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PETITIONER: RAILWAY BOARD.

       Vs.

RESPONDENT: A. PITCHUMANI

DATE OF JUDGMENT29/10/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR  508            1972 SCR  (2) 187  1972 SCC  (4) 608  CITATOR INFO :  R          1973 SC1167  (1)  RF         1987 SC1527  (31)

ACT: Indian  Railway  Fundamental Rules, r. 2046  (F.R.  56)  cl. (b)--Retirement age of ministerial Railway Servants fixed at 60-Note to cl. (b) defining "Government Service" to  include employees  of ex-company--New Note dated December  23,  1967 redefining "government service" to include employees of  ex- company  only if the Rules of company had provision  similar to cl. (b)--Classification under new Note if discriminatory. Constitution of India,1950, Art. 14--Discrimination--Railway Fundamental Rules, r. 2046 (F.R. 56) cl. (b)--Classification under the Note to cl. (f) if discriminatory.

HEADNOTE: Rule 2046 (F.R. 56) of the Indian Railway Fundamental  Rules was  substituted on January 11, 1967, by a new  Rule.   Undo cl.  (b)  of  the new Rule 2046  every  ministerial  railway servant  who  had entered government service  on  or  before March 31, 1938 and who satisfied the conditions mentioned in sub-cls. (i) and (ii) of cl. (b) had a right to continue  in service  till he attained the age of 60 years.  The Note  to the  Rule,  defined the expression ’government  service’  as including  service  rendered  in  ex-company  and   ex-State Railway, and in a former provincial government.  On December 23,  1967 a new Note was substituted which stated  that  the expression "government service"’ included "service  rendered in a former provincial government and in ex-company and  ex- State Railways, if the rules of the company or the State had a provision similar to cl. (b) above". The respondent joined the service of the Madras and Southern Mahratta  Railway company on August 16, 1927.   The  company was  amalgamated with the Indian Railway  Administration  in 1947  and  on such amalgamation the  respondent  became  the employee  of  the  Indian Railway Administration  He  was  a "ministerial servant" within the meaning of that  expression in r. 2046.  On March 31, 1938, he held a permanent post  in the  company.  After the introduction of r. 2046 on  January 11,  1967, the Divisional Accounts Officer passed  an  order that the respondent was entitled to continue in office  till

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he attained the age of 60 years.  But, after the new Note to cl.  (b)  to r. 2046 was substituted on December  23,  1967, another  order was passed to the effect that the  respondent was retired from service on April 14, 1968, on attaining the age of 58 years.  The order also stated that this action was being taken in view of the new Note substituted on  December 12, 1967.  The respondent filed a writ petition in the  High Court  challenging  the legality of the order  retiring  him from service.  The High Court struck down the order and gave a  declaration that the respondent was entitled to  continue in  service  till he attained the age of 60  years,  on  the ground  that  the order was discriminatory  and,  therefore, violative of Art. 14 of the Constitution. Dimissing the appeal to this Court, HELD  :  The High Court was justified in striking  down  the order  directing the respondent to retire from service.  (1) Rule  2046  as it stood originally and on January  11,  1967 treated  the  former employees of the  ex-company,  ex-State Railway and former provincial Government 188 who were amalgamated with the Indian Administration in  1947 on  a  par with the other original employees of  the  Indian Railway Administration.  In fact the Note to cl . (b) of  r. 2046  incorporated in January 11, 1967 only reinforced  this position.  Read with the Note, under el. (b), the respondent is a ministerial servant who had entered government  service on or before March 31, 1938 and, therefore, by virtue of el. (b)  he  was  entitled to be retained  in  service  till  he attained the age of 60 years. [175 F, 197 C] (2) Up to and inclusive of January 11, 1967, no distinction, inter  se, apart from that made by cls. (a) and (b)  between officers  of  Indian Railway Administration,  from  whatever source  they  may  have  I come,  was  made.   The  position admittedly  has been changed by altering the  definition  of the  expression "government service" by the new Note to  el. (b)  Thus  on and after December 23, 1967,  though  all  the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending  upon the fact whether they were in  the  original employment  of Indian Railway Administration or on the  fact of their coming from one or the other employers mentioned in the new Note.  Discrimination, is writ large on the face  of the  new Note.  Once the employees dealt with under the  new Note  have  taken  up  service  under  the  Indian   Railway Administration and have been treated alike up to January 11, 1967,  if  follows  that they  cannot  again  be  classified separately  from the other employees of the  Indian  Railway Administration.   Therefore  the  classification  of   these officers   under   the  new  Note  is   not   a   reasonable classification. [197 G, 198 F] (3)  Assuming  there  is a  reasonable  classification,  the classification cannot be said to have a nexus or relation to the object sought to be achieved by el. (b) of r. 2046 which is to provide for the age of retirement of the two types  of officers  coming under cls. (a) and (b).  Where there is  no indication  that any further distinction inter se is  sought to  be made amongst the officers mentioned in cls.  (a)  and (b)  and  when a uniform age- of retirement  has  also  been fixed in respect of officers coming under these two clauses, the classification carving out the ex-employees of the three authorities mentioned therein with the added condition  that the  rules  of  the  company or  the  State  should  have  a provision similar to el. (b) has no nexus or relation to the object of the Rule. [199 B] (4) Though a distinction has been made in the Rule between a

