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TMI Blog1961 (3) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 plaintiffs suit. Against this decision the plaintiff has preferred the present appeal on a certificate granted by the High Court under Art. 133(1) (c) of the Constitution. The main question therefore is whether on a proper interpretation of Rule 2046/2 (a) of the Railway Esta- blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the hight 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial 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 railway 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 appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervant who is not governed by sub-clause (b) may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years. Reading these words without the word ordinarily we find it unreasonable to think that it indicates any 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 if he continues: to be efficient. The intention of the second clause 1 therefore clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 been adopted by several High Courts in India' [Basant Kumar Pal v. The Chief Electrical Engineer A.I.R. 1954 Punj. 245. Kishan Dayal v. General Manager, Northern Railway A.I.R. 1956 Cal. 93. and Raghunath Narain Mathur v. Union of India (A.I.R. 1953 All. 352.)]. 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. It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under rule 2046(2)(a) before attaining the age of 60 after September 8, 1948, have been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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