Judgment 1. THIS appeal is against an order of the trial Judge passed in C. O. No. 1950 (W) of 1990 allowing a writ petition filed by the respondent Shri Bejoy Chandra Mahanti. The Respondent was originally an employee of the Government of Bihar being initially appointed as a Village Level worker and subsequently opting to serve under the government of West Bengal consequent on the operation of the Bihar and West Bengal (Transfer of Territories) Act, 1956. By being absorbed in the Service of west Bengal the respondent was appointed substantively as a Gram Sevak and worked in the said post until he joined as an Assistant Farm Manager on 1-9-82. The respondent claims that under the Bihar Government Service rules by which he was governed immediately before the appointed day as mentioned in the aforesaid Act, his age of superannuation was 60 years and that the aforesaid Act, his age of superannuation was 60 years and that the same could not be legally varied to his disadvantage except with the previous approval of the Central Government as provided in the Act. 2. THE respondent submitted an application, through proper channel, claiming his age of superannuation as sixty years and the same was duly forwarded by his superior officers but the Government rejected the same on the ground that a similar prayer made by one Ram Kinkar Mahato, ex. Assistant A. E. O. Saltora, was already rejected by the Government in consideration of the fact that the Officer concerned could not be treated as a ministerial staff. This rejection of prayer has been the subject of the writ petition and the respondent petitioner has drawn the attention of the court to the fact that in some cases the prayer has been favorably considered by the government itself, and in some others the right of superannuation at the age of sixty years in respect of a number of similar transferred employees has been upheld by this court by issuing several writs of Mandamus. In the trial court the present appellants did not file any affidavit-in-opposition in spite of sufficient time having been allowed to them for this purpose and the learned Trial Judge refused to grant any further time considering the exigency of the circumstances. In the trial court the present appellants did not file any affidavit-in-opposition in spite of sufficient time having been allowed to them for this purpose and the learned Trial Judge refused to grant any further time considering the exigency of the circumstances. The learned trial Judge considered the prayer of the writ petitioner with reference to the relevant law -and the policy of the Government and found that Government had actually granted continuation of service in respect of certain other employees up to 60 years in similar circumstances and observed that no discrimination could be made in respect of the petitioner. He also noted that similar prayer was granted by this Court in writ petitions field by several other employees. Considering the entire circumstances he allowed the writ petition and issued a writ in the nature of mandamus directing the Government not to interfere with the service of the writ petitioner until he attains the age of sixty years. 3. ON behalf of the appellants Mr. S. K. Dutta submits that unfortunately no affidavit-in-opposition could be filed against the writ petitioner in the trial court. He, however, argues that the petitioner was not a ministerial officer at the time when the benefit of the higher age of superannuation was claimed by him and that at any rate the circular of the Government giving the benefit of retirement at sixty years was not applicable to him; In support of his argument he refers to the definition of a ministerial officer in regulation 36 of the Civil service Regulations framed by the Government of India where the expression has been defined as follows : "ministerial officer" means an officer, whether gazetted or not, whose duties are not of administrative or executive character, but who is employed as a member of an establishment. Example :-An accountant or clerk is ministerial officer. A tashildar, a police inspector or constable or a teacher in school is not ministerial officer. Evidently the respondent in an ex Bihar employee subsequently absorbed in West Bengal. He will, therefore, be guided by the Bihar Service Code 1952. Rule 36 of this Code defines a "ministerial servant" as follows. Ministerial servant means Government Servant of a subordinate service whose duties are entirely clerical and any other class of servants specially defined as sue) by general or special order of the state government. He will, therefore, be guided by the Bihar Service Code 1952. Rule 36 of this Code defines a "ministerial servant" as follows. Ministerial servant means Government Servant of a subordinate service whose duties are entirely clerical and any other class of servants specially defined as sue) by general or special order of the state government. A list of