( 1 ) THIS is an appeal from a Judgment of Anil Kumar Sen, J. upon a writ petition filed by the respondent before us directing the appellants not to give effect to an order of compulsory retirement made on April 29, 1971 under Rule 56 (j) of the Fundamental Rules. The respondent was holding the post of Secretary to the Coal Controller when the order retiring him was passed. ( 2 ) FUNDAMENTAL Rule 56 (j) reads : ?notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice; (i) if he is class I or class II Service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years; (ii) in any other case after he has attained the age of fifty years; Rule 56 (j) has a proviso which is not relevant for the purpose of this appeal. ( 3 ) ONE of the grounds on which the decision of Sen J. rests is that Rule 56 (j) is not applicable to the respondent as the requirements of the Rule are not satisfied in this case. There is no dispute that the post of Secretary to the Coal Controller is a class I post under the Government of India. It is also not disputed that the respondent was born on November 12, 1918 and was thus more than fifty years of age when the order under Rule 56 (j) was passed. The dispute is on the question whether the other requirement of the Rule is satisfied, that is, whether the respondent had entered Government service before attaining the age of thirty five years. According to the respondent he entered Government service long after he was thirty five. It is necessary therefore to trace the respondent's career backward and ascertain the nature of the employments held by him before he was appointed Secretary to the Coal Controller. According to the respondent he entered Government service long after he was thirty five. It is necessary therefore to trace the respondent's career backward and ascertain the nature of the employments held by him before he was appointed Secretary to the Coal Controller. ( 4 ) IN July, 1940 when he was aged twenty two Sri Garga entered the subordinate service of the Government of Uttar Pradesh as an accountant in the office of the Director of Agriculture. In March, 1949 Sri Garga was a little over thirty when he was appointed on deputation to the post of Secretary to the Coal Mines Labour Welfare Commissioner. The Coal Mines Labour Welfare Commissioner is appointed under the Coal Mines Labour Welfare Fund Act 1947 (Act 32 of 1947 ). Sri Garga was confirmed in the said post on September 18, 1949 and on confirmation his lien on the Uttar Pradesh Subordinate Service ceased. He left the post of Secretary to the Coal Mines Labour Welfare Commissioner and was appointed Secretary to the Coal Commissioner, subsequently designated as Coal Controller, on August 3, 1955. As stated already, this is a class I post under the Government of India. Sri Garga was confirmed in this post on June 14, 1960. On January 18, 1961 Shri Garga was sent on deputation to act as Deputy Secretary of the Coal Board, which was a statutory authority. On February 5, 1971 Shri Garga's deputation with the Coal Board came to an end and he rejoined the office of the Coal Controller. On April 29, 1971 the impugned order under Fundamental Rule 56 (j) was made retiring him from the service. ( 5 ) IT is clear from the dates mentioned above that on August 3, 1955 when he was appointed Secretary to the Coal Controller, Shri Garga was more than thirty six years of age. The question is whether the period during which he was acting as Secretary to the Coal Mines Labour Welfare Commissioner or functioning as a member of the Uttar Pradesh Subordinate Service Shri Garga can be said to have been in Government Service within the meaning of Clause (i) of Rule 56 (j ). Shri Garga was twenty-two when he joined the Uttar Pradesh Subordinate Service and thirty-one when he was appointed Secretary to the Coal Mines Labour Welfare Commissioner. Shri Garga was twenty-two when he joined the Uttar Pradesh Subordinate Service and thirty-one when he was appointed Secretary to the Coal Mines Labour Welfare Commissioner. If, as the appellants contend, Shri Garga's employment in the Uttar Pradesh Government Service and as Secretary to the Coal Mines Labour Welfare Commissioner, or at any rate the latter office, amounts to ?government Service?, then Rule 56 (j) is attracted to his case; if not, the impugned order would be without jurisdiction as Sen, J. has held. ( 6 ) WE propose to consider first the nature of Shri Garga's employment as Secretary to the Coal Mines Labour Welfare Commissioner. The Coal Mines Labour Welfare Officer is appointed by the Central Government under section 9 of the Coal Mines Labour Welfare Fund Act, 1947? to supervise and carry out measures financed from the Fund?. ?fund? as defined in section 2 of the Act means the Coal Mines Labour Housing and General Welfare Fund constituted under section 4 of the Act. Section 3 of the Act provides, inter alia: -?there shall be levied and collected as a cess for the purposes of this Act a duty of excise on all coal and coke despatched from collieries in the territories to which this Act extends, at such rate not less than 4 annas and not more than 8 annas per ton as may from time to time be fixed by the Central Government by notification in the Official Gazette. ? section 4 states, inter alia, that the proceeds of the duty levied under section 3 shall be paid by the collecting agencies into the Reserve