Judgment

RAY, J.: These three appeals by certificate are against the judgment dated 28th March, 1969 passed by the High Court for the State of Assam and Nagaland holding by a majority judgment that the three main respondents in the three appeals, namely, Premadhar Baruah, Rashadhar Bora and Premadhar Dutta are deemed to have continued in service of the Government and the orders terminating extension of service after attaining the age of 55 on three months notice pursuant to paragraph 4 of the Memorandum dated 21st March, 1963 are bad in law.

2. On 21st March, 1963 the Assam Government issued a memorandum which was contained in 7 paragraphs. In paragraph 1 of the memorandum it was stated that it was decided that the age of compulsory retirement of State Government servants should be 58 years. In paragraph 2 of the memorandum it was stated that the decision would apply to all Government servants who would retire on or after 1st December, 1962. Government servants who were on leave preparatory to retirement on 1st December, 1962 would also be entitled to this benefit but Government servants who were on refused leave from a date prior to 1st December, 1962 would not be entitled to the benefit nor would the benefit apply in case of Government servants who reached the age of superannuation on a date prior to 1st December, 1962 having been allowed extension of service. In paragraph 3 of the memorandum it was stated that no Government servant would be entitled to the benefit of the increased age of compulsory retirement unless he had been permitted to continue in service after the age of 55 years after the appointing authority was satisfied that he was efficient and physically fit for Government service. In paragraph 4 of the memorandum it was stated: "Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attained the age of 55 years on three months notice without assigning any reason".

3. The respondent Premadhar Baruah was born on 1st January, 1913. He was appointed as a typist in the employment of the Government on 18th August, 1941. On 6th may, 1946 he was confirmed as an Assistant Auditor. On 1st April, 1950 he was confirmed as Auditor Local Accounts. Under Fundamental Rule 56 (a) his date of retirement would be 1st January, 1968 on attaining the age of 55 years. On 21st December, 1967 there was an order asking respondent Premadhar Baruah to continue till further orders.

4. On 2nd April, 1968 the Government issued another memorandum which was contained in three paragraphs. In the first paragraph it was stated that the Government had decided that the age of compulsory retirement of State Government servants should be 55 years as laid down in fundamental Rule 56 (a) discontinuing the benefit of raising the age of superannuation to 58 years as laid down in the office memorandum dated 21st March, 1963. In the third paragraph it was said that this decision would apply to all Government servants who would retire on or after 30th September, 1968 and Government servants who were already on extension beyond 55 years of age should be served with a three months notice without assigning any reason as envisaged in the Government Order dated 21st March, 1963 to retire on 30th September, 1968.

5. Thereafter on 7th May, 1966 notice was given by the Government to respondent Premadhar Baruah. The notice was as follows:-

"No. VI/1/68-69-13 Dated, Gauhati,the

7th May, 1968.

To

Sri Premadhar Baruah,

Designation - Auditor, Local Accounts,

Address - Gauhati.

In pursuance of office memorandum No. AAP 217/62/15 dated 21-3-1963, read with O. M. No. APP. 126/67/64 dated 2-4-1968, you are hereby requested to take notice that you shall not be retained in service beyond 30-9-1968.

This may be treated as a notice under para 4 of O. M. No. APP. 217/62/15, dated 21-3-1963.

Sd/- J. Sarmah,

Designation, Examiner of

Local Accounts, Gauhati,

Address, Gauhati.

6. On these allegations respondent