Citation Codes

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Case Number

Writ Petn. No. 439 of 1968

Attorney(S)

Akhilesh Sahai
A. B. Niga

Judges

G.S Lal, J.

Acts

Rule 2046(2) contained in 1966 edition of the Indian Railway Establishment Code
Rule 2046, sub-rule (2), of the Indian Railway Establishment Code,
sub-rule (2) of Rule 2046.
Clause (b) in sub-rule (2)
sub-rule (2)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, V.P. Misra, an ex-war personnel, was absorbed into the Watch and Ward department of Eastern Railway on 23-7-1947 on a clerk post and confirmed from 1-4-1956. His date of birth is 12 July 1910. He received a communication dated 1-3-1967 (annexure 5 to the writ petition) stating that, in terms of a Chief Security Officer's letter of 9-12-1967, he would retire effective 11-7-1968 (on attaining age 58). The communication was purportedly from the Assistant Security Officer, Lucknow, but signed by the Head Clerk for that officer.

The petitioner submitted a representation dated 4-3-1967 and multiple reminders (first reminder dated 15-12-1967). He received a reply on 16-12-1967 stating the matter was under consideration and that final decision would be intimated. No final decision was communicated before 11-7-1968. The petitioner filed the present writ petition on 21-5-1968 seeking relief; interim suspension of the retirement order was not granted and he remained retired from 12-7-1968.

Legal Issues Presented

What was the correct age of compulsory retirement applicable to the petitioner — 58 years or 60 years — under Rule 2046(2) of the Indian Railway Establishment Code as in force at the relevant time?
Whether the retirement order was validly passed by a competent authority and whether it was mala fide, discriminatory or violative of Articles 14 and 16 of the Constitution?
Whether the failure of the railway authorities to decide the petitioner's representation before the retirement date violated principles of natural justice and rendered the action illegal?

Arguments of the Parties

Petitioner's Arguments

The petitioner contended his compulsory retirement age was 60, not 58, and thus the retirement order before age 60 was invalid unless passed by a competent authority (which he said was not the Chief Security Officer, Assistant Security Officer, nor the Head Clerk signing for that officer).
The petitioner alleged mala fides on the part of opposite party No.4 (Assistant Security Officer), claiming the order was retaliatory because certain representations he made against that officer had been allowed by higher authorities.
He asserted discrimination and violation of Articles 14 and 16 because others in similar positions were allowed to continue until age 60.
He argued that the failure to decide his representation before the retirement date violated principles of natural justice and rendered the retirement order mala fide and illegal.

Opposite Parties' Arguments (as represented)

Opposite party No.4 (Jasjit Singh Bal) denied mala fides and asserted that the age of retirement applicable to the petitioner was 58 years.
It was asserted that the retirement order was issued by the Chief Security Officer and that the Head Clerk only signed the communication in the routine course.
The opposite parties denied any discrimination, and in a supplementary counter-affidavit they showed that a named employee whom the petitioner relied on was in fact covered by the higher-age clause (Clause (b)).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Union of India v. R.V. Sada Siva Murthy (Supreme Court, reported in 1969 volume of "The Unreported Judgment (SC) 100", page 490)	Used as the source reproducing the amended form of sub-rule (2) of Rule 2046 (showing major substitution on 11-1-1967 and a further minor change on 23-12-1967).	The court reproduced the sub-rule as quoted in that Supreme Court judgment on the presumption that it reflected the rule in amended form as in force from December 1967 to 15-7-1969. The reproduced sub-rule was applied to determine the classification of ministerial railway servants and the correct retirement age applicable to the petitioner.

Court's Reasoning and Analysis

The court proceeded in two interrelated strands: (1) procedural critique of the railway's handling of the petitioner's representation, and (2) analysis of the substantive legality of the retirement order under the relevant rule.

Procedurally, the court found it objectionable ("obnoxious") that the railway authorities failed to decide the petitioner's representation before his retirement date, despite having more than a year to do so. The court emphasised that the petitioner's case proceeded by default because the authorities did not act in time.

Substantively, the central question was which version of Rule 2046(2) governed the petitioner's retirement. The court discovered confusion about which edition of the Indian Railway Establishment Code was in force and noted that counsel for both sides lacked authoritative up-to-date copies. The petitioner relied on the 1966 edition (which was current only to July 1962), while the respondent's counsel acknowledged being guided by still older editions; the court therefore used a Supreme Court judgment (Union of India v. R.V. Sada Siva Murthy) as the source for the sub-rule as it stood after amendments on 11-1-1967 and 23-12-1967.

