Bholanath Goswami vs Divisional Personnel Officer, S.E. Railway

Anil Kumar Sen, J.—Two orders--one passed by the Divisional Personnel Officer, Adra, dated October 16, 1965, directing the Petitioner''s retirement with effect from January 14, 1966, and the other passed by the Chief Personnel Officer, South Eastern Railway, communicated in memo. dated March 4, 1966, rejecting the Petitioner''s representation for alteration of his recorded date of birth, are the subject-matter of challenge in this Rule, obtained on a writ petition. The facts may shortly be set out as follows:

On May 5, 1930, the Petitioner was appointed a material cooley by the then Bengal Nagpur Railway Company. He obtained various promotions--while under the company administration he was first promoted as store issuer and then as a clerk. At the time the said company was taken over by the Government in June 1946, the Petitioner was a confirmed clerk. The Petitioner opted service under the Government of India, the Respondent Railway administration, on and from October 1. 1946, after such taking over of the company by the Government.

At all material times both under the company administration and the Government administration the Petitioner''s date of birth was uniformly recorded as January 15, 1911. To such entry the Petitioner had not raised any objection all these years save and except the one submitted on December 16, 1965, and referred to hereinafter. On the date of birth as recorded in the Service Records the Petitioner was to attain the age of 55 years on January 14, 1966, and as such, the Divisional Personnel Officer directed his retirement by an order dated October 16, 1965, which is set out as hereunder:

Since you are governed by Ex B.N. Railway Company''s Rules, you will retire from service on completion of 55 years with effect from 14.1.66, A.N. your date of birth being 15.1.1911.

On December 16, 1965, i.e. nearly two months after the issue of the aforesaid order the Petitioner made a representation to the General Manager raising a dispute as to the correctness of the recorded date of birth and claimed alteration thereof on the plea that he was actually born on December 25, 1912, and not January 15, 1911. To support this claim the Petitioner submitted a certificate from a Headmaster acknowledging the fact that in the admission register of the School the Petitioner''s date of birth was recorded as December 25, 1912. Strangely, however, father''s name as set out in this certificate materially differs from the father''s name of the Petitioner as in the Service Records including the Petitioner''s declarations made to the Railway administration. This representation though addressed to the General Manager was disposed of by the Chief Personnel Officer who refused the prayer for alteration as made. Such order of the Chief Personnel Officer was communicated to the Petitioner by memo. dated March 4, 1966. These two orders, one of retirement and the other refusing the prayer for alteration of the recorded date of birth, are the subject-matter of challenge in this writ petition. According to the Petitioner, 55 years is not the age of superannuation for him and, hence, the order dated October 16, 1965, is not in accordance with law. The other order is being challenged on the ground that the Chief Personnel Officer had not the jurisdiction or authority to dispose of his representation raising a dispute as to the correctness of age recorded.

The Rule is being contested by the Respondents who have filed two affidavits in support of their defence that both the orders were lawfully made.

Mr. Das, appearing in support of this Rule, has raised two points. In the first place, he has contended that the Chief Personnel Officer was not the competent authority to dispose of the dispute raised by the Petitioner in respect of the recorded date of birth. According to him, the General Manager alone was competent to decide the dispute raised by the Petitioner. To support this contention strong reliance is placed by Mr. Das on the provisions of Rule 145(3) of the Railway Establishment Code, vol. 1. The second point raised by Mr. Das is to the effect that even on the recorded date of birth, when the age of superannuation had already been raised to 58 years, the Respondents could not have lawfully directed the Petitioner''s retirement on attaining the age of 55 years on a mistaken idea that the Petitioner being an ex-company employee is not entitled to the benefit of such revised age of superannuation. Appearing on behalf of the Respondents Mr. Bose has contested both these points. So far as the first point is concerned, according to Mr. Bose, on appropriate delegation by the General Manager the Chief Personnel Officer was competent to dispose of the Petitioner''s representation for alteration of the date of birth under Rule 145(3) of the Railway Establishment Code, vol. 1. So far as the second point is concerned, according to Mr. Bose, the Petitioner being an ex-company employee is not entitled to the benefit of the revised age of superannuation so that he was lawfully made to go on retirement on attaining the age of 55 years on the original conditions of his service. Alternatively, it is contended by Mr. Bose that, even if the Petitioner was entitled to the extended period of service on the revision of the age of superannuation, still that being the subject to the specific reservation of powers of compulsory retirement on attaining the age of 55 years, the order as passed can well be supported as one made in exercise of such powers.

