Shanker Lal v. Union of India — 1976 DIGILAW 313 (RAJ)

SACHAR, J.—This writ petition will also dispose of the connected writ petitions as it is common case between the counsel of the parties that the points raised are common and the decision in this writ petition will govern the others also. 2. All the petitioners are at present working in the Indian Audit and Accounts Department. They challenge the action of the respondent retiring them on reaching the age of 58 and maintain that the are entitled to continue upto 60 years as they are ministerial Government servants who entered Government service before 31.3.1938 in terms of Fundamental Rule 56(c). The Department however maintains that they are liable to retire on attaining the age of 58 years in terms of Fundamental Rule 56(a). It is this dispute which is common in all these cases, and calls for decision. 3. On 5.6.1937 the petitioner was appointed as a Bank Audit Clerk in the State Bank of Dholpur. He was subsequently appointed permanently as a Clerk Education in Maharajas High School, Dholpur on 25.10.1937. The petitioner worked in various capacities and with effect from 1.9.48 his services were transferred in a substantive capacity in Matsya Union on the post of Senior Auditor. On 7-4 1949 various princely States came to be integrated in Rajasthan State. The Accountant Generals Office in the various States also were integrated and the Department of Accountant General was taken over by the new State of Rajasthan. After the coming into force of the Constitution and financial integration of the States the Comptroller and Auditor General of India assumed the functions of Audit and Accounts of the various States including that of Rajasthan with effect from 1-4-50 in the same way under which he was performing the various duties and exercising the various powers in relation to the Accounts of the Part A State. 4. The President of India in exercise of powers conferred upon him by the provisions of Article 309 and Clause 5 of the Art. 148 of the constitution after consula-tion with the Auditor General of India in respect of persons taken over in Indian and Audit Departments made the rules calleda the Central Civil Services (Part B States Transferred employees) Rules, 1953 (hereinafter to be called the 1953 Rules) which came into force in the case of transferred employees like the petitioners with effect from 1-4-50. 5. 5. Rule 2(c) (ii) of 1953 rules defines State rules to mean the rule and order relating to the conditions of service of Government employees is force in the case of any other State immediately before 1.4.50 and includes any such rules or orders approved by the Government in respect of any such employees subsequent to that date. 6. Rule 6 of the 1953 Rules provides that a transferred employee shall on absorption in a Department under the Government elect on or before the date to be specified in this behalf by the Government to be governed by the State Rules or Central Rules. The election shall be for the State Rules or the Central Rules as a whole and not in part or parts thereof. 7. Rule 9(i) provided that a transferred employee who elects the Central Rules shall be subject to the Revised Leave Rules, 1933 as amended from time to time. Rule 9(2) reads as under:— R. 9(2) A transferred employee who elects Central Rules or who opts for the revised scale of pay under sub-rule (1) of rule 8-A shall be subject to the Revised Pension Rules as applicable to post 1938 entrants as amended from time to time and all the permanent or temporary service rendered by him under State Government prior to absorbtion shall be treated as permanent and temporary service rendered under Government. Provident Provided that a transferred empolyee who was subscribing to a Contributory Provident Fund shall be brought on to pensionable service under Government and thereafter he shall not be allowed to subscribe to the Contributory Fund. The Government may issue orders regarding the extent to which past service shall count towards pension." Explanation to rule 2 reads as under:— "For the purposes of this sub-rule, the expression all the permanent or temporary service rendered by him under the State Government prior to absorption" shall mean the total length of service, whether permanent or temporary, rendered by a transferred employee in any Acceding State, a Union of States and a Part B State prior to the date of such absorption." 8. Rule 9(4) stated that for the purpose of determining the age of retirement for ministerial Government servants, the provisions of Fundamental Rule 56(b)(ii) shall apply. Rule 9(4) stated that for the purpose of determining the age of retirement for ministerial Government servants, the provisions of Fundamental Rule 56(b)(ii) shall apply. 