HASHMAT ALI Vs. STATE OF UTTAR PRADESH AND ANOTHER

JUDGEMENT

(1.) This is a petition under Art. 226 of the Constitution praying for the quashing of an order dated the 21st of Sept., 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 Dec., 1909. He completed his 55 years of age on the 4th of Dec., 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 Sept., 1966 : "NOTICE OF RETIREMENT

(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

(3.) The learned counsel then referred to D. O. No. 5527 (ii) IIB-280/1962 dated Oct. 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.