Central Administrative Tribunal - Jodhpur
Pratap Singh vs Union Of India (Uoi) And Ors. on 6 January, 2004
Equivalent citations: 2004(3)SLJ169(CAT)
ORDER J.K. Kaushik, Member (J)
1. Shri Pratap Singh has filed this original application under Section 19 of the Administrative Tribunals Act, 1985 primarily for seeking the following reliefs:
"(i) by an appropriate order or direction, the record of the case may kindly be called for;
(ii) by an appropriate order or direction, the respondents may kindly be directed to regularise the services of the applicant in the department looking to his long satisfactory services in the department;
(iii) by an appropriate order or direction, the respondents may kindly be directed to make payment of pension, commutation and other pensionary benefits to the applicant;
(iv) by an appropriate order or direction, the respondents may kindly be directed to make payment of interest @ 12% on the delayed payment of pension to the applicant;
(v) any other appropriate order or direction, which this Hon'ble Tribunal may deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the applicant."
2. We have heard the learned Counsel for the parties at a considerable length and bestowed our earnest consideration to the pleadings and the records of this case.
3. The admitted factual scenario of this case as culled from the pleadings of the parties depicts that the applicant was initially engaged as casual labour in the respondents' Railway with effect from 18.11.67. He was given the status of graded Khalasi on grant of temporary status with effect from 11.5.74 and paid in the pay scale of Rs. 132-232 i.e. on Group D post. He was granted the pay scale of Rs. 260-400 with effect from 21.8.80 and employed as a temporary mason till his retirement on attaining the age of superannuation on 31.12.2002. The other facet of factual aspect of this case is that the applicant was subjected to screening tests for his absorption against regular establishment on 11.3.85, 12.3.85, 18.5.85 and 5.8.85 and he was issued with an offer for temporary appointment vide letter dated 25.10.85 on the post of Gangman in Group D post. But this was not acceptable to the applicant who insisted for his continuance on the post of TS mason in Group C post. Subsequently, he submitted a representation on dated 7.6.2000 requesting his controlling authority to give him regular appointment against a cadre post of Khalasi and also asserted his regret for earlier refusal on the ground of inadvertence.
4. As regards the factual variances--it has been averred by the respondents in their reply that Annexures A/4 and R/3 thought the same letter, some words are deliberately missed from A/4 which we do not think to have any prejudicial effect on the defence of the respondents: rather the same seems to be due to typographical mistake. The averments have been made in the pleading that the applicant is fully entitled for the reliefs claimed by him in the original application. As per the reply it has been pleaded that since the applicant was not a permanent Railway servant, he is not entitled for the any relief claimed by him for having himself refused for permanent absorption in Railways.
5. The learned Counsel for the applicant has reiterated the facts and grounds raised in the original application and has emphatically argued that the applicant has served the Railway Department for about 35 years continuously. He has rendered about 22 years of service after attaining the temporary service. He was eligible for regularisation on Group C post but was offered appointment only on Group D post, which he refused. He subsequently requested for his regularisation even on Group D post but the respondents did not pay any heed to his request. He has next contended that pension is the consideration for the past satisfactory services, which the applicant had and is not a bounty. He also submitted that there has been conceptual charge in theme of social security benefits and a liberal approach is warranted. He further added that applicant was employed against a regular nature of work, which is rather axiomatic from the long, and uninterrupted continuous service put by him.
6. The learned Counsel for the respondents with his usual vehemence and eloquence, while reiterating the defence of the respondents as set out in the reply, has contended that no one can be granted the service pension until he is regularised in service which the applicant was not. The applicant should thank to himself for the whole episode since he consciously chosen not to accept the absorption on Group D post. He has also submitted that once he has refused the said absorption, there was no question of any reconsideration in the mater and the action of the respondents can not be faulted with by any stretch of imagination. He next contended that whatever was due to him has already been, sincerely, paid to the applicant. He has placed heavy reliance on a decision of Principal Bench of this Tribunal delivered on 1.7.1988, in case of Nanki Devi v. Union of India and Ors., O.A. No. 2477/1997 and has submitted that the same squarely covers the controversy involved in the instant case. Therefore the original application deserves to be dismissed with costs.
