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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

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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

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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