H.N.SETH, J. - (1.) PETITIONER N.M. Singh whose date of birth was September 1, 1923 entered the railway service on November 11, 1947. In due course he came; to be appointed in a substantive capacity as Inspector of works which was a post in class III service. Subse­quently, in the year 1961 he was, after departmental examination, given a chance 10 officiate on the gazetted post of Assistant Engineer Class II. On February 12, 1974 he was appointed to officiate as senior scale officer of the civil engineering department, North Eastern Rail­way, a post in class I service. At no time the petitioner was con­firmed either in a class II or class I post and throughout his sub­stantive appointment continued to be on a class III post. On May.5, 1976 the president of India, in exercise of powers under rule 2046 (h)(i) of the Indian Railway Establishment Code, Vol. II, gave three months notice to the petitioner requiring him to retire from service prematurely. Being aggrieved by the aforesaid order of the presi­dent, the petitioner has approached this Court for relief under Art. 226 of the Constitution.
(2.) LEARNED counsel for the petitioner impugned the order dated May 5, 1976 passed by the president compulsorily retiring the petitioner from service, on following three grounds: - (1) As the petitioner held a substantive appointment on a class III service post, his case was covered by rule 2046 (h) (ii) and not rule 2046 (h) (i) and such the power to compulsorily re­tire him from service could be exercised only after he had at­tained the age of 55 years i.e. after September, 1978. (2) The power under rule 2046 (h) of the Railway Establish­ment Code, Vol. II could be exercised only by petitioner's ap­pointing authority and not by the President of India; and (3) There was absolutely no material before the president on the basis of which he could have come to the conclusion that it was in public interest to retire the petitioner from service. Relevant portion of rule 2046 contained in the Indian Railway Establishment Code, Vol. II runs thus: - " (h) Notwithstanding anything contained in this rule the appointing authority shall if it is of the opinion that it is in pub­lic interest to do so have the absolute right to retire any rail­way servant giving him notice of not less than three months in writing or three month pay and allowance in lieu of such notice. (i) if he is in class I or class II service or post and had enter­ed Government service before attaining -the age of 35 years, after he has attained the age of 50 years. (ii) In any other case, after he has attained the age of 55 years.
(3.) A perusal of the aforesaid rule enables the appointing autho­rity to compulsorily retire a railway servant in class I or class II service after he has attained the age of 50 years, but in respect of persons in any cither class of service or post the power for such compulsory retirement can, as laid down in sub-clause (ii) of Clause (h) of rule 2046, be exercised only after the Railway servant has attained the age of 55 years. According to the petitioner he held his substantive appointment in class III service and he merely been ask­ed to officiate in class II and class I services. He was a railway ser­vant in class III service and as such his case was covered by clause (h) (ii) of rule 2046 and he could not be retired from service before attaining the age of 55 years.;