The reproduced sub-rule divided ministerial railway servants into two categories: those not covered by Clause (b) retire at 58, while those covered by Clause (b) are retained until 60. The petitioner argued that this classification was arbitrary and discriminatory under Article 14, and that he had been discriminated against in practice.

The court examined the factual material to test whether the petitioner fell within Clause (b). The court noted absence of evidence that the petitioner entered Government service on or before 31-3-1938 or that he held a lien or suspended lien on a permanent post on that date. The record showed he entered Watch and Ward on 23-7-1947 and had war service between 11-11-1942 and 5-12-1945, but nothing to establish continuous Government service prior to 31-3-1938.

The court then addressed the constitutionality of the classification in sub-rule (2). It reiterated the settled principle that Article 14 permits reasonable classification but requires the basis of classification to be relevant to the purpose. The court invited the railway to justify the choice of 31-3-1938 as the cut-off for differential retirement ages but found no persuasive explanation from the respondents. Even a suggested historical possibility (that retirement age had changed around those dates) was not substantiated by the respondents.

Because the respondents failed to justify the discriminatory classification inherent in sub-rule (2) of Rule 2046, the court concluded that the sub-rule had to be struck down as discriminatory. On that ground, the court held the retirement order (annexures 5 and 10) invalid as applied to the petitioner.

Holding and Implications

Holding: The writ petition is allowed. The court quashed the orders of retirement (Annexures 5 and 10) and treated the petitioner's date of superannuation as 11-7-1970 rather than 11-7-1968. The petition was allowed with costs.

Implications:

Direct effect on the parties: The specific retirement orders dated against the petitioner were quashed and the petitioner’s date of superannuation was fixed at 11-7-1970 as per the court's order; the petitioner was granted costs.
Broader precedent: The court struck down sub-rule (2) of Rule 2046 as discriminatory in the circumstances of this case because the railway administration failed to justify the classification; the opinion notes the constitutional infirmity under Article 14 arising from unjustified classification. The court did not elaborate remedies beyond quashing the orders and fixing the date of superannuation for the petitioner in this judgment.

This summary is strictly confined to information expressly contained in the provided opinion and does not infer or add facts beyond the text.

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B.P Misra v. The Union Of India Through The General Manager, Northern Railway, New Delhi And Others Opposite Parties.

1. This writ petition relates to a service matter. The petitioner V.P Misra of the Ex-War personnel was absorbed in the Watch and Ward on a post of clerk on 23-7-1947 by the then Superintendent, Watch and Ward, Eastern Railway. He was later confirmed with effect from 1-4-1956. His date of birth is July 12, 1910. He received an order, which is annexure 5 to the writ petition and is dated 1-3-1967, to the effect that in terms of Chief Security Officer letter dated 9-12-1967 he would retire with effect from 11-7-1968, afternoon. In other words, he was to retire on the attainment of the age of 58 years. The said communication purported to be from the Assistant Security Officer, Lucknow, though it was signed by the Head Clerk of the office for the Assistant Security Officer. The petitioner made a representation dated 4-3-1967 and also sent reminders on several subsequent dates, the 1st one being dated 15-12-1967, of which copy is annexure 6 to the writ petition. He got a reply (copy annexure 7 to the writ petition) dated 16-12-1967 “that the matter was under waiting and the final decision when arrived at will be intimated to him promptly.”

2. He never received any communication about the final decision till the date 11-7-1968 arrived or even thereafter. On 21-5-1968, in view of the fact that the date of retirement was approaching he filed the present writ petition. He asked for an interim relief for the suspension of the order of his retirement but the same was not given to him and so he has been under retirement from 12-7-1968.

3. The contention of the petitioner is that his age of compulsory retirement was 60 and not 58 and the order for his retirement before attaining the age of 60 could be passed only by a competent authority which was neither the Chief Security Officer nor the Assistant Security Officer or the Head Clerk who signed for the former. The order is further challenged as mala fide, being secured by opposite party No. 4 to the writ petition, namely, the Assistant Security Officer, who became displeased with the petitioner as certain representations made by him against the orders of opposite party No. 4 were allowed by higher authorities. The order is questioned as discriminatory and void, being violative of Articles 14 and 16 of the Constitution as others in the same position have been allowed to continue in service upto the age of 60 years. The failure to decide the representation is said to have caused violation of principles of natural justice and the order of retirement to be mala fide and illegal.

