( 1 ) THE petitioner Shri P. L. Kumaraswamy is a Judicial Officer in the service of the State ot Mysore, now working as Principal Civil Judge, bangalore. He has prayed for a declaration that order No. GAD 51 SHC 72 dt. 5-8-1972 (Ext D), order No. GAD 51 SHC 72 dt-24-3-1972 (Ext. H; made by the State Government and the rules framed by the Governor under Notification No. FD 193 SRS 72 dt. 23-8-1972 are illegal, ultra vires, void and unenforceable and for a further declaration -that the continuance of respondent 3 Shri B. N. Ja> adevappa, respondent 4 Shri N. Rajashekharaswamy and respondent 5 Shri R. B. Kulkarni in the Judicial service of the State is illegal. ( 2 ) THE age of retirement of judicial officers in the State of Mysore, prior to the promulgation of the impugned rules, was 55 years. The Law commission in its 14th report recommended that the retirement age of subordinate judiciary in all the States should be raised to 58 years. Taking advantage of the said report, the District Judges made representations, through the High Court, for raising the age of retirement of the subordinate judiciary to 58 years. The Government, after consultation with the high Court, took a decision on the 3rd of August, 1972 to raise the age of retirement of the subordinate judiciary in the State from 55 years to 58 years. The decision of the State Government was given effedt to by issuing an order on the 9th of August, 1972, which reads as follows :"after examining all aspects of the case, it is hereby directed that the age of compulsory retirement of all the Judicial Service Officers, viz. , Munsiff's, Civil Judges and District Judges in the State shall be raised from 55 years to 58 years. These orders shall apply to all stch officers who are in service on 3rd August, 1972, including those officers who are in enjoyment of refused leave under Rule 110 of mysore Civil Services Rules. 2. Action to issue formal Amendment, to Rule 95 of the Mysore civil Services Rules will be taken separately. Mohanlal Sukhadia, Governor. These orders shall apply to all stch officers who are in service on 3rd August, 1972, including those officers who are in enjoyment of refused leave under Rule 110 of mysore Civil Services Rules. 2. Action to issue formal Amendment, to Rule 95 of the Mysore civil Services Rules will be taken separately. Mohanlal Sukhadia, Governor. "on the 23rd of August, 1972, the Governor in exercise of the powers conferred on him by the proviso to Art. 309 "of the Constitution, made the mysore Civil Services (Twenty-first Amendment) Rules, 1972, whereby rule 95 of the Mysore Civil Services Rules was amended and a specific provision WES made raising the age of retirement of District Judges, Civil judges and Munsiffs of the Mysore Judicial Service to 58 years in respect of ail those who were m service on the 3rd August, 1972. The Rules were given retrospective effect wtih effect from 3rd August, 1972. The said rules read as follows :"1. Title and commencement : (1) These rules may be called the Mysore Civil Services (Twenty-first Amendment) Rules, 1972. (2) They shall be deemed to have come into force on the third day of August, 1972. 2. Amendment of Rule 95 : In Rule 95 of the Mysore Civil Ser- vices Rules, after clause (d) the following clause with Explanation and Exception shall be inserted namely, (e) Notwithstanding anything contained in clause (a), the date of compulsory retirement of a District Judge, a Civil Judge or Mun- siff of the Mysore Judicial Service, in service on the 3rd day of August, 1972, shall be the date on which he attains the age of 58 years. Explanation : For the purpose of this clause a Judicial Officer who is under extension of service on the 3rd day of August, 1972, including an officer under extension of service in accordance with Note 2 to clause (a),, shall be deemed to be in service on that day. Exception : A judicial officer to whom the provisions of this clause are applicable, may be granted superannuation pension if he opts to retire under Rule 284, after attaining the age of 55 years. By order and in the name of the Governor of Mysore, sd. N. S. Bharath joint Secretary, to Government Finance Department. "thereafter, (the State Government made an order on the 24th of August, 1972 (produced in the case as Ext. By order and in the name of the Governor of Mysore, sd. N. S. Bharath joint Secretary, to Government Finance Department. "thereafter, (the State Government made an order on the 24th of August, 1972 (produced in the case as Ext. H), the operative portion of which reads as follows :"after examining all aspects of the case extension of service ia hereby granted to Sriyuths N. Rajasekhara Swamy, B. N. Jayadev- appa and R. B. Kulkarni, District Judges, upto and inclusive of 23rd augusit, 1972. This order is deemed to have come into effect from 5th August, 1972. " ( 3 ) RESPONDENT 3 was due to retire on the 12th of April, 1972 on his attaining 55 years of age, as required by Rule 95 of the MCS. Rules as was in force on that date. Before