ivil Appeal No 4284 of 1988
From the Judgment and Order dated 30388 of the Central Admn
Tribunal Hyderabad in OA No 575 of 1987
AD Singh A Subba Rao CVS Rao and P Parmeshwaran for the Appellants
KT Shastri Respondent in person
The Judgment of the Court was delivered by SAWANT J
The appellants Union of India and the Direc tor Technical Development and Production Air Ministry of Defence have preferred this appeal against the decision of the Central Administrative Tribunal Hyderabad Bench hold ing that respondent KT Shastry was entitled to remain in service upto the superannuation age of 60 years and was not liable to be retired at the alleged superannuation age of 58 years
The relevant admitted facts are that the respondent was recruited as a Senior Scientific Officer on October 12 1966 in the Defence Science Service
He was posted in the Directorate of Technical Development and Production Air briefly called DTD  P at the relevant time the Defence Science Service had three units under it namely 1 Defence Research and Development Organisation DRDO 2 Director ate General of Inspection DGI and 3 Directorate of Tech nical Development and Production Air DTD  P
The recruitment when made was always to the Defence Science Service and after the recruitment the recruits were posted according to the exigency of the service in any of the said three units
Their 22 services were inter changeable and inter transferable be tween the three units
All the service conditions of the persons working in the three units including scales of pay superannuation age etc
were the same and were regulated by the same set of Rules viz Defence Science Service Rules
In the year 1979 the Defence Science Service was trifurcated and reconstituted as follows
1 Defence Research and Development Organisation DRDO was reconstituted as Defence Research and Development Serv ice DRDS
2 Directorate of Technical Development and Production Air DTD  P was reconstituted as Defence Aeronautical Quality Assurance Service DAQAS and 3 Directorate General of Inspection DGI was reconstituted as Defence Quality Assurance Service DQAS
The appellant who was working in DTD  P became a member of DAQAS
When the trifurcation was made the Service Rules governing the three units had a common Rule which was Rule 12 in DAQAS and DQAS and Rule 13 in DRDS which reads as follows Other conditions of service 1 The conditions of service of the members of the service in respect of matters not expressly provided for in these Rules shall mutatis mutandis and subject to any special orders issued by the Government in respect of the service be the same as those applicable to officers Civil ians of corresponding status in similar scientific institu tionsorganisations under the Government of India
At the time the present controversy arose and the respondent approached the Administrative Tribunal he was holding the post of Deputy Chief Scientific Officer
By an Office Memorandum No 73 85 DR  D of the Government of India Ministry of Defence Department of Defence Research  Development dated 24121985 the decision of the President was conveyed whereby Scientific and Technical personnel gazetted of DR and DS in the grade of Scientist E  and above would retire at the age of 60 years and those in the lower grade for which flexible complementing scheme was applicable would also retire at the age of 60 years provided they had been promoted to the grades they were holding at the time of attaining the age of 58 years within the preced ing five years
Subsequently by OM No 7385 D R  D dated 10286 the said decision was extended to all 23 Scientific and technical personnel of the DRDO ie DRDS as listed in the Appendix A  of that Memo
By virtue of Rule 12 quoted above this benefit given to the members of DRDS was also available to the members of DAQAS since the said condition of service was not expressly provided for in the Service Rules
The Tribunal therefore held that the re spondent was not liable to be retired at the age of 58 years his superannuation age being deemed to have been increased to 60 years in view of the OM dated 241285 read with OM dated 10286 referred to above
It is this decision which is challenged before us by the appellants
Mr Subba Rao learned counsel appearing for the appellants contended that the Government had a right to prescribe different conditions of service for the members belonging to the different units and merely because the superannuation age of the members of the DRDS was increased it could not be held that the respondent who belonged to another unit viz DAQAS was entitled to the said benefit
There is no dispute that the Government has power to vary the service conditions of the members of the services from time to time
The question involved in the present appeal is however not whether the Government had such power
The question is whether the respondent was also entitled to the benefit of the power so exercised in the facts and circum stances of the case
The admitted facts are that in 1966 when the respondent was recruited to the Defence Science Service the three units belonged to the said Service and the employees were recruited initially to that service and then sent to different units
The service conditions of the employees belonging to the three units were the same and their services were inter changeable between the three units
