Naba Kumar De vs Union of India and Others

R.N. Pyne, J.—On 15th April, 1936, the petitioner was appointed as a fitter helper (a class IV railway servant) in the erstwhile Bengal Nagpur Railway. It is stated that the date of birth of the petitioner is 1st November, 1915. According to the petitioner his said appointment was in and/or against permanent vacancy in the said Railway which is, however, disputed by the respondents. On 29th October, 1938, the petitioner was promoted to the post of a Clerk as a ministerial railway servant in Class III of Bengal Nagpur Railway. Thereafter on the 1st September, 1940, the petitioner was confirmed in the said post. From 1st October, 1944, the Bengal Nagpur Railway became a Government Railway and it is now known as South Eastern Railway, which is hereinafter referred to as "the Railway Administration". On or about 16th March, 1966, the petitioner was promoted to the post of Head Clerk (Accounts) District Engineer (Regirdering), Kharagpur, South Eastern Railway. It is alleged by the petitioner that as the Railway Administration was contending that the petitioner would retire on his attaining the age of 58 years i.e., with effect from 1st November, 1973, he made several representations in writing on 15th June, 1972, 18th December, 1972, 16th September, 1973 and 30th September, 1973, to the Chief Personnel Officer, South Eastern Railway and the Chairman, Railway Board to the effect that as the petitioner had fulfilled the conditions of clause (b) of Rule 2046 of Indian Railway Establishment Code, Vol. II he would continue in service until 60 years of age. According to the petitioner inspite of his said representations one U.S. Raju, Dist. Engineer (Regirdering) Mahanadi, Kharagpur by a notice or order dated 24th September, 1973, informed the petitioner that his date of retirement is 1st November, 1973, and he would be booked off from duty on and from that date. It is to be noted that the petitioner attained the age of 58 years on 1st November, 1973. The petitioner by his letter dated 27th September, 1973, refused the statements contained in the said letter of 24th September, 1973, and finally after serving of a notice of demand for justice dated 30th September, 1973, through his Solicitor upon the respondents the petitioner on the 22.10.1973, made this application under Article 226 of the Constitution challenging, inter alia, the said notice or order dated 24th September, 1973, and obtained a Rule Nisi. After the matter became ready it was heard by A.K. Sen J. It appears that relying on a decision of the Supreme Court in the case of (4) Paresh Chandra Nandi Vs. Controller of Stores, N.F. Railway, Pandu and Others, A.K. Sen J. was of the view that the petitioner not being confirmed in a permanent post on the appointed date, i.e. 31st March, 1938, did not acquire any lien of a permanent post on the appointed date, and as such he is not eligible to continue in service until 60 years of age in terms of Rule 2046(b) of the Indian Railway Establishment Code, Volume II. But as A.K. Janah J. took a different view on the same point in the case of (1) Hirendra Nath Sengupta v. Union of India (C.R. 3047(W) of 1973) with which A.K. Sen J. was unable to agree, his Lordship by a judgment delivered and order passed on 18th December, 1973, referred the matter to the Division Bench. That is how this has come before us. The short point which falls for determination in this application is whether the petitioner is entitled to the benefit of Rule 2046(b) of the Railway establishment Code Volume II. It is therefore necessary to refer to the said Rule. When the said notice or order dated 24th September, 1973, was served on the petitioner Rule 2046(a) and (b) read as follows : --

Rule 2046 (FR56)-RII

(a) Except as otherwise provided in this rule, every Railway servant shall retire on the day he attains the age of fifty eight years.

(b) A Ministerial railway servant who entered Government service on or before the 31st March, 1938, and held on that date : --

(i) a lien or a suspended lien on a permanent post, or

(ii) a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and continued to hold the same without interruption until he was confirmed in that post shall be retained in service till the day he attains age of sixty years.

Note: -- For the purpose of this clause the expression ''Government service'' includes service rendered in a former provincial government and in ex-company and ex-State Railways, if the rules of the Company or the State had a provision similar to Clauses (b) above."

