BHATT, J. ( 1 ) THIS appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), bhavnagar, ort 18th July 1978 in Special suit No. 104 of 1977, by invoking the aid of Section 96 of the Civil Procedure code. ( 2 ) PRESENT appellant is the original plaintiff who had to initiate a legal battle against the respondent/original defendant against his compulsory retirement on his attaining the age of 58. The appellant, inter alia, contended that he was wrongly and illeg Hy ordered to retire on his attaining the age of 58 as he was entitled to the benefit of the provisions of Rule 2046 (F. R. 56) of the Indian Railway establishment Code (Voli me II) (railway Code for short, hereinafter ). According to the case of the appellant, he Was entitled to continue in service till he attained the age of 60 years, as he entered the employment with the government before 31st March 1938. According to his case, he was appointed as coppersmith with effect from 4th April 1930, as an employee of the Erstwhile bhavnagar State Railway. It may be mentioned that the Erstwhile Bhavnagar state Railway merged into Saurashtra railway and later on, into Western railway. The appellant also contended that he was appointed as a coppersmith on a permanent post with effect from 4lh April 1930, and, therefore, he was entitled to the benefit of the provisions of Rule 2046 of the Railway Code, as aforesaid. However, he was ordered to retire on 2nd October 1973, on his attaining the age of 58 years. Therefore, after serving the statutory notice under section 80 of the Civil Procedure Code, he filed the above suit. The respondent/original defendant resisted the suit on various grounds. On appreciation of the evidence and on interpretation of the rule in question, the trial Court refused to accord the benefit of Rule 2046 of the Railway Code. With the result, the suit of the plaintiff came to be dismissed and hence the present appeal. A very short, but a substantial and significant question, is raised before us in this appeal which revolves round the interpretation of the provisions of Rule 2046 of the Railway Code. With the result, the suit of the plaintiff came to be dismissed and hence the present appeal. A very short, but a substantial and significant question, is raised before us in this appeal which revolves round the interpretation of the provisions of Rule 2046 of the Railway Code. ( 3 ) IN order to appreciate the merits of this appeal and challenge against it, it would be necessary at this juncture, to refer to the relevant factual aspects on record. At this stage, firstly, it would be necessary to refer to the following admitted facts:1. The appellant was appointed as a coppersmith, on 4th April 1930, in the employment of the Erstwhile Bhavnagar state Railway with a rate of pay of 10 annas per day (62 paise ). 2. He was promoted as a checker with effect from 1st June 1944. 3. Thereafter the appellant was appointed, on promotion, as "daflari" with effect from 1st October 1947. 4. Later on, the appellant was appointed as a clerk on 1st February 1948 in the pay scale of Rs. 130-10-300. 5. He was ordered to retire with effect from 2nd October 1973 when he was working as a clerk. 6. Pay scale of clerk was revised with effect from 1st January 1973 in the time scale of Rs. 330-560. 7. The Erstwhile Bhavnagar State railway merged into Saurashtra Railway and thereafter Saurashtra Railway merged into Western Railway. ( 4 ) THE contention of the plaintiff/appellant that he was appointed on a permanent post was not accepted by the Trial Court, mainly, on the ground that he was paid daily-wages. The Trial court reached to the conclusion that the appellant was not holding permanent post as on 31st March 1938 and, therefore, he was not entitled to be retained in service till he attained the age of 60 years. Having examined the facts of the present case and having heard the learned counsels for the parties, we are of the opinion that the Trial Court has committed serious error in refusing the benefit of the provisions of Rule 2046 of the Railway Code to the appellant. ( 5 ) THIS brings into the sharp focus the question of correct interpretation of the aforesaid Rule of the Railway Code in the light of the facts of the present case. ( 5 ) THIS brings into the sharp focus the question of correct interpretation of the aforesaid Rule of the Railway Code in the light of the facts of the present case. The main question posed for consideration before us is as to whether the plaintiff/appellant was entitled to continue in service till he attained the age of 60 years in view of the provisions of the aforesaid Rule of the Railway Code ? therefore, it would be necessary to refer to the said rule which reads as under:"2046 (F. R. 56) - (a) Except as otherwise provided in this rule, every railway servant shall retire on the day he attains the age of fifty-eight years. (b) A ministerial railway servant who entered Government service on or before the 31st March 1938 and 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 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. . . . . . . There is no dispute about the fact that the aforesaid rule is essentially based on rule 56 (c) (i) of the Fundamental Rules. ( 6 ) IN case if the provisions of Rule 2046, as aforesaid are attracted then in that case, the appellant shall be entitled to continue in service till he attained the age of 60 years. In our opinion, in view of the evidence on record, the appellant is, erroneously, refused the benefit of the provisions of Rule 2046 of the Railway code. ( 7 ) THE If rial Court has, unfortunately taken into consideration the mode of payment of pay or