In considering the first point raised by Mr. Das it would be necessary to refer to Rule 145(3) which is set out hereunder:

(3) The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date ordinarily be permitted subsequently. It shall, however, be open to the President in the case of a gazetted Railway servant and a General Manager in case of non-gazetted Railway servant to cause the date of birth to be altered.

(i) Where in his opinion it has been falsely stated by the Railway servant to obtain an advantage otherwise inadmissible, provided that such alteration shall not result the Railway servant being retained in service longer than if the alteration had not been made, or

(ii) Where in case of illiterate staff, the General Manager is satisfied that a clerical error has occurred, or

(iii) Where a satisfactory explanation (which should ordinarily be submitted within a reasonable time after joining service) of the circumstances in which the wrong date came to be entered is furnished by the Railway servant concerned together with the statement of any previous attempts made to have the records amended.

The Petitioner is a non-gazetted Railway servant but is not an illiterate person, and the case for alteration as made by the Petitioner must fall, if at all, within the scope of Clause (iii) as above. According to Mr. Das, when the Rule specifically authorises the General Manager alone to make such alteration, the Petitioner''s representation could not have been validly disposed of by the Chief Personnel Officer the matter being assigned to him. Reliance is placed by Mr. Das on a decision of this Court in the case of Bikramaditya Lal v. General Manager, S.E. Railway (1960) C.L.J. 170. To meet this contention Mr. Bose has drawn my attention to a circular issued by the Ministry of Railways, Railway Board, dated November 18, 1964, referred to in para. 18 of the supplementary affidavit filed by the Respondents as also the consequent delegation made by the General Manager on January 14, 1965. The circular of the Ministry of Railways, Railway Board, reads as follows:

Sub: Alteration of recorded date of birth of non-gazetted Railway servants.

Delegation of powers.

Reference correspondence resting with Board''s letter No. E(NG) 62 BRI/6, dated 15.2.1963, on the subject noted above. The Board have considered the matter de novo and have now decided that the General Managers may re-delegate their powers under Rule 145(3), R.I., to their Chief Personnel Officers.

Necessary correction to the aforesaid Rule will issue in due Course.

The above has the sanction of the President.

A copy of this letter is also being endorsed to the F.A. and C.A.O. separately.

There is no dispute that on the authority of the aforesaid circular the General Manager delegated his power under Rule 145(3) in favour of the Chief Personnel Officer on January 14, 1965. My attention has been drawn by Mr. Bose to the revised schedule of powers as incorporated in the Establishment serial No. 410/1966 dated December 1, 1966, which at entry No. 15 part B has incorporated the aforesaid delegation. Faced with this circular and the consequent delegation thereunder Mr. Das has contested that Rule 145(3) being a Rule framed under Article 309 of the Constitution by the President, it could be altered only by an amendment of the Rule itself and not by an administrative circular. I am unable to accept this contention of Mr. Das. It would appear from the circular relied on by Mr. Bose that the same had the previous sanction of the President. Therefore, for all intents and purposes this circular of the Railway Board must be read by itself to be an amendment of the Rule framed under Article 309 of the Constitution, because it cannot for a moment be disputed that the President who had framed the Rule had the authority to amend it. Great emphasis has been laid by Mr. Das on the recital in the circular that the amendment of the Rule is to follow in contending that the circular itself is not the amendment. In my view, that recital only indicates that the formal amendment is to follow, but when the circular modified the Rule and, as such, was issued only with the sanction of the competent rule-making authority, viz. the President, it must be considered in its substance as an amendment of the Rule itself. That apart the Railway Board itself is authorised by Rule 157 of the Code to make rules and such rules need not unlike those framed under Rule 158 thereof be not inconsistent with the Rule made by the President. Therefore, the Board in my view could itself make a rule like the one in the circular having the effect of amendment of Rule 145(3). The decision of this Court relied on by Mr. Das is clearly distinguishable as at that point of time there was no valid delegation in favour of the Chief Personnel Officer as in the present case. This being the position I must uphold the contention of Mr. Bose that on the authority of delegation made by the General Manager in terms of the circular as aforesaid, the Chief Personnel Officer was competent enough to deal with and dispose of the Petitioner''s claim for alteration. The first point raised by Mr. Das must, therefore, fail and is overruled.

