Judgment Case ID: 3014

Judgment:
Appeal No. 1768 of 1969. Appeal by special leave from the judgment and order dated October 8	 1968 of the Mysore High Court in Writ Petition No. 657 of 1968. 189 M. C. Setalvad	 Ram Punjwani and section P. Nayar	 for the appellants. R. B. Datar and M. section Narasimhan	 for the respondent. M. K. Ramamurthi	 Shyamala Pappu and J. Ramamurthi	 for intervener No. 1. section Ramasubramanian and J. Ramamurthi	 for intervener No.2. The Judgment of the Court was delivered by Vaidialingam	 J. In this appeal	 by special leave	 the question that arises for consideration is regarding the validity of the new Note substituted in place of the old Note on December 23	 1967 to cl. (b) of rule 2046 (F.R. 56) of the Indian Railway Fundamental Rules. The High Court by its judgment and order	 under appeal	 dated October 8	 1968	 has struck down the new Note as dis criminatory and violative of article 14 of the Constitution. The respondent was originally an employee of the Madras and Southern Mahratta Railway Company (hereinafter to be referred as the Company) having joined the service on August 16	 1927 as Clerk Grade 1. His date of birth	 there is controversy	 was April 15	 1910. The Company was amalgamated with the Indian Railway Administration in the year 1947 and on .such amalgamation	 the respondent became the employee of the Indian Railway Administration. There is also no controversy That he came within the classification of a "ministerial railway servant" within the meaning of that expression	 occurring in rule 2046. Rule 2046 deals with retirement of a railway servant At the time of amalgamation	 under cl. (1) of the said rule	 the date of retirement of a railway servant	 other than a ministerial railway servant was the date on which he attained the age of 55 years. It was also provided therein that the said railway servant	 	after attaining the age of retirement	 may be retained in service with the sanction of the competent authority on public ground to be recorded in writing. But there was a prohibition regarding retention of such a railway servant after the age of 60 years except in very special circumstances. Clause (2) of the said rule	 which deals with a ministerial railway servant	 under which category the respondent falls	 at the time of amalgamation was as follows : "2046 (2) (a) A ministerial servant	 who is not governed by sub clause (b)	 may be required to retire at the age of 55 years	 but should ordinarily be retained in service	 if he continues efficient up to the age of 60 190 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. (b) A ministerial servant (i) who has entered Government service on or after the 1st April	 1938	 or (ii) who being in Government service on the 31st March	 1938 did not hold a lien or a suspended lien on a permanent post on that date. shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing		 and with the sanction of the competent authority and he must not be retained after the age of 60 years except in very special circumstances. " It will be noted that under sub clause (a)	 quoted above	 a ministerial servant	 who is not governed by sub clause (b) may be required to retire at the age of 55 years; but if he continues to be efficient	 he should ordinarily be retained in service upto the 'date of 60 years. Retention in service after the age of 60 years	 can only be under very special circumstances	 to be recorded in writing and with the sanction of the competent authority. There was a further special provision made under cl. (b) in respect of a ministerial servant who had entered Government service on or after April 1	 1938 or being in Government service on that date	 did not hold a lien or a suspended lien on a permanent post oh that date. On December 5	 1962	 the Railway Board addressed a com munication to the General Managers of All Indian Railways that the Government were considering the question for some time whether the age of compulsory retirement of railway servants should be raised above 55 years. It is further stated that the President is pleased to direct that the age of compulsory retirement of railway servants should be 58 years subject to the three exceptions mentioned in the order. The only relevant exception is Exception No. 1 relating to ministerial railway servants	 which was as follows : "(i) The existing rule 2046 (F.R. 56) (2)(a) RII	 under which ministerial railway servants who held a lien or suspended lien on a permanent post on 31st March	 1938 are to be retained in set vice upto the age 191 of 60 years subject to their continuing to be efficient and physically fit after attaining the age of 55 years	 will remain in force. It will be seen from the decision	of the Government	 as com municated in the above letter	 that the age of retirement of railway servants was raised from 55 to 58 years. But this was subject to the restriction regarding the continuance of a ministerial servant after 55 years upto the age of 60 years as provided for under sub clause (b) of cl. (2) of rule 2046. On January 11	 1967	 the old rule 2046 as amended in 1962 was substituted by the new rule. The new rule consisted of four clauses	 but we are not concerned with clauses (c) and (d) The material part of the said rule relevant to be noted are clauses (a) and (b) together with the note to clause (b) which ran as follows : "2046 (FR. 56) (a) Except as otherwise provided in this rule	 every railway servant shall retire on the day he attains the age of fifty eight years. (b) A ministerial railway servant who entered Government service on or before the 31st March	 1938 and held on that date (i) a lien or a suspended lien on a permanent post	 or (ii) a permanent post in a provisional substantive capacity under Clause (d) of Rule 2008 and continued to told the same without interruption until he was confirmed in that post	shall be retained in service till the day he attains the age of sixty years. NOTE : For the purpose of this Clause	 the expression "Government Service" include service rendered in ex company		 and ex State Railways	 and in a former provincial Government." Two aspects broadly emerge from the above new rule : (a) every ministerial railway servant who had entered Government service on or before March 31	 1938 and who satisfied the conditions mentioned in sub clause (i) or (ii) of clause (b) had a right to continue in service till he attained the age of sixty years; and (b) under the Note	 the expression "Government Service" in clause (b) takes in service rendered in ex company	 ex State Railways and in a former provincial Govern 192 ment. There is no controversy that the respondent held a permanent post in the Company on March 31	 1938. Therefore		 under this new rule	 he would be entitled to continue in service till he attained the age of sixty years	 as provided in cl. (b) read with the Note thereto. On December 12	 1967	 the Note to cl. (b) of rule ' 2046 defining the expression "Government Service" as per the order dated January 11	 1967 was deleted	 and a new Note was substituted in its place. The order dated December 23. 