# TAKHATRAY SIDVDATRAY MANKAD v. STATE OF GUJARAT

- **Citation:** [1970] 1 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 1969-04-09
- **Bench:** J. C. Shah, V. Ramaswam!, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/takhatray-sidvdatray-mankad-v-state-of-gujarat-4745
- **Pages:** 7

## Headnote

B
Saurashtra Co\•tnanting States Serve.nu (Superannuation age) Rr1le1,
19SS-Flxing at• of "''"""'"' al SS Y•ars unl.ss for sp.cial r"1SOns oth"·
wlu 'directed by Govt.-These u:ords 111tcn that retirement QJlt can bt
utended beyond SS years-Rule h'OUid be Invalid if lnterpWed as givir.~
pawer to Govt. to retire a person ~rlier than 55 years because r~ does
not lay d<111·n a n1inimu11: period of service-Thct interpretation sho11!d b~
placed 14•/Jicli 11z.akes Rn/es valid and not invalid-Conditions were varied
to disadvantage when r. 16l(c) (2) (ii) (I) of Bombay Civil Sen·ice
Ru~s, 1959 'k'as applied to person previously
governed by Sawashtra
Rule-When done without a.'isenl of President this was in
t:iolation
of
s. 115(7) of the States Reori:anisation Act, 19S6.
The appellant originally joined the service of the Stale of Junaradh
in 1934 and \vas after the mergt!r of that State in Saurashtra confirmcJ
in September. 1956 as an executive engineer in the service of the latter
State.
Rule 3 ( i) of the Saur"'htra Covenanting States Servants (Superan·
nuation age) Rules 1955 provided: "A Govt. servant shall, unless for
special reasons otherwise directed by Govt. retire from sc'rvicc on his
complctin~ 55 years of age." After the merger of Saurashtra
in
the
bilingual Slate of Bombay the old Bombay Civil
Service
Rules
we?e
applied to Saurashtra area ""-ith effect from January 7, 1957. On July I.
19S9 the Bombay Civil Service Rules, 1959 were promulgated.
Ac.:nrd·
ing tor. 161(c)(2)(ii)(I) the age of retirement for class I Engineer; 10
the State Service v.·as fixed
~t 55 years but it y..·as further laid Jown that
they "may be required by the Government to retire on reaching the age of
50 years, if they have attained to the rank of Superintending Enginc.:r."
On the formation of the State of Gujarat the appellant's services \VCrl"
transferred 10 that State hut the Bombay Rules continued to apply. Und<r
the Bombay Ruic aforesaid, namely, r. 161 (c)(2)(ii)( l) the Government
of the Stale of Gujarat retired the appellant at the age of about 53 re•"
The appellant filed a writ petition in the High Court. The Hi~h ('.ourt
took into account s. 115(71 of the Slates Reorganisation Act, !956 ~ut
held that since the Saurashtra Rule 3(i) also empowered the Slate Government to retire the appellant at an age earlier than 55 years thcr'! ":~.; no
variation of condition'.'; of service to hi.~ disadvantage undet the Bomh~v
Rule and therefore the latter rule was not invalid for want of Presidcotiitl
assent.
'fhe High Court took the view that the expression "unless fv:-
spccia1 reasons otherwise directed by Government" in r.
3(i)
of the
Saun1shtr;1 Rulec-; meant that the Government could for special reason..,
rctir~· .1 Govcrnmcrit servant before he had attained the normal ~u~r:1n
nuatton ~gc of 55 years.
Against the l~igh Coort's judgment dismi~\ing
his writ petition the appellant came by special leave, to this Court
HELD : Rule 3(i) of the Saurashtra Rules. if construed Or inter·
pretcd in the manner in which it had been done by the Hi~h Court, would
bring it into direct conflict with Motl Ram Dtka's case as well .. other
cases decided by this Court. In Motl Ram Deka's case it was laid down
that if any ru1e .permitted the appropriate authorities to retire cC1mpulsorily a civil servant without imposing a limitation in that behalf that such
c
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TAKHATRAY v. GUJARAT (Grover, J.)
245
civil servant should have put in a minimum period of service, that rule
would be invalid and the so-called retirement ordered under the said rule
would amount to remcval of the civil servant within the meaning of Art.
311(2) of the Constitution. The principle is that the rule relating to
compulsory retirement of a Government servant must not only contain
the outside limit of superannuation but there must also be a provision for
a reasonably long period of qualified service which must be indicated with
sufficient clarity. For exμmple if 55 years have been s

## Text

244
TAKHATRAY SIDVDATRAY MANKAD
v.
