KRISHAN DAYAL Vs. GENERAL MANAGER NORTHERN RAILWAY BARODA HOUSE NEW DELHI
LAWS(P&H)-1954-6-2
HIGH COURT OF PUNJAB AND HARYANA
Decided on June 17,1954

KRISHAN DAYAL Appellant
VERSUS
GENERAL MANAGER, NORTHERN RAILWAY, BARODA HOUSE, NEW DELHI Respondents

JUDGEMENT

Khosla, J. - (1.) This is a petition by seventy-one persons under Article 226 of the Constitution. The petitioners are all employees of the Northern Railway. Some of them are under 55 years of age and the rest are between the ages of 55 and GO. They belong to what is called the 'ministerial service" and are aggrieved by a notice served upon them whereby they are to be retired before attaining the age of 60. Those who were under 55 were given the option of taking leave preparatory to retirement up Co a maximum of twenty-eight months. They were informed that this leave would be grunted to them provided it was due even if the leave period took them beyond the age of 55 years. Those who were over the age of 55 were served with a similar notice and they were informed that they would be allowed to avail of leave preparatory to retirement up to a maximum Of twenty-eight months provided it was due and admissible and provided the leave did not take them beyond the age of 60 years. The petitioners' case is that being members of the ministerial service they are entitled to be retained in service until the age of 60. Hence they pray for a writ of mandamus or other direction restraining the opposite party who in this case is the General Manager, Northern Railway, from giving effect to the decision which, would have the effect of making the petitioners retire before attaining the age of GO.
(2.) On behalf of the petitioners reliance is placed on Rule 2046 (2) (a) of the Indian Railway Establishment Code, Vol. II, the relevant portion of which is m the following terms: "2046 (2) (a). A ministerial servant, who is not governed by Sub-clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the competent authority. (b) A ministerial servant- (i) who has entered Government service on or after 1-4-1938, or (ii) who being in Government service on 31-3- 1938 did not hold a lien or a suspended lien on a permanent post on that date, shall ordinarily be required to retire at the age of 55 years. He must not be retained after that age except on public grounds which must be re corded in writing, and with the sanction of the competent authority and he must not be retain ed after the age of 60 years except in very special circumstances. * * *".
(3.) The petitioners all entered service before 1-4- 1938. Therefore, their case is covered by Sub-rule (2) (a) quoted above, Mr. Chatterjee who argued the case on behalf of the petitioners contended that under this rule the Railway Department had no option but to retain ministerial servants until they attained the age of 60 unless they were found inefficient. He contended that the meaning of the phrase "should ordinarily be retained in service, If he continues efficient" means that a ministerial servant can be retired at the age of 55 only if there is a finding that he is inefficient. The onus there fore. lies on the employer. and if there is no specific finding of inefficiency the ministerial servant must be allowed to continue in service until the age of 60, From these premises it was contended that the petitioners were being "removed" from service when they were called upon to proceed on leave preparatory to retirement and that this removal could not he effected without having recourse to the provisions of Article 311 of the Constitution.;


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