Central Administrative Tribunal - Delhi
Smt. Uma Kumari Widow Of Late Shri Udai ... vs Union Of India (Uoi) Through General ... on 10 December, 2007
ORDER Meera Chhibber, Member (J)
1. By this O.A., applicant has sought the following relief:
8.1 to allow the O.A. and quash the impugned order dated 14.2.2002 (A-1) and order dated 3.8.2006 (A-II) and consequently;
8.2 to direct the respondents to grant family pension and to refund the GIS installments so recovered from pay bills of the deceased, and also to treat him temporary status railway employee on completion of 120 days in terms of Rule 206, IREM-II, 1990, with interest payable from 1.4.2000 @ 18% p.a. 8.3 to direct the respondents to grant and release compassionate appointment in Group D post in favor of the applicant.
However, at the time of arguments, he submitted he would be pressing only the claim of family pension.
2. It is stated by the applicant that her husband, Late Shri Udai Pratap Singh, was engaged as casual laborer on 13.1.1982. He was appointed as Mobile Booking Clerk in the grade of Rs. 975-1540/- w.e.f. 24.5.1986 at Railway Station Tundla under DRM, Allahabad. He continued to work for more than 14 years as Mobile Booking Clerk. Ultimately, he died on 19.02.2000, leaving behind four dependants.
3. It is stated that applicants husband ought to have been granted temporary status after 120 days i.e. w.e.f. 24.9.1986, but he was wrongly granted temporary status w.e.f. 7.7.1990 by taking his date of appointment as 20.02.1990. In number of cases, temporary status has been granted to the employees from the initial date of appointment e.g. Hem Raj (Annexure A-6) and Jagdish Singh Rawat (Annexure A-7).
4. Applicants husband was called for screening test also on 19.4.1994 vides letter-dated 7.4.1994, which is evident from order-dated 3.8.2006. However, he was denied regularization on a wrong ground that he had failed in Zonal Training School. Applicant has stated this is absolutely wrong reasoning, as it has already been held in catena of judgments that as per respondents own letter dated 21.4.1982 and 20.4.1985, it was not prescribed that applicants, who had been engaged as Mobile Booking Clerks before 17.11.1986 should undergo any training because his regularization was in the nature of a special recruitment which was to be governed by the conditions prescribed in the aforesaid letters (page 47).
5. It is stated by the applicant that her husband is fully covered by the judgment dated 30th April, 2004 passed in OA No. 558/2002, as the deceased was also appointed on 24.05.1986, i.e. prior to 17.11.1986 and was having more than three years of service, therefore, it was not even required to send him for training, as such that cannot be a bar for his regularization. It is also submitted by the applicant, an amount of Rs. 30/- per month was being deduced from her husbands salary like any other regular employees, yet she has not been granted family pension in spite of representations dated 27.12.2001, 21.10.2002, 13.11.2002 20.6.2004, 26.04.2005, 19.09.2005 and 20.10.2005. She also relied on the judgments given by this Tribunal in O made by the applicant in this regard. O.A. No. 284/2005, Anita v. Union of India and Ors. (Decided on 17.01.20006), OA558/2002, Nand Kishore and Ors. v. Union of India (decided on 30.04.2004), Judgment dated 11.5.2005 passed by the Division Bench of Hon'ble Gujarat High Court in the case of Rukhiben Rupabhai v. Union of India and Ors. 2006 (2) ATJ 1, Judgment dated 6.8.1990 passed by 3 Judges of Hon'ble Supreme Court in the case of Ram Kumar and Ors. v. Union of India and Ors., 1996 (1) SLJ 116 etc. etc. She has thus prayed that respondents be directed to grant her family pension.
6. Respondents have opposed this OA. They have submitted that applicant's husband, Late Shri Udai Pratap Singh, worked as Mobile Booking Clerk from 13.1.1982 to 31.7.1986 and was re-engaged as Mobile Booking Clerk at TDL vide order dated 20.02.1990. He was granted temporary status after completion of 120 days service on 7.7.1990 in the grade of Rs. 975-1540/-. After completion of 3 years service, his name was sent along with other candidates for regularization vide letter-dated 23.12.1993. After screening, his name was kept on provisional panel as Commercial Clerk, but he died on 19.02.2000. Applicant claimed family pension, but she was informed that since her husband was not regularized, she cannot be given family pension.
7. The applicant had earlier filed OA No. 215/2006, which was disposed off on 10.02.2006 by directing respondents to apply their mind to the judgments in the cases of Anita Devi (supra), Smt. Rama Devi (supra) etc. and to decide the same within three months from the date of receipt of a copy of the representation. Pursuant to the directions, respondents have issued order dated 03.08.2006 stating therein that services of Late Shri Udai Pratap Singh were not regularized and was continuing as non-paneled Mobile Booking Clerk with temporary status till the date of his death, therefore, applicant is not entitled to family pension, but Service Gratuity amounting to Rs. 26, 608/- had already been paid to her. However, respondents have now admitted that date of temporary status of Late Shri Udai Pratap Singh has been changed and he was allowed temporary status w.e.f. 0.04.1990 and the difference of pay are being paid.
