# KAILASH CHANDRA v. UNION OF INDIA

- **Citation:** [1962] 1 S.C.R. 374
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 283 of 1960
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. WANOHoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kailash-chandra-v-union-of-india-2131
- **Pages:** 9

## Headnote

[1962]
Railway Servant-Compulsory retirement, Age of-Retention
in service after 55 years of age, if compulsory or optional-Ministerial servants, classification of, if unreasonable-Railway Establishment Code, Rule 2046(2)(a), Fundamental Rule 56(b)(I), Constitution of India, Art. I4.
The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age
of 55 years. His prayer for further retention in service having
been rejected he filed a suit alleging that he was entitled to be
retained in service up to the age of 60 years under Rule 2046
(2)(a) of the Railway Establishment Code, which runs as
follows:-
" Clause (a)-A ministerial servant who is not governed
by sub-cl. (b) may be required to retire at the age of 55 years
but should ordinarily be retained in service if he continues to
be efficient up to the 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."
His suit was decreed by the Trial Court but the High Court
reversed it holding that the plaintiff-appellant had no right to
continue in service beyond the age of 55 years. On appeal with
the certificate of the High Court.
Held, that the correct interpretation of Rule 2046(2)(a) is
that a railway ministerial servant falling within this clause
may be compulsorily retired on attaining the age of 55 but
when the servant is between the age of 55 and 60 years the
appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be
efficient but the authority is not bound to retain him even if he
continues to be efficient. This rule does not give the servant
a right to be retained in service beyond the age of 55 years even
if he continues to be efficient.
Jai Ram v. Union of India, A.LR. r954 S.C. 584, explained.
Basant Kumar Pal v. The Chief Electrical Engineer, A.LR.
r956 Cal. 93, Kishan Dayal v. General Manager, Northern Railway, A.LR. r954 Punj. 245 and Raghunath Narain Mathur v.
Union of India, A.LR. r953 All. 352, approved.
'
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t _.
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1 S.C.R. SUPREME COURT REPORTS
375
The formation by the Railway Board of two classes of
1961
ministerial servants, namely, one of those who retired after
September 8, r948, and the other of those who had already /{ailash Chandra
retired before that date was a reasonable class1ficahon and chd
v.
not offend Art. r4 of the Constitution.
Uaion of India
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 283 of 1960.
Appeal from the judgment and decree dated
November 20, 1958, of the Allahabad High Court
(Lucknow Bench) in First Civil Appeal No. 3of1956.
C. B. Agarwala and 0. P. Lal, for the appellant.
R. Ganapathy Iyer and T. 1"\I. Sen, for the respondent.
1961. March 16. The Judgment of the Court was
delivered by
DAS GUPTA, J.-The appellant, a clerk in the serDas Gupta ].
vice of the East Indian Railways was compulsorily
retired from service with effect from June 30, 1948, on
attaining the .age of 55 years.
His prayer for further retention in service on the ground that he was
entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he
brought the suit which has given rise to this appeal in
the court of the Civil Judge, Lucknow, alleging that
he was entitled to be retained under the above rule
and the order for compulsory retirement on attaining
the age of 55 years was void and inoperative in law.
He accordingly prayed for a declaratory decree that
the order of his compulsory retirement was illegal and
void and for a money decree for arrears of pay on the
basis that he had continued in service.
The main defence was a denial of his right to be
retained in service under the rules. The Trial Court
accepted the plaintiff's contention as regards the effect
of the rule, gave him a declaration as prayed for and
also decreed the claim for money in part.
On appeal the High Court took a differen

## Text

I96I
March z6.
374
SUPREME COURT REPORTS
KAILASH CHANDRA
v.
UNION OF INDIA
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANOHoo, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
[1962]
Railway Servant-Compulsory retirement, Age of-Retention
in service after 55 years of age, if compulsory or optional-Ministerial servants, classification of, if unreasonable-Railway Establishment Code, Rule 2046(2)(a), Fundamental Rule 56(b)(I), Constitution of India, Art. I4.
The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age
of 55 years. His prayer for further retention in service having
been rejected he filed a suit alleging that he was entitled to be
retained in service up to the age of 60 years under Rule 2046
(2)(a) of the Railway Establishment Code, which runs as
follows:-
" Clause (a)-A ministerial servant who is not governed
by sub-cl. (b) may be required to retire at the age of 55 years
but should ordinarily be retained in service if he continues to
be efficient up to the 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."
His suit was decreed by the Trial Court but the High Court
reversed it holding that the plaintiff-appellant had no right to
continue in service beyond the age of 55 years. On appeal with
the certificate of the High Court.