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railway  servant  coming  under el. (a)  and  a  ministerial railway  servant  coming under el. (b) in regard to  age  of retirement,  those  clauses  will  apply  uniformly  to  all members of the Indian Railway Administration depending  upon whether  they are railway servants coming under el.  (a)  or ministerial  railway  servants coming under  el.  (b).   The distinction  made  in  el.  (b)  regarding  the  ministerial railway servants who entered government service on or before March 31, 1938, is again of uniform application. [196 H] (5)  It is only necessary to strike down the offending  part in  the  Note, namely, "if the rules of the company  or  the State had a provision similar to el. (b)," and this part  of the  Note  alone  is  struck  down  as  discriminatory   and violative of Art. 14 of the Constitution. [200 B]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1768 of 1969. Appeal  by special leave from the judgment and  order  dated October  8, 1968 of the Mysore High Court in  Writ  Petition No. 657 of 1968. 189 M.  C.  Setalvad,  Ram Punjwani and S.  P.  Nayar,  for  the appellants. R. B. Datar and M. S. Narasimhan, for the respondent. M. K. Ramamurthi, Shyamala Pappu and J. Ramamurthi, for intervener No. 1. S. Ramasubramanian and J. Ramamurthi, for intervener No.2. The Judgment of the Court was delivered by Vaidialingam,  J.  In  this appeal, by  special  leave,  the question  that  arises for consideration  is  regarding  the validity  of  the new Note substituted in place of  the  old Note on December 23, 1967 to cl. (b) of rule 2046 (F.R.  56) of the Indian Railway Fundamental Rules. The  High  Court by its judgment and  order,  under  appeal, dated October 8, 1968, has struck down the new Note as  dis- criminatory and violative of Art. 14 of the Constitution. The respondent was originally an employee of the Madras  and Southern   Mahratta  Railway  Company  (hereinafter  to   be referred as the Company) having joined the service on August 16,  1927  as Clerk Grade-1.  His date of  birth,  there  is controversy,   was   April  15,  1910.   The   Company   was amalgamated  with the Indian Railway Administration  in  the year  1947 and on .such amalgamation, the respondent  became the employee of the Indian Railway Administration.  There is also  no controversy That he came within the  classification of  a  "ministerial railway servant" within the  meaning  of that  expression, occurring in rule 2046.  Rule  2046  deals with  retirement  of  a  railway  servant  At  the  time  of amalgamation, under cl. (1) of the said rule, the   date  of retirement  of a railway servant, other than  a  ministerial railway servant was the date on which he attained the age of 55  years.   It  was also provided  therein  that  the  said railway servant, ,after attaining the age of retirement, may be  retained in service with the sanction of  the  competent authority  on public ground to be recorded in writing.   But there  was  a prohibition   regarding retention  of  such  a railway  servant  after the age of 60 years except  in  very special circumstances.  Clause (2) of the said- rule,  which deals  with  a  ministerial  railway  servant,  under  which category  the respondent falls, at the time of  amalgamation was as follows :               "2046  (2) (a) A ministerial servant,  who  is               not   governed  by  sub-clause  (b),  may   be