7. We have given our anxious thought to the submission made by the learned Counsel for the parties and have taken judicial notice of the various provisions of rules in vogue relating to the controversy we are required to adjudicate upon in this case. As regards the case of Nanki Devi (supra), relied upon by the learned Counsel for the respondents, the facts of that case are quite distinguishable from the facts of the instant case, in as much as the applicant therein claimed to have rendered service as substitute for over ten years which was not supported by any cogent evidence and the Tribunal was not satisfied with the simple assertions adduced on behalf of the applicant therein.
8. The aforesaid decision was completely based on the decision of Apex Court in Ram Kumar and Ors. v. Union of India and Ors., (1987) 33 ATC 404's case (two Judges Bench), which has been relied upon in the subsequent decisions in Union of India and Ors. v. Moti Lal and Ors., 1996(3) SLJ 172, Union of India and Ors. v. Rabia Bikaner etc., 1997(4) SLR 717=1998(1) SLJ 181 (SC). But the judgment of Apex Court in Ram Kumar's case was reviewed by a Bench of three Judges vide Ram Kumar and Ors. v. Union of India, 1996(1) SLJ 116(SC) which was unfortunately not brought to the notice of Supreme Court while deciding the said subsequent cases supra and therefore the decision cited by the learned Counsel for the respondents including the one quoted therein would be per incurium. The main ground of the review in the said case was that the correct material was not placed before the Hon'ble Court and the respondents themselves issued specific circular for grant of pensionary benefits to such employees. It is the settled position of law that if a decision is reviewed, the review judgment shall prevail over the main judgment.
9. The similar matter came up for adjudication before Ahmedabad Bench of the Tribunal in case of Mohanbhai Lakhabhai v. Union of India and Ors.; O.A. No. 419/ 2000 which was decided on by a Bench where one on us i.e. (J.K. Kaushik) was a party to the decision. The same has been dealt with very exhaustively (a copy is being placed on records of this case). However, the issue involved has a far reaching effect and with a view to make this decision as self contained, we find it expedient to reproduce the following excerpts from the same:
"18. The controversy relating to counting on half of the service after grant of the temporary status towards grant of pensionary benefits borne out as per the bare reading of the relevant rules and also remains undisputed in as much as it has also been admitted by the respondents to that extent. The same has already been settled by the judgment dated 24.11.2001 passed by this Bench of the Tribunal in O.A. No. 185/97 (Shri Divehi Valjibhai v. Union of India and Ors.) in which one of us (Mr. G.C. Srivastava, Administrative Member), was a party and thus the same does not remain res integra. In this view of the mater the applicant is entitled to grant of the pensionary benefits since he has rendered more than 10 years qualifying service as per the aforesaid discussion and the rules in force. The pension would of course be on proportionate basis subject to the minimum pension, since full pension become payable on completion of 33 years of service. The original application, therefore, deserves to be allowed on this ground alone. However, very important questions/ issues/contentions have been raised in this case which have far-reaching effect and we would discuss and examine the same to reach to their logical conclusion.
19. The learned Counsel for the applicant has argued that a casual labour as defined in Para 2001(1) of Chapter XX of IREM Vol. II as one whose employment is intermittent, sporadic or extends over short periods or continued from one work to another work. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer. The contentions applicable to permanent and temporary staff did not apply to casual labour. But in practice for various reasons the casual labours have been allowed to continue in service for years and some times for decades. The very fact that these labours have been allowed to continue in service for a very long period indicate that there is need for employment otherwise the Railway could have terminated their services by resorting to the provisions of rules in force. It has been submitted that the applicant in particular and others TS casual labours in general employed in Construction Organisation (as well as in open line) were subjected to number of transfer to various places/units of the Railways. Further, the persons employed continuously for 2-3 years cannot be said to be working on casual basis and there is a presumption that there is regular work. The learned Counsel for the applicant has placed reliance on the observation of the Apex Court in State of Haryana v. Pyara Singh, AIR 1991 page 2130. Their lordship has held as under:
"So far as the work charged employees and casual labourers are concerned, every effort must be made to regularise them as far as possible and as early as possible subject to their fulfilling the qualifications, if any prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his service. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation." While doing so, the Hon'ble Supreme Court further observed "the authorities ought to adopt a positive approach coupled with an empathy for the person."
