K.L. Roy, J.
1. The petitioner, Pran Krishna Chatterjee, was born on December 19, 1909 and entered service under the Bengal Nagpur Railway Limited on April 7, 1930 as Clerk Grade II and was confirmed in that post on April 7, 1931. In October 1944, the said Bengal Nagpur Railway was taken over by the State, and at present is, designated as the South Eastern Railway. On April 5, 1956 the petitioner was promoted to the post of a Clerk Grade I in the said Railway Administration. The petitioner passed the Appendix IIA and IIIA Examinations held in December 1957 and on August 6, 1959 was promoted to the post of a Junior Inspector of Station Accounts (hereinafter referred to as T. I. A.). He was provisionally confirmed as a Senior T. I. A. in April 1965 and finally confirmed in that post on August 29, 1966.
2. By a notification in the South Eastern Railway Gazette No. 3 dated the 1st February 1967, a list of the employees of the said Railway due to retire during the calendar year 1967 was published and in serial No. 29 of that list the petitioner was shown as due to retire on the 19th December, 1967. Thereafter the petitioner made various representations to the Railway Board against the said notification contending that as he was a ministerial servant who had entered service before the 31st March, 1938, he was entitled to be retained in service till the day he attained the age of 60 years, that is, till the 19th December, 1969, The petitioner was finally informed by the Deputy Chief Accounts Officer of the said Railway by a memorandum dated the 9th November, 1967, that the petitioner's representations have been rejected as the Railway Board by its letter dated the 22nd September, 1969, has confirmed that the benefit of the amended Rule 2046 (2) (b) R-II is not admissible to the T, I. As. who do not come under the category of staff declared as ministerial for the purpose of the said Rule. The relevant extract from the aforesaid letter of the Railway Board was also annexed to the said letter. By a notification dated the 5th Dcccmber 1967, described as 'Staff Office Order', the said Railway Administration declared that the petitioner would finally retire from Railway service with effect from the 19th December, 1967, on attaining the age of superannuation.
3. This Rule was obtained on the 13th December, 1967, requiring the respondents - the Union of India, the Railway Board and various officials of the South Eastern Railway - to show cause why the order or the notice compulsorily retiring the petitioner on and from the 19th December, 1967, should not be cancelled and/or recalled and for ancilliary reliefs. Along with the Rule an interim injunction was obtained which was vacated on the 2nd May, 1969.
4. In the affidavit-in-opposition filed on behalf of the respondents reference has been made to Rule 136 of the Indian Railway Establishment Code Vol. 1 (hereinafter referred to as the Code) for the definition of a ministerial service. It also refers to the letter of the Railway Board dated the 1st August, 1951, defining the categories of staff to be treated as ministerial for the purpose of Rule 2046 R-II showing that the T. I. As. are not included in any of the said categories. It also points out that the caption 'Ministerial Staff (Accounts Department)' in paragraph 48 of Chapter I Section B (III) of the Indian Railway Establishment Manual (hereinafter referred to as the Manual) published in 1960 was subsequently corrected by the Board's letter dated the 14th May, 1962, to read, 'Ministerial and Non-Ministerial Staff (Accounts Department).' The affidavit further refers to various directions given by the Board and particularly to that dated the 22nd September, 1967, to the effect, that T. I. As. Inspectors of Stores Accounts and Stock Verifiers in the Accounts Department do not come under the category of Staff declared as Ministerial for the purpose of Rule 2046 (b) R-II. It is pointed out that the Subordinate Accounts Department of the Railway consists of both indoor and outdoor staff. The indoor staff is divided into two main classes viz., Accountants and Clerks, while the outdoor staff consists of the T. I. As., the Inspectors of Stores Accounts, the Stock Verifiers. It is submitted that the petitioner is not entitled to the benefit of Rule 2046 (b) R-II as he did not belong to the category of Ministerial Staff at the material time when he attained the age of 58 years.
