PETITIONER:
STATE OF ASSAM AND ANR. ETC.
Vs.
RESPONDENT:
BASANTA KUMAR DAS ETC. ETC.
DATE OF JUDGMENT22/12/1972
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION:
1973 AIR 1252 1973 SCR (3) 158
1973 SCC (1) 461
CITATOR INFO :
F 1977 SC1517 (8)
OPN 1980 SC 563 (21)
F 1989 SC 75 (8)
ACT:
Civil Servant-Inct-ease in age of retirement on satisfaction
by-egarding efficiency and physical fitness-Right to be in
service.
Constitution of India, 1950, Art. 133-Certificate of leave
to appeal to Supreme Court granted by High Court-No mention
of clause of Art. 133 under which it was thought fit-
Liability of appeal to dismissed.
HEADNOTE:
In March 1963, the appellant-State issued a memorandum
raising the age of retirement of the State government
servants from 55 to 58. The memorandum however, stated that
no government servant would be entitled to the benefit of
the increased age unless he has been permitted to continue
in service after the age of 55 after the appointing
authority is satisfied that he is efficient and physically
fit. In the annexure to the memorandum the procedure for
finding out the efficiency and physical fitness of the
employee was laid down.
In the case of respondents BR and K, the Board constituted
to codsider their cases recommended the extension of their
service, but the Minister in charge did not agree.
In the case of respondents S and H, though the Deputy
Commissioner recommended their continuance in service, the
Commissioner, who was the appointing authority, was not
satisfied that they were fit to be continued in service and
hence they were not continued.
In the case of respondent B K, the appointing authority was
not ,satisfied with his work so as to extend his services.
The five respondents filed petitions in the High Court. The
High Court allowed the petition of BR, and following that
judgment allowed the other petitions without doing into the
facts and merits of each of those cases.
Allowing the appeals to this Court,
HELD : (1) The memorandum was a mere executive instruction
and not a rule under Art. 309. It did not confer legal
rights and no legal action can be founded on it [164C]
(2)The petitioners did not get any right to continue in
service beyond the age of 55 years as a result of the
memorandum. A government servant has no such tight beyond
the age of superannuation and if he is retained beyond that
age it is only in exercise of the discretion ,of the
Government. [165-D]
Assam v. Premadhar-, [1971] 1 S.C.R. 503 and Kailash
Chatidii v. Union of India, [1962] 1 S.C.R. 374 followed.
(3)The fact that certain persons were found fit to be
continued in service does not mean that others who were not
so found fit had been discriminated against. Otherwise, the
whole idea of continuing only efficient people in service
after 55 years becomes meaningless. [165-G]
159
B. N. Mishra v. State, [1965] 1 S.C.R. 693, followed.
Union of India v. J. N. Sinha, [1971] 82 I.T.R 561, referred
to.
(4)(a) It is true that in the case of respondents BR and
K, the Screening Board recommended their continuance and
there is no material to show why the Minister formed a
different impression about their capacity. But once it is
held that the memorandum is only an executive instruction
which confers no right on any body, the judgment of the
Minister cannot be questioned unless it could be shown that
there was mala fides, or that Minister was guided by
ulterior motives or that the decision contravenes some law.
In the present case, there is no allegation of any mala
fides on the part of any of the authorities. [161-H]
(b)The High Court erred in merely following the judgment
in the case of BR and ignoring the facts in the other cases.
It was its duty to haveconsidered the merits of each case.
[163G]
(5)The certificate of leave to appeal to this Court was
granted by the High Court without mentioning under what
particular clause or sub-clause of Art. 133 the leave was
granted. But in the present case, the fact that the leave
obtained was not a proper one is not a ground for dismissing
the appeal. A,,n objection to the certificate should be
taken by the respondent at the earliest possible moment, and
this Court is always prepared to consider the request by the
appellant for grant of ,special leave at any stage if the
circumstances of the case so requires. [168-B]
When the High Court decided these cases, the judgment of
this Court in Premadhar’s case had not be delivered.
