M APPANA REDDY Vs. VISAKHAPATNAM PORT TRUST

JUDGEMENT

(1.) THE petitioner challenges the interpretation of his appointment order put by the Government, which affects him adversely as to the date on which he will be required to retire from Service. It is not denied that under the Fundamental Rules, if the petitioner has entered the Government Service on or before 31-3-1938 and held on that date, a lien or suspended lien on a permanent post or (ii) a permanent post in a provisionally substantive capacity, under Cl.(d) of R.14 and continued to hold the same without interruption until he is confirmed in that post, he is entitled to be. retained in Service till he attains the age of 60 years. Otherwise, he will be required to retire under the revised rules on reaching the age of 58 years. THE petitioner is a ministerial servant in a Vizagapatam Port Trust, having entered service in 1930. His date of birth is 16-12-1907 and he would have retired at the age of 55 years before the revision of the rules, on 16-12-1962. It is stated that the Auditor-General of India sanctioned 28 permanent posts as from 18-8-1937, and the Accountant-General, by his letter dated 30-9-1937, directed discharge of the excess of temporary posts over those 28 permanent posts that were created. Subsequently, on 29-4-1938, the Audit Officer of the Port Trust, by virtue of the powers delegated to him, confirmed the petitioner and others in rhose 28 posts and it is the Government's case that they were made permanent as from that date, viz, 25 4 1938. If so, it is not denied that the petitioner would not be entitled to the benefit of the rule which enhanced the retirement age to 60. THE Fundamental Rule is clear; and it needs only to find out as when the petitioner acquired a lien or a suspended lien on a permanent post. It may be stated fhat a person would have a lien on his post if he is appointed to the post permanently, or if he is confirmed in a permanent post ; vide F.R, 9 (13). THE question therefore is whether the petitioner was appointed permanently before 31 3-1938. THE petitioner relies on the following letten of the Auditor- General. In letter No. 961-NGE/8-37/ dated 18 8 1937. the Auditor General ot India intimated to the Accountant-General, Madras that under Rule 70 in Part II of the Book of Financial Powers, the Auditor-General sanctioned the creation of certain permanent posts specified therein on the scales of pay noted against each, in lieu of the existing temporary posts which were also specified therein. In this letter, Permanent posts of 7 lower Division Clerks on the scale of pay of Rs. 40-40-2-80 were created in lieu of abolition of 4 temporary clerks, one of whom was in the scale of pay Rs. 28-4-80 and the three others on Rs. 50-4-70. Later, on 6-1-1938, by letter No.4/NGE/8-37 the Auditor-General replied to the Accountant General to his letter dated 2-12-1937, conveying sanction of the Auditor-General to the continuance from 1-3-1937 to 12-9-1937 of the temporary posts for the office of the Audit Officer, Vizaga patam Harbour Construction, which were abolishe d on the creation of permanent posts in Auditor General's letter No, T. 961-NGE/8-37, dated 18-8-1937, and also intimating him that the sanction contained in his letter of 18-8-1937, be given effect to from 13-9-1937 instead of trom 18-8-1947, the date of the Auditor General's letter. It will be observed that though the Auditor-General's letter of 18-8-1937. abolished the temporary posts and created permanent posts, it had intimated in that letter that pending receipt of orders of the Government of India regarding fixation of pay of the existing personnel in the new permanent posts, each person then employed will draw his temporaiy rates ot pay, showing thereby that it was intended that all the temporary posts were to - be abolished and in their place, permanent posts of 7 clerks and other categories were created, and in which the temporary persons were to be absorbed. Evidently, there was some delay, and so by a.subsequent letter, it was stated that instead of continuance of the temporary posts from 1-3-1937to 18-8-1937, the same should be continued upto 12-9-1937. It is obvious therefore that when once the temporaiy posts have been abolished and the persons discharged and permanent posts were created in which the previous temporary personnel were absorbed and the Auditor General has specified that sanction ro those posts would be given effect to from 13-9-1937 instead of 18-8-1937, the temporary posts cease to be in existence. THE only question therefore is whether the persons who are employed on permanent posts would automatically be deemed ro be permanent, or is there any requirement under the Fundamental Rules, for them to be confirmed in order to get a lien. At this stage, I had given an opportunity to the learned Counsel to refer me to any rule in this behalf. Bat, after taking time they stated that there is no specific rule as to whether in the absence of any specific direction that the post is either substantive, temporary or on probation what would be the effect and the nature of the appointment. Mr. Kuppuswamy refers me to a decision 0f the Supreme Court in R. L. Bhingra v. Union of India where