9 It is common case that all the petitioners in these writ petitions had opted for Central Rules and would be governed by Rule 9(1) and 9(4) of the 1953 Rules. Fundamental Rule 56(b)(i) and 56(b)(ii) at that time read as under : — 56(b)(i) A ministerial servant who is not governed by sub-clause (ii may be required to retire at the age of 56 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 local Government." "56(b)(ii). A ministerial servant (1) who enters Government service on or after the 1st April, 1938, or (2) who being in Government service on the 31st March 1938, did not hold a lien or a suspended lien on a permanent post on that date, 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 Local Government he must not be retained after the age of 60 years except in very special circumstances." 10. These Fundamental Rules were however amended in 1965 and subsequent to that the Rules at present read as under:— "F.R. 56(a) except as otherwise provided in this rule, every Government servant shall retire on the day he attains the age of fifty-eight years. (b) A workman who is governed by these rules shall be retained in service till the day he attains the age of sixty years. (c) A ministerial Government 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 Cl. (d) of Rule 14 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 a former provincial Government." 11. (d) of Rule 14 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 a former provincial Government." 11. The petitioner whose date of birth is 14-1-1914 represented to the respondents maintaining that he was governed by the Fundamental Rule 56(c) and therefore was entitled to be retained in service till he attains the age of 60 years. The respondents however informed him that his case was governed by Fundamental Rule 56(a) and therefore he would reach the age of superannuation at 58 years age and not 60. This is the common grievance which has led the petitioner and others to come to this Court. 12. The petitioners maintain that they were holding permanent posts prior to 31-3-1938 in princely States and that they are ministerial Government servants. In reply no serious effort has been made to controvert this. One must therefore proceed on the basis that the petitioners were holding permanent posts prior to March 31, 1938 in the princely States. One must also accept that the petitioners are ministerial Government servants. The question however still remains whether even if the petitioners are ministerial Government servants and held permanent posts prior to March 31, 1938 in princely States they are entitled to the benefit of Fundamental Rule 56(c) as claimed by them or are liable to retire on reaching the age of superannuation 58 years as claimed by the respondents. 13. A reference to rule 9(4) of the 1953 Rules shows that for the purpose of determining the age of retirement for ministerial Government servants like the petitioner the provisions of then Fundamental Rule 56(b)(ii) were to apply. Now F.R. 56(b)(ii) at that relevant time referred to a ministerial servant who entered Govern-meat service on or after 1-4-38 and who was ordinarily required to retire at the age of 55 years (later on raised to 58). It is important to note that at the relevant time FR 56(b)(i) stated that a ministerial servant who is not governed by sub-clause (ii) may be required to be retired at the age of 55 but should ordinarily be retained in service if he continues efficient upto the age of 60. It is important to note that at the relevant time FR 56(b)(i) stated that a ministerial servant who is not governed by sub-clause (ii) may be required to be retired at the age of 55 but should ordinarily be retained in service if he continues efficient upto the age of 60. There was thus a sharp and clear categorisation between ministerial servants who hold a permanent post in Government service prior to 1-4-38 [who were governed by F.R. 56(b) (i)] and those who entered Government service on or after 1-4-1938 [who were governed by F.R. 56(b)(ii)]. Union of India which because of financial integration as taking over the employees like the petitioner who had worked in the erstwhile princely States and later on in the covenanting States was necessarily required to determine the status of all these employees. By rule 9(4) of 1953 rules it gave a general declaration that for the purpose of determining the age of retirement of all these transferred employees they shall be governed by F.R. 56(b)(ii). This obviously meant that they shall be treated to have entered Government service on or after 1 4 38. When the Fundamental Rules were amended it Sxed the superannuation age of all Government servants at 58 years excepting as otherwise provided in the said Rules. Amended Fundamental Rule 56 now specifically mentions only one category of ministerial Government servants i.e. those who entered Government service on or before 31.3.38 and held on that date a lien or suspended lien on a permanent post and says that they shall be retained in service till the day they attain the age of 60 years. There is in the new Fundamental Rule 56 no provision specifically for ministerial Government servants who entered Government service on or after 1.4.38 and who were included in old F.R. 56(b)(ii). They would necessarily therefore be governed by the general provisions of new Fundamental Rule 56(a) which provides for the age of retirement to be 58 years. Mr. Mridul however contended that as old Fundamental