Therefore, a substantial question of law arose for decision
in these cases, and, if the respondents had raised the point
about leave at the earliest possible time, this Court would
have been prepared to consider an oral request for special
leave by the appellant and for condonation of delay and
would have directed the appellant to file appropriate
petitions. But the #poin ‘ t was @aised after the appeals
were taken up for hearing and hence, the appellant should
not be made to suffer by the respondent’s negligence. [168D]
Sardar Bahadur S. Indra Singh Trust v. C.I.T., [1971] 82
I.T.R. 561, The Union of India v. Kishori Lal Gupta & Bros.
[1960] 1 S.C.R. 493, Shri Durga )Irasad v. The Banaras Bank
Ltd., [1964] 1 S.C.R. 475. a@rkd Bijili Cotton Mills v.
Iiidustrial Tribunal II, A.I.R. 1972 S.C. 1903 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1561 to
1563 of 1969 & 179 and 180 of 1971.
Appeals from the judgment and order dated August 19, 1968 of
the Assam & Nagaland High Court in Civil Rule No. 473, 350
and 319 of 1966.
Naunit Lal for the appellants (in all the appeals).
C. K. Daphtary and D. N. Mukheriee for respondents (in
C.As. Nos. 1561 & 1563/69 & C.As. Nos. 179 & 180/71).
D. N. Mukheriee and S. K. Nandy for respondent (in C.A.
No.
1562/69).
160
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. These five appeals by leave are by the
State of Assam against the judgment of the High Court of
Assam in five petitions filed by the respondents in the
respective appeals.
Shri Bansi Ram Das was Professor and Head of the Department
of Physics in the Government Cotton College, Gauhati. Shri
Kanak Lal Das was Professor and Head of the Department of
Philosophy. Shri Basanta Kumar Das was a Physiological
Chemist in Class I of the Assam Veterinary Service and on
the relevant date was the Deputy Director of Animal
Husbandry & Veterinary Department. Shri Khageswar Saikia
was an Upper Division Assistant in the office of the Deputy
Commissioner, Darrang Tezpur on the relevant date, and Shri
Anand Chandra Hazarika was an Head Assistant in the office
of the Deputy Commissioner, Darrang, Texpur. On 21st March,
1963 the Government of Assam issued a memorandum raising the
age of retirement of its servants from’ 55 years to 58
years. The relevant portion of the memoranduM was as
follows :
“3. No Government servant will be entitled to the benefit of
the increased age of compulsory retirement unless he has
been permitted to continue in service after the age of 55
years after the appointing authority is satisfied that he is
efficient and physically fit for further Government service.
The procedure to be followed by the appointing authorities
before they permit a Government servant to continue in
service is outlined in the Annexure……
4.Notwithstanding anything contained in the foregoing
paragraphs, the appointing authority may require a
Government servant to retire after he attains the age of 55
years on 3 (three) months’ notice without assigning any
reason.
8.Necessary amendments to the relevant rules will be
issued in due course.”
In the Annexure to this memorandum the procedure to find out
the efficiency and the physical fitness of the employee
concerned was laid down. They were to be tested as to their
efficiency by a Board consisting of the Chief Secretary, the
Secretary of the department concerned and the Head of the
Department. As regards physical fitness such persons were
to be examined by the Civil Surgeon of the, district in
which they were posted.
These five respondents were not allowed to continue in
service in accordance with this memorandum and they filed
petitions before the Assam High Court questioning the
validity of the orders
161
retiring them from service. The High Court first decided
the case of Shri Bansi Ram Das in Civil Rule No. 319 of
1966. They allowed his petition and directed him to be put
back in service to continue there till he attained the age
of 58 years. The other four petitions were allowed on the
basis of this judgment without going into the facts of each
case or their merits.
