JUDGMENT : G.K. Misra, C.J. - These three writ applications involve common questions of law and fact. They were heard analogously by a Bench consisting of our learned brothers, A. Misra and S.K. Ray, JJ. As there was difference of opinion between them (the point of difference need not be stated) the records were placed before the Chief Justice to refer the matter to - one or more Judges as provided under Rule 6 of Chapter XIV of the Rules of the High Court of Orissa, Vol. I. In view of the importance of the case, the matter was referred to a Full Bench. 2. Lingaraj Patnaik, Srinibas Das and,Bimal Charan Mitra were respectively born on 1-6-1913, 1-2-1912 and 1-3-1914. They were appointed as permanent probationers in the establishment of the District Judge, Cuttack, on a pay of Rs. 20/- per month on 21-2-1935, 22-8-1934, & 2-4-1935. They were confirmed as Lower Division clerks on 1-8-1938, 6-11-1937 and 19-9-1938. To avoid confusion by simultaneously dealing with all the cases, we would first take up O.J.C. No. 230 of 1969. 3. The case of the Petitioner may be stated in short. He was retired by the letter dated 19th of February, 1969 (Annexure-18)(hereinafter to be referred to as the impugned letter). It runs thus: Government of Orissa Home Department. xx xx To Sri Bimal Charan Mitra xx xx Ref: His representations dated 2-12-1968, dated 19-12-1968 and dated 20-12-1968 regarding extension of service beyond 55 years of age. He is informed that Government after careful consideration have been pleased to reject his representations referred to above. He should, therefore, retire from service on 28-2-1969 afternoon on attaining the age of 55 years according to. Rule 71(a) of the Orissa Service Code read with the Finance Department G.Os. No. 25225/F. dated 27-7-1968 and No. 31378/F. dated 6-9-1968. xx He retired on 28-2-1969. He should, therefore, retire from service on 28-2-1969 afternoon on attaining the age of 55 years according to. Rule 71(a) of the Orissa Service Code read with the Finance Department G.Os. No. 25225/F. dated 27-7-1968 and No. 31378/F. dated 6-9-1968. xx He retired on 28-2-1969. His case in that as a permanent probationer he was in Government service on the 31st of March, 1936; Rule 71(b) and not Rule 71(a) of the Orissa Service Code (hereinafter to be referred to as the Orissa Rules) governs his case; the date of compulsory retirement of a Government servant governed by Rule 71(b) is not the date on which he attains the age of 55 years; when a ministerial servant governed by Rule 71(b) reaches the age of 55 years the competent, authority would bake a decision whether to retire him at that age or to retain him beyond that age and till such a determination takes place the Government servant continues in service till he reaches the age of 60 years; the impugned letter was not the outcome of a bona fide exercise of power is based on extraneous and irrelevant grounds and is arbitrary and capricious inasmuch as Rule 71(b) and not Rule 71(a) applies. Alternatively the Petitioner's case is that even if he ill considered to be in temporary Government service on 31-3-1936, he would be governed by Rule 75(b) of the Bihar and Orissa Service Code (hereinafter to be referred to as the Bihar "Rules). Hereinafter Bihar Rule 75 and Orissa Rule 71 would be described as Rule 76 and Rule 71. 4. The gist of the case of the opposite parties is reflected in paragraph 16 of the counter affidavit, material parts of which run thus: xx xx xx On the basis of the provisions under this protection Rules, the Government servants under the Bihar and Orissa Government who were serving on permanent or temporary or affiliating basis against regular posts on 31-3-1936 and who were taken over by the and are holding ministerial posts under Government of Orissa at their age of 55 years, are being retained in service up till their age of 60 years, under the provisions of the Rule 75(b) of Bihar and Orissa Service Code read with Rule 71(b) of the Orissa Service Code and Government Order No. 25471/F. dated 30-7-1968. But as the Petitioner was a paid probationer, on 31-3-1936 he does not fulfil the conditions of a regular Government servant either in the category of a permanent or temporary or officiating ministerial Government servant and as such he is not entitled to the benefit of the Governor-general protection vis-a-vis Rule 71(b) of Orissa Service Code. xx xx xx Thus the defence is that a probationer was not in Government service on 31-3-1936 and, as such is not entitled to the benefit of Rule 71(b) or 75(b). Paragraph 16 of the counter affidavit accepts the position that ministerial servants who are governed by Rule 71(b) are being retained in service un till their age of 60 years. By necessary implication it means that if the Petitioner were a Government servant on 31.3.1936 he would be governed by Rule 71(b). It is also said that even if Rule 71(b) applies, no right can be founded upon the rule and if for some reason or other the incumbent is retired by incorrect application of Rule 71(0.) no writ lies. Annexure 14 is the letter of the Home Department to the Accountant-General, Orissa, on 6th of September, 1968 on the basis of which the impugned letter was issued. The material part of this letter may be extracted: As the paid probationers were not Government employees either temporary or permanent and they were in nature of apprentices receiving a stipend, but not pay, such service tantamount to interruptions. In other words, the service which such a Government servant held on 31.3.1936 terminated on the day he became a paid probationer again. His later service commences again from the date he joins in a permanent or temporary post. Government after careful consideration, have, therefore been pleased to decide that the benefit of Rule 71(b) of Orissa Service Code is not applicable to such oases. The age of retirement of such Government servants should therefore be governed by the provisions of Rule 71(a) of Orissa Service Code. xx xx 5. On the aforesaid pleadings the following issues arise for determination: (i) Were the probationers working on 31st of March, 1936 in permanent Government service? If so, does Rule 71(b) govern their case? (ii) Are probationers in temporary Government service on 31-3-1936 governed by Rule 75(b)?' (iii) What is the age of compulsory retirement of a ministerial servant who was in permanent Government service on 31-3-1936? If so, does Rule 71(b) govern their case? (ii) Are probationers in temporary Government service on 31-3-1936 governed by Rule 75(b)?' (iii) What is the age of compulsory retirement of a ministerial servant who was in permanent Government service on 31-3-1936? Is it the date on which he attains, the age of 55 years or any date in between 55 and 60 years when be is required to retire? (iv) If the Petitioner's case is governed either by Rule 71(b) or 75(b), is the impugned letter ultra vires without jurisdiction and nullity as the Petitioner was made to retire on attainment of 55th year by the application of Rule 71(6)? (v) If the impugned letter is a nullity, is it liable to be quashed by the issuance of an appropriate writ? (vi) To what relief, if any, is the Petitioner entitled? Issue No. 1 6. The first question for consideration is whether the Petitioner was in permanent Government service on 31st of March, 1936. There is no controversy that at the time of his retirement by the impugned letter, he was a ministerial servant and that he continued to be efficient. 7. The case of the opposite parties is/that the Petitioner was a probationer as referred to in paragraph 153 of the Bihar and Orissa Board's Miscellaneous Rules, 1928 (hereinafter to be referred to as the Miscellaneous Rules) and the status of the probationers was that of apprentices or trainees on a fixed monthly allowance or stipend of Rs. 20/-. The said paragraph is Bet out hereunder: 153. Probationers may be entertained in District and Subdivisional Offices up to a number not exceeding 15 per cent of the total number of permanent ministerial employees of an office including, in the case of District Offices, the ministerial employees of the subordinate sub-divisional offices. In calculating the number of probationers thus admissible the General and Wards Departments should each be considered separately, and fraction half or more should be counted as one and less than half be neglected. These probationers are intended primarily to fill leave vacancies. A register No. "31-Admitted probationers" should be kept in each Distriot and Divisional Office. These probationers do not satisfy the definition of "Probationer" given in Rule 45 of the Bihar and Orissa Service Code. For purposes of regulating their travelling allowance during transfer, they should be treated as ordinary Government servants under the Code. A register No. "31-Admitted probationers" should be kept in each Distriot and Divisional Office. These probationers do not satisfy the definition of "Probationer" given in Rule 45 of the Bihar and Orissa Service Code. For purposes of regulating their travelling allowance during transfer, they should be treated as ordinary Government servants under the Code. "Probationer" as defined in Bihar Rule 45 corresponds to Orissa Rule 39 and runs thus: Probationer means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department. 8. The learned Government Advocate contends that as the Petitioner does not satisfy the definition of "probationer" given in Bihar Rule 45 and as by paragraph 153 of the Miscellaneous Rules probationers were to be treated as ordinary Government servants for regulating their travelling allowance during transfer, they were not Government servants in fact and as such the Petitioner was not in Government service on 31-3-1936. 9. Doubtless, the exclusion of "probationers" referred to in paragraph 153 of the Miscellaneous Rules from the definition of "probationer" in Bihar Rule 45 lends some force to the argument that the "probationers" in para 153 were not permanent. That necessitates an analysis as to what classes of employees are covered by Bihar Rule 45. An illustration would make the position clear. Suppose the total cadre of ministerial servants in a Judgeship is one hundred. - Out of this eighty have been confirmed. The residuary twenty would be working on probation against twenty permanent vacancies. Those twenty are probationers with in the meaning of Bihar Rule 45. They would cease to be probationers after confirmation. Probationers as envisaged in para 153 of the Miscellaneous Rules clearly do not belong to such a class and have been properly excluded from the operation of Bihar Rule 45 to remove confusion and doubts. The probationers referred to in para 153 would still be called "probationers" even if they are confirmed. For instance, there was budgetary provision in Cuttack Judgeship for 14 permanent posts of "probationers" on a monthly payor allowance of Rs. 20/- each. 14 persons may be initially appointed to temporarily work in these posts. An of them may be confirmed against these posts on their work being found satisfactory by the District Judge. If they are confirmed, they become permanent, yet they would, be designated as "probationers". 20/- each. 14 persons may be initially appointed to temporarily work in these posts. An of them may be confirmed against these posts on their work being found satisfactory by the District Judge. If they are confirmed, they become permanent, yet they would, be designated as "probationers". Here the application probationers" is attached to the post itself. Thus on a closer scrutiny the distinction is well marked and lends no support to the theory that such probationers are not permanent Government servants. There is nothing in the Miscellaneous Rules to indicate that those probationers are not Government servants. 10. Paragraph 153 of the Miscellaneous Rules does not lead to the conclusion that probationers appointed under that rule were not Government servants. It lays down that probationers were to be entertained up to a number not exceeding 15 per cent of the total number of permanent ministerial employees of an office. Thus a given percentage was fixed and those posts were in the permanent establishments. The function of the probationers was the same as that of ministerial employees. They were to work in leave vacanoies of ministerial servants and were to discharge the same functions and duties as ministerial employees were doing. Even when they were not working in leave vacancies, they were assisting the ministerial servants in clearance of arrears. A register had to be maintained under the caption "31.Admitted probationers". They were retained under permanently sanctioned budgetary provision. They were not given all the privileges of ordinary Government servants but they were treated as such for the purpose of travelling allowance during transfer. Thus though the probationers envisaged in paragraph 153 of the Miscellaneous Rules were not "probationers" within the meaning of Bihar Rule 46, none-the less they were Government employees. The fact that this class of employees bad lesser right would not detract from the conclusion that they were in Government service all the same. Getting a fixed monthly emolument of Rs. 20/- does not run counter to on being in Government service (see definition of 'Pay' in Bihar Rule 38 and Orissa Rule 33). Doubtless, they were trainees or apprentices in the same that they were Dot functioning as regular ministerial servants in charge of a particular branch permanently but they were officiating in leave vacancies of regular ministerial servants and had been recruited on the basis of identical minimum qualification. Doubtless, they were trainees or apprentices in the same that they were Dot functioning as regular ministerial servants in charge of a particular branch permanently but they were officiating in leave vacancies of regular ministerial servants and had been recruited on the basis of identical minimum qualification. They were required to be conversant with the rules and procedure to carry on work in different branches of the office of the District Judge and the Courts under his administrative control. 