Central Administrative Tribunal - Patna
Nand Kishore Singh vs Posts on 2 July, 2024
1 OA/050/00372/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00372/2021
050/00
Reserved on : 03.05.2024
Pronounced on : 02.07.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Nand Kishore Singh, Retd T.S. Casual Labour, (Generator
Operator) at Samastipur Head Post Office in Samastipur Postal
Division, Son of late Mahabir Singh Morsand, Resident of Village
& P.O.-Malpur District-Samastipur,
Samastipur, 848113.
.......... Applicant..
-Versus
Versus-
1. Union of India Secretary, Ministry of Communication,
Department of Posts, New Delhi-110001.
110001.
2. The Director General, Department of Post, Dak Bhawan, Sansad
Marg, New Delhi-110001.
3. The Chief Post Master General, Bihar Circle G.P.O. Complex,
Patna-800001.
4. The Post Master General, East Region Bhagalpur at Patna 800001.
5. (Postal) Patna-800001.
The Director of Accounts (Postal),
6. Superintendent of Post Offices, Samastipur Division, Samastipur--
848101.
........Respondents..
For Applicant:
Applicant:- Shri S.K. Tiwary, Advocate.
For Respondents:
Respondents:- Shri A.K. Singh, Learned Additional Standing Counsel.
ORDER
AS PER:
PER:- AJAY PRATAP SINGH, MEMBER[JUDICIAL]
1. By way of present Original Application under Section 19 of Administrative Tribunals, Act 1985 is seeking direction to respondents to settle his pension w.e.f. 31.12.2020 and grant pension and pensionary benefits admissible under Central Civil Services (Pension) Rules 1972 ((in in 1972)) with all consequential benefits. So also applicant is short Rules 1972 seeking direction to respondents to commute arrears of pension and its benefits with 10% interest from the date of entitlement to date of actual payment.
2 OA/050/00372/2021 PRAYER
2. Applicant has claimed following main reliefs (extracted from OA) is under:
under:-
"8(i) The applicant humbly prays that the respondents may be directed to finalize his pension w.e.f. 31.12.2020 and its benefits under CCS (Pension) Rules 1972 and consequential benefits immediately.
8(ii) The applicant further prays that arrears of the pension and its benefits with 10% interest inter may be granted.
8(iii) Any relief/reliefs may be granted to the applicant for ends of justice."
FACTS IN BRIEF
3. The shorn of unnecessary details, briefly stated facts adumbrated in the OA by that applicant that in year 1984 he was initially appointed aass Casual Labour, (Generator Operator) at Samastipur Head Post Office in Samastipur Postal Division and conferred with Temporary Status w.e.f. 29.11.1989. Respondents have issue issued Temporary Status Scheme 1989, providing that Causal Labaour with Temporary Status Status who had completed three years continuous services as Temporary Status casual labour would be treated at par with Group Group-D D employees and respondents have informed applicant vide memo dated 19.07.1991 that he had been granted status at par with regular Group-D D employee w.e.f. 29.11.1989 and applicant stood superannuated on 31.12.2020. Respondents have issued certificate stating that applicant has been superannuated on 31.12.2020. Applicant has been approaching respondents for releasing pension and other benefits by counting of 50% service of period of Temporary Status but verbally informed that he has not completed 10 years of qualifying service required for grant of pension under Rules 1972 and also not absorbed against the Group Group-D D post, hence could not be granted pension and pensionary benefits.
4. It is also the case of applicant that applicant is entitled for reckoning qualifying service period starting from 1984 till date of grant of Temporary Status w.e.f. 29.11.1989 and superannuated on 31.12.2020.
5. Per Contra,, respondents have contested the claim of applicant by filing Written Statement by Respondent no.3 and made averments that applicant was engaged as Casual Generator Operator for maintenance of Generator of Samastipur HO and conferred Temporary St Status atus w.e.f.
3 OA/050/00372/2021 29.11.1989 in light of department letter dated 12.04.1991. Applicant has refused his promotion from Temporary Status Generator Operator to Group--D D post and submitted application dated 05.03.2015 for refusal of promotion and without being regula regularized rized applicant retired on 31.12.2020. It is also stated that applicant is not eligible for pension under Rules 1972 as applicant was never regularized/absorbed in Group Group-D D post and also refused his promotion to the post of regular Group Group-D. Applicant has nott completed minimum qualifying service of 10 years required for pension and pensionary benefits. Applicant has never been absorbed against Group Group-D D post and his services cannot be reckoned as qualifying services for pensionary benefits under Rule 14, GID(2) GID(2). The DA(P),Pen-I/T-II/ II/ Samastipur Dn/7833 dated 20.10.2020 has also informed applicant not been regularized till date and not entitled for pension under Rules 1972.
SUBMISSIONS
6. Shri S.K. Tiwary, learned counsel for applicant argued that:-
that:
(i) Applicant was initially itially appointed as Casual Laboaur at Samastipur Postal Division in year 1984, granted Temporary Status w.e.f. 29.11.1989 and after completing three years as Temporary Status casual labour was treated at par with regular Group-D D employees and his status was was at par of regular Group-D D employees and pension under Rule 1972 cannot be denied.
(ii) Applicant further contended that applicant has retired from service on 31.12.2020 and has already completed qualifying service for settlement of pension under Rules 1972.
(iii) This his Tribunal in identical case of Ratneshwar Singh Vs. Union of India in OA No. 777/2016 allowed on 20.09.2018 directing respondents to fix pension and other retiral dues within a period of two months. Order dated 20.09.2018 in OA No. 777/2016 was upheld by Hon'ble High Court Patna in 03.07.2019, directing CWJC No. 13117 of 2019 decided on 03.07.2019, respondents spondents to comply with the order passed by the Tribunal.
(iv) Applicant retired on 31.12.2020 1.12.2020,, lapses on part of respondents not regularized in last 36 years of continuous services.
4 OA/050/00372/2021
(v) Applicant cannot be made to suffer on lapses on part of d order of regularization. Hon'ble respondents not issued Supreme Court in case of Rekha Mukherjee vs. Ashish Kumar Das, (2005) 3 SCC 427 held that "Government cannot be permitted to take advantage of its own wrong". So also in case of R.S. Mathur vs. Union of India (2008) 10 SCC 271,, wherein it has held that "delay in appointments ought not causes disadvantages to the employee in any manner.
(vi) Applicant after grant of temporary status, worked for three years and as per scheme, related to casual labour (Grant of Temporary Status and d Regularization) Scheme, Para 5 of the scheme, entitled for such benefits as are admissible to Group 'D' employee on regular basis. So also as per scheme dated 12.04.1991 of Govt. of India, treated at par with temporary Group 'D' employees w.e.f. date they they complete three years service in newly acquired temporary status and entitled for benefits to temporary Group 'D' employees.
(vii) Applicant working as status at par with temporary Group 'D' employee as per scheme of Govt. of India and entitled for pension as per Rule 10 of Central Civil Services (Temporary Services) Rules, 1965 (in short Rules 1965), applicant became legally entitled for superannuation pension. Hon'ble High Court, Patna in case of UOI vs. Meena Devi @ Meena Kunwar in CWJC No. 7760 of 2015 decided on 08.12.2015, 2023 (1) PLJR 506 has upheld order of this Tribunal.
(viii) Applicant is entitled for pension and other benefits in light of Rules 1965 and also read with, explanation (6) provided, appended to Rule 2, applicability applicability Clause of the CCS (Pension) Rules, 2021 to the extent these rule shall also apply to the case of government servants appointed in temporary capacity who retired before been appointed in a substantive capacity, the benefits under these rules shall be payable payable to Govt. servant to extent provided in Rules, 1965.
5 OA/050/00372/2021
(ix) Applicant is also covered by Schemes, Rules 1965 and read with CCS (Pension) Rules and entitled for pension and retiral benefits.
