DAVE, Actg. C. J - (1.) THIS is a writ application by Ram Swaroop Sharma under Art. 226 of the Constitution of India.
(2.) IT is stated by him that he was appointed as an Accountant in the Municipal Committee on 3rd December, 1931. He discharged his duties efficiently and in appreciation thereof he was selected for the higher post of Octroi-Superintendent by the Municipal Committee, Ajmer, on 18th January, 1941. He took charge of that office from 1st April, 1941 and performed his duties creditably. On 2nd January, 1948, he was appointed temporarily as Deputy Rationing Officer, Ajmer, by the Chief Commissioner of Ajmer. He worked in that capacity for about 15 months. Thereafter his services were not spared by the Municipal Committee and, therefore, he had to resume his substantive post as a Tax Superintendent. The petitioner proceeds to say that he had a spotless career throughout his service, his work was very efficient and well-spoken by all the officers and yet the President, Municipal Council, Ajmer, respondent No. 2, informed him by his letter No. Acctt/336 dated 10th March, 59 that the petitioner would be attaining the age of 55 years on 15th October, 1960 and was, therefore, required to hand over the charge of his office on that date (15th October, 1960 ). IT is this order which is sought to be impugned by the petitioner by this writ application. His main contention is that he had a right to continue in service till the completion of the age of 60 years according to the municipal law and that the President had committed a breach of law in retiring him on attaining the age of 55 years. In order to support the above contention, learned counsel for the petitioner has, in the first instance, referred to Notification dated 14th January, 1933, issued by the Chief Commissioner, Ajmer, under sec. 247 of the Ajmer-Merwara Municipalities Regulation, 1925. He has further drawn the attention of the Court to Rule 11 which appeared under the heading 'retention of Municipal Employees' and ran as follows: - "11. No municipal employee shall be retained in the service of the municipal committee after he attains the age of 65 years except for special reasons to be recorded by the committee in a resolution, and no extension of service for more than one year at a time shall be allowed in the case of any employee whose age is 60 years or over" This rule was substituted by the Chief Commissioner's Notification No. CG/32/d dated 24th February, 1934. The amended rule ran as follows: - "11. A municipal servant is required to retire on attaining the age of 55 years. He may be retained in service after that age with the sanction of the Municipal Committee, if, for reasons which must be recorded in writing, it is clearly in the interest of his employer that his services should be so retained. But he must not be retained after the age of 60 years, and no extension of service for more than one year at a time shall be allowed beyond the age of 55 years. " A bare perusal of the rule reproduced above, as it stood on 14th January, 1933, would show that it did not confer upon any municipal employee a right to be retained in service upto a particular age. The rule, as drafted, was in the nature of injunction or direction to those who were responsible for keeping the employee in service. It enjoined upon the Municipal Council that no municipal employee will be kept in service after he attained the age of 65 years and if, in any case, the Municipal Council were to retain the services of an employee after the age of 65 years, it would be required to record its reasons in a resolution. It was further enjoined upon the municipality that no extension of services for more than one year at a time would, in any case, be allowed to any employee after he had already attained the age of 60 years. Under this rule, it was open to the Municipal Council to retain the services of the petitioner till he attained the age of 60 years, but it did not confer upon him any right to continue in service if the Municipal Council did not so desire. A perusal of the amended rule would then show that, according to it, a municipal servant Was ordinarily required to retire on attaining the age of 55 years. He could be retained in service after attaining the age of 55 years with the sanction of the Municipal Committee, but, in that case, it was required that reasons for retention would be recorded in writing and it would also have to be shown clearly that it was in the interest of the employer to retain him in service. This makes it abundantly clear that the rule did not confer upon the employee any right to be retained in service after attaining the age of 55 years. This is further obvious from the next clause which laid down that the employee would not be retained in service for more than one year at a time and the extension would be allowed beyond the age of 55 years. The present application could not thus be maintained on the basis of these two rules. Learned counsel for the petitioner has next proceeded to argue that, according to the Municipal Account Code 1937 corrected upto 31st December, 1951, the Government Fundamental Rules and Supplementary Rules were made applicable to all municipal servants in the matter of retirement. He has referred to Rule 56 of the Fundamental Rules, which runs as follows : - "56. (a) Except as otherwise provided in the other Glauses of this Rule the date of compulsory retirement of a Government servant, other than ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compel-sory retirement with the sanction of the Local