D.N. Sinha, J.
1. The city of Chundernagore previously belonged to Prance. In or about November, 1947, it was created as a free town with financial and administrative autonomy as the French Government had decided to withdraw from their Indian possessions and territories. In May, 1950 there was a de facto transfer to the Indian Union. Thereafter there was a treaty of cession signed at Paris on 2-2-1951 and on 9-6-1952 there was a de jure transfer to the Indian Union. Finally, by the Chundernagore (Merger) Act of 1954 (Act 36/54) the city of Chundernagore was merged with the State of West Bengal on and from 2-10-1954. After the merger of the free city of Chundernagore into the State of West Bengal, the pre-merger employees of the said free town became Government servants under the State of West Bengal with effect from the date of merger. Previous to this, when the town was being administered by the Indian Union under certain Protocols, it was directed that the employees should be given an option either to be governed by French law or to be governed by the Indian laws. So far as the petitioner is concerned, he never gave up the right to be governed by the French laws under which he was appointed. By a Government notification, namely, No. 40-F dated 5-1-1955 a direction was given that with effect from 2-10-1954, until further orders, employees of the Chundernagore administration should continue to be governed by French Rules except in the case of leave, conduct and discipline, which should be regulated under the West Bengal Services (Discipline and Appeal) Rules. The petitioner entered service under the French Government of Chundernagore while the city was the free city of Chundernagore, having been appointed by the Administrator. He entered service on 1-2-1948 at the age of 47 years 15 days, as a clerk (superior service). Under the French Rules, a Government servant had to put in 30 years of service and thereafter qualify for a pension. They had all to contribute towards the pension and there was no provision in the Rules for an appointment which was non-pensionable. The petitioner entered service at an age which would not qualify him for a pension, and he was appointed with a condition, namely, that his service would be non-pensionable. Coming to the question of superannuation, the only Rule that existed under the French law is as follows:
'Article 7.-- Officers and employees contributory to the local pension fund cannot be maintained in service beyond the age of 55 years in the case of personnel of the police and the prison department and 60 years in the case of other personnel.'
2. On or about 20-10-1955 the Collector of Hooghly served a notice upon the petitioner stating that he would attain the age of superannuation, i.e., 55 years, on 15-12-1955 (afternoon). It was stated that he should accordingly retire on and from the afternoon of 15-12-1955. A notice to that effect was issued on the same day. This application is directed against this order of compulsory superannuation.
3. The way that the case of the petitioner has been formulated is as follows: It is argued that Article 7 is applicable to the petitioner. On the face of it, the Article lays down a pre-condition for its applicability, and professes to apply only to officers and employees who are contributory to the local pension fund. It is admitted that the petitioner never contributed to the local or any pension fund. Indeed, he could not do so, as his post was non-pensionable. Mr. Banerji on behalf of the petitioner argued that under the French law the petitioner is un-doubtedly a Civil employee and the only distinction or classification that is made amongst civil employees is to divide them into two classes, namely, personnel of the police and prison department and all other personnel. According to him, the petitioner came within the latter class, and his case is governed by Article 7 of the Decrete, I am unable to agree. It has been distinctly stated in the affidavit-in-opposition that under the French Rules, there was no provision for a non-pensionable appointment. This is not denied. It is true, that the Administrator of Chundernagore, during his regime, when the city was a free city, had made several appointments of that kind. It is pointed out, however, that it is this kind of irregular appointment that has given rise to the difficulty that has arisen in the instant case. Be that as it may, I am not called upon here to decide as to whether such appointments were against the French Law. I have to decide whether Article 7 applies to the petitioner. Construing it. as I must do, according to its wording and tenor, I cannot see how it does. It specifically states that a superannuation age was being laid down for officers and employees who were contributory to the local pension fund. It does not purport to lay down an age of superannuation for those who did not contribute to the local pension fund. It may be that by such restriction there has remained a gap in the French Law, but that is not for me to fill up. Now that I have decided that Article 7 does not apply to the petitioner, the question is whether it is possible for the petitioner to get any relief in this application. According to the respondents, since Article 7 does not apply, what applies is Rule 76 of the West Bengal Service Rules (Vol I). This point I must confess is not at all clear. It is to be considered as to whether if the French Law applicable at the relevant time did not provide for an age of superannuation, whether the petitioner could at all be superannuated. It will also have to be considered if there cannot be a compulsory superannuation, then what would be the point of time when the petitioner's service would come to an end. and how his service would come to an end or be brought to an end, if necessary. In my opinion, these questions could only be decided in a proper action brought for that purpose. As was pointed out In the case of Shyamlal v. State of Uttar Pradesh, : (1954)IILLJ139SC (A), where there is superannuation in accordance with the terms of service, it is neither a case of dismissal or discharge or reduction In rank, and therefore is not governed by the provisions of Article 311 of the Constitution. If the petitioner was entitled to continue in service, but was wrongly prevented from doing so, he may have a cause of action for wrongful dismissal, but such an action cannot be agitated in this jurisdiction.
4. The result is that so far as this application is concerned, it must fail and be dismissed, and the Rule is discharged. Interim order, if any, is vacated.
5. There will however, be no order as to costs.
6. But this will be entirely without prejudice to any other cause of action that the petitioner may have for any other legal proceeding that he may be advised to bring.
7. Civil Revision No. 554 of 1956.-- The facts and the law involved in this case are the same as in Civil Revision No. 553 of 1956 and for the reasons stated therein this Rule is also discharged. Interim order, if any is vacated.
8. There will be no order as to costs.
9. But this will be entirely without prejudice to any other cause of action that the petitioner may have for any other legal proceedingthat he may be advised to bring.