salary as the criteria and basis for reaching to the conclusion that the appellant was not holding a permanent post on or before 31st March 1938. With due respect, this approach is not only erroneous but is, manifestly, illegal. What is required to be considered is the character, nature and the status of the post held by the appellant on or before 31st March 1938. With due respect, this approach is not only erroneous but is, manifestly, illegal. What is required to be considered is the character, nature and the status of the post held by the appellant on or before 31st March 1938. The mode of payment of pay is irrelevant and insignificant in so far as the question of applicability of the provisions of Rule 2046 of the Railway Code is concerned. The point in focus should be as to whether the appellant held a permanent post or, had any right or lien on a permanent post on or before 31st March 1938 or not ? Unfortunately, the Trial Court has, seriously erred in appreciating the evidence on record. The plaintiff/appellant had, in clear terms, stated in his evidence at Ex. 85, that he was appointed as a coppersmith on a permanent vacancy on 4th April 1930. It is also very clear from his evidence that he was enjoying other service benefits like leave, etc. from the beginning. It is also very clear from his evidence that he was confirmed in the said service from the very day of his appointment. This part of his evidence has remained uncontr over ted. The respondent has not examined any witness. Therefore, there was no reason to discard this uncontroverted version of the appellant. It may be mentioned that even contrary suggestion was also not, remotely, indicated under the cross-examination. Apart from that, the evidence of the plaintiff/appellant on this score is, fully, reinforced by the service record produced by the respondent. In the service record produced at Ex. 102, it is unequivocally disclosed that the appellant was appointed as a coppersmith on 4th April 1930 and the nature of his post was permanent. It is very clear from column No. 4, on page 205 in Ex. 120 which is the service sheet. Column No. 4 is meant to show as to what is the nature of the post held by the incumbent, whether it is permanent or temporary, and in that column it is specifically mentioned as "permanent". This documentary evidence, fully supports the version of the appellant. Moreover, there is no reason to disbelieve the version of the plaintiff that he enjoyed other service benefits, including benefit of leave. The observation of the Trial Court in the impugned judgment that the service record was not verified later on does not seem to be correct. This documentary evidence, fully supports the version of the appellant. Moreover, there is no reason to disbelieve the version of the plaintiff that he enjoyed other service benefits, including benefit of leave. The observation of the Trial Court in the impugned judgment that the service record was not verified later on does not seem to be correct. It is also clear from the documentary evidence that the appellant was promoted as a checker on 1st June 1944. He got second promotion in the cadre of "daftari" on 1st October 1947. This aspect also lends material reinforcement to the version of the appellant that he was holding a permanent confirmed post from the inception. The assumption and the inference of the Trial court that the appellant could not have been on a confirmed post from the very beginning of his appointment as he had not worked on probation or in an officiating capacity does not find any support from the evidence on record. This assumption is erroneous. It is not necessary that in each and every case initial appointment should invariably be on probation or in an officiating capacity and more so in absence of such provision in statutory Recruitment Rules. The Trial court has also wrongly assumed that a person who was paid on daily-wage basis cannot be said to have worked on a permanent post. This observation of the trial Court, with due respect, is neither legal nor logical. It is also wrongly inferred by the Trial Court that since the appellant was paid on daily basis, he could be said to be a temporary servant per day basis and not a permanent employee. We may again make it clear that the manner and the mode in which the payment of salary is made is insignificant and immaterial for the purpose of deciding the character and status of the post held by the incumbent. The Trial Court has also failed to appreciate that the appellant continued on the post of coppersmith from 4th April 1930 to 1st June 1944, till he was promoted as a checker. This aspect leaves no manner of doubt that till then, the post of coppersmith remained and it was held by the appellant without any break. The Trial Court has also failed to appreciate that the appellant continued on the post of coppersmith from 4th April 1930 to 1st June 1944, till he was promoted as a checker. This aspect leaves no manner of doubt that till then, the post of coppersmith remained and it was held by the appellant without any break. It cannot be conceived even for a moment that the post of coppersmith held by the appellant was not a permanent post only on the basis that he was paid on daily basis. It appears that the attention of the Trial Court was not drawn to the fact that as per the evidence on record, all the employees of the Erstwhile Bhavnagar State Railway had been paid on daily basis. This part of the evidence has also remained uncontroverted. It appears that this practice of payment of salary on daily basis was in respect of all employees in the Erstwhile Bhavnagar State Railway. While interpreting P. R. 56 of the fundamental Rules, the Apex Court has held in M. P. Pradhan v. Union of India, reported in A. I. R. 1990 S. C. at page 891 that even paid "apprentice" joining a permanent post cannot be anything else but entering Government service on a permanent basis. ( 8 ) THERE is one more important and relevant aspect which is also not appreciated in its proper perspective by the Trial Court. It is an admitted fact that following three employees who were juniors to the appellant were accorded benefits of the provisions of Rule 2046 of the Railway Code, who were also paid on daily basis: Sr. No Name of. Employee Post Held Dt, of appointment Mode of payment Wages paid Rs. Ps. Service Record Produced 1. C. M. Vyas Fitter l-2-32 Daily wage 0. 