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PETITIONER: KAILASH CHANDRA

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 16/03/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1346            1962 SCR  (1) 374  CITATOR INFO :  RF         1971 SC2369  (8)  E          1972 SC 508  (16,18)  R          1973 SC1252  (12)  F          1989 SC  75  (8)

ACT: Railway  Servant-Compulsory retirement, Age of-Retention  in service  after 5.5 years of age, if compulsory or  optional- Ministerial  servants, classification of,  if  unreasonable- Railway  Establishment  Code, Rule  2046(2)(a),  Fundamental Rule 56(b)(1), Constitution of India, Art. 14.

HEADNOTE: The appellant who was a clerk under the East Indian Railways was  compulsorily retired from service on attaining the  age of  55 years.  His prayer for further retention  in  service having  been rejected he filed a suit alleging that  he  was entitled to be retained in service up to the age of 60 years under  Rule 2046 (2)(a) of the Railway  Establishment  Code, which runs as follows:- "Clause  (a)-A  ministerial servant who is not  governed  by sub-cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to  be efficient up to the age of 60 years.  He must not  be retained after that age except in very special circumstances which  must be recorded in writing and with the sanction  of the competent authority." His  suit was decreed by the Trial Court but the High  Court reversed  it  holding that the  plaintiff-appellant  had  no right to continue in service beyond the age of 55 years.  On appeal with the certificate of the High Court. Held, that the correct interpretation of Rule 2046(2)(a)  is that  a  railway  ministerial servant  falling  within  this clause  may be compulsorily retired on attaining the age  of 55  but  when the servant is between the age of  55  and  6o years  the appropriate authority has the option to  continue him  in service, subject to the condition that  the  servant continues to be efficient but the authority is not bound  to retain him even if he continues to-be efficient.  This  rule

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does not give the servant a right to be retained in  service beyond  the  age  of 55 years even if  he  continues  to  be efficient. jai Ram v. Union of India, A.I.R. 1954 S.C. 584, explained. Basant  Kumar Pat v. The Chief Electrical  Engineer,  A.I.R. 1956  Cal.  93, Kishan Dayal v.  General  Manager,  Northern Railway,  A.I.R. 1954 Punj. 245 and Raghunath Narain  Mathur v. Union of India, A.I.R. 1953 All. 352, approved. 375 The  formation  by  the  Railway Board  of  two  classes  of ministerial  servants,  namely, one of,  those  who  retired after  September  8, 1948, and the other of  those  who  had already   retired   before  that  date  was   a   reasonable classification   and  (lid  not  offend  Art.  14   of   the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 283 of 1960. Appeal  from  the judgment and decree  dated,  November  20, 1958,  of the Allahabad High Court (Lucknow Bench) in  First Civil Appeal No. 3 of 1956. C.   B. Agarwala and C. P. Lal, for the appellant. R.   Ganapathy Iyer and T. M. Sen, for the respondent. 1961.  March 16.  The Judgment of the Court was delivered by DAs  GUPTA, J.-The appellant, a clerk in the service of  the East Indian Railways was compulsorily’ retired from  service with  effect from June 30, 1948, on attaining the age of  55 years.   His prayer for further retention in service on  the ground that he was entitled to be retained under Rule 2046/2 of  the Railway Establishment Code having been  rejected  he brought the suit which has given rise to this appeal in  the court  of  the Civil Judge, Lucknow, alleging  that  he  was entitled to be retained under the above rule, and the  order for  compulsory retirement-on attaining the age of 55  years was. void and inoperative in law.  He accordingly prayed for a  declaratory  decree  that the  order  of  his  compulsory retirement was illegal and void and for a money decree  for, arrears  of  pay  on  the basis that  he  had  continued  in service. The main defence was a denial of his right to be retained in service  under  the  rules.  The Trial  Court  accepted  the plaintiff’s contention’ as regards the effect; of the  rule, gave  him a declaration as prayed for and’ also decreed  the claim for money in part. On appeal the High Court took a different view of Rule  2046 and  held  that  that rule gave the plaintiff  no  right  to continue  in service beyond the age of 55 years.   The  High Court  therefore  allowed  the  appeal.  and  dismissed  the plaintiffs suit.  Against this decision the 376 plaintiff has preferred the present appeal on a  certificate granted  by  the  High Court under Art. 133(1)  (c)  of  the Constitution. The   main  question  therefore  is  whether  on  a   proper interpretation  of  Rule  2046/2 (a) of  the  Railway  Esta- blishment Code, which is identical with the fundamental rule 56  (b) (i), the plaintiff had the hight to be  retained  in service  till  the  age of 60 years.   It  is  necessary  to mention  that the plaintiff’s case that he continued  to  be efficient  even after attaining the age of 55 years has  not been  disputed  by  the  respondent,  the  Union  of  India. Consequently  the  question is: assuming  the  plaintiff  so ’continued  to be efficient whether he had the right  to  be

