CASE NO.: Appeal (civil) 698 of 1981 PETITIONER: ACCOUNTANT GENERAL ANDHRA PRADESH AND ANR. RESPONDENT: MOHD. ABDUL RAHMAN KHAN DATE OF JUDGMENT: 06/02/1997 BENCH: K. RAMASWAMY & S. SAGHIR AHMAD JUDGMENT:
JUDGMENT
1997 (1) SCR 1019
ORDER
The following Order of the Court was delivered :
This appeal by special leave arises from the judgment of the Division bench
of the Andhra Pradesh High Court in Writ Appeal No. 397/78, made on
November 15,1978. The respondent was appointed as a Lower Division Clerk in
the erstwhile Nizam State (Part B State) on March 10, 1938. His date of
birth is 6.3.1919. After the formation of the Part B State, he was
confirmed in the Accountant General Office as Upper Division Clerk. He was
absorbed permanently on April 1,1950, since, by then, he was working in the
Office of Accountant General of Hyderabad from March 7, 1939. The question
arises: whether he requites to be superannuated oa his completion of 58
years? The respondent contended that being an erstwhile employee of Part B
State absorbed in the Government of India service, he is governed by
Fundamental Rules 56(c) and clause (a) of Fundamental Rules 56 does not
apply to him and, therefore, he is entitled to remain in service until he
reaches the age of superannuation of 60 years. That contention was found
favour with the learned single Judge was and upheld by the Division Bench.
Thus, this appeal by special leave.
Fundamental Rules 56, as amended in July 1965 reads as under:
“F.R. 56 was amended in July, 1965. After amendment the relevant part of it
reads as follows :
(a) except as otherwise provided in this Rule every Government servant
shall retire on the day he attains the age of 58 years.
(b)………………………….
(c) A ministerial Government servant who entered Government service on or
before 31.3.1938 and held on that date (i) a lien or suspended lien on a
permanent post or, (ii) a permanent post in a provisional substantive
capacity under clause (d) of Rule 14 and continued to hold the same without
interruption until he was confirmed in that post, shall be retained in
service till the day he attains the age of 60 years.
Note: For the purpose of this clause, the expression, ‘Government Service’
includes service rendered in a former provincial Govern-ment.
(cc)…………………”
The appellants have taken the stand that by virtue of rule l(ii) which came
into force on April 1, 1950 of the C.C.S. (part B State Transferred
Employees) Rules, 1953 by operation of Rule 9(4) of the Rules, on deter-
mination of the age, a ministerial servant was to superannuate under
Fundamental Rules 56(b)(ii) as it stood prior to amendment in July 1965
would apply and as a consequence, the respondent was required to be
superannuated on his completion of 58 years of age. Accordingly, he was
informed of the same in letter dated November 27, 1976 that he was to
retire on March 31, 1977 on his attaining the 58 yeas. The stand taken by
the appellants is not correct in the light of the clause (c) of Fundamental
Rules 56. It is a special provision in relation to an erstwhile government
servant in Part B State, who was made permanent, after the Part B State
merged with the Union of India. Nizam State was Part B State and merged in
Union of India and became integral part of Andhra Pradesh State under State
Reorganisation Act, 1956. The note to Fundamental Rules 56 clearly mentions
that for the purpose of this clause, the expression, ‘Government Service’
includes service rendered in a former provincial Government. In view of the
admitted position that the respondent was appointed on per-manent basis as
an L.D.C. on March 10, 1938 and ever since he continued in service till he
was absorbed as U.D.C. on permanent basis on April 1, 1950 with the Central
Government, he hold his post on permanent basis with a lien in provincial
service, prior to the amendment Rules, 1965 has come into force, namely,
prior to March 31, 1938. As a consequence he is governed by clause (c) of
Fundamental Rules 56. Accordingly, be is re-quired to be superannuated only
on his completion of 60 yeas of age. The High Court, therefore, was right
in directing that the respondent should be retained in service till he
attains the age of 60 yeas. Even by now he had completed superannuation. It
needs no interference.
The appeal is accordingly dismissed. No costs.