the said date, hs had applied for earned leave of 120 days preparatory to retirement from 14th December, 1971 to 11th of April, 1972. Respondent 3 who was in the cadre of District and Sessions judges of the Mysore State Judicial Service, was, at that time, on deputation and working as Chairman, Mysore Sales Tax Appellate Tribunal, bangalore. The leave as prayed for by the third respondent was refused by the order of the State Government dt. 14th December, 1971. By the same order, the third respondent was granted earned leave for 120 days from 12th April, 1972 and permitted to retire from service after the expiry of the said leave. The said order, which is produced as Ext. A, reads as follows :"no. FD 11 CAT 71 the Governor is pleased to refuse the earned leave for 120 days preparatory to retirement from 14th December 1971 to 11th April 1972 (both days inclusive) applied for by Shri B. N. Jayadevappa, District and Sessions, Judge, working as the Chairman, mysore Sales Tax Appellate Tribunal, Bangalpre, in public interest. He is permitted to avail the earned leave for 120 days with effect from 12th April 1972 comprising 70 days at Rs. 500 P. M. leave allowance as per Rule 156 of MCS. Rules and 50 days earned leave under Rule 112 of MCS. Rules and to retire from service after the expiry of the said leave. He is permitted to avail the earned leave for 120 days with effect from 12th April 1972 comprising 70 days at Rs. 500 P. M. leave allowance as per Rule 156 of MCS. Rules and 50 days earned leave under Rule 112 of MCS. Rules and to retire from service after the expiry of the said leave. "respondent 4 who was also in the cadre of District and Sessions Judges of the Judicial Service of the State of Mysore was on deputation and working as Chairman of the Mysore Co-operative Appellate Tribunal, Bangalore,. Though he completed 55 years on 8th August, 1970, extension of service was granted to him under Rule 95 of the Rules upto 8th of August, 1972. On 6/7th July, 1972,the State Government made an order permiting him to retire from service with effect from the 8th of August, 1972. The said order is produced in the case as Ext. B. Respondent 5, who was working as District and Sessions Judge, Mysore, was due to retire on 16th august, 1972 on hia attaining the age of superannuation of 55 years. On the 24th of July 1972, the State Government made an order permitting the fifth respondent to retire from service with effect from 16th August, 1972 as per the order produced in the case as Ext. C. ( 4 ) ON the 8th of August, 1972, the State Government made an order cancelling its earlier order of the 14th December, 1971, whereby respondent 3 was permitted to retire from service after the expiry of the leave of 120 days from 12-4-1972 and his services were placed at the disposal of the high Court of Mysore. The High Court, thereafter, posted him as District and Sessions Judge of Belgaum. On the 7th of August, 1972, the State government made an order cancelling the earlier orders of 7th July, 1972 and 24th July, 1972 whereby respondents 4 and 5 had been permitted to retire from service with effect from 8-8-1972 and 16-8-1972 respectively. They were thus continued in the same posts. ( 5 ) BEFORE the State Government took a decision on the 3rd of. Aug. , 1972, the age of retirement of all Government servants including the judicial officers in the State was 55 years as provided by Rule 95 of the7 Rules. They were thus continued in the same posts. ( 5 ) BEFORE the State Government took a decision on the 3rd of. Aug. , 1972, the age of retirement of all Government servants including the judicial officers in the State was 55 years as provided by Rule 95 of the7 Rules. It is only on the 3rd of August, 1972 that a decision was taken to raise the age of retirement of subordinate judicial officers to 58 years. 5a. It was urged that the order of the State Government dt. 5th august, 1972 raising the age of retirement of Munsiffs, Civil Judges and district Judges in the State to 58 years is illegal and invalid, on the ground that it conflicts with Rule 95 of the Mysore Civil Services Rules framed by the Governor in exercise of his powers conferred by the proviso to art. 309 of the Constitution. The executive power of the State under Article 162 of the Constitution cannot be exercised in respect of a field occupied by a legislative enactment or a rule framed under the proviso to art. 309 of the Constitution. As Rule 95 of the Rules is a statutory rule framed under the proviso to Art. 309, no executive order can validly be made which has the effect of amending the said statutory rule. As in the second para of the order of 'the State Government dt. 5th August, 1and72 it is stated that action to issue formal Amendment to Rule 95 of the Mysore civil Services Rules will be taken separately, it is not possible to understand the order dt. Sth August, 1972 as a rule framed by the Governor under Art. 309 of the Constitution. The order has, therefore, to be understood as an executive order