P.N. Shinghal, J.
1. The petitioner joined the service of the former Bikaner State Railway on February 1, 1929, as clerk class II, and he was confirmed in that capacity on May 1, 1929. While he was serving on the ministerial staff of that railway, the Union of India took over the administration of the Bikaner State Railway and the petitioner was given the option to continue to serve in his scale of pay and conditions of service as in the ex-Bikaner State Railway, or to elect for the Central Pay Commission Scale of pay, hereinafter referred to as 'the C.P.C. Scale.'. He was asked to exercise his option in form Annexure 'A', on the terms and conditions mentioned in Annexure 'B'. The petitioner has stated that it was not stated in those annexures that the date of option for the C.P.C. Scale would be taken to be the date of his appointment in the service of the Union of India. The date of the birth of the petitioner was January 10, 1909 and, according to him, he was to retire on reaching the 60 years age of superannuation on January 9, 1969. He was however informed by order Ex. 1 dated January 3, 1967, of the Divisional Accounts Officer, Bikaner, that he would be retired with effect from January 9, 1967 (afternoon) on attaining 'the age of superannuation viz. 58 years'. The petitioner preferred an appeal against that order on January 7, 1967. It was treated as a representation and was rejected by the Financial Advisor and Chief Accounts Officer of the Northern Railway on the ground that as the petitioner had elected the C.P.C. Scale of pay, he was to be considered to have 'elected government service on 1-4-60, i.e., after 31-3 68, for the purpose of Rule 2046 (F R. 56) E. 11' in terms of the relevant orders of the Railway Board. That decision of the Financial Adviser and the Divisional Accounts Officer was conveyed to the petitioner by the Divisional Accounts Officer in his memorandum Ex. 3, dated February 27, 1967. The petitioner preferred an appeal to the Minister, but he was again informed in the Financial Advisor and Chief Accounts Officer's letter Ex. 5 dated May 14, 1968 that he was to be considered as having entered government service with effect from April 1, 1950 and as such the provisions of Rule 2046(2)(a) E-II were not applicable in his case. He then filed the present petition to challenge his retirement by order Ex. 1 on a number of grounds, the main ground being that as he was entitled to serve up to the age of 60 years according to the rules of the ex-Bikaner State Railway, it was not permissible for the respondents to alter that condition of his service to his prejudice and that nothing was stated in the terms and conditions of the option under which he opted for the C.P.C. Scale which could give arise to the contention that the date of his appointment in government service would be taken to be the date of the option and not the actual date of his appointment in the Ex. Bikaner Railway. The petitioner also stated that the Divisional Accounts Officer had no jurisdiction to retire him, that he had been retired by a mis-interpretation of the rule and that he had been discriminated against.
2. The respondent filed a reply in which they admitted the fact that the petitioner joined service as a clerk in the ex-Bikaner Railway on February 1, 1929 and was confirmed on that post on May 1, 1929. They stated that as a result of the federal financial integration of the ex-Bikaner State Railway with effect from April 1, 1950, the C.P.C. Scale of pay was made applicable from that date and the staff was given the option to elect either the scale or to continue in their existing scale. It was further stated that the petitioner elected to come on the C.P.C. Scale for pay with effect from April 1, 1950, and that his contention that the date of option was taken as the date of appointment is not correct as his service before April 1, 1950 was to be treated as continuous with the service after that date as prescribed in the option form It was specifically stated in his connection that the petitioners service was therefore 'treated as continuous from 1-2-29 for all purposes'. The respondent admitted that the date of the birth of the petitioner was January 10, 1909 according to the service record, but took the plea that, after he exercised an option to avail of the C.P.C. Scale of Pay, he was deemed to have come under the rules of the Indian Railways applicable to all other employees so that he ceased to be governed by the rules of the ex-Bikaner State Railway where an employee was to retire at the age of 60 years. It was thus the case of the respondents that the petitioner was governed by Rule 2046 E. II as he had elected for the C.P.C. Scale of pay, but that he was brought under the rule 'as having entered government service from 1-4-50' and that his case fell within the purview of 'item (i) 'of Rule 2046-E-11' so that he was to retire on attaining the age of 58/60 years. The respondents stated further that as the retirement age was raised to 58 years by an order dated December 6, 1962, the petitioner was correctly retired on attaining that age as he was taken to have entered government service for the purpose of Rule 2046-E. 11 on April 1, 1950. It was pointed out that while relaxation was allowed by the Railway Board by substituting a new rule for the old Rule 2046-E. II on January 11, 1967 as per annexure (sic), the petitioner was not entitled to its benefit as he had retired two days earlier. It was further contended that there was no force in the contention of the petitioner that he was discriminated against in any manner. The respondents denied the contention that the Divisional Accounts Officer was not competent to issue the impugned order (Ex. 1). In this way they traversed the claims of the petitioner altogether.
