DWARKA PRASAD, J. - (1.) THIS writ petition has been referred to a larger Bench for decision, as the Division Bench before which it was placed for hearing thought that the points involved in this case ought to be decided by a Larger Bench.
(2.) THE facts which have given rise to this writ petition may be briefly stated. THE petitioner was appointed as a Munsif Magistrate in the former State of Bikaner on September 9, 1937. THE date of birth of the petitioner, as entered in the civil list of the former State of Bikaner, is August 30, 1911. THE petitioner was promoted in due course of time as a District Judge in the former State of Bikaner and was confirmed as such by the notification of the then Bikaner High Court dated July 2, 1947 with effect from February 13, 1947. THEreafter, the princely States of Rajasthan, including the former State of Bikaner, joined together to form the United State of Rajasthan, which came in to being on April 7, 1949. THE petitioner, thereafter, came to be posted as Senior Civil Judge and Additional Sessions Judge at Jhunjhunu on ad-hoc basis in the newly formed State of Rajasthan, with effect from July 1, 1950. THE officers belonging to the judicial services of the various covenanting States were integrated to form 'the Rajasthan Judicial Service' and substantive appointments to the aforesaid service were made by the Government of Rajasthan by the notification dated April 23, 1951. THE petitioner was placed in group 'c', relat-ing to Civil Judges and Munsifs, at Serial No. 18, in the integrated set up, by the aforesaid order of the State Government dated April 23, 1951. The petitioner filed a writ petition in this court which was allowed by the order of this Court dated September 5, 1955 (1) and the appointments made in the integrated set up of the judicial service, as notified by the State Govern-ment on April 23, 1951, were set aside and the State Government was directed to provide suitable machinery for making first recruitment to the Rajasthan Judicial Service, in accordance with the provisions of the Constitution and to treat the appointments and postings made so far as having been made on ad-hoc basis. The petitioner then preferred an appeal before the Supreme Court of India against the aforesaid order passed by this court, but his appeal was dismissed on November 28, 1957 (2 ). It was observed by their Lordships of the Supreme Court that when one State is absorbed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter, those who elect to serve in the new State and are continued in service, do so on such terms and conditions, as the new State may choose to impose. Their Lordships held that Article XVI (1) of the Covenant signed by the High Contracting Parties, at the time of the integration of the former State of Bikaner into the new State of Rajasthan, indicates that the old contracts of service terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined and the only guarantee which the employees of the old State were afforded by the aforesaid provision of the covenant was that the conditions of their empolyment under the new State would not be less advantageous than those on which the said persons were serving on November 1, 1948, but there was no further guarantee that the new conditions of service would be the same or better. It was also held by their Lordships of the Supreme Court in the aforesaid case that there was no question of reduction in rank and Article 311 of the Constitution was not attracted if the petitioner was not posted as a District and Sessions Judge in the new set up, as all the postings made in the new State were purely transiotional and temporary, having been made on ad-hoc basis. The integration of employees of the various covenanting States necessarily involved a reorganisation of the service of the several integrating States and it was not incumbent upon the new State to post the petitioner necessarily as a District and Sessions Judge in the new set up. The guarantee contained in Article XVI (l) of the covenant only contained an assurance that the pay and emoluments of the petitioner, as also his grade and earned increments and other conditions of service, would not be worse than that which were applicable to the petitioner while he was in the service of the former State of Bikaner. After the judgment of this court in the petitioner's writ petition was delivered on September 5, 1955, the Government of Rajasthan, in compliance with the directions of this Court, reframed the rules and made fresh appointments in accordance with them. The petitioner was eventually selected in the Rajasthan Judicial Service and he was appointed as a Civil Judge with effect from August 28, 1956. These facts were brought to the notice of their Lordships of the Supreme Court at the time of hearing of the petitioner's appeal before them and it was held by their Lordships that the appointment of the petitioner as a Civil Judge with effect from August 28, 1956 under the newly framed Rules should be regarded as his first substantive appointment in the new State of Rajasthan and that the guarantee contained in Article XVI (l) of the Covenant was amply fulfilled and there was no question of any reduction in rank, so far as the petitioner was concerned. The case set up by the petitioner now is that he did not opt to be governed by the Rajasthan Service Rules, which came into force with effect from April 1, 1951, after his appointment in the integrated set up in the new State of Rajasthan as a Civil Judge with effect from August 28, 1956. According to the petitioner, he opted to retire under the rules of the former State of Bikaner and that after the rejection of his appeal by their Lordships of the Supreme Court, he again sought retirement in December 1957 and applied for leave preparatory to retirement under the Bikaner State Service Rules, but the same was refused. However, these allegations have been controverted by the respondent State of Rajasthan in its reply and it has been asserted that the petitioner did not opt to be governed by the Bikaner State Service Rules nor he could have opted for them after the time specified in the proviso to Rule 2 (ii) of the Rajasthan Service Rules, 1951 (hereinafter referred to as "the Rules" ). The petitioner worked as Senior Civil Judge and Additional Sessions Judge in the integrated set up of the State of Rajasthan and, thereafter, as District & Sessions Judge. According to the petitioner, under Rule 41 of the Government of Bikaner Pension and Gratuity Rules, issued by the Finance Department of the then Government of Bikaner, the age of retirement of a government servant in the erstwhile State of Bikaner was 58 years. In the United State of Rajasthan after the integration of the various covenanting States, the age of superannuation was 55 years, but it was raised from 55 to 58 years from December 1, 1962 by introducing an amendment in Rule 56 of the Rules. But again rule 56 of the Rules was amended by a notification dated June 13, 1967 published in the Rajasthan Gazette (Extraordinary) dated June 14, 1967 by which the age of superannuation was reduced from 58 to 55 years, which became effective from July 1, 1967. The petitioner, having attained the age of 55 years on August 30, 1966, was made to retire from the service of the State of Rajasthan with effect from July 1, 1967, as his case was covered by the proviso to clause (a) of Rule 56 of the Rules.
