JUDGMENT

RAY, C.J.I. :—This appeal is by certificate from the judgment dated 26 October 1968 of the Judicial Commissioner for Manipur.

2. The appellant by a writ petition challenged the order of respondent No. 1 by which the appellant was compulsorily retired.

3. The Judicial Commissioner dismissed the writ petition of the appellant.

4. The appellant was born on 1 January 1911. He joined the erstwhile State of Manipur as a junior clerk in 1935. Though he was not a Law Graduate, he rose to become a permanent Puisne Judge in Manipur State Chief Court with effect from 5 October 1949. After the Government of India took over the administration of Manipur the appellant was appointed as a Subordinate Judge with effect from 25 January 1950 on a temporary basis. On the enactment of Manipur Courts Act 1955 the Court of Subordinate Judge was established on 1 March, 1956. The appellant was appointed as the Judge of that Subordinate Court from that date.

5. The appellant did not earn good reports from superior officers. He was reverted to the post of Subordinate Judge.

6. The appellant was served with a notice dated 30 June 1966 that he was required to retire from Government service with effect from 1 October 1966 in pursuance of the directions of the President in Paragraph 6 of the Government of India Decision No. 23 noted below Fundamental Rule 56.

7. The above Decision No. 23 was contained in the Memorandum of the Government of India, Ministry of Home Affairs dated 30 November 1962. The Decision came into force on 1 December 1962. Under Paragraph 6 of the Decision the appointing authority was empowered to require a Government servant to retire after he had attained the age of 55 years on three months notice without assigning any reason. This provision was really intended to retire an officer who had completed 30 years qualifying service. The purpose of the provisions was to weed out unsuitable employees after they attained the age of 55 years.

8. The Government Decision No. 23 below Fundamental Rule No. 56 which came into force on 1 December 1962 as aforesaid was substituted by new Rule on 21 July 1965. The new rule provided that if the appropriate authority is of the opinion that it is in public interest to do so, he has the absolute right to retire any Government servant after he attained the age of 55 years with notice of not less than three months.

9. The appellant on receiving the notice for retirement prayed for his being retained in service after the age of 55 years in public interest. The representation of the appellant was rejected. It is in this background that the appellant filed the writ petition.

10. The principal contention of the appellant was that the impugned order of compulsory retirement was null and void ab initio because the Fundamental Rule 56 at the material time contained no reservation of any power in the appointing authority to retire him without any reason on three months notice after the age of 55 years. Emphasis was placed by counsel on the fact that the impugned order was made expressly under the authority of Government of India Decision No. 23 below Fundamental Rule 56 and this Decision was not subsisting at the time of the impugned notice. It was also contended that the Government Decision was not incorporated in Fundamental Rule 56 and therefore it amounted to a mere executive instruction and not a rule within the meaning of Article 309. The appellant also contended that in substance the compulsory retirement was removal under Article 311.

11. Compulsory retirement is not a punishment. There is no stigma in compulsory retirement. See Tar Singh v. State of Rajasthan, 1975 (3) SCR 1002.

12. It is also the view of this Court that if power can be traced to a valid power the fact that the power is purported to have been exercised under non-existing power does not invalidate the exercise of the power. See Hazari Mal Kuthiala v. Income-tax Officer, Special Circle Ambala Cantt 41 ITR 12 and Hukumchand Mills Ltd. v. State