# ' BOARD v. A. PITCHUMANI

- **Citation:** [1972] 2 S.C.R. 187
- **Court:** Supreme Court of India
- **Decided:** 1971-10-29
- **Case number:** Civil Appeal No. 1768 of 1969
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/board-v-a-pitchumani-5628
- **Pages:** 14

## Headnote

fl
c
[C. A.
RAILWA)' BOARD
v.
A. PITCHUMANI
October 29, 1971
VAIDIALINGAM,
P. JAGANMOHAN REDDY AND
K. K. MATHEW, JJ.]
187
Indian Railway Fundamental Rules, r. 2046 (F.R. 56) cl. (b)-Relirement a)le of ministerial Railway Servants fixed at 60-Note to cl. (b)
.defining "Government Service" to include employees of ex-company-New
Note dated December 23, 1967 redefining "government service" to include
employeer; of ex-company only if the Rules of company had prol'ision
similar to cl. (b)-C/assi(ication under new Note if discriminatory.
Constitution of India, 1950, Art, 14-Discrimination-Railway Fundamental Rules, r. 2046 (F.R. 56) cl. (b )-Classification under the Note to
cl. (I) if discriminatory.
, Rule 2046 (F.R. 56) of the Indian Railway Fundamental Rule> was
&ulistituted, on January 11, 1967, by a new Rule.
Unde'ir cl. (b J of the
new Rule 2046 every ministe-rial railway servant who had entered gavern8
men! service on or beforoi March 31, 1938 and who satisfied the conditions
mentioned in sub-els. (i) and (ii) of cl. (b) had a right to continue in
service till he attained the age of 60 years. The Note to the Rule defined
.the exprestiiOn 'government service' as including service rendered in ex.-
company and ex"'.State Railv1ay, and in a former provincial governn1ent.
On December 23, 1967 a new Note was substituted which stated that the
expression "government service'' included '_'service rendered in a former
provincial government and in ex-company and ex-State Railways. if the
E · rules of the company or the State had a provision similar to cl. (b) abow".
F
G
B
The respondent joined the service of the Madras and Southern Mahratta
Railway company on August 16, 1927. The company was amalgamated
with the Indian Railway Administration in 1947 and on such amalgam•"
tion the respondent became the employee of the Indian Railway Administration
He was a "ministerial servant" within the meaning of that expression in «. 2046. On March 31, 1938, he held a permanent post in
the company.
After the introduction of r. 2046 on January 11, 1967,
the Divisional Accounts Officer passed an order that the respondL nt was
entitled to continue in office till he attained the age of 60 years.
But,
after the new Note to cl. (b) to r. 2046 was substituted on December
23, 1967, another order was passed to the effect that the respondent was
retired from service on April 14, 1968, on attaining the age o'f 58 rears.
The order also stated that this action was being taken in view of the
new Note substituted on December 12, 1967.
The respondent filed a
writ petition in the High Court challenging the legality of the order retiring him from service.
The High Court struck down the order and
gave a declaration that the respondent was entitled to continue in ser,·ice
till he attained the age of 60 years, on the ground that the order was
discriminatory and, therefore, violative of Art. 14 of the Constitution.
Dimissing the appeal to this Court,
. H~LD : The High Court ~as justified in striking down the order
.iJirectmg. the respondent to retire from service.
(I) Rule 2046 as it
stoodih ongmally and on January. 11, 1967 treated the former emplo,·ees
of 1 e ex-company, ex-State Railway and former provincial Government
lSS
SUPREME COURT REPORTS
[1972j 2 S.C.R.
who were amalgamated with the Indian Administration in 1947 on a par
with the other original emplo)''es of the Indian Railway Administration.
In fact the Note to cl. (b) of r. 2046 incorporated in January 11. 1967
only reinforced this position.
Read with the Note, under cl. (b), the
respondent is a ministerial servant who had entered government service
on or before March 31, 1938 and, therefore, by virtue of cl. (b) he wa•
entitled to be retained in service till he attained the age of 60 years. [175
F, 197 CJ
(2) Up to and inclusive of January 11, 1967, no distinction, inter 5e,
apart from that made by els. (a) and (b) between officers of Indian
Railway Administration, from whatever source they may have come, was

## Text

fl
c
[C. A.
RAILWA)' BOARD
v.
A. PITCHUMANI
October 29, 1971
VAIDIALINGAM,
P. JAGANMOHAN REDDY AND
K. K. MATHEW, JJ.]
187
Indian Railway Fundamental Rules, r. 2046 (F.R. 56) cl. (b)-Relirement a)le of ministerial Railway Servants fixed at 60-Note to cl. (b)
.defining "Government Service" to include employees of ex-company-New
Note dated December 23, 1967 redefining "government service" to include
employeer; of ex-company only if the Rules of company had prol'ision
similar to cl. (b)-C/assi(ication under new Note if discriminatory.
