- (1.) This is an appeal by special leave of this court. On August 25, 1929 Padma Ram Borah, respondent before us, was appointed lower division assistant in the office of the Registrar, Joint Stock Companies, Assam. The office was situated at Shillong and the respondent was appointed first as a probationer. After the expiry of the probationary period, he was confirmed in service. Later he was promoted to the post of an upper division assistant and ultimately on May 1, 1953 he was appointed superintendent in the office of the Excise Commissioner, Shillong. He was born on January 1, 1906 and was due to superannuate on attaining the age of 55 from January 1, 1961. It appears that the respondent applied for leave preparatory to retirement for four months from September 1, 1960. He did not however actually go on leave till December 22, 1960 on which date an order of suspension was passed against him as per notification No. 4/60/42 which was in the following terms: "Shri P. R. Borah, Superintendent of the office of the Commissioner of Excise, Assam is placed under suspension with effect from the date of this order till departmental proceedings to be drawn up against him, are finalised." A copy of the notification was sent to the respondent with a memo which stated that as the respondent was due to retire with effect from January 1, 1961 his services would have to be extended beyond that date till the completion of the departmental proceedings and necessary orders in this respect would be issued in due course. The case of the State of Assam, appellant before us, is that on December 22, 1960 the respondent left the office without obtaining any orders. On January 6, 1961, a second notification. No. 229/59/16 was issued by the appellant. This notification said: "The term of the services of Shri P. R. Borah, Superintendent (under suspension) of the Office of the Commissioner of Excise, Assam is extended for a period of 3 (three) months with effect from the 1st January 1961 or till the disposal of the departmental proceedings, whichever is earlier." A copy of this notification was also sent to the respondent. Apparently, the departmental proceeding against the respondent was not disposed of within the period of three months mentioned in the notification, and that period came to end on March 31, 1961. On May 9, 1961 a third notification bearing No. 229/59/ 30 was issued and this notificationsaid: "The term of the services of Shri P. B. Borah, superintendent (under suspension) of the Office of the Commissioner of Excise, Assam, Shillong is extended for a further period of 3 (three) months with effect from the 1st April, 1961 or till the disposal of the departmental proceedings, whichever is earlier." On May 23, 1961 the respondent moved the High Court of Assam by means of a petition under Arts. 226 and 227 of the Constitution. In this petition the respondent impugned the two orders passed by the appellant on January 6, 1961 and May 9, 1961 as being orders which were without jurisdiction. The claim off the respondent was that he ceased to be an employee of the appellant with effect from January, 1961 and was not amenable to any departmental proceedings thereafter. The respondent further pleaded that the appellant had no authority to extend the period of his service retrospectively after his retirement had already taken effect. Fundamental Rule 56 made by the Governor of Assam in exercise of the powers conferred on him under sub-s. (2) of S. 241 of the Government of India Act, 1935 lays down that the date of compulsory retirement of a government servant is the date on which he attains the age of 55 years. The rule, however, states that a government servant may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writing. The case of the respondent was that there was no public ground for retaining him in service after the age of 55, On the aforesaid pleas, the respondent prayed for an order from the High Court quashing the impugned orders of January 6, 1961 and May 9, 1961.
(2.) The High Court considered Fundamental Rule 56 as applicable to services and posts under the rule-making control of the Secretary of State, though what was applicable to the respondent was Fundamental Rule 56 as was made by the Governor of Assam. Be that as it may, the High Court came to the conclusion that on the facts of the case before it the appellant had no jurisdiction to extend the period of service of the respondent when no proceedings were pending against him on the date of retirement and even on the dates when the impugned notifications were issued Basing itself on certain observations made by Mr. Justice P. B. Mukharji in a decision of the Calcutta High Court reported in Nripendra Nath v. Chief Secretary, Govt. of West Bengal, AIR 1961 Cal 1 (SB) at pp. 9 and 10 the High Court further held that: "on the mere possibility of the continuance of the disciplinary proceedings the extension of service of the respondent could not be regarded as on public grounds within the meaning of rule 56." The High Court also said that no previous sanction was taken from the State Government and no proposals were put up before the Government asking for its sanction for the retention in service of the respondent. The High Court accordingly allowed the writ petition and directed the appellant - Government not to give effect to the order dated May 9, 1961.
(3.) The appellant moved this court for special leave and having obtained such leave has preferred this appeal from the decision of the High Court dated July 13, 1961 by which it allowed the writ petition.;