Bishun Narain Mishra vs State Of Uttar Pradesh And Others

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

Court: supreme-court

Case Number: Civil Appeal No. 1053 of 1963

Decision Date: 7 October 1964

Coram: K.N. Wanchoo, P.B. Gajendragadkar, M. Hidayatullah, Raghubar Dayal, J.R. Mudholkar

In the matter titled Bishun Narain Mishra versus State of Uttar Pradesh and Others, the Supreme Court rendered its judgment on 7 October 1964. The opinion was authored by Justice K. N. Wanchoo, and the bench that heard the case comprised Justices K. N. Wanchoo, P. B. Gajendragadkar, M. Hidayatullah, Raghubar Dayal and J. R. Mudholkar. The decision is reported in the 1965 volume of the All India Reporter at page 1567 and also appears in the 1965 Supreme Court Reports (1) at page 693. Subsequent citator references include several reports from 1970 through 1991 that cite this judgment. The substantive issue concerned the Constitution of India, specifically Articles 311 and 14, in relation to a change in the civil service rule governing the age of superannuation. The government had previously raised the superannuation age from fifty‑five to fifty‑eight years and later reduced it again to fifty‑five years. The petitioner contested whether the termination of his service, which resulted from the reduction in superannuation age, fell within the protection of Article 311, and he further questioned the retrospective effect and alleged discrimination of the rule under Article 14.

The factual matrix began with a government notification dated 27 November 1957, which increased the retirement age for members of the Uttar Pradesh civil service from fifty‑five to fifty‑eight years. Subsequently, on 25 May 1961, the government issued another notification under Article 309, reverting the retirement age back to fifty‑five years. The 1961 notification contained a proviso stating that any employee who, because of the earlier 1957 notification, had continued in service beyond the age of fifty‑five would be regarded as having been retained beyond the compulsory retirement date. On the same day, the government issued an order directing that all persons who were then between fifty‑five and fifty‑eight years of age and who had been retained under the proviso would be retired on 31 December 1961. The petitioner, Bishun Narain Mishra, turned fifty‑five on 11 December 1960 and had been allowed to remain in service after the 1957 increase. Consequently, he was among those retired on 31 December 1961. Dissatisfied with the termination, he filed a writ petition in the High Court, which dismissed his claim. An appeal to the Division Bench of the High Court likewise failed. He then obtained special leave to appeal before the Supreme Court. In his submissions, the petitioner argued that (i) the May 1961 rule violated Article 311 because it amounted to removal of a public servant without complying with the procedural safeguards of Article 311(2); (ii) the rule was invalid for being retrospective, as no notification could lawfully operate retrospectively; and (iii) the rule infringed Article 14 by creating inequality among public servants concerning retirement. The Court held that there is no statutory provision that deprives the Government of the power to increase or decrease the age of superannuation, and therefore, because the rule in question dealt solely with the age of superannuation and the petitioner retired as a result of the reduction, his termination could not be characterized as removal within the meaning of Article 311.

The Court observed that the reduction in the age of superannuation, which compelled the appellant to retire, did not amount to a removal of a public servant within the meaning of Article 311. Accordingly, the termination of his service could not be characterized as a removal under that constitutional provision. The Court referred to the decision in Moti Ram Deka v. General Manager, North Frontier Railway, A.I.R. 1964 S.C. 600 in support of this view. Turning to the question of retrospectivity, the Court held that the rule in question contained no retrospective operation. It provided that, from the date it came into force, the retirement age would be fifty‑five years and that it would apply only to the period after its commencement. The proviso attached to the rule did not make it retrospective; rather, it explained how service beyond the age of fifty‑five years should be treated in light of the earlier 1957 rule that the 1961 rule was intended to replace. The Court noted that the second order issued on the same day clearly demonstrated the absence of retrospective effect, because in fact no government servant below the age of fifty‑eight years was retired before the new rule became effective on May 25, 1961. Consequently, the reduction of the retirement age from fifty‑eight to fifty‑five years could not be sustained as a retrospective rule. Regarding the allegation of discrimination, the Court found no merit in the contention that the new rule was discriminatory because various government servants retired on December 31, 1961 at different ages. The rule treated alike all persons who were between the ages of fifty‑five and fifty‑eight years. Those who retired on that date did so at different ages merely because their services had been retained for differing periods beyond the age of fifty‑five. The Government was not under an obligation to retain every public servant for an identical length of time; the continuation of service after the statutory retirement age depended on the individual’s efficiency and the exigencies of public service. In the present case, the variation in the period of retention resulted from such exigencies, and therefore the rule was not discriminatory.