of the State Government. The question for consideration is, as to whether the same is in conflict with Rule 95 of the mysore Civil Services Rules as contended by Shri S. G. Sundaraswamy. Rule 95 (a) of the Mysore Civil Services Rules" reads as follows :" 95 (a ). The order has, therefore, to be understood as an executive order of the State Government. The question for consideration is, as to whether the same is in conflict with Rule 95 of the mysore Civil Services Rules as contended by Shri S. G. Sundaraswamy. Rule 95 (a) of the Mysore Civil Services Rules" reads as follows :" 95 (a ). Subject to the provisions relating to protection of conditions of service prescribed by the Government of India in respect of persons allotted or deemed to be allotted to serve in connection with the affairs of the State of Mysore under S. 115 of the States Reorganisation act, 1956, 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 the date of compulsory retirement, with the sanction of Government and if the Government servant concerned is physically fit, on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances. Note 1 and 1a. Not typed as unnecessary. Note 2. The grant under Rule 110, of leave extending beyond the date on which a Government servant must compulsorily retire, or beyond the date upto which the Government servant has been permitted to remain in service, shall be treated as sanctioned an extension of service upto the date on which the leave expires. "the order of the Government of 5th August, 1972 was issued after the state Government had taken a decision on the 3rd of August, 1972 to raise the age of retirement of subordinate judicial officers to 58 years. As amendment to Rule 95 of the Mysore Civil Services Rules was likely to take some time, the Government made the order on the 5th of August, 1972. Under rule 95 of the Mysore Civil Services Rules, the age of compulsory retirement is 55 years. The rule, however, empowers the State Government to retain a Government servant in service after the date of compulsory retirement if he is physically fit, on public grounds to be recorded in writing. Such retention cannot be made after the age of 60 years, except in very special circumstances. R. 95, therefore, does empower the Government to retain any Government servant in service even after the due date of compulsory retirement. Such retention cannot be made after the age of 60 years, except in very special circumstances. R. 95, therefore, does empower the Government to retain any Government servant in service even after the due date of compulsory retirement. It was urged by Shri Puttaswamy, learned additional Government Advocate, that we should construe the order of the State Government dt. 5th August, 1972, as ordering retention in service all Munsiffs, Civil Judges and District Judges in the State till they attain the age of 58 years. As the Government had already taken a decision on the 3rd of August, 1972 to raise the age of retirement of the subordinate judicial officers to 58 years and as the State Government has, under rule 95 of the Mysore Civil Services Rules, power to retain Government servants in service after the due date of retirement, there are no good reasons as to why we should not construe the order of the State Government as an order retaining in service all District Judges, Civil Judges and munsiffs upto the age of 58 years till Rule 95 of the Mysore Civil Services rules is appropriately amended. The Supreme Court had occasion to a similar order in I. N. Saksena v. State of Mudhya Pradesh, AIR. 1967 SC. 1664. Rule 56 of the Fundamental Rules, which came up for consideration before the Supreme Court, which is similar to Rule 95 of the Mysore civil Services Rules, except for a small difference. Whereas rule 95 of the Mysore Civil Services Rules provides that a Government servant can be retained in service if he is physically fit and on public grounds to be recorded in writing by the Government, Rule 56 of the Fundamental rules does not expressly stipulate physical fitness of the Government servant as one of the conditions for retention in service after the attainment of the age of retirement. Construing Rule 56 of the Fundamental rules, the Supreme Court held that a general order retaining the services of all Government servants upto the age of 58 years could validly be made, though ordinarily one would expect individual order in each individual case under that rule. In that case, one Saksena, who was a District and Sessions Judge, was due to retire in August, 1963, on completion of 55 years, the age of compulsory retirement prescribed by Rule 56 of the fundamental Rules. In that case, one Saksena, who was a District and Sessions Judge, was due to retire in August, 1963, on completion of 55 years, the age of compulsory retirement prescribed by Rule 56 of the fundamental Rules. But, on February 28, 1963, the Government of Madhya pradesh issued a memorandum, which reads as follows :"the State Government have decided that the age of compulsory retirement of State Government's servants should be raised to 58 yrs. subject to the following exceptions 2. * * * * * 3. * * * * * 4. * * * * * 5. 