Judgment

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 R. 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.

2. 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.

3. On appeal the High Court took a different view of R. 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 plaintiff s suit. Against this decision the plaintiff has preferred the present appeal on a certificate granted by the High Court under Art. 133 (1) (c) of the Constitution.

4. The main question therefore is whether on a proper interpretation of R. 2046/2 (a) of the Railway Establishment Code, which is identical with the fundamental R. 56 (b) (i), the plaintiff had the right 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 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 cl. (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 cannot 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.

5. 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 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."

6. It is obvious that the rule as reg