LexTAKHATRAY SHIVDATRAY MANKAD versus STATE OF GUJARAT
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244
TAKHATRAY SIDVDATRAY MANKAD
v.
STATE OF GUJARAT
April 9, 1969
[J. C. SHAH, V. RAMASWAM! AND A. N. GROVER, JJ.]
B
Saurashtra Co\•tnanting States Serve.nu (Superannuation age) Rr1le1,
19SS-Flxing at• of "''"""'"' al SS Y•ars unl.ss for sp.cial r"1SOns oth"·
wlu 'directed by Govt.-These u:ords 111tcn that retirement QJlt can bt
utended beyond SS years-Rule h'OUid be Invalid if lnterpWed as givir.~
pawer to Govt. to retire a person ~rlier than 55 years because r~ does
not lay d<111·n a n1inimu11: period of service-Thct interpretation sho11!d b~
placed 14•/Jicli 11z.akes Rn/es valid and not invalid-Conditions were varied
to disadvantage when r. 16l(c) (2) (ii) (I) of Bombay Civil Sen·ice
Ru~s, 1959 'k'as applied to person previously
governed by Sawashtra
Rule-When done without a.'isenl of President this was in
t:iolation
of
s. 115(7) of the States Reori:anisation Act, 19S6.
The appellant originally joined the service of the Stale of Junaradh
in 1934 and \vas after the mergt!r of that State in Saurashtra confirmcJ
in September. 1956 as an executive engineer in the service of the latter
State.
Rule 3 ( i) of the Saur"'htra Covenanting States Servants (Superan·
nuation age) Rules 1955 provided: "A Govt. servant shall, unless for
special reasons otherwise directed by Govt. retire from sc'rvicc on his
complctin~ 55 years of age." After the merger of Saurashtra
in
the
bilingual Slate of Bombay the old Bombay Civil
Service
Rules
we?e
applied to Saurashtra area ""-ith effect from January 7, 1957. On July I.
19S9 the Bombay Civil Service Rules, 1959 were promulgated.
Ac.:nrd·
ing tor. 161(c)(2)(ii)(I) the age of retirement for class I Engineer; 10
the State Service v.·as fixed
~t 55 years but it y..·as further laid Jown that
they "may be required by the Government to retire on reaching the age of
50 years, if they have attained to the rank of Superintending Enginc.:r."
On the formation of the State of Gujarat the appellant's services \VCrl"
transferred 10 that State hut the Bombay Rules continued to apply. Und<r
the Bombay Ruic aforesaid, namely, r. 161 (c)(2)(ii)( l) the Government
of the Stale of Gujarat retired the appellant at the age of about 53 re•"
The appellant filed a writ petition in the High Court. The Hi~h ('.ourt
took into account s. 115(71 of the Slates Reorganisation Act, !956 ~ut
held that since the Saurashtra Rule 3(i) also empowered the Slate Govern-
ment to retire the appellant at an age earlier than 55 years thcr'! ":~.; no
variation of condition'.'; of service to hi.~ disadvantage undet the Bomh~v
Rule and therefore the latter rule was not invalid for want of Presidcotiitl
assent.
'fhe High Court took the view that the expression "unless fv:-
spccia1 reasons otherwise directed by Government" in r.
3(i)
of the
Saun1shtr;1 Rulec-; meant that the Government could for special reason..,
rctir~· .1 Govcrnmcrit servant before he had attained the normal ~u~r:1n
nuatton ~gc of 55 years.
Against the l~igh Coort's judgment dismi~\ing
his writ petition the appellant came by special leave, to this Court
HELD : Rule 3(i) of the Saurashtra Rules. if construed Or inter·
pretcd in the manner in which it had been done by the Hi~h Court, would
bring it into direct conflict with Motl Ram Dtka's case as well .. other
cases decided by this Court. In Motl Ram Deka's case it was laid down
that if any ru1e .permitted the appropriate authorities to retire cC1mpul-
sorily a civil servant without imposing a limitation in that behalf that such
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TAKHATRAY v. GUJARAT (Grover, J.)
245
civil servant should have put in a minimum period of service, that rule
would be invalid and the so-called retirement ordered under the said rule
would amount to remcval of the civil servant within the meaning of Art.
311(2) of the Constitution. The principle is that the rule relating to
compulsory retirement of a Government servant must not only contain
the outside limit of superannuation but there must also be a provision for
a reasonably long period of qualified service which must be indicated with
sufficient clarity. For exµmple if 55 years have been specified as the
age of superannuation antl if it is sought to retire the servant even before
that period it should be provided in the rule that he could be retired after
he bas attained the age of 50 years or he has put in service for a period
of 25 years. [248 G-249 G]
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