# 503. STATE OF ASSAM & ORS v. PREMADHAR BARUAH & ORS. ETC

- **Citation:** [1971] 1 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 1970-05-04
- **Case number:** Civil Appeals Nos. 1334 to c 1336 of 1969
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/503-state-of-assam-ors-v-premadhar-baruah-ors-etc-5089
- **Pages:** 9

## Headnote

Cons1itution of Indi<1, Art. 14-0rdtr r"lsi11g t1R• of superanmwtio11Di.vcrerlon with appointing authority to r~tire wl1J1out assigning rea&onJf discriminator)'.
Under Fundamental Rule S6(a) a Government servant superaqnualcs
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
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
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,
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·
tion, but such retention depended upon the exigencies of the public service
and the consideration of physical fitness and efficiency. [5.10 EJ
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
·
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
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
504
SUPREME COURT REPORTS
(1971] 1 S.C.R.
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
Both the orders of 1963 and 1968 were executive
instructions
and
they were not mies under Art. 309 of the Constitution.
/. 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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## Text

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503.
STATE OF ASSAM & ORS.
v.
PREMADHAR BARUAH & ORS. ETC.
May 4, 1970
[A. N. RAY AND I. D. DUA, JJ.]
Cons1itution of Indi<1, Art. 14-0rdtr r"lsi11g t1R• of superanmwtio11Di.vcrerlon with appointing authority to r~tire wl1J1out assigning rea&onJf discriminator)'.
Under Fundamental Rule S6(a) a Government servant superaqnualcs
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
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
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,
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·
tion, but such retention depended upon the exigencies of the public service
and the consideration of physical fitness and efficiency. [5.10 EJ
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
·
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
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
504
SUPREME COURT REPORTS
(1971] 1 S.C.R.
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
Both the orders of 1963 and 1968 were executive
instructions
and
they were not mies under Art. 309 of the Constitution.
/. 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 c
1336 of 1969.
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.
Niren De, Attorney General, Naunit Lal and S. N. Chaudhury,
D
for the appellant (in all the appeals)
Sarjoo Prasad, D. D. Chaudhury, M. M. Kshatriya, and G. S.
Chatterjee, for respondent No. 1 (in C.A. No. 1334 o{ 1969).
S. P. Nayar, for respondent No. 4 (in C.A. No.
1334 of
1969).
The Judgment of the Court was delivered by
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
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the three main respondents in the three appeals, namely, PremadF
har 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.
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
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ASSAM V. PREMADHAR (Ray, J.)
505
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
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 ...
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
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.
On 2 April, 1968 the Government issued another memorandurn 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) 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.
Thereafter on 7 May, 1968 notice was given by the Government
to respondent Premadhar Baruah.
The notice was
as
follows:-
"No. VI/ I '68-69-13 Dated, Gauhati, the 7th May,
196~.
To
Sri Premadhar Baruah,
Designation-Auditor. Local Accounts,
Address-Gauhati.
506
SUPREME COURT REPORTS
[l 971 J l S.C.R.
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.
This may be treated as a notice under para 4 of O.M.
No. AAP 217/62/15. dated 21-3-1963.
Sd/- J. Sarmah,
Designation, Examiner of Local
Account, Gauhati,
Address, Gauhati''.
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.
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 :-
"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".
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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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 memorandum 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.
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 exercise 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
any employee to continue in service after the age of 55 years.
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.
In/. N. Saksena v. State of Madhya Pradesh(') the Government 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
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
Government servant, other than a Class IV employee, was the date
en which be attained the age of 58 years.
Only Scientific and
(I) [1967] 2 S.C.R. 496.
508
SUPREME COURT REPORTS
[1971] I S.C.R.
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.
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.
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".
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
(I) [1967j 2 S.C R. 496.
(l) 11965) I S.C.R. 693.
(3)
11964] 5 S.C.R. 683.
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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 physical 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.
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 principle 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
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 teriminate 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
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.
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.
In the present appeals, the High Court by its majority decision
held that paragraph 4 of the memorandum of 21 March. 1963
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.
510
SUPREME C:OUR T REPORTS
[1'>71] l S.C.R.
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.
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.
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.
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 :-
"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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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.
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.
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·
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.
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
was ternrnated on 30 May, 1968 by a notice dated 28 May, I ()68.
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-
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ment is set aside.
In the fact and circumstances of the case we
direct that the parties will pay and bear their own costs.
Y.P.
Appeals a//oll'ed.