Constitution of India, 1950, Art, 14-Discrimination-Railway Fundamental Rules, r. 2046 (F.R. 56) cl. (b )-Classification under the Note to
cl. (I) if discriminatory.
, Rule 2046 (F.R. 56) of the Indian Railway Fundamental Rule> was
&ulistituted, on January 11, 1967, by a new Rule.
Unde'ir cl. (b J of the
new Rule 2046 every ministe-rial railway servant who had entered gavern8
men! service on or beforoi March 31, 1938 and who satisfied the conditions
mentioned in sub-els. (i) and (ii) of cl. (b) had a right to continue in
service till he attained the age of 60 years. The Note to the Rule defined
.the exprestiiOn 'government service' as including service rendered in ex.-
company and ex"'.State Railv1ay, and in a former provincial governn1ent.
On December 23, 1967 a new Note was substituted which stated that the
expression "government service'' included '_'service rendered in a former
provincial government and in ex-company and ex-State Railways. if the
E · rules of the company or the State had a provision similar to cl. (b) abow".
F
G
B
The respondent joined the service of the Madras and Southern Mahratta
Railway company on August 16, 1927. The company was amalgamated
with the Indian Railway Administration in 1947 and on such amalgam•"
tion the respondent became the employee of the Indian Railway Administration
He was a "ministerial servant" within the meaning of that expression in «. 2046. On March 31, 1938, he held a permanent post in
the company.
After the introduction of r. 2046 on January 11, 1967,
the Divisional Accounts Officer passed an order that the respondL nt was
entitled to continue in office till he attained the age of 60 years.
But,
after the new Note to cl. (b) to r. 2046 was substituted on December
23, 1967, another order was passed to the effect that the respondent was
retired from service on April 14, 1968, on attaining the age o'f 58 rears.
The order also stated that this action was being taken in view of the
new Note substituted on December 12, 1967.
The respondent filed a
writ petition in the High Court challenging the legality of the order retiring him from service.
The High Court struck down the order and
gave a declaration that the respondent was entitled to continue in ser,·ice
till he attained the age of 60 years, on the ground that the order was
discriminatory and, therefore, violative of Art. 14 of the Constitution.
Dimissing the appeal to this Court,
. H~LD : The High Court ~as justified in striking down the order
.iJirectmg. the respondent to retire from service.
(I) Rule 2046 as it
stoodih ongmally and on January. 11, 1967 treated the former emplo,·ees
of 1 e ex-company, ex-State Railway and former provincial Government
lSS
SUPREME COURT REPORTS
[1972j 2 S.C.R.
who were amalgamated with the Indian Administration in 1947 on a par
with the other original emplo)''es of the Indian Railway Administration.
In fact the Note to cl. (b) of r. 2046 incorporated in January 11. 1967
only reinforced this position.
Read with the Note, under cl. (b), the
respondent is a ministerial servant who had entered government service
on or before March 31, 1938 and, therefore, by virtue of cl. (b) he wa•
entitled to be retained in service till he attained the age of 60 years. [175
F, 197 CJ
(2) Up to and inclusive of January 11, 1967, no distinction, inter 5e,
apart from that made by els. (a) and (b) between officers of Indian
Railway Administration, from whatever source they may have come, was
made. The position admittedly has been changed by altering the defini·
tion of the expression "government service" l>y the new Note to cl. (b)
Thus on and after December 23, 1967, though all the employees are
under the Indian Railway Administration, ti.ere will oe two sets .of rules
relating to the age of retirement, depending npon the fact whether they
were in the original employment of Indian Railway Administration or on
the fact of their coming from one or the other employers mentioned in
the new Note. Discrimination, is writ large on the face of the new Note;
Once the employees dealt with under the new Note have taken up oervice
under the Indian Railway Administration and have been treated alike 9JP
to January 11, 1967, i'f follows that they
cannot again
be classified
separately from the other employees of the Indian Railway Administration.
Therefore, the classification of these officers under the new Noto
is not a reasonable classification.
[197 G, 198 FJ
(3) Assuming there is a reasonable classification,
the
classification
cannot be said to have a nexus or relation to the object sought to be
achieved by cl. (b) of r. 2046 which is to provide for the age of retirement of the two types of officers coming under els. (a) and (b). Where
there is no indication that any further distinction inter se is sought to
be made amongst the officers mentioned in els. (a) and (b) and when a
uniform age of retirement has also been fixed in respect of officers coming under these two ciauses, the classification carving out the ex-exployees
of the three authorities mentioned therein with the added condition that
the rules of the company or the State should have a provision similar to
cl. (b) has no nexus or relation !O the object of the Rule.
