An order of retirement passed without giving the person concerned a reasonable opportunity to show cause is invalid.

Judgment

J. C. SHAH

( 1 ) THE first respondent who holds the degree of M. B. B. S. of the Punjab University, the Diploma in Gynaecology and Obstetrics from the Madras University and the Diploma in Obstetrics from the Royal College of Obstetricians and Gynaecologists of London was appointed on 12/06/1938, an Assistant Surgeon in the Orissa Medical Service. At the time of her appointment by the Orissa Government, the first respondent declared that her date of birth was 10/04/1910. The first respondent claims that, her claim was supported by documentary evidence tendered by her father which was verified and accepted and the birth date was recorded in the Civil List and in the History of Service of Gazetted Officers of the Government of Orissa maintained by the Accountant-General of the State. In the normal course the first respondent would have been due for superannuation on April 10, l965 after completing the age of 55 years. But in consequence of a notification of the State of Orissa, dated May 21, l963, the age of superannuation was raised from 55 to 58 years in respect of all Government servants who were to retire after 1/12/1962.

( 2 ) SOME anonymous letters were addressed to the Accountant-General that the first respondent had misstated her age when she was admitted to service of the State. After an inquiry the first respondent was required to show cause why her date of birth should not be accepted as 4/04/1907. The first respondent submitted that her date of birth was correctly recorded and that certain school record relied upon by the State "was erased, altered or overwritten. By letter, dated 27/06/1963 the Government of Orissa determined the date of birth of the first respondent as 16/04/1907, and declared that she should be deemed to have retired on 6/04/1962, subject, however, to extension of service granted from 16/04/1962 till the afternoon of 15/07/1963. By this order the first respondent who should have on her case retired on 10/04/1968, was deemed to have retired on 15/07/1963.

( 3 ) THE first respondent then applied to the High Court of Orissa for a writ declaring that the order of retirement passed by the state Government was contrary to law and against the Constitution and principles of natural justice, and that in any event the order was passed maliciously by the Government to the prejudice of the first respondent, and for a writ of mandamus or certiorari quashing the order passed on 27/06/1963 and declaring the respondent to be entitled to continue in service till April 10, l968. The first respondent claimed that the order made by the State amounted to an order of compulsory retirement contrary to the rule. governing her service and was violative of the principles of natural Justice, that the same was arbitrary and mala fide, that the order of retirement amounted to punishment involving consequences such as loss of pay, status and deprivation of service and since it was not made in consonance with Art. 311 of the Constitution, the order was liable to he quashed as invalid.

( 4 ) THE High Court held that the order declaring the first respondent to be super annuated on 16/04/1962 on the footing that her date of birth was 16/04/1907 amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to remove within the meaning of Art. 311 of the Constitution, and since the first respondent was not given a reasonable opportunity of showing cause against the action proposed to be taken, in regard to her the order was invalid. The High Court did not express any opinion on the plea of mala fides as it raised questions of fact which could not in the view of the Court appropriately be determined in a petition under Art. 226 of the Constitution. With certificate granted by the High Court this appeal has been preferred by the State of Orissa.

( 5 ) COUNSEL for the State raised two contentions in support of this appeal:

(L) that the pe