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             required to retire at the age of 55 years, but               should  ordinarily be retained in service,  if               he continues efficient up to the age of 60 190 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.               (b) A ministerial servant-               (i)  who has entered Government service on  or               after the 1st April, 1938, or               (ii)  who being in Government service  on  the               31st  March,  1938 did not hold a  lien  or  a               suspended  lien  on a permanent post  on  that               date.               shall ordinarily be required to retire at  the               age  of  55 years.  He must  not  be  retained               after that age except on public grounds  which               must  be  recorded in writing,, and  with  the               sanction  of  the competent authority  and  he               must not be retained after the age of 60 years               except in very special circumstances." It will be noted that under sub-clause (a), quoted above,  a ministerial  servant, who is not governed by sub-clause  (b) may be required to retire at the age of 55 years; but if  he continues to be efficient, he should ordinarily be  retained in service upto the ’date of 60 years.  Retention in service after  the age of 60 years, can only be under  very  special circumstances,  to  be  recorded in  writing  and  with  the sanction  of the competent authority.  There was  a  further special  provision  made  under  cl. (b)  in  respect  of  a ministerial servant who had entered Government service on or after  April 1, 1938 or being in Government service on  that date, did not hold a lien or a suspended lien on a permanent post oh that date. On  December  5, 1962, the Railway Board  addressed  a  com- munication  to the General Managers of All  Indian  Railways that  the Government were considering the question for  some time  whether  the age of compulsory retirement  of  railway servants  should  be raised above 55 years.  It  is  further stated that the President is pleased to direct that the  age of  compulsory retirement of railway servants should  be  58 years  subject  to  the three exceptions  mentioned  in  the order.   The  only  relevant exception is  Exception  No.  1 relating  to  ministerial  railway servants,  which  was  as follows :               "(i) The existing rule 2046 (F.R. 56)  (2)(a)-               RII, under which ministerial railway  servants               who  held  a  lien  or  suspended  lien  on  a               permanent  post on 31st March, 1938 are to  be               retained in set-vice upto the age  191               of 60 years subject to their continuing to  be               efficient  and physically fit after  attaining               the age of 55 years, will remain in force. It will be seen from the decision,of the Government, as com- municated in the above letter, that the age of retirement of railway  servants was raised from 55 to 58 years.  But  this was subject to the restriction regarding the continuance  of a  ministerial  servant after 55 years upto the  age  of  60 years  as  provided for under sub-clause (b) of cl.  (2)  of rule 2046. On  January 11, 1967, the old rule 2046 as amended  in  1962 was substituted by the new rule.  The new rule consisted  of four clauses, but we are not concerned with clauses (c)  and (d) The material part of the said rule relevant to be  noted

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are clauses (a) and (b) together with the note to clause (b) which ran as follows :               "2046   (FR.  56)-(a)  Except   as   otherwise               provided  in this rule, every railway  servant               shall retire on the day he attains the age  of               fifty-eight years.               (b) A ministerial railway servant who  entered               Government  service  on  or  before  the  31st               March, 1938 and held on that date-               (i) a lien or a suspended lien on a  permanent               post, or               (ii)   a  permanent  post  in  a   provisional               substantive capacity under Clause (d) of  Rule               2008  and continued to told the  same  without               interruption  until he was confirmed  in  that               post,shall be retained in service till the day               he attains the age of sixty years.               NOTE  :  For the purpose of this  Clause,  the               expression   "Government   Service"    include               service rendered in ex-company,, and  ex-State               Railways,   and  in  a   former     provincial               Government." Two  aspects  broadly emerge from the above new rule  :  (a) every ministerial railway servant who had entered Government service  on or before March 31, 1938 and who  satisfied  the conditions mentioned in sub-clause (i) or (ii) of clause (b) had  a   right to continue in service till he  attained  the age  of sixty years; and (b) under the Note, the  expression "Government Service" in clause (b) takes in service rendered in ex-company, ex-State Railways and in a former  provincial Govern- 192 ment.   There is no controversy that the respondent  held  a permanent   post   in  the  Company  on  March   31,   1938. Therefore,,  under  this new rule, he would be  entitled  to continue in service till he attained the age of sixty years, as provided in cl. (b) read with the Note thereto. On  December  12, 1967, the Note to cl. (b)  of  rule’  2046 defining  the  expression "Government Service"  as  per  the order dated January 11, 1967 was deleted, and a new Note was substituted in its place.  The order dated December 23. 1967 together with the new Note is as follows :               "For   the  existing  note,   substitute   the               following               For the purpose of this clause the  expression               "Government Service" includes service rendered               in  a former provincial government and in  ex.               Company and ex.  State Railways, if the  rules               of  the Company or the State had  a  provision               similar to Clause (b) above." From the new Note, extracted above, it will be seen that the definition  of  the  expression  "Government  Service"   was changed.   The  effect  of  the new  Note,  so  far  as  the respondent is concerned, is that whereas he was entitled  to continue  in service upto 60 years, as per clause  (b)  read with  the  note thereto under rule 2046  as  substituted  on January 11, 1967, now he can get service upto 60 years  only if  the Company had a provision similar to cl. (b)  of  rule 2046.    There  is  no  dispute,  that  under  the   service conditions  applicable  to the respondent, when  he  was  an employee  of  the Company, he had no right  to  continue  in service  till  he attained the age of sixty years.   On  the other  hand, under the service conditions of the Company  he had to retire at the age of 55 years. It appears, that after the introduction of the new rule 2046