So far as the second point raised by Mr. Das is concerned, in my opinion, there is ample substance therein. The impugned order dated October 16, 1965, is explicit enough to indicate that the Petitioner was being directed to go on retirement on his attaining the age of 55 years only, because that is considered to be his age of superannuation under the ex-B.N. Railway Company Rules which is taken to be still applicable to him. It is no doubt true that under the company rules the age of superannuation was 55 years. But it is also not in dispute that on December, 6, 1962, the Ministry of Railways issued a circular under the sanction of the President and, in my opinion and for the same reasons as given hereinbefore, the same had the effect of amending Rule 2046 of the Railway Establishment Code, vol. 2. This circular must be considered to have created every right in favour of all the Railway employees covered by it to claim the extended period of service on raising the age of superannuation subject to reservations made therein. See Railway Board Vs. A. Pitchumani, . If the Petitioner is entitled to the benefit of this revision, then in my opinion the impugned order is clearly violative of the Petitioner''s right thereunder. In the supplementary affidavit filed by the Respondents it is, however, claimed that the Petitioner being an ex-company employee, though he opted for the Government prescribed scales of pay, yet he not having opted for the leave rules he would be governed by the company rules in respect of determination of his age of superannuation. To support this claim reliance is placed on two letters of the Railway Board dated December 18, 1960, and April 26, 1963. It is no doubt true that these letters amply support this stand taken by the Respondents. But, in my view, the distinction sought to be introduced by these two letters in order to deny the benefit of the circular dated December 5, 1962, to the ex-company employees of the Railway administration is discriminatory. Once the Petitioner had been absorbed as a Railway servant in the employment of the Union of India there can be no reasonable ground still to treat him as the employee of the company so as to deprive him of the benefit which is otherwise admissible to other employees like him under the administration who were not initially appointed by the company. Such discrimination must be held to be hostile and violative of Article 14 on the principle laid down by the Supreme Court in the case of Railway Board v. A Pituchumani Supra wherein the Supreme Court struck down a comparable provision introduced on an amendment in the note to the aforesaid Rule 2046.

As a matter of fact, in a still later decision in the case of Navntilal v. Union of India AIR 1972 S.C. 1167 the Supreme Court struck down the very letter of the Railway Board dated April 26, 1963, relied on by Mr. Bose in support of his contention that the Petitioner could still be made to go on retirement on the rules of the company notwithstanding the fact that he had been absorbed by the Government.

So far as the alternative contention of Mr. Bose is concerned, reliance is placed on para. 6 of the circular of the Ministry of Railways dated December 5, 1962. This provision no doubt authorizes the appointing authority to put a Railway servant to premature retirement on attaining the age of 55 years on three months'' notice. The impugned order dated October 16, 1965, on its face cannot be read as an order made under this provision. Though in the first affidavit-in-opposition some inconsistent defense was sought to be taken to the effect that

the Petitioner had been retired by the appropriate competent authority by giving three months'' notice on him as his retention in service beyond 55 years of age was not considered necessary in the interest of administration.

It is quite clear from the averments made in the supplementary affidavit that the impugned order was passed solely on consideration of the fact that the Petitioner''s right to continue in service came to an end on attaining the age of 55 years under the rules of the company still considered to be applicable to him. Even in Para. 13 of the original affidavit such was also the case made by the Respondents. Therefore, on the pleading and particularly in view of express terms of the impugned order I have no manner of doubt that the Divisional Personnel Officer in passing the impugned order was not really exercising any power under Para. 6 as aforesaid. It is also not known whether he was the competent authority or not. Mr. Bose further suggested that even if the order had not been passed in exercise of powers under para. 6, if the order can be supported thereunder, this Court should uphold the order and should not strike it down. I am, however, unable to accept such a suggestion made by Mr. Bose. Though para. 6, as it then stood, did not explicitly prescribe any objective test but nevertheless it must be held that when para. 6 authorised the appointing authority to require a Railway servant to retire prematurely, it provided by necessary implication that such an order could be passed not only on positive exercise of discretion thereunder but also that exercise of such powers must be based on some relevant grounds therefore. Any other construction would render the clause unconstitutional because in that event the clause would confer arbitrary powers. There is no sanction for exercise of arbitrary powers under our constitutional set up foundation where of is a rule of law. That being the position, the impugned order not having been made in exercise of such powers or on consideration of any material relevance thereto cannot be supported only because of the fact that the competent authority could have passed a similar order in exercise of such powers. On the conclusion, as such, I must accept the second contention of Mr. Das and hold that the impugned order dated October 16, 1965, passed by the Divisional Personnel Officer is not in accordance with law.

For reasons aforesaid this application succeeds in part and the Rule is made absolute in part.

The impugned order dated October 16, 1965, is set aside.

Let a writ in the nature of mandamus do issue directing the Respondents to recall the impugned order as aforesaid directing the Petitioner''s retirement on completion of 55 years under ex-B.N. Railway Company''s rules and further directing them not to give effect thereof.

There will be no order as to costs.