DUTTA, C. J.:- This is a writ petition filed by one Sri Bansi Ram Das challeng­ing an order of the Government of Assam refusing to allow him to continue in ser­vice as Professor of Physics in the Govt. Cotton College, Gauhati beyond the age of 55 years. The petitioner's case is that he joined the Physics Department in the aforesaid college as a Lecturer in the year 1946 and was promoted to the post of Professor and was confirmed in that post with effect from 1-8-60. The petitioner contends that during the time he worked as the Professor and the Head of the Department of Physics, the results of his students at the University examination were uniformly brilliant. In the year 1965, the results of B.Sc, Part II examination were so excellent as to bring commendation from the Secretary to the Government of Assam in the Education Department vide Annexure I to the peti­tion. It is further contended that being satisfied with his work, the Government of Assam allowed the petitioner to cross the efficiency bars in his pay scale. In 1963, the Government of Assam decided to raise the retirement age of Govern­ment employees from 55 years to 58 years, and those Government servants who were due to retire on or after the 16th February, 1963, were allowed to continue until further orders. The Gov­ernment of Assam issued an office memo­randum dated the 21st March, 1963, (An­nexure II) saving that it had been decided that the age of compulsory retire­ment of State Government servants should be 58 years. It was further said that this decision would apply to all Gov­ernment servants who retired or would retire on or after the 1st December, 1962. No Government servant would be entitl­ed to the benefit unless he was permit­ted to continue in service after the age of 55 years on the appointing authority being satisfied that he was efficient and physically fit for further Government service. It was also laid down in the memorandum that the appointing autho­rity might require a Government servant to retire if he attained the age of 55 years, on three months' notice without assignment of any reason. The Govern­ment servant could also after attaining the age of 55 years voluntarily retire after giving three months' notice to the appointing authority. It was also laid down in the memorandum that the appointing autho­rity might require a Government servant to retire if he attained the age of 55 years, on three months' notice without assignment of any reason. The Govern­ment servant could also after attaining the age of 55 years voluntarily retire after giving three months' notice to the appointing authority. In the annexure to the memorandum the procedure to find out the efficiency and the physical fitness of the employee concerned was laid down. Persons in the pay scale as of the petitioner were to be tested as to their efficiency by a Board consisting of the Chief Secretary, the Secretary and the Head of the Department concerned. As regards physical fitness, such persons were to be examined by the Civil Sur­geon of the District in which they were posted. 2. The petitioner was attaining the age of 55 years on 1-1-66 and he applied to the Government to regularise his conti­nuance in service up to the age of 58 years as per provisions laid down in the Government memorandum. Thereafter the petitioner underwent a medical exa­mination by the Civil Surgeon, Kamrup, who declared and certified him to be physically fit. The efficiency of the peti­tioner was then tested by the Screening Board consisting of the Chief Secretary. Education Secretary and the Director of Public Instruction and he was found to be efficient But yet the petitioner was informed by the Principal of the College by his Memo No. 840-41 dated 28-1-6S that the Government had decided not to allow him to continue in service beyond the age of 55 years. Thereafter the peti­tioner moved the Government and met the Chief Minister personally- and pray­ed for reconsideration of his case. But the Government rejected the petitioner's appeal by an order dated the 7th June, 1966. Hence the petitioner has come be­fore this Court by this writ petition. 3. Both Mr. Sen, the learned Counsel for the petitioner, as well as the learned Advocate-General have relied on the decision of the Supreme Court in the case of I. N. Saksena v. State of M. P., re­ported in AIR 1967 SC 1264 . Hence I may refer to this case in some details, The appellant before the Supreme Court in. that case was a District and Sessions Judge in the service of the State of Madhya Pradesh (hereinafter called the appellant). Hence I may refer to this case in some details, The appellant before the Supreme Court in. that case was a District and Sessions Judge in the service of the State of Madhya Pradesh (hereinafter called the appellant). He would have in the normal course retired completing the age of 55 years in August, 1963. But on February 28. 1963 the Government of Madhya Pradesh issued a memorandum to all Collectors in the State. A copy of this memorandum was also sent to the Regis­trar of the High Court as well as the Finance Department and the Accountant General. The relevant part of this me­morandum was as follows: "The State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 years subject to the follow­ing exceptions. effect from the afternoon of the 31st December. 