JUDGMENT

PUNCHHI, J.- Whether the plea of constructive res judicata was rightly raised against the appellant, in the facts and circumstances of this case, is the significant question, which arises for determination in this appeal by special leave, against the judgment and decree dated 13-8-1974 of the Punjab and Haryana High Court at Chandigarh, in Regular First Appeal No. 156 of 1965.

2. Supportive of the above-said appeal is a highly belated special leave petition, invited by this Court on 6-12-1990 from the appellant, against the judgment and order dated 5-2-1962 of the Punjab High Court at Chandigarh in Writ Application (Civil) No. 1061 of 1961, in circumstances which we will mention later.

3. These can conveniently be disposed of by a common order.

4. The facts involved are not in dispute. A brief resume thereof will suffice. The appellant, Nand Kishore joined service in the erstwhile Patiala State in May 1941. On the formation of Pepsu State he was taken as an Assistant with effect from 1-9-1956. On the merger of Pepsu with the State of Punjab, he was integrated as an Assistant in the Punjab Civil Secretariat at Chandigarh, in the Food Distribution Branch. Having completed ten years qualifying service he was compulsorily retired on 6-1-1961 from the service by an order in the following terms:

"ORDER OF THE GOVERNOR OF PUNJAB

Sanction is accorded under the provisions of Rule 5.32(b) of the Punjab Civil Services Rules, Volume II, to the compulsory retirement from government service of Shri Nand Kishore, Assistant Food Distribution Branch, Punjab Civil Secretariat with immediate effect.

2. He will be entitled to such proportionate pension and death-cum-retirement gratuity as may be admissible under the rules.

Chandigarh

Dated 6th January, 1961

E.N. Mangat Rai,

Chief Secretary to Govt.

Punjab"

5. The representations of the appellant to the Government and memorial to the Governor brought him no relief. Thereafter he moved the Punjab High Court in Writ Application No. 1061 of 1961 praying for quashing of the order dated 6-1-1961 retiring him compulsorily. The writ petition came up for hearing before a Division Bench consisting of Tek Chand and I.D. Dua, JJ. The impugned order of compulsory retirement was challenged by him on a variety of grounds inter alia urging that he was not governed by Rule 5.32 of the Punjab Civil Services Rules, Volume II and that rather he was governed by the new Pension Rules. All the pleas of the appellant were repelled It was factually noted by the Bench that Rule 5.32 of the Punjab Civil Services Rules, Volume II clearly contemplated the existence of power in the Government to retire a permanent servant compulsorily after 10 years of qualifying service. The writ petition was dismissed on 2-2-1962 (sic 5-2-1962) It is worth bearing in mind that the appellant did not at that stage question the validity of Rule 5.32 and the High Court too on its own did not engage itself to the question. The matter rested there.

6. The scenario changed thereafter. In Moti Ram Deka v G.M., N.E. Frontier Rly.{AIR 1964 SC 600 } this Court was called upon to consider the validity of Rule 148(3) of the Railway Rules. These Rules authorised the termination of service of the railway employee by serving him with a notice for a requisite period, or paying him salary for the said period, in lieu of notice. This Court held that a person who substantively holds a permanent post had a right to continue in service subject to two exceptions, i.e., (i) superannuation; and (ii) compulsory retirement. The second exception was affirmed by this Court with the reservation that rules of compulsory retirement would be valid if having fixed a proper age of superannuation, they permit compulsory retirement after putting in a minimum period of service. This Court observed that if the compulsory retirement permitted the authority to retire a public servant at a very early stage of his career, the question whether such a rule would be valid might have to be