Allowed

State of Assam & Ors. v. Premadhar Baruah & Ors. etc.

Supreme Court4 May 19701970 INSC 123 · [1971] 1 S.C.R. 5031970 INSC 123

Case brief

AI extract

What is this about?

Assam Government servants challenged notices retiring them at 55 under paragraph 4 of a 1963 memorandum raising superannuation to 58. The Supreme Court held the memorandum treated all servants alike and conferred no right to retention past superannuation; appeals against the High Court's contrary ruling were allowed.

What did the court decide?

Appeals accepted; High Court majority judgment set aside; parties to bear their own costs.

What the court decided

State of Assam & Ors. versus Premadhar… — Pension and Retirement Benefits | Supreme Court (1971)

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STATE OF ASSAM & ORS.

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PREMADHAR BARUAH & ORS. ETC.

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May 4, 1970

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[A. N. RAY AND I. D. DUA, JJ.]

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Cons1itution of Indi<1, Art. 14-0rdtr r"lsi11g t1R• of superanmwtio11- Di.vcrerlon with appointing authority to r~tire wl1J1out assigning rea&on- Jf discriminator)'.

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Under Fundamental Rule S6(a) a Government servant superaqnualcs c on the date he attains the age of SS years, but he may be retained in ser· vice after the age of SS years in special circumstances. In 1963, the appellant-State issued a memorandum stating its decision that the age ot 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 D 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 L<mstitution because a person who was physically fit and efficient was E allowed to continue in service till he was 58 years of age whereas any other pers0<1 who would satisfy .the conditions of physical fitness and effkiency could be asked to retire on 3 months' notice. Allowing th• ap >cal by the State, this Court,

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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 superannua· F tion, but such retention depended upon the exigencies of the public service and the consideration of physical fitness and efficiency. [5.10 EJ

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Tho 1963 Memorandum no longer occupied the field after the super· se"ion ot that memorandum by 1968 memorandum. Furthermore, if the 1963 Order was found to be bad, the entire order w2s 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-GJ ·

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Paragraph 4 of the 1963 memorandum flowed from Fundamental Rule Sti( a). The Government could retain a Government servant beyond the age of superannuation. The Government had also the discretion to \i'ithdraw such retention in sefvice because the retention did not confer any right on the Government Servant. [511 Al

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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 ~iscretion which the Government will exercise in some cases. Fundamental Rule 56(a) is in two parts. The first

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(1971] 1 S.C.R.

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504

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SUPREME COURT REPORTS

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part is that the date of compulS;ory 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 jn service after attaining the age df 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 DJ

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Both the orders of 1963 and 1968 were executive instructions and they were not mies under Art. 309 of the Constitution.

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/. N. Saksena v. State of Madhya Pradesh, [1967] 2 S.C.R. 496, fli!.·/11111 Narain Mishra v. Stute of Vttar Pradesh, [1965] I S.C.R. 693 and Moti Ram Deka v. ~'•nera/ Mana11er, N.E.F. Railways, Maligaon, Pandu etc. [1964] 5 S.C.R. 683, referred to. ·

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CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1334 to 1336 of 1969.

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Appeals from the judgment and order c!ated March 28, 1969 of the Assam and Nagaland High Court in Civil Rules Nos. 308, 316 and 323 of 1969.

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Niren De, Attorney General, Naunit Lal and S. N. Chaudhury, for the appellant (in all the appeals)

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Sarjoo Prasad, D. D. Chaudhury, M. M. Kshatriya, and G. S. Chatterjee, for respondent No. 1 (in C.A. No. 1334 o{ 1969).

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S. P. Nayar, for respondent No. 4 (in C.A. No. 1334 of 1969).

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The Judgment of the Court was delivered by

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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 judgm~nt 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 Mell1orandum dated 21 March, 1963 are bad in law.

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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 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 benefa but Government servants who were on refused leave from a date prior -to I December, 1962

ASSAM V. PREMADHAR (Ray, J.)

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505

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A 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 I December, 1962 having been allowed extension of service. In paragraph 3 of the memorandum it was stated that no Government servant wo~ld be entitled to the benefit of the increased age of compulsory retirement unless he had been

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B permitted to continue in service after the age of 55 years after the appointing authority was satisfied that he was efficient and physically lit for Government service. In pmagraph 4 of the memo~ randum it was stated : "Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require. >1 Government servant to retire after he attained the age of 55 years on three months' notice without assigning any reason ...

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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 \vas confirmed as an Assistant Auditor. On 1 April, 1950 he was confirmed as Auditor Local Accounts. Under Fundamental Rule 0 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.

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On 2 April, 1968 the Government issued another memorandurn which was contained in three paragraphs. In. the first paraE 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) discoutinuing 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, 1 968 and Government servants who were already on extension beyond 5 5 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 Septemb~r. 1968.

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Thereafter on 7 May, 1968 notice was given by the Government to respondent Premadhar Baruah. The notice was as follows:-

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"No. VI/ I '68-69-13 Dated, Gauhati, the 7th May, 196~.

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Sri Premadhar Baruah, Designation-Auditor. Local Accounts, Address-Gauhati.

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[l 971 J l S.C.R.

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506

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SUPREME COURT REPORTS

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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 are hereby requested to take notice that you shall not he retained in service beyond 30-9-1968.

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This may be treated as a notice under para 4 of O.M. No. AAP 217/62/15. dated 21-3-1963.

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Sd/- J. Sarmah, Designation, Examiner of Local Account, Gauhati, Address, Gauhati''.

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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 Sertember, 1968 should not be quashed.

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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 wuld be given only befoi·e 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 givinp 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 terminming their services.

