Gulati, J.:— The petitioner was appointed as a clerk on 10th March, 1938 by the then B. and N.W Railway. He was confirmed on that post on 10th March, 1939, B. and N.W Railway was taken over by the Indian Railway Administration in the year 1943 and the petitioner became an employee of the Indian Railway Administration from 1-1-1943. The petitioner's date of birth is 2-11-1914. In the North Eastern Railway Fortnightly Gazette No. 3 issued by the General Manager (Personal), N.E Railway, Gorakhpur, in the month of February, 1972, the petitioner was notified as due for retirement on 1-11-1972 i.e on the attainment of 58 years of age.
2. According to the petitioner, the age of superannuation in his case was 60 years and as such he would be due for retirement on November 1, 1974. He accordingly made a representation on July 3, 1972, to the General Manager, N.E Railway, Gtorakhpur, against the notice of premature retirement Subsequently on October 30, 1972, he moved the present writ petition under Art. 226 of the Constitution. On November 21, 1972, his application for interim relief was rejected as in the meantime he had already been retired. The only contention raised in this petition is that the petitioner had a right to remain in service until he attained the age of 60 years and he had wrongly been retired on his attaining the age of 58 years. Reliance is placed on Rule 2046 of the Indian Railway Establishment Code. The relevant portion of this rule as amended on 11th January, 1967, is as below:
“2046 (FR-56)—(a) Except 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 posts in a provisional substantive capacity, under clause (d) of Rule 2008 and continued to hold the same without interruption under 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 Service” includes service rendered in Ex. Company and Ex. State Railway and in a former provincial Government.”
3. Thus it is clear that the age of super annuation of a railway servant is 58 years, Unless he holds a ministerial post in which case he would be retained upto age of 60 years, if he entered service on or before 31st March 1938 and on that date held, a lien or a suspended lien on a permanent post, or held a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 etc. Learned counsel for the petitioner stated that his client is a ministerial railway servant, who entered in Government service before 31st March, 1938 and on that date he held a lien or a suspended lien on a permanent post. He thus bases his claim on sub-clause (i) of clause (b) of Rule 2046.
4. There is no doubt that the petitioner held a ministerial job and that he entered Government service before 31st March, 1938. The dispute is as to whether he held a lien or a suspended lien on a permanent post on 31st March, 1938.
5. The word lien’ has been defined in clause (14) of Rule 2003 as under:—
“2003 (14) Lien, means 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.”
6. It is not disputed that the post to which the petitioner was appointed was a permanent post. But it is urged on behalf of the respondents that, the petitioner had no title to hold that post substantively, nor had he been appointed to that post substantively on March 31, 1938.
7. Now, on the petitioner's own showing he joined service on March 10, 1938, and was confirmed in that post a year later in March 10, 1939. Thus on March 31, 1938, he had not been confirmed on that post. Therefore, it cannot be said that he held the post substantively on the date. A person cannot be said to hold a post substantively, unless he is appointed to that post in a substantive capacity or is later confirmed in that post. In the instant case the petitioner, of course, has not stated as to in what capacity his appointment, was made, namely, as to whether the appointment was permanent or temporary, nor have the respondents in the counter-affidavit made any such specific allegation. To my mind it is clear that the fact that he came to be confirmed after one year of his joining service shows that during the first year he was either temporary or on probation. This view finds support item Rule 3 of the Rules for Incremental Scales and Grades for Clerical Staff as it existed at the material time in the regime of the erstwhile B. and N.W Railway Company. This rule provides:
“First appointment to be on probation for one year, after which, if the probationer is found to be suitable and his services are retained he may then be granted first increment of the grade.”
8. This rule was in force when the petitioner was appointed and the fact that the petitioner was confirmed exactly after one year of his appointment shows that he was taken on probation for one year in accordance with the aforesaid rule.
9. Learned counsel for the petitioner has submitted that merely because the petitioner was confirmed one year after his appointment does not mean, that he did not hold the post substantively to begin with. According to him, a person can hold a post substantively even before confirmation and therefore it must be held that the petitioner had satisfied all the requirements of Rule 2046(b)(i). The learned counsel has not cited any authority in support of this proposition. On the other hand, there is a decision of the Supreme Court in Paresh Chandra Nandi v. Controller of Stores, N.F Railway, Pandu 1970 3 SCC 870 where the interpretation of clause (14) of Rule 2003 of Railway Fundamental Rules which defines ‘lien’ came up for consideration. This is what Their Lordships observed in paragraph 9:
“Rule 2003 of the Railway Fundamental Rules, defines, in clauses 3 and 14 the terms ‘cadre’ and ‘lien’. “Lien as defined in clause 14 means the title of a railway employee to hold substantively pa permanent post to which he has been permanently appointed. According to this definition, therefore, the appellant and respondents 4 to 8 were entitled to, with effect from August 15, 1947 (whom all of them were made permanent), a lien on the respective posts to which, as from that day, they were confirmed and made permanent.”
10. So it is clear that a person can be said to acquire a lien ton a post only when he has been confirmed and made permanent on that post and not earlier.
11. The decision of the Supreme Court in P.L Dhingra v. Union of India A.I.R 1958 S.C 36. upon which the learned counsel for the petitioner has placed reliance does not lay down, any contrary proposition. On the other hand, it says the same thing in a different language what has been said by the Supreme Court in the case of Paresh Chandra Nandi v. Controller of Stores. This is what has been observed in paragraph No. 11:
“It is, therefore, quite clear that appointment to a permanent post in a Government service either on probation or on an officiating basis, is from the very nature of such employment, itself of a transitory character and, in the absence of any special contract or specific rule regulating the condition of service, the implied term of such appointment under the ordinary law of master and servant, is that it is terminable at any time. In short, in the case of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post………………….”
12. The view that I have taken finds support from a decision of Mon. Yashoda Nandan, J. in A.B Lal v. The Union of India through the General Manager, N.E Rly. (P) Gorakhpur W.P No. 740 of 1971 L.B decided on 1-9-1972..
13. Learned counsel for the petitioner has relied upon a decision of Hon'ble Gur Saran Lal, J. in Panna Lal v. Union of India, Ministry of Railway W.P No. 972 of 1970 decided on 11-5-1972 by Hon'ble Gur Saran Lal, J.. There also a similar question arose. But the facts of that case are slightly different. There the Government servant was appointed in 1930 as a Khalasi Fireman by the Bengal and North Western Railway Company. He was promoted as a clerk in 1940 on which post he was confirmed in 1945. His Lordship held that as the appointment as a Khalasi Fireman was made on a permanent post and not on a temporary post, the fact that he was appointed to the post of clerk temporarily did not alter the position. So the finding in that case was that his appointment was substantive in the post of Khalasi to begin with. The facts in the present case are different.
14. Here clearly the petitioner was not appointed substantively to begin with. He can be said to be appointed substantively only on 10th of March, 1939, when he was confirmed.
15. Thus it is clear that the petitioner did not satisfy all the requirements of Rule 2046(b)(i) on which he placed reliance and was not entitled to the benefit of the extended age of retirement. His retirement on attaining the age of 58 years is correct.
16. The petition fails and is dismissed. But in the circumstances of the case, there will be no order as to costs.
17. Petition dismissed.
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