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SUPREME COURT OF INDIA
C A. VAIDIALINGAM, P. JAGANMOHAN REDDY AND K.K. MATHEW, JJ.
The Railway Board and another, Appellants
Versus
A. Pitchumani, Respondent.
Civil Appeal No. 1768 of 1969, D/- 29-10-1971.
Advocates appeared
Mr. M. C. Punjwani and S. P. Nayar Advocates with him), for Appellants; M/s. R. B. Datar and M. S. Narasimhan, Advocates, for Respondent; Mr. M. K. Ramamurthi and Mrs. Shyamla Pappu, Sr. Advocates (Mr. JK. Ramamurthi, Advocate with them), (for No. 1) and M/s. S. Ramasubramanian and J. Remamurthi, Advocates, (for No. 2) for Intervenes.
Indian Railway Fundamental Rules -Rule 2046 - Constitution of India,1950 - Article 14 - Retirement From Service - Retirement of a railway servant - An employee of Madras and Southern Mahjratta Railway Company having joined service - Clerk Grade-I - His date of birth there is controversy - Company was amalgamated with Indian Railway Administration in year 1947 and on such amalgamation - Respondent became employee of Indian Railway Administration - There is also no controversy that he came within classification of a ministerial railway servant within meaning of that expression occurring in rule 2046 - Rule 2046 deals with retirement of a railway servant - At time of amalgamation under cl (1) of siad rule date of retirement of Railway servant other than a ministerial railway servant other than a ministerial railway servant was date on which he attained age - Whether age of compulsory retirement of railway servants - Whether they are railway servants coming under cl (a) or a ministerial railway servant coming under cl. (b) as case may be - Whether they were in original employment of Indian Railway Administration or on fact of their coming from one or new Note - whether distinction made under new Note to cl (b) substituted on valid? – Held, Court are of opinion that contentions of cannot be accepted - No doubt 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 that ministerial railway servant falling under that clause has no right to continue in service beyond age and that appropriate authority has option to continue him in service after his attaining age of subject to condition that servant continues to be efficient - We will assume that in dealing with types of employees under new Note there is a reasonable classification - Nevertheless further question arises whether reasonable classification with added condition in Note incorporated can be said to have a nexus or a relation to object sought to be achieved by cl of rule 2046? Object of rule 2046 itself is to provide for age of retirement of two types of officers coming under cls. - Definition of expression Government Service was changed - Effect of new Note so far as respondent is concerned is that whereas he was entitled to continue in service upto years as per Clause read with Note thereto under Rule 2046 as substituted now he can get service upto years only if Company had a provision similar to Clause of Rule 2046 - We are of view that High Court was justified in striking down order of Divisional Accounts Officer Hubli directing respondent to retire from service which date he will attain age - However it is not clear from judgment of High Court whether entire new Note substituted under cl of rule 2046 has been struck down or whether it has struck down only new condition incorporated in said Note - Even as per Note under cl Incorporated along with new R. 2046 an 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 employees like respondent - Appeal dismissed
Judgment
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 the December 23, 1967 to cl. (b) of rule 2046 (F. R. 56) of the Indian Railway Fundamental Rules.
2. The High Court by its judgment and order, under appeal, dated October 8, 1968 has struck down the new Note as discriminatory and violative of Art. 14 of the Constitution.
3. The respondent was originally an employee of the Madras and Southern Mahjratta Railway Company (hereinafter to be referred as the Company) having joined service. On August 16, 1927 as Clerk Grade-I. 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 siad rule, the date of retirement of Railway servant, other than a ministerial 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 the 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 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 years. He must not be retained after that age except in very special circumstances and with the sanction of the competent authority.
(b) A ministerial servant -
(i) who has entered Government service on or after the Ist 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 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."
4. 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 up to 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 Clause (b) in respect of a ministerial servant who had entered in 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 on that date.
5. On December 5, 1962, the Railway Board addressed a communication to the General Managers of All India 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 Excep
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