8. Respondents have placed reliance on the judgments given by the Hon'ble Supreme Court in the case of National Institute of Technology and Ors. v. Niraj Kumar Singh in C.A. No. 429/2007 decided on 2.2.2007.
9. In the rejoinder, applicant has stated that she has already been given compassionate appointment as Substitute vide Memos dated 15.11.2006 and 18.4.2007. She has also relied on the result of the screening held in 1995 (Annexure A-12 page 76) wherein her husbands name was shown at serial No. 17. She has further relied on Annexure 7-A (page 78) to show that respondents had themselves stated that regularization of the services of the candidates of the provisional panel would be done after a certificate was given by Sr. DCM/ALD in individual case, that the candidate was initially engaged as M.B.C. and has worked during the period shown for screening as M.B.C. and not in any other category. Therefore, the only requirement was to give the certificate before regularizing the deceased employee.
10. Counsel for applicant has also relied on Railway Boards letter dated 3rd July, 2002, to state that even as per this letter, it is clear that those casual laborers who had been screened but had expired before the issue of panel of screening, the settlement dues to the family of deceased employee should be paid as if the deceased employee was deemed to have been regularized on the date of his death (page 82).
11. Respondents have filled additional affidavit wherein it is stated that training was necessary for Goods Clerk and Coaching Clerk as per Indian Railway Establishment Manual page 12, Para 128 (ii). They have further submitted that as per Chapter III (Para 303) of the Indian Railway Establishment Manual also, it is clear that the candidates who are sent for initial training to Training Schools will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts. Those, who join the subsequent courses for any reason whatsoever, and those who pass the examination in subsequent chances, will rank junior to those who had passed the examination in earlier courses. Respondents have categorically stated that services of the deceased employee were not regularized. They have also referred to the Larger Full Bench judgments dated 5.9.2007 passed in OA No. 1722 of 2005 with connected matters, wherein it has been held as under:
19. In matters of pension, railway employees were governed initially by the Manual of Railway Pension Rules, 1950. Amendments were brought from time to time. As late as on 15.4.1987 on the basis of the recommendations of the 4th Pay Commission, there were amendments brought in to take within its fold temporary Railway servants also for grant of pension. We may at once point out that it cannot be disputed that the claim for family pension can arise, only in cases where an incumbent himself would have been entitled to pension; since claims for family pension cannot stand by itself. Railway Services (Pension) Rules, 1993, had been brought into effect from 3.12.1993 by the President, in exercise of powers under Article 309 of Constitution of India in suppression of all existing rules and orders. It had been made clear that the rules were not to apply to Railway servants appointed after 1.1.2004. We have to proceed on the basic premises that the right for pension is not a common law right but only a privilege admissible to a person emanating from statute/orders governing the subject. Normally, if a person or a class of persons are not brought within the ambit of pension payment, it may not be possible for a court, to direct that persons so excluded nevertheless will have to be brought within the coverage, only for the reason that the Court considers it just or equitable. A policy decision of the Government requires to be kept undisturbed, unless, of course, on the face of hostile discrimination.
20. Under Rule 2 of the Rules, it has been made clear that the rules will be applicable to Railway servants, as classified. The expression used is Railway Servant and it covers also a person, if his term of appointment specifically provided for it. The term `Railway servant is defined under Rule 3 (23) as following:
railway servant means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding a post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labor or Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control.
Therefore, ex facie it is clear that a casual laborer will not be deemed to be under the coverage of the Pension Rules.
Respondents have thus prayed that the O.A. may be dismissed.
12. I have heard both the counsel and perused the pleadings as well.
13. Counsel for applicant has strenuously argued that in earlier judgments, it had been held that there was no need for the Mobile Booking Clerks to be sent on training and since the deceased employee was already screened, he ought to have been regularized by the respondents. This clearly shows that applicants husband was never regularized. As per applicants own averments, he was screened as back as in 1995/1996, whereas he died in the year 2000, therefore, there was ample time for him to take up the matter with the authorities during his life time. Admittedly no such effort was ever made by the deceased employee. He had thus acquiesced to the situation and remained not regularized till the date of his death, therefore, now it is not open to the applicant, to say that her husband should have been regularized and that she should be paid family pension.
