Anil Kumar Sen, J. - (1.) The petitioner Khirode Behari Sikdar was an Assistant Aerodrome officer. In this Writ petition he is, disputing the validity of an order passed by the Director-General of Civil Aviation putting him on compulsory retirement on attaining the age of 55 years. It is not in dispute that the petitioner joined the Government service sometime in 1934 and that he attained the age of 55 years on September 30, 1966.
(2.) It is admitted by the respondents that the petitioner is governed by Fundamental Rule 56. On July 21, 1965 the President in exercise of his powers under Article 309 of the Constitution amended Fundamental Rule 56 to extend the age of retirement from 55 to 58 years. Such extension, however, was made subject to a reservation as set out in clause 'J' thereto which reads as hereunder. "Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant after he has attained the age of 55 years by giving him notice of not less than three months in writing."
(3.) By an order passed in June, 1968, which was served on the petitioner on June 30, 1966 the Director-General of Civil Aviation, the respondent No. 2 directed that the petitioner shall stand retired with effect from the date of expiry of three months from the date of service of the said order. This order, however, was not passed in exercise of powers under Fundamental Rule 56 (J) but in exercise of powers conferred by paragraph 6 of the Ministry of Home Affairs Office Memorandum No. 33/18/62-Ests (A) dated 30th November, 1962. The order does not recite any reason and clearly recites that the order is being I passed under the provisions of paragraph 6 of the aforesaid memorandum I dated 30th November, 1962. It would be I necessary to refer to the aforesaid Ministry of Home Affairs Memorandum dated 30th November, 1962 which is set out hereunder. "The President is pleased to direct that the age of compulsory retirement of Central Government servants should from the 1st December. 1962 be raised to 58 years subject to the following exceptions : (i) The existing rules under which ministerial Government servants recruited before 1-4-1938 are to be retained in service upto the age of 60 years subject to their continuing to be efficient and physically fit after attaining the age of 55 years will remain in force. (ii) The age of compulsory retirement for those categories of class IV staff who are at present entitled to serve upto the age of 60 years including new entrants should continue to be 60 years. (iii) Government servants who are on leave preparatory to retirement on the 1st December, 1962 will not be entitled to the benefit of the increased age of compulsory retirement unless they are permitted to resume duty after the appointing authority is satisfied that they are efficient and physically fit. 3. Scientific and technical personnel may be given extension of service beyond the age of 58 years subject to their fitness and suitability for work. 4. Those who have already retired before the 1st December, 1962 or who are on refused leave on the 1st December, 1962 beyond the date of their compulsory retirement are not entitled to resume duty under these orders. However, those who on 1st December. 1962 are on refused leave beyond the date of the compulsory retirement may be re-employed, if fit. 5. Persons on extension of service on the date of issue of these orders may be allowed to continue in service upto the age of 58 years. 6. Notwithstanding anything contained in the foregoing paragraph, 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. This will be in addition to the provisions already contained in R. 2 (2) of the Liberalised Pension Rules, 1950 to retire an officer who has completed 30 years qualifying service, and will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. The Government servant also may, after attaining the age of 55 years, voluntarily retire after giving three months notice to the appointing authority." It is the validity of the aforesaid order of compulsory retirement which is the subject matter of challenge in this rule.;