Fundamental Rule 56 (b) (1) gives the Railway Administration the option to retire a ministerial servant at the age of 55, and the servant can continue till the age of 60 only if found efficient.

( 1 ) THIS is an appeal filed by the defendant Union of India, in suit brought by Kailash Chandra respondent who was a clerk formerly in the old Oudh and Rohilkhand Railway Accounts Office having been employed on 3-5-1912. After the amalgamation of the O. and R. Raillway with the east Indian Railway, he was confirmed sometime in 1913. In 1948 he was working as a sub-head in the Divisional Accounts Office of the East Indian Railway at Lucknow and according to the plaintiff he was com-pulsorily made to retire on 30-6-1948 after attaining the age of 55.

( 2 ) THE contention of the plaintiff is that according to Fundamental Rule 56 equivalent to Rule 2046 of the Indian Railway Establishment Code, he should not have been made to retire compulsorily at the age of 55 but he was entitled to remain in service till the age of 60 and if he was made to retire compulsorily that order amounted to an order of removal and was passed in breach of the provisions of Section 240, Clause (3) of the Government of India Act, 1935, and article 311 (2) of the Constitution of India. Reliance was placed by the plaintiff on the Railway boards letter No. E-62-R. T. 1/2, dated 28-3-1952, which recognised that the retirement of ministerial servants of the railway before attaining the age of 60 was illegal and those persons who had retired at the age of 55 after 8-9-1948, were given a right to be taken back. It was contended in the plaint that there was no justification for confining the operation of that order to those who were retired after 8th September, 1948. The Order of retirement, therefore, according to the plaintiff was ultra vires, illegal and inoperative in the eye of law and thei plaintiff continued in service from 30-6-1948, when he retired till the date of the suit. The cause of action alleged to be was the fetter of the Chief Accounts Officer dated 8-1-1952, refusing to re-instate the plaintiff. The plaintiff claimed a sum of Rs. 14,777/6/- as his pay in addition to a declaration that the order of his compulsory retirement dated the 30th June, 1948 was illegal, ulltra vires, void and inoperative and as such the plaintiff continued in service in spite of the said order. The plaintiff had served a notice on the respondent on 9-5-1952 in accordance with Section 80 of the code of Civil Procedure.

( 3 ) THE defence, inter alia, of the respondent was that the Fundamental Rules did not apply to the plaintiff and that the plaintiff had been retired correctly at the age of 55, and further that the suit was barred by limitation.

( 4 ) THE Court below framed as many as seven issues which are as follows : 1. Whether Fundamental Rule 56 (b) (1) applies to the plaintiits case? 2. Whether the order of retirement of tha plaintiff at the age of 55 years is ultra vires or illegal? 3. Whether the plaintiff was compulsorily retired as alleged by him or was he normally retired as alleged by the defendant? 4. Whether the notice served on the defendant under Section 80, Civil Procedure Code is legal?

( 5 ) WHETHER the suit is barred by limitation?

( 6 ) WHETHER the claim for arrears is not maintainable?

( 7 ) TO what relief if any is the plaintiff entitled? it held that the Fundamental Rule 56 (b) (1) ap-plied to the plaintiffs case, that the order of toe retirement of the plaintiff at the age of 55 was ultra vires and illegal, that the plaintiff was com-pulsorily retired, that the notice served on the defendant was a proper notice, and that the suit could be decreed only for three years and two months salary and was not barred qua the relief for a declaration and on these findings it decreed the suit for Rs. 11,794/ -. Aggrieved by that decision the Union of India has come up in appeal to this Court. There is also a cross-objection by the respondent as regards that portion of the claim which had been disallowed by the Court below. 5. Learned Counsel for the appellant has raised two points : Firstly it has been argued that the plaintiff had been righ