1967 together with the new Note is as follows : "For the existing note	 substitute the following For the purpose of this clause the expression "Government Service" includes service rendered in a former provincial government and in ex. Company and ex. State Railways	 if the rules of the Company or the State had a provision similar to Clause (b) above. " From the new Note	 extracted above	 it will be seen that the definition of the expression "Government Service" was changed. The effect of the new Note	 so far as the respondent is concerned	 is that whereas he was entitled to continue in service upto 60 years	 as per clause (b) read with the note thereto under rule 2046 as substituted on January 11	 1967	 now he can get service upto 60 years only if the Company had a provision similar to cl. (b) of rule 2046. There is no dispute	 that under the service conditions applicable to the respondent	 when he was an employee of the Company	 he had no right to continue in service till he attained the age of sixty years. On the other hand	 under the service conditions of the Company he had to retire at the age of 55 years. It appears	 that after the introduction of the new rule 2046 on January 11	 1967	 the Divisional Accounts Officer	 Hubli	 passed an order on March 31	 1967 that the respondent was entitled to continue in Office till he attained the age of 60 years. But after the new Note to cl. (b) to rule 2046 was substituted on December 23	 1967	 the Divisional Accounts Officer	 Hubli	 passed an order on January 17	 1968 to the effect that the respondent is to retire from service on April 14	 1968 on which date he would be attaining the age of 58 years. The said order also states that this action was being taken in view of the new Note substituted on December 23	 1967 to cl. (b) of rule 2046. The respondent filed on March 6	 1968 in the Mysore High Court	 Writ Petition No. 657 of 1968 challenging the legality and validity of the order dated January 17	 1968 retiring him from service with effect from April 4	 1968. In the writ petition 193 he had referred to his previous service in the Company and to the latter being amalgamated with the Indian Railway Administration in 1947. According to him	 after such amalgmation he has become a ministerial railway servant under the Indian Railway Administration and all the rules applicable to the employees of the latter became applicable to him. In particular	 he pleaded that he was entitled to continue in service	 until he attained the age of sixty years	 as per the new rule 2046 introduced on January 11	 1967	 as he satisfies all the conditions prescribed under cl. (b) thereof. He particularly attacked the new Note to cl. (b) substituted on December 23	 1967 as discriminatory and violative of article 14 of the Constitution. According to him	 the members of the Indian Railway Service	 similarly situated like him	 will be. entitled to continue in service till 60 years	 whereas that right has been denied	 to persons like him	 under the new Note. He also referred to the order passed on March 31	 1967 by the Divisional Accounts Officer	 Hubli in and by which it was directed that he was entitled to continue in service till 60 years. According to the respondent	 the Railway Administration was not entitled to go back on this order. On these grounds	 the respondent challenged the validity of the order directing him to retire on the basis of the new Note. The appellant contested the writ petition on the ground that the order dated March 31	 1967 was passed on the basis of the rule 2046	 read with the Note	 as it existed on January 11	 1967 But the position was changed by the deletion of the original Note to cl. (b) and its substitution by the new Note on December 23	 1967. The appellant claimed that the service conditions of persons	 like the respondent	 have always been different from those serving under the Railway Administration and that by the introduction of the new Note	 no discrimination has been practised on any officer. On the other hand	 according to the appellant	 the new Note only gave effect to the conditions of service	 which obtained in the Company	 where the respondent originally joined service. The appellant further pleaded that the new Note does not violate article 14 of the Constitution. The High Court	 by its judgment and order dated October 8	 1968 has accepted the contentions of the respondent and held that the new Note substituted to cl. (b) of rule 2046 on December 23	 1967 is discriminatory and violative of article 14 of the Constitution. In this view	 the said Note was struck down. In consequence	 the High Court set aside the order dated January 17	 1968 and gave a declaration that the respondent was entitled to continue in service till he attained the age of sixty years. Mr. M. C. Setalvad	 learned counsel for the appellant	 Rail way Board	 has strenuously attacked the finding of the High 194 Court that the new Note	 substituted on December 23	 1967 to cl. (b) is discriminatory and violative of article 14 of the Constitution. On the other hand	 he urged that a distinction has always been made in the case of ministerial railway servant who is governed by cf. (b) and those who are not so governed by that clause of rule 2046. Different provisions regarding the age of retirement have been provided in respect of those two classes of ministerial railway servants. The new Note	 Mr. Setalvad pointed out only gives recognition to the practice that has