BATAHARI JENA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE two petitions both filed under Article 226 of the Constitution of India have been heard together as they involve the consideration of a common question of law as to the constitutional validity of substantially similar provisions made by the government of India in para 6 of their office memorandum No 33/18/62-ESTS (A)in the Ministry of Home Affairs dated the 30th of November 1962 as also in Rule 56 (j) of the Fundamental Rules and by the Government of Orissa in para 3 of their political and Services Department Resolution No. 7406/gen. dated the 21st of May 1963 in regard to premature compulsory retirement of a Government employee. In all these provisions the normal age of superannuation has been increased from 55 years to 58 years, but subject to certain conditions, one of them being that the appointing authority may require a Government servant to retire after he attains the age of 55 years on 3 months' previous notice in writing without assigning any reason. In exercise of the power given in the one or the other of these provisions, the petitioner in each of the two cases has been ordered to retire premature at the age of 55 years. The grievance made in both the petitions is that the normal age of superannuation having been raised from 55 years to 58 years, the orders passed against the petitioners for their compulsory retirement at the age of 55 years are void. In support of this contention a number of grounds have been advanced; one of these grounds which in fact is the main ground of attack is common in both the cases, namely, that the aforesaid provision of law whereunder the orders against the petitioners have been passed are unconstitutional. The facts of the two cases, separately stated, are as follows:-O. J. C. 208 of 1964

(2.) THE petitioner is one Batahari Jena (at present Chief Mining Officer of the government of Orissa ). He was born on the 1st of January 1910 and entered service on the 1st November 1937, originally in the erstwhile State of Mayurbhanj. In that State he continued in service upto the 31st of December 1948. The State with effect from 1-1-49 merged in the province of Orissa and consequently the petitioner was since then first absorbed in the service of the provincial government and thereafter in the service of the State of Orissa. In due course he was appointed by the Government of Orissa as their Chief Mining Officer and in that post he was confirmed on 11-12-62 with retrospective effect from 19-7-61. On 23-4-63 he was allowed to cross the efficiency bar, but subsequently by order no. 2 (Gen.) dated the 14th of July 1964 he was served with a notice issued by the secretary to the Government of Orissa in the Industries Department calling upon him to retire with effect from 1-1-65 in terms of the Resolution No. 7406/gen. dated the 21st of May 1963 of the Political and Services Department. This order was challenged by the petitioner as not binding on him and he made a representation to that effect on 19-8-64 to [he State of Orissa who have been impleaded in the present application as the sole opposite party. The representation was on 24-11- 64 rejected. Accordingly thereafter the petitioner has now filed the present application under Article 226 of the Constitution of India on 21-12-64 praying therein to quash the impugned order passed against him

(3.) IT is not disputed that originally under Rule 71 (a) of the Orissa Service Code, volume I. except as otherwise provided in the other clauses of that rule the date of superannuation of a Government servant, in superior service other than a ministerial servant who was in permanent Government service on 31st March 1936, was the date on which he attained the age of 55 years. As such thereunder the petitioner would have normally retired on the 1st January 1965. But as under the aforesaid resolution of the Government of Orissa dated the 21st of May 1963 the normal age of superannuation was increased from 55 years to 58 years, the petitioner would have thereunder in the normal course continued in service upto the 1st January 1968 But the Government of Orissa, as already stated above, served the petitioner with a notice calling upon him to retire with effect from 1-165. This notice was admittedly issued to the petitioner by the Government of orissa in exercise of the powers given to them by the aforesaid resolution. That is to be found in paragraph 3 of the Resolution and it reads as follows:--