Bank of India at Calcutta in the prescribed manner, and shall be credited to a fund to be called the Coal Mines Labour Housing and General Welfare Fund. Section 5 provides that the cost of administering the Fund and the salaries and allowances, if any, of the Commissioner, Inspectors, Welfare officers and other staff shall be defrayed out of the Fund. Section 9 authorises the Central Government to appoint a Coal Mines Labour Welfare Commissioner and such number of Inspectors, Welfare Officers and other staff as it thinks fit to supervise and carry out measures financed from the Fund. Under section 10, the Central Government may make Rules to carry into effect the purposes of the Act. Section 9 authorises the Central Government to appoint a Coal Mines Labour Welfare Commissioner and such number of Inspectors, Welfare Officers and other staff as it thinks fit to supervise and carry out measures financed from the Fund. Under section 10, the Central Government may make Rules to carry into effect the purposes of the Act. Rule 42 of the Coal Mines Labour Welfare Fund Rules, 1949 states: ?persons paid from the Fund shall not be deemed to be Government servants, notwithstanding that the Central Government may direct that service rules applicable to Government servants generally may apply, with or without modification to such persons. ? ( 7 ) THOUGH under section 9 of the Coal Mines Labour Welfare Fund Act, 1947 it is the Central Government that appoints a Coal Mines Labour Welfare Commissioner and other staff to supervise and carry out measures financed from the Fund, Rule 42 of the Rules framed under the Act provides that persons paid from the Fund shall not be deemed to be Government servants. In terms of Section 5 of the Act the salary of the Secretary to the Commissioner is paid out of the Fund and as such, as Rule 42 makes it clear, he cannot be called a Government servant. This position seems to be fairly clear but on behalf of the appellants an argument was built based on the word ?deemed? occurring in Rule 42 to get out of the difficulty. It was contended that Rule 42 creates a statutory fiction that persons paid out of the Fund are not to be deemed as Government servants which indicated that in reality they are so. The decision of the Privy Council I (1) Income Tax Commissioner v. Bombay Trust Corporation, 57 I. A. 49 was cited as an authority in support of this contention. It is difficult to see how this decision helps the appellants. The Privy Council points out that ?when a person is deemed to be something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were?. Sen, J. therefore rightly observes in his judgment that ?if Rule 42 introduces a fiction that fiction has to be given effect to and there is no reason why in applying Rule 56 (j) the fiction is to be ignored?. Sen, J. therefore rightly observes in his judgment that ?if Rule 42 introduces a fiction that fiction has to be given effect to and there is no reason why in applying Rule 56 (j) the fiction is to be ignored?. This argument is also fallacious for another obvious reason. Rule 42 says that persons paid from the Fund shall not be deemed to be Government servants. This implies that but for Rule 42 such persons might have been taken to be Government servants and the Rule provides against these persons being deemed as such. Rule 42 does not create a legal fiction but prohibits a fiction created. The argument as to the scope and effect of a statutory fiction would therefore seem to be entirely irrelevant. Any doubt as to the correct position was removed by the notification dated May 20, 1959 which said that with effect from March 1, 1959 employees of the Coal Mines Labour Welfare Fund would be considered as Government servants. Rule 42 was also suitably amended and made consistent with the changed position brought into effect from March 1, 1959. Thus the period the respondent served as an employee of the Coal Mines Labour Welfare Fund which ended in August 1955 cannot be said to have been spent in Government service. ( 8 ) THE respondent in paragraph 2 of the Writ petition of course described the post of Secretary to the Coal Mines Labour Welfare Commissioner as ?class one (junior scale ) post under the Government of India? but obviously the statement was made, as Sen, J. observes, ?upon a misapprehension of his own legal position? and the learned Advocate for the appellants fairly conceded that this did not stop the respondent from seeking to prove upon the materials on record that the said post was really not a post under the Government of India. ( 9 ) ON behalf of the appellants it was next contended in that any event, the respondent's tenure of office in the Government of Uttar Pradesh must be held to be Government service and as the respondent was appointed to the said service before he had attained the age of thirty five years, Rule 56 (j) was applicable to him after he attained the age of fifty years while serving as Secretary to the Coal Controller. Assuming that the respondent's employment with the Government of Uttar Pradesh was Government service as contemplated in Fundamental Rule 56 (j), the said rule could not still be applied to him because the rule contemplates at least fifteen years of uninterrupted Government service. We have found that the respondent cannot be said to have been in Government service during the period he spent as an employee