JUDGMENT : G.K. Misra, C.J. - The Petitioner was made to retire by Member, Board of Revenue (O.P. No. 1) on 1-9-1970 on his attaining the age of 55 years. By then, he was holding the post of the personal assistant to the Member, Board of Revenue, Orissa. He was appointed as a typist, on probation, on 9th February, 1937, and was confirmed in a permanent post on 9-11-1939. (See Para 3 of the Counter-affidavit). 2. The Petitioner?s stand Is that his retirement is governed by Rule 75(b) of the Bihar and Orissa Service Code (hereinafter to be referred to as ?the Bihar Rules?), and not by Rule 71(a) of the Orissa Service Code (hereinafter to be referred to as the ?the Orissa Rules?) under which he has been made to retire. The case of the opposite parties is that the Petitioner was rightly retired under Rule 71(a) of the Orissa Rules. 3. It is not disputed that at the time of retirement, he was a ministerial servant, and that if Rule 71(80) of the Orissa Rules applies, the Petitioner was rightly retired on 1-9-1970, and the writ application is liable to be dismissed. The only point is whether Rule 75(b) of the Bihar Rules applies to this case. That rule runs thus: 75(b) A Ministerial servant 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 Provincial Government. This rule corresponds to Rule 71(b) of the Orissa rules which is as follows: 71(b) A Ministerial servant who was in permanent Government service on 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. Both these rules are almost identical except for the difference that in the Bihar Rule a ministerial servant may be permanent or temporary, whereas in the Orissa rule such ministerial servant must be in permanent Government service on 31-3-1936. Both these rules are almost identical except for the difference that in the Bihar Rule a ministerial servant may be permanent or temporary, whereas in the Orissa rule such ministerial servant must be in permanent Government service on 31-3-1936. We need not, however, pursue this difference, as it is not disputed that Rule 71(b) has no application to the present case. 4. A ministerial servant who had entered into Government service on or after 1.4.1939 will be clearly governed by the Orissa Rules. But the present case is one where the Petitioner entered into Orissa Government service, after the formation of the Province of Orissa, on 9.2.1937. The question that requires answer in this case is: What would be the rule of retirement that would govern government servants who entered into Orissa Government service on or after 1.4.1936 and prior to 1.4.1939. 5. Rules 1, 2 and 3 of the Orissa Rules run thus: (1) This Code of Rules I lay be called the Orissa Service Code. Except where otherwise provided, the rules contained herein shall come into force with effect from the let April, 1939. (2) This code shall apply to all persons, appointed to public services and posts in connection with the affairs of the State (hereinafter referred to as the Government Servants); (Notification No. 14362 F. Dated 15-4-1966). (3) 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 or by the terms of any contract or agreement subsisting between such persons and the Government or to confer on him any right or privilege in respect of any matter for which specific provision is made by the terms of any contract or agreement between himself and the Government. Ordinarily, Government servants entering into Orissa Government service between 1-4-1936 and 1-4-1939 would have been governed by the Orissa Rules by virtue of Orissa Rule 2. But Orissa Rule 3 guaranteed a protection to the aforesaid class of persons that nothing in the Orissa Rules would work out to their prejudice if they had any right or privilege under any law. 6. There is no dispute that the Bihar Rules constituted the law governing the service conditions of ministerial servants who entered into Orissa Government service before 1st April, 1939. 6. There is no dispute that the Bihar Rules constituted the law governing the service conditions of ministerial servants who entered into Orissa Government service before 1st April, 1939. Orissa Rule 71(a), so far as is relevant, is as follows: 71(a) Except 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. Under Orissa Rule 71(a) the Petitioner is automatically to retire at the age of fifty-five, while under the Bihar Rules 75(b) he is to retire at any age between 55 to 60 years, according of the right to retire him is exercised by the appropriate authority. Bihar Rule 75(b) is thus more advantageous to the Petitioner than Orissa Rule 71(a) . He has a higher privilege under Bihar Rule 75(h), in as much as until the appropriate authority exercises the option to retire him, he can continue in service upto the 60th year, and would not retire automatically at the age of 55th year, as in Orissa Rule 71(a). If Orissa Rule 3 had not granted the protection, the aforesaid class of ministerial servants would have been governed by the Orissa "Rules. If Orissa Rule 71(a) applies to the present case, the Petitioner has to retire on his attaining 55th year, which, in fact, has been done in this case. In this case, the appropriate authority has not exercised the option to r tire the Petitioner by applying Rule 75(b) of the Bihar Rules, on a misconceived notion that Orissa Rule 71(a) applies to his case. 7. In the case of Lingaraj Patnaik v. District Judge of Cuttack and Ors. In this case, the appropriate authority has not exercised the option to r tire the Petitioner by applying Rule 75(b) of the Bihar Rules, on a misconceived notion that Orissa Rule 71(a) applies to his case. 7. In the case of Lingaraj Patnaik v. District Judge of Cuttack and Ors. 1971 C.L.T. 1, a Fun Bench of this Court held (See paragraphs 20 to 22) that under Rule 75(b) of Bihar Rules corresponding to Rule 71(sic) of Orissa Rules, the appropriate authority has the right ?to retire a ministerial servant on his attaining the 55th year, but until that right or option is exercised, the ministerial servant is to continue in office until he reaches his 60th year. Under those Rules, there is (sic) fixed date of retirement. It is any date in between 55th and the 60th year, which would vary according to the facts and circumstances of each case. If the appropriate authority retires the ministerial servant at the age of fifty-five, the age of retirement in that case would be the fifty-fifth year. If, on the other hand, the, right to retire is exercised at an intermediate date, then that intermediate date would be the date of retirement. Applying those tests to the present case, the Petitioner?s age of retirement under the Bihar Rule 75(b) cannot be said to be his fifty-fifth year. The appropriate authority has not applied Rule 75(b) of the Bihar Rules to his case, and came to a conclusion that he should be retired by wrongly applying Orissa Rule 71(a). 8. On the aforesaid analysis, we sum up our conclusion thus: (i) By virtue of Rule 3 of the Orissa Rule, 75(b) of the Bihar Rules would govern the Petitioner?s age of retirement. (ii) Though the appropriate authority can retire the Petitioner at any stage, in between the 55th and the 60th year, the appropriate authority has not, in fact, applied its mind to the Petitioner?s case of retirement under Rule 75(b). On the others and, the Petitioner?s Case was considered under Orissa Rule 71(a) under 8 misconception that Rule applies to his case. 9. In the result, the writ application is allowed. The Petitioner shall be deemed to continue in service until the appropriate authority requires him to retire under Bihar Rules 75(b). He is also entitled. to his arrears of pay. A Writ of mandamus would accordingly issue. 9. In the result, the writ application is allowed. The Petitioner shall be deemed to continue in service until the appropriate authority requires him to retire under Bihar Rules 75(b). He is also entitled. to his arrears of pay. A Writ of mandamus would accordingly issue. In the circumstances, there would be no order as to costs. S.K. Ray, J. 10. I agree. Final Result : Allowed