STATE OF ASSAM AND ANR. ETC. versus BASANTA KUMAR DAS ETC. ETC.

Citation: [1973] 3 S.C.R. 158 · Decided: 22-12-1972 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

ass 
STATE OF ASSAM AND ANR. ETC. 
v. 
BASANTA KUMAR DAS ETC. ETC. 
December 22, 1972 
[A. ALAGIRISWAMI AND C. A. VAIDIALINGAM, JJ.J 
Civil Servant-Increase in age of retirement' on satisfaction fegarding 
efficiency and physical fitness-Right to be in service. 
Constitution of India, 1950, Art. 133-Certificate of leave to appeal 
to Supreme Court granted by High Court-No mention of clause of 
Art. 133 under which it was thought fit-Liability of appeal 
to 
be 
.dismissed. 
Jn March 1963, the appelllli!ll-state issued a memorandum 
ra1smg 
the age of retirement of the State government servants from 55 to SS. 
The memorandum however; stated that no government servant would be 
entitled to the benefit of the increased age unless he has been permitted 
to continue i:n service after the age of S5 after the appointing authority 
is satisfied that he is efficient and physically fit. 
In the annexure to 
the memorandum the procedure for finding out the efficiency and physical 
fitness of the employee was laid down. 
In the case o'f respondents BR and K, the· Board constituted to consider 
their cases recommended the extension of their service, but the Minister 
in charge did not agree. 
In the case of respondents S and H, though the Deputy Commissioner 
recommended their conti;nuance in service, the Commissioner, who was 
1he appointing authority, was not satisfied that they were 
fit 
to 
be 
.continued in service and hence they were not -continued, 
In the case of respondent BK, the appointing authority 
was 
not 
safisfied with his work so as to ex.tend his services. 
The Jive respondents filed petitions in the High Court. The High 
-Court allowed the petition of BR, and following that judgment allowed 
the other petitions without going into the facts and merits of each of 
:those cases. 
Allowing th~ appeals to this Court, 
HELD : (!) The memoraindum was a mere executive instruction and 
not a rule under Art. 309. It did not confer legal rights and no legal 
.action can be founded on it [164CJ 
(2) The petitioners did not get any right to continue 
in 
service 
beyond the age of SS years as a result of the memoraindum. 
A govern· 
ment servant has no such right beyond the agio of superannuation and 
if he is retained beyond that age it is only in exercise of the discretion 
<>f the Government. [165-D) 
Assam v. p,, madhar, [1971) I S.C.R. 503 
and Kai/ash Chandra v. 
Union of India, L1962) I S.C.R. 374 followed. 
(3) The fact that certain persons were found fit to be continued in 
service. does not !'lean that ot!'ers who. were not so found fit had been 
d1scnmmated agamst. Otherwise. the whole idea of 
OO!Dtinuing 
only 
efficient people in service after SS years becomes meaningless. [16S-Gj 
A 
B 
c 
D 
E 
F 
G 
H 
ASSAM v. B. K. DAS 
159 
A 
B. N. Mishra v. State, [1965] 1 S.C.R. 693, followed. 
B 
c 
D 
E 
F 
G 
Union of India v. J. N. Sinha, [1971] 82 J.T.R 561, referred to. 
(4)(a) It is true that in the case of respondents BR and K, the 
Screening Board recommended their c:o;ntinuance and there is no material 
to show why the Minister formed a different impression 
-about 
their 
capacity. 
But once it is held that the memorandum is only an executive 
instruction which confers no right on any body, the judgment Of the 
M~nister cannot be questioned unless it could be shown that there was 
ma/a (ides, or that Minister was guided by ullecior motives or that the 
decision contravenes oome law. 
In the present case, there is ino alle· 
gation of any ma/a (ides on the part of any of the authorities. [161-HJ 
(b) The High Court erred in merely following the judgment in the 
case of BR and ignoring the facts in the other cases. It was its duty 
to have considered the merits of each case. 
[163G] 
(5) The certificate of leave to appeal to this Court was granted by 
the H_igh Court without mentioning under what paf.ticular clause or sub-
clause of Art. 133 the leave was granted. 
But in the present case, the 
fact that the leave obtained was not a proper one is not a ground for 
dismissing the appeal. A:i> objection to the certificate should be taken 
by the respondent at the earliest possible moment, and this Court 
is 
always prepared to consider the request by the appellant for grant of 
special leave at any stage if the circumstances of the case so requires. 
[168-B] 
When the High Court decided these cases, the judgment 
of this 
Court in Premadhar's case had not be delivered. Therefore, a substantial 
question of la

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