KAROO Vs. ASSISTANT ENGINEER, EASTERN RAILWAY AND ANOTHER

JUDGEMENT

(1.) The petitioner who is employed as a peon under the Union of India, respondent No. 2, in the Eastern Railway and at present posted at Dinapur, by this writ application under Articles 226 and 227 of the Constitution of India prays for quashing the order contained in Annexures '1' and '2' as unconstitutional and to declare Rule 2046 of the Indian Railway Establishment Code as ultra vires the Constitution. By Annexure '1' which is a letter dated 12th of July, 1971, from the Assistant Engineer, Eastern Railway, Dinapur, respondent No. 1, to the petitioner he was told that he was going to attain the age of 58 years on 8th of January, 1972. He was further told of the leave due to him and to deposit railway properties which were in his possession before going on leave preparatory to retirement. Annexure '2' is another letter of the same nature dated 12th of August, 1972, which was sent to the petitioner by the P. Way Inspector, Eastern Railway, Dinapur. In the writ application the petitioner further prays that it be declared that the petitioner's service will continue till 8th of January, 1974. Admittedly the petitioner was born on 19th of January, 1914. He joined railway service as a "boy" in the then East India Railway Company on the 9th of January, 1928. Thereafter he worked as a peon in the office and still working as such. His case is that he has always worked efficiently without any break in the service and he having entered the service before the 31st of March, 1938, was entitled to be retained in service till the date he completed the age of 60 years.

(2.) A counter-affidavit has been filed on behalf of the respondents. It has been stated, inter alia, therein that the petitioner was made to retire from service with effect from 9th of January, 1972, on attaining 58 years of age, the age of superannuation and that under the service conditions he was not to work until he completes the age of 60 years. A supplementary counter-affidavit has also been filed on behalf of the respondents stating, inter alia, that the petitioner was not entitled to take advantage of Rule 2046 (e) of the Indian Railway Establishment Code, Volume II, as he was not entitled to serve up to the age of 60 years on 1st of December, 1962. It is further stated in the supplementary counter-affidavit that prior to the amendment of Rule 2046 (e), no railway servant except those who were governed by the ex-company rules or ex-State Railway rules or rules of former Provincial Governments were entitled to serve beyond the age of 55 years which was subsequently raised to 58 years. The effect of the amendment, therefore, according to the respondents, as stated in the supplementary counter-affidavit, is that except those railway servants of Class IV who were governed by the ex-company rules or ex-State Railway Rules or rules of former Provincial Governments and who were in service on 1-12-1962 and were entitled to serve in the zonal railways up to the age of 60 years and the inferior railway servants of the Railway Board who were also to retire at the age of 60 years, no other class IV staff could be retained in service beyond the age of 58 years. Reference in this connection has been made in the supplementary counter-affidavit to Railway Board's letter dated 22nd of February, 1972, Annexure 'C'.

(3.) The only question which arises for decision in the case is what is the age of superannuation for the petitioner according to the Rules. Rule 2046 (e) as it stands "at present after amendment, runs as follows: