Krishna Prasad Srivastava v. Union of India — 1973 DIGILAW 148 (ALL)

ORDER Om Prakash Trivedi, J. - It is a Petition under Article 226 of the Constitution of India by Krishna Prasad Srivastava. He was appointed a Signaller in the erstwhile B. & N. W. Railway Company on 1-10-1937 carrying a pay scale of Rs. 20-2-3-25-30. Thereafter the petitioner was promoted and transferred as Control Clerk in the Control Office of the O. T. Railway. Gonda by order dated 7-8-1947 (Annexure 1 to the Writ petition). From this post he was promoted as Section Controller and ultimately to the post of Deputy Controller (Stock) in the year 1949 in the N. E. Railway on which post he is still working. The petitioner maintains that his true date of birth is 1-4-1914 but it was incorrectly recorded in the service records as 19-2-1914. He contends further that he was appointed originally to the post of signaller in a clear and permanent post in a substantive capacity and before 31-3-1938 he held a lien against the said permanent post. His duties as Deputy Controller (Stock) are entirely clerical and under rule 2046 (b) (1) of the Indian Railway Establishment Code. Volume II which is applicable to his case, his age of superannuation is 60 years and not 58 years and calculated from his true date of birth (1-4-1914) he would retire on 1-4-1974. But on 9-12-1971 the petitioner was served with a communication issued by the Divisional Superintendent. N. E. Railway opposite party No. 2 stating that the petitioner would retire from service on 19-2-1972 after completing 58 years of age (Annexure 5). He challenges the legality of annexure 5 on the ground that it proceeds on the erroneous basis that the age of superannuation of the petitioner is 58 years and that his date of birth is 19-2-1914. It is prayed that Annexure 5 may be quashed by a certiorari and a mandamus issued directing opposite parties to treat the petitioner's age of superannuation as the date when he attains the age of 60 years viz., 1-4-1974 and to forbear from interfering with his right to continue in service until he attains the age of 60 years. The petition is contested by the opposite parties who filed a counter affidavit. The petition is contested by the opposite parties who filed a counter affidavit. It is admitted that the petitioner was appointed a Signaller on 1-10-1937 in the then B. and N. W. Railway Company but the opposite parties dispute that he was appointed in a substantive capacity or held a lien on any permanent post on 31-3-1938. It is admitted that he was subsequently promoted to the post of Deputy Controller (Stock) but they controvert that the petitioner is a ministerial Railway servant or that his duties are entirely ministerial. The opposite parties, therefore maintain that sub-clause (i) of clause (b) of rule 2046 of the Indian Railway Establishment Code, Volume II does not apply to the petitioner's case and that his age of superannuation is 58 years and not 60 Years. They deny also that his date of birth has been incorrectly recorded in the service records. 2. I have heard learned counsel for the parties. From the arguments of the parties the following two questions arise for determination. 1. Whether the age of superannuation of the petitioner is 60 years or not? 2. Whether his true date of birth is 1-4-1914 and the same has been incorrectly recorded in the service records as 19-2-1914? 3. Coming to the first question the petitioner relies upon amended rule 2046 of the Indian Railway Establishment Code. Volume II in connection with the age of compulsory retirement. Rule 2046 was amended by order of the president (vide Railway Board's letter No. PC-62/RT/1 dated 11-1-1967, Annexure 3 to the writ petition). The amended rule reads as follows: "2046 (a). Except as otherwise provided in this rule every railway servant shall retire on the day he attains the age of fifty eight years. (b) A ministerial railway servant who entered Government service on or before the 31st March, 1938 and he held on that date. (i) a lien or a suspended lien on a permanent post, or (ii) permanent post in a provisional substantive capacity under clause (d) rule 2008 and continued to hold the same without interruption until he was confirmed in that post, shall be retained in service till the day he attains the age of sixty years. Note: For the purpose of this clause, the expression 'Government service' includes service rendered in Ex-Company and Ex-State Railway and in former Provincial Government. Note: For the purpose of this clause, the expression 'Government service' includes service rendered in Ex-Company and Ex-State Railway and in former Provincial Government. (c) to (i)....." The petitioner contends that as a Deputy Controller (Stock), the post on which he is at present working he is a ministerial railway servant within the meaning of clause (b) of rule 2046 and that he held a lien on a permanent post on 31-3-1938 and therefore, he is entitled to the benefit of clause (b), sub-clause (i) of rule 2046 and his age of superannuation is 60 years. The opposite parties contest not only that the petitioner is a ministerial railway servant but also that he held a lien on a permanent post on or before March 31, 1938. I will deal first with the question whether in order to attract the benefit of clause (b) (i) of Rule 2046 the petitioner held a lien on a permanent post. It is not disputed that the petitioner was appointed a signaller in the B. & N. W. Railway Company on 1-10-1937 by Annexure 6 but the opposite parties contend that he was appointed a Signaller on 1-10-1937 in a temporary capacity in the relieving list and that not having passed the Line Clear Examination within three months as required by the order of appointment (Annex. 