THEir Ludships observed at page 42 that the appointment of a Government servant to a peruianent post may be substantive or on probation or on an officiating basis, and a substantive appointment to a permanent post in Public Service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a 'lien' on the post. It was observed further that an appointment to a permanent post in Government Service on probation means, as in the case of a person appointed by a private employer, that the servant so appointed is taken on trial. It was further observed that an appointment to offciate in a permanent post is usually made when the incumbent substantiveiy holding that post is on leave or when the permanent post is vacant and no substantive appointment has yet been made to that post. THEy stated further that likewise an appointment to a temporary post in a Government Service may be substantive or on probation or on an officiating basis, and here also, in the absence of any special stipulation or any specific service rule, the servant so appointed acquires no right to the post and his service can be terminated at anytime except in one case, namely, when the appointment to a temporary post is for a definite period. THEse observations however do not assist in determining the question whether, in the absence of any such specific condition at the time of appointment, as contended by Mr. Kuppuswamy, the appointment would be deemed to be a permanent or a substantive one giving the employee a lien on it, In support of his contention, Mr. Kuppuswamy cited a judgment of a learned single Judge of this Court in Narasimha Rao v. State of A. P. where Sesbachalapathi J., held that from the language of that order, there was nothing to indicate that the placing of the five teachers therein mentioned was on a temporary or on an officiating basis, as such the petitioner was said to be holding a substantive post. An examination of the facts of that case would show that after those teachers were appointed.they had finished their probation in Grade 1 satisfactorily and it was so declared by the competent authority by an order dated the 27th of February, 1953. In those circumstances, the learned Judge held that the post which the teacher was holding in Grade I. was a substantive post. It may be noticed that these posts were permanent posts and, once after an appointment, probation has been declared, it follows that he will be deemed to be a permanent employee. Such a situation does not arise in this case. On the other hand, the learned Government Pleader states that this appointment was definitely a temporary appointment till 25-4-1938, when the petitioner was confirmed in that post as from that date. It appears that by an office order No. 51 dated 21-2-1939, the Audit Officer, who was empowered to deal with this matter, confirmed these officers as from 25-4-1938. This office order, it is stated in the ccunter-affidavit, was served on these persons and the petitioner had put his initials to this office order in token of his having been intimated of this fact, and subsequently the iact that he was made permanent with effect from 25-4-1938 was entered in his service register. THE service register has been produced before me and the learned Government Pleader states that on 7-6-1940 the petitioner initialled it in token of his finding the entries in that registers to be in order. But Mr. Kuppuswami, on instructions from his client, denies that these are his client's initials. Be that as it may, the fact that he had already been intimated of the office order earlier and subsequently he started contribution to the Provident Fund from 25-4-1938 all go to show that he had knowledge of his being made permanent from 25-4-1938, He did not either demur or protest against this order for nearly 25 years. THE columns in the service register are "whether substantive or officiating" and "whether permanent or temporary" and in it is stated that he is permanent as from 25-4-1938. 1 must take this as a correct entry. Under the Provident Fund Rules also, to which I have adverted, as can be seen from the copy of the letter No. 611-NGE/8/37 dated 25th April, 1938 from the Auditor-General of India, New Delhi, it is apparent that the Government of India were not prepared to grant the non-gazetted staff, which will be non-pensionable, the benefits of the State Railway Provident Fund Scheme but that they would, however, admit such of the non-pensionable staff as were made permanent to the benefits of the Contributory Provident Fund. Pursuant to this, it is urged that the petitionet had been contributing to the Provident Fund, THEre was no demur in the reply to these allegations. In the circumstances, I have no hesitation in holding that he was appointed to the permanent post on 25-4-1938, as such he will not be entitled to the extension of his services till the age of 60 years. This Writ petition is accordingly dismissed with costs, Advocate's fee Rs 100/-. A request is made by Mr. Kuppuswami to formally amend the caust title to read that instead of the '.Union of India, represented by the Chairman and Board of Trustees", it should read "THE Board of Trustees, represented by its Chairman". Permission is accorded M. S. K