The judgment concerned a civil appeal numbered 1053 of 1963, which was filed against the judgment and order dated March 29, 1962 of the Allahabad High Court in Special Appeal No. 249 of 1962. Counsel for the appellant and counsel for the respondents were instructed, and the judgment was delivered by Justice Wanchoo. The appeal arose from a certificate granted by the High Court of Allahabad. The appellant had been employed by the State of Uttar Pradesh in the capacity of Sub‑Registrar. He was born on December 11, 1905 and entered service in July 1933. At the time of his recruitment, the statutory age of retirement—or superannuation—for government servants of his class was fifty‑five years, which would ordinarily have required his retirement on December 11, 1960. However, a notification dated November 27, 1957 issued by the Government of Uttar Pradesh had raised the retirement age to fifty‑eight years, thereby extending the appellant’s expected retirement date to December 11, 1963. Subsequent to that, on May 25, 1961, the Government again altered the retirement age by issuing a notification under Article 309 of the Constitution, reducing it back to fifty‑five years and adding a proviso concerning the treatment of service beyond the age of fifty‑five years. The factual and procedural background set the stage for the Court’s analysis of the constitutional challenges raised by the appellant.

In 1957 the Government of Uttar Pradesh issued a notification dated 27 November 1957 that raised the statutory age of retirement, also described as the age of superannuation, for its civil servants to fifty‑eight years. Consequently, the appellant, who had been recruited as a Sub‑Registrar in July 1933 and whose date of birth was 11 December 1905, would according to that rule have remained in service until 11 December 1963. However, on 25 May 1961 the Government, invoking the power conferred by Article 309 of the Constitution, issued a new notification that reduced the age of retirement back to fifty‑five years. At the same time a proviso was inserted into the retirement rules. The proviso stated that a government servant who had not retired on or before 17 June 1957, who thereafter attained the age of fifty‑five years but had not yet reached fifty‑eight years on 25 May 1961, would be deemed, for the period of continued service after reaching fifty‑five years, to have been retained beyond the normal compulsory retirement age of fifty‑five years as contemplated by the rule.

Recognising that the abrupt reduction of the retirement age would cause the immediate retirement of all servants aged above fifty‑five and would therefore disturb the functioning of the public administration, the Governor issued on the same day an additional order. That order directed that any servant who, on or before the date of the order, had already been identified under the proviso as being eligible for retention beyond the compulsory retirement age, should continue to be retained in accordance with a Schedule annexed to the order. The Schedule set out three classes of retention: (1) servants who on 25 May 1961 had already attained the age of fifty‑seven years were to be retained either until they reached the age of fifty‑eight years or until 31 December 1961, whichever occurred first; (2) servants who on that date had attained the age of fifty‑five years but not yet fifty‑seven were to be retained only until 31 December 1961; and (3) servants who would attain the age of fifty‑five between 25 May 1961 and 30 December 1961 were likewise to be retained only until 31 December 1961.

The practical effect of the Governor’s order was that every government employee who would, because of the May 1961 change, have been required to retire between 25 May 1961 and 30 December 1961 remained in service until 31 December 1961, except those who reached the age of fifty‑eight before 31 December 1961, who were required to retire at that later age. Accordingly, the appellant, who had already crossed the age of fifty‑five before 25 May 1961 but had not yet reached fifty‑seven, was compelled to retire on 31 December 1961. Had the earlier rule of 27 November 1957 remained in force, the appellant would have continued in service and retired on 11 December 1963. The appellant’s premature retirement as a result of the 1961 reduction in the retirement age gave rise to a writ petition filed by Ram Autar Pandey in the Allahabad High Court, challenging the Government’s authority to lower the retirement age.