been obtain ing in respect of the ministerial railway servants under their previous employers. He further pointed out that the Note to cf. (b) of rule 2046	 incorporated on January 11	 1967 gave the benefit of the expression "Government Service ' 'to persons	 like the respondent	 who have previously been working in ex Company	 provincial Government or ex State Railways. The new Note keeps the same categories of employees within the expression "Government Service"	 but adds a qualification that in order to have the benefit of a longer period of service	 they should have had such benefit under their previous employers. Mr. Setalvad further pointed out that a government servant has no right to continue in service till the age of 60 years and that the option to so continue him upto that age	 vests exclusively within the discretion of the authority concerned. For this proposition the counsel relied on the decision of this Court in Kailash Chandra vs Union of India(1) interpreting clause (2) of rule 2046 as it existed prior to the amendment in 1962. In any event	 Mr. Setalvad pointed out	 that the officers who had worked under a former provincial Government	 Ex Company or Ex State Railways and who have been dealt with under the new Note substituted on December 23	 1967 form a class by themselves and therefore there is a reasonable classification of such officers	 and that satisfies the requirement of article 14 of the Constitution. On all these grounds	 Mr. Setalvad urged that the new Note is not discriminatory and it does not violate article 14 of the Constitution. Mr. R. B. Datar	 learned counsel for the respondent and M/s M. K. Ramamurthi and J. Ramamurthi	 who appeared for the two interveners have supported the reasoning of the High Court for holding that article 14 is violated by the new Note to cl. (b) of rule 2046. We are of the opinion that the contentions of Mr. Setalvad cannot be accepted. No doubt	 the counsel is justified in his contention only to this limited extent	 namely	 that under cl. (2) of rule 2046	 as it existed prior to its amendment on January 11	 1967 that ministerial railway servant falling under that clause	 has no right to continue in service beyond the age of 55 and that (1) ; 195. the appropriate authority has the option to continue him in service after his attaining the age of 55 years	 subject to the condition that the servant continues to be efficient. This Court in Kailash Chandra 's case(1) had an occasion to consider rule 2046 (2) (a) as it originally stood. It was held that the ministerial railway servants falling under the said clause may be compulsorily retired on attaining the age of 55 years. But when the servant is between the age of 55 and 60 years	 the option to continue him in service	 subject to the servant continuing to be efficient	 exclusively vests with the appropriate authority. It was further laid down that the authority is not bound to retain a railway servant after the age of 55 years	 even if the continues to be efficient. It was. further emphasised that the rule gave no right to a ministerial railway servant to continue in service beyond the age of 55 years. It is in view of the above principles laid down by this Court	. we have observed	 earlier	 that Mr. Setalvad 's 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 now 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 emplo yees employed by the Indian Railway Administration. That exactly was the position under the rule 2046	 as it originally stood; after its 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 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 to therein. Mr. Setalvad placed reliance on the fact that rule 2046	 as it existed upto and inclusive of January 11	 1967	 dealt differently with the age of retirement in respect of : (i) a railway servant coming under cl. (a) and (ii) a ministerial railway servant coming under cl. He further pointed out that even in respect of a ministerial railway servant coming under cl. (b)	 the latter	 in order to be eligible to have a longer age of retirement should be one who complies with the conditions mentioned there 1. ; 196 in. These conditions are as per el. (b) existing on January 1 1	 1967	 that the officer should have entered government service on 	or before March 31	 1938. The said officer should also have the 	one or the other of the qualifications mentioned in sub clauses (i)and (ii). That is	 according to the learned counsel	 if a ministerial railway servant has not entered government service before March 31	 1938	 he will not be eligible for the longer age 	of retirement. These circumstances will clearly show	 according to Mr. Setalvad that the rule has been through out maintaining a distinction even amongst the ministerial railway servants working under the Indian Railway Administration. This argument	 may on the face of it appear to be attractive; but in our opinion	 it cannot be accepted. The point to be noted is that though a distinction has been made in the rule between a railway servant coming under el. (a) and a ministerial railway servant coming under el. (b)	 those clauses will apply uniformly to all members of the Indian Railway Administration depending upon whether .they are railway servants coming under el. (a) or a ministerial railway servant coming under el. (b)	 as the case may be. To all railway servants coming under el. (a) the age of retirement is the same. Similarly to all ministerial railway servants coming under el. (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 el. We are emphasising this aspect to show that no distinction has been made either in el. (a) or el. (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 el. (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 el. (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) or el. (b) Similarly	 another railway servant may have entered government service under the Indian Railway Administration on or before March 31	 1938. He also	 under el. (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 el. (b)	 he will be entitled to continue in service till 60 years. That means both persons	 like the respondent	 and the officers who have straight 197 joined the service under the Indian Railway Administration	 prior March 31	 1938 and who satisfy the requirements under sub clause (i) or sub clause (ii) of clause (b) will be equally entitled continue in service till they attain the age of 60 years. These acts clearly show that cls. (a) and (b) of rule 2046 had uniform application to all the employees of the Indian Railway Administration. Coming to the new rule 2046	 incorporated on January 11	 1967	 the conditions of service of persons	 like the respondent	 have been better crystalised. 