LexUNION OF INDIA versus MOOL CHAND DASUMAL PARDASANI
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608
UNION OF INDIA
v.
MOOL CHAND DASUMAL PARDASANI
September 3, 1971
[S. M. S!KRI, C.J.,
A. N. RAY AND D. G. PALEKAR, JJ.J
Civil Service-Fundamental Rule 56(b) (i)-Pre 1938 ministerial ser-
·vant-Memorandum dated December
31, 1963-Men1orandun1
given
effect to by government-Denial of benefit would be
infraction of Art.
14--Constilution of India. Article 14.
Clause b(i) of Fundamental Rule 56, as .it stood prior to November
30, 1962 provided that a pre 1938 ministerial servant might be required
to retire at the age of 55 years but should" ordinarily be retained in ser-
vice, if he continued efficient, upto the age of 60 years.
By memoran-
dum dated 3 lst December, 1963, the
President of !ndfa decided that,
subject to the right conferred by memorandum dated November 30, 1962,
to retire any officer on three months' notice after he attained the age of 55
years; pre-1938 ministerial officers governed by P.R. 56(b){i) bad to be
continued in service like all other government servants upto the age of 58
years without an annual order sanC:tioning tfi'!ir retention.
The respon-
dent was a ministerial government servant governed by Clause b(i). He
entered government service prior to April, 1938 and would have attained
the age of 55 years on March 14, 1964.
On
December
18, 1963 the
Collecto·r, Central Excise passed an order retiring the respondent
from
-service.
The order gave the respondent option to retire with effect from
March 14, 1964 or to proceed on leave as might be admissible or granted
to him preparatory to retirement.
The respondent was on preparatory
leave extending upto 28
months after
March
14, 1964 and was paid
the salary that was admissible to him for this leave. period.
The High
Court quashed the order of retirement and held that the respondent would
be deemed to be in service until he attained the age of 60 years. The High
Court further was of the view that the memorandum was not in
the
nature of executive or administrative instruction.
Dismissing the appeal,
HELD : The orders of the High Court that the respondent would be
deemed to be in service until he attained the age of 60 had to be upheld.
The memorandum was given effect to in relation to ministerial servants
at all relevant times subsequent to December 31, 1963.
The government
acted on the memorandum.
The respondent would
be entitled to the
benefit of the mentorandum as all other government servants were at the
relevant time. .To deny the respondent operation of the memorandum
will be infraction of Art. 14 of the Constitution. [612 F-G]
The resp0ndent was on preparatory leave extending upto 28 mouths
after March 14, 1964; and he was paid the salary that was admissible to
him.
Therefore,
for 28
months
he continued
to be a government
~rvant. Talcing into consideration these features it is clear that the res-
pondent was entitled to the benefit of the increased
age of retirement
namely 58 years and thereafter upto 60 years in accordance
with
the
memorandum. [613 Al
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
UNION V. MOOL CHAND (Ray, J.)
609
[The Court did not find it necessary to express any opinion on the
question whether the memorandum was a mere executive or administra-
tive instruction or had the force of a statutory rule.] [613 C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2201 of
1970.
Appeal from the judgment and decree dated May 2, 3, and
June 16, 1969 o.f the Gujarat High Conrt in SecQnd Appeal No.
594 of 1968.
L. M. Singhvi and S. P. Nayar, for the appellant.
The respondent did not appear.
The Judgment o.f the Court was delivered by
Ray, J,
This appeal by certificate is against the judgment
dated 2/3 May, 1969 and 16 June, 1969 of the High Court of
Gujarat quashing the order dated 18 December, 1963 passed by
the Collector, Ceintral Excise, Baroda and further ordering that
the respondent will be deemed to have been continued in the
service of the Government until he atta~ned the age of 60 years.
The orde_r impeached by the respondent was as follows :-
"Central Excise Collectorate, Baroda, Establishment
Order No. 286 of 1963.
Shri Mulchand Pardasani, Upper Division Clerk,
Head Quarter Office, Baroda, who attains the age of
55 years on 14-3-1964 is hereby informed that the Col-
lectorate Departmental Promotion Committee, 1963, has
not considered him suitable for further rete;ntion in
service beyond the age of 55 years.
He has the option
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