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L.K. Muthiah Pillai v. Panchayat Union Commissioner
Factual and Procedural Background
The matter involves a batch of writ petitions raising a common question; the facts of W.P. No. 4281 of 1970 were treated as representative. The petitioner was appointed as a Social Welfare Worker by direct recruitment on 25 April 1962, with a regular appointment and a fixed pay scale. He joined duty at age 48 and his probation was declared satisfactory on 17 May 1963.
The petitioner relied on a government executive instruction (G.O. No. 2341, Rural Development and Local Administration, dated 30 October 1965) which, it is claimed, made applicable an enhanced age limit of superannuation (from 55 to 60) for political sufferers who took part in the freedom struggle. Subsequently, G.O. Ms. No. 2161, Rural Development and Local Administration, dated 30 October 1970, purported to reduce the age of superannuation from 60 to 55; pursuant to that memo a notice of retirement was apprehended for the petitioner (scheduled on or about 15 December 1970), prompting the writ petition seeking certiorari to quash G.O. Ms. No. 2161 on the ground that the State lacked power to issue an executive instruction divesting rights secured under earlier Government Orders and under special rules incorporated under the Special Madras General Subordinate Service Rules made under Article 309 of the Constitution.
The petitions were heard by the Court (after hearing the learned Government Pleader). The Court reviewed the relevant G.Os and the special rule (R.4) adopted under the proviso to Article 309 that had specified eligibility and a special superannuation age of 60 for political sufferers appointed up to 1965. The Government justified its 1970 Order as a considered reduction of the retirement age consistent with Fundamental Rules 56(a), and directed implementation with certain formalities (notice, acknowledgment, and prospective amendment of the special rules).
Legal Issues Presented
- Whether an executive instruction in the form of G.O. Ms. No. 2161 dated 30-10-1970, reducing the age of superannuation for Social Welfare Workers from 60 to 55, can supersede or override a special rule relating to that class of service framed under the proviso to Article 309 of the Constitution.
- Whether the challenged executive instruction divested vested rights of the petitioners who had acquired entitlement to continue in service up to age 60 under earlier Government Orders and the special rules incorporated under Article 309.
- What relief, if any, should be granted to petitioners who were asked to leave service pursuant to the challenged order and to those who had already reached the age of 60 pending the writ petitions.
Arguments of the Parties
Petitioners' Arguments
- The petitioner relied on earlier executive instructions and on special rules framed under the proviso to Article 309 (in particular the rule incorporated in G.O.Ms No. 2734 dated 28th December 1963 and R.4(b)) which provided that political sufferers appointed as Social Welfare Workers shall have age of superannuation at 60 years.
- Because the service is governed by rules framed under Article 309, the petitioners contended that the later executive instruction (G.O.Ms No. 2161 dated 30-10-1970) had no power to divest the vested rights conferred by those earlier rules and orders and should be quashed.
State's Arguments
- The State (through the Government Pleader) stated that it had examined the question of superannuation for Social Welfare Workers and considered it expedient to reduce the age limit from 60 to 55 so as to conform with the general retirement age (Fundamental Rules 56(a)); the Government therefore issued G.O.Ms No. 2161 directing reduction of the age limit and implementation procedures, and indicated that the special rules (G.O.Ms No. 2734) would be amended separately.
- The State relied on administrative expediency and uniformity with the general retirement age as the justification for the executive instruction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| E. Balakrishnan v. The State of Madras, represented by the Secretary to Government of Madras, Education and Public Health Department and another | Illustrates the force and purport of service rules framed under Article 309 and that executive instructions inconsistent with such rules are ineffective. | The Court relied on this decision to support the proposition that rules framed under Article 309 have legislative potency and cannot be superseded by mere executive instructions. |
| Nallayya Gounder v. The State of Madrav, represented by the Secretary to Government, Home Department, Fort St. George, Madras | The Supreme Court observation that if the appropriate Legislature has passed an Act, rules framed under Article 309 are subject to that Act; in absence of such an Act rules made by the President (or under Article 309) have full effect prospectively and retrospectively. | The Court cited this principle (via the Balakrishnan judgment's reference to it) to confirm that rules under Article 309 have binding effect and are not to be displaced by executive directions in the absence of appropriate legislative action. |
| I.N. Saksena v. State of Madhya Pradesh | Distinguishes between executive memoranda/instructions and rules made under Article 309; an executive direction styled as a memorandum is not equivalent to a statutory rule under the Constitution. | The Court used the authority to show that the form and substance of an executive direction indicate it is not a rule under Article 309 and therefore cannot override a rule that has been validly made under Article 309. |
Court's Reasoning and Analysis
The Court proceeded by examining the statutory and executive framework applicable to Social Welfare Workers:
- The Court noted the existence of a special rule (R.4) framed under the proviso to Article 309, which (in sub‑paragraph (b)) prescribed that political sufferers who had taken part in the freedom struggle and had been appointed as Social Welfare Workers would have an age of superannuation of 60 years; that rule was made by the Governor exercising powers under Article 309.