11. These probationers had a cadre of their own which under Orissa Rule II means the strength of a service or part of a service sanctioned as a separate unit. There were 14 and] 3 permanent posts hi the establishment of the District Judge, Cuttack, on 4-1935 and 1-4-1936 respeotively. The probationers who were permanently absorbed as against those posts were in permanent Government service. By Annexure-4 dated 15th of February, 1932 the Government of Bihar and Orissa in the Finance Department issued a letter No. 2075/F, to the Secretary to the Board of Revenue, Bihar and Orissa, saying that probationers in District and other offices should be admitted to the benefits of the leave rules to the extent and on the conditions on which apprentices are eligible for leave under Rule 316 of the. Bihar and Orissa Code. They would also be entitled to the benefits of Rule 316-A of the Code. Accordingly, a direction was issued that persons then on the roll of the probationers can Count their past probationary service for leave when they secure an appointment on the permanent cadre of ministerial servants. Thus, this letter clearly shows that probationers were also entitled to the benefit of leave in certain contingencies. 12. The Petitioner was all along treated as being in permanent Government service on 31-3-1936. In the Service Book (Annexure-1) of the Petitioner it is mentioned that he is a permanent probationer, the pay in the substantive post being Rs. 20/- per month. Similarly, in the extract from the Gradation List (Annexure-2) of the Personal Assistants and Stenographers as on 31st of March 1965 it is mentioned that the Petitioner entered Government service on 2-4-1935. In the Service Book (Annexure-1) of the Petitioner it is mentioned that he is a permanent probationer, the pay in the substantive post being Rs. 20/- per month. Similarly, in the extract from the Gradation List (Annexure-2) of the Personal Assistants and Stenographers as on 31st of March 1965 it is mentioned that the Petitioner entered Government service on 2-4-1935. The total length of the service calculated on that date was 29 years 11 months 29 days including the service starting from 2nd of April, 1935 the date which has been mentioned to be the date of the Petitioner's entry into Government service. This decision is consistent with the definition of "duty" in Orissa Rule 13(a)(i) which runs thus: 13. Duty - (a) Duty-includes: (i), service in India as a probationer or apprentice if such service is followed by confirmation or by appointment to Government service. It also appears from the Detailed statement of the Permanent Establishment Return of the District & Sessions Judge's Office, Cuttack, as on 1-4-1935 and 1-4-1936 that there were 14 and 13 posts respectively of permanent probationers on a pay of Rs. 20/- each. In Kasinath Patnaik v. Sri P.K. Kapila ILR 1952 Cutt. 326, this Court held that the service book of a ministerial officer is a permanent record containing the complete history of his services and the correctness of the entries found therein cannot be lightly challenged especially when every important entry has been attested by a Gazetted Officer. 13. To notice the status of the Petitioner, we may examine Bihar Rules 28, 51 and 34. They are as follows: 28. Inferior service means any kind of service which may be specially classed as such by the Provincial Government, and any other kind of service on pay not exceeding Rs. 10. 51. Superior service means any kind of service which is not inferior. 34. Ministerial servants 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 the Provincial Government. The duties of these probationers were entirely clerical. Their pay exceeded Rs. 10/- per month. They belonged to the superior service. In fact they were classified under superior service by special declaration BS can be found out from Appendix-4 of the Orissa Rules (1952 print, Second Edition-First Reprint). The duties of these probationers were entirely clerical. Their pay exceeded Rs. 10/- per month. They belonged to the superior service. In fact they were classified under superior service by special declaration BS can be found out from Appendix-4 of the Orissa Rules (1952 print, Second Edition-First Reprint). Appendix-4 has been deleted with effect from 9.12.1960. Thus the probationers belonged to the superior service on their own merit on the strength of Rules. In 1938, Government of-Orissa in the Finance Department took a decision on 12-8-1938 by Annexure-B that with effete from 1st April, 1936 service on Rs. 20/- or less shall be classified as inferior. As a result of this decision, certain posts which were classified as superior before 1.4.1936 had to be brought down as inferior. In order to protect the conditions of service of those officers transferred from Bihar who were enjoying superior status before that date, Government decided that such officers would continue to enjoy that status as a personal concession as long as they continue in service. In the list of posts which are to be treated in superior service was included "Probationers in District and Public Works Department Offices". On the strength of this decision probationers were shown to be in superior service in Appendix-4 of the Orissa Rules. Annexure-B conclusively establishes that probationers before 1.4.1936 were holding civil posts in superior service and were in Government service. The probationers come within the definition of ministerial servants as in Bihar Rule 34 or Orissa Rule 29, their duties being entirely clerical. By Orissa Rule 35, a permanent Government servant means a Government servant who holds a lien on a permanent post. Orissa Rule 36 defines a permanent post to mean a post carrying a definite rate of pay and sanctioned without limit of time. The Petitioner satisfies the teats laid down in both the Rules. The post of the probationer was carrying a definite rate of pay of Re. 20/- per month. A definite rate need not be a scale of pay. Orissa Rule 33 shows that 'pay' means the amount drawn monthly by a Government servant. Puisne Judges of the High Court get a fixed salary of Rs. 3,500/- per month. It is pay. Fixed rate of payment is a definite rate. The posts of probationers were sanctioned without any limit of time. Orissa Rule 33 shows that 'pay' means the amount drawn monthly by a Government servant. Puisne Judges of the High Court get a fixed salary of Rs. 3,500/- per month. It is pay. Fixed rate of payment is a definite rate. The posts of probationers were sanctioned without any limit of time. The Petitioner had a lien on one of those permanent posts and as such he was a permanent Government servant. 14. It would be appropriate at this stage to examine the law governing the relationship of master and servant between the Government and its employees. In State of Uttar Pradesh and Another Vs. Audh Narain Singh and Another their Lordships observed thus: In general selection by the employer, coupled with payment by him of remuneration or wages, the right to control the method of work, and a power to Suspend or remove from employment are inductive of the relation of master and servant. But coexistence of all these indicia is not predicted in every case to make the relation one of master and servant. In special classes of employment, a contract of service may exist, even in the absence of one or more these indicia. But ordinarily the right of an employer to control the method of doing the work, and the power of superintendent and control may be treated as strongly inductive of the relation of master and servant, for that relation imports the power not only to direct the doing of some work, but also the, power to direct the manner in which the work is to be done. If the employer has the power, prima facie, the relation is that of master and servant. There cannot be any dispute in this case that the District Judge, Cuttack, appointed the Petitioner, had the power to remove or suspend him and fully controlled the method of doing work and the manner in which the work is to be done by these probationers. There was therefore relationship of master and servant between the Government and the Petitioner. In Devaraj Moharana v. Executive Engineer General Electrical Division and Anr. 36 C.L.T. 559, it was held that a civil post under the administrative control of the State need not necessarily carry a definite rate of pay. A post outside the regularly-constituted service may be a part-time employment. Post denotes office. In Devaraj Moharana v. Executive Engineer General Electrical Division and Anr. 36 C.L.T. 559, it was held that a civil post under the administrative control of the State need not necessarily carry a definite rate of pay. A post outside the regularly-constituted service may be a part-time employment. Post denotes office. It is an employment though every employment is not a post. Reliance was placed on State of Assam and Others Vs. Shri Kanak Chandra Dutta. On the aforesaid analysis, we have no hesitation in coming to the conclusion that the Petitioner was in permanent Government service on 31st of March 1936 and Rule 71(b) governs his case. Issue No. 2 15. Despite the foregoing conclusion it would be profitable to examine the alternative argument that Rule 75(b} governs the case of the Petitioner even if he was temporary on 31-3-1936. 16. The Bihar Rules came into force on 1-6-1929. On 3-3-1936 the Government of India (Constitution of Orissa) Order, 1936 came into force. Paragraph 23(2) thereof provided that the power conferred by that paragraph "to require a person to serve in, or in connection with the affairs of Orissa, shall be exercised subject to any conditions for the proteotion of the persons oonoerned prescribed by the Government-General in Council, either generally or in relatione to particular persona or classes of persons". 17. The Government of India (Commencement and Transitory Provisions Order) 1936 came into force on 3-7-1936. Provision was made as to conditions of service of persons appointed prior to the commencement of the Government of India Act, 1935. Paragraph 15(2) thereof laid down that "until other provision is made under the new Act, the conditions of service applicable to any person or any class of persons appointed or to be appointed to serve His Majesty in a civil capacity in India shall be the same as were applicable to that person or, as the case may be, to persons of that class immediately before the commencement of Part III of the new Act." 18. The Government of India Act, 1935 came into force on 1-4-1937. Section 241(2)(b) is the rule making power. In exercise of this power, by a notification dated 5-4-1937 (Annexure-G) the Government of Orissa continued to apply the provisions of the Bihar Rules to the ex-Bihar and Orissa Government servants. Section 241(3)(a) provided for the protections. The Government of India Act, 1935 came into force on 1-4-1937. Section 241(2)(b) is the rule making power. In exercise of this power, by a notification dated 5-4-1937 (Annexure-G) the Government of Orissa continued to apply the provisions of the Bihar Rules to the ex-Bihar and Orissa Government servants. Section 241(3)(a) provided for the protections. It says that the said rules shall be so framed as to secure that, in the case of a person who before the commencement of Part III of the Act, was serving His Majestry, in a civil capacity in India, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March, nineteen hundred and twenty-six, or by some person empowered by the Secretary of State to give directions in that respect. On 5th of September, 1936 the Governor-General in Council issued Rules (hereinafter to be described as Protection Rules) for the protection of members of a Provincial or Subordinate Service required to serve in or in connection with the affairs of Orissa. These rules are to be found in Appendix-12 of the Orissa Rules. Though Orissa Rule 6 prescribes that the State Government reserves the power of interpreting these rules and of changing them from time to time at its discretion, it is subject to the Protection of Rule 6 (see Note below Orissa Rule 6). Government had occasion to interpret the Protection Rules by its letter dated 21-11-1963 (Annexure-10) in case of one Rangadhar Mahalla who was a temporary servant by 1-4-1936. The material part of Annexure-10 may profitably be extracted: I am directed to say that Shri Rangadhar Mahalla entered Government service prior to first April 1936 and as such he was governed under the provisions of Rules 75(b) of Bihar and Orissa Service Code. This rule does Dot make any distinction between permanent and temporary Government servant. After the first April 1936 he was absorbed under the Government of Orissa and his conditions of service as respects pay, allowances, leave and pension were protected under Rule 6 of the Rules issued by the Governor-General in Council for the protection of Members of a Provincial or Subordinate service required to serve in or in connection with affairs of Orissa. As such Government are pleased to decide that Shri Rangadhar Mahalla though a temporary Government servant on the first April 1936 can be retained in ministerial service held by him beyond the age of 55 years upto the age of 60 years provided he continues to be efficient. xxxx 19. The Bihar Rules continued in force by Notification, No. 3642. Ref. dated the 5th April, 1937. The Orissa Rules came into force on 1-4-1939. Orissa Rule 3 lays down that nothing in these rules shall operate either to deprive any person of any right or privilege to which he is entitled by or under any law xx xx xx xx. 20. Thus the Orissa Rules gave protection to rights and privileges to which a person was entitled under the Bihar: Rules. Rule 71(b) only speaks of a ministerial servant who was in permanent Government service on 31st of March 1936. Rule 75(b) covered cases of all ministerial servants whether permanent or temporary. The same has been protected by the aforesaid statutory provisions, Orders and Orissa Rule 3. 