6) he was not confirmed before 31-3-1938. The petitioner was appointed signaller on 30-9-1937 by a letter of which Annex. 6 is a copy. The letter says that the petitioner is appointed as a signaller on a salary of Rs. 22/- per mensem and posted to Gonda. He was directed to proceed to Gonda and report himself to the District Traffic Superintendent for orders. It directed that his services will commence from the date of his joining at Gonda and that he will be required to pass an examination in the system of Line Clear working within three months from the date he will be placed on the unpaid list and that he will be confirmed as signaller on his passing the Line Clear Examination. In para 15 (a) of the petition it is averred that the petitioner had passed the Line Clear Examination on 16-7-1937 and was confirmed from 1-10-1937 the date of his appointment in the scale of Rs. 20-2-3-25-30. In para 15 (a) of the petition it is averred that the petitioner had passed the Line Clear Examination on 16-7-1937 and was confirmed from 1-10-1937 the date of his appointment in the scale of Rs. 20-2-3-25-30. It was further averred that from the date of his appointment the petitioner was given one advance increment of Rs. 2/- and his initial pay was fixed at Rs. 22/-: that the letter of appointment dated 30-9-1937 was issued in printed form from the office of the Traffic Manager and the record showing that the petitioner passed the Line Clear Examination was maintained in the District Office and for this reason the letter of appointment dated 30-9-1937 omitted to take note of this fact and portion of the printed form, which, as a routine, required the passing of the Line Clear Examination within three months as a condition precedent to confirmation was not scored. It is further stated that the petitioner's service record contains a note of his passing the Line Clear Examination on 16-7-1937 and that along with the letter of appointment (Annexure 6) the petitioner also received an enclosure of which Annexure 7 to the petition is a copy, being copy of letter dated 30-9-1937, signed by the Traffic Manager addressed to the District Traffic Superintendent. Gonda, with reference to his wire of 29-7-1937. The latter was required to report when the petitioner joined the place of his posting and directed that a stamped agreement form should be executed by him and sent to the office for record. The petitioner relied upon an extract from para 2. Chapter VII of Bengal and North Western Railway Audit and Accounts Department Manual of Standing Orders and Circulars which says that all employees except menials when confirmed in their appointment will be required to sign a stamped service agreement in the approved form (Annexure 9). In para 15 (b) of the petition it is averred that under the relevant rules of the Ex-B. & N. W. Railway Company an employee of the company could draw an increment or contribute to the provident fund only on his being confirmed. In para 15 (b) of the petition it is averred that under the relevant rules of the Ex-B. & N. W. Railway Company an employee of the company could draw an increment or contribute to the provident fund only on his being confirmed. For the contention that the petitioner was appointed signaller in a substantive capacity on 1-10-1937 and that he should be taken to have been confirmed on that very date the petitioner relies on the following three circumstances: (1) That he drew one advance increment on the date of appointment: (2) That he began to contribute to the provident Fund from the same date: and (3) That he was asked to execute service agreement bond at the time of his appointment. It is not disputed in the counter affidavit that the petitioner passed the Line Clear Examination on 16-7-1937 i.e. before his appointment as Signaller a fact definitely averred in pars 15 (a) of the petition. It is admitted in para 4 (i) of the counter affidavit dated 30-8-1972 sworn by D. N. Srivastava that the petitioner's starting salary was Rs. 22/- a fact evident from the letter of appointment (Annexure 6) also. The opposite parties do not controvert in any counter affidavit that the petitioner was appointed Signaller in the scale of Rs. 20-2-3-25-30. Further, it is not disputed that under the prevailing rules of the B. & N. W. Railway Company an employee of the Company was not Entitled to draw an increment or contribute to the provident Fund unless he was confirmed: nor is it disputed and indeed it could not be disputed in the face of Annexure 9, that upon confirmation all employees of the said Company except menials were required to sign a stamped service agreement. The opposite parties only contend that the agreement bond was actually executed by the petitioner on 23-1-1940. No doubt the petitioner does not dispute the fact that the agreement bond was actually executed by him on 23-1-1940 but he relies upon the circumstance that he was required to execute bond by the original of Annexure 7 on 30-9-1937 when the order of appointment was passed in his favour. It is mainly on the basis of the fact that the agreement bond was executed by the petitioner in 1940 that the opposite parties maintain that the petitioner was confirmed in January. It is mainly on the basis of the fact that the agreement bond was executed by the petitioner in 1940 that the opposite parties maintain that the petitioner was confirmed in January. 