http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

PETITIONER:

STATE OF ASSAM AND ANR. ETC.

Vs.

RESPONDENT:

BASANTA KUMAR DAS ETC. ETC.

DATE OF JUDGMENT22/12/1972

BENCH:

ALAGIRISWAMI, A.

BENCH:

ALAGIRISWAMI, A.

VAIDYIALINGAM, C.A.

CITATION:

1973 AIR 1252 1973 SCR (3) 158

1973 SCC (1) 461

CITATOR INFO :

F 1977 SC1517 (8)

OPN 1980 SC 563 (21)

F 1989 SC 75 (8)

ACT:

Civil Servant-Inct-ease in age of retirement on satisfaction

by-egarding efficiency and physical fitness-Right to be in

service.

Constitution of India, 1950, Art. 133-Certificate of leave

to appeal to Supreme Court granted by High Court-No mention

of clause of Art. 133 under which it was thought fit-

Liability of appeal to dismissed.

HEADNOTE:

In March 1963, the appellant-State issued a memorandum

raising the age of retirement of the State government

servants from 55 to 58. The memorandum however, stated that

no government servant would be entitled to the benefit of

the increased age unless he has been permitted to continue

in service after the age of 55 after the appointing

authority is satisfied that he is efficient and physically

fit. In the annexure to the memorandum the procedure for

finding out the efficiency and physical fitness of the

employee was laid down.

In the case of respondents BR and K, the Board constituted

to codsider their cases recommended the extension of their

service, but the Minister in charge did not agree.

In the case of respondents S and H, though the Deputy

Commissioner recommended their continuance in service, the

Commissioner, who was the appointing authority, was not

satisfied that they were fit to be continued in service and

hence they were not continued.

In the case of respondent B K, the appointing authority was

not ,satisfied with his work so as to extend his services.

The five respondents filed petitions in the High Court. The

High Court allowed the petition of BR, and following that

judgment allowed the other petitions without doing into the

facts and merits of each of those cases.

Allowing the appeals to this Court,

HELD : (1) The memorandum was a mere executive instruction

and not a rule under Art. 309. It did not confer legal

rights and no legal action can be founded on it [164C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

(2)The petitioners did not get any right to continue in

service beyond the age of 55 years as a result of the

memorandum. A government servant has no such tight beyond

the age of superannuation and if he is retained beyond that

age it is only in exercise of the discretion ,of the

Government. [165-D]

Assam v. Premadhar-, [1971] 1 S.C.R. 503 and Kailash

Chatidii v. Union of India, [1962] 1 S.C.R. 374 followed.

(3)The fact that certain persons were found fit to be

continued in service does not mean that others who were not

so found fit had been discriminated against. Otherwise, the

whole idea of continuing only efficient people in service

after 55 years becomes meaningless. [165-G]

159

B. N. Mishra v. State, [1965] 1 S.C.R. 693, followed.

Union of India v. J. N. Sinha, [1971] 82 I.T.R 561, referred

to.

(4)(a) It is true that in the case of respondents BR and

K, the Screening Board recommended their continuance and

there is no material to show why the Minister formed a

different impression about their capacity. But once it is

held that the memorandum is only an executive instruction

which confers no right on any body, the judgment of the

Minister cannot be questioned unless it could be shown that

there was mala fides, or that Minister was guided by

ulterior motives or that the decision contravenes some law.

In the present case, there is no allegation of any mala

fides on the part of any of the authorities. [161-H]

(b)The High Court erred in merely following the judgment

in the case of BR and ignoring the facts in the other cases.

It was its duty to haveconsidered the merits of each case.

[163G]

(5)The certificate of leave to appeal to this Court was

granted by the High Court without mentioning under what

particular clause or sub-clause of Art. 133 the leave was

granted. But in the present case, the fact that the leave

obtained was not a proper one is not a ground for dismissing

the appeal. A,,n objection to the certificate should be

taken by the respondent at the earliest possible moment, and

this Court is always prepared to consider the request by the

appellant for grant of ,special leave at any stage if the

circumstances of the case so requires. [168-B]

When the High Court decided these cases, the judgment of

this Court in Premadhar's case had not be delivered.