1963," 4. The above order was in terms of the 5th paragraph of the memorandum which said that the appointing authority might require a Government servant to retire after he attained the age of 55 years on three months' notice without assigning any reason. On November 29, 1963, another notification was issued amending F. R. 56. But the condition mentioned above viz. 'the power to re­tire an employee on three months' notice was dropped from the said amend­ment. The appellant filed a writ peti­tion before the High Court challenging the Government order retiring him from service. His contention was that as the power to retire an employee on three months' notice was deleted from the Rule, he could not be retired on such a notice. Secondly, he contended that as his retirement cast a stigma on him, his retirement amounted to removal within the meaning of Article 311 of the Con­stitution. The High Court held that the order cast no stigma on the appellant. It also held that the memorandum it­self was a Rule and as such the appellant was bound by it. Thereafter the peti­tioner appealed to the Supreme Court. The Supreme Court accepted the view of the High Court that the retirement cast no stigma on the appellant. But it rejected the contention that the memor­andum itself was a Rule. It held that the memorandum was a mere execu­tive instruction which, however, amoun­ted to a general order issued under F. R. 56. The Supreme Court accepted the view of the High Court that the retirement cast no stigma on the appellant. But it rejected the contention that the memor­andum itself was a Rule. It held that the memorandum was a mere execu­tive instruction which, however, amoun­ted to a general order issued under F. R. 56. It further held that by this general order the superannuation age of all em­ployees was raised to 58' and hence the appellant continued in service by virtue of the memorandum till the amendment to F. R. 56 replaced the memorandum. Thereafter this amended F. R. 56 governed the case of the appel­lant and as the amended Rule did not provide for termination of service on three months' notice, the service of the appellant could not be so terminated. 5. In Assam the memorandum was issued but F. R. 56 was not amended. The Assam F. R. 56 is in the same terms as the Madhya Pradesh F. R. 56, as it stood before the amendment. It is as follows:- "F. R. 56.- (a) The date of compul­sory retirement of a Government ser­vant is the date on which he attains the age of 55 years. He may be retained in service after this age with the sanction of the State Government on public grounds which must be recorded in writ­ing, and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances. All persons who enter or have entered or are or have been re-employed in Gov­ernment service on or after the 29th April, 1941, shall be called upon to re­tire on attaining the age of 55 years or on the completion of total period of 30 years qualifying service, whichever is earlier. (b) Notwithstanding anything contain­ed in clause (a) a Government servant under suspension on a charge of miscon­duct shall not be required or permitted to retire on reaching the date of com­pulsory retirement, but shall be retained in service until the enquiry into the charge concluded and a final order is passed thereon by competent authority." 6. The memorandum issued by the Government of Assam is on all fours with the memorandum issued by the Madhya Pradesh Government. Only in the latter memorandum the conditions laid down in paragraph 3 of the Assam memorandum were not there. The memorandum issued by the Government of Assam is on all fours with the memorandum issued by the Madhya Pradesh Government. Only in the latter memorandum the conditions laid down in paragraph 3 of the Assam memorandum were not there. The Assam Memorandum is as follows:- "Government of Assam , Appointment (A) Department: Appoint­ment Branch. No. AAP. 217/62/15. dated Shillong, the 21st March, 1963. Office memorandum Sub: Raising of age of compulsory re­tirement of State Government employees. Government have been considering for sometime past the question of raising the age of compulsory retirement of Govern­ment Servants from 55 years to 58 years. Sometimes back orders were issued that pending a final decision on the subject Government servants who are due to re­tire on or after 16th February, 1963 should be continued in service until fur­ther orders. It has now been decided that the age of compulsory retirement of State Government Servants should be 58 years. 2. This decision will apply to all Gov­ernment Servants who retired or will retire on or after the 1st December, 1962. Government servants who were on leave preparatory to retirement on 1st Novem­ber, 1962 will be entitled to this benefit. Government Servants who were on refused leave from a date prior to 1st December, 1962, will not be entitled to the benefit of the increased age of com­pulsory retirement. This will also not apply in case of Government servants, who having reached the age of super­annuation on a date prior to 1st Decem­ber, 1962, have been allowed extension of service. Persons who have been al­lowed to continue in service vide Gov­ernment Memo No. AAP.212/62-A, dated 18th February, 1963 will be entitled to this benefit. 