The only point urged on behalf of the petitioner in this application is that the petitioner being a ministerial railway servant who entered Government service before 31st March, 1938, and having held a lien on a permanent post on that day, has fulfilled the conditions of Rule 2046(b)(i) and therefore, he is entitled to continue in service until he attains the age of 60 years i.e. upto 1st November, 1975. In order to get the benefit of Rule 2046(b) (i) two conditions must be fulfilled by a railway servant. Firstly, he must be a ministerial railway servant who has entered Government service on or before 31st March, 1938, and secondly, he must on that date i.e. 31st March, 1938, hold a lien or a suspended lien on a permanent post. "Lien" has been defined under Rule 2003(14) of the Indian Railway Establishment Code, Volume II as "the title of a railway servant to hold sub-stantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively." Rule 2003(14) of the Indian Railway Establishment Code Vol. II came up for consideration before the Supreme Court in the case of Paresh Chandra Nandi Vs. Controller of Stores, N.F. Railway, Pandu and Others, . Supreme Court interpreted the said Rule 2003(14) in the following manner: --

''Lien'', as defined in Cl. 14 means the title of a railway employee to hold substantively a permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect from August 15, 1947 (when all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent.

Therefore in order to be eligible to a ''lien'' there must be a permanent appointment against a permanent vacancy or post. In other words only when a person''s appointment against permanent vacancy or post is confirmed and made permanent he is entitled to a lien on that post. This view also finds support in the Division Bench judgment delivered by my Lord Sabyasachi Mukharji J. in the case of (3) Manindra Chandra Sen Vs. Union of India (UOI) and Others, .

In the light of the above observation of the Supreme Court regarding Clause 14 of Rule 2003 it is to be seen if the petitioner has fulfilled the conditions of Rule 2046(b) (i). There is no dispute that the petitioner is a ministerial railway servant and he entered Government service before 31st March, 1938. The point in dispute between the parties is whether the petitioner held a lien on a permanent post on the relevant date, i.e. 31st March, 1938, as alleged by him. In order to do so the petitioner must establish that he was appointed permanently against a permanent vacancy on the 15th April 1936. But he does not say if he was appointed permanently on that date. In the affidavit-in-opposition it is, however, stated that in Class IV category there is neither any entry in the service record nor any record to show that the petitioner was appointed against a permanent post or vacancy. Even assuming that the petitioner was appointed against a permanent post or vacancy on the 15th April, 1936, the question still remains as to whether the petitioner was permanently appointed before 31st March, 1938. In this case the petitioner has failed to prove that before 31st March, 1938 he was permanently appointed in a permanent post. It is the common case that the petitioner was confirmed on the 1st September, 1940, while he was holding the post of Class III employee. Relying on a decision of Supreme Court reported in H. Lyngdoh and Others Vs. Cromlyn Lyngdoh, Judge, Counsel for the respondents contended that the petitioner became permanent for the first time when his service was confirmed, that is, on 1st September, 1940. In the said case Supreme Court held that to become permanent one must be confirmed (vide paragraph 4 at page 1111 of the said report). This principle equally applies to the instant case. We, therefore, hold that upon his confirmation in service on 1st September, 1940, the petitioner''s appointment was for the first time made permanent.

It was however contended on behalf of the petitioner that from the fact that the petitioner was appointed on the 15th April, 1936, and his service was confirmed on the 1st September, 1940, and as he continued in the railway service throughout the said period with-102 out any break a factual or a legal inference should be drawn to the effect that his appointment on 15th April, 1936, was a permanent appointment. We are unable to accept this contention. Whether the petitioner''s appointment on the 15th April, 1936, is a permanent appointment or not that is a question of fact which it is for the petitioner to prove. As stated hereinbefore the petitioner has failed to do so. It has however been urged on behalf of the respondents that an appointment against a permanent vacancy will not make it a permanent appointment but there must be an order for a permanent appointment Reliance has been placed on the case of (5) State of Nagaland v. G. Vasantha, reported in AIR 1970 S.C. 537. According to us the principle laid down in the said Supreme Court case also applies to this case.

The petitioner therefore in our view has failed to established that he was appointed permanently before 31st March, 1938. He for the first time be came permanent on the 1st September, 1940 when he was confirmed. In the aforesaid view of the matter we hold that the petitioner did not hold a lien on a permanent post on 31st March, 1938 and, therefore, the petitioner does not fulfil the second condition of Rule 2046(b) (i) as stated hereinbefore and as such he is not entitled to the benefit of Rule 2046(b) of the Indian Railway Establishment Code, Vol. II.

