Holding

Para 620 of the Railway Pension Manual is valid, supplementary to Rule 2046, and not inconsistent with the Constitution.

Summary

R. Narasimhan, a Class III railway servant governed by the pension rules, was compulsorily retired in 1982 under para 620 of the Railway Pension Manual, which allows retirement after 30 years of qualifying service. He challenged the order, arguing that the manual provision was void and that only Rule 2046 of the Indian Railway Establishment Code, framed under Article 309, could be invoked for compulsory retirement. The Madras High Court held para 620 invalid, but the Supreme Court examined the relationship between the two rules. It held that there is no inconsistency; Rule 2046(h) deals with retirement based on age, while para 620 deals with retirement based on length of service for those governed by pension rules, making the manual provision supplementary. Consequently, para 620 was declared valid, and the High Court's decision was set aside with the matter remanded for consideration of other contentions raised by the respondent.

Issues considered

Whether para 620 of the Railway Pension Manual is void, ineffective or unconstitutional.
Whether para 620 is inconsistent with Rule 2046 of the Indian Railway Establishment Code.
Whether Rule 2046(h) can be made subject to para 620 of the Manual.
Whether the order of compulsory retirement under para 620 is valid.

Legislation cited

Constitution of Indias. Article 309, s. Article 73

Subjects

compulsory retirementRailway Pension ManualRule 2046public interestexecutive powerArticle 73Article 309service law

Judgment

UNION OF INDIA & ORS. A
v. '•
R. NARASIMHAN

AUGUST 1, 1988

[E.S. VENKATARAMIAH AND M.M. DUTT, JJ.) B

Civil Services: Indian Railway Establishment Code, Rule 2046(h)
and (k)/Railway Pension Manual, 1950 Para 62{}-.Railway Servant-
Compulsory retirement of under para 62{}-.Validity of.

Constitutio.n of India, Articles 73 & 309: Rule made in exercise of C
executive power under Art. 73-Not inconsistent with statutory provi-
swn .or rule framed under proviso to Art. 309-Held-Shou/d. be
treated as supplementary to.

Sub-para (ii) of para 620 of the Railway Pension Manual
l!mpowers the competent authority to remove a railway servant from D
• service auy time after he has completed 30 years of qualifyiug service.
Clause (h) of Rule 2046 (F .R. 56) of the ludian Railway Establishment
Code empowers the appointing authority to retire in Public interest (i)
Class I and Class II railway servant, who had entered Govemment
Service before the age of 35·years, after be bas attained the age of fiftY
years, and (ii) in any other case after he has attained the age of 55 years'. E
Clause (k) of the said rule confers absolute right on the appointing
authority to retire a railway servant in Class Ill service, who.is ..not
governed by the Pension Rules, after he has completed thirty. y~ar8'~r
service.

The respondent, Class Ill servant, who had joined service in 1950 F
was comp!'lsorily retired from service by the competent authority in the
Railway Administration in exercise of powers under para 620 of the
Manual on 14th May, 1982. He was born on 23.9.1929 and was"to
continue in service till he completed 58 years of service. The. writ ·peti:
lion filed by him questioning the validity of the said order and also of
para 620 of the Manual was dismissed by the Single Judge. · G

In appeal before the Division Bench it was contended for him that
(i) Rule 2406 of the Rules having been framed under the proviso t!I
Article 309 of the Constituiion and being a compendious code with
regard to compulsory retirement that provision alone could be invoked
and not para 620 of the Manual which is !n the nature of an executive H
741
~
742 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

A order, (ii) since rule 2046(h) opens with a non-obstante clause and para
620 of the Manual does not state that the said rule shall prevail notwith-
sanding any other provision to the contrary, rule 2046(h) of the Rules
cannot be made subject to para 620 of the Manual, and (iii) there being
two separate provisions with regard to eompulsory retirement, namely
clause (h) of rule 2046 of the Rules and para 620 of the Manual, in the
B absence of any guidance as to when and which rule could be invoked in
a given case, both the provisions would be inapplicable and he could not
be compulsorily retired. The High Court held that para 620 of the r
Railway Pension Manual was void and ineffective. It took the view that
since rule 2046(h) of the Rules was not applicable, as the respondent
had not attained the age of 55 years on the date he was compulsorily
C retired, he could not have been compulsorily retired.

