JUDGMENT 1. - The petitioner was appointed on February 16, 1938 as a permanent clerk in the office of the Principal Medical Officer, Jodhpur in the former State of Jodhpur. The services of the petitioner were transferred from the office of the Principal Medical Officer, jodhpur to the office of the Chief Engineer, Jodhpur Railway with effect from February 28, 1939. It may be noted here that at the relevant time the Jodhpur Railway was under the Administrative control of the Government of the former State of Jodhpur, as the Jodhpur Railway was owned by the then Jodhpur State Government. After the Federal Financial Integration, the petitioner's services mete taken over by the Central Government and he continued to work as a clerk in the Northern Railway, where he gradually rose to the post of a Head Clerk. While the petitioner was working on the post of a Head Clerk in the office of the Divisional Superintendent, Northern Railway, Jodhpur, he was served with an order passed by the Divisional Personnel Officer dated December 26, 1975 intimating him that he would retire from the Railway service with effect from January 31, 1976. According to the petitioner, the date of his birth was January 18, 1918. 2. The main contention raised on behalf of the petitioner in this writ petition is that the petitioner was employed in a permanent capacity prior to April 1, 1938 and as such he should have been retained in railway service until he attained the age of 60 years and that he could not have been retired on attaining the age of 58 years only. The petitioner made a representation in this respect to the Divisional Superintendent, Northern Railway, but the saint was rejected, which led to the filing of the present writ petition. 3. Mr. Bhansali appearing for the Railway Administration has not disputed the fact that the date of birth of the petitioner was January 18, 1918. But the learned counsel for the Railway Administration has raised two contentions. In the first place, he has contended that the petitioner was not a permanent employee on or before March 31, 1938, but he vas temporarily appointed afresh in the Jodhpur Railway on February 28, 1939 and was only confirmed with effect from January 1, 1943. But the learned counsel for the Railway Administration has raised two contentions. In the first place, he has contended that the petitioner was not a permanent employee on or before March 31, 1938, but he vas temporarily appointed afresh in the Jodhpur Railway on February 28, 1939 and was only confirmed with effect from January 1, 1943. In the second place, it was argued by him that the services of that petitioner were not transferred from the Medical Department of the then Jodhpur State to the Jodhpur Railway, but he was a fresh employee appointed in the Jodhpur Railway and as such, his earlier service rendered in the Medical Department of the Jodhpur State could not be taken into consideration. It was, therefore, urged by Mr. Bhansali that the petitioner was rightly retired on January 31, 1976 after attaining the age of 58 years. Mr. Mathur appearing for the petitioner has contested both these submissions and has argued that the petitioner was a permanent employee in the Medical Department of the then jodhpur State and his services were transferred to the jodhpur Railway, which was a Department of the Jodhpur State Administration at that time. Thus, according to the learned counsel, the petitioner was entitled to have the benefit of the provisions of clause (b) of rule 2046 of the Railway Establishment Code (hereinafter referred to as "the Code") wherein it has been provided that a ministerial Railway servant, who had entered Government service on or before March 31, 1938 and held on that date a lien or a suspended lien on a permanent post or held a permanent post in a provisional substantive capacity would be retained in the service of the Railway until be attained the age of 60 years. 4. The petitioner has placed on record a copy of his service book, relating to the service rendered by him in the Medical Department of the erstwhile State of Jodhpur. It appears from a perusal thereof that the petitioner was employed as a permanent clerk in the office of the Principal Medical Officer Jodhpur, with effect from February 16, 1938 and that he was relieved from the aforesaid post in the after noon of February 27, 1939 on account of his transfer to the office of the Chief Engineer, Jodhpur Railway. In face of this document, which appears to be duly authenticated by the then Principal Medical Officer of the erstwhile State of Jodhpur, two things are clear namely, that the petitioner was employed as a permanent clerk with effect from February 16, 1938 in Government service of the erstwhile State of Jodhpur and that his service were transferred to the office of the Chief Engineer of the former Jodhpur Railway. The respondents have produced a copy of the service register of the petitioner maintained in the then jodhpur Railway, which shows that the petitioner came to be employed in the Jodhpur Railway as a temporary clerk with effect from February 16, 1939 and that he was confirmed as provisional substantive with effect from July 1, 1941 and as substantive with effect from January 1, 1943. There might be some error on account of which the petitioner was shown as a temporary clerk