JUDGMENT

GOSWAMI, J. :— The appellant, Shri Dinesh Chandra Sangma, was a District and Sessions Judge at Dibrugarh in the State of Assam. He attained the age of 50 years on February 29, 1976. After serving for about twenty years under the Government, on account of certain domestic troubles, he did not want to continue in service after his attainment of 50 years of age. The appellant, therefore, served a notice on the Government under fundamental Rule 56 (c) as amended by the Governor of Assam under Art. 309 of the Constitution by a notification dated 22nd July 1975. By this notice the appellant formally intimated to the Government that he "propose (d) to voluntarily retire from the service" and requested the Government to treat that as a formal notice under F. R. 56. The appellant also indicated in his letter that although he served the requisite three months notice he proposed to make over charge by the afternoon of 2nd August, 1976. On July 1, 1976, the Governor of Assam by a notification of that date was "pleased to allow Shri D.C. Sangma to retire from this State Government Service with effect from 2nd August, 1976 (afternoon)". The High Court also allowed the appellant to go on one months leave preparatory to retirement with effect from 2nd July, 1976, on which date he relinquished his charge of office.

2. Meanwhile there were some quick developments at the Governments end. The Government sought to retrace its steps and passed an order on 28th July, 1976, countermanding its earlier order of July 1, 1976, allowing him to retire from service with effect from 2nd August, 1976. Accordingly on 31st July, 1976, the High Court, also, squaring with the Governments order of 28th July, 1976, transferred the appellant from Dibrugarh to Dhubri and asked him to join there "immediately after the expiry of his leave".

3. The appellant did not join an Dhubri as ordered by the High Court since, according to him, he voluntarily retired from service on and from 2nd August, 1976, under R. 56 (c) of the Fundamental Rules.

4. The appellant made several representations to the High Court and to the Government without success. While the Government by a letter dated 4th December, 1976, declined to recall the order of revocation, the High Court by a letter of 7th December, 1976, directed the appellant to join his post at Dhubri within ten days on pain of disciplinary action. The appellant was thus obliged to approach the High Court on the judicial side under Art. 226 of the Constitution for a writ of certiorari to quash the order of Government of 28th July, 1976, and the High Courts order dated 31st July, 1976, passed on the administrative side.

5. The High Court dismissed the appellants application holding that F. R. 56 (c) "is subject to compliance with Cl. (3) of R. 119 of DISI Rules, 1971". Since the Government revoked the earlier permission granted by it to the appellant to retire from service, the appellant, according to the High Court, could not voluntarily retire and his refusal to join the service amounted to abandonment of service within the meaning of R. 119 (3) read with Expl. 2 of the Defence and Internal Security of India Rules. It is in this view that the High Court held that the Government was competent to revoke its order and thus to continue the appellant in service.

6. It is submitted by Mr. Niren De on behalf of the State that R. 119 of the Defence and Internal Security of India Rules, 1971 (briefly the DISI Rules) is super-imposed on F. R. 56 (c). It is, therefore, impermissible in law for a Government servant to voluntarily retire under F. R. 56 (c) without written permission from the Government, says the counsel. Mr. De further submits that since the effective date of retirement was 2nd August, 1976, it was open to the Government to revoke the permission earlier accorded to the appellant to retire voluntarily from service on his attainment of the age of 50 years by giving three months notice to the Government. He concedes that bu