20. From the perusal of the aforesaid observation of the Apex Court after 2-3 years of continuous working as a casual labour there is a presumption that a regular nature of work is available. We are also supported by a decision of the Apex Court in Jacob M. Puthu Parambil and Ors. v. Kerala State Water Authority and Ors., AIR 1990 SC 2228, wherein their Lordships has held that employees appointed by way of stop gap arrangement and are continued for more than 2 years who were possessing the requisite qualification become entitled for regularisation and they should be regularised but in the present case it has taken about over 16 years to consider the case of applicant for regularisation despite the admitted position that the applicant was continued without any break. In this view of the matter there has been exploitation of the labour and the applicant ought to have been treated as deemed regularised on completion of at least 3 years services i.e. from 5.12.1975 itself whereby his qualifying service would have been about 171/2 years but such course has not been found expedient for the respondents and despite the specific order of this very Bench to examine and consider the case of the applicant sympathetically. The respondents have paid no heed and rejected the representation of the applicant with a close mind and even by thrown the rules over-boat. The learned Counsel for the applicant has also placed reliance on the judgment of Apex Court in Yashwant Hari Katakktar v. Union of India and Ors., 1995 AIR SCW 370 wherein a question came up for consideration as to why the appointment was not permanent even after he had served the Government for 181/2 years. Their Lordship has observed as under:
"It would be travesty of justice if the applicant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The applicant having served the Government for almost two decades it would be unfair to treat him temporary/quasi-permanent. Keeping in view the facts and circumstances of this case we hold that the applicant shall be deemed to have become permanent after he served the Government for such a long period. The services of the applicant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits."
21. Sub-clause (23) of Railway Services (Pension) Rules, 1993 defines the Railway Servant as -- "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 outdoes not include casual labour 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." The word casual labour has been used without any qualification. In our opinion, the law-maker would not have intended to bring the employee employed continuously for number of years and that too on a regular nature of work. Applying the rule of harmonious construction of statues, the employees who have acquired the temporary status and have been continuously employed on regular nature of work would fall within the definition of Railway servant as above.
22. Recently we had a occasion to deal with a case relating to grant of Family Pension to a Temporary Status Casual Labour in case of O.A. No. 316/ 96 Smt. Badian v. Union of India decided on dated 21.6.2002 at this very bench of the Tribunal wherein it has been held that the widow of the TS Casual Labour is entitled for grant of Family Pension. The same was decided by placing reliance on the Apex Court judgment in Ram Kumar and Ors v. Union of India, 1996(1) SLJ 116 (SC) which was are view case in which earlier judgment was reviewed on the ground that the relevant circulars of the Railway Board were not shown to the Court. The Railway Board issued a Circular No. RBE 90/87 which was issued in implementation of recommendations of Fourth Pay Commission and provided for revised instruction for grant of pensionary benefits and was not shown while deciding the case of Ram Kumar and Ors., AIR 1988 SC 390. The extract of the topic terminal benefits is reproduced as under:
"Terminal Benefits 10.1 In partial modification of the Ministry of Railways letter No. F(E) III 78/PN-I/13 dated 21.2.1981, temporary Railway employees who retired on superannuation or on being declared permanently incapacitated for further Railway service by the appropriate Medical Authority after having rendered temporary service of not less than ten years, shall be eligible for grant of superannuation/ invalid pension, retirement gratuity and family pension at the same scale as admissible to permanent employees under the relevant provisions of the Manual of Railway Pension Rules, 1950, and such other orders as may be in force.
10.2 Temporary employees who seek voluntary retirement after completion of 20 years of service shall continue to be eligible for retirement pension and other pensionary benefits like Retirement Gratuity and Family Pension under the relevant provisions of Manual of Railway Pension Rules, 1950 in terms of this Ministry's letter No. E(P&A) I-85/FE4-7 dated 7.11.1986.
10.3 In cases not covered by Paragraphs 10.1 and 10.2 above, the terminal benefits will continue to be admissible as at present underline Manual of Railway Pension Rules, 1950.
Death Benefits
11. In the event of death in harness of temporary Railway servants, their families shall be eligible to Family Pension and Death Gratuity on the same sale as admissible to families of permanent Railway servants under the Manual of Railway Pension Rules, 1950."
