Full Judgment Text
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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
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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.
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(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.
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