Rule 56(b)(ii) had been repealed the petitioner cannot be continued to be governed by the repealed provision and must necessarily have his case fitted in the new F.R. 56 and maintains that the equivalent of old F.R. 56(b)(ii) in now F.R. 56(c). Mr. Mridul however contended that as old Fundamental Rule 56(b)(ii) had been repealed the petitioner cannot be continued to be governed by the repealed provision and must necessarily have his case fitted in the new F.R. 56 and maintains that the equivalent of old F.R. 56(b)(ii) in now F.R. 56(c). Evidently as old F.R. 56(b)(ii) has been repealed, the case of the petitioner will have to be fitted in the newly amended F.R. 56. By virtue of section 8 of the General Clauses Act which provides that where any Central Act or regulation repeals or re-enacts with or without modification any provision of a former enactment then reference to any other enactment or in any instrument to the provision so repealed shall unless a different intention appears be construed as reference to the provision so re-enacted. As there is a mention of old F.R. 56(b)(ii) in the 1953 Rules the re-enacted Fundamental Rule has to be fitted in 1953 Rules. Mr Mridul contends that it is new F.R. 56(c) which has to be read in place of old F.R. 56(b)(ii) in 1953 Rules. This argument however ignores the fact that new Fundamental Rule 56(c) can only apply to a minis-terial Government servant who entered Government service on or before 31.3.38. Thus excepting for that limited category of ministerial Government servants all other ministerial Government servants are included in the general provision of new F.R. 56(a). It is here that the urgency and significance of rule 9(4) of the 1953 Rules becomes important in relation to the case of the petitioner. This is because by FR 9(4) the status of the petitioner was determined as far back as 1-4-50 namely that he was to be treated as a ministerial Government servant who entered Government service on or after 1.4.38 Mr. Mridul however contends that as old F.R. 56(b)(ii) is no longer existing petitioner cannot be governed by the declaration made in Rule 9(4) of 1953 Rules. I cannot agree. To take an illustration if assuming old Fundamental Rule 56 had not been amended in 1963. and had continued, it is clear that in terms of rule 9(4) the petitioners case will have to be governed by Fundamental Rule 56(b)(ii) and he would have retired at the age of 55 [which was then provided and which has now been raised to 58 years in terms of new F. R. 56(a)]. and had continued, it is clear that in terms of rule 9(4) the petitioners case will have to be governed by Fundamental Rule 56(b)(ii) and he would have retired at the age of 55 [which was then provided and which has now been raised to 58 years in terms of new F. R. 56(a)]. In that case the petitioners case would obviously have to be considered by treating him a ministerial servant who entered Government service on or after 1.4.38. I do not see how it is possible to urge that by the mere amendment of F. R. 56 the declaration which was made by Rule 9(4) of 1953 Rules by the Government when the petitioner was integrated in the Indian Audit and Accounts service has ceased to apply. This is because at the time when the petitioner was integrated in service there was a well known division between the ministerial servants who had entered Government service prior to 1-4-38 and those on or after 1-4-38. The Government was obviously faced with a situation in which it could either decide in each particular case whether the employee which it was taking over was ministerial servant and was holding a permanent post and had entered Government service on or prior to 1-4-38. Government however took a general policy decision that all the ministerial servants like the petitioner whom it was taking over will be deemed to have entered Government service on or after 1.4.38. Thus rule 9(4) of 1953 Rules was in fact a decision taken by the Central Government with regard to each individual employee though couched in a general policy decision by virtue of 1953 Rules. Another indication of the status of the petitioner is furnished by new F.R. 9(2) which provided that a transferred employee who elects the central rules will be subject to Revised pension rules as applicable to post 1938 entrants, thus clearly declaring that persons like the petitioner are to be treated as having entered government service on or after 1.4.38. Another indication of the status of the petitioner is furnished by new F.R. 9(2) which provided that a transferred employee who elects the central rules will be subject to Revised pension rules as applicable to post 1938 entrants, thus clearly declaring that persons like the petitioner are to be treated as having entered government service on or after 1.4.38. The petitioners status therefore became solidified by virtue of rule 9(2) and rule 9(4) of 1953 Rules and he could not thereafter claim that he should be treated to be a ministerial servant who had entered Government service prior to 1-4-38 If that be so, as I do hold, then the only clause of new Fundamental Rule which is applicable to the petitioner would be new F.R. 56(a) because F.R. 56(c) could only apply if he could be treated to be a ministerial Government servant who entered Government service on or before 31-3-38 But this cannot be done because by the declaration of rule 9(a) of the 1953 Rules he is to be treated as a ministerial servant who entered Government service on or after 1.4.38. And in that eventuality his case is governed only by F.R 56(a) and not under new after F.R. 6(c) Similar view as I am taking was also taken in a Division Bench judgment of Andhra Pradesh High Court in Writ Appeal No 316 of 196*9 and others decided or 4.12.70, Post Master General Andhra Pradesh Circle, Hyderabad-1 vs. Mohd. Abdul Hmid Khan and also in Sham Lal vs. Union of India. 