MADHORAM VERMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner joined the service of the former Bikaner State Railway on February 1, 1929, as clerk class II, and he was confirmed in that capacity on May 1, 1929. While he was serving on the ministerial staff of that railway, the Union of India took over the administration of the Bikaner State Railway and the petitioner was given the option to continue to serve in his scale of pay and conditions of service as in the ex -Bikaner State Railway, or to elect for the Central Pay Commission Scale of pay, hereinafter referred to as 'the C.P.C. Scale.'. He was asked to exercise his option in form Annexure 'A', on the terms and conditions mentioned in Annexure 'B'. The petitioner has stated that it was not stated in those annexures that the date of option for the C.P.C. Scale would be taken to be the date of his appointment in the service of the Union of India. The date of the birth of the petitioner was January 10, 1909 and, according to him, he was to retire on reaching the 60 years age of superannuation on January 9, 1969. He was however informed by order Ex. 1 dated January 3, 1967, of the Divisional Accounts Officer, Bikaner, that he would be retired with effect from January 9, 1967 (afternoon) on attaining 'the age of superannuation viz. 58 years'. The petitioner preferred an appeal against that order on January 7, 1967. It was treated as a representation and was rejected by the Financial Advisor and Chief Accounts Officer of the Northern Railway on the ground that as the petitioner had elected the C.P.C. Scale of pay, he was to be considered to have 'elected government service on 1 -4 -60, i.e., after 31 -3 68, for the purpose of Rule 2046 (F R. 56) E. 11' in terms of the relevant orders of the Railway Board. That decision of the Financial Adviser and the Divisional Accounts Officer was conveyed to the petitioner by the Divisional Accounts Officer in his memorandum Ex. 3, dated February 27, 1967. The petitioner preferred an appeal to the Minister, but he was again informed in the Financial Advisor and Chief Accounts Officer's letter Ex. 5 dated May 14, 1968 that he was to be considered as having entered government service with effect from April 1, 1950 and as such the provisions of Rule 2046(2)(a) E -II were not applicable in his case. He then filed the present petition to challenge his retirement by order Ex. 1 on a number of grounds, the main ground being that as he was entitled to serve up to the age of 60 years according to the rules of the ex -Bikaner State Railway, it was not permissible for the respondents to alter that condition of his service to his prejudice and that nothing was stated in the terms and conditions of the option under which he opted for the C.P.C. Scale which could give arise to the contention that the date of his appointment in government service would be taken to be the date of the option and not the actual date of his appointment in the Ex. Bikaner Railway. The petitioner also stated that the Divisional Accounts Officer had no jurisdiction to retire him, that he had been retired by a mis -interpretation of the rule and that he had been discriminated against.

(2.) THE respondent filed a reply in which they admitted the fact that the petitioner joined service as a clerk in the ex -Bikaner Railway on February 1, 1929 and was confirmed on that post on May 1, 1929. They stated that as a result of the federal financial integration of the ex -Bikaner State Railway with effect from April 1, 1950, the C.P.C. Scale of pay was made applicable from that date and the staff was given the option to elect either the scale or to continue in their existing scale. It was further stated that the petitioner elected to come on the C.P.C. Scale for pay with effect from April 1, 1950, and that his contention that the date of option was taken as the date of appointment is not correct as his service before April 1, 1950 was to be treated as continuous with the service after that date as prescribed in the option form It was specifically stated in his connection that the petitioners service was therefore 'treated as continuous from 1 -2 -29 for all purposes'. The respondent admitted that the date of the birth of the petitioner was January 10, 1909 according to the service record, but took the plea that, after he exercised an option to avail of the C.P.C. Scale of Pay, he was deemed to have come under the rules of the Indian Railways applicable to all other employees so that he ceased to be governed by the rules of the ex -Bikaner State Railway where an employee was to retire at the age of 60 years. It was thus the case of the respondents that the petitioner was governed by Rule 2046 E. II as he had elected for the C.P.C. Scale of pay, but that he was brought under the rule 'as having entered government service from 1 -4 -50' and that his case fell within the purview of 'item (i) 'of Rule 2046 -E -11' so that he was to retire on attaining the age of 58/60 years. The respondents stated further that as the retirement age was raised to 58 years by an order dated December 6, 1962, the petitioner was correctly retired on attaining that age as he was taken to have entered government service for the purpose of Rule 2046 -E. 11 on April 1, 1950. It was pointed out that while relaxation was allowed by the Railway Board by substituting a new rule for the old Rule 2046 -E. II on January 11, 1967 as per annexure (sic), the petitioner was not entitled to its benefit as he had retired two days earlier. It was further contended that there was no force in the contention of the petitioner that he was discriminated against in any manner. The respondents denied the contention that the Divisional Accounts Officer was not competent to issue the impugned order (Ex. 1). In this way they traversed the claims of the petitioner altogether.

(3.) I his does not, however, present any difficulty for, when the petitioner represented against the impugned order of retirement, the Financial Advisor and Chief Accounts Officer took the view in Ex. 3 that as he had elected the C.P.C. Scale of Pay 'he is to be considered to have elected Government service on 1 -4 -60 i.e. after 31 -3 -58 for the purpose of Rule 2046 (F.B. 56) E. II' in terms of the two letters of the Railway Board referred to by him. On the petitioner's further representation, the Financial Advisor made the position more clear in his memorandum Ex. 5 dated May 14, 1968 as follows: You had opted for C.P.C. Scales of pay from 1 -4 -50 and in terms of Railway Board's letter Ex. E(6) 50 RTI dated 24 -9 -62, the ex -State Railway Staff who had opted for C.P.C. Scales, where to be considered to have entered government service w. e. f. 1 -4 -50. As such provisions of Rule 2046 (2)(a) -E II could not be made applicable in your case, as that rule applied only in case of ministerial servants who had entered Government service before 1 -4 -38. The benefit of ex -State Railway service for the purpose of Government service defined in Rule 2046 (F.B. 56) E -II as substituted vide advance correction slip No. 223 -R II, was, however, allowed by the Railway Board in their letter No. PC -62/RT -I dated 11 -1 -67. The benefit envisaged in Railway Board's letter dt. 11 -1 -67 could also not be made applicable to you as you had already retired from service on 9 -1 -67 A.M. i.e. prior to the date of issue of Board's letter. It is therefore beyond controversy that as the petitioner had opted for the C.P.C. Scale of pay with effect from April 1, 1950, the respondents took the view that he was to be considered as having entered government service with effect from that date, and it was for that reason that he was denied the benefit of Rule 2048 (2)(a) E.II. In other words, his case was dealt with according to Rule 2046 (2)(b) -E. II. The same line of reasoning has been adopted in the other portions of the reply of the respondents, for it has been stated in paragraph 3, at three place' that his date of entry in government service has been taken as April 1, 1950 for purposes of Rule 2046 -E. II