RAy,C.J.–This appeal is by certificate from the judg-

ment dated 26 October 1968 of the Judicial Commissioner for

Manipur.

The appellant by a writ petition challenged the order of

respondent No. 1 by which the appellant was compulsorily

retired.

The Judicial Commissioner dismissed the writ petition

of the appellant.

The appellant was born on 1 January 1911. He joined

the erstwhile State of' Manipur as a junior clerk in 1935.

Though he was not a Law Graduate, he rose to become a

permanent Puisne Judge in Manipur State Chief Court with

effect from 5 October 1949. After the Government of India

took over the administration of Manipur the appellant was

appointed as a Subordinate Judge with effect' from 25 Janu-

ary 1950 on a temporary basis. On the enactment of Manipur

Courts Act 1955 the Court of Subordinate Judge was estab-

lished .on 1 March 1956. The appellant was appointed as

the Judge of that Subordinate Court from that date.

The appellant did not earn good reports from superior

officers. He was reverted to the post of subordinate Judge.

The appellant was served with a notice dated 30 June

1966 that he was required to retire from Government service

with effect from 1 October 1966 in pursuance of the direc-

tions of the President in Paragraph 6 of the. Government of

India Decision No. 23 noted below Fundamental Rule 56.

The above Decision No. 23 was contained in the Memoran-

dum of the Government of India, Ministry of Home Affairs

dated 30 November 1962. The Decision came into force on 1

December 1962. Under Paragraph 6 of the Decision the

appointing authority was empowered to require a Government

servant to retire after he had attained the age of 55 years

on three months notice without assigning any reason. This

provision was really intended to retire an officer who had

completed 30 years' qualifying service. The purpose of the

provision was to weed out unsuitable employees after they

attained the age of 55 years.

The Government Decision No. 23 below Fundamental Rule

No. 56 which came into force on 1 December 1962 as aforesaid

was substituted by new Rule .on 21 July 1965. The new rule

provided that

if the appropriate authority is of, opinion that it is in

public interest to do so, he has the absolute right to

retire any Government servant after he attained the age of

55 years with notice of not less than three months.

The appellant on receiving the notice for retirement

prayed for his being retained in service after the age of 55

years in public interest. The representation of the appel-

lant was rejected. It is in this background that the appel-

lant filed the writ petition.

The principal contention of the ,appellant was that the

impugned order of compulsory retirement was null and void ab

initio because the Fundamental Rule 56 at the material time

contained no reservation, of any powers in the appointing

authority to retire him without any reason on three months

notice after the age of 55 years. Emphasis was placed by

counsel on the fact that the impugned order was made ex-

pressly under the authority of Government of India Decision

No. 23 below Fundamental Rule 56 and this Decision was not

subsisting at the time of the impugned notice. It was

also. contended that the Government Decision was not incor-

porated in Fundamental Rule 56 and therefore it amounted to

a mere executive instruction and not a rule within the

meaning of Article 309. The appellant also contended that

in substance, the compulsory retirement was removal under

Article 311.

Compulsory retirement is not a punishment. There is no

stigma in compulsory retirement. See Tara Singh etc. etc.

v. State of Rajsthan and ors.(1)

It is also the view of this Court that if power can be

traced to a valid power the fact that the power is purported

to have been exercised under non-existing power does not

invalidate the exercise of the power. See L. Hazari Mal

Kuthiala v. Income-tax Officer, Special Circle Ambala Court

and Anr.(2) and Hukumchand Mills Ltd. v. State of Madhya

Bharath & anr.(3)

The Government case is that the Chief Commissioner by

reason of the order of the President contained in Government

of India, Ministry of Home Affairs Memorandum No. 33/18/62-

ESTS(A) dated 30 November 1962, followed by Fundamental

(Sixth Amendment) Rules, 1965, had the power to retire the

Government servant without assigning any reason if he was of

opinion that it was in the public interest to do so.

The relevant Fundamental Rule 56(J) is as follows :–

"Notwithstanding anything contained in this

Rule, the appropriate authority shall, if it

is of the opinion that it is in the public

interest to do so, have the absolute right to

retire any Government servant after he has

attained the age

(1) [1975] S.C.R. 1002. (2) [1961] 1 S.C.R.

892. =41.I.T.R. 12.

(3) [1964] 6 S.C.R. 857=52 I.T.R. 583.

of 55 years by giving him notice of not

less than three

months in writing".

The affidavit evidence is that the order of compulsory

retirement was made in public interest. The absence of

recital in the order of compulsory retirement that it is

made in public interest is not fatal as long as power to

make compulsory retirement in public interest is there and

the power in fact is shown in the. facts and circumstances

of the case to have been exercised in public interest.

In R.L. Butail v. Union of India & Ors.(1) this Court

considered Fundamental Rule 56(j) and the circumstances

under which compulsory retirement can be made in public

interest. It is true that in Butail's case (supra), the

notice in terms of Fundamental Rule 56(j) was served,

namely that the order of complusory retirement was made in

public interest.

A comparision between Paragraph 6 of Decision No. 23

below Fundamental Rule 56 and Fundamental Rule 56(j) of

amended F.R. 56 shows that the two deal with the identical

matter of compulsory retirement. The common features are

that the Government servant may be asked to retire after the

age of 55 years. Second, such retirement is ordered to be

made by giving the Government servant a notice of three

months. Third, the power to retire is an absolute right

without assigning any reason. Fourth, under the amended

Fundamental Rule 56(j) the power is exercised only if the

appropriate authority is of opinion that it is in public

interest to do so.

The Government affidavit is that the Chief Commissioner

made the order because he was of opinion that it was in

public interest to do so. Whether the order is correct or

not is not to be gone into by the court. See Union of India

v. J. N. Sinha.(2)

In the present case, Counsel for the appellant contended

that it did not appear in the order that there was any

application of mind that the order was being made in public

interest. In Butail's ease (supra) it was said that the

plea that the appropriate authority had not applied its mind

failed there in view of the clear averments made in that

regard in the affidavit and, no reason was adequately shown

to discord those statements as untrue Or Otherwise unbeliev-

able. In the present case, the affidavit evidence estab-

lishes that the Commissioner exercised his powers because he

was of the opinion that it was in pub, lie interest to make

the order of compulsory retirement. The order in the

,present case is made bona fide and nothing is on the record

to show that the affidavit is unbelievable.

the foregoing reasons the appeal fails and is dismissed

with no order as to costs.

S.R. Appeal dismissed.

(1) [1971] 2 S.C.R.. 55. (2) [1971] 1 S.C.R. 791.