SANTKUMAR PAUL Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner was appointed on Feb. 16, 1938 as a permanent clerk in the office of the Principal Medical Officer, Jodhpur in the former State of Jodhpur. The services of the petitioner were transferred from the office of the Principal Medical Officer, jodhpur to the office of the Chief Engineer, Jodhpur Railway with effect from Feb. 28, 1939. It may be noted here that at the relevant time the Jodhpur Railway was under the Administrative control of the Government of the former State of Jodhpur, as the Jodhpur Railway was owned by the then Jodhpur State Government. After the Federal Financial Integration, the petitioner's services mete taken over by the Central Government and he continued to work as a clerk in the Northern Railway, where he gradually rose to the post of a Head Clerk. While the petitioner was working on the post of a Head Clerk in the office of the Divisional Superintendent, Northern Railway, Jodhpur, he was served with an order passed by the Divisional Personnel Officer dated Dec. 26, 1975 intimating him that he would retire from the Railway service with effect from Jan. 31, 1976. According to the petitioner, the date of his birth was Jan. 18, 1918.

(2.) The main contention raised on behalf of the petitioner in this writ petition is that the petitioner was employed in a permanent capacity prior to April 1, 1938 and as such he should have been retained in railway service until he attained the age of 60 years and that he could not have been retired on attaining the age of 58 years only. The petitioner made a representation in this respect to the Divisional Superintendent, Northern Railway, but the saint was rejected, which led to the filing of the present writ petition.

(3.) Mr. Bhansali appearing for the Railway Administration has not disputed the fact that the date of birth of the petitioner was Jan. 18, 1918. But the learned counsel for the Railway Administration has raised two contentions. In the first place, he has contended that the petitioner was not a permanent employee on or before March 31, 1938, but he vas temporarily appointed afresh in the Jodhpur Railway on Feb. 28, 1939 and was only confirmed with effect from Jan. 1, 1943. In the second place, it was argued by him that the services of that petitioner were not transferred from the Medical Department of the then Jodhpur State to the Jodhpur Railway, but he was a fresh employee appointed in the Jodhpur Railway and as such, his earlier service rendered in the Medical Department of the Jodhpur State could not be taken into consideration. It was, therefore, urged by Mr. Bhansali that the petitioner was rightly retired on Jan. 31, 1976 after attaining the age of 58 years. Mr. Mathur appearing for the petitioner has contested both these submissions and has argued that the petitioner was a permanent employee in the Medical Department of the then jodhpur State and his services were transferred to the jodhpur Railway, which was a Department of the Jodhpur State Administration at that time. Thus, according to the learned counsel, the petitioner was entitled to have the benefit of the provisions of clause (b) of rule 2046 of the Railway Establishment Code (hereinafter referred to as "the Code") wherein it has been provided that a ministerial Railway servant, who had entered Government service on or before March 31, 1938 and held on that date a lien or a suspended lien on a permanent post or held a permanent post in a provisional substantive capacity would be retained in the service of the Railway until be attained the age of 60 years.