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 three months notice without assigning any reason. . . . . the power will normally be exercised to weed out unsuitable employees after they have attained the age of 55 years. A Government servant may also after attaining the age of 55 years voluntarily retire after giving three months notice to the appointing authority. 6. These orders will have effect from the. 1st March 1963. 7. Necessary amendments to the State Civil Service Regulations will be issued in due course. Because of this memorandum, Shri Saksena who would have otherwise retired in August, 1963, continued in service. On 11th September, 1963, government made an order directing his retirement with effect from the afternoon of 31st December, 1963, obviously in terms of the 5th paragraph of the memorandum of 28th February, 1963, which we have extracted above. On 29th November, 1963, Rule 56 of the Fundamental Rules was amended by the Governor in exercise of the powers. conferred on him by the proviso to Art. 309 of the Constitution, thereby raising the age of retirement to 58 years. Clause 5 of the memorandum of the Government datea 28th February, 1963 giving power to the State Government to retire a government servant after his attaining 55 years of age by giving him three months notice was not incorporated by way of amendment to the rules framed by the Governor under the proviso to Art,309 of the Constitution. The amendment to the Fundamental Rules was given, retrospective effect with effect from 1st March, 1963. The amendment to the Fundamental Rules was given, retrospective effect with effect from 1st March, 1963. The Supreme Court construed the memorandum of 28th February, 1963 as an order by the Government retaining the services of all Government servants upto the age of 58 yrs. , subject to the conditions prescribed in the said memorandum. and till appropriate rules as to age of superannuation are framed. It was" further held that the order of the Government dt. 11-9-1963 retiring Shri Saksena with effect from 31st December, 1963 is illegal, on the ground that though he was retained in service after he attained 55 years on the strength of the memorandum dated 28th February, 1963, his services could not be terminated by invoking clause 5 of that memorandum, inasmuch as the rule which replaced it did not contain any provision similar to clause 5. The principle enunciated by the Supreme Court in Saksena's case is clearly applicable to the facts of the present case. We do not find it possible to agree with the submission of Shri Sunderaswamy, learned Counsel for the petitioner, that we should not apply the decision of the Supreme court in Saksena's case on the ground that Rule 56 of the Fundamental rules considered by the Supreme Court does not contain a provision providing that the Government servant should be physically fit if he is to be detained in service after the attainment of the age of retirement on public grounds, because it is obvious that physical fitness has to be taken into consideration while forming an opinion as to whether on public grounds it is necessary to retain a Government servant in service after the attainment of the age of compulsory retirement. Following the decision of the supreme Court, we construe the order of the Government dt. 5th August, 1972 as a general order retaining the services of all District Judges, Civil judges and Munsiffs who were in service on 3rd August, 1972, upto the age of 58 years till Rule 95 of the Mysore Civil Services Rules is appropriately amended. " ( 6 ) THERE is also no force in the contention that the order of 5th Aug. , 1972 is bad for wait of consultation with the High Court, inasmuch as the preamble to the said order itself clearly states that the High Court was in fact consulted in the matter. " ( 6 ) THERE is also no force in the contention that the order of 5th Aug. , 1972 is bad for wait of consultation with the High Court, inasmuch as the preamble to the said order itself clearly states that the High Court was in fact consulted in the matter. That is also borne out from the counter affidavit sworn to on behalf of the first respondent by Shri S. Balasubramanyam, under Secretary to Government, General Administration Department (Services), Bangalore. ( 7 ) SHRI Sunderaswamy next submitted that even if the order of the 5th August, 1972 is construed as a general order under Rule 95 of the mysore Civil Services Rules retaining all Munsiffs, Civil Judges and District judges till they attain the age of 58 years, the third respondent is not entitled to the benefit of the said order. It was submitted that the power under Rule 95 to retain a Government servant after he attains the age of retirement can only be exercised before he retires from service and not afterwards. The order of 5th August, 1972 in terms states that the