Held, that the correct interpretation of Rule 2046(2)(a) is
that a railway ministerial servant falling within this clause
may be compulsorily retired on attaining the age of 55 but
when the servant is between the age of 55 and 60 years the
appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be
efficient but the authority is not bound to retain him even if he
continues to be efficient. This rule does not give the servant
a right to be retained in service beyond the age of 55 years even
if he continues to be efficient.
Jai Ram v. Union of India, A.LR. r954 S.C. 584, explained.
Basant Kumar Pal v. The Chief Electrical Engineer, A.LR.
r956 Cal. 93, Kishan Dayal v. General Manager, Northern Railway, A.LR. r954 Punj. 245 and Raghunath Narain Mathur v.
Union of India, A.LR. r953 All. 352, approved.
'
•
t _.
•
•
1 S.C.R. SUPREME COURT REPORTS
375
The formation by the Railway Board of two classes of
1961
ministerial servants, namely, one of those who retired after
September 8, r948, and the other of those who had already /{ailash Chandra
retired before that date was a reasonable class1ficahon and chd
v.
not offend Art. r4 of the Constitution.
Uaion of India
CIVIL APPELLATE
JURISDICTION:
Civil Appeal
No. 283 of 1960.
Appeal from the judgment and decree dated
November 20, 1958, of the Allahabad High Court
(Lucknow Bench) in First Civil Appeal No. 3of1956.
C. B. Agarwala and 0. P. Lal, for the appellant.
R. Ganapathy Iyer and T. 1"\I. Sen, for the respondent.
1961. March 16. The Judgment of the Court was
delivered by
DAS GUPTA, J.-The appellant, a clerk in the serDas Gupta ].
vice of the East Indian Railways was compulsorily
retired from service with effect from June 30, 1948, on
attaining the .age of 55 years.
His prayer for further retention in service on the ground that he was
entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he
brought the suit which has given rise to this appeal in
the court of the Civil Judge, Lucknow, alleging that
he was entitled to be retained under the above rule
and the order for compulsory retirement on attaining
the age of 55 years was void and inoperative in law.
He accordingly prayed for a declaratory decree that
the order of his compulsory retirement was illegal and
void and for a money decree for arrears of pay on the
basis that he had continued in service.
The main defence was a denial of his right to be
retained in service under the rules. The Trial Court
accepted the plaintiff's contention as regards the effect
of the rule, gave him a declaration as prayed for and
also decreed the claim for money in part.
On appeal the High Court took a different view of
Rule 2046 and held that that rule gave the plaintiff no
right to continue in service beyond the age of 55 years .
The High Court therefore allowed the appeal and dismissed the plaintiff's suit. Against this decision the
376
SUPREME COURT REPORTS
[1962]
r9:
plaintiff has preferred the present appeal on a certifiKaitash Chandm cate granted by the High Court under Art. 133(1) (c)
v.
of the Constitution.
Union of Indin
The main question therefore is whether on a proper
interpretation of Rule 2046/2 (a) of the Railway EstaDas Gupta f. blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the right to be
retained in service till the age of 60 years. It is
necessary to mention that the plaintiff's case that he
continued to be efficient even after attaining the age
of 55 years has not been disputed by the respondent,
the Union of India. Consequently the question is:
Assuming the plaintiff so continued to be efficient
whether he had the right to be retained in service till
he attained the age of 60 years. Rule 2046 (1) of the
Code deals with the question of retirement of railway
servants other than ministerial and provides that such
railway servant, that is, one who is not a ministerial
servant, will be compulsorily retired on attaining the
age of 55 years; but may be retained in service after
that date "with the sanction of the competent authority on public grounds" which must be recorded in
writing. A further provision is made that he must
not be retained after the age of 60 years except in
very special circumstances. Rule 2046/2 deals with
cases of ministerial servants. It has two clauses of
which cl. (b) deals with '.(i) ministerial servants who
entered Government service on or after April 1, 1938,
or (ii) who though in Government service on March
31, 1938, did not hold a lien or a suspended lien on a
permanent post on that date. These also, like the
railway servants, who are not ministerial servants
have to retire ordinarily at the age of 55 years and
cannot be retained after that age except on public
grounds to be recorded in writing and with the sanction of the competent authority; and must not be
retained after attaining the age of 60 years except in
very special circumstances.
Clause (a) deals with railway ministerial servants
other than those who entered Government service on
or after April 1, 1938, or those in Government service
on March 31, 1938, who did not hold a lien or a
.. t
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1 S.C.R. SUPREME COURT REPORTS
377
suspended lien on a permanent post on that date. The
'96'
exact words of the rule are:
K aiias--;:;;handra
"A ministerial servant who is not governed by
v.
sub-cl. (b) may be required to retire at the age of Union of India
55 years but should ordinarily be retained in service if he continues to be efficient up to the age of Das Gupta J.
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."