of the Coal Mines Labour Welfare Fund and this period coming in between the respondent's tenure of office in the Government of Uttar Pradesh and his appointment as Secretary to the Coal Controller causes a break in his employment as a Government servant. It is clear, as Sen, J. has pointed out, that Rule 56 (j) (i) ensures fifteen years' continued Government Service before the Rule can be applied; that this is the correct position would appear from the decision of the Supreme Court in (2) Union of India v. J. N. Singh, A. I. R. 1971 S. C. 40. In Paragraph 8 of the report the Supreme Court observes: -?fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there is in public interest?. The minimum service guaranteed under Rule 56 (j) is fifteen years' uninterrupted service and as such the period spent by the respondent in the service of the Uttar Pradesh Government cannot be taken into account to satisfy the requirement of Rule 56 (j ). ( 10 ) APART from this, we do not find it possible to agree that the expression Government service in Fundamental Rule 56 (j) (i) would include service under the Government of Uttar Pradesh. ( 11 ) TO show that the expression means not only service under the Government of India but also a State Government service, the learned Advocate for the appellants referred to Section 3 (23) of the General Clauses Act which provides that the term ? government? or ?the Government? shall include both the Central Government and any State Government. He argued that the expression ?government service? government? or ?the Government? shall include both the Central Government and any State Government. He argued that the expression ?government service? in Rule 56 (j) (i) should therefore include in the instant case service with the Government of Uttar Pradesh which Shri Garga entered when he was aged 22. It was contended that Rule 56 (j) was therefore applicable to the respondent. This argument overlooks the opening words of section 3 of the General Clauses Act. Section 3 which defines certain words and expressions starts with the qualifying words that the definitions would apply ?unless there is anything repugnant in the subject or context. ? The question, therefore, is whether in the context of Rule 56 the expression, Government service in Clause (j) (i) thereof could be said to include service in a State Government. Rule 56 (j) empowers the appropriate authority to retire any ? government servant?. It is not disputed that Government servant here means only the Central Government servant but the learned Advocate for the appellants contended that the expressions 'government servant' occurring in Rule 56 (j) and 'government service' in 56 (j) (i) have been used in two different senses, while 'government servant' referred only to Central Government servant, 'government service' included service under a State Government as well. In support of this contention reliance was placed on a Full Bench Decision of this Court in (3) Khamankari Dasi v. Rani Harshamukhi, 47 CWN 582. We find it difficult to see how this case helps the appellants unless the following words, which I have taken the liberty to underline, quoted in the judgment from the decision in (4) Knightsbridge Estates Trust Ltd. v. Byrne (1940) A. C. 613 (621), are taken as supporting the appellants' contention: ?it is perhaps worth pointing out that the words, 'unless the context otherwise requires' which we find in the consolidating Act of 1929 are not to be found in the Amending Act of 1928. I attribute little weight to this fact for in my opinion some such words are to be implied in all statutes where the expressions which are interpreted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character?. I attribute little weight to this fact for in my opinion some such words are to be implied in all statutes where the expressions which are interpreted by a definition clause are used in a number of sections with meanings sometimes of a wide and sometimes of an obviously limited character?. All that the Calcutta decision holds relying on the case reported in (4) 1940 A. C. 613 is that the definitions in a statute are to be applied subject to the context in which the words defined occur. It has to be seen therefore whether the expressions Government servant and Government service both occurring the Rule 56 (j) refer to two different kinds of service. It is also a settled rule of construction that the same expression occurring twice in a section should not be construed differently unless the context compels such a construction. On a plain reading of Clause (j) of Rule 56 one does not find any compelling reason to construe the two expressions to mean two different kinds service. The position is made clear beyond doubt by a note appearing below Clause (c) of Rule 56. Clause (c) provides interalia that a ministerial Government servant who entered 'government Service' or before the 31st March 1938 and who fulfils the requirement mentioned in that Clause shall be retained in service till he attains the age of sixty years. A note appended to this Clause says that for the purpose of this Clause the expression Government service includes service rendered in a former provincial Government. It is clear therefore that but for this note extending the meaning of the expression Government service to include service in a Provincial Government, it would have meant service