STATE OF GUJARAT
April 9, 1969
[J. C. SHAH, V. RAMASWAM! AND A. N. GROVER, JJ.]
B
Saurashtra Co\•tnanting States Serve.nu (Superannuation age) Rr1le1,
19SS-Flxing at• of "''"""'"' al SS Y•ars unl.ss for sp.cial r"1SOns oth"·
wlu 'directed by Govt.-These u:ords 111tcn that retirement QJlt can bt
utended beyond SS years-Rule h'OUid be Invalid if lnterpWed as givir.~
pawer to Govt. to retire a person ~rlier than 55 years because r~ does
not lay d<111·n a n1inimu11: period of service-Thct interpretation sho11!d b~
placed 14•/Jicli 11z.akes Rn/es valid and not invalid-Conditions were varied
to disadvantage when r. 16l(c) (2) (ii) (I) of Bombay Civil Sen·ice
Ru~s, 1959 'k'as applied to person previously
governed by Sawashtra
Rule-When done without a.'isenl of President this was in
t:iolation
of
s. 115(7) of the States Reori:anisation Act, 19S6.
The appellant originally joined the service of the Stale of Junaradh
in 1934 and \vas after the mergt!r of that State in Saurashtra confirmcJ
in September. 1956 as an executive engineer in the service of the latter
State.
Rule 3 ( i) of the Saur"'htra Covenanting States Servants (Superan·
nuation age) Rules 1955 provided: "A Govt. servant shall, unless for
special reasons otherwise directed by Govt. retire from sc'rvicc on his
complctin~ 55 years of age." After the merger of Saurashtra
in
the
bilingual Slate of Bombay the old Bombay Civil
Service
Rules
we?e
applied to Saurashtra area ""-ith effect from January 7, 1957. On July I.
19S9 the Bombay Civil Service Rules, 1959 were promulgated.
Ac.:nrd·
ing tor. 161(c)(2)(ii)(I) the age of retirement for class I Engineer; 10
the State Service v.·as fixed
~t 55 years but it y..·as further laid Jown that
they "may be required by the Government to retire on reaching the age of
50 years, if they have attained to the rank of Superintending Enginc.:r."
On the formation of the State of Gujarat the appellant's services \VCrl"
transferred 10 that State hut the Bombay Rules continued to apply. Und<r
the Bombay Ruic aforesaid, namely, r. 161 (c)(2)(ii)( l) the Government
of the Stale of Gujarat retired the appellant at the age of about 53 re•"
The appellant filed a writ petition in the High Court. The Hi~h ('.ourt
took into account s. 115(71 of the Slates Reorganisation Act, !956 ~ut
held that since the Saurashtra Rule 3(i) also empowered the Slate Government to retire the appellant at an age earlier than 55 years thcr'! ":~.; no
variation of condition'.'; of service to hi.~ disadvantage undet the Bomh~v
Rule and therefore the latter rule was not invalid for want of Presidcotiitl
assent.
'fhe High Court took the view that the expression "unless fv:-
spccia1 reasons otherwise directed by Government" in r.
3(i)
of the
Saun1shtr;1 Rulec-; meant that the Government could for special reason..,
rctir~· .1 Govcrnmcrit servant before he had attained the normal ~u~r:1n
nuatton ~gc of 55 years.
Against the l~igh Coort's judgment dismi~\ing
his writ petition the appellant came by special leave, to this Court
HELD : Rule 3(i) of the Saurashtra Rules. if construed Or inter·
pretcd in the manner in which it had been done by the Hi~h Court, would
bring it into direct conflict with Motl Ram Dtka's case as well .. other
cases decided by this Court. In Motl Ram Deka's case it was laid down
that if any ru1e .permitted the appropriate authorities to retire cC1mpulsorily a civil servant without imposing a limitation in that behalf that such
c
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B
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G
TAKHATRAY v. GUJARAT (Grover, J.)
245
civil servant should have put in a minimum period of service, that rule
would be invalid and the so-called retirement ordered under the said rule
would amount to remcval of the civil servant within the meaning of Art.
311(2) of the Constitution. The principle is that the rule relating to
compulsory retirement of a Government servant must not only contain
the outside limit of superannuation but there must also be a provision for
a reasonably long period of qualified service which must be indicated with
sufficient clarity. For exμmple if 55 years have been specified as the
age of superannuation antl if it is sought to retire the servant even before
that period it should be provided in the rule that he could be retired after
he bas attained the age of 50 years or he has put in service for a period
of 25 years. [248 G-249 G]
On the above principle rule 3 (i) of the Saurashtra Rules would have IG
be declared invalid if the expfcssion "unless for special reasons otherwise
directed by Government" is so construed as to give a power to
enter
compulsory retirement eve::i before attaining the ·age of 55 years. A statutory rule, however, should be so interpreted as to make it valid and
not invalid. Tile correct interpretation of Rule 3(i) is that it gives ·power
to the Government to allow, a Government servant to remain in service
even beyond the age of 55 years for special reasons; so constru~d the
Rule would not be invalid and the appellant could not under it have been
retired be'fore he had attained the age of 55 years.