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on January 11, 1967, the Divisional Accounts Officer, Hubli, passed  an order on March 31, 1967 that the  respondent  was entitled  to continue in Office till he attained the age  of 60  years.  But after the new Note to cl. (b) to  rule  2046 was  substituted  on  December  23,  1967,  the   Divisional Accounts Officer, Hubli, passed an order on January 17, 1968 to the effect that the respondent is to retire from  service on  April 14, 1968 on which date he would be  attaining  the age  of  58  years.  The said order also  states  that  this action  was being taken in view of the new Note  substituted on December 23, 1967 to cl. (b) of rule 2046. The  respondent  filed on March 6, 1968 in the  Mysore  High Court,  Writ  Petition  No.  657  of  1968  challenging  the legality  and validity of the order dated January  17,  1968 retiring  him from service with effect from April  4,  1968. In the writ petition 193 he  had referred to his previous service in the Company  and to  the  latter being amalgamated with  the  Indian  Railway Administration  in  1947.   According  to  him,  after  such amalgmation  he  has become a  ministerial  railway  servant under  the Indian Railway Administration and all  the  rules applicable to the employees of the latter became  applicable to  him.  In particular, he pleaded that he was entitled  to continue  in  service, until he attained the  age  of  sixty years,  as per the new rule 2046 introduced on  January  11, 1967,  as he satisfies all the conditions  prescribed  under cl.  (b) thereof.  He particularly attacked the new Note  to cl.  (b) substituted on December 23, 1967 as  discriminatory and violative of Art. 14 of the Constitution.  According  to him,  the members of the Indian Railway  Service,  similarly situated like him, will be. entitled to continue in  service till  60  years,  whereas that right  has  been  denied,  to persons  like him, under the new Note.  He also referred  to the  order  passed  on  March 31,  1967  by  the  Divisional Accounts Officer, Hubli in and by which it was directed that he  was  entitled  to continue in  service  till  60  years. According to the respondent, the Railway Administration  was not  entitled to go back on this order.  On  these  grounds, the   respondent  challenged  the  validity  of  the   order directing him to retire on the basis of the new Note. The appellant contested the writ petition on the ground that the  order dated March 31, 1967 was passed on the  basis  of the rule 2046, read with the Note, as it existed on  January 11, 1967 But the position was changed by the deletion of the original  Note  to cl. (b) and its substitution by  the  new Note  on December 23, 1967.  The appellant claimed that  the service  conditions  of persons, like the  respondent,  have always  been different from those serving under the  Railway Administration and that by the introduction of the new Note, no discrimination has been practised on any officer.  On the other  hand, according to the appellant, the new  Note  only gave effect to the conditions of service, which obtained  in the Company, where the respondent originally joined service. The  appellant  further pleaded that the new Note  does  not violate Art. 14 of the Constitution. The  High Court, by its judgment and order dated October  8, 1968 has accepted the contentions of the respondent and held that  the  new Note substituted to cl. (b) of rule  2046  on December 23, 1967 is discriminatory and violative of Art. 14 of the Constitution.  In this view, the said Note was struck down.   In consequence, the High Court set aside  the  order dated  January  17,  1968 and gave a  declaration  that  the respondent  was  entitled  to continue in  service  till  he attained the age of sixty years.