It is necessary to keep in the forefront Fundamental Rule 56(a) which is as follows :-

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"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 Governn1ent servant in service after this age should not be made except in very special circumstances".

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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

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ASSAM V. PREMADHAR (Ray, /.)

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507

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A upon in relation to respondent Premadhar Baruah and he had been given an extension up to the age of 5 8 years and therefore he could not be asked to retire before that age. The order dated 21 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 memoranII dum of 2 kpril, 1968 definitely stated that the benefit of raising the age of superannuation to 5 8 years as laid down in the office memorandum dated 21 March, 1963 had been decided to be discontinued by the memorandum dated 2 April, 1968. After the order dated 2 April, 1968 came into existe11ce the order of 21 March, 1963 is neither relevant nor effective.

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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 exerD cise 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 l,lge of 5 5 years. The second part is that the retention of the GoVJ:rnment servant in service after attaining the age of 55 years should not be made except in special circumstances. Such a rule caMC)t be said to found any right in E any employee to continue in service after the age of 55 years.

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The order dated 21 March, 196G and the order dated 2 April, 1968 are both executive instructions and they are not rules under Article 309 of the Constitution.

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•I

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In/. N. Saksena v. State of Madhya Pradesh(') the GovernF 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 G had attained the age of 55 years in the month of August, 1963. Thereafter in the monih of September, 1963 it was communicated to him that he was to retire on 31 December, 1963. On 29 Novemher. 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 H Government servant, other than a Class IV employee, was the date en which be attained the age of 58 years. Only Scientific and

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(I) [1967] 2 S.C.R. 496.

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SUPREME COURT REPORTS

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[1971] I S.C.R.

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508

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Technical personnel might be retained in service after the age or 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 I March, 1963.

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The most noticeable feature in the Madhya Pradesh case W•ls that the amended F.R. 56 did not contain any power of the appointing authority to require a Government servant to retire compulsorily after the age of 55 years without ussigning any reason though such a power was to be found in the order dated 28 Felm1ary, 1963. On this ratio it was held in Saksena's case(') 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 aiternoon of 31 December, 1963 could not be upheld. The implication of the Madhya Pradesh decision is that there could be au 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.

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In Bishun Narain Mishra v. State of Uttar Pradesh & Ors.(') it was held th,'Jt there was no provision to prevent the Government from taking away the power of the Government to increase or reduce the age of superanuation 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 l. 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 •vas 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 die age of retirement it must retain everv public servant for the same length of time. The retention of public servants after the period of retirement depends upon their efficiency and the exigencies of public service".

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In Moti Ram Dcka etc. v. General Manager, N.E.F. Railways, Ma/igaon, Pandu etc.(") 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

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(I) [1967j 2 S.C R. 496.

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(l) 11965) I S.C.R. 693.

(3) 11964] 5 S.C.R. 683.

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'. PREMADHAR (Ray, J.)

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509

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ASSAM

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A Rule 148(3) and of other railway servants undei" Rule 149(3) was liable to termination on notice on either side for the period sl1own 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 physi-

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B cal incapacity. The majority decision was given by Gajendragadkar, J. Two separate opinions were given by Subba Rao and Das Gupta. J.I. Sh<•h, .I. gave a dissenting opinion.

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In Moti Ram Deka'.1 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 princic ple 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 D against whom action would be taken and therefore the authority coulci 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 teriE minate 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 F Shah, .T. said that if the employment was for a period defined or if the employmeht 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. G J. further said that the possibility or assumption of ma/a fide exercise of a power of determination of employment under rule 148(31 could not be the correct method of testing the constitutionality of the rule.

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In the present appeals, the High Court by its majority decision

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held that paragraph 4 of the memorandum of 21 March. 1963

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H offended Article 14 of the Constitution because a person who w"s physically fit and efficient was allowed to continue in service till he (IJ rt 964] s s.c.R. 683.

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[1'>71] l S.C.R.

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510

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SUPREME C:OUR T REPORTS

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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 be_yond 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 supperan.nuation. 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.

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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, 1 968 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 be.tween the age of 55 and 58 and had been retained in service could be retired on 31December,1961 said that the rule treated alike all those who were between the age of 55 and 5 8 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 1he memorandum of 1963 infringed Article 14.

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The High Court fell into the error of overlooking that 21 March, J 963 memorandum no longer occupied the Hild 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 do~n for ·the obvious reason that if the instrument was within the vice of Article 14 of the Constitution, the entire notification would perish.

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We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21 March, 1963. Para·~raph 4 was as follows :-

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"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".

(IJ [1965] I S.C.R. 693.

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ASSAM V. PREMADHAR (Ray, J.)

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511

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A As we have already indicated paragraph 4 of the memorandum flowed from 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.

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B 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.

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Rasodhar Bora was born on I January, 1913 and would have retired on I January, 1968 on completion of the age of 55 years. He was found to be physcally fit and efficient by the competent· c authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated I July, 1968 there was a tennination of his service on 30 September, 196_8.

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In Civil Appeal No. 1336 of 1969 Prernadhar 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 D was ternrnated on 30 May, 1968 by a notice dated 28 May, I ()68.

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The contentions of both the respondents were similar to that of Prcmadhar Baruah. ., '

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For these reasons, the appeals are accepted. The majority judg'E ment is set aside. In the fact and circumstances of the case we direct that the parties will pay and bear their own costs.

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Y.P.

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Appeals a//oll'ed.

State of Assam & Ors. v. Premadhar Baruah & Ors. etc.

Case brief

What is this about?

What did the court decide?

What the court decided

State of Assam & Ors. v. Premadhar Baruah & Ors. etc.

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