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PETITIONER: STATE OF ASSAM & ORS.

       Vs.

RESPONDENT: PREMADHAR BARUAH & ORS.  ETC.

DATE OF JUDGMENT: 04/05/1970

BENCH: RAY, A.N. BENCH: RAY, A.N. DUA, I.D.

CITATION:  1970 AIR 1314            1971 SCR  (1) 503  1970 SCC  (2) 211  CITATOR INFO :  RF         1971 SC1716  (20)  F          1973 SC1252  (11,20)  F          1989 SC  75  (8)

ACT: Constitution  of  India,  Art.  14--Order  raising  age   of superannuation--Discretion  with  appointing  authority   to retire without assigning reason--  If discriminatory.

HEADNOTE: Under   Fundamental   Rule  56(a)   a   Government   servant superannuates on the date he attain the age of 55 years, but he  may be retained in service after the age of 55 years  in special circumstances.  In 1963, the appellant-State  issued a memorandum stating its decision that the age of compulsory retirement  of  the State Government servants was to  be  58 years,  and the appointing authority was also  empowered  to retire  the Government servant after he attained the age  of 55  years on 3 months’ notice without assigning any  reason. In the year, 1967 the respondent, a State Government servant attained  55  years;  an  order was  issued  asking  him  to continue in service till further orders.  Later in 1968, the appellant   issued  another  memorandum  discontinuing   the benefit   of  raising  the  age  of   superannuation.    The respondent  was served with a notice that he would not  been retained in service after 3 months.  The respondent filed  a writ petition in the High Court.  The High Court allowed the writ  holding  that  Paragraph  4  of  the  1963  memorandum offended Article 14 of the Constitution because a person who was physically fit and efficient was. allowed to continue in service till he was 58 years of age whereas any other person who  would  satisfy the conditions of physical  fitness  and efficiency  could  be asked to retire on 3  months’  notice. Allowing the appeal by the State, this Court,  HELD  : The memorandum of 1963 did not infringe Art. 14  of the Constitution. The 1963 memorandum treated all Government servants  alike, namely,that they could be  retained  beyond the age of superannuation, but such retention depended  upon the  exigencies of the public service and the  consideration of physical fitness and efficiency. [510 E] The  1963 Memorandum no longer occupied the field after  the

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supersession   of  that  memorandum  by   1968   memorandum. Furthermore,  if  the 1963 Order was found to  be  bad,  the entire  order was to be struck down for the  obvious  reason that if the instrument was within the vice of Art. 14 of the Constitution-, the entire notification would perish. [510 F- G] Paragraph  4 of the 1963 memorandum flowed from  Fundamental Rule  56(a).   The  Government  could  retain  a  Government servant  beyond the age of superannuation.   The  Government had  also  the  discretion to  withdraw  such  retention  in service  because the retention did not confer any  right  on the Government Servant. [511 A] Even according to Fundamental Rule 56(a) no legal right  can be  said to exist in relation to any Government  servant  to continue  in  service after the age of 55 years.   It  is  a discretion which the Government will exercise in some cases. Fundamental Rule 56(a) is in two parts.  The first 504 part  is  that  the  date  of  compulsory  retirement  of  a Government  servant is the date on which he attains the  age of  55 years.  The second part is that the retention of  the Government servant in service after attaining the age of  55 years  should not be made except in  special  circumstances. Such  a  rule  cannot  be said to found  any  right  in  any employee  to continue in service after the age of 55  years. [507 D] Both the orders of 1963 and 1968 were executive instructions and they were not rules under Art. 309 of the Constitution. 1.   N. Saksena v. State of Madhya Pradesh, [1967] 2  S.C.R. 496, Bishun Narain Mishra v. State of Uttar Pradesh,  [1965] 1  S.C.R. 693 and Moti Ram Deka v. General  Manager,  N.E.F. Railways, Maligaon, Pandu etc. [1964] 5 S.C.R. 683, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  1334  to 1336 of 1969. Appeals from the judgment and order dated March 28, 1969  of the  Assam and Nagaland High Court in Civil Rules Nos.  308, 316 and 323 of 1969. Niren  De, Attorney General, Naunit Lal and S. N.  Chaudhury for the appellant (in all the appeals) Sarjoo  Prasad, D. D. Chaudhury, M. M. Kshatriya, and G.  S. Chatterjee, for respondent No. 1 (in C.A. No. 1334 of 1969). S.   P.  Nayar,  for respondent No. 4 (in C.A. No.  1334  of 1969). The Judgment of the Court was delivered by Ray,  J. These three appeals by certificate are against  the judgment  dated 28 March, 1969 passed by the High Court  for the State of Assam & Nagaland holding by a majority judgment that  the  three  main respondents  in  the  three  appeals, namely, Premadhar Baruah, Rashadhar Bora and Premadhar Dutta are  deemed to have continued in service of  the  Government and  the  orders  terminating  extension  of  service  after attaining  the age of 55 on three months notice pursuant  to paragraph 4 of the Memorandum dated 21 March, 196 3 are  bad in law. On  21 March, 1963 the Assam Government issued a  memorandum which was contained in 7 paragraphs.  In paragraph 1 of  the memorandum it was stated that it was decided that the age of compulsory retirement of State Government servants should be 58  years.  In paragraph 2 of the memorandum it  was  stated that the decision would apply to all Government servants who

