Ahmadi, J. - (1.) Special leave granted.
(2.) By an order dated 3rd March, 1990, the appellant on attaining the age of 57 years on 19th December, 1990 was retired from service at the end of the month i.e.31st December, 1990. He challenged this order of retirement by filing a Civil Writ Petition No. 3997 of 1990 in the High Court of Delhi on the ground that under the departmental instructions contained in the letter of 9th May, 1985 he could not be retired before he attained the age of 58 years. The respondents supported the order of retirement placing reliance on the subsequent letter of instructions dated 9th September, 1986. The appellant also attempted to invoke certain regulations stated to have been framed under S.192 of the Army Act, 1950 as contained in the Army Instructions Book (1987 Edition). The High Court, after a critical examination of the various submissions made before it, came to the conclusion that the appellant was not entitled to continue in service till he attained the age of 58 years.The High Court took the view that the letter of 9th May, 1985 did not hold the field and the subsequent letter of 9th September, 1986 was the one which governed the retirement of the appellant. In that view of the matter it dismissed the writ petition and discharged the Rule awarding Rs. 3,300/- by way of counsel fee to the appellant finding fault with the Central Government for having failed to notify the relevant instructions. Since that part of the order awarding cost is not in challenge before us we need say no more on that subject. A few facts relevant for the dispdsal of this appeal may be noticed at this stage. The appellant joined the Infantry on 6th June, 1954 and in due course rose to the rank of Lieutenant General. The terms and conditions of his service were governed by the Army Act, 1950 (hereinafter called 'the Act') and the Rules made thereunder. S.191 of the Act empowers the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. Sub-sec. (2) of S. 191 enumerates the various matters in respect of which rules may be framed by the Central Government. Cl. (a) of that sub section deals with the question of retirement from service. Therefore, the age of superannuation for officers governed under the provisions of the Act could be prescribed by the rules made under S.191 of the Act. S.192 empowers the Central Government to make regulations for all or any of the purposes of the Act other than those specified in S.191 which would include the matter regarding determination of the age of superannuation. S.193 next provides that all rules and regulations made under the Act shall be published in the official gazette and on such publication shall have effect as if enacted under the Act. S.193A was inserted in the Act by an amendment which came into force w.e.f. 15th March, 1984. It inter alia provides that every rule and every regulation made by the Central Government under the Act shall be laid before each House of Parliament. It is not in dispute that the regulations on which reliance is placed were not placed before each House of Parliament as required by this provision. Secondly, the regulation could not cover the area covered by S. 192(2)(a) which deals with the question of prescription of age of superannuation. Counsel for the appellant realising these difficulties could not carry his submission based on the regulations any further. But it is stated that the regulations give an insight in how the authorities understood the relevant letters of instructions dated 9th May, 1985 and 9th September, 1986. We will presently tome to these two documents on which either side places reliance but before we do so we think it necessary to notice R.16A introduced by the Army (Amendment) Rules, 1979 (hereinafter called 'the Rules'). By the said Rules the Army rules, 1954 came to be amended. Rule 16A deals with the question of compulsory retirement of officers of the Armed Forces. Cl. (1)(a) of the said Rule provides that officers shall be liable to be compulsorily retired from service by order of the Central Government or the authorities specified in sub-rule (2). With effect from the afternoon of the last date of the month in which they attain the age limits specified in sub-rule (5). Sub-rule (5) next provides that the officers of Armoured Corps, Artillery, Engineers, Signals. Infantry, Army Service Corps, Army Ordnance Corps, Electrical and Mechanical Engineers and Pioneer Corps shall retire at the ages mentioned immediately thereunder. So far as Lt.General is concerned the retirement age is mentioned to be between 56 years and 58 years. In other words the minimum age of retirement of a Lt. General is 56 years and the maximum 58 years. This rule has statutory force. It may be noticed that the appellant belongs to the Infantry and having been promoted to the post of Lt. General was liable to be retired between 56 and 58 years of age under R.16A(5) of the Rules.
(3.) We may now come to the letter of 9th May, 1985 on which considerable reliance was placed by the appellant. That letter prescribes the ages of retirement for officers belonging to the Armoured Corps, Infantry, Artillery, Engineers and Signals Corps. The age of retirement for the Lt. General is mentioned as 58 years. Since the appellant belongs to the Infantry he was entitled to continue in service up to the age of 58 years under the instructions contained in this letter. This letter was issued with the concurrence of the Ministry of Defence (Finance) and was to come into force from the date of its issue. If this letter held the field the appellant's contention would be well founded. The letter further directs that the Army R.16A should be revised in due course. But factually the Army R.16A never underwent a revision as envisaged by this letter.;