[199 BJ
(4) Though a distinction has been made in the Rule between a railway servant coming under cl. (a) and a ministerial railway servant com·
ing und~r cl. (b) in regard to age of retirement, those clauses will apply
uniformly to all members of the Indian Railway Administration depending upon whether they are railway servants coming under cl. (a) or
ministerial railway servants coming under cl. (b). The distinction made
in cJ. (b) regarding the ministerial railway servants who entered govern~
ment service on or before
March 3 I.
i938, is
again
of uniform
application.
[196 HJ
(5) It is only necessary to strike down the offending part in the Note,
namely, "if the rules of the company or the State had a provision similar
to cl. (b)," and this part of the Note alone is struck down as discriminatory and violative of Art. 14 of the Constitution. [200 BJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1768 of
1969.
.
Appeal by special leave from the judgment and order dated
October 8, 1968 of the Mysore High Court in Writ Petition No.
657 Of 1968.
B
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D
E
F
G
ff
A
B
RAILWAY BOARD v. PITCHUMANI (Vaidialingam, J.)
189
M. C. Seta/vad, Ram Punjwani and S. P. Nayar, for the
appellants.
R. B. Datar and M. S. Narasimhan, for the respondent.
M. K. Ramamurthi, Shyama/a Pappu and J. Ramamurthi, f©r
intervener No. 1.
S. RamasubramanianJ. and J. Ramamurlhi, for intervener No.
2.
The Judgment of the Court was delivered· by
Vaidialingam, J.
In this appeal, by special leave, the
question that arises for consideration is regarding the validity of
C the new Note substituted in place of the old Note on December
23, 1967 to cl. (b) of rule 2046 (F.R. 56) of the Indian Railway Fundamental Rules.
The High Court by its judgment and order, under
appe'.11,
dated October 8, 1968, has struck down the new Note a3 dlSD criminatory and violative of Art. 14 of the Constitution.
The respondent was originally an employee of the Madras
and Southern Mahratta Railway Company (hereinafter to be
referred as the Company) having joined the service on August
16, 1927 as Clerk Grade-I. His date of birth, there is controversy, was April 15, 1910. The Company was amalgamated
E with the Indian Railway Administration in the year 194 7 and on
su.ch amalgamation, the rtspondent became the employee of the
Indian Railway Administration.
There is also no controversy
that he came within the classification of a "ministerial ra'iway
servant" within the meaning of that expression, occurring in ru'~
2046.
Rule 2046 deals with retirement of a railway servant.
At the time of amalgamation, under cl. ( 1) of the said rule, the
F
date of retirement of a railway servant, other than a ministerial
railway servant, was the date on which he attained the age of 55
years.
It was also provided therein that the said railway servant,
after attaining the age of retirement, may be retained in service
with the sanction of the competent authority on public
ground to be recorded in writing.
But there. was a prohibition
G regarding retention of such a railway servant after the age of 60
years excepi in very special circumstances.
Clause (2) of the
said rule, which deals with a ministerial railway servant, under
which category the .respondent falls, at the time of amalgamation
was as follows :
H
"2046 (2) (a) A ministeriiil 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 the age of 60
!90
SUPREME COURT REPORTS
(1972 j 2 S.C.R
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 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 55·
years.
He must not be rl!tained after that age except
on pub)ic 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."
It will be noied that. under sub-clause (a), quoted above, a
ministerial servant, who is not governed by sub-clause (b) may
be required to retire at the age of 55 years; but if he continues to
be efficient, he should ordinarily be retained in service upto the
tlate of 60 years.
Retention in service after the age of 60 years
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can only be under very special circumstances, to be recorded in
E
writing and with the sanction of the competent authority.
Therewas a further special provision made under cl. (b) in respect of
a ministerial servant who had entered Government service on or
after April 1, 1938 or being in Government service on that date,
did not hold a lien or a suspended lien on a permanent post on
that date.
On December 5, 1962, the Railway Board addressed a communication to the General Managers of All Indian Railways that
the Government were considering the question for
some
time
whether the age of compulsory retirement of railway servants
should be raised above 55 years.
It is further stated that the
President is pleased to direct that the age of compulsory retireG
ment of railway servants should be 58 years subject to the three
exceptions mentioned in the order.
