JUDGMENT

G.C. Mathur, J. - The petitioner, who was holding the post of charge man grade 'A' in class III on the North Eastern Railway, has challenged an order dated May 8, 1970, of the Deputy Chief Mechanical Engineer (Shops) , compulsorily retiring him from service under clause (k) of rule 2046 of the Indian Railway Establishment Code, Volume II.

2. On August 15, 1939, the petitioner was taken as a trade apprentice in the Mechanical Workshop of the erstwhile East Indian Railway on terms and conditions set out in an agreement executed by the parties a copy of which is annexure `A' to the counter affidavit, filed by Sri Nawab Chand Tewary on behalf of the Railway Administration. After completing five years apprenticeship, the petitioner was, on October 22, 1941, appointed to the post of Boiler Maker. The petitioner earned several promotions and ultimately in the year 1960, he was promoted to the post of chargeman grade `A' in class III. The impugned order of compulsory retirement was passed while the petitioner was holding this post.

3. The petitioner has challenged the impugned order on three grounds :-

1. That clause (k) of Rule 2046 has not been made in accordance with the provisions of the proviso to Article 309 of the Constitution and is invalid and inoperative;

2. That the Deputy Chief Mechanical Engineer (shops) was not the petitioner's appointing authority and, therefore, he was not competent to pass the order of compulsory retirement; and

3. that the petitioner had not put in thirty years of service and, therefore, he could not be compulsorily retired under clause (k) of Rule 2046. It is unnecessary to consider the first two grounds as, in my opinion, the petitioner must succeed on the third ground. The contention of the petitioner is that his service in the railways counts front October 22, 1944, the date on which he was appointed to the post of Boiler Maker and from that date till the date of the impugned order the petitioner had not put in thirty years' service. The contention of the Railway Administration is that the period during which the petitioner was a trade apprentice also counts towards service and, therefore, the petitioner's service should be counted from August 15, 1939, the date on which he became a trade apprentice. Therefore, the question which arises for determination, is whether the period from August 15, 1939 to October 22, 1944, during which period the petitioner worked as trade apprentice should or should not be counted towards service. The agreement, which was executed between the parties at the time when the petitioner was taken as a trade apprentice, shows that during the period of apprenticeship the petitioner was not treated as being in the railway service. Under the first clause of the agreement the apprentice bound himself to undergo training for Boiler Maker for a term of five years. Clause 2 provides that stipend of Rs. 8/- p.m. for the first year, Rs. 9/- p.m. for the second year, Its. 10/- p.m. for the third year, Rs. 11/- p.m. for the fourth year and Rs. 12/- p.m. for the fifth year would be received by the apprentice. Clause 5 provides that the continuance of the apprenticeship from year to year will depend upon the satisfactory conduct and progress of the apprentice. Clause 12, which is important, reads thus :-

"That on successful completion of the apprenticeship, the Railway Administration may engage the services of the said Trade Apprentice in such capacity and on such pay as may be considered fit, but no guarantee or promise of employment temporary or permanent, on completion of apprenticeship is given or implied by the Railway Administration."

Clause 12, which is also relevant, reads :-

"That the agreement is terminable by the Railway Administration on the Trade Apprentice being physically unfit for service, or guilty of misconduct or on his failure to pass any of the prescribed test or examinations. The trade Apprentice or the person who executes the agreement on his behalf may termi