The power to terminate the services of a Government servant after attaining the age of 55 years under the instructions dated 24th August 1963 could be exercised at any time between the 55th and 58th year of the Government servant, provided the requisite three months' notice was given.

Narasimham, J.

1. This is an application under Articles 226 and 227 of the Constitution against order No. 9110, dated the 1st August 1964 of the Appointment Department of the Government of Bihar (Annexure C), directing the compulsory retirement of the petitioner from Government service after the expiry of a period of three months from the date on which the order was served on him

2. The petitioners date of birth appears to be the 13th March 1908. He joined Government service in 1933 and after holding various posts was promoted to officiate as Deputy Secretary of the Legislative Department in 1962. Under the rules then in force he would have superannuated on attaining his 55th year on the 13th March 1963. The Speaker of the Legislative Assembly, under whom the petitioner was working, first wrote to the Government in his letter, dated the 23rd May 1963 (Annexure I to the counter-affidavit) that the petitioner may be given six months notice and asked to retire. Subsequently in his letter, dated the 31st May 1963 (Annexure II of the counter-affidavit), he informed the Government that he was not fully satisfied with the work of the petitioner, adding that the petitioner was unable to do that amount of work which he was required to do. After considering his report the Government issued the impugned order on the 1st August 1964, in the following terms:-

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"No. 9110. In accordance with the provisions contained in Para 2, Finance Departments Memo. No. FI-501/63-10583, dated the 24th August 1963, the Governor of Bihar is pleased to order that Shri Vishwamitra, Officiating Deputy Secretary to the Bihar Legislative Assembly, who has already attained the age of 55 years, should retire from Government service after expiry of the period of three months from the date on which this order is served on him."

3. Prior to 1963 the rule regarding superannuation of Government servants was regulated by Rule 73 (a) of the Bihar Service Code, which was as follows:-

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"73 (a). Except as provided in other clauses of this rule the date of compulsory retirement a Government servant, other than a ministerial or inferior Government servant, is the date on which he attains the age of 55 years He may be retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds, which must be recorded in writing."

But when the Government of India raised the age of retirement of Government servants from 55 to 58 years, the Government of Bihar also, with a view to fall in line with the Government of India- issued the following instructions on the 11th January 1963:-

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"(i) The State Government servants, who are due to retire after the 14th January 1963, at ages below 58 years, should be continued in service until they are 58. Also Government servants on extension of service on the 15th January 1963, should be allowed to continue in service upto the age of 58 years. Provided that a Government servant on attaining 55 years of age will have the option to retire after giving three months notice; Government will also have the powers to retire him after giving three months notice.

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On the 24th August 1963, the Government of Bihar issued the following further instructions in modification of the instructions issued on the 11th January 1963:-

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"Subject:-

-Age of compulsory retirement--Raising of.

The undersigned is directed to refer to Finance Department Resolution No. FI-5021/ 62-452-F, dated 11-1-63 on the above subject and to say that the age of compulsory retirement of State Government servants should be 58 years subject to the following exceptions:-

- (i) The existing rules under which ministerial Government servants are to be ordinarily retained in service upto the age of 60 years subject to their continuing to be efficient and physically fit will remain in force.

(ii) The age of compulsory retirement for those categories of Class IV staff who arc at present entitled to serve upto the age of 60 years shoul