SACHAR, J - (1.) THIS writ petition will also dispose of the connected writ petitions as it is common case between the counsel of the parties that the points raised are common and the decision in this writ petition will govern the others also.
(2.) ALL the petitioners are at present working in the Indian Audit and Accounts Department. They challenge the action of the respondent retiring them on reaching the age of 58 and maintain that the are entitled to continue upto 60 years as they are ministerial Government servants who entered Government service before 31. 3. 1938 in terms of Fundamental Rule 56 (c ). The Department however maintains that they are liable to retire on attaining the age of 58 years in terms of Fundamental Rule 56 (a ). It is this dispute which is common in all these cases, and calls for decision. On 5. 6. 1937 the petitioner was appointed as a Bank Audit Clerk in the State Bank of Dholpur. He was subsequently appointed permanently as a Clerk Education in Maharaja's High School, Dholpur on 25. 10. 1937. The petitioner worked in various capacities and with effect from 1. 9. 48 his services were transferred in a substantive capacity in Matsya Union on the post of Senior Auditor. On 7-4 1949 various princely States came to be integrated in Rajasthan State. The Accountant General's Office in the various States also were integrated and the Department of Accountant General was taken over by the new State of Rajasthan. After the coming into force of the Constitution and financial integration of the States the Comptroller and Auditor General of India assumed the functions of Audit and Accounts of the various States including that of Rajasthan with effect from 1-4-50 in the same way under which he was performing the various duties and exercising the various powers in relation to the Accounts of the Part A State. The President of India in exercise of powers conferred upon him by the provisions of Article 309 and Clause 5 of the Art. 148 of the constitution after consula-tion with the Auditor General of India in respect of persons taken over in Indian and Audit Departments made the rules calleda the Central Civil Services (Part 'b' States Transferred employees) Rules, 1953 (hereinafter to be called the 1953 Rules') which came into force in the case of transferred employees like the petitioners with effect from 1-4-50. Rule 2 (c) (ii) of 1953 rules defines State rules to mean the rule and order relating to the conditions of service of Government employees is force in the case of any other State immediately before 1. 4. 50 and includes any such rules or orders approved by the Government in respect of any such employees subsequent to that date. Rule 6 of the 1953 Rules provides that a transferred employee shall on absorption in a Department under the Government elect on or before the date to be specified in this behalf by the Government to be governed by the State Rules or Central Rules. The election shall be for the State Rules or the Central Rules as a whole and not in part or parts thereof. Rule 9 (i) provided that a transferred employee who elects the Central Rules shall be subject to the Revised Leave Rules, 1933 as amended from time to time. Rule 9 (2) reads as under: - ''r. 9 (2) A transferred employee who elects Central Rules or who opts for the revised scale of pay under sub-rule (1) of rule 8-A shall be subject to the Revised Pension Rules as applicable to post 1938 entrants as amended from time to time and all the permanent or temporary service rendered by him under State Government prior to absorbtion shall be treated as permanent and temporary service rendered under Government. Provident Provided that a transferred empolyee who was subscribing to a Contributory Provident Fund shall be brought on to pensionable service under Government and thereafter he shall not be allowed to subscribe to the Contributory Fund. The Government may issue orders regarding the extent to which past service shall count towards pension. " Explanation to rule 2 reads as under: - "for the purposes of this sub-rule, the expression all the permanent or temporary service rendered by him under the State Government prior to absorption" shall mean the total length of service, whether permanent or temporary, rendered by a transferred employee in any Acceding State, a Union of States and a Part B State prior to the date of such absorption. " Rule 9 (4) stated that for the purpose of determining the age of retirement for ministerial Government servants, the provisions of Fundamental Rule 56 (b) (ii) shall apply. It is common case that all the petitioners in these writ petitions had opted for Central Rules and would be governed by Rule 9 (1) and 9 (4) of the 1953 Rules. Fundamental Rule 56 (b) (i) and 56 (b) (ii) at that time read as under : - '56 (b) (i) A ministerial servant who is not governed by sub-clause (ii may be required to retire at the age of 56 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. " "56 (b) (ii ). A ministerial servant (1) who enters Government service on or after the 1st 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 he must not be retained after the age of 60 years except in very special circumstances. "
