Judgment SHAMBHU PRASAD SINGH, J. 1. The petitioner who is employed as a peon under the Union of India, respondent No. 2, in the Eastern Railway and at present posted at Dinapur, by this writ application under Articles 226 and 227 of the Constitution of India prays for quashing the order contained in Annexures 1 and 2 as unconstitutional and to declare Rule 2046 of the Indian Railway Establishment Code as ultra vires the Constitution. By Annexure 1 which is a letter dated 12th of July, 1971, from the Assistant Engineer, Eastern Railway, Dinapur, respondent No. 1, to the petitioner he was told that he was going to attain the age of 58 years on 8th of January, 1972. He was further told of the leave due to him and to deposit railway properties which were in his possession before going on leave preparatory to retirement. Annexure 2 is another letter of the same nature dated 12th of August, 1972, which was sent to the petitioner by the P. Way Inspector, Eastern Railway, Dinapur. In the writ application the petitioner further prays that it be declared that the petitioners service will continue till 8th of January, 1974. Admittedly the petitioner was born on 19th of January, 1914. He joined railway service as a "boy" in the then East India Railway Company on the 9th of January, 1928. Thereafter he worked as a peon in the office and still working as such. His case is that he has always worked efficiently without any break in the service and he having entered the service before the 31st of March, 1938, was entitled to be retained in service till the date he completed the age of 60 years. 2. A counter-affidavit has been filed on behalf of the respondents. It has been stated, inter alia, therein that the petitioner was made to retire from service with effect from 9th of January, 1972, on attaining 58 years of age, the age of superannuation and that under the service conditions he was not to work until he completes the age of 60 years. It has been stated, inter alia, therein that the petitioner was made to retire from service with effect from 9th of January, 1972, on attaining 58 years of age, the age of superannuation and that under the service conditions he was not to work until he completes the age of 60 years. A supplementary counter-affidavit has also been filed on behalf of the respondents stating, inter alia, that the petitioner was not entitled to take advantage of Rule 2046 (e) of the Indian Railway Establishment Code , Volume II, as he was not entitled to serve up to the age of 60 years on 1st of December, 1962. It is further stated in the supplementary counter-affidavit that prior to the amendment of Rule 2046 (e), no railway servant except those who were governed by the ex-company rules or ex-State Railway rules or rules of former Provincial Governments were entitled to serve beyond the age of 55 years which was subsequently raised to 58 years. The effect of the amendment, therefore, according to the respondents, as stated in the supplementary counter-affidavit, is that except those railway servants of Class IV who were governed by the ex-company rules or ex-State Railway Rules or rules of former Provincial Governments and who were in service on 1-12-1962 and were entitled to serve in the zonal railways up to the age of 60 years and the inferior railway servants of the Railway Board who were also to retire at the age of 60 years, no other class IV staff could be retained in service beyond the age of 58 years. Reference in this connection has been made in the supplementary counter-affidavit to Railway Boards letter dated 22nd of February, 1972, Annexure C. 3. The only question which arises for decision in the case is what is the age of superannuation for the petitioner according to the Rules. Reference in this connection has been made in the supplementary counter-affidavit to Railway Boards letter dated 22nd of February, 1972, Annexure C. 3. The only question which arises for decision in the case is what is the age of superannuation for the petitioner according to the Rules. Rule 2046 (e) as it stands "at present after amendment, runs as follows: "Railway servants in Class IV service or post who prior to 1st December, 1962 were entitled to serve up to the age of sixty years including the new entrants to those categories shall continue to serve up to the age of sixty years." It is manifest from the rule that it fixes age of retirement at 60 not only for those railway servants in Class IV service or post who prior to 1st December, 1962, were entitled to serve up to the age of 60 years, but also for the new entrants to those categories. If the new entrants to those categories are entitled to be in service up to the age of 60 years, other railway servants in Class IV service or post who prior to 1st December, 1962, were not entitled to serve up to the age of 60 years including the new entrants to those other categories should also be allowed to continue to serve up to the age of 60 years. According to the supplementary counter-affidavit filed on behalf of the respondents, except the inferior railway servants of the Railway Board, only those railway servants of Class IV who were governed by the ex-company rules or ex-State railway rules or rules of former provincial Governments from the categories which are entitled to the benefit of Rule 2046 (e), as it stands at present after amendment. If that interpretation be given to this rule, then the respondents will be discriminating between Class IV railway servants who were ex-company employees, ex-State railway employees and former provincial Governments railway employees on the one hand and other Class IV railway employees on the other. If that interpretation be given to this rule, then the respondents will be discriminating between Class IV railway servants who were ex-company employees, ex-State railway employees and former provincial Governments railway employees on the one hand and other Class IV railway employees on the other. As observed in Railway Board v. A. Pitchumani, AIR 1972 SC 508 = (1972 Lab IC 305) and -Navnit Lal Manilal Bhat v. Union of India, (1973) 1 Lab LJ 425 = (1973 Lab IC 780) (SC), though there might be a reasonable classification of railway servants as ex-company employees and others, there is no nexus or relation between the classification and the object sought to be acchieved and the rule, therefore, to that extent will be ultra vires. In AIR 1972 SC 508 = (1972 Lab IC 305) the Supreme Court was considering Rule 2046 (b) the main portion whereof runs as follows: "2046 (FR 56). (b) A ministerial railway servant who entered Government service on or before the 31st March, 1938 and held on that date (i) a lien or a suspended lien on a permanent post, or (ii) a permanent post in a provisional substantive capacity under Clause (d) of the 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." The rule in this form was introduced by the amendment dated January 11, 1967. This had also a note as follows: "Note: For the purpose of this Clause, the expression "Government Service" includes service rendered in ex-company, and ex-State Railways, and in former Provincial Government." On December 12, 1967, the following was substituted for the note quoted above: "For the purpose of this clause, the expression "Government Service" includes service rendered in a former Provincial Government and in ex-Company and ex-State Railways, if the rules of the Company or the State had a provision similar to clause (b) above." The Supreme Court struck down "if the rules of the company or the State had a provision similar to clause (b) above" on the ground that this part of the note was discriminatory and violative of Article 14 of the Constitution. In my opinion, for the same reasons, the words "who prior to 1st December, 1962, were entitled to serve up to the age of sixty years" shall have to be struck down of Rule 2046 (e). 4. In Annexure C to the supplementary counter-affidavit, reference has been made to Rules 1 and 9 of Appendix XLI of the Indian Railway Establishment Code , Volume II, and it is stated that Rule 2046 (e) is applicable only to those railway servants who are referred to in Schedule I t8 the said appendix, i.e., all inferior staff in the Rail way Boards office who were pensionable and the persons specifically mentioned in para 2 thereof as also to all the new entrants to Class IV service or post in the Railway Boards office. This interpretation of the Railway Board of Rule 2046 (e) does not appear to be correct for according to the very supplementary counter-affidavit railway servants of Class IV who were governed by the ex-company rules or ex-State railway rules or rules of former Provincial Governments and who were in service on 1st December, 1962, were also entitled to serve up to the age of 60 years. Either on the language of Rule 2046 (e) or on the case of the respondents, it is not possible to confine the application of this rule only to those mentioned in Annexure C to the supplementary counter-affidavit. 5. It has also been contended by Mr. P. K. Bose, learned Counsel for the respondents, that the petitioner is not a railway servant and, therefore, Rule 2046 (e) cannot apply to him. In support of this contention he has drawn our attention to Rule 2003 (25) of the Indian Railway Establishment Code , Volume II, which defines railway servant and reads as follows: "Railway servant means a person who belongs to a service or holds a post under the administrative control of the Railway Board. It also includes a person holding the post of the Chief Commissioner of Railways, the Financial Commissioner of Railways or a Member of the Railway Board. Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition." According to Mr. Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition." According to Mr. Bose, the petitioner is not a person who belongs to a service or holds a post under the administrative control of the Railway Board. It is remarkable that nowhere in the counter-affidavit or in the supplementary counter-affidavit it is expressly stated that service to which the petitioner belongs and the post which he holds is not under the administrative control of the Railway Board. Rather the supplementary counted-affidavit itself refers to and relies on directions issued by the Railway Board, which are made annexures to it, on the question of construction of Rule 2046 (e) and its application to Class IV staff of the Railways. The Indian Railway Board is constituted in accordance with the provisions of the Indian Railway Board Act, 1905 (Act 4 of 1905). Section 2 of this Act, inter alia, lays down that the Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the powers or functions of the Central Government under the Indian Railway Act, 1890 with respect to all or any railway. Notification Nos. 801 dated the 24th March, 1905, 9940 dated the 17th December, 1906, 2972 dated the 8th April, 1907 and 2140 dated the 28th February, 1908, conferred various powers under the Act on the Railway Board. These powers included even the power to make rules under Section 47 of the Indian Railway Act. The Railway Board, therefore has got administrative control over all the railways in India. Even from the documents which have been made annexures to the supplementary counter-affidavit, it is manifest that the eastern railway is under the administrative control of the Railway Board. Reference may also be made to Rule 101 (12) of the Indian Railway Establishment Code , Volume I, which also defines Railway Servant and reads as follows : "Railway servant means a person who is a member of a service or who holds a post under the administrative control of the Railway Board and includes a person who holds a post in the Railway Board. Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not come within the scope of this definition." It becomes apparent from this rule that a service or post under the administrative control of the Railway Board is not synonymous with a post in the Railway Board. It is, therefore, not possible to accept the contention of learned counsel for the respondents that the petitioner is not a railway servant as he does not belong to a service or holds a post in the Railway Boards office. 6. It has also been contended by learned counsel for the respondents that Railway Board is a necessary party to this writ application and the writ cannot be allowed in its absence. It is not necessary to quash or struck down any instruction issued by the Railway Board. What is being struck down is a portion of the rule of the Indian Railway Establishment Code , Volume II. Union of India has been made a party to this writ application. True it is that Union of India has been made a party through the General Manager, Eastern Railway and not through the Ministry of Railway, but, in my opinion, the application cannot fail on account of this technical objection. Mr. Bose has appeared for Union of India as well and has made all the submission which could have been made if someone would have appeared on behalf of the Ministry of Railways. 7. In the result, the application is allowed. The offending portion of R. 2046 (e) namely, "who prior to 1st December, 1962, were entitled to serve up to the age of sixty years" is struck down as discriminatory and violative of Article 14 of the Constitution. Let a writ issue quashing Annexures 1 and 2 and declaring that the petitioner is entitled to continue in service till he attains the age of 60 years. In the circumstances of the case, however, there will be no order as to costs. SHIVESHWAR PRASAD SINHA, J. 8 I agree.