Clause b(i) of Fundamental Rule 56, as .it stood prior to November 30, 1962 provided that a pre 1938 ministerial servant might be required to retire at the age of 55 years but should" ordinarily be retained in service, if he continued efficient, upto the age of 60 years. By memorandum dated 3 lst December, 1963, the President of !ndfa decided that, subject to the right conferred by memorandum dated November 30, 1962, to retire any officer on three months' notice after he attained the age of 55 years; pre-1938 ministerial officers governed by P.R. 56(b){i) bad to be continued in service like all other government servants upto the age of 58 years without an annual order sanC:tioning tfi'!ir retention. The respondent was a ministerial government servant governed by Clause b(i). He entered government service prior to April, 1938 and would have attained the age of 55 years on March 14, 1964. On December 18, 1963 the Collecto·r, Central Excise passed an order retiring the respondent from -service. The order gave the respondent option to retire with effect from March 14, 1964 or to proceed on leave as might be admissible or granted to him preparatory to retirement. The respondent was on preparatory leave extending upto 28 months after March 14, 1964 and was paid the salary that was admissible to him for this leave. period. The High Court quashed the order of retirement and held that the respondent would be deemed to be in service until he attained the age of 60 years. The High Court further was of the view that the memorandum was not in the nature of executive or administrative instruction.
