Holding

Rule 2(2) of the Liberalised Pension Rules, 1950 is ultra vires Articles 14 and 16 of the Constitution and is therefore invalid.

Summary

Izhar Hussain, a clerk in the Posts and Telegraph Department, was retired under Rule 2(2) of the Liberalised Pension Rules, 1950, which permits the Government to retire a servant at any time after completing 30 years of qualifying service. He challenged the retirement before the Allahabad High Court; the single judge dismissed his petition, but the Division Bench set aside the retirement and declared Rule 2(2) invalid. The Union of India appealed, contending that executive instructions of 1955‑56 and a 1962 Ministry of Home Affairs memorandum rendered the rule valid by limiting its exercise to the public interest. The Supreme Court held that a statutory rule cannot be amended or validated by executive instructions and that Rule 2(2) provides no public‑interest safeguard, rendering it an unguided discretion violative of Articles 14 and 16 of the Constitution. Consequently, the rule was declared ultra vires and the appeal was dismissed, upholding the High Court's decision.

Issues considered

Whether Rule 2(2) of the Liberalised Pension Rules, 1950, which allows retirement after 30 years of service, is constitutionally valid under Articles 14 and 16.
Whether executive instructions and the 1962 Ministry of Home Affairs memorandum can modify or validate a statutory rule.
Whether the rule contains a sufficient public‑interest guideline to prevent arbitrary exercise of power.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309, s. Article 73, s. Article 77
Fundamental Ruless. Rule 56(j)
Liberalised Pension Rules, 1950s. Rule 2(2)

Subjects

administrative lawstatutory ruleexecutive instructionultra viresArticles 14 and 16public interestpremature retirementpension rulesconstitutional validity

Judgment

'-~·•

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

AUGUST JO, 1989

8 [RANGANATH MISRA AND KULDIP SINGH, JJ.]

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. \J
. ·-·-- •

Fundamental Rules: Rule 561-Premature retirement-Only/
c 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.
D
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
E
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
f
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
G 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-
A
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]

....· (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]
G
(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 executive instructions issued in the name of the Presi·
•denhif India as required under Article 77(1) of the Constitution ol
India. [8010] H -
798 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Union of India & Ors. v. R. Narasimhan, A.I.R. 1988 S.C. 1733, ,A,
distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1361
of 1974.

B From the Judgment and Order dated 21. 11. 1973 of the Allaha-
bad High Court in Special Appeal No. 60 of 1972.

Anil Dev Singh, C.V.S. Rao and Tara Chand Sharma for the \
Appellant~. J
R.D. Upadhyay for the Re~pondent.
c
The Judgment of the Court was delivered by

KULDIP SINGH, J. The short question for consideration before
us is whether Rule 2(2) of the Liberalised Pension Rules, 1950
D (hereinafter called 'Pension Rules') which permits the Central
Government to retire a Government servant at any time after he has
completed 30 years of qualifying service by giving him three months'
notice or pay in lieu of such notice, confers unguided powers in the
Government and as such is ultra vires Articles 14 and 16 of the Constitu-
tion of India.
E
Izhar Hussain joined the Post and Telegraph Department as a
clerk on June 4, 1935. The Director, Postal Services by an Order dated
April 21, 1970, retired him from service under Rule 2(2) of the Pension
Rules. lzhar Hussain challenged the order of retirement by way of a ,
writ petition before the Allahabad High Court. The learned single ;, +·
F Judge dismissed the writ petition holding that there was no infirmity in '
Rule 2(2) of the Pension Rules. The Special Appeal filed by lzhar
Hussain before the Division Bench of the High Court was accepted
and rule 2(2) of the Pension Rules was declared invalid and the retire-
ment of lzhar Hussain was set aside. The Union of India has come up
in appeal by special leave against the judgment of the Division Bench
of the High Court. ,
,,,.,,.. G I

Central Government servants superannuate at the age of 58
years. The Government has the absolute right under Rule 56(j) of
"'·
Fundamental Rules to prematurely retire a servant in 'Public Interest'
after he has attained the age of 55 years. The Government has also the
H power under Rule 2(2) of Pension Rules to retire a servant at any time
SR. SUPDT. OF POST OFFICE v. IZHAR HUSSAIN [KULDIP SINGH, J.I 799
)
after he has completed 30 years of qualifying service. We may quote
these Rules: ' A