benefit of the said order will be available to all in service on 3rd August, 1972, including those officers who are in enjoyment of refused leave under rule 110 of the Mysore Civil Services Rules. It was urged that Government servants who are in enjoyment of refused leave under Rule 110 of the Mysore Civil Services Rules being persons who have already retired from service, the power under Rule 95 cannot be exercised in their favour it was submitted that respondent 3 having retired on the 12th of "april, 1972 could not get the benefit of the order of 5th August, 1972, as he was not at all in service in August, 1972 in order to enable the State Government to retain him in service in exercise of its power under Rule 95 of the mysore Civil Services Rules. ( 8 ) WE have, therefore, to examine as to whether the third respondent was in service on 5-8-1972 and if respondent 3 was not in service on the date of the order but was only in enjoyment of refused leave under rule 110 of the Mysore Civil Services Rules, whether he could be retained in service under Rule 95 of the Mysore Civil Services Rules. ( 9 ) THE third respondent was due to retire on the 12 th of April, 1972 on his completing 55 years. Before that date, he had applied for earned leave of 120 days which he wanted to enjoy from the 14th of December, 1971 to 11th April, 1972. The leave prayed for by the third respondent was refused by the order of the Government dt. 14th December, 1971. By the same order, he was permitted to avail of earned leave for 120 days with effect from 12th April, 1972, which period would have expired on the 9th of August, 1972. Rule 110 of the Mysore Civil Services Rules provides that no leave shall be granted beyond the date on which an officer must compulsorily retire. The first proviso of the said Rule however provides that the authority empowered to grant leave may allow any officer who has been denied in whole or in part on account of the exigencies of the public service, the earned leave which was due to him, pending retirement, the whole or any portion of the earned leave so denied, even though it extends to a date beyond the date on which such officer must compulsorily retire. Note 2 to Rule 95 (a) provides that the grant of leave under R. 110 extending beyond the date on which a Government servant must compulsorily retire, or beyond the date upto which the Government servant has been permitted to remain in service, shall be treated as sanctioning an extension of service upto the date on which the leave expires. The leave which is granted under the first proviso to Rule 110 of the Mysore Civil services Rules is a post retirement leave which the Government servant is enabled to enjoy after retirement. If a Government servant is in enjoyment of a post retirement leave granted under Rule 110 of the Mysore civil Services, the Government cannot, in exercise of its powers, call upon such a Government servant to discharge his duties during the period of post-retirement leave, nor can the Government servant cancel his' leave and insist on joining duty during that period. This view of ours gets full support from the observations of the Supreme Court in Jai Ram v. Union of India, AIR. 1954 SC. 584. This view of ours gets full support from the observations of the Supreme Court in Jai Ram v. Union of India, AIR. 1954 SC. 584. the effect of Nate 2 to Rule 95, in our opinion, is only to create a fiction that there has been an extension of service. . of the Government servant for the limited purpose of enjoyment of post retirement leave and grant of pay and other allowances during that period. A Government servant cannot, in our opinion, be regarded as one in service during the period he is enjoying post-retirement leave granted under Rule 110 of the mysore Civil Services Rules. The orde. of the State Government dt. 5th of August, 1972 in so far as it purports to retain in service those who have attained the age of superannuation on or before 3-8-1972, but were in enjoyment of refused leave under Rule 110 of the Mysore Civil Services Rules is, (to that extent, invalid as it contravenes Rule 95 of the Mysore Civil services Rules. The rest of the order dt 5-8-1972 directing retention of all subordinate judicial officers who were in service on 3-8-1972 till they attain the age of 58 years is valid. ( 10 ) BUT, it was urged on behalf of respondents 1 and 3 that the third respondent was in fact m service in August, 1972 and that therefore he is also entitled to the benefit of the order of the Government dt. 5-8-1972 raising the age of retirement to 53 years. Support for this contention was taken from the order of the State Government dt. 14th December, 1971. That order was passed before the, third respondent was due to retire on his attaining 55 years of age By the said order, 120 days of earned leave preparatory to retirement was refused and he was permitted to avail of the said leave with effect from 12th April, 1972. the date on which he completed 55 years. If the order had only stopped