1. R. V. Sadasiva Murthy respondent in this appeal was a 'Superior Service' employee of the Mysore State Railways. After the merger of the State of Mysore with the Indian Union the respondent became an employee of the Indian Railway Administration, and was admitted as 'a ministerial servant' within the meaning of that expression in Rule 2046 of the Indian Railway Fundamental Rules. In normal course the respondent could have attained the age of superannantion in June 1969, but the Indian Railway Administration served upon him a notice on January 5, 1969 compulsorily retiring him from service. The respondent then moved a petition in the High Court of Mysore for an order declaring that the Railway Administration was to continue him in service till he attained the age of 60 years and to give him benefit of Rule 2046 as amended on January 11, 1967 The petition was resisted by the Railway Administration. The High Court upheld the contention of the respondent and quashed the order of compulsory retirement and seized directions requiring the Railway Administration to continue the respondent in service until he was made to retire by a process permissible under the law. Against that order, this appeal is preferred with special leave.
2. The rules which govern the service conditions of the respondent when he was employed by the Mysore State Railway may first be set out. Rule 305 provided--
'(a) An officer in superior service, who has attained the age of fifty five years, may be required to retire, unless Government considers him efficient, and permits him to remain in the service. But as the premature retirement of an efficient officer imposes a needless charge on the State, this rule should be worked with discretion. And in cases in which the rule is enforced, a statement of the reasons for enforcing it shall be placed on record.
Note - x x x (b) x x x'(c) The following ruling should be kept carefully in view is applying the rules regarding compulsory retirement -
'As some misapprehension appears to exist on the subject of the rule regarding the compulsory retirement of officers alter the age of fifty-five years, it is desirable to state that not only do Article 305 and Article 428 of these Regulations read together, not require the compulsory retirement of any efficient officer of whatever age, but that though the Articles authorise the Heads of Departments, at their discretion, to presume that an officer is inefficient at fifty five years of age conditionally, and at sixty years of age absolutely, yet the whole tenor of the rules is that such presumption shall be exercised with careful consideration both for the individual who would suffer by being deprived of his appointment while capable of discharging its duties, and for the finances of the country, which would suffer were officers, still efficient prematurely thrown upon the pension list.'
Article 308(a) provided for the delegation of authority to various officers. By Article 428 it was provided :
'If an officer in superior service, whose age is less than sixty years, is required to retire under Article 305(a), the Head of his office must certify in the column for 'any other remarks', on the third page of the application for his pension, the cause of the applicant's inefficiency, and quote the order of Government or of any officer to whom power under Article 308 (a) (2) may have been delegated sanctioning the applicants retirement as superannuated. If the officer wishes to retire of his own accord under Article 310, the fact should be stated.'
Rule 2046 of the Indian Railways Fundamental Rules as amended on January 11, 1967, reads as follows :
'(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 held the same without interruption until he was confirmed in that post,
shall be retained in service till the date be attains the age of sixty years.
Note:--For the purpose of this clause, the expression 'Government Service' includes service rendered in ex-company and ex-State Railways, and in a former provincial Govt.'
The Note to this rule was modified on December 23, 1967 and reads as follows :
'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 Railway, if the rules of the Company or the Stale had a provision similar to Clause (b) above.'
3. It is common ground that the respondent had entered the service of the Mysore State Railway before March 31/1938 and he held a lien on a permanent post in the Railway Administration By Rule 2046(b) of the Indian Railways Fundamental Rules the respondent could continue to remain in service till he attained the age of sixty years. It was urged on behalf of the Union of India that this privilege was exercisable in virtue of the amendment made on December 23, 1957 only in respect of officers who were in 'Govt service' which expression meant 'service-rendered in a former provincial Govt. and in ex-Company and ex-State Railways, if the rules of the Company or the state had a provision similar to Clause (b).' It was urged that the normal rule of superannuation under the Mysore Rules was the attainment by an employee of the age of 55 years and it was open to the State Government authorities, if they were so minded, to continue an employee till he attained the age of sixty years The High Court rejected that contention In the view of the High Court under the Mysore Service Regulations an officer of the superior service could be directed to retire before he at a need the age of sixty years only if 'the Head of office' certified under Article 428 that the person to be retired had become insufficient and he stated the cause of such inefficiency. According to the High Court the rule meant that normally the age of superannuation was sixty years, and that retirement at an earlier age was compulsory retirement' which could be ordered only if the Head of office formed an opinion that an employee in 'superior service' had become inefficient and that although Article 305(a) did not expressly refer to the age of superannuation as sixty years that article should be read with Article 428, which made it clear that an officer in superior service may be retired before he attained the age of 60 years only on ground of inefficiency.
4. Counsel for the Union contends that the High Court has subordinated the express words of Article 305(a) of the Mysore Rules to what was an enabling provision contained in Article 428. He submitted that by Article 305(a) it was expressly enacted that an officer in superior service who had attained the age of fifty five years may be required to retire, unless the Government considered him efficient and permitted him to remain in the service. We are unable to agree with that colention. After an officer in the 'superior service' attained the age of fifty five years the State Government had the power to compulsorily retire him on the ground of inefficiency. The note to Article 305 (a) and the terms of Article 428 clearly mean that an employer of the 'superior service' may be ordered to retire under Article 305 (a) before he attained the age of sixty years only on the ground of inefficiency. In our judgment, the High Court was clearly right in holding that the age of superannuation under the rules of the Mysore State in respect of the 'Superior Service officers' was sixty years. Under the male-fide Rule 2046 (2) (b) of the Indian Railways Fundamental. Rules all, ministerial railway servants including servant of ex-State Railways were entitled to continue in service till the age of sixty and even after the amendment in the note made on Dec. 23, 1967 the employees of the former Mysore State Railway may be superannuated at the age of sixty, for the rules of the State Railway had a provision similar to Clause (b). The respondent was a ministerial railway servant who had entered 'Government Service' i. e. service of the Mysore State Railway before March 31, 1938 and had a lien on a permanent post on that date.
5. It is unnecessary in the circumstances to consider whether the amendment made in the note on December 23, 1957, was discriminatory and on that ground void as infringing Article 14 of the Constitution.
Civil Appeal No. 477 0/1969
6. The facts which give rise to this appeal are the same as in the principal appeal and the contentions urged are not different. The decision in the principal appeal will govern this appeal.
Civil Appeal No. 478 of 1968
7. The facts which give rise to this appeal are the same as in the principal appeal with two variations to be presently noticed. The respondent was appointed originally in the Education Department on July 1, 1930 and he was transferred on February 3, 1938 to the Department of Railways owned by the Mysore State Government and thereafter he was continuously employed in the Railway Service. But on that account the respondent is not entitled to the benefit of Rule 2046 (b) of the Indian Railways Fundamental Rules.
8. The respondent though recruited on January 27, 1938 to the Railway Service in the accounts department, was confirmed with effect from June 1, 1939. But on that account also he is not disentitled to the benefit of Rule 2046(2) (b). The respondent was a ministerial servant who had entered the service on or before March 31, 1938. On the plain words of the rule, the respondent was a ministerial railway servant who had entered 'Government service' before March 31, 1938. It is true that the respondent was not on March 31, 1938 a permanent employee of the Mysore Railways but there is no reason to think that an employee of an Indian State prior to March 31, 1938, and holding a lien on a permanent post or a permanent post in a provisional substantive capacity in a department other than Railways is not entitled to the protection of Rule 2046(b) of the Indian Railways Fundamental Rules.
All the appeals fail and are dismissed with costs.