ORDER :- This writ petition relates to a service matter. The petitioner V. P. Misra of the Ex-War personnel was absorbed in the Watch and Ward on a post of clerk on 23-7-1947 by the then Superintendent, Watch and Ward. Eastern Railway. He was later confirmed with effect from 1-4-1956. His date of birth is July 12, 1910. He received an order, which is annexure 5 to the writ petition and is dated 1-3-1967, to the effect that in terms of Chief Security Officer letter dated 9-12-1967 he would retire with effect from 11-7-1968, afternoon. In other words, he was to retire on the attainment of the age of 58 years. The said communication purported to be from the Assistant Security Officer, Lucknow, though it was signed by the Head Clerk of the office for the Assistant Security Officer. The petitioner made a representation dated 4-3-1967 and also sent reminders on several sub-sequent dates, the 1st one being dated 15-12-1967, of which copy is annexure 6 to the writ petition. He got a reply (copy annexure 7 to the writ petition) dated 16-12-1967 "that the matter was under waiting and the final decision when arrived at will be intimated to him promptly."

He never received any communication about the final decision till the date 11-7-1968 arrived or even thereafter. On 21-5-1968, in view of the fact that the date of retirement was approaching he filed the present writ petition. He asked for an interim relief for the suspension of the order of his retirement but the same was not given to him and so he has been under retirement from 12-7-1968.

2. The contention of the petitioner is that his age of compulsory retirement was 60 and not 58 and the order for his retirement before attaining the age of 60 could be passed only by a competent authority which was neither the Chief Security Officer nor the Assistant Security Officer or the Head Clerk who signed for the former. The order is further challenged as mala fide, being secured by opposite party No. 4 to the writ petition, namely, the Assistant Security Officer, who became displeased with the petitioner as certain representations made by him against the orders of opposite party No. 4 were allowed by higher authorities. The order is questioned as discriminatory and void, being violative of Articles 14 and 16 of the Constitution as others in the same position have been allowed to continue in service upto the age of 60 years. The failure to decide the representation is said to have caused violation of principles of natural justice and the order of retirement to be mala fide and illegal.

3. A counter affidavit has been filed by one Jasjit Singh Bal describing himself as opposite party No. 4. He has denied the allegations of mala fides against himself and has asserted that the age of retirement for the petitioner was 58 and the order of retirement was issued by the Chief Security Officer and only the communication to the petitioner was signed by the Head Clerk in the routine way. The case of discrimination was denied.

4. The petitioner filed a rejoinder affidavit reiterating his allegations denied in the counter affidavit and also referring to a particular name as a per son who was retired at the age of 60 years.

5. At the outset it may be stated that the action of the opposite parties, whosoever out of them were concerned with the decision of the representation made by the petitioner, in not deciding the representation before the retirement date of the petitioner arrived, is obnoxious as the opposite parties got more than a year to consider a simple representation. His case went by default and he had to fall back upon whatever legal grounds he could advance in his favour to secure a reversal of the order.

6. Coming to the merits, the first point which arises for consideration is whether the age of compulsory retirement in the case of the petitioner was 60 or 58 years. The relevant provision is to be found in Rule 2046, sub-rule (2), of the Indian Railway Establishment Code, Volume II, but the