Full Judgment Text
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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
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,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
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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
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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.
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