TMI Blog1976 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... to certain exceptions. The material part of the memorandum dated February 28, 1963, read as follows: 5. Notwithstanding anything contained in the foregoing paragraphs the appointing authority may require a Government servant to retire after he attains the age of SS years on 3 months notice without assigning any reasons A Government servant may also after attaining the age of 55 years voluntarily retire after giving 3 months notice to the appointing authority. 6. These orders will have effect from the 1st March 1963 . 7. Necessary amendments to the State Civil Service Regulations will be issued in due course. Thereafter, by Government Notification dated November 29, 1963, F. R. 56 was amended on December 6, 1963 in exercise of the power under the Proviso to Article 309 of the Constitution, raising the age of compulsory retirement of the State Civil Servants to 58 years with effect from March 1, 1963 but the clause in the aforesaid Memorandum, empowering the Government to retire servants above the age of 55 years by giving them three months notice was not incorporated in the Rule. Tn view of this memorandum, the appellant was allowed to continue in office after he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the judgment by this Court, the State promulgated an ordinance which was replaced on April 20, 1963 by the Madhya Pradesh Shaskiya Sevak Anivarya Sevanivitrika Vidhi- manyatakaran Vidyayaktakaran Vidyeyak Adhiniyam 1967 (Act 5 of 1967) validating the retirement of certain Government servants, including that of the appellant, despite the judgment of this Court. By virtue of this Act, the State is vested with a right not to pay the dues of the appellant from the date of his retirement (December 3, 1963 onwards. Sections 2 and 5 of the Act, which are material for our purpose, read as follows: 2. (1) The Madhya Pradesh (Age of Compulsory Retirement Rules, 1965 replacing the provisions of the , Government of Madhya Pradesh General Administration Department Memorandum No. 1433-258-l(iii)/63, dated the 28th February 1963 (hereinafter referred to as the Memorandum) shall be deemed to have come into force with effect from the 1st March 1963. (2) Anything done or any action taken in pursuance of the directions contained in the memorandum shall be and shall always be deemed to have been done or taken under corresponding provisions of the aforesaid rules as if the aforesaid rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates that its main object was to avoid financial burden which would fall on the State on account of its having to pay arrears of pension etc. to a large number of officers who had been retired under the said memorandum which was treated to be a rule and which the Supreme Court held was not an effective rule but merely an executive instruction: (3) that the matter having once been decided by the Supreme Court, was barred by the principle of res judicata and (4) that the Rules give naked power to the authorities to retire any employee after he has attained the age of 55 years by giving him three months notice, and provide no guidelines for the exercise of this power. The High Court negatived these contentions, dismissed the writ ,, petition but granted a certificate under Art. 132 (1) and 133(1)(a) to (c) of the Constitution. Hence this appeal. The contentions advanced before the High Court have been repeated before us with amplification and addition. It is argued on behalf of the appellant: (i) that a right of property, being a judgment-debt, protected by Article 19(1)(f) of the Constitution, had been created by this Court s decree dated January 30, 1967 in favour of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks to acquire without payment of compensation property vesting in the appellant and is consequently unconstitutional. The distinction between a legislative act and a judicial act is well known, though in some specific instances the line which separates one category from the other may not be easily discernible. Adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of this function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. On the other hand, it is for the legislature to lay down the law, prescribing norms of conduct which will govern parties and transactions and to require the court to give effect to that law. While, in view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly over-rule, reverse or over-ride a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Article 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court and contended that rule 294 (a) having been amended in April 1955, the normal age of superannuation was fixed at 58 years, instead of 55 years. On behalf of the State, it was canvassed that a notification of the Governor under Article 309 of the Constitution, issued on March 25, 1959 had validated the action taken in retiring the respondent, and others upon their attaining the age of 55 years. Wanchoo J. (as he then was), speaking for this Court held that such a rule cannot be made under the proviso to Article 309 of the Constitution, but was cautious enough to add: We are expressing no opinion as to the power of the legislature to make a retrospective provision under Article 309 of the Constitution wherein the appropriate legislature has been given the power to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or of any State by passing Acts under Art. 309 of the Constitution read with item 70 of List I of the Seventh Schedule or item 41 of List II of the Seventh Schedule. The present rule has been made by the Governor under the proviso to Art. 309. That proviso lays down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service conditions of State Civil Servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the subject covered by Entry 41. Thus the impugned provisions satisfy the first test. This takes us to the second test, whether the impugned legislation removes or cures the defect which this Court had found in the Memorandum which was the basis of the impugned orders of retirement. For reasons that follow, the answer to this question also must be in the affirmative. The basis of this Court s decision dated January 30, 1967 in Civil Appeal 670 of 1965 was that the Government Memorandum dated February 28, 1963, in pursuance of which the impugned order on retirement of I. N. Saksena had been passed on September 11, 1963, had not attained the status of a statutory rule framed under the proviso to Article 309 of the Constitution, but was merely an administrative instruction. This provision in the Memorandum empowering the Government to retire a servant on his attaining the age of 55 years, after three mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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