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Mr. M. C. Setalvad, learned counsel for the appellant, Rail- way Board, has strenuously attacked the finding of the High 194 Court that the new Note, substituted on December 23, 1967 to cl.  (b) is discriminatory and violative of Art. 14  of  the Constitution.    On  the  other  hand,  he  urged   that   a distinction has always been made in the case of  ministerial railway servant who is governed by cf. (b) and those who are not  so  governed by that clause of  rule  2046.   Different provisions  regarding  the  age  of  retirement  have   been provided  in  respect of those two  classes  of  ministerial railway  servants.  The new Note, Mr. Setalvad  pointed  out only gives recognition to the practice that has been obtain- ing  in  respect of the ministerial railway  servants  under their  previous employers.  He further pointed out that  the Note  to cf. (b) of rule 2046, incorporated on  January  11, 1967 gave the benefit of the expression "Government Service’ ’to  persons, like the respondent, who have previously  been working  in  ex-Company, provincial Government  or  ex-State Railways.   The  new  Note  keeps  the  same  categories  of employees  within the expression "Government  Service",  but adds a qualification that in order to have the benefit of  a longer period of service, they should have had such  benefit under their previous employers. Mr.  Setalvad further pointed out that a government  servant has no right to continue in service till the age of 60 years and that the option to so continue him upto that age,  vests exclusively   within   the  discretion  of   the   authority concerned.   For this proposition the counsel relied on  the decision  of  this  Court in Kailash  Chandra  v.  Union  of India(1) interpreting clause (2) of rule 2046 as it  existed prior to the amendment in 1962.  In any event, Mr.  Setalvad pointed out, that the officers who had worked under a former provincial  Government, Ex-Company or Ex-State Railways  and who  have been dealt with under the new Note substituted  on December  23, 1967 form a class by themselves and  therefore there  is a reasonable classification of such officers,  and that   satisfies   the  requirement  of  Art.  14   of   the Constitution.  On all these grounds, Mr. Setalvad urged that the  new Note is not discriminatory and it does not  violate Art. 14 of the Constitution. Mr. R. B. Datar, learned counsel for the respondent and  M/s M. K. Ramamurthi and J. Ramamurthi, who appeared for the two interveners  have supported the reasoning of the High  Court for holding that Art. 14 is violated by the new Note to  cl. (b) of rule 2046. We  are of the opinion that the contentions of Mr.  Setalvad cannot  be accepted.  No doubt, the counsel is justified  in his  contention  only to this limited extent,  namely,  that under  cl.  (2)  of rule 2046, as it existed  prior  to  its amendment  on  January  11, 1967  that  ministerial  railway servant falling under that clause, has no right to  continue in service beyond the age of 55 and that (1)  [1962] 1 S.C.R. 374. 195. the appropriate authority has the option to continue him  in service after his attaining the age of 55 years, subject  to the  condition that the servant continues to  be  efficient. This  Court in Kailash Chandra’s case(1) had an occasion  to consider  rule 2046 (2) (a) as it originally stood.  It  was held that the ministerial railway servants falling under the said clause may be compulsorily retired on attaining the age of 55 years.  But when the servant is between the age of  55 and 60 years, the option to continue him in service, subject to the servant continuing to be efficient, exclusively vests

