Case: Railway Board Vs. A. Pitchumani

that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14, 1958.23. The question is whether the distinction made under the new Note to cl. (b) substituted on December 23, 1967 valid? In our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. It is in view of the above principles laid down by this Court, we have observed, earlier that Mr. Setalvads contention in respect of the vads contention in respect of the rule 2046, as it originally stood, is well founded. But this Court in the above decision, had no occasion to consider the problem that how arises, by virtue of the new Note added to cl. (b) of rule 2046. There is no controversy that after the amalgamation of the Company with the Indian Railway Administration, the respondent has become an employee of the latter. If so in our opinion, the respondent is entitled to be given the same rights and privileges that are available to the other employees employed by the Indian Railway Administration. That exactly was the position under the rule 2046, as it originally stood; after Rs amendment on December 5, 1962 increasing the age of retirement to 58 years; as also under the new rule 2046, incorporated on January 11, 1967. All these rules upto and inclusive of January 11, 1967 treated the former employees of the Ex-Company, Ex-State Railways and former Provincial Governments, who were amalgamated with the Indian Railway Administration in 1947, on a par with the other original employees of the Indian Railway Administration. In fact, the Note to cl. (b) of rule 2046 incorporated on January 11, 1967, reinforced this position, by making it clear that the expression "Government Service" in cl. (b) will include service under the various employers referred topoint to be not is that though a distinction has been made in the rule between a railway servant coming under cl. (a) and a ministerial railway servant coming under cl. (b), those clause will apply uniformly to all members of the Indian Railway Administration depending upon whether they are railway servants coming under cl. (a) or a ministerial railway servant coming under cl. (b), as the case may be. To all railway servants coming under cl. (a) the age of retirement is the same. Similarly to all ministerial railway servants coming under cl. (b), the age of retirement is again the same. Further if a ministerial railway servant does not satisfy the requirements of cl. (b) he will not be eligible to get the extended period of retirement. That again will apply to all ministerial railway servants, who do not satisfy the requirements of cl. (b). We are emphasising this aspect to show that no distinction has been made either in cl. (a) or cl. (b) regarding the uniform application in respect of the age of retirement to the officers mentioned therein and who are governed by those clauses. That is, there is no inter se distinction made. The distinction made in cl. (b) regarding the ministerial railway servants who entered government service on or before March 31, 1938 is again of uniform application. That rule only makes a broad distinction between the ministerial railway servants who entered government service on or before March 31, 1938 and who entered government service after that date. As per the Note to cl. (b) to rule 2046, incorporated on January 11, 1967, the respondent is a person who has entered government service on or before March 31, 1938 and satisfies also the requirements under sub-cl. (ii) of cl (b). Similarly, another railway servant may have entered government service under the Indian Railway Administration on or before March 31, 1938. He also, under cl (b) will be a ministerial railway servant who has entered government service on or before March 31, 1938 and if he satisfies one or other of the conditions mentioned in sub-clauses (I) and (ii) of cl. (b) vice till 60 years. That means both persons, like the respondent, and the officers who have straight joined the service under the Indian Railway Administration, prior to March 31, 1938 and who satisfy the requirements under sub-clause (I) or sub-clause (ii) of clause (b) will be equally entitled to continue in service till they attain the age of 60 years. These facts clearly show that cls. (a) and (b) of rule 2046 had uniform application to all the employees of the Indian Railway Administration.21. Coming to the new rule 2046 incorporated on January 11, 1967, the conditions of service of persons, like the respondent, have been better crystallised. Read with the Note, under cl. (b), the respondent is a ministerial railway servant, who had entered government service on or before March 31, 1938. By virtue of cl. (b), he was entitled to be retained in service till he attains the age of 60 years. It is to be noted that there is no option left with the employer, but to retain such a ministerial railway servant upto 60 years. In other words, if the ministerial railway servant satisfies the requirements of cl. (b), he is, as of right, entitled to be in service, till he attains the age of 60 years. Similarly, cl. (a) introduced on January 11, 1967, gives a right to a railway servants to continue in office, till he attains the age of 58 years. Here again, there is no option vested with the authorities except to continue him till that age. The option to extent the period of service of the officers mentioned in cls. (a) and (b) is dealt with under sub-clause (d) and (c) respectively, which we have not quoted. Sub-clauses (c) and (d) deal with the granting of extention of service beyond the period mentioned in sub-clauses (b) and (a). The option to extend the service beyond the period mentioned in sub-clauses (a) and (b) mentioned in sub-clauses (a) and (b) may be with the authorities; but they have no voice in a railway servant coming under cl. (b), continuing upto 60 years.22. That the authorities also understood the position in the manner mentioned above, is clear from the order dated March 31, 1967, of the Divisional Accounts Officer, Hubli declaring the right of the respondent to continue in service upto 60 years. In fact, this