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 servant 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 extend the period of service of the officers mentioned in cls. (a) and (b) is dealt with under sub		 clauses (d) and (c) respectively	 which we have not quoted. Sub clauses (c) and (d) deal with the granting of extension of service beyond the period mentioned in sub clauses (b) and (a). The option to extend the service beyond the period mentioned in sub causes (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. 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 may have come	 was made. Even at the risk 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 198 	expression "Government Service" by the new Note to cl. (b) introduced on December 23	 1967. Under that Note	 it cannot be gain said	 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 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 	other of the employers mentioned in 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	 1968. 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 employee who had through out been under the Indian Railway Administration is entitled to continue in service till he attains the age 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 refire 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. 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 lndian Railway Administration. Therefore	 we are not inclined to accept the 199 contention that the classification of these officers	 under the new Note	 is a reasonable classification and satisfies one of the essential requisites of article 14 of the Constitution	 as interpreted by this Court. 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 an uniform age of retirement has also been fixed in respect of the officers coming under these two clauses	 the classification	 carving out 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. 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 rule 2046 on 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. In the new substituted Note dated December 23	 1967. the first part of the Note including in "government 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. Therefore	 the offending part in the new Note are the further words "if the 200 rules of the Company or the State had a provision similar to Clause (b) above". This offending part can be deleted without doing violence to the definition of the expression "Goverment Service" even under the new Note. Therefore	 it is only necessary to strike down the offending part in the Note	 namely	 "if the rules of the Company or the State had a provision similar to Clause (b) above" and this part of the Note alone is struck down as discriminatory and violative of article 14 of the Constitution. Subject to the above directions	 the judgment and order of the High Court are confirmed and this appeal dismissed. Special leave to appeal has been granted on August 7	 1969 subject to the conditions that the appellant is to pay the costs of the respondent in any event. The respondent	 accordingly	 will be entitled to his costs in the appeal. K.B.N. Appeal dismissed.

Summary:
Rule 2046 (F.R. 56) of the Indian Railway Fundamental Rules was substituted on January 11	 1967	 by a new Rule. Undo cl. (b) of the new Rule 2046 every ministerial railway servant who had entered government service on or before March 31	 1938 and who satisfied the conditions mentioned in sub cls. (i) and (ii) of cl. (b) had a right to continue in service till he attained the age of 60 years. The Note to the Rule	 defined the expression 'government service ' as including service rendered in ex company and ex State Railway	 and in a former provincial government. On December 23	 1967 a new Note was substituted which stated that the expression "government service" ' included "service rendered in a former provincial government and in ex company and ex State Railways	 if the rules of the company or the State had a provision similar to cl. (b) above". The respondent joined the service of the Madras and Southern Mahratta Railway company on August 16	 1927. The company was amalgamated with the Indian Railway Administration in 1947 and on such amalgamation the respondent became the employee of the Indian Railway Administration He was a "ministerial servant" within the meaning of that expression in r. 2046. On March 31	 1938	 he held a permanent post in the company. After the introduction of r. 2046 on January 11	 1967	 the Divisional Accounts Officer passed an order that the respondent was entitled to continue in office till he attained the age of 60 years. But	 after the new Note to cl. (b) to r. 2046 was substituted on December 23	 1967	 another order was passed to the effect that the respondent was retired from service on April 14	 1968	 on attaining the age of 58 years. The order also stated that this action was being taken in view of the new Note substituted on December 12	 1967. The respondent filed a writ petition in the High Court challenging the legality of the order retiring him from service. The High Court struck down the order and gave a declaration that the respondent was entitled to continue in service till he attained the age of 60 years	 on the ground that the order was discriminatory and	 therefore	 violative of article 14 of the Constitution. Dimissing the appeal to this Court	 HELD : The High Court was justified in striking down the order directing the respondent to retire from service. (1) Rule 2046 as it stood originally and on January 11	 1967 treated the former employees of the ex company	 ex State Railway and former provincial Government 188 who were amalgamated with the Indian Administration in 1947 on a par with the other original employees of the Indian Railway Administration. In fact the Note to cl . (b) of r. 2046 