Premilaben B Gohil vs Union Of India & 3 on 9 July, 2015

[Cites 4, Cited by 4]

Gujarat High Court

Premilaben B Gohil vs Union Of India & 3 on 9 July, 2015

1. By way of this petition, the petitioner has challenged judgment and order dated 9-4-2013 passed by the Central Administrative Tribunal in Original Application No.298 of 2012 with MA No.355 of 2012 and order passed in Review Application No.8 of 2013 in Original Application No.298 of 2012 dated 23-7-2013 whereby the respondent was directed to reconsider the case of the petitioner to grant family pension to the widow of the deceased employee who was not regularized because of the omission on the part of respondents.

2. Facts in short are that husband of the petitioner was appointed as Jeep Driver(Casual) on 17-1-1974 and was granted temporary status on 1-1-1981 vide Memo dated 28-10-1996 maintaining his lien by Rajkot Division. As per the scheme framed by the Railway Board pursuant to the directions of the Hon'ble Supreme Court in Civil Appeal No.7145 of 2005 known as "Indrapal Yadav case", husband of the petitioner was due for temporary status on completion of one year service as a casual labour and he was to be absorbed against the vacancy. As there were vacancies of sanctioned post of Driver and as he was working on the said post, he was issued with free duty pass on 20-9-1984 for screening and was screened in September, 1984 and formal order of absorption was Page 2 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT required to be issued against sanctioned post, however, it was delayed without assigning any reason and husband of the petitioner died suddenly on 19-8-1988. As formal order of regularization was not issued in favour of deceased employee, the petitioner being wife of the deceased employee was denied the benefit of family pension. The petitioner therefore approached before Central Administrative Tribunal by filing Original Application No.196 of 2010 with MA No.233 of 2010. However, said petition was disposed of vide order dated 16-12-2011 directing the respondents to reconsider the case for granting family pension to the petitioner. As the petitioner received a communication on 2-4-2012 from the office of the respondent No.2 stating that as the husband of the petitioner passed away prior to regularization, he cannot be deemed to be regularized and hence, pensionary benefit cannot be granted to the petitioner. The petitioner therefore preferred Original Application No.298 of 2012 before Central Administrative Tribunal. However, the said application was dismissed vide impugned judgment and order dated dated 9-4-2013 passed in Original Application No.298 of 2012. Review Application No.8 of 2013 filed in the said Original Application was also rejected vide order dated 23-7-2013. Hence, the present petition.

3. Mr. Gogia, the learned advocate for the petitioner contended that the learned Tribunal committed an error in rejecting the Original Application as well as Review Application inspite of the fact that earlier, in the first round of litigation, the case of the petitioner was found to be proper and respondent authorities were directed to Page 3 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT reconsider the case of the petitioner. It has been observed by the learned Tribunal in para 13 on pages 54 and 55 as under:

"13. In the light of the above, this OA is disposed of requiring the respondent No.1 to examine whatever records are available and the documents produced by the present applicant and to take a categorical view regarding the claim for "deemed regularisation" of the deceased employee and the consequent effect of such "deemed regularisation" if so decided. If it is found that the deceased employee was actually found fit to be regularised, but could not be included in the panel circulated vide letter dated 05-12-88 of the Deputy Chief Engineer because of his untimely death about three and a half months prior to the issue of the letter dated 08-12-1988 and that his juniors were included in the said panel, the claim of the applicant in the present OA with respect to pension could be regulated by respondent No.1, in the light of the judgment of the Hon'ble Supreme Court in Civil Appeal No.7145 of 2005 along with the provisions of IREM, Railway Servants Pension Rules and the extant instructions on the subject. ....."

3.1 Drawing our attention towards the particulars of service of the deceased employee mentioned on page 65A, he pointed out that husband of the petitioner was placed in the basic pay of Rs.1090/- in the pay scale of Rs.950-1500 and annual increment was granted as on 1-1-1988 on the post of driver. He took us through noting made by the department on page 133 wherein it was stated that decision to create the post was taken on 28-1-1984 and on page 134, it was noted in para 3 as under:

"3. Details of the staff to be considered for creation of the posts were got collected, got vetted by the associated accounts and then finally the number of posts required to be created against the second phase of 40% construction reserve have been vetted by the office of Dy.FA&CAO(C)ADI. A vetted Page 4 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT statement is placed at P.301 c."