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with  the appropriate authority.  It was further  laid  down that the authority is not bound to retain a railway  servant after  the  age  of 55 years, even if the  continues  to  be efficient.  It was. further emphasised that the rule gave no right  to  a  ministerial railway  servant  to  continue  in service beyond the age of 55 years. It  is  in view of the above principles laid  down  by  this Court,.  we  have  observed, earlier,  that  Mr.  Setalvad’s contention  in  respect of the rule 2046, as  it  originally stood,  is  well  founded.  But this  Court,  in  the  above decision,  had no occasion to consider the problem that  now arises, by virtue of the new Note added to, cl. (b) of  rule 2046.   There is no controversy that after the  amalgamation of  the Company with the Indian Railway Administration,  the respondent has become an employee of the latter.  If so,  in our opinion, the respondent is entitled to be given the same rights and privileges that are available to the other emplo- yees  employed by the Indian Railway  Administration.   That exactly  was  the  position  under  the  rule  2046,  as  it originally  stood; after its amendment on December  5,  1962 increasing the age of retirement to 58 years; as also  under the  new rule 2046, incorporated on January 11,  1967.   All these  rules upto and inclusive of January 11, 1967  treated the  former employees of the Ex-Company,  Ex-State  Railways and former provincial Governments, who were amalgamated with the  Indian  Railway Administration in 1947, on  a  par  the other    original   employees   of   the   Indian    Railway Administration.   In fact, the Note to cl. (b) of rule  2046 incorporated on January 11, 1967, reinforced this  position, by making it clear that the expression "Government  Service’ ’in cl. (b) will include service under the various employers referred to therein. Mr. Setalvad placed reliance on the fact that rule 2046,  as it  existed  upto and inclusive of January 11,  1967,  dealt differently with the age of retirement in respect of : (i) a railway servant coming under cl. (a) and (ii) a  ministerial railway  servant coming under cl. (b).  He  further  pointed out  that even in respect of a ministerial  railway  servant coming under cl. (b), the latter, in order to be eligible to have  a longer age of retirement should be one who  complies with the conditions mentioned there- 1. (1962) 1. S.C.R. 374. 196 in. These conditions are as per el. (b) existing on  January 1  1, 1967, that the officer should have entered  government service  on  ,or before March 31, 1938.   The  said  officer should also have the ,one or the other of the qualifications mentioned in sub-clauses (i)and (ii).  That is, according to the  learned counsel, if a ministerial railway  servant  has not  entered government  service before March 31,  1938,  he will  not  be eligible for the longer  age  ,of  retirement. These  circumstances  will clearly show,  according  to  Mr. Setalvad  that the rule has been through out  maintaining  a distinction  even amongst the ministerial  railway  servants working  under  the  Indian  Railway  Administration.   This argument, may on the face of it appear to be attractive; but in  our  opinion, it cannot be accepted.  The  point  to  be noted is that though a distinction has been made in the rule between  a  railway  servant  coming under  el.  (a)  and  a ministerial  railway  servant coming under  el.  (b),  those clauses  will apply uniformly to all members of  the  Indian Railway  Administration  depending upon  whether  .they  are railway  servants  coming  under el. (a)  or  a  ministerial railway  servant coming under el. (b), as the case  may  be. To  all  railway servants coming under el. (a)  the  age  of