The petition was originally heard before a Full Bench of the Allahabad High Court, which dismissed it on 21 December 1961, as recorded in Ram Autar Pandey v. State of U.P. (I.L.R. [1962] 1 793). The same petition, which gave rise to the present appeal, had been filed on 4 December 1961 and was again dismissed on 29 March 1962, this time following the decision in the Ram Autar Pandey case. Subsequently, an appeal was lodged before the Division Bench of the same High Court, but that bench also dismissed the appeal on identical grounds. After the second dismissal, the appellant applied for leave to appeal to this Court, and that application was granted, bringing the matter before the Supreme Court. The appellant’s counsel advanced three specific points in support of the appeal. First, it was argued that the retirement rule issued by notification dated 25 May 1961 violated Article 311 of the Constitution because it removed public servants without satisfying the procedural requirements of Article 311(2). Second, the counsel maintained that the rule was invalid because it was retrospective, and no notification could lawfully be made with retrospective effect. Third, it was contended that the rule contravened Article 14, since it created inequality among public servants with respect to the conditions of retirement.

The Court first examined whether a reduction in the retirement age to fifty‑five years, which caused public servants to retire earlier than under the previous rule, could be characterised as “removal” within the meaning of Article 311. The appellant relied upon the decision in Moti Ram Deka v. General Manager, North Frontier Railway, where a provision in the Railway Code authorised the Railway Administration to terminate the service of permanent employees by giving notice or by paying salary in lieu, even long before the statutory age of retirement. In that case, the Court held that such termination constituted removal from service under Article 311, thereby invoking the protection of Article 311(2). The present Court, however, found that the Moti Ram Deka decision did not apply to the facts at hand because that case concerned a rule permitting termination prior to retirement, not a rule fixing the age of superannuation. Moreover, the earlier decision expressly clarified that a rule prescribing compulsory retirement at the age of superannuation, or shortly before that age, does not amount to removal. Applying this principle, the Court noted that the Government had initially raised the retirement age from fifty‑five to fifty‑eight years in 1957, a change that benefited the appellant by allowing him to remain in service beyond the date he would otherwise have retired under the old rule. The subsequent reduction of the retirement age back to fifty‑five years in 1961 therefore affected only the age of superannuation, and, in the Court’s view, did not constitute removal within the meaning of Article 311.

In this case the appellant had remained in service after 11 December 1960, a date on which he would otherwise have retired because he had reached the age of fifty‑five years. In the following year, 1961, the Government altered its position and again reduced the statutory age of superannuation to fifty‑five years, after previously having raised it to fifty‑eight years in 1957. The rule that was issued therefore dealt solely with the age of superannuation, and the termination of service that followed the appellant’s attainment of the reduced age was examined in the earlier decision of Moti Ram Deka’s case(1). In that decision the majority held that termination on reaching the age of superannuation fell outside the operation of Article 311. No statutory provision was produced that removed the Government’s authority to increase or to decrease the age of superannuation. Consequently, because the rule in question merely prescribed the age of superannuation and because the appellant was required to retire as a result of the reduction of that age, the termination of his service could not be characterised as “removal” within the meaning of Article 311. The Court further observed that the change in circumstances was not unreasonable. The appellant’s argument that a change in the superannuation age amounted to removal and that the procedural safeguards required for removal should therefore have been observed was dismissed, being directly contradicted by the case on which the appellant relied. For these reasons the Court held that Article 311 did not apply to the termination of the appellant’s service.

