Kailash Chandra vs Union Of India (Uoi) on 16 March, 1961

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 16 March, 1961

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

In this case, the Court noted that the appellant, Kailash Chandra, was a clerk in the service of the East Indian Railways and was compulsorily retired with effect from 30 June 1948 upon attaining the age of fifty‑five years. He applied for further retention in service on the ground that Rule 2046/2 of the Railway Establishment Code authorized his continued employment beyond that age. After his request for retention was rejected, he instituted suit in the Civil Judge, Lucknow, alleging that the order of compulsory retirement was void and inoperative and praying for a declaratory decree that the retirement order was illegal and for a monetary decree for arrears of pay on the basis that he should have remained in service. The principal defence raised by the Union of India was a denial that the appellant possessed any right to be retained under the rule. The trial court accepted the plaintiff’s construction of the rule, granted the declaratory relief sought and also decreed a part of the monetary claim. On appeal, the High Court adopted a different interpretation of Rule 2046 and held that the provision gave the plaintiff no right to continue in service beyond the age of fifty‑five years. Accordingly, the High Court allowed the appeal, dismissed the suit and the appellant obtained a certificate of appeal under Article 133(1)(c) of the Constitution. The central question before this Court was whether, on a proper interpretation of Rule 2046/2(a) of the Railway Establishment Code, which is identical with Fundamental Rule 56(b)(i), the plaintiff had a right to be retained in service until the age of sixty years. It is necessary to mention that the respondent, the Union of India, did not dispute the plaintiff’s claim that he continued to be efficient after attaining the age of fifty‑five years. Consequently the issue reduced to whether, assuming continued efficiency, the statutory scheme permitted retention up to the age of sixty years. Rule 2046(1) of the Code deals with retirement of railway servants other than ministerial servants and provides that such a servant shall be compulsorily retired on attaining the age of fifty‑five years, but may be retained after that date with the sanction of the competent authority on public grounds recorded in writing. The rule further stipulates that no employee may be retained after the age of sixty years except in very special circumstances.

Rule 2046/2 governs the retirement of ministerial servants. The rule is divided into two clauses. Clause (b) applies to ministerial servants who either entered Government service on or after 1 April 1938, or who were already in Government service on 31 March 1938 but did not hold a lien or a suspended lien on a permanent post on that date. Under clause (b) these servants, like railway servants who are not classified as ministerial, must ordinarily retire at the age of fifty‑five years. They may be retained after that age only on public grounds, and such retention must be recorded in writing and sanctioned by the competent authority. Moreover, they must not be retained after reaching the age of sixty years except in very special circumstances. Clause (a) deals with railway ministerial servants who do not fall within the description of 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 rule expressly states: “A ministerial servant who is not governed by sub‑clause (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 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.” Thus, for those covered by clause (a) the ordinary retirement age remains fifty‑five, but there is a statutory expectation that, if the servant remains efficient, he should ordinarily be retained until sixty, with the same limitation that retention beyond sixty is permissible only in very special circumstances and must be documented.

The Court observed that the provisions concerning compulsory retirement are more favourable to ministerial servants falling within clause (a) than to those falling under clause (b) or to railway servants who are not ministerial. In the latter categories, retention after the age of fifty‑five is intended to be exceptional and must be justified on public grounds, recorded in writing, and approved by the competent authority. By contrast, for ministerial servants covered by clause (a), retention after the age of sixty is itself treated as an exceptional measure, to be made in the same manner as retention after fifty‑five for the other categories. Consequently, the authority responsible for ordering compulsory retirement or retention possesses no discretion to retain a ministerial railway servant under clause (b) once he reaches fifty‑five years of age. That restriction does not apply to ministerial servants under clause (a). The appellant advanced a further contention, arguing that for ministerial servants who fall within clause (a) and remain efficient after attaining fifty‑five years, the matter is not one of discretionary retention by the appropriate authority but that the servant has a legal right to be retained, and the authority is bound to retain him if he continues to be efficient.

The Court observed that the appellant argued that a ministerial servant who reached the age of fifty‑five and remained efficient possessed a legal right to continue in service, and that the appropriate authority was therefore bound to retain him. The Court noted that the first clause of the relevant rule, taken by itself, clearly gave the authority the power to require a ministerial servant to retire as soon as he attained the age of fifty‑five years. The issue then before the Court was whether this power was limited by the second clause, which stated that the servant “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 word “but” introduced a limitation on the authority’s power, so that the authority could require retirement at fifty‑five only when the servant was no longer efficient, and that if the servant remained efficient the authority could retire him only after he reached sixty years.

The Court held that although the wording of the rule was somewhat convoluted, the intention of the rule‑making authority could be discerned without doubt. In the Court’s view the first part of the sentence was not meant to be curtailed by the second part. Instead, the drafter inserted the second clause to give the authority a discretionary option to retain the servant for an additional five years, provided that the servant continued to be efficient. If the servant failed to meet the efficiency condition, the authority had no power to retain him; if the condition was satisfied, the authority could choose either to retain the servant or to allow retirement, but it was under no obligation to retain him. The Court explained that, had the intention been to restrict the authority’s power, the rule would have been expressed in a different way, for example: “may be required to retire at the age of fifty‑five years provided however that he shall be retained in service if he continues to be efficient up to the age of sixty years.” The phrase “should ordinarily be retained in service” therefore indicated, in the mind of the drafter, that the right to retire at fifty‑five remained intact, and that the second clause merely created an ordinary, not mandatory, possibility of retention. By omitting the word “ordinarily,” 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.” This interpretation confirmed that the authority retained the power to retire at fifty‑five, while also having the discretion to keep an efficient servant until sixty.

