PETITIONER: GYAN CHAND Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT04/12/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J) CITATION: 1996 SCC (7) 184 JT 1995 (9) 222 1995 SCALE (7)302 ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
The only relevant question for decision is whether the
appellant is entitled to the benefit of proviso to Rule 1802
of the Railway Establishment Code. This Court on 24th April,
1995 passed the following order:
“Issue Notice. Limited to the question
as to why the proviso to Rule 1802
should not be applied to the petitioner,
namely, Gyan Chand while is continuing
in officiating Group ‘B’ post, if the
authority intends to take action for
retiring the officer in public interest,
he would be entitled to be informed and
if opted for reverted to the substantive
Group ‘C’ post. In this case, the said
action has not been done. Therefore the
respondents are at liberty to show cause
why the proviso should not be applied to
the petitioner and direction be given to
make the order in terms thereof.”
Pursuant thereto, the counter-affidavit has been filed
by the respondents. Therein, the Rule has been extracted
which states thus:
“Notwithstanding anything contained in
this Rule, the appointing authority
shall, if it is of the opinion that it
is in the public interest to do so, have
the absolute right to retire any railway
servant by giving him notice of not less
than 3 months in writing or 3 months pay
and allowances in lieu of such notice-
(i) if he is in Group ‘A’ service or
post or in a Group ‘C’ service or post
in a substantive capacity but
officiating in a Group ‘A’ or Group ‘B’
service or post and had entered
Government service before attaining the
age of thirty five years, after he has
attained the age of fifty years. (ii) in
any other case, after he has attained
the age of fifty five years: Provided
that a railway servant who is in Group
‘C’ post or service in a substantive
capacity, but is holding a Group ‘A’ or
‘B’ post or service in an officiating
capacity shall, in case it is decided to
retire him from the Group ‘A’ or Group
‘B’ post of service in the public
interest, be allowed on his request in
writing, to continue in service in the
Group ‘C’ post or service which he holds
in a substantive capacity.”
It is not in dispute that on promotion to Group ‘B’
service of Mechanical Department the appellant continued
till 3rd March, 1985 and thereafter in senior scale from
march 4, 1985 to July 3, 1989. It is contended for the
appellant that in view of the admitted fact that no
confirmation of probation was made till date of his
compulsory retirement, he must be deemed to be continuing on
probation and that, therefore he is entitled to the benefit
of the proviso. We find it difficult to give acceptance to
the contention.
The proviso clearly indicates that a railway servant
who is in Group ‘C’ post or service in a substantive
capacity, but is holding a Group ‘A’ or ‘B’service of post
in an officiating capacity, shall in case of compulsory
retirement, be allowed on his request in writing to continue
in Group ‘C’ post or service, which he holds in a
substantive capacity. It is seen that in view of the fact
that the appellant continued in Group ‘B’ post not only in
ordinary scale but also in senior scale of pay till July 3,
1989, for 10 years to the date on which he was compulsorily
retired, it could not be said that he continued only on
officiating basis for 10 years. It would be obvious that he
continued in substantive capacity as Group ‘B’ officer. He
could not simultaneously continued in Group ‘C’ service in a
substantive capacity. Therefore, the proviso has no
application to the facts of this case.
Under these circumstances, it cannot be said that the
order of retirement made in respect of the appellant is
vitiated by any error of law warranting our interference.
The appeal is accordingly dismissed. No costs. 3763