ADHIVARSHIKI-AYU

TI9E MADMYA PRADESH SWASKBYA I$EVA%6 
(ADHEYAW SSCF[l[Kr-AY U j ADHINIY L-%bT, 8964 

[No. 29 of 19671 

Received the merit of the Governor, on the 2211d Decenrber, ! 967; 
asselit first puhliyhed in 111e Mndhya Pradzsh Ciazette 

Exlraord~nary on the 23rd Cecember, 1967 

An Act to provide for the age of Snpr.ranaaation of Covernnlent 
;erir;nnts in the Srate of 3ladhya Pradesll and for czriain 

mrdtttrs connected theremitln. 

Be it enacted by the Madbya Pradesh Legislature in the Eighteeth Year of 
the Republic of I n d i a  ns follows :-- 

1. Sliort titie.-This Act may be called the Mndhya Pradesh Shaskiya 
Sevak (Adhivarshiyi-Ayu) kdhiniyam, 1967. 

2 ,4mendment sf Fundament31 Rules.-For rule 56 of the Fuiidarnental 
Rule ~pplicable to the State of hA,:ldhya Pradesh as subsituted by section 3 of 
the Mai;hya Pradesh Shackiya Sewak Anivarya Sevanivritti K a  kidhimanya- 
takarnn Adhiniyam, 1967 (5 of 1967) (hereafter referred ta a, thesaid Act), 
ilie follov;ir?g shall be substituted, namely :-- 

'.56 (1) Subject to the p~ovisrcns of Madhya P;a:csl7 A n i ~ i ~ r y a  Sev:~ 
Nivritti-Ayu) Niyani, 1967 as specified in the Schedule to tlle Madhyn Pradesh 
S5askiya Sevak (Adhivard~lki-Ayu) Adhiniyam. 1$L'7. 1he date of compulsory 
retirement of a Gox~ernment servant other than class !V Government servant, 
shall be the date on which he &tttains the ape of 1% yeals 

(2) Tile clate , ~ f  compulsory retirement of Class TV Government ser L ant 
shnli be the c l ~ t e  or1 which Ile attains the age of 60 years. 

g[2. Amendment sf Fundament31 Rule 56 as substifr?ied b j  Sedioll 2 of the 
Principal Act -117 vciion ? of the Madhya Pradesh Shaskiya Sevn!; (Adhivarshiki- 
Ayu) Adhiniyax, 1x7 (No 29 of 1967) (hereinafter refei red to as the principal 
kc:) after sub-rule ( I )  of Rnle 56, the following sub-rule shall be ~nserted;  
narnely- 

(I-a) Subject to lhe provisions of sub-rule (3), every Governn~ent teacher 
shall retire froin service on the after noon of the last day of the morltllin which he 
attains the age of sixty pears : 

Provided that  a Government teacher whose date of birth is the first of  a 
m a t h  shall retire from service on tile afternccn of the last day of the preceding 
month on attaining the age of sixty years. 

1 .  The age has been raised to 58 years vide M.P. Act No. 9 of 1976. 

2 .  Inserted by Act No. 35 of 1984. Published in  M P. Rajpatra (Asadharan) 
dated ! 5-1 1-1984 Page 3065. This amendment shall be deemed to have 
Gome into effect from 5th September, 1984. 



1134 Madhya Pradesh Scrvices Manunl [ Rr. 1-2 

Exaplanaihon.- or the purpose of this sub-rule "Teacher" means a 
Government servant by w h ~ l e v e ~  designation called, engaged in teaching in an 
"ucational institution including technic21 or ~nedical institutions, run by 
Government]. 

3. Amendment of dle Msdiigra Pradesh District and Sessiow Jodgee 
Death-Cnms-~etiaement Bene4ts) Ru!ds, 1964-For sub-ruie ( I )  of rule 2 of the 
Madhya Pradesh District ai:d Sessions Judges (Death-Cum-Retirement Benefits) 
Rules, 1964 as substituted by sectio~: 4 of the said Act, the following sub-rule 
shall be substituted, namely :- 

(1) Subjxt to the provisions of sub-~ule (I-A), the All India Services 
Death-cum-Retirement Benefits) Rules, 1958, as amended horn time to  time 
hereinafter referred to as the ssnid Rules) shalt app!y in~ ta i i s  lnutandis to- 

(a) all permanent District asd Sessions Judges drawn from amongst the 
officers of the Judicial Service of the former State of Madhya Pradesh in the 
same manner as they have hitherto applied to them with effect from the 29th 
October, 1951 by virtue of rule 7 (2) of the Madhya Pradesh Judicial Servlces 
Classification, Recruitment and Conditions of Services) Rules, 1955; 

(b) all permanent, District and Sessions Judges in the State who are 
drawn from amongst the officers of the Judicial Services of the former States of 
Madhya Bharat, Vindhya Pradesh and Bhopal, with effect from the 1st April, 
1958 subject to the exercise of option as provided in rule 3 ; 

(c) all other permanent District and Szssions fudges in the State not 
falling within clauses (a) and (b) above. 