incorporated in January 11	 1967 only reinforced this position. Read with the Note	 under el. (b)	 the respondent is a ministerial servant who had entered government service on or before March 31	 1938 and	 therefore	 by virtue of el. (b) he was entitled to be retained in service till he attained the age of 60 years. C] (2) Up to and inclusive of January 11	 1967	 no distinction	 inter se	 apart from that made by cls. (a) and (b) between officers of Indian Railway Administration	 from whatever source they may have I come	 was made. The position admittedly has been changed by altering the definition of the expression "government service" by the new Note to el. (b) Thus 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 Indian Railway Administration or on the fact of their coming from one or the other employers mentioned in the new Note. Discrimination	 is writ large on the face of the new Note. Once the employees dealt with under the new Note have taken up service under the Indian Railway Administration and have been treated alike up to January 11	 1967	 if follows that they cannot again be classified separately from the other employees of the Indian Railway Administration. Therefore the classification of these officers under the new Note is not a reasonable classification. [197 G	 198 F] (3) Assuming there is a reasonable classification	 the classification cannot be said to have a nexus or relation to the object sought to be achieved by el. (b) of r. 2046 which 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 officers coming under these two clauses	 the classification carving out 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 el. (b) has no nexus or relation to the object of the Rule. [199 B] (4) Though a distinction has been made in the Rule between a railway servant coming under el. (a) and a ministerial railway servant coming under el. (b) in regard to age of retirement	 those clauses will apply uniformly to all members of the Indian Railway Administration depending upon whether they are railway servants coming under el. (a) or ministerial railway servants coming under el. The distinction made in el. (b) regarding the ministerial railway servants who entered government service on or before March 31	 1938	 is again of uniform application. [196 H] (5) It is only necessary to strike down the offending part in the Note	 namely	 "if the rules of the company or the State had a provision similar to el. (b)	 and this part of the Note alone is struck down as discriminatory and violative of article 14 of the Constitution. [200 B] 
5465	A suit was filed by the appellants in the Court of the Assistant Collector seeking ejectment of the respondent tenant from his lands, under section 77(3) proviso 2(e) of the Punjab Tenancy Act, 1887 on the ground that he had defaulted in the payment of rent, and it was decreed. In execution of the decree, the respondent was ejected from the suit land. No appeal was filed from the said decree but the respondent filed a suit in the Civil Court against the appellants alleging that he was in fact a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment passed by the Revenue Court was without jurisdiction and, therefore, a nullity, and claimed restoration of the possession of the suit land from which he had been wrongly ousted by the Revenue Court. The suit was dismissed by the Subordinate Judge holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and within that court 's jurisdictional competence and that it was of a binding nature on the respondent and was not open to challenge in subsequent proceedings. The appellant asserted that the claim by the respondent in the subsequent suit was barred by the principles of res judicata. The suit was dismissed. In appeal, the Additional District Judge reversed the findings of the trial court and decreed the suit of the respondent. The appellants filed regular second appeals before the High Court. 94 A Single Judge of the High Court was of the view that, in view of the conflicting judgments on the points for determination in the case, the matter required to be referred to a larger bench. The Full Bench, by a majority view, held that the decision of the Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or in other collateral proceedings between the parties, and remitted the matter back to the Single Judge for disposal in accordance with the above decision. The question for consideration in the appeals by Special Leave before this Court was: as to how far an order of eviction of a person by the Revenue Court under section 77(3) of the Punjab Tenancy Act, 1887 operated as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord. Dismissing the appeals by special leave, this Court, ^ HELD: 1. The High Court was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned. [105C D] 2.1 The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship came to an end. Sections 98 and 99 do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases. The limits of the jurisdiction would be apparent by the fact that all suits by a landlord to eject a tenant do not encompass suits to decide whether a person was a tenant or not or whether the plaintiff was a landlord or not. [98C; 99 F G] 2.2 ouster of jurisdiction of Civil Courts should not be inferred easily. It must be clearly provided for and established. If the dispute was as to the nature of the relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Tenancy Act had no jurisdiction; when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act. [103C D] 2.3 A salutory and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto was to find out whether the first court could go into the question 95 whether the respondent was a tenant in possession or mortgagee in A possession. In view of the language of section 77 it is clear that it could not and, therefore, there was no res judicata. The subsequent civil suit was. therefore, not barred by res judicata. [105B C] Raj Lakshmi Dasi and others vs Banamali Sen and others, ; Om Prakash Gupta vs Rattan Singh and another, ; Shri Raja Durga Singh of Solan vs Tholu; , ; Magiti Sasamal vs Pandab Bissoi, ; Lal Chand (dead) by Lrs. and others vs Radha Kishan, [1977] 2 SCR 522 and State of Tamil Nadu vs Ramalinga Samigal Madam; , , referred to. 