3. A perusal of the impugned order (Ex. I) dated January 3, 1967 shows that it merely informed the petitioner that he would finally retire from service on attaining the 'age of superannuation viz. 58 years' with effect from January 9, 1967. It was not stated in that order how that age of superannuation was calculated or determined. As has been stated, the respondents have taken the plea that the petitioner's case fell under 'item (i) of Rule 2046-E.II' but, as that rule relates to railway servants other than ministerial servants their plea is quite incorrect and it has become necessary to examine which part of Rule 2046-E.II has really been made applicable in the case of the petitioner.
4. I his does not, however, present any difficulty for, when the petitioner represented against the impugned order of retirement, the Financial Advisor and Chief Accounts Officer took the view in Ex. 3 that as he had elected the C.P.C. Scale of Pay 'he is to be considered to have elected Government service on 1-4-60 i.e. after 31-3-58 for the purpose of Rule 2046 (F.B. 56) E. II' in terms of the two letters of the Railway Board referred to by him. On the petitioner's further representation, the Financial Advisor made the position more clear in his memorandum Ex. 5 dated May 14, 1968 as follows:
You had opted for C.P.C. Scales of pay from 1-4-50 and in terms of Railway Board's letter Ex. E(6) 50 RTI dated 24-9-62, the ex-State Railway Staff who had opted for C.P.C. Scales, where to be considered to have entered government service w. e. f. 1-4-50. As such provisions of Rule 2046 (2)(a) -E II could not be made applicable in your case, as that rule applied only in case of ministerial servants who had entered Government service before 1-4-38. The benefit of ex-State Railway service for the purpose of Government service defined in Rule 2046 (F.B. 56) E-II as substituted vide advance correction slip No. 223-R II, was, however, allowed by the Railway Board in their letter No. PC-62/RT-I dated 11-1-67. The benefit envisaged in Railway Board's letter dt. 11-1-67 could also not be made applicable to you as you had already retired from service on 9-1-67 A.M. i.e. prior to the date of issue of Board's letter.
It is therefore beyond controversy that as the petitioner had opted for the C.P.C. Scale of pay with effect from April 1, 1950, the respondents took the view that he was to be considered as having entered government service with effect from that date, and it was for that reason that he was denied the benefit of Rule 2048 (2)(a) E.II. In other words, his case was dealt with according to Rule 2046 (2)(b)-E. II. The same line of reasoning has been adopted in the other portions of the reply of the respondents, for it has been stated in paragraph 3, at three place' that his date of entry in government service has been taken as April 1, 1950 for purposes of Rule 2046-E. II
5. Now Sub-rule (1) of Rule 2046-E.II has no application in the present case as it deals with the date of compulsory retirement of a railway servant other than a ministerial servant. Sub-rules (3) and (4) of Rule 2046-E.II are also not relevant for they deal with higher officers and provide for the retirement of a servant under suspension. The residuary Sub-rule (2). which is relevant for purpose of this case, read as follows at the time of the petitioner's retirement:
(2)(a) A ministerial servant, who is not governed by Sub-clause (b), may be required to retire at the age of 56 years, but should ordinarily be retained in service, if he continues efficient upto the age of 60 years He must not be retained after that age except in very special circumstances, which must be recorded in writing, & 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 58 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 & he must not be retained after the age 60 years except in very special circumstances.
