STATE OF ASSAM & ORS. versus PREMADHAR BARUAH & ORS. ETC.

Citation: [1971] 1 S.C.R. 503 · Decided: 04-05-1970 · Supreme Court of India · Bench: A.N. RAY · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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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 superanmwtio11-
Di.vcrerlon with appointing authority to r~tire wl1J1out assigning rea&on-
Jf 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 Gov-
ernment 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 exer-
cise 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 th

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