Case: State Of Assam &amp; Ors Vs. Premadhar Baruah &amp; Ors. Etc

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 R. 148 (3) equally applied by taking action in one case and not taking it in the other. Shah, J., on the other hand 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 differentia 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 se 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. 17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st 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 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 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 14. 18. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st 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 Mishras case, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ) (supra) 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 31st 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. 19. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st 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. 20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st 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." As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government 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. 21. 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. 22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 1968. 23. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 1968. 24. The contentions of both the respondents were similar to that of Premadhar Baruah.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The order dated 21st March, 1963 was an executive instruction. That order of 21st March, 1963 has to be read not only in the light of the order dated 2nd April, 1968 but also in relation to F. R. 56 (a). The memorandum of 2nd April, 1968 definitely stated that the benefit of raising the age of superannuation to 58 years as laid down in the office memorandum dated 21st March 1963 had been decided to be discontinued by the memorandum dated 2nd April, 1968. After the order dated 2nd April, 1968 came into existence the order of 21st March, 1963 is neither relevant nor effective11. The order dated 21st March, 1963 and the order dated 2nd April, 1968 are both executive instructions and they are not rules under Article 309 of the Constitution17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st 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 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 superannuationA 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 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 1418. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st 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 Mishras case, (1965) 1 SCR 693   = (AIR 1965 SC 1567  ) (supra) 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 31st 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 1419. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st 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 perish20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st 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."As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government 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 servant21. Civil Appeal No. 1335 of 1969 relates to the case of Rasodhar Bora and Civil Appeal No. 1336 of 1969 is that of Premadhar Dutta22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 196823. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 196824. The contentions of both the respondents were similar to that of Premadhar Baruah.