14. Another reason was urged by Mr. Lodha, the learned counsel for Union of India, to contend that the petitioner cannot be governed by new FR. 56(c). He referred to the explanation to Rule 9(2) to urge that it was only for the purpose of that rule that service rendered in acceding state was treated as government service. He therefore urged that the explanation to new FR. 56(c) mentioned only service in Provincial Government to be included in Government service and that this would not include service rendered in a princely state and relies on Post Master General Andhra Pradesh (Supra). Mr. He therefore urged that the explanation to new FR. 56(c) mentioned only service in Provincial Government to be included in Government service and that this would not include service rendered in a princely state and relies on Post Master General Andhra Pradesh (Supra). Mr. Mridul however urged that service rendered in princely State must be counted as Government service and referred me to Sham Lal vs. Union of India where it was held that a ministerial servant who had entered Pepsu State prior to 31-3 38 was entitled to the benefit of Fundamental Rules Reference was then made by Mr. Mridul to Union of India vs. R. V. Sada Siva Murthy That case dealt with the ministerial Railway servants and rule 2046 itself provided by a note that for the purpose of this clause the expression Government includes service rendered in ex-Company and ex-State and in former provincial Government. It was because of this definition that it was held that a permanent employee of the Mysore State prior to 31 3-38 would be entitled to the protection of rule 2046 (E) of the Indian Railway Fundamental Rules even if he had not held a lien on the Mysore Railway because their Lordships did not find that there was any distinction between a ministerial servant who had entered Government service and held a permanent post whether it was on the Mysore Railway or in any other Department of the Mysore State. This authority was followed by Gupta J in Civil Writ No. 479/75 Shivdan Mal vs. Union of India decided on 8.9.75. In that case the petitioner was in Jodhpur, Railways in 1946 and after the Federal Financial Integration had been taken by the Northern Railways and in denying him the benefit of rule 56 (c) it had been contended by the Railways that the Note to Fundamental Rule 56 (c) did not cover the service rendered in a former princely State. The learned Judge found that the petitioner was earlier employed in Customs Department substantively on 20-10-1936 and had later on been transferred to Jodhpur Railways with effect from 28 1-1947 and on being taken over by the Indian Railways was entitled to be treated as a Ministerial servant within the meaning of rule 56 (c) read with Note. The learned Judge found that the petitioner was earlier employed in Customs Department substantively on 20-10-1936 and had later on been transferred to Jodhpur Railways with effect from 28 1-1947 and on being taken over by the Indian Railways was entitled to be treated as a Ministerial servant within the meaning of rule 56 (c) read with Note. It is relevant to notice that Note to Rule 2046 the expression Government service includes a service rendered in ex-Company and ex-State Railways and all that decisions have pointed out is that if the employee was in the former State Railway and had been integrated with the Indian Railways after 1947 he must be given the benefit of services not only in the former State Railway but rendered by him in the former princely State. I do not see how these authorities can avail the petitioners because rule 9 (4) treated them as a ministerial servant having entered the Government service on or after 1.4.38. I do not consider it necessary to go into this aspect, in view of my finding that Rule 9 (4) of 1953 Rules bad crystallised the position of the petitioner as Post 1938 entrant. The question whether service rendered in princely state should be treated to be a Government service is immaterial and irrelevant for this purpose. Whatever the nature of service, whether Government service or not in princely State the petitioner must be treated to have entered Government service by the very mandate of Rule 9 (4) of 1953 Rules. 