- (1.) This is an appeal against the judgment and order of Janah, J. dated December 7, 1973 in C.R. 304(W) of 72 whereby the Rule was made absolute. The only point for consideration is whether on interpretation of Rule 2046 the order retiring the petitioner from service on his attaining 58 years was a legal order. The admitted facts are that the petitioner was appointed as an unskilled Khalasi on October 14, 1936 and he was confirmed I that post on October 14, 1939 without interruption of service in the meantime. Thereafter he was promoted to different posts and was ultimately working as a store head clerk at the material time. The Rule 2046 as amended with effect January 11, 1967 under Railway Board letter P.C.62/RT-1 is as follows: "2046 (FR 56) Except as otherwise provided in this rule every railway servant shall retire on the day he attains the age of fifty-eight years. (b) Administerial railway servant who entered Government service on or before the 31st March 1938 and held on that date - (1) a lien or a suspended lien on a permanent post or (11) . . . . . . shall be retained in service till the day he attains the age of sixty years." Lien has been defined in Rule 2003 (14) in the following manner "Lien means the title of a railway employee to hold substantively either immediately or on termination of a period of periods of absence a permanent post including a tenure post to which he has been appointed substantively.
(2.) The appointment letter of the petitioner could not be produced but the service record was before the court and the entries thereon would show that the petitioner was appointed according to the learned Judge in a permanent post which appointment in his view was a substantive appointment. The learned Judge was of opinion that the word 'substantive' in the relevant rule has to be read as 'contradistinguished' from the words 'temporary appointment' or 'officiating appointment' or 'appointment in a casual vacancy'. It was further held that respondents have not been able to show that the petitioner's appointment was on probation or on an officiating basis or that his appointment was a temporary one. It was accordingly held that when the petitioner was appointed to a substantive post without any reservation it was a substantive appointment. In this view this Rule was made absolute and the respondents were restrained from giving effect to or acting in pursuance of the notification dated October 15, 1971 published in Eastern Railway Gazette Nos.19 and 20 being annexure 'K' to the petition retiring the petitioner on his attaining the age of fifty-eight years.
(3.) This Rule 2046 came up for consideration before A. K. Sen, J. and the learned Judge took a different view on Rule 2046 and referred the matter for a decision to a Division Bench in view of the difference of opinion. The matter thereafter came up for hearing before a Division Bench consisting of Sabyasachi Mukharji and R. N. Pyne, JJ, in the case of (1) Naba Kumar Detention v. Union of India and Others reported in 78 CWN P. 713. It was held that in order to have the benefit of Rule 2046 (b) of the Railway Establishment Code two conditions must be satisfied: firstly that the ministerial railway servant must have entered Government service (in this case service under the railway company being deemed to be Government service) on or before March 31, 1938, and secondly he must hold a lien or a suspended lien on a permanent post on that date. It was held in that case even assuming that the petitioner had been appointed to a permanent post (as to which there was controversy) the second condition had not been fulfilled inasmuch as he was permanently appointed to a permanent post only when he was confirmed on September 1, 1940, that is, after the appointment date under Rue 2046 (1) namely, March 31, 1938. It was accordingly held that the petitioner is not entitled to the benefit of the said Rule.;