Kailash Chandra vs Union of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 283 of 1960

Decision Date: 16 March 1961

Coram: K.C. Das Gupta, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, N. Rajagopala Ayyangar

The matter was titled Kailash Chandra versus Union of India and was decided on the sixteenth day of March, nineteen hundred and sixty‑one by the Supreme Court of India. The judgment was authored by Justice K. C. Das Gupta and was delivered by a bench comprising Justices K. C. Das Gupta, P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, N. Rajagopala Ayyangar. The case is reported in the Indian Appeal Reports at page one hundred thirty‑four six, and in the Supreme Court Reports (Second Series) at volume one, page three hundred seventy‑four. The citation references also appear in subsequent reports such as RF 1971 SC 2369, E 1972 SC 508, R 1973 SC 1252, and F 1989 SC 75. The legal issues involved the Railway Servants‑Compulsory Retirement Act, the rule on age of retention in service after five and a half years of age, the classification of ministerial servants where such classification may be unreasonable, as well as the Railway Establishment Code, Rule 2046(2)(a). The case also touched upon Fundamental Rule 56(b)(1) of the Constitution of India and Article 14 of the Constitution.

In the instant case the petitioner, Kailash Chandra, had been employed as a clerk in the East Indian Railways. He was compulsorily retired from his position on attaining the age of fifty‑five years, the retirement becoming effective on the thirtieth day of June, nineteen hundred and forty‑eight. Seeking further retention in service, the petitioner contended that he possessed a right to remain employed until the age of sixty years under Clause (a) of Rule 2046(2) of the Railway Establishment Code, which reads: “A ministerial servant who is not governed by sub‑clause (b) may be required to retire at the age of fifty‑five years but should ordinarily be retained in service if he continues to be efficient up to the age of sixty years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority.” The petitioner’s suit was initially decreed by the trial court, but the High Court reversed that decision, holding that the appellant had no entitlement to continue service beyond the age of fifty‑five years. On appeal, the Supreme Court examined the correct interpretation of Rule 2046(2)(a). The Court held that the provision permits the competent authority to retire a ministerial servant at fifty‑five years, and thereafter, between the ages of fifty‑five and sixty, the authority may, at its discretion, continue the servant in service provided the servant remains efficient. The authority, however, is not bound to retain the servant even if efficiency persists. Consequently, the rule does not bestow a vested right upon the servant to remain in service beyond fifty‑five years. The Court’s reasoning relied upon earlier decisions, namely Jai Ram v. Union of India (AIR 1954 SC 584), Basant Kumar Pat v. The Chief Electrical Engineer (AIR 1956 Cal 93), Kishan Dayal v. General Manager, Northern Railway (AIR 1954 Punj 245), and Raghunath Narain Mathur v. Union of India (AIR 1953 All 352), all of which were affirmed as supporting authorities. The Court further noted that the Railway Board’s classification of ministerial servants into two groups—those who retired after September eighth, nineteen forty‑eight, and those who had already retired before that date—constituted a reasonable classification that did not offend Article 14 of the Constitution.

In this matter, the appellant, who had been employed as a clerk in the East Indian Railways, was compulsorily retired on 30 June 1948 when he reached the age of fifty‑five years. The appellant contended that he should have been retained in service under Rule 2046/2 of the Railway Establishment Code, and he consequently filed a suit seeking a declaration that the order of compulsory retirement was illegal and void, together with a decree for arrears of salary on the premise that he had continued to serve. The respondent, the Union of India, opposed the claim and asserted that the appellant possessed no statutory right to continued service beyond the prescribed retirement age. The trial court, after considering the plaintiff’s arguments regarding the effect of the rule, accepted the plaintiff’s construction, granted the declaratory relief sought, and awarded a portion of the monetary claim. The High Court, however, arrived at a different interpretation of Rule 2046 and held that the rule accorded no entitlement to the appellant to remain in service beyond the age of fifty‑five. Accordingly, the High Court allowed the appeal and dismissed the suit. The appellant then obtained a certificate under Article 133(1)(c) of the Constitution and filed the present civil appeal (Civil Appeal No. 283 of 1960) before the Supreme Court, challenging the High Court’s decision.

