Wanchoo, J. - (1.) This is an appeal on a certificate granted by the High Court of Madhya Pradesh and arises in the following circumstances. The appellant was in the service of the State of Madhya Pradesh as a District and Sessions Judge. He was born on August 22, 1908 and would in the normal course have retired on completing the age of 55 years in August 1963. But on February 28, 1963, the Government of Madhya Pradesh issued a memorandum to all the Collectors in the State. Copy of this memorandum was also sent to the Registrar, High Court as well as the Finance Department and the Accountant-General. The relevant part of this memorandum is as follows:-"The State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 years subject to the following exceptions .. . . ......... 2. ********** 3. ********** 4. ********** 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 three months notice without assigning any reason.... . the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. A Government servant may also after attaining the age of 55 years voluntarily retire after giving three 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 due course."
(2.) In consequence of this memorandum the appellant, who would have otherwise retired in August 1963, continued in service. On September 11, 1963, the Government sent an order to the appellant in the following terms:- "In pursuance of the orders contained in General Administration Department memorandum No. 433-258-I (iii)/63, dated the 28th February 1963, the State Government have decided to retire you with effect from the afternoon of the 31st December 1963." This order was obviously in terms of the fifth paragraph of the memorandum which said that the appointing authority may require a Government servant to retire after he attains the age of 55 years on three months' notice without- assigning any reason."
(3.) On November 29,, 1963, a notification was issued by the Finance Department which was published in the Madhya Pradesh Gazette, dated December 6, 1963 in the following terms:- "In exercise of the power conferred by the proviso to Art. 309 of the Constitution, the Governor of Madhya Pradesh hereby directs that the following further amendments Shall be made in the Fundamental Rules applicable to the State of Madhya Pradesh, namely:- "All Rules in Chap. IX of the said Rules regarding Compulsory Retirement shall be deleted and the following shall be inserted as a new Rule 56, namely:- "F. R. .56:-The date of compulsory retirement of a Government servant, other than a class IV employees, is the date on which he attains the age of 58 years. Only Scientific and Technical personnel may be retained in service after the age of compulsory retirement with the sanction of the competent authority subject to their fitness and suitability for work, but they should not ordinarily be retained beyond the age of 60 years. "The date of retirement of a Class IV Government servant is the date on which he attains the age of 60 years. "The rule has come into effect from 1st March 1963." It will be seen that this amendment to the Rules did not include that part of the fifth paragraph which gave power to the appointing authority to require a Government servant to retire after he attains the age of 55 years on three months notice without assigning any reason. Thereafter the appellant was retired. He then filed a writ petition on March 24, 1964 challenging the order retiring him. His contention was two-fold, namely-(i) that the rule as it stood after the amendment of November 29, 1963, published in the gazette of December 6, 1963, contained no provision reserving power in Government to retire a Government servant after he attains the age of 55 years on three months notice without assigning any reason, and, therefore, the appellant could not be retired on December 31, l963 in the face of the rules, and (ii) that as the order of his retirement cast a stigma on him it amounted to his removal, and therefore, action under Art. 311 of the Constitution was necessary, and that was admittedly not complied with.;