I.S. Tiwana, J. - (1.) THIS set of three petitions (C.W.P. Nos. 255, 53 and 124 of 1983) is proposed to be disposed of through this common judgment on account of the identity of facts and the contentions raised.
(2.) ALL the Petitioners while working in Class II of the Punjab State Electricity Board Service of Engineers on officiating basis have been retired from service on attainment of the age of 50 years in exercise of the powers under Rule 3.26 of the Punjab Civil Service Rules (Volume I) as adopted by the Respondent -Board, i.e., the Haryana State Electricity Board (hereinafter called the Rules). The learned Counsel for the parties are agreed that for the decision of these petitions, a reference to the averments made in the first -noted petition only would suffice. Petitioner M.K. Puri was officiating as an Assistant Engineer in the Hydel Project at Yamuna Nagar on 30th December, 1982, when he was served with the following order (annexure P9): It is to inform you that the Board is of the considered view that it is in the public interest to retire you from the service in terms of Rule 3.26(d) of Punjab Civil Services Rules, Volume I, Part I, read with Rule 5.32(c) of Punjab Civil Services Rules, Volume II. You are accordingly hereby retired from the service of the Board with immediate effect. A cheque No. 200702, dated 1st January, 1983 for Rs. 4989.00 towards three months pay and allowances in lieu of notice is enclosed. Please acknowledge its receipt. Sd/ -Secretary,H.S.E.B., Chandigarh. Undisputably, Rule 3.26 ibid deals with the right of the employer to retire the employee in the contingencies specified in the rules and Rule 5.32 of Punjab Civil Services Rules Volume II entitles the retired employee to have his pension. This order is impugned primarily on two grounds: (i) that as per Clause (e) of Rule 3.26 ibid, only permanent member of Class II Service can be retired at the age of 50 years whereas a member of Class III Service can be retired only on attaining the age of 55 years. Since the Petitioner was only officiating in Class II and thus could not be considered as a member of Class II Service he could not be retired in exercise of the powers under this rule at the age of 50 years; and (ii) that there is no compliance of Sub -clause (ii) of Note 8 to this rule. As against this, the stand of the Respondent -Board is that the Petitioner having successfully completed the outer time -limit of the probationary period fixed under Regulation 12 of the Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations, 1955 (for short, the Regulations), he had to be deemed to have been confirmed in Class II and on that account could legally be retired from service at the age of 50 in terms of Rule 3.26 ibid. The requirements of Clause (ii) of Note 8 have also been, if not fully, substantially complied with. After hearing the learned Counsel for the parties at some length. I, however, do not find any merit in the stand of the Respondent -Board.
(3.) IN support of his contention that for purposes of compulsory retirement under Rule 3.26 of the Rules, the status of the employee in a particular Service on regular or permanent basis has to be taken notice of, Shri K.P. Bhandari, the learned senior counsel for the Petitioners, squarely relies on the following observations of the Supreme Court in Union of India v. K.R. Tahillani and Anr., 1980 (1) SLR 847. The question which came up for consideration before their Lordships of the Supreme Court therein was "whether a Government servant officiating in Class I or Class II service or post can be retired compulsory by exercising the powers under Rule 56(j)(1) after he has attained the age of 50 years". It deserves to be pointed out here that Rule 56(j)(i) of the fundamental rule is almost in similar terms as the present rule, i.e., Rule 3.26 of the Rules. While answering this question, their Lordships observed that "since an officiating hand has no right to the post and is perhaps a fleeting bird who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon." These weighty observations make it abundantly clear that the Petitioner while officiating in Class II could not be treated as a member of the Service and for all intents and purposes and more particularly, for purposes of his compulsory retirement he had to be treated as a member of Class III Service to which he undisputably had been confirmed. In the light of this, it is patent that in terms of Clause (e) of Rule 3.26 of the Rules he, not being a member of Class II Service could not be retired at the age of 50. Clause (ii) of Clause (e) which deals with the retirement of members of Class III Service lays down that an employee of this class, i.e., Class III can be retired at the age of 55 years. It is the admitted position that by the time the impugned order was passed, the Petitioner had hardly crossed 50 years of age and was much less than 55 years.;