XAVIER PASCAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE substantial question which arises for decision in this second appeal is whether the order, Ex. A. 1 dated 10 October 1957, made by the Works Manager of the Central Railway at Secunderabad dispensing with the appellant's services is Justiciable. The order reads as follows: Sri Xavier Pascal is attaining the age of superannuation 65 years, on 11 October 1957. He should, therefore, be put off duty from 11 October 1947 until the question of his nationality is finally decided by the General Manager. It is Been from the order that the appellant's services were dispensed with on the ground that he had attained the age of superannuation, viz. , 55 years. Admittedly the poet of maistry in the Works Manager's office which was held by the appellant, comes within the expression "civil post under the Union" in Article 310 of the Constitution. He therefore holds office during the pleasure of the Precedent, "except as expressly provided by the Constitution. " The order is not one of dismissal, or removal, or reduction in his rank, which would attract Section 311. It purports to dispense with the services of the appellant only because he has reached the age of superannuation under the service rules applicable to him. The appellant's contention is that be had not reached the age of superannuation for an Indian Christian, which is 60 years, and that he had been erroneously treated as an Anglo-Indian, for which category of employees the age of superannuation is 55 years. But this is not a ground on which Ex. A. 1 can be interfered with and the appellant reinstated in Bervice. The lower appellate Court is therefore right in holding that the order complained of in the salt is not justiciable. Although the plaintiff has preliminarily asked for a declaration that he belongs to the Indian Christian community, the real and substantial relief sought by him is the setting aside of the impugned order and his reinstatement in the service of the railway. As the Court had no jurisdiction to grant these substantial reliefs the lower appellate Court was right in ordering the dismissal of the suit. This second appeal is accordingly dismissed.

(2.) ON the question of costs, the lower Court based its judgment of dismissal on two other grounds which, it appears to me, are not equally sustainable. No issue as to the justiciablity of the impugned order had been taken in the trial Court. In these circumstances, the parties will bear their own costs. No leave.

(3.) THIS second appeal having been set down this day for being mentioned in pursuance of tine letter of the appellant's advocate dated 2 July 1962, upon perusing the said letter, and Upon hearing the arguments of Mr. K. Venkata Ramayya, advocate for the appellant, and of Mr. R. Raghavan, advocate for the respondents, the Court made the following ORDER