SENIOR SUPDT. OF POST OFFICE & ORS. versus IZHAR HUSSAIN

Citation: [1989] 3 S.C.R. 796 · Decided: 10-08-1989 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Dismissed

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

Judgment (excerpt)

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SENIOR SUPDT. OF POST OFFICE & ORS. 
v. 
IZHAR HUSSAIN 
AUGUST JO, 1989 
8 
[RANGANATH MISRA AND KULDIP SINGH, JJ.] 
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D 
E 
f 
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Administrative Law: Statutory rule-Cannot be modified or 
amended by executive instructions constitutionally invalid rule cannot 
be validated by executive instructions-Instructions can only supple-
ment and not supplant the rule. 
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Fundamental Rules: Rule 561-Premature retirement-Only/ 
in 'public interest'. 
Liberalised Pension Rules, 1960: Rule 2(2)-Compulsory retire-
ment-Permissible after 30 years qualifying service at 'discretion' of 
Government-No guide-line provided-Rule invalid. 
The respondent, and employee in the Posts and Telegraph 
Department, was retired from service under Rule 2(2) of the Libera-
lised Pension Rules, 1950 which empowered the Government to retire a 
servant at any time after he had completed 30 years of qualifying 
service. The respondent's writ petition in the Allahabad High Court 
was dismissed by the learned Single Judge holding that there was no 
infirmity in the Rule. The Division Bench, however, accepted the 
Special Appeal filed by the respondent and declared Rule 2(2) invalid. 
Before this Court, it was contended on behalf of the appellant that 
the Government of India had issued instructions dated July II, 1955 
and February 8, 1956 which laid down that the retirement under Rule 
2(2) of the Pension Rules should be effected when such retirement was )· ., .. 
necessary in public interest. It was further contended that the Ministry 
of Home Affairs Memorandum dated November 30, 1962 which was 
issued in the name of the President of India, was statutory and had the 
effect of amending Rule 2(2) of the Pension Rules, and reading the rule 
and the memorandum together the power under Rule 2(2) could only be 
exercised to weel-out unsuitable employees. 
Dismissing the appeal, this Court, 
HELD: (1) Central Government servants superannuate at the age 
of 58 years. The Government bas the absolute right under Rule 56(j) of 
796 
SR. SUPDT. OF POST OFFICE v. IZHAR HUSSAIN 
797 
',Fundamental• Rules to pr<:maturely ~etire a servant in 'Public In-
terest' after be bas attained the age of SS years. The Government bas 
also the power under Rule 2(2) of the Liberalised Pension Rules to retire 
a servant at any time after be bas completed 30 years ·of qualifying 
service. [798H-799A] 
A 
.... · 
(2) ·Fundamental. Rule S6(j) while granting absolute right to the 
B 
~! Government provides that such power can only be exercised in ;Public 
~\lrlterest': '.This· guide-line is· sufficient safeguard 'against. the arbitrary 
F/ex~'rcise of' power by the Government. The objeCLof tbiS Rule is to 
·'f..lioj>.off dead~wood. Rule 2(2) of the Pension Rules on the other. 
• hand · provides no : guide-line and gives absolute. discretion to the 
.Government. There is no requirement under the rule to act in 'Public 
-' foterest'. [799E-F] 
C 
(3) Although· the rules are mutually exclusive and have been 
: ·made to operate· in different fields but the operational effect of the two 
rules is that a Government servant who bas attained the age of SS can be 
retired prematurely under F.R. ·S6(j) only lln the ground of 'Public 
D 
Interest' whereas another Government servant who is only SI and has 
completed 30. years· of qualifying service, can be retired at any time at 
· the discretion of the Government under Rule 2(2) of the Pemion Rules. 
' Any Government servant who has completed 30 years of qualifying . 
service and b..S not attained the age of SS years can be picked up for 
premature retirement under. Rule 2(2). Since ito sat'e-!luards are £ 
provided in the Rule; the discretion is absolute and is capable of being 
· u5ed arbitrarily and with 'an un-even hand. Rule 2(2) of the Pension 
··Rules is'· therefore ultra vires Articles 14 and 16 of the Constitution of 
India. [799G; 8008-C] 
(4) A statutory rule cannot be modified or amended by executive F 
instructions. A valid Ruie having some lacuna or gap can be supple-
mented by the executive instructiom, but a statutory rule .. which .. 
constitutionally invalid cannot be validated with the support of executive 
instructions. The instructions can only supplement and not supplant the 
rule. [SOOE] 
(S) The Ministry of Home Affairs, Memorandum dated 
November 30; 1962 bas not been issued under Article 309 of the Con· 
stitution of.India and as such cannot be statutory. The memorandum is 
in· the· nature of e

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