BIRA KISHORE DAS Vs. THE STATE OF ORISSA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ORISSA, POLITICAL AND SERVICES DEPARTMENT AND ORS.

JUDGEMENT

(1.) THE averments in the writ application may be stated in short Petitioner's date of birth is 12 -7 -1917. He entered into Government service as a ministerial servant on 24 -1 -1947 and retired as such on 117 -1972 on the completion of his 55th year. The Bihar and Orissa Service Code (hereinafter to be referred to as the Bihar Code) continued in force in the State of Orissa by notification (Annexure -2) on 5 -4 -1937. The Orissa Service Code (hereinafter to be referred to as the Orissa Code) was drafted on 11 -3 -1939. Though it was published in the shape of a printed book it was not published in the Official Gazette. It was not authenticated in accordance with the rules for authentication of orders and instruments made under Section 59(2) of the Government of India Act, 1935 (hereinafter to be referred to as the Act). It was not approved by the Governor. Rule 1 of the Orissa Code prescribes that it would come into force with effect from 1 -4 -1939. The Orissa Code was not brought into force until 26 -8 -1950 when by Annexure -6 it was notified in the Orissa, Gazette that the Orissa Code shall be deemed to be a Code of Rules under Article 372, read with Article 309 of the Constitution of India. Thus by 24 -1 -1947 when the Petitioner entered into Government service the Bihar Code was in force and not the Orissa Code. Petitioner is to be superannuated in accordance with Rule 75(b) of the Bihar Code which prescribes that a ministerial servant may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. Rule 71(a) of the Orissa Code has no application to the Petitioner's case and that the Petitioner shall be deemed to be continuing 10 service until he attains his 60th year. The writ application has been filed under Articles 226 and 227 of the Constitution for issue of an appropriate writ for quashing the order of retirement (Annexure -1).

(2.) PETITIONER 's stand is that the Orissa Code came into force with effect from 15th of August, 1950 by Annexure -6 which is not retrospective. This notification may be extracted:

(3.) ON the aforesaid analysis we are clearly of opinion that even if the Orissa Code was not duly approved by the Governor and duly authenticated prior to its coming into force on 1 -4 -1939 it has come into force from that date by virtue of the notification (Annexure -6) issued in exercise of the powers conferred by Article 309 of the Constitution read with Article 372 thereof whereby the Governor of Orissa was pleased to direct that the Orissa Code shall be deemed to be a come of Rules made under Article 309. The Orissa Code came into force with effect from 1 -4 -1939 and the Petitioner was rightly retired on the completion of his 55th year by application of Rule 71(a) of that Code.