I. N. SAKSENA versus STATE OF MADHYA PRADESH

Citation: [1967] 2 S.C.R. 496 · Decided: 30-01-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

. 
J. N. SAKSt::lliA 
\'. 
STATE OF MADHYA PRADESH 
January 30, I 967 
A 
(K. N. WANCHOO AND V. RAMASWAMI, JJ.j 
8 
Cons1i1utio1l of J11diu, 1950, Arts. 309 uucl 31 l-Stale Govtrunren 
.nie1norand11n1 raising age <>/ re1iren1c111 of its serva111s froin SS 10 58 
years-Provision for earlier cornpulsory re1irc1ne111 of 'uu.r11itublc' 
r111-
ployees--Order of co1npu/sory re1ircn1ent co111ai11ing no cxpre.'iS u·nrds of 
.\·tignJO-Stigma whether can be inferred /ro1n proVi!iiOns of 111en1orc111du:11 
-Such conipulsory retirc1nc111 whether arnounts to re1no,·al \\.'ilhin meaning 
·Of Art. 311-Ru/es i11 1ne11rorandum whether rule_,. under Art. 309. 
C 
Madhya Pradesh Judicial Service (Clt1.lsi{icatio11, Recruitn•"!llt and Con· 
dition.r of Service) Rules, 1955, r. 7(2)-R11/e whether makr.s All India 
Services (Death-cum-Retirement Benefits) Rules, 1958 app//cab/e to Di.<· 
trict Judges in Madhya Prade.rlt. 
On February 28, 1963 the Government of Madhya PraJcsh mucd a 
memorandum whereby the age of retirement of its employees wa'i raised 
from 55 to 58 years. Clause 5 of the memorandum howcvzr said that th<: 
appointing authority may require a Government ser\·ant to rc1irc after he 
.attained the age of SS years on three monThs' notice without giving any 
reasons. The clau<e further said that this power was normally to he used 
to weed out unsuitable employees. 
The appellant who wit~ o District and 
Sa.sions Judge in the service of the State Government would normally have 
retired at the age of 55 years in August 1963, but under 1he abcvc mem<>-
randum his servi= were extended beyond that date. 
In September 1963 
however. Government communicated to him an order that he was to 
retire on December 31, 1963. 
On December 6, 1963, o notifica!ion was 
issued by the Sta\e Government amending rule 56 of the Fundamental Rules 
applicable to the State of Madhya Prade<;h. 
By the amended F.R. 56 the 
age of retirement of Government servants was raised to SS ycaPi with effect 
from March I, 1963. All the provisiom of cl. 5 of the aforesaid mem<>-
randum or February 28, 1963 were not incorporated into the new rule 
by this amendment. The appellant filed a writ petition in the High Coun 
challenging the order compulsorily retiring him on December 31. 1963. II 
was rejcclcd and rhe appellant came. wilh certificate, to this Court. 
The question• 1hat fell for consideration were: (i) Did the order com-
pulsorily retiring the appellanl cast a stigma on him in view of the language 
of cl. 5 of the memorandum and if so whether Art. 311 of the Constitution 
was attracled ? (ii) Was the Memorandum a rule under Art. 309 of the 
Constitution? (iii) If it was not a rule, would not the appellant be liable 
to retire in August 19557 (iv) Were the All India Services (Death-cum-
Retirement Benefits) Rules. 1958 applicable tD the appellant by virtue of 
r. 7(2) of the Madhya Pradesh Judicial Service (Clos.<ification, Recruit-
ment and Conditions of Service) Rules, 1955 7 
HELD : (i) Where there are no express words in the order of com-
pulsory retirement itself which would throw a stigma on the Government 
Krvant. the Court would not delve into Secretariat files to di'.tcovcr whether 
some kind of stigma could be inferred on such research. 
Since in the 
present case there "'·ere no words of stigma in the order compulsorily retir· 
D 
E 
F 
G 
II 
SAKSENA v. M. P. STATE (Wanchoo, I.) 
497 
A 
ing the appellant, there was no removal requiring action under Art. 311 of 
the Constitution. [501 E; 502 A) 
B 
c 
D 
E 
F 
G 
H 
Jngdish Mitter v. Union of India, A.I.R. 1964 S.C. 449 and State 
of U.P. v. M, M. Nngar (1967] 2 S.C.R. 333, distinguished. 
(ii) The memorandum of February 28, 1963 contained merely execu-
tive instructions and was not a rule under Art. 309 of the Constitution. The 
only rule which the Government had made on the question of superannua-
tion was by the notification of December 6, 1963. This rule would apply 
to the appellant and it did not empower the Government to retire Govern-. 
ment servants over the age of 55 years on three months' notice without 
assigning any reason. As this rule would apply to the appellant from the 
date it came into force, the notice which had been served retiring him 
from December 31, 1963 must fall. [504 B-C] 
Shyam Lal v. Slate of U.P. [1955] 1 S.c:R. 26, distinguished. 
(iii) Though ordinarily the power of Government 
lo extend the 
.services of Government servants, as ·contemplated by the then existin

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