Sabyasachi Mukharji, J. - (1.) The petitioner was appointed as a temporary Markman against a vacancy in place of one Panchu Mohan Mukherjee in the erstwhile Eastern Bengal Railway on 5th July, 1937. On 1st September, 1938, the petitioner was promoted as a general clerk, Grade 'B' and on 8th June, 1940 was confirmed as a Markman with effect from 1st June, 1940. On 15th December, 1970, there was a Gazette notification indicating that the petitioner would retire on 1st November, 1971. The petitioner has challenged this notification issued by the Personnel Department of the Eastern Railway. The said notification stated that the petitioner would complete 58 years of age on the 1st November, 1971, and accordingly would retire from the service. Thereafter the petitioner on 20th August, 1971, made a representation to the Divisional Superintendent, Sealdah, to recall the notice on the alleged ground of premature retirement. He was informed on the 4th September, 1971, that he would not be eligible to be retained beyond 58 years as he was confirmed with effect from 1st June, 1940. Being aggrieved by these orders, the petitioner moved this Court under Article 226 of the Constitution and obtained a Rule Nisi. The Rule Nisi ultimately came up for hearing before Chittatosh Mookerjee, J., and by a judgment delivered on 18th May, 1972, the learned Judge has discharged the Rule Nisi and dismissed the application. Being aggrieved by the said order of the learned Judge, the petitioner has preferred this appeal.
(2.) When the petitioner was asked to retire, the relevant Rule 2046 read as follows:-- "2046 (F. R. 56 (a) ) Expect 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 the age of sixty years. Note:-- For the purpose of this clause, the expression "Government Services" include service rendered in ex-company and ex-State Railways, and in former provincial Government. (c) A ministerial railway servant referred to in Clause (b) may be granted extension of service under very special circumstances to be recorded in writing, after he attains the age of sixty with the sanction of the appropriate authority. (d) A railway servant to whom Clause (a) applies may be granted extension of service after he attains the age of fifty eight years with the sanction of the appropriate authority if such extension is in the public interest and the grounds therefore are recorded in writing: Provided that no extension under this Clause shall be granted beyond the age of sixty years except in very special circumstances. (e) Railway Servants in Class IV service or post who prior to 1-12-62 were entitled to serve upto the age of sixty years including the new entrants to those categories shall continue to serve upto the age of sixty years. (f) ................................................ (g) ................................................ Note ............................................. (h) Notwithstanding anything contained is this Rule, the appointing authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any railway servant on attainment of the age of fifty-five years or thereafter by giving him notice of not less than three months in writing. (i) Any railway servant may be given notice of not less than three months in writing by the appointing authority to retire from service on attainment of the age of fifty-five years or thereafter: Provided that it shall be open to the appointing authority to withhold permission to a railway servant under suspension who seeks to retire under this clause. No. 1: "Appointing Authority" means the authority competent to make the first appointment to the grade which the Railway servant for the time being holds. No. 2: The three months notice referred to in Clause (h) or Clause (i) may be given before the Railway servant attains the age of fifty-five years, provided that the retirement takes place on his attaining that age."
(3.) On behalf of the petitioner it was first submitted that in terms of Rule 2046 (b) of the Railway Establishment Code the petitioner was entitled to be retained in service till the completion of 60 years of age and, therefore, the orders and directions issued for retirement of the petitioner on completion of 58 years of age were illegal and without jurisdiction. According to the petitioner, he was a ministerial servant under the Railway Administration and had held a lien or at least a suspended lien on a permanent post on 31st March, 1938. It appears from the judgment of Chittotosh Mookerjee, J., that the records were produced before the learned Judge wherein it appeared that the petitioner was posted in the vacancy of Panchu Mohan Mukherjee, a Markman, who was transferred. The appointment letter shows that the petitioner was appointed temporarily on the vacancy caused by the transfer of Panchu Mohan Mukherjee. Thereafter the petitioner was appointed as a Markman against the vacancy of the said Panchu Mohan Mukherjee and subsequently to the post of a Markman on the 1st June, 1940, Meanwhile he was temporarily promoted to the post of Clerk, 'B' Grade, in the scale of Rs. 30-2-40 with effect from 11th September, 1938. According to the respondents, the first appointment was a temporary appointment against the vacancy of Panchu Mohan Mukherjee who was transferred elsewhere to which he was confirmed only on 1st June, 1940. "Lien" has been defined under Rule 2003 (14) as "the title of a railway servant to hold substantively, 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". In the instant case, Panchu Mohan Mukherjee did not hold any substantive appointment as a Markman on the date he was transferred. The petitioner was not substantively appointed against a permanent post, Panchu Mohan Mukherjee did not substantively hold any permanent post on the 31st March, 1938. It appears from the records of Panchu Mohan Mukherjee that he was not appointed to a tenure post or to a permanent post outside the cadre on which he was borne. He was not previously appointed to any post to which another railway servant had been holding a lien. It is not case of lien not being suspended. Therefore, the provisions of Rule 2008 did not apply in the matter of appointment of the petitioner as a Markman by the letter, Annexure 'B' to the petition. As Panchu Mohan Mukherjee did not hold any lien, there could not be any question of suspension of lien in the manner laid down in Rule 2008. From the service records of Panchu Mohan Mukherjee and the petitioner it is apparent, as has been found by the learned Judge, that the petitioner on or about 31st March, 1938, did not hold any lien or any suspended lien on a permanent post in terms of the relevant rules. The petitioner also did not hold any permanent post in a provisional or substantive capacity under Clause (b) of Rule 2008. In the premises, Clause (b) of Rule 2046 of the Railway Establishment Code cannot apply in the case of the petitioner and the petitioner would be bound by Clause (a) of Rule 2046. If Clause (a) of Rule 2046 applies, then in terms of the said rule the petitioner was liable to retire on attaining the age of 58 years. The petitioner did not belong to the class of ministerial servants who have been exempted from the application of the rule of retirement as contained in Rule 2046. Therefore, the first contention in support of this appeal must fail and it must be held that if Rule 2046 applies, the petitioner was due to retire, as was notified on the 1st November, 1971.;