All the five officers had put forward the contention that
under terms of the memorandum dated 21-3-1963 they had a
right to continue in service even after they had completed
their 55th year. All of them also contended that they had
been picked out for special discrimination. The
Government’s reply to these contentions was that no one got
a right to continue in service after completing 55 years and
that there was no discrimination and the fact that some
officers were allowed to continue and some others who were
found not fit were not continued did not mean that there was
any discrimination.
In the case of Shri Bansi Ram Das and Shri Kanak Lal Das,
who was the petitioner in Civil Rule No. 350 of 1966 (he is
now dead and his widow is the first respondent) the Board
constituted to consider their cases, after scrutinising
their character roll and after consideration of facts
decided to recommend them for retention in service beyond 55
years. But the Minister incharge of Education made a note
as follows :
“I’ cannot agree to giving extension to Prof. Kanak Lal Das
and Prof. Bansi Ram Das. I consider them to be outmoded in
their intellectual development.”
So it can be said these cases are alike. In their cases the
contention in the Government’s counter affidavit was that
they were not found fit to continue in service after
attaining fifty five years. The Minister’s remark was also
given as another reason.
These two officers in particular, therefore, contended that
the Board constituted to consider their fitness for further
continuance in service having recommended them for such
continuance and there being no material on record on the
basis of which the Minister could pass the order above
extracted. the order retiring them was invalid. It is true
that the Screening Board had recomended the continuance of
these two officers in service after their attaining the age
of 55. There is also no material to show that exactly was
responsible for the impression which the Minister formed
about the capacity of these two officers. But once it is
held that the memorandum of 21-3-63 is merely an executive
instruction which confers no right on any body, the judgment
of the Minister cannot be questioned unless it could be
shown that there’ were any mala Ides. There was no
allegation even of any malafides. This Court would not go
into the reasons which weighed 12-L631SupCI/73
162
with the, Minister in coming to the decision, unless it
could be said that he was guided by ulterior motives or the
decision contravenes some law. The decision of the Minister
cannot, therefore, be questioned.
The cases of the other three officers are different because
in their cases there is no recommendation of the Board on
record showing that their continuance had been recommended.
In Civil Appeal 179 and 180 though the Deputy Commissioner
had recommended their continuance, the Commissioner had
taken a different view. In the case of Shri Khageswar
Saikia the Commissioner wrote as follows :
“I have given careful consideration to this case and feel
that it will not be desirable to grant extension to Shri
Khageswar Saikia beyond 55 years. The reports for 1964 and
1966 recorded by different Deputy Commissioners are hardly
favourable for his further retention.
On an overall consideration I regret my inability to accept
your recommendation for giving any extension to Shri
Khageswar Saikia. He should retire on attaining the age of
55 years.”
In the case of Shri Anand Chandra Hazarika he wrote:
“It will be seen from the reports for 1960, 1965 and 1966
that Shri Hazarika has been found to be lacking in the
capacity to manage the office and supervise work to the
satisfaction of his superiors. In 1960 the Deputy
Commissioner commented that he should exercise more
supervision over the junior hands. In 1965 another Deputy
Commissioner commented on his lack of supervisory capacity
and referred to his identification with some groups in the
office. He also recorded that Shri Hazarika was slow in
carrying out orders. In 1966 the same Deputy Commissioner
repeated his adverse comments about lack of supervision. In
the circumstances, it seems to me that the public interest
will not be served by giving extension to Shri Hazarika as
he will invertably hold a key supervisory post despite his
lack of supervisory ability.
As regards Shri Narasimhan’s report I may state that this
report was received without being called for and in view of
the consistent adverse remarks recorded for 1960, 1965 and
1966 it is difficult to believe that Shri Hazarika could
have overnight become an excellent R.S., improved the
working of the office and proved as
163
an asset to the Deputy Commissioner. I am afraid Shri
Narasimhan’s superlatives are based on an inadequate
assessment for too short a period. I do not propose to
comment on the preparation of a new Character Roll by Shri
Hazarika containing uncertified remarks; I would, however,
invite Government’s attention to the Deputy Commissioner’s
letter in this regard.