4. A counter affidavit has been filed by one Jasjit Singh Bal describing himself as opposite party No. 4. He has denied the allegations of mala fides against himself and has asserted that the age of retirement for the petitioner was 58 and the order of retirement was issued by the Chief Security Officer and only the communication to the petitioner was signed by the Head Clerk in the routine way. The case of discrimination was denied. The petitioner filed a rejoinder affidavit reiterating his allegations denied in the counter affidavit and also referring to a particular name as a person who was retired at the age of 60 years.

5. At the outset it may be stated that the action of the opposite parties, whosoever out of them were concerned with the decision of the representation made by the petitioner, in not deciding the representation before the retirement date of the petitioner arrived, is obnoxious as the opposite parties got more than a year to consider a simple representation. His case went by default and he had to fall back upon whatever legal grounds he could advance in his favour to secure a reversal of the order.

6. Coming to the merits, the first point which arises for consideration is whether the age of compulsory retirement in the case of the petitioner was 60 or 58 years. The relevant provision is to be found in Rule 2046, sub-rule (2), of the Indian Railway Establishment Code, Volume II, but the quest for what is the correct shape of sub-rule (2) has brought out strange and unfortunate revelations. Learned counsel for the petitioner possessed a copy of the 1966 edition of the Indian Railway Establishment Code Volume II and at first addressed the Court on the basis of the rule contained therein. It was found however that the Code published in 1966 contained Rules corrected upto July 1962 only. This necessitated the quest for the rule in force in 1968. Learned counsel (Sri A.B Nigam) appearing for the Railway Administration who was expected to possess an upto date authentic version of the rule however stated on enquiry that he had not even been supplied with the 1966 edition of the Indian Railway Establishment Code and was being guided by the 1950 edition thereof which too however did not contain the correction slips upto date. He disclosed that he had written a number of times for an up-to-date copy of the Code but without any result. He was given time and directed to produce an authentic Up-to-date version of the rule but even though there is located at Lucknow itself the Divisional Office of the Northern Railway and though the opportunity available was plenty to secure a copy of the up-to-date rule even from the General Manager of the Northern Railway or the Railway Board, the learned counsel expressed his utter helplessness by giving out that in spite of his writing for the same he had not been supplied a copy by any of the authorities.

7. The offices of the Railway Administration may or may not be possessing upto date rules but one thing is clear that they prefer to keep their counsel appearing to defend cases on their behalf In the High Court (Lucknow Bench) in the position of Rip Van Winkle and have ignored all his effort to provide himself with a copy of up-to-date rules. Such disregard, of their own interest on the part of the Railway Administration is indeed strange. Learned counsel for the petitioner gave out that there had been subsequent amendments of which he was not in a position to secure authentic copies, but he referred to the Supreme Court decision, Union of India v. R.V Sada Siva Murthy, reported in 1969 Volume of “The Unreported Judgment (SC) 100” from page 490 which showed that there had been a very major change in the rule by substitution on January 11, 1967 and a minor one on December 23, 1967.

8. In this situation I produce the subrule as it was quoted in the aforesaid judgment of the Supreme Court on the presumption that that was the rule in the amended form as in force from December, 1967 upto 15-7-1969, the date of the judgment:—

(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 hold the same without interruption until he was confirmed in that post.

shall be retained in service till the date he attains the age of sixty years.

Note:— 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 State had a provision similar to clause (b) above.”

9. It will not be out of place to reproduce the considerably different Rule 2046(2) contained in 1966 edition of the Indian Railway Establishment Code on the footing of which arguments had been originally addressed before learned counsel for the petitioner was able to bring before the Court through the aforesaid Supreme Court judgment, the form of the rule as it was brought in force with the amendment made on January 11, 1967 with a substitution of the ‘Note’ below the rule on December 23, 1967 to change it slightly:—

“(2) (a) A ministerial servant, who is not governed by sub-clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient up to age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing and with the sanction of the competent authority.