The appellant’s next contention was that the rule was retrospective and that a retrospective rule could not be validly made. Upon examination, the Court found no indication of retrospectivity in the wording of the rule. The rule simply declared that, from the date it became effective, the age of retirement would be fifty‑five years. Accordingly, the rule applied from that effective date to all government servants, irrespective of whether they had been recruited before 25 May 1961. This approach was consistent with the earlier 1957 rule, which had raised the retirement age from fifty‑five to fifty‑eight years and had been applied to all servants even if they had been appointed before 1957. The appellant argued that the proviso to the rule demonstrated a retrospective operation. The Court had already examined that proviso, which stipulated that government servants who had attained the age of fifty‑five on or before 17 June 1957 and who had not reached fifty‑eight on 25 May 1961 would be deemed to have been retained in service after the superannuation date of fifty‑five years. The Court held that this proviso did not render the rule retrospective; it merely explained how service beyond the age of fifty‑five should be treated in light of the earlier 1957 rule that was being superseded by the 1961 rule. Moreover, a second order issued on the same day expressly showed that there was no retrospective operation of the rule, and in fact no government servant retired before the new rule took effect on 25 May 1961. Consequently, the Court concluded that the new rule reducing the retirement age from fifty‑eight to fifty‑five could not be characterised as retrospective, and therefore it could not be struck down on that basis.

In this case, the Court observed that the public servants who had retired before the date on which the new rule came into force, namely 25 May 1961, were all permitted to continue in service until 31 December 1961, except those who had attained the age of 58 years during the period from 25 May 1961 to 31 December 1961. Those latter employees were required to retire at the moment they reached the age of superannuation as prescribed by the earlier rule. Consequently, the Court formed the opinion that the new rule, which lowered the age of retirement from 58 years to 55 years, could not be described as having a retrospective operation. The Court explained that the proviso appended to the new rule and the second notification issued on the same date were intended merely as measures to alleviate the difficult situation that would have arisen in the public service had the new rule been applied immediately, and also to address any financial objections that might have been raised by the enforcement of the new rule. Accordingly, the Court held that the new rule could not be set aside on the ground that it operated retrospectively. The Court then turned to the final ground of challenge, which contended that the new rule was discriminatory because different public servants had, in practice, been retired at different ages. The Court found no merit in that contention. It noted that the rule fixed a uniform retirement date of 31 December 1961 for all public servants and established the age of retirement at 55 years, and therefore the rule itself did not contain any discrimination. The argument was advanced that the second notification, which required all public servants older than 55 years to retire on 31 December 1961 except a few who had turned 58 between 25 May 1961 and 31 December 1961, resulted in various employees retiring at ages ranging from 55 years and one day up to 58 years. The Court acknowledged that this was indeed the effect of the second order. However, the Court also observed that the same order fixed the identical retirement date of 31 December 1961 for every public servant who had attained the age of 55 years but had not yet reached the age of 58 years by that date. In this respect, the Court concluded that there was no discrimination, because all employees who had reached the newly introduced superannuation age of 55 years were required to retire on the same prescribed date. The apparent variation in the ages at which the affected public servants left service was explained by the fact that their services had been retained for different lengths of time after they turned fifty‑five, not because they were retired at different ages per se. The Court rejected the proposition that, once the Government decides to retain the services of some employees beyond the statutory retirement age, it must retain every employee for the same duration. The Court held that the decision to retain a public servant after the retirement age depends on factors such as the individual's efficiency and the exigencies of public service, and that in the present case the differences arose due to the exigencies of public service. Accordingly, the Court affirmed that the second notification did not constitute discrimination.

The Court was of the opinion that the second notification dated May 25, 1961, which the petitioner relied upon to demonstrate discrimination, was in truth not discriminatory because it applied uniformly to all public servants. The notification fixed the retirement date as December 31, 1961 for every public servant who had attained the age of fifty‑five years but had not yet reached the age of fifty‑eight years as of December 31, 1961. Consequently, the same rule applied to each person falling within that age band, and no differential treatment was evident. The Court observed that the effect of the notification was to set a common retirement deadline for the entire class of officers who satisfied the specified age condition, and that the rule did not create any preferential or adverse distinction among them. It further noted that the purpose of the notification was to implement the newly introduced retirement age uniformly, and that the variation in the actual ages at which individuals retired arose solely from the fact that some officers had reached the age threshold earlier than others, a consequence of the chronological spread of service entries. No evidence was found to show that the notification singled out any particular individual or subgroup for disadvantageous treatment. Therefore, the challenge to both the first and the second notifications on the ground that they violated Article 14 of the Constitution could not succeed. Accordingly, the Court dismissed the appeal. In view of the circumstances, the Court did not award any costs against either party. The appeal was dismissed.