JUDGMENT

SARKARIA J.:— This appeal on certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the appellants writ petition under Art. 226 of the Constitution.

2. The appellant joined the service of the State Government as a subordinate Judge in the year 1936. On promotion, he was confirmed as District and Sessions Judge with effect from December 2, 1957. The appellant attained the age of 55 years on August 22, 1963 which was the age of superannuation according to Fundamental Rule 56 (Ch. IX) governing the Civil Services of the State. But prior to that, on February 28, 1963 by, a Memorandum No. 433-259- 1 (iii)/63, the State Government raised the age of compulsory retirement for government servants to 58 years subject to certain exceptions. The material part of the memorandum dated February 28, 1963, read as follows:

"5. Notwithstanding anything contained in the foregoing paragraphs, the appointing authority may require a Government servant to retire after he attains the age of 55 years on 3 months notice without assigning any reasons...........

A Government servant may also after attaining the age of 55 years voluntarily retire after giving 3 months notice to the appointing authority.

6. These orders will have effect from the 1st March 1963.

7. Necessary amendments to the State Civil Service Regulations will be issued in the due course."

3. Thereafter,by Government Notification dated November 29, 1963, F. R. 56 was amended on December 6, 1963 (sic) in exercise of the power under the Proviso to Article 309 of the Constitution, raising the age of the compulsory retirement of the State Civil Servants to 58 years with effect from March 1, 1963 but the clause in the aforesaid Memorandum, empowering the Government to retire servants above the age of 55 years by giving them three months, notice was not incorporated in the Rule.

4. In the view of this memorandum, the appellant was allowed to continue in office after he had attained the age of 55 years.

5. On September 11, 1963, the respondent passed an order retiring the appellant from service with effect from December 31, 1963. To impugn this, order, the appellant filed a Writ Petition in the High Court Art. 226 of the Constitution on the ground that F. R. 56 as it stood after the amendment of November 29, 1963, (published on 6-12-1963) did not contain any provision authorising the respondent to retire the appellant after the attainment of 55 years of age and that his retirement was contrary to Article 311 (2) and Art. 14 of the Constitution. The High Court dismissed the writ petition by its judgment dated April 30, 1964.

6. The appellant came up in appeal to this Court. During the pendency of that appeal Saksena attained the age of 58 years. By its judgment 23-1-1967 this Court quashed the impugned order of retirement holding that:

"The appellant will be deemed to have continued in the service of the Government in spite of that order. As, however, the appellant attained the age of 58 years, in August, 1966, it is not possible now to direct that he should be put back in service. But he will be entitled to such benefits as many accrue now to him by virtue of the success of the writ petition. The appellant will get his costs from the State throughout."

7. Before the decision of that appeal (Civil No. 670 of 1965) however, the Governor had promulgated the Madhya Pradesh (Age of Compulsory Retirement) Rules, 1965 under Art. 309 of the Constitution. These Rules were published in the Government Gazette of July 17,, 1965. By deeming clause, these Rules were made effective from March 1, 1963. The age of retirement was thereby raised to 58 years and under Rule 6, thereof, the appointing authority was empowered to retire a Government Servant on his attaining the age of 55 years on 3 months, notice without assigning any reason. By Rule 8, the aforesaid memorandum, dated February 28, 1963, was canceled and it was provided that not-withstanding the cancellation of that memoran