Appeal No 283 of 1960
Appeal from the judgment and decree dated November 20 1958 of the Allahabad High Court Lucknow Bench in First Civil Appeal No 3 of 1956
C B Agarwala and C P Lal for the appellant
R Ganapathy Iyer and T M Sen for the respondent
March 16
The Judgment of the Court was delivered by DAs GUPTA J
The appellant a clerk in the service of the East Indian Railways was compulsorily  retired from service with effect from June 30 1948 on attaining the age of 55 years
His prayer for further retention in service on the ground that he was entitled to be retained under Rule 20462 of the Railway Establishment Code having been rejected he brought the suit which has given rise to this appeal in the court of the Civil Judge Lucknow alleging that he was entitled to be retained under the above rule and the order for compulsory retirement on attaining the age of 55 years was
void and inoperative in law
He accordingly prayed for a declaratory decree that the order of his compulsory retirement was illegal and void and for a money decree for arrears of pay on the basis that he had continued in service
The main defence was a denial of his right to be retained in service under the rules
The Trial Court accepted the plaintiff s contention  as regards the effect of the rule gave him a declaration as prayed for and  also decreed the claim for money in part
On appeal the High Court took a different view of Rule 2046 and held that that rule gave the plaintiff no right to continue in service beyond the age of 55 years
The High Court therefore allowed the appeal
and dismissed the plaintiffs suit
Against this decision the 376 plaintiff has preferred the present appeal on a certificate granted by the High Court under article 1331 c of the Constitution
The main question therefore is whether on a proper interpretation of Rule 20462 a of the Railway Esta blishment Code which is identical with the fundamental rule 56 b i the plaintiff had the hight to be retained in service till the age of 60 years
It is necessary to mention that the plaintiff s case that he continued to be efficient even after attaining the age of 55 years has not been disputed by the respondent the Union of India
Consequently the question is assuming the plaintiff so continued to be efficient whether he had the right to be retained in service till he attained the age of 60 years
Rule 2046 1 of the Code deals with the question of retirement of railway servants other than ministerial and provides that such Railway servant that is one who is not a ministerial servant will be compulsorily retired on attaining the age of 55 years but may be retained in service after that date with the sanction of the competent authority on public grounds which must be recorded in writing
A further provision is made that he must not be retained after the age of 60 years except in very special circumstances
Rule 20462 deals with cases of ministerial servants
It has two clauses of which ol
b deals with i ministerial servants who entered Government service on or after April 1 1938 or ii who though in Government service on March 31 1938 did not hold a lien or a suspended lien on a permanent post on that date
These also like the Railway servants who are not ministerial servants have to retire ordinarily at the age of 55 years and cannont be retained after that age except on public grounds to be recorded in writing and with the sanction of the competent authority and must not be retained after attaining the age of 60 years except in very special circumstances
Clause a deals with railway ministerial servants other than those who entered Government service on or after April 1 1938 or those in Government service on March 31 1938 who did not hold a lien or a 377 suspended lien on a permanent post on that date
The exact words of the rule are A ministerial servant who is not governed by sub cl
b may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years
He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority
 It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within el
a of rule 20462 than those who fall under el
b of the same rule or railway servants who are not ministerial servants
For whereas in the case of these viz railway servants Who are not ministerial servants and ministerial servants under cl
b retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent authority in the case of ministerial servants who fall under cl
a of Rule 20462 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55
It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given no discretion by itself to  retain a ministerial railway servant under cl
b if he attains the age of 55 years that is not the position as regards the ministerial servants who fall under cl
The appellant s contention however goes very Much further
He contends that in the case of ministerial servants who come within cl
a and after attaining the age of 55 years continue to be efficient it is not even a case of discretion of the appropriate authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority is bound to retain him if efficient
The first clause of the first sentence of the relevant 48 378 rule taken by itself certainly gives the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years
The question is Whether this right is cut down by the second clause viz but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years
On behalf of the appellant it is urged that the very use of the conjunction but is for the definite purpose of the cutting down of the right conferred by the first clause and that the effect of the second clause is that the right to require the Government servant to retire at 55 is limited only to cases where he does not retain his efficiency but where he does retain his efficiency the right to retire him is only when he attains the age of 60 years
We are con strained to say that the language used in this rule is unnecessarily involved but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rulemaking authority
That intention in our opinion is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more subject to the condition that he continues to be efficient
If this condition is not satisfied the appropriate authority has no option to retain the servant where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option
If the intention had been to out down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years or some such similar words
The use of should ordinarily be retained in service is sufficient index to the mind of the rule making authority that the right conferred by the first clause of the sentence remained
