# BISHUN NARAIN MISHRA v. ST ATE OF UTT AR PRADESH AND OTHERS

- **Citation:** [1965] 1 S.C.R. 693
- **Court:** Supreme Court of India
- **Decided:** 1962-03-29
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, Raghubar Dayal, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bishun-narain-mishra-v-st-ate-of-utt-ar-pradesh-and-others-3382
- **Pages:** 7

## Headnote

693
Constitution of India Arts. 311, 14--Civil Service-Age of superannuation-Raised from 55 to 58 yetus and again reduced to 55 years-Termination of service as a resul.t of reduction of age of superannuation ·whether
attracts Art. 31 l-Nt>tification whether retrospective, discriminatory.
By a notification dated November 27, 1957 the Government of Uttar
Prade5h raised the age of superannuatien for members of its s~rvice from
55 to 58 years.
On May 25, 1961 by a notification under Art. 309 the
Government again reduced the age to 55 years.
By a proviso to the later
notification it was laid down that those who owing to the earlier notification
had continued in employment beyond the age of 55 years will be deemed
to have been retained in service beyond the date of con1pulsory retirement.
Another order was issued by the Government
the same day
directing that all those who were between the age of 55 years and 58 years
and had been retained in service' in the above manner would be retired on
December 31, 1961.
The appellant who attained the age of 55 years on
December 11, 1960 and was continued in service when the age of retirement was raised to 58 years was one of those who were retireu on December
31, 1961.
Aggrieved, he filed a \Vtit petition before the High Court
\vhich v.'as disn1isse<l and an appeal to the Division Bench also failed.
Appeal was filed before the Supreme· Court by special leave.
It was pointed out on behalf of the appellant that :
( I ) the change in the rule of retirement made by the notification of
May 25, 1961, was hit by Art. 311 as it amounted to removal of public
.servants from service \vithout complying
with
the
requirements
of
Art. 311(2).
·
(2) the rule in question beihg retrospective was bad as no notification
could be made retrospectively; and
(3) the rule was hit by Art. f4 inasmuch as it resulted in inequality
between public servants in the matter of retirement.
HELD: (i) There is no provision which takes away the power of
Government to increase or reduce the age of superannuation and tl1e,refore
as the rule in question onJ~
.. dealt with the age of superannuation and the
appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service \vhich thus came
about was removal within the meaning of Art. 311. [697 B-E].
~foti Rain Deka 'l General Manager,
North
Frontier Rly., A.LR.
1964 S.C. 600 refcrre!i to.
(ii) There was no retrospcctivity in the rule. All that it provided \Vas
that from the date it came into ~orce the age of retirement would be 55
years.
The rule would operate only for the period after it can1e into
force.
Nor did the proviso make it retrospective.
It only provided JS
to how the period of service beyond 55 years 'Should be treated in vie\~: of
the earlier rule of 1957 which was being changed by thq rule of 1961. The
694
SUPREME
COURT
REPORTS
[1965] l S.C.ll.
second order issued on the same day clearly showed that there was no
retrospective operation of the rule for in actual fact no Government servant below 58 yean was retired before the date of the new rule i.e. May
25, 1961. Thus the new rule reducing the age of retirement from 58 years
to 55 yean could not be held to be rcLrOSpecti>e. (698 A.CJ.
(iii) There was no force in the contention that the new rule was discriminatory ina(jmuch as different Government servants were retired on
December 31, 1961 at different ages.
The rule treated alike all those who
were between the age of 55 and 58 years. Those who were retired on
December 31, ! 961 certainly retired at different ages but that was '"
because their services were retained for different periods beyond the age
of 55.
Government wa.c; not obliged to retain the services of evcrv public
servant for the same length of time. 1be retention of public scivants after
the period of retirement depended upon their efficiency and the c~igcncic~
of public service, and in the present case the difference in the period of
retention h

## Text

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BISHUN NARAIN MISHRA
v.
ST ATE OF UTT AR PRADESH AND OTHERS
Octobe~ 7, 1964
(P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO,
M. HIDAYATULLAH, RAGHUBAR DAYAL AND
J. R. MUDHOLKAR JJ.)
693
Constitution of India Arts. 311, 14--Civil Service-Age of superannuation-Raised from 55 to 58 yetus and again reduced to 55 years-Termination of service as a resul.t of reduction of age of superannuation ·whether
attracts Art. 31 l-Nt>tification whether retrospective, discriminatory.
By a notification dated November 27, 1957 the Government of Uttar
Prade5h raised the age of superannuatien for members of its s~rvice from
55 to 58 years.
