B.D. Singh, J. - (1.) This application, by Madan Mohan Kundu under Articles 226 and 227 of the Constitution of India, is directed against the order contained in a letter dated 18-12-1975 (Annexure 1) passed by the Divisional Personnel Officer, North Eastern Railway, Sonepur addressed to the Station Master, Mahendrughat, directing him that since the petitioner was was going to attain the age of 58 years on 31-5-1976, he should not be allowed to work from 1st June, 1976, and from the morning of that date (1-6-76) he must be made to retire from service. In the application the petitioner has, therefore, prayed for quashing of the order contained in Annexure '1'and for a direction to the respondents not to give effect to the said order.
(2.) Originally, the petitioner had impleaded only respondent No. 1. When this case was taken up for hearing on 13-5-77. the Union of India through the General Manager, N.E. Railway, was ordered by this Court to be impleated as respondent No. 2, and, accordingly, it was so brought on the record.
(3.) In order to appreciate the points involved in this application it well be necessary to state some material facts. As stated by the petitioner, in his application, he was appointed on 26-9-1937 as an Assistant Booking Clerk at Mansi, B.N.W. Railway (hereinafter referred to as 'the said Railway,) on probation for six months on a permanent post created in connection with the implementation of 8 hours duty in the said Railway, and on completion of that period he was confirmed on the said post. At the time of appointment the petitioner give his date of birth as 1-6-1918, which was accepted by the Administration of the said Railway. Unlike most of the Company owned Railways, which were taken over in 1937-38 under the Government of India Act, 1935, the said Railway was not taken over by the Government of India until 1-1-1943. According to the petitioner, at the time of his appointment, neither the Indian Railways Establishment Code nor the Fundamental Rules was applicable to the employees of the said Railway. Further, there was no rule for 'lien' nor any specific provision for confirmation, as the confirmation was automatic at the end of the term of probation. By the nature of the post and category of service held by the petitioner, he is a ministerial staff of the Railway, who entered in the service of the Company Railway before 31-3-1938 in a permanent post and had been continuously holding such post since then and by dint of his merit and virtue of seniority he was appointed as Chief Booking Clerk on substantive basis which post he holds even today at Mahendrughat in N. E. Railway under the Indian Railways. According to the petitioner,therefore, he is entitled to be retained in service till he attains the age of 60 years. Notwithstanding this, respondent No. 1, under the said letter (Annexure 1) has directed the Station Master, Mahendrughat, to retire the petitioner from the forenoon of 1-6-76, on his attaining the age of 58 years.;