3.2 He took us through para 3 on page 135 and contended that Deputy Chief Engineer(C), Headquarters has stated that as and when posts are created, screening will be compiled. Para 3 on page 135 reads as under:

"3. The representatives of both the trade unions have been consulted regarding the staff to be called for screening in connection with these construction reserve posts. They have opined that the eligibility of all casual labourers working under different XENs, under CE(C)ADI, should be taken into consideration while screening is done. The list of the casual labourers, to be made available to the Screening Committee, has been compiled accordingly and the screening is likely to be held immediately the posts are created."

3.3 Mr.Gogia further pointed out that the Memorandum dated 2-12-1988 issued by Dy.CE(C), West, ADI on page 187 and letter dated 5-12-1988 issued by Dy.CE(C), West, ADI, to Dy.CE(S&C), BRC, Dy.CSTE(C)ADI, Dy.CE(C) Bhuj/Ajmer, XEN(C) I & II, ADI, XEN(C), JP, JAM and DEE(C)ADI on page 188 should be considered more particularly in case of omission on the part of the respondents. He also took us through the procedure to be applied in respect of recruitment of Class IV railway servants more particularly Rule 179(xiii)(b) and (c), copy of which is produced on record on page 206. Rule 179(xiii)(b) and (c) read as under:

"(xiii) Casual Labour, Substitutes and Temporary hands:

                       (a)         ....




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               C/SCA/16866/2013                                               JUDGMENT



                       (b)      Substitutes, casual and temporary workmen

who acquire temporary status as a result of having worked on other than projects for more than 120 days and for 360 days on projects or other casual labour with more than 120 days or 360 days service, as the case may be should be considered for regular employment without having to go through Employment Exchanges. Such of the workmen as join service before attaining the age of 25 years may be allowed relaxation of maximum age limit prescribed for Group 'D' posts to the extent of their total service, which may be either continuous or broken periods.

(c) A register should be maintained by all Divisions concerned to indicate the names of casual labour, substitutes and temporary workmen who have rendered 6 months service either continuous or in broken periods, for the purpose of future employment as casual workmen and also as regular employees, provided they are eligible for regular employment.

The names should be recorded strictly in the order of their taking up casual appointment at the initial stage and for the purpose of empanelment for regular Group 'D' posts, they should as far as possible,be selected in the order maintained in the aforesaid registers. In showing preference to casual labour over other outsiders due consideration and weightage should be given to the knowledge and experience gained by them. Other conditions being equal, total length of service as casual labour, either continuous or in broken periods, irrespective of whether they have attained the temporary status or not, should be taken into account so as to ensure that casual labour who are senior by virtue of longer service are not left out."

3.4 Mr.Gogia, relying on a decision of the Hon'ble Supreme Court in the case of Union of India Vs. Hemraj Singh Chauhan reported in 2010 LawSuit (SC) page 99, alternatively submitted that the respondents may be directed to take a sympathetic view considering the pathetic situation of the petitioner. It has been observed in paragraph No.49 of the Hemraj Singh Chauhan (supra) as Page 6 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT under:

"49. Therefore, this Court accepts the arguments of the learned counsel for the appellants that Rule 4(2) cannot be construed to have any retrospective operation and it will operate prospectively. But in the facts and circumstances of the case, the Court can, especially having regard to its power under Article 142 of the Constitution, give suitable directions in order to mitigate the hardship and denial of legitimate rights of the employees. The Court is satisfied that in this case for the delayed exercise of statutory function the Government has not offered any plausible explanation. The respondents cannot be made in any way responsible for the delay. In such a situation, as in the instant case, the directions given by the High Court cannot be said to be unreasonable. In any event this Court reiterates those very directions in exercise of its power under Article 142 of the Constitution of India subject to the only rider that in normal cases the provision of Rule 4(2) of the said Cadre Rules cannot be construed retrospectively."

