# BATAHARI JENA v. STATE OF ORISSA

- **Citation:** [1971] Supp. 1 S.C.R. 352
- **Court:** Supreme Court of India
- **Decided:** 1971-04-05
- **Bench:** S. M. S!Kri, G. K. Mitibk, K. S. Hbgde, A. N. GKOVE!t, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/batahari-jena-v-state-of-orissa-5251
- **Pages:** 7

## Headnote

Civil Service-Orissa-Age of superannuation raised from 55 to
58
years by Government resolution dated May 21, 1963-liberalised Pension
Rules did not have effect that employee should have put in 30 years' rervice
before be could be retired at 55-Guidlines ti> Heads of the Departments
mentioning inter alia that an officer lacking i'}-tegrity may be retired ut 55--
This did not cast stigma on every officer who was retired at 55-Artic/e
311(2) of Constitution not attracted.
The appellant who was born on January 1,1910 entered the service
of the former Indian State of Mayurbhanj in Orissa as an engineer on
1st November 1937. On the merger of that State with the Province of
Orissa on January 1, 1949 he became an officer of the said province. The
age of superannuation of Government employees in Orissa was then 55
years.
On May 21, 1963 tho Government of Orissa passed a resolution
raising the ago of compulsory retirement to 58 years with effect from
Decen1ber 1, 1962. The power of Government to retire an employee at
the age of 55 years was however retained and so was the right of the employee to voluntarily retire at that age after giving reqU.isite notice. The
resolution aforesaid also stated that the above provision will be jn '\ddition
to the provisions already contained in the Liberalised Pension Rules ac ..
cording to which Government could compulsorily retire an employee who
had put in 30 years service, the employee also having a corresponding right
to retire after the said period of service. On February 5, 1954 a notification was issued by the Government of Orissa laying down inter alia that
in any ca~e where Government had reasonable cause to believe that employee lacked integrity it would be appropriate to determine upon his retirement. On July 14, 1964 the appellant was asked to retire from Government service with effect from January 1, 1965. His representation for
reconsideration was not accbpted. His writ petition in the High Court was
rejected. By certificate tho appellant came to this Court contending (i) that
in view ot the Liberalised Pension Rules he could not be retired before he
had completed 30 years of service, and (ii) that having regard to the crittria laid down by th,e notification dated February 5, 1964 the order. of
retirement cast a stigma on him and as such was violative of Arl 311
of the Constitution.
HELD: (1) Before May 21, 1963 an employee of the Government of
Orissa would have been due for superannuation When he attained the age
of SS years whether he bad or had not put in thirty years qualifying service.
Government bad before the said date an option to ask him to reti!"e if be
bad completed 30 years qualifying service even though he had 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. The resolution of May 21.
1963 taiscd the age of superannuttion from SS 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 SS years without assignina
BATA~ARI .. ORISSA (Miller, J.)
aoy reason. Correspondinaly the employee was not bound to continue in
service beyond the age of filly years unless he wanled it. There was n.o
alteration ·in the rule under which a Government servant could voluntari·
ly retire or be asked to retire in a case when he had completed thirty years'
service. In other words, the ria:ht of Government to require an officer lC\
retire af any time after he had completed 30 years' service was and still
remained intact. This right which was not linked with the age of super·
annuation before May 1963 remained unaffected even after that date. Al!
tbou1h the aae of superannualion was raised from 55 to 58 years Govern·
ment armed itself with the power to require any employee to retire when
he attained lhe aae of 55 years without assi1nin1 any reason. The peti·

## Text

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BATAHARI JENA
v.
STATE OF ORISSA
April 5, 1971
[S. M. S!KRI, C. J., G. K. MITIBK, K. S. HBGDE, A. N. GKOVE!t
AND P. JAGANMOHAN REDDY, JJ.]
Civil Service-Orissa-Age of superannuation raised from 55 to
58
years by Government resolution dated May 21, 1963-liberalised Pension
Rules did not have effect that employee should have put in 30 years' rervice
before be could be retired at 55-Guidlines ti> Heads of the Departments
mentioning inter alia that an officer lacking i'}-tegrity may be retired ut 55--
This did not cast stigma on every officer who was retired at 55-Artic/e
311(2) of Constitution not attracted.
