GOVERNMENT OF ANDHRA PRADESH Vs. SUBRAHMANYAM

JUDGEMENT

(1.) This writ petition is directed against an order compulsorily retiring the petitioner under Art. 459 (h) (i) of the Central Service Regulations which, in so far as it is relevant, reads as follows : Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing, or three months pay and allowance in lieu of such notice. (i) If he is class I or Class II Gazetted service or post and had entered Government service before attaining the age of 35 years and after he has attained the age of 50 years........." The petitioner is a substantive holder of the post of Superintendent. In 1973 he was promoted as Assistant Garrison Engineer, on an officiating basis. When the impugned order was passed on 24-4-1979, he was still holding the said post on an officiating basis. It is not in dispute that the post which he was holding on an officiating basis, is a Class -1 posts

(2.) Mr. C.P. Sarathy, the learned counsel for the petitioner, contends OH the basis of the decision of the Supreme Court in Union of India vs. K.R. Tahiliani which decision has been rendered with reference to Fundamental Rule 56 (j), that the power under Art. 459 (h) (i) is not available in the case of an employee holding a post of an officiating basis and that, therefore, the order is bad.

(3.) I have perused the judgment of the supreme Court. The language of Rule 56 (j) is identical with the language of Art. 459 (h). Even the language of Rule 56 (j) is the same as the language of Art. 459 (h). The Supreme Court has held affirming the view of the Delhi High Court, that Rule 56 (j) is not available in the case of a person holding a post on an officiating basis and that, it can be used only in case of a person holding a post on a substantive basis. It has been observed that a person holding a post on an officiating or temporary basis has no right to the post, and can be reverted at any time. Ultimately, it has been observed: