M. NARAYANAN NAIR Vs. RAILWAY BOARD

JUDGEMENT

(1.) THE short question arising for determination in this appeal is whether the appellant before us is entitled to the benefit of sub -rule(b)of rule 2046(F.R.56)R 11 of the Indian Railway Establishment Code,Vol.11 as the rule stood after its amendment on 11 -1 -1967.That rule is in these terms. "2046(F R.56(a)Except as otherwise provided in this rule,every railway servant shall retire on the day he attains the age of fifty eight years. (b)A ministerial railway servant,who entered Government service on or before 31 st March,1938 and held on that date: - i)a lien or a suspended lien on a permanent post,or ii)a permanent post in a provisional substantive capacity under clauses d)of Rule 2008 and continued to hold the same without interruption until he was confirmed in that post,shall be retained in service till the day he attains the age of sixty years. Note: - For the purpose of this clause,the expression "Government Service ''include service rendered in ex -company and ex.state Railways,and in former provincial Government.

(2.) THE appellant was appointed,we will assume for the purpose of this appeal,to a permanent post but in a temporary capacity,on 8.2.1937 That is the case of the appellant.He was admittedly confirmed only on 1 -10 -1938.If the appellant held on the 31st of March,1938 a permanent post in a provisional substantive capacity and continued to hold the same without interruption until he was confirmed in that post,he would be entitled to be retained in service till he attained the age of 60 years.The appellant attained the age of 58 years on17.7.1972;that was the date on which he should retire if he was not entitled to the benefit of sub -rule(b )(ii)of rule 2046.

(3.) THE Indian Railway Establishment Code and the Indian Railway Establishment Manual contain rules framed under the proviso to Article 309 of the Constitution has been accepted by the Supreme Court(A.I.R.1969 S.C.118)Rule 2301 of the Indian Railway Establishment Manual is in these terms: - Temporary Railway Servants. 2301. Definition - A "temporary railway servant "means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board.The term does not include "casual labour " ;,"a "contract or "part time "employee or an "apprentice " ;.