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PETITIONER: M.P. PRADHAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT16/02/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMI, V. (J) II

CITATION:  1990 AIR  891            1990 SCR  (1) 410  1990 SCC  (2) 539        JT 1990 (1)   335  1990 SCALE  (1)218

ACT:     Civil Services: Fundamental Rule 56(c)(i)--Retirement at the  age  of  60 years--Applicability  of--Joining  as  paid apprentice  on permanent basis--Whether amounts to  entering Government service on permanent basis.

HEADNOTE:     Appellant  joined  State  Government  service,  as  paid apprentice  on 1.7.1937. He held various posts and was  pro- moted  to  the  permanent post of Copyist  on  1.8.1941.  In March, 1943 he came to Government of india service on  depu- tation,  and  retired  in 1976 on attaining the  age  of  58 years. Thereafter he moved the Central Administrative Tribu- nal  claiming  that since he entered Government  service  on permanent basis before 31.3.1938, he was entitled to contin- ue  in service till the age of 60 years, as per  Fundamental Rule 56(c)(i).     Dismissing  the application, the Central  Administrative Tribunal  held  that since the appellant  was  appointed  on permanent basis to the post of Copyist on 1.8.41, he did not come  within  the  purview of  Fundamental  Right  56(c)(i). Aggrieved, the appellant has preferred this appeal. Allowing the appeal, this Court,     HELD: It is correct that from 1st of July, 1937 upto 1st of August, 1941 the appellant has been shown in the  service book  to  be appointed in officiating  capacity  to  various posts  but  the fact remains that his basic  appointment  as paid  apprentice was permanent. The finding of the  Tribunal that the appellant was made permanent for the first time  as Copyist  on 1st August, 1941 cannot be accepted in the  face of clear entries in the service book showing that he  joined as paid apprentice on permanent basis on 1st of July,  1937. Joining  as  paid apprentice on permanent  basis  cannot  be anything  else but entering Government service on  permanent basis  and  since  the entry was before  31st  March,  1938, Fundamental Rule 56(c)(i) is attracted and the appellant  is entitled to remain in Government service fill the age of  60 years. [412D-F] 411 [  This court observed that since the appellant has  already completed 60 years, he be paid two years emoluments with all

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consequential  benefits  including any  enhancement  in  the fixation  of  pension and other  post-retirement  benefits.] [413D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1899  of 1989.     From the Judgment and Order dated 20.2.87 of the Central Administrative Tribunal, Principal Bench, New Delhi in  T.A. No. T-322/ 85 (CW 293/77).     Shankar Vaidyalingam and Ms. Seita Vaidyalingam for  the Appellant.     B.  Dutta,  Govind Das, Mrs. Sushma Suri and  Ms.  Indra Sawhney for the Respondents. The Judgment of the Court was delivered by     KULDIP  SINGH, J. The question for our consideration  in this  appeal is whether the appellant is governed by  Funda- mental Rule 56(c)(i) and as such entitled to  superannuation at the age of 60 years. Fundamental Rule 56(c)(i) is reproduced as under:           "(c) A ministerial Government servant who  entered Government  service  on or before the 31st March,  1958  and held on that date:           (i)  a  lien or a suspended lien  on  a  permanent post,  or ... shall retire from service on the afternoon  of the  1st  day of the month in which he attains  the  age  of sixty years."     The  appellant joined service as paid apprentice in  the Collectorate  of Etawah, Government of Uttar Pradesh on  1st July, 1937. On the same day he was asked to officiate in the post  of  Arranger.  He was sent back to the  post  of  paid apprentice on 24th December, 1937 but was again appointed as Arranger  in  officiating capacity on 3rd of  January  1938. While  holding the post of paid apprentice he had  been  ap- pointed in various posts on officiating basis. He was final- ly promoted and appointed to a permanent post of Copyist  in a  substantive capacity on 1st of August, 1941. He  came  to the Government of India on deputa- 412 tion  in March 1943 and thereafter retired from  service  on attaining the age of 58 years in February 1976.     The  appellant  claimed that having  entered  Government service  on permanent basis before 31st March, 1938  he  was entitled  to  continue in service till the age of  60  years under  Fundamental  Rule  56 (c)(i) and  his  retirement  on attaining  the  age  of 58 years was  illegal.  The  Central Administrative  Tribunal,  Principal Bench, New  Delhi  dis- missed  the  application of the appellant holding  that  the appellant was only an apprentice under training prior to 1st of  August, 1941 and as such was not holding any  employment under the State on permanent basis. According to the  Tribu- nal the appellant was appointed to the Government service on permanent  basis  to the post of Copyist on 1st  of  August, 1941  and  as  such he did not come within  the  purview  of Fundamental Rule 56(c)(i).     We  have  examined the admitted entries in  the  service book of the appellant which are on the record. These entries show that the appellant joined service as paid apprentice on substantive  permanent  basis on 1st of July,  1937.  It  is correct that from 1st of July, 1937 upto 1st of August, 1941 he  has  been shown in the service book to be  appointed  in officiating  capacity to various posts but the fact  remains that his basic appointment as paid apprentice was permanent.

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The  finding  of the Tribunal that the  appellant  was  made permanent for the first time as Copyist on 1st August,  1941 cannot  be  accepted  in the face of clear  entries  in  the service  book showing that he joined as paid  apprentice  on permanent  basis on 1st of July, 1937. Joining as  paid  ap- prentice  on  permanent basis cannot be  anything  else  but entering Government service on permanent basis and since the entry was before 31st March, 1938 Fundamental Rule  56(c)(i) is  attracted  and the appellant is entitled  to  remain  in Government service till the age of 60 years.     In  the reply affidavit on behalf of the respondents  in the court below it is stated as under:           "The  petitioner joined Government  Service  under the  provincial  Government of Uttar Pradesh  on  1.7.  1937 against  a post of paid apprentice. It appears there were  a few  permanent  posts  of paid apprentice  under  the  State Government. Petitioner was appointed against one of them  in Collectorate, Etawah." 413     The  respondents  repeated their stand  in  the  counter filed by them in this Court in the following terms:          "It is submitted that the petitioner joined Govern- ment  service under the Provincial Government of Uttar  Pra- desh  on  1.7.1937 against a post of "Paid  Apprentice".  It appear that there were a few permanent posts of paid appren- tice under the State Government. The petitioner was appoint- ed against one of them in the Collectorate, Etawah."     We  are, therefore, of the view that the Tribunal  erred in denying the benefit of Fundamental Rule 56 (c)(i) to  the appellant. We allow the appeal with costs and set aside  the judgment of the Central Administrative Tribunal under appeal and  we hold that the appellant was entitled to continue  in Government service till he attained the age of 60 years. The appellant  has already completed 60 years and as such he  be paid  two years emoluments with all  consequential  benefits including  any  enhancement in the fixation of  pension  and other  post  retirement benefits. We quantify the  costs  as Rs.3,000. G.N.                                        Appeal allowed. 414