V.D. Bhargava, J. - (1.) This is an appeal filed by the defendant Union of India, in suit brought by Kailash Chandra respondent who was a clerk formerly in the old Oudh and Rohilkhand Railway Accounts Office having been employed on 3-5-1912. After the amalgamation of the O. and R. Raillway with the East Indian Railway, he was confirmed sometime in 1913. In 1948 he was working as a sub-head in the Divisional Accounts Office of the East Indian Railway at Lucknow and according to the plaintiff he was com-pulsorily made to retire on 30-6-1948 after attaining the age of 55.
(2.) The contention of the plaintiff is that according to Fundamental Rule 56 equivalent to Rule 2046 of the Indian Railway Establishment Code, he should not have been made to retire compulsorily at the age of 55 but he was entitled to remain in service till the age of 60 and if he was made to retire compulsorily that order amounted to an order of removal and was passed in breach of the provisions of Section 240, Clause (3) of the Government of India Act, 1935, and Article 311 (2) of the Constitution of India. Reliance was placed by the plaintiff on the Railway Board's letter No. E-62-R. T. 1/2, dated 28-3-1952, which recognised that the retirement of ministerial servants of the railway before attaining the age of 60 was illegal and those persons who had retired at the age of 55 after 8-9-1948, were given a right to be taken back. It was contended in the plaint that there was no justification for confining the operation of that order to those who were retired after 8th September, 1948. The Order of retirement, therefore, according to the plaintiff was ultra vires, illegal and inoperative in the eye of law and thei plaintiff continued in service from 30-6-1948, when he retired till the date of the suit. The cause of action alleged to be was the fetter of the Chief Accounts Officer dated 8-1-1952, refusing to re-instate the plaintiff. The plaintiff claimed a sum of Rs. 14,777/6/- as his pay in addition to a declaration that the order of his compulsory retirement dated the 30th June, 1948 was illegal, ulltra vires, void and inoperative and as such the plaintiff continued in service in spite of the said order. The plaintiff had served a notice on the respondent on 9-5-1952 in accordance with Section 80 of the Code of Civil Procedure.
(3.) The defence, inter alia, of the respondent was that the Fundamental Rules did not apply to the plaintiff and that the plaintiff had been retired correctly at the age of 55, and further that the suit was barred by limitation.;