The appellant who was born on January 1,1910 entered the service
of the former Indian State of Mayurbhanj in Orissa as an engineer on
1st November 1937. On the merger of that State with the Province of
Orissa on January 1, 1949 he became an officer of the said province. The
age of superannuation of Government employees in Orissa was then 55
years.
On May 21, 1963 tho Government of Orissa passed a resolution
raising the ago of compulsory retirement to 58 years with effect from
Decen1ber 1, 1962. The power of Government to retire an employee at
the age of 55 years was however retained and so was the right of the employee to voluntarily retire at that age after giving reqU.isite notice. The
resolution aforesaid also stated that the above provision will be jn '\ddition
to the provisions already contained in the Liberalised Pension Rules ac ..
cording to which Government could compulsorily retire an employee who
had put in 30 years service, the employee also having a corresponding right
to retire after the said period of service. On February 5, 1954 a notification was issued by the Government of Orissa laying down inter alia that
in any ca~e where Government had reasonable cause to believe that employee lacked integrity it would be appropriate to determine upon his retirement. On July 14, 1964 the appellant was asked to retire from Government service with effect from January 1, 1965. His representation for
reconsideration was not accbpted. His writ petition in the High Court was
rejected. By certificate tho appellant came to this Court contending (i) that
in view ot the Liberalised Pension Rules he could not be retired before he
had completed 30 years of service, and (ii) that having regard to the crittria laid down by th,e notification dated February 5, 1964 the order. of
retirement cast a stigma on him and as such was violative of Arl 311
of the Constitution.
HELD: (1) Before May 21, 1963 an employee of the Government of
Orissa would have been due for superannuation When he attained the age
of SS years whether he bad or had not put in thirty years qualifying service.
Government bad before the said date an option to ask him to reti!"e if be
bad completed 30 years qualifying service even though he had 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. The resolution of May 21.
1963 taiscd the age of superannuttion from SS 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 SS years without assignina
BATA~ARI .. ORISSA (Miller, J.)
aoy reason. Correspondinaly the employee was not bound to continue in
service beyond the age of filly years unless he wanled it. There was n.o
alteration ·in the rule under which a Government servant could voluntari·
ly retire or be asked to retire in a case when he had completed thirty years'
service. In other words, the ria:ht of Government to require an officer lC\
retire af any time after he had completed 30 years' service was and still
remained intact. This right which was not linked with the age of super·
annuation before May 1963 remained unaffected even after that date. Al!
tbou1h the aae of superannualion was raised from 55 to 58 years Govern·
ment armed itself with the power to require any employee to retire when
he attained lhe aae of 55 years without assi1nin1 any reason. The peti·
tioncr's araument based on the fact that he had not completed 30 years'
of service, must therefore, fail. [355H-356E)
·
(ii) Slnce the aae of superannualion fixed was nol unaccounlably early
there was no violalion of Art. 311(2).
[3580)
Gurdt• Singh Sidh11 v. Stale of P11njab, [1964)
7 S.C.R. 587, 593.
Salish Chandra Anand v. Union of India, [1953) S.C.R .. 665 and Moti Ram
Deka etc. v. General Manager. North East Frontier Rly. [1964) 5 S.C.R.
683, discussed.
(iii) Nor was Art. 311 attracted by any aspersion or stigma cast on
353
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lhe appellant by the order daled July 14, 1964. Under paragraph 3 of Jhe
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resolution of May 21, 1963 the Government had a ri&ht to require aoy
Government servant ta retire at the age of 55 without assigning any rcasor...
The facl thatby notification of 51h February 1964 cerlain guidelines were
indicated to the Heads of Departments in_ Considering whether a Govern ..
mcnt servant should con~inue in service beyond the age of SS years, one
of the factors being lack Of integrity, did not imply that any officer who'ie
continuance in service was not advised lacked integrity.
On the facts of
the case it could not be said that any aspersion was cast -on thC appellant.