I recommend that Shri Hazarika should be asked to retire
from service on attaining 55 years of age.”
In the case of Shri Saikia and Shri Hazarika the
Commissioner, who was the immediate superior officer of the
Deputy Commissioner, who recommended their case, was not
satisfied that they were fit to be continued in service
beyond 55 years and he has given very valid reasons for not
recommending their continuance in service. In Saikia’s
case, in their counter affidavit, the Government have
pointed out that the Deputy Commissioner’s recommendation
was only a recommendation which cannot bind the Commissioner
or the State Government and as the Commissioner did not find
him suitable and did not allow him to continue beyond 55
years of age, he had to retire at the age of 55 years and
there was no discrimination or favouritism or arbitrary
action on the part of the Government. In Hazarika’s case
the Government, in their Counter affidavit, pointed out that
though the Deputy Commissioner recommended his case for
extension of service, the Commissioner did not do so and the
Government had to decide the matter not in the light of the
recommendation of the Deputy, Commissioner but in the light
of the merits of the case judging from the entire material
on record, that as he was not found efficient and suitable
by the appointing authority, namely, the Commissioner, he
was not allowed to continue beyond 55 years of age and that
there was no discrimination or denial of equal protection of
law nor any infringement of. any legal right of the
petitioner.
The High Court has ignored these facts and simply followed
its judgment in the case of Bansi Ram Das in these two cases
also. It was its duty to have considered the merits of each
case and it had failed to do so. It is obvious that these
two respondents were found not suitable for being continued
in service.
We shall next take up the case of Basanta Kumar Das. In his
case also in their counter affidavit the Government had
pointed out that the appointing authority was not satisfied
with his work so as to extend, his services beyond the age
of 55 years. It was specifically contended that he was not
entitled to automatic extension till 58 years only because
the Medical Board and the ‘Screening Board found him
efficient. It was further contended
164
that as Deputy Director he was not able to manage his work
quite well. It was stated that with regard to the cattle
feed deals, there were large number of anomalies including
charges of questionable conduct, and that as ordered by the
Minister, the Secretary had to’ go to Gauhati to look into
the anomalies and to set things right, and that the
Government did not see much of an advantage in extending his
services beyond the age of 55. There was no reply, filed by
the respondent to this statement on behalf of the Government
and the statement, therefore, stood unchallenged. In the
circumstances it is not possible to say that the Government
was not justified in refusing to continue him in service
beyond his 55th year.
We shall now deal with the contentions raised by all the
five respondents. We must first of all point out that the
memorandum dated 21-3-63 is, a mere executive instruction
and not a rule made under Article 309 of the Constitution.
It did not confer any legal rights on the persons covered by
it. No legal action can be founded on it. A similar view
has been taken in a recent decision of this Court in Assam
v. Pramadhar(1).
In Kailash Chandra v. Union of India(1) this Court had to
consider the effect of Rule 2046(2) (a) of the Railway
Establishment Code, which reads as follows :
“Clause (a)-A ministerial servant who is not governed by
sub-cl.(b) may be required to retire at the age of 58 years
but should ordinarily be retained in service if he continues
to be-,efficient up to the age of 60 years. He must not be
retained after that age except in very special circumstances
which must be recorded in writing and with the sanction of
the competent authority.
This Court observed:
“This intention is made even more clear and beyond doubt by
the use of the word “ordinarily”. “Ordinarily means “in the
large majority of cases but not invariably”. This itself
emphasises the fact that the appropriate authority is not
bound to retain the servant after he attains the age of 55
even if he continues to be efficient. The intention of the
second clause, therefore, clearly is that while under the
first clause the appropriate authority has the right to
retire the servant who falls within clause (a) as soon as he
attains the age of 55, it will, at that stage, consider
whether or not to retain him further. This option to retain
for the further period of five years
(1) [1971] 1 S.C.R. 503. (2) [1962] 1 S.C.R.
