TEJPAL SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellant was working as an Additional District and Sessions Judge in the State of Uttar Pradesh in the year 1968. His date of birth was April 1, 1913. He would have retired from service on the expiry of March 31, 1971 on completing 58 years of age. But on September 3, 1968 the appellant was served with an order dated August 24, 1968 issued by the Secretary to the Government of Uttar Pradesh (Home Department) stating that the Governor of Uttar Pradesh in exercise of the powers under para (i) of the first proviso to clause (a) of Fundamental Rule 56 contained in the Financial Hand Book, Volume II, Parts II to IV, as amended from time to time, had been pleased to order that the appellant should retire from service on the expiry of three months from the date of service of the notice. Aggrieved by the said notice of premature retirement, the appellant filed Writ Petition No. 3958 of 1968 before the High Court of Allahabad under Article 226 of the Constitution urging inter alia (i) that the retirement of the appellant as per order dated August 24, 1968 had been ordered without the recommendation of the High Court as required by Article 235 of the Constitution, (ii) that Fundamental Rule 56 under which the impugned order had been issued was violative of Articles 14 and 16 of the Constitution, and (iii) that the appellant's premature retirement was in violation of Article 311(2) of the Constitution. The question relating to the validity of Fundamental Rule 56 was involved in two other cases which were pending before the High Court. The Writ Petition filed by the appellant and the other two writ petitions were heard together by a Division Bench of the High Court. The Division Bench referred all the three matters to a Full Bench to consider two specific questions of law, namely (i) whether under Fundamental Rule 56 the age of superannuation was 55 or 58 years and (ii) whether the proviso to clause (a) of Fundamental Rule 56 violated Articles 14 and 16 of the Constitution. Thereafter the Full Bench heard all the three cases and answered the two questions as follows:(i) Under clause (a) of Fundamental Rule 56 the age of superannuation was 58 years and (ii) Paragraph (i) of the proviso to clause (a) of the Fundamental Rule 56 violated Articles 14 and 16 of the Constitution. The judgment of the Full Bench was pronounced on September 26,1969. Immediately thereafter the Governor of Uttar Pradesh issued an Ordinance dated November 5, 1969 making amendments to Fundamental Rule 56 and validating actions already taken thereunder. The Ordinance was replaced by U.P:Act No. 5 of 1970 on April 1, 1970. The appellant sought the amendment of the Writ Petition questioning the, validity of the Ordinance and the Act. Thereafter. the Writ Petition was heard by a Division Bench of the High. Court and it came to be dismissed on February 23,19170. This appeal by certificate is filed against the judgment of the High Court.

(2.) In this case we are not concerned much with the validity of Fundamental Rule 56 since it can be disposed of on the ground based on Article 235 of the Constitution.

(3.) The undisputed facts as can be gathered from the records in this case which are relevant for purposes. of this appeal are, these. The State Government moved the High Court in the year 1967 for the premature retirement of the appellant. On July 8, 1968 the Administrative Judge agreed with the proposal of the State Government to retire the appellant prematurely after giving him three months' notice. The Governor passed the order of retirement on August 24, 1968. Three days thereafter, on August 27, 1968 the Administrative Committee of the High Court gave its approval to the recommendation of the Administrative Judge earlier communicated to the State Government. Thereafter on August 30, 1968 the Additional Registrar transmitted the order of retirement to the appellant. It was actually served on September 3, 1968. The question for consideration in this case is whether the order of compulsory retirement passed against the appellant satisfies the requirements of the Constitution.