under the Government of India. As Sen, J. has observed this by necessary implication makes it plain that the expression Government service in Rule 56 (j) (i) means service under the Government of India. ( 12 ) THE learned Advocate for the appellants however contended that as Clause (j) begins with the words ?notwithstanding anything contained in this Rule?, it was not permissible to refer to Clause (c) of Rule 56 to interpret Clause (j ). We are unable to read the non-obstante clause in Rule 56 (j) in the manner suggested by the learned Advocate for the appellants. We are unable to read the non-obstante clause in Rule 56 (j) in the manner suggested by the learned Advocate for the appellants. Rule 56 (j) vests the appropriate authority with the absolute right to retire any Government servant in a case where the requirements specified in that clause are satisfied. This power is given to the authority notwithstanding anything contrary contained in Rule 56. It is plaint in the context that the non-obstante clause in Clause (j) refers to such provisions in Rule 56 as are contrary to that contained in Clause (j ). Rule 56 (c) does not contain any provision contrary to or inconsistent with Rule 56 (j) and reference to clause (c) of Rule 56 is not prohibited in construing the expression Government service in Clause (j) (i ). ( 13 ) ANOTHER ground on which Sen, J. allowed the writ petition is that the order of compulsory retirement was arbitrary. In paragraph 1, 2 and 17 of the petition the petitioner describes his record of service under the various authorities extending over thirty years in course of which he had never received any adverse remark. In paragraph 19 of the petition he refers to a letter dated January 21, 1971 addressed to him by the secretary, Coal Board, wanting to know if he was prepared to resign his appointment under the Government of India to be absorbed under the Coal Board permanently. Paragraphs 20 to 26 state the circumstances in which in spite of the fact that the petitioner was willing to be so absorbed, his deputation was terminated and he was reverted to the office of the Coal Controller, how on the verbal advice of the Chairman of the Board, instead of reporting for duty to the Coal Controller, he had to proceed on leave and extend the leave from time to time until on May 6, 1971 the order of compulsory retirement was delivered to him at his residence. In paragraphs 28 and 29 the petitioner contends that having regard to his excellent record of service the order of compulsory retirement could not be benafide and in public interest. The order, it is alleged, is arbitrary being based on extraneous consideration. In paragraphs 28 and 29 the petitioner contends that having regard to his excellent record of service the order of compulsory retirement could not be benafide and in public interest. The order, it is alleged, is arbitrary being based on extraneous consideration. In paragraph 21a to 31d of the petition the petitioner sought to make out a case against Shri P. K. Ghosh, the then Chairman of the Coal Board, that he was responsible for bringing about the impugned order of retirement but this case was given up at the hearing of the writ petition. The allegation that the impugned order was arbitrary and based on extraneous consideration however remains. Except for a vague suggestion that the petitioner's career was not entirely without blemish, the appellants do not appear to have questioned in their affidavit-in-opposition the statements made by the petitioner concerning his record of service. It is not claimed by the appellants that the alleged blemish in the petitioner's record to service, of which no particulars have been mentioned, formed the basis of the impugned order. Thus though the order of compulsory retirement was challenged as arbitrary and not bonafide, the appellants did not disclose any material to show that the impugned order was made in the public interest. Sen, J. relying principally on the decision of the Supreme Court in (2) Union of India v. J. N. Sinha, A. I. R. S. C. 40 and the decision of the Delhi High Court in (5) Colonel J. N. Sinha v. Union of India, 1971 92) Services Law Reporter 470 held that the impugned order was arbitrary and not based on relevant consideration. In (2) Union of India v. J. N. Sinha the Supreme Court in paragraph 8 of the report observes that under Fundamental Rule 56 (j) 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. The right conferred on the appropriate authority is an absolute one. 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 bonafide forms that opinion, the correctness of that opinion cannot be challenged before Courts. 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 bonafide 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 ground or that it is an arbitrary decision?. The Supreme Court at first dismissed the writ petition filed by Colonel J. N. Sinha as would appear from the report; thereafter by order dated November 18, 1970 the Supreme Court reviewed the decision dismissing the writ petition and remanded the proceedings to the Delhi High Court. After remand the Delhi High Court allowed the Writ petition. The view taken by the Delhi High Court would appear from the following extract from the judgment after remand reported in (5) 1971 (2) Services Law Reporter (VIII) 470: ?as pointed out by the Supreme Court in its judgment dated the 12th August, 1970 the right conferred on the appropriate authority is an absolute one, but that right or power can be exercised only 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 the public interest to do so. The Supreme Court observed that if the authority bonafide forms that opinion, the correctness of that opinion cannot be challenged before the Courts, but that ?