(x) Applicant is entitled to reckon qualifying services for pension purposes ses for casual worker after obtaining temporary status 50% of his services till regularization casual worker before obtaining temporary status is also entitled to reckon 50% of casual service and casual worker appointed any post either substantively or officiating iciating entitled to reckon entire period from date of taking charge.
(xi) Applicant is entitled for reckoning, his services for purposes of pension as held by this Tribunal in case Mojib Ansari versus Union of India, OA No. 265/2021 decided on 29.05.2023 and in para-materia materia provision in case of Union of India vs. Rakesh Kumar (2017) 13 SCC 388 by Hon'ble Supreme Court.
(xii) Applicant cannot be made to suffer merely stating that applicant was not willing to join on promotion whereas no such order passed and for lapses lapses of respondents not regularized cannot take advantage.
advantage. Hon'ble High Court, Patna in case of U.O.I. & Ors. Vs. Ratneshwar Singh in CWJC No. 13117 of 2019,, vide judgment dated 03.07.2019 held that offer made by respondents employer to applicant to promote him im and then treat as regularized was not accepted by applicant for personal reason, but cannot construe to mean that he had declined regularization on post he was occupying and upheld order of this Tribunal.
7. Shri A.K. Singh, learned Additional Standing Counsel argued that applicant was conferred Temporary Status w.e.f. 29.11.1989 and he refused his promotion to regular Group Group-D D post and was not regularized before his retirement on 31.12.2020 and not allowed for pension under Rule 1972.
(i) Shri A.K. Singh, learned arned Additional Standing Counsel further argued that applicant has submitted application dated 05.03.2015 and refused his promotion to the post of regular Group-D D employee and has not completed 10 years of 6 OA/050/00372/2021 minimum qualifying service for grant of pension and and pensionary benefits as a Group-D Group D employee under Rules 1972.
(ii) Applicant pplicant has not worked against regular post of Group-D Group D post for one day and 50% Temporary Status service cannot be counted as qualifying service for pension and pensionary benefits.
(iii) Applicant retired as temporary status casual labour and never been absorbed, in regular cadre. There is no substantive appointment in Group 'D' regular post and not entitled for pension.
(iv) Applicant is not entitled to reckon qualifying services for pensionary purposess being at par with Group 'D' employee and not entitled under CCS (Pension) Rules and Rules 1965 for temporary employees.
THE ISSUE
8. From the above submissions of the learned counsel for the parties and material placed on record. The admitted fact that app applicant licant joined services as casual labour in year 198 1984.. Thereafter conferred temporary status w.e.f. 229.11.1989 rendering continuous long, efficient 31.12.2020 The core issue arises service all his active life till retired on 31.12.2020. before this Tribunal for determ determination is:--
"Whether applicant who was appointed as a casual lobourer and thereafter conferred the status of temporary employee w.e.f. 29.11.1989 and retired on 31.12.2020 and entitled to benefit of pension/family pension or not?"
ANALYSIS
9. Before dealing with the rival contentions advanced at the Bar. It is apposite to quote relevant portion of language of the statutory scheme, policy of Union of India Ministry of Communications & I.T., Department of Posts, The Central Civil Services (Tempor (Temporary ary Services) Rules, 1965, the Central Civil Services (Pension) Rules 2021, judgment binding precedents in similar cases, in cases of pari-materia materia provisions passed by Hon'ble Supreme Court, Hon'ble High Courts, our own Hon'ble High Court Patna and Bench Benches es of the Central Administrative Tribunal as under:-.
under:
(A)(i) The casual labourers (Grant of Temporary Status and Regularization Scheme issued by Department of Posts, Govt. of India dated 12.04.1991 drawn in compliance of Hon'ble Supreme Court directions anda 7 OA/050/00372/2021 approved by his Excellency President of India relevant portion is reproduced as under for appreciation of the Core issue involved in the present OA:-
OA:
Casual Labourers (Grant of Temporary Status and Regularisation) Scheme : In compliance with the directions directi of the Hon'ble Supreme Court a scheme was drawn up by this Department in consultation ation with the Ministries of Law, Finance and Personnel and the President has been pleased to approve the said scheme. The scheme is as follows :-
1. Temporary status would be conferred on all casual labourers in employment as on 29.11.1969 and who continue to be currently employed and have rendered continuous service of at least one year during the year during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing five days week).
2. Such casual workers engaged for full working hours viz 8 hours including ½ hour's lunch time will be paid at daily rate on the basis of the minimum of the pay scale for a regular Group 'D' official including luding DA, HRA with CCA.
3. Benefit of increment at the same rate as applicable to a Group 'D' employee would be taken into account for calculating per month rate wages after completion of one year of service from the date of conferment of Temporary Status.. Such increment will be taken into account after every one year of service subject to performance of duty for at least 240 days (206 days in establishments observing five days week) in the year.
4. Leave entitlement will be one day for every 10 days' of work w Casual leave or any other kind of leave except maternity leave, will not be admissible. No encashment of leave is permissible on termination of services for any reason or on the casual labourers quitting service.
5. Maternity leave to lady full time casual ca lanbourers will be allowed as admissible to regular Group 'D' employees.
6. 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after regularization as a regular Group 'D'. official.
7. Conferment of Temporary Status does not automatically imply that the casual labourers would be appointed as a regular Group 'D' employees within any fixed time frame.
Appointment in Group 'D' vacancies will continue to be done as per the extant Recruitment Rules, which stipulate preference to eligible ED employee.
8. After rendering three years' continuous service after conferment of temporary status the casual labourers would be treated at par with temporary Group 'D' employees for the purposes of contribution to General Provident Fund. They would also further be eligible for the grant of Festival Advance, Flood Advance on the same conditions as are applicable to temporary Group 'D' employee provided they furnish two sureties from permanent Government servants of this Department.
9. Their entitlement to Productivity Linked Bonus will continue to be at the rate applicable to casual labourers.
10. Temporary status does not debar dispensing with the service of the casual labourers after following the due procedure.
11. If a labourer with temporary status commits a misconduct and the same is proved in an enquiry after giving him reasonable opportunity his services will be dispensed with.
12. Casual labourers may be regularized in units other than recruiting units also subject bject to availability of vacancies.
8 OA/050/00372/2021
13. For purpose of appointment as a regular Group 'd' official the casual labourers will be allowed age relaxation to the extent of service rendered by them as casual labourers.
14. The casual labourers can be deployed any a where within the recruitment unit /territorial circle on the basis of availability of work.
15. The engagement of the casual labourers will continue to be on daily rates of pay on need basis.
basi
16. The conferment of temporary status has no relation to availability ilability of sanctioned regular Group 'D' posts.
17. No recruitment from open market for Group 'D' posts except compassionate appointment will be done till casual labourers with the requisite qualification are available to fill up the posts in question.
Further urther action may be taken in regard to the casual labourers by each unit as per the above said scheme. This issues with the approval of Ministry of Finance and concurrence of Integrated finance vide their Dy No. 1282 FM/91 dated 10.4.1991.
95/87-SPB.I, dated 12th April,1991.
G.I. Dept of Posts.Lr. No.45-95/87
(ii) The relevant portion of the clarifications issued by Department of Posts, Govt. of India related to the Department of Posts Scheme dated 12.04.1991 also reproduced as under-
under Clarification -1 Further to Letter No. 45-95/87 95/87-SPB-I dated 12.4.1991 (Order 2 above ) it is hereby clarified that the scheme is effective from 20.11.1989 and hence the eligible casual labourers may be conferred temporary status and the benefits indicated in the above said circular with effect from 29.11.1999, Clarification -4
1. Service Book of the casual labourers conferred with temporary status is required to be maintained as in the case of temporary Government employees.