at granting post-retirement leave under the first proviso to Rule 110 on the ground that leave preparatory to retirement was refused on account of exigencies of the public service, the third respondent could not have been regarded as being in service after he attained the age of retirement on 12th April, 1972. If the order had only stopped at granting post-retirement leave under the first proviso to Rule 110 on the ground that leave preparatory to retirement was refused on account of exigencies of the public service, the third respondent could not have been regarded as being in service after he attained the age of retirement on 12th April, 1972. The order, as already noticed, not only grants earned leave for 120 days from 12-4-1972, but further directs that the third respondent should retire from service after the expiry of the said leave. The clear effect of the order, therefore, is to postpone the retirement of the third respondent by 120 days from 12th April, 1972. If the intention was not to extend the service of the third respondent that way, it was wholly unnecessary to make any order regarding retirement. The legal position of a Government servant who is in enjoyment cf refused leave, after retirement, is that of a person who is not in service. But, the order of 14th December, 1971, in terms, postpones the retirement itself to a date when the leave of 120 days granted from 12-4-1972 expires. In our opinion, the legal effect of the order of 14th December, 1971 is to direct retention of the services of the third respondent in exercise of the powers conferred by Rule 95 of the mysore Civil Services Rules for a period of 120 days from 12-4-1972. Before the said period expired, there was a further extension of the third respondent's service by another order made under Rule 95 on the 5th of august, 1972. But, it was contended by Shri Sunderaswamy, learned counsel for the petitioner, that the order dt. 14th December, 1971 cannot be regarded as an order expending the service of the third respondent for a period of 120 days from 12th April, 1972, on the ground that by a subsequent order dt. 8th August, 4971, the former order has been cancelled. The said order dt. 8th. August, 1971, which has been produced as Ext. E in the case, reads as follows :"the services of Shri B. N. Jayadevappa, District Judge, on other duty as Chairman, Mysore Sales Tax Appellate Tribunal, Bangalore, on refused leave preparatory to retirement, are replaced at the dis- posal of the High Court of Mysore. (Orders issued in Notification No. FD 11 CAT 71 dt. E in the case, reads as follows :"the services of Shri B. N. Jayadevappa, District Judge, on other duty as Chairman, Mysore Sales Tax Appellate Tribunal, Bangalore, on refused leave preparatory to retirement, are replaced at the dis- posal of the High Court of Mysore. (Orders issued in Notification No. FD 11 CAT 71 dt. the 14th december 1971 permitting the officer to retire from service after expiry of the refused earned leave of 120 days permitted to be availed from 12-4-1972 are cancelled ). "the order of 8th August, 1972, in our opinion, does not have the effect of cancelling the extension of services granted on 14th December, 1971 for a period of 120 days. Before the extension granted by that order expired, further extension of the service was made by the order of the Government dt. 5th August, 1972. What was cancelled by the order of 8th August, 1972 is only that portion of the order of 14th December, 1971 which directed that the third respondent should retire after the expiry of leave of 120 days from 12-4-1972. Such an order came to be made, as in the mean time the services of the third respondent stood extended till he completed 58 years, by the order of 5th August, 1972. Hence, there is no substance in the contention that the order of 14th December, 1971 in so far as it pertains to extension of service of the third respondent, has been cancelled by the subsequent order of the Government dt. 8th August, 1972. As already observed, the combined effect of the orders of the State Government dt. 14th December, 1971 and 5th August, 1972 is 'to extend the service of the third respondent till the date of his completion of 58 years. ( 11 ) THE effect of our above discussion is that the services of all munsiffs, Civil Judges and District Judges, including the services of respondents 3 to 5, were extended till the completion of fifty-eight years of age, pending making appropriate amendment to Rule 95 of the, Mysore Civil Services Rules. By Notification dt. 23rd August, 1972, the Governor of Mysore amended Rule 95 of the Mysore Civil Services rules and raised the age of retirement to 58 years, giving benefit of the same to all subordinate judicial officers who were in service on 3rd Aug. , 1972. By Notification dt. 23rd August, 1972, the Governor of Mysore amended Rule 95 of the Mysore Civil Services rules and raised the age of retirement to 58 years, giving benefit of the same to all subordinate judicial officers who were in