GYAN CHANDversusUNION OF INDIA AND ORS.

                             GYAN CHAND                                          A
                                     v.
                     UNION OF INDIA AND ORS.

                          DECEMBER 4, 1995

         [K. RAMASWAMY AND K.S. PARIPOORNAN, JJ.]                                B

     Service Law :

     Railway Establishment Code :

      Rule 1802-Compulsory retirement-Railway servant-Promotion from c
Group 'C' post to Group 'B' post-Continuing on group 'B' post not only in
ordinary scale but in senior scale of pay for over 10 years-Order of compul-
sory retirement passed-Claim for benefit of proviso to Ru.le-Held, proviso
to Rule. 1802 not app/icabZ. to the case-The officer continued as Group 'B'
Officer in substantive capacity-He could not simultaneously continue on D
group 'C' post in substantive capacity.

       The appellant, an officer of Group 'B' service In Railways, unsuccess-
fully challenged before the High Court, the order compulsorily retiring him
from senrice.
                                                                                 E
      In appeal before this Court, it was contended for the appellant that
sincehe was not confirmed on Group 'B' post till his compulsory retire·
ment, he was entitled to the benefit of the proviso to Rule 1802 of the
Railway Establishment Code, which provided that a railway servant hold-
ing a Group 'C' post in substantive capacity and working on a Group 'A!
or Group 'B' post in an officiating capacity, if required to be compulsorily     F
retired in public interest, be allowed, on his request, to continue in service
on Group 'C' post. ·

      Dismissing the appeal, this Court

      HELD : The order compulsorily retiring the appellant is not vitiated
                                                                                 G
by any error of law. In view of the fact that the appellant continued on
Group 'B' post not only in ordinary scale but also in senior scale of pay,
for 10 years it could not be said that he continued on the said post only
on officiating basis. He obviously continued in substantive capacity as
Group 'B' Officer. He could not simultaneously continue in Group 'C' H
                                    161
    162                      SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A   service in a substantive capacity. Therefore, the proviso to Rule 1802 of
    the Railway Establishment Code has no application to the facts of the case.
                                                                    (164-A, 163-G-H)
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11874 of
    1995.
B
          From the Judgment and Order dated 6.10.94 of the Central Ad·
    ministrative Tribunal Allahabad in Case No. 1136 of 1991.

            K.B. Sounder Rajan and Mrs. Pushpa Rajan for the Appellant.

C           P.P. Singh and Arvind Kumar Sharma for the Respondents.

            The following Order of the Court was delivered :

            Leave granted.

           The only relevant question for decision is whether the appellant is
D
    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
E             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.
F             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 respon-
    dents Therein, the Rule has been extracted which states thus : -
G
              "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
H             pay and allowances in lieu of such notice -
                         GYAN CHAND v. U.0.1.                                163

        (i) If he is in Group 'A' service or post or in a Group 'C' service         A
        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.
                                                                                    B
        (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
                                                                                    c
        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."
                                                                                    D
      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               E
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
                                                                               F
'l'I' 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 G
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.           H
    164                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A         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.

B R.P.                                                      Appeal dismissed.