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 WP No 311270
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 CJ 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 2046b of the Railway Establishment Code
According to Rule 2046b 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 ie 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 2046b 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 20082
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 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 vs Dharam Singh State of Nagaland vs G Vasantha Director of Panchayat Raj  Anr
vs 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
SR Appeal allowed


Summary:
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 2008a or a provisional lien on a permanent post under Rule 2008d 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 2046b
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 2046b 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 ie 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 vs Dharam Singh   State of Nagaland vs G Vasantha AIR 1970 SC 537 Director of Panchayat Raj  Anr
vs Babu Singh Gaur   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