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would  retire  on  or after  1  December,  1962,  Government servants  who were on leave preparatory to retirement  on  1 December,  1962 would also be entitled to this  benefit  but Government  servants who, were on refused leave from a  date prior to 1 December, 1962 5 0 5 would  not be entitled to the benefit nor would the  benefit apply in case of Government servants who reached the age  of superannuation  on a date prior to 1 December,  1962  having been  allowed extension of service,.  In paragraph 3 of  the memorandum it was stated that no Government servant would be entitled to the benefit of the, increased age of  compulsory retirement  unless  he  had been permitted  to  continue  in service  after  the  age of 55 years  after  the  appointing authority was satisfied that he was efficient and physically fit  for  Government service.  In paragraph 4 of  the  memo- random it was stated "Notwithstanding anything contained  in the  foregoing  paragraphs,  the  appointing  authority  may require a Government servant to retire after he attained the age  of 55 years on three months’ notice  without  assigning any reason". The respondent Premadhar Baruah was born on 1 January, 1913. He,  was  appointed  as a typist in the  employment  of  the Government  on  18  August, 1941.  On 6  May,  1946  he  was confirmed as an Assistant Auditor.  On 1 April, 1950 he  was confirmed as Auditor Local Accounts.  Under Fundamental Rule 56(a)  his  date of retirement would be 1 January,  1968  on attaining  the age of 55 years.  On 21 December, 1967  there was an order asking respondent Premadhar Baruah to  continue till further orders. On  2 April, 1968 the Government issued  another  memorandum which was contained in three paragraphs.  In the first para- graph it was stated that the Government had decided that the age  of compulsory retirement of State  Government  servants should  be 55 years as laid down in Fundamental  Rule  56(a) discontinuing   the   benefit   of  raising   the   age   of superannuation  to  58  years as laid  down  in  the  office memorandum dated 21 March, 1963.  In the third paragraph  it was  said that this decision would apply to  all  Government servants who would retire on or after 30 September, 1968 and Government servants who were already on extension beyond  55 years  of age. should be served with a three months’  notice without assigning any reason as envisaged in the  Government Order dated 21 March, 1963 to retire on 30 September, 1968. Thereafter on 7 May, 1968 notice was given by the Government to respondent Premadhar Baruah.  The notice was as follows :-               "No.   VI/ 1/68-69-13 Dated, Gauhati, the  7th               May, 1968.               To               Sri Premadhar Baruah,               Designation-Auditor, Local Accounts,               Address-Gauhati.               5 06               In  pursuance  of office memorandum  No.  AAP.               217/62/15 dated 21-3-1963, read with O.M.  No.                             AAP.  126/67/64 dated 2-4-1968, you ar e  hereby               requested to take notice that you shall not be               retained in service beyond 30-9-1968.               This  may be treated as a notice under para  4               of O.M.No. AAP 217/62/15, dated 21-3-1963.               Sd/- J. Sarmah,               Designation,   Examiner  of   Local   Account,               Gauhati,

