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Kailash Chand Vs. Union of India (Uoi), Rly. Dept. New-delhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSupreme Court Appeal No. 67 of 1958
Judge
Reported inAIR1959All685
ActsConstitution of India - Article 133(1); Indian Railway Establishment Code - Rule 2046(2)
AppellantKailash Chand
RespondentUnion of India (Uoi), Rly. Dept. New-delhi
Appellant AdvocateHarish Chand and ;R.B. Bisaria, Advs.
Respondent AdvocateB.N. Mulla, Adv.
DispositionApplication allowed
Excerpt:
civil - constitution - plaintiff compulsorily retired at the age of 55 instead of at the age of 60 - emolument for five years claimed rs. 18,000/- less than rs. 20,000/- - sub-article (1)(b) of article 133 of constitution of india is not applicable - the case is fit for appeal to supreme court under sub-article(1)(c) of article 133 of constitution of india. - - it may be mentioned in this connection that the present case of the applicant was that his compulsory retirement at the age of 55 years on 30-6-1948 was bad in law......court allowed the appeal and dismissed the plaintiff's suit. it may also be mentioned that the present applicant had also filed a cross objection in that appeal. that cross objection was also dismissed. thereafter the plaintiff has filed 'the present application in this court.3. at the very outset, the learned counsel for the applicant submitted that the present application was covered by the provisions of article 133(1)(b) of the constitution. he, therefore, argued that in this view of the matter pie would be enti-tled to the certificate prayed for as a matter of right. in this connection he submitted that the present claim of the plaintiff related to an amount of rs. 14,777/6/-. he invited our attention to the fact that subsequently the plaintiff had filed another suit making a.....
Judgment:

N.U. Beg, J.

1. This is an application made by one Kailash Chandra under Article 132(1) and Article 133(1)(c) of the Constitution of India. The applicant subsequently applied for an amendment to the effect that this application might also be treated as an application under Article 133(1)(b) of the Constitution. This application was allowed and the applicant has made the necessary amendments in this regard. The applicant was employed as a ministerial railway servant in the E. I. Railway. He was working as a sub-head in the Divisional Accounts Office of the East Indian Railway at Lucknow. He was compulsorily retired from service on 30-6-1948 on attaining the age of 55 years.

Thereafter the applicant brought a suit out of which the present proceedings have arisen. In the suit lie prayed for a declaration that the plaintiff's compulsory retirement on 30-6-1948 on attaining the age of 55 years was illegal and ultra vires as under the railway rules he had the right to continue in service till he attained the age of 60 years. The plaintiff also claimed an amount of Rs. 14,777/ 6/- as arrears of dues payable to him. The details of this amount were given in para 5 of his plaint. They comprised his salary, dearness allowance and city allowance, which according to him, were payable to him from 1-7-1948 to 31-7-52 that is, for a period of four years.

2. The suit came up for trial before the learned Civil Judge, Mohanlalganj, Lucknow, who decreed the suit on 30-9-1955. Dissatisfied with the said judgment an appeal was filed in the High Court by the Union of India. This was First Appeal No. 3 of 1956. On 20-11-1958 a Bench of this Court allowed the appeal and dismissed the plaintiff's suit. It may also be mentioned that the present applicant had also filed a cross objection in that appeal. That cross objection was also dismissed. Thereafter the plaintiff has filed 'the present application in this Court.

3. At the very outset, the learned counsel for the applicant submitted that the present application was covered by the provisions of Article 133(1)(b) of the Constitution. He, therefore, argued that in this view of the matter Pie would be enti-tled to the certificate prayed for as a matter of right. In this connection he submitted that the present claim of the plaintiff related to an amount of Rs. 14,777/6/-. He invited our attention to the fact that subsequently the plaintiff had filed another suit making a similar claim and that suit was decreed by the Civil Judge for an amount of Rs. 5,330/10/-. Adding the two claims in the two suits the learned counsel contended, that the value of the claim made by the plaintiff in the present case would exceed an amount of Rs. 20,000/-.

Having heard learned counsel for the applicant on this aspect of the case, we find it difficult touphold this contention. It may be mentioned in this connection that the present case of the applicant was that his compulsory retirement at the age of 55 years on 30-6-1948 was bad in law. The plaintiffs case was that he was entitled to remain in service upto the age of 60 years. In other words, at the most the plaintiff could claim according to his present case, the emoluments accruing to him for a period of five years and no more. In para 5 of the plaint filed by the plaintiff, the plaintiff has given the details of the sum of Rs. 14,777/6/- which he claimed in the present case.