21. Thus even if the Petitioner is taken to be in temporary Government service on 31-3-1936, he would be governed by Rule 75(b). In either case he is entitled to the same benefits, rights and privileges. 22. Judged from any point of view, the Petitioner is entitled to the benefits of either Rule 71(b) or 75(b) whether he is held to be in permanent or temporary Government service on 31-3-1936. 23. The impugned letter (Annexure 18) saying that Rule 71(a) applies to the Petitioner is contrary to law and is liable to be quashed. Issue No. 3 24. To appreciate this issue, Orissa. Rule 71 may be examined. 71. (a) Expect as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, in superior service other than a ministerial servant who was in permanent Government service on 31st March 1936, is the date on which he attains the age of 55 years. Rule 71 may be examined. 71. (a) Expect as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, in superior service other than a ministerial servant who was in permanent Government service on 31st March 1936, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the State 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: (The word "superior" was substituted by the words "a Class I, Class II and Class III Gazetted and non-Gazetted" by Notification No. S.D.O. 707/70 dated 17-8-1970) Provided that a workman who is governed by these rules shall ordinarily be retained in service up to the age of 60 years. He may however be required to retire at any time after attaining the age of 55 years after being given a month's notice or a month's pay in lieu thereof, on the ground of impaired health or of being negligent or inefficient in the discharge of his duties. He also may retire at any time after attaining the age of 55 years, by giving one month's notice in writing. Note: For this purpose, "a workman" means a highly skilled, skilled or semi-skilled and unskilled artisan employed on a monthly rate of pay in any Government establishment. (b) A ministerial servant who was in permanent Government service on the 31st March 1936, may be required to retire at the age of 55 years but should ordinarily be retained in service, if he continues efficient, up to 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 State Government. (c) Military officers cease to be in civil employ on reaching the age of 55 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 State Government. (c) Military officers cease to be in civil employ on reaching the age of 55 years. (d) The State Government may require any Government servant who has completed twenty-five years of service qualifying for pension under the pension rules applicable to him calculated from the date of first appointment, to retire from Government service, if it considers that his efficiency is not such as to justify his retention in the service: provided that the provisions of this clause,hall not apply to any person who was in the service of the Bihar and Orissa Government on the 1st June 1929 unless such person was liable under the rules by which he was previously governed to be called on to retire after completing twenty-five years' service. Note: The grant of leave extending: beyond the date on which a Government servant must compulsorily retire, or beyond the date up to which a Government servant has been permitted to remain in service, shall not be treated as a sanction to an extension of service and the Government servant shall not be permitted to retain a lien on his permanent post or any other post during the period of such leave. 25. Rule 71(0.) without the proviso and Rule 71(b) classify Government servants into two categories as regards the age of superannuation. They are: (i) Ministerial servants who were in permanent Government service on 31st March, 1936. (ii) Government servants other than the first category. Rule 71(0.) declares in unequivocal language that the date of compulsory retirement of a Government servant in superior service is the date on which he attains the age of 55 years. A ministerial servant who was in permanent Government service on 31st of March, 1936 is expressly excluded from the operation of the Rule. The proviso to the rule is not relevant and need not detain us. Thus Rule 71(0.) is declaratory of the law that the age of superannuation of a ministerial servant who was in permanent Government service on 31st of March, 1936 is not the date on which he attains the age of 55 years. Rule 71(b) covers this class of servants. The language of this exception is plain, and unambiguous and must be given its ordinary and natural meaning. Rule 71(b) covers this class of servants. The language of this exception is plain, and unambiguous and must be given its ordinary and natural meaning. 26. This is why no definite date of compulsory retirement is indicated in Rule 71(b). It would be wholly illegal to include the very concept in Rule 71(b) what was specifically excluded in Rule 71(a). A construction which would render any part of the language superfluous or a surplusage must be avoided. Rules 71(0.) and (b) must be harmoniously read. 27. Rule 71(b) postulates that a particular class of ministerial servant may be required to retire at the age of 55 years. The expression "may be required to retire" confers on the competent authority the right to retire the servant on his attaining 55 years of age. If the employer exercises the option to retire, the employee has no right to continue and cannot resist the retirement. The subsequent clause but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years" does not cut down the effect of the first clause. The second clause however gives the indication that the right or power to retire is not to be arbitrarily exorcised. It embodies the indicia of the method and manner in which the power is to be exorcised. One test for the exercise of power is that the employee cannot be retained in service after the 55th year, if he is found inefficient. The employee is ordinarily to be retained, if he is found efficient. Even if the employee is efficient, the employer is not bound to retain him on other considerations. For instance, the employer may decide to man the poet by an employee who is much more efficient than the servant to be retired. Similarly, an efficient employee may not be retained beyond 55 years to solve the problem of unemployment. Thus the appropriate authority has got wide discretion to retire the employee at the age of 55. This idea is expressed through the two significant words "should" and "ordinarily". Neither of them connotes any sense of compulsiveness. "Ordinarily" does not mean "invariably" and thus leaves enough room for exercise 'of wide discretion. 28. The contrast is noticeable by comparing the language of Rule 71(a) with Rule 71(b). This idea is expressed through the two significant words "should" and "ordinarily". Neither of them connotes any sense of compulsiveness. "Ordinarily" does not mean "invariably" and thus leaves enough room for exercise 'of wide discretion. 28. The contrast is noticeable by comparing the language of Rule 71(a) with Rule 71(b). Under the main part of Rule 71(0.) the servant automatically retires when he attains the age of 55 years and cannot continue for a day more unless by a positive order he is retained in service after the date of compulsory retirement with the sanction of the State Government on public grounds. The position is however different under Rule 71(b). If no positive order is passed retiring the Government servant he is to continue in service up to the age of 60 years until at any subsequent stage after the 55th year the Government exercises its option to retire. 29. The distinction between the existence of a right and the exercise thereof must not be overlooked. A person may have a right but he may not exercise the same. An illustration would make the position clear. A has title to a piece of land and thus has the right to possess the same. But in fact he may not possess it. By As enation or negligence B may come into, and continue in, possession. The possession of B is not on the strength of title. The exclusion of A from possession is despite the ownership in the land. B can be evicted from wrongful possession only by legal action taken by A i.e., only when A chooses to enforce the right to possess. 30. The aforesaid analogy is given only to clarify the concept. Under Rule 71(b) Government has the right to retire that particular class of ministerial servants but it may not choose to retire them. It may not exercise that right or option. In case the right is not exercised by the Government, the servant does not automatically retire. He continues in service until Government exercises its right to retire. Both the concepts can co-exist. 31. As certain ostensible tests have been indicated in Rule 71(b) as to the manner of the exorcise of the power, it must be exercised when the servant attains the age of 55th year. The vesting of a power postulates bona fide exercise thereof and not in any arbitrary or capricious manner. Both the concepts can co-exist. 31. As certain ostensible tests have been indicated in Rule 71(b) as to the manner of the exorcise of the power, it must be exercised when the servant attains the age of 55th year. The vesting of a power postulates bona fide exercise thereof and not in any arbitrary or capricious manner. The option to retire or retain is to be exercised at that stage by taking into consideration the question of efficiency and other circumstances germane to the question of retirement. 32. A question was posed in course of argument whether Article 311(2) of the Constitution would apply to a case of termination of service of employees under Rule 71(b). Clearly it has no application. After the 55th year Government has got a right to terminate the service and the servant has no right to continue. There being no right to continue, there is neither dismissal nor removal of the servant when the option to retire is exercised. The right to compulsorily retire is not removal see Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., . 33. In Webster's Dictionary the word "require" carries the following meanings: "to demand; to ask or claim as a right or by authority; to insist on having; to order or call upon to do something". The different meanings emphasise that the word' insists upon performance in a positive manner. In other words, when a thing is required to be done, a demand, mandate or order is to be issued that it be done. Under Rule 71(b) the Government must therefore take a positive decision whether to retire or retain a Government servant. If by a positive order the intention of the Government is not communicated that a servant is to retire, he automatically continues in service. 34. Clauses (a) and (c) of Rule 71 give the date of retirement. In Clause (a) the date of compulsory retirement of a class Government servants is declared to be the date on which he attains the Bile of 55 years. The same is the declaration in Clause (c) which lays down that military officers cease to be in civil employ on reaching the age of 55 years. In Clause (a) the date of compulsory retirement of a class Government servants is declared to be the date on which he attains the Bile of 55 years. The same is the declaration in Clause (c) which lays down that military officers cease to be in civil employ on reaching the age of 55 years. The absence of a corresponding declaration as to the date of compulsory retirement in Clause (b) is sufficiently explained by the fact in Clause (a) there is a positive provision that the date of compulsory retirement of that class is not the date at which the age of 55 years is reached. 