15. The next contention of Mr. Mridul is that if the petitioner is to be governed by new Fundamental Rule 56 (a) it amounts to a hostile discrimination between him and other ministerial Government servants who had served in the provincial Government prior to 1 4-38. The argument is that as the petitioner and others who joined Government service in the former princely states have all been now integrated since 1960 there is no justification to treat the petitioner separately and to deny him the benefit of new F.R. 56 (c) only on the ground that the service rendered by him proir to 1.4.38 was in the princely State and not in the provincial Government. He seeks to rely on Railway Board vs. A Pitchumani (1972 AIR 165). He seeks to rely on Railway Board vs. A Pitchumani (1972 AIR 165). In that case the Railway servant had entered the service with the Madras and South Maharatta Railway Company in 1927. The Company was amalgamated in the Indian Railway Administration in 1947 and the employee became the employee of the Indian Railway Administration. He was right from the beginning treated to be a Railway employee and it was admitted case that he was being treated as a ministerial Railway servant within the expression of rule 2046. In 1962 the Railway Board raised the age of retirement of ministerial servants from 56 to 60 year. On January 11, 1967, rule 2046 was amended and the expression Govenment service in the case ministerial servants was said to include the service rendered in the ex-Company and ex-State Railways and former provincial Government. The Railway employee was thus covered by it but in December, 1967 the Note was modified with the result that the service rendered in a former provincial Government and the ex-Company and ex-State Railway was to be included in Government service only if the rules of the Company of the State had a provision similar to clause (b) of rule 2046. The result was that the Railway employee could not continue upto 60 years as there was no such provision in the ex-State Railways or ex-Company Railway. The Supreme Court held this amendment of the Note made in December 1967 as discriminatory on the ground that right from the amalgamation of the Company all the ex-State Railway employees from 1947 right upto December 1967, have been considered at par with the other Railway employees of the Indian Railway Administration and therefore the amendment made in December, 1967 and classification of ex-Company employees had no rational nexus or relation to object of the rule and there ft re was struck down as violative of Art. 14. Mr. Mridul naturally invokes this case and though he does not invoke Art. 14 because the said Article has been suspended during Emergency. But he invokes Art. 16 which still is in force and which has same facet of equality and non-discirimination in the matter of employees of the State. This case was also followed in Navnit Lal vs. Union of India 1973(1) SLR 942) These two cases are clearly distinguishable. But he invokes Art. 16 which still is in force and which has same facet of equality and non-discirimination in the matter of employees of the State. This case was also followed in Navnit Lal vs. Union of India 1973(1) SLR 942) These two cases are clearly distinguishable. It will be seen that in those cases the ex-Company employees had been integrated since 1947 with the other employees of the Indian Railway Administration and had been treated and given the same benefit and privileges as the other employees of the Indian Railway Administration right from the time of amalgamation. Thus the Supreme Court saw no justification for suddenly denying them the benefit of the service rendered in the ex-State Company and ex-State Railways after a period of 20 years. This basic distinction however is not available in the present case. Right from the earliest by virtue of 1953 Rules the petitioners were always considered as Post 1933 entrants. The Central Government was so particular and definite that it did not leave this matter in a vague manner but gave a definite declaration in Rule 9(2) that they shall be subject to Revised pension Rules as applicable to Post 1938 entrants. The matter was unmistakably crystallised by Rule 9(4) of 1953 Rules by reference old F,R 56 (b)(ii) which dealt with persons who entered Government service on or after 1-4-38. It will be seen that at the time when these petitioners were being integrated they and those other employees who were already working with the Central Government did not belong to the same class and there was no question of the petitioners claiming that he must necessarily be given the same conditions of service. That there was an obvious distinction is obvious from the fact that the petitioner and others were given an option to opt for the State Rules rather than the Central Rules. Now this option could not have been given to them if the petitioner and the existing Central Government employees were to be treated on a par, It is well known that whenever some service is taken over by the Government for the first time Rules have to be framed with regard to their absorption and terms. Now this option could not have been given to them if the petitioner and the existing Central Government employees were to be