5303	The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural property between P.W. 1 and the appel lants two real brothers and their three sons, the appel lants effected entry on the night of 13/14 8 1984 into the courtyard of the adjoining house where P.W. 1 and her two daughters. were sleeping and brutally attacked them with gandasas and a banka. The younger daughter was repeatedly struck with a gandasa and her neck was severed, as a result of which she died instantaneously, while the other daughter was struck on the neck and face with a banka and her right hand was chopped off with the gandasa, and she died later in the hospital. P.W. 1 was struck on the face and upper part of the body with the gandasa. She ran from the house through the village abadi and narrated the incident to P.W. 2 who, in turn, informed P.W. 5, the Village Pradhan. After visit ing the scene of offence, P.W. 3 filed a First Information Report. The appellants were tried and the two brothers were convicted under Section 302 of the Indian Penal Code on two counts of murder and were awarded capital punishment while the other three appellants were convicted under Section 302 read with Section 149 of Indian Penal Code and sentenced to life imprisonment. All the appellants were also convicted under Section 148 of the Indian Penal Code. 723 The High Court, affirming the conviction and sentences awarded to the two brothers, observed that it was satisfied that this was one of the 'rarest of the rare cases ' where death penalty was the only appropriate sentence which ought to be imposed on them. Dismissing the appeal, this Court HELD: 1.1 It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. [726B] 1.2 The punishment must fit the crime. The present cases were cold blooded brutal murders in which two innocent girls lost their lives. The extreme brutality with which the appellants acted shocks the judicial conscience. The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother is nothing but death. [725H; 726B C] 1.3 Failure to impose death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. [726A B] 1.4 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed. [726C] 1.5 The two appellants were guilty of a heinous crime out of greed and personal vengeance and deserve the extreme penalty. This case falls within the test 'rarest of the rare cases ' as laid down by this Court. [725G H] Bachan Singh vs State of Punjab, [1980] SCC 684 and Machhi Singh vs State of Punjab, referred to. 
3772	section 7 of the Punjab Customs (Power to Contest) Act, 1920 provided that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom. section 3 of the Amendment Act 12 of 1973 amended section 7 with the .result that no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom. A gift deed was executed by one Mula, in favour of appellant No. 13 Bhagwati Deyi, on December 3, 1964. Appel lants 1 to 12 claiming to be potential reversioners obtained a decree on May 31, 1966 in a suit flied against the donor and the donee for a declaration that under the Punjab Cus toms (Power to Contest) Act Z of 1920 the gift deed was not binding on them and that decree was confirmed in appeal on October 16, 1967. On July 10, 1966, Mula adopted the re spondent. On March 11, 1970 appellant No. 13 executed in favour of appellants 1 to 12,, a lease in respect of the property which was the subject matter of the gift. Mula died on August 23, 1971. On December 13, 1971, respondent filed a suit for possession of certain properties including the property which Mula had gifted to appellant No. 13. The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court. In appeal by special leave. , the appellants contended (i) In decreeing the suit the Courts below had over looked the relevant provisions of the Punjab Customs (Power to Contest) Amendment Act, 1973 by virtue of which the legali ty of the gift made by Mula to appellant No. 13 could not be contested and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under section 8 of the Punjab Limitation (Custom) Act, of 1920. Dismissing the appeal, the Court HELD: (1 ) That a declaratory decree obtained under the Punjab Customs (Power to Contest) Act by a reversioner to the effect that an alienation would not bind them after the. alienor 's death, had the effect of restoring the property alienated to the estate of the alienor and therefore, all persons who are heirs to the deceased were entitled to obtain possession of the alienated property. [367 E F] (ii) The decree obtained by appellants 1 to 12 on May 31, 1966 would enure for the benefit of all persons who are entitled to a share in the property of the. deceased as it existed at the moment of his death. Since Mula 's property stood freed from the encumbrance of the, gift at the moment of his death, respondent as the adopted son would be en tiled to the possession of the gifted property. [367 H, 368 A] Giani Ram vs Ramji Lal ; , relied on to; Chand Singh vs bid Kaur approved. (iii) It is true that, if it became necessary after the amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest. But in the instant case, the basis on which the respondent has asked for the relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in suit No. 143/1965. He has not and indeed he need not have contested the validity of the gift deed since the question was decided finally in the aforesaid suit. [367 B D] 366 