35. An analysis of Rule 71(d) also leads to the same conclusion. The age of superannuation is 55. Clause (d) says that the state Government may require any Government servant who has completed 25 years of service qualifying for pension to retire from Government service. Here, the "expression "may require" has also been used. If after 25 years of service a Government servant is required to retire he cannot challenge it as being without jurisdiction even though the age of superannuation is not reached Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc.. Suppose, an employee has completed 25 years of service but has not reached the age of superannuation, would he automatically retire after the completion of 25 years of service? The answer must be in an unequivocal negative. In other words, positive notice for retirement after completion of 25 years of qualifying service must be given by the Government. The expressions "may be required" in Rule 71(b) and "may required" in Rule 71(b) must be given the same meaning. In that view of the matter, we are also of the opinion that the intention of the Government to retire the servants governed by Rule 71(b) must be indicated by a positive act by way of notice or otherwise that the Government does not require their service any longer. If no such intention is expressed, the employee would continue in service till the the option to retire is exercised at any time before the 60th year. 36. Our conclusion is fully supported by Kailash Chandra Vs. Union of India (UOI), In that case Rule 2046(2)(a) of the Indian Railway Establishment Code, Vol. If no such intention is expressed, the employee would continue in service till the the option to retire is exercised at any time before the 60th year. 36. Our conclusion is fully supported by Kailash Chandra Vs. Union of India (UOI), In that case Rule 2046(2)(a) of the Indian Railway Establishment Code, Vol. II (hereinafter to be referred to as the Railway Code) which corresponds to Rule 71(b) came in for interpretation. In that connection the scope of Rule 2046(1) which corresponds to Rule 71(b) was also examined: These rules for purpose of convenience may be extracted: 2046(1). Except as otherwise provided in the other clause of this rule the date of compulsory retirement of a railway servant, other than a ministerial servant, is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the competent authority 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. 2046(2)(a)A ministerial servant, who is not governed by Sub-clause (b) 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 competent authority. (b) A ministerial servant (i) who has entered Government service on or after the 1st April, 1933, or (ii) who being in Government service on the 31st March, 1938 did Dot hold a lien or a suspended lien on a permanent post on that date, 6. 1961 S.C.D. 116.28 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 competent authority and he must not be retained after the age of 60 years except in very special circumstances. 37. The Supreme Court in categorical terms observed in paragraph 6 of its judgment that it was obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within Clause (a) of Rule 2046(2) than those who fall under Rule 2046(1). 37. The Supreme Court in categorical terms observed in paragraph 6 of its judgment that it was obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within Clause (a) of Rule 2046(2) than those who fall under Rule 2046(1). Their Lordship stated thus: For whereas in the case of these, viz, railway servants - who are not ministerial servants, and ministerial servants under Clause (b) retention after the age of 55 itself is intended to be exceptional-to be made on public grounds which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under Clause (a) of Rule 2046/2 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55. The distinction pointed out in italic expressions is not without difference. On application of the identical principle retention of a. Government servant under Rule 71(a) after the age of 55 years is exceptional while the retention of a Government servant under Rule 71(b) after the age of 60 years is similarly exceptional. 38. In paragraph 7 of the judgment it was clearly stated that under Rule 2046(2)(a) the authority had a right to require a ministerial servant to retire as soon as he attains the age of 55 years. The discussion in that paragraph was concluded by the observation: They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so. 39. That this option must be exercised by 80 positive act one way or the other, was emphasised in paragraph 8 of the judgment. Their Lordships said "The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within Clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further". Their Lordships said "The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within Clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further". The italic expression "at that stage" brings out the very core of the matter into hold relief. The appropriate authority, at the age of 55, must apply its mind to the various factors and take 80 decision whether the servants should be further retained in service or not. The same view was re-emphasised in the concluding sentence of that paragraph by the observation Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient. The italic expression "has to exercise its discretion" is mandatory in character and casts an obligation. The discretion may be used one way or the other. If it is adversely used against the Government servant, he has to retire. But the servant has a right to demand that the option must be exercised by the appropriate authority at the relevant time. If the significance of the italic expressions is lost sight of, then the distinction between the two rules of the Railway Code has to be ignored. Both the rules in such a case would have almost similar incidence and one would not be more favourable to the ministerial servant than the other. 40. It was very seriously urged by the learned Government Advocate that in case before the Supreme Court the relief sought was for a declaration that the compulsory retirement at the age of 55 was void and inoperative and for recovery of arrear of salary and that the suit was dismissed because the Plaintiff in that case had no right to continue in service. This contention ignores the facts of that case. Therein the clerk in the East India Railway Service was compulsorily retired on his attaining the age of 55 years by a positive act of the appropriate authority. The act of retirement was not challenged as being mala fide or without jurisdiction. This contention ignores the facts of that case. Therein the clerk in the East India Railway Service was compulsorily retired on his attaining the age of 55 years by a positive act of the appropriate authority. The act of retirement was not challenged as being mala fide or without jurisdiction. The only question that the Supreme Court had to consider in that case was whether the ministerial servant had a right to be retained after the 55th year. The Court came to the conclusion that the Plaintiff's suit was misconceived as he was in fact retired under, Rule 2046(2)(a) and he had no right to further continue; where the option to retire is exercised, no suit or writ would lie asking for further continuance in service. It would be pertinent to note that nowhere the Supreme Court says that the age of compulsory retirement of a ministerial servant governed by Rule 2046(2)(a) of the Railway Code is 55 years. On the facts of that case and on the principles laid down therein the Supreme Court could arrive at no conclusion other than what was reached. 41. In paragraph 12 of its judgment the Supreme Court approved Raghunath Narain Mathur v. Union of India AIR 1953 All. 362; Krishan Dayal and Ors. v. General Manager Northern Railway, Baroda House, New Delhi AIR 19M P&H 245 and Basanta Kumar Pal Vs. The Chief Electrical Engineer and Others. In all those oases the ministerial servant had been retired by a positive act of the appropriate authority under a rule corresponding to Rule 71(b). Reliance was placed by the learned Government Advocate on P. Kesava Rao Naidu v. Director of Posts and Telegraphs AIR 1958 A.P. 697 . This case was decided prior to the Supreme Court decision and on facts is distinguishable as the competent authority required the ministerial servant to retire at the age of 55 years. 42. Reliance was also placed by the learned Government Advocate on S. Gian Singh Vs. District and Sessions Judge, Delhi and Another. There is an observation to the following effect in paragraph 12 of that decision: In Basanta Kumar Pal Vs. The Chief Electrical Engineer and Others, J. while construing R. 2046 relied on Allahabad and Punjab judgments and distinguished the Supreme Court decision Jai Ram Vs. Union of India (UOI). District and Sessions Judge, Delhi and Another. There is an observation to the following effect in paragraph 12 of that decision: In Basanta Kumar Pal Vs. The Chief Electrical Engineer and Others, J. while construing R. 2046 relied on Allahabad and Punjab judgments and distinguished the Supreme Court decision Jai Ram Vs. Union of India (UOI). He came to the conclusion that the age of retirement under this rule is 55 years. A Division Bench of Andhra Pradesh High Court in P. Kesava Rao Naidu v. Director of Posts and Telegraphs AIR 1958 A.P. 697 , also came to the same conclusion. The aforesaid statement of fact is not correct. In none of those cases it was held that the age of compulsory retirement was 55 years. In those cases the competent authority expressed the decision to retire the servant at the age of 55 years and consequently the age of retirement was taken to be 55 years. In that very case in paragraph 13 their Lordships observed: it, therefore, follows that the weight of authority is overwhelmingly in favour of the view that under F.R. No. 56(b)(i)(corresponding to Rule 71(b) the age of compulsory retirement is 55 years. This observation is contrary to law and not a single decision, much less weight of authority, is in support of such a view where the option to retire has not been exercised. In our view S. Gian Singh Vs. District and Sessions Judge, Delhi and Another does not lay down the correct law. 43. In all these decisions the competent authority required the ministerial servant to retire under the relevant rule. In none of those cases the requirement to retire was challenged on the ground of being based on irrelevant or extraneous matters or misconstruction of statutes. In none of those oases the point whether that class of ministerial servants would automatically retire on completion of the 55th year was considered. The only point that was canvassed in all these oases was that even after the competent authority exercised the option to retire at the 55th year the ministerial servant had a right to continue. Such a contention was negatived Bud rightly. The only point that was canvassed in all these oases was that even after the competent authority exercised the option to retire at the 55th year the ministerial servant had a right to continue. Such a contention was negatived Bud rightly. All these decisions have therefore no factual application to this case where the retirement has been made under misconception of fact and law that the Petitioner was not a Government servant on 31-3-1936 either permanent or temporary and that Rule 71(b) has no application to his case. 44. We would conclude our discussion by saying that the date of compulsory retirement of a ministerial servant who was in permanent Government service on 31-3-1936 is not the date on which he attains the age of 55 years. It is any date in between 55 and 60 years when he is required to retire by the appropriate authority. If the appropriate authority requires a particular ministerial servant to retire at the age of 55 years, then in that case the age of compulsory retirement is 55 years. It would depend upon the facts and circumstances of each case depending upon the exercise of option by the appropriate authority in between the ages of 55 and 60. Issue No. 4 45. The impugned letter on the face of it is under Rule 71(a) and not under Rule 71(b). The appropriate authority refused to exercise its power under Rule 71(b) holding that the Petitioner was not a Government servant on 31-3-1936 either permanent or temporary. Thus the refusal to exercise under Rule 71(b) was due to the misconstruction of that rule and on wrong assumption of the basic facts on which the applicability of the rule depends. 46. Mr. Patnaik contends that the impugned letter is liable to be quashed as having been based on irrelevant and extraneous grounds and on misconstruction of the scope and ambit of Rule 71(b) and that it is a nullity. Reliance was placed on Rohtas Industries Vs. S.D. Agarwal and Others. 46. Mr. Patnaik contends that the impugned letter is liable to be quashed as having been based on irrelevant and extraneous grounds and on misconstruction of the scope and ambit of Rule 71(b) and that it is a nullity. Reliance was placed on Rohtas Industries Vs. S.D. Agarwal and Others. In that case their Lordships after full review of all the authorities for and against accepted the following meaning of 'discretion' as given in Susannah Sharp v. Wakefield 1891 A.C. 173 at p. 179: 'discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's case., according to law, and not humour. It is to be, not arbitrary, vague and fanciful, but legal and regular. The same view had been expressed in different languages in Pad field v. Minister of Agriculture, Fisheries and Food (1968) 1 All. E.R. 604. There it was held by the majority that where a statute conferring a discretion on a Minister to exercise or not to exercise a power did not expressly limit or define the extent of his discretion and did not require him to give reasons for declining to exercise the power, his discretion might nevertheless be limited to the extent that it must not be so used, whether by reason of misconstruction of the statute or other reason as to frustrate the object of the statute which conferred it. Two of the learned Lords held that although the Minister had full or unfettered discretion under that particular statute, he was bound to exercise it lawfully viz., not to misdirect himself in law, nor to take into account irrelevant matters, nor to omit relevant matters from consideration. Justice Hegde after reviewing the entire law on the point approved the dictum "there is always a perspective within which a statute 'is intended to operate". Thus though the discretion to be exercised by the appropriate authority is subjective and the propriety, reasonableness or sufficiency of the grounds on which the discretion is based are not open to judicial review, yet it is open to challenge if made on extraneous or irrelevant considerations or misconstruction of a statute. It cannot be used capriciously or arbitrarily. 