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retirement  is  the  same.   Similarly  to  all  ministerial railway servants coming under el. (b), the age of retirement is  again  the  same.  Further  .if  a  ministerial  railway servant does not satisfy the requirements of cl. (b) he will not be eligible to get the extended    period Of retirement. That  again will apply to all ministerial railway  servants, who  do  not satisfy the requirements of el.  (b).   We  are emphasising this aspect to show that no distinction has been made  either  in el. (a) or el. (b)  regarding  the  uniform application  in  respect  of the age of  retirement  to  the officers  mentioned ,therein and who are governed  by  those clauses.   That is, there is no inter se  distinction  made. The  distinction made in el. (b) regarding  the  ministerial railway servants who entered government service on or before March  31, 1938 is again of uniform application.  That  rule only  makes  a  broad distinction  between  the  ministerial railway servants who entered government service on or before March 31, 1938 and who entered government service after that date.  As per the Note to el. (b) to rule 2046, incorporated on  January  11, 1967, the respondent is a  person  who  has entered government service on or before March 31, 1938  .and satisfies  also the requirements under sub-cl. (ii)  or  el. (b)  Similarly,  another railway servant  may  have  entered government  service under the Indian Railway  Administration on or before March 31, 1938.  He also, under el. (b) will be a  ministerial  railway servant who has  entered  government service on or before March 31, 1938 and if he satisfies  one or other of the conditions mentioned in sub-clauses (i)  and (ii) of el. (b), he will be entitled to continue in  service till   60  years.   That  means  both  persons,   like   the respondent, and the officers who have straight 197 joined the service under the Indian Railway  Administration, prior March 31, 1938 and who satisfy the requirements  under sub-clause  (i)  or sub-clause (ii) of clause  (b)  will  be equally  entitled continue in service till they  attain  the age of 60 years.  These acts clearly show that cls. (a)  and (b)  of  rule  2046  had  uniform  application  to  all  the employees of the  Indian Railway Administration. Coming  to  the new rule 2046, incorporated on  January  11, 1967,  the  conditions  of  service  of  persons,  like  the respondent,  have  been better crystalised.  Read  with  the Note, under cl. (b), the respondent is a ministerial railway servant,  who  had entered government service on  or  before March 31, 1938.  By virtue of cl. (b), he was entitled to be retained in service till he attains the age of 60 years.  It is  to  be  noted  that there is no  option  left  with  the employer,  but to retain such a ministerial railway  servant upto  60 years.  In other words, if the ministerial  railway servant satisfies the requirements of cl. (b), he is, as  of right, entitled to be in service, till he attains the age of 60  years.   Similarly, cl. (a) introduced  on  January  11, 1967,  gives  a right to a railway servant  to  continue  in office,  till he attains the age of 58 years.   Here  again, there  is  no option vested with the authorities  except  to continue him till that age.  The option to extend the period of service of the officers mentioned in cls. (a) and (b)  is dealt  with  under sub,,-clauses (d) and  (c)  respectively, which we have not quoted.  Sub-clauses (c) and (d) deal with the  granting  of  extension of service  beyond  the  period mentioned in sub-clauses (b) and (a).  The option to  extend the  service beyond the period mentioned in  sub-causes  (a) and (b) may be with the authorities; but they have no  voice in  a railway servant coming under cl. (b), continuing  upto 60 years.

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That  the  authorities also understood the position  in  the manner mentioned above, is clear from the order dated  March 31,   1967,  of  the  Divisional  Accounts  Officer,   Hubli declaring the right of the respondent to continue in service upto 60 years. in fact, this order was passed in consequence of  the  new  rule  2046 substituted  on  January  11  1967. Therefore, from what is stated above, it is clear that  upto and  inclusive of January 11, 1967, no distinction inter  se apart  from  that made by clauses (a) and (b),  between  the officers of the Indian Railway Administration, from whatever source  they  may  have come, was made.  Even  at  the  risk repetition, we may state that under cl. (b) of rule 2046, as introduced  on January 11, 1967, the original  employees  of the Indian Railway Administration, as well as persons,  like the   respondent,   who  came  into   the   Indian   Railway Administration in 1947, were both entitled, as of right,  to continue in service till they attained the age of 60  years. This  position admittedly has been changed, by altering  the definition of the 198 ,expression "Government Service" by the new Note to cl.  (b) introduced on December 23, 1967.  Under that Note, it cannot be  gain said, that a distinction has been made between  the original employees of the Indian Railway Administration, and the  new  ,employees, who were amalgamated with  the  Indian Railway  Administration in 1947, but who had their  previous service,  with either a former provincial Government, or  an Ex-Company  or  Ex-State  Railways.  In  the  case  of  such employees,  the benefit ,of the extended age of  retirement, that  has  been given to the other employees of  the  Indian Railway Administration, was made available, only if the  new ’employees  had  the  same  benefit  under  their   previous employers.   Therefore,  the position is that on  and  after December  23, 1967, though all the employees are  under  the Indian  Railway  Administration, there will be two  sets  of rules relating to the age of retirement, depending upon  the fact  whether  they were in the original employment  of  the Indian Railway Administration or on the fact of their coming from  one or , the ,other of the employers mentioned in  the new  Note.  It is in consequence of the new Note,  that  the order  dated January 17. 1968 was issued by  the  Divisional Accounts  Officer, Hubli, that the respondent has to  retire at the age of 58 years, on April 14, 1968. The  question is whether the distinction made under the  new Note to cl. (b) substituted on December 23, 1967 valid?   In our opinion, such a rule, which makes a distinction  between the   employees  working  under  the  same  Indian   Railway Administration  is not valid.  The position, after  the  new Note  was  added, is that the employee who had  through  out been under the Indian Railway Administration is entitled  to continue  in  service till he attains the age of  60  years; whereas  the persons, like the respondent, who are also  the employees  of the Indian Railway Administration,  but  whose previous services were with the Company, will have to refire at  the age of 58 years, because a provision similar to  cl. (b) did not exist in the service conditions of the  Company. Discrimination, on the face of it, is writ large in the  new Note, which is under challenge. Mr.  Setalvad, no doubt, urged that the ministerial  railway servant, who was originally employee of a Company,  Ex-State Railway  or a former Provincial Government dealt with  under the  new  Note are a class by  themselves,  and,  therefore, there  is a reasonable classification.  Once  the  employees dealt  with under the new Note, have taken up service  under the  Indian  Railway Administration and  have  been  treated