(3.) THESE Fundamental Rules were however amended in 1965 and subsequent to that the Rules at present read as under: - "f. R. 56 (a) except as otherwise provided in this rule, every Government servant shall retire on the day he attains the age of fifty-eight years. (b) A workman who is governed by these rules shall be retained in service till the day he attains the age of sixty years. (c) A ministerial Government servant who entered Government service on or before the 31st March, 1938, and held on that date - (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity under Cl. (d) of Rule 14 and continued to hold the same without interruption until he was confirmed in that post, shall be retained in service till the day he attains the age of sixty years. Note : For the purpose of this clause, the expression "government service" includes service rendered in a former provincial Government. " The petitioner whose date of birth is 14-1-1914 represented to the respondents maintaining that he was governed by the Fundamental Rule 56 (c) and therefore was entitled to be retained in service till he attains the age of 60 years. The respondents however informed him that his case was governed by Fundamental Rule 56 (a) and therefore he would reach the age of superannuation at 58 years age and not 60. This is the common grievance which has led the petitioner and others to come to this Court. The petitioners maintain that they were holding permanent posts prior to 31-3-1938 in princely States and that they are ministerial Government servants. In reply no serious effort has been made to controvert this. One must therefore proceed on the basis that the petitioners were holding permanent posts prior to March 31, 1938 in the princely States. One must also accept that the petitioners are ministerial Government servants. The question however still remains whether even if the petitioners are ministerial Government servants and held permanent posts prior to March 31, 1938 in princely States they are entitled to the benefit of Fundamental Rule 56 (c) as claimed by them or are liable to retire on reaching the age of superannuation 58 years as claimed by the respondents. A reference to rule 9 (4) of the 1953 Rules shows that for the purpose of determining the age of retirement for ministerial Government servants like the petitioner the provisions of then Fundamental Rule 56 (b) (ii) were to apply. Now F. R. 56 (b) (ii) at that relevant time referred to a ministerial servant who entered Govern-meat service on or after 1-4-38 and who was ordinarily required to retire at the age of 55 years (later on raised to 58 ). It is important to note that at the relevant time FR 56 (b) (i) stated that a ministerial servant who is not governed by sub-clause (ii) may be required to be retired at the age of 55 but should ordinarily be retained in service if he continues efficient upto the age of 60. There was thus a sharp and clear categorisation between ministerial servants who hold a permanent post in Government service prior to 1-4-38 [who were governed by F. R. 56 (b) (i)] and those who entered Government service on or after 1-4-1938 [who were governed by F. R. 56 (b) (ii)]. Union of India which because of financial integration as taking over the employees like the petitioner who had worked in the erstwhile princely States and later on in the covenanting States was necessarily required to determine the status of all these employees. By rule 9 (4) of 1953 rules it gave a general declaration that for the purpose of determining the age of retirement of all these transferred employees they shall be governed by F. R. 56 (b) (ii ). This obviously meant that they shall be treated to have entered Government service on or after 1 4 38. When the Fundamental Rules were amended it Sxed the superannuation age of all Government servants at 58 years excepting as otherwise provided in the said Rules. Amended Fundamental Rule 56 now specifically mentions only one category of ministerial Government servants i. e. those who entered Government service on or before 31. 3. 38 and held on that date a lien or suspended lien on a permanent post and says that they shall be retained in service till the day they attain the age of 60 years. There is in the new Fundamental Rule 56 no provision specifically for ministerial Government servants who entered Government service on or after 1. 4. 