(3.) THE petitioner's contention is two fold. In the first place, it was contended by him that having opted to be governed by the rules of the former State of Bikaner, he had a right to continue in the service until he attained the age of 58 years and could not be made to retire earlier thereto. In the second place the petitioner contended that the reduction in age of superannuation by amendment of Rule 56 of the Rules could not have affected him as the said amendment was brought about without consultation with the High Court. Both these contentions are contested by the respondents and their case is that the petitioner was rightly retired on attaining the age of 55 years, in accordance with the provisions of rule 56 of the Rules, as amended by the notification dated June 13,1967 and that the amended rule 56, which was also operative before December 1, 1962 and according to which the date of retirement of a government servant is the date on which he attains the age of 55 years was effective, so far as the petitioner was concerned, as neither the amendment made on December 1, 1962 nor subsequent amendment made by the notification dated June 13, 1967 were made in consultation with the High Court, and further that the fixation of the age of superannuation and compulsory retirement is not a matter which is governed by the provisions of Article 235 of the Constitution. The petitioner in support of his first contention argued that rule 41 of the Bikaner State Pension and Gratuity Rules was applicable to him and as such he could not have been retired before attaining the age of 58 years and in support thereof he placed reliance upon the decision of their Lordships of the Supreme Court in Bholanath J. Thaker vs. The State of Saurashtra (3 ). The petitioner in that case was an employee of the former State of Wadhwan, whose ruler by Section 5 of Dhara No. 29 of St. 2004 enacted that the age of superannuation of Civil servants of that State would be 60 years. After the merger of Wadhwan State with other States of Kathiawad to from the United State of Saurashtra, it was argued that the petitioner was entitled to remain in service of the Saurashtra State upto the age of 60 years because of a similar provision contained in the covenant. It was held, in that case, by their Lordships of the Supreme Court that the obligation of the Ruler of Wadhwan State passed on to the Saurashtra State and the new State could not dispense with the services or compulsorily retire the employee before he attained 60 years of age, as all the ex-isting laws of the Wadhwan State were continued even after the formation of the new State of Saurashtra, until repealed. However, it was observed by their Lord-ships of the Supreme Court in that case that the rights of the employee were carried over after the coming into force of the Constitution, when the Indian Republic was formed, with the difference that the employee became an Indian citizen and that the only way to defeat his rights was legislation, if that could be done under the Constitution. In Bholanath's case, their Lordships specifically noted that there was no subsequent legislation on the subject enacted by the Saurashtra State and in such circumstances the rights of the employee continued to be governed by the service conditions of the former State of Wadhwan and his original contract of service. Thus, their Lordships of the Supreme Court held in that case that the rules as regards the age of superannuation, which prevailed in the covenanting State of Wadhwan, continued to govern the service conditions of those government servants, who were earlier employees of the government of that State and were absorbed on account of integration in the service of the state of Saurashtra, because there was no legislation on the subject enacted by the new State. After the aforesaid decision was delivered by their Lordships of the Supreme Court, the State of Saurashtra made the Saurashtra Covenanting State Services (Superannuation Age) Rules, 1955, which provided that a government servant shall, unless for special reasons otherwise directed by Government, retire from Government service on his completing 55 years of age. Later on the Sauashtra State merged, as a result of reorganisation of States, into the bigger State of Bombay and the Bombay Civil Service Rules were made applicable to Saurashtra area as well. These subsequent events have been noticed by their Lordships of the Supreme Court in their decision in Takhetray Shivdattray Mankad vs. State of Gujrat (4 ). ;