# UNION OF INDIA v. MOOL CHAND DASUMAL PARDASANI

- **Citation:** [1972] 1 S.C.R. 608
- **Court:** Supreme Court of India
- **Decided:** 1971-09-03
- **Case number:** Civil Appeal No. 2201 of 1970
- **Bench:** S. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-mool-chand-dasumal-pardasani-5405
- **Pages:** 6

## Headnote

A. N. RAY AND D. G. PALEKAR, JJ.J
Civil Service-Fundamental Rule 56(b) (i)-Pre 1938 ministerial ser-
·vant-Memorandum dated December
31, 1963-Men1orandun1
given
effect to by government-Denial of benefit would be
infraction of Art.
14--Constilution of India. Article 14.
Clause b(i) of Fundamental Rule 56, as .it stood prior to November
30, 1962 provided that a pre 1938 ministerial servant might be required
to retire at the age of 55 years but should" ordinarily be retained in service, if he continued efficient, upto the age of 60 years.
By memorandum dated 3 lst December, 1963, the
President of !ndfa decided that,
subject to the right conferred by memorandum dated November 30, 1962,
to retire any officer on three months' notice after he attained the age of 55
years; pre-1938 ministerial officers governed by P.R. 56(b){i) bad to be
continued in service like all other government servants upto the age of 58
years without an annual order sanC:tioning tfi'!ir retention.
The respondent was a ministerial government servant governed by Clause b(i). He
entered government service prior to April, 1938 and would have attained
the age of 55 years on March 14, 1964.
On
December
18, 1963 the
Collecto·r, Central Excise passed an order retiring the respondent
from
-service.
The order gave the respondent option to retire with effect from
March 14, 1964 or to proceed on leave as might be admissible or granted
to him preparatory to retirement.
The respondent was on preparatory
leave extending upto 28
months after
March
14, 1964 and was paid
the salary that was admissible to him for this leave. period.
The High
Court quashed the order of retirement and held that the respondent would
be deemed to be in service until he attained the age of 60 years. The High
Court further was of the view that the memorandum was not in
the
nature of executive or administrative instruction.
Dismissing the appeal,
HELD : The orders of the High Court that the respondent would be
deemed to be in service until he attained the age of 60 had to be upheld.
The memorandum was given effect to in relation to ministerial servants
at all relevant times subsequent to December 31, 1963.
The government
acted on the memorandum.
The respondent would
be entitled to the
benefit of the mentorandum as all other government servants were at the
relevant time. .To deny the respondent operation of the memorandum
will be infraction of Art. 14 of the Constitution. [612 F-G]
The resp0ndent was on preparatory leave extending upto 28 mouths
after March 14, 1964; and he was paid the salary that was admissible to
him.
Therefore,
for 28
months
he continued
to be a government
~rvant. Talcing into consideration these features it is clear that the respondent was entitled to the benefit of the increased
age of retirement
namely 58 years and thereafter upto 60 years in accordance
with
the
memorandum. [613 Al
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UNION V. MOOL CHAND (Ray, J.)
609
[The Court did not find it necessary to express any opinion on the
question whether the memorandum was a mere executive or administrative instruction or had the force of a statutory rule.] [613 C-D]

## Text

608
UNION OF INDIA
v.
MOOL CHAND DASUMAL PARDASANI
September 3, 1971
[S. M. S!KRI, C.J.,
A. N. RAY AND D. G. PALEKAR, JJ.J
Civil Service-Fundamental Rule 56(b) (i)-Pre 1938 ministerial ser-
·vant-Memorandum dated December
31, 1963-Men1orandun1
given
effect to by government-Denial of benefit would be
infraction of Art.
14--Constilution of India. Article 14.
Clause b(i) of Fundamental Rule 56, as .it stood prior to November
30, 1962 provided that a pre 1938 ministerial servant might be required
to retire at the age of 55 years but should" ordinarily be retained in service, if he continued efficient, upto the age of 60 years.
By memorandum dated 3 lst December, 1963, the
President of !ndfa decided that,
subject to the right conferred by memorandum dated November 30, 1962,
to retire any officer on three months' notice after he attained the age of 55
years; pre-1938 ministerial officers governed by P.R. 56(b){i) bad to be
continued in service like all other government servants upto the age of 58
years without an annual order sanC:tioning tfi'!ir retention.
