UNION OF INDIA Vs. MADHARAM VERMA

JUDGEMENT

(1.) A learned single Judge of this Court by his judgment dated March 30, 1972 set aside an order retiring Madhoram Verma from Railway service on his completing 58 years and directed the Union of India and others to pass proper orders in accordance with Rule 2046 (2) (a) of the Railway Establishment Code (hereinafter referred to as "r. II") within 6 months. The Union of India and others have come up in appeal.

(2.) THE facts of this case are not in dispute. Madhoram Verma, the respond before us, joined the former Bikaner State Railway as a clerk on February 1, 1929. The Union of India took over the Bikaner State Railway on April 1, 1950 and even then Verma was working as a clerk and, therefore, he was a member of the ministerial staff. He was given an option to elect the Central Pay Commission Scale of Pay, abbreviated as "cpc Scale", or to retain his scale of pay and conditions of service as were prevalent in the ex-Bikaner State Railway. He opted for the "cpc Scale". According to the conditions of service in ex-Bikaner State Railway, Verma would have retired on January 9, 1969 on completing 60 years, but the Railway Administration informed him vide Ex. 1 that he would be retired with effect from January 9, 1967 on attaining the age of 58 years. He preferred an appeal against this order which was rejected on the ground that Verma having elected the "cpc Scale" should be considered to have elected for the Government service with effect from April 1, 1950, i. e. , after March 31, 1938 for the purposes of Rule 2046, R. II. 'this decision was communicated to Verma by a memorandum Ex. 3 dated February 27, 1967. An appeal before the Minister for Railways preferred by him did not succeed. He thereafter preferred a petition under Article 226 of the Constitution of India challenging the validity of the notice Ex. 1 and the order Ex. 3 relating to his retirement. 'the grounds, inter alia were that he was being discriminated against and that the option which he had exercised for the "cpc Scale" could not furnish the administration the foundation for the fiction of treating his service to commence with effect from April 1, 1950 when in point of fact he had commenced it way back in 1929. The Union of India and other respondents filed an answer to the petition reiterating that his option for the "cpc Scale" meant that he had come under the purr view of R. II on April 1, 1950 and, therefore, his retirement at the age of 58 was legal. The learned single Judge held that the Railway Administration remained under the mistaken impression that Verma was a post-April 1, 1938 employee and that his tenure of service was governed by Rule 2046 (2) (b) instead of 2046 (2) (a ). R. II and this basic error of law was responsible for the position adopted by (the Railway Administration. In. result the learned single Judge set aside the order Ex. 1 dated January 3,1967 and the Railway Administration was directed to decide the petitioner's case afresh according to Rule 2046 (2) (a ). R. II and to pass a proper order within a period of six months with due regard to the fact that he has retired since.

(3.) LEARNED counsel for the Railway urged that in the background of the agreement between the Government of. India and the Government of Rajasthan dated February 2, 1950, the Press Communique of March 24, 1950, the Federal Financial Integration dated April 1, 1950 and the Annexures O, Q and C filed in the case, Verma could not get the benefit of having entered the Government service prior to April 1, 1938. He placed reliance on Binda Lal v. Union of India 1972 Lab. I. C. 1462 (All.) His further submission was that Verma had no legal right and therefore, he was not entitled to file a petition for a writ of mandamus. He placed reliance on Kailash Chandra v. Union of India 1961-II L. L. J. 639, Railway Board v. A. Pitchumani 1972-I L. L. J. 112, S. N. Pallegal v. State of Mysore 1973-I L. L. J. 114 and State of Assam v. Premadhar Baruah and invited our attention to certain passages from the Halsbury's Laws of England, Volume II. His last argument was that Verma could not be in Government service prior to 1-4-1938 as the term "government" has been defined in Section 3 (60) and Section 3 (23) of the General Clauses Act.