D.N. Kamakshian Setty vs The Financial Advisor and Chief Accounts Officer, Southern Railway

T. Ramaprasada Rao, J.—The petitioner, who is admittedly a ministerial railway servant and who entered such service before 31st March,

1938, complains that he was prematurely retired from service by an order made to that effect by the respondents and that, therefore, the said

order compulsorily retiring him from service, dated 1st May, 1970, has to be quashed. The order impugned reads that the Financial Adviser and

Chief Accounts Officer, Southern Railway, is of the opinion that it is in public interest that the petitioner should be directed to retire from service

with effect from the forenoon of 6th August, 1970. This order apparently was issued in exercise of powers conferred upon the competent

authorities under Clause (h) of Rule 2046 of the Indian Railway Establishment Code, Volume II. The petitioner''s case is that he had a clean record

of service and that there was no occasion for any complaint of misconduct or insubordination by the Administration against him at any time prior to

the passing of the impugned order, and there is no justifiable ground, much less the power in the first respondent, to issue the order questioned

herein. The learned Counsel for the petitioner says that no reasons are given in the order itself, and, therefore, such a non-speaking order ought not

to be sustained. He also states before me that the words ''railway servant'' appearing in Rule 2046 (h) cannot proprio vigore refer to a ministerial

railway servant, to which category the petitioner belongs. By the order being non-speaking, it savours of arbitrariness and has to be set aside as

one passed without any basis or evidence, or compendiously, as one which is perverse.

Rule 2046 of the Indian Railway Establishment Code, Volume II, was the subject matter of a catena of decisions of our High Court and the

Supreme Court, and it is unnecessary for me to re-state the law excepting to refer to the salient features of the case-law which has developed

earlier. A ministerial railway servant who entered Government service, on or before 31st March, 1938 and who held on that date a lien or a

suspended lien on a permanent post is entitled to be retained in service till he attains the age of 60 years. The petitioner is a ministerial railway

servant who was so appointed and who had a lien on a permanent post. But the rule contains a non obstante clause which is reflected in Rule

2046(h). This sub-rule reads as follows:

Notwithstanding anything contained in this rule, the appointing authority shall, if it is of the opinion that it is in the public interest tot do so, have the

absolute right to retire any railway servant on attainment of the age of 55 years, or thereafter by giving him notice of not less than three months in

writing.

What is sought to be made out by the learned Counsel for the petitioner, is that this sub-rule does not expressly refer to a ministerial railway

servant. This argument is without any substance. The words deployed are '' any railway servant'' and ''any'' is of a wide connotation, and certainly it

could in certain circumstances, refer to all railway servants. At any rate, in the instant case, it is all embracing in the context, and it takes into its fold

even a ministerial railway servant as well.

As regards the contention that the expression ''public interest'' referred to in the sub-rule is one which has to stand the test of objectivity and has

to be established by material, weighty or otherwise on record and it cannot be left entirely to the subjective satisfaction of the authorities

concerned, here again, I am unable to agree. Public interest is an expression which is incapable of being the subject matter of any definition or

explanation. It can be understood in a myriad number of ways, it has variegated shades of impact, depending upon the circumstances and facts of

each case. Thus understood, the expression ''public interest'' has to be interpreted according to the facts of each case. Learned Counsel for; the

respondents fairly gave inspection of the records brought to this Court on the issue of the rule nisi to the Counsel for the petitioner and such

records disclose that the petitioner was from time to time found to be inefficient and his confidential records do reflect ""such ability"" on the part of

the petitioner. As a matter of fact, in spite of several opportunities given, he could only improve but he was not in a position to entirely eradicate the

inefficiency presumably inhered in him. The result was that the Railway authorities, after having studied the progress annually made by the

petitioner, came to the conclusion that the petitioner was a ministerial railway servant who has to retire on the attainment of the age of 55 years and

that was in public interest. This is not a case in which there was absolutely no evidence or material before the railway authorities which prompted

them to set and issue the impugned order. This is not even a case in which it could be said that the conclusion arrived at by the authorities was in

any way perverse or manifestly unjust. In such circumstances, the only thing that is possible for the authorities to do, appears to be to see that there

should be some positive or cogent material before them, for them to act and weigh and conclude. If on an overall appreciation of the material, they

bona fide come to the conclusion that a particular railway servant has to be retired on the ground of superannuation within the meaning of Rule

2046(h) and if no extraneous or irrelevant material was taken into consideration by such tribunal, then it would be unreasonable to characterise

such a conclusion or an order resulting from such a decision as perverse or manifestly unjust or prompted by mala fides. This Court is not

exercising the jurisdiction of an appellate Court. To this effect is the decision of a Division Bench of our High Court in G. Savarinathan Vs. The

Director of Postal Services and Others, . There, Anantanarayanan, C.J. speaking for the Bench observed:

In the exercise of jurisdiction under Article 226 of the Constitution, it will not be the function of the High Court to canvass the adequacy of that

material or the extent to which it is credible, particularly where the right to retire is not being imposed in the form of a punishment but in the form of

an option given to the authority under the statutory rules.

I very respectfully adopt this reasoning. It is not the case of the petitioner that the order savours of malice or is a substitute for punishment. It

cannot be contended by the petitioner that the conclusion arrived at by the officers lacks bona fides; nor can it be urged by him that there was

absolutely no material for the officers to act. As already stated by me though this is a matter which has to be viewed subjectively by the concerned

officials, no objective test which has to be followed at all times and in all events can be laid down as of universal application. Vide the decision of

Kailasam, J., in Rama Rao (T.) Vs. Divisional Superintendent, Southern Railway and Another, . As was pointed out by the Supreme Court in The

Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, , in situations like the one confronting me, it should be clearly

established that circumstances did exist or that they were of such a nature that it was possible for anyone to form an opinion therefrom, and if such

an opinion has not been formed and purposely avoided, then only, interference by Courts is possible under Article 226. No such circumstances

exist in the instant case. The first respondent, in the exercise of his jurisdiction and on the material before him was satisfied that the petitioner had to

be retired at 55 years. He rightly applied the test and content of Rule 2046(h).

In these circumstances the rule nisi is discharged and the writ petition is dismissed; but there will be no order as to costs.