Relying on the two decisions of A.K. Janah, namely, (6) Sushil Kumar Roy Choudhury v. Union of India (C.R. No. 2019(W) of 1971) and Hirendra Nath Sengupta v. Union of India (C.R. 3047(W) of 1972), it was argued by the Counsel for the petitioner that as the petitioner was appointed on 15th November 1936 against a permanent vacancy and he continued there without any break until he was confirmed (which in the instant case was on the 1st September, 1940), he became entitled to a lien from the date of his initial appointment, i.e. 15th April 1936. Therefore the petitioner has fulfilled the conditions of Rule 2046(b) (i) and his age of superannuation should be 60 years and not 58 years as contended by the Railway Administration. In the case of Sushil Kumar Roy Choudhury v. Union of India, the petitioner joined railway service as a Class IV staff on 16th ''November, 1933. He was promoted to the ministerial post on 22nd May, 1937, and was eventually confirmed on 1st April, 1939. During all these periods the petitioner worked without any break in service. On these facts relying on a decision of the Supreme Court in the case of (7) Union of India v. R.V. Sadasive Murthy 1969 U.J. S.C. 490 the learned Judge held that :--

In the present case the petitioner has a lien on a permanent post since he was substantively appointed to a ministerial post on 22nd May 1937. In my view therefore the petitioner fulfils the requirement of Rule 2046(b) (i) of the Indian Railway Establishment Code Vol. II.

A.K. Janah J. has followed this decision in his later decision in the case of Hirendranath Sengupta v. Union of India.

In Union of India v. R.V. Sadasive Murthy, Supreme Court was considering the point that if a person was holding lien on a permanent post in a department of the Government then whether upon transfer of that person in the Railway Division he was entitled to the protection of Rule 2046(b) of Indian Railways Fundamental Rules. In that case it was admitted and found that the employee was confirmed long before 31st March, 1938 and as such he held a lien on a permanent post on the relevant date (i.e. 31.3.1938) though the post itself was not in the Railways but in the Education Department when both were under the same administrative control of the Government of Mysore. On these facts Supreme Court came to the conclusion that though the respondent prior to March 31, 1938 was an employee in an Indian State and held a lien on a permanent post in a department other than Railways still he could be entitled to the protection under Rule 2046(b) of the Indian Railways Fundamental Rules.

In that case Supreme Court however made an observation to the following effect:

The respondent though recruited on January 27, 1938 to the Railway Service in the accounts department was confirmed with effect from June 1, 1939. But on that account also he is not disentitled to the benefit of r. 2046 (2) (b).

It appears that A.R. Janah J. on the basis of this observation of the Supreme Court came to the conclusion that a person could be appointed substantively against a permanent vacancy before his appointment is confirmed and made permanent and therefore is entitled to a lien on the said post on and from the date of his initial appointment. We do not think any such conclusion follows from the said observation of the Supreme Court. It appears to us that in the background of the fact that case what the Supreme Court by the said observation meant was that if a person prior to March 31, 1938 was entitled to a lien on a permanent post in a different Government department then the fact of his subsequently being recruited in the Railway service on January 27, 1938 and of his being confirmed with effect from June 1, 1939 would not disentitle him from the benefit of Rule 2046(b). But what is the actual decision of the Supreme Court in that case will appear from its following observation:--

It is true that the respondent was not on March 31, 1938 a permanent employee of the Mysore Railways but there is no reason to think that an employee of an Indian State prior to March 31, 1938 and holding a lien on a permanent post or a permanent post in provisional substantive capacity in a department other than Railways is not entitled to the protection of rule 2046(b) of Indian Railways Fundamental Rules.

It appears that the said decision of the Supreme Court in Paresh Chandra v. Controller of Stores was not placed before A.K. Janah J.

We accordingly hold that as the petitioner has failed to satisfy that he held a lien on a permanent post on the appointed date i.e. March 31, 1938 he is not entitled to the benefit of Rule 2046(b) (i). The petitioner, therefore is not entitled to be retained in service until he attains the age of 60 years. In the aforesaid view of the matter tin''s application fails and is accordingly dismissed. Rule Nisi is discharged and interim order, if any, will stand vacated on and from April 12, 1974. But if the petitioner is occupying any railway or Government quarters, he should not be asked to vacate the same till the 31st of May, 1974. In the facts and circumstances of this case we however make no order as to costs.

Sabyasachi Mukharji, J.

I agree.