47. Thus though the discretion to be exercised by the appropriate authority is subjective and the propriety, reasonableness or sufficiency of the grounds on which the discretion is based are not open to judicial review, yet it is open to challenge if made on extraneous or irrelevant considerations or misconstruction of a statute. It cannot be used capriciously or arbitrarily. 47. A direct decision on the point is reported in Union of India (UOI) Vs. Col. J.N. Sinha and Another. There Fundamental Rule 56(j) was under examination. That rule says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. Their Lordships paid that power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of opinion that it is in public interest. The pertinent observation may be quoted: If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. In that particular case the first Respondent challenged the opinion formed by the Government on the ground of mala fide. That ground having failed he was not entitled to any relief. 48. On the aforesaid tests the impugned letter must be treated as a nullity. The retention of the Petitioner was refused on the, wrong assumption of fact that he was not in Government service on 31-3-1936 and that Rule 71(b) had no application to his same. The competent authority did not apply its mind to the factors to be taken into consideration for retention in service under Rule 71(b). Indisputably the Petitioner continued efficient till the date of retirement. It was open to the competent authority to take into consideration other factors and retire the Petitioner despite his continued efficiency. The competent authority however did not purport to proceed that way on the view that Rule 71(a) applied to his case. The power to retire was not exercised subject to the conditions mentioned in Rule 71(b). The impugned letter is therefore arbitrary, capricious, based on misconstruction of Rule 71(b) framed under. Article 309 of the Constitution. The competent authority however did not purport to proceed that way on the view that Rule 71(a) applied to his case. The power to retire was not exercised subject to the conditions mentioned in Rule 71(b). The impugned letter is therefore arbitrary, capricious, based on misconstruction of Rule 71(b) framed under. Article 309 of the Constitution. It is a nullity and must be ignored. Though therefore the impugned letter retiring the Petitioner has, a factual existence it, has no existence in the eye of law. It logically follows that the option to retire the Petitioner was not exercised when he reached the age of 55 years and he shall be deemed to be continuing in service. It need hardly be said that it is still open to the appropriate authority to retire the Petitioner on any date before be reaches the 60th year by exercising the option under Rule 71(b). Issue No. 5 49. It is contended by the learned Government Advocate that even if the Petitioner was retired contrary to the provision in Rule 71(b), be has no right to continue in service after the attainment of the 55th year and there being, no right, the writ application is not maintainable. We have already discussed at length that though the appropriate authority had the right to retire the ministerial servant at the age of 55th year, the latter would continue in service until the right to retire is exercised by the authority. In that view of the matter the writ application is maintainable. The leading authority on the point is Julius v. The Bishop of Oxford 1880 L.J.R. 577 (a decision of the House of Lords). In that case Dr. Frederick Guilder Julius, a resident in a parish, within the diocese of Oxford, made a complaint to the Bishop of Oxford against one Mr. Carter, clerk, rector of the said parish, for offences against, the ecclesiastical law in the mode of conducting the Church services, and asked the Bisbop to issue a Commission u/s 3 of the Church Discipline Act to enquire into the grounds of the complaint. Carter, clerk, rector of the said parish, for offences against, the ecclesiastical law in the mode of conducting the Church services, and asked the Bisbop to issue a Commission u/s 3 of the Church Discipline Act to enquire into the grounds of the complaint. The Bishop, in reply, without positively refusing to issue a commission, alleged as reasons for "unusual care in deciding on the course" he "ought to adopt", the repeated occurrence of failures in proceedings of this kind, tending to bring ridicule on all concerned, and contempt on the Church: also that the complaint was made in opposition to the strongly expressed wish of the majority of the parishioners against a clergyman in advanced years, generally respected and beloved. Dr. Julius again applied to the Bishop, who answered that while contain appeals were pending in the Queen's Bench Division he was "unwilling to add to the large amount of costly And abortive litigation from which the Church has already suffered so much discredit." The complainant then moved the Queen's Bench Division for a mandamus to the Bishop, requiring him to issue a commission u/s 3 of the Church Discipline Act, or to send the case by letters of request to the Court of Appeal of the province, as provided by Section 13. The Queen's Bench Division granted an absolute rule for mandamus. The decision was reversed by the Court of Appeal and its judgment was upheld by the House of Lords. The Lord Chancellor (Earl Cairns) examined the meaning of the expression "it shall be lawful" in the 3rd section of the Church Discipline Act. After reviewing the relevant authorities on the point be recorded the following conclusion: where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised. On the appellation of the aforesaid principle to that case their Lordships however held that the expression "it shall be lawful" was directory in nature and power to appoint a commission was not meant to be used for the benefit of any particular persons specifically pointed out in the context of that and was not enforceable by a writ of mandamus. 50. Applying the aforesaid principle to the facts of this case, the power under Rule 71(b) was intended to be exercised subject to conditions mentioned therein and although the rule in terms only conferred a power, the circumstances were such as to create a duty. The expression "may be required to retire" in Rule 71(b) is not permissive and enabling only. It casts a duty on the appropriate authority to take into consideration the various factors and then exercise the power for retirement. The decision of the House of Lords was followed in Alcock Ashdown and Company Ltd. v. The Chief Revenue Authority Bombay AIR 1923 P.C. 138 51. It is not necessary to examine other oases as in our view the matter is concluded by Union of India (UOI) Vs. Col. J.N. Sinha and Another. In paragraph 9 their Lordships in unequivocal terms observed that "That power can be exercised" subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority, bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. In paragraph 11 of that decision it was further laid down that "The retirement age is fixed not merely on the basis of the interest of the Government servant but also depending on the requirements of the society" see also R.L. Butail v. Union of India 11 S.C.W.R. 25. Thus Rule 71(b) was framed under Article 309 of the Constitution by taking into consideration the interest of that class of Government servants besides the convenience of administration. Thus Rule 71(b) was framed under Article 309 of the Constitution by taking into consideration the interest of that class of Government servants besides the convenience of administration. In the language of the Lord Chancellor the power under Rule 71(b) was deposited with the appropriate authority for the benefit of that case of ministerial servants who were specifically pointed out. With regard to that class, a definition was supplied by the rule-making authority of the conditions upon which they are entitled to 08011 for its exercise. In such a case the power ought to be exercised and the Court will require it to be exercised. The authorities are therefore conclusive on the question that a writ of mandamus can lie to direct the appropriate authority to require the Petitioner to retire in accordance with the terms of Rule 71(b). In this connection Halsbury's Laws of England, Third Edition, Vol. 36, Paras 655 and 656, may profitably be referred to- We would therefore answer this issue by saying that the impugned letter is liable to be quashed by issue of writ of certiorari. A writ of mandamus would lie to call upon the appropriate authority to treat the Petitioner as continuing in service until the right to retire is exercised in accordance with Rule 71(b). 52. We would sum up our conclusions thus: (i) The Petitioner was in permanent Government service on 31-3-1936. (ii) His age of compulsory retirement is governed by Rule 71(b). (iii) Even if the Petitioner is treated as not being in permanent Government service on 31-3-1936, he was in temporary Government service on that date. (iv) In case he is temporary, he would be governed by Rule 75(b). (v) The age of compulsory retirement of a ministerial servant who was in permanent Government service on 31-3-1936 is not 55 years. (vi) It is any age in between 55 and 60 years depending on the appropriate authority exercising the power to retire which would depend upon the facts and circumstances of each case, (vii) The Petitioner was retired under Rule 71(a) on the mistaken basis of fact and law that he was not in permanent Government service on 31-3-1936 and that Rule 71(b) did not govern his case. (viii) The impugned letter(Annexure 18) is a nullity being based on irrelevant and extraneous grounds and misconstruction of Rule 71(b). (viii) The impugned letter(Annexure 18) is a nullity being based on irrelevant and extraneous grounds and misconstruction of Rule 71(b). (ix) Rule 71(b) has been framed under Article 309 of the Constitution not only in the interest of administration but in the interest of a particular class of ministerial servants. (x) Rule 71(b) casts a duty on the appropriate authority to exercise the power in accordance with the conditions prescribed therein. (xi) The exercise of the power in this case being arbitrary and capricious and based on misconstruction of statute it is open to this Court to issue appropriate writ to quash the impugned letter and to direct the appropriate authority to treat the Petitioner as continuing in service until the power to retire is exercised in between the ages of 65 and 60. 53. Now we would examine the specific facts in O.J.C. No. 714 of 1968. Sri Lingaraj Patnaik, the Petitioner in this case, was required to retire by Sri L. Panda, District Judge, Cuttack, by his order (Annexure-2) dated 1st of May, 1968. The order runs thus: In view of the instructions issued in Political and Services Department Resolution No. 3642-Geo. dated 20-2-1968 the following Class III employees serving in this judgeship are to retire on the dates noted against their names. xxxxxx 1. Sri Lingaraj Patnaik, Nazir, Dist. Judge's Court, Cuttack. 31-7-1968 (afternoon) xxxxxx The aforesaid Resolution excluded from its operation the ministerial Government servants who are governed by Rule 71(b). The relevant extract may be noted: 1. The age of compulsory retirement of the State Government servants, excluding the Class IV servants, shall be fixed at 55 years instead of 58 years with effect from the 1st August, 1968. Provided that the above decision of Government shall not affect the retention in service of those ministerial Government servants who are governed by Sub-rule (b) of Rule 71 of the Orissa Service Code, Volume I. It would thus be apparent that the District Judge fell into an error" in applying the aforesaid Resolution to the Petitioner. The order of the District Judge is based on irrelevant and extraneous grounds and misconstruction of the Resolution. For reasons already given, this order is liable to be quashed. 54. Sri Srinibas Das is the Petitioner in O.J.C. No. 726 of 1968. The order of the District Judge is based on irrelevant and extraneous grounds and misconstruction of the Resolution. For reasons already given, this order is liable to be quashed. 54. Sri Srinibas Das is the Petitioner in O.J.C. No. 726 of 1968. He was retired by the following order (Annexure-2) dated 25th of March, 1968: xx xx Whereas he is due to retire on 1-8-1968 on superannuation, he is, therefore, required to furnish the following documents in connection with preparation of pension papers xxxx The order of ex facie does not indicate as to under what rule the Petitioner was asked to retire. The opposite parties in their counter affidavit made it clear that the Petitioner was not governed by Rule 71(b). This is not correct. He is governed by Rule 71(b) for reasons already discussed. The aforesaid order is liable to be quashed. Issue No. 6 55. On the conclusions we have reached, the Petitioners are entitled to the following reliefs: (a). They shall be deemed to be continuing in service until the appropriate authority requires them to retire under Rule 71(b). (b). They are entitled to arrears of pay. 56. In the result, the writ applications are allowed with costs. The impugned letter (Annexure-18) dated 19-2-1969 in O.J.C. No. 230 of 1969; order (Annexure. 