2. Temporary status casual labourers are entitled to increment on par with the departmental officials on completion of one year of engaement for 240 days i.e the increment would be taken into account for calculation of wages with effect from 1.11.1990 for the casual labourers coferred with temporary status on 29.11.1989, 29.11.1989 if they have completed one year of service at least 240 days. G.I. DEPTT. OF POSTS, LR No. 45-56/92,45 dated the 1st March, 1993
(iii) Benefits to casual labourers on completion of three years' service, In temporary status. In their judgment, dated 29-11-1989, the Hon'ble Supreme Court have held that after rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Group 'D' employees of the Department of Posts and would thereby be entitled titled to such benefits as are admissible to Group 'D' employees on o regular basis.
2. In compliance with the above-saidsaid directive of the Hon'ble Supreme Court, it has been decided that the casual labourers of this department conferred with temporary status as per the scheme circulated in the above-said above circular No. 45-95/87-SPB. I, dated 12-4-1991, 1991, be treated at par with temporary Group 'D' employees with effect from the date they complete three years of service in the newly acquired temporary status as per the above-said scheme. From that date, they will be entitled to benefits admissible to temporary Group 'D' employees such as-
(1) All kinds of leave admissible to temporary employees; (2) Holidays as admissible to regular employees; (3) Counting of servicee for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who are given temporary status and who complete three years of service in that status while granting them pension ion and retirement benefits after their regularization; (4) Central Government Employees' Insurance Scheme;
9 OA/050/00372/2021 (5) General Provident Fund;
(6) Medical Aid;
(7) Leave Travel Concession;
(8) All advances admissible to temporary Group 'D' employees; (9) Bonus.
3.. Further action may be taken accordingly and proper service record of such uch employees may also be maintained.
[G.I. Dept. of Posts, Lr No.66-9-91--SPB, I, dated the 30th November, 1992] [Emphasis Supplied] (B) The extract of the relevant portion of the Central Civil Services (Temporary Services) Rules, 1965 framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by President to regulate the conditions of service of temporary Government Servants reproduced as under:-
10. Terminal gratuity payable to temporary Government servants (1) Subject to the provisions of sub-rule sub (1-B), a temporary Government servant who retires on superannuation or is discharged from service or is declared invalid for further service shall s be eligible for gratuity on the same scale as admissible to a permanent Government servant under the Central Civil Service (Pension) Rules, 1972."
(1-A) In the case of a temporary Government servant who is compulsorily retired from service as a disciplinary disci measure, the provisions of sub-rule rule (1) shall apply subject to the modification that the rate of gratuity payable in his case shall not be less than two-two thirds of, but in no case exceeding, the rate specified in sub-rule sub (1).
(1-B) In the case of a temporary Government servant who retires from service on attaining the age of superannuation or on his being declared to be permanently incapacitated for further Government service by the appropriate medical authority, after he has rendered temporary service vice of not less than 10 years or who has sought voluntary retirement by giving three months notice in writing on completion of 20 years service, provisions of sub-rule sub (1) shall not apply and in accordance with the provisions of the Central Civil Services (Pension) Rules, 1972:--
(i) such a Government servant shall be eligible for the grant of superannuation, invalid or retiring pension, as the case may be, and retirement gratuity; and
(ii) in the event of his death after retirement, the members of his family mily shall be eligible for the grant of family pension.
Death Gratuity (2) In the even of death of a temporary Govt servant while in service, his family shall be eligible for family pension and death gratuity at the same scale and under the same provisions as are applicable to permanent Central Civilian Government Servants under the Central Civil Services (Pesnion Rules, 1972.
10 OA/050/00372/2021 (C) The Central Civil Services (Pension) Rules 1972 Now consequent of seventh Central Pay Commission old rules 1972 reviewed notifying notifying CCS (Pension) Rules, 2021 and enforced since 20.12.2021. The Rule 87 Repeal and Saving Clause provides any action taken under old rule shall be deemed to have been done or taken under the corresponding provisions of these rules i.e. Rules 2021 relevant to decide the issue are extracted as under:-
under:
1. Short title and commencement.. (1) These rules may be called the Central Civil Services (Pension) Rules, 2021.
(2) They shall come into force with effect from the date of their publication in the Official Gazette.
2. Application- . Save as otherwise provided in these rules, these rules shall apply to the Government servants appointed on or before 31st day of December, ber, 2003, including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to,
(a) railway servants;
(b) persons in casual and daily rated employment;
(c) persons paid from contingencies;
(d) persons entitled to the benefit of a Contributory Provident Fund;
(e) members of the All India Services;
(f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries;
(g) persons employed on contract except when the contract provides otherwise; and
(h) persons whose terms and conditions of service are regulated re by or under the provisions of the Constitution or any other law for the time being in force. Explanation.-
Explanation These rules shall also apply to:-
(6) the case of Government servants appointed in temporary capacity to civil services and posts in connection connecti with the affairs of the Union on or before 31st day of December, 2003, who retired or were retired before having been appointed in a substantive capacity, the benefits under these rules shall be payable to the Government servant to the extent provided in i the Central Civil Services (Temporary Service) Rules, 1965.
50. Family Pension.- (1) Where a Government servant dies:-
dies
(i) after completion of one year of continuous service; or (ii) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate ate medical authority and declared fit by that authority for Government service; or
(iii) after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules, the family of the deceased decease shall be entitled to a family pension from the date following the date of death of the Government servant or the retired Government servant, as the case may be.
Explanation - Continuous service means service rendered in a temporary or permanent capacity in a permissible establishment and does not include period of suspension, if any and period of service, if any, rendered before attaining the age of eighteen years.
10. Before examining the core issue framed. This Tribunal would first deal with binding prece precedent dent some of the various judgments settled the 11 OA/050/00372/2021 law on the similar facts and the issue involved not been referred to higher bench. So also judgments dealing with pari pari-materia materia provisions related to same category of employees as under:
under:-
(i) The Hon'ble Supreme reme Court interpreting the scheme and policies as applicable in present O.A. of Department of Post in three judge Bench decision in case of Jagrit Mazdoor Union and ors. versus Mahanagar Telephone Nigam Ltd. And ors in W.P. No. 1119, 1276, 1623 and 1624 of 1986 decided on 29.11.1989 reported in 1990 Supp SCC 113 has observed :- :
"writ petitioner in W.P. No. 1624/1986 working as substitute employees and casual labourers in the Department of Posts, Govt. of India claimed relief to treat at par with regular regu employees and be paid same emoluments as regular employees. The Hon'ble Supreme Court in Para 11 directed as under:-
under:
"11 11 The Temporary Status would be available to the casual labourers in the Postal Department on completion of one year continuous service servi with at least 240 days of work (2036 days in the case of officers observing five days week) and on conferment of temporary status, House Rent Allowance and City Compensatory Allowance shall be admissible. There would be no justification to withhold Maternity Mat Leave as that is an obligation of the employer under the law and the state as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part-IV Part of the Constitution should provide the same. After rendering three years of continuous inuous service with temporary status, the casual labouers shall be treated at par with temporary Grade 'D' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible to Group "D" employees on regular basis."basis.
[Emphasis supplied]
(ii) The Hon'ble Supreme Court, three Judge Bench in case of Yashwant Hari Katakkar Versus Union of India reported in (1996) 7 SCC 113, dealing with question for determination "whether appellant is entitled to any pensionary benefits since total service of more than eighteen years was in quasi-permanent/temporary." The Hon'ble Supreme Court has held:-
held:
"3.. Dr. Anand Prakash, learned Senior Senio Advocate appearing for the union of India, has contended that on 7.3.1980 when the appellant was prematurely retired he had put in 18 ½ years of quasi-permanent permanent service. According to him to earn pension it was necessary to have a minimum of 120 years of permanent service.