"F.R. 56(j) Notwithstanding anything contained in this
Rule, the appropriate authority shall, if it is of the opinion
·that it is in the public interest to do so, have the absolute
right to retire any Government servant after he has ·s
attained the age of fifty-five years by giving him notice of
not less than three months in writing. '

Provided that nothing in this clause shall apply to a
Government servant referred to in clause (e) or clause (f)."
\ .
J- "Rule 2(2) An Officer may retire from service any time C
after completing 30 years' qualifying service provided that
he shall give in this behalf a notice in writing to the.
appropriate authority at least 3 months before the date on
which he wishes to retire. Government may also require an
officer to retire, any time after he has completed 30 years D
qualifying service provided that the appropriate authority
shall give, in this behalf a notice in writing to the officer at
least three months before the date on which he is required to
retire, or three months' pay and allowances in lieu of such
notice."
E
Fundamental Rule 56(j) while granting absolute right to the
Government provides that such power can only be exercised in 'l'ublic
Interest'. This guide-line is a sufficient safeguard against the arbitrary
' exercise of power by the Government. The object of this Rule is to
~- chop-off the dead-wood. Rule 2(2) of the Pension Rules on the other
hand provides no guide-line and gives absolute discretion to the
F
Government. There is no requirement under the rule to act in 'Public
Interest'. A person who joins Government service at the age of 21
years can be retired at the age of 51/52 years as by then he must have
completed 30 years of qualifying service. Although the rules are mutu-
ally exclusive and have been made to operate in different fields but the
operational effect of the two rules is that a Government servant who
G
), h a(s a)ttained the age of 55 yfeaprsbc an be ret~d phrematurelyhundGer F.R.
56 j only on the ground o • u 11c Interest w ereas anot er ovem-
ment servant who is only 51 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 Pension Rules.
H
The object of Rule 2(2) of Pension Rules may also be to weed-
800 SUPREME COURT REPORTS [1989] 3 S.C.R.
I

out those Government servants who have ouHived their utility but
A there is no guide-line provided in the Rule to this effect. The Rule
gives unguided discretion to the Government to retire a Government
"'·
servant 1).t any time after he has completed 30 years of qualifying service
though he has a right to continue till the age of superannuation which
,; is 58 years. Any Government servant who has completed 30 years of
B qualifying service and has not attained the age of 55 years can be
picked-up for premature retirement under the Rule. Since no safe-
guards are provided in the Rule, the discretion is absolute and is
capable of being used arbitrarily and with an un-even hand. We, there- ,
fore, agree with the Division Bench of the High Court and hold that J
Rule 2(2) of the Pension Rules is ultra vires Articles 14 and 16 of the'
Constitution of India.
c
· Mr. Anil Dev Singh, appearing for the Union of India, con-
tended that the Government of India has issued instructions dated July
11, 1955 and February 8, 1956 which lay down that the retirement
under Rule 2(2) of the Pension Rules should be effected when such
retirement is necessary in public interest. The instructions being sup-
D
plementary to the Rule, according to him, the order of retirement has
to be in 'Public Interest' and as such there is no vice of arbitrariness in
the Rule. We do not agree with this contention of the learned counsel.
A statutory rule cannot be modified or .amended by executive instruc- ~
tions. A valid rule having some lacuna or gap can be supplemented by
the executive instructions but a statutory rule which.is constitutionally
E invalid cannot be validated with the support of executive instructions.
The instructions can only supplement and not supplant the rule.