Leaving out for the present the word ordinarily the rule would read thus 379 A ministerial servant who is not governed by sub clause b may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years
 Reading these words without the word ordinarily we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient
They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so
This intention is made even more clear and beyond doubt by the use of the word ordinarily
Ordinarily means in the large majority of cases but not invariably
This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient
The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the  servant who falls within clause a as soon as he attains the age of 55 it will at that stage consider whether or not to retain him further
This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also in the absence of special circumstances he should retain the servant but what are special circumstances is loft entirely to the authority s decision
Thus after the age of 55 is reached by the servant the authority has to exercise  its discretion whether or not to retain the servant and there is no right in the servant to be retained even if he continues to be efficient
Reliance was placed by learned counsel on an observation of Mukherjea J as he then was in Jai 380 Ram vs Union of India 1 when speaking for the Court as regards this rule his Lordship said We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of 60
This is conditional undoubtedly upon his continuing to be efficient
We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency
 It would be wholly unreasonable however to consider this as a decision on the question of what this rule means
Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel s argument on that basis
It was not intended to say that this was the correct interpretation that should be put on the words of the rule
The correct interpretation of Rule 2046 2 a of the code in our opinion is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient
It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India  Basant Kumar Pal vs The Chief Electrical Engineer Kishan Dayal vs General Manager Northern Railway and Raghunath Narain Mathur vs Union of India 4
We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55
1 AIR 1954 SC 584
3 AIR 1954 Punj
2 AIR 1956 Cal
4 AIR 1953 All
381 It was next urged by Mr Aggarwal though faintly that the notification of the Railway Board dated October 19 1948 and the further notification dated April 15 1952 as a result of which ministerial servants who were retired under rule 20462a before attaining the age of 60 after September 8 1948 have been given special treatment are discriminatory
It appears that on September 8 1948 the Government of India came to a decision that no ministerial Government servant to whom the fundamental rule 56bi applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered
This decision was communicated to different departments of the Government of India and it was directed that this should be noted for future guidance
On October 19 1948 the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by Rule 20462a which corresponded to fundamental rule 56b1 in the manner as directed by the Government of India s notification dated September 8 1948
This notification of October 19 1948 again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired
Again in a notification dated April 15 1952 the Railway Board communicated a decision that such of the ministerial servants who had been retired after 8th September 1948 but before attaining the age of 60 years without complying with article 311 2 of the Constitution should be taken back to duty under certain conditions
The appellant s contention is that the denial of this advantage given to other ministerial servants falling within rule 20462a who had been retired after September 8 1948 is unconstitutional
We do not think that this contention has any substance
What happened was that on September 81948 the Government took a decision that ministerial servants should 382 not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60
The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made
The formation of a different class of those who retired after September 8 1948 from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend article 14 of the Constitution
This contention is therefore also rejected
The High Court was therefore right in our opinion in holding that there was a reasonable classification of the ministerial servants who had been retired under Rule 2046 2 a on attaining the age of 55 into two classes one class consisting of those who had been retired after September 8 1948 and the other consisting of those who retired up to September 8 1948
There is therefore no denial of equal protection of laws guaranteed by article 14 of the Constitution
In the result the appeal fails and is dismissed
There will be no order as to costs as the appellant is a pauper
We make no order under Order XIV rule 9 of the Supreme Court Rules
Appeal dismissed


Summary:
The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age of 55 years
His prayer for further retention in service having been rejected he filed a suit alleging that he was entitled to be retained in service up to the age of 60 years under Rule 2046 2a of the Railway Establishment Code which runs as follows Clause a A ministerial servant who is not governed by sub cl
b may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years
He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority
 His suit was decreed by the Trial Court but the High Court reversed it holding that the plaintiff appellant had no right to continue in service beyond the age of 55 years
On appeal with the certificate of the High Court
Held that the correct interpretation of Rule 20462a is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 6o years the appropriate authority has the option to continue him in service subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if he continues to be efficient
This rule does not give the servant a right to be retained in service beyond the age of 55 years even if he continues to be efficient
jai Ram vs Union of India AIR 1954 SC 584 explained
Basant Kumar Pat vs The Chief Electrical Engineer AIR  Kishan Dayal vs General Manager Northern Railway AIR 1954 Punj
245 and Raghunath Narain Mathur vs Union of India AIR 1953 All 352 approved
375 The formation by the Railway Board of two classes of ministerial servants namely one of those who retired after September 8 1948 and the other of those who had already retired before that date was a reasonable classification and lid not offend article 14 of the Constitution