The respondent was a ministerial government servant governed by Clause b(i). He
entered government service prior to April, 1938 and would have attained
the age of 55 years on March 14, 1964.
On
December
18, 1963 the
Collecto·r, Central Excise passed an order retiring the respondent
from
-service.
The order gave the respondent option to retire with effect from
March 14, 1964 or to proceed on leave as might be admissible or granted
to him preparatory to retirement.
The respondent was on preparatory
leave extending upto 28
months after
March
14, 1964 and was paid
the salary that was admissible to him for this leave. period.
The High
Court quashed the order of retirement and held that the respondent would
be deemed to be in service until he attained the age of 60 years. The High
Court further was of the view that the memorandum was not in
the
nature of executive or administrative instruction.
Dismissing the appeal,
HELD : The orders of the High Court that the respondent would be
deemed to be in service until he attained the age of 60 had to be upheld.
The memorandum was given effect to in relation to ministerial servants
at all relevant times subsequent to December 31, 1963.
The government
acted on the memorandum.
The respondent would
be entitled to the
benefit of the mentorandum as all other government servants were at the
relevant time. .To deny the respondent operation of the memorandum
will be infraction of Art. 14 of the Constitution. [612 F-G]
The resp0ndent was on preparatory leave extending upto 28 mouths
after March 14, 1964; and he was paid the salary that was admissible to
him.
Therefore,
for 28
months
he continued
to be a government
~rvant. Talcing into consideration these features it is clear that the respondent was entitled to the benefit of the increased
age of retirement
namely 58 years and thereafter upto 60 years in accordance
with
the
memorandum. [613 Al
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G
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D
E
F
G
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UNION V. MOOL CHAND (Ray, J.)
609
[The Court did not find it necessary to express any opinion on the
question whether the memorandum was a mere executive or administrative instruction or had the force of a statutory rule.] [613 C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2201 of
1970.
Appeal from the judgment and decree dated May 2, 3, and
June 16, 1969 o.f the Gujarat High Conrt in SecQnd Appeal No.
594 of 1968.
L. M. Singhvi and S. P. Nayar, for the appellant.
The respondent did not appear.
The Judgment o.f the Court was delivered by
Ray, J,
This appeal by certificate is against the judgment
dated 2/3 May, 1969 and 16 June, 1969 of the High Court of
Gujarat quashing the order dated 18 December, 1963 passed by
the Collector, Ceintral Excise, Baroda and further ordering that
the respondent will be deemed to have been continued in the
service of the Government until he atta~ned the age of 60 years.
The orde_r impeached by the respondent was as follows :-
"Central Excise Collectorate, Baroda, Establishment
Order No. 286 of 1963.
Shri Mulchand Pardasani, Upper Division Clerk,
Head Quarter Office, Baroda, who attains the age of
55 years on 14-3-1964 is hereby informed that the Collectorate Departmental Promotion Committee, 1963, has
not considered him suitable for further rete;ntion in
service beyond the age of 55 years.
He has the option
to retire with effect from 14-3-1964 fo~enoon or proceed
on leave as may be admissible and granted to him
preparatory to retirement.
Sd/ - Illegible
for Collector, 18-12-63"
The respondent filed this suit for a decree that the order of
retirement of the respondent passed by the Collector, Central
Excise, Baroda and all acts done in the course of the said order
are illegal a;nd that the respondent continued to be in service in
the post he was holding on 14 March, 1964 and for other consequential reliefs. The respondent's contention was that the order
was in contravention of his right to cQntinue in service until he
attained the age of 60 years, that the order cast a stigma on the
respondent, that three months' notice was required to be given to
the Govequnent servant to retire on his attain!ng the age of 55
S-L3Sup.C.l./72
610
SUPREME COURT REPORTS
[1972] 1 s.c.R.
years, the order of the Collector was against the orders issued under
the authority of the President o.f India raising the age of superannuation to 5 8 years.