There was thus a vital difference between cLauses (a) and (b) of Sub-rule (2), because, while Clause (a) required that a ministerial servant, who was not governed by Sub-clause (b) should ordinarily be retained in service if he continued to be efficient up to the age of 60 years, Clause (b) provided that he should ordinarily be required to retire at the age of 58 years. As Clause (b) was applicable only in the case of a ministerial servant who bad entered service on or after April 1, 1938, or who being in government service on March 31, 1938, did not hold a lien or a suspended lien on a permanent post on that date, it would follow that if the petitioner had entered service before April 1, 1938, or held a lien on a permanent post on that date, it would follow that if the petitioner had entered service before April 1, 1938 or held a lien on a permanent post on March 31, 1938, his case would not fall within the purview of Clause (b) of Sub-rule (2) but will be covered by Clause (a) thereof. As the respondents have taken the plea that the petitioner entered the government service on April 1, 1950 as a result of the integration of the services of the employees of the ex-Bikaner State Railway, they have dealt with his case under Clause (b) of Sub-rule (2) and the question is whether they have acted rightly in doing so?
6. It has to be remembered in this connection that it has been admitted by the respondents that the petitioner entered the service of the ex-Bikaner State Railway on February 1, 1929, as a ministerial servant, and continued to serve in that capacity until he was brought over to the service of the Union of India, and it is not the case of the respondents that the petitioner was compelled to act for the C.P.C. Scale of pay, for they have stated that he was given an option to elect either the C.P.C. Scale of pay or to continue in his existing scale of pay. The form of option is on record as Annexure 'A', and the terms and conditions of the option have been stated in Annexure 'B'. Both these are the documents of the respondents themselves. A perusal of Annexure 'B' shows that it was inter alia, the specific term and condition of the option that the staff opting for the C.P.C. Scale of pay would be governed by the 'Indian (Government)Railway's rules and conditions of service in all matters', and that 'service before 1-4-50 will be treated as continuous with service after that date'. The use of the words 'continuous with service after date', is significant, because, it had the effect of informing the employees of the ex-Bikaner State Railway that even if they opted for the C.P.C. Scale of Pay their Service before April 1, 1950 would be treated as continuous with their service with the Union of India It follows therefore that if service with the Union of India was 'government service' for purposes of the rules of the new Railway (Indian Railway Establishment Code Vol. II), the employees were informed that their service before that date would be treated to b(sic) of the same nature, or, in other words, it would also be reckoned as 'government service'. If is significant that this statement of the terms and conditions of the option was categorical, and it was not hedged or qualified by anything which could be interpreted to seem that the decision for treating the service as continuous was restricted to the conclusion of the pensionary benefits it the employees concerned or for any other limited purpose. This will in fact, become an irresistible conclusion if a reference is made to paragraph I of the reply of the respondents where, it will be recalled, they have stated that the petitioner's service, after the exercise of an option by him for the C.P.C. Scale of pay, was 'treated as continuous from 1-2-29 for all purpose'. In face of the assurance which was thus given to the petitioner in terms of Annexure 'B' it was not open for the respondents to turn round and take the unilateral decision that he would be treated as having entered government service with effect from April 1 1950. It has to be appreciated that it is the admitted case of the parties that the petitioner was entitled to exercise the option of continuing to serve in the ex-Bikaner Scale of pay, and that he would then have continued to be governed by the conditions of this service in that Railway, including that relating to the age of his retirement which was 60 years. In other words, having once given an annexure in terms of Annexure 'B' for treating the petitioner' earlier service as continuous with his service after April 1, 1950, it was not permissible for the respondents to disown the earlier commitment & to take him to be a fresh entrant to government service as from April (sic), 1950.