The only relevant exception
is Exception No. I relating to ministerial railway servants, which
was as follows :
"(i) The existing rule 2046 (F.R. 56)
(2) (a)-
RII, under which ministerial railway servants who held
H
a lien or suspended lien on a permanent post on 31st
March, 1938 are to be retained in service upto the age
A
RAILWAY BOARD v. PITCHUMANI (Vaitiialingam, J.)
191
of 60 years subject to their continuing to be efficient and
physically fit after attaining the age of 55 years, will
remain in force.
It will be seen from the decision of the Government, as communicated in the above letter, that the age of retirement of railB way servants was raised from 55 to 58 years.
But this was subject to the restriction regarding the continuance of a ministerial
servant after 55 years upto the age of 60 years as provided fOJ:'
under sub-clause (b) of cl. (2) of rule 2046.
On January 11, 1967, the old rule 2046 as amended in 1962
C
was substituted by the new rule.
The new rule consisted of four
clauses, but we are not concerned with clauses ( c)
and
( d).
The material part of the said rule relevant to be noted are clauses
(a) and (b) together with the note to clause (b) which ran as
follows :
"2046 (FR. 56)-(a) Except as otherwise provided
D
in this rule, every railway servant shall retiro on the day
he attains the age of fifty-eight years.
E
F
G
(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 -told the same without interruption until he was confirmed in that post,
shall be retained in service till the day he attains the
age of sixty years.
NOTE : For the purpose of this Clause, the expression "Government Service" include service rendered in
ex-company, and ex-State Railways, and in a former
provincial Government."
Two aspects broadly emerge from the above new rule : (a)
every ministerial railway servant who had entered Government
service on or before March 31, 1938 and who satisfied the conditions mentioned in sub-clause (i) or (ii) of clause (b) had a
H
right to continue in service till he attained the age of sixty
years;· and (b) under the Note, the expression "Government Service" in clause (b) takes in service rendered in excompany, ex-State Railways and in a former provincial Govern-
192
SUPREME COURT REPORTS
(1972] 2 S.C.R.
ment.
There is no controversy that the respondent held a permanent post in the Company on March 31,
1938.
Therefore,
under this new rule, he would be entitled to continue in service
till he attained the age of sixty years, as provided in cl.° (b) read
with the Note thereto.
On December 12, 1967, the Note to cl. (b) of rule 2046
defining the expression "Government Service" as per the order
dated January 11, 1967 was deleted, and a new Note was substituted in its place.
The order dated December 23. 1967 together with the new Note is as follows :
"For the existing note, substitute the following :
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 Railways, if the rules of the Company or
the State had a provision similar to Clause (b) above."
From the new Note, extracted above, it will be seen that the
definition of the expression "Government Service" was changed.
The effect of the new Note, so far as the respondent is concerned,
is that whereas he was entitled to continue in service upto 60
years, as per clause (b) read with the note thereto under rule
2046 as substituted on January 11, 1967, now he can get service
upto 60 "years only if the Company had a provision similar to
cl. (b) of rule 2046.
There is no dispute, that under the service
conditions applicable to the respondent, when he. was an employee
of the Company, he had no right to continue in service till he
attained the age of sixty years.
On the other hand, under the
service conditions of the Company he had to retire at the age of
55 years.
It appears that after the introduction of the new rule 2046 on
January 11, 1967, the Divisional Accounts Officer, Hubli, p:issed
an order on March 31, 1967 that the respondent was entitled to
continue in Office till he attained the age of 60 years. But after
the new Note to cl. (b) to rule 2046 was substituted on DecemA
e
c
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F
ber 23, 1967, the Divisional Accounts Officer, Hubli, passed an
order on January 17, 1968 to the effect that the respondent is to G
retire from service on April 14, 1968 on which date he would be
attaining the age of 58 years.
The said order also states that
this action was being taken in view of the new Note subsfauted
on December 23, 1967 to cl. (b) of rule 2046.
The respondent filed on March 6, 1968 in the Mysore Hi!lh
Court. Writ Petition .No. 657 of 1968 challenging the legality
and validity of the order dated January 17, 1968
reti~ing .~im
from service with effect from April 4, 1968.
In the wnt pet1t1on
H
RAILWAY BOARD v. P!TCHUMANI (Vaidialingam. J.)
193
A he had referred to his previous service in the Company and to the
latter being amalgamated with the Indian Railway AdministFation
in 194 7.
According to him, after such amalgmation he
ha.~
become a ministerial railway servant under che Indian Railway
· Administration and all the rules applicable to the employees of
the latter became applicable to him.
In particular, he pleaded
B that he was entitled to continue in service, until he attained the
age of sixty years, as per the new rule 2046 introduced on
January 11, 1967, as he satisfies all the conditions prescribed
under cl. (b) thereof.