1165	For the accounting year 1941 the assessee 's profits from his share in an unregistered firm were,. set off against his losses in the individual business and the Income Tax Officer determined the loss to be carried forward at RS. 53,840, but did not notify to the assessee by order in writing the amount of the loss as computed by him as required by section 24(3) of the Act. The assessee appealed against the assessment but did not question the amount of the loss which had been determined. In the year 1942 43 the assessee claimed to reopen the question of the loss to be carried forward stating that it was RS. 2,116760. This contention was rejected by the Tribunal. The contention was again raised by the assessee in the assessment years 1948 49 and 1949 50. The question was whether the loss which had been determined and ordered to be carried forward must be deemed to have become final because no appeal was filed against that determination. Held, that computation of the amount of loss under section 24 Of the Income tax Act does not become final unless the Income tax Officer notifies by order in writing, the amount of the loss as computed by him to the assessee. The assessee was entitled to have 187 the loss redetermined in a subsequent year though he had not filed an appeal against the determination of the loss but no appeal could be filed in the absence of an order in writing. Seth jamnadas Daga vs The Commissioner of Income tax, ; , applied. 
1171	There were certain charges of immorality, corruption and gross dereliction of duty against the appellant who was a police officer. After an enquiry, the Governor of U. P. referred the case under section 4 Of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, to a Tribunal. The Tribunal recommended on February 4, 1950, that the appellant be dismissed from service. The Governor then served a notice on the appellant to show cause why he should not be dismissed from service and after considering the explanation submitted by him dismissed him with effect from December 5, 1950. The appellant challenged the order of dismissal, inter alia, on the grounds: (i) that the Governor had no power under section 7 of the Police Act and the U. P. Police Regulations framed thereunder to dismiss a police officer and (ii) that the enquiry held by the Tribunal violated 152 article 14 Of the Constitution as of the two parallel procedures available under the Tribunal Rules and under the U. P. Police Regulations, the mode prejudicial to the appellant under the Tribunal Rules was adopted. Held (per Das, Hidayatullah, Shah and Ayyangar, JJ.) that the enquiry by the Tribunal and the order of dismissal passed by the Governor were legal and valid. Under para. 479(a) of the U. P. Police Regulations, framed under section 7 Of the Police Act, the Governor bad the power to dismiss a police officer. Under the Tribunal Rules also, which were framed in exercise of the various powers vested in the Governor including the power under section 7 Of the Police Act, the Governor was authorised to dismiss a police officer. By virtue of article 313 Of the Constitution these provisions remained in operation even after the coming into force of the Constitution. The authority vested in the Inspector General of Police and his subordinates by section 7 of the Police Act, was not exclusive; it was controlled by the Government of India Act, 1935, and the Constitution which made the tenure of all civil servants of a province or state during the pleasure of the Governor. The procedure adopted did not violate article 14 Of the Con stitution. Though at the time when proceedings were started against the appellant two distinct procedures for holding the enquiry were open for selection by the authorities, the order by the Governor referring the case under the Tribunal Rules having been passed before the Constitution, article 14 could have no application to it even if it was discriminatory. The procedure ire scribed in the Police Regulations is substantially the same as the procedure prescribed by the Tribunal Rules, and by continuing the enquiry after the Constitution under the Tribunal Rules and not under the Police Regulations, a more onerous procedure prejudicial to the appellant was not adopted. The fact that an order made by a police authority under the Police Regulations is made appealable whereas an order passed by the Governor under the Tribunal Rules is not made appealable does not amount to discrimination within the meaning of article 14. The Tribunal Rules provide for the giving of reasonable opportunity to a public servant in ill its aspects, viz., opportunity to deny his guilt, opportunity to defend himself and opportunity ,to make his representation against the proposed punishment. The mere existence of two sets of parallel procedures is not discriminatory unless it was shown that one set is more onerous than the other. Syed Qasim Rozvi vs The State of Hyderabad and Lackhmandas Kewalram. Abuja vs The State of Bombay, ; , applied. Khem Chand vs The Union of India and others, [1954] S.C. R. 1080 and Sardar Kapur Singh V: Union of India, (1960) 2 S.C. R. 569, referred to. 153 State Of Orissa vs Dhirendranath Das, A.I.R. 1961 S.C. 1715, distinguished. Per Das Gupta, J. The U.P., Disciplinary Proceedings (Administrative Tribunal) Rules, 1947, are hit by article 14 Of the Constitution. The absence of the right of appeal under the Tribunal Rules while a right of appeal is given to a police officer under the Police Regulations, results in unequal treatment in a substantial matter between police officers proceeded against under the two procedures. Further, there is no principle. to guide the Government in selecting which of the two procedures is to be applied in a particular case. 