Shri Anil Dev Singh then placed reliance on Ministry of Home
Affairs Memorandum dated November 30, 1962 and argued that the .I. ,
F
same, having been issued in the name of President of India, is statu- ,r
tory and has the effect of amending Rule 2(2) of Pension Rules.
According to him reading the two together the power under Rule 2(2)
of Pension Rules can only be exercised to weed-out unsuitable
employees. The relevant part of the memorandum is as under:

"It has now been decided and the President is pleas~d to
G direct that the age of compulsory retirement of Central r
Government servants should be 58 years subject to the ),
following exception:

H 6. Notwithstanding anything contained in the foregoing ,
SK SUPDT. OF POST OFFICE'· IZHAR HU.SSAIN IKULDIP SINGH, J.} 801

paragraphs, the appointing authority may require a A
Government servant to retire after he attains the age of 55
years on three months' notice without assigning any
reason, This will be in addition to the provisions already
contained in rule 2(2) of the Liberalised Pension Rules ·
1950 to retire an officer who has completed 30 years'
qualifying service, and will normally be exercised to weed B
out unsuitable employees after they have attained the age
of 55 years. The Government Servant also may, after at-
taining the age of 55 years, voluntarily retire after giving
three months' notice to the appointing authority.

7. 'These provisions will have effect from the 1st
\
c
"'
December, 1962."

A bare reading of the memorandum shows that there is an ob-
vious fallacy in the argµment of Mr. Singh. The memorandum has not
been issued under Article 309 of the Constitution of India and as such
cannot be statutory. The memorandum is in the nature of executive D
instructions issued in the name of President of India as required under
Article 77(1) of the Constitution of India. This was issued in anticipa-
tion of the Fundamental (Sixth Amendment) Rule, 1965 which inter
alia incorporated Rule 56(j) into Fundamental Rules. Even otherwise
para 6 of the memorandum could not and did not add anything to Rule
2(2) of the Pension Rules. Rule 2(2) of Pension Rules was mentioned E
to clarify that the power to retire under para 6 was in addition to the
'' power already. contained in the Pension ·Rules. The words "weed-out
unsuitable employees" can only be read qua the power to retire under
para 6 and not under Rule 2(2) of Pension Rules. There is thus no
force in the argument and we reject the same.
F
Relying on the decision of this Court in Union of India and others
v. R. Narasimhan, A.LR. 1988 S.C. 1733 Mr. Anil Dev Singh con-
tended that para 620 of the Railway Pension Manual, which is identical
to Rule 2(2) of the Pension Rules, has been upheld by this Court. In
Narasimhan's case the .scope of Rule 2046 of the Indian Railway
Establishment Code and para 620 of the Railway Pension Manual was G
' I
considered by this Court. Rule 2046 is a statutory rule and is identical
} to Fundamental Rule 56(j). Para 620 is in the nature of executive
instructions but is similarly worded as Rule 2(2) of Pension Rules. A
Division Bench of the Madras High Court came to the conclusion that
Rule 2046 having been framed under Article 309 of the Constitution
and being a compendious rule, the railway employees are only gover- 'H
i
802 SUPREME COURT REPORTS I 1989] 3 S.C.R.

A ned by the said rule and para 620 was void and inoperative. This Court
while setting aside the judgment of the High Court held as under:
~-
i
"Thus the areas of operation of Para 620 of tl!c Railway
Pension Manual is different from that of clause (h) and (k)

B
of Rule 2046 of the Rules. Para 620 of the Railway Pension
Manual should be treated as supplementary to Rule 2046 of
r-
the Rules. The said para which has been framed by the
Union Government in exercise of its executive powers
under Article 73 of the Constitution should be given due
effect since there is no statutory provisions or a rule framed ) ~
under the proviso to Article 309 of the Constitution which~
c is inconsistent with it." I
.,.I,
Narasimhan's case has thus no relevancy to the controversy
involved in this case. There was no chaUenge to any of the rules or para
620 of the manual on the ground that it gives unguided power to the
Railway authorities to pick and choose railway employees for the
D purpose of pre-mature retirement. Para 620 of the Manual being ex-
ecutive instruction supplementing the statutory Rule 2046 has no
parity with Rule 2(2) of Pension Rule which is a statutory rule. In any
case the point before us in the present case was neither involved nor
raised in Narasin ..~an's case and as such Mr. Anil Dev Singh cannot ~
derive any support from the said judgment.
E
There is thus no legal or equitable ground to interfer with the
judgment of the Division Bench of the High Court. The appeal is
dismissed with costs which we quantify as Rs.3,000. "

R.S.S. Appeal dismissed.
) ...,_

'
,.(,