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retained  in service till he attained the age of  60  years. Rule  2046  (1)  of  the Code deals  with  the  question  of retirement  of railway servants other than  ministerial  and provides that such Railway servant, that is, one who is  not a  ministerial  servant,  will be  compulsorily  retired  on attaining  the  age  of 55 years; but  may  be  retained  in service after that date "with the sanction of the  competent authority  on  public  grounds" which must  be  recorded  in writing.   A further provision is made that he must  not  be retained  after the age of 60 years except in  very  special circumstances.  Rule 2046/2 deals with cases of  ministerial servants.   It has two clauses of which ol. (b)  deals  with (i)  ministerial servants who entered Government service  on or  after  April 1, 1938, or (ii) who though  in  Government service  on  March  31,  1938, did not  hold  a  lien  or  a suspended  lien  on a permanent post on  that  date.   These also,  like  the Railway servants, who are  not  ministerial servants  have to retire ordinarily at the age of  55  years and  cannont  be, retained after that age except  on  public grounds  to be recorded in writing and with the sanction  of the  competent  authority; and must not  be  retained  after attaining  the  age  of  60 years  except  in  very  special circumstances. Clause  (a)  deals with railway ministerial  servants  other than those who entered Government service on or after  April 1,  1938, or those in Government service on March 31,  1938, who, did not hold a lien or a 377 suspended lien on a permanent post on that date.  The  exact words of the rule are:               "A ministerial servant who is not governed  by               sub-cl.  (b) may be required to retire at  the               age  of  55  years but  should  ordinarily  be               retained  in  service if he  continues  to  be               efficient up to the age of 60 years.  He  must               not be retained after that age except in  very               special  circumstances which must be  recorded               in  writing  and  with ’the  sanction  of  the               competent authority." It is obvious that the rule as regards compulsory retirement is  more favourable to ministerial servants who fall  within el. (a) of rule 2046/2 than those who fall under el. (b)  of the  same rule or railway servants who are  not  ministerial servants.   For whereas in the case of these, viz.,  railway servants-Who  are not ministerial servants, and  ministerial servants under cl. (b) retention after the age of 55  itself is  intended to be exceptional-to be made on public  grounds which  must be recorded in writing and with the sanction  of the competent authority, in the case of ministerial servants who fall under cl. (a) of Rule 2046/2 their retention  after the age of 60 is treated as exceptional and to be made in  a similar manner as retention in the case of the other railway servants  mentioned above after the age of 55.  It is  clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given,  no discretion  by  itself  to’  retain  a  ministerial  railway servant  under  cl. (b) if he attains the age of  55  years, that is not the position as regards the ministerial servants who fall under cl. (a).  The appellant’s contention  however goes  very  Much further.  He contends that in the  case  of ministerial  servants  who  come within cl.  (a)  and  after attaining the age of 55 years continue to be efficient it is not  even a case of discretion of the appropriate  authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority  is

