- (1.) This appeal is against the judgment and order of A.N. Sen J. dated January 20, 1975, whereby the Appellant's application made under Article 226 of the Constitution challenging the validity of the order dated June 27, 1974, compulsorily retiring the Appellant, who was then acting as a District Fishery Officer (Officiating) under the Government of West Bengal, was dismissed.
(2.) In or about 1944 the Appellant was appointed as a Demonstrator in the Fisheries Department by the Government of West Bengal. It appears that the Appellant completed a tenure of service of 30 years and in September 1974 when the Appellant (who was the Petitioner in Court below) made the said application under Article 226 of the Constitution of India from which the present appeal has arisen he was 53 years of age. In the petition of the said application it is stated that the Appellant was promoted to the position of District Fishery Officer on January 7, 1960 and at the time of his compulsory retirement he was a Class II Gazetted Officer. For the purpose of this appeal it is however not necessary to state the different posts which were held by the Appellant from time to time, but in June 1974 the Appellant was acting as a District Fishery Officer which is in Class II service. While the Appellant was acting as a Class II Officer as stated above he was served with an order dated June 27, 1975, compulsorily retiring him from his service. The said order reads as follows: Whereas you Shri Rohini Kanto De a District Fishery Officer (Officiating) entered Government service before attaining the age of thirty five years. And whereas the Governor being the appointing authority in respect of your service under the Government is of the opinion that it is in the public interest so to do. Now therefore in exercise of the powers conferred by Sub-rule (aa) of Rule 75 of the West Bengal Service Rules Part I the Governor retires you Shri Rohini Kanto De from Government service with effect from the 1st day of October 1974. By order of the Governor J.B. Singh Secretary to the Government of West Bengal After service of the said order the Appellant in September 1974 made an application under Article 226 of the Constitution of India to this Court challenging the validity of the said order and the said application as stated earlier was dismissed by A.N. Sen J. on January 20. 1975.
(3.) From the judgment of the Court of the first instance it appears that it was conceded by the Appellant's counsel before the learned Judge hearing the said application that the petition of the said application was not happily drawn and various proper grounds which should have been taken were not taken in the petition. It was submitted on behalf of the Appellant before the Court of the first instance that such further grounds were taken in the affidavit-in-reply affirmed by the Appellant on December 10, 1974 and in hearing the application the Court should take into consideration the entire materials which were before the Court including those contained in the affidavit-in-reply.;