Case ID: 3483

Judgment:
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: (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. S.R. 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 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 vs Dharam Singh ; ; State of Nagaland vs G. Vasantha A.I.R. 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]