R.S. Mongia, J. - (1.) Gobinder Singh, writ petitioner (now respondent) was appointed as Excise Moharrir on 20th August, 1937 in the erstwhile State of Patiala on a permanent basis. On the formation of erstwhile State of PEPSU, he was integrated as Head Assistant in the Income-tax Department. On 1st April, 1951, when the Income-Tax Department of the erstwhile State of PEPSU was taken over by the Central Government, the petitioner was absorbed on substantive basis as Upper Divisional Clerk in the Income-Tax Department, Government of India. The petitioner was sought to be retired on attaining the age of 58 years with effect from 1st March, 1975. Earlier he had requested for extension in service beyond 58 years upto the age 60 years. Vide order dated 19th October, 1974, his representation had been rejected informing him that he would be retired on attaining the age of 58 years and he could not continue upto the age of 60 years. Feeling aggrieved by the action of the Union of India in retiring him at the age of 58 years, Shri Gobinder Singh had filed a writ petition. The learned Single Judge allowed the writ petition holding that under Rule 56-C of the Fundamental Rules, the petitioner was entitled to demental Rules, the petitioner was entitled to continue upto the age of 60 years. Dissatisfied with the said judgment of the learned Single Judge, the Union of India, has come up in the present appeal.
(2.) The learned counsel for the appellants has submitted that in fact the age of retirement of the petitioner was 58 years; and not 60 years, as held by the learned Singe Judge. The learned counsel drew our attention to the following averments in para 7 of the written statement to the writ petition:- "Consequently, ex-Princely States' employees absorbed under the Central Government under the Federal Financial Integration Scheme who are uniformly treated as post-1938 entrant in pursuance of rule 9(4) of the Central Civil Services (Part B States Transferred Employees) Rules, 1953 have to retire from Central Government service on attaining the age of 55 years. When the age of superannuation for Central Government servants was raised from 55 to 58 years. this became the age of superannuation for the employees of ex-princely States absorbed under the Central Government under Federal Financial Integration Scheme."
(3.) Admittedly the petitioner had joined the service of the princely State of Patiala on 20.8.1937. The provisions of the aforesaid fundamental rules which applied initially to the Government servants in what was then known as British India would only apply to personnel from the former princely State to the extent to which they were made applicable under the terms and conditions offered to these employees when they were integrated in the Central Government service in due course. So far as the petitioner is concerned his final integration in the Central Government service was through an intermediary stage when from the Patiala State Government Service he was integrated in the service of the PEPSU Government. On the coming into force of the Constitution of India, the State of PEPSU became one of the part 'B' States. Unlike many other servants of the PEPSU State who were integrated in other states by the two re-organisations that took place in 1956 and 1966, the petitioner was integrated in the service of the Central Government as a result of the Federal Financial Integration of part 'B' States which is the case of the employees from PEPSU took place with effect from 13.4.1950. In order to give effect to this integration the Government of India, Ministry of Finance issued executive orders from time to time on the subject of pay, allowances, pensions etc. of the employees who were thus transferred to the Central Government service. 3A. One of these executive orders was contained in the Ministry of Finance's Memorandum No. F. 5(14)-E-III/51, dated 13.6.1951. Para 5 of this circular provided that : "The permanent staff in service on the date of Federal Financial Integration will be given the option either to elect the Central scales of pay and allowances and other conditions of service or retain the pre-absorption scale of pay and allowances and other conditions of service. Those who elect the former will be governed by the Government of India Rules and conditions of service in all matters while those who elect the latter will continue to be governed by their reabsorption rules and conditions of service. The option, which should be exercised in a clear and unambiguous manner before 31st March, 1952, once exercised will be final. Failure to exercise any option or any ambiguous exercise of option by this date in any case will be construed as an exercise of option for the central rules and conditions of service. For the purpose of these orders, the term 'Central scales of pay and allowances and conditions of service as are applicable to the post-1931 entrants to Central Government services. In regards to pension, the Revised Pension Rules promulgated in the Ministry of Finance Office memorandum No. F.3(1) Est. (Spl)/47, dated the 17th April, 1950 as amended from time to time will be applicable. Orders will be issued separately as to the manner in which past service will be reckoned for purposes of leave and pension under the new conditions of service." From the averments made above, the learned counsel wanted to raise an argument that since the petitioner had not exercised any option, it will be deemed that he was to be governed by the central rules and Conditions of Service and since according to the central rules, the employee was to retire at the age of 58 years, the petitioner was rightly retired at that age.;