(I-A). With regard to the age of compulsory retirement the permanent, 
District and Sessions Judge shall be governed by the Madhya Pradesh (Anivaryn 
Seva Nivritti-Ayu) Niyain, 1967 ns specified in the Schedule to the Madhya 
Pradesh Shaskiya Sewak Adhivarshiki-Ayu) Adhiniyarn, 1967 and the provisions 
of Fundamental Rule 56, as substituted by section 2 of the said Act. 

4. Amenbe~nts when to come into force.-Arneod~i~ents made by section 
2 and 3 shall come into force with effect from the 15th December, 1967. 

5. Wepeal.-The M~ladhya Pradesh Shaskiya Sevak (Adhivarshiki-Ayu) 
Adhyadesh, 1967 (12 of 1967) is hereby repea1ed.l 

SCHEDULE 
[ See sections 2 nnd 3 ] 

Bales 

I. ( I )  These rules nlay be called the Madhya Pradesh (Ani7varya Seva 
Nivritti-Ayu) Niyam, 1967. 

(2) They shall come into force with effect f r ~ m  the 15th December, 1967. 

2.  (1) The age of compulsory retiremzn: cf Government servants other 
than Class I V  Government servttnts shall be 258 years. 

(2) The age of co~;ipulsory retirement of Class I V  Government 
servants shall be 60 years. 
--- ___ _ _  __A_--A_---- 

I .  Published in M.P. Rajpatra (Asadharan) dated 23-12-1967 Page 3144. 
2 .  Substituted by M.P. Act No. 9 of 1976. 



Rr. 3 ] The M.P. (Anivarya Seva Nivritti-Ayu) Niyarn, 1967 

3. Those Government Servants who have already attained the age of '58 
years on the date mentioned in sub-rule ( 3 )  of rule 1 and are in service of the 
said date shall, as from the said date, be entitled to such leave as may be due 
for a period not exceeding 120 days and shall stand retired on the date next 
following the date of completion of such leave : 

Provided that the duration of such leave shall, i n  110 case, extend beyond 
the date of attai~ment of the age of 58 years. 

COMMENTS 

Synopsis 

(1) Order of compulsory reiirement (3) Court's declaratory decree is not 
on payment of three month's monetary decree. 
salary, not bad. (4) Raising age of Superannuation. 

(2) Correction of entry about age. (5) Compulsory retirement. 

( I )  Order of compu1sory retirement on payment of three month's salafy, 
not bad.-It is argued that there was a man who took his reversion wlth 111- 
grace, did not join on his substantive post for long seven years, went to the High 
Court four years after the passing of the said reversion order, deprived the 
State of his services in whatever capacity, and thereby exhibited lack of deyo- 
tion to  duty, used intemperate and offensive language towards the superlor 
officer for which he was charge-sheeted and actually removed from sefvlce On 
that count. If the Government took all fhese factors into consideration In taking 
a decision as to  whether it would be in public interest to retain him after the age 
of 55 years, could that decision be called malafide at all ? And after all, the 
petitioner was only promoted temporarily as Assistnnt Engineer. He had no 
vested right to continue cn the post and he was also not selected by Public 
Service Commission. 

The High Court of Madhya Pradesh agreeing with the above argument of 
Government advocate held that the dccision of the Government in compulsor i~~  
retiring the petitioner at the age of 55 years, could not be attack on the ground 
of 'mala fide'. , 

It was further argued by the petitioner that the order of retirement 
undel the Rule could be effective only if the State Government simultaneously 
offered payment to him of his three month's sa1,lry. Unless she payment of an 
eract amount accompanied the service of notice, the ceder of compulsori~y retire- 
ment would be bad. 

In the case of the State of Uttar Pradesh Vs. Dinunath Rai, decided on 1 l th  
October, 1968 : 1969 Service Law Reporter 647 (SC) the relevant portion of the 
Rule for interpretation reads thus : 

' 6  . . . . . . . . . .Provided that in the case of notice of the appointing authority 
the latter nlay substitute for the whole or part of this period of notice pay ,in 
lieu thereof provided further that it shall be open to the appointing authority 
torelieve a Government servant without any notice or accept notice for a 
short period, without requiring the Government servant to pay any penalty 
in lieu of notice." 

Their Lordships construed the rule differently and observed : 



Madllya Pradesh Services Manual [ R r ,  3 

"Tile ru!e does not say that ihe pay s11ouIJ be given in casll o r  by iil,? 
cheque at the time the ~ ~ o t i c e  is issued. Knowing ;lie way tlie Governmen: 
run,  it nrould bc dificuli to ascribe lllis iritontiotl to ti12 rule plaking nriihc,r;;y, 
There is II:I dnubt that thc Gover~i~?~cc?  scrvrt;:t youltj 1-i~ eillitled to the p:ly ir! 
lieu of notice hnt this wo~iid be in ;hz ordin~~r j ,  course." 