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alike  upto  January 11, 1967, it follows, in  our  opinion, that  they  cannot again be classified separately  from  the other  employees  of  the  lndian  Railway   Administration. Therefore, we are not inclined to accept the 199 contention that the classification of these officers,  under the  new Note, is a reasonable classification and  satisfies one   of  the  essential  requisites  of  Art.  14  of   the Constitution, as interpreted by this Court. We will assume, that in dealing with the types of  employees under  the new Note, there is a  reasonable  classification. Nevertheless,  the  further  question  arises  whether   the reasonable  classification, with the added condition in  the Note incorporated on December 23, 1967, can be said to  have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046 ? The object of rule 2046 itself is  to provide  for  the  age of retirement of  the  two  types  of officers  coming under cls. (a) and (b).  Where there is  no indication  that any further distinction inter se is  sought to  be made amongst the officers mentioned in cls.  (a)  and (b)  and  when an uniform age of retirement  has  also  been fixed  in  respect of the officers coming  under  these  two clauses, the classification, carving out the ex-employees of the  three  authorities mentioned therein,  with  the  added condition that the rules of the Company or the State  should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule. For  the  reasons given above, we are of the view  that  the High  Court was justified in striking down the order of  the Divisional  Accounts Officer, Hubli, dated January 17,  1968 directing the respondent to retire from service on April 14, 1968,  on  which date he will attain the age  of  58  years. However, it is not clear from the judgment of the High Court whether  the  entire new Note substituted under cl.  (b)  of rule  2046  on  December 23, 1967 has been  struck  down  or whether   it  has  struck  down  only  the   new   condition incorporated  in the said Note.  Even as per the Note  under cl.  (b),  incorporated  along with the  new  rule  2046  on January  11,  1967,  the  expression  "Government   Service" included  service rendered in Ex-Company, Ex-State  Railways and in a former provincial Government, and such a  provision is beneficial to the employees like the respondent. In  the  new substituted Note dated December 23,  1967.  the first part of the Note including in "government service" any service  rendered  in a former  provincial  Government,  Ex- Company and Ex-State Railways is more or less identical with the  original  Note of January 11, 1967, though in  the  new Note  the  order of the former employees has  been  slightly changed.   In  our  opinion,  that  part  of  the  new  rule providing  that  for the purpose of cl. (b)  the  expression "Government  Service" includes service rendered in a  former provincial  Government  and  in a  Ex-Company  and  Ex-State Railways can be allowed to stand to this extent.  Therefore, the offending part in the new Note are the further words "if the 200 rules of the Company or the State had a provision similar to Clause  (b)  above".   This offending part  can  be  deleted without  doing violence to the definition of the  expression "Goverment Service" even under the new Note.  Therefore,  it is  only necessary to strike down the offending part in  the Note, namely, "if the rules of the Company or the State  had a  provision similar to Clause (b) above" and this  part  of the  Note  alone  is  struck  down  as  discriminatory   and violative of Art. 14 of the Constitution.

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Subject  to the above directions, the judgment and order  of the  High  Court are confirmed and  this  appeal  dismissed. Special  leave to appeal has been granted on August 7,  1969 subject  to the conditions that the appellant is to pay  the costs  of  the  respondent in any  event.   The  respondent, accordingly, will be entitled to his costs in the appeal. K.B.N.                                 Appeal dismissed. 201