The central issue for determination was whether, upon a proper interpretation of Rule 2046/2(a) of the Railway Establishment Code— which mirrors the language of Fundamental Rule 56(b)(i)—the appellant possessed a right to be retained in service up to the age of sixty years. It is noteworthy that the respondent did not dispute the appellant’s claim of continued efficiency after attaining fifty‑five years of age. Thus, the question narrowed to whether efficiency alone conferred a statutory right to continued service until the age of sixty. Rule 2046(1) of the Code provides that railway servants who are not classified as ministerial must be compulsorily retired on attaining the age of fifty‑five, although they may be retained thereafter with appropriate sanction on public grounds, subject to a written record. The rule further stipulates that such retention cannot extend beyond sixty years except under very special circumstances. The appellant argued that the same provisions applied to ministerial servants covered by Rule 2046/2, thereby entitling him to retention until sixty, while the respondent maintained that the rule merely gave the authority discretion to retain an efficient servant and did not create a vested right. The Supreme Court was therefore called upon to interpret the language of Rule 2046/2(a) and to decide whether the appellant’s claim to continued service was supported by the statutory scheme.

In this matter, the Court explained that a railway servant may continue in service after attaining the age of fifty‑five only when the competent authority sanctions the continuation on public grounds and records the sanction in writing. The rule further provides that no servant shall be retained after attaining the age of sixty except in very special circumstances, also to be recorded in writing with the authority’s sanction.

The Court turned to Rule 2046/2, which governs the retirement of ministerial railway servants. This rule contains two distinct clauses. Clause (b) applies to ministerial servants who either entered Government service on or after 1 April 1938, or who were in Government service on 31 March 1938 but did not hold a lien or a suspended lien on a permanent post on that date. Persons falling within clause (b) are treated in the same way as railway servants who are not ministerial. They must ordinarily retire at the age of fifty‑five and may be retained only on public grounds, with the written sanction of the competent authority. Moreover, they cannot be retained after reaching sixty years of age unless very special circumstances exist, again documented in writing and sanctioned.

Clause (a) covers railway ministerial servants who are not covered by clause (b); that is, those who entered service before 1 April 1938 and who held a lien or a suspended lien on a permanent post on 31 March 1938. The exact wording of the rule for this category is: “A ministerial servant who is not governed by sub‑clause (b) may be required to retire at the age of fifty‑five but should ordinarily be retained in service if he continues to be efficient up to the age of sixty years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority.”

The Court observed that the provision concerning compulsory retirement is more favourable to those falling under clause (a) than to those governed by clause (b) or to railway servants who are not ministerial. For the latter groups, retention after the age of fifty‑five is intended to be exceptional, requiring public‑ground justification, written record, and authority sanction, and they may not be retained after sixty except in very special cases. In contrast, for ministerial servants covered by clause (a), retention up to the age of sixty is treated as ordinary, becoming exceptional only after that age, and it is effected in the same manner as the exceptional retention of the other categories after fifty‑five.

Consequently, the Court concluded that while the competent authority possesses the power to order compulsory retirement or to grant retention, there is no inherent discretion to retain a ministerial railway servant under clause (b) once he reaches fifty‑five years of age. That lack of discretion does not apply to ministerial servants falling under clause (a), for whom the authority may retain the servant up to sixty if he remains efficient. The appellant, however, advanced a further contention beyond this distinction.

In this case the Court considered the meaning of the rule that applied to ministerial servants who fell within clause (a). The appellant argued that once such a servant reached the age of fifty‑five and continued to be efficient, the servant possessed a legal right to remain in service and that the competent authority was bound to retain him. The Court observed that the first part of the relevant rule, taken by itself, unmistakably gave the authority the power to require a ministerial servant to retire as soon as he attained fifty‑five years of age. The issue before the Court was whether this power was reduced by the second part of the sentence, which read “but should ordinarily be retained in service if he continues to be efficient up to the age of sixty years.”