Therefore, a substantial question of law arose for decision

in these cases, and, if the respondents had raised the point

about leave at the earliest possible time, this Court would

have been prepared to consider an oral request for special

leave by the appellant and for condonation of delay and

would have directed the appellant to file appropriate

petitions. But the #poin ' t was @aised after the appeals

were taken up for hearing and hence, the appellant should

not be made to suffer by the respondent's negligence. [168D]

Sardar Bahadur S. Indra Singh Trust v. C.I.T., [1971] 82

I.T.R. 561, The Union of India v. Kishori Lal Gupta & Bros.

[1960] 1 S.C.R. 493, Shri Durga )Irasad v. The Banaras Bank

Ltd., [1964] 1 S.C.R. 475. a@rkd Bijili Cotton Mills v.

Iiidustrial Tribunal II, A.I.R. 1972 S.C. 1903 referred to.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1561 to

1563 of 1969 & 179 and 180 of 1971.

Appeals from the judgment and order dated August 19, 1968 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

the Assam & Nagaland High Court in Civil Rule No. 473, 350

and 319 of 1966.

Naunit Lal for the appellants (in all the appeals).

C. K. Daphtary and D. N. Mukheriee for respondents (in

C.As. Nos. 1561 & 1563/69 & C.As. Nos. 179 & 180/71).

D. N. Mukheriee and S. K. Nandy for respondent (in C.A.

No.

1562/69).

160

The Judgment of the Court was delivered by

ALAGIRISWAMI, J. These five appeals by leave are by the

State of Assam against the judgment of the High Court of

Assam in five petitions filed by the respondents in the

respective appeals.

Shri Bansi Ram Das was Professor and Head of the Department

of Physics in the Government Cotton College, Gauhati. Shri

Kanak Lal Das was Professor and Head of the Department of

Philosophy. Shri Basanta Kumar Das was a Physiological

Chemist in Class I of the Assam Veterinary Service and on

the relevant date was the Deputy Director of Animal

Husbandry & Veterinary Department. Shri Khageswar Saikia

was an Upper Division Assistant in the office of the Deputy

Commissioner, Darrang Tezpur on the relevant date, and Shri

Anand Chandra Hazarika was an Head Assistant in the office

of the Deputy Commissioner, Darrang, Texpur. On 21st March,

1963 the Government of Assam issued a memorandum raising the

age of retirement of its servants from' 55 years to 58

years. The relevant portion of the memoranduM was as

follows :

"3. No Government servant will be entitled to the benefit of

the increased age of compulsory retirement unless he has

been permitted to continue in service after the age of 55

years after the appointing authority is satisfied that he is

efficient and physically fit for further Government service.

The procedure to be followed by the appointing authorities

before they permit a Government servant to continue in

service is outlined in the Annexure......

4.Notwithstanding anything contained in the foregoing

paragraphs, the appointing authority may require a

Government servant to retire after he attains the age of 55

years on 3 (three) months' notice without assigning any

reason.

8.Necessary amendments to the relevant rules will be

issued in due course."

In the Annexure to this memorandum the procedure to find out

the efficiency and the physical fitness of the employee

concerned was laid down. They were to be tested as to their

efficiency by a Board consisting of the Chief Secretary, the

Secretary of the department concerned and the Head of the

Department. As regards physical fitness such persons were

to be examined by the Civil Surgeon of the, district in

which they were posted.

These five respondents were not allowed to continue in

service in accordance with this memorandum and they filed

petitions before the Assam High Court questioning the

validity of the orders

161

retiring them from service. The High Court first decided

the case of Shri Bansi Ram Das in Civil Rule No. 319 of

1966. They allowed his petition and directed him to be put

back in service to continue there till he attained the age

of 58 years. The other four petitions were allowed on the

basis of this judgment without going into the facts of each

case or their merits.