I n  the prese!!i case the language of the rule is akin to  the Iaugasge uscd i i i  

the Rule in Dii?nnnth i2n;'s C"a,rc~. 1959 Ser. L.R. 647 (SC) an3 we wotild prrii.r 
t o  construe the ~i:!e in the r;?ai~ner it doilz i n  ,Oi!~ii.ilnth's ca,re. Tj;e pay;;i::lt 
contcrnp!ated by tj1.5 P.ule is nei!!ler payment ta be insde forthwiil~, simulr:\.--e- 
ously with the nctice, nor v,-ould the mi ice  be effecti\.e only upoil p ~ j ~ l l c n t  l i e i n  
made. P n y i n ~ n t  cou!d folicn in the ordinary course. 

Even othcl'wise there was substantial co~np!iance of the  rule. The offer of 
Rs. !770/- towards three month's salary, was made, presumhiy, on  rile same 
day notice of campulsory re t i reme~~t  was served or soon ~Iiereafier. The pelition 
does not disclose the date of service of noticz. The grievance of the petitioner 
is that the salary offered was calculated on the basis, as if the petitioner \xias 
stopped at the E?iiciency Bar. According to  him, the question of crossing the 
Competent authority had to consider the queszion prior to or on  the date  <he 
petitioner became entitled to it and that date was 1.3.1969. If he  was not  
considered 011 *hat date for any reason whatsoever, it would be presumed, he 
says, that  the competent ~u thor i ty  hac! no objection to llis crossing the  et%c;eacy 
bar. 

The Hik!?~ Court held that  the petitioner cannot claim tile sanction to 
cross the Efficiency Bar simply because he had retired. The sanction could be 
given or  ~viihheid o r  even afier his retirement. If i t  was given, he could claim 
benefits eve!l tliough retir,-d. If it was withheld, he did :~oc lose anytiling, 
because he 112.3 nlready stopped at  that stage. It was. therefore held that  no  
punishment inflicted. U.K. It7c~rilyo:nnan J's. Stnrz of'!1di;i!lryn Prncicsi~ itnd orl!ti,.~. 
1975 M.P.L.J. 404 : 1975 J.L.J. 760. 

(2) Ci;:ncertion of eafry &out age.--The facts of the case are that in  ihe 
year I957 v ~ i ~ e n  for the first time after the reorganisation of States, the petiiioner 
was called iipon by the Seitlement OfEcer ro disc!ose his date of birth. The 
year 1917 n:criiiuae~l in ilk? S:rvlce Book clid not seen: proper record a s  rhe 

e 
date and the inon(h of the p~ti t iozer 's  birth were noi mentioned and the Service 
Book i~idicat-cd n0:11ing to show t h s t  the cntry was iierised with reference to 
any confirnint:,ry documentary e~icler7ce like r!ie i:latrisuiatio:i certificate 01' the 
Municipal Birih c2rtificatz. Thc pztitionzr protluced the inatrictilation cerli!icale 
and entered t5e date of birth as 8th April, 1915, not wi th  an idea of creating 
conflict, nor there is reason to  beiievt: that the entry :vns tnade o : ~  the insistence 
of Shri Ti k. Gupta. Pieslimably he made the entry haking reascn to  bzlieve 
that  the san:c: shall be acted upon. Viihatevc: be the !-c.:xl intention i n  the i?lind 
of the pztilioner, any reasonaiile man wonld accept the declaraiicr~ t u  be true 
and sctoil act: on I t .  

d u t y  9::;s cast iipoc ihr: petitioner to di:closr his date of birth ~i!ong 
with confirmatory evidence. He  ctlose to prodi:ce ?lie malsiculntion certificate. 
H e  entered the date as sho.an t!rerein ~ i t h o n t  protest. We was therehre deb~!rred 
froin producing the horoscope instead and asserting that :.hz real date of birth 

4;. I 
was 13th Shukla SamvzI, 1974 equivn!ent t o  20th August, 1917. I-Ie could have 
agitated the issue then and set the decision on the question of 11;s date of birth. 
H e  has come io ths Rig11 Court thirteeil ymrs afier when the Cc)vernment hss 
chosen t o  act on his own admission , they gave him extension of service fsr n 
year and retired him with erect from 22nd April, 1971 



Rr. 3 1  The M.P. (Anivarya Seva Nivritti-Ayu) Niyam, 1967 1137 

It was held that the petitio~zer !!as guiity of acquiescence He accepted 
the date of birth as 8th April, 1915. The case also attracts ihe doctrine of 
estoppel by negligence. Th:: petitioner allowed the two entries to continue and 
thereby led the Government to choose tile entry which pri/?ln . f i r c i ~  appeared. 
genuine and had the support of contirmatory evid-.nce. The petitioner cannot 
now turn round and say that he has been prejudiced. Ile should have taken 
steps to get one of the entries prejudicial to him scored out. I-le had permitted 
them .to continue and the Govern~nent could legitimately act on tlle enlry whlch 
WJS supporlecl by the petitioner's matriculation certificate. It wss custolhary 
with the Government to rely oa the lnatriculation certificate mostly. for pufpose 
of date of birth. The petitioner's negligence lay in permitting the two entrles to 
continue, and the latter entry in particular to be construed as his own adn~issinrl 
in the matter of date of birth. 