2) dated 1-5-1968 in O.J.C. No. 714 of 1968; and order (Annexure. 2) dated 25-3-1968 in O.J.C. No. 726 of 1968 be quashed by issue of writs of certiorari. The Petitioners shall be deemed to be continuing in service until the appropriate authority requires them to retire under Rule 71(b). They are also entitled to arrears of pay. Writs of mandamus be accordingly issued. Hearing fee of Rs. 200/- in each case. S.K. Ray, J. 57. I entirely agree. B.K. Patra, J. 58.I agree. 59. The Petitioner in each of these three writ applications has challenged the validity of the action of the Government of Orissa in retiring him on attainment of the age of 55. The Petitioner in O.J.C. No. 714 was communicated with an order dated 17-4-1968 which is Annexure-2 to his writ application asking him to retire with effect from 31-7-1968. 59. The Petitioner in each of these three writ applications has challenged the validity of the action of the Government of Orissa in retiring him on attainment of the age of 55. The Petitioner in O.J.C. No. 714 was communicated with an order dated 17-4-1968 which is Annexure-2 to his writ application asking him to retire with effect from 31-7-1968. The Petitioner in O.J.C. No. 726 was served with a similar notice on 25-3-1968 and the Petitioner in O.J.C. No. 230 was informed by Annexure-18 of his application that his representation was rejected and that he should therefore retire from service on 28-2-1969. The Petitioners in O.J.C. Nos. 714 and 726 have prayed for issue of a writ of mandamus quashing the impugned orders of retirement served on them and a direction to the opposite parties to continue them in service till attainment of 60th year. The Petitioner in O.J.C. No. 230 has prayed for issue of a writ of mandamus or any other writ or order directing opposite parties from giving effect to the impugned order communicated to him and to declare that he is rightfully entitled to continue in service till 60th year and entitled to all benefits of pay emoluments and other benefits consequent thereupon. 60. The material facts alleged and relevant for the present purpose, in brief, are as follows: Each of the Petitioners was in the permanent ministerial service in the defunct Province of Bihar & Orissa having been appointed as probationer by the District Judge, Cuttack in 1934 or 1935. On the formation of the Province of Orissa under the Government of India (Constitution of Orissa) Order, 1936, they were taken over to the service of the Government of Orissa, became entitled to the protections guaranteed under the Governor Generals Protection Rules framed in exercise of powers conferred under sub-paragraph (2) of Para 23 of the Government of India (Constitution of Orissa) Order, 1936 and by Notification No. 2642/Ref., dated 5-4-1937 the Government of Orissa continued the application of the provisions contained in the Bihar & Orissa Service Code to them. Subsequently, they were promoted or appointed to higher posts in the ministerial cadre and by the date of the impugned orders, Petitioner in O.J.C. No. 714 was working as Nazir of the District Judge, Cuttack; Petitioner in O.J.C. No. 726 was working as a Senior Head Assistant in the Finance Department and Petitioner in O.J.C. No. 230 was holding the post of a Personal Assistant, all the posts being in the ministerial cadre. They allege that they being permanent Government servants under the defunct Province of Bihar & Orissa on 31-3-1936, they come within the purview of Rule 71(b) of the Orissa Service Code, and as such, have a legal right to continue in their respective posts till attainment of 60th year. Therefore, the termination of their service by way of retirement on completion of 55th year amounts to a punishment and liable to be quashed. 61. Besides the State of Orissa, the concerned authorities under whose administrative control the respective Petitioners were serving at the time of passing of the impugned orders have been arrayed as opposite parties. The applications are resisted broadly on the following grounds : (1) Probationers were some sort of apprentices or trainees in receipt of fixed allowance or stipend, and, as such, were not Government servants holding any civil post in the defunct Province of Bihar & Orissa. Therefore, neither Rule 75(b) of the Bihar & Orissa Service Code nor the corresponding provision contained in role 71(b) of the Orissa Service Code is applicable to them; (2) even if it be held that probationers were Government servants in the defunct Province of Bihar & Orissa, their status was nothing better than that of temporary Government servants by 31-3-1936, and as such, they do not come within the purview of Rule 71(b) of the Orissa Service Code; (3) neither under role 75(b) of the Bihar & Orissa Service Code nor under Rule 71(b) of the Orissa Service Code, on a proper interpretation of the rule, a ministerial employee on be said to possess any legal or justiciable right to hold the post until attainment of the age of 60 as under the conditions of service applicable to him, his age of superannuation is also 55. In the absence of any such legal right, an application under Article 226 of the Constitution is not maintainable and (4) the termination of service of the Petitioners on attainment of the age of 55 being in accordance with the conditions of their service does not amount to a punishment to attract the application of Article 311 of the Constitution. 62. Originally, these three writ applications were heard by a Division Bench constituted by myself and Hon'ble Ray, J. In my judgment dated 4-11-1970, on a consideration of the documents and other materials placed before us, I held that each of the Petitioners in these three writ applications was a permanent ministerial officer in the definite Province of Bihar & Orissa by 31-3-1936, and as such, they come within the purview of Rule 71(b) of the Orissa Service Code. I, however, held that Rule 71(b) of the Orissa Service Code does not confer any legal right in the Petitioners to continue in the posts which they held, after attaining the age of 55. Accordingly, I expressed the view that, the Petitioners are to be dismissed as the validity of the impugned orders terminating their service by way of retirement is not open to challenge. 63. My learned brother Hon'ble Ray, J. while agreeing with all my conclusions of fact and law was in favour of issuing a writ of mandamus "directing opp. party No. 3 to consider the efficiency of the Petitioners, and whether in case efficiency is found, they should ordinarily be retained in service till they attain the age of 60 in exercise of their discretion which has been conferred upon them under the said sub-rule" observing as follows: True it is that the ministerial servant has no right to continue after the age of 55 years, but he has a right to insist that Government must discharge the legal function laid on them under Clause (b) of Rule 71, that is to say, the Government or the concerned authority under that clause has to exercise the discretion by considering the efficiency or otherwise of the ministerial servant and other relevant circumstance and decide whether to retain him or not in service beyond the age of 55 before such servant is required to retire. 64. 64. Thus, there being a difference of opinion about the result of the writ applications, the matter was placed and ultimately came up for hearing by this larger Bench, as directed by Hon'ble the Chief Justice. 65. The main points that arise for consideration and are common in an these applications are firstly, whether Rule 71(b) of the Orissa Service Code is applicable to the Petitioners; secondly, if it is appealable, whether they have any legal rights thereunder which can be enforced; thirdly, whether even if they do not possess any legal right under Rule 71(b) to continue in the posts which they held, the impugned orders are liable to be quashed on any other ground and lastly, whether termination of the services amounts to penal action attracting the provisions of Article 311 of the Constitution and on that ground liable to be quashed. 66. Before this Bench, learned Government Advocate reagitated his contentions that Petitioners while working as probationers were not Government servants, and even otherwise, their status by 31-3-1936 when they were still working as such was that of temporary Government servants. Therefore, according to him, Rule 71(b) of the Orissa Service Code which in terms applies only to ministerial servants in permanent Government service on 31-3-1936 cannot apply to them. In my opinion, there is no merit in these contentions. For the reasons discussed by me at length in paragraphs 7 to 12 of my previous judgment, I hold that Petitioners, while working as probationers on the permanent establishment of the District Judge, Cuttack were Government servants and were holding those posts in a permanent or substantive capacity by 31-3-1936. Therefore, Rule 71(b) of the Orissa Service Code is applicable to each of the Petitioners in these writ applications. 67. It is not disputed that Rule 71(b) of the Orissa Service Code, Rule 56(b)(i) of the Fundamental Rules and Rule 2046/2(a) of the Railway Establishment Code are substantially identical provisions. The more important point for consideration is whether a ministerial servant governed by any of the aforesaid rules can claim to possess any legal right to continue in service on attainment of the age of 55. The more important point for consideration is whether a ministerial servant governed by any of the aforesaid rules can claim to possess any legal right to continue in service on attainment of the age of 55. In case it is held that under the aforesaid rules no such legal right vests in him, the question will arise whether termination of service of such a ministerial servant on attainment of 55th year by way of retirement results in penal action which will attract the protection contained in Article 311 of the Constitution. 68. The position of law is well settled that existence of a legal and enforceable right in the Petitioner is the foundation of a petition under Article 226 of the Constitution State of Orissa Vs. Ram Chandra Dev and Mohan Prasad Singh Deo. Therefore, it is incumbent on a Petitioner to establish that he has a legal right which has been illegally invaded or threatened before a writ or an appropriate direction or order can be issued in his favour. 69. Learned Counsel for Petitioner put forward the following contentions in support of the petitions: (1) Apart from Rule 71(b), the Executive Instructions issued in pursuance of the Government of India's decision in the Ministry of Home Affairs Office Memorandum No. 26/6/48 Ests., dated 9-12-1948 adopted by the Government of Orissa in G.O.F.D. 2036.80/F., dated 23-2-1949 reproduced in para 47(b) and (d) of the "Companion to the Orissa Service Code and T.A. Rules" at pages 17-18 should be treated as supplemental to Rule 71(b) conferring or recognising a legal right in the ministerial servants to continue in service up to the attainment of 60 years; (2) the language and the terms in which Rule 71(b) is framed when compared with the language of Rule 71(a) clearly show that ministerial servants governed by the former possess an defeasible legal right to continue in service upto the age of 60 which is not available to the Government servants to whom the latter provision is applicable; (3) even if the ministerial servants governed by Rule 71(b) are held to possess no such legal right, they are entitled to continuance in the post by way of sufferance unless and until they are required to retire by a positive order under the said rule, and (4) Rule 71(b) envisages a power in the State coupled with a statutory duty. As the State has defaulted in discharging this statutory duty, the impugned orders are liable to be quashed. I will now proceed to deal with the points in seriatim. 70. Point No. I-This contention is misconceived and not based on a correct statement of facts. It is true that in 1948 Government of India issued the aforementioned instructions, obviously basing on the opinion of the then Advocate General of India that retirement of ministerial servants governed by F.R. 56(b)(i) before attainment of 60th year would attract the provisions of Section 340(3) of the Government of India Act, 1935 and by way of clarification of those instructions expressed the view that such a ministerial servant is not to be regarded as superannuated until be reached the age of 60 years nor his retention up to that age was to be regarded as extension of service. Government of Orissa also issued the G.O. in question in accordance with the instructions of the Central Government, subsequently, however, the aforesaid view on the interpretation of F.R. 56(b)(i) was modified and accordingly, as admitted by learned Counsel for Petitioners, Government of India withdrew those instruction. He, however, contended that Orissa Government not having withdrawn their instructions these will be deemed to be still holding the field. By Book Circular No. 30 issued on 19-5-1953 reproduced at page 444 of the Hand Book on important circulars and orders, Vol. I issued by the Home Department in 1964, Government of Orissa have expressly cancelled the previous instructions relating to the interpretation and scope of Rule 71(b) of the Orissa Service Code. Therefore, Mr. Patnaik's contention that the decisions of 1949 being supplemental to Rule 71(b) should be treated as still holding the field and recognising a right in the ministerial servants is totally untenable. 