Somnath Iyer, J.
1. The petitioner who was an employee in the Southern Railway attaining the age 55 years on July 10, 1962. He was previously an employee of M. & S. M. Railway, and when he became an employee of the Southern Railway he opted i'or the benefit of the leave rules applicable to persons who were in the employment of the M. & S. M. Railway. In consequence and under those rules, he was allowed six months leave preparatory to retirement from July 1, 1962.
2. While he was on such leave preparatory to retirement, there were rules made by the President under Article 309 of the Constitution by which the age of compulsory retirement of a railway servant was raised to 58 years. These rules came into force on December 1, 1962. In regard to railway servants who were on leave preparatory to retirement on December 1, 1962 when those rules came into force, the President's rules made a special provision which reads :
'Railway servants who are on leave preparatory to retirement on the 1st December 1962 will not be entitled to the benefit of the increased age of compulsory retirement unless they are permitted to resume duty after the appointing authority is satisfied that they are efficient and physically fit.'
3. On December 12, 1962 the Divisional Superintendent of the Southern Railway addressed a communication to the petitioner by which he was informed that he was eligible for the benefit of continuing in service till 58 years of age, provided he was found efficient and physically fit by the competent authority. That letter concluded thus :
'If you intend to continue in service, please report to this Office on or before 19-12-1962 for further orders. A pass for your journey is enclosed. If you do not intend to come back, the pass may please be returned for cancellation.'
4. The petitioner did express his desire to continue in service, and, the competent authority pronounced him efficient and physically fit. In consequence, on December 21, 1962, the Divisional Commissioner who was the appointing authority made an order by which the petitioner was permitted to resume duty. That communication reads :
'As the age of compulsory retirement of Railway Employees is raised from 55 to 58 years from 1-12-62, Sri. H. S. Huilgol who was working as Senior T. C. at KOP on pay Rs. 175 in scale Rs. 150-240 and who was allowed to avail of six months L. P. R. from 10-7-1962 on attaining the age of 55 years is permitted to resume duty subject to other conditions that are applicable and be notified hereafter as he has been found efficient and physically fit vide DMO/UBL certificate No. BCE 71 dated 21-12-1962, and is posted to BCK as Sr. T. C. on pay Rs. 175 in the existing vacancy.'
5. This order made by the Divisional Superintendent was reversed by him on May 24, 1963 by an order by which the petitioner was informed that he should consider himself as having been re-employed.
6. We are asked in this writ petition to quash this second order made by the Divisional Superintendent and it is contended that it was not within the competence of the Divisional Superintendent to reverse his previous order which he made on December 21, 1962 and to deprive the petitioner of his right to continue to remain in service until the age of 58 years, in transgression of the rules made by the President.
7. It is clear from the rules made by the President by which the age of retirement was raised that a railway servant who was on leave preparatory to retirement on December 1, 1962, could continue in service till he attained the age of 58 years, if he was permitted to resume duty after the appointing authority was satisfied that he was efficient and physically fit. It is not disputed that on December 1, 1962 the petitioner was on leave preparatory to retirement, In para-graph 2 of his affidavit the petitioner stated thate was granted six months leave preparatory toretirement with effect from July 10, 1962. Inother counter affidavit produced on behalf ofthe Divisional Superintendent of which thedeponent is the Divisional Personnel Officerof the Southern Railway, it was admitted thatthe petitioner was allowed six months leavepreparatory to retirement from July 10, 1962to January 9, 1963. Even in the order made bythe Divisional Superintendent on December 21,1962, the petitioner was referred to as a personwho was allowed to avail himself of six months leave preparatory to retirement.
8. So, one of the elements to be establish-ed to support the claim for continuance in (sic) vice is thus established. It is equally (sic) can be seen from the order made by the (sic)Superintendent on December 21, 1962, that the other two ingredients are also established. Those ingredients are that the petitioner was permitted to resume duty and that he was permitted to so resume duty after the appointing authority was satisfied that the petitioner was efficient and physically fit.
9. If nothing else could be said about it, it would thus become clear that the petitioner was a person who could continue in service until he attained the age of 58 years as provided by the President's rules.
10. But Mr. Nanjundiah for the Railway Administration contends that the President s rules were applicable only to persons who were still in service, and, not to those who had retired before the rules came into force and that the petitioner belonged to the second category. The argument constructed by him was that the petitioner retired from service on July 10, 1962, when he attained the age of superannuation and that if he was allowed leave for a period of six months thereafter, such leave was granted on the basis of special rules in regard to that matter which had been made by the Railway Administration of the M. and S. M. Railway for the benefit of which the petitioner had opted. It was therefore said that the petitioner who had retired nearly 5 months before the President's rules came into force, could not claim the benefits of the increased age of retirement determined by the President.
11. We do not find it possible to accede to this submission. What is indisputable is that the petitioner was granted leave preparatory to retirement and that the fact that he was allowed leave preparatory to retirement precludes the concept of retirement before the expiry of such leave. The clear import of the word preparatory' is that the leave granted precedes the retirement and that the employee retires only after the expiry of the leave. Although the petitioner may have attained the age of 55 years and so would have retired had not the leave rules for the benefit of which he had opted been applicable in consequence of his being entitled to the benefit of the M. and S. M. Railway Rules which entitled him to leave for a period of six months preparatory to retirement, the stage at which he could be made to retire was shifted to the day on which the leave to which he was entitled expired, when it was granted. The true meaning of the leave rules which were applicable to the petitioner is that when a railway servant becomes entitled to any leave preparatory to retirement and such leave is granted to him, he retires only after the expiry of the leave notwithstanding the fact that he attains the age of 55 years when the period of the leave commenced. Any other interpretation would overlook the plain meaning of the word 'preparatory'.
12. When the petitioner was granted leave after he attained the age of 55 years, he was in effect by the grant of such leave, permitted to absent himself from duty. If he had retired on July 10, 1962 when he was granted leave he did not require any permission to so absent himself, for he would no longer have been inservice and no duty was performable by him in the post from which he retired.
13. That this is the way in which we should read the M. and S. M. Railway Rules is clear from this order by which the petitioner was granted leave. That order reads:--(order stated)
14. It seems to us that the Divisional Superintendent correctly understood the meaning of the relevant rules when he stated in this order that the petitioner would finally retire from the railway service only on and from January 10, 1963 after the period of the leave preparatory to retirement came to an end.
15. In the view that we take, it was not permissible or possible for the Divisional Superintendent to refuse to continue the petitioner in service until he attained the age of 58 years.
16. We therefore set aside the impugned order made by him on May 24, 1963. We are informed that the petitioner's services have since terminated by efflux of time on his attaining the age of 58 years. But since his service was not treated as a continuous service, we should issue a mandamus to the respondent that his service should be treated as continuous and that he should be given all the benefits of such continuous service including salary, leave, pension and the like.
17. The respondent will pay the costs of the politioner. Advocate's fee Rs. 100
18. Petition allowed.