LexGENERAL MANAGER, SOUTHERN RAILWAY, MADRAS versus T. M. PARAMASLVAM
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,, ' • 1085 GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS v. T. !vi. PARAMASlVAM April 8, 197 6 [A. N. RAY, C.J., !vi. H. BEG A1'D ]ASWANT SINGH, JJ.] Retire1nc11t on supera111111atio11--Conclitiv11s prescribed for pre-1938 entrant are nuuulatory to avail the benefit u11der-Hailway E.\tub!isl1111cnt Code Rule 2046 (b). Under llule 2046 (b) of Railway Establishment Code a Ministerial Rail- way servant was entitled tu the higher age of rctiren1ent at 60 years (i) if he had entered service on or before 3 lst l\1arch 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) with- out interruption until he was confirmed in that post. The respondent had been appl'inted a temporary clerk on 10th Decen1ber 1936 and was confirn1ed in thal post on 1st Septen1bcr 1938. When he w~1s rctircd on attaining the age of SK, ht: challenged the orders clain1ing benefit of Rule 2046(b). The High Court allowed the writ petition holding that since he was continncd on 1st Septen1ber 1938 he would be deemed to have been permanently appointed since 10th December 1936. Allowing the appeal by special leave lhc court, HELD: (l) Rule 2046\b) clearly lays down that not only the fir:;t but one of the 1wo alternatives of the second set o( conditions inust also be fulfilled hy the Government servant "'on that date'' i.e. 31st March 1938. The specified requirement of the rule could not be overriden by some deemed retrospective benefit alleged to accrue fron1 a confinnation subsequent to 31st March A B c D 1938. [1086D-EJ E State uf P1111jab v. Dhara111 Singh !1~68] 13) S.C.R. l; State vf l'•lagala1ul v. G. Vasa111f/(/ i\.l.R. 1970 SC 537: Director of Panchayar Raj & Anr. v. Babu Singh Gaar, [1972] (2) S.C.R. 400, (followed) [His Lo1·dship observed that the position was so clear, under the la\V, that it should not have been nc.:cssary at all for the parties to have had to come to this Court for a correct dceisionl CIVIL APPELLATE JURISDICTION : Civil Appeal No. 571 of 1972. Appeal by Special Leave from the Judgment and Order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70. P. P. Rav and G. Chandra for the Appellant. P. C. Blwnari and I. B. Dadachanji for the Respondent. 1he Judgment of the Court was delivered by BEG, J. The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Vecraswami, C.J., and Raghavan, J., had held. in a very short judgment, a notifi- cation of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative. The petitioner-respondent had been appointed a tell]porary Clerk _on 10th December, 1936, and had been confirmed in that post on 1st 19-725SCI/76 F G H 1086 SUPREME COURT REPORTS [1976] 3 s.c.R. A September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046 (b) of the Railway Establishment Code. B c D E F G H According to Rule 2046(b), a Ministerial Railway Servant was entiUed to the higher age of retirement provided; firstly, he had enter- ed Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e. on 31st March, 1938), either: (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a perma- nent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption nntil he was confirmed in that post". It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the bene- fit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to ap
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