Government servants specially classed as ministerial servants has been give in appendix 5 of the Code), 4. AS the respondent claims to be a 'ministerial officer' under the Government of Bihar at the time of his initial appointment, more cogently his employment should be covered by the definition of a ministerial employee under the Bihar Service Code. Butt at any rate the two definitions do not make out any significant difference. The respondent's claim that his duties at the time of his appointment were those of a ministerial employee as averred in his writ petition is not traversed by any counter affidavit. In fact government does not appear to have disputed the writ petitioner's claim of initial appointment as a ministerial employee as would be evident from the reasons given by it for rejecting his prayer. His prayer was rejected on the ground that a similar prayer in respect of Ram Kinkar Mahato, an ex-Assistant agricultural Extension Officer, was also rejected. Annexure 'd' to the writ petition being letter No. 4977 Estab Branch, is the letter rejecting the prayer of Ram Kinkar Mahato. In this letter the Government has stated that the duties of Ram Kinkar Mahato, Ex-Assistant A.E.O. was of Administrative executive nature. It shows that Government was referring to the duties of the officer in the post from which he was going to retire. Obviously, there fore Government did not raise any point that the writ petitioner or for that matter other officers were not appointed initially as a ministerial employee. 5. THE respondent's claim is that his age of superannuation when he was appoint initially under the Government of Bihar was sixty years and that he was entitled to continue in service up to that age provided he was physically fit and mentally alert as already decided by the Government in this respect. 5. THE respondent's claim is that his age of superannuation when he was appoint initially under the Government of Bihar was sixty years and that he was entitled to continue in service up to that age provided he was physically fit and mentally alert as already decided by the Government in this respect. He claims he benefit of sub-section (4) of section 41 of the Bihar and West Bengal (Transfer of Territories) Act, 1956 (Act 40 of 1956) which inter alia provides that the conditions of service applicable immediately before the appointed day to the cause of any person provisionally or finally allotted to West Bengal under the said section shall not be varied to his disadvantage except with the previous approval of the Central Government. 6. THE age of retirement of a Government employee in Bihar is 58 years, vide rule 73 of the Bihar Service Code, 1952 as amended by B. S. R No. 152 dated 28-9-73. This would not, however, apply to ministerial or inferior government servants, vide the State Government's decision No. 2 under rule 73 in V K. Malhotra's Bihar Service Code, 15th Edition. So the writ petitioner had a good cause in pointing out that his age of retirement) would have been sixty years if he had remained in his initial post at the time of his retirement, either automatically or by extension. This position has virtually been accepted by the government of West Bengal by the issue of the board of revenue No. 1473/766-68. DE dated 22-1-72, This circular has been quoted by Shyamal Kumar Sen, j. in an unreported judgment in matter No. 4304 of 1988 (1) (Raj Ballav mohanti vs. State of West Bengal and Other) and it reads as follows : "I am directed by order of the Governor to say that the Governor has been pleased to decide that a ministerial officer formerly in service of the Bihar Government but latex absorbed in the service of the Government of West Bengal will, If he maintains his efficiency, continue in service automatically and without any special order of the Government or the appointing authority up to his attaining the age of sixty years." Applicants have not shown anything justifying a deviation from this circular in some cases and accepting the same in others. This discrimination has been highlighted by the learned trial judge in his judgment. This discrimination has been highlighted by the learned trial judge in his judgment. In the trial Court the writ petitioner has referred to a series of writ cases decided by this Court in which the age of superannuation of a Government servant of Bihar absorbed in West Bengal was directly involved. References have been made to C. R. 512 (W) of 1988 decided by Ajit Kumar Sengupta, J. (Annexure-H), Civil Order No. 7896 (W) off 1987 decided by Mahitosh majumdar, J. (Annexure-I), the writ case Chakradhar Pati vs. State of West bengaland Ors., decided by Monoranjan Malliok, J. (Annexure-Y) etc. Besides a writ case being Matter No. 4304 of 1988 decided by Shyamal Kumar Sen, J. has also been cited. In all those cases the Court has held that the Government servant hailing from Bihar and absorbed in West Bengal is automatically entitled to have