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Judgment
Petitioner was a staff artist (Instumentalist) in Radio Kashmir Srinagar and was ordered compulsorily to retire at the age of 55 years under
Fundamental Rule 56(J)f by order dated 29.11.1989 passed by respondent No.2 . He assails this order on the plea that the relevant Fundamental
Rule was not applicable to him as he was not holding'any permanent or regular post and because he was a contractual employee.
In their reply respondents have admitted that petitioner was a staff artist on a long term contract basis and that he was not a permanent
employee of the Radio Kashmir, Srinagar. It is however pointed out that respondent No.2 was competent to retire him from service in the public
interest by puting him on notice of three months or by paying him the pay and allowance in lieu thereof under F.R. 56(J).
Petitioner has also filed a rejoinder to the respondents reply taking the stand that once he was not a permanent employee of the Radio Kashmir
as conceded by respondents and not holding a civil post, than F.R. 56(J) was not attracted rendering the order impugned without jurisdiction at the
fact of it. Petitioners counsel, Mr. Sadiq has placed reliance on a Supreme Court judgment in 1980(1) SLR 847 and 1985(2) Service Law Journal
369.
In the first case Supreme Court has ruled as under:
When a Government servant belongs to a class 1 or class II service or post on regular basis has to be retired compulsorily, rule 56(j)(i) comes to
rescue of the Government. But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which
he has a lien. Similar is the position of officiating hand. Thus we have reached an inevitable conclusion that Rule 56(j) is meant to cover only those
who are in a post on a regular basis i.e. in a substantive capacity and not on an officiating basis only.
In the other judgment Delhi High Court on the same analogy has held as under:
The resort to the power of compulsory retirement by the Railway is wholly unnecessary in case of a temporary railway servant because his
services are liable to be terminated in accordance with the rules governing temporary servant. The servant is equally entitled to opt out of service at
any time. Therefore, our conclusion is that rule 3046(h) cannot be applied to a temporary railway servant because the concept of compulsory
retirement is peculiar to permanent service and has hardly any relevance to temporary servant or servants on officiating basis or on adhoc
appointment.
Even though the point in issue is squarely covered by the Supreme Court Judgment(supra) but respondents counsel Mr. Bhan vainly sought to
project that since petitioner was taking benefit otherwise under Fundamental Rules for purpose of retiring on superannuation, he was equally
covered by F.R. 56(j) and could be compulsorily retired. The submission appears to be a stray one on the face of it because it is not the case of
the respondents in their reply that petitoner was covered by any rule position and that once he was taking a benefit out of it, he could not turn
round and get out of the operation of such rules.
On the contrary, on respondents own showing petitioner was not holding any permanent civil post and was a staff artist on a long contractual
basis. It is not indicated if he was governed by the terms of his contract or by any service rules. In the circumstances it cannot be said or held that
once he was taking the benefit under some rule he was to be covered under the operation of said rule. The fact remains that he was a contractual
employee and not holding any permanent civil post and therefore could not be retired compulsorily by invoking only to a permanent government
servants under the Union as held by the Supreme Court.
Viewed thus, the order impugned dated 29.11.1989 passed by respondent No.2 cannot sustain and is quashed. Respondents are directed to
reinstate the petitoner to his position which he held before passing of the impugned order and to pay him all consequential benefits.