The contentiou of the Government on the other hand was that
prior to 30 November, 1962 Fundamental Rule 56(b)(i) stated
the age of compulsory retirement of a pre-April, 1938 ministerial
servant to be 55 years.
He might be retained in service after
the age of 5 5 years if he continued efficiency but it was not a
right.
The other contention of the Gover;nment was
that the
orders regarding the respondent raising the age of superannuation
to 58 years and further that three months' notice was required to
be give,n to a Government servant to retire him on ms attaining
the age of 55 years were contained in memoranda dated 30 November, 1962 and 31 December, 1963, and the said memoranda
did •not have the force of statutory rule and were mere executive
instructions. It was also contended that even if the memorandum
was held to have the force of the statutory rule, the right of the
respondent to continue in service till the age of retirement was
subject to the absolute right of the Government to retire a Governnu;nt servant on three months' notice.
There is no dispute that the respondent was a ministerial Government servant who had entered into the Central Goverment
service prior to April, 1938 and that he would have attained the
age of 5 5 on 14 March, 1964.
Fundamental Rule 56 as it stood prior to 30 November, 1962
in clause (b) thereof dealt with ministerial servants. Clause (b )(i)
provided that a pre-1938 ministerial servant who was ,not governed
by sub-clause (ii) thereof might be required to retire at the age
of 55 years, but should ordinarily be retained in service, if he
continued efficient upto the age of 60 years. After the age of 60
years he could not be retained except in very special circumstances
to be recorded in writing and with the sanction of the Local
Government. Fundameintal Rule 56 (b) (ii) dealt with ministerial
servants who entered Government service on or after 1 April,
1938 or who bei;ng in Government service on 31 March. 1938
did not hold a lien or a suspended lien on a permanent post on
that date and stated that such ministerial servants would ordinarily be required to retire at the age of 55 years and must not be
retained after that age except on public grounds to be recorded
in writing, and with the sa)llction of the Local Government.
Such
ministerial servants in clause (b) (ii) would not be retained in service after the age of 60 years except in very special circumstances.
The respondent was governed by Fundamental Rule 56(b)(i)
\IS it stood prior to 30 November, 1962 with the result that he
might be required to retire ati the age of 55 years and that he
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UNION v. MOOL CHAND (Ray, J.)
611
should be ordinarily retained in service upto the age of 60 years,
if he cqntinued to be efficient and after the age of 60 years he
could not 'be retained in service except under special circumstances.
This Court in Kai/ash Chandra v. The Union of India(') considered Rule 2046(2) (a) of the Indian Railway Establishment
Code. Rule 2046(2.) (a) is totidem verbis as Fundamental Rule
56(b)(i). This Court held that the ministerial servant falling
within the said clause might be compulsorily retired on attaining
the age of 55, but when the servant is between the age of 55 and
60 the authority will have the option to continue him in service
subject to the condition that the servant continues to be efficient.
Therefore, there would be no right to continue in service beyond
the age of 55.
In the present case there came into existence two memoranda.
The first was dated 30 November, 1962.
The second was dated
31 December, 1963.
The December, 1963 memorandum was in
partial modification of ihe m~morandum dated 30 November,
1962. Under the December, 1963 memora:ndum it is stated that
the President of India is pleased to decide that subject to the right
of Government to retire any officer on three months' notice aJ'ter
he had attained the age of 55 years, the pre-1938
ministerial
officers governed by P.R. 56(b)(i) should be continued in service
like all other Government servants (except those whose age of
retirement is 60) upto the age of 58 years without an annual order
sarictioning their retention. After the age of 58 years and till
they attain the age of 60 years, however, such a:n annual order ·
would be necessary.
It was also provided in the memorandum
that there will be a review in the case of all employees to assess
their suitability for retention beyond the age of 55 years. It is
not ,necessary to refer to the other parts of the memorandum for
the purposes of the present appeal.
Paragraph 6 of 30 November, 1962 memorandum which
stated that notwithstanding anything contained there the appointing authority might require to retire a Government servant after
he attained the age of 55 years on three months' notice without
assigning any reason was not modified by )1 December, 1963
memorandum.