Further it was held that the petitioner was guilty of supression and nlis- 
statement of facts inasnmch as he did not disclose initially that he had himself 
entered in Part I1 of his Service Book the 8th April, 191 5, to  be his date of 
birth. He also did not speak about the declaration he had submitted in February, 
1960. If he was force t o  make the entry as he later contended, that viould be 
a disputed question of facts on which the High Court would not go in evidence. 
In so fix as the adinission in the declaration of February, 1960 is concerned, 
there is no such plea of undue influence or coercion or misapprehension. Prilijcr 
facie, however, the two documents were held to be voluntarily exect~ted. Ildnkril- 
ci'ilroraj Sing!t KT. Stntc of Madhya Prndesh nrrd another. 1974 M.P.L,J. 31. 

(5) Court's declaratory decree is not monetary decree.-In Civil Appeal No. 
670 of 1965 J N .  Snxelza Vs. State of M.P., decided on the 3CI-1: January, 1967, 
tllc Supreme Court held that retirement of a Goverriment servanr, after he attains 
the age of 55 years, on three month's notice on the basis of the General 
Administration Departinent Memorandurn No. 433-2-58-1 (iii) 763 dated thc 
28th February, 1963 is invalid in since the said n~en~oranduin was lnerely an execu- 
tive direction,and not a rule governing the conditions of service of Government 
servants. The decision affected a large number of retirements ordered on the 
basis of the aforesaid memoraildunl and involved considerable financial burden 
on the State Exchequer by way of payment of arrears. There were likely to  be 
other complications regarding continuance in service etc. 

Therefore after the decision sf that qppeal the Governor had pronlulgated 
an Ordinance which was replaced on April 20, 1963 by the M.P. Slzaskiya Sevak 
Anivarya Sevaniviriti ka Vidl~irn~yatakardn Vidyayak Takaram Vidyeyak Adki- . 
niyam, 1967 (5  of 1967) validating tile retirement of certain Govcrnment servants, 
including that of appellant, despite the jugment of Supreme Court. 

BY virtue of this Act, the State is vested with a right not to pay the dues 
of appellant from the date of his retire~nent (December 3, 1963) onwards, In 
egect this Act has inade pr~vjsions of Compulsorily Retirement Rules, 1965 
npplicab!e from March 1, 1963. 

The appellant again moved the High Court challenging the validiiy of thc 
Act which was dismissed so an appeal was filed to the Supreme Court. 

It is argued 011 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 the Supreme Court's Decree dated 30th January, 1367 in favour of the 
appellant and against the State. Since the impugned Act to effect, seeks to  
expropriate the appellant oi that right without providing for any compensation 
it is ultra vires Article 31 (?? 4s" the Constitution ; 



1135 Madhya Ptatfesh Services hli~tiu3'r [ Rr, 3 

(ii) That thn i~npragned Act is ultra v i r s  ti:e Co~rstitution inasmuch as it 
seeks to validzte th:: retirement of the appellavt dnd other like llim by chaw- 
ing their ser~ic: conditions with retrospective effect, In so so doing, the State 
Ieglslatu,e has over-stepped the limits of legislat've powers conferred on it 
Article 309 of the Const~t~~tiou. Reliance was placed on the decision of the 
Suprene Court I U  the State gf %flrsoi'e VS. ~ada77ifl:ii?nci'?ap etc. (1966) 
Z SCR 394. 

(iii) th:tt the impugned Act, encroaches upon ~11:: ~udlclal field inasmuch 
:kt i t  overrules and make ui~enforceable the decision clated 30th January, 1967 
in Silpreme Court in Civil Appeal No 670 of 2963, and in so doing, it off- 
ends Articies 141, 142 gild 144 of the Consitntion ; 

(iv) Z ~ e n  if the impugned Act is valid, clauses (b) and (c) of section 
5 of the Act ,  oa a properconstructio:?, do not vacate #he decree of the Supreme 
Court, requiiing the respondent to the appelta~it the pecuni3ry benefits result- 
ing from the succzss of his earlier appeal (CAA, 670;65) in Supreme Cotlrt. 
CkiLlse (b) of section 5 merely bars themaintenance or contirluation of any 
proceeding f?r any amount as payment, towards salary. The appellant is not 
seeking to mxintai!~ or contiaue any execution proceeding io Court, for the 
recovery of any aalount tow2rd; salary, the decree being a declaratcry one 

None of these coote~~tions were Irdd to be tenable. 