order was passed in consequence of the new rule 2046 substituted on January 11, 1967. Therefore, from what is stated above, it is clear that upto and inclusive of January 11, 1967, no distinction inter se apart from that made by clauses (a) and (b), between the officers of the Indian Railway Administration from whatever source they the risk of repetition, we may state that under cl. (b) of rule 2046, as introduced on January 11, 1967, the original employees of the Indian Railway Administration, as well as persons, like the respondent, who came into the Indian Railway Administration in 1947, were both entitled, as of right, to continue in service till they attained the age of 60 years. This position admittedly has been changed, by altering the definition of the expression "Government Service" by the new Note to cl. (b) introduced on December 28, 1967. Under that Note, it cannot be gainsaid, that a distinction has been made between the original employees of the Indian Railway Administration, and the new employees, who were amalgamated with the Indian Railway Administration in 1947, but who had their previous service, with either a former provincial Government, or an Ex-Company or Ex-State Railways. In the case of such employees, the benefit of the extended age of retirement, that has been given to the other employees of the Indian Railway Administration, was made available, only if the new employees had the same benefit under their previous employers. Therefore, the position employers. Therefore, the position is that on and after December 23, 1967, though all the employees are under the Indian Railway Administration, there will be two sets of rules relating to the age of retirement, depending upon the fact whether they were in the original employment of the Indian Railway Administration or on the fact of their coming from one or the new Note. It is in consequence of the new Note, that the order dated January 17, 1968 was issued by the Divisional Accounts Officer, Hubli, that the respondent has to retire at the age of 58 years, on April 14,our opinion, such a rule, which makes a distinction between the employees working under the same Indian Railway Administration is not valid. The position, after the new Note was added, is that the employees who had throughout been under the Indian Railway Administration is entitled to continue in service till he attains the ago of 60 years; whereas the persons, like the respondent, who are also the employees of the Indian Railway Administration, but whose previous services were with the Company, will have to retire at the age of 58 years, because a provision similar to cl. (b) did not exist in the service conditions of the Company. Discrimination, on the face of it, is writ large in the new Note, which is under challenge.24. Mr. Setalvad, no doubt, urged that the ministerial railway servant, who was originally employee of a Company, Ex-State Railway or a former Provincial Government dealt with under the new Note are a class by themselves, and therefore there is a reasonable classification. Once the employees dealt with under the new Note, have taken up service under the Indian Railway Administration and have been treated alike upto January 11, 1967, it follows, in our opinion that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore, we are not inclined to accept the contention that the classification of these officers, under the new Note, is a reasonable classification and satisfies one of the essential requisites of Art. 14 of the Constitution, as inter-preted by this Court.25. We will assume, that in dealing with the types of employees under the new Note, there is a reasonable classification. Nevertheless, the further question arises whether the reasonable classification, with the added condition in the Note incorporated on December 23, 1967, can be said to have a nexus or a relation to the object sought to be achieved by cl. (b) of rule 2046? The object of rule 2046 itself is to provide for the age of retirement of the two types of officers coming under cls. (a) and (b). Where there is no indication that any further distinction inter se is sought to be made amongst the officers mentioned in cls (a) and (b) and when a uniform age of retirement has also been fixed in respect of the officers coming under these two clauses, the classification, carving cut the ex-employees of the three authorities mentioned therein, with the added condition that the rules of the Company or the State should have a provision similar to clause (b), has, in our opinion, no nexus or relation to the object of the rule.26. For the reasons given above, we are of the view that the High Court was justified in striking down the order of the Divisional Accounts Officer, Hubli, dated January 17, 1968 directing the respondent to retire from service on April 14, 1968, on which date he will attain the age of 58 years. However, it is not clear from the judgment of the High Court whether the entire new Note substituted under cl. (b) of rule 2046 on December 23, 1967 has been struck down or whether it has struck down only the new condition incorporated in the said Note. Even as per the Note under cl. (b), Incorporated along with the new R. 2046 an January 11, 1967, the expression "Government Service" included service rendered in Ex-Company, Ex-State Railways and in a former provincial Government, and such a provision is beneficial to the employees like the respondent.27. In the new substituted Note dated December 23, 1967, the first part of the Note including in "government service" any service rendernment service" any service rendered in a former provincial Government, Ex-Company and Ex-State Railways is more or less identical with the original Note of January 11, 1967, though in the new Note the order of the former employees has been slightly changed. In our opinion, that part of the new rule providing that for the purpose of cl. (b) the expression "Government Service" includes service rendered in a former provincial Government and in a Ex-Company and Ex-State Railways can be allowed to stand to this extent.