Judgment

CHANDRACHUD, J. :- Born on July 15, 1910 appellant attained the age of 55 on the corresponding date in 1965. He hoped to continue in the service of the respondent - Union of India - until attaining the age of 58, but on July 22, 1965 while he was holding the post of Assistant Inspecting Commissioner Income-tax, Cuttack, he received a notice dated July 15, 1965 compulsorily retiring him from service with effect from October 21, 1965. He filed in the High Court of Orissa a writ petition challenging that notice but failed. The High Court, however, granted, him leave to appeal to this Court.

2. First, we will notice the provisions on which the appellant bases his challenge to the order of compulsory retirement.

3. Originally, Rule 56 of the Fundamental Rules read thus : "Except as otherwise provided in the other clauses of this Rule the date of compulsory retirement of a Government servant, other than a ministerial servant, is the date on which he attains the age of 55 years". On November 30, 1962 the Government of India, Ministry of Home Affairs, issued an office Memorandum under which the age of compulsory retirement of Central Government servants was raised from 55 yo 58 years; subject to the three exceptions mentioned in paragraph 2 thereof. Paragraph 6 of the Memorandum provided :

"Notwithstanding anything contained in the forgoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months notice without assigning any reason. This will be in addition to the provisions already contained in R. 2 (2) of the Liberalized Pension Rules 1950 to retire an officer who has completed 30 years qualifying service and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may, after attaining the age of 55 years, voluntarily retire after giving three months notice to the appointing authority."

The Memorandum was to take effect from December 1, 1962.

4. On July 21, 1965 Fundamental Rule 56 was amended by the Sixth Amendment so as to incorporate, with modifications, the provisions of the aforesaid Office Memorandum Rule 56 (a) of the Fundamental (Sixth Amendment) Rule, 1965 says : "Except as otherwise provided in this Rule every Government servant shall retire on the day he attains the age of fifty eight years". A number of exceptions are engrafted on this rule, relevant amongst them being the one contained in sub-rule (j). That exception reads thus :

"Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of fifty five years by giving him notice of not less than three months in writing."

5. In the High Court the order of compulsory retirement was challenged on two grounds, one of them being that the Office Memorandum and the Sixth Amendment to Fundamental Rules were void as being violative of the guarantee contained in Article 311 (2) of the Constitution. The High Court rejected that contention by a common judgment dated September 19, 1966, governing the case of the petitioner and of one Batahari Jena. The contention of the latter in his petition was that a Resolution dated May 21, 1963 and a notification dated February, 6, 1964 of the Government of Orissa, on the basis of which he was retired compulsorily were void as offending Art. 311 (2). In an appeal filed by Batahari Jena (1971 2 SCC 232) this Court upheld the validity of the Resolution and the notification. As the office Memorandum dated November 30, 1962 and Rule 56 (a) of the Fundamental (Sixth Amendment) Rules, 1965 are in terms similar to the resolution and the notification impugned in Batahari Jena s case, learned counsel for the appellant did not, rightly, challenge the constitutional validity thereof.

6. The first of the three points urged before