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. This procedure should be follow­ed even in case of those who were con­tinued in service in pursuance of Govern­ment orders communicated vide Memo No. AAP.217/62-A dated 18th February, 1963. 4. The procedure to be fol­lowed by the appointing authorities be­fore they permit a Government servant to continue in service is outlined in the Annexure. This procedure should be follow­ed even in case of those who were con­tinued in service in pursuance of Govern­ment orders communicated vide Memo No. AAP.217/62-A dated 18th February, 1963. 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. This will be in addition to the provisions already contained in Rule 1 (2) of the Assam Liberalised Pension Rules to retire an Officer who has completed 30 years' qua­lifying service or 25 years' qualifying service as the case may be. The Govern­ment servant may also after attaining the age of 55 years voluntarily retire after giving 3 months' notice to the ap­pointing authority. 5. The age of compulsory retirement of Grade IV staff who are at present entitl­ed to serve up to the age of 60 years in­cluding new entrants will continue up to 60 years. 6. As regards regularisation of the pe­riod of absence of those who retired on or after the 1st December, 1962 till the date of assuming duties, a separate communi­cation will follow. 7. These provisions will have effect from 1st of December, 1962. 8. Necessary amendments to the rele­vant rules will be issued in due course. Sd. A. N. Kidwai. Chief Secretary to the Govt. of Assam." 7. It is firstly argued by the learned Advocate-General that the memorandum being a mere executive instruction, it has no force of law and as such, it does not give a legal right to an employee. As such, no relief can be sought for by the petitioner by way of a writ petition. 9. It is true that the Supreme Court in the above case of I. N. Saksena held that the Madhya Pradesh memorandum was a mere executive instruction. But at the same time, it also held that the memorandum amounted to a general order issued under F. R. 56. This being so, it must follow that there was statu­tory sanction behind the executive ins­truction which thus had the force of law. But at the same time, it also held that the memorandum amounted to a general order issued under F. R. 56. This being so, it must follow that there was statu­tory sanction behind the executive ins­truction which thus had the force of law. The learned Advocate-General argues that the Madhya Pradesh memorandum can be distinguished from the Assam memorandum on account of the fact that in the Assam memorandum two conditions viz., efficiency and physical fitness are laid down as conditions for the ex­tension of the age of compulsory retire­ment. Hence, according to the learned Advocate-General, the Assam memoran­dum is not a general order and a parti­cular order will be necessary if the age of retirement of any particular officer is to be extended up to 58 years. It is diffi­cult to follow the line of argument of the learned Advocate-General. If the Gov­ernment wanted to extend the super­annuation age of a particular employee, it could have acted under F. R. 56 and is­sued an order in respect of that employee. It was not necessary to issue a memo­randum for such a purpose. The memo­randum is certainly a general order to the effect that the age-limit for compul­sory retirement of all Government em­ployees who were efficient and physically fit was raised upto 58 years. This memo­randum being issued under F. R. 56 has the force of law. 8. The provisions in the memoran­dum with which we are concerned in this case cannot be said to be discrimi­natory as they do not give naked discre­tion to the Government to pick up some­body at their sweet will and retire him at the age of 55 years. In the case of State of Mysore v. S. R. Jayaram, re­ported in AIR 1968 SC 346 , the validity of the last part of Rule 9 (2) of the Mysore Recruitment of Gazetted Proba­tioners Rules, 1959 was challenged. This part of the said rule reserved to the Gov­ernment the right of appointing to any particular cadre any candidate whom it considered more suitable for such a cadre. The said. Rule was silent on the question as to how the Government was to find out the suitability of a candidate for a particular cadre. There was nothing in the rule for testing the suitability of a candidate for any cadre. The said. Rule was silent on the question as to how the Government was to find out the suitability of a candidate for a particular cadre. There was nothing in the rule for testing the suitability of a candidate for any cadre. The Supreme Court held that this part of the rule gave the Government power to say at their sweet will that a candidate was more suitable for a particular cadre and to deprive him of the opportunity to join the cadre, for which he indicated his pre­ference. So this part of the rule was held to be violative of Articles 14 and 16 of the Constitution and was struck down. In the Assam memorandum a procedure is laid down for testing the physical fit­ness and efficiency of an employee who attains the age of 55 years. If he is found to be physically fit and efficient at this stage, his age of retirement must be 58 years. No arbitrary discretion is given to the Government