It is obvious that the rule as regards compulsory
retirement is more favourable to ministerial servants
who fall within cl. (a) of rule 2046/2 than those who
fall under cl. (b) of the same rule or railway servants
who are not ministerial servants. For whereas in the
case of these, viz., rail way servants-who are not
ministerial servants, and ministerial servants under
cl. (b) retention after the age of 55 itself is intended
to be exceptional-to be made on public grounds
which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under cl. (a) of Rule 2046/2
their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other rail way servants mentioned above after the age of 55. It is clear therefore that whereas the authority appropriate to make
the order of compulsory retirement or of retention is
given no discretion by itself to retain a ministerial
railway servant under cl. (b) if he attains the age of
55 years, that is not the position as regards the ministerial servants who fall under cl. (a).
The appellant's
contention however goes very much further. He contends that in the case of ministerial servants who
come within cl. (a) and after attaining the age of 55
years continue to be efficient it is not even a case of
discretion of the appropriate authority to retain him
or not, but that such ministerial servants have got a
right to be retained and the appropriate authority is
bound to retain him, if efficient.
The first clause of the first sentence of the relevant
48
378
SUPREME COtJRT REPORTS
[1962]
196'
rule taken by itself certainly gives the appropriate
'( .1 -h -Ch
d
authority the right to require a ministerial servant to
I' ai as
an 1'a
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v.
retire as soon as he attams the age of 55 years. The
Union of Tndia question is:
Whether this right is cut down by the
second clause, viz., "but should ordinarily be retained
Das Gupta J. in service if he continues to be efficient up to the age
of 60 years". On behalf of the appellant it is urged
that the very use of the conjunction "but" is for the
definite purpose of the cutting down of the right conferred by the first clause; and that the effect of the
second clause is that the right to require the Government servant to retire at 55 is limited only to cases
where he does not retain his efficiency; but where he
does retain his efficiency the right to retire him is only
when he attains the age of 60 years.
We are constrained to say that the language used in this rule is
unnecessarily involved; but at the same time it is
reasonably clear that the defect in the language
creates no doubt as regards the intention of the rulemaking authority. That intention, in our opinion, is
that the right conferred by the first part is not in any
way limited or cut down by the second part of the
sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate
authority an option to retain the servant for five
years more, subject to the condition that he continues
to be efficient. If this condition is not satisfied the
appropriate authority has no option to retain the servant; where however the condition is satisfied the
appropriate authority has the option to do so but is
not bound to exercise the option. If the intention had
been to cut down the right conferred on the authority
to retire a servant at the age of 55 years the proper
.langua"e to express such intention would have been;
" ....... ~may be required to retire at the age of 55 years
provided however that he shall be retained in service
if he continues to be efficient up to the age of 60 years"
or some such similar words. The use of "should
ordinarily be retained in service" is sufficient index to
the mind of the rule-making authority that the right
conferred by the first clause of the sentence remained.
Leaving out for the present the word "ordinarily" the
rule would read thus:
I.
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I S.C.R. SUPREME COURT REPORTS
379
"A ministerial servant who is not governed by
196 '
sub-clause (b) may be required to ret!re at the_ age I<;il.,h Chandra
of 55 years but should be retained m service 1f he
v.
continues to be efficient up to the age of 60 years." Union of India
Reading these words without the word "ordinarily"
we find it unreasonable to think that it indicates any
Da' Gupta 1 ·
intention to cut down at all the right to require the
servant to retire at the age of 55 years or to create in
the servant any right to continue beyond the age of 55
years if he continues to be efficient. They are much
more appropriate to express the intention that as soon
as the age of 55 years is reached the appropriate
authority has the right to require the servant to retire
but that between the age of 55 and 60 the appropriate
authority is given the option to retain the servant but
is not bound to do so.
This intention is made even more clear and beyond
doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not
invariably". This itself emphasises the fact that the
appropriate authority is not bound to retain the servant after he attains the age of 55 even ifhe continues
to ho efficient. The intention of the second clause
therefore clearly is that while under the first clause
the appropriate authority hn,s the right to retire the
servant who falls within clause (a) as soon as he
attains the age of 55, it will, at that stage, consider
whether or not to retain him further.
This option to
retain for the further period of five years can only be
exercised if the servant continues to be efficient; but
in deciding whether or not to exercise this option the
authority has to consider circumstances other than
the question of efficiency also; in the absence of special
circumstances he "should" retain the servant; but
what are special circumstances is left entirely to the
authority's decision. Thus, after the age of 55 is
reached by the servant the authority has to exercise
its discretion whether or not to retain the servant; and
there is no right in the servant to be retained, even if
he continues to be efficient.