All the five officers had put forward the contention that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

under terms of the memorandum dated 21-3-1963 they had a

right to continue in service even after they had completed

their 55th year. All of them also contended that they had

been picked out for special discrimination. The

Government's reply to these contentions was that no one got

a right to continue in service after completing 55 years and

that there was no discrimination and the fact that some

officers were allowed to continue and some others who were

found not fit were not continued did not mean that there was

any discrimination.

In the case of Shri Bansi Ram Das and Shri Kanak Lal Das,

who was the petitioner in Civil Rule No. 350 of 1966 (he is

now dead and his widow is the first respondent) the Board

constituted to consider their cases, after scrutinising

their character roll and after consideration of facts

decided to recommend them for retention in service beyond 55

years. But the Minister incharge of Education made a note

as follows :

"I' cannot agree to giving extension to Prof. Kanak Lal Das

and Prof. Bansi Ram Das. I consider them to be outmoded in

their intellectual development."

So it can be said these cases are alike. In their cases the

contention in the Government's counter affidavit was that

they were not found fit to continue in service after

attaining fifty five years. The Minister's remark was also

given as another reason.

These two officers in particular, therefore, contended that

the Board constituted to consider their fitness for further

continuance in service having recommended them for such

continuance and there being no material on record on the

basis of which the Minister could pass the order above

extracted. the order retiring them was invalid. It is true

that the Screening Board had recomended the continuance of

these two officers in service after their attaining the age

of 55. There is also no material to show that exactly was

responsible for the impression which the Minister formed

about the capacity of these two officers. But once it is

held that the memorandum of 21-3-63 is merely an executive

instruction which confers no right on any body, the judgment

of the Minister cannot be questioned unless it could be

shown that there' were any mala Ides. There was no

allegation even of any malafides. This Court would not go

into the reasons which weighed 12-L631SupCI/73

162

with the, Minister in coming to the decision, unless it

could be said that he was guided by ulterior motives or the

decision contravenes some law. The decision of the Minister

cannot, therefore, be questioned.

The cases of the other three officers are different because

in their cases there is no recommendation of the Board on

record showing that their continuance had been recommended.

In Civil Appeal 179 and 180 though the Deputy Commissioner

had recommended their continuance, the Commissioner had

taken a different view. In the case of Shri Khageswar

Saikia the Commissioner wrote as follows :

"I have given careful consideration to this case and feel

that it will not be desirable to grant extension to Shri

Khageswar Saikia beyond 55 years. The reports for 1964 and

1966 recorded by different Deputy Commissioners are hardly

favourable for his further retention.

On an overall consideration I regret my inability to accept

your recommendation for giving any extension to Shri

Khageswar Saikia. He should retire on attaining the age of

55 years."

In the case of Shri Anand Chandra Hazarika he wrote:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

"It will be seen from the reports for 1960, 1965 and 1966

that Shri Hazarika has been found to be lacking in the

capacity to manage the office and supervise work to the

satisfaction of his superiors. In 1960 the Deputy

Commissioner commented that he should exercise more

supervision over the junior hands. In 1965 another Deputy

Commissioner commented on his lack of supervisory capacity

and referred to his identification with some groups in the

office. He also recorded that Shri Hazarika was slow in

carrying out orders. In 1966 the same Deputy Commissioner

repeated his adverse comments about lack of supervision. In

the circumstances, it seems to me that the public interest

will not be served by giving extension to Shri Hazarika as

he will invertably hold a key supervisory post despite his

lack of supervisory ability.