According to the details given in para 5 mentioned above, this amount covers the entire claim of the plaintiff for a full period of four years. At the most, therefore, the plaintiff could only claim emoluments in a similar manner for another period of one year. One-fourth of the amount claimed by the plaintiff would come to an amount of Rs. 3,694/4/-. Even if this amount is added to the amount claimed by the plaintiff it would appear that the figure would not exceed the sum of Rs. 20,000/- & would only be Rs. 18,000/- & odd. In this view of the matter we are of opinion that the preseat case cannot be covered by the provisions of Article 133(1)(b) of the Constitution.

4. In the alternative, the learned counsel for the applicant has contended that the present case is a fit one for appeal to the Supreme Court under Article 133(c) of the Constitution. Having heard the learned counsel for the applicant on this point we are of opinion that there is force in this contention. The case involves an interpretation of Fundamental Rule 56 which is equivalent to Rule 2046 (2) (a) of the Indian Railway Establishment Code an'd which is applicable to the present case. It reads as follows :--

'A ministerial servant, who is not governed by Sub-clause (b), may be required to retire at the age of 55 years, but should ordinarily be retained in service, if he continues efficient, up to the age of 60 years. He must not be retained after that age except in very special circumstances, which must be recorded in writing, and with the sanction of the competent authority.'

The contention of the applicant was that on a proper interpretation of the above Rules he was entitled to be retained in service up to the age of 60 years unless he was found to be inefficient. On the other hand the contention of the Union of India was that the plaintiff had got the right to be retained in service only up to the age of 55 years, and thereafter the State had the option to make him to retire or retain him in service up to the age of 60 years.

The Bench of this Court before which the appeal came up For hearing took into consideration the observations of the Court contained in three cases, namelv, Raghunath Narain v. Union of India, AIR 1953 All 352, Krishan Dayal v. General Manager Northern Railway, Baroda House, New Delhi, AIR 1954 Punj 245 and Basanta Kumar Pal v. Chief Electrical Engineer, AIR 1956 Cal 93 and took the view in favour of the Union of India. On the other hand reliance on behalf of the applicant was placed on a Supreme Court case reported in Jai Ram v. Union of India, AIR 1954 SC 584. In that case the observations made by the Supreme Court were as follows:

'We think that it is a possible view to take upon the language of this rule that a ministerial servant coming within its purview has normally the right to be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume, therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency.'

In the above case the view of the Bench of this court was that the Supreme Court had proceeded on an assumption that normally the employee has the right to be retained in service till he reaches the age of 60 years. The matter was not decided by the learned Judges nor did they discuss the point on merits. But, at the same time one cannot help feeling that the learned Judges of the Supreme Court in this case did contemplate the possibility of the interpretation which is put forward before us on behalf of the applicant as a reasonable one. It cannot, therefore, be said that the view contended for on behalf of the applicant is a view which cannot be taken by the Court. In other words, it cannot be said that there cannot be two views in respect fo this matter.

5. In a Full Bench case of the Madras High Court reported in R. Subba Rao v. N. Veeraju AIR 1951 Mad 969 it was held as follows:

'Any question of law affecting the rights of parties substantially would not by itself be a substantial question of law. An important or difficult question would of course be a substantial question but even if a question is not important or difficult, if there is room for reasonable doubt or difference of opinion on the question then it would be a substantial question of law within the meaning of Article 133 of the Constitution of India.' (vide head note).

In the present case it is further to be noted that the trial court also took the view which would support the case of the applicant.

6. Further, in .the present case it may also be observed that the interpretation of this Rule might affect not only the claim of the plaintiff in the other suit but also a large number of other cases which might arise under the aforesaid Rule. An authoritative pronouncement by the highest court is, therefore, necessary to clarify the position. For the above reason we are of opinion that this is a fit case for grant of the certificate prayed for. We accordingly allow this application, and declare this case to be a fit one for appeal to the Supreme Court under Article 133(1)(c) of the Constitution of India.

7. In the circumstances of the case we make no orders as to costs.


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