Reliance was placed by learned counsel on an'
observation of Mukherjea, J. (as he then was}, in Jai
380
SUPREME COURT REPORTS
[1962)
'9 6'
Ram v. Union of India (1) when speaking for the Court
K .1 h Ch
d
as regards this rule his Lordship said :-
a• as v.
an ra
"We think it is a possible view to take upon the
Union of lndia
language of this rule that a ministerial servant
coming within the purview has normally the right
Das Gupta J.
to be retained in service till he reaches the age of 60.
This is conditional undoubtedly upon his continuing to be efficient.
We may assume therefore for
purposes of this case that the plaintiff had the right
to continue· in service till 60 and could not be retired
before that except on the ground of inefficiency."
It would be wholly unreasonable however to consider this as a decision on the question of what this
rule means. Dealing with an argument that as the
plaintiff under this rule has the right to continue in
service till 60 and could not be retired before that
except on the ground of inefficiency certain results
follow, the Court assumed for the sake of argument
that this interpretation was possible and proceeded to
deal with the learned counsel's argument on that basis.
It was not intended to say that this was the correct
interpretation that should be put on the words of
the rule.
The correct interpretation of Rule 2046 (2)(a) of the
Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily
retired on attaining the age of 55 but when the servant
is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject
to the condition that the servant continues to be
efficient but the authority is not bound to retain him
even if a servant continues to be efficient.
It may be mentioned that this interpretation of the
rule has heen adopted by several High Courts in India
[Ba8ant Kumar Pal v. The Chief Electrical Engineer (2 );
Kishan Dayal v. General Manager, Northern Railway (3)
and Raghunath Narain Mathur v. Union of India(')]. :
We therefore hold that the High Court was right in
holding that this rule gave the plaintiff no right to
continue in service beyond the age of 55.
(t) A.I.R. 1954 S.C. 584.
(3) A.LR. 195i Punj. 245.
(2) A.LR. 1956 Cal. 93.
(4) A.LR. '953 All. 352.
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1 S.C.R. SUPREME COURT REPORTS
381
It was next urged by Mr. Aggarwal, though faintly,
I96I
that the notification of the Railway Board dated K .1 h Chandra
October 19, 1948, and the further notification dated
ai as v.
April 15, 1952, as a result of which ministerial servants Union of India
who were retired under rule 2046(2)(a) before attain·
ing the age of 60 after September 8, 1948, have been
Da; Gupta J.
given special treatment are discriminatory. It appears
that on September 8, 1948, the Government of India
came to a decision that no ministerial Government
servant to whom the fundamental rule 56(b)(i) applied
and who has attained the age of 55 years but has not
attained the age of 60 years could be required to retire
from service unless he has been given a reasonable
opportunity to show cause against the proposed retirement and unless any representation that he may desire
to make in this connection has been duly considered.
This .decision was communicated to different depart.
ments of the Government of India a.nd it was directed
that this should be noted "for future guidance". On
October 19, 1948, the Ministry of Railways issued a
notification for dealing with cases of retirement of
ministerial servants governed by Rule 2046(2)(a)
(which corresponded to fundamental rule 56(b)(i)) in
the manner as directed by the Government of India's
notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it
had been decided not to take any action in respect of
ministerial servants who had already been retired.
Again, in a notification dated April 15, 1952, the Rail.
way Board communicated a decision that "such of the
ministerial servants who had been retired after 8th
September, 1948, but before attaining the age of 60
years without complying with Art. 311 (2) of the Con.
stitution should be taken back to duty" under certain
conditions.
The appellant's contention is that the denial of this
advantage given to other ministerial servants falling
within rule 2046(2)(a) who had been retired after
September 8, 1948, is unconstitutional. We do not
think that this contention has any substance. What
happened was that on September 8, 1948, the Govern.
ment took a decision that ministerial servants should
,
382
SUPREME COURT REPORTS
[1962J
'961
not be retired under the rule in question on attainK .1 -
Ch
ment of 55 years of age if they were efficient without
"' "'"v.· andra giving them an opportunity of showing cause against
Union of India the action and accordingly from that date it changed
its procedure as regards the exercise of the option to
Da; Gupta J. retire servants between the age of 55 and 60.
The
decision that nothing should be done as regards those
who had already retired on that date cannot be said
to have been arbitrarily made. The formation of a
different class of those who retired after September 8,
1948, from those who had retired before that date on
which the decision was taken is a reasonable classification and does not offend Art. 14 of the Constitution.
This contention is therefore also rejected.
The High Court was therefore right, in our opinion,
in holding that there was a reasonable classification of
the ministerial servants who had been retired under
Rule 2046 (2) (a) on attaining the age of 55 into two
classes: 1one class consisting of those who had been
retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948.
There is, therefore, no denial of equal protection of
laws guaranteed by Art. 14 of the Constitution.
In the result, the appeal fails and is dismissed.
There will be no order as to costs, as the appellant is
a pauper. We make no order under Order XIV, rule 9
of the Supreme Court Rules.
Appeal dismissed.
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