As regards Shri Narasimhan's report I may state that this

report was received without being called for and in view of

the consistent adverse remarks recorded for 1960, 1965 and

1966 it is difficult to believe that Shri Hazarika could

have overnight become an excellent R.S., improved the

working of the office and proved as

163

an asset to the Deputy Commissioner. I am afraid Shri

Narasimhan's superlatives are based on an inadequate

assessment for too short a period. I do not propose to

comment on the preparation of a new Character Roll by Shri

Hazarika containing uncertified remarks; I would, however,

invite Government's attention to the Deputy Commissioner's

letter in this regard.

I recommend that Shri Hazarika should be asked to retire

from service on attaining 55 years of age."

In the case of Shri Saikia and Shri Hazarika the

Commissioner, who was the immediate superior officer of the

Deputy Commissioner, who recommended their case, was not

satisfied that they were fit to be continued in service

beyond 55 years and he has given very valid reasons for not

recommending their continuance in service. In Saikia's

case, in their counter affidavit, the Government have

pointed out that the Deputy Commissioner's recommendation

was only a recommendation which cannot bind the Commissioner

or the State Government and as the Commissioner did not find

him suitable and did not allow him to continue beyond 55

years of age, he had to retire at the age of 55 years and

there was no discrimination or favouritism or arbitrary

action on the part of the Government. In Hazarika's case

the Government, in their Counter affidavit, pointed out that

though the Deputy Commissioner recommended his case for

extension of service, the Commissioner did not do so and the

Government had to decide the matter not in the light of the

recommendation of the Deputy, Commissioner but in the light

of the merits of the case judging from the entire material

on record, that as he was not found efficient and suitable

by the appointing authority, namely, the Commissioner, he

was not allowed to continue beyond 55 years of age and that

there was no discrimination or denial of equal protection of

law nor any infringement of. any legal right of the

petitioner.

The High Court has ignored these facts and simply followed

its judgment in the case of Bansi Ram Das in these two cases

also. It was its duty to have considered the merits of each

case and it had failed to do so. It is obvious that these

two respondents were found not suitable for being continued

in service.

We shall next take up the case of Basanta Kumar Das. In his

case also in their counter affidavit the Government had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

pointed out that the appointing authority was not satisfied

with his work so as to extend, his services beyond the age

of 55 years. It was specifically contended that he was not

entitled to automatic extension till 58 years only because

the Medical Board and the 'Screening Board found him

efficient. It was further contended

164

that as Deputy Director he was not able to manage his work

quite well. It was stated that with regard to the cattle

feed deals, there were large number of anomalies including

charges of questionable conduct, and that as ordered by the

Minister, the Secretary had to' go to Gauhati to look into

the anomalies and to set things right, and that the

Government did not see much of an advantage in extending his

services beyond the age of 55. There was no reply, filed by

the respondent to this statement on behalf of the Government

and the statement, therefore, stood unchallenged. In the

circumstances it is not possible to say that the Government

was not justified in refusing to continue him in service

beyond his 55th year.

We shall now deal with the contentions raised by all the

five respondents. We must first of all point out that the

memorandum dated 21-3-63 is, a mere executive instruction

and not a rule made under Article 309 of the Constitution.

It did not confer any legal rights on the persons covered by

it. No legal action can be founded on it. A similar view

has been taken in a recent decision of this Court in Assam

v. Pramadhar(1).

In Kailash Chandra v. Union of India(1) this Court had to

consider the effect of Rule 2046(2) (a) of the Railway

Establishment Code, which reads as follows :

"Clause (a)-A ministerial servant who is not governed by

sub-cl.(b) may be required to retire at the age of 58 years

but should ordinarily be retained in service if he continues

to be-,efficient up to the age of 60 years. He must not be

retained after that age except in very special circumstances

which must be recorded in writing and with the sanction of

the competent authority.

This Court observed:

"This intention is made even more clear and beyond doubt by

the use of the word "ordinarily". "Ordinarily means "in the

large majority of cases but not invariably". This itself

emphasises the fact that the appropriate authority is not

bound to retain the servant after he attains the age of 55

even if he continues to be efficient. The intention of the

second clause, therefore, clearly is that while under the

first clause the appropriate authority has the right to

retire the servant who falls within clause (a) as soon as he

attains the age of 55, it will, at that stage, consider

whether or not to retain him further. This option to retain

for the further period of five years

(1) [1971] 1 S.C.R. 503. (2) [1962] 1 S.C.R.