71. Point No. 2- The main question for consideration under this point is nature of right, if any, possessed by a ministerial servant to be continued in service on attainment of the age of 55. It is not disputed that Clauses (a) and (b) of F.R. 56 and Rule 2046/2 of the Railway Establishment Code are, in substance identical with the provisions contained in Clauses (a) and (b) of Rule 71 of the Orissa Service Code. It is not disputed that Clauses (a) and (b) of F.R. 56 and Rule 2046/2 of the Railway Establishment Code are, in substance identical with the provisions contained in Clauses (a) and (b) of Rule 71 of the Orissa Service Code. The Government servants who are governed by F.R. 56(a), Rule 2046/2(b) of the Railway Establishment Code and Rule 71(a) of the Orissa Service Code are compulsorily to retire at the age of 55 and cannot be retained after that age except on public grounds to be recorded in writing and with the inaction of the competent authority; and must not be retained after attaining the age of 60 years except in very special circumstances. On the other hand, Rule 71(b) of the Orissa. Service Code corresponding to F.R. 56(b)(i) and Rule 2046/2(11.) of the Railway Establishment Code deals with ministerial servants of a particular category who do not (sic) within the purview of the other provision. Rule 71(b) runs as follows: 71(b) A Ministerial servant who was in permanent Government service on the 31st March 1936, may be required to retire at the age of 55 years but should ordinarily be retained in service, if he continues efficient, up to 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 State Government. 72. At a point of time before the decision of the Supreme Court reported in Kailash Chandra Vs. Union of India (UOI), where the question of correct interpretation of Rule 2046/2(a) corresponding to F.R. 56(b)(i) directly came up for consideration, there was some deference of opinion about the correct interpretation of this provision and the nature of right, if any, possessed by a ministerial servant coming within its purview. One view was that such a ministerial servant possessed a right to be retained in service till attainment of the age of 60, subject to the qualification that he continued efficient. The other view was that such a ministerial servant does not possess nor can claim a legal right to continue in service till the age of 60, and as such, if he is retired on attainment of the age of 55, he cannot complain of any breach of statutory obligation. The other view was that such a ministerial servant does not possess nor can claim a legal right to continue in service till the age of 60, and as such, if he is retired on attainment of the age of 55, he cannot complain of any breach of statutory obligation. The former view found favour in the decision reported in Raghu Patro Apparao Patnaik v. The State of Orissa and Anr. 24 (1958) C.L.T. 237 which relied on certain observations of the Supreme Court in the decision reported in Jai Ram Vs. Union of India (UOI). This view is no longer good law, in view of the decision reported in Kailash Chandra Vs. Union of India (UOI), where referring to the decision repeated in Jai Ram Vs. Union of India (UOI), their Lordships observed: It would be wholly unreasonable to consider this as a decision on the question of what the rule means. The latter view in the matter of interpretation of F.R. 56(b)(i) was adopted by several High Courts in the decisions reported in Basanta Kumar Pal Vs. The Chief Electrical Engineer and Others Krishan Dayal and Ors. v. General Manager, Northern Railway, Baroda House New Delhi AIR 19M P&H 245, Raghunath Narain Mathur v. Union of India AIR 1953 All. 362, P. Kesava Rao Naidu v. Director of Posts & Telegraphs AIR 1958 A.P. 697 and S. Gian Singh Vs. District and Sessions Judge, Delhi and Another. As the first three decisions mentioned above have been noticed with approval by the Supreme Court in the decision reported in Kailash Chandra Vs. Union of India (UOI) it will be sufficient to refer only to the other two decisions. In Kesava Rao v. Director of P. & T. AIR 1958 A.P. 697 , one of the points raised by the Petitioner therein was that under F.R. 56(b)(i) he had a right to be in service till he reached the age of 60 since be was not found to be inefficient. The Division Bench in interpreting the rule negatived the above contention observing: No ministerial servant can claim as a matter of right to be in service till the age of 60 and if the employee concerned is made to retire at the age of 55, he cannot complain of any breach of statutory obligation. The Division Bench in interpreting the rule negatived the above contention observing: No ministerial servant can claim as a matter of right to be in service till the age of 60 and if the employee concerned is made to retire at the age of 55, he cannot complain of any breach of statutory obligation. Thus, we feel that F.R. 56(b)(i) does not confer any actionable right on the employee to be retained in service after the age of superannuation. (Italic is mine) In the decision reported in S. Gian Singh Vs. District and Sessions Judge, Delhi and Another the Petitioner, a ministerial servant governed by F.R. 56(b)(i) challenged his retirement on attaining the age of 55 on the ground that he had a right to continue up to 60th year and his retirement at the age of 55 without complying with the provisions of Article 311 was illegal and void. The Division Bench held that Fundamental Rule 56(b)(i) fixed the age of retirement of a ministerial servant at the age of 55 years and after,attaining that age he has no right to be retained in service. A retirement on attaining that age is in accordance with conditions of his service and does not amount to a punishment so as to attract 311 (2) of the Constitution. 73. Whatever divergence of opinion might have existed about the correct interpretation of F.R. 56(b)(i) corresponding to Rule 71(b) of the Orissa Service Code, the decisive pronouncement of the Supreme Court in the decision reported in Kailash Chandra Vs. Union of India (UOI), has once for all set the matter at rest. In that case, the Appellant before the Supreme Court who was a clerk having been retired on attainment of the age of 55 instituted a suit claiming that under Rule 2046/2(80) of the Railway Establishment Code corresponding to F.R. 56(b)(i), he possessed a right to be retained in service up to his 60th year. In dealing with this claim, their Lordships posed the question whether assuming that the Plaintiff continued to be efficient, he had a right to be retained in service till attainment of the age of 60 on a correct interpretation of the rule. In dealing with this claim, their Lordships posed the question whether assuming that the Plaintiff continued to be efficient, he had a right to be retained in service till attainment of the age of 60 on a correct interpretation of the rule. For that purpose, their Lordships not only analysed the provision clause by clause to determine the intention, but also examined the scope and ambit of the two clauses of Rule 246/2 of the Railway Establishment Code corresponding to Clauses (a) and (b) of Rule 71 of the Orissa Service Code. Their Lordships observed that the difference lay in the fact that in the case of non-ministerial servants as well as ministerial servants who are outside the purview of Rule 2046/2(90) of the Railway Establishment Code, retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent "authority, while in the case of ministerial servants who fan under Clause (a) of Rule 2046/2 (corresponding to Rule 71(b) of the Orissa Service Code), their retention after the age of 60 is treated as exceptional and is to be made in a similar manner as retention in the case of the other category mentioned above after the age of 55. It was made clear that whereas the authority appropriate to make the order of compulsory retirement or of retention is given no discretion by itself to retain a ministerial servant governed under Clause (b) of Rule 2046/2, if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under Clause (a) of that rule. In short, the distinction between the two clauses, one of which, purports to prescribe the date of compulsory retirement and the other states that a servant may be required to retire at the age of 55, does not consist in the matter of fixation of the age of superannuation, one being 55 and the other 60, but is limited to the exercise of the discretion by the competent authority in the matter of retirement or retention, the conditions of service fixing the age of superannuation in both the cases being attainment of 55 years. 74. 74. In dealing with the correct interpretation of the rule, their Lordships adverted to an examination of its two parts, the first giving the appropriate authority the right to retire a ministerial servant as soon as he attains the age of 55 years arid the second part which provides "but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years", and observed: That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence, but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that be continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority his the option to do so but is not bound to exercise the option. By way of further clarification, at the end of para 8 of the judgment, their Lordships observed. Thus after the age of 55 is reached by the servant the authority has to exercise its desertion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient. In paragraph 11, the correct interpretation has been summarised in the following words: The correct interpretation of Rules 2046.(2)(a), 2046 (l)(0.) of the Code, in our opinion, is that a railway ministerial servant falling within this clause, may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient. An analysis of this decision clearly lays down the following propositions: (1) A ministerial servant coming within the ambit of the rule in question does not possess legal right to continue or be retained in service after attainment of his 55th year; (2) the appropriate authority has the right to retire such a ministerial servant on his attaining the age of 55 years; (3) though such a servant between the age of 55 and 60 has no right to continue or be retained in service, the appropriate authority has the unfettered option to retain him in service provided be continues efficient; (4) the appropriate authority has no option to retain such a servant if be does not continue to be efficient and (5) the appropriate authority is under no legal obligation to retain such a servant beyond the age of 55 even if the latter continues to be efficient. 75. Thus, this decision, as already stated, once for all sets at rest the legal position and the correct interpretation of the rule in question that a ministerial employee governed by this clause under the conditions of his service has no right, absolute or qualified, to continue in the post after attainment of the age of 55. All that it provides is an option in the appropriate authority in certain circumstances if it so chooses to retain him for a further period of 5 years at its discretion, while in the case of an employee governed by Rule 71(a) of the Orissa Service Code, no such option is available to the authority. 76. Subsequent to the above pronouncement of the Supreme Court, the rights of ministerial employees governed by Rule 71(b) came up for consideration before this Court. In the decision reported in Durga Charan Das Vs. The State of Orissa dealing with the rights of an ex-Bihar & Orissa ministerial employee, it was conceded by the Petitioner and the Division Bench held that such a ministerial servant has no justiciable right to be retained in service after attaining the age of 55. In the decision reported in Nabinkishore Ray v. State of Orissa and Anr. The State of Orissa dealing with the rights of an ex-Bihar & Orissa ministerial employee, it was conceded by the Petitioner and the Division Bench held that such a ministerial servant has no justiciable right to be retained in service after attaining the age of 55. In the decision reported in Nabinkishore Ray v. State of Orissa and Anr. 36 (1970) C.L.T. 720, a general observation has been made to the effect that "an analysis of Sub-rules (a) and (b) of Rule 71 would show that, ordinarily, the date of compulsory retirement of a Government servant in superior service is the date on which he attains the age of 55 years. This, however, has no application to a ministerial servant who was in permanent Government service on 31-3-1936 whose date of retirement is ordinarily 60 years as prescribed in Sub-rule (b)." In that case, the Division Bench was concerned in deciding the right of the Petitioner under the proviso to Rule 71(a) of the Orissa Service Code and the necessity for interpreting Rule 71(b) did not arise. Further, as it appears from the judgment, the pronouncement of the Supreme Court in the decision reported in Kailash Chandra Vs. Union of India (UOI). and the previous decision on his Court reported in Durga Charan Das Vs. The State of Orissa which directly dealt with the interpretation of the appropriate provision were not brought to the notice of the Division Bench. In my opinion, it will be unreasonable to treat the above observation in the decision reported in Nabin Kishore Ray v. State of Orissa and Anr. 36 (1970) C.L.T. 720, to have been intended to decide or as a decision of this Court on the correct interpretation of Rule 71(b) of the Orissa Service Code. 77. For the reasons discussed above, I am clearly of the opinion that though Petitioners are governed by Rule 71(b) of the Orissa Service Code, they do not possess any legal or justiciable right to bold or continue in the posts after attaining the age of 55. In the absence of any legal right in the Petitioners, the very foundation to maintain the applications under Article 22(5) of the Constitution disappears, and on this ground alone the applications are to be dismissed. 