BICHITRANANDA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONERS 's case may be stated in short. He was born on 18th December, 1917, joined service as a Sub -Deputy Collector on 5 -10 -1943 and was superannuated on 17 -12 -1972 while he was in Class I of the Orissa Administrative Service on his attaining the age of 55 years. Under Rule 71(a) of the Orissa Service Code he was to retire on the completion of his 55th year. By virtue of a resolution dated 21 -5 -1963 (Annexure -I) which was a statutory rule under Article 309 of the constitution the age of compulsory retirement was raised to 58 years. On this basis the due date of retirement of the Petitioner was 17 -12 -1975. By another resolution dated 19th/20th February, 1968 (Annexure -2) the age of compulsory retirement was reduced to 5 years. Again, by a resolution dated 13th June. 1974 (Annexure -3) the age of compulsory retirement has been raised to 58 years. Annexure -2 is an executive instruction and cannot supersede Annexure -1 which is a statutory rule. The writ application has been filed under Articles 226 and 227 of the Constitution with a prayer that the Petitioner would be deemed to be continuing in service till 17 -12 -1975 and for consequential benefits.

(2.) THE sole contention urged by Mr B. K Misra in support of the petition is that Annexure -l and 3 are statutory rules under Article 309 of the Constitution while - Annexure -2 is an executive instruction. In support of his contention reliance was placed on Batahari Jena and Anr. v. State of Orissa : A.I.R. 1968 Ori 44 : A.I.R. 1971 S.C. 1516" Batahari Jena v. The State of Orissa : A.I.R. 1968 Ori 44: A.I.R. 1971 S.C. 1516, and E.V. Naidu v. Union of India : A.I.R. 1973 S.C. 698.

(3.) IN T.N. Saksena v. State of U.P. : A.I.R. 1967 S.C. 1264, a similar resolution was held to be an executive instruction. The resolution has been extracted in the Supreme Court Judgment itself in paragraph 1.