374.

165

can only be exercised if the servant continues to be effi-

cient; but in deciding whether or not to exercise this

option the authority has to consider circumstances other

than the question of efficiency also; in the absence of

special circumstances he "should" retain the servant; but

what are special circumstances is left entirely to the

authority's decision. Thus, after the age of 55 is reached

by the servant the authority has to exercise its discretion

whether or not to retain the servant; and there is no right

in the servant to be retained, even if he continues to be

efficiency."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

This was a case where the rule was statutory. It need

hardly be emphasised that what applies to a statutory rule

applies with greater force to mere executive instructions.

This is a complete answer to the claim of the respondents in

this case that as a result of the memorandum of 21-3-63 they

got a right to continue in service beyond the age of 55

years. A Government servant has no right to continue in

service beyond the age of superannuation and if he is

retained beyond that age it is only in exercise of the

discretion of the Government.

In B. N. Mishra v. State(1) it was held that

"Government was not obliged to retain the services of every

public servant for the same length of time. The retention

of public servants after the period of retirement depended

upon their efficiency and the exigencies of public service.

It cannot be urged that if Government decides to retain the

services of some Government servants after the age of

retirement it must retain every Government servant for the

same length of time. The retention of public servants after

the period of retirement depends upon their efficiency and

the exigencies of public service."

This again is a complete answer to the contention of the

respondents that they had been discriminated against. The

fact that certain persons were found fit to be continued in

service does not mean that others who were not so found fit

had been discriminated against. Otherwise the whole idea of

continuing only efficient people in service even after they

had completed 55 years becomes only meaningless. In this

connection we may refer to certain observations of this

Court in, Union of India v. J. N. Sinha(2) as follows :

"There is no denying the fact that in all organizations and

more so in government organisations, there is

(1) [1965] 1 S.C.R. 693.

(2) [1971] I S.C.R. 791 at 795.

166

good deal of dead wood. It is in public interest to chop

off the same."

With respect we agree with this observation. It is also to

be noticed that there is no allegation of any mala fides on

the part of any of the authorities who had to deal with

their cases, alleged or proved in any of the cases.

We thus come to the conclusion that there are no merits in

any of the contentions put forward on behalf of the

respondents, in these five appeals. This, however, leaves

the question regarding the certificate granted by the High

Court of Assam in the case of three respondents in three

civil appeals Nos. 1961 to 1963 of 1969.

The certificates simply say "Leave to appeal to Supreme

Court is granted" but do not mention under what particular

clause or sub-clause of Art. 133 leave was granted. Based

on the decision of this Court in Sardar Bahadur S. Indra

Singh Trust v. C.I.T.(1) where it was stated:

"In that certificate all the we find is a held statement by

the High Court that the case is a fit one for appeal to this

Court. This Court has ruled that such a certificate is an

invalid one and an appeal brought on the strength of such a

certificate is not maintainable."

Mr. Daphthary who appeared for the respondent Bansi Ram Das

urged that the appeal should be dismissed on this simple

ground. If this contention is to be up-held it will apply

to the other two cases also. On behalf of the State of

Assam it was contended that this point was not raised till

the appeals were taken up for' argument, that they were

taken by surprise and they would be prepared to file a

petition for special leave if that was considered'

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

necessary, if the appeals were adjourned by a week. In the

very case relied upon by Mr. Daphtary the appellant filed a

special leave application and after hearing the parties the

Court came to the conclusion that the leave asked for should

be granted. We may now consider some of the earlier

decisions of this Court on this point. In The Union of

India v. Kishori Lal Gupta & Bros(2) special leave to appeal

from the judgment of a single judge of the High Court had

been obtained without first appealing to the appellate

blench of the High Court. This Court held that the leave

could have been revoked if the objection was taken at the

earliest opportunity, and an objection to the leave so

granted and an application for revocation of leave made

after inordinate delay at a later stage would prejudice the

appellant, for it the objection had

(1) [1971] 82 I.T.R. 561.

