Case: State of Assam &amp; Another Etc Vs. Basanta Kumar Das Etc

1. These five appeals by leave are by the State of Assam against the judgment of the High Court of Assam in five petitions filed by the respondents in the respective appeals.      2. Shri Bansi Ram Das was Professor and Head of the Department of Physics in the Government Cotton College, Gauhati. Shri Kanak Lal Das was Professor and Head of the Department of Philosophy. Shri Basanta Kumar Das was a Physiological Chemist in Class I of the Assam Veterinary Service and on the relevant date was the Deputy Director of Animal Husbandry and Veterinary Department. Shri Khageswar Saikia was an Upper Division Assistant in the office of the Deputy Commissioner, Darrang Tezpur on the relevant date, and Shri Anand Chandra Hazarika was a Head Assistant in the office of the Deputy Commissioner, Darrang, Tezpur. On 21st March, 1963 the Government of Assam issued a memorandum raising the age of retirement of its servants from 55 years to 58 years. The relevant portion of the memorandum was as follows :"3. No Government servant will be entitled to the benefit of the increased age of compulsory retirement unless he has been permitted to continue in service after the age of 55 years after the appointing authority is satisfied that he is efficient and physically fit for further Government service. The procedure to be followed by the appointing authorities before they permit a Government servant to continue in service is outlined in the Annexure........      4. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years or 3 (three) months notice without assigning any reason.      8. Necessary amendments to the relevant rules will be issued in due course."In the Annexure to this memorandum the procedure to find out the efficiency and the physical fitness of the employee concerned was laid down. They were to be tested as to their efficiency by a Board consisting of the Chief Secretary, the Secretary of the department concerned and the Head of the Department. As regards physical fitness such persons were to be examined by the Civil Surgeon of the district in which they were posted.      3. These five respondents were not allowed to continue in service in accordance with this memorandum and they filed petitions before the Assam High Court questioning the validity of the orders retiring them from service. The High Court first decided the case of Shri Bansi Ram Das in Civil Rule No. 319 of 1966.They allowed his petition and directed him to be put back in service to continue there till he attained the age of 58 years. The other four petitions were allowed on the basis of this judgment without going into the facts of each case or their merits.      4. All the five officers had put forward the contention that under terms of the memorandum dated 21-3-1963 they had a right to continue in service even after they had completed their 55th year. All of them also contended that they had been picked out for special discrimination. The Governments reply to these contentions was that no one got a right to continue in service after completing 55 years and that there was no discrimination and the fact that some officers were allowed to continue and some others who were found not fit were not continued did not mean that there was any discrimination.      5. In the case of Shri Bansi Ram Das and Shri Kanak Lal Das, who was the petitioner in Civil Rule No. 350 of 1966 (he is now dead and his widow is the first respondent) the Board constituted to consider their cases, after scrutinising their character roll and after consideration of facts decided to recommend them for retention in service beyond 55 years. But the Minister incharge of Education made a note as follows :"I cannot agree to giving extension to Prof. Kanak Lal Das and Prof. Bansi Ram Das. I consider them to be outmoded in their intellecutal development."So it can be said these cases are alike. In their cases the contention in the Governments counter affidavit was that they were not found fit to continue in service after attaining fifty five years. The Ministers remark was also given as another reason.      6. These two officers in particular, therefore, contended that the Board constituted to consider their fitness for further continuance in service having recommended them for such continuance and there being no material on record on the basis of which the Minister could pass the order above extracted, the order retiring them was invalid. It is true that the Screening Board had recommended the continuance of these two officers in service after their attaining the age of 55. There is also no material to show what exactly was responsible for the impression which the Minister formed about the capacity of these two officers. But once it is held that the memorandum of 21-3-63 is merely an executive instruction which confers no right on anybody, the judgment of the Minister cannot.      Be questioned unless it could be shown that there were any mala fides. There was no allegation even of any mala fides. This Court would not go into the reasons which weighed with the Minister in coming to the decision, unless it could be said that he was guided by ulterior motives or the decision contravenes some law. The decision of the Minister cannot, therefore, be questioned.      7. The cases of the other three officers are different because in their cases there is no recommendation of the Board on record showing that their continuance had been recommended. In Civil Appeals 179 and 180 though the Deputy Commissioner had recommended their continuance, the Commissioner had taken a different view. In the case of Shri Khageswar Saikia the Commissioner wrote as follows :"I have given careful consideration to this case and feel that it will not be desirable to grant extension to Shri Khageswar Saikia beyond 55 years. The reports for 1964 and 1965 recorded by different Deputy Commissioners are hardly favourable for his further retention.      On an overall consideration I regret my inability to accept your recommendation for giving any extension to Shri Khageswar Saikia. He should retire on attaining the age of 55 years."

Reasoning: 20. This Court does not simply dismiss an appeal on the ground that the leave obtained was not a proper one and leave the matter to rest there. It is always prepared to consider the request for grant of special leave at any stage if the circumstances of the case require. An objection to the certificate should be taken at the earliest possible moment and the respondents failure to do so would not be allowed to prejudice the appellant and he would not be made to suffer for the failure of the respondents. In this case also if the objection had been taken at the earliest point of time the appellant could have applied for special leave and in the circumstances of this case we would have been prepared to grant special leave. When the High Court decided these cases the judgment of this Court in (1971) 1 SCR 503  = (AIR 1970 SC 1314 ) had not been delivered. Therefore, a substantial question of law arose for decision in these cases. If the respondents had raised to point at the earliest possible time we would have been prepared to consider an oral request for special leave and for condonation of delay and to direct the appellants to file petitions for this purpose. But as it has been done only at the last moment after the appeals were taken up for hearing we are of opinion that the appellants should not be made to suffer by the respondents negligence. We, therefore, hold against this objection.