14. Applicant has relied on certain judgments, viz. Anita v. Union of India and Ors., Nand Kishore and Ors. v. Union of India and Ors., Rukhiben Rupabhai v. Union of India and Ors., Ram Kumar and Ors. v. Union of India and Ors. etc. However, all these judgments have already been taken into consideration by the Larger Full Bench in the case of Smt. Bhagwati Devi v. Union of India in OA No. 1722/2005 and other connected cases decided on 5th September 2007. After referring to all these judgments viz. Anita Devi v. Union of India and Ors., Smt. Latifan v. Union of India and Ors., Geeta Rani Santra v. Union of India and Ors., Rukhiben Rupabhai v. Union of India and Ors., Ram Kumar and Ors. v. Union of India and Ors., Smt. Vallam Badia v. Union of India and Ors., Ram Kumar etc. The Larger Full Bench has come to the conclusion that there cannot be any doubt that persons with temporary status, is eligible for pension, only if he is regularized, therefore, no question of payment of family pension arises in the eventuality of his death, before this condition is satisfied.
15. It is relevant to quota relevant paragraphs from the Larger Full Bench judgment:
6. After referring to all the judgments relied upon by both the counsel it was held that Railway Services (Pension) Rules, 1993 apply to railway Servants as per Rule-2 and Railway servant as defined under Rule 3(23) reads as follows:
railway servant means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding a post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labor or Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control.
Therefore, ex facie it is clear that a casual laborer will not be deemed to be under the coverage of the Pension Rules.
7. Similarly, Rule 75, which deals with family pension also applied to Railway servants only. It was thus held that if any person engaged in the Railway service, does not satisfy the definition of Railway Servant, it may not be logical for us, nevertheless, to declare that he requires to be brought inside, de hors the restriction so spoken. These appear to be elementary principles, while interpreting the provisions of the Statute. Reliance was placed on judgment of Hon'ble Supreme Court in the case of Prabhu Narain and Ors. v. State of U.P. 2004 (13) SCC 662 wherein it was held as follows:
No doubt pension is not a bounty, it is valuable right given to an employee, but in the first place it must be shown that the employee is entitled to pension under a particular rule and the Scheme as the case may be.
8. Reference was also made to Rabia Bikaners judgment wherein the exact question posed was whether the widow of a casual labourer in Railway Establishment, who died after putting in six months service and obtaining the status of a temporary workman but before his appointment to a temporary post after screening is entitled to family pension under the 1964 Family Pension Scheme'. It was found that clinches the issue.
9. After holding that no positive directions were given by Hon'ble Supreme Court in Ram Kumar-II to grant family pension to the widows of Casual Labor, it was finally held by the Full Bench as follows:
We do not think there has been any provision incorporated, which even in a subtle manner, leads one to presume that a temporary employee is equated with a person, who under certain circumstances, gets a temporary status. As pointed out by the Jaipur Bench in SLR 2005 (7) 414, the two concepts are totally different. By getting a temporary status, the door is open to a casual laborer for onward regularization and he gets certain benefits like pay allowances, etc. equal to his counterparts. But for certain other benefits of substantive nature, he is obliged to wait. The provision is that on regularization alone, it may be possible for him to get his 50% of the temporary status service counted for pension. It really makes the position abundantly clear. Under the Pension Rules, Rule 20 of Chapter III refers to qualifying service for persons, which is also a pointer. Normally qualifying service of a railway servant is to commence from the date he takes charge of the post, to which he is appointed either substantively or in an officiating or temporary capacity. There cannot be, therefore, any doubt that person with temporary status is eligible for pension only if he is regularized and, therefore, no question of payment of family pension arises in the eventuality of his death, before this condition is satisfied.
10. It was held the matter is now finally concluded in the matter of ICAR and Anr. v. Smt. Santosh 2007 (2) AISLJ SC 231.
11. It is most relevant to note that even Railway Boards circular dated 03.7.2002 was taken note of by the Full Bench and it was observed that the expression family pension doesn't find a place in the circular. When Pension Rules are in force, directly issued under the authority of Article 309 of the Constitution, any administrative orders, will have only limited operation, and we have to note the restriction imposed by Rule 75 (2) prescribing the minimum service to be rendered. Resultantly reference was answered as follows:
Legal representatives of a casual laborer may not be entitled to benefit of family pension although the deceased employee might have attained temporary status in accordance with the relevant rules. It is essential that before his death, he should have been subjected to screening, and should have been regularized in service, which only enables the legal representatives to claim the benefit of family pension. This will also be subject to the conditions laid down under the provisions of the Railway Service (Pension) Rules, 1993 or circulars issued from time to time.
From above, it is clear that not only the employee should have been screened but regularized also for claiming family pension.
16. In the instant case, though applicant has shown her husbands name was on the panel and he was screened, but admittedly he was not regularized, therefore, in view of Larger Full Benchs decision, the relief, as prayed for, cannot be given. Respondents have stated deceased employees temporary status date has been shifted to an earlier date, i.e. 20.04.1990, and the difference in salary is being paid. In case the same has not been paid, it should be paid within three months from the date of receipt of a copy of this order. O.A. is accordingly disposed off. There shall be no order as to costs.