374.
165
can only be exercised if the servant continues to be effi-
cient; but in deciding whether or not to exercise this
option the authority has to consider circumstances other
than the question of efficiency also; in the absence of
special circumstances he “should” retain the servant; but
what are special circumstances is left entirely to the
authority’s decision. Thus, after the age of 55 is reached
by the servant the authority has to exercise its discretion
whether or not to retain the servant; and there is no right
in the servant to be retained, even if he continues to be
efficiency.”
This was a case where the rule was statutory. It need
hardly be emphasised that what applies to a statutory rule
applies with greater force to mere executive instructions.
This is a complete answer to the claim of the respondents in
this case that as a result of the memorandum of 21-3-63 they
got a right to continue in service beyond the age of 55
years. A Government servant has no right to continue in
service beyond the age of superannuation and if he is
retained beyond that age it is only in exercise of the
discretion of the Government.
In B. N. Mishra v. State(1) it was held that
“Government was not obliged to retain the services of every
public servant for the same length of time. The retention
of public servants after the period of retirement depended
upon their efficiency and the exigencies of public service.
It cannot be urged that if Government decides to retain the
services of some Government servants after the age of
retirement it must retain every Government servant for the
same length of time. The retention of public servants after
the period of retirement depends upon their efficiency and
the exigencies of public service.”
This again is a complete answer to the contention of the
respondents that they had been discriminated against. The
fact that certain persons were found fit to be continued in
service does not mean that others who were not so found fit
had been discriminated against. Otherwise the whole idea of
continuing only efficient people in service even after they
had completed 55 years becomes only meaningless. In this
connection we may refer to certain observations of this
Court in, Union of India v. J. N. Sinha(2) as follows :
“There is no denying the fact that in all organizations and
more so in government organisations, there is
(1) [1965] 1 S.C.R. 693.
(2) [1971] I S.C.R. 791 at 795.
166
good deal of dead wood. It is in public interest to chop
off the same.”
With respect we agree with this observation. It is also to
be noticed that there is no allegation of any mala fides on
the part of any of the authorities who had to deal with
their cases, alleged or proved in any of the cases.
We thus come to the conclusion that there are no merits in
any of the contentions put forward on behalf of the
respondents, in these five appeals. This, however, leaves
the question regarding the certificate granted by the High
Court of Assam in the case of three respondents in three
civil appeals Nos. 1961 to 1963 of 1969.
The certificates simply say “Leave to appeal to Supreme
Court is granted” but do not mention under what particular
clause or sub-clause of Art. 133 leave was granted. Based
on the decision of this Court in Sardar Bahadur S. Indra
Singh Trust v. C.I.T.(1) where it was stated:
“In that certificate all the we find is a held statement by
the High Court that the case is a fit one for appeal to this
Court. This Court has ruled that such a certificate is an
invalid one and an appeal brought on the strength of such a
certificate is not maintainable.”
Mr. Daphthary who appeared for the respondent Bansi Ram Das
urged that the appeal should be dismissed on this simple
ground. If this contention is to be up-held it will apply
to the other two cases also. On behalf of the State of
Assam it was contended that this point was not raised till
the appeals were taken up for’ argument, that they were
taken by surprise and they would be prepared to file a
petition for special leave if that was considered’
necessary, if the appeals were adjourned by a week. In the
very case relied upon by Mr. Daphtary the appellant filed a
special leave application and after hearing the parties the
Court came to the conclusion that the leave asked for should
be granted. We may now consider some of the earlier
decisions of this Court on this point. In The Union of
India v. Kishori Lal Gupta & Bros(2) special leave to appeal
from the judgment of a single judge of the High Court had
been obtained without first appealing to the appellate
blench of the High Court. This Court held that the leave
could have been revoked if the objection was taken at the
earliest opportunity, and an objection to the leave so
granted and an application for revocation of leave made
after inordinate delay at a later stage would prejudice the
appellant, for it the objection had
(1) [1971] 82 I.T.R. 561.