1940 and therefore, he should not be held to hold a lien on a permanent post on 30-3-1938 in order to attract the benefit of Rule 2046 (b) (i) of the Indian Railway Establishment Code (hereinafter called the Code). I am of the opinion that although there is no specific order of confirmation in favour of the petitioner and although there was no rule providing for automatic confirmation, yet the circumstances brought out from the petitioner's side indicate without any room for controversy that the petitioner was treated as confirmed employee on the date on which he joined as a Signaller in other words his appointment as Signaller was a substantive appointment. Annexure 8 is a copy of the minutes of discussion held in the office of the Senior Personnel Officer. N. E. Railway, on 2-6-1964. It says that the authorities were unable to trace from the records whether there was any procedure for issuing confirmation orders or recording the same in the service register of the employees in the time of B. & N. W. Railway Company. However, it has been found that an employee of the Company could neither draw an increment nor contribute to the provident fund unless he was confirmed". This as already stated, has not been disputed for the opposite parties and must be taken to be well established. Now not only is it true that at the time of his appointment the petitioner drew one increment of Rs. 2/- but also that he began to contribute to the provident fund from the date of his initial appointment as Signaller. The appointment letter does not give the pay scale of the petitioner but the same is given in para 15 (a) of the petition as Rs. 20-2-3-25-30. This has never been disputed. The Traffic Manual of the B. & N. W. Railway Company says that a Signaller on his initial appointment will get a pay of Rs. 20/- and after passing the Line Clear working he will draw Rs. 22/- per month. According to the service record of the petitioner which was produced by the opposite parties, the petitioner began drawing salary at the rate of Rs. 25/- per month from 1-10-1939. 20/- and after passing the Line Clear working he will draw Rs. 22/- per month. According to the service record of the petitioner which was produced by the opposite parties, the petitioner began drawing salary at the rate of Rs. 25/- per month from 1-10-1939. The Traffic Manual further says that the Signaller will get a salary at the rate of Rs. 25/- after two years of his appointment. It follows, therefore, that the petitioner drew one increment at the time of his appointment which is compatible only with the hypothesis that he was appointed in a substantive capacity and treated as a confirmed employee. According to the letter of appointment the only condition imposed for confirmation of the petitioner was his passing the Line Clear Examination. The petitioner's contention that he had passed the said examination even before his appointment on 16-7-1937 has not been disputed and therefore, it must be taken as proved that he had already passed the Line Clear Examination before his appointment and appointed substantively in recognition of which fact given one advance increment at the time of his appointment. As the letter of appointment was on a printed form that portion of the printed form which required the passing of Line Clear Examination within three months necessary as a condition to confirmation appears to have been left unscored inadvertently. In arguments reliance was placed for the opposite parties on para 3 at page 2 of Annexure 8 and an argument was raised that on the basis of para 3 of this document the petitioner should have been placed on probation before confirmation. The contents of para 3 of Annexure 8 do not support this argument because it does not say that in the case of every first appointment the employee shall be placed on probation for one year. Indeed this provision could not apply to the petitioner as it relates to clerical staff. Besides, the order of appointment does not say that the petitioner shall remain on probation. Another argument was that the petitioner could not be taken to have been confirmed when he drew an advance increment of Rs. 2/- and had been contributing to the provident fund because there could be no automatic confirmation. As to this, the matter must depend ultimately on the prevailing rules. If the rules provided for automatic confirmation then it will be so. 2/- and had been contributing to the provident fund because there could be no automatic confirmation. As to this, the matter must depend ultimately on the prevailing rules. If the rules provided for automatic confirmation then it will be so. The opposite parties did not produce any rules which might show that there was no provision for automatic confirmation. In