23. The issues including judgment of the Apex Court in Union of India and Ors. v. Rabia Bikaner, 1997(4) SLR 717=1998(1) SLJ 181 (SC), which is relied/quoted by the respondent as one of the ground for rejection of the representation of the applicant (i.e. in A/2), wherein it has been held that a casual labour who has been granted temporary status cannot be allowed in pensionary benefits, have been dealt with in that case. We do not find any necessity to repeat here afresh, the discussion made therein. However, the contents of Para 13 of the said judgment is most relevant and are reproduced as under:
"13. Now examining from the other angle the judgment of the Hon'ble Supreme Court in Misc. Application of Ram Kumar v. Union of India 1992(1) SLJ 116, by three Judges, it has been said that the correct law was not brought to the notice of Supreme Court while deciding the earlier case of Ram Kumar i.e., AIR 1988 SC 390. In that views of the matter earlier judgment in Ram Kumar itself become per incuriam and in addition to that it is stood superseded and the judgment in Rabia's case it has been passed solely relying on the earlier Ram Kumar's case which could be considered as per incuriam since the correct position of law and the rule itself has not made available to the Hon'ble Supreme Court. A judgment is law only on the points raised and decided and once the correct material/rule itself is not made available to the particular Court the judgment could only be considered as per incuriam and could not be said to be a judgment in rem so the same would not be made available to other cases."
24. Otherwise also in Rabia's case, the deceased employee had just completed 6 months service whereas in the present case the applicant has completed about over 19 years service. In Rabia's case, the deceased employee was no regularised, whereas in this case the applicant was very much eligible for absorption against regular establishment but his absorption withheld and denied on the wrong pretext. Even the judgment in Yashwant Hari Katakktar (supra) was not brought to the notice of Hon'ble Apex Court while deciding the Rabia's case. Thus the Rabia's case is distinguishable on facts and cannot be applied to the present case.
25. The learned Counsel for the respondents has not been able to make any submission on the point as to why the applicant was not considered for absorption against regular establishment for a period of about 16 years. The letter dated 14.8.98 (A/2) which is passed in pursuance with the judgment dated 18.4.96 in Original Application No. 775/95, also does not indicate as to whether the non-regularisation was due to inherent delay involved in such process, treating a part of his service as qualifying service for pension or else granting of minimum of pension etc., despite specific order.
26. There are catena of judgments of the Apex Court when the Lordships have held that pension and gratuity and no longer and bounty to be distributed by the Government to its employees on the retirement but are valuable rights and property in their hands. The very concept of the pension and gratuity is that certain portion from the salary is taken away and used for payment of pensionary benefits. We find no plausible reason as to when a person who is employed on a job on regular nature and is also paid the due salary when only 50% of his service during that period is counted as qualifying service for pension. The regular absorption is an act, which is solely depending on the whim of the authorities in power. It is very sad state of affairs that person is continued to serve for decades and he is denied the regularisation on the pretext that the post is not available. On the other hand, the very Apex Court has observed that after one has worked for 2-3 years there is a presumption that there is a regular nature of work and i.e., the reason the Hon'ble Supreme Court in case of Yashwant Hari Katakkhar (supra), has categorically held that person who is worked for a long period should be treated as a permanent and shall be entitled to pensionary benefits.
27. As a matter of fact once a person has been continued for a long period of 19 years, there is presumption of regular post against which he was continued. The same issue came before the Cuttack Bench of this Tribunal in Sachi Prusty v. Union of India and Ors., (supra), wherein it has been held that there was no justification for counting the total period of service on casual basis in temporary status for the purpose of pensionary benefits as well as to count the period of service prior to conferment of temporary status for making the employees as eligible for minimum pension. The applicant therein was also appointed as casual mate in Railway on 28.1.1974 and granted temporary status in the year 1981 and he was taken in regular establishment with effect from 1.4.1998. He retired on superannuation with effect from 30.6.1993. He was not paid the pension the ground that his qualifying service came to 8 years 10 months and 14 days after taking into account; 50% of the period of service rendered after getting the temporary status and since he did not have 10 years qualifying service, pension was revised. Para 4 to 9 of the same are relevant and the contents of the same are extract as under:
"4. In support of his contention, learned Counsel for the applicant submitted that there is no reasonable nexus in the decision of the Government to take into account only 50% of the service rendered by an employee after conferment of temporary status, because after conferment of temporary status, an employee gets all the facilities like that of a regular Government servant. He discharges the same and similar duties like that of a permanent/regular employee. As such, counting 50% of the service of such employees, is not at all justified. To substantiate his further limb of argument, it has been pointed out that since the Government itself have taken decision to take into consideration 50% of the service rendered after conferment of temporary status, to make one eligible to get pension, there was no rhyme or reason not to take alike 50% service rendered on casual basis by an employee to make him eligible to get pension. In support of his submission, he has relied upon a decision of the Hon'ble High Court of Orissa rendered in OJC No. 2047/1991 (Settlement Class IV Job Contract Employees Union, Balasore v. State of Orissa and Ors.) disposed of on 24.3.1992 and the decision of the Hon'ble Apex Court of India rendered in the case of Yashwant Hari Katakkhar v. Union of India and Ors., 1995 AIR 370.
