# GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS v. T. !vi. PARAMASlVAM April 8, 197 6

- **Citation:** [1976] 3 S.C.R. 1085
- **Court:** Supreme Court of India
- **Decided:** 1976
- **Case number:** Civil Appeal No. 571 of 1972
- **Bench:** A. N. Ray, !vi. H. BEG A1'D ]ASWANT SINGH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/general-manager-southern-railway-madras-v-t-vi-paramaslvam-april-8-197-6-6730
- **Pages:** 3

## Headnote

Retire1nc11t on supera111111atio11--Conclitiv11s prescribed for pre-1938 entrant
are nuuulatory to avail the benefit u11der-Hailway E.\tub!isl1111cnt Code Rule
2046 (b).
Under llule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled tu the higher age of rctiren1ent at 60 years (i) if he
had entered service on or before 3 lst l\1arch 1938 and (ii) if he held on 31st
March 1938 either a lien or a suspended lien on a permanent post under Rule
2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.
The respondent had been appl'inted a temporary clerk on 10th Decen1ber
1936 and was confirn1ed in thal post on 1st Septen1bcr 1938.
When he
w~1s
rctircd on attaining the age of SK, ht: challenged the orders clain1ing benefit
of Rule 2046(b).
The High Court allowed the writ petition holding that
since he was continncd on 1st Septen1ber 1938 he would be deemed to have
been permanently appointed since 10th December 1936.
Allowing the appeal by special leave lhc court,
HELD: (l) Rule 2046\b) clearly lays down that not only the fir:;t but
one of the 1wo alternatives of the second set o( conditions inust also be fulfilled
hy the Government servant "'on that date'' i.e. 31st March 1938. The specified
requirement of the rule could not be overriden by some deemed retrospective
benefit alleged to accrue fron1 a confinnation subsequent to
31st
March
A
B
c
D
1938.
[1086D-EJ
E
State uf P1111jab v. Dhara111 Singh !1~68] 13) S.C.R. l; State vf l'•lagala1ul v.
G. Vasa111f/(/ i\.l.R. 1970 SC 537: Director of Panchayar Raj & Anr. v. Babu
Singh Gaar, [1972] (2) S.C.R. 400, (followed)
[His Lo1·dship observed that the position was so clear, under the la\V, that
it should not have been nc.:cssary at all for the parties to have had to come
to this Court for a correct dceisionl