78. In the absence of any legal right in the Petitioners, the very foundation to maintain the applications under Article 22(5) of the Constitution disappears, and on this ground alone the applications are to be dismissed. 78. Point No. 3 - Next it was contended by learned Counsel that even if it is held that Petitioners do not possess any legal right to the posts after attaining the age of 55, they are entitled to continue in the said posts unless and until they are required to retire by a positive order purporting to be under that sub-rule. When I asked him as to how they call claim continuance in the posts once it is held that they have no legal right to the posts on attainment of the age of 55, learned Counsel stated that their continuance is by way of sufferance as they have not been required to retire. Such a contention, in my opinion, amounts to nothing short of a contradiction in terms. Firstly, once it is held that they have no right to the posts after attainment of a particular age, it is difficult to appreciate how they can be entitled to continue to hold such posts. Secondly, if continuance is to be, treated as a matter of sufferance as put by learned Counsel, it is not a legal right which can be enforced by an application under Article 226 of the Constitution. 79. Point No. 4 - The next contention on behalf of Petitioners is that even if it is held that the age of superannuation for ministerial servants governed by Rule 71(b) is attainment of the age of 55, and consequently they have no legal right absolute or qualified to hold the posts thereafter till attachment of the age of 60, still the impugned orders retiring them are liable to be quashed for the reason that Rule 71(b) envisages a power or right in the State of requiring a ministerial servant to retire on attainment of 55th year coupled with a statutory duty or obligation of considering the question of their retention the tee after. It is contended that the words "may be required to retire" ocurring in Rule 71(b) if contrasted with the language used in Rule 71(b) which Uses the words "the date of compulsory retirements clearly indicate that Rule 71(b) vests the right or power in the State to require a ministerial servant to retire coupled with a duty of considering his retention or non-retention at that stage. In the present cases as the State or the concerned authorities by the impugned orders do not purport to have required the Petitioners to retire by a positive order under Rule 71(b) after performing its or their statutory obligation of considering the question of their retention or non-retention, the same are liable to be struck down. I do not agree with this contention. 80. Power and duty are co-relative terms. Only in cases where the existing legal rights of one are sought to be affected by exercise of a power vested in an authority, it will be correct to say that a corresponding duty may be imposed on that authority regulating the occasion or manner of exercise of that power. As already discussed above the settled position is that the ministerial servants have no legal right to hold or continue to hold the posts after attainment of their 55th year, the conditions of their service providing for termination of service by way of superannuation at that age. Therefore, the words "require to retire" occurring in the first part of Rule 71(b) cannot" he interpreted to mean that though they have no legal right to continue in service beyond 55 years, a power is given to terminate such right on attainment of that age. On the other hand, in the context, the words are intended to emphasis that though their age of retirement is also 55, an option is available to the appropriate authority to retain them thereafter, if it so chooses. The word "retain" means "to keep, to hold back, to employ". If on attainment of the 55th year termination of service was not intended to take place under the conditions of service, the word ''retain" would not have occurred in the succeeding clause. The second clause which enables the employer to retain envisages only an option or liberty in him and not a duty. If on attainment of the 55th year termination of service was not intended to take place under the conditions of service, the word ''retain" would not have occurred in the succeeding clause. The second clause which enables the employer to retain envisages only an option or liberty in him and not a duty. As such, it will not be correct to say that Rule 71(b) of the Orissa Service Code contains a power by exercise of which the right of a servant can be put an end to by requiring him to retire nor can it be said that it contains an obligation of performing a statutory duty of considering further retention in service after attainment of a particular age. If the option contained in the second clause is interpreted as a statutory duty, it will militate against the observations made by the Supreme Court that the State is not bound to retain such a servant even if he continue sufficient. In this context, it may be useful to compare the provision contained in Rule 71(d) with that contained in RULE 71(b) of the Orissa Service Code. The former vests a power in Government to require a Government servant to retire on completion of twenty-five years of qualifying service even before attaining tile age of superannuation, if it is considered that the efficiency of the servant is not such as to justify his retention in service. This provision can be said to contain a power in exercise of which the right of the servant to a particular post can be prematurely put an end to, the duty coupled with it being to consider and come to a conclusion that his efficiency is not such as to justify his retention in service. On the other, hand, Rule 71(b) deals with a case of retirement on attaining the age of superannuation and does not contemplate affecting the legal right of the servant in any manner by so retiring him. 81. The fact that the State did not exercise an option which is clearly within its desertion, an option exercise or non-exercise of which does not affect, the rights of a ministerial servant cannot affect the validity of the orders passed in each of these cases asking them to retire. A similar question was involved in the case reported in C.A. Rajendran Vs. Union of India (UOI) and Others. A similar question was involved in the case reported in C.A. Rajendran Vs. Union of India (UOI) and Others. The Petitioner therein challenged the validity of the Memorandum issued by the Government of India providing no reservation for Scheduled Castes or Scheduled Tribes for appointment to certain categorical of higher posts, while reservation was provided in respect of certain categories's of lower posts, on the ground that it violated the guarantee given under Article 16(4) read with Article 335 of the Constitution. The petition was rejected holding that Article 16(4) does not confer any right on the Petitioner nor impose a constitutional duty on Govt. to make reservation for Scheduled Castes and Tribes. Article 16(4) being an enabling provision conferred only a discretionary power in the State to make reservation in favour of backward class citizens. Similarly, Rule 71(b) of the Orissa Service Code only confers a discretion or option in the concerned authority to retain a servant after superannuation in certain circumstances and does not impose a duty on it. Therefore, the contention that Rule 71(b) of the Orissa Service Code contains a power coupled with duty or the State has failed to perform any statutory duty imposed upon it has no merit. 82. The next relevant point for consideration is the tenure and rights of holders of civil posts under the State. The position is beyond controversy that substantive appointment to a permanent post gives the civil servant so appointed a right to hold the post until under the rules he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years of service. Termination of his service during this tenure cannot be brought about except by way of punishment, in which case, provisions of Article 311 of the Constitution will be attracted. Articles 309, 310 and 311 of the Constitution deal with the topic of conditions of service tenure of office, and protection provided for holders of civil posts, Article 310 which contains the doctrine of pleasure deals with the tenure of office of persons serving under the Union or the State and provides that such office is to be held during the pleasure of the President, if the post is under the Union or, during the pleasure of the Governor, if the post is under the State. Article 310(1) begins with the clause "except as expressly provided by this Constitution". In other words, this provision embodying the doctrine of pleasure is subject to some exceptions, one of which is contained in Article 311. Thus, the doctrine of pleasure embodied in Article 310 is to be exercised subject to the limitations prescribed in Article 311 which constitutes a proviso to it. In Moti Ram's case, the Supreme Court, while examining these relevant Articles, observed that Article 309 has to be read subject to Articles 310 and 311 and Article 310 has to be read subject to Article 311. 83. The above being the position of law, the question is whether the impugned orders retiring the Petitioners on attainment of 55 years will amount to a punishment which will attract the protection of Article 311 of the Constitution which prescribes a limitation to the doctrine of pleasure contained in Article 310(1). If the action of the State or the appropriate authorities in retiring the Petitioners in the circumstances mentioned above will not constitute a punishment, the Petitioners cannot have any right to question the validity of the orders. It is not the case of Petitioners that the orders by which they were asked to retire carry any stigma or has resulted in evil consequences to them. It is not their case that by such retirement they have been deprived of their pensionary benefits. All that is said is that there is absence of a specific and positive order purporting to retire them under Rule 71(b), a rule framed under Article 309 of the Constitution. Once it is held that Petitioners have no legal right to the posts after attaining the age of 55, termination of their service by way of retirement cannot amount, to a punishment which will attract the application of Article 311 of the Constitution, simply because the orders of retirement do not purport to be under Rule 71(b), a rule framed under Article 309 of the Constitution. On this ground also, the applications are not maintainable. 84. Lastly, it was argued that even though the State may have the power to retire the Petitioners under Rule 71(b) of the Orissa Service Code, the impugned orders purporting to be in accordance with Rule 71(a) are not valid. This contention, in my opinion, is equally untenable. As has been observed by the Supreme Court in P. Balakotaiah Vs. 84. Lastly, it was argued that even though the State may have the power to retire the Petitioners under Rule 71(b) of the Orissa Service Code, the impugned orders purporting to be in accordance with Rule 71(a) are not valid. This contention, in my opinion, is equally untenable. As has been observed by the Supreme Court in P. Balakotaiah Vs. The Union of India (UOI) and Others that no exception can be taken to the proposition that when an authority passes an order which is within us competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule and the validity of an order should be judged on a consideration of its substance and not its form. 85. Thus considered from any point of view, though Petitioners come within the ambit of Rule 71(b) of the Orissa Service Code, they have no legal right to the posts which they held after attainment of their 55th year and as the orders of retirement do not amount to punishment which will attract the application of Article 311 of the Constitution, the petitions are not maintainable. Accordingly, the three writ applications are dismissed but in the circumstances without costs. B.C. Das, J. 86. I agree. ORDER 87. In view of the majority opinion, the writ applications are allowed with costs. The impugned letter (Annexure-18) dated 19-2-1969 in O.J.C. No. 230 of 1969; Order (Annexure-2) dated 1-5-1968 in O.J.C. No. 714 of 1968 ; and order (Annexure-2) dated 25-3-1968 in O.J.C. No. 726 of 1968 be quashed by issue of writs of certiorari. The Petitioners shall be deemed to be continuing in service until the appropriate authority requires them to retire under Rule 71(b). They are also entitled to arrears of pay. Writs of mandamus be accordingly issued. Hearing fee of Rs. 200/- in each case. Final Result : Allowed