treated on a par, It is well known that whenever some service is taken over by the Government for the first time Rules have to be framed with regard to their absorption and terms. At that is point of time it is not permissible for those persons who have not yet become a part of the Central service to claim that they must be given any particular benefits. No doubt once those employees become a part of the Central service they will be entitled to claim equality and same rights and privileges. But this is subject to the overriding exception of the terms on which the employees like the petitioner were integrated into service. It cannot be accepted that the petitioner who was taken over by 1953 Rules should while accepting the benefits of other rules, claim inapplicability of Rule 9(4) of 1953 rules, in the matter of age of retirement. That would be completely destructive of the very purpose of 1953 Rules because the Central Government was only willing to take these persons and integrate them on the conditions provided in the said 1953 Rules. The petitioners cannot opt out of the 1953 Rules. They may claim equality subsequent to the integration but only with regard to those matters which are not covered by 1953 Rules. As their status was crystallised as hiving entered Government service on or after 1.4.38, they cannot seek to re-open that status. It may also be noticed that Rule 6 talks of electing an option and clearly says that the employee must give an election for the State Rules Or Central Rules as a whole and not merely in part or parts thereof. This shows the importance which the Central Government was placing on the various terms and condition on which it was willing to integrate the petitioners. The effort of Mr. Mridul to says that once the petitioner had opted to be governed by the Central Rules he could bid a good-bye to the conditions and limitations provided in 1953 Rules and claim to have new F.R. 56 applied independently of 1953 Rules is not acceptable. If this argument was accepted this would mean the total unwinding of the service which was rationalised as far back in 1950. If this argument was accepted this would mean the total unwinding of the service which was rationalised as far back in 1950. Such an interpretation leading to so much of inconvenience, hardship and uncertainty has obviously to be rejected. 16. 1 may also note that even if the petitioner could be permitted to argue that he was not bound by rule 9(4) of 1953 rules though I have already held that he is bound by it and cannot opt out of it, the petition would fail as unduly belated having been filed almost after a lapse of 20 years. Mr. Mridul and also Mr. Kasliwal who appeared for some of the petitioners have sought to urge that as the grievance of the petitioners arose only in 1972 when they were being retired there is no delay as they have come within a very short period on being told that they would be retired at the age of 58 In my view this argument is fallacious. Rule 9(4) of the 1953 Rules told the petitioner clearly at that time that he would be governed by old F.R. 56 (b)(ii) which meant he would be treated as ministerial servant having entered Government service on or after 1.4.38, and the age of retirement was 55 years. Of course any subsequent extension in the superannuation age from 55 to 58 can certainly be taken benefit of by the petitioner as indeed he has been given. But what the petitioner cannot do is to completely seek to abrogate rule 9(4) of 1953 rules so far as it is applicable to him and claim in derogation and opposition to it that he should be treated as ministerial servant having entered Government service on or prior to 31.3.38. To permit him to do so will unsettled the whole service and would also run counter to the intention of the Central Government in having taken the employees in service on certain terms. The reason why the petitioner cannot be permitted to urge this ground is that because it is now well settled that "it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Art. 226 in the case of person? The reason why the petitioner cannot be permitted to urge this ground is that because it is now well settled that "it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Art. 226 in the case of person? who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward state claims and try to unsettle settled matters." See P.S. Sadasivaswamy vs. State of T.N. ( AIR 1974 SC 2271 .) 17. The Counsel for the petitioner had also argued that as the petitioner had continued in service and was going to retire in 1972 it was permissible for him to challenge Rule 9 (4) of 1953 Rules now. The argument is that he need not have challenged the rule 9(4) in 1953 because he could not know what changes may come about in the intervening period about the age of retirement and therefore so long as he was is service he had a continuous cause of action and could challenge it even after a lapse of 19 years. This argument is unacceptable. 