He particulraly attacked the new Note
to cl. (b) substituted on December 23, 1967 as discriminatory
and violative of Art. 14 of the Constitution.
According to him,
C the members of the Indian Railway Service, similarly situated
like him, will be entitled to continue in service till 60 years,
whereas that right has been denied, to persons like him, under
the new Note.
He also referred to the order passed on March
31, 1967 by the Divisional Accounts Officer, Hubli in and by
which it was directed that he was entitled to continue in service
till 60 years.
According to the respondent, the Railway Admi0
nistration was not entitled to go back on this order.
On these
grounds, the respondent challenged the validity of the order
directing him to retire on the basis of the new Note.
The appellant contested the writ petition on the ground that
the order dated March 31, 1967 was passed on the basis of the
rule 2046, read with the Note, as it existed on January 11, 1967.
E
But the position was changed by the deletion of the original Note
to cl. (b) and its substitution by the new Note on December 23,
1967. The appellant claimed that the service conditions of persons, like the respondent, have always been different from those
serving under the Railway Administration and that by the introduction of the new Note, no discrimination has been practised
F
on any officer.
On the other hand, according to the appellant,
the new Note only gave effect to the conditions of service, which
obta_ined in the Company, where the respondent originally joined
service.
The appellant further pleaded that the new NQte does
not violate Art. 14 of the Constitution.
The High Court, by its judgment and order dated October 8
G
1968 has accepted the contentions of the respondent and held
that the new Note substituted to cl. (b) of rule 2046 on December 2~. ~967 is dis~riminatory and violative of Art. 14 of the
Constrtutron.
In t~rs view, the said Note was struck down.
In
consequence, the Hrgh Court set aside the order dated January
17. 19~8 an? gave. a d~claration that the respondent was entitled
H
to continue m service till he attained the age of sixty years.
Mr. M. C. Setalvad, learned counsel for the appellant Railway Board, has strenuously attacked the fouling of the' High
194
SUPREME COURT REPORTS
(1972] 2 S.C.R.
Court that the new Note, substituted on December 23, 1967 to
cl. (b) is discriminatory and violative of Art. 14 of the Constitutiou.
On the other hand, he urged that a distinction has always
been made in the case of ministerial railway servant who is
governed by cl. (b) and those who are not so governed by that
clause of rule 2046,
Different provisions regarding the age of
retirement have been provided in respect of those two classes of a
ministerial railway servants. The new Note, Mr. Setalvad pointed out only gives recognition to the practice that has been obtaining in respect of the ministerial railway servants under their
previous employers.
He further pointed out that the Note to
cl. (b) of rule 2046, incorporated on January 11, 1967 gave the
benefit of the expression "Government ServiCe' 'to persons, like
C
the respondent, who have previously been working in ex-Company, provincial Government or ex-State Railways.
The
new
Nete keeps the same categories of employees within the expression "Government Service", but adds a qualification that in order
to have the benefit of a longer period of service, they should have
had such benefit under their previous employers.
Mr. Setalvad further pointed out that a government servant
has no right to continue in service till the age of 60 years and that
D
the option to so continue him upto that age, vests exclusively
within the discretion of the authority concerned. For this proposition the counsel relied on the decision of this Court in Kailash
Chandra v. Union of lndia(1) interpreting clause (2) of rule
2046 as it existed prior to the amendment in 1962. In any event,
E
Mr. Setalvad pointed out, that the officers who had worked under
a former provincial Government, Ex-Company or Ex-State Railways and who have been dealt with under the new Note substituted on December 23, 1967 form a class by themselves and
therefore there· is a reasonable classification of such officers. and
that satisfies the requirement of Art. 14 of the Constitution.
On F
all these grounds, Mr. Setalvad urged that the new Note is not
discrintinatory and it does not violate Art. 14 of the Constitution.
Mr.• R. B. Datar, learned counsel for the respondent and
M/s M. K. Ramamurthi and J: Ramamurthi, who appeared for
the two interveners have supported the reasoning of the High
G
Court for holding that Art. 14 is violated by the new Note to
cl. (b) of rule 2046.
We are of the opinion that the contentions of Mr. Setalvad
cannot be accepted.
No doubt, the counsel is justified in his con-
:ention o,nly to this limited extent, namely, that under cl. ( 2) of
rule 2046, as it existed prior to its amendment on January 11,
1967 that ininisterial railway servant falling under that clause,
has no right to continue in service beyond the age of 55 and that
(-1) ]1962] I S.C.R. 374.
