NABA KUMAR DE Vs. UNION OF INDIA

JUDGEMENT

(1.) ON 15th April, 1936, the petitioner was appointed as a fitter helper (a class IV railway servant i in the erstwhile Bengal Nagpur Rail way. It is stated that the date of birth of the petitioner is 1st November 1915. According to the petitioner his said appointment was in and or against permanent vacancy in the said Railway which is, however, dispued by the respondents. On 29th October, 1938, the petitioner was promoted to the post of a Clerk as a ministerial railway servant; in Class III of Bengal Nagpur Railway. Thereafter on the 1st September 1940, the petitioner was confirmed in the said post. From 1st October 1944, the bengal Nagpur Railway became a Go vernment Railway and it is now known as South Eastern Railway, which is hereinafter referred to as the Railway administration". On or about 16th march, 1966, the petitioner was promoted to the post of Head Clerk (Accounts)District Engineer (Regirdering)Kharagpur, South Eastern Railway. It is alleged by the petitioner that as the railway Administration was contending that the petitioner would retire on his. attaining the age of 58 years i. e. , with effect from 1st November, 1973, he made several representations in writing on 15;h June, 1972, 18th December 1972, 16th September, 1973 and 30th september, 1973, to the Chief Personnel officer, South Eastern Railway and the; chairman, Railway Board to the effect that as the petitioner had fulfilled the conditions of clause (b) of Rule 2046 of Indian Railway Establishment Code, vol. II he would continue in service until 60 years of age. According to the petitioner inspite of his said representations one U. S. Raju, Dist. Engineer (Regirdering) Mahanadi, Kharagpui by a notice or order dated 24th September, 1973, informed the petitioner that his date of retirement is 1st November, 1973, and he would be booked off from duty on and from that date. It is to be noted that the petitioner attained the age of 58 years on 1st November. 1973. The petitioner by his letter dated 27th September, 1973, refused the statements contained in the said letter of 24th September, 1973, and finally after serving of a notice of demand for justice dated 30th September, 197s, through his Solicitor upon the respondents the petitioner on the 22. 1. 0. 1973 made this application under Article 228 of the Constitution challenging, inter alia, the said notice or order dated 24t[h september, 1973, and obtained a Rule nisi. After the matter became ready it was heard by A. K. Sen J. It appears that relying on a decision of the Supreme Court in the case of (4) Paresh chandra v. Controller of Stores, report ed in A. I. R. 1971 S. C. 359 A. K. Sen J. was of the view that the petitioner runt being confirmed in a permanent post on the appointed date, i. e. 31st March, 1938, did not acquire any lien of a permanent post on the appointed date, and as such he is not eligible to continue in service until 60 years of age in terras of rule 2046 (b) of the Indian Railway establishment Code, Volume II. But us a. K. Janah J. took a different view on the same point in the case of (1) Hirendra nath Sengupta v. Union of India (C. R, 3047 (W) of 1973) with which a. K. Sen J. was unable to agree, his lordship by a judgment delivered and order passed on 18th December, 1973, referred the matter to the Division bench. That is how this has come before us.

(2.) THE short point which falls for determination in this application is whether the petitioner is entitled to the benefit of Rule 2046 (b) of the Railway establishment Code Volume II. It is therefore necessary to refer to the said rule. When the said notice or order dated 24th September, 1973, was served on the petitioner Rule 2046 (a) and (b)read as follows : -

(3.) THE only point urged on behalf of the petitioner in this application is that the petitioner being a ministerial railway servant who entered Government service before 31st March, 1938, and having held a lien on a permanent post on that day, has fulfilled the conditions of Rule 2046 (b) (i) and therefore, he is entitled to continue in service until he attains the age of 60 years i. e. upto 1st november 1975. In order to get the benefit of Rule 2046 (b) (i) two conditions must be fulfilled by a lailway servant. Firstly, he must be a ministerial railway servant who has entered Go vernment service on or before 31st march, 1938, and secondly, he must on that date i. e. 31st March, 1938, hold a lien or a suspended lien on a permanent post. "lien" has been defined under rule 2003 (14) of the Indian Railway establishment Code, Volume II as "the title of a railway servant to hold sufrstantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively Rule 2003 (14)of the Indian Railway Esabilshment code Vol. II came up for consideration before the Supreme 'court in the case of Paresh Chandra v. Controller of stores, N. F. Railway Pandu and Ors. reported in a. I. R. 1971 S. C. 359. Supreme court interpreted the said Rule 2003 (14) in the following manner:-