Allowing the appeal by special leave and remanding the case to
the High Court,

HELD: I.I Para 620ofthe Railway Pension Manual is valid. The
D High Court was not right in taking the view it did. [749A)

1.2 There is no inconsistency between rule 2046 of the Rules and
para 620 of the Railway Pension Manual. Clause (h) of rule 2046 of the
Rules empowers the competent authority to retire compulsorily a rail-
way servant on his attaining the age specified therein. That clause has
E no reference to the length of service put in by a railway servant con-
cerned. Clause (k) of the said rule under which the appointing authority
can retire a person in the public interest after a railway servant has
completed 30 years of service applies to a railway servant holding a
Class III post and who is not governed by pension rules. Para 620 of the
Manual applies to all railway servants governed by the pension rules.
F Railway servants holding Class I or Class II posts who caunot be retired
under clause (k) of rule 2046 of the Rules can be retired on their comp-
leting 30. years of qualifying service if they are governed by the pension
rules. Similarly, railway servants holding Class III posts and who are
governed by the pension rules to whom clause (k) of rule 2046 of the
Rules is not applicable can also be retired on their completing 30 years
G of qualifying service. Thus, the area of operation of para 620 of the
Railway Pension Manual is different from that of clauses (h) and (k) of
rule 2046 of the Rules. I7480-G I

1.3 Para 620 of the Railway Pension Manual which has been fra- ;_
med by the Union Government in exercise of its executive power under
H Article 73 of the Constitution should, therefore, be tr~ated as supple-
"'''
•. ,
U.0.L v. R. NARASIMHAN IVENKATARAMIAH, J.) 743

mentary to rule 2046 of the Rules, and given due effect since there is no
A
statutory provision or a rule framed under the proviso to Article 309 of
the Constitution whieh is inconsistent with it. [748G-H]

2. Since the respondent had raised some other contentions with
regard to the validity of the impugned order of retirement in the peti-
tion and the High Court has not expressed its opinion on those conten- B
tions, the case is remanded to the Division Bench of the High Court to
dispose of the appeal afresh in the light of the submissions to be made by
the respondent on the other contentions raised by him. [749C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1583
of 1987.
c
From the Judgment and Order dated 22.4.1987 of the Madras
High Court in W.A. No. 367 of 1983.

G. Ramaswamy, Additional Solicitor General, P.Parmeshwaran,
B. Parthasarthy for the Appellants. D,
'
M.N. Krishnamani and S. Balakrishnan for the Respondents.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The short question involved in this case E
is whether Para 620 of the Manual of Railway Pension Rules, 1950,
(hereinafter referred to as the 'Railway Pension Manual') under which
the competent authority is empowered to retire a railway employee
before his normal date of retirement is for any reason void, ineffective
or unconstitutional.
F
The respondent, R. Narasimhan, joined the Southern Railway as
a Ticket Collector in the year 1950 and on being promoted at different
stages he was working as a Travelling Ticket Examiner on 14th of May,
1982 when he was cr-upulsorily retired from service by the competent
authority in the Railway Administration in exercise of his powers
under Para 2(2) of the Railway Ministry's Letter dated 8. 7 .1950 G
(incorporated as Para 620 of the Railway Pension Manual). The
respondent was born on 23.9.1929 and if the order of retirement had
not been passed, as stated above, he would have continued in service
till he completed 58 years of age. Aggrieved by the order of retire-
' ment, the respondent filed a Writ Petition in the High Court of Madras
in Writ Petition No. 4079 of 1982 questioning the validity of the said H
~
744 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R.