On perus;rl of the Supreme Court decree rcferrecl to above would s h o ~  
that it is not 3 money decree, raising a judgnlent-debt. It: is a declaratory decree 
declaring that the respondent's order dated Sep~ember 1 I ,  1963, complllsorily 
retiriflg the appellant was invalid, and consequently the appellant would be 
deenled to have continued in service ti!] he attairied the age of 53 Years 
The fu1tht.r declaration that he will be entitled to such beliefits as may accrue 
to him by virtue 0:' thz success of the writ perition was only incldenlal or 
ancilliary to the main relief and will fall or stand with the same. This being 
the position the decree did not create an indefeasible right of property in 
fdvour of the appellant. 

The distinction between a 'legislative and a 3 judicial act is well known, 
thougll in some specific instance the line which separ,ttes one category from +Y 
the ot!:sr niny 11ot be easily disceriliblc Adjudication of the parties according 
to 1 3 ~  enncted by the iegislature is a judicial ful~ction. In the performance 
of l bk  Lcnclion r!ie court interprets and eflect to the intent and illan- 
date of the legisldC111t: as ernbodied i : ~  the statute. On the other hand, it is 
for the legislature to lay dawn the Inw prescribir~g norms of conduct which 
wilt Eolrern parlies and transactions and to require and to give effect to tllaf 
law. 

It W d S  Che:efore, held that in enacting the inlpugned provisions, the 1%- 
islature has not euceecled the Iirfiits of its legislative powers nor encroached 
on the judici:,l field. I N.  Srlkrena Vs. Tile S t o t ~  o/' il4~dlz1'ra Prcl(je.yh. 1976 
U.J. (SC) 223. 

111 Piore Dr~snrlc~ nrzd otl1~1.s Vs. Tlzc Ki ;g  Ei;-i:pc>ror 1944 F.C.R. 61, the t. 

Governor General by Orclinance repealed the Special Criminal Courts Ordin- d,, . 
ante J I  of 1943. Tilere was a provision ill the repealing ordii~ance for con- 
finnation and contiiiunnce of sentences of Special courts and retrial of 
peildiag cases. The appellant therein had been convicted and sentenced by 
Special Crimiza! Court which was held have to  jurisdiction to try the case by 
an order or a c o ~ ~ r t  Section 3 (1) of the Special Criminal Courts (Repeal) Or- 



R1. J ]  i'he M.P (Anivaiya Scva Plivr itti-hyt~) Nlyam, 196 7 1139 

dillance, 19-13 conferxed valiciity rr~ltl Ci.ill effkcli~en~ss 011 sellterlccs passed hy 
Special Criminal courts by conferring jurisdiction on them with retrospective 
effect, Tile FeJeral Courl hc!ii [!?at bj. pl-~!li~ilgati~:  and rcpettlirig Ordirlance 
of 1943, thc Izgis!ative autl~ority had 1101 attempted to do indirectly what it 
could not do directly or to exercise judicial power in tlze guise of lcgislaiion 
It was fu:ihcl, held thai the Ordinance was not invalid on the ground that the 
Icgisl:iiive autIioiity h:id valida ted by respective legislation preceedirlgs held 
in couris which were void for want ofjurisdiction as there wias nothing in the 
Tndi~tn Cons!i[ution which prectcded legislntive from doing so. 

(ii) Baishng the age of superazrnuniioa.-h the case of 3atnhai.i .lerza Vs. 
Tile State 0ri.rsrr. A L.15. 1971 S.C. 1516, iciiance was placed on certaitl 
objervaiioils iil tiie tiecisioll ol  the siiprerne Cowl ~ J I  Gurdev Singh Sindhu 
Vs. Srilrc of PiliSiLlb. (1964) SCR 587 : A.T.R. 1964 S.C. 1585. There the 
Supreme Court struclc down Article 9.1 of the Pepsu Service Wegtllations under 
which the Goverixneut sought to  retain an absolute right to retire any Govern- 
ment servant after he hail completed teli years qualifying service \vitllout giving 
ally reasoil. In that case the petitioner who had been appointed as an Assis- 
tant Superintendent of Police in  the erstwliilc Patiala State on February 4, 
1942 and confirmed in that rank on the reg~ilar vacancy after undergoing 
practicni district .training courses, and after promotion to the rank sf Superin- 
teadent of Police in a.n oificiating capacity in February 1950 in the said State 
of Pepsu, was asked to show muse by nolice dated 25th March i963 as 
to why he should not be compulsorily retired. The gctitiocrr cornplaiued 
that the notic: issued to ilia was invalid on the groiltid that the arlicle 011 

