SHIVA SHANKAR MISHRA Vs. THE UNION OF INDIA & OTHERS

JUDGEMENT

(1.) The petitioner who was posted as head clerk (E) in Assistant Security Officer's Office, North Eastern Railway at Sonepur, was directed to retire compulsorily from service with effect from the forenoon of 28th Nov. 1976 or from the expiry of three months from the date of the service of the notice on him whichever was later by an order dated 27th of Aug., 1976 of the Chief Security Officer, North Eastern Railway, Gorakhpur (respondent No. 3) as contained in Annexure-1 to the writ petition. The order states that respondent No 3 was the appointing authority and of the opinion that it was in the public interest to compulsorily retire the petitioner having completed 30 years of service on the 23rd of Nov. 1975. The petitioner challenges the validity of this order and prays by the present application under Articles 226 and 227 of the Constitution of India that the same be quashed The petitioner was appointed in the year 1945 and, therefore.it is not disputed that he has completed 30 years of service and may be compulsorily retired by an appropriate authority. The only ground on which the order of compulsory retirement as contained in annexure 1 has been challenged at the time of hearing is that respondent No. 3 was not the competent authority to pass an order of compulsory retirement.

(2.) The case of the petitioner is that he was appointed by the Chief Engineer, North Eastern Railway, Gorakhpur, and posted in the office of the Assistant Engineer, North Eastern Railway, Darbhanga, as a clerk and was confirmed as such in due course of time. He was promoted as a senior clerk in the year 1955 and posted in the office of the District Engineer North Eastern Railway, Samastipur, and was also subsequently confirmed as such. He was then promoted as head clerk in the office of the Divisional Personal Officer, North Eastern Railway Samastipur in the year 1973. In the year 1974 he was transferred as head clerk (establishment) in the office of the Assistant Security Officer, North Eastern Railway Samastipur. The said office was shifted to Sonepur after some time and, therefore, the petitioner too had to go to Sonepur. The petitioner was born on 1st of Nov. 1921 and this was the Date declared by him at the time of appointment and there is no dispute about it. In July, 1975 a proposal was mooted as to the merger of establishment section and general section and it was decided that the clerical cadre of security department should form a separate unit under he control of the Chief Security Officer for all purposes and as such all clerks of establishment branch were asked to exercise their option whether they liked to be permanently absorbed in the security department or they liked to go back to their parent department, i.e., personnel branch. The petitioner exercised his option by stating that he did not like to be permanently absorbed in the security department under the administrative control of the Chief Security Officer for all purposes. These facts by and large are not in dispute.

(3.) The petitioner claims that respondent No. Sis not the competent authority to issue an order of compulsory retirement of that petitioner for two reasons firstly he is not of the same rank as the Chief Engineer who was the appointing authority of the petitioner, rather he is of an inferior rank, and secondly that as the petitioner did not opt for being absorbed permanently in the establishment of the security department, rather opted for continuing m the personnel department, respondent No. 3 is whose office the petitioner was merely deputed to work could not pass an order compulsorily retiring him from service. Learned Counsel appearing on behalf of the respondents has contended in reply that the Chief Engineer as well as the Chief Security Officer both are heads of department and, therefore, they are officers of the same rank. In other words, according to him, respondent No. 3 was not an officer inferior in rank to the Chief Engineer and further that so long the petitioner was working in an office under the control of respondent No. 3 was head of the department, irrespective of the fact whether the petitioner was working temporarily, respondent No. 3 was competent to compulsorily retire him In support of his contention that the Chief Engineer and the Chief Security Officer both are heads of department, learned counsel for the respondents has drawn our attention to Appendix XXXVIH to Indian Railway Establishment Code (hereinafter referred to as 'the Code' Volume ii). The appendix shows that the Chief Engineers and Chief security Officers are declared to be heads of department under rule 2202(9). Rule 2202 is in Chapter XXII of the Code in the same volume with the heading "Railway Supplementary Rules." Rule 2202 defines various terms and starts with "unless there is something" repugnant in the subject or context, the terms defined below are used m this Chapter in the sense here explained" and then Sub-rule (9) reads.