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'. The said observation clearly points out that the formation of the requisite opinion by the appropriate authority is one of the conditions for the exercise of the power conferred by the Rule, and that the decision to retire a Government servant under the Rule should not be arbitrary, which means that it should be based on some ground or material which is germane to the question whether it is in the public interest to retire the said Government servant. If the decision is based on no such ground or material or is based on a ground or material which is not germane to the issue it would be an arbitrary decision. Since the Rule provides for the formation of the requisite opinion by the appropriate authority and not justiciable but some ground or material germane to the issue must exist, and it is open to a court to examine whether such ground or material exists or not?. ( 14 ) ON behalf of the appellants reliance was placed on the case of (6) State of Uttar Pradesh v. Shyamlal, AIR 1971 SC 2151 in support of the proposition that if the order of compulsory retirement did not on the face of it disclose any illegality, it was not permissible to look into the Government files seeking to discover some material upon which it could be argued that the order was illegal. Possibly this decision was referred in justification of non-disclosure of any material to refute the charge that the order was arbitrary. Special emphasis was laid on the following lines of judgment: -? where the authorities can make an order of compulsory retirement for any reason and no reason is mentioned in the order it cannot be predicated that the order of compulsory retirement is an inherent stigma in the order?. It is clear that the appropriate authority can make an order of compulsory retirement for any reason, but that reason obviously must be such as to show at least prima facie that the order was made in the public interest. The observation quoted above cannot be applicable to a case where the order is challenged as being based on extraneous consideration. This is clear from the sentence appearing next to the observation quoted: -?in the present case, the fact found is that the order of compulsory retirement could not be said to be on account of notice. ? besides, (6) The State of Uttar Pradesh v. Shyamlal is a case which does not appear to be at all relevant for the present purpose. This was a case where it was contended that the order of compulsory retirement was passed by way of punishment or penalty and the observation relied on by the appellants was made in that context. besides, (6) The State of Uttar Pradesh v. Shyamlal is a case which does not appear to be at all relevant for the present purpose. This was a case where it was contended that the order of compulsory retirement was passed by way of punishment or penalty and the observation relied on by the appellants was made in that context. That the impugned order was unexceptionable in form and was duly authenticated has also no bearing on the question whether the order was arbitrary and based on extraneous consideration. Reference to Article 77 of the Constitution and Section 114 (g) of the Evidence Act made on behalf of the appellants is therefore irrelevant. The position therefore is that if it is challenged that the power given to an authority has not been exercised on relevant consideration, it is for the authority concerned to disclose prima facie materials to support its action. Sen, J. refers to the following observation of Hidayatullah, J. in (7) Barium Chemicals Ltd. v. The Company Law Board, AIR 1967 SC 295 (309 ). ?since the existence of 'circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusions of certain definiteness?. The decision of the Supreme Court is (2) State of Uttar Pradesh v. J. N. Sinha and the aforesaid observation of the Supreme Court in (7) Barium Chemicals Ltd. v. The Company Law Board, though made in a slightly different context, seem to be conclusive on the point. The law laid down by the Supreme Court in (2) State of Uttar Pradesh v. J. N. Sinha has been followed by a Division Bench of this Court in (8) A. C. Bose v. Union of India, Appeal from Original Order No. 432 of 1973 decided on November 26, 1973 (unreported ). On these authorities and upon the facts stated above the finding recorded by Sen. J. that the impugned order was arbitrary and not based on relevant consideration must be affirmed. As all the contentions raised on behalf of the appellants fail, the appeal is dismissed but in the circumstances of the case without any order as to costs. On these authorities and upon the facts stated above the finding recorded by Sen. J. that the impugned order was arbitrary and not based on relevant consideration must be affirmed. As all the contentions raised on behalf of the appellants fail, the appeal is dismissed but in the circumstances of the case without any order as to costs. S. K. Datta J. : I agree. Appeal Dismissed.