notice (Paras not mentioned).
Issue of Consideration
Whether the Office Memorandum dated November 30, 1962 had the force of a rule under Article 309 of the Constitution; whether a notice of compulsory retirement issued before but served after the Sixth Amendment to Fundamental Rules was valid; whether the compulsory retirement required satisfaction of public interest under sub-rule (j) of Rule 56(a)
Final Decision
Appeal dismissed; Supreme Court affirmed the Orissa High Court's decision and upheld the notice of compulsory retirement dated July 15, 1965, retiring the appellant with effect from October 21, 1965.
Law Points
- President may make rules regulating conditions of service under proviso to Article 309 until legislation is enacted
- an Office Memorandum issued under Article 309 takes effect from the date specified in it
- not from later amendment of Fundamental Rules
- validity of compulsory retirement notice is determined on date of issuance
- not service
- a validly determined right cannot revive due to later amendment
- employee cannot accept benefit of raised retirement age while repudiating exception permitting compulsory retirement without reasons
- public interest requirement introduced by amended Fundamental Rules did not apply to notices issued before amendment