in the service register maintained by the former Jodhpur Railway. But as the petitioner had already been appointed as a permanent clerk earlier in the office of the Principal Medical Officer, Jodhpur, with effect from February 16, 1938, as is apparent from department Ex 2 and his service were transferred to the Jodhpur Railway, it is difficult to hold that he was not holding a permanent post in Government service in a substantive capacity on March 31, 1938. Moreover, as the service book Ex. 2 clearly mentioned that the services of the petitioner were transferred to the office of Chief Engineer, Jodhpur. Railway, it cannot be accepted that the petitioner was freshly appointed as a temporary employee in the former Jodhpur Railway. Now a perusal of documents Ex 2 and Ex R/6 makes it clear that the petitioner was relieved from the office of the Principal Medical Officer in the after-noon of February 27, 1939, and he joined his duties in the office of the Chief Engineer, Jodhpur Railway, on February 28, 1939 and thus there was no break in his service. Mr. Bhansali also placed reliance on documents Annexure R/2 & R/5 to show that the petitioner was merely a temporary clerk and that his services were not transferred but he was freshly appointed in the service of the then jodhpur Railway. Mr. Bhansali also placed reliance on documents Annexure R/2 & R/5 to show that the petitioner was merely a temporary clerk and that his services were not transferred but he was freshly appointed in the service of the then jodhpur Railway. But in view of the entries made in the service book of the petitioner maintained in the Medical Department of the former jodhpur State, copy of which has been produced as Ex 2 on record, it would not be safe to rely upon the statements made in the documents Ex.R/2 and Ex R/5. 5. In Union of India v. R V Sada Shiva Murthi, 1969 UJ (SC) 490 a similar situation arose in Civil Appeal No. 478 of 1968. The petitioner in that case was originally appointed in the Education Department of the Mysore State Govt. on July 1, 1930 and he was transferred to the Department of Railway owned by the Mysore State Government on February 3, 1938 and thereafter he was continuously employed in the Railway Service. It was held by their Lordships of the Supreme Court that the petitioner in that case was entitled to the benefit of sub-rule (2) of Rule 2046, although it way the case of the Railway Administration that the employee was recruited on January 27, 1938 to the Railway service and was confirmed with effect form June, 1939. Their Lordships made the following observations in the aforesaid case : "The respondent was a ministerial servant who had entered the service on or, before March 31, 1938. On the plain words of the rule, the respondent was a ministerial railway servant who had entered Government service before March 31, 1938. It is true that the respondent was not on March 31, 1938 a permanent employee of the Mysore Railway but there is no reason to think that an employee of an Indian State prior to March 31, 1938, and holding a lien on a permanent post or a permanent post in a provisional substantive capacity in a department other than Railways is not entitled to the protection of rule 2046 (b) of the Indian Railways Fundamental Rules." 6. In Shivdanmal v. Union of India and others (S.B. Civil Writ Petition No. 479 of 1975) decided by me on September 8, 1975 it was held, following the decision of their Lordships of the Supreme Court in the aforesaid Civil Appeal No. 478 of 1968, that the service rendered on a permanent post in sub-stantive capacity, in the service of a former princely State, which subsequently merged in a State of India, can be considered for availing the benefit of clause (b) of Rule 2046, provided such employee had entered Government service on or before, March 31, 1938 and was employed therein in a ministerial capacity. The facts in the case of Shivdanmal were similar to facts of the present case, inasmuch as Shivdanmal was earlier employed in the Customs Department of the former State of jodhpur prior to March 31, 1938, but was transferred subsequent to the aforesaid date as a clerk in the then Jodhpur Railway. It was held in that case that Shivdanmal was entitled to the benefit of the provisions of clause (b) of rule 2046 of the Code. I do not see any reason to take a different view in the present case when the petitioner is similarly situated. The petitioner is thus entitled to obtain benefit of clause (b) of rule 2046 of the Code as he was a ministerial Railway servant and had entered Government service before March 31, 1938 and had held or, that date a lien on a permanent pest in Government service. I, therefore, hold that the petitioner could not have been superannuated on attaining the age of 5i }ears, but he is entitled to continue in Railway service until he attains the age of to years. 7. Consequently, the writ petition is allowed. The order issued by the Divisional Personnel Officer, Northern Railway, Jodhpur dated December 25, 1975 is quashed, so for as it relates to the retirement of the petitioner and the respondents are restrained from superannuating the petitioner from Railway service until he attains the age of 60 years. However, in the circumstances of the case, the parties are left to bear their own costs.Writ allowed. *******