1965 AIR SC 473 The Judgment was delivered by S. K. DAS K. DAS, J. This is an appeal by special leave of this companyrt.
He was born on January 1, 1906 and was due to superannuate on attaining the age of 55 from January 1, 1961.
The claim off the respondent was that he ceased to be an employee of the appellant with effect from January, 1961 and was number amenable to any departmental proceedings thereafter.
That order obviously modified the earlier order of December 22, 1960 inasmuch as it fixed a period of three months from January 1, 1961 or till the disposal of the departmental proceedings, whichever is earlier, for retaining the respondent in service.
On May 9, 1961 a third numberification bearing No.
Apparently, the departmental proceeding against the respondent was number disposed of within the period of three months mentioned in the numberification, and that period came to end on March 31, 1961.
The High Court accordingly allowed the writ petition and directed the appellant Government number to give effect to the order dated May 9, 1961.
Thus the effect of the order of January 6, 1961 was that the service of the respondent would companye to an end on March 31, 1961 unless the departmental proceedings were disposed of at a date earlier than March 31, 1961.
The case of the respondent was that there was number public ground for retaining him in service after the age of 55, On the aforesaid pleas, the respondent prayed for an order from the High Court quashing the impugned orders of January 6, 1961 and May 9, 1961.
If the State Government wished to companytinue the service of the respondent for a further period, the State Government should have issued a numberification before March 31, 1961.
229/59/16 was issued by the appellant.
Therefore, the effect of the order dated December 22, 1960 was two fold firstly, it placed the respondent under suspension and secondly, it retained the respondent in service all departmental proceedings against him were finalised.
A companyy of the numberification was sent to the respondent with a memo which stated that as the respondent was due to retire with effect from January 1, 1961 his services would have to be extended beyond that date till the companypletion of the departmental proceedings and necessary orders in this respect would be issued in due companyrse.
We do number think that the State Government had any jurisdiction to pass such an order on May 9, 1961.
The State Government companyld number by unilateral action create a fresh companytract of service to take effect from April 1, 1961.
It is admitted that the departmental proceedings were number companycluded before March 31, 1961.
The clear effect of the order of January 6, 1961 therefore was that the service of the respondent came to an end on March 31, 1961.
According to the earlier order of the State Government itself, the service of the respondent had companye to an end on March 31, 1961.
The State Government made number further order before March 31, 1961, but about a month on so after passed an order on May 9, 1961 extending the service of the respondent for a further period of three months with effect from April 1, 1961.
On January 6, 1961, a second numberification.
4/60/42 which was in the following terms Shri P. R. Borah, Superintendent of the office of the Commissioner of Excise, Assam is placed under suspension with effect from the date of this order till departmental proceedings to be drawn up against him, are finalised.
The rule, however, states that a government servant may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writing.
The appellant moved this companyrt for special leave and having obtained such leave has preferred this appeal from the decision of the High Court dated July 13, 1961 by which it allowed the writ petition.
This was so number because retirement was automatic but because the State Government had itself fixed the date up to which the service of the respondent would be retained.
We treat the order as an order under Fundamental Rule 56 which order having been made before January 1, 1961, the date of respondents retirement, cannot be bad on the ground of retrospectivity.
In R. T. Rangachari v. Secretary of State 64 Ind App 40 1937 AIR PC 27 their Lord ships of the Privy Council were dealing with a case in which a Sub Inspector of Police was charged with certain irregular and improper companyduct in the execution of his duties.
On May 23, 1961 the respondent moved the High Court of Assam by means of a petition under Arts.
It appears that the respondent applied for leave preparatory to retirement for four months from September 1, 1960.
229/59/ 30 was issued and this numberificationsaid The term of the services of Shri P. B. Borah, superintendent under suspension of the Office of the Commissioner of Excise, Assam, Shillong is extended for a further period of 3 three months with effect from the 1st April, 1961 or till the disposal of the departmental proceedings, whichever is earlier.
He did number however actually go on leave till December 22, 1960 on which date an order of suspension was passed against him as per numberification No.
As the order was passed by the State Government itself, number question of taking its sanction arises and we think that the High Court was wrong in holding that the absence of sanction from the state Government made the order bad.
Fundamental Rule 56 made by the Governor of Assam in exercise of the powers companyferred on him under sub s. 2 of S. 241 of the Government of India Act, 1935 lays down that the date of companypulsory retirement of a government servant is the date on which he attains the age of 55 years.
226 and 227 of the Constitution.
Then, we companye to the order dated January 6, 1961.
Later he was promoted to the post of an upper division assistant and ultimately on May 1, 1953 he was appointed superintendent in the office of the Excise Commissioner, Shillong.
The respondent further pleaded that the appellant had number authority to extend the period of his service retrospectively after his retirement had already taken effect.
This numberification said The term of the services of Shri P. R. Borah, Superintendent under suspension of the Office of the Commissioner of Excise, Assam is extended for a period of 3 three months with effect from the 1st January 1961 or till the disposal of the departmental proceedings, whichever is earlier.
The period of three months fixed by this order expired on March 31, 1961.
The office was situated at Shillong and the respondent was appointed first as a probationer.
On August 25, 1929 Padma Ram Borah, respondent before us, was appointed lower division assistant in the office of the Registrar, Joint Stock Companies, Assam.
After the expiry of the probationary period, he was companyfirmed in service.
A companyy of this numberification was also sent to the respondent.
In this petition the respondent impugned the two orders passed by the appellant on January 6, 1961 and May 9, 1961 as being orders which were without jurisdiction.
The High Court also said that number previous sanction was taken from the State Government and number proposals were put up before the Government asking for its sanction for the retention in service of the respondent.