whish it was based was iiself ulira vircs and inoperative a i d  oiliy question 
before the Court was wheiher the i~npaigned articie was showii to be consiitu- 
ticually imaiiil. Referring i o  S(ztisi1 Ci~cii/~J."? L4.~~f l~~( l  KT. If%lc iI~?ion oj' f i l h  
1953 SCR 585 : A.I.R. 1953 S C 250, ;lnd LO ccriain dicta of i he majorif 
Judges in Moii Ronz Dckn Kc.. Generctl ltfanqer, ,niorth Eiut FI-o~rtier. R ~ ! l ~ ~ i ~ ? - .  
A.I.R. 1961 S.C. 60d : (i964) 5 SCR 683, the Supreme COUI i observed by way 
of cxplanation that : " . . . . . . . . . . Ihct majority juiignent took ihc precaution 
of adding a note of calltion that  if a rule of compulsory rctjrelilcat pxrposted 
to  give authority to the Government. to terri~inate tile services of a permanent 
public servant at a very early stage of llis career the question about the vali-. 

..* 
dity of such a rule lway have to be examined. That is how in accepting 

hlhe view that a rule of CoilIpLlisory retirement Gail be treated as valid and as 
constituting a]- zxceptiol? to  :he Grneial rule that the ierminat'w of the rer- 

-vices of a perlnanc. . ~?liblic servant ~.vouid ainou!lt to  his semo+al t:-. . r 31 1 
(4, the Supreli~e Court added a r:dcr zu~~d made it perfectly c l ~ a r  t i~a t  if the 
minimum pzriod of set vlcc which \?!as piescri bed by the reievanr, rules uplleld 
by the earlier decisions was 25 ycars, i t  could aoi be reasoilably reduced in 
that behalf. In other words, ihe majority judgtnent indicates that what 
cates what influenced the decision was the Sact that a fairiy large nuinbzr cf  
years had been prescribed by the rule of co~npulsoryret~rement as constituting 
the minimum pcriod of service :tfier which alone the said:rulc could bz invoked. 

The Court further observed that that the safeguards which Article 31 1 
(2). afforcls to  permanent public servallcz is no more than this that in case it 
is 111tendeS to dismiss, renlove or reduce thein iil rank a reasonable opportunity 
should be given to them of showillg wgainst the action proposed to be taken 
in regard to them. A claim for security it) tenure does not rneaa sccurity to  
tenure for dishc~csi,  corrupt, or inefficient public servauts. The -lain! lllerely 
insists illat bcfore they are remove!l, the permanent public servants should be 
given an opportunity to meet tllc charge on which they are sought to be re- 



1140 Madhya Pladesh Servmc Matiual 1 XI. 3 

1110vcd. Therefore, it scems t h ~ t  ooly i5 o cxcel,iious can bc treatcd c i ,  vril~d 
in dealing with t i le scope and effect of the protection afforded by Arti lc 3 1 1 
(?), if a permsizmt public servant i s  asked to retire on the ground Ihzt i:e has 
reached t l lc age of superannuation wlltcli has been reasonably fixed, i \r~lcle 
3 11 (1) doe> not apply, becdus:: sucii retiretnent is ~zcitllzr dismissal nor r rcioval 
of the p~b l i c  s:rvdnts. If' a.perinanent public servant is compulsorily retired 
undx  the rule; which prescribe the normal age of superannuation and rrovide 
for a red~nilabiy lo ~g period of qudified servicz arter which alone coril: ,llsoiy 
retirzmsnt c.ln bo ordercd, that again may nat amount to dis~uissal o: i..ific\:al 
tinder Artic!e 31 1 (2) 1-inin1y because that is the eRcct ~f 2 long series ofdc-  
cibions of Supreme Court But where while reserving the power io the State 
to compuisoriip retire a permanent public servant, a rule is framed preccrjbing 
a proper age of superannuation, and ano'her rule i h  added giving thr: power 
to the StLite LO conlga!s3riJy retire a public servant at  the c'ld of 10 ycars of 
his service, that cannot, be treated as falliilg outside Article 311 (2) .  The 
termination of the service of a permaueut pnblic serirant uncler such a rulc 
though compuisory retirement, is. iu substsuce re~noval under Article 3 11 (2 )" .  

