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PETITIONER: GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS

       Vs.

RESPONDENT: T M. PARAMASIVAM

DATE OF JUDGMENT08/04/1976

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SINGH, JASWANT

CITATION:  1977 AIR  355            1976 SCR  (3)1085  1976 SCC  (3) 430

ACT:      Retirement on  superannuation-Condition  prescribe  for pre-1938 entrant  are mandatory  to avail the benefit under- Railway Establishment Code Rule 2046 (b).

HEADNOTE:      Under Rule  2046 (b)  of Railway  Establishment Code  a Ministerial Railway  servant was  entitled to the higher age of retirement  at 60  years (i) if he had entered service on or before  31st March 1938 and (ii) if he held on 31st March 1938 either  a lien  or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under  Rule   2008(d)  without  interruption  until  he  was confirmed in that post.      The respondent  had been appointed a temporary clerk on 10th December  1936 and  was confirmed  in that  post on 1st September 1938.  When he was retired on attaining the age of 58, he  challenged  the  orders  claiming  benefit  of  Rule 2046(b). The  High Court  allowed the  writ petition holding that since  he was  confirmed on 1st September 1938 he would be deemed  to have  been permanently  appointed  since  10th December 1936.      Allowing the appeal by special leave the court, ^      HELD: (1)  Rule 2046(b) clearly lays down that not only the first  but one of the two alternatives of the second set of conditions  must also  be  fulfilled  by  the  Government servant "on  that date"  i.e. 31st March 1938. The specified requirement of  the rule  could not  be overridden  by  some deemed  retrospective  benefit  alleged  to  accrue  from  a confirmation subsequent to 31st March 1938. [1086D-E]      State of  Punjab v.  Dharam Singh  [1968] (3) S.C.R. 1; State of  Nagaland  v.  G.  Vasantha  A.I.R.  1970  SC  537: Director of  Panchayat Raj & Anr. v. Babu Singh  Gaur [1972] (2) S.C.R. 400, (followed)      [His Lordship  observed that the position was so clear, under the law, that it should not have been necessary at all for the  parties to  have had  to come  to this  Court for a correct decision]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 571 of 1972.      Appeal by  Special Leave  from the  Judgment and  order dated the  15th June  1971 of  the Madras High Court in W.P. No. 3112/70.      P. P. Rao and G. Chandra for the Appellant.      P. C. Bhartari and J. B. Dadachanji for the Respondent.      The Judgment of the Court was delivered by      BEG, J.  The General Manager, Southern Railway obtained Special Leave  to appeal to this Court against a judgment of a Division  Bench of  the Madras  High  Court.  The  learned Judges, Veeraswami,  C.J., and  Raghavan, J., had held, in a very  short   judgment,  a   notification  of   the  Railway Department, retiring  the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative.      The  petitioner-respondent   had   been   appointed   a temporary  Clerk  on  10th  December,  1936,  and  had  been confirmed in that post on 1st 1086 September, 1938.  He  contended  that  he  was  entitled  to continue in  service until  he had  attained the  age of  60 years. He  alleged that  the notification  retiring him  had been issued on the wrong assumption that he had to retire at the age  of 58  years which is the normal age of retirement. He claimed  the benefit  of  Rule  2046(b)  of  the  Railway Establishment Code.      According  to   Rule  2046(b),  a  Ministerial  Railway Servant  was  entitled  to  the  higher  age  of  retirement provided; firstly,  he had  entered Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e.  on 31st March, 1938), either: (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  had continued  to hold  the same  without interruption until he was confirmed in that post".      It is  clear that  the respondent  petitioner fulfilled the first  condition   inasmuch as he had entered Government service on  10th December,  1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since  he was  confirmed on  1st September,  1938,  he would be  deemed to  have been  permanently appointed  since 10th December,  1936, so  that he  would get the bene fit of the second  condition which  was also  essential for  him to satisfy before he could be held to be entitled to the higher age of  retirement. It  is very  difficult to appreciate the reasoning of  the High  Court when Rule 2046(b) clearly lays down that not only the first but one of the two alternatives of the  second set  of conditions  must also be fulfilled by the Government  servant "on  that date",  that is to say, on 31st March,  1938. The  specified requirements  of the  rule could  not  be  over-ridden  by  some  deemed  retrospective benefit accruing  from a  confirmation  subsequent  to  31st March, 1938.      The second of the two alternatives in the second set of conditions could  not apply  to the respondent petitioner as he was  only a  "temporary Government  servant"  and  not  a "provisional Government servant" as defined by Rule 2008(2). Rule 2008 may be reproduced here. It reads:           "2008-Suspension of lien:-           (a)  A competent  authority shall suspend the lien                of a  railway servant  on  a  permanent  post                which  he   holds  substantively   if  he  is                appointed in a substantive capacity:

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              (1)  to a tenure post or                (2)  to a permanent post outside the cadre on                     which he is borne, or                (3)  provisionally,  to   a  post   on  which                     another railway  servant  would  hold  a                     lien had  his lien  not  been  suspended                     under this rule. 1087           (b)  A competent  authority may,  at  its  option,                suspend the  lien of  a Railway  servant on a                permanent post  which he  holds substantively                if he  is deputed out of India or transferred                to foreign  service, or  in circumstances not                covered  by  clause  (a)  of  this  Rule,  is                transferred  whether   in  a  substantive  or                officiating capacity,  to a  post in  another                cadre, and  if in any of these cases there is                a reason  to  believe  that  he  will  remain                absent from the post on which he holds a lien                for a period of not less than three years.           (c)  Notwithstanding anything  contained in Clause                (a) and  (b) of this Rule a railway servant’s                lien on  a tenure post may, on circumstances,                be   suspended.    If   he    is    appointed                substantively to  another permanent post, his                lien on the tenure post must be terminated.           (d)  If a  railway servant’s  lien on  a  post  is                suspended under  clause (a)  or (b)  of  this                Rule, the  post may  be filled  substantively                and the  railway servant appointed to hold it                substantively shall  acquire  a  lien  on  it                provided  that   the  arrangements  shall  be                reversed  as   soon  as  the  suspended  lien                revives.      NOTE:-    This clause  applies if the post concerned is                a post in a selection grade of a cadre".      The respondent  petitioner having been confirmed on 1st September,  1938,   could  be   said  to   be  appointed  in substantive capacity  only on  that date.  He could  neither have a  lien nor  a suspended  lien on  a permanent post. He could also  not be  found to  hold a  permanent  post  in  a provisional capacity  under clause  (d) of  Rule 2008 before 31st March,  1938. The  respondent petitioner  had not  been shown to  hold a permanent post on 31st March, 1938. Learned Counsel for  the appellant,  therefore, relied  on: State of Punjab v.  Dharam Singh  State of  Nagaland v.  G.  Vasantha Director of Panchayat Raj & Anr. v. Babu Singh Gaur. Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court.      Learned Counsel  for  the  appellant  stated  that  the Railway Administration  does not propose to claim any refund of salary  paid to the respondent petitioner, who had worked until he  retired at  the age of sixty, and that this appeal was filed  only to get the question of law involved settled. The position was so clear, under the law, that it should not have been  necessary at  all for  the parties to have had to come to this Court for a correct decision.      We allow  this appeal  and set  aside the  judgment and order of  the High  Court. The  parties will  bear their own costs. S.R.                                         Appeal allowed. 1088