On May 25, 1961 by a notification under Art. 309 the
Government again reduced the age to 55 years.
By a proviso to the later
notification it was laid down that those who owing to the earlier notification
had continued in employment beyond the age of 55 years will be deemed
to have been retained in service beyond the date of con1pulsory retirement.
Another order was issued by the Government
the same day
directing that all those who were between the age of 55 years and 58 years
and had been retained in service' in the above manner would be retired on
December 31, 1961.
The appellant who attained the age of 55 years on
December 11, 1960 and was continued in service when the age of retirement was raised to 58 years was one of those who were retireu on December
31, 1961.
Aggrieved, he filed a \Vtit petition before the High Court
\vhich v.'as disn1isse<l and an appeal to the Division Bench also failed.
Appeal was filed before the Supreme· Court by special leave.
It was pointed out on behalf of the appellant that :
( I ) the change in the rule of retirement made by the notification of
May 25, 1961, was hit by Art. 311 as it amounted to removal of public
.servants from service \vithout complying
with
the
requirements
of
Art. 311(2).
·
(2) the rule in question beihg retrospective was bad as no notification
could be made retrospectively; and
(3) the rule was hit by Art. f4 inasmuch as it resulted in inequality
between public servants in the matter of retirement.
HELD: (i) There is no provision which takes away the power of
Government to increase or reduce the age of superannuation and tl1e,refore
as the rule in question onJ~
.. dealt with the age of superannuation and the
appellant had to retire because of the reduction in the age of superannuation it cannot be said that the termination of his service \vhich thus came
about was removal within the meaning of Art. 311. [697 B-E].
~foti Rain Deka 'l General Manager,
North
Frontier Rly., A.LR.
1964 S.C. 600 refcrre!i to.
(ii) There was no retrospcctivity in the rule. All that it provided \Vas
that from the date it came into ~orce the age of retirement would be 55
years.
The rule would operate only for the period after it can1e into
force.
Nor did the proviso make it retrospective.
It only provided JS
to how the period of service beyond 55 years 'Should be treated in vie\~: of
the earlier rule of 1957 which was being changed by thq rule of 1961. The
694
SUPREME
COURT
REPORTS
[1965] l S.C.ll.
second order issued on the same day clearly showed that there was no
retrospective operation of the rule for in actual fact no Government servant below 58 yean was retired before the date of the new rule i.e. May
25, 1961. Thus the new rule reducing the age of retirement from 58 years
to 55 yean could not be held to be rcLrOSpecti>e. (698 A.CJ.
(iii) There was no force in the contention that the new rule was discriminatory ina(jmuch as different Government servants were retired on
December 31, 1961 at different ages.
The rule treated alike all those who
were between the age of 55 and 58 years. Those who were retired on
December 31, ! 961 certainly retired at different ages but that was '"
because their services were retained for different periods beyond the age
of 55.
Government wa.c; not obliged to retain the services of evcrv public
servant for the same length of time. 1be retention of public scivants after
the period of retirement depended upon their efficiency and the c~igcncic~
of public service, and in the present case the difference in the period of
retention had arisen on account of the exigencies of public service.
(698
F-H].
C1v11. ArrHLATE JURISDICTION : Civil Appeal No. 1053 of
1963.
Appeal from the judgment and order dated March 29, 1962
of .the Allahabad High Court in Special Appeal No. 249 of 1962.
M. P. Baj{'ai and K. K. Sinha, for the appellant.
C. B. Af?anrnla and 0. P. Rana, for the respondents.
The Judgment of the Court was delivered by
Wanchoo J.
This is an appeal on a certificate granted by
the High Court of Allahabad and arises in the following circumst<inces.
The appellant was in the service of the State of Uttar
Pradesh as Sub-Registrar. He was born on December 11, 1905
and was recruited in service in July 1933. At the time of his recruitment the age of retirement (or superannuation) for government
servants of his class was 55 years. Therefore, nonnally he should
have retired on December 11, 1960. But by a notification dated
November 27, 1957, the Government of Uttar Pradesh (hereinafter referred to as the Government) raised the age of retirement
(or superannuation) to 58 years. This meant that the appellant
would have retired on December 11, 1963. On May 25, 1961,
the Government again reduced the age of retirement (or superannuation) to 55 years by a ·notification of that date issued under
Art. 309 of the Constitution.
Further a proviso was added in
the rule~ relating to retirement in these terms :-
"Provided that a Government serv.Jit who had not
retired on or before June 17, 1957 but has subsequently
attained the age of 55 years and has on May 25, 1961
not attained the age of 58 years shall, for the period
he has continued to serve after attaining the age of 55
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years be deemed to have been retained in service beyond
the date of compulsory retirement, i.e., the age of 55
years within the meaning of the Rule aforesaid."
