D. N. Chowdhury, J.-This writ application is directed against and arises

out of a judgment and order dated 16.6.98, passed by the Central Administrative Tribunal (hereinafter referred to as the Tribunal), Guwahati Bench in Original Application No.69 of 1991 (hereinafter referred to as the OA), whereby the order of compulsory retirement that was passed against the applicant/respondent, Sadananda Sen, on 7.12.88 issued by the Deputy Chief Accounts Officer (Traffic) was set aside. The facts leading to issuance of the aforesaid order are as follows.

The respondent/applicant, at the relevant time was working as Accounts Assistant in the North East Frontier Railway and posted at New Jalpaiguri. By order under No.AD/COM/Review/Service/policy dated 7.12.88, the respondent/applicant was compulsorily retired from service. The respondent submitted two representations, one on 22.6.89 addressed to the Financial Adviser and Chief Accounts Officer, NF Railway, Maligaon and the other one on 16.2.90 addressed to the General Manager, NF Railway, Maligaon. Failing to get appropriate remedy, the respondent applicant presented an application under section 19 of the Administrative Tribunal Act, 1988 in the Central Administrative Tribunal at Guwahati on 30.4.1991, challenging the order of his compulsory retirement dated

7.12.88, as illegal and without jurisdiction. The Railway authorities (petitioners herein) contested the application filed before the Tribunal and submitted their written statement denying and disputing the claim of the respondent/applicant. The applicant filed a rejoinder some time in 1997 wherein it was stated that at the time of presenting the application under section 19 of the Administrative Tribunal Act, he was not aware about the period of his qualifying service. That after presentation of the said application, the respondent/applicant came across a letter under number PNO/AD/Con/D&A/46(SS) dated 24.4.96 from the Financial

Adviser and Chief Accounts Officer, NF Railway Maligaon, which contained the information that the applicant had only 2-1/2 years of qualifying service for pension. The learned Tribunal, upon considering the materials on record and on hearing the parties, allowed the application and set aside the order of compulsory retirement dated 7.12.88, The learned Tribunal held that though the impugned order of compulsory retirement was passed under clause (h) of Rule 2046 of the Indian Railway Establishment Code, the said rule was no longer in existence/

force on the date of passing of the impugned order and that a new rule had come into force with effect from March, 1988, viz. Rule 1803 of the Indian Railway. Establishment Code, Vol. n, Sixth Edition 1987, and under the said rule, a person can be retired from service at any time after completion of thirty years of service qualifying for pension. The learned Tribunal relying upon an office note dated 16.3.98 issued by the Assistant Accounts Officer, held that the respondent/applicant did not complete thirty years of service qualifying him for pension and, therefore, the condition precedent for invoking the power of compulsory retirement was absent. The learned Tribunal also held that the impugned order of compulsory retirement suffered from the vice of non-application of mind on the ground that

the impugned action was taken by the Railway authorities under Rule 2046 (old) which was non-existent on the date of passing of the impugned order. Hence the writ petition assailing the order of the learned Tribunal passed on 16.6.98 in OA No.69 of l991.

2. Mr. BK Sharma, learned senior counsel appearing on behalf of the Railway petitioners, assailed the order of the Tribunal both on facts as well as in law. Mr. Sharma submitted that the application presented before the Tribunal did not contain any such plea of whatsoever form, to the effect that on the date of passing of the impugned order of compulsory retirement, the Railway employee concerned did not complete thirty years of qual

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