K.N.SINGH,J. - (1.) THE petitioner joined Government service as Deputy Jailor in November, 1942. He was granted promotion from time to time. In May, 1971, he was promoted to the post of Superin­tendent. He was to complete 55 years of age on July 4, 1973, but be­fore he could complete 55 years of age, his service record and charac­ter roll were examined by the State Government, found the peti­tioner's work and conduct above average. Consequently, it issued an order on April 30, 1973, permitting the petitioner to continue in ser­vice beyond the age of 55 years. The petitioner thereafter continued in service as Superintendent of Jail. He was, however, compulsorily retired from service by an order of the State Government dated January 9, 1975, issued under Fundamental Rule 56. Aggrieved, the petitioner filed the present petition under Article 226 of the Constitu­tion challenging the validity of the order of compulsory retirement dated January 9, 1975.
(2.) LEARNED counsel for the petitioner urged that once the peti­tioner's work and conduct was scrutinised and order was issued by the State Government retaining the petitioner in service beyond the age of 55 years, he could not be compulsorily retired unless his work and conduct deteriorated after his retention in service. There was no such deterioration in the petitioner's work and conduct. The State Government reviewed its earlier decision and the Screening Com­mittee again considered the petitioner's ten years record of service and recommended that the petitioner's work and conduct was not be­yond average even though there was no fresh material against the petitioner. Under Fundamental Rule 56, as amended from time to time, and as applicable to the State of Uttar Pradesh, the age of superannuation of a Government servant is 58 years, but the Government is empower­ed to review the case of a Government servant at the stage when he attains the age of 55 years. If on a review of his work and conduct the State Government or the appointing authority is satisfied that the work and conduct of the Government servant is not above average, it is empowered to retire the Government servant compulsorily by giving him three months notice or pay in lieu thereof, but in a case where the State Government forms opinion that the work and con­duct of the Government servant is above average it may retain the Government servant in service. Once a Government servant is re­tained in service beyond the age of 55 years after his work and con­duct is considered at the age of 55 years, he acquires a right to conti­nue in Government service. The State Government has no doubt power to reconsider the work and conduct of the Government servant even after the retention of the Government servant. If on a reconsideration the State Government finds that after his retention in ser­vice beyond the age of 55 years the work and conduct of the Govern­ment was not satisfactory or that there was deterioration in his work, it is always open to it to retire the Government servant compulsorily in accordance with the Fundamental Rule 56.
(3.) THE State Government has issued instructions under its order dated November, 1969, laying down principles required to be follow­ed in considering the question of compulsory retirement or retention of a public servant on his attaining the age of 55 years. The conditions laid down therein are statutory as the same have been issued under the statutory requirement of the Explanation to Fundamental Rule 56. The Government order lays down that the case of every Government servant should be considered at least six months prior to his attain­ing the age of 55 years and a decision should be taken as to whether the Government servant is to be retained in service or he is to be retired compulsorily but in a case where no such decision is taken due to some unavoidable reasons no right is conferred on the Gov­ernment servant to continue in service and it is always open to the Government to consider his case and take necessary decision. Para­graphs 3, 4 and 5 of the said Government order lay down the criteria which should be applied in considering the question of compulsory retirement of a servant. According to it, if the integrity certificate of a Government servant is withheld even once during the last ten years of his service then the Government servant should not be re­tained in service and further if the work and conduct of the Govern­ment servant is not found above average during the last ten years of his service, in that case the retirement of Government servant would be in public interest. Paragraph 6 of the Government order is rele­vant for purposes of the present case. It lays down that the case of a Government servant who is allowed to continue in service beyond the age of 55 years after review and consideration of his work and conduct, should not be reconsidered or reviewed again for retiring him compulsorily before attaining the age of 58 years, unless it is found that-after his retention in service beyond the age of 55 years his work and conduct deteriorated and that it would be in public interest to retire him compulsorily from service. It is thus clear that once a Government servant is allowed to continue in service beyond the age of 55 years after review of his work and conduct it is not open to the State Government or the appointing authority to review its decision or to retire the petitioner compulsorily in the absence of any fresh material.;