It is contended that since the total service of the appellant was in quasi-permanent permanent capacity he was not enlisted to the pensionary benefits.
There is nothing on record to show as to why the appellant was not made permanent even when he h had served the Government for 18 ½ years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the government. The appellant having served the government for almost-two two decades it would be unfair to treat him as temporary/quasi-permanent.
permanent.
Keeping in view the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period.
iod. The services of the appellant shall be treated to be in
12 OA/050/00372/2021 permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been n retired from service on 7.3.1980 after serving the Government for 18 ½ years More than 10 years of permanent service) and as such his case for grant of pension be finalized within six months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement.
[Emphasis Supplied]
(iii) The Hon'ble High Court Patna dealing with identical facts and issue in case of Union of India & Ors Versus Kritnarain Singh, CWJC No. 10978 of 2017 decided on 04.9.2017. Their Lordships was seisin with similar issue as decided by Central Administrative Tribunal Bench, Patna in O.A. No. 900 of 2012 vide order dated 18.2.2016 The Union of India- Ministry of Communication, Department of Posts taken plea as before Tribunal that services of private respondents respondents Temporary Status Casual Labour, was never regularized nor worked on a regular group 'D' post till his retirement. Therefore he is not entitled to pensioner benefits. Their Lordships in case of Kritnarain Singh (supra) affirmed view taken by this Tribunal ribunal in OA No. 900/2012 based on Hon'ble High Court Patna judgement dated 15.12.2015 in CWJC No. 17204/2015. So also their Lordships observed that Tribunal has taken correct view because in similar and identical circumstances the High Court held in favour our of an employee and that judgment stands and holds the field and writ application dismissed.
[Emphasis supplied]
(iv) The Hon'ble High Court Patna dealing with identical case in facts and legal issue in case of Union of India versus Smt Ram Kali Devi, DWJC No. 11435 of 2017 decided on 11.9.2017.11.9.2017 Their Lordships were seisin with similar issue as involved in the present case. The Union of India, Department of Posts had challenged order dated 22.3.2017 passed in O.A. No. 664/2015 (Patna) by this Tribunal unal to pay family pension, retiral dues to widow of deceased employee.
Their Lordships observed that husband of petitioner granted temporary status at part with Group 'D' as far as on 29/30.11.1992 and he died in harness on 17.4.2015 i.e. after completion completi of more than 25 years of service. The fact that 50% of the period even in temporary status begets the benefits of pension. Failure on part of postal department not to regularize services of husband of private respondents cannot be appreciated. Their Lordships Lor decided in favour of temporary status employee at par with Group 'D' employee and upheld order dated 22.3.2017 in similar OA No. 664/2015 (Patna). So also observed that in similar and identical cases adjudicated in favour of employees in OA No. 113/2006 113/ decided on 21.9.2006, affirmed by Patna High Court vide order dated 7.11.2007 in CWJC No. 4475/2007 and order of the High Court Patna has been affirmed by Hon'ble Apex Court on 4.12.2009. So also similar cases travelled from O.A. No. 900/2012 (CAT Patna) Pat in CWJC No. 10978 of 2017 and Division Bench vide order dated 4.9.2017 had upheld directions by this Tribunal extending benefits of pension as employee was granted temporary status at par with Group 'D' employee.
[Emphasis supplied]
(v) The Hon'ble High h Court Patna dealing with identical facts and similar legal core issue as involved in the present case interpreted rules applicable in the present OA in hand. In the case of Union of India and others versus Meena Devi @ Meena Kunwar, CWJC No. 7760 of 2015 decided on 8.12.2022 reported in 2023 (1) PLJR 506 by their Lordships affirming order dated 28.3.2013 passed in O.A 164/2008 (Patna). The Tribunal has granted 13 OA/050/00372/2021 family pension and other pensionary benefits to widow of deceased employee died as temporary employee without being regularized. Their Lordships dealing with the identical issue "whether deceased employee who was appointed as a casual labourer and thereafter stepped into the status of temporary employee w.e.f. 23.10.1992 and died in harness on 15.11.2007 5.11.2007 and his legal heirs is entitled to benefit of pension/family pension or not ?"
So also held that sub-clause clause (3) of clause (2) of Para 5 of Casual Labourers (Grant of Temporary Status and Regularization Scheme is crystal clear that temporary employees empl is entitled to pension and retirement benefits, if he has completed three years of service in the temporary status followed by regularization. Their Lordships further observed that if temporary employee died in harness his Legal heirs are entitled to family pension in light of Rule 10(2) of Temporary Service Rules i.e Central Civil Services (Temporary Service) Rules 1965 read with CCS Pension Rules 1972 and temporary rules is a social legislation beneficial legislation to a beneficiary is required to be extended with reference to various judicial pronouncements on the principle of beneficial legislation and affirmed order dated 20.3.2013 in OA No. 164 of 2008 (CAT, Patna) rejecting CWJC No. 7760/2015 of Department of Posts. Their Lordships also directed as under :-
"10.
10. Respondent is a legal heir and she is awaiting for certain monetary benefits for more than decade, therefore, the petitioner department is hereby directed to calculate monetary benefits in the light of sub-rule sub (2) of Rule 10 of Rules 1965 965 and same shall be extended to the respondent within a period of three months from the date of receipt of this order, alongwith interest at the rate of 8% p.a. from 1.3.2008 in the light of the fact that respondent's husband died on 15.11.1997 and in the th light of Apex Court's decision in the case of Vijay L. Mehrotra versus State of U.P., (2001) 9 SCC 687."
[Emphasis supplied]
(vi) The Hon'ble High Court of Himachal Pradesh, Shimla in CWP No. 2299 of 2014, The Sr. Superintendent of Posts Post offices versus Shri Painu Ram decided on 23.7.2018, dealing with identical issue on facts and legal points and law as involved in whether a part timer, who was conferred temporary present O.A "whether status was entitled for same benefits, as are admissible to reglar employees in terms of instructions dated 12.4.1991 as amended on 30.11.1992 issued by respondent department post or not ?"
The writ petition was directed against order dated 31.1.2014 passed by learned Central Administrative Tribunal, Chandigarh Bench, in OA No. 426/HP/2013 Painu Ram Vs Union of India & ors granting relief in favour of original applicant therein, The Hon'ble High Court considered Department of Post Government of India Plicy dated 30.11.1992 relied by the learned Tribunal and judgement ent of Hon'ble Supreme Court in Jagritti Mazdoor Union (Regd) (supra) and held that after the conferment of the temporary status upon the present respondent, he was entitled for benefits which are accrueable to a regular Group 'D' employee after completion completio of three years of service on temporary basis. So also considered judgements of various Benches of learned Tribunal and upheld the order dated 31.1.2014 in O.A. No. 426/HP/2013 (Chandigarh).
(vii) Hon'ble High Court of Punjab and Haryana at Chandigarh in case of Mrs. Alka Sharma versus Union of India, 2017 (2) SCT 739 (P&H) (DB) dealing with the issue in the case of widow of the railway employee in pari materia provision of family pension "whether widow of temporary employee not been subsequently appointed appointed on substantive post could be granted pension and family pension under Railway Services (Pension) Rules as for no fault of deceased employee on lapses on railways could not be considered for regularization". The Hon'ble High Court considered the fact that employee himself was not at 14 OA/050/00372/2021 fault for such lack of regularization, never called for regularization purposes. The Hon'ble High Court considered relevant Rules 75,, governing Family Pension Scheme for railway servants, 1964 and factum that deceased employee oyee was otherwise not regularized inspite of 14 years in temporary capacity and at time of the death was still working as temporary employee.
The Hon'ble High Court directed the respondents to grant of family pension and other retiral benefits of the deceased deceased employee by notionally treating his services as regularized, arrears to pension only for a period of three years preceding the date of filing O.A.