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             Address, Gauhati". On  these allegations respondent Premadhar Baruah asked  for orders  as to why the notice dated 7 May,  1968  terminating the  respondent’s services on 30 September, 1968 should  not be quashed. The  respondent  Premadhar Baruah raised  three  contentions before the High Court.  First, that under paragraph 4 of the memorandum  dated 21 March, 1963 three months’ notice  could be given only before an employee reached the age of 55 years and   not   thereafter.   Secondly,  that   the   compulsory retirement   permitted  by  the  fourth  paragraph  of   the memorandum   of   21  March,  1963   amounted   to   removal contravening   the   provisions  of  Article  311   of   the Constitution.  Thirdly, compulsory retirement under the said fourth  paragraph of the memorandum of 1963 by giving  three months’ notice without assigning any reason is violative  of Article 14 of the Constitution.  The High Court by  majority decision upheld only the third contention of the  respondent that  an  unfettered  power  was  given  to  the  appointing authority to retire Government servants after attaining  the age  of 55 years by giving three months’ notice  terminating their services. It  is necessary to keep in the forefront  Fundamental  Rule 56(a) which is as follows -                "F.R. 56(a)-The date of compulsory retirement               of  a Government servant is the date on  which               he  attains  the age of 55 years.  He  may  be               retained  in service after this age  with  the               sanction  of  the State Government  on  public               grounds which must be recorded in writing, and               proposals  for the retention of  a  Government               servant  in service after this age should  not               be made except in very special circumstances". The first question is whether the respondents can found  any right  on  the  order of March 21, 1963.   Counsel  for  the respondent contended that the order dated 21 March, 1963 was acted 507 upon in relation to respondent Premadhar Baruah and, he  had been  given  an  extension  upto the age  of  58  years  and therefore  he could not be asked to retire before that  age. The order dated21 March, 1963 was an executive  instruction. That order of 21 March, 1963 has to be read not only in  the light of the order dated 2 April, 1968 but also in  relation to  F.R. 56(a).  The memorandum of 2 April, 1968  definitely stated that the benefit of raising the age of superannuation to  58 years as laid down in the office memorandum dated  21 March,  1.963  had been decided to be  discontinued  by  the memorandum  dated  2 April, 1968.  After the order  dated  2 April, 1968 came into existence the order of 21 March,  1963 is neither relevant nor effective. Under  F.R.  56(a) a Government servant may be  retained  in service  after the age of 55 years and such retention  shall not be made except in special circumstances.  It, therefore, follows that even according to F.R. 56(a) no legal right can be  said to exist in relation to any Government  servant  to continue  in  service after the age of 55 years.   It  is  a discretion which the Government will exercise in some cases. F.R. 56(a) is in two parts.  The first part is that the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years.  The second part is that  the  retention of the Government  servant  in  service after  attaining  the  age of 55 years should  not  be  made except in special circumstances.  Such a rule cannot be said to  found any right in any employee to continue  in  service