By applying die.
Bombay Rule his conditions' of service were varied <to his disadvantage
because he could then be compulsorily retired as soon as he
attained
the age of 50 years. As the previous approval of the Central Government
was not obtained in accordance with the Ji'oviso to s. 115 (7) of the States
Reorganisation Act, 1956, the Bombay Rule could not be made applicable
to the appellant. [249 G-250 C]
The appellant was thus entitled to remain in service until he attained
the age of SS years and the impugned order directing hi• retirement was
invalid and ineffective. [250 E--F]
Bholanath !. Thaker v. St<te of Saurashtra, A.l.R. (1954) S.C. 680,
refer'red to.
Moti Ram Deka etc. v. General Manager N.E.F. Railways MaUgaon,.
Pcndu etc. [1964] 5 S.C.R. 683, State of Bombay v. Saubhagchand M.
poshi, [1958] S.C.R. 571, P. Balakotaiah v. Union of India. [1958] S.C.R.
1052, Da/ip Singh v. Statt of Punjab, [1961] 1 S.C.R. 88 and
Gurdev
Singh Sidhu v. State of Punjab & !4nr. [1964] 7 S.C.R. 587, applied.
CIVIL APPBLLATJ! JUlllSDICTION : Civil Appeal No. 409 of
1966.
Appeal by special leave from the judgment and order dated
July 5, 1963, of the Gujarat High Court in Special Civil Application No. 827 of 1961.
R. Gopalakrishnan, for the appellant.
G. L. Sanghi, S. K. Dholakia and R. N. Sachthey, for the
respondent.
H
The Judgment of the Couri was deliveted by
Grover, J. This is an appeal by special leave from a
judgment of the Gujarat High Court dismissing a petition under
L83Sup.Cl/69-2
SUPREME COURT REPORTS
[ 1970] l S.C.R·
Art. 226 of the Constitution by whi~h tho order, retiring the
appellant from service before he had attained the age of 55 years,
)lad been challenged.
The appellant had joined the service of the erstwhile State of
Junagadh on August 1, 1934. That State merged into the State
of Saurashtra on January 20, 1949. The appellant continued to
remain in the service of that State having been confirmed as an
Executive Engineer on September 24, 1956. On the merger of
Sauras}ltra in the new billingual State of Bombay on November
l, 19S6, the appellant was absorbed in the service of the said
State. On the bifurcation of the State of Bombay on May l,
1960, he was assigned to the State of Gujarat and was absorbed
as a permanent Executive Engineer there. On October 12, 1961
the State of Gujarat made an order retiring the appellant from
the service with effect from January 12, 1962. On that date he
had not attained the age of 55 years but he was about 53 years
old. This order was made in exercise of the powers conferred by
Rule 161 of the Bombay Civil Service Rules, 1959. The order of
retirement was challenged by the appellant by means of a writ
petition which was dismissed.
It is common ground that when the appellant was
in the
-service of the erstwhile State of Junagadh his
conditions of
service were governed by the Junagadh State Pension and Parwashi Rules which had been made by the 71!ler of the State who
exercised sovereign legislative powers. According to those rules
the age of superannuation was 60 years. Before the inclusion of
the Junagadh State in the State of Saurashtra the Rajpramukh
had promulgated an Ordinance cailed the Saurashtra State ~gu
lation of Government Ordinance 1948. By s. 4 of that Ordinance
all the Jaws in force in the covenanting States prior to their
integration were continued in force in the State of Saurashtra
until repealed or amended under s. 5. Notwithstanding this th.~
Saurashtra Government adopted and applied the Bombay Civil
Service Rules which were then in force in the State of Bombay
A
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by an order dated September 23, 1948. This Court in Bho/anath
J. Thaker v. The State of Saurashtra(') held that the Rules as
regards the age of superannuation which prevailed in the covenG
anting State which in that case was the State of Wadhwan continued to govern those government servants who had come from
that State and had been absorbed in the services of the State of
Saurashtra. In view of that <!ecision the State of Saurashtra made
the Saurashtra Covenanting
State
Servants
(Superannuation
age) Rules, 1955, hereainaftcr called the "Saurashtra
Rules'',
in exercise of the power conferred by Art. 309 of the Constitution. Ruic 3(i) provided:
(I) A.i.R. 1954 s.c. 680.