H
RAILWAY BOARD v. P!TCHUMANI (Vaidialingam, J.)
195
A the appropriate authority has the option to continue him in service:
after his attaining the age of 55 years, subject to the condition:
that the servant continues to be efficient.
This Court in Kai/ash·
Ch11ndra's case(1) had an occasion to consider rule 2046 (2)(a)
as it originally stood. It was held that the ministerial railway
servants falling under the said clause may be compulsorily retired
B on attaining the age of 55 years.
But when the servant is betwee&
the age of 55 and 60 years, the option to continue him in service, subject to the servant continuing to be efficient, exclusively
vests wit!) the appropriate authority.
It was further laid down
that the authority is not bound to retain a railway servant after
the age of 55 years, even if the continues to be efficient.
It was
further emphasised that the rule gave no right to a ministerial
C
railway servant to continue in service beyond the age of 55 years.
D
E
F
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H
It is in view of the above principles laid down by this Court,
we have observed, earlier, that Mr. Setalvad's contention in respect of the rule 2046, as it originally stood, is well founded. But
this Court, in the above decision, had no occasion to consider the
problem that now arises, by virtue of the new Note added to
cl. (b) of rule 2046.
There is no controversy t~t after the
amalgamation of the Company with the Indian Railway Administration, the respondent has become an employee of the latter.
If so, in our opinion, the respondent is entitled to be given the
same rights and privileges that are available to the other employees employed by the Indian
Railway
Administration., That
exactly was the position under the rule 2046, as it originally
stood; after its amendment on December 5, 1962 increasing the
age of retirement tQ 58 years; as also Under the new rule 2046,
incorporated on January 11. 1967.
All these rules upto and
inclusive of January 11. 1967 treated the former employees of
the Ex-Company, Ex-State Railw!IYS
;md
former
provincial
Governments. who were amalgamated with the Indian Railway
Administration in 1947. on a par the other original employees
of the Indian Railway Administration.
In fact, the Note to cl.
(b) of rule 2046 incorporated on January 11, 1967, re-inforced
this position, by making it clear that the expression "Government
Sctvice' 'in cl. (b) will include service under the various emoloycrs referred to therein.
. Mr. Setalvad placed reliance on the fact that rule 2046, as it
existed upto and inclusive of January 11, 1967, dealt differP.ntly
\\ith the age of retirement in respect of: (i) a railway
servant
com!ng under cl. (a) and (ii) a ministerial railway
servant
com mg Ul\der cl. (b).
He further pointed out that even in respect of ii ministerial railway servant coming under cl.
(b), the
!alter in order to be eligible to have a longer age of retirement
. should be one who complies with the conditions mentioned there-
!. (196~> l. s.c.R. J74..
196
SUPREME COURT REPORTS
[1972) 2 S.C.R.
in.
These conditions are as per cl. (b) existing on January 11,
1967, that the officer should have !1lltered government service on
or before March 31, 1938.
The said officer should also have the
one or the other of the qualifications mentioned in sub-clauses
A
( i) and (ii).
That is, according to the learned counsel, if a
ministerial railway servant has not entered government service
before March 31, 1938, he will not be eligible for the longer age
B
of retirement.
These circumstances will clearly show, according
to Mr. Setalvad, that the rule has been through out maintaining
a distinction even amongst the ministerial railway servants working under the Indian Railway Administration.
This
argument,
may on the face of it appear to be attractive; but in our opinion,
it cannot be accepted.
The point to be noted is that though
a
distinction has been made in the rule . between a railway servant
conting under cl. (a) and a ministerial railway servant coming
under cl. (b), those clauses will apply uniformly to all members
c
of the ·Indian Railway Administration depending upon whether
they are railway servants coming under cl. (a) or a ministerial
railway servant coming under cl. (b), as the case may be.
To
all railway servants coming under cl. (a) the age of retirement
D
is the same.
Similarly to all ministerial railway servants coming
under cl. (b), the age of retirement is again the same.
Further
if a ministerial railway servant does not satisfy the requirement<
of cl. (b) he will not be eligible to get the extended period of
retirement.
That again will apply to all ministerial railway servants. who do not satisfy the requirements of cl. (b).
We arc
emphasising this aspect to show that no distinction
has
been
made either in cl. (a) or cl. (b) regarding the umform application in respect of the age of_ retirement to the officers mentioned
. therein and who are governed by those clauses.
That is, there is
no inter se distinction made.
The distinction made in cl.
(b J
regarding the ministerial railway servants who entered governF
ment service on or before Marc:1 31, 1938 is again of uniform
application.
