Sarkaria J. - (1.) This appeal on certificate is directed against a judgment of the Madhya Pradesh High Court dismissing the appellant's writ petition under Art. 226 of the Constitution.
(2.) The appellant joined the service of the State Government as a subordinate Judge in the year 1936. On promotion, he was confirmed as District and Sessions Judge with effect from December 2, 1957. The appellant attained the age of 55 years on August 22, 1963 which was the age of superannuation according to Fundamental Rule 56 (Ch. IX) governing the Civil Services of the State. But prior to that, on February 28, 1963 by, a Memorandum No. 433-259- 1 (iii)/63, the State Government raised the age of compulsory retirement for government servants to 58 years subject to certain exceptions. The material part of the memorandum dated February 28, 1963, read as follows: "5. 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 months notice without assigning any reasons........... A Government servant may also after attaining the age of 55 years voluntarily retire after giving 3 months notice to the appointing authority. 6. These orders will have effect from the 1st March 1963. 7. Necessary amendments to the State Civil Service Regulations will be issued in the due course."
(3.) Thereafter,by Government Notification dated November 29, 1963, F. R. 56 was amended on December 6, 1963 (sic) in exercise of the power under the Proviso to Article 309 of the Constitution, raising the age of the compulsory retirement of the State Civil Servants to 58 years with effect from March 1, 1963 but the clause in the aforesaid Memorandum, empowering the Government to retire servants above the age of 55 years by giving them three months, notice was not incorporated in the Rule.;