Government, on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances;. (b) (1) Administerial servant (who is not governed by sub-clause (11) may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, upto the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the Local Government. (II) Administerial servant (1) who enters Government service on or after April 1938, or (2) who being in Government service on the 31st March, 1938 did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be recorded in writing and with the sanction of the Local Government and he must not be retained after the age of 60 years except in very special circumstances. A perusal of clause (a) of this rule would show that except as otherwise provided in the other clauses, the date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. It is conceded by learned counsel that if the petitioner's case is covered by clause (a), it could not be urged with any justification that his client was wrongly retired on attaining the age of 55 years. It is however, urged that his client's case is covered by clause (b) (1 ). A mere glance at clause (b) (1) would show that its provision would be attracted only if the petitioner comes Within the ambit of the definition of the 'ministerial servant' who is not governed by sub-clause (11 ). Learned counsel does not rely upon sub-clause (II) and, therefore, the short question for determination is whether the petitioner was a ministerial servant} when he was made to retire. Learned counsel for the respondents has strenuously urged that the petitioner was a member of a superior service and he has given in detail the duties which the petitioner was required to perform as Tax Superintendent. It is not necessary to burden the judgment by reproducing here, all those details which are contained in three foolscape pages. It would suffice to say that, according to the non petitioners, a Tax Superintendent was required to control the tax department of the Municipal Council, Ajmer. He had under him two Head Clerks, one Encroachment Overseer, three House Tax Inspectors, one Rent Collector, four Teh Bazari Moharrirs and Thela Moharrirs for out-door work and eleven other clerks. The annual collections for which he was responsible ran to the extent of rupees eight lakhs. This statement is supported by an affidavit given by the Commissioner, Municipal Council, Ajmer. The non-petitioners have also produced a copy of the petitioner's application dated 15th December, 1954 to show that as early as nine years ago, the petitioner had himself made a representation to the effect that the conveyance allowance of Rs. 35/-, which was sanctioned for him, was not enough and that even an allowance of Rs. 60/- would not suffice for maintaining a private tonga. On this application, the administrator was pleased to order on 6th January, 1955 that the petitioner could be given conveyance allowance of Rs. 75/- or Rs. 60/- per month if he could maintain a car or tonga respectively of his own. We have also been referred to an extract from the Report of the Re-organisation Special Sub-Committee, 1949, to the effect that as the Tax Department would become a separate unit, it would be necessary for the Tax-Superintendent to do out-door work for which a tonga allowance of Rs. 60/- per month be sanctioned. On the basis of these documents, it is urged by learned counsel for the non-petitioner that the petitioner was not performing clerical duties and, therefore, he could not come within the definition of a ministerial servant. The term 'ministerial servant' is defined by Fundamental Rule 9, clause (17) as below - "ministerial servant means a Government Servant of a subordinate service whose duties are entirely clerical, and any other class of servant specially defined as such by general or special order of a local Government. " Learned counsel for the petitioner has not been able to refer to any general or special order of the local Government to show if the petitioner was included in the list of the persons defined as ministerial servants. The question which therefore remains for determination is whether the duties performed by the petitioner were entirely clerical. It may be observed that this is not a pure question of law, but a mixed question of law and fact and it will have to be determined having regard to the facts and circumstances of each case whether a particular employee would come within the ambit of this definition.
(3.) HAVING gone through the statements and affidavits of both the petitioner and the non-petitioner, we are clearly of opinion that the petitioner does not come within the definition of ministerial servant and it is very unfortunate that simply in order to gain his point, he has tried to reduce the status of a Tax Superintendent to that of a ministerial servant. The very fact that he himself made a representation to the Municipal Council that he had to do even out-door work and that his allowance should be raised from Rs. 35/- per month and the further fact that his allowance was actually raised to Rs. 60/- per month, leave no room for any doubt that the petitioner had to do out-door duties besides office work. Even in the office, his duty was more to control and see that the taxes were properly collected. He was an officer of the superior class with a number of other employees under him and it is wrong on his part to aver that he was ministerial servant. The provisions of Fundamental Rule 56 (b) (1) are, therefore, not available to the petitioner. There is thus no force in the writ application and it is hereby dismissed with costs. .;