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after the age of 55 years. The order dated 21 March, 1963 and the order dated 2  April, 1968 are both executive, instructions and they are not rules under Article 309 of the Constitution. In  I. N. Saksena v. State of Madhya Pradesh(1) the  Govern- ment  of Madhya Pradesh issued a memorandum on 28  February, 1963  raising  the age of retirement from 55  to  58  years. Clause  5 of the memorandum there said that  the  appointing authority might require a Government servant to retire after he  had attained the age of 55 years without  assigning  any reason.   The appellant in that case was given an  extension beyond  the age of 55 years.  He had attained the age of  55 years in the month of August, 1963.  Thereafter in the month of September, 1963 it was communicated to him that he was to retire  on  31  December,  1963.  On  29  November.  1963  a notification  was  issued by the Madhya  Pradesh  Government which  was  published  in the Gazette on  6  December,  1963 whereby  under Article 309 F.R. 56 in place of the  old  one was  amended  to  the effect that  the  date  of  compulsory retirement  of a Government servant, other than a  Class  IV employee,  was the date on which he attained the age  of  58 years.  Only Scientific and (1)  [1967] 2 S.C.R. 496. 5 08 Technical  personnel might be retained in service after  the age,  of  compulsory  retirement with the  sanction  of  the competent authority subject to their fitness and suitability for work, but they should not ordinarily be retained  beyond the  age of 60 years.  The date of retirement of a Class  IV Government servant was the date on which he attained the age of  60 years.  The new rule came into effect from  1  March, 1963. The  most noticeable feature in the Madhya Pradesh case  was that  the amended F.R. 56 did not contain any power  of  the appointing  authority  to require a  Government  servant  to retire,  cornpulsorily  after the age of  55  years  without assigning any reason though such a power was to be found  in the  order  dated 28 February, 1963.  On this ratio  it  was held  in  Saksena’s  case(1) that F.R.  56  published  on  6 December,  1963 was the only rule applicable to Saksena  and therefore  the notice which had been given in the  month  of September to retire him with effect from the afternoon of 31 December, 1963 could not be upheld.  The implication of  the Madhya  Pradesh  decision is that there could  be  an  order extending the services of the Government servant by  general order  and if an order contained a power to retire a  person after  the  age of 55 years without- assigning  any  reasons such a power was valid and defensible. In Bishun Narain Mishra v. State of Uttar Pradesh & OrS. (2) it  was  held  that there was no provision  to  prevent  the Government  from taking away the power of the Government  to increase  or  reduce  the age  of  superannuation  and  such termination  of service because of the reduction of  age  of superannuation could not be said to amount to removal within the  meaning of Article 31 1. As to challenging the rule  on the  ground  of  discrimination it was held  that  the  rule treated-alike  those who were between the age of 55  and  58 years.  Those who were retired on 31 December, 1961 were  in different  ages but that was so because their services  were retained, for different periods beyond the age of 55  years. Wanchoo, J. speaking for the Court said "It cannot be  urged that  if  Government decides to retain the service  of  some public  servants after the age of retirement it must  retain every  public  servant  for the same length  of  time.   The retention of public servants after the period of  retirement

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depends  upon their efficiency and the exigencies of  public service". In  Moti Ram Deka etc. v. General Manager, N.E.F.  Railways, Maligaon,  Pandu  etc.(1) the services of  railway  servants were terminated under rules 148(3) and 149(3) of the  Indian Railway  Establishment Code.  Broadly stated,  rules  148(3) and  149(3)  provided that the  service  of  non-pensionable railway servants under (1)  [1967] 2 S.C R. 496. (3) [1964] 5 S.C.R. 683. (2) [1965] 1 S.C.R. 693. 509 Rule 148(3) and of other railway servants under Rule  149(3) was  liable to termination on notice on either side  or  the period shown in the Rules but no notice was required in case of  dismissal  or removal as a disciplinary  _measure  after compliance  with  Article  311(2) of  the  Constitution  and retirement  on  attaining  the  age  of  superannuation  and termination of service due to mental or physical incapacity. The  majority decision was given by Gajendragadkar,  J.  Two separate opinions were given by Subba Rao and Das Gupta, JJ. Shah, J. gave a dissenting opinion. In  Moti  Ram  Deka’s case(1) Rule  148(3)  was  alleged  to violate  Article  14 on the grounds that the  rule  gave  no guidance  to the authorities who would take action on it  as regards  the principle to be followed in  exercising,  power and  secondly  that the rule discriminated  between  railway servants  and other public servants.  Das Gupta, J.  was  of the  view  that the rule did not lay down any  principle  or policy  for  guiding  the  exercise  of  discretion  by  the authority  who would terminate the service in the matter  of selection or classification.  It was said that arbitrary and uncontrolled power was left with the authority to select  at its will any person against whom action would be taken-  and therefore  the  authority  could  discriminate  between  two railway servants to both of whom rule 148(3) equally applied by taking action in one case and not taking it in the other. Shah,  J.  on  the other said that if  for  the  purpose  of ensuring  the  interests and safety of the  public  and  the State,  power was reserved to the Railway Administration  to terminate the employment under the Railways it could not  be said  that  the  railway servants were  singled  out  for  a special  or  discriminatory treatment.   The  classification could   be   founded   on   an   intelligible   differential distinguishing   railway  servants  from  others  and   such differentia  had  a rational relation to the objects  to  be achieved.   With regard to the position of railway  servants inter  be  Shah, J. said that if the employment  was  for  a period defined or if the employment was till  superannuation the rules contemplated termination of service by a notice in both  cases.   The  Rule  would  therefore  not  deny  equal protection because there was no discrimination between  them and the same law which protected other servants in the  same group  protected  the  appellants  in  that  case  and  also provided  for determination of their employment.   Shah,  J. further said that the possibility or assumption of mala fide exercise  of  a power of determination of  employment  under rule  148(3) could not be the correct method of testing  the constitutionality of the rule. In  the  present  appeals, the High Court  by  its  majority decision  held  that  paragraph 4 of the  memorandum  of  21 March, 1963 offended Article 14 of the Constitution  because a person who was physically fit and efficient was allowed to continue in service till he (1)  [1964] 5 S.C.R. 683.

