- (1.) This appeal is directed against a judgment order dated March 7, 1974 passed in Civil Rule No. 7279 (W) of 1972 by Anil Kumar Sen J. By his decision the learned Judge was pleased to make the rule absolute and directed the order of compulsory retirement of the petitioner dated June 23, 1972 and two adverse entries dated January 11, 1972 and April 21, 1972 respectively, as entered in the Confidential Character Roll of the petitioner, to be set aside and issued a mandate on the Respondents in the Rule to forbear from giving effect to or in any manner acting upon the said impugned order of compulsory retirement and the said adverse entries.
(2.) On or about May 16, 1944, by an order made by the General Manager, Bengal & Assam Railway, the petitioner was appointed as a Cipher Operator on a consolidated pay of Rs. 140/- per month. It was stipulated in the said order that after successful completion of training, the petitioner would be posted as a Cipher Operator on the usual terms of temporary railway employees and he would be entitled to such of the allowances that are admissible under the Rules at the stations where he would be posted and such appointment would be liable to be terminated on 24 hours' notice if either during the period of training of after appointment the services of the petitioner was not satisfactory. Thereafter by order No. 470-E/115/FG dated February 1, 1947 issued for and on behalf of his appointing authority, the petitioner was transferred to Watch and Ward Department (Mechanical) as a Sub-Inspector at a pay of Rs. 100-10/2-120/- and was posted at Saidpur Workshop. Thereafter, on or about November 24, 1955, he was promoted as Inspector Grade III and was confirmed in the said post by order No. D. O. 296 dated April 24, 1962 and from a reference to the said order it would appear that such confirmation was effective from January 1, 1960. By an order dated December 12, 1969 the petitioner was directed to be transferred as Inspector Railway Protection Force from Gaya to Burdwan Circle. On such transfer, the petitioner duly joined the said transferred post. Upto this time petitioner, trouble started thereafter and more particularly as soon as he addressed a confidential note on May 6, 1970 to the Assistant Security Officer, Howrah, requesting him thereby to have the transfers effected in the cases of certain staff at Burdwan for better and efficient working of the administration. In the said note the petitioner alleged that he has come to the definite conclusion that the sudden increase in crimes at Burdwan was mainly due to the staff as mentioned in his report and that those employees were in league with the local criminals. He opined that if those employees were transferred then that would certainly help in the improvement in detection and incidence of crimes. On the complaint made by him, the petitioner has alleged that he was transferred from Burdwan to Asansol as Divisional Inspector by Order No. 227/71 dated June 5, 1971. The petitioner has challenged the said order as not being bonafide and he has alleged that the same was procured at the instance of some members of the force, whose transfers as mentioned hereinbefore were recommended by him. On receipt of the said order of transfer, the petitioner on June 8, 1971 made a representation. He has also pointed out in the said representation that the impugned order of transfer was incomplete. It appears that ultimately on December 1, 1971, the petitioner obtained Civil Rule No. 4007(W) of 1971 from this Court against the said order of transfer and the order directing him to vacate his quarters at Burdwan. The said order directing the petitioner to vacate his quarters was passed on August 19, 1971. It has been alleged by the Respondents that the petitioner, after the order of transfer was not competent to hold over possession of the quarters at Burdwan. The said Rule is still pending. In the said Rule an order of injunction has been issued restraining the Respondent railway authorities from compelling the petitioner to vacate the quarters in question. In the meantime, on the representation of the Petitioner as mentioned hereinbefore, by D.O. No. 228/71 dated June 6, 1971 the petitioner was informed by the Assistant Security Officer (II), Howrah that the transfer order was issued by the Security Officer with the approval of the Chief Security Officer, Calcutta and in the said order one Shri B. N. Bose was first directed to relieve the petitioner. Before moving this Court in Civil Rule No. 4007(W) of 1971, it appears that on June 9, 1971 the petitioner made a representation to the Chief Security