the benefit of sixty years. It has not been brought to our notice that any of these decisions has been reversed on appeal or otherwise set aside. We do not think that any case has been made out to deviate from those decisions in the present case. 7. APART from the above consideration, there is another significant aspect of the matter raised in this writ proceeding. The government has as a matter of policy given relief to a section of employees by allowing them the benefit of superannuation at the age of sixty years. That being so it cannot now deny the same benefit to others who have applied for the same in similar circumstances without being guilty of rank discrimination. Right, to equality before the law is a fundamental right provided in Article 14 of the Constitution, Annexure 'f' to the writ petition shows that Government has allowed the automatic continuance of service to one Sajoni Kanti Nandi, an ex Bihar employee, on the basis of the Board of Revenue G. O. No. 1473-BR/766-68 dated 22-1-1772 Shri nandi was working as the Subdivision Publicity Officer, Purulia under the scheduled Castes and Tribes Welfare Department at the time of passing of the order. So his case is similar to the present one and the writ petitioner of the case can legitimately demand equal treatment of the law in this respect. 8. So his case is similar to the present one and the writ petitioner of the case can legitimately demand equal treatment of the law in this respect. 8. IN E. P. Royappa vs. State of Tamilnadu and anr., ( AIR 1974 SC 555 ) the supreme Court extensively dealt with the doctrine of equality as enshrined in articles 14 and 16 of the Constitution. The following observations of the Court in paragraph 85 of the judgment are most illuminative and aptly relevant article 14 is the genus while Article 16 is a species. Article 1'6 gives effect to the doctrine of equality in all matters relating to public employment. The basic principles which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Articles 14 and 16 strike at arbitrariness in State action and ensures fairness and equality of treatment. They require that state action must be based on valid relevant principle applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to male fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice, in fact the letter comprehends the former. Both are inhibited by Articles 14 and 16. . . . . . . . In the celebrated case of Air India vs. Nagean Meerza ( AIR 1981 SC 1829 ) also the Supreme Court considered the doctrine of equality before the law in detail and held that Article 14 certainly applies when equals are treated differently without any reasonable basis. 9. IN AIR 1981 SC 1775 (Videndra Kumar and Ors. vs. Union of India and Ors.) also the Supreme Court dealt with the question of discrimination with reference to Articles 14 and 16 of the Constitution. In this case, a large number of persons had been promoted to certain posts after completing only two years of service. Government subsequently insisted that nobody could be considered for promotion unless they completed three years of service. In this case, a large number of persons had been promoted to certain posts after completing only two years of service. Government subsequently insisted that nobody could be considered for promotion unless they completed three years of service. The Supreme Court held the Government's action to be highly discriminatory and observed as follows: "If a large number of other persons similarly situated have been promoted as Chargeman Grade II after two years of service, there is no reason why the appellants should also not be similarly promoted after completing the same period of service. We are not suggesting that the appellants are entitled to be promoted even if they are unfit to be promoted." 10. THE above principle squarely applies to the facts of the present case. Here certain persons similarly placed have been given the opportunity of having a continuity of service up to sixty years they being found physically and mentally as required by the Government rules. The respondent who has been found physically fit and mentally fit alert and whose application for getting the benefit of a higher age of superannuation has been duly forwarded by the superior officer has a Constitutional right of being treated equally. No sufficient ground has been shown as to why they should be treated as separate classes.-The decision of the Government in this respect is, therefore, highly discriminatory and unconstitutional. The learned trial Judge, therefore, rightly allowed the writ petition. If the respondent has already retired and paid pension, the same should be adjusted against his duties. In the result this appeal has no merit and is accordingly dismissed. There will, however, be no order for costs in this appeal. There shall be stay of the operation of this order for a period of four weeks from today on the prayer of the appellant.