Kuldip Singh and; Yogeshwar Dayal, JJ.
1. The Railway Board issued a circular dated 17-9-1965 wherein weightage — in respect of temporary service rendered by the officers — was provided on their permanent absorption in Class I service. The operative part of the circular is as under :
“After taking into account all relevant factors, it has been decided that weightage in seniority shall be granted to temporary officers on the basis of half the total number of years of continuous service in working post on Railways prior to their permanent absorption in Class I subject to a maximum weightage of five years.”
2. The question before the High Court was whether Lala Jagannath Prasad, respondent in the appeal herein, was entitled to the benefit of the above-quoted circular. The High Court answered the question in the affirmative and in favour of the respondent. This appeal by the Railways is against the judgment of the High Court.
3. Lala Jagannath Prasad joined service as temporary Assistant Engineer on 30-1-1957. He submitted resignation from the said post which was accepted with effect from 17-1-1960. Thereafter he submitted a representation to the railway authorities for granting him re-employment. The Railway accepted the representation and by order dated 13-3-1961 appointed the respondent afresh as temporary Assistant Engineer. He was confirmed as such with effect from 29-3-1966.
4. It is obvious from the facts stated in para above that from 17-1-1960 to 13-10-1960 the respondent was not in the employment of the Railways. There was a break in his service and it is not disputed that no specific order condoning the break was issued by any of the railway authorities. From the simple language of the circular it is clear that weightage can only be claimed in respect of continuous temporary service in the Railways. The continuous service of the respondent as temporary Assistant Engineer is only with effect from 13-3-1961 and as such he is entitled to weightage in respect of his service counted from 13-3-1961. The respondent is not entitled to weightage for the period of his temporary service from 30-1-1957 to 13-10-1960. There are two periods of temporary service so far as respondent is concerned. He is only entitled to weightage in respect of the latter period that is from 13-3-1961. In our view, the High Court fell into patent error in granting weightage to the respondent on the basis of his service from 30-1-1957.
5. Mr K. Madhava Reddy, learned counsel appearing for the respondent, has contended that on fresh appointment the respondent was given an initial start of Rs 450 in the pay scale of Rs 400-950, he was directed to be placed at the bottom of the seniority amongst the temporary Assistant Engineers of 1956 batch, he was not placed on probation and was not sent on training. According to him these factors go to show that the break in service was impliedly condoned by the railways. We do not agree. We have been taken through the offer of appointment dated 9-3-1961 which specifically states that the respondent was being given a fresh appointment on the terms and conditions contained in the said offer. In the facts of the present case, it is not possible to hold that the railway authorities intended to condone the break in the service of the respondent at any stage.
6. We, therefore, allow the appeal, set aside the impugned judgments of the High Court and dismiss the writ petition filed by Lala Jagannath Prasad before the High Court. No costs.
7. It is not disputed by the learned counsel for the parties that the respondent has since retired from service. Despite the view we have taken, we direct the railway authorities not to vary to his detriment or reduce the pension and other retiral benefits which the respondent is already drawing or has drawn. Even if any benefit has been given to the respondent as a result of the High Court judgment the same shall not be withdrawn.