11. In the other similar and identical situation, The Central Administrative Tribunal also adjudicated cases and decided in favour of original applicants on similar facts and legal issue as involved in the present OA in hand and some of them are cited as under:
under:-
(a) The Division Bench of this Tribunal in O.A. No. 050/00143/2018 Awadhesh Prasad Singh versus The Union Union of India & ors decided on 28.10.2021. The said O.A. was filed by Night Guard working in Department of Posts seeking pension and other pensionary benefits in terms of Rule 10, CCS (TS) Rules 1965 read with GID (3) below Rule 2 of CCS (Pension) Rules, 1972. 2. The learned Tribunal observed that as per judgement by The Hon'ble Supreme Court in Uma Devi's case, Department of Posts has circulated policy in June/July 2014 for regularization of casual labours having worked for ten years or more and vide judgement dated 13.11.2017 Hon'ble High Court Patna in CWJC No. 12126/2017 directed to consider in light of the policy.
policy. The applicant Awadhesh Prasad Singh was engaged as Jeep Driver on 13.1.1984 on daily wages, conferred temporary status w.e.f. 29.11.1989 and retired on October, 2019 after 35 years of total service as temporary status and not been regularized.
Thee Division bench of this Tribunal considering impact of clause 5 of Government of India, Department of Posts letter No. 66-9/91-SPB.
66 SPB. I dated 30th November, 1992- benefits to a casual labour on completion of three years service in Temporary status become entitled entitled to be treated at par with temporary Group 'D' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible to Group 'D' employees on regular basis such as counting of service for purposes of pension and terminal nal benefits as in the case of temporary employees appointed on regular basis while granting them pension and retirement benefits after the regularization. The learned Tribunal in Para 17 of order relied on larger bench decision dated 2.9.2019 of Hon'ble Supreme Court in case of Prem Singh versus State of Uttar Pradesh and others reported in (2019) 10 SCC 516 reads as under :-
"35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they have been superannuated.
As they have worked in work-charged work establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, Secr State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized ized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct thattha their services be treated as a regular one. However, it is made clear that they shall not be 15 OA/050/00372/2021 entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled entit to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged charged establishment shall be counted as qualifying service for purpose of pension.
36. In view off reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined con to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
[Emphasis Supplied]
(b) In the similar and identical situation the learned Coordinate Bench Chandigarh of the Tribunal recently in October 2023 adjudicated in OA No. 060/690/2019 (Chandigarh) Santosh Kumar versus Union of India & ors allowed OA directing to grant family pension and other retiral benefits of the deceased employee. The learned Tribunal dealt whether the person who has not been regularized by the issue "whether respondents the provision of Rule 54 (2) of the CCS Pension Rules, 1972 is attracted or not ? The learned Tribunal Tribunal has considered the matter and examined in detail Rule 54 (2) of CCS Pension Rules, 1972 and observed that provisions are pari materia to Rule 75- Family Pension Scheme for Railway servants, 1954. So also held that case is covered by judgement in case of Alka Sharma vs Union of India & ors 2017 (2) SCT (P&H) (DB) passed by Hon'ble High Court Punjab & Haryana. So also case of Sr. Superintendent of Post Offices and ors vs Painu Ram in CWP. No.22990/2014 decided on 23.7.2018 by Hon'ble High Court of Himachal al Pradesh and reliance has also been placed upon judgement passed by Hon'ble Supreme Court in case of Jagrit Mazdoor Union (Regd) and others vs Mahanagar Telephone Nigam Ltd & anr etc, 1990 supp. SC 113. So also observed that case is fully covered by judgement gement of Hon'ble High Court of Himachal Pradesh in matter of Union of India vs Meena Devi in CWP No. 34 of 2014 decided on 23.7.2018.
12. In present case this Tribunal is dealing with the issue whether casual labour of department of posts obtaining temporary status "whether accordance with the scheme not regularized retired is entitled to pension and pensionary benefits.
benefits."
13. Admittedly,, applicant was initially engaged as Casual Labourer in year 198 1984.. The department of posts vide instruction dated 17.5.1989 clari clarified fied that all daily wagers working in post offices are to be treated as casual labourers. The department of posts has made Scheme known as Casual Labourers (Grant of Temporary Status and Regularization) Scheme effective from 1.10.1989. The scheme provided provisions for conferment of temporary status to casual labourers. So also the scheme specified advantages at part with Group 'D' regular employee available on conferment of status of temporary employee.
16 OA/050/00372/2021
14. The casual labourers in the Department of Posts filed filed writ petition before Hon'ble Supreme Court in case of Jagrit MazdoorUnion and ors versus Mahanagar Telephone Nigam Ltd. 1990 Supp. SCC 113 seeking relief that substitutes and casual labourers of Department of Posts be paid same emoluments as regular emp employees.
loyees. The Hon'ble Supreme Court held that temporary status would be available to the casual labourers in the postal department on completion of one year of continuous service with at least 240 days of work and on conferment of temporary status. The statee as an ideal employer fulfilling the Directive Principles of state policy should treat similarly with regular employees in the department.
The Hon'ble Supreme Court, three Judge Bench in Jagrit Mazdoor Union (supra) decided on 29.11.1989 also held as under:-
under:
"After rendering three years of continuous service with temporary status, the casual labourers shall be treated at part with temporary Grade 'D' employees of the Department of Posts and would thereby be entitled entitl to such benefits as are admissible to Group 'D' employees on regular basis."
[Emphasis Supplied]
15. In compliance with directions of Hon'ble Supreme Court in the case of Jagrit Mazdoor Union (supra) (supra). The Department of Posts, Government of India formulated scheme known as Casual Labourers (Grant of Temporary Status and Regularization) Scheme dated 12th April, 1991 and scheme has been drawn up by the Department in consultation with Ministry of Law, Finance and Personnel and his Excellency the President of India has been graciously pleased to approve with intention to provide benefits to casual labourers working continuously for long period.
16. The Scheme dated 12.4.1991 having binding statutory force, social and beneficial legislation to protect fructify the llegislative egislative intent to extend benefits to long continuous working of casual labourers labourers.
17. The Scheme dated 12.04.1991 4.1991 confers temporary status on casual labourers in employment as on 29.11.1989. The applicant is appointee of year 1982 admitted fact and has been requesting to regularize and ought to have been superannuated before 30.6.2018 accordance with law as regular employee for no fault of applicant m made ade to suffer violating Article 14, 21, 31A and 3000 of the Constitution of India.
18. The applicant has been conferred temporary status w.e.f. 29.11.1989 pursuant to order dated 19.07.1991 (Annexure A-1) and the statutory binding scheme has conferred after 3 years certain advantages to 17 OA/050/00372/2021 temporary employee as provided in para 2 as to grant of minimum of the pay scale for a regular group'D' official including DA, HRA and CCA. Para 3 provides for benefits of increment at the same rate as applicable to a Group oup 'D' employee after completion of one year of service from date of conferment of Temporary status. The Fundamental Rule 27 stipulates grant of increment to a government servant on same scale of pay pay. The legislative intent is clear as noon day in formu formulating lating the statutory scheme dated 12.4.1991 and writ in the nature of mandamus would certainly lie to enforce the terms as social legislation to enhance social welfare and achieve social justice. The Central Government being an ideal employer fulfilling the Directive Principles of State Policies envisaged in the Part IV of the Constitution of India treating temporary status casual labour after long period at par with temporary Group 'D' employee of the Department granting benefits and treating at par with and entitled for such benefits as are admissible to the Group 'D' employee on regular basis. The scheme further provides for Leave Encashment, Maternity Leave as to regular Group 'D' employee, 50% of service under temporary status for retirement benefits after regularization as a regular Group 'D' on absorption. So also the scheme to be construed as social beneficial legislation with harmonious construction. So also Para 8 of the scheme specifically provides for conferment of temporary group 'D' status af after ter rendering three years continuous service as temporary status.
