DEOTA DEEN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a special appeal by Deota Deen against an order of the learned Single Judge of this Court dated December 20. 1974 passed in Writ Petition No. 175 of 1970.

(2.) The appellant was appointed a temporary Mechanic in the year 1946 and was later promoted to the post of Tractor Mechanic on which post he was confirmed by an order dated 19-8-1968 with effect from 15-4-1955. He completed his 55 years of age on 8-3-1967. He continued, however, to serve even after crossing 55 years. On 19-8-1968 a three months' notice of compulsory retirement was issued (Annexure 2 of the writ petition) and this was served on the appellant on 12-9-1968. The appellant challenged his compulsory retirement on a variety of grounds, which were rejected by the learned Single Judge and writ petition was dismissed.

(3.) The first submission of Sri K. C. Jauhari, learned counsel for the appellant is that he was permitted to cross the age of 55 years and serve until he had attained the age of 56 years and five months when he received the order of compulsory retirement. Reliance "was placed on an authority of this Court in Kiran Behari Lal Saxena V/s. State of U. P.,1976 2 AllLR 12. It is submitted that this Court observed in that case that once a Government servant is allowed to continue in service beyond the age of 55 years after review of his work and conduct it is not open to the State Government or the appointing authority to review its decision or to retire the appellant compulsorily in the absence of any fresh material. This authority is clearly distinguishable because in that case the work and conduct of Kiran Behari Lal Saxena had been reviewed and found to be above average before he completed 55 years of age and thereafter an order dated 30-4-1973 was issued permitting him to continue in service beyond the age of 55 years. In the present case, however, there is no indication that the record of the appellant has been examined and a decision on the question whether he should be retained after the age of 55 years been taken by the time he attained that age On the other hand, in para 10 of the counter affidavit it was averred that character roll entries of certain years relating to the appellant could not be made available to the Director of Agriculture for consideration until August, 1968 and therefore, the appellant's case for retirement could not be finalised by 8-3-1967 when he attained the age of 55 years. It is clear from these averments, which remained unchallenged, that there was no review of the petitioner's service record until he attained the age of 55 years and for the same reason there was no order, having regard to the aforesaid ruling, permitting him to continue in service after 55 years. Merely from the fact that a Government servant is permitted to continue in service after 55 years it is not always possible to draw the inference that he was permitted to continue in service after 55 years. Under the first proviso to Fundamental Rule 56 the appointing authority has been authorised to compulsorily retire a Government servant 'after' he attains the age of 55 years which means that the order of compulsory retirement can be passed by the appointing authority under the first proviso to Fundamental Rule 56 at any stage after the Government servant attains the age of 55 years though not before the attainment of that age. In the circumstances there is no substance in the argument that the order of compulsory retirement could not be passed after the appellant had crossed the age of 55 years and had attained 56 years and a few months.