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[358F-G)
The appeal musl accordingly be dismissed.
OVIL APPELLATE JURISDICTION : Civil Appeal No. 1064 of
1967.
Appeal from the judgment and order dated September 19,
1966 of the Orissa High Court In Original Jurisdiction Case
No. 208 of 1964.
S. V. Gupte, and B. P. Maheshwari, for the appellant.
R. Gopalakrishnan and R. N. Sachthey, for the respondent.
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The Judgment of the Court was delivered by
Mitter, J.-This is an appeal from a judgment of tbr.
Hi~h
Court of Orissa rejecting a Writ Petition filed by the appellant
for quashing the order of tbe Government passed on him on July
14, 1964 informing him that he was to retire from Government
service on !st January, 1965 when he would reach the age of 55
years.
23--1 S.C. lndia/71
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SUPRBMB COURT REPORTII
[1971] SUPP. s.c.R.
The facts are shortly as follows.
The appellant who was
born on January I, 1910 entered the service of the former Indian
State of Mayurbhanj in Orissa as an engineer on !st November
1937. He was in the employment of that State up to December
31, 1948. On the merger of that State with the Province of Orissa
on January I, 1949 he became an officer of the said Province.
The age of superannuation of Government employees in Ori8sa
was then 55 years. On May 21, 1963 the Government of Orissa
passed a resolution the relevant portion whereof ran as follows :-
.
.
"I. The question of raising the age of compulsory
retirement of the State Government employees has been
under the consideration of Government for some time
past. . . .
2. · 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 J.12-1962. . .
3. Notwithstanding anything contained in the pre,.
ceding 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 assigning 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 retjre a Government servant
under this provision will normally be exercised to weed
out unsuitable employees after they have attained the age
of 55 years.
4. This provision will be in addition to the provisions already contained in rule 2 in section I 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 be required to retire, and
(b) a Government servant may retire from service
any time after completing 30 years qualifying
service by giV'ing a notice in writing to the appropriate authority at least three months before
the date on which be wishes to retire."
On February 5, 1964 a notification was issued b¥ the Government of Orissa in connection with the above laymg down the
BATAH.Alll v. ORISSA (Mitter,J.)
criteria and procedure to be adopted to ensure uniformity of ope·
ration 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 (l) 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 officer's 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 55.
On July 14, 1964 the appellant was asked to retire from
Government service on !st 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.
Counsel for the appellant raised only two points in support
of the appeal._ His first submission was that as the appellant
had not completed 30 years' service on January 1, 1965 he could
not be asked to retire on that date: and, secondly, having regard
to the criteria laid down by the notification dated February 5,
1964 the order of retirement dated July 14, 1964 cast a stigma
on him and as such was violative of the protection given by Art.
111 of the Constitution.
The submission of learned counsel on the first head was
based on his construction of the resolution of May 21, 1963. It
was urged that as the power of the appointing authority under
paragraph 3 of that resolution to retire the appellant after he
attained the age of SS years was described as "in addition to
the provisions contained in rule 2 in section 1 of the Liberalised
Pension Rules" under which Government might require an officer
to retire at any time after he had completed 30 years' qualifying
service, the new provision was to be treated as super-added to
the Pension Rules and no Government servant could be asked
to retire at the age of 55 unless he had completed 30 years' qualifying service. As there was no dispute that the appellant had
not completed 30 years of such service on lstJanuary 1965 It
was urged on behalf of the appellant that Government could not
resort to pa~graph 3 of the said resolution.
In our view the above contention cannot be accepted. Be·
fore May 21, 1963 an employee of the Government of Orissa
would have been due for superannuation when he attained the
355
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356
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SUPREMB COURT REPORTS
(1971] SUPP. s.c.R.
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 officec 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 requ'ire any employee to retire
when he attained the age of 55 years without assigning any reason.
Reliance was placed on certain observations in the decision
of this Court in Gurdev Singh Sidhu v. State of Punjab and Anot/rer
('). There this Court struck down article 9.1 of the Pepsu
Service Regulations under which the Government sought to retain
an absolute right to retire any Government servant after he had
completed ten years' qualifying service without giving any reason.