19. The applicant was conferred temporary status on 29.11.1989 and accordance with Para 8 of the scheme and on principles of beneficial construction and harmoniously construing the scheme. The aapplicant pplicant after three years since 29.11.1989 meaning thereby since 29.11.1992 has attained status of temporary Group 'D' employees and regularly contributed to G.P.F. The applicant was in capacity of temporary employee. The he applicant having continuously worked as temporary status casual labourer since 29.11.1989 and on 29.11.1992 is holder of post of temporary employee/quasi permanent status and deserves to be dealt fairly by the model employer state accordance with guaran guarantee tee enshrined in the Article 14 and 21 of the Constitution of India. This Tribunal is of the view whereof that it is unfair to continue husband of the applicant such a long in temporary post and without considering for regularizing till retirement.
18 OA/050/00372/2021
20. The applicant licant acquired status of temporary employee Group 'D' of Department of Posts and it is well settled in law that entitled for such benefits as are admissible to Group 'D' employees on regular basis. So also held by Hon'ble Supreme Court in Jagrit Mazdoorr Union (supra).
21. The Para 17 of statutory scheme also provides in mandatory terms no recruitment from open market for Group 'D' posts till casual labourers available to fill up the posts in question. The respondents have not discharged statutory duty as model employer as envisaged in D.P.S.P. Part IV of the Constitution of India and applicant husband not regularized as for no fault cannot be made to suffer. The official respondents did not discharge his duty and not regularized on time for own mistakes respondents spondents cannot take advantages and plea not even considered for regularization available to them that since no regularization no pension etc.
22. The applicant before retirement submitted representation to allow to participate in absorption to regularize services services on regular cadre post but no response. The respondents have stated in the written statement that applicant could not be promoted as applicant on 05.03.2015 refused promotion. The applicant was never at fault for such lack of regularization and never refused regularization on the post held for 30 years.
23. This Tribunal considering the specific averments made by applicant in the O.A that respondents have not regularized services as per law on time, in spite of written requests and retired on 31.12.2020 without being regularized. The respondents in written statement not adverted to specific allegation and not specifically denied as per requirement in Rule 3,4, and 5 of the order VIII of Code of Civil Procedure. This Tribunal is of the view since respondents state failed to discharge his statutory duty as per the Scheme dated 12.4.1991 and not even once considered for regularization since 198 1981.. Hence respondents cannot take advantage of own mistakes and latches to deny retirement benefits as not rregularized egularized deceased right, right accrued pursuant to employee before retirement. The matter of right the scheme and policy applicable to applicant and he ought to have at least considered for regularization before date of superannuation. The applicant worked sin since 1984 till 31.12.2020 almost more than thirty seven (37) years in the department department.
24. The department of posts issued clarifications some of reproduced herein above enumerating advantages of temporary employee.
19 OA/050/00372/2021 So also policy dated 30.11.1992 Government of India, Department of Posts G.I. (5). Benefits of casual labourers on completion of three years service in temporary status reproduced herein above. The vested legal right accrued to the employee in light of statutory scheme and policies and can not be tak taken en away by respondents. The D Department epartment of Posts, Ministry of Telecommunication & I.T. Union of India formulated policy dated 12.4.1991, 30.11.1992 and failure of implementation results in failure of social-economic economic justice justice.. So also envisaged in D.P.S.P. Part IV of Constitution. These policy, scheme circulars are substantive attempts to enhance social welfare. The respondents denied to employee accrued rights and has led to him and his family to a long and tortuous roads to justice. Hence plea taken by respondents that unless regularized no pensionry benefits deserves to be rejected and applicant can not be denied relief claimed.
25. The sub-clause clause 2 of clause 5 of G.I.D (5) policy dated 30.11.1992 quoted herein above is also crystal crystal clear that casual labourers of the postal department with effect from date of completion three years of service in newly acquired temporary status becomes entitled to benefits admissible to temporary Group 'D' employee such as counting of service for purpose of pension and terminal benefits as in case of temporary employees appointed on regular basis while granting them pension and retirement benefits after their regularization.
26. The Conditions of Service of temporary government servants are regulated bby Rules 1965 relevant rules already extracted herein above. The Rule 10 (2) of Rules 1965 provides for grant of family pension and death gratuity to family of deceased temporary employee under same provisions as are applicable to the permanent civilian gov government ernment servants under the CCS Pension Rules 1972 (Now CCS Pension Rules, 2021). The claim for pension and benefits accrued accordance with Rule 10 of Rules 1965 read with Rules 2 CCS Pension Rules 2021. The Temporary employee retired without substantive aappointment ppointment are held entitled for pension etc as per Rules 1965 and Rules 2021.
27. The CCS Rules 1972 has been repealed CCS Pension Rules 2021 as extracted herein above. So far as Rule 2 of Rules 2021 no where excludes temporary employee and Rule 2 explanation explanationss (6) of CCS Pension Rules 2021 are applicable to those temporary employee like applicant. So 20 OA/050/00372/2021 also the explanation no. 6 to Rule 2 provides - these rules shall also apply to (6) cases of government servants appointed in temporary capacity to civil service servicess and posts in connection with affairs of the Union on or before 31st December, 2003, who retired or were retired before having been appointed in a substantive capacity, the benefits under these rules shall be payable to the government servant to the exte extent nt provided in the Central Civil Services (Temporary Service) Rules, 1965. Thus applicant entitled to benefis as admissible to any other public servant and respondents have violated fundamental right enshrined in Article 14 and 21 of Constitution of India.
28. The G.I.D (5) Benefits to casual labourers on completion of three years service in temporary status sub clause (3) of clause 2 of para 5 dated 30.11.1992 provides for entitlement to temporary employee to pension and retirement benefits on his completion of three years service in temporary status followed by regularization.
29. The applicant stood retired on 28.02.2019 as temporary employee for no fault of own not regularized, respondents did not discharge his duties and no rebuttal in reply to O.A. Whereas Rule 10 of Rules 1965 read with Rules 2021 and Policy dated 30.11.1992 provides for grant of pension, family pens pension ion and retirement benefits to temporary employee. The status of employee was at par with regular employee on long continuation on temporary post in welfare state. The Scheme of statutory Rules 1965 read with Pension Rules 2021 would prevail over any poli policy cy decision.
30. The explanation no. 6 to Rule 2of CCS Pension Rules 2021 makes it clear that applicant who stood retired before having been appointed in a substantive capacity as regular cadre employee for such type of category of temporary employee benefit ooff pension Rules i,.e Pension, retirement gratuity, death gratuity and family pension shall be payable to applicant same scale as admissible to permanent servant under CCS Pension Rules to the extent provided in the CCS (TS) Rules 1965 as under:
under:--
(i) On retirement irement from service on superannuation or invalidation after having rendered continuous temporary/quasi permanent service of not less than 10 years.
(ii) On seeking voluntary retirement after completion of 20 years of continuous temporary service.
(iii) In event of death while in service.
21 OA/050/00372/2021
31. This Tribunal has analyzed in details the relevant statutory schemes clarifications, Policies, statutory Rules 1965 read with CCS Pension Rules 2021 (erstwhile Rules 2017) . This Tribunal considered the matter and in vie view of whereof of the affirm view that Government of India, Department of Posts instructions, scheme dated 12.4.1991 letter no. 66 66--
9/91-SPB SPB-II dated 30.11.1992 and Rules 1965 extracted herein above are social legislation when read conjointly and harmoniously.
harmoniously. The Rules 1965 and the Schemes beneficial legislation makes it clear that temporary status in department of posts rendered service not less than ten years in newly acquired temporary status becomes entitled for regularization, pension and pensionery benefits. The failure on the part of respondents to implement Rule 10 TS Rules 1965 read with Pension Rules 2021 is failure of social justice and social legislation for casual labourers the said legislation is substantive attempts to enhance social welf welfare are and state as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part IV of the Constitution.