- The Court observed that earlier executive orders (for example G.O. No. 57 and G.O. No. 2341) and the special rules converged to give effect to the concession of retirement at 60 for political sufferers appointed up to a cut-off year (1965 being referenced).
- The 1970 executive order (G.O.Ms No. 2161) reduced the age of superannuation from 60 to 55 for Social Welfare Workers and directed implementation procedures, while stating that the special rules of G.O.Ms No. 2734 would be amended separately.
- The Court applied established authorities concerning the relationship between rules under Article 309 and executive instructions. It relied on E. Balakrishnan (and the Supreme Court's decision in Nallayya Gounder as cited therein) for the proposition that rules made under Article 309 have legislative force and cannot be displaced by administrative orders; and on I.N. Saksena for the proposition that an executive memorandum is not a substitute for a rule under Article 309.
- The Court found that, in the absence of amendment to the rule framed under Article 309, the executive instruction contained in G.O.Ms No. 2161 could not lawfully supersede or override the rule which prescribed retirement at 60 for the relevant class of political sufferers. The learned Government Pleader was unable to show that the executive instruction superseded the rule embodied in the special rules under Article 309.
- On remedies, the Court recognized practical difficulties. It held that where departmental authorities had already given effect to the challenged order and petitioners had been compelled to leave service, equity and practical relief required that those petitioners be deemed to have continued in service notwithstanding the impugned order. For petitioners who had already reached 60 years of age during the pendency of the writ petitions (so reinstatement was not possible), the Court held they would be entitled to such benefits as might have accrued by virtue of their success.
- The Court thereby framed relief tailored to the realities of administrative implementation: quashing the effect of the executive instruction to the extent it conflicted with the Article 309 rule and granting consequential relief for those affected, while acknowledging limitations where reinstatement was impracticable.
Holding and Implications
Holding:
The petitioners succeeded and the rule nisi in each case was made absolute.
Direct implications and relief ordered by the Court:
- Petitioners who were required to quit service on the authority of the impugned Government Order will be deemed to have continued in Government service notwithstanding that order.
- For petitioners who, during the pendency of the writ petitions, had already attained the age of 60 (making reinstatement impracticable), the Court directed that they shall be entitled to such benefits as might accrue to them by virtue of their success in the writ petitions.
- There was no order as to costs in the peculiar circumstances of these cases.
Note on broader implications: The Court's decision is grounded on the principle that rules framed under the proviso to Article 309 carry legislative potency and are not displaced by executive instructions; the opinion confines itself to applying that principle to the facts and providing specific relief to the petitioners affected by the challenged executive order.
In this batch of writ petitions a common question is involved, and it is agreed that the facts in W.P No. 4281 of 1970 may be noticed. The Petitioner was appointed as a Social Welfare Worker by direct recruitment in proceedings issued by the Additional Development Commissioner, dated 25th April 1962. His scale of pay was fixed and it is not disputed that it was a regular appointment made by the appointment authorities. At the time when the petitioner jointed duty he was 48 years of age. His probation was declared to be satisfactory on 17th May 1963. The case of the petitioner is that under G.O No. No. 2341, Rural Development and Local Administration, dated 30th October 1965 the Government issued an order that the age limit of superannuation should be enhanced from 55 to 60 years in the case of political sufferers who took part in the freedom struggle and that executive instruction was made applicable to the petitioner and persons similarly placed. Later, by a memo., dated 4th November 1970, issued pursuant to G.O No. 2161, Rural Development and Local Administration, dated 30th October 1970, the age limit of superannuation was reduced from 60 to 53 years. On the basis of this the petitioner was apprehensive that he will be superannuated on 15th December, 1970. Therefore, he came up to this Court for the issue of a writ of certiorari to quash G.O No. 2161, Rural Development and Local Administration dated 30th October 1970, stating that the respondent had no powers to issue such an executive instruction so as to divest vested rights in the petitioner which he secured not only under the earlier Government Order, dated 30th October 1965, but also under G.O No. 2734, dated 28th December 1963, which instruction was incorporated as a statutory rule under the Special Madras General Subordinate Service Rules as rules applicable to the Social Welfare Workers in the Madras General Subordinate Service. Excepting for the fact that in all cases the date of recruitment and the age would differ, the facts are similar and the contention is the same.