That rule only makes a broad distinction between
the ministerial railway servants who entered government service
on or before March 31, 1938 and who entered government scrYice after that date.
As per the Note to cl. (b) to rule 2046.
incorporated on January n, 1967. the respondent is a person
who has entered government service on or before March 31, 1938
G
and satisfies also the requirements under sub-cl. (ii) or cl. (b)
Similarly. another railway servant may have entered government
sen·ice under the Indian Railway Administration on or before
March 31. I 938.
He also. under cl. (b) will be .i
minist~rial
railwav servant who has entered government service on or before
March 31. 1938 and if he satisfies one or other of the conditions
mentioned in sub-clauses ( i) and (ii) of cl. (b), he will
be
entitled to continue in service till 60 years.
That means both
persons, like the respondent, and the officers who have straight
H
A
B
c
D
E
F
G
H
RAILWAY BOARD v. PITCHUMANI (Vaidia/i11gam, J.)
197
joined the service under the Indian Railway Administration, prior
to March 31, 1938 and who satisfy the requirements under subclause (i) or sub-clause (ii) of clause (b) will be equally entitled
to continue in service till they attain the age of 60 years.
These
facts clearly show that els. (a) and (b) of rule 2046 had uniform
application to all the employees of the Indian Railway Administration.
Coming to the new rule 2046, incorporated on January 11,
196 7, the conditions of service of persons, like the respondent,
have been better crystalised.
Read with the Note, under cl. (b),
the respondent is a ministerial railway servant, who had entered
government service on or before March 31, 1938.
By virtue of
cl. ( b), he was entitled to be retained in service till he attains the
age of 60 years.
It is to be noted that there is no option left
with the employer, but to retain such a ministerial railway servant upto 60 years.
In other words, if the ministerial
railway
servant satisfies the requirements of cl. (b), he is, as of right,
entitled to be in service, till he attains the age of 60 years.
Similarly, cl.(~) introduced on January 11, 1967, gives a right
to a railway servant to continue in office, till he attains the age of
58 years.
Here again, there is no option vested with the authorities· except to continue him till that age.
The option to ext~nd
the period of service of the officers mentioned in els. (a) and ( b)
is dealt with under sub-clauses (d) and (c) respectively, which
1·.e have not quoted.
Sub-clauses (c) and (d) deal
with
the.
g1 anting of extension of service beyond the period mentioned in
,ut·clauses (b) and (a).
The option to
extend
the service
lx1cnd the period mentioned in sub-causes (a) and (b) may be
w;th the authorities; but they have no voice in a railway servant
coming under cl. (b), continuing upto 60 years.
That the authorities also understood
the
position
in
the
manner mentioned above, is clear from the order dated March
31, 1967, of the Divisional Accounts Officer, Hubli declaring
the right of the respondent to continue in service upto 60 years.
Jn fact, this order was passed in consequence of the new
rule
2046 substituted oil January 11 1967. Therefore, from what is
>lated above, it is clear that upto and inclusive of January 11,
196 7, no distinction inter se apart from that made by clauses
(a) and (b), between the officers of the Indian Railway Admin!,tration, from whatever source they may have come, was made.
E\·en at the risk repetition, we ~1ay state that under cl. (b) of
rule 2046, as introduced on .T ~nuary 11,
1967,
the
original
employees of the Indian Railway Administration, as well as pet-
>On,, like the respondent, who came into the Indian Railway
Administration in 1947, were both entitled. a; of ri~ht, to continue in service till they attained the age of 60 year;~ This position admittedly has been changed, by altering the definition of the
/
!198
SUPREME COURT REPORTS
[1972] 2 S.C.R.
expression "Government Service" by the new Note to cl.
(b)
introduced on December 23, 1967.
Under that Note, it cannot
A
be gain said, that a distinction has been made between the original employees of the Indian Railway Administration, and the new
employees, who were amalgamated with the Indian Railway
Administration in 194 7, but who had their previous service, with
either a former provincial Government, or an Ex-Company or
IJ
Ex-State Railways.
In the case of such employees, the benefit
-Of the extended age of retirement, that has been ~iven to the other
employees of the Indian Railway Administration,
was made
available, only if the new employees had the same benefit under
their previous employers.
Therefore, the position is that on and
after December 23, 1967, though all the employees are under c
the Indian Railway Administration, there will be two sets of rules
relating to the age of retirement, depending upon the fact whether
they were in the original employment of the Indian Railway
Administration or on the fact of their coming from one or the
other of the employers mentioned in Jhe new Note.
It is in consequence of the' new Note, that the order dated January 17. 1968
D
was issued by the Divisional Accounts Officer, Hubli, that the
respondent has to retire at the age of 58 years, on April 14,
1968.