II
••
TAKHATRAY v. GUJARAT (Grover, J.)
247
A
"A Govt. servant shall, unless for special reasons
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G
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otherwise directed by Govt. retire from service on his
completing 55 years of age."
After the integration of the Saurashtra State into the State
of Bombay a resolution was passed by the Government on January 7, 1957 applying the old Bombay Civil Service Rules to
Saurashtra area.
On July 1, 1959 the Bombay Civil Service
Rules 1959, hereinafter called the "Bombay Rules" were promulgated under Art. 309 of the Constitution. Clause (c)(2)-
(ii)(l) of Rule 161 is as follows:
"Except as otherwise provided in this Sub-clause,
Government servants in the Bombay Servi'ce of Engineers, Class I, must retire on reaching the age of 55
years, and may be required by the Government to retire on reaching the age of 50 years, if they have attained
to the rank of Superintending Engineer."
It was under· this rule that the order retiring the appellant was
made.
·
In the High Court the writ petition filed by the appellant was
heard and disposed of with two other similar petitions in which
identical questions had been raised. A number of points were
raised· in the High C01,1rt but it is unnecessary to refer io them
because the. questions on which the present appeal can be disposed of are only.two : (1) Whether the appellant was governed
by the Saurashtra Rules or the Bombay Rules and (2) even if
the Saurashfra Rules were applicable could the retirement of the
appellant be ordered before he had attained the age of 55 years.
The High Court rightly looked at the provisions of s. 115(7) of
the States Reorganisation Act 1956. It is provided thereby that
nothing in the section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV
of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs
of the Union or any State. The proviso is important and Jays
down that the conditions of service applicable immediately before the appointed day to the case of any person referred to in
sub-section (1) or sub-section (2) (of s. 115)
shall not be
varied to his disadvantage except with the previous approval in
the Central Government.
The case of the appellant fell within
the proviso and it had, therefore, to be determined whether the
conditions of service applicable to the appellant immediately before the appointed day which admittedly were contained in .the
Saurashtra Rules had been varied to his disadvantage, and if so,
whether the approval of the Central Government had been obtained. It was conceded before the High Court by the learned
SUPREME COUllT REPORTS
(1970] I S.C.R.
Advocate General, who appeared for the State, that no previous
approval of the Central Government had been obtained to vary
the conditions of service of those public servants who were serving in the State of Saurashtra until November
I,
1956. The
High Court in this situation proceeded to decide whether by the
application of Rule 161 of the Bombay Rules the conditions of
service of the appellant contained in the Saurashtra Rules had
been varied to his disadvantage. It was argued on behalf of the
appellant that the expression "unless for special reasons otherwise
directed by Government" in Rule 3 (i) of the Saurashtra Rules
provided for extension of the age of superannuation beyond 55
years and not for reduction thereof. The Advocate General had
argued that what was meant by the aforesaid words was that Government could, for special reasons, retire a Government servant
before he had attained the age of .55 years which was the normal
superannuation age.
U that was so Rule 161 ( c) ( 2 )(ii) ( I ) of
the Bombay Rules could not be regarded as having varied
the.
conditions of service contained in the Saurashtra Rules to
the
disadvantage of the Government servants.
The High Court was
of the view that while framing the Saurashtra Rules the draftsmen who must have been well aware of the then Bombay Civil
Service Rules which were in the same terms as Rule 161 of the
Bombay Rules could not have framed the clause in such manner
B
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as to introduce an element of discrimination between Executive
Engineers who had been absorbed from a Covenanting State and
those who had been appointed or recruited directly by the State
11
Government In the opinion of the High Court even under the
Saurashtra Rules retirement could be ordered before a person had
attained the age of 55 years.
It was, therefore, held that the
conditions in Rule 16l{c)(2){ii) of the Bobmay Rules had not
been shown to be less advantageous or disadvaniageous to the
appellant than the conditions in Rule 3(i) of the Saurashtra
Rules by which the appellant was governed until November 1,
1956. In this manner the proviso to s. 115(7) of the States Reorganisaiion Act 1956 did not stand in the way of the applicability of the Bombay Rules.
We find it difficult to concur with the view of the High Court.
Rule 3(i) of the Saurashtra Rules, if construed or interpreted In
the manner in which it has been done by the High Couri, would
bring it into direct conflict with the law laid down by this Court
in Moti Ram Deka etc. v. General Manager, N.E.F. ·Railways
Maligaon, Pandu etc. (1), which is a judgment of a bench of
seven judges of this court. One of the matters which came up
for consideration was the effect of a service rule which permitted
compulsory retirement without fixing the minimum period of service after which the rule could be invoked.