38 and who were included in old F. R. 56 (b) (ii ). They would necessarily therefore be governed by the general provisions of new Fundamental Rule 56 (a) which provides for the age of retirement to be 58 years. Mr. Mridul however contended that as old Fundamental Rule 56 (b) (ii) had been repealed the petitioner cannot be continued to be governed by the repealed provision and must necessarily have his case fitted in the new F. R. 56 and maintains that the equivalent of old F. R. 56 (b) (ii) in now F. R. 56 (c ). Evidently as old F. R. 56 (b) (ii) has been repealed, the case of the petitioner will have to be fitted in the newly amended F. R. 56. By virtue of section 8 of the General Clauses Act which provides that where any Central Act or regulation repeals or re-enacts with or without modification any provision of a former enactment then reference to any other enactment or in any instrument to the provision so repealed shall unless a different intention appears be construed as reference to the provision so re-enacted. As there is a mention of old F. R. 56 (b) (ii) in the 1953 Rules the re-enacted Fundamental Rule has to be fitted in 1953 Rules. Mr Mridul contends that it is new F. R. 56 (c) which has to be read in place of old F. R. 56 (b) (ii) in 1953 Rules. This argument however ignores the fact that new Fundamental Rule 56 (c) can only apply to a minis-terial Government servant who entered Government service on or before 31. 3. 38. Thus excepting for that limited category of ministerial Government servants all other ministerial Government servants are included in the general provision of new F. R. 56 (a ). It is here that the urgency and significance of rule 9 (4) of the 1953 Rules becomes important in relation to the case of the petitioner. This is because by FR 9 (4) the status of the petitioner was determined as far back as 1-4-50 namely that he was to be treated as a ministerial Government servant who entered Government service on or after 1. 4. 38 Mr. Mridul however contends that as old F. R. 56 (b) (ii) is no longer existing petitioner cannot be governed by the declaration made in Rule 9 (4) of 1953 Rules. I cannot agree. To take an illustration if assuming old Fundamental Rule 56 had not been amended in 1963. and had continued, it is clear that in terms of rule 9 (4) the petitioner's case will have to be governed by Fundamental Rule 56 (b) (ii) and he would have retired at the age of 55 [which was then provided and which has now been raised to 58 years in terms of new F. R. 56 (a)]. In that case the petitioner's case would obviously have to be considered by treating him a ministerial servant who entered Government service on or after 1. 4. 38. I do not see how it is possible to urge that by the mere amendment of F. R. 56 the declaration which was made by Rule 9 (4) of 1953 Rules by the Government when the petitioner was integrated in the Indian Audit and Accounts service has ceased to apply. This is because at the time when the petitioner was integrated in service there was a well known division between the ministerial servants who had entered Government service prior to 1-4-38 and those on or after 1-4-38. The Government was obviously faced with a situation in which it could either decide in each particular case whether the employee which it was taking over was ministerial servant and was holding a permanent post and had entered Government service on or prior to 1-4-38. Government however took a general policy decision that all the ministerial servants like the petitioner whom it was taking over will be deemed to have entered Government service on or after 1. 4. 38. Thus rule 9 (4) of 1953 Rules was in fact a decision taken by the Central Government with regard to each individual employee though couched in a general policy decision by virtue of 1953 Rules. Another indication of the status of the petitioner is furnished by new F. R. 9 (2) which provided that a transferred employee who elects the central rules will be subject to Revised pension rules as applicable to post 1938 entrants, thus clearly declaring that persons like the petitioner are to be treated as having entered government service on or after 1. 4. 38. The petitioner's status therefore became solidified by virtue of rule 9 (2) and rule 9 (4) of 1953 Rules and he could not thereafter claim that he should be treated to be a ministerial servant who had entered Government service prior to 1-4-38 If that be so, as I do hold, then the only clause of new Fundamental Rule which is applicable to the petitioner would be new F. R. 56 (a) because F. R. 56 (c) could only apply if he could be treated to be a ministerial Government servant who entered Government service on or before 31-3-38 But this cannot be done because by the declaration of rule 9 (a) of the 1953 Rules he is to be treated as a ministerial servant who entered Government service on or after 1. 4. 38. And in that eventuality his case is governed only by F. R 56 (a) and not under new after F. R. 6 (c) Similar view as I am taking was also taken in a Division Bench judgment of Andhra Pradesh High Court in Writ Appeal No 316 of 196*9 and others decided or 4. 12. 70, Post Master General Andhra Pradesh Circle, Hyderabad-1 vs. Mohd. Abdul Hmid Khan and also in Sham Lal vs. Union of India. ;