fact Annexure 8 shows that the authorities were unable to trace the procedure or the rules concerning confirmation prevailing during the time of the Company. In para 15 (b) of the petition it is averred that the petitioner's contribution as a compulsory subscriber towards provident Fund was deducted from the date of his appointment i.e., 1-10-1937. He also gave in the petition his provident fund subscriber number. This averment was not denied by the opposite parties in the counter affidavit and in para 4 of the counter affidavit dated 30-8-1972 sworn by D. E. Srivastava they chose to plead ignorance on the question whether the petitioner subscribed to the provident fund with effect from 1-10-1937. The opposite parties are evidently in possession of relevant records and were expected to deny this part of the petitioner's case with reference to the record if it was factually incorrect. Not having done so it must be taken as proved that the petitioner began to subscribe to the provident fund with effect from 1-10-1937, the date of his initial appointment and as it is established from the minutes of discussion (Annexure 8 that under the Company rules an employee of the Company was eligible to contribute to the provident fund only after confirmation, the fact that the petitioner began to subscribe to the same from the date of appointment is an additional factor leading to the conclusion that the petitioner's appointment to the post of Signaller was in a substantive capacity. The fact that he was asked by the letter of 30-9-1937 (Annexure 7) to execute an agreement also shows that the petitioner's appointment was treated in a substantive capacity and he was treated as a confirmed employee. The instruction for execution of such an agreement could not have been issued in the letter, of which Annexure 7 is a copy, were it not so. The instruction for execution of such an agreement could not have been issued in the letter, of which Annexure 7 is a copy, were it not so. This conduct of the Traffic Manager is also consistent only with the petitioner's contention that his appointment was in a substantive capacity and it is quite immaterial that the agreement in respect of this requirement was actually executed by the petitioner in January, 1940. To add to this there was petitioner's averment in para 2 of the petition that his appointment to the post of signaller was in a clear and permanent post. This significant averment also remained unchallenged in the counter affidavit and must, therefore, be taken as proved. In this connection an argument raised for the opposite parties to the effect that the petitioner was appointed initially in the relieving list may here be noticed. No doubt the service record of the petitioner which was produced by the opposite parties, contains an entry showing that the petitioner was first appointed on the relieving list but that in itself will not necessarily imply that the appointment of the petitioner was in a temporary post or that the appointment was temporary. Even a person appointed substantively can be drafted on relieving duty. In pare 4 of the rejoinder affidavit dated 12-7-1972 the petitioner reiterated that he was appointed Signaller in a substantive capacity against a clear and permanent post though for administrative reasons his services were utilised in the relieving list. There is no reason to think that this could not be the case and in the absence of a denial of the pleading that his initial appointment was in a clear and permanent vacancy the fact that the petitioner worked in the relieving list will not show that his appointment was not in a substantive capacity. All these circumstances cumulatively point to the conclusion that the petitioner was appointed substantively as Signaller on a permanent post on 1-10-1937 and I hold that in terms of Rule 2046 (b) (i) of the Code the petitioner held a lien on a permanent post on 31-3-1938. 4. In order, however, to be entitled to the benefit of this provision the petitioner must further establish that he is a ministerial railway servant who entered Government service on or before 31-3-1938 as required by Sub-clause (b) of the said rule. 4. In order, however, to be entitled to the benefit of this provision the petitioner must further establish that he is a ministerial railway servant who entered Government service on or before 31-3-1938 as required by Sub-clause (b) of the said rule. From the above discussion it is no doubt established that the petitioner will be deemed to have entered Government service before 31-3-1938 as by the note below the rule, service rendered in the Ex-Company and Ex-State Railways is included in the expression 'Government service', but it remains to be seen whether the petitioner is a ministerial railway servant. 