According to
the
Cn i!964J 5 S. C. R. 683.
G
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t
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i
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f
TAKHATRAY v. GUJARAT (Grover, !.)
249
A
observations of Venkatarama Ayyar, J., in The State of Bombay
v. -Saub_hagchand M. Doshi(') the application of such a rule
would be "tantamount to dismissal or removal under Art. 311 (2)
of the Constitution.
There were _cJlrtain other decisions of this
Court which wert; relevant on "this_ point, viz. P. Balakotaiah v.
B
·~
D,.
E
F
G
H
The UoiQn pf India & Ors.(') and D_q/ip,Singhv. The State. of
Punjab('). All these decisions were considered in Moti Ram
Deka's case(4l and the true legal position was stated in the ;najority judgment at page 726 thus :
. " ..... "We think. that if any Rule permits the appropriate authority to retire compulsorily a civil servant
without imposing a limitation in that behalf that such
civil servant should have put in a minimum period of
service, that Rule would be invalid and the
so-called
retirement ordered under the said Rule would amount
to .removal of the civil servant within the meaning of
Art. 311 (2)."
In Gurdev Singh Sidhu v. State of Punjab &
Anr. (5 ), it _was
pointed out that the orily two exceptions to the protection afforded by Art. 311(2) were,-(1) where a permanent public servant was asked to retire on the ground that he had reache4 the
age of superannuation which was reasonably fixed·; (2) that he
was compulsorily retired under the Rules which prescribed the
normal age of superannuation and provided a reasonably long
period of qualified service after which alone compulsory retirement could be valid. The basis on which this .view has proceeded is that for efficient administration it is necessary that public
servants should enjoy a sense of s.ecurity of tenure and that the
iermination of service of a l)Ublic servant under a rule which does
not lay down a· reasonably long period of qualified service is in
substance removal under Art. 311 (2). The principle is that the·
rule relating to compulsory retirement of a Government servant
must not only contain the outside limit of superannuation but
there must also be a provision for a reasonably Jong period of
qualified service which must .. be indicated with sufficient clarity.
To give an example, if 55 years ha".e been specified as the age
of superannuation and if it is sought to refire the servant even
before that period it should' be provided in the rule that he could
be retired after he has attained the age of 50 years or )le ha~ put
in service for a period of 25 years.
Now Rule 3 (i) of the Saurashtra Rules will have to be dee-.
Jared invalid if the expression "unless for special reasons other-
(I) ;1958] S.C.R. m ·
(J) (1961] 1 S.C.R. 88.
(5) [1964] 7 S.C.R. 587.
(2) [1958] S.C.R. l 052.
(4) (19641, 5 S.C.R. 683.
250
'-
SUl'REME COURT REPORTS '
[!no) I s.c.il.
wise directed by Government" ·.is so construed as· to give a power
A.
to order compulsory retirement even before attaining the age of
:;5 years. It is well-known that a Jaw or·a statutory r11le should
be so interpreted as to make it valid and riot invalid. If this
expression is confined to what was argued 'before the High Court,
namely, that it gives power tp the Government to alJow a Government 3ervant to remain in service even .beyond the age of 55 years
for special reasons the rule will nbt be rendered invalid and its
validity will not be put iri jeopardy. So. construed it is apparent
that the appellant could not have bePn. retired compulsorily
under the Saurashtra Rules before he had attained the age of 55
years.
By applying the Bombay rule hi> ·conditions of service
were varied to his disadvantage because he could then be compulsorily retired as s9on >is he attained the; age of 50 years. As
the previous approval of the.Central Governueht was not obtained
in accordance with the proviso to s. 115(7) of the States Reorganisation Act 1956, the Bombay. rule could n·ot be made _applicable to the appellant.·
Cour.sel for the State pressed us to look into certain docu-
·I>
ments for the purpose of finding out whether prior approval of
the Central Government was obtained in the matter of varying
the conditions of service of the appellant by applying the Bombay rules. But none· of these documents were .referred to before
the Hi_gh Court and itt the presence of a Clear concession by the
iearned Advocate General we see no justification fqr acceding to·
such a request.
In ·this view of the matter this appeal must succeed and it
is hereby.. allowed with .costs in thi~· Court.. It is declared t':a.t
the appellant was entitled to remain in service until he attained
the a)le of 55 years and that the· impugned .order directing his
E
retirement was invalid and ineffective. ·
F
G.C.
Avpeal al/owect.
\
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1