A , order and also of Para 620 of the Railway Pension Manual which
empowered the Railway Administration to retire its employees on
their completing 30 years of service. The Writ Petition was contested
by the Railway Administration and ultimately it was dismissed by the
learned Single Judge of the High Court of Madras. Aggrieved by the
judgment of the learned Single Judge the respondent filed an appeal
I
B before the Division Bench of the High Court jn Writ Appeal No. 367
of 1983. The Division Bench held that Para 620 of the Railway Pension
Manual whose validity had been impugned in the Writ Appeal was
void and ineffective and hence the order of retirement passed by the
Railway Administration in exercise of the power conferred by the said
para was liable to be set aside. Aggrieved by the judgment of the
c Division Bench, the Union of India and the Railway Administration
have filed this appeal by special leave.

In order to appreciate the contentions of the parties, it is neces-
sary to set out the relevant rules governing the retirement of railway
employees. Rule 2046 of the Inman Railway Establishment Code
D (hereinafter referred to as 'the Rules') deals with compulsory retire-
ment of railway servants. The relevant part of the said rule reads thus:

"2046 (F.R. 56).-(aj Except as otherwise provided in this
rule, every railway servant shall retire on the day he attains
the age of fifty-eight years.
E

(h) Notwithstanding anything contained in this rule,
the appointing authority shall, if it is of the opinion that it is
in the public interest to do so, have the absolute right to
F retire any railway servant giving him notice of not less than
three months in writing or three months' pay and allowan-
ces in lieu of such notice-

(i) if he is in Class I or Class II service or post and
had entered Government Service before attain-
G ing the age of thirty-five years, after he has
attained the age of fifty years.

(ii) in any other case after he has attained the age of
fifty-five years. ~

H (i) Any railway servant may by giving notice of not
<I
U.0.1. v. R: NARASIMHAN [VENKATARAMIAH, J.] 745

less than three months in writing to the appointing autho-
A
rity retire from service after he has attained the age of fifty
years if he is in Class I or Class II service or post and had
entered Government service before attaining the age of
thirty-five years, and _in all other cases after he has attained
the age of fifty-five years.
B
.....................................................
--~

(k) Notwithstanding anything contained in clause (h)
the appointing authority shall, if it is of the opinion that it is
in the public interest to do so, have the absolute right to
retire a railway servant in Class III service or post who is
not governed by any pension rules after he has rompleted c
thirty years' service by giving him notice of not less than
three months in writing or three months' pay and allowan-
ces in lieu of such notice."

Para 620 of the Railway Pension Manual reads thus: D

"620(i). A Railway servant may retire from service at any
time after completing 30 years' qualifying service, provided
that he shall give in this behalf a notice in writing to the
appropriate authority, at least three months before the
date on which he wishes to retire. E

.............. .....................................
~

(ii) The authority competent to remove the Railway
servant from service may also require him to retire any
time after he has completed 30 years' qualifying service F
provided that the authority shall give in this behalf, a notice
in writing to the Railway servant, 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."

There is no dispute that the respondent is governed by the pen- G
sion rules as he has exercised his option to be governed by them .. His
contentions before the Division Bench were: (i) Rule 2046 of the Rules
having been framed under the proviso to Article 309 of the Constitu-
~ lion and being a compendious code relating to a retired railway servant
that provision alone could be invoked for the purpose of compulsory
retirement and not para 620 of the Railway Pension Manual whicil is in H
746 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R.