Further as this change in the age of retirement would have
resulted in immediate retirement of all government servants above
B the age of 55 years with consequent dislocation of public service,
another order was issued by the Governor on the same day
directing that any government servant who had on or before '.he
date of the order already been directed in pursuance of the proviso
set out above to be retained beyond the age of compulsory retirement ( oc superannuation) shall be so retained in accordance with
c the Schedule attached to the order. This Schedule provided thatD
E
( 1) Government servants who ha,d on May 25,
1961 crossed the age of 57 years were to be retained
up to the date on which they attafoed the age of 58
years or up to December 31, 1961 whichever was ear·
lier;
(2) Government
servants who had on May 25,
1961 crossed the age of 55 years but had not crossed
the age of 57 years were to be retained up to Decem·
ber 31, 1961; and
( 3) Government servants, who would cross the age
of 55 years between May 25, 1961 and December 30,
1961 were to be retained up to December 31, 196 I.
The effect of this order was that all government servants who
would have retired because of the change in the age of retirement
after May 25, 1961 and before December 30, 1961 were retained
in service up to ·December 31, 1961 except those who reached
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the age of 5 8 years before December 31, 1961 in which case they
were to retire at the age of 58 years. In consequence of this order,
the appellant who had crossed the age of 55 years before May 25,
1961 but had not crossed the age of 57 years was retired on
December 31, 1961, though if the earlier rule of November 27,
G
1957 had continued he would have retired on December 11, 1963.
This reduction in the age of retirement led to a writ petition
by one Ram Autai: Pandey in the High Court challenging the
power of Government to reduce the age of retirement. That
petition was heard by a Fu)! Bench of the Allahabad High Court
and was dismissed on December 21, 1961 :
(see Ram A.utar
H
Pandey v. State of U.P.)('). The petition out of which the preseot appeal has arisen was filed on December 4, 1961 and was.
(l) l.L.R. [1962] l All. 793.
696
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[ 1965] I S.C.R.
dismissed on March 29, 1962 following the decision in Ram Autar
Pandey's case(').
Thereupon there was an appeal to the Division
Bench which was also dismissed on the same basis. Then followed
an application for leave to appeal to this Court which was granted;
and that is how the matter has come up before us.
Three points have been urged on behalf of the appellant in
support of the appeal. It is urged that-
( 1 ) The change in the rule of retirement made by
notification of May 25, 1961 was hit by Art. 311 of
the Constitution as
amounted to removal of public
servants from service without complying with the
requirements of Art. 311 (2);
( 2) The rule in question being retrospective wa•
bad as no notification could be made retrospecti.vely;
and
( 3) The rule was hit by Art. 14 inasmuch a' it resulted in inequality between public servant> in the matter
of retirem ~nt.
The first question that arises is whether the rule of retirement
by which the age of retirement was reduced to 55 years resulting
in the retirement of public servants earlier than what was provided
by the previously existing rule can be said :a amount to removal
within the meaning of Art. 31 I. Reliance in this connection has
been placed on Moti Ram Deka v. General Manager,
North
Frontier Railway(').
That case dealt with a rule in the Railway
Co<le giving power to the Railway Administration to terminate the
services of all pemrnnent servant> to whom the rule applied merely
on giving notice for a specified period or on payment of salary in
lieu thereof at any time during the service long before the age of
retirement. It was held therein that the termination of a permanent
public servant's tenure which was authorised by the rule in
question was nothing more nor less than removal from service
within Art. 311 and therefore they were entitled to the protection
of Art. 311 ( 2). That case in our opinion has no application to
the facts of the present case, for that case did not deal with any
rule relating to age of retirement. Further it was made clear in
that very case that a rule a> to superannuation (retirement) or a5
to compulsory retirement shortly before the age of superannuation
resulting in the termination of service of a public servant did not
amount to removal. In the present case what has happened is that
the Government first raised the age of retirement from 55 yea~
to 58 years in the year 1957 and the appellant got the advantage of
I) J.L.R. (1962) All. 793.
(2) A.I.R. 1964 S.C. 600.
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B. N. MISHRA v. STATE (Wanchoo 1.)