Tlzc abokc obscrvatiolis rrlicd on thc counsel clo not help the ai~peilatlt 
The above ob~crristioras sllow that a rule which permits a Government to  ask 
an ol'ficer to r e h e  after au ui~reasonablp short period of service must bcforc 
t i le narllxal age of supernnultion would be hit by Ariiclc 31 1.  They cannot 
apply cvb:n the psi'iod of qudltFyiilg EC: ICB mentioned in the rule i s  !lot u n -  
reasonably shot and the normal age of superuuation iixed is not ~ ~ q x c o u u -  
tably eaiiy. %<fore May 1363 a Gover~iment servant i n  Go\.ernmeiit servznt 
in 0riss:i !?ad t c  retire on att~ining thc agc of 55 y~ai-s \- !lether he ! ~ s b  can -  
pleted 30 years' qualifying service or not. The Fdci rhnt  the age of superannu- 
:ition was ral\?d from 55 or 58 kiiblle Govercme~\t reserved to itself a right to 
ask any  emplojee to retire at ille age of 55 Jogs nct xiolatc t'lLticIe 311 (3). 
Sccondly tilc ~ r d e r  d ~ d  not ~ 1 s t  nnj7 aspcrrions or siigrn;~ on the rppellont 
which ~ ~ o u l d  attract Articlr 31 1, A f?overnn~ent has : I  right to rguir t :  tilt 
Govcrnmcn'; servant tir retire at the agz of 55 n i t l ~ou t  assigning an) I.casoi1. 
Tile faci that by the noLific%tiou of St11 February. (964 certaiil 2ujdcli;les were 
indicated lo the I-f;e~ds 01 Depzrirnents in considerillg whcliler 2 Goi2:rmi~eilt 
servant shouIJ contillue in service beyond the case of 57 years, onc of the 4 . 
+-actors for consideration bsing lack of inteyr icy, did not 1inpIy that ally offrcer 
wl~ose continua~ice in service \?]as no1 advised lacked in integrity. Bntnifnre Jcncl 
V Y .  Tile Or i~sa .  A.T.R. S C .  1516. 

It is \veil known t1i.tt a law or st,.~ltory rult should bc so interpreted as 
to iilake il valid and not valid. :f this c.:, ression 1s confined to \;I~at was 
arg~aed before the High Court namely that i t  gives power to the Goternment 
to  allov; a Government servant to remain in service even beyond the age of 55 
years for special reasons the rule will ilot be rendered invalid and its validity 
will a o ~  be put in jeopardy. So consrrucd it is apparent that the appellant 
could not have hem retired conpu!sory under the Saurashtra Rules before 
he had attained age of 55 years. By applying the Bombay rule his conditions 
of service were varied to his disad~az~tagr: because he  could then bc compul- d 
corily retired as soon as  he attained the age of 50 years. Takhcrrnrl T I i i ~ r J ~ ~ f f ~ i ~  4: - 
. l f c c ~ z k r r i l  T f t .  Slcttc of Girjcnnt. A 1.R 1 770 S.C 143. 

(5)  ~oit~pulsosy retirerncnl .-In A loti  Rnnz DeX n J's. General iM:l?i(lgel. N. 
1- 1'. R~ihvq l .  A la l igc~o~~ Prtid~i. 1'154 ( 5 )  S.C.R. 1964 L.C.R. 683 . !\ .I  .R. 1964 
S.C. 603 one of the matters w h ~ c h  cnnlc up for consideration \;'as ille efl'ecc 
of sci bicc 1 ule which perniit ted coinpulsury rctiremerlt T' ithout fi i ing the 



rlliuimum period or service a f ~ e r  wllicik ihe ruie could be iiivoked. According 
to the of Veukataram Ayyat. J. ill S l c t ~  of B~f l?bc /~  vs. Suubhug- 
cllcli,g n r . ~ o ~ h ; .  1958 S.C.R. 571 : A.X.R. 1957L.C. 892, thc npplication of 

a rule %rould be tantal-uounl lo dibmissal rcn;oval under k f i c i e  31 (2) 
of the Constitutlou. There were ceriain other dec;sionr o i  tl-ie Supreme Court 
which %c:c relevdot 011 this poilit viz. P Bl~I~i l io lui~h I's. i iric;!r oJC Iirdii~, 1958 
S,C.R, JC)~:! : 4 1.R. 195s S.C. 232 ail:{ Dal$Sijzgh VX.  State oj'P111ja6. 1961- v b  

I S.C.R. 88: A.1.R. 1960 S.C. 1305. All these decisioils were considered in . 
l\[oiir~rrr Deka Vs. Ger~cral Muutzgc i. X.E F. X ~ f i l ~ l ' u ~ . ~ ,  A.I. R. i964 S.C. 600 and 1 
the true legal position was stated in the majority judg:~>cnt at page 726 of 
of S.C.R. and at page 617 of L'=.T.R. thus : .' . . . .We tbifik that if any rule . 
permits t h i  appropriate ~iuthoriiy to retire compu!surily n civil servant without 
impositlg a limitation in that behaif that srrch civil serv; nt should have put in 
a minimum period of service, that rule would bc inxilid 2nd the so-called 
reti;e:uent ordered under the s a ~ d  RuIc W O U I ~  amour l~ to rcinoval of the civil 
servant within the meaning of Article 31 1 (2)". 