A the nature of an executive order; (ii) Since rule 2046(h) of the Rules
opens with a non obstante clause and para 620 of the Railway Pension
Manual does not state that the said rule shall prevail notwithstanding
any other provision to the contrary, rule 2046(h) of the Rules cannot
be made subject to para 620 of the Railway Pension Manual; and (iii)
there being two separate provisions with regard to compulsory retire-
B men!, namely clause (h) of rule 2046 of the Rules and para 620 of the
Railway Pension Manual, in the absence of any guidance as to when
and which rule could be invoked in a given case, both the provisions
would be inapplicable and the respondent could not be compulsorily
retired. A reading of the relevant part of rule 2046 of the Rules and
para 620 of the Railway Pension Manual shows that ordinarily every
railway servant has to retire on the date he attains the age of 58 years.
C Notwithstanding the said rule the appointing authority, if it is of the
opinion that it is in the public interest to do so, has the power to retire
any railway servant giving him notice of not less than three months in
writing or three months' pay and allowances in lieu of such notice, if he
is in Class I or Class II service or post and had entered Government
D service before attaining the age of 35 years, after he has attained the
age of 50 years and in any other case after he has attained the age of 55
years. Similarly a railway servant may by giving notice of not less than
three months in writing to the appointin'g authority retire from service
if he is in Class I or Class II service or post and had entered Govern-
ment service before attaining the age of 35 years, after he has attained
E the age of fifty years, and in all other cases after he has attained the
age of 55 years. These two kinds of retirement are dealt with in clauses
(h) and (i) of rule 2046 of the Rules. The governing factor in clauses
(h) and (i) of rule 2046 is the age of the employee concerned at the
time when it is proposed to retire him from service or when he wishes
to retire from service voluntarily as the case may be. This rule applies
F no doubt to all employees irrespective of the fact whether they are
governed by the pension rules or not. Clause (k) of rule 2046 provides
that notwithstanding anything contained in clause (h) the appointing
authority shall, if it is of the opinion that it is in the public interest to
do so, have the absolute right to retire a railway servant in Class III
service or post who is not governed by any pension rules after he has
G completed thirty years' service by giving him notice of not less than
three months in writing or three months' pay and allowances in lieu of
such notice. Clau~~ ( l) of rule 2046 of the Rules provides that a rail-
way servant in Class III service or post who is not governed by any
pension rules, may by giving notice of not less than three months in
writing to the appointing authority, retire from service after he has
H completed thirty years' service. It may be noted that in clauses (k) and
U.O.l. v. R. NARASIMHAN IVENKATARAMIAH, J.] 747

(l) of rule 2046 of the Rules the governing factor is not the age of the
A
railway servant concerned but the length of the qualffying servtce
rendered by him. They are applicable only to a railway servant in Class
III service who has completed 30 years of service in railway adminis-
tration. If a railway servant in Class III service has entered the service
during his 21st year he can be retired bythe Government on his comp-
leting 30 years of service in his 51st year or he may elect to retire from B
service in his 5 ist year after completing 30 years of service by following
the prescribed formalities. Clauses (k} and (I) of rule 2046, as already
stated above, do not apply to railway servants who are governed by
pension rules. Para 620 of the Railway Pension Manual, which is
ext.tacted above, contains provisions corresponding to clauses (k) and
(I) of rule 2046 of the Rules. Under sub-para (i) of para 620 a railway
servant governed by the pension rules may retire from service at any
c
time after completing 30 years of qualifying service provided that he
has given a notice in writing to the appointing authority three months
before the date on which he wishes to retire. Sub-para (ii) of para 620
of the Railway Pension Manual, which corresponds to clause (k) of
rule 2046 of the Rules, empowers the competent authority to remove a D
railway servant from service any time after he has completed 30 years
of qualifying service provided that the authority has given in. this
behalf a notice in writing to the railway servant 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. It may also be noted tli~ while
clauses (k) and (1) of rule 2046 of the Rules apply only to a railway E
servant in Class III service or post not governed by any pension rules
para 620 of the Railway Pension Manual applies to all railway servants
governed by the pension rules.

