Bichitrananda Das vs State of Orissa

G.K. Misra, C.J.—Petitioners''s case may be stated in short. He was born on 18th December, 1917, joined service as a Sub-Deputy Collector on 5-10-1943 and was superannuated on 17-12-1972 while he was in Class I of the Orissa Administrative Service on his attaining the age of 55 years. Under Rule 71(a) of the Orissa Service Code he was to retire on the completion of his 55th year. By virtue of a resolution dated 21-5-1963 (Annexure-I) which was a statutory rule under Article 309 of the constitution the age of compulsory retirement was raised to 58 years. On this basis the due date of retirement of the Petitioner was 17-12-1975. By another resolution dated 19th/20th February, 1968 (Annexure-2) the age of compulsory retirement was reduced to 5 years. Again, by a resolution dated 13th June. 1974 (Annexure-3) the age of compulsory retirement has been raised to 58 years. Annexure-2 is an executive instruction and cannot supersede Annexure-1 which is a statutory rule. The writ application has been filed under Articles 226 and 227 of the Constitution with a prayer that the Petitioner would be deemed to be continuing in service till 17-12-1975 and for consequential benefits.

The State of Orissa (opposite party) has filed a counter making an averment that Annexures-1, 2 and 3 are all executive instructions and Annexure-l is not a statutory rule. Annexures-l and 2 have been extracted in the previous decisions of this Court and Annexure-3 was never dealt with earlier. Annexure-3 is reproduced hereunder:

Government of Orissa Finance Department. Memo No. Pen-22/74-23408 (110)/F. Bhubaneswar, the 13th June, 1974. To All Departments of Government Heads of Departments. Sub: Fixation of the age of superannuation of State Government servants.

The undersigned is directed to say that after careful consideration of the recommendations of the Fourth Pay Committee to which the matter relating to the fixation of age of superannuation of the State Government servants had been referred for examination and advice, the State Government have been pleaded to decide that the age of superannuation of the State Government servants other than Class IV Government servants shall be 58 years subject to the condition that a review shall be conducted in respect of the Government servants in the 55th year of age in order to determine whether he/she should be allowed to remain in service up to the date of the completion of the age of 58 years or retired on completing the age of 55 years in public interest. It has also been decided that the review in the 55th year of age shall be in addition to the one already prescribed under Rule 71(a) of the Orissa Service Code These decisions of the State Government have been recorded in the statement annexed to the Finance Department Resolution No. P.R. 10/74-229-47/F. dated 11-6-1974 which has been published in an extraordinary issue of the Orissa Gazette dated 11-6-1974.

Necessary amendment of the existing provisions of the Orissa Service Code to give statutory effect to the aforesaid decisions of the State Government is being processed and will be notified as soon as possible.

Government have also been pleased to decide that the fixation of the age of superannuation at 58 years subject to the review to be conducted in the 55th year shall come into force with effect from the 11th June, 1974. Government servants who attain the age of 55 years on or after the 11th June, 1974 shall, however, be allowed to continue in service till decision is taken on review of their suitability for continuance in service beyond 55 years of age in accordance with the principles and procedures of review to be prescribed. Specific

notice should be issued to such persons to the effect that their continuance beyond the age of 55 years, is subject to the review as aforesaid. Sd/ - Illegible 13-6-1974 Secretary to Government. Memo No. 2.3409 (32)/F. Dated 13th June, 74.

Copy to all District Officers/ All Dist. and Sessions Judges/ Registrar, Orissa High Court/Secretary to Government Secretary to Chief Minister/ Secretary to O.P.S.C./Secretary to O.L.A./ Principal, A.T.S./ Principal S.T.I./ A.G., Orissaf D.A.G., Orissa/ Registrar, Accounts section (Finance Department)/Director, Printing and Publication, Orissa, Cuttack for information.

Sd/ - Illegible.

The sole contention urged by Mr B. K Misra in support of the petition is that Annexure-l and 3 are statutory rules under Article 309 of the Constitution while - Annexure-2 is an executive instruction. In support of his contention reliance was placed on Batahari Jena and Another Vs. State of Orissa and Another, " Batahari Jena and Another Vs. State of Orissa and Another, , and E. Venkateswara Rao Naidu Vs. Union of India (UOI), .

