E. VENKATESWARA RAO NAIDU versus UNION OF INDIA

Citation: [1973] 3 S.C.R. 216 · Decided: 09-01-1973 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Dismissed

Judgment (excerpt)

216 
E. VENKATESWARA RAO NAIDU 
v: 
UNION OF INDIA 
January 9, 1973 
' 
{H, R. KHANNA, Y. V. CHANDRACHUD AND c: A. VAIDIALINGAM, 
. 
JJ.] 
fundaJnental Rules-Age of· retiren1ent-Office 
Afenioranduni 
of 
llome ·/o.Jinistry issued on 
Nov. 30, 1962 
raising age of . retirement 
fron1· 55 to 58 .Years but res~ving pott•er in appointing 
authority 
to 
retire a ,qovernrnent servant by notice without zh:ing any reason at age 
of· 55-0ffice Me1noranduni lvhethei' a rule-fVithin meaning of 
·Art. 
309. Constitution of India-Fundan1ental Rules a111ended in ·1965 incor-
porating rule in OjJice Men1orandun1 of 1962 ireJ?arding raising pf age 
to -58 years~-Notice of con1pulsory retirement at 55 issued under office 
Memorandum--'-Received b,v eniployee after proniulgation 
of 
an1ended 
Fundc·menta{ J?..u!es-t:niptovee lvhether could take advanta;:e of arnend~ 
ed rule-Cornpu!sory retirenzent need not puroort to 
be 
in 
public 
interest· when notice issued before pro1nulgatiCnr of 
sub-rule (j) 
of · 
rule 56(aJ. 
· 
Rule 56 of the Fundamental Rules originally provided that the age 
of compulsory retiren1ent for Central Governn1ent Seryan!s other 1han 
miniiterial servants shall be 55 years. On November 30. 
1962 
the 
Govcrnme:rrt of Indi-a,· 1\1inistry of 
llome 
Affairs 
issued 
an 
Office 
:rvlemo'randum whereby . the age of compulspry rctiren1~nt \Vas raised to 
58 years. 
Jlo\vever by paragraph 6. of the l\fcmorandum the appoint~ 
ing authority could retire a Govenunent servant at the age of 55 years 
,-
without giving any reason after three months' 
notice. 
On 
July· 21, 
' 1965 Fundan1cntal ,H.ulc 56 \Vas amc:n<lcd by the Sixth Amendment so 
as to incorporate,. with modifications, the p'rovisions of the aforesaid 
Office Memorandum. 
Rule 56(a) of the Fundamental (Sixth Amend-
ment) Rules 1965 laid down that except as otherwise provid"d in the 
Rule, every Government servant shall retire at the age , of 
58. years. 
Certain exceptions \Vere provided to the Rule a.nd that in . sub-rule (j) 
said that the approp'riate authority in ·the public interest had the absolute 
right to. retire a Govcrnn1ent servant at the age of 
55 
years 
after· 
givin~ him notice. 
Born on July 15, 1910 tho appellanf attained. the 
age of 55 on the corresponding date in 1965. 
O.n July 22, 1965 while 
he was holding the post of Assistant Commissioner 
of 
Income-tax, 
he received a notice dated July 15, 1965 compulsorily. retiring 
him· 
from service with effect from October 21, 1965. 
He filed a writ peti· 
tion in the High Court challenging that notice but failed; · By certificate 
he app.ealed to this Couri. 
· 
HELD : (i) The proviso to Art. 309 empowers the President to 
make rules regulating the retireme~nt and conditions of servants appoint· 
ed to Un'ion services and -posts until provision in that behalf is made 
under an Act of the appropriate legislature. The rules so made by the 
President are effective subject to the provisions 
of 
any 
such 
Act. 
Paragraph 2 ol the 
Offic~ l\femorand\lm in terms recites 
that 
the 
President is . pleased to direct that age of compulsory 
retirement 
of 
Central Government 
servants should be 58 
years; 
subject to certain 
exceptions Paragraph 8 of the Memorandum 
merely 
re-states 
with , 
particularity the true legal pos'ition which obtains under the proviso to 
Article 309. Nothing stated in that paragraph 
is 
capable 
of 
the 
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G 
~ H 
E. V. RAO v. UNION (Chandrachud; !.) 
211 
constructiori that the 
Office 11emora0.dum was not to be effective until 
Ftindamcntal nutes were· consequently ame:nde<l. 
In. {act 
·by 
Para~ 
gr-aph 7 the provisions of the 1femorandum v.·ere given express effect_ 
from December 1, 1962, [219 FG] 
· 
(ii) It is true the notice ot' con1pulsory retirement \Va.s served ?n 
the appellant on July 22, 1965 while the Fundamental (Sixth Amend-
ment) Rules came into force a day prior thereto viz. O;rt July 21, 1965. 
But the crucial date is the date on \vhich the notice \Vas b:s'Jed, namely 
July 15, 1965 for, a right·.which is validly determined, cannot· without 
more, stand revived by -a later amendment enlarging the scope of that 
right. [220-A Bl . 
The appellant\ continued in' service beyorrd· the 
ag-~ 
of 
55 years 
which he attained on July 14,' 1965 by reason of paragraph 2 of the 
memorandum. 
Having_ obtained the benefit of that provision he could 
not repudiate t

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