(b) A ministerial servant—

(i) who has entered Government service on or after the 1st Aprils 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 55 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 and he must not be retained after the age of 60 years except in very special circumstances.”

10. The retirement of the petitioner was ordered from 11-7-1968 which was the date much after the date on which sub-rule (2) of Rule 2046 as extracted from the said Supreme Court judgment came into effect and it is with reference to the changed rule that the question of validity of the order of the retirement of the petitioner is to be answered.

11. It will appear that ministerial railway servants have been divided into two categories. Those not covered by Clause (b) of the sub-rule are required to retire at the age of 58 years whereas those covered by Clause (b) are to be retained in service till the attainment of the age of 60 years. Learned counsel for the petitioner has contended that the classification is arbitrary and therefore discriminatory. The petitioner's further contention is that he has been discriminated against as some servants placed in position similar to himself were retained in service even after completing the age of 58 years. The name of one particular employee only however was mentioned but from the supplementary counter affidavit dated 18-2-1970 it has been shown on behalf of the opposite-parties that the said employee's case was covered by clause (b). An attempt has also been made on the petitioner's side to bring his case within Clause (b) by asserting that he entered Government service in the Defence Department before 31-3-1938. The material on the record however fails to make out any such thing. The petitioner himself has not indicated anywhere in his writ petition as to when he joined Government service, nor even if he was in Government service on 31-34938. There is no dispute on the point that he was in service in the Defence Department at some time, Annexure M to the counter affidavit itself shows that and he was taken in the Railway service on account of his war services. Annexure 11 shows that he was granted some benefit by reason of war service rendered from 11-11-1942 to 5-12-1945 during Great War II. But there is nothing to show that he was in service in the Defence Department before 11-11-1942 nor that he continued in service till he was absorbed in Railway service.

12. In this state of evidence and keeping in mind the fact that the employment of the petitioner in the Watch and Ward Department took place only on 23-7-1947 he cannot come under Cl. (b) of sub-para (2) of paragraph 2046 quoted above and his case must be treated as coming under Clause (a). In that case, the retirement of the petitioner at the age of 58 years was compulsory unless he is able to make out the plea of Clause (b) in sub-rule (2) being discriminatory and therefore void because of ministerial servants working in the same conditions having been discriminated against by those entering service before 1-4-1938 being given the benefit of continuing in service upto the age of 60 years while those entering service on or after 1-4-1938 having been permitted to continue in service upto the age of 58 years only.

13. Coming to the said plea of discriminatory nature of sub-rule (2) of Rule 2046 it will be seen that ministerial railway servants have been classified into two categories, (1) those who entered Government service on or after 1-4-1938 and (2) those who entered Government service on or before 31-3-1938 and held on that date a lien or a suspended lien on a permanent post or permanent post in a provisional substantive capacity.

14. The rule of equality under law laid down in Article 14 of the Constitution admits of reasonable discrimination but it is settled law that reasonability of classification or the basis of classification for discrimination is to be relevant to the purpose and cannot be arbitrary If 31-3-1938 is only an arbitrarily selected date for dividing ministerial railway servants into two classes for the purposes of the age of superannuation, then separate retirement ages for the two classes will be hit by Article 14. Learned counsel for the Railway Administration was given repeated opportunities to find out the basis for classifying ministerial Government servants into two classes on the basis of their having entered Government service on or before 31-3-1938 and on or after April 1, 1938, but he could not show the basis on which this classification was made.

15. Even though it was plainly suggested to me that one possibility was that before 1-4-1938 the age of retirement for railway servants was 60 years but was reduced to 55 years from 1-4-1948 and the benefit of retirement at the age 60 years might have been retained for those who were already in permanent service before the new rule of retirement at the age of 55 years was introduced. Even with this clue he could not give any assistance in finding out if the said possibility was an actual fact. It was for the opposite parties to justify the discrimination contained in sub-rule (2) of Rule 2046. They having failed to do so, sub-rule (2) of Rule 2046 must be struck down as discriminatory and the retirement of the petitioner at the age of 58 years as invalid.

16. In the result the writ petition is allowed with costs and the orders of retirement, Annexures 5 and 10 to the writ petition are quashed on the ground that the petitioner's date of superannuation must be treated to be 11-7-1970 and not 11-7-1968.

17. Petition allowed.

B.P Misra v. The Union Of India T...