8. 0 (8 Annas) Ex. 64 2. J. M. Vyas Filter l-10-34 -do- 0. 10. 0 (10 Annas) Ex. 61 3. S. M. Oza Fitter l-10-35 -do- 1. 4. 0 (1 Re. & 4 Annas) Ex. 62 ( 9 ) WE have examined the service records in respect of the aforesaid three employees. 8. 0 (8 Annas) Ex. 64 2. J. M. Vyas Filter l-10-34 -do- 0. 10. 0 (10 Annas) Ex. 61 3. S. M. Oza Fitter l-10-35 -do- 1. 4. 0 (1 Re. & 4 Annas) Ex. 62 ( 9 ) WE have examined the service records in respect of the aforesaid three employees. All of them were appointed on daily-wage basis and the aforesaid three employees were junior to the appellant and, admittedly, they were provided higher cadre and they were given benefits of the provisions of Rule 2046 of the Railway Code and they continued in service till they attained the age of 60 years. The appellant went on making representations so that he could also be given benefit of the aforesaid Rule. However, the appellant did not succeed. The facts pertaining to the service record of the aforesaid three juniors of the appellant are high-lighted with a view to show that there was also a practice in the Erstwhile Bhavnagar State Railway administration, as such, to pay salary on daily basis and that matter had not affected the right of the employee to avail the benefit of continuing in service till the completion of 60 years. There was, therefore, no reason as to why the case of the appellant was not considered for the said benefit favourably, by the respondent. ( 10 ) BE it as it may, there is no manner of doubt that the appellant/plain tiff was appointed as a coppersmith on a permanent post from the very beginning, i. e. 4th April 1930. Therefore, he was holding a permanent post before 31st march 1938, which would qualify him to claim the benefit of retention in service till the completion of 60 years. The entire approach of the Trial Court is wrong and is based on unwarranted assumption. What was required to be considered has not been considered and what is considered was not required to be considered so as to determine as to whether the appellant was holding a permanent post on the denned date, i. e. 31st March 1938. The entire approach of the Trial Court is wrong and is based on unwarranted assumption. What was required to be considered has not been considered and what is considered was not required to be considered so as to determine as to whether the appellant was holding a permanent post on the denned date, i. e. 31st March 1938. Needless to mention that the appellant who started his service career with effect from 4th April 1930 remained in service without any break for a spell of more than forty years till he was made to retire with effect from 2nd October 1973, and was, thus unjustly and illegally denied the benefit of the provisions of Rule 2046 of the Railway code by the respondent. Unfortunately, the Trial Court failed to appreciate the evidence and the correct interpretation of Rule 2046 of the Railway Code in its proper perspective, which, not only resulted into dismissal of the suit but, unfortunately culminated into grave injustice to the poor aged petty railway servant who had put in unblemished service for a period of more than forty years. Therefore, in our opinion, the impugned judgment and decree requires to be set aside. ( 11 ) IT may be mentioned that despite repeated requests the railway administration failed to consider the just and lawful claim of the appellant who is in the December days of his life and, as declared at the bar, he has also lost vision of both eyes. It was also declared that relevant rules prevalent in the erstwhile Bhavnagar State Railway are not available. ( 12 ) HAVING regard to the evidence on record and considering the relevant points of service jurisprudence, we are of the clear opinion that the appellant was holding a permanent post before 31st march 1938 which would, undoubtedly qualify him for the benefit of retention in service till the completion of 60 years. The appellant was ordered to retire on 2nd October 1973. The compulsory retirement on superannuation on attaining the age of 58 years, ordered by the respondent, was patently illegal and was wrongly upheld by the Trial Court. ( 13 ) THE next question which now falls for consideration is as to what relief, at this stage, the appellant/plaintiff should be entitled to, since he has already completed the age of 60 years. ( 13 ) THE next question which now falls for consideration is as to what relief, at this stage, the appellant/plaintiff should be entitled to, since he has already completed the age of 60 years. Therefore, obviously, we have to raise our hands in helplessness from granting the relief of reinstatement of the appellant at this juncture. The appellant/plaintiff would be entitled to two years salary. He was illegally ordered to retire from 2nd october 1973. He was entitled to continue in service till 31st October 1975. He was willing to work. Since the order of the respondent Railway Administration compulsorily retiring him is found illegal, the appellant would be entitled to salary for the period from 2nd October 1973 to 31st October 1975. The appellant has claimed Rs. 18,741-46 Ps. by way of arrears of salary during the period from 2nd October 1973 to 31st October 1975. However, it may be mentioned that he was receiving pension and he had drawn as such pension of Rs. 195/- per month during the aforesaid period. Therefore, the payment towards the pensionary benefits will have to be deducted from the said amount of Rs. 18,741. 