1967 (1) TMI 87 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the order of compulsory retirement cast a stigma requiring action under Article 311 of the Constitution.
2. Whether the memorandum dated February 28, 1963, constituted a rule under Article 309 of the Constitution.
3. Whether the appellant was entitled to continue in service after the age of 55 years based on the memorandum.
4. Applicability of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, to the appellant.
5. Applicability of the Madhya Pradesh New Pension Rules, 1951, to the appellant.

Issue-Wise Detailed Analysis:

1. Stigma and Article 311:
The appellant contended that the order requiring him to retire cast a stigma, thus amounting to removal from service, necessitating action under Article 311 of the Constitution. The court examined precedents such as *Jagdish Mitter v. Union of India* and *State of U.P. v. M.M. Nagar*, where orders containing explicit words casting stigma were deemed equivalent to removal. However, in the appellant's case, the order did not contain any express words casting stigma. The court held that in the absence of explicit stigmatizing language in the order, it cannot be considered as removal under Article 311. The court refused to infer stigma from the memorandum referenced in the order, emphasizing that the order must itself contain stigmatizing language for Article 311 to apply.

2. Memorandum as a Rule under Article 309:
The appellant argued that the memorandum dated February 28, 1963, did not constitute a rule under Article 309 of the Constitution. The High Court had treated the memorandum as a rule. However, the Supreme Court disagreed, noting that the memorandum was not published in the Gazette and was merely an executive instruction. The court highlighted that the memorandum itself mentioned that necessary amendments to the State Civil Service Regulations would be issued in due course. The court contrasted the language of the memorandum with the formal rule issued on November 29, 1963, and concluded that the memorandum was an executive instruction, not a rule under Article 309.

3. Continuation in Service after 55 Years:
The appellant argued that he was entitled to continue in service after the age of 55 years based on the memorandum, which raised the retirement age to 58 years. The court held that the memorandum could be seen as a general order of extension under Fundamental Rule 56, which allowed for the extension of service in public interest. The court noted that while individual orders were typically expected under F.R. 56, a general order was permissible. Therefore, the appellant was entitled to continue in service until the new rule was framed and published on December 6, 1963. Since the new rule did not include the provision for compulsory retirement on three months' notice after 55 years, the notice of retirement issued to the appellant was invalid.

4. Applicability of All India Services (Death-cum-Retirement Benefits) Rules, 1958:
The respondent argued that the appellant could be retired under the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended in 1963. The court noted that these rules applied to District Judges based on the Madhya Pradesh Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955. However, the court held that the 1955 rules only incorporated the pension and gratuity rules applicable to the Indian Administrative Service officers at the time they came into force in 1956. The court concluded that subsequent amendments to the All India Services rules did not automatically apply to District Judges, and thus the 1963 amendment could not be used to justify the appellant's retirement.

5. Applicability of Madhya Pradesh New Pension Rules, 1951:
The court also considered the Madhya Pradesh New Pension Rules, 1951. It found that these rules did not apply to District Judges. Additionally, the provision allowing retirement at the age of 55 years on three months' notice was introduced in these rules in August-September 1964, after the appellant's retirement. Therefore, the government could not rely on these rules to justify the appellant's retirement.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and quashed the retirement order. The appellant was deemed to have continued in service until he reached the age of 58 in August 1966. The appellant was entitled to benefits accruing from the success of the writ petition and was awarded costs throughout.