In Batahari Jena and Another Vs. State of Orissa and Another, a Bench of this Court consisting of Ahmed, C.J. and G K. Misra J. construed the identical memorandum (Annexure-1) as a rule framed under Article 309 of the Constitution. This case was affirmed in Batahari Jena and Another Vs. State of Orissa and Another, . Such a contention was, however not urged before the Supreme Court and consequently not dealt with E. Venkateswara Rao Naidu Vs. Union of India (UOI), , affirmed a similar decision of the Orissa High Court wherein the question whether Annexure-l was a mere executive instruction or a rule under Article 309 of the Constitution was not mooted or discussed. These two Supreme Court decisions are, therefore, no authorities to support the argument that Annexure-1 is a rule under Article 309.

In I.N. Saksena Vs. State of Madhya Pradesh, , a similar resolution was held to be an executive instruction. The resolution has been extracted in the Supreme Court Judgment itself in paragraph 1.

The same view was taken in The State of Assam and Others Vs. Premadhar Baruah and Others, etc., , Ray J. (as his Lordship then was) construed similar resolutions as executive instructions.

The judgment in Batahari Jena and Another Vs. State of Orissa and Another, , was delivered on 19-9-1966. The judgments in I.N. Saksena Vs. State of Madhya Pradesh, and The State of Assam and Others Vs. Premadhar Baruah and Others, etc., , were subsequent to the judgment in Batahari Jena and Another Vs. State of Orissa and Another, .

The identical point again came up for consideration before a Bench consisting of G.K. Misra, C.J. and B.C. Das J. The Bench held that the resolutions of 1963 (Annexure-I), 1965, and 1968 (Annexure-2) were all executive instructions and not rules framed under Article 309 of the Constitution. Placing reliance on I.N. Saksena Vs. State of Madhya Pradesh, and The State of Assam and Others Vs. Premadhar Baruah and Others, etc., , the Bench held that the conclusion in Batahari Jena and Another Vs. State of Orissa and Another, that Annexure-1 was a rule under Article 309 of the Constitution did not lay down good law. It was not necessary to refer the matter to a larger Bench as the matter was concluded by the Supreme Court decisions.

The identical matter again came up for consideration in Gokulananda Das v. State of Orissa I.L.R 1972 Cutt 249 (F.B.) before a Full Bench of this Court consisting of S.K. Ray, B.K. Patra and B.C. Das n. Their Lordships referred to the relevant decisions and held that Batahari Jena and Another Vs. State of Orissa and Another, was wrongly decided and Dr. (Miss) Binapani Dei v. State of Orissa and Anr. AIR 1971 Ori 170, laid down the correct law. In State of Assam and Another, etc. Vs. Basanta Kumar Das, etc. etc., , similar memorandum dated 21-3-1963 was held to be a mere executive instruction and nota rule under Article 309 of the Constitution. (see para 11).

Thus, the settled position is that Batahari Jena and Another Vs. State of Orissa and Another, has been over-ruled by Dr. (Miss) Binapani Dei v. State of Orissa AIR 1971 Ori 170 and Gokulananda Das v. State of Orissa I.L.R 1972 Cutt 249 (F.B.), Batahari Jena and Another Vs. State of Orissa and Another, and E. Venkateswara Rao Naidu Vs. Union of India (UOI), , did not at all refer to or discuss this question. They are not authorities on the point in issue. Merely because Batahari Jena and Another Vs. State of Orissa and Another, , affirmed Batahari Jena and Another Vs. State of Orissa and Another, , it does not follow that their Lordships affirmed the view of the Orissa High Court on the particular point that the impugned resolution (Annexure-1) was a rule under Article 309 of the Constitution.

This Court and the Supreme Court have thus consistently held that Annexure-I and 2 are executive instructions. On the same reasoning Annexure-3 is an executive instruction.

This writ application is wholly frivolous in view of the settled law on the decisions of this Court and the Supreme Court. Mr. B.K. Misra should not have cited the over-ruled decision in Batahari Jena and Another Vs. State of Orissa and Another, We do Dot proposed to take any action against him on account of his inexperience at the Bar.

We were inclined to saddle the Petitioner with heavy and exemplary costs for having filed a frivolous writ application contrary to law already settled and we had so announced in Court at the conclusion of the hearing. But in view of the fact that the legal advice was given by Mr. Misra who has joined the Bar recently, we refrain from imposing costs on the Petitioner who does not seem to be aware of the development of law.

On the aforesaid analysis, the writ application is dismissed; but in the circumstances, without costs.

P.K. Mohanti, J.

I agree.