Officer and requested him to keep the order of transfer in abeyance for 6 months and he also requested for a personal hearing. Nothing was done. On the other hand by Memo No. ASO/II/CON/G71 dated June 14, 1971 the petitioner was directed by the Assistant Security Officer, Howrah, to hand over charge to Shri S. N. Pandey. It further appears that the petitioner by Memo No. ASO/II/HWH dated June 15, 1971 made a further representation for withholding the said order for handing over charge to the said Shri Pandey as directed till the disposal of his appeal. The petitioner has alleged that the said Shri Pandey informed the Respondent No. 3, the Assistant Security Officer on June 15, 1971 that the petitioner has reported sick and strangely enough on the said date the said Assistant Security Officer informed the petitioner that his appeal was not received by the Chief Security Officer and he was again informed to hand over charge to the said Shri Pandey on or by June 16, 1971. Immediately on receipt of the said communication the petitioner addressed a letter to the said Assistant Security Officer intimating that the appeal in question was sent to him and the same was duly received by the receiving clerk of his office. But all the said representations of the petitioner became fruitless and by Memo, No. ASO/II/12 dated June 16, 1971, he was ultimately shown as "spared" on transfer with effect from June 16, 1971 as he reported sick, by the said Assistant Security Officer. Against the said order and the order of transfer, a further representation was made by the petitioner to the Chief Security Officer on June 28, 1971 but by his Memo No. ASO/II/E/12 dated July 2, 1971, the petitioner was informed by the said Assistant Security Officer that his representation was rejected by the Chief Security Officer by Order No. SC/30/14-E Pt. IV dated July 1, 1971. There having been no other alternative, the petitioner on July 6, 1971 reported for duty at his transferred post and since he had not vacated his quarters, on July 8, 1971 he made a further representation to the Chief Security Officer and informed him that as per verbal orders of the Divisional Superintendent, Howrah, he has not vacated the quarters and he will retain the same till the end of the scholastic year. As even after the said representation he was asked by the Assistant Security Officer under the alleged orders and instructions of the Security Officer to vacate the quarters, the petitioner, as stated hereinbefore, moved and obtained the Rule and orders in Civil Rule No. 4007(W) of 1971. In this appeal we are neither concerned with the same nor are we making any determination on the same.
(3.) The petitioner has alleged that even after the issue of the said Civil Rule, the Assistant Security Officer concerned by his D.O. No. ASO/II/G/34(II) dated January 14, 1972 instructed the Assistant Security Officer, Asansol, to deduct penal rent from the petitioner for his occupation of the quarters at Burdwan. It has been further alleged by the petitioner that as disputes and differences arose between him and the authorities over the said occupation of the quarters at Burdwan, two adverse entries in his confidential character roll for 1970 were recorded, one by the Respondent No. 1, the Chief Security Officer and the other by the Respondent No. 2, the Security Officer, Calcutta. The said adverse entries were, in terms of the requirement of the rules communicated to him on January 11, 1972 and April 21, 1972 respectively. The petitioner has challenged the bonafides of the said adverse entries and he has also alleged that such entries were incorporated in his record with the ulterior motive of creating a foundation for selecting him for premature retirement. In fact the petitioner has contended that such apprehension of his was substantiated when by the impugned order dated June 23, 1972 the Chief Security Officer, Respondent No. 1 directed him to go on forced retirement at the age of 55 in exercise of his powers under Rule 2046(h)(ii) of the Railway Establishment Code. Rule 2046 is equivalent to Rule 56 of the Fundamental Rules. The relevant portion of Rule 2046(h) (ii) is in the following terms: (2046), (FR 56) ????????????????. ????????????????.. "(h) Notwithstanding anything contained in 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 by giving him notice or not less than three months in writing or three months' pay and allowances 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 thirty-five years, after he has attained the age of fifty years, (ii) in any other case after he has attained the age of fifty-five years.;