service on 3rd Aug. , 1972. The Rules have been given retrospective effect from 3-8-1972. That retrospective rules can validly be made under the proviso to Article 309 of the Constitution is now well settled by the decision of the Supreme court in B. S, Vadera v. Union of India, AIR. 1969 SC. 118. As respondents 3 to 5 were in mysore Judicial Service on 3rd August, 1972, they are entitled to the benefit of the Amendment Rules which raised the age of superannuation to 58 years. It is unnecessary to pronounce upon the validity of the portion of the explanation to Rule 2 of the Amendment Rules in so far as it seeks to give the benefit of raising the age of retirement to those who were in enjoyment of refused leave, under the first proviso to Rule 110 of the mysore Civil Services Eules, inasmuch as we have, on the facts and circumstances of the case, come to the conclusion that respondents 3 to 5 were in service on 3rd August, 1512, as well as on the date on which the amended Rule 95 was effected. It was also npt contended that there were any other judicial officers who were enjoying refused leave under R. 110 of the Mysore Civil Services Rules as on 3-8-1972. ( 12 ) SHRI Sunderaswamy invited our attention to the Notification dt. 23-8-1972 promulgating the amended rules, that the same is signed by n. S. Bharath, Joint Secretary to Government, Finance Department and that there is nothing to show that the rules have been promulgated by the Governor. Shri Puttaswamy, learned Additional Government Advocate, showed us the relevant files. On a perusal of the same, we are satisfied that the original Notification has been signed by the Governor himself. There is, therefore, no infirmity attached to the rules on that score. ( 13 ) AS already mentioned, the High Court having been consulted in regard to the raising the age of retirement oi subordinate judicial officers to 58 years, there is no substance in the contention that the Amendment rules are bad for want of prior consultation with the High Court. ( 13 ) AS already mentioned, the High Court having been consulted in regard to the raising the age of retirement oi subordinate judicial officers to 58 years, there is no substance in the contention that the Amendment rules are bad for want of prior consultation with the High Court. The sclccung of dace of 3rd August, 1972 for giving retrospective effect to the Rules cannot be considewtd as being arbitrary or to favour Respts. 3 to 5, as much as the said date was chosen having regard to the fact that is on that date! that the Cabinet took a decision to implement the recommendation of the Law Commission after prior consultation with the high Court. ( 14 ) AS regards the challenge to the order of the State Government dt. 24th August, 1972 produced in the case as Ext. H, Shri Puttaswamy submitted that there was absolutely no necessity of making such an order after the Rules were framed by the Governor on the 23rd of August, 1972 and that therefore the said order may be ignored as superfluous and unnecessary. In our opinion, it is unnecessary to go into the validity of the order of the State Government dt. 24-8-72, whereby the State Government purported to grant extension of service to respondents 3 to 5 upto 23rd august, 1972, inasmuch as we have independently come to the conclusion that respondents 3 to 5 were in service upto 23-8-1972, the date on which the Rule 95 was amended -. ( 15 ) THE general allegation that the orders of the Government dated 5-8-1972, the rules framed by the Governor on 23-8-1972 and the order of the State Government dt. 24tth of August, 1972 were all actuated by a desire to favour respondents 3 to 5 is made without any satisfactory basis. All that can be said is that the State Government was of the opinion that everyone who was in service on the date on which a decision was taken to raise the age of retirement to 58 years should not be denied the benefit of the same because of the delay involved in issuing orders and promulgating amendments to the rules. The raising of age of retirement was engaging the attention of the Government for a long time. The raising of age of retirement was engaging the attention of the Government for a long time. The Law Commission, in its report, strongly recommended the raising of the age of retirement of Judicial Officers to 58 years. After consulting the high Court, the State Government was able to take a decision in the matter on the 3rd of August, 1972 and thereafter passed orders with a view to give benefit of that decision to all those who were in service on that date. In these circumstances, we do not find any scope to hold either that the action taken is arbitrary or that it is actuated by collateral considerations. This is a matter where action has been taken to improve the conditions of service of all the subordinate judicial officers in the State by raising the age of retirement to 58 years. ( 16 ) FOR the reasons stated above, this writ petition fails and the same is dismissed. No costs. --- *** --- .