This application under Article 226 of the Constitution of India has been filed against the 7th respondent. Respondent No. 6 is the Accountant General, Assam, Bhangagarh, Guwahati 5 and the respondent No. 7 is the Union of India.

2. The grievance of the petitioner is that he has not been paid his pention after he was made to retire compulsorily. On 31.1.92 an order was passed as against the petitioner which inter alia reads as follows :

"I, therefore, pass order for compulsory retirement of Shiri Satith Chandra Kalita from the service of Assam State Transport Corporation, Junior Conductor in the greater interest of the ASTC with effect from the date of this order. He will get nothing except the subsistence allowance during the suspension period. On considering his service period, it is ordered that he will get all the retirement benefit due to him except stated above." Thereafter the petitioner submitted his pension papers through the respon­dents for issuing necessary orders for pension for the service rendered under the Government of Assam in the Transport Department. But the same was returned to be submitted after 1.2.96 holding that the pension is payable under Rule 98 (iii) of the Assam Services (Pension) Rules, 1969 ie Annexure 2 to the writ application. Annexure 2 is quoted below :

"With reference to your letter No. TMV. 253/93/3 dated 16.8.93 on the subject indicated above, I am to return herewith the pension case of Shri Satish Chandra Kalita, Retd. Conductor, with the request to resubmit the tame before six months from the date of retirement on superannuation as the pension is payable from 1.2.96 vide Rule 98(iii)of ASP Rules, 1969." Hence, this writ application.

3. I have heard Sri B.Ullah, learned counsel for the petitioner and Sri KN Choudhury, learned counsel for the respondent Nos. 6 and 7. None appears for the respondent Nos. 1 to 5.

4. The bone of contention in this case is that whether Rule 25 of the Pension Rules shall apply to the present case or Rule 98 (iii) shall apply to the present case. If Rule 25 applies, the petitioner shall be entitled to pension as provided in the Service Rules from the date of compulsory retirement and if Rule 98 (iii) applies the petitioner shall be entitled to pension from 1.2.96. Rule 25 of the Pension Rules is quoted below :

"25. Compulsory retirement as a penalty.- An officer compulsorily retired from service, as a penalty, may be granted by the authority competent to impose such penalty, pension at a rate not less than two-thirds and not more than full invalid pension and special additional pension, if any, admissible to him on the date of his compulsory retirement :

Provided that in the case of an officer mentioned in Rule 16 or Rule 17 who has completed before such retirement 25 years of qualifying supe­rior service or more the pension shall be not less than two-thirds and not more than the full retiring pension and additional pension, if any, to which he would have been entitled if he retired on that date."

Rule 98 provides the pension for 4 classes ie (i) Compulsory pension, (ii) Invalid pension, (iii) family pension, and (iv) retiring p«nsion. Retiring pension of the Rule 98 appears in section V. So, Rule 98 shall apply only to retiring pension. Rule 98 and sub-rule (iii) and (v) is quoted below :

"98. The Governor may, at his discretion, allow a Government servant in superior service proportionate pension or such other retirement benefits as may be determined on his resignation from Government service being accepted for accepting an employment or continuing in employment permanently under a body corporate owned or controlled by the Government.

(iii) The pro-rata pension, gratuity, ere. Admissible in respect of the service rendered under Government would be disburseable only from the date the Government servant would have normally superannuated had he continued in Government service ,.

(v) Where an officer retires from the service of a public undertaking before his date of supera

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