(2) [1960] 1 S.C.R. 493.
167
been taken at the earliest point of time the appellant would
have the opportunity to prefer a Letters Patent Appeal and
the appellant cannot be made to suffer for the default of
the respondent.
In Shri Durga Prasad v. The Banaras Bank Ltd.(1) the High
Court had certified the case under Art. 13 3 (1 ) (a) of the
Constitution for appeal to this Court. It was urged during
the hearing of the appeal on behalf of the other side that
the appeal was not competent on the ground that the High
Court had no jurisdiction to grant the certificate under
Art. 1 3 3 ( 1 ) (a) of the Constitution without certifying
that the appeal involved some substantial question of law.
This Court held that the appeal could not be entertained as
it was a case of a judgment of the High Court which affirmed
the judgment of the single Judge and the High Court had not
certified that the decision involved any substantial
question of law. The counsel for the appellant, however,
requested that in any event special leave to appeal under
Art. 136 of the Constitution be granted. But having regard
to all the circumstances this Court decided that it was not
a fit case for granting leave to appeal.
In Civil Appeal No. 578 of 1963, decided on 23rd July, 1965
,this Court, though it held that the certificate granted by
the High Court was incompetent, heard the Counsel for the
appellant, who made an oral request for grant of special
leave undertaking to file a petition supported by an
affidavit and by an application for condonation of delay
immediately. This Court thought that it was a fit and
proper case and that special leave should be granted because
important questions of law had to be decided. It directed
the appellant to file the necessary special leave petition
within a’ week.
In the latest decision of this Court in Bijili Cotton Mills
v.Industrial Tribunal II(2) , to which one of us was a
party, it was held that this Court under Art. 136 is fully
competent to entertain even an oral prayer for grant of
special leave and condonation of delay and if the cause of
justice so demands, to grant the same and to consider the
special leave to appeal on merits. On consideration of all
the circumstances of that case it was held that it was fit
for granting special leave to appeal and for condoning the
delay. The decision in C.A. 578 of 1963 was cited with
approval. These cases establish that the powers of this
Court to grant special leave under Article 136 are very wide
and that it would be prepared to exercise it at any stage in
a power case. Furthermore, it would not allow an objection
to the nature of the certificate to be taken if it is done
at a late stage making it impossible for the
(2) A.I.R. 1972 S.C. 1906
168
appellant to resort to the proper remedy as he could have
done if the objection had been taken at an early stage.
This Court does not simply dismiss an appeal on the ground
that the leave obtained was not a proper one and leave the
matter, to rest there. It is always prepared to consider
the request for grant of special leave at any stage if the
circumstances of the case require. An objection to the
certificate should be taken at the earliest possible moment
and the respondent’s failure to do so would not be allowed
to prejudice the appellant and he would not be made to
suffer for the failure of the respondents. In this case
also if the objection had been taken at the earliest point
of time the appellant could have applied for special leave
and in the circumstances of this case we would have been
prepared to grant special leave. When the High Court
decided these cases the judgment of this Court in Assam v.
Premadhar had not been delivered. Therefore, a substantial
question of law arose for decision in these cases. If the
respondents had raised the point at the earliest possible
time we would have been prepared to consider an oral request
for special leave and for condonation of delay and to direct
the appellants to file petitions for this purpose. But as
it has been done only at the last moment after the appeals
were taken up for hearing we are of opinion that the
appellants should not be made to suffer by the
respondents’negligence. We, therefore, hold against this
objection.
In the result all the five appeals are allowed and the
judgments of the Assam High Court are set aside. We,
however, make no
order as to costs.
V.P.S.
Appeals allowed.
169