5. Article 41 of the Constitution of India obligates the state within the limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to provide assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 43(3) of the Constitution of India requires the state to endeavour to secure, amongst other things, full enjoyment of leisure and social and cultural opportunities. Further the aim of a socialist state is to eliminate in equality in income and status and standards of life. The basic principle of Article 14 is that the citizen is entitled to equality before law and equal protection original application laws. Legislative and executive action may accordingly be sustained if it satisfies the tests of reasonable classification and the rational principle correlated to the object sought to be achieved.
6. Law is well settled in the case of State of Kerala and Ors. v. M. Padanabhan Nair, AIR 1985 SC 356 that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property, in their hands. And employees earns pension in lieu his service rendered to the society during his youth. Retiral benefit is grounded on considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age. It is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch.
7. Here in this instant case, there is also no whisper from either of the sides, the reason for not granting the temporary status soon after completion of certain required number of days of casual work, as per the scheme framed by the Government of India. For conferring temporary status, it is not required to consider about the availability of posts. As such, there is no justification on the part of the Government/respondents not to confer the temporary status on this applicant much earlier than the date it has been done. Further also there is no justification on the part of the respondents to take into consideration 50% of the service rendered by an employee after conferment of temporary status. This has no reasonable basis. It is a settled law that ad-hoc service followed by regularisation will be taken into consideration for determination of seniority. Here in this instant case, casual work is also followed by conferment of temporary status and, thereafter, taken to regular establishment. As such, the respondents ought not to have wiped out the total period of service of the applicant rendered on casual basis/in temporary status.
8. In the case of settlement Class-IV Job Contract Employees Union (supra), the Hon'ble High Court of Orissa have been pleased to observe as follows:
"....For the purpose of calculating the pensionary benefits so much of their earlier service period shall be reckoned, even if there had been breaks in their employment, so as to make them eligible for pension. The necessity of giving this direction has been felt because, if service rendered after regularisation alone shall be counted for pensionary benefits, most of the present incumbents would be denied the same, because to earn pension 10 years minimum service is necessary, which most of the incumbents would be denied the same, because to earn pension 10 years minimum service is necessary, which most of the incumbents at hand would not put in after regularisation, as they would retire before completing this period having been appointed two decades back."
Equally, in the case of Yashwant Hari Katakkhar (supra), the Hon'ble Apex Court of India have been pleased to observe that where somebody is engaged as temporary hand for more than ten years he should not only be regularised but he should be entitled to all pensionary benefits. The Central Administrative Tribunal, Ernakulam Bench, while deciding similar points/issues in Original Application Nos. 843/94, 844/94, 453/94 and 854/94 on 30th day of January, 1995 has been pleased to decide (taking into consideration the decision of the Madras Bench of the Central Administrative Tribunal) that to fix the pension payable to applicants adding 50% of casual service rendered after completing the initial six month's casual service.
9. In view of the discussions made above, there is no basis/grounds to differ from the view already taken by the Central Administrative Tribunal, Ernakulam and Madras Benches. Therefore, taking into consideration the decisions rendered by the Hon'ble Supreme Court of India, Hon'ble High Court of Orissa and our Ernakulam and Madras Benches it is directed that the respondents, for the purpose of calculating the pensionary benefits of the applicant, so much of his earlier service period shall be reckoned, even if there had been breaks in his employment, so as to make him eligible for the minimum pension. His current pension be paid to him within a period of 90 (ninety) days and arrears of pension of the applicant be calculated and paid to him within a period of 120 days from the date of receipt of a copy of this order."
28. We are of considered opinion that the aforesaid judgment also covers the controversy relating to counting the full period of service of the applicant towards grant of pensionary benefit in addition to the other judgments quoted above and the claim of the applicant deserves to be accepted. In this view of the matter, we pass the order as under :
"Viewing the matter from all its complexities and in view of our detailed discussion recorded above, the original application has much merit and the same is hereby allowed. The impugned order dated 14.9.98 (A/2), rejection of the claim of applicant for grant of pension is hereby quashed. The applicant is entitled for all the pensionary benefits on the basis of full service rendered by him treating him as permanent from three years after the date of his initial appointment. This order shall be complied with within a period of three months from the receipt of a copy of the same failing which the respondents shall be liable to pay interest @ 9% p.a. on the due amount, after expiry of the period of three months. No order as to costs."