The appellant contended that the use of the conjunction “but” was intended to curtail the authority’s retirement power, so that the authority could retire the servant at fifty‑five only if he was not efficient, while an efficient servant could only be retired at sixty. The Court found the language of the rule unnecessarily complex, but nevertheless clear enough to reveal the intention of the rule‑making authority. According to the Court, the intention was that the right conferred by the first clause was not limited or withdrawn by the second clause. Rather, the drafter inserted the second clause to give the authority a discretionary option to retain the servant for a further five years, provided that the servant continued to be efficient. If the servant did not satisfy the efficiency condition, the authority had no discretion to retain him. Conversely, if the efficiency condition was satisfied, the authority possessed the option to retain the servant but was not compelled to do so.

The Court noted that, had the intention been to restrict the authority’s power to retire a servant at fifty‑five, the rule would have been phrased differently, for example: “may be required to retire at the age of fifty‑five provided however that he shall be retained in service if he continues to be efficient up to the age of sixty years.” The actual wording “should ordinarily be retained in service” clearly indicated that the right to require retirement at fifty‑five remained intact. Even if the word “ordinarily” were omitted, the rule would read: “A ministerial servant who is not governed by sub‑clause (b) may be required to retire at the age of fifty‑five years but should be retained in service if he continues to be efficient up to the age of sixty years.” The Court held that such wording, without “ordinarily,” would still be unreasonable to interpret as a limitation on the authority’s power or as a creation of a guaranteed right for the servant to remain beyond fifty‑five. The phrase “should ordinarily be retained” underscored that, in the majority of cases, the authority may retain the servant between the ages of fifty‑five and sixty, but the authority is not bound to do so. This interpretation, the Court concluded, faithfully reflected the intention of the rule‑making authority.

The provision states that a ministerial servant may be required to retire at the age of fifty‑five years but should be retained in service if he continues to be efficient up to the age of sixty years. When those words are read without the term “ordinarily,” it is unreasonable to infer that the language intends to diminish the authority’s power to require retirement at fifty‑five years, nor does it create a legal right for the servant to remain in service beyond that age merely because he remains efficient. Rather, the wording more appropriately conveys that the moment a servant reaches fifty‑five years, the appropriate authority possesses the power to direct his retirement, while during the interval between fifty‑five and sixty years the authority is given a discretionary option to retain the servant, but it is not compelled to do so. The presence of the word “ordinarily” makes this intention even clearer and removes any doubt. “Ordinarily” is defined as “in the large majority of cases but not invariably,” which underscores that the authority is not obligated to keep the servant after he attains fifty‑five years, even if he continues to be efficient. Consequently, the second clause's purpose is evident: while the first clause grants the authority the right to retire a servant falling under clause (a) as soon as he reaches fifty‑five years, at that juncture the authority must consider whether to retain him further. The option to retain the servant for an additional five‑year period may be exercised only if the servant remains efficient; however, in exercising this option, the authority must also weigh factors other than efficiency. In the absence of special circumstances, the authority “should” retain the servant, but what constitutes special circumstances is left entirely to the authority’s judgment. Thus, once the servant reaches fifty‑five years, the authority must exercise its discretion on whether to retain him, and the servant possesses no entitlement to continued service even if he remains efficient. Counsel relied on an observation made by Mukherjea, J., then speaking for the Court in Jai Ram v. Union of India, where his Lordship remarked: “We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of sixty. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till sixty and could not be retired before that except on the ground of inefficiency.” It would be wholly unreasonable, however, to treat this passage as a definitive ruling on the meaning of the rule.