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510 was  58  years  of age whereas any other  person  who  would satisfy  the conditions of physical fitness  and  efficiency could be asked to retire on three months’ notice.  It has to be appreciated first that a Government servant has no  right to continue in service beyond the age of superannuation.   A Government   servant-is   retained   beyond   the   age   of superannuation  when  the Government in  the  exigencies  of public service or on public grounds exercises its discretion to  retain a Government servant in service after the age  of superannuation.    The  scope  for  the  exercise  of   this discretion is embodied in F.R. 56(a) as well as in paragraph 4  of 21 March, 1963 memorandum which was challenged in  the High Court to be an infraction of Article 14. In  the  present case after 21 March,  1963  memorandum  was superseded  and  abrogated by 2 April, 1968  memorandum  the respondents  could  not draw any sustenance from  21  March, 1963 memorandum. 2 April, 1968 memorandum reduced the age of superannuation  and  withdrew the benefits  which  had  been conferred by 21 March, 1963 memorandum.  This was again done in  the  interest  of the  Government  servants  to  prevent unemployment   as   a   result  of  increase   of   age   of superannuation.   This  Court  in  Bishun  Narain   Mishra’s case(1)  in dealing With a notification directing all  those who were between the age of 55 and 58 and had been  retained in  service could be retired on 31 December, 1961 said  that the rule treated alike all those who were between the age of 55  and  58  years.   In  the  present  appeals,  the   1963 notification treated all Government servants alike,  namely, that   they   could   be  retained   beyond   the   age   of superannuation,   but  such  retention  depended  upon   the exigencies  of the public service and the  consideration  of physical fitness and efficiency.  Therefore it could not  be said that the memorandum of 1963 infringed Article 14. The  High Court fell into the error of overlooking  that  21 March,  1963 memorandum no longer occupied the  field  after the ,supersession of that memorandum by the memorandum dated 2  April, 1968.  Furthermore. if the order dated  21  March, 1963 was found to be bad, the entire order was to be  struck down  for  the  obvious reason that if  the  instrument  was within  the  vice  of Article 14 of  the  Constitution,  the entire notification would perish. We  are  of  opinion that the High Court  was  in  error  in overlooking  paragraph 4 of the memorandum dated  21  March, 1963.  Paragraph 4 was as follows :-               "Notwithstanding  anything  contained  in  the               foregoing paragraphs the appointing  authority               may  require  a Government servant  to  retire               after  he  attained the age of  55  years,  on               three  months’  notice without  assigning  any               reason". (1)  [1965] 1 S.C.R. 693. 511 As  we have already indicated paragraph 4 of the  memorandum flowed from F.R. 56(a) The Government could retain a Govern- ment   servant  beyond  the  age  of  superannuation.    The Government   has  also  the  discretion  to  withdraw   such retention  in service because the retention does not  confer any right on the Government servant. Civil  Appeal  No.  1335 of 1969 relates  to,  the  case  of Rasodhar  Bora and Civil Appeal No. 1336 of 1969 is that  of Premadhar Dutta. Rasodhar  Bora was born on 1st January, 1913 and would  have retired  on 1 January, 1968 on completion of the age  of  55 years.   He was found to be physcally fit and  efficient  by

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the competent authorities and he was allowed to continue  in service  after the age of 55 years.  Thereafter by a  notice dated 1 July, 1968 there was a termination of his service on 30 September, 1968. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15  May, 1911 and he was due to retire on 15 May, 1966.   He continued  in  service after reaching the age of  55  years. His service was termnated on 30 May, 1968 by a notice  dated 28 May, 1968. The contentions of both the respondents were similar to that of Premadhar Baruah. For  these reasons, the appeals are accepted.  The  majority judgment is set aside.  In the fact and circumstances of the case we direct that the parties will pay and bear their  own costs. Y.P.                                                 Appeals allowed. 51 2