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bound to retain him, if efficient. The first clause of the first sentence of the relevant 48 378 rule  taken  by  itself  certainly  gives  the   appropriate authority  the  right to require a  ministerial  servant  to retire  as  soon  as he attains the age of  55  years.   The question  is: Whether this right is cut down by  the  second clause, viz., "but should ordinarily be retained in  service if he continues to be efficient up to the age of 60  years". On behalf of the appellant it is urged that the very use  of the  conjunction  "but" is for the definite purpose  of  the cutting down of the right conferred by the first clause; and that  the effect of the second clause is that the  right  to require  the Government servant to retire at 55  is  limited only  to cases where he does not retain his efficiency;  but where he does retain his efficiency the right to retire  him is  only when he attains the age of 60 years.  We  are  con- strained  to  say  that the language used in  this  rule  is unnecessarily   involved;  but  at  the  same  time  it   is reasonably clear that the defect in the language creates  no doubt as regards the intention of the rulemaking  authority. That intention, in our opinion, is that the right  conferred by  the first part is not in any way limited or cut down  by the  second  part  of the sentence; but  the  draftsman  has thought  fit by inserting the second clause to give  to  the appropriate  authority an option to retain the  servant  for five years more, subject to the condition that he  continues to  be  efficient.  If this condition is not  satisfied  the appropriate  authority has no option to retain the  servant; where  however  the condition is satisfied  the  appropriate authority  has  the  option to do so but  is  not  bound  to exercise the option.  If the intention had been to out  down the right conferred on the authority to retire a servant  at the  age  of 55 years the proper language  to  express  such intention  would have been may be required to retire at  the age  of 55 years provided however that he shall be  retained in service if he continues to be efficient up to the age  of 60  years" or some such similar, words.  The use of  "should ordinarily  be retained in service" is sufficient  index  to the  mind  of  the  rule-making  authority  that  the  right conferred  by  the first clause of  the  sentence  remained. Leaving  out for the present the word "ordinarily" the  rule would read thus: 379               "A ministerial servant who is not governed  by               sub-clause  (b) may be required to  retire  at               the age of 55 years but should be retained  in               service if he continues to be efficient up  to               the age of 60 years. " Reading these words without the word "ordinarily" we  find it unreasonable to think that it indicates any intention  to cut  down at all the right to require the servant to  retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient.   They are much more appropriate to  express  the intention that as soon as the age of 55 years is reached the appropriate  authority has the right to require the  servant to  retire  but  that  between the age  of  55  and  60  the appropriate  authority  is given the option  to  retain  the servant but is not bound to do so. This intention is made even more clear and beyond, doubt  by the  use of the word "ordinarily".  "Ordinarily"  means  "in the  large  majority  of cases but  not  invariably".   This itself emphasises the fact that the appropriate authority is

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not bound to retain the servant after he attains the age  of 55 even if he continues: to be efficient.  The intention  of the  second clause 1 therefore clearly is that  while  under the first clause the appropriate authority has the right  to route the’ servant who falls within clause (a) as soon as he attains  the  age of 55, it will, at  that  stage,  consider whether or not to retain him further.  This option to retain for  the further Period of five years can only be  exercised if  the servant continues to be efficient; but  in  deciding whether or not to exercise this option the authority has  to consider circumstances other than the question of efficiency also;  in the absence of special circumstances  he  "should" retain  the servant; but, what are special circumstances  is loft entirely to the authority’s decision.  Thus, after  the age  of  55 is reached by the servant the authority  has  to exercise’  its  discretion  whether or  not  to  retain  the servant;  and  there  is  no right  in  the  servant  to  be retained, even if, he continues to be efficient. Reliance was placed by learned counsel on an observation  of Mukherjea, J. (as he then was), in Jai 380 Ram  v.  Union of India (1) when speaking for the  Court  as regards this rule his Lordship said:-               "We  think it is a possible view to take  upon               the  language of this rule that a  ministerial               servant coming within the purview has normally               the  right to be retained in service  till  he               reaches  the age of 60.  This  is  conditional               undoubtedly   upon   his  continuing   to   be               efficient.    We  may  assume  therefore   for               purposes  of this case that the plaintiff  had               the  right to continue in service till 60  and               could not be retired before that except on the               ground of inefficiency." It would be wholly unreasonable however to consider this  as a decision on the question of what this rule means.  Dealing with  an argument that as the plaintiff under this rule  has the  right to continue in service till 60 and could  not  be retired  before  that except on the ground  of  inefficiency certain  results follow, the Court assumed for the  sake  of argument that this interpretation was possible and proceeded to  deal with the learned counsel’s argument on that  basis. It  was  not  intended  to say that  this  was  the  correct interpretation that should be put on the words of the rule. The correct interpretation of Rule 2046 (2) (a) of the code, in  our  opinion,  is that  a  railway  ministerial  servant falling  within this clause may be compulsorily  retired  on attaining the age of 55 but when the servant is between  the age of 55 and 60 the appropriate authority has the option to continue  him in service, subject to the condition that  the servant  continues to be efficient but the authority is  not bound  to  retain  him even if a  servant  continues  to  be efficient. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India’ [Basant  Kumar Pal v. The Chief Electrical Engineer Kishan Dayal v. General Manager,  Northern  Railway and Raghunath Narain  Mathur  v. Union of India (4)]. We  therefore hold that the High Court was right in  holding that  this rule gave the plaintiff no right to  continue  in service beyond the age of 55. (1)  A.I.R. 1954 S.C. 584. (3)  A.I.R. 1954 Punj. 245. (2)  A.I.R. 1956 Cal. 93. (4)  A.I.R. 1953 All. 352.

