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

2. On 21st 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 would retire on or after 1st December, 1962. Government servants who were on leave preparatory to retirement on 1st December, 1962 would also be entitled to this benefit but Government servants who were on refused leave from a date prior to 1st December, 1962 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 1st 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 memorandum 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"3. The respondent Premadhar Baruah was born on 1st January, 1913. He was appointed as a typist in the employment of the Government on 18th August, 1941. On 6th may, 1946 he was confirmed as an Assistant Auditor. On 1st April, 1950 he was confirmed as Auditor Local Accounts. Under Fundamental Rule 56 (a) his date of retirement would be 1st January, 1968 on attaining the age of 55 years. On 21st December, 1967 there was an order asking respondent Premadhar Baruah to continue till further orders4. On 2nd April, 1968 the Government issued another memorandum which was contained in three paragraphs. In the first paragraph 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 21st March, 1963. In the third paragraph it was said that this decision would apply to all Government servants who would retire on or after 30th 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 21st March, 1963 to retire on 30th September, 19685. Thereafter on 7th May, 1966 notice was given by the Government to respondent Premadhar Baruah. The notice was as follows:3 Dated, Gauhati,theSri Premadhar Baruah,Auditor, Local Accounts,In pursuance of office memorandum No. AAP 217/62/15 dated, read with O. M. No. APP. 126/67/64 datedDesignation, Examiner ofLocal Accounts, Gauhati,6. On these allegations respondent Premadhar Baruah asked for orders as to why the notice dated 7th May, 1968 terminating the respondents services on 30th September, 1968 should not be quashed7. The respondent Premadhar Baruah raised three contentions before the High Court. First, that under paragraph 4 of the memorandum dated 21st 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 21st 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

Reasoning: 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.