In that case the petitioner who had been appointed as an Assistant Superintendent of Police in the erstwhile Patiala State on
February 4, 1942 and confirmed in that rank on the occurrence
of a regular vacancy after undergoing practical district training
courses, and after promotion to the rank of Superintendent of
Police in an officiating capacity in February 1950 in the said
State of Pepsu, was asked to show cause by notice dated March
25, 1963 as to why he should not be compulsorily retired. The
petitioner complained that the notice issued to him was Invalid
on the ground that the article on which it was based was itself
ultra vires and inoperative and the only question before this Court
was whether the impugned article was shown to be constituti?nally
invalid.
Referring to Satish Chandra Anand v. The Unron of
India(') and to certain dicta of the majority Judges in Moti Ram
(1) [196417 S,C. R. 587 atS93.
(2) [1963] S. C.R.. 6SS.
BATAHARI v. ORlSSA (Mitter,J.)
Delea etc. v. The General Manager, North East Frontier Railway
etc.(') this Court observed by way of explanation that:
". . the majority judgment took the precaution of adding a note of caution that if a rule of compulsory retirement purported to give authority to the Government to
terminate the services of a permanent public servant at a
very early stage of his career, the· question about the validity of such a rule may have to be examined. That is
how in accepting the view that a rule of compulsory retirement can be treated as valid and as constituting an
exception to the general rule that the termination of the
services of a permanent public servant would amount to
his removal under Art. 311 (2), this Court added a rider
and made it perfectly clear that if the minimum period
of servi<;~ which was prescribed by the relevant rules
upheld by the ear.lier decisions was 25 years, it could not
be unreasonably reduced in that behalf. In other words,
the majority judgment indicates that what influenced
the decision was the fact that a fairly large number of
years had been prescribed by the rule of compulsory retirement as constituting the minimum period of service
~ after which alone the said rule could be invoked."
The Court further observed (see p. 594) that:
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"The safeguard which Art. 311 (2) affords to permanent
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public servants is no more than this that In case it is intended to dismiss. remove or reduce them in rank, a reasonable opportunity should be given to them of showing
cause against the action proposed to be taken in regard
to them. A claim for security to tenure does not mean
security of tenure for dishonest, corrupt, or ineffieient
public servants. The claim merely insists that before
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they are removed, the permanent public servants should
be given an opportunity to meet the charge on which they
are sought to be removed. Therefore, it seems that only
two exceptions can be treated as valid in dealing with
the scope and effect of the protection afforded by Art.
311(2). If a permanent public servant is asked to retire
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on the ground that he has reached the age of superannuation which has been reasonably fixed, Art. 311 (2) does
not apply. because such. retirement is neither
dismiss~!
nor removal of the public servant. If a permanent pu~l!c
servant is compulsorily retired under the . rules
which
prescribe the normal age of s_uperannuat10.n and
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vide for a reasonably Jong penod of quahfied service
(I) [1964]-5 s. c. R. 683.
358
SUPR.BMB COUR.T RIPOR.TS
[1971] SUPP. S.C.R..
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after which alone compulsory retirement can be ordered.
that aga.in may not amount to dismissal or removal under
Art. 311 (2) mainly because that is the effect of a long
series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a
permanent public servant, a rule is framed prescribing
a proper age of superannuation, and another rule is
added giving the power to the State to compulsorily retire a public servant at the end of 10 years of his service,
that cannot, we think, be treated as falling outside
Art. 311 (2).
The termination of the service of a permanent public servant under such a rule, though called
compulsory retirement, is, ·in substance, removal under
Art. 311(2)."
In our v'iew 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 Art. 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 early.
Before 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 Art. 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 woulil attract Art. 311.
Und~r 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 serv'ice was not advised lacked in
integrity. On the facts of this case, we cannot say that any evil
aspersion was cast on the appellant.
In the result we must hold that there has been no violation
of Art. 311 of th~ Constitution and the appeal must be dismissed
with costs.
G.C.
Appeal dismissed.