to refuse such exten­sion if an employee is certified to have passed the efficiency and physical fitness tests. If any provision in the memoran­dum was interpreted to give an unquali­fied discretion to "pick and sack" that provision itself would be violative of Articles 14 and 16 of the Constitution. But although a law may not be discrimi­natory itself, its application may be so and in that case the application of the law must be struck down. 10. In the case of Union of India v. P. K. More, AIR 1962 SC 630 , the appel­lant before the Supreme Court was an employee in a Telephone workshop under the Union of India. He was detained under the Bombay Public Security Mea­sures Act and while he was in detention, his service was terminated. After his release he made a representation for re­instatement, but this was rejected. There­upon the said employee filed a suit in the Bombay City Civil Court where he inter alia contended that the order ter­minating his service violated Articles 14 and 16 of the Constitution as "he had been arbitrarily picked up and sacked". The trial Court dismissed the suit where­upon the employee appealed to the High Court. The High Court allowed the ap­peal and thereafter the Union of India appealed to the Supreme Court. The trial Court dismissed the suit where­upon the employee appealed to the High Court. The High Court allowed the ap­peal and thereafter the Union of India appealed to the Supreme Court. It was contended by the respondent that the order terminating his service violated the provisions of Articles 14 and 16 of the Constitution of India Article 14 lays down that the State shall not deny to any person equality before the law or the equal protection of the laws. Article 16 lava down that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. 11. The contention of the respondent was that "matters relating to employ­ment" included "matters concerning ter­mination of employment". It was argued that this Article provided that there could be no inequality of treatment in the ter­mination of service of any employee by the Government. The Supreme Court did not decide the correctness of this in­terpretation of the Article as it found that the discriminatory nature of the termination of service was not establish­ed in the case 12. In the case before us there is no doubt about the discriminatory nature of the action of the Government towards the petitioner. The petitioner has pointed out that three professors of the college name­ly Sri Shiba Prasad Ghose, Professor and Head of the Department of Mathematics, Sri Hiranmay Bhattacharjee, Professor in Bengali and Sri Jatindra Mohan Bhat­tacharjee Professor and Head of the De­partment of Bengali of the same college were allowed to continue in service be­yond the age of 55 years. The petitioner and a couple of others were arbitrarily picked up and sacked. Thus persons similarly placed were differently treated and thereby the action of the Govern­ment violated Article 14 of the Constitution. The learned Advocate-General however relies on Article 310 of the Constitution of India and argues that all civil posts being held at the pleasure of the Government, the Government may pick and choose any man for hostile treatment. Such a contention cannot be accepted. The exercise of the pleasure of the Government under Article 310 of the Constitution of India is made subject to other express provisions in the Consti­tution. Therefore, in exercise of its pleasure, the Government cannot deprive a person of his fundamental rights. Such a contention cannot be accepted. The exercise of the pleasure of the Government under Article 310 of the Constitution of India is made subject to other express provisions in the Consti­tution. Therefore, in exercise of its pleasure, the Government cannot deprive a person of his fundamental rights. More­over, as I have said above, the memoran­dum has the force of law and Article 13 of the Constitution of India lays down that the State shall not make any law which takes away or abuses any funda­mental right 13. It has been held by the Supreme Court in the case of L. C. Golak Nath v. State of Punjab, reported in AIR 1967 SC 1643 that the fundamental rights cannot be amended even by the proce­dure laid down in the Constitution itself for amendment of the Constitution. In this case the following observation of the Supreme Court is opposite. "To be able to abridge or take away the Fundamental Rights which give so many assurances and guarantees a fresh Constituent Assembly must be convoked. Without such action the protection of the Fundamental Rights must remain immu­table and any attempt to abridge or take them away in any other way must be regarded as revolutionary." 14. Obviously the Governor's pleasure cannot abridge a Fundamental Right In the result the petition is allowed. The petitioner will be deemed to have conti­nued in the service of the Government in spite, of Government Order No. ECL.64/58/24 dated the 23rd December, 1965 refusing to allow the petitioner to continue in service beyond the age of 55 years. It is directed that the petitioner shall be put back in service and he will continue there till he attains the age of 58 years. The petition is allowed with costs. Hearing fee is fixed at Rs. 200/-. 15. K. C. SEN, J.:- I agree. Petition allowed.