TAKHATRAY SHIVDATRAI MANKAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal by special leave from a judgment of the Gujarat High Court dismissing a petition under Article 226 of the Constitution by which the order, retiring the appellant from service before he had attained the age of 55 years, had been challenged.

(2.) The appellant had joined the service of the erstwhile State of Junagadh on August 1, 1934 that State merged into the State of Saurashtra on January 20, 1949. The appellant continued to remain in the service of that State having been confirmed as an Executive Engineer on September 24, 1956. On the merger of Saurashtra in the new bilingual State of Bombay on November 1, 1956, the appellant was absorbed in the service of the said State. On the bifurcation of the State of Bombay on May 1, 1960, he was assigned to the State of Gujarat and was absorbed as a permanent Executive Engineer there. On October 12, 1961 the State of Gujarat made an order retiring the appellant from the service with effect from January 12, 1962. On that date he had not attained the age of 55 years but he was about 53 years old. This order was made in exercise of the powers conferred by Rule 161 of the Bombay Civil Service Rules 1959. The order of retirement was challenged by the appellant by means of a writ petition which was dismissed.

(3.) It is common ground that when the appellant was in the service of the erstwhile State of Janagadh his conditions of service were governed by the Junagadh State Pension and Parvashi Rules which had been made by the ruler of the State who exercised sovereign legislative powers. According to those rules the age of superannuation was 60 years. Before the inclusion of the Junagadh State in the State of Saurashtra the Rajpramukh had promulgated an Ordinance called the Saurashtra State Regulation of Government Ordinance 1948. By Section 4 of that Ordinance all the laws in force in the covenanting States prior to their integration were continued in force in the State of Saurashtra until repealed or amended under Section 5. Notwithstanding this the Saurashtra Government adopted and applied the Bombay Civil Service Rules which were then in force in the State of Bombay by an order dated September 23, 1948. This court in Bholanath J. Thakur vs. State of Saurashtra, AIR 1954 SC 680 held that the Rules as regards the age of superannuation which prevailed in the convenanting State which in that case was the State of Wadhwan continued to govern those government servants who had come from that State and had been absorbed in the services of the State of Saurashtra. In view of that decision the State of Saurashtra made the Saurashtra Covenanting State Services (Superannuation Age) Rules, 1955, hereinafter called the "Saurashtra Rules" in exercise of the power conferred by Article 309 of the Constitution. Rule 3 (i) provided;