After hearing the learned Government Pleader I find that the relevant provisions to be perused in connection with the subject-matter are as follows:
Under G.O No. 57, Rural Development and Local Administration, dated 6th January 1961, age limit of superannuation was enhanced for Social Welfare Workers from 55 to 60 in the case of political sufferers who took part in the freedom struggle and courted imprisonment and who have been subsequently appointed Social Welfare Workers. Later, the Government apparently found that as the Social Welfare Workers form a cadre of service under the Madras General Subordinate Service, special rules relating to such services may be made and in this view while captioning the Social Welfare Workers' Services as Class III, they made the following special rule relating to the special class of service. R. 4, age limit:—
“(a) No person shall be eligible for appointment to the post, if he has completed the age of fifty-three years on the first day of July of the year in which the selection for appointment is made.
(b) In the case of persons, who have themselves taken part in the freedom struggle and courted imprisonment and appointed as Social Welfare Workers, the age of superannuation shall be 60 years. This provision shall apply to those who are to be appointed up to the year 1965”.
It is not in dispute that this rule is one framed under Article 309 of the Constitution of India, by the Governor of the State in exercise of the powers vested in him under the Constitution. Later, G.O No. 2341, Rural Development and Local Administration, dated 30th October 1965, was issued. The substance of the Government Order is in accord with the letter and spirit of the rule as above. Under the above executive instruction certain concessions were extended to all political sufferers recruited up to the end of December, 1965. Thereafter the challenged Government Order has been passed as G.O 2161, Rural Development and Local Administration, dated 30th October, 1970. This runs as follows:
“Community Development—Social Welfare Workers—Political sufferers appointed as Social Welfare Workers—Age of superannuation—Age reduced to 55—Orders issued.
Rural Development and Local
Administration Department
G.O.Ms No. 2161 Dated 30-10-1970
1. G.O.Ms No. 57 R.D & L.A, dated 5th January, 1961.
2. G.O.Ms No. 2341 R.D & L.A, dated 30th October, 1963.
3. G.O.Ms No. 1198 R.D & L.A, dated 24th June, 1970.
ORDER:
1. In the Government Order first read above it was ordered that the age limit of superannuation be enhanced from 55 to 60 years in the case of political sufferers who had themselves taken part in the freedom struggle and courted imprisonment and who had been appointed as Social Welfare Workers. It was also ordered that the above concession would be applicable only to those political sufferers who had attained 48 years of age and above at the time of their first appointment as Social Welfare Workers. Subsequently, in the Government Order second read above this concession of continuing in service up to 60 years of age was extended to all the political sufferers who had themselves taken part in the freedom struggle irrespective of their age at the time of their first appointment as Social Welfare Workers.
2. The Government have been examining the question of the age of superannuation of the Social Welfare Workers employed under the Community Development Programme for some time past. The age of retirement of Government servants including technical personnel is 55. It is, therefore, considered necessary to reduce the age limit for superannuation of the Social Welfare Workers from 60 to 55 years.
3. The Government now direct in supersession of all orders issued in this regard, that the age of superannuation of all Social Welfare Workers employed under the Community Development Programme is 55 as laid down in Fundamental Rules 56(a) with effect from the date of these orders These orders will be applicable to all Social Welfare Workers who have already completed 55 years of age and such Social Welfare Workers will be given one month's notice of retirement. They will retire on the date of the expiry of the said notice period of one month.
4. The Director of Rural Development is requested to communicate a copy of this Government Order to each of the Social Welfare Workers referred to in para 3 above within ten days of the date of issue of these orders and to obtain their acknowledgment individually. The period of one month referred to in paragraph 3 above shall be computed from the date of acknowledgment of the copy of Government Order by the Social Welfare Worker concerned.
5. The special rules issued in G.O.Ms No. 2734, Rural Development and Local Administration, dated 28th December 1963 in this regard will be amended separately.
6. This order issues with the concurrence of the Finance Department, vide: its U.O Note 123321-A RDLA 1/70-1 dated 28th October 1970.
(By Order of the Governor).
(Sd.) E.C.P Prabhakar,
Secretary to Government.”