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381 It was next urged by Mr. Aggarwal, though faintly, that  the notification  of the Railway Board dated October  19,  1948, and  the  further notification dated April 15,  1952,  as  a result of which ministerial servants who were retired  under rule  2046(2)(a)  before  attaining  the  age  of  60  after September  8,  1948, have been given special  treatment  are discriminatory.   It appears that on September 8, 1948,  the Government  of India came to a decision that no  ministerial Government  servant  to whom the fundamental  rule  56(b)(i) applied and who has attained the age of 55 years but has not attained  the  age of 60 years could be required  to  retire from   service  unless  he  has  been  given  a   reasonable opportunity  to show cause against the  proposed  retirement and unless any representation that he may desire to make  in this connection has been duly considered.  This decision was communicated  to different departments of the Government  of India  and  it was directed that this should be  noted  "for future  guidance".   On October 19, 1948,  the  Ministry  of Railways  issued  a notification for dealing with  cases  of retirement   of  ministerial  servants  governed   by   Rule 2046(2)(a) (which corresponded to fundamental rule  56(b)(1) in  the  manner  as directed by the  Government  of  India’s notification dated September 8, 1948.  This notification  of October  19,  1948,  again made it clear that  it  had  been decided  not  to take any action in respect  of  ministerial servants  who  had  already  been  retired.   Again,  in   a notification  dated  April  15,  1952,  the  Railway   Board communicated  a  decision  that  "such  of  the  ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying  with Art.  311  (2) of the Constitution should be taken  back  to duty" under certain conditions. The  appellant’s  contention  is that  the  denial  of  this advantage given to other ministerial servants falling within rule  2046(2)(a)  who had been retired  after  September  8, 1948,  is  unconstitutional.   We do  not  think  that  this contention  has  any substance.  What happened was  that  on September  8,1948,  the  Government  took  a  decision  that ministerial servants should 382 not  be retired under the rule in question on attainment  of 55  years of age if they were efficient without giving  them an  opportunity  of  showing cause against  the  action  and accordingly  from  that  date it changed  its  procedure  as regards  the  exercise  of the  option  to  retire  servants between  the  age of 55 and 60.  The decision  that  nothing should  be done as regards those who had already retired  on that date cannot be said to have been arbitrarily made.  The formation  of a different class of those who  retired  after September  8, 1948, from those who had retired  before  that date  on  which  the  decision was  taken  is  a  reasonable classification   and  does  not  offend  Art.  14   of   the Constitution.  This contention is therefore also rejected. The High Court was therefore right in our opinion in holding that   there   was  a  reasonable  classification   of   the ministerial  servants who had been retired under  Rule  2046 (2)  (a)  on attaining the age of 55 into two  classes:  one class  consisting  of  those  who  had  been  retired  after September  8,  1948, and the other consisting of  those  who retired  up to September 8, 1948.  There is,  therefore,  no denial of equal protection of laws guaranteed by Art. 14  of the Constitution. In  the  result, the appeal fails and is  dismissed.   There will be no order as to costs, as the appellant is a  pauper.

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We  make  no order under Order XIV, rule 9  of  the  Supreme Court Rules.                                    Appeal dismissed. 383