IQ Curdev Slngh SiLilrrl k5. Sra t~  0-f P~rirji~B. 1904 7 3.C.d. Sb7 : A,I.lZ. 1964 
s C. 1585, jr. v,as poiilted out that tlic only two exceptions to the protection 
diyDsde-j by Artl& 3) 1 (2) were, ( I )  nkere a permanent piiblic servant was 
asked to retire on the ground that he had reached the age of superannuatiol~ 
\$hi& was bxed ; (2) that he was compulsoi~iy rctired under the 
rule which piescribed the norn~al GZ ~Fsuperaanation 2nd proirided a reasona- 
bly lorlg p r i 0$  of qualified service afrcr whish a l ~ n e  ~o~npu!sorq. retirement 
could be valid. The basis on :vhich this k ~ z w  has proceeded is that for efficient 
ndmiaistratioil it is necessary that public servaurs shou!d elljoy a sense of secu- 
rity of tenure and that the terminstion of service of a public servant under 

Iule which docs not I,ty down a reasonabiy long pe~iocl of qualified ser,:ce is 
in substaucc relnova. ander Article 311 (2): The pri:ldp!e is that the rule 
relating t o  con~puIsory re tircmel~t oT Gor ernmeot servalil rnus t not only , ontaiu 
t!le outside limrt of superannuation but therc ruust also bc a provision for 3 
rcas~nailly long period of qualified sci.i ice which must be iadicatcd \?it-fi su&- 
ciollt clarity. To  give an example, if 55 ycars hme becu specified as the age of 
superannuation and if i t  is sought to retire ihe servant even before that period 
it should be pr~vided in the rule that he could be lctired al'ier he has attained 
the age of 50 years or hc has put: j r i  service for a period of 25 years 

It is well setiled that a law or a htatutory rule 5l;ould be so interpreted 
as to make it  vdlid not invalid. It this expr~ssion is confinec! to what was argued 

'I, before the High Court, namely that i t  : :ves power to government to allow a 
Goverumcnl senant to ietunin in servlcc .. Seyond the age of 55 years 
for syccial reasons the rule will not be rrtldered invalid aud its validity will not 
be put i n  jeopardy. So construed it is appare~~t  t h a ~  the appellant could not have 
been letired compulsoriiy under the Saurashtra Rules hefore he had attained the 
aSe of 55 years. By applying the Bombay rule h i s  corldition or service wcrc 
varied t o  his disadvaniage because hc could then be compulsorily retired as soon 
ai; he attained the of' 50 ycars As the previous approval of the Central Govcr- 
mc:lt wa3 ilot obiailled i n  accordance with the proviso t o  Section 115 (7) of 
the States Re-organisation Act, 1956, the Bombay Rule could not be made 
,tpplicable to the appel ]ant, T'ah hcli*crrj Slri~'durtni-y Illnl!lcud Jrs. State of Grljarrrl 
A,I.R. 1970 S.C. 143 : I969 Ser. 572 : (1970) 1 S.C.A. 138 : 11 Guj. L.R. 325 : 
(1970) 1 S.C.R. 144. 

4. h Govcr:111ient scrvant n:<iy b,: glren extcnsro~~ of selvice beyond the 
agc 5b  years subject to his pllpical il tor,s and oulst,rn~ling qunlity o f  his work 
but not ortlil~~tiily be) ond the 'lge of 60 years 



1142 Madhya k'rrdssh Servlsss Manual [ Rr 4=i1-5 

14-A. Notwithstanding anything contained i ; ~  rule 4,  a Go:i,-rn~~len: Servant 
who had beell a f r e e d m  figbier may, on pr'oductioil of a ccrtiscatc; i;r the form 
below and subject to his o th~rwise  being fit rd b; continued scri~ic:: be g i~e i i  
extension of :enice beyond the age of 55yclrrs f ~ r  srichpeiiod i;ot t:;ceeding 
the period for u41ich suclt goscrnment servnnc x r l s  in actmi dctz:?rion andior 
imprisonme~lt including the period undergoce as under rial i:1 conilectio~~ ::.jib 
the freedom movenlent, srrbject to msxirnu;n of rllree years. 

Explanation.-For the pzrposcs of !!]is ru!e "a freedor;,] fighterq' ii;ebu a 
Government servant who W ~ S  detained and/or irnprisoiltd. on :~ccou n' ~f his 

activities in connection with ireedom mover,eill c1uri:ig [hi: p':riod 
from 1919 to 1946.1 

5. The Madhja Pradesh (Age of C~mpulsory Rell;erren'i) Rules, 1365 
arc hereby repealed . 

2[FlaRM OF CERTIFICATE 

CERTIFIED that Shri.. . . . . . , . .S/o . . . . . . . ; . , . . . . . . . . . . . , . . . . . . . . . - . . 
Ria . . . . . . . . . . . .was ilnpriso~led ar?d:'or detained in connecfl~i~ ~ i i 1 1  
the freedom ~norelllellt at the [slsce, for the period nlid uilder the provisions 
of the law mentioned below. 

Datod thr Dist~-ici .I la,oisir'~lc. 


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