Case: Batahari Jena Vs. State Of Orissa

1. The question of raising the age of compulsory retirement of the State Government employees has been under the consideration of Government for sometime past2. After careful consideration, Government have now decided that the age of compulsory retirement for the State Government employees should be raised from 55 years to 58 years with effect from 1-12-19623. Notwithstanding anything contained in the preceding paragraph, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months previous notice in writing without assining any reason. The Government servants also may after attaining the age of 55 years, voluntarily retire by giving three months notice to the appointing authority. The powers to retire a Government servant under this provision will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years4. This provision will be in addition to the provisions already contained in Rule 2 in Section 1 of the Liberalised Pension Rules issued with the Finance Department Resolution ............... according to which:(a) the Government may require an officer to retire any time after he has completed 30 years qualifying service by giving him a notice in writing at least three months before the date on which he is required to retire, and(b) Government servant may retire from service any time after completing 30 years qualifying service by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire."On February 6, 1964 a notification was issued by the Government of Orissa in connection with the above laying down the criteria and procedure to be adopted to ensure uniformity of operation of the rule mentioned in paragraph 3 of the above resolution and also equitable treatment in all cases. Speaking broadly, the idea behind the notification was that (1) the service record of an officer was to be scrutinised six months before he was due to attain the age of fifty five years, (2) in any case where Government had reasonable cause to believe that he lacked in integrity it would be appropriate to determine upon his retirement. (3) where an officers integrity was not in doubt but his physical or mental condition was such as to make him inefficient for further service the same result would follow, and (4) an officer whose performance was considered as below "average" should not be allowed to work after the age of 55On July 14, 1964 the appellant was asked to retire from Government service in 1st January, 1965. His representation for reconsideration was not accepted. He filed a Writ Petition in the High Court on December 21, 1964. This was rejected by the High Court on September 19, 1966. The appellant has come up by certificate to this Court.

Reasoning: In our view the above contention cannot be accepted. Before May 21, 1963 an employee of the Government of Orissa would have been due for superannuation when he attained the age of 55 years whether he had or had not put in thirty years qualifying service. Government had before the said date an option to ask him to retire if he had completed 30 years qualifying service even though he has not reached the age of fifty-five years correspondingly the officer had the right to retire if he wanted to do so before he reached the age mentioned if he had 30 years qualifying service to his credit. Fifty-five years was the outside limit of age to which an officer was permitted to work before superannuation. The resolution of May 21, 1963 raised the age of superannuation from 55 to 58 but nevertheless under paragraph 3 thereof the Government reserved to itself a right to ask any employee to retire when he attained the age of 55 years without assigning any reason. This was not unilateral. A Government servant was not bound to continue in service beyond the age of fifty-five years unless he wanted it. There was no alteration in the rule under which a Government servant could voluntarily retire or be asked to retire in a case where he had completed thirty years service. In other words, the right of Government to require an officer to retire at any time after he had completed 30 years service was and still remained intact. This right which was not linked with the age of superannuation before May 1963 remained unaffected even after that date. Although the age of superannuation was raised from 55 to 58 years Government armed itself with the power to require any employee to retire when he attained the age of 55 years without assigning any reasonIn our view the above observations relied on by counsel do not help the appellant. The above observations show that a rule which permits a Government to ask an officer to retire after an unreasonably short period of service much before the normal age of superannuation would be hit by Article 311. They cannot apply when the period of qualifying service mentioned in the rule is not unreasonably short and the normal age of superannuation fixed is not unaccountably earlyBefore May 1963 a Government servant in Orissa had to retire on attaining the age of 55 years whether he had completed 30 years qualifying service or not. The fact that the age of superannuation was raised from 55 to 58 while Government reserved to itself a right to ask any employee to retire at the age of 55 does not violate Article 311 (2)On the second point it is enough to point out that the order of July 14, 1964 did not cast any aspersions or stigma on the appellant which would attract. Article 311. Under paragraph 3 of the resolution mentioned Government had a right to require any Government servant to retire at the age of 55 without assigning any reason. The fact that by the notification of 5th February 1964 certain guidelines were indicated to the Heads of Departments in considering whether a Government servant should continue in service beyond the age of 55 years, one of the factors for consideration being lack of integrity, did not imply that any officer whose continuance in service was not advised lacked in integrity. On the facts of this case, we cannot say that any evil aspersion was cast on the appellant.