5. Prior to its substitution as hereinafter referred to Rule 2046 (2) (b) (F. R. 56) of the Code provided, inter alia, that a Ministerial Servant who had entered Government Service on or after the 1st April, 1938 but did not hold a lien or a suspended lien on a permanent post on that day shall ordinarily be required to retire at the aee of! 55 years. In exercise of the powers conferred by the proviso to Article 309 of the Constitution the President of India was pleased to direct that Rule 2046 (F. R. 56) of the Code be substituted by a new Rule, the material provisions of which are as follows:
'2046 (F. R. 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
x x x x x shall be retained in service till the day haattains 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 Government.X X X X X'
6. In Clause (17 of Rule 2003 (F. R. 9) of the Code a Ministerial Servant is defined to mean a Railway servant of a Subordinate Service whose duties are entirely clerical and any other class of servants specially defined as such by special or General Order of a competent authority. In respect of this definition the President has decided that those members of Class II services whose duties are predominantly clerical shall be classed as Ministerial Servants for the purpose of Clause (17) of Rule 2003 (F. R. 9), See Appendix XXX at page 160 of the Coda (3rd reprint) 1958. The other provisions to be noticed is the aforesaid paragraph 48 o the Manual which is as follows:
IX Ministerial and Non-Ministerial Staff (Accounts Department)
'48. The classes included in this group and the normal channel of their promotion are as under:-- Clerk Grade II (Rs. 60-180)|Clerk Grade I (Rs. 80-220)____________________________|_____________________________| | Sub-Head (Rs. 160-250) Stock-Verifier (Rs. 160-250)| |Senior Sub-Head (Rs.200-800) Stock-Verifier (Rs. 200-800) | | Junior Accountant Junior Inspector of(Rs. 200-350) Station Accounts/| Stores Account (Rs. 200-350)| |Senior Accountant (Rs.850-500) Sunior Inspector ofStation Accounts/Stores Account (Rs. 200-350)' * * * * * * *
7. The controversy in this application is whether the T. I. As. are Ministerial servants within the meaning of Rule 2046 (2) (b) R-II revised as aforesaid. Mr. Chatterjee for the petitioner submits that under paragraph 48 of the Manual a grade-I Clerk who has passed the prescribed departmental examinations has the option to choose the line for promotion either to the rank of Accountants or Inspectors of Station Accounts or Inspectors of Stores Accounts, Both the Accountants and the Inspector of Station Accounts perform the same functions, namely, the checking and auditing of accounts, the only difference being that the departmental Accountants do their work in office while the T. I. As. have to go to the different stations to do the same job. If, therefore, the Accountants or the Clerks in the Accounts Department do clerical work and are Ministerial Servants it could not be said that the T. I. As. are not Ministerial Servants. The main contention of the respondents is that under Rule 103 of the Code the Subordinate Accounts Section of the Railway consists of both indoor and outdoor staff. The indoor or office staff is again divided into Accountants and Clerks while the outdoor staff comprises T. I. As., Inspectors of Stores Accounts and Store Verifiers. The Board had reason to consider the question of classifying the Railway Servants as Ministerial Staff for the purpose o the said Rule 2046 (2) (b) R-II and published a list of categories of Staff which may be declared as Ministerial for the above purpose, This list circulated by the Board's letter dated 1st August, 1951, includes Senior/Junior Divisional Accountants, Sub-Heads and Clerks (Class I and II) but does not include the T. I. As., or the Inspector of Stores Accounts or Stock Verifiers. Though this list has been subsequently added to from time to time, the T. I. As. have never been included in the said list. It is pointed out that under Clause (15) of the aforesaid Rule 2003 of the Code, the competent authority in relation to the exercise of any power under these Rule means the President or any authority to which such power is delegated in Appendix XXXII of the Code. In Item No. 1 of the said Appendix XXXII, full power to declare a railway servant to be a Ministerial or Non-ministerial servant is delegated to the Railway Board. It would, therefore, follow that if the Railway Board has made a declaration excluding the T. I. As. from the list of the Ministerial Servants, that would be conclusive of the matter. There is no dispute that the Board issued such a list by its circular dated the 1st August, 1951 as a copy of the same as circulated on the 13th March, 1959 has been annexed to the affidavit-in-reply filed by the petitioner. The further contention that by a further circular dated the 20th February, 1959, the Board has declared Telephone Operators to be Ministerial Servants and as such the distinction sought to be made between the indoor and outdoor staff is not tenable, is also not relevant
8. An argument was advanced by Mr. Chatterjee that under the new Rule 2046 the crucial date was the 31st March, 1938 and if on that date a railway servant held a lien or suspended lien on a permanent Ministerial Post, he was entitled to the benefit of the said Rule. In my opinion this argument has no substance. The two tests to be satisfied are that the servant held a lien on a permanent post on the 31st March 1938 or was a Ministerial servant on the day he attained the age of 58 years. As the petitioner could not be said to be a Ministerial servant on the day he completed his 58th year, he was not entitled to the benefit of Rule 2046 (2) (b) R-II.
9. This Rule is, accordingly, discharged. There will be no order as to costs.