## Text

,, '
•
1085
GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS
v.
T. !vi. PARAMASlVAM
April 8, 197 6
[A. N. RAY, C.J., !vi. H. BEG A1'D ]ASWANT SINGH, JJ.]
Retire1nc11t on supera111111atio11--Conclitiv11s prescribed for pre-1938 entrant
are nuuulatory to avail the benefit u11der-Hailway E.\tub!isl1111cnt Code Rule
2046 (b).
Under llule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled tu the higher age of rctiren1ent at 60 years (i) if he
had entered service on or before 3 lst l\1arch 1938 and (ii) if he held on 31st
March 1938 either a lien or a suspended lien on a permanent post under Rule
2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.
The respondent had been appl'inted a temporary clerk on 10th Decen1ber
1936 and was confirn1ed in thal post on 1st Septen1bcr 1938.
When he
w~1s
rctircd on attaining the age of SK, ht: challenged the orders clain1ing benefit
of Rule 2046(b).
The High Court allowed the writ petition holding that
since he was continncd on 1st Septen1ber 1938 he would be deemed to have
been permanently appointed since 10th December 1936.
Allowing the appeal by special leave lhc court,
HELD: (l) Rule 2046\b) clearly lays down that not only the fir:;t but
one of the 1wo alternatives of the second set o( conditions inust also be fulfilled
hy the Government servant "'on that date'' i.e. 31st March 1938. The specified
requirement of the rule could not be overriden by some deemed retrospective
benefit alleged to accrue fron1 a confinnation subsequent to
31st
March
A
B
c
D
1938.
[1086D-EJ
E
State uf P1111jab v. Dhara111 Singh !1~68] 13) S.C.R. l; State vf l'•lagala1ul v.
G. Vasa111f/(/ i\.l.R. 1970 SC 537: Director of Panchayar Raj & Anr. v. Babu
Singh Gaar, [1972] (2) S.C.R. 400, (followed)
[His Lo1·dship observed that the position was so clear, under the la\V, that
it should not have been nc.:cssary at all for the parties to have had to come
to this Court for a correct dceisionl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 571 of 1972.
Appeal by Special Leave from the Judgment and Order dated the
15th June 1971 of the Madras High Court in W.P. No. 3112/70.
P. P. Rav and G. Chandra for the Appellant.
P. C. Blwnari and I. B. Dadachanji for the Respondent.
1he Judgment of the Court was delivered by
BEG, J.
The General Manager,
Southern
Railway
obtained
Special Leave to appeal to this Court against a judgment of a Division
Bench of the Madras High Court.
The learned Judges, Vecraswami,
C.J., and Raghavan, J., had held. in a very short judgment, a notification of the Railway Department, retiring the petitioner-respondent
from service with effect from 3rd October, 1970, to be inoperative.
The petitioner-respondent had been appointed a tell]porary Clerk
_on 10th December, 1936, and had been confirmed in that post on 1st
19-725SCI/76
F
G
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1086
SUPREME COURT REPORTS
[1976] 3 s.c.R.
A
September, 1938. He contended that he was entitled to continue in
service until he had attained the age of 60 years. He alleged that the
notification retiring him had been issued on the wrong assumption
that he had to retire at the age of 58 years which is the normal age of
retirement. He claimed the benefit of Rule 2046 (b) of the Railway
Establishment Code.
B
c
D
E
F
G
H
According to Rule 2046(b), a Ministerial Railway Servant was
entiUed to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly,
he had held "on that date" (i.e. on 31st March, 1938), either: (i)
"a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause
(d)
of
Rule 2008 and had continued to hold the same without interruption
nntil he was confirmed in that post".
It is clear that the respondent petitioner fulfilled the first condition
inasmuch as he had entered Government service on 10th December,
1936, which was obviously before 31st March,
1938. The High
Court, however, proceeded to hold that, since he was confirmed on
1st September, 1938, he would be deemed to have been permanently
appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy
before he could be held to be entitled to the higher age of retirement.
It is very difficult to appreciate the reasoning of the High Court when
Rule 2046 (b) clearly lays down that not only the first but one of the
two alternatives of the second set of conditions must also be 'fulfilled
by the Government servant "on that date", that is to say, on 31st
March, 1938. The specified requirements of the rule could not be
over-ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938.
The second of the two alternatives in the second set of conditions
could not apply to the respondent petitioner as he was only a "temporary Government servant" and not a "provisional Government servant"
as defined by Rule 2008(2). Rule 2008 may be reproduced here.
It reads :
"2008--Suspension of lien:-
(a) A competent authority shall suspend the lien of a
railway servant on a permanent post which he holds
substantively if he is appointed in a substantive
capacity:
( 1) to a tenure post or
(2) to a permanent post outside the cadre on which
he is borne, or
(3) provisionally, to a post on which another railway
servant would hold a lien had his lien not been
suspended under this rule.
ll
I
(
,; ;
SOUTHERN RAILWAY V. T. M. PARAMASIVAM (Beg, J.)
1087
(b) A competent authority inay, at its option,
suspend
the lien of a Railway servant on a permanent post
which he holds substantively if he is deputed out of
India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule,
is
transferred whether in a substantive
or officiating
capacity, to a post in another cadre, and if in any of
. these cases there is a reason to believe that he will
remain absent from the post on which he holds a lien
· 'or a period of not less than three years.
(c) Notwithstanding anything contained in Clause
(a)
and (b) of this Rule a railway servant"s lien on a
tenure post may, on circumstances, be suspended.
If
A
B
he is appointed substantively to another permanent
c
post, his lien on the tenure post must be terminated ..
(d) If a railway servant's lien on a post is
suspended
under clause (a) or (b) of this Rule, the post may
be filled
substantively
and
the
railway
servant
appointed to hold it substantively shall
acquire a
lien on it provided that the arrangements
shall
be
reversed as soon as the suspended lien revives.
D
Norn :-This clause applies if the post concerned
is a
post in a selection grade of a cadre''.
The respondent petitioner having been confirmed on !st September, 1938, could be said to be appointed in substantive capacity only
on that date.
He could neither have a lien nor a suspended lien on a
permanent post.
He could also not be found to hold a permanent
post in a provisional capacity under clause ( d) of Rule 2008 before
31st March, 1938.
The respondent petitioner had not been shewn
to hold a permanent post on 31st March, 1938.
Learned Counsel for
the appellant, therefore, relied on :
State
of Punjab
v.
Dharan1
Singh('); State of Nagaland v. G. Vasantha('); Director of Panchayat
Raj & Anr. v. Babu Singh Gaur( 3).
Learned Counsel for the respondent petitioner found it impossible to justify the
order
of
the
Madras High Court.
Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the
respondent petitioner, who had worked until he retired at the age
of
sixty, and that this appeal was filed only to get -the question of law
involved settled.
The position was so clear, under the law,
that it
should not have been necessary at all for the parties to have had to
come to this Court for a correct decision.
We allow this appeal and set aside the judgment and order of tk
High Court.
The parties will bear their own costs.
S.R.
(1) [1968] (3) s.c.R: I.
(2) A.LR. 1970 S.C. 537.
(3)
[1972] (2) S.C.R. 400.
Appeal allowed.
E
F
G
H