TMI Blog1967 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... following excep- tions.................... 2. . . . . . 3. . . . . . 4. . . . . . 5. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' notice without assigning any reasons................ the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. A Government servant may also after attaining the age of 55 years voluntarily retire after giving three 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. in consequence of this memorandum, the appellant who, would have otherwise retired in August 1963, continued in service. On September 11, 1963 the Government sent an order to the appellant in the following terms In pursuance of the orders contained in General Administration Department memorandum No. 433-258-1 (iii)/63, dated the 28th February, 1963, the State Government have decided to retire you with effect from the afternoon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his removal, and therefore action under Article 311 of the Constitution was necessary, and that was admittedly not complied with. The application was opposed on behalf of the State Govern- ment, and their case was-(i) that the order in question cast no stigma on the appellant, and therefore no action under Art. 311 2Sup.CI/67-3 was necessary, (ii) that the memorandum of February 28, 1963 was in itself a rule and therefore the appellant was rightly retired in view of paragraph 5 of that memorandum (iii) that if the memorandum was not a rule the -appellant must be deemed to have retired in August 1963 in view of the old rule which prescribed 55 years as the age of retirement, for he could not take advantage of the memorandum, and (iv) that in any case the appellant's case would be covered by the All India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended in 1963 and the order retiring him on three months' notice after the age of 55 years was therefore valid. The High Court held that the order in question retiring the appellant cast no stigma on him. It further held that the memorandum of February 28, 1963 was in itself a rule under Art. 309 and therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argues is that though the order in question in this case contains no words from which any stigma can be inferred to have been cast on the appellant, we should look to the memorandum, which is referred to in the order and then infer that a stigma was cast on the appellant because the memorandum at the end of paragraph 5 says that the power to retire will normally be exercised to weed out unsuitable employees after they attain the age of 55 years. It is urged that we should read those words in the order retiring the appellant from December 31, 1963. We are not -prepared to extend the decisions of this Court on this aspect of the matter in the manner contended for by the appellant. (Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Art. 31 1. But where there are no express words in the order' itself which would throw any stigma on the Government servant, we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research. Besides, Para 5 of the memorandum is obviously in two parts' The first part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly, the Resolution of November 15, 1919 in terms said that it was announcing certain new rules relating to retiring pensions of certain officers in the services specified therein. The present memorandum is not in the form of rules. Further it is said definitely in paragraph 7 of the memorandum that necessary amendments to the State Civil Service Regulations would be issued in due course. It is one thing to issue rules and thereafter incorporate them in the Civil Service Regulations, it is quite another thing to issue a memorandum of this nature which is merely a letter from Government to all the Collectors with the specific direction that necessary amendments to the State Civil Service Regulations will be issued in due course. It is true that the letter says that the order will have effect from March 1, 1963, but that does not make the memorandum of the State Government a rule issued under Art. 309, when it is said in the memorandum itself that necessary amendments to the State Civil Service Regulations will be issued in due course. We have already set out the relevant parts of the memorandum and the very first sentence shows that the memorandum is merely an executive direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 5 of the memorandum. If it was the intention of Government that the first part of para 5 of the memorandum should also form a part of the rule, we fail to see why that was not inserted as a note, proviso or explanation to F.R. 56 when it was in terms amended on .November 29, 1963 and the amendment was published in the Gazette of December 6, 1963. The omission of the first part of paragraph 5 from the notification is itself an indication that the memorandum of February 28, 1963 contained mere executive instructions. It may be that later Government decided not to include the first part of paragraph 5 in the rule and therefore it did not find place in the amendment of November 29. The analogy that the High Court has drawn between the Resolution of November 15, 1919 which was discussed in Shyamlal's case ([1955] 1 S.C.R. 26) does not therefore apply and we are of opinion that the memorandum of February 28, 1963 contained merely executive instructions. The rule framed on the basis of these executive instructions does -not contain the first part of paragraph 5. Apparently the Government dropped the idea of retiring compulsorily Government servants after they had attained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Government thought it proper in the public interest to retain all Government servants up to the age of 58 under F.R. 56 and these executive instructions must be taken to provide such retention till a proper rule, as envisaged in the memorandum, came to be made. As we have indicated already, we see nothing in F.R. 56 as it was which would in any way bar the Government from passing such a general order retaining the services of all Government servants up to the age of 58, though ordinarily one would expect an individual order in each individual case under that rule. Even so, if the Government comes to the conclusion generally that services of all Government servants should be retained up to the age of 58 years, we cannot see why the Government cannot pass a general order in anticipation of the relevant rule being amended raising the age of retirement in the public interest. We therefore read the executive instructions contained in the memorandum as amounting to an order of Government retaining the services of all Government servants up to the age of 58 years subject to the conditions prescribed in the memorandum till an appropriate rule as to age of superannuation is framed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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