4. Learned advocate for the respondent, Ms.Archana U. Amin took us through the impugned judgment of the Central Administrative Tribunal and contended that relying on the decisions of the Hon'ble Supreme Court in the case of General Manager, Western Railway & Ors. Vs. Chanda Devi reported in 2008(2) SCC page 108 and Union of India & Ors. Vs. Rukhiben Rupabhai rendered in Civil Appeal No.7145 of 2005 dated 21-7-2011, it has been observed by the learned Tribunal in paras 13 and 15 of the impugned order as under:

"13. Ms.R.R.Patel, learned counsel for the respondents drew my attention to the decision of Hon'ble Supreme Court of India dated 21-7-2011 in Union of India & Ors. v. Rukhiben Rupabhai (Civil Appeal No.7145/2005. In this case Hon'ble Supreme Court held that the widow of a casual employee is not entitled to pensionary benefits. Relying on its earlier decision in General Manager, North Western Railway & Ors. v. Chanda Devi, 2008(2) SCC 108, Hon'ble Page 7 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT Supreme Court in Rukhiben Rupabhai's case held:

" ......... when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefore. It is for the legislature to put the employees to (sic) an establishment in different categories."

His Lordship, D.K.Jain, J., went on saying:

"what was protected by conferring temporary status upon a casual employee was his service and by reason thereof the Pension Rules were not made applicable. A workman had not been and could not have been given a status to which he was not entitled to.""

14. ....

15. In the light of the legal position which can be discerned from the aforequoted judgments of the Hon'ble Supreme Court, one can easily come to the conclusion that no casual labourer or a casual labourer with a temporary status can ever claim a status of permanent employee until he has been confirmedly regularized in the service of the Railway establishment. It may be a cruel game of destiny that Shri Bachubhai's life was snatched away just immediately prior to his regularization. It may be yet another play of the providence that his juniors in the same list of casual labourers with temporary status have been appointed within 3 ½ months after the death of Shri Bachubhai. Assuming for argument's sake that annexures A-7 and A-8 are the steps taken by the respondents for regularizing the service of Shri Bhachubhai, since no regularization per se had not taken place, in the light of the Hon'ble Supreme Court 's rulings in Chanda Devi and Rukhiben Rupabhai, the Late Shri Bachubhai could not have been "Deemed to be regularized.""

4.1 She further contended that husband of the petitioner had expired on 19-8-1988 and thereafter decision was taken by the respondent in 1988 and therefore, though the husband Page 8 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT of the petitioner was screened and found suitable, it is the fact that on the date on which the husband of the petitioner died, there was no sanctioned post and post was sanctioned only on 2-12-1988 and therefore, the benefit could not be given to the petitioner. She also contended that Central Administrative Tribunal while considering the case of the petitioner and decision of the Hon'ble Supreme Court has observed in para 16 of the impugned judgment and order as under:

"16. In the light of the law as laid down by Hon'ble Supreme Court, I am not able to find fault with the Annexure A-1 impugned order passed by the respondents, although there had been some directions issued by this Tribunal to them. The law laid down by the Hon'ble Supreme Court under Article 141 of the Constitution of India is binding on all courts including this Tribunal. Therefore, it goes without saying that the contention of the applicant that the Late Shri Bachubhai ought to have been treated by the respondents as regularized in service prior to his death, is not legally sustainable."

5. We have heard learned advocates appearing for the respective parties.

6. Considering the rival contentions raised on behalf of the respective parties, it appears that decision was taken by the respondent in the year 1984 and on that basis, procedure was taken but decision was not resulted into executive order or official order before the death of the deceased employee and official order was passed only on 2-12-1988. Therefore, on the date of death of the deceased-husband of the petitioner, there was no sanctioned post. In other words, as the husband of the petitioner passed away prior to issuance of order sanctioning posts, he was not deemed to be regularized and Page 9 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM C/SCA/16866/2013 JUDGMENT hence, pensionary benefit was denied to the petitioner. In the said circumstances, we are of the opinion that we would not be able to take a contrary stand different from what has been taken by Central Administrative Tribunal in its judgment. We are in complete agreement with the reasons given by and the findings arrived at by Central Administrative Tribunal.

7. In view of the above, the present petition is rejected. While confirming the impugned judgment and order of Central Administrative Tribunal, we expect and hope that if a representation is made by the petitioner within three months, the highest authority of the Western Railway will consider the case of the petitioner within six months from the date of receipt of representation sympathetically and as an exceptional case considering the fact that husband of the petitioner had fulfilled all the criteria but for the delay on the part of the respondent authorities in issuing the order sanctioning the posts, family pension is denied to the widow of the deceased employee.

(K.S.JHAVERI, J.) (G.B.SHAH, J.) RADHAN Page 10 of 10 SPECIAL CIVIL APPLICATION/16866/2013 16/07/2015 12:04:56 AM

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Gujarat High Court