Judgment

GROVER, J. :- This is an appeal by certificate from a judgment of the Delhi High Court dismissing a petition under Art. 226 of the Constitution filed by the appellant challenging a notice dated August 22, 1966 in respect of his retirement and also a notification dated December 3, 1966 declaring that he had been retired from service.

2. The appellant joined service in class III in the Railway Audit in the year 1927. He was promoted to the higher class and was ultimately appointed substantively to the post of Assistant Audit Officer in the Northern Railway Audit Office in August 1959. In January 1963 he was made Officiating Deputy Chief Auditor in the same Railway. However, on July 4, 1964 he was reverted from that post to that of Divisional Audit Officer. On March 10, 1965 he was reverted to his original substantive post, namely, that of the Assistant Audit Officer. It is unnecessary to give details of other facts and events including those which were alleged in the writ petition filed in the Delhi High Court on August 30, 1965 (C. W. Petition No. 509-D of 1956) which is still pending.

3. By means of a notice dated August 22, 1966 issued under the signature of the Chief Auditor, Northern Railway, under clause (j) of Rule 56 of the Fundamental Rules as substituted by the Fundamental Rules (6th Amendment) 1965 by means of a notification dated July 21, 1965, the appellant was informed that he would retire from service with effect from November 25, 1966 on which date he would be attaining the age of 55 years. The last part of the notice was as follows :-

"This has also been approved by the Comptroller and Auditor General of India".

In the Gazette of India dated December 3, 1966 it was notified as follows :

"Shri Krishena Kumar a Permanent Assistant Audit Officer has retired from Government service with effect from the afternoon of 24th November 1966".

Thereafter the appellant filed a writ petition in the High Court under Article 226 of the Constitution challenging the order of his retirement.

4. A number of contentions were raised before the High Court. we need mention only those which have been pressed before us. The first is that the notice dated August 22, 1966 and the notification dated December 3, 1966 had not been issued by a competent authority. The second point raised was that both the notice and the order of retirement were invalid as no opinion in fact was formed by the competent authority to the effect that it was in the public interest to retire the appellant under clause (j) of Fundamental Rule 56. One or two other contentions were mentioned but not seriously pressed and therefore they require no examination.

5. For disposing of the first contention it is necessary to refer to clause (j) of Fundamental Rule 56 which is in the following terms :

"Notwithstanding anything contained in this Rule, 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".

Note I. Appropriate authority means the authority which has the power to make substantive appointment to the post or service from which the Government Servant is required or wants to retire".

The case of the appellant was that it was only the Comptroller and Auditor General who was the appropriate authority within the meaning of Note I and who alone was competent to take action and make order under clause (j) of Fundamental Rule 56. Since it was the Chief Auditor who had issued the notice the same was invalid and the subsequent notification relating to appellant s retirement would consequently also become invalid. The High Court considered the various provisions on which reliance was placed particularly those relating to the appointing authority as defined in the Central Civil Services (Classification, Control and Appeal) Rules as also R. 5 of those Rules providing for protection of rights and pri