The State claims that it has examined the question of the age of superannuation of the Social Welfare Workers employed under the Community Development Programme and they felt it expedient to reduce the age limit of superannuation of such workers from 60 years to 55 years. They, therefore, directed the appropriate authorities to implement the above order in supersession of all orders issued in that behalf earlier. But they made it clear in this very order that the special rules issued in G.O.Ms No. 2734, Rural Development and Local Administration, dated 28th December 1963, in this regard will be amended separately.
In the background of the above provisions applicable to the class of service, it is contended that once a service is governed by rules framed under the proviso to Art. 309 of the Constitution of India, then no executive instruction could supersede or override such a rule relating to such a class of service and any such rule or instruction given to the contrary would be ineffective in the eye of law. That this is the position is made clear by a judgment of this Court in E. Balakrishnan v. The State of Madras, represented by the Secretary to Government of Madras, Education and Public Health Department and another(1). Kailasam, J., while dealing with the force and purport of such rules of service observed after referring to a decision of the Supreme Court in Nallayya Gounder v. The State of Madrav represented by the Secretary to Government, Home Department, Fort St. George, Madras(2), as follows:
“The Supreme Court further observed that if the appropriate Legislature has passed an Act under Art. 309 the rules framed under the proviso will have effect subject to that Act; but, in the absence of any Act of the appropriate Legislature on the matter, the Rules made by the President or by such person as he may direct are to have full effect prospectively and retrospectively”.
The Government may also be right in its view that the interests of war candidates should be protected but these safeguards can only be provided for by proper Rules framed under Art. 309 of the Constitution of India or or by legislation as provided under Art. 309. In the absence of such Rules the administrative instructions of the Government, however well motivated they may be, cannot have the effect of modifying the Rules under Art. 309 of the Constitution of India, The Supreme Court also had occasion to consider the force of the rules made under the proviso to Art. 309 of the Constitution vis-a-vis executive instructions given by the Government inconsistent thereto. In I.N Saksena v. State Of Madhya Pradesh(3) the Supreme Court said:
“We have already set out the relevant parts of the memorandum and the very first sentence shows that the memorandum is merely an executive direction and not a Rule, for we cannot understand how a Rule could be in the following words, namely, “The State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 years.
The very form of these words shows that it is conveying an executive decision of the State Government to Collectors to be followed by them and is not a rule issued under Art. 309 of the Constitution.”
In the instant case such directions were issued to the Director of Rural Development to follow the executive instructions provided for in the challenged Government Order. But when the Government Order was passed the Executive was aware that it was imperative on their part to amend the rule relating to the service passed on 28th December, 1963, and incorporate it in the special Rules relating to the service. They had apparently in mind the Rules framed under the proviso to Art. 309 which, in unequivocal terms laid down that the age of superannuation of Social Welfare Workers shall be 60 years. In the absence of any rule under Art. 309 made for the purpose, interfering with the letter or spirit of the earlier rule which has a legislative potent in law an executive instruction cannot displace its application or enforceability even though such instruction is based on certain well-founded reason. The learned Government Pleader is unable to state that the executive instruction which is contained in the challenged Government Order could supersede the Rule relating to the service and embodied in the special rules for the purpose and based under the proviso to Art. 309 of the Constitution. The petitioners therefore, should succeed. The rule nisi in each of these cases is made absolute. In some of these writ petitions, the petitioners who were working as Social Welfare Workers were asked to surrender their posts on the foot of the challenged Government Order and the respective departmental authorities have given effect to it. The result is that some amongst the write petitioners were obliged to leave the service. They have also come forward to this Court for appropriate directions to enable them to obtain relief and to be placed on a par with other Social Welfare Workers who are gaining an advantage by reason of the pronouncement of this Court. It would create an anomaly if such persons who have already left the service and who have sought necessary relief from this Court should not be provided with an effective relief but only a paper advantage. As directions also can be given even though the Rule asked for is one for certiorari and as such directions are issued to advance the remedy and to prevent the mischief, I direct that in such of those cases wherein the Social Welfare Workers were asked to quit the service on the strength and application of the impugned rule, they will be deemed to have continued in the service of the Government in spite of the impugned order. But in such of those cases where the petitioners have already reached the age of 60 pending disposal of these writ petitions, as it is not possible to direct the Government to put them back in service, they will be entitled to such benefits as might have accrued to them by virtue of their success in the writ petitions. In the peculiar circumstances of these cases, there will be no order as to costs.
Directions issued.
V.C.S
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