7. Now a cross reference to Sub-rule (2) of Rule 2046-E. II will show that as the petitioner could not, for the reasons mentioned above, be said to be a ministerial servant who had entered government service as or after April 1, 1938, his case did not fall to be governed by Clause (b) of that sub-rule. It therefore squarely fell within the purview of Clause (a) of Sub-rule (2) according to which he, being a ministerial servant, was ordinarily to be retained in service if he continued to be efficient up to the age of 60 years. The respondents therefore committed an error of law in passing the impugned order (Ex. 1) for the petitioner's retirement at the age of 58 years under the mistaken impression that his case fell within the purview of Clause (b) of Sub-rule (2) of Rule 2046-E II. That order is therefore invalid, and must be set aside.
8. Mr. Bhansali, learned Counsel for the respondents, has argued that the terms and conditions of the option contained in Annexure 'B' were of no consequence because it has been held by their Lordships of the Supreme Court in Roshan Lal Tandon v. Union of India : (1968)ILLJ15SC that employment in the service of the State is a matter of status and not of contract. He has therefore argued that, inspite of the terms and conditions of the option, the petitioner's case fell to be governed by orders No. 18/14/51-Ests. dated July 2, 1951. Ex. O. dated December 10, 1951, Ex. P. dated May 14, 1952 and Annexure 'C' dated September 24, 1952 I do not however think that this argument can be said to be tenable because even if it is presumed, for the sake of argument, that the four orders referred to by Mr. Bhansali had a bearing on the terms of the option, or rendered any of those terms nugatory, it was still necessary for the respondents to give a fresh option to the petitioner so as not to prejudice his conditions of service unilaterally for, as has been stated, he was admittedly entitled to serve upto the age of 60 years in accordance with the terms and conditions of his service in the ex-Bikaner State Railway.
9. Then it has been urged by Mr. Bhansali that the use of the expression 'continuous' in the terms and conditions of the option (Annexure 'B') means only that the service proceeding April 1, 1950 was to count for calculating the pensionary benefits of the employees concerned and that there was nothing in the use of that expression to justify the conclusion that the earlier service would be included as an integral part of the government service thereafter. I have already considered the full significance of the expression 'continuous' used in Annexure 'B', and it will be sufficient to say that the expression 'include' has not been used at all. Moreover, such an argument cannot be advanced on behalf of the respondents when it has specifically been pleaded in their reply that the petitioner's service was treated as a continuous from February 1, 1929 'for all purposes'.
10. Mr. Bhansali has argued further that even though the expression 'government service' has not been defined in the Indian Railway Establishment Code, Vol. II, the expression 'government' has been defined in Section 3(29) of the General Clauses Act to include both the Central Government and any State Government so that only service under the Central Government or a State Government could be said to be 'government service' for purposes of Rule 2046-E II. This argument is not tenable for the reason that, even on the basis of the argument of the learned Counsel, the definition of the expression 'government' is an inclusive definition, and there was nothing to prevent the respondents from taking a decision that they would treat the ex-State Railway service as 'government service'. In fact they have done so from January 11, 1967, and nothing would therefore turn on the use of the expression 'government service' in Rule 2046-E. II in all the facts & circumstances to which reference has already been made above.
11. Lastly, it has been argued by Mr. Bhansali that even under Rule 2046-E. II the petitioner had no right to continue to be in service up to the age of 60 years because the authorities concerned could retire him at the age of 58 years even in terms of that rule. The learned Counsel has made a reference to Kailash Chandra v. Union of India AIR 1961 SC 1340 to support his argument. It will be enough to say, however, that this argument is really available to the learned Counsel when it is the case of the respondents themselves that they did not consider the petitioner's case under Rule 2046 (2)(a) E. II. On the other hand, they remained under the mistaken impression that he was a post-April 1, 1939 employee and that his tenure of service was governed by Rule 2046 (2)(b) instead. So when such a basic error of law has been committed in examining & disposing of the petitioner's case, he is entitled to relief by way of rectification of that error.
12. In the result, the impugned order (Ex. 1) dated January 3, 1967 is set aside and the respondents are directed to decide the petitioner's case afresh according to Rule 2046 (2)(a) E.II and to pass a proper order within a period of six months, with due regard to the fact that he has retired since. The petitioner will be entitled to his costs from the respondents.