32. Thus respondents can not take advantages of their own wrong and lapses and for no fault applicant can not be made to suffer and applicant entitled to receive pension as if retired from regular establishment and so also held by Hon'ble Supreme court in para 36 of judgement in case of Prem Singh versus State of U.P & Ors (2019) 10 SCC 516 reproduced herein above.
33. The contention of the he respondents that Hon'ble High Court, Patna in case of Union of India versus Bhikhani Devi CWJC No. 154 of 2019 decided on 14.10.2019, their Lordships had set-asie asie order dated 27.3.2018 passed in O.A. No. 372/2017 (Bhikhani Devi Vs Union of India) as Tribunal bunal relied on ratio in CWJC No. 11435/2017 and 10978/2017 and SLP dismissed against same. Their Lordships in case of Bhikhani Devi (supra) observed that judgements relied by Tribunal in CWJC 11435/2017 and 10978/2017 and none of them considered the impa impact ct of Circular dated 15.9.1991 of CPMG Bihar that there is no automatic appointment from temporary status to regular Group 'D' unless absorbed as per rules. So also Tribunal not adjudicated points unless an employee is in regular service in cadre, pensiona pensionary ry benefits would not be admissible.
The learned counsel for applicant in rebuttal submitted that the Division Bench of Hon'ble High Court Patna in similar facts and legal 22 OA/050/00372/2021 issue dealt in detail rules applicable in case of Union of India and ors versus Meena Devi @ Meena Kunwar CWJC No. 7760 of 2015 decided on 08.12.2022, reported in 2023 (1) PLJR 506 affirming order dated 20.3.2013 in similar OA No. 164/2008 (Patna) and granted benefits of family pension arrears as per Rul Rulee 10 (2) of Rules 1965 and CCS Pension Rules 1972 widow of employee died as temporary employee without being regularized. This Tribunal has considered the submissions of the counsel for the parties and in judgement in case of Bhikhani Devi (supra) previous cases not referred to the larger bench perused the ratio laid down by their Lordships in case of Meena Devi @ Meena Kunwar (supra) decided on 08.12.2022. Their Lordships considering scheme for Casual Labourers (Grant of Temporary Status and Regularization Regularization)) and held that husband of the applicant being temporary employee governed by CCS TS Rules 1965 and as per Rule 10 of CCSTS Rule 1965 read with CCS Pension Rule Their Lordships in Para 10 of judgement directed reads as under :-
:
"10. Respondent is a lega heir eir and she is awaiting for certain monetary benefits for more than decade, therefore to calculate monetary benefits in the light of sub-rule sub 2 of 10 of Rules 1965 and the same shall be extended to the respondents within a period of three months from the date ate of receipt of this order, alongwith interest at the rate of 8% p.a. from 01.3.2008 in the light of the fact that respondents husband died on 15.11.1997 and in the light of Apex Court's decision in the case of Vijay L. Mehrotra v. State of U.P. (2001)9 SCC 687."
[Emphasis Supplied] Their Lordships in case of Meena Devi @ Meena Kunwar , reported in 2023 (1) PLJR 506 considered impact effect of scheme dated 30.11.1992 of Postal Department and also considered Rule 10 of CCS TS Rules 1965 and applicabilit applicabilityy of CCS Pension Rules. After considering the proposition of law precedent/ratio decidendi has been laid down down.. This Tribunal is bound by the precedent in Meena Devi @ Meena Kunwar (supra) principle of law laid down interpreting service rules applicable in the case. The present case is also covered by the above binding ratio binding-ratio decedendi decedendi,, precedent. The preposition of law as laid down considering relevant service rules in Meena Devi @ Meena Kunwar (supra) by Hon'ble High Court Patna constitutes binding precedent on this Tribunal and present case is also deserves same treatment.
23 OA/050/00372/2021
34. Considering the facts and circumstances of the present case and legal issue in hand in present case also qualified by precedents binding judicial pronouncements cited herein abo above ve of Hon'ble Supreme Court and High Court of Punjab & Himachal Pradesh and our own Hon'ble High Court Patna and Coordinate Benches of this Tribunal and present case is no different. This Tribunal is of the considered opinion that the case of applicant is a covered matter on facts and legal issue involved in the present case and no more res-integra.. The applicant is also entitled for the same treatment and consequential benefits envisaged in the Fundamental Right under Article 14 & 21 of Constitution of IIndia ndia guaranteed to the applicant too.
35. In view whereof reading of sub-
sub clause (3) of clause 2 of Para 5 of the Scheme, dated 30.11.1992 reproduced herein above relating to benefit to casual labourers on completion of three years service in temporary status of Casual Labourers (Grant of temporary status and regularization) Scheme is crystal clear that temporary employee is entitled to pension and retirement benefits, if he has completed three years of service in temporary status followed by regularization regularization. Thee applicant granted temporary status w.e.f. 29.11.1989 and not been regularized by respondents inspite of requests and for no fault stood retired on 31.12.2020.
The condition of services of the Temporary Government servants are regulated by the Central Civil Services (Temporary Services) Rules 1965. As per Rule 10 of Rules 1965, legal right accrued for grant of pension, retirement gratuity and in the event of death after retirement, members of his family shall be eligible for the grant of family pension read with the provisions of Central Civil Services (Pension) Rules 2021 (Erstwhile Rules 1972). The explanation (6) provides appended to Rule 2 Applicability Clause of the CCS Pension Rules 2021 to the extend these rules shall also apply to the case of government servant appointed in temporary capacity who retired or were retired before been appointed in a substantive capacity, the benefits under these rules shall be payable to the government servant to the extent provide in the Central Civil Services (Temporary Service ) Rules 1965.
The Rule 50-family family Pension of CCS Pension Rules 2021 (Erstwhile Rule 54 (2) of CCS Pension Rules 1972) and pari materia 24 OA/050/00372/2021 provision in Rule 75 of family pension scheme for Railway Segvants 1964. It is also submitted that Rule for family pension no where provides that the individual is to be a regular employee. The Hon'ble Supreme Court in case of Yashwant Hari Kakkar (supra) has held that it would be travesty of justice if retiree denied pensionary benefits simply on grou ground nd that he was not a permanent employee not regularized after served for 18 ½ years.
36. In case of Rameshwari Devi versus Union of India, OA No.36 of 2021 (CAT Patna Bench) vide order dated 17.01.2022 in case of employee with temporary status, PLACED RELIANCE ON JUDGMENT OF Yashwant Hari Katakkar versus Union of India, (1996) 7 SCC 113, order of Principal Bench in OA No.1287 of 2000. This Tribunal held that applicant's husband served continuously as Te Temporary mporary Status Casual Labour for almost 22 years and not been regularized for reasons best known to the employer. In O.A. No.143 of 2018, (CAT Bench Patna) Awadhesh Prasad Singh versus Union of India & Ors. related to temporary status employee not regulari regularized, zed, allowed OA directing respondents to settle pension and all pensionary benefits treating his superannuation. This Tribunal in case Rameshwari Devi (Supra) vide order dated 17.01.2022 directed respondents to process for issuance of Pension Payment Order Order..
Order dated 17.01.2022 in OA No.36/2021 Rameshwari Devi case was challenged in CWJC No.7859 of 2022 and Hon'ble High Court, Patna, their Lordships on all arrears amount directed to pay interest at rate of 8% in light of Hon'ble Supreme Court decision in case of Vijay L. Mehrotra versus State of UP, (2001) 9 SCC 687.
