Judgment

WANCHOO, J. : This is an appeal on a certificate granted by the High Court of Allahabad and arises in the following circumstances. The appellant was in the service of the State of Uttar Pradesh as Sub-Registrar. He was born on December 11, 1905 and was recruited in service in July 1933. At the time of his recruitment the age of retirement (or superannuation) for government servants of his class was 55 years. Therefore, normally he should have retired on December 11, 1960. But by a notification dated November 27, 1957. The Government of Uttar Pradesh (hereinafter referred to as the Government) raised the age of retirement (or superannuation) to 58 years. This meant that the appellant would have retired on December 11, 1963. On May 25, 1961, the Government again reduced the age of retirement (or superannuation) to 55 years by a notification of that date under Art. 309 of the Constitution. Further a proviso was added in the rules relating to retirement in these terms :

"Provided that a Government servant who had not retired on or before June 17, 1957 but has subsequently attained the age of 55 years and has on May 25, 1961 not attained the age of 58 years shall, for the period he has continued to serve after attaining the age of 55 years be deemed to have been retained in service beyond the date of compulsory retirement, i.e., the age of 55 years within the meaning of the Rule aforesaid."

Further as this change in the age of retirement would have resulted in immediate retirement of all Government servants above the age of 55 years with consequent dislocation of public service, another order was issued by the Governor on the same day directing that any Government servant who had on or before the date of the order already been directed in pursuance of the proviso set out above to be retained beyond the age of compulsory retirement (or superannuation) shall be so retained in accordance with the Schedule attached to the order. This Schedule provided that-

(1) Government servants who had on May 25, 1961 crossed the age of 57 years were to be retained up to the date on which they attained the age of 58 years or up to December 31, 1961 whichever was earlier.

(2) Government servants who had on May 25, 1961 crossed the age of 55 years but had not crossed the age of 57 years were to be retained up to December 31, 1961; and

(3) Government servants who would cross the age of 55 years between May 25, 1961 and December 30, 1961 were to be retained up to December 31, 1961.

2. The effect of this order was that all Government servants who would have retired because of the change in the age of retirement after May 25, 1961 and before December 30, 1961 were retained in service up to December 31, 1961 except those who reached the age of 58 years before December 31, 1961 in which case they were to retire at the age of 58 years. In consequence of this order, the appellant who had crossed the age of 55 years before May 25, 1961 but had not crossed the age of 57 years was retired on December 31, 1961, though if the earlier rule of November 27, 1957 had continued he would have retired on December 11, 1963.

3. This reduction in the age of retirement led to a writ petition by one Ram Autar Pandey in the High Court challenging the power of Government to reduce the age of retirement. That petition was heard by a Full Bench of the Allahabad High Court and was dismissed on December 21, 1961 : (see Ram Autar Pandey v. State of U. P., ILR (1962) 1 All 798. The petition out of which the present appeal has arisen was filed on December 4, 1961 and was dismissed on March 29, 1962 following the decision in Ram Autar Pandey s case ILR (1962) 1 All 793. Thereupon there was an appeal to the Division Bench which was also dismissed on the same basis. Then followed an application for leave to appeal to this Court which was granted; and that is how the matter has come up before us.

4. Three points have been urged on behalf of the appellant in support of the appeal. It is ur