18 In N. K. Krishnaswamy vs. Union of India (AIR 1973 SO 1168) the appellants who had accepted the lower grade post in 1950 had filed a petition some 10 years later claiming that they should have been accommodated in higher posts in the first instance and therefore they had a right to be recruited to that class in 1950 and consequential benefits arising therefrom. Their Lordships rejected the claim as unduly belated and observed. "We asked learned counsel for the appellants what would have been the position of the appellants if they had not accepted the posts in the lower cadre then ? It would have been impossible for them in 1963 to come forward with a claim that they should be deemed to have served in the posts denied to them in 1950. The mere accident that they are in the Income-tax service does not give them a better right." 19. The grievance and in fact the only grievance which the petitioner makes is that he should be treated to be pre-1938 entrant. The mere accident that they are in the Income-tax service does not give them a better right." 19. The grievance and in fact the only grievance which the petitioner makes is that he should be treated to be pre-1938 entrant. This very question was settled by 1953 Rules and the petitioner cannot claim it to be a fresh claim only on the ground that he has continued in the service or on the ground that as under the old F.R. 56 the continuation of a ministerial servant upto the age of 60 years was permissive both under FR 56 (b) (i) and F.R. 56(b)(ii) and as it is now mandatory under new FR 56(c) he could choose to wait. This argument of allowing the claim to become stale and the petitioner therefore not being entitled to urge in a writ petition has also been accepted by this Court in Hastimal vs. State of Rajasthan (RLW 1973, 309) where it was held that "notwithstanding that violation of a fundamental right is alleged the delay disentitles a petitioner from seeking a relief in the exercise of extraordinary jurisdiction under Art. 226 of Constitution." Mr. Mridul had taken an objection to the point of delay being urged by Mr. Lodha on the ground that no such plea was taken in the written reply. This point has also been answered in the said Division Bench judgment wherein it has been said that the ground of delay is not merely a controversy between the parties inter as but it is an important factor which regulates the exercise of judicial discretion in the exercise of extraordinary jurisdiction. This point has also been answered in the said Division Bench judgment wherein it has been said that the ground of delay is not merely a controversy between the parties inter as but it is an important factor which regulates the exercise of judicial discretion in the exercise of extraordinary jurisdiction. 20 Similarly in Amrit Lal vs. Collector, C.B.C. Revenue (AIR 1975 SC 533) it was held : "Although, it may not be possible for the state or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet, if a petitioner has been so remiss or negligent as to approach the Court for relief after an inordi nate and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce a fundamental right to the detriment of similar claims of innocent third persons." The objection about the plea of delay not having been raised in the reply cannot avail the petitioner because the argument is being raised on the admitted position that the petitioner was treated as post 1938 entrants by virtue of Rule 9(4) of 1953 Rules whereas he is challenging this declaration in 1972. The petitioner has not alleged that during all this period until he was about to retire at the age of 58 years he had complained to the authorities that his age of superannuation was 60 years on the ground that he should be treated as a pre 1938 entrant and not post 1938 entrant. Even if he had made some representations there is a limit to the period which can be spent in representations and no representations could benefit the petitioners in explaining this delay of almost two decades. 21. Mr. Mridul referred to R.S. Deodhar vs. State of Maharashtra ( AIR 1974 SC 259 ) to urge that delay cannot disentitle the petitioner. That case is a clearly distinguishable. 21. Mr. Mridul referred to R.S. Deodhar vs. State of Maharashtra ( AIR 1974 SC 259 ) to urge that delay cannot disentitle the petitioner. That case is a clearly distinguishable. In that case it was noticed that though the Government had created a divisional category of Mamlatdars and Tehsildar in 1959 yet the Commissioner Aurangabad Division had informed the petitioners that the rules of recruitment to the post of Deputy Collector in the re organised Bombay had not yet been unified and that the petitioner continued to be governed by the rules of ex Hyderabad State and that the impugned rule of 30th July 1959 had no application to them. It was noticed by the Supreme Court that because of this the petitioners were justified for proceeding on the assumption that their promotion would be governed when the new unified rules are made. It was noticed by the Supreme Court that only when subsequently in a decision of the Bombay High Court in March, 1968 the State Government took the position that unified rules of recruitment of 1959 had already been made and were applicable