SWAMIAATHAN Vs. CHIEF ENGINEER S C RLY

JUDGEMENT

(1.) The petitioner who is working as Permanent Why Inspector in the South Central Railway has filed this application under Art. 226 of the Constitution challenging the order of the Chief Engineer, South Central Railway dated 1- 4 - 1972 compnlsorily retiring the petitioner on the ground that he had completed 30 years of qualifying service on 5-4-1972 and therefore shall retire from service with effect from the afternoon ot 4-7-1972 or from the date of the expiry of three months computed from the date of Service of the impugned notice on him whichever is later. Mr. N Raghvan. the learned counsel appearing for the petitioner, assailed the order of the Chief Engineer on several grounds. According to him, the petitioner had not put in 30 years of qualifying 'ervice and the respondent had not chosen to ask the Divisional Accounts Officer as to whether the petitioner had put in 30 years of qualifying service, and therefore the compulsory retirement of the petitioner was not done in public interest and the committee that reviewed the work of the petitioner was not competent under the rules and the order is not bons fide one as it has been passed at the instance of one Raia Rac, a Divisional Engineer, who later became Secretary to the General Manager. In the counter-affidavit filed on behalf of the respondents the allegations made against Raja Rao have been denied. It is also the case of the respondents that it is only after reference to the account section that the period of .qualifying service was determined and that the Review Committee which reviewed the work of the petitioner was competent to do so and that the members of the committee were not the persons who wrote the confidential of the petitioner and that Raja Rao had nothing to do with the compulsory retirement of the petitioner. In short, it is their case that when once the petitioner completes 30 years of service, it is for the competent authority to decide whether he should be continued in service having regard to his performance, ability and record of service and in this case the committee that reviewed the work came to the conclusion that the petitioner should be retired in the public interest as he bad put in 30 years of service. The committee also found that his work was below average and it was not in the public interest to continue him any longer in service and therefore he must retire from service.

(2.) Rule 620 of the Railway rules provides for retirement of a railway servant after he puts in 30 years of qualifying service. It is open to the railway servant to notify his intention of retiring to (he appropriate authority three months before the date on which he wishes to retire, and for he competent authority to require him to retire at any time after he has comple- ted 30 years of qualifying service. The only requirement is that he should be given three months notice before the date on which he is required to retire or three months, pay and allowances in lien-of such notice. In the present case the Railway administration give him three month notice. Qualifying service' is defined in rule 407. Ii is the number of completed six-monthly periods of service which is taken in to accaunt for determining the arrount of pensionary benefits, if the total quilifying servic contains fraction of a day, half a day or above will be rounded off to the next full day. Service in excess of a completed six-monthly period in the total qualifying service put in by the railway servent, his servise in the ex-state railway has also to be counted for the purpose of computing qualifying service. Rule 422 (x) says : "Periods of service (including a period of apprenticeship in the case of serving railway servant- which is treated as dies non in terms of explanation (iii) under rule;- 407 treated as dies non'' Rule 407 reads :-

(3.) The petitioner was originally entertained as a temporary clerk on 30-10-1941. He worked in that capacity till 10-1-1948 when he was appointed as a Sub-Permanent Why Inspector. He continued for some years as a sub-permanent way inspector and then became a permanent way inspector in 1964. "Temporary service" as defined in Rule 410 means "continuous officialing service in a temporary or permanent pensionable estabslishment prior to the date of confirmation or the deemed date of confirmation in a permanent post." As the petitioner's appointment is a clerk does not come in any one of the categories mentioned in Rule 407. his temporary service as a clerk in a pensinable. post has to be counted towards qualifying service The petitioner was confirmed as a clerk with effect from, as would be seen from the register produced before me, me-1942. The date of his first appointment as a probationary clerk is 30-10-1941. The service register relating to his first appoimment as a clerk on 30-1-1942 hears not only his thumb mark but also his signature. That was attested by the Divisional Engineer, Western Division. The question is not when the petitioner signed in that register and affixed his thumb mark, but whether he put his thumb mark and also put his signature in approval of she entries made.in the register.