Bal Raj Tuli, J.:— The petitioner joined service in the Punjab Public Works Department. His date of birth being October 1, 1912, he attained the age of 55 years on October 1, 1967, and on June 27, 1967, he was given a notice that he would retire on attaining the age of 55 years. That notice was withdrawn on October 4, 1967, and the petitioner was allowed to continue in service. On May 8, 1969, the Secretary to Government, Haryana, Public Works Department, issued the following notice to the petitioners:—
“Subject:— Establishment Sub Divisional Engineers Continuance beyond the age of 55 years — Shri Dev Dutt Gupta.
Reference subject cited above.
The Governor of Haryana, in terms of Rule 5.32 of the Punjab Civil Services Rules, Volume II, is pleased to retire you from service. You are hereby given three months' notice and directed to hand over charge on the expiry of this notice. The notice shall take effect from the date of its service to you.”
2. The petitioner has challenged that notice by means of this petition on the ground that when the Government had withdrawn the notice already issued, it had no power to issue the impugned notice and the petitioner should have been allowed to continue in service till he attained the age of 58 years. Written statement has been filed by respondent No. 1 justifying the order.
3. The learned counsel for the petitioner has placed great reliance on the instructions issued by the Chief Secretary to Government, Punjab, to all Heads of Departments, on May 19, 1964, the relevant portion of which reads as under:—
“Once it is decided to retain a Government employee beyond the age of 55 years, he should be allowed to continue upto the age of 58 years without any fresh review unless this is 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. It is felt that in order that a Government employee who is cleared for continuance at a stage of attaining the age of 55 years may settle down to another three years of work with a sense of security and those working under him accept his control and discipline without any reservation, an annual review between the ages of 55 years and 58 years would not be desirable.”
4. These instructions were considered by a Full Bench of this Court in Pritam Singh Brar v. The State of Punjab, I.L.R (1967) 2 Punjab and Haryana 448, and the learned Judges observed that:
“The procedure or the instructions contained in the aforesaid letter of the Chief Secretary to Government, Punjab, cannot operate to limit or restrict the operation of the provisions of rule 5.32”
5. Rule 532(c) gives the power to the appointing authority to retire any Government employee except class IV Government servant on or after attaining the age of 55 years by giving him not less than three months' notice without assigning any reason. This power, in my opinion, can be exercised at any time during the three years from the date the employee attains the age of 55 years to the date he attains the age of 58 years. But the instructions issued by the Government referred to above were not issued under any constitutional provision or statutory law or rule and, therefore, cannot be made the basis for a legal right by the petitioner to continue in service till he attained the age of 58 years. Their Lordships of the Supreme Court held in G.J Fernandez v. The State of Mysore, A.I.R 1967 S.C 1753, as per head-note A, as under:—
“Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course, under such executive power the State can give administrative instructions to its servants how to act in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. There is no statute which confers any authority on the State Government to issue rules in matters with which the Mysore Public Works Department Code is concerned. Thus the instructions contained in the Code are mere administrative instructions and not statutory rules. Therefore, even if there has been any breach of such executive instructions, that does not confer any right on any member of the public to ask for a writ against Government by a petition under Article 226. It is a matter between the State Government and its servant.”
6. In the body of the judgment the last sentence set out above has been elucidated as under:—
“But assuming that there has been any breach, that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant, to come to Court for any relief based on the breach of these instructions.”
7. It is quite clear from these observations that the petitioner cannot claim any legal right to continue in service upto the age of 58 years on the basis of the executive instructions referred to above.
8. The learned counsel for the petitioner has submitted that there is no power in the Government or the appointing authority to review an order once passed continuing a Government servant in service after attaining the age of 55 years. In support of his submission, he has relied on a judgment of the Privy Council in R.T Rangachari v. Secretary of State, A.I.R 1937 Privy Council 27. That judgment, however does not apply to the facts of this case. If a Government servant attains the age of 55 years, he can be retired from service at any time after giving him three months notice. If at all the provisions of the General Clauses Act apply to such cases which confer the right to modify, alter, rescind or cancel any order previously made. The submission of the learned counsel that the words “at any time” or “from time to time” are not to be found in rule 5.32(c) of the Rules has no force. I put to the learned counsel whether after the age of 55 years, in spite of the Government order withdrawing the first notice of retirement, the petitioner could tender his resignation and retire from service after serving three months' notice on the Government.
9. His answer was in the affirmative and rightly so. It is quite clear that rule 5.32(c) confers a right on both the appointing authority and the Government servant to server the relationship of master and servant after the Government servant attains the age of 55 years by giving three months' notice to the other. The right is reciprocal. The Government can retire a Government servant after giving him three months' notice and so can the Government servant resign after giving three months' notice without forfeiting his previous service. If the rule with regard to continuance in service after once the appointing authority decides to retain the Government servant in service after he has attained the age of 55 years were to apply, then the petitioner would have had no right to resign till he attained the age of 58 years, which is not the case, as admitted by his learned council. The answer to the argument of the learned counsel is that the power of retirement, after giving three months' notice, can be exercised at any time after the Government servant attains the age of 55 years and before he attains the age of 58 years, that is, after a Government servant attains the age of 55 years, his tenure of service becomes a tenure at the pleasure of the appointing authority terminable by three months notice at any time. I am of the opinion that if a notice once issued is withdrawn, another notice can be issued before the Government servant attains the age of 58 years, which is;the prescribed age of superannuation. It will neither be illegal nor without-jurisdiction as rule 5.32 does not debar the issuing of a second notice.
10. The learned counsel has relied on the judgment in V.O Koruthu v. The Kerala State Electricity Board, 1972-1.LLJ 304, which “is distinguishable on facts. In that case, it was held that once the authority acts on the instructions, then it is debarred from giving a go bye to those instructions. In view of the above conclusion that after attaining the age of 55 years this right can be exercised at any time, that argument has no force. Moreover the petitioner attained the age of 58 years during the pendency of this writ petition and has since retired. There is, therefore, no question of quashing the impugned order.
11. For the reasons, given above, I find no merit in this petition which is dismissed, but the parties are left to bear their own costs.
12. Petition dismissed.