10. The aforesaid decision also underwent scrutiny in Special Civil Application No. 6164/2003; Union of India v. Mohanbhai Lakhabhai, decided on 5.5.2003 by the High Court of Gujarat and their Lordships have upheld the same as under:
"In this view of the matter, in our opinion, the Tribunal was perfectly justified by holding that the present respondent is entitled to all the pensionary benefits on the basis of full services rendered by him. In the present case, the Railway Authorities have failed to point out that the respondent was not entitled to get temporary status soon after the completion of required number of days as casual labour as per the scheme framed by the Government of India. For conferring temporary status, it is not required to consider the question of availability of post. In our opinion, the Tribunal was justified in holding that there was no justification on the part of the Railway Authorities in not conferring temporary status on the respondent much earlier than the date it has been done. Suffice it to say that we are in total agreement with the reasonings of the Tribunal.
In any case, in view of the judgment rendered by us in the case of Devshi Valji (supra), we see no merit in this petition and is summarily rejected.".
11. While we have no hesitation in following the aforesaid decision in Mohanbhai Lakhabhai's case, we hasten to add that similar proposition of the law has been laid down by the Rajasthan High Court, Jodhpur in case of Kalu v. Union of India and Ors. 2002(3) WLC 8 and the relevant paras are extracted as under :
"(9) In Moti Lal's case, which was decided on 15.2.1996, only earlier decision of Ram Kumar's case was considered which was decided by two Judges Bench of the Supreme Court on 2nd December, 1987 and subsequent three Hon'ble Judges decision of the Supreme Court given in the same case was not brought to the notice of the Supreme Court. It appears that in above same Ram Kumar's case, which was decided on 2nd December, 1987 by the Bench of two Hon'ble Judges, a civil misc. petition was filed, which was decided by the larger Bench of the Supreme Court, consisting of three Hon'ble Judges. In this subsequent larger Bench judgment, reported in 1996(1) S.L.J. 116 (S.C.), Hon'ble Supreme Court, directed the Railway Administration to give effect to the Railway Board's instructions which were issued on 20th January, 1985 for regularisation of the services of the employees against Class III Post. It will be just and proper to quote the relevant portion from the said decision, which is as under:
"Mr. Goburdhan relying upon the Board's instructions issued on 20th January, 1985 says that these people have already worked for more than five years and have become entitled for regularisation in Class III posts. If that be so, We call upon the Railway Administration to give effect to the Boards instructions referred to above and considered claim of 12 persons named below for regularisation as against Class III posts subject to their satisfying the requirements laid down in the Board instructions,"
The question of entitlement of pension of the employees was also considered by the Supreme Court and in last, it is ordered:
"The decision is beneficial to the employees and we direct that the board's decision may be implemented."
12. By applying the above propositions of law to the facts of this case, we find that applicant would be entitled for grant of pensionary benefits and in our considered opinion this original application deserved to be decided on similar lines.
13. Regarding relief relating to regularisation of the applicant, we would also like to point out that the arguments on this point were very scanty. The so-called letter of regular appointment on the Group D post issued on dated 25.10.85, indicates that it is an offer for temporary appointment whereas it was supposed to be a case of absorption against regular establishment. The stands of the respondents seem to be ex facie a plea of volte-face. We were also not appraised by the respondents as to what action was taken on the subsequent representation regarding his request for absorption even against Group D post. No law has been brought to our notice as what course is to be adopted in such cases. Secondly, no reasons are disclosed as regards the regularisation of the applicant against Group C post on which he was uninterruptedly employed for about 22 long years. There is no reason for not treating the applicant as regular on the post of Mason on completion of three years continuous service as we has held in the judgment in Mohanbhai Lakhabhai's case supra. The inescapable conclusion would be that the said decision covers on all fours the controversy involved in the instant case.
14. Viewing the matter from all its complexities and in view of our detailed discussion recorded above, the original application has much merit and the same is hereby allowed. The applicant is entitled for all the pensionary benefits on the basis of full service rendered by him treating him as permanent on completion of three years service from the date of his initial appointment. The respondents are hereby directed to grant the due pensionary benefits, as a result of above declaration, within a period of three months from the date of receipt of a copy of this order, failing which the respondents shall be liable to pay interest @ 9% p.a. on the due amount, after expiry of the period of three months. No order as to costs."