The question is whether the distinction made under the new
Note to cl.
(b) substituted on December 23, 1967 valid?
In
our opinion, such a rule, which makes a distinction between the
E
employees working under the same Indian Railway Administration is not valid.
The position, after the new Note was added,
is that the employee who had through out been under the Indian
Railway Administration is entitled to continue in service till he
attains the age of 60 years; whereas the persons. like the respondent. who are also the employees of the Indian Railway Administration, but whose previous services were with the Company,
will have to retire at the age of 58 years, because a provision
similar to cl. (b) did not exist in the service conditions of the
Company.
Discrimination, on the face of it, is writ large in the
new Note, which is under challenge.
Mr. Setalvad, no doubt, urgea tliat the ministerial railway
servant, who was originally employee of a Company, Ex-State
Railway or a former Provincial Government dealt with under tlie
new Note are a class by themselves, and, therefore, there is
a
reasonable classification.
Once the employees dealt with ·under
the new Note, have taken up service under the Indian Railway
Administration and have been treated alike up to January
11,
1967, it follows, in our opinion, that they cannot again be classi·
fied separately from the other employees of the Indian Railway
Administration.
Therefore, we are not inclined to accept
the
F
G
H
A
B
c
RAILWAY BOARD v. PJTClluMANl ( Vaidialingam, !.)
199
contention that the classification of these officers, under the new
Note, is a reasonable classification and satisfies one of the essen·
tial requisites of Art. 14 of the Constitution, as interpreted by this
Court.
We wiil assume, that in dealing with the types of employees
under the new Note, there is a reasonable classification. Never·
theless, the further question arises whether the reasonable classification, with the added condition in the Note incorporateLl on
December 23, 1967, can be said to have a nexus or a relation to
the object sought to be achieved by cl. (b) of rule 2046 ?
The
object of rule 2046 itself is to provide for the age of retirement
of the two types of officers coming under els.
(a) and
(!>).
Where there is no indication that any further distinction inter se
is sought to be made amongst the officers mentioned in els. (a)
and (b) and when an uniform age of retirement has also been
fixed in respect of the officers coming under these two clauses,
the classification, carving out the ex-employees
of the
three
authorities mentioned therein, with the added condition that the
o rules ot the Compa.ny or the State should have a provision similar
to clause (b), has, in our opinion, no nexus or relation to the
object of the rule.
For the reasons given above, we are of the view that the High
Court was justified in striking down the order of the · Divisional
Accounts Officer, Hubli, dated January 17, 1968 directing
th.e
E
respondent to retire from service on April 14, 1968, on which
date he will attain the age of 58 years.
However, it is not clear
from the judgment of the High Court whether the entire
new
Note substituted under cl. (b) of rule 2046 on December 23,
1967 has been struck down or whether it has struck down only
the new condition incorporated in the said Note.
Even as
per
F
ihe Note under cl. (b), incorporated along with the new
rule
2046 on January 11, 1967, the expression "Government Service"
included service rendered in El,1:-Company, Ex-State
Railways
and in a former provincial Government, and such a provision is
beneficial to the employees like the respondent.
In the new substituted Note dated December 23, 1967, the
G
first part of the Note including in "government service" any ser·
vice rendered in a former provincial Government, Ex-Com(lany
and Ex-State Railway~ is more or less identical with the original
Note of January 11, 1967, though in the new Note the order of
the former employees has been slightly changed. In our opinion,
that part of the new rule providing that for the purpose of cl. (b)
H
the expression "Government Service" includes service rendered in
a former provincial Government and in a Ex-Company and ExState Railways can be allowed to stand to this extent.
Therefore.
the offending part in the new Note are the further words "if the
200
SUPREME COURT REPORTS
(l972J 2 S.C.R.
rules of the Company or the State had a provi>ion simibr to
Clause (b) above"'.
This offending part can be deleted without
doing violence to the definition of the ·expression "Government
Service" even under the new Note.
Therefore, it is only necessary to strike down the offending part in the Note, namely. •·if th~
rules of the Company or the State had a· provision
similar
to
Clause (b) above" and this part of the Note alone is struck down
as discriminatory and violative of Art. 14 of the Constitution.
Subject to the above directions. the judgment and order of
ibe High Court are contirmcd and this appeal dismissed. Special
Je~ve to appeal has been granted on August 7, 1969 subject to
lbe conditions that the appellant is to pay the costs of the respondent in any event.
The res1JLlndent, accordingly. will be entitled
fo his costs in the appeal.
K.B.N.
A1>1•ea/ di1mi.1·1·ed.
A
B
c