5. "Ministerial servant" is defined in Rule 2003 (17) of the Code as follows: "Ministerial servant means a railway servant of a subordinate service whose duties are entirely clerical and any other class of servants specially defined as such by general or special order of a competent authority." Under the second part of Rule 2003 (17) the Railway Board which is the competent authority classified railway servant as ministerial staff for the purpose of Rule 2046 (2) of the Code (Vide Annexure A-1 dated 1-8-1951 filed by the opposite parties with their counter affidavit dated 16-3-1972 in opposition of a stay application). The post of Deputy Chief Controller or Deputy Controller (Stock) is not included in the various categories of staff which were declared under the circular as ministerial staff for the purpose of the above rule. The petitioner places reliance on the first part of rule 2003 (17) and maintains that he is a ministerial servant of a subordinate service as the duties of a Deputy Controller (Stock) are entirely clerical. It is not disputed that the post of Deputy Controller (Stock) belongs to the subordinate service but the opposite parties seriously controvert that the duties of a Deputy Controller (Stock) are entirely clerical. According to the opposite parties there is no separate category or cadre of Deputy Controller (Stock). This is correct. The book 'entitled Schedules of Authorised Scales of pay of Class III Staff of Transportation and Commercial Departments' gives the following designations of existing posts: Chief Controller. Deputy Chief Controller. Section Controller Gr. I and Section Controller Gr. II. Guards Gr. A. B and C. etc. It does not contain any separate post with the designation of Deputy Controller (Stock). The book 'entitled Schedules of Authorised Scales of pay of Class III Staff of Transportation and Commercial Departments' gives the following designations of existing posts: Chief Controller. Deputy Chief Controller. Section Controller Gr. I and Section Controller Gr. II. Guards Gr. A. B and C. etc. It does not contain any separate post with the designation of Deputy Controller (Stock). It is not disputed that the petitioner is drawing pay in the same pay scale which is admissible to a Deputy Chief Controller. The extract from the new chart of Class III staff of the N. E. Railway (Annexure A-4 filed with the counter affidavit of the opposite parties dated 30-8-1972) shows that the next post to which a Section Controller can be promoted is the post of Deputy Chief Controller and the only post to which a Deputy Controller can be promoted is Chief Controller. It is admitted in the petition that the petitioner was first promoted to the post of Section Controller and thereafter he was appointed Deputy Controller (Stock). As already stated, the pay scale of Deputy Controller (Stock) is the same as that of Deputy Chief Controller. It follows from these documents that from the post of Section Controller the petitioner must have been promoted to the post of Deputy Chief Controller and it is this post which he is at present holding although he is working as Deputy Controller (Stock). In Annexure A-6 which is a letter issued from the office of the Chief Operating Superintendent, N. E. Railway the duty list of the Deputy Chief Controller is given as follows:- Deputy Chief Controller: - To supervise the work of Section Controller; allotment and supply of wagons passing of Line Stock Report figure to Central Control; trains arrangement: to check the work of Section Controller: to obtain the position of important yards daily: to coordinate the work of Section Controller and where necessary to issue instructions to them to pay particular attention to the position of Transhipment points. It is clear that the duties of a Deputy Chief Controller are operational and administrative and not clerical. It is clear that the duties of a Deputy Chief Controller are operational and administrative and not clerical. Annexure A-6 further contains a note to the effect, that there is no separate category of Deputy Stock Controller and Stock Controller and, the work of stock is done by the Deputy Controller and Section Controller; in some Control Offices one of the Deputy Controllers is ear-marked as a Stock Controller with fixed hours of work every day. During this period he performs the functions of Deputy Controller as also Stock Controller. There is no doubt that there is no separate category or cadre of Deputy Controller (Stock) and that there is only one category or cadre and that is the cadre of Deputy Chief Controller. It is the Deputy Chief Controller who is at times posted to perform the duties of the Deputy Controller (Stock) either exclusively or in addition to his own duties for part of the day. The petitioner relies on the Operating Circular No. 4, dated 15-2-19,59 which says that in some Control Offices there are separate Controllers namely. Stock Controllers to look after the goods stock movement exclusively. In the supplementary rejoinder affidavit dated 21-11-1972 the petitioner affirms that up to the filing of this petition he was holding the post of Deputy Controller (Stock) at the office of the Divisional Superintendent N. E. Railway. Lucknow and that during this period he was not concerned with duties connected with the movement of trains and allotment of wagons and he was never appointed as Deputy Controller (Movement) during this period. In para 5 of this rejoinder affidavit the petitioner has listed the duties of the Deputy Controller (Stock) which appear to be entirely clerical in nature. It may well be that in some control offices there are separate Controllers, namely, Controllers to look after goods stock movement exclusively. The petitioner himself discloses in this rejoinder affidavit that there is the post