• The Division Bench of the High Court has held that para 620 of
the Railway Pension Manual was ineffective and invalid on the ground F
that it. was 'unable to see any logic or reason or any guidance for the
purpose of invoking either one or other of the provisions' and also has
further observed thus:

"In the circumstances therefore, particularly in view
of the fact that the Railway Establishment Code is intended G
to govern the service conditions of all the individual railway
servants and the Pension Rules are intended only to govern
the determination of pension, and Rule 2046 itself is in a
way of compendious rule relating to retirement at the age
of 58 years and compulsory retirement.earlier we are of the
view that the case is gov<>med by Rule 2046(h) only and not H
~
748 SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

by Rule 620 of. the Pension. Rules. This is also for the
A reason as rightly contended by Mr. N .C. Raghavachari,
learned counsel for the appellant, that while Rule 2046(k)
starts with saying that notwithstanding anything contained
in Clause (h) there is no such non obstante clause in Rule
620, nor clause (h) of Rule 2046 is made subject to Rule
a 620. In the circumstances, therefore, it is open to the rail-
way servant to contend that he is governed by Rule 2046(h) 'r
and not Rule 620. In the absence of any guiding principle
specifically, it is not open to the Department to exercise an
option either to invoke Rule 620 or clause (h) of Rule
2046."

c Having observed thus, the Division Bench was of the view that
since Rule 2046(h) of the Rules was not applicable, as the respondent
had not attained the age of 55 years on the date when he was com-
puls()rily retired, he could not have been compulsorily retired. We do
not find any inconsistency between rule 2046 of the Rules and para 620
D of the Railway Pension Manual. As already stated by us clause (h) of
rule 2046 of the Rules empowers the competent authority to retire r
compulsorily a railway servant on his attaining the age specified
therein. That clause has no reference to the length of service put in by
a railway servant concerned. Clause (k) of rule 2046 of the Rules under
which the appointing authority can retire a person in the public in-
E terest after a railway servant has completed 30 years of service applies
to a railway servant holding a Class III post and who is not governed by
pension rules. Para 620 of the Railway Pension Manual applies to all
railway servants governed by the pension rules. Railway servants hold-
ing Class I or Class II posts who cannot be retired under clause (k) of
rule 2046 of the Rules can be retired on their completing 30 years of
qualifying service if they are governed by the pension rules. Similarly
•
f
railway servants holding Class III posts and who are governed by the
pension rules to whom clause (k) of rule 2046 of the Rules is not
applicable can also be retired on their completing 30 years of qualify-
ing service. Thus the area of operation of para 620 of the Railway
Pension Manual is different from that of clause (h) and (k) of rule 2046
G of the Rules. Para 620 of the Railway Pension Manual should be
treated as supplementary to rule 2046 Q,f the Rules. The said para
which has been framed by the Union Government in exercise of its
executive power under Article 73 of the Constitution should be giyen
due effect since there is no statutory provisions or a rule framed under k
the proviso to Article 309 of the Constitution which is inconsistent with
H it.
U.0.I. v. R. NARASIMHAN [VENKATARAMIAH, J.J 749

We, therefore, overrule the view expressed by the Division A
Bench of the High Court on the above question and uphold the validity
of para 620 of the Railway Pension Manual.

Unfortunately, the case does not end here. It appears that the
respondent had raised some other contentions with regard to the
B
validity of the impugned order of retirement in the petition. But the
Division Bench of the High Court has not expressed its opinion on
those contentions since it agreed with the first conten'tion urged on
behalf of the respondent, namely, para 620 of the Railway Pension
Manual was invalid. We are, therefore, constrained to send the case
back to the Division Bench of the High Court to decide the other
questions raised by the respondent. We, therefore, set aside the judg- c
ment passed by the Division Bench of the High Court and remand the
case to the Division Bench of the High Court to dispose of the appeal
afresh in the light of the submissions to be made by the respondent on
the other contentions raised by him.

The appeal is accordingly disposed of. There is no order as to D
costs.

P.S.S. Appeal allowed .

•

J