The decision of the Government to continue a
pre-1938 ministerial serva;nt upto the age of 58 years without
annual order sanctioning the retention was of course on a review
to asesss the suitability for retention beyond 55. If the Government wanted to retain a pre-193 8 ministerial servant after the age
of Si as a result of the November, 1962 and December, 1963
memoranda he would be conti;nued upto the age of 58 years
without annual orders sanctioning retention a;nd thereafter upto
the age of 60 years with annual orders sanctioning retention.
(1) [1962] l S.C.R. 374.
612
SllPR-EME COURT REPORTS
[ 1972] l S.C.R.
The respondent contended that on 28 December, 1963 the
date of the impeached order the respondent had not attained the
age of 55 and he would have attained the age of 55 years on
14 March, 1964.
That is not disputed.
Therefore, as a re3ult
of the changes introduced by the memorandum to FUilldamental
Rule 56 the respondent who was a pre-April, 1938 ministerial
Government servant would be entitled to the benefit of the
increased age of compulsory retirement subject to the right of the
Government to review his case for retention beyond the age of 55
and the right of the Government to retire him on three months'
notice. This Court in I. N. Saksena v. State of Madhya Pradesh (1)
in dealing with the effect of orders issued by the Government of
Madhya Pradesh that the age of compulsory retirement of a ministerial Government servant would be raised to 5 8 years held that it
was merely an executive direction and not a rule.
The respondent
contended that there were distinguishing features in the memoranda
in the present case and the memoranda would be considered as a
rule.
It was particularly emphasised by the respondent that the
memorandum was under the direction of the President and the
memorandum itself stated that action was being taken to make
necessary amendments in the Fundamental Rules as well as Supplementary Rules and Civil Service Rules and therefore the memorandum amounted to a rule and all that remained to be done was
to make formal amendmnts in the Fundamental Rules.
The High
Court held that the memorandum in the present case was not in
the nature oi executive or administrative instructioμ.
Counsel for the Government stated that the memorandum was
given effect to in relation to ministerial servants at all relevant
times subsequent to 31 December, 1963.
The Government acted
on the memorandum.
The ministerial servants were also treated
as governed by the memorandum.
The age of superannuation
subsequent to 31 December, 1963 became 58 as a result of the
memorandum. Ministerla! servants continued to be in service upto
58 and thereafter to 60 in accordance with the tenor .and tenns of
the memorandum. In this view of the matter to deny the respondent operation of the memorandum will be an infraction of Article
14 of the Constitution.
There is nothing in the record to indicate
that the respondent was not efficient.
On the contrary, the order
in the present case gave the respondent an option to retire with
effect from 14 March, 1964 when he would have attained the age
of 55 years. The same order gave the respondent option to retire
with effect from 14 March, 1964 or to proceed on leave as might
be admissible or granted to him preparatory io retirement.• The
stand taken by the Government in the present case in all the Courts
was that the respondent was on preparatory leave extending upto
28 months after 14 March, 1964.
En fact, the records show that
(1) [1967] 2 S.C.R. 496.
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UNION V. MOOL CHAND (Ray, J.)
613
the respondent was paid the salary that was admissible to him for
this leave period for 28 months.
Therefore, for 28 months after
14 March, 1964 he continued to be a Government serva111t.
Taking into consideration these features it is clear that the respondent
was thus entitled to the benefit of the increased age of retirement
viz. 58 years and thereafter upto 60 years in accordance with the
memorandum.
The memorandum became a part of the Fundamental Rules as a result of the Fundamental (Sixth) Amendment
Rules, 1965.
The order challenged by the respondent in the present case is
not legal and it cannot be sustained in view of the fact that the
respondent would be entitled to the benefit of the memorandum
as all other Government servants were at the relevant time.
It is not necessary for us to express any view on the question
as to whether the memorandum would be· a mere executive and
administrailve instruction or have the force of statutory rn1es. We
rest the decision in the present case on the consideration that the
order complained against suffers ;from the vice of violation of
Article 14 of the Constitution.
The order of the High Court that
the respondent would be deemed to be in Government service until
he attained the age of 60 years on 14 March, 1969 is upheld.
For these reasons, the appeal fails
and is dismissed.
The
appellant will pay costs to the respondent.
K.B.N.
A rrieal dismissed.