When the words of the rule are read without the term “ordinarily,” it is unreasonable to conclude that the language intends to diminish the authority’s power to demand retirement at age fifty‑five, nor does it create any entitlement for the servant to remain in service beyond that age simply because he remains efficient. Rather, the phrasing more appropriately conveys that, upon reaching the age of fifty‑five, the appropriate authority possesses the power to require the servant to retire, while between the ages of fifty‑five and sixty the authority is granted a discretionary option to retain the servant but is not compelled to do so. The presence of the word “ordinarily” reinforces this interpretation. “Ordinarily” means “in the great majority of cases but not invariably,” and it underscores that the authority is not bound to keep the servant after he attains fifty‑five, even if he continues to be efficient. Accordingly, the second clause of the rule conveys that, although the first clause gives the authority the right to retire a servant who falls within sub‑clause (a) as soon as he reaches fifty‑five, the authority will at that point assess whether to retain him for a further period. This option to retain for up to five additional years may be exercised only if the servant remains efficient; however, the authority’s decision must also take into account 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. Consequently, once the servant reaches fifty‑five, the authority must exercise its discretion on whether to retain the servant, and the servant possesses no vested right to be retained, even if he remains efficient.

Counsel for the petitioner relied on a remark made by Mukherjea, in the case of Jai Ram v. Union of India, where, speaking for the Court on this rule, the judge observed: “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.” The Court held that it would be wholly unreasonable to treat that observation as a definitive decision on the meaning of the rule. While the Court considered, for the sake of argument, the proposition that the plaintiff under the rule possessed a right to remain in service until sixty and could be retired only on grounds of inefficiency, it clarified that this was not an endorsement of that interpretation. The passage was adopted merely to facilitate discussion of the counsel’s argument and did not constitute a binding construction of the rule’s language.

In dealing with the argument that the plaintiff possessed a statutory right to remain in service until he attained the age of sixty and could be retired only on a ground of inefficiency, the Court first clarified that it was merely assuming for the sake of argument that such an interpretation might be possible. The Court emphasized that this assumption was not intended to endorse that view as the correct reading of the rule. After this preliminary step, the Court proceeded to examine the counsel’s submission on that basis. The Court then articulated its own interpretation of Rule 2046(2)(a) of the Railway Service Code. According to the Court, a ministerial servant covered by this clause could be compulsorily retired upon reaching the age of fifty‑five. However, when the servant’s age fell between fifty‑five and sixty, the appropriate authority possessed the discretion to retain the servant in service, provided that the servant continued to be efficient. The authority was under no obligation to retain a servant who remained efficient; the discretion to retire remained available. The Court further noted that this interpretation had been adopted by several High Courts, citing 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. Consequently, the Court affirmed the view of the High Court that the rule did not confer upon the plaintiff any right to continue in service beyond the age of fifty‑five.

The appellant also contended, albeit briefly, that the Railway Board notifications dated 19 October 1948 and 15 April 1952, which accorded special treatment to ministerial servants retired under Rule 2046(2)(a) before attaining sixty after 8 September 1948, were discriminatory. The Court examined the historical background of these notifications. On 8 September 1948 the Government of India decided that no ministerial servant to whom fundamental rule 56(b)(i) applied and who had reached the age of fifty‑five but not yet sixty could be retired unless the servant was afforded a reasonable opportunity to show cause against the proposed retirement and any representation made in that regard was duly considered. This decision was communicated to various Government departments as guidance for future actions. Subsequently, on 19 October 1948 the Ministry of Railways issued a notification prescribing the manner in which retirements of ministerial servants governed by Rule 2046(2)(a) – which corresponded to fundamental rule 56(b)(i) – should be handled in accordance with the September 8 decision. The October 19 notification clarified that no action would be taken against ministerial servants who had already been retired prior to that date. Later, the notification dated 15 April 1952 reiterated the Government’s position by stating that ministerial servants who had been retired after 8 September 1948 but before reaching the age of sixty could, under specified conditions, be recalled to duty. The Court concluded that the appellant’s claim of constitutional infirmity in the denial of this advantage lacked substance, as the procedural changes effected after 8 September 1948 represented a legitimate amendment of the retirement policy rather than an arbitrary or discriminatory act.

The Court observed that a ministerial servant who had retired after reaching the age of fifty‑five years and who had not complied with the provisions of Article 311(2) of the Constitution could, subject to prescribed conditions, be directed to return to service. The appellant contended that the refusal to grant this advantage to certain ministerial servants falling within Rule 2046(2)(a) and who had been retired after 8 September 1948 was unconstitutional. The Court found that the appellant’s contention lacked merit. It explained that on 8 September 1948 the Government issued a decision that ministerial servants who were efficient should not be retired under the referenced rule upon attaining the age of fifty‑five unless they were afforded an opportunity to show cause against the retirement. Consequently, from that date the Government altered its procedure concerning the option to retire servants between the ages of fifty‑five and sixty. The Court held that the decision to refrain from taking any action with respect to those who had already retired before that date was not arbitrary. Moreover, the creation of a separate class comprising servants who retired after 8 September 1948, distinct from those who retired before that date, constituted a reasonable classification. The Court concluded that this classification did not offend Article 14 of the Constitution, which guarantees equality before the law, and therefore rejected the appellant’s claim of unconstitutionality.

The Court affirmed that the High Court was correct in its view that a reasonable classification existed among the ministerial servants who had been retired under Rule 2046(2)(a) upon attaining the age of fifty‑five. The two classes identified were: (i) those who retired after 8 September 1948, and (ii) those who retired on or before that date. The Court found no violation of the equal protection clause protected by Article 14. As a result, the appeal was dismissed in its entirety. No order as to costs was made because the appellant was a pauper, and the Court declined to make any order under Order XIV, Rule 9 of the Supreme Court Rules. The final disposition was that the appeal was dismissed.