PADMARAM BORAH Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) THE Petitioner Padmaram Borah was appointed a Lower Division Assistant on the 25th August 1929 in the office of the Registrar, joint Stock Companies, Assam, Shillong as a probationer. After the expiry of his probationary period he was confirmed in his service. Later he was promote (sic) to the post of an Upper Division Assistant (sic) ultimately on the 1st May 1953 he was appointed Superintendent in the office of the Excise Commissioner at Shillong. He was born on the 1st January 1906 and was to be superannuated after attaining the age of fifty -five on the 1st January 1961. On the 22nd December 1960 the Petitioner went on leave preparatory to retirement. On the same day at 5 P.M. he received a letter from the Secretary to the Government of Assam, Excise Department intimating that he has been placed under suspension with effect from the date of the order, that is the 22nd December 1960. On the 6th January 1961 the opposite party No. 2 the Secretary to the Government of Assam, Excise Department informed the Commissioner of Excise Assam by his letter of the same date that the services of the Petitioner were extended for three months with effect from the 1st January 1961 or till the disposal of the departmental proceedings whichever was earlier.

(2.) IN response to the notice issued by this Court a counter -affidavit has been filed by the Secretary to the Government of Assam in the Excise Department.

(3.) THE contention of the Petitioner is that the State Government had no power under the Fundamental Rule No. 56 to extend the period of the services of the Petitioner after his superannuation. It is urged that the State Government could not do so without the consent of the Petitioner and further the Government had in any case no power to extend the period of his service by an order passed subsequent to his compulsory retirement. No retrospective effect could be given to any such order. Next it is contended that under the Fundamental Rule No. 56 made by the Governor of Assam in the exercise of his powers under Section 241(2) of the Government of India Act 1935, the Government could retain in service any employee after he attains the age of superannuation, provided a prior sanction is accorded by the Government on public grounds. The grounds are to be recorded in writing and the proposal for such a retention of a Government servant in service after the age of fifty -five years is not to be made except in very special circumstances.