(2) [1960] 1 S.C.R. 493.

167

been taken at the earliest point of time the appellant would

have the opportunity to prefer a Letters Patent Appeal and

the appellant cannot be made to suffer for the default of

the respondent.

In Shri Durga Prasad v. The Banaras Bank Ltd.(1) the High

Court had certified the case under Art. 13 3 (1 ) (a) of the

Constitution for appeal to this Court. It was urged during

the hearing of the appeal on behalf of the other side that

the appeal was not competent on the ground that the High

Court had no jurisdiction to grant the certificate under

Art. 1 3 3 ( 1 ) (a) of the Constitution without certifying

that the appeal involved some substantial question of law.

This Court held that the appeal could not be entertained as

it was a case of a judgment of the High Court which affirmed

the judgment of the single Judge and the High Court had not

certified that the decision involved any substantial

question of law. The counsel for the appellant, however,

requested that in any event special leave to appeal under

Art. 136 of the Constitution be granted. But having regard

to all the circumstances this Court decided that it was not

a fit case for granting leave to appeal.

In Civil Appeal No. 578 of 1963, decided on 23rd July, 1965

,this Court, though it held that the certificate granted by

the High Court was incompetent, heard the Counsel for the

appellant, who made an oral request for grant of special

leave undertaking to file a petition supported by an

affidavit and by an application for condonation of delay

immediately. This Court thought that it was a fit and

proper case and that special leave should be granted because

important questions of law had to be decided. It directed

the appellant to file the necessary special leave petition

within a' week.

In the latest decision of this Court in Bijili Cotton Mills

v.Industrial Tribunal II(2) , to which one of us was a

party, it was held that this Court under Art. 136 is fully

competent to entertain even an oral prayer for grant of

special leave and condonation of delay and if the cause of

justice so demands, to grant the same and to consider the

special leave to appeal on merits. On consideration of all

the circumstances of that case it was held that it was fit

for granting special leave to appeal and for condoning the

delay. The decision in C.A. 578 of 1963 was cited with

approval. These cases establish that the powers of this

Court to grant special leave under Article 136 are very wide

and that it would be prepared to exercise it at any stage in

a power case. Furthermore, it would not allow an objection

to the nature of the certificate to be taken if it is done

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

at a late stage making it impossible for the

(2) A.I.R. 1972 S.C. 1906

168

appellant to resort to the proper remedy as he could have

done if the objection had been taken at an early stage.

This Court does not simply dismiss an appeal on the ground

that the leave obtained was not a proper one and leave the

matter, to rest there. It is always prepared to consider

the request for grant of special leave at any stage if the

circumstances of the case require. An objection to the

certificate should be taken at the earliest possible moment

and the respondent's failure to do so would not be allowed

to prejudice the appellant and he would not be made to

suffer for the failure of the respondents. In this case

also if the objection had been taken at the earliest point

of time the appellant could have applied for special leave

and in the circumstances of this case we would have been

prepared to grant special leave. When the High Court

decided these cases the judgment of this Court in Assam v.

Premadhar had not been delivered. Therefore, a substantial

question of law arose for decision in these cases. If the

respondents had raised the point at the earliest possible

time we would have been prepared to consider an oral request

for special leave and for condonation of delay and to direct

the appellants to file petitions for this purpose. But as

it has been done only at the last moment after the appeals

were taken up for hearing we are of opinion that the

appellants should not be made to suffer by the

respondents'negligence. We, therefore, hold against this

objection.

In the result all the five appeals are allowed and the

judgments of the Assam High Court are set aside. We,

however, make no

order as to costs.

V.P.S.

Appeals allowed.

169