G.D.Sahgal, J. - (1.) This is a petition under Art. 226 of the Constitution praying for the quashing of an order dated the 21st of September, 1966 passed by the Karagar Maha Nirikshak, Uttar Pradesh, telling the petitioner that he shall retire from service on the expiry of three months from the date of the service of the notice of the order contained in that notice. The petitioner was working as an Assistant Jailor in the District Jail, Oral, when this notice was served on him He was born on the 4th of December, 1909. He completed his 55 years of age on the 4th of December, 1964 but he was not served with three months' notice nor was he retired. On the other hand he continued to work even thereafter. He, however, received the following notice on the 30th of September, 1966 : "NOTICE OF RETIREMENT In exercise of the powers under paragraph (1) of the first proviso to cl. (a) of F. R. 56, contained in F. H. B. Vol 11, Parts II to IV as amended from time. I. B. B. Sahi, Karagar Maha Nirikshak, U. P. being the appointing authority in respect of the post and grade held by you, hereby give notice requiring you, Shri Hashmat Ali, Assistant Jailor to retire from service on the expiry of 3 months, from the date of service of this notice on you. Sd. B. B. Sahi, Karagar Maha Nirikshak, U. P. 21.9.1966. This notice dated 21st September, 1966, as already pointed out above, was served on the petitioner on the 30th of September, 1966. The contention on behalf of the petitioner is that once the petitioner had crossed the age of 55 years he should have been allowed to continue till the age of 58 years and his services, if at all, could be terminated only if the notice of the kind was served on him before he attained the age of 56. It is also contended on behalf of the petitioner that the order is a mala fide one inasmuch as it does not follow the directions that have been given by the Government in the matter of such notices. Lastly, it was pointed out that after the petitioner had crossed the age of 55 years he could be retired only at the age of 58 years and if his services had been terminated prior to his attaining the age of 58 years it amounts to his dismissal or removal from service within the meaning of those terms under Art 311 of the Constitution and unless and until compliance was made with the provisions of cl. (2) to Art. 311 the termination of the services of the petitioner was illegal.
(2.) Under Fundamental R. 56 the age of superannuation of the Government servants in the State of Uttar Pradesh was 55 years but under a notification it was raised to 58 years. The notification by which the amendment was introduced, insofar as it is relevant reads as follows : 'MISCELLANEOUS October 19, 1963 No G-1-1794-A/X 534 (19) 57. - Whereas the Governor of Uttar Pradesh has, in pursuance of the decision of the Government of India raising the age of compulsory retirement from 55 to 58 years of Central Government servants, decided, to similarly raise the age of retirement of Government servants to whom F. R. 56 applies : 3. Now, therefore, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution and all other powers in that behalf the Governor of Uttar Pradesh is pleased to make the following amendment in F. R. 56 as last amended under Finance Department notification No G-1.1233/X 534(19) 57, dated May 25, 1961 : 1. In F.R. 56- (1) For the figure "55" wherever it occurs the figure "58" shall be substituted. (2) For the existing proviso at the end of clause (a) the following shall be substituted:- "provided that : (i) the appointing authority may require the Government servant to retire after he attains the age of 55 years on 3 months' notice without assigning any reason; or (ii) the Government servant may, after attaining the age of 55 years, voluntarily retire after giving 3 months notice to the appointing authority." A plain reading of the proviso to the amending rule : would show that even though the age of superannuation had been raised from 55 to 58 years, the appointing authority had been given power to require the Government servant to retire at any time after he attained the age of 55 on three months' notice. The contention of the learned counsel for the petitioner is that this three months' notice cannot be given at any time after the attainment of the age of 55 years by the employee concerned but should be given within a reasonable time after his attaining the age of 55 years and should is no case be given before the age 56 years and as in this case the Government servant had completed an age beyond 5 years and was almost attaining the age of 57 years when this notice was served on him. His services could not by terminated by such a notice. This contention appears to have no force. The word "after" according to the dictionary meaning means "subsequent to" "later in time". It does not mean "immediately subsequent to" nor "shortly later in time." According to the plain reading of the proviso, therefore, it cannot be said that the notice that was given to the petitioner was not a notice after he had attained the age of 55 years. The learned counsel, then, drew my attention to a memorandum issued by the Government themselves for the guidance of the appointing authorities, being No. 2254/118 260/1963, dated June 30, 1964 which prescribes certain proformas of the notice that has to be served on the Government servant who is sought to be retired It points out that the appointing authority may retire a Government servant without assigning any reason after he attains the age of 55. It further states that to avoid legal complications to the Government it has been decided to prescribe three proforma in which the rot ice can be given. There are two forms in proforma I which relates to cases where the appointing authority is an authority other than the Governor. The first proforma relates to cases where more than three months time is available before the Government servant attains the age of 55 years. The second proforma also relates to cause where the appointing authority is an authority other than the Governor and three months time is not available before the Government servant attains the age of 55 years. He lays emphasis on the words "is not available" and points out that while the first form in proforma I relates to cases where the appointing authority has clear three months' time to terminate the services of the Government servant before he attains the age of 55 years, the other relates to cases where such 3 months' time is not available, i.e. when the Government servant has passed the age beyond 54 years 9 months but is still below 55 years. It may be that the two forms in proforma I contemplate only two such cases but the office memorandum consists only of a direction to the appointing authorities by the Government as to how the purpose of a certain rule can be carried out by them. It cannot control the meaning of the rule for the enforcement of which the instruction has been given An office memorandum is not equivalent to a Government order As has been pointed out in the case of I. N. Saksena v. The State of Madhya Pradesh, 1967 Services Law Reporter 204, (1968) 1 SCJ 585 : A.I.R. 1967 SC 1264 at p. it is one thing to issue rules and thereafter incorporate then in the Civil Service Regulations; it is quite another thing to issue a certain direction to officers.Such a memorandum cannot take the place of the rule The learned counsel therefore cannot being to his aid the memorandum referred to above in the matter of the interpretation of Fundamental Rule 56, as amended and referred to above.
(3.) The learned counsel then referred to D. O. No. 5527 (ii) IIB-280/1962 dated October 19, 1963 in which the Government has issued directions regarding the procedure for the retirement of the Government servants on three months' notice in consequence of the superannuation age having been raised to 58 years and pointed out that the directions contained therein have been violated in issuing three months notice to the petitioner requiring him to retire. He referred particularly to paragraph 7 of the D. O. which says that once it is decided to retain a Government servant beyond the age of 55 years he should be allowed to continue up to the age of 58 years without any fresh review unless this be justified by any exceptional reasons, such as his subsequent work or conduct or the state of his physical health, which may make earlier retirement clearly desirable. Here again a D. O. which is only an administrative direction cannot control the meaning of the rule in which the Government has absolute power to retire a person on three months notice after he has been allowed to cross 55 years but has not crossed 58 years and as such reached the age of superannuation fixed at 58. Apart from it a perusal of the counter affidavit and the annexure filed does indicate that it was the subsequent work of the petitioner which was judged before this notice was served on him. In no view of the case, therefore, can it be said that the order is a mala fide one.;