37. Case of Rita Devi versus Union of India, OA No.2630 of 2021 (CAT Bench Patna) vide order dated 05.07.2023 in case of deceased employee worked continuously more than seventeen years died in ha harness rness while working as Temporary Status at par with Group 'D' employee status in Postal Department, not been regularized, widow was denied family pension etc. This Tribunal referred ration laid down in O.A. No. 164 of 2008 (Meena Devi vs. Union of India) ddecided ecided on 20.03.2013, upheld in CWJC No.7760 of 2015 (Union of India versus Meena Devi) vide judgment dated 08.12.2022, Hon'ble High Court, Patna held widow entitled for pension, family pension. Reference for consideration before Tribunal in case of Rita D Devi evi (Supra) was whether applicant - widow of Temporary 25 OA/050/00372/2021 Status at par with Group 'D' - without regularization was entitled for pension, family pension and benefits this Tribunal vide order dated 05.07.2023, held applicant's husband be treated as regular Gro Group up 'D' (MTS) notionally from date of grant of Temporary Status at par with Group 'D' employee and issue pension, family pension and benefits with arrears.
38. In case of Shiv Chandra Sah versus Union of India & Others O.A.No.145/2019 (CAT Bench Patna) this Tribunal was seisin with issue - whether applicant who retired more than 25 years service as Temporary Status at par with Group 'D' without regularization is entitled for pension and other retirement benefits? Applicant was selected for promotion to MTS, regular post and applicant did not accept and continued as Temporary Status and retired as temporary status employee at par with Group 'D'. Applicant started employment as Night Guard on daily basis in Postal Department, conferred status of Temporary Status, selected as MTS, did not join denied pension, family pension. This Tribunal in case Shiv Shankar Sah (Supra) considered orders passed in similar facts in OA No.372/2017, OA 609/2017, OA 664/2015 upheld in CWJC No.11435 of 2017 by Hon'ble High Court Court, Patna - failure on part of Postal Department not to regularize the services of husband, private respondent in 23 years of service after having granted temporary status at par with Group 'D' employee and conduct of postal department cannot be appreciated or ignored. So also Hon'ble High Court Patna in CWJC No.10978 of 2017 upheld order passed by this Tribunal in OA No.900/2012, directing respondents to grant pensionary benefits even without regularization under old pension scheme.
39. Hon'ble High Court, Patna in above judgments observed that as per rules for temporary status employee becomes entitled for pensionary benefits on regularization with 10 years of qualifying service which includes full service after regularization and 50% service rendered under temporary orary status. On working for three years as Temporary Status treated at par with Group 'D' employee with all benefits at par and if a temporary status employee is not regularized having served more than 20 years, it can only be due to failure of respondent respondentss department. Temporary Status employee officials otherwise meeting conditions for regularization and pensionary benefits were thus eligible for pension and retirement benefits. So also this Tribunal considered order passed in identical case OA No.143 26 OA/050/00372/2021 of 2018, 018, a Temporary Status employee, not regularized and allowed OA for grant of pension. In case of Shiv Chandra Sah (Supra) vide order dated 21.02.2022, this Tribunal allowed OA, held applicant entitled for pension and pensionary benefits taking into accoun accountt his Temporary Status period as Qualifying Service and treating his superannuation on 03.11.2018, considering 50% pension as Temporary Status as qualifying service and to issue Pension Payment Orders expeditiously within four months.
40. In case of Ratneshwarr Singh versus Union of India, O.A. No.777/2018, decided on 20.09.2018, This Tribunal was seisin with issue applicant engaged as Night Guard as casual worker, conferred with temporary status on completion three years as Temporary Status employee confirmed at part with Group 'D' and retired as Temporary Status and claim for pension denied that his service not regularized and applicant denied to join on regularization. This Tribunal observed that fact remains respondents did not issue any order of regularizat regularization ion during 27 years of applicant's service and right accrued as per Rule 10 of CCS (Temporary Status) Rules 1965 Read with Rule 2 of CCS (Pension) Rules, 1972. So also placed reliance in case OA No.372/2017 dated 27.03.2018 and order dated 21.08.2018 in OA No.609 of 2017 in Ratneshwar Singh (Supra) this Tribunal vide order dated 20.09.2018, allowed OA and directed for fixation of pension, grant of gratuity and all other retiral dues in light of judgment passed in CWJC No.11435 of 2017 and CWJC No.10978 of 22017 017 and order dated 27.03.2018 passed in OA No.372/2017.
41. Hon'ble High Court Patna in CWJC No.13117 of 2018, Union of India & Ors versus Ratneshwar Singh vide judgment dated 03.07.2019 upheld this Tribunal order dated 20.09.2018 in OA No.777/2016. Their Lor Lordships dships considered argument of respondents department that contention of department cannot be accepted that applicant refused promotion to MTS as same cannot be construed that applicant had declined regularization on post he was occupying for more than 27 yyears.
42. The present cases are similar to cases cited herein above and covered by above precedents.
43. In case of Awadhesh Prasad Singh versus Union of India, OA No.143 of 2018, decided on 28.10.2021 by Division Bench of this Tribunal, Seisin with issue to regularize ularize services of Night Guard continuous since 13.01.1984 and Temporary Status conferred but not regularized and denied 27 OA/050/00372/2021 pension etc. This Tribunal vide order dated 28.10.2021 allowed OA to grant pension and all pensionary benefits treating his superannua superannuation tion on 31.10.2019 and directed for issuance of PPO within four months.
44. Respondents Department of Posts filed CWJC No.128 of 2024, Union of India & Ors. Versus Awadhesh Prasad Singh challenging order dated 28.10.2021 in OA No.143 of 2018 and Hon'ble High C Court ourt vide order dated 08.04.2024, heard at length and observed that prima prima-facie facie no case is made out, directed respondents to comply directions of the CAT as a last chance.
45. This Tribunal in similar case titled Naina Devi versus Union of India and others, O OA A No.1109 of 2015 vide order dated 24.11.2023 allowed OA. Relevant paragraphs 39 to 48 for ready reference are reproduced as under:
under:-
"39. In Yashwant Hari Katakkar (supra) Hon'ble Supreme Court held that there is nothing on record to show as to why the applicant licant was not made permanent even when he had served the government for 18 ½ years. It would be travesty of justice if applicant is denied the pensionary benefits simply on the ground that he was not regularized not a permanent employee of the government. Keeping in view facts and circumstances appellant was deemed to have become permanent after he served the government for such a long period. The services shall be treated to be permanent capacity and shall be entitled to the pensionary benefits.
40. In Kritnarain itnarain Singh (Supra), Smt Ram Kali Devi (supra), Meena Devi @ Meena Kunwar (supra), Division Bench of Hon'ble High Court Patna examined core issue involved in present OA and their Lordships upheld the orders passed by this Tribunal in same facts and law and observed that failure on part of postal department respondents not to regularize services of employees serving for long period can not be appreciated and directed respondents to extend benefits of pension, family pension etc. So also upheld orders of o this Tribunal in identical cases.
41. In Shri Painu Ram (supra) Division Bench of Hon'ble High Court of Himachal Pradesh, Shimla dealing with identical issue on similar facts upheld order dated 31.1.2014 passed by coordinate Bench Chandigarh of this Tribunal Trib in O.A. No. 426/HP/2013 (Chandigarh) granting relief to applicant held entitled for same benefits admissible to regular Group 'D' employees once applicant conferred temporary status and having three years service on temporary status without being regularised.
regu
42. In case of Mrs. Alka Sharma (supra) Division Bench of Hon'ble High Court of Punjab & Haryana Their Lordships dealing with pari materia provision of Railway Services (Pension) Rule, Rule 75 of family pension scheme for Railway Servants, 1964. The Hon'ble High Court considered that