The Service Rules which applied to all the three units were also common viz Defence Science Service Rules
The three units therefore belonged to and constituted one single service
It is later in the year 1979 that the Defence Research Service was reconstituted into three dif ferent services as stated above
However at that time admittedly no option was given to the employees working in the different units to opt for one or the other of the units
It appears that those who were already working in either of the three units were deemed to belong to the respective newly constituted service
This being so their service conditions will have to run parallel and no discrim ination can be made between them by an unilateral action
The classification made between them further has no rational basis and no nexus of such classification to the object sought to be achieved has been shown to us by Mr Subba Rao appearing for the appellants
In the circumstances the denial of the benefit of the enhanced superannuation age to the members of one 24 unit while the same is granted to the members of the other unit amounts to discrimination violative of Article 16 of the Constitution
We are therefore satisfied that the decision of the Tribunal is both proper and valid and there is no substance in the present appeal
The appeal is there fore dismissed
We are informed that in spite of the decision of the Tribunal and even pending this appeal when no stay was granted the Appellant Union of India retired the respondent at the age of 58 years
We have been unable to understand this indefensible action on the part of the Appellant nor could the learned counsel for the Appellants explain it to us
We therefore direct the Appellants to reinstate the respondent in service within one week of this Order and to pay to him all his emoluments from the date of his arbitrary retirement till the date of his re instatement in service as if he had not been retired
We further direct that he would continue in service till he attains the age of 60 years unless of course for some other legal reasons it becomes necessary to discontinue his services before that date
We also understand that in the meanwhile the respond ent was paid all his retirement benefits
The Appellant will not recover any amount so paid to the respondent
The appeal is accordingly dismissed with aforesaid directions and with costs
TNA Appeal dis missed


Summary:
A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935
In 1936 the decree holder started execution of the personal decree and attached certain properties of the judgment debtor
The decree holder filed a petition on January 30 1937 praying that the execution case may be struck off for non prosecution keeping the attachment in force in view of certain negotiations for amicable settle ment and the court passed an order that the execution case is dismissed for non prosecUtion the attachment 573 already effected continuing
On June 2 1939 the decree holder filed a petition stating that the decree had been adjusted and attachment may be withdrawn
The Bengal Money lenders Act came into force on September 1 1940 and on January 2 1941 the legal representatives of the judg ment debtor filed a suit under section 36 of the Act praying for re opening the transactions
The question being whether any proceeding for execution was pending on or after January 1 1939 within the meaning of the definition of a suit to which this Act applies contained in section 2 22 of the Bengal Money lenders Act Held per KANIA CJ and DAs J That the order of January 30 1937 was in form and in substance a final order of dismissal of the execution petition of 1936
The attach ment continued not because there was a pending execution proceeding but because a special order for continuing the attachment was made under O 21 r 57 of the Civil Proce dure Code as amended by the Calcutta High Court and not withstanding the fact that the attachment was continued there was no execution proceeding pending on January 1 1939 and accordingly the decree sought to be reopened was not one passed in a suit to which the Act applies within the meaning of section 2 22 of the Act and the Court had no power to re open the transactions under section 36 2
The petition of June 2 1939 was also not a proceeding for execution but a mere certification by the decree holder of satisfaction of the decree
PATANJALI SASTRI J
The continuance of the attachment notwithstanding the dismissal of the execution petition indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property
Attachment itself is a proceeding in execution and so long as it subsists the proceeding in execution can well be regarded as pending
In this view a proceeding in execution was pending on January 1 1939 and the decree must be taken to have been passed in a suit to which this Act applies 
But inasmuch as the sub mortgage to the respondent s predecessor in title was bona fide and he obtained by virtue of the sub mortgage the right to sue the original mortgagor for recovery of the mortgage debt the decree holder was a bona fide assignee and his claim for the entire decree debt was protected by section 36 5 of the Act
Renula Bose v Manmatha Nath Bose LR 72 IA 156 Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya 50 CWN 407 and Prom ode Kumar Roy vs Nikhil Bhusan Mukhopadhya LR 76 IA 74 referred to