In addressing the question of what Rule 2046(2)(a) of the railway code meant, the Court considered an argument that the plaintiff, by virtue of that rule, possessed a right to remain in service until the age of sixty and could be retired only on the ground of inefficiency. For the purpose of argument, the Court assumed that such an interpretation could be entertained and examined the counsel’s submission on that basis, without endorsing it as the proper construction of the rule. The Court then clarified that the correct construction, in its view, was that a railway ministerial servant who fell within the ambit of Rule 2046(2)(a) could be compulsorily retired upon attaining the age of fifty‑five. However, when the servant’s age lay between fifty‑five and sixty, the competent authority retained the discretion to keep the servant in service, provided the servant remained efficient. The authority was not obliged to retain the servant even if the servant continued to be efficient. The Court noted that this interpretation had been accepted by several High Courts in India, referring to the decisions in Basant Kumar Pal v. The Chief Electrical Engineer, Kishan Dayal v. General Manager, Northern Railway and Raghunath Narain Mathur v. Union of India (4). Consequently, the Court affirmed the High Court’s conclusion that the rule gave the plaintiff no enforceable right to continue in service beyond the age of fifty‑five. The relevant authorities were cited as (1) A.I.R. 1954 S.C. 584, (3) A.I.R. 1954 Punj. 245, (2) A.I.R. 1956 Cal. 93 and (4) A.I.R. 1953 All. 352. The appellant’s counsel, though only briefly, contended that the Railway Board notifications dated 19 October 1948 and 15 April 1952, which granted special treatment to ministerial servants retired under Rule 2046(2)(a) before reaching sixty after 8 September 1948, were discriminatory. The Court observed that on 8 September 1948 the Government of India had decided that no ministerial servant subject to Fundamental Rule 56(b)(i), who had attained the age of fifty‑five but not yet sixty, could be required to retire unless the servant was afforded a reasonable opportunity to show cause and any representation made by the servant was duly considered. This decision was communicated to the various Government departments with a directive that it be noted for future guidance. Subsequently, on 19 October 1948 the Ministry of Railways issued a notification addressing the retirement of ministerial servants governed by Rule 2046(2)(a), which corresponded to Fundamental Rule 56(b)(1) as directed by the September 8 1948 Government decision, and again clarified that no action would be taken against ministerial servants who

In a further development, the Railway Board issued a notification dated 15 April 1952 in which it announced that certain ministerial servants who had been retired after 8 September 1948 but who had not yet reached the age of sixty years and who had been retired without complying with article 311(2) of the Constitution should, subject to specified conditions, be reinstated to their former positions. The appellant argued that the refusal to extend this reinstatement advantage to other ministerial servants who fell within rule 2046(2)(a) and who had also been retired after 8 September 1948 was violative of the Constitution. The Court found that the appellant’s contention lacked merit. The Court explained that on 8 September 1948 the Government had taken a definitive decision that a ministerial servant who had reached the age of fifty‑five years and who was efficient should not be compelled to retire under the relevant rule unless the servant was afforded a reasonable opportunity to show cause against the proposed retirement. Consequently, from that date the Government altered the procedure governing the exercise of the option to retire servants between the ages of fifty‑five and sixty. The Court held that the decision to leave untouched the cases of those who had already retired on the very date of the Government’s new policy could not be characterised as arbitrary. Moreover, the Court observed that separating the servants who retired after 8 September 1948 from those who retired before that date created a reasonable classification that did not offend article 14 of the Constitution, which guarantees equal protection of the laws. Accordingly, the Court rejected the appellant’s claim. The Court further affirmed the view of the High Court that there existed a legitimate classification of ministerial servants retired under rule 2046(2)(a) upon attaining the age of fifty‑five into two distinct groups: one group comprising those who retired after 8 September 1948 and another group comprising those who retired on or before that date. The Court concluded that there was no denial of equal protection of the laws. As a result, the appeal was dismissed. No order as to costs was made because the appellant was a pauper, and no order was issued under Order XIV, rule 9 of the Supreme Court Rules. The appeal was thus dismissed.