TaxTMI 
TaxTMI 
1989 (8) TMI 352
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.... 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 Constitution of India. 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. Izhar Hussain challenged the order of retirement by way of a writ petition before the Allahabad High Court. The learned single Judge dismissed the writ petition holding that there was no infirmity in Rule 2(2) of the Pension Rules. The Special Appeal filed by Izhar Hussain before the Division ....
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....eted 30 years 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." Fundamental Rule 56(j) while granting absolute fight to the Government provides that such power can only be exercised in 'Public Interest'. This guideline 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 Government. There is no requirement under the rule to act in &#....
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.... Rule 2(2) of the Pension Rules is ultra vires Articles 14 and 16 of the Constitution of India. Mr. Anil Dev Singh, appearing for the Union of India, contended 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 supplementary 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 instructions. A valid rule having som....
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....oluntarily retire after giving three months' notice to the appointing authority. 7. These provisions will have effect from the Ist December, 1962." A bare reading of the memorandum shows that there is an obvious fallacy in the argument 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 instructions issued in the name of President of India as required under Article 77(1) of the Constitution of India. This was issued in anticipation 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 a....