Case: The General Manager, Southern Railway, Madras &amp; Another Vs. T. N. Paramasivam

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, G.J., and Raghavan J., bad held, in a very short judgments notification of the Railway Department, retiring thefrom service with effect from 3rd October, 1970 to be inoperative.2. Thehad been appointed a temporary clerk on 10th December, 1936 and had been confirmed in that post on 1st 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 the 58 years which is the normal age of retirement. He claimed the benefit of rule 2046 (a) of the Railway Establishment Code.3. 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(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 thefulfilled 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 benefit 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 servantthat is to say, on 3lst March, 1938. The specified requirements of the rule could not beby some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938.

Reasoning: er 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. Thehad 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 and another v. Babu Singh. Learned counsel for thefound it impossible to justify the order of the Madras High Court.It is clear that thed 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 benefit 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 servantthat is to say, on 3lst March, 1938. The specified requirements of the rule could not bey some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, .1938.