of a Deputy Controller (Movement) in the office of the Divisional Superintendent North Eastern Railway. But it is plain that the posts of Deputy Controller (Movement) and Deputy Chief Controllers (Stock) belong to the same grade i.e., the grade of Deputy Chief Controller. The petitioner himself discloses in this rejoinder affidavit that there is the post of a Deputy Controller (Movement) in the office of the Divisional Superintendent North Eastern Railway. But it is plain that the posts of Deputy Controller (Movement) and Deputy Chief Controllers (Stock) belong to the same grade i.e., the grade of Deputy Chief Controller. It appears that at present and for some time past the petitioner has been performing entirely clerical duties as a Deputy Controller (Stock) in the office of the Divisional Superintendent, N. E. Railway, but this cannot be a basis for holding that the petitioner is a ministerial servant in the sense that his duties are entirely ministerial because there is no category or cadre such as Deputy Controller (Stock) and there is only one category or cadre which belongs to the post of Deputy Chief Controller. The Deputy Chief Controller can be posted sometimes to perform the duties of Deputy Controller (Movement). When that is the case he is performing operational duties. He may also be posted to perform either wholly or part time the duties of a Deputy Controller (Stock) in which case he would be performing entirely clerical duties if he does not perform his own duties which belong to the post of Deputy Chief Controller. In para 3 of the supplementary counter affidavit dated 21-9-1972 the opposite parties have categorically disputed that the duties of the petitioner are entirely clerical. The facts and documents placed on record bear out this contention. The material on record shows that the post which the petitioner holds is the post of Deputy Chief Controller although he may be working on a post which carries designation of Deputy Controller (Stock). The duties of the post which he holds viz., the post of Deputy Chief Controller, are administrative and not ministerial-much less entirely ministerial. In the definition of 'ministerial service' contained in rule 2003 (17) of the Code the emphasis is on the word 'entirely' which means that the duties of the railway servant concerned should be wholly and not partially clerical. What the definition concerns itself with is the post which the railway servant holds and not the post on which he may be for the time being working. What the definition concerns itself with is the post which the railway servant holds and not the post on which he may be for the time being working. The duties of the post which he holds should be entirely clerical and it does not matter that the post on which he may be working for the time being are entirely clerical. In other words it is the duties of the post which the railway servant concerned holds which are relevant for the purpose of rule 2003 (17) and not the duties of the post on which he may, for the time being, have been working. If the duties of the post which the railway servant holds are not entirely clerical he would not become a ministerial servant under the first part of rule 2003 (17) if at the relevant time he is working on a post the duties of which are entirely clerical. For were it otherwise the railway servant may start claiming the benefit of the 60 years rule, if for some time before the age of compulsory retirement he happens to be working on a post the duties of which are entirely clerical though the duties of the post which he may be holding may not be so. As upon my finding the petitioner holds the post of a Deputy Chief Controller he could at any time be posted as Deputy Chief Controller. He could also be posted as Deputy Chief Controller (Movement). The duties of either post would not have been entirely clerical and he cannot take advantage of the fortuitous fact that he happens to be working on the post of Deputy Controller (Stock) and performing entirely clerical duties. 6. I conclude that the duties of the post which the petitioner holds are not entirely clerical and therefore, he is not a ministerial servant: clause (b) of R. 2046 of the Indian Railway Establishment Code, Volume II does not apply to him notwithstanding the fact that he entered service before 31-3-1938 and held a lien on a permanent post on the said date. The age of retirement in this case, therefore, is not 60 but 58 years. The question is decided accordingly against the petitioner. 7. The age of retirement in this case, therefore, is not 60 but 58 years. The question is decided accordingly against the petitioner. 7. Coming now to the question of age of the petitioner, as the petition must fail on my finding that the age of retirement of the petitioner is not 60 years but 58 years. I do not consider it necessary to enter into the question as to what is the true date of birth of the petitioner because even if his contention that his date of birth is 1-4-1914 were accepted the age of superannuation has already expired. The petitioner, therefore is not entitled to any relief and the petition is liable to be dismissed. On the facts and circumstances of the case there should be no order as to costs. 8. The petition is dismissed. No order as to costs.