46 Ps. Thus, the appellant/plaintiff would be entitled to Rs. 18,741. 46 Ps. minus Rs. 4,680. 00 ps. =rs. 14,061. 46 Ps. by way of arrears of salary during the period from 2nd october 1973 to 31st October 1975. It may be mentioned that it is not disputed that had the appellant been allowed te work till the attainment of 60 years in railway service, he would have earned an amount of Rs. 14,061. 46 Ps. by way of arrears of salary. Therefore, the appellant is entitled to Rs. 14,061:46 Ps. by way of arrears of salary and other allowances for the aforesaid period. ( 14 ) THE plaintiff/appellant has claimed rs. 970. 10 Ps. by way of difference of salary on account of revision of payscafc made effective from 1st January 1973. The annexures to the plaint stating the salaries drawn right from January 1973 to October 1973 and the addition of emoluments on account of revision in the pay scale are also not disputed. Theiefore, in our opinion, the appellant is also entitled to Rs. 970. 10 Ps. being the difference of his salary during the period from 1st January 1973 and 2nd October 1973, till the date of retirement. Theiefore, in our opinion, the appellant is also entitled to Rs. 970. 10 Ps. being the difference of his salary during the period from 1st January 1973 and 2nd October 1973, till the date of retirement. : ( 15 ) THE appellant has also claimed interest at the rate of 9 per cent per annum on the arrears of salary. Prima facie, one would be inclined tx> accept this prayer as the appellant was wrongly denied the service beyond the age of 58 years for a period of two years. Equally true is the fact that he has not worked during the period of two years which we are granting relief towards the arrears of salary which he would have earned had he been continued in service beyond 58 years. It will be also interesting to note that the plaintiff/appellant has, clearly, testified in his evidence, at Ex. 85, that he was not employed anywfeece after the compulsory retirement on his attaining the age of 58 years. There is no reason to disbelieve the version of the plaintiff that he was not gainfully employed anywhere beyond 2nd October 1973, the day on which he was illegally made to retire by the respondent. Considering the facts and circumstances of the case, we are inclined to aws#d interest on the arrears of salary not at the rate of 9 per cent per annum as claimed, but at the rate of 6 per cent per annum. We may make it again clear that, ordinarily, the rate of interest of 6 per cent per annum may be insufficient on the quantum of arrears of salary in such a ase. But looking to the peculiar facts and circumstances of the present case, and again it being a discretionary relief, we are inclined to award interest at the rate of 6 per cent per annum on the amount of arrears of salary (Rs. 14,061,46 + 97and10. RS. 15,031. 56) from the date of filing of the suit, i. e. 3rd january 1974. 14,061,46 + 97and10. RS. 15,031. 56) from the date of filing of the suit, i. e. 3rd january 1974. Again, considering the peculiar facts and circumstances of the present case and the fact that the appellant who is aged about 77 years today and who has lost vision in both eyes as stated at the bar and who is still knocking the doors of justice for getting his legitimate dues, may not be further deprived of his dues, it may be necessary to award interest at the rate of 9 per cent pes annum -. from the date of the suit in the event of failure on the part of the respondent to pay up the aforesaid entire amount with interest at the rate of" six per cent per annum within three months from today. Therefore, the rate of interest will be! 9 per cent per annum if1 the respondent fails to comply with the directions of this Court, within three months from today. ( 16 ) THUS, the appellant will be entitled to the arrears of salary with interest and costs and he shall be also entitled to consequential revision and enhancement pensfonary benefits. He shall also be ienlihed to the benefits of revision in the jjay scale during the period upto 31st october 1975. He will also be entitled to other consequential terminal benefits, r. . encashment of admissible leave, etc. Respondent Railway Administration, therefore, shall pay Rs. 15,031. 56 Ps. with interest11 at the fate of 6 per cent per annum from the date of the suit, i. e. from 3rd January 1974, within a period of three months from today. In the event of its failure to pay the said amount within the aforesaid period, the rate of interest shall be 9 per cent per annum instead of 6 per cent per annum. The respondent shall also pay other consequential pecuniary benefits, including enhancement in the fixation of pension, and revision of pay scale during the period from 2nd October 1974 to, 31st October 1975, and other incidental post retirement benefits. In view of the aforesaid facts and circumstances and observations, the suit of the plaintiff is decreed accordingly and the appeal is allowed to that extent, with costs throughout. Decree shall be drawn accordingly. Appeal allowed. .