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that inasmuch as he remained in service after December 11, 1960
un which date he would have otherwise retired on completing the
age of 55 years. Thereafter in 1961, the Government seems to
have changed its mind as to the age of superannuation and reduced
it back again to 55 years. Even so the rule dealt with the age
of superannuation and the tennination of service on reaching the
age of superannuation was held by the majonty in Moti Ram
Deka's case(') as out of the application of Art. 311. We have
not been shown any provision which takes away the power of
government to increase or reduce the age of superannuation and
therefore as the rule in question only dealt with the age of superannuation and the appellant had to retire because of the reduct.ion
in the age of superannuation it cannot be said that the termina!lon
of his service which thus came about was removal within the
meaning of Art. 311. The alteration in the circumstances of this
ca~e at least cannot be regarded as unreasonable. The argument
that the termination of service resulting from change in the age of
superannuation amounts to removal within the meaning of Art. 311
and therefore the necessary procedure for removal should have
been followed is negatived by the very case on which the appellant
relies. We therefore hold that Art. 311 has no application to the
termination of service of the appellant in the present case.
The next contention on behalf of the appellant is that the rule
is retrospective and that no retrospective rule can be made. As
we read the rule we do not find any retrospectivity in it. All that
the rule provides is that from the date it comes into force the age
. of retirement would be 55 years. It would therefore apply from
that date to all government servants, even though they may have
been recruited before May 25, 1961 in the same way as the rule
of 1957 which increased the age from 55 years to 58 years applied
to all government servants even though they were recruited before
1957. But it is urged that the proviso shows that the rule was
applied retrospectively. We have already referred to the proviso
which lnys down that government servants who had attained the
age of 55 years on or before June 17, 1957 and had not attained
the age of 58 years on May 25, 1961 would be deemed to have
been retained in service after the date of superannuation, namely
5 5 years.
This proviso in our opinion does not make the rule
retrospective; it only provides as to how the period of service beyond
55 years should be treated in view of the earlier rule of 1957
which was being changed by the rule of 1961. Further the second
order issued on the same day also clearly shows that there was
(1) A.l.R
19~4 S.C. 600
698
SUPREME
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REPORTS
[1965] 1 S.C.R.
no retrospective operation of the rule for in actual effect no government servant was retired be[ore the date of the new rule i.e.,
May 25, 1961 and all of them were continued in service up to
December 31, 1961 except those who completed the age of 58
years between May 25, 1961 and December 31, 1961 and were
therefore to retire on reaching the age of superannuation according to the o!d rule. We are, therefore, of opinion that the new rule
reducing the age of retirement from 58 years to 55 years cannot
be said to be retrospective.
The proviso to the new rule and
the second notification are only methods to tide over the difficult
situation which would arise in the public service if the new rule
was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule therefore, cannot be struck down on the ground that it is retrospective
in operation.
The last argument that has been urged is that the new rule is
discriminatory as different public servants have in effect been
retired at different ages. We see no force in this contention either,
retirement namely December 31, 1961 in the case of all public
servant• and fixe• the age of retirement at 55 years. There is no
discrimination in the rule itself. It is however urged that the
second notification by which all public servants above the age of
55 years were required to retire on December 31, 1961 except
those few who completed the age of 58 years between May 25,
196 ! and December 31, 1961 shows that various public servants
were retired at various ages ranging from 5 5 years and one day
to up to 58 years. That certainly is the effect of the second order.
But it is remarkable that the order also fixed the same date of
retirement namely December 31, 1961 in the case of all public
servants who had completed the age of 55 years but not the age of
58 years before December 31, 1961. In this respect also, therefore,
there was no discrimination and all public servant• who had completed the age of 55 years which was being introduced as the age
of superannuation by the new rule by way of
reduction
were
ordered to retire on the same cl-Jte, namely December 31, 1961.
The result of this seems to be that the affected public servants
retired at different ages. But this was not because they retired at
different ages but because their services were retained for different
periods after the age of fifty-five.
Now it cannot be urged that
if Government decides to retain the services of some public servants
after the age of retirement it must retain every public servant for
the same length of time..
'The retention of public servants after
the period of retirement depends upon their efficiency and the
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B. N. MISHRA v. STATE (Wanchoo J.)
699
exigencies of public service, and in the present case the difference
in the period of retention has arisen on account of exigencies of
public service.
We are, therefore, of opinion that the second
notification of May 25, 1961 on which reliance is placed to prove
discrimination is really not discriminatory, for it has treated all
public servants alike and fixed December 31, 1961 as the date
of retirement for- those who had completed 55 years but not 58
years up to December 31, 1961. The challenge therefore, to the
two notifications on the basis of Art. 14 must fail.
We therefore, dismisi the appeal but in the circumstances pass
no order as to costs.
Appeal dismissed.