that the petitioners came to know of it and thereafter they did not lose any time in filing the writ petition in l969. That case is clearly distinguishable because there is no question of the petitioner not knowing that he was being treated as post 1938 entrant right from coming into force of 1953 Rules. In Haryana State Electricity Board vs. State of Punjab & Haryana and others ( AIR 1974 SC 1806 ) the objection of delay was not taken before the High Court and was no allowed to be urged in the Supreme Court. In Haryana State Electricity Board vs. State of Punjab and Haryana and others ( AIR 1974 SC 1806 , it was found or facts that the petitioner had consistently been asking to be confirmed from the date from which some of the respondents had been confirmed and the Court therefore held that the delay was properly explained and was not beaten, All these cases are distinguishable and have been decided on their own peculiar facts. The petition therefore is also liable to be dismissed for being grossly belated. 22. The petitioner also cannot seek to avoid the applicability of rale 9(4) of 1953 rules. The petition therefore is also liable to be dismissed for being grossly belated. 22. The petitioner also cannot seek to avoid the applicability of rale 9(4) of 1953 rules. The reason is that if as contended for by the counsel for the petitioner rule 9(4) of 1953 Rules is struck down as unconstitutional a curious and anomalous situation will arise where there would be no age of retirement for the employees to whom 1953 Rules were made applicable. More ever it is not possible to hold rule 9(4) as severable from the rest of 1953 Rules because it forms a part of an integrated pattern of the whole scheme providing for various conditions on which the transferred employees were integrated in 1950. It is apparent that had the rule making authority known that rule 9(4) dealing with an important aspect of age of retirement of an employee would be void it could not have framed the other 1953 Rules because the whole scheme formed a one composite integrated set of rules. The result of striking down the said rule 9(4) would be to make the whole 1953 Rules unworkable and dead It is well settled that if the valid and invalid provisions are so intrinsically mixed up that it can not be separated from one another then the invalidity of the portion must result in the invalidity of the Act in its entirety (vide B.M.D.O. vs. Union of India ( AIR 1957 SC 628 at page 636). In that case the result will be that if 1953 Rules are struck down there will be no rules under which the petitioner could have opted for Central Rules, with the result that the whole service of the petitioner for all this period would be without authority of law. This result which would have such far reaching consequences to the service and the petitioner must be avoided and that is one more consideration for the petitioner not being allowed to urge this ground after such a long delay. 23. I may note that an additional objection was raised by Mr. Lodha to the maintainability of Civil Writ Petition No. 925/72, 703/72 and 852/72. The objection is that in Civil Writ Petition No. 925/72, the petitioners had reached the age of superannuation on 18.7.71 while the writ petition was filed on 12 4 72. 23. I may note that an additional objection was raised by Mr. Lodha to the maintainability of Civil Writ Petition No. 925/72, 703/72 and 852/72. The objection is that in Civil Writ Petition No. 925/72, the petitioners had reached the age of superannuation on 18.7.71 while the writ petition was filed on 12 4 72. In the case of Civil Writ Petition No. 703 of 1972 the petitioner had retired on 18.4.69 and had filed the petition on 19 4-72, while in Civil Writ Petition No. 852 of 1972 the peti-tioner had retired on 14 1-72 and had filed the writ petition on 17-4-72. The argument is that as these petitioners had already retired from service and can only claim monetary benefits the writ petitions should not be entertained and they may if, so advised avail of the alternatively remedy by way of suit. In Civil Writ Petition No. 703/72 it is no doublet true that the petitioner had even completed the age of 60 years when he filed the writ petition and it may therefore be correct to hold that his writ petition challenging his superannuation is not maintainable, because he has come even after completing the age of 60 years and all that he could be entitled to would be to monetary benefits, and therefore he should have gone in for a suit. But so far as Civil Writ petitions Nos. 925 of 1972 and 852 of 1972 are concerned no doubt they were filed after the petitioners had reached the age of 58 years but as they had over a year before they would reach the age of 60 years, it may be doubtful whether they could not have maintained the petition in this Court. However I would not like to give any definite finding on this aspect because in the view that I have taken on the merit of the points raised, these petitions have to be dismissed in any case. 24. As a result of the above the petition fails and is dismissed. There will be no order as to costs.