( 1 ) VENKATARAMIAH, J:- The short question involved in this case is whether Para 620 of the Manual of Railway Pension Rules, 1950, (hereinafter referred to as the railway Pension Manual) under which the competent authority is empowered to retire a railway employee before his normal date of retirement is for any reason void, ineffective or unconstitutional.

( 2 ) THE respondent, R. Narasimhan, joined the southern Railway as a Ticket Collector in the year 1950 and on being promoted at different stages he was working as a Travelling Ticket Examiner on 14th of May, 1982 when he was compulsorily retired from service by the competent authority in the Railway Administration in exercise of his powers under Para 2 (2) of the Railway Ministrys letter dated 8-7-1950 (incorporated as Para 620 of the Railway Pension Manual ). The respondent was born on 23-9-1929 and if the order of retirement had not been passed, as stated above, he would have continued in service till he completed 58 years of age. Aggrieved by the order of retirement, the respondent filed a Writ Petition in the High Court of Madras in Writ Petition No. 4079 of 1982 questioning the validity of the said order and also of Para 620 of the Railway Pension Manual which empowered the Railway Administration to retire its employees on their completing 30 years of service. The Writ Petition was contested by the Railway Administration and ultimately it was dismissed by the learned single Judge of the High Court of Madras. Aggrieved by the judgment of the learned single Judge the respondent filed an appeal before the Division Bench of the High Court in Writ Appeal No. 367 of 1983. The Division Bench held that Para 620 of the Railway. Pension Manual whose validity had been impugned in the Writ appeal was void and ineffective and hence the order of retirement passed by the Railway Administration in exercise of the power conferred by the said para was liable to beset aside. Aggrieved by the judgment of the Division Bench, the Union of India and the Railway Administration have filed this appeal by special leave.

( 3 ) IN order to appreciate the contentions of the parties, it is necessary to set out the relevant rules governing the retirement of railway employees. Rule 2046 of the Indian. Railway Establishment Code (hereinafter referred to as the Rules) deals with compulsory retirement of railway servants. The relevant part of the said rule reads thus :"2046 (F. R. 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.

( 4 ) THERE is no dispute that the respondent is governed by the pension rules as he has exercised his option to be governed by them. His contentions before the Division Bench were: (i) rule 2046 of the Rules having been framed under the proviso to Article 309 of the Constitution and being a compendious code relating to a retired railway servant that provision alone could be invoked for the purpose of compulsory retirement and not Para 620 of the Railway Pension Manual which is in the nature of an executive order ; (ii) since Rule 2046 (h) of the Rules opens a non obstante clause and Para 620 of the Railway Pension Manual does not state that, the said rule shall prevail notwithstanding any other provision to the contrary, Rule 2046 (h) of the Rules cannot be made subject to Para 620 of the Railway Pension Manual; and (iii) there being two separate provisions with regard to compulsory retirement, namely clause (h) of Rule 2046 of the Rules and para 620 of the Railway Pension Manual, in the absence of any guidance as to when and which rule could be invoked in a given case, both the provisions would, be inapplicable and the respondent could not be compulsorily retired. A reading of the relevant part of Rule 2046 of the Rules and Para 620 of the Railway Pension Manual shows that ordinarily every railway servant has to retire on the date he attains the age of 58 years. Notwithstanding the said