Andhra HC (Pre-Telangana)
The General Manager, South Central ... vs Shaik Abdul Khader on 23 June, 2003
Equivalent citations: 2003(4)ALD560, 2003(6)ALT755, (2004)ILLJ714AP
Author: Bilal Nazki
Bench: Bilal Nazki, E. Dharma Rao
JUDGMENT Bilal Nazki, J.
1. This is a Writ petition filed by the South Central Railway challenging the order of Tribunal passed in O.A. No. 907/2000. The question that was considered by the Tribunal was, whether 50% of the service rendered by the respondent as casual labour could be counted towards qualifying service for the purpose of pension.
2. The facts leading to the filing of the O.A are that the respondent was granted temporary status with effect from 1-1-83. He was absorbed in group-D post with effect from 1-1-95. He contended that, in terms of Master circular No. 54 of 1994 half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service would count for pensionary benefits. This benefit has already been extended to the Project Casual Labour with effect from 1-1-1981. According to the counter affidavit filed by the present petitioners before the Tribunal, they computed the service of the respondent as casual labour from 1-1-83 to 31-12-94 at 11 years 11 months and 30 days. This was reduced by 618 days which was leave without pay. So the net service of the respondent as casual labour was 10 years 3 months 17 days. 50% of it would come to 5 years 1 month and 23 days. Regular service was from 1-1-95 to 29-2-96 i.e, 1 year 1 month 28 days. So the total qualifying service was 6 years 3 months and 21 days and according to the Writ petitioners, because the respondent had the qualifying service of only 6 years 3 months 21 days he was not entitled to get pension. But the respondent contended that he was appointed as casual labour from 6-1-79 in Godavari Bridge Construction-III and was granted temporary status from 1-1-83 and absorbed as Compressor Operator in Engineering Department from 1-1-95, he retired on 29-2-96. According to him he had put in service of 17 years 1 month and 23 days.
3. The factual position is explained and in this fact position it has to be seen whether the respondent was entitled to get his services counted in full from 1-1-83 when he became casual labour or was it incumbent to take only 50% of this service into account for the purpose of pension. The respondent's case is that he was a casual labour from 6-1-79 and was given temporary status from 1-1-83. 50% of service rendered by him from 6-1-79 to 1-1-83 had to be counted whereas the service from 1-1-83 had to be counted in full.
4. The arguments and counter arguments can be appreciated only after going through the relevant rules. Rule -31 of Railway Services (Pension) Rules,1993 lays down;
"31. Counting of service paid from contingencies:- In respect of a railway servant, in service on or after the 22nd day of August, 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely:-
(a) the service paid from contingencies has been in a job involving whole-time employment;
(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned as posts of malis, chowkidars and khalasis;
(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break:
Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service book is available."
5. Subject to conditions laid down in this rule, in respect of a railway servant half of the service paid from contingencies shall have to be taken into account for calculating pensionary benefits on absorption in regular employment. Now the question is, when a person gets a temporary status whether it could be said that he had been absorbed in terms of rule-31 because after absorption the service shall have to be counted keeping in view rule-31.
6. Now different provisions of Master Circular 54 of 1994 shall have to be gone into to which a reference has been made by the Tribunal. Para-20 of the Master Circular No. 54 lays down;
"20. Counting of the period of service of casual labour for pensionary benefits:
Half of the period of service of a casual labour (either than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, the benefit has also been extended to Project Casual Labour."
7. Reference has been made to another extract of para-2005 of Indian Railway Establishment Manual, Volume-II. Sub-para-1 of para 2005(a) lays down;
"Casual labour including Project Casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits."
8. If this sub-para is read with para-20 and also with rule-31, there remains no doubt that on absorption whole of the period for which a casual labour worked after getting temporary status would have to be counted and half of the period has to be counted of the period for which a casual labour worked without being absorbed. Once he is given temporary status that means that he has been absorbed in the department. Even para 2005 (a) has been drafted in the same way because of the fact that even such casual labour who have attained temporary status are allowed to carry forward the leave at their credit in full to the new post on absorption in regular service. Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on in regular service caries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted. Therefore, we do not feel that the Tribunal was wrong in coming to the conclusion it has, although we may not agree with the reasons given by the Tribunal. The view taken by us is further strengthened by mandate of rule-20 of Railway Services (Pension) Rules which lays down;
"20. Commencement of Qualifying service - Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity.
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post.
Provided further that-
(a) .... ...
(b) .... ..."
Therefore, we hold that the respondent was entitled to get the service counted in full from 1-1-83. He was also entitled to get half of the service counted before 1-1-83 from the date he had joined in the railways as casual labour.