5317	The appellant alongwith others was prosecuted for caus ing the death of Sheroo Lala. It was alleged that during the exchange of hot words between the party of the deceased and the party of the appellant, the appellant inflicted a stab wound in the stomach of Sheroo with a Rampuri knife as a result of which he died. On trial the appellant was convict ed for an offence under section 302 of the Indian Penal Code and sentenced to imprisonment for life and on appeal his convic tion and sentence was maintained. In the appeal to this Court, on behalf of the appellant it was contended; (1) that Maruti one of the accused persons had a contused lacerated wound on the head on the right occipital parietal region and the defence version was that when exchange started between Sheroo and Maruti, first Maruti was assaulted and then in exchange, one another accused took a knife and gave a blow to the deceased and thus plea of the accused was that this injury was inflicted on Sheroo in the exercise of right of private defence; and (2) that both the Courts below came to the conclusion that as soon as Sheroo and his party arrived near the hand cart of Badshah, there was a hot exchange between the two sides. The witnesses examined by the prosecution have not clearly stated what words were uttered and the trial court felt that the language was obscene and probably the witnesses did not like to mention whereas the High Court felt that the wit nesses were not in a position to mention the exact words. However, both the Courts did reach a conclusion that there was a hot exchange between the two groups and, therefore, in 902 such a situation it could not be doubted that the party of the accused was provocated and on such grave and sudden provocation at the heat of the moment, the appellant who was carrying a knife took it out and inflicted only one blow and did not even attempt a second blow and the findings of the both the Courts is that this happened at the spur of the moment without pre meditation and in the heat of the passion and, therefore, at best the appellant could be convicted for an offence under section 304 Part II because in these circum stances no intention of causing death could be attributed to the appellant and since he has already served for more than 7 years of sentence, no useful purpose would be served by sending him to serve a short period of sentence. On behalf of the respondent State, it was contended that there was some previous trouble between the parties which furnish some motive and this opportunity was taken to seek vengeance. Allowing the Appeal, HELD: 1. The conviction of the appellant is altered from one under section 302 to section 304 Part I I.P.C. and since the appellant has already served out more than 7 years, he is sentenced to sentence already undergone. [909C] 2. The plea of right of private defence taken by the accused persons including the appellant has not been accept ed by the Courts below. Both the Courts below have rejected the story that it was not the appellant but another accused who wiped out a knife and inflicted the injury on Sheroo and that first injury was caused on Maruti. There is no evidence to indicate that there was any material sufficient to come to the conclusion that it was Maruti who was assaulted first. On the contrary the consistent evidence indicated that on arrival of Sheroo it was Maruti who started the verbal exchange and in view of this evidence, the submission that the injury was inflicated on Sheroo in the exercise of right of private defence cannot be accepted. [906H; 907A B] 3. The Trial Court was right in concluding that some thing provocative seems to have happened". It is apparent that the prosecution witnesses did not say or give out what words were spoken. The only inference could be that if those words were given out	 it would have damaged the prosecution case. [908B C] 4. On the arrival of the complainants ' party some hot exchange began. Words were spoken	 the witnesses have cate gorically stated that 903 they were speaking loudly and still prosecution witnesses have chosen to give excuse for not speaking out words by saying that they could not hear those words and this clearly goes to show that the words used by the deceased and his friends were such which caused provocation. Both the Courts came to the conclusion that there was no pre meditation. It was at the spur of the moment and in the heat of passion and it is also not disputed that only one blow was inflicted by the present appellant and the injury ultimately caused proved to be fatal. [908C E] 5. The story of some earlier trouble and the motive suggested by the prosecution has not been accepted by both the Courts below and it is also clear that there was not a pre arranged plan. Admittedly it was by chance that the party of Sheroo also chose to go to the same spot i.e. hand cart of Badshah at that odd hour at night where the appellant and his friends had already reached. It is not as if seeing the deceased Sheroo and his friends that the appellant and his friends reached. On the contrary	 Sheroo and his friends arrived later. In this view of the matter	 both the Courts were right in coming to the conclusion that hot exchange of filthy language resulted in some kind of provocation in the heat of passion without premeditation this injury was inflicted and in the circumstances it could not be held that it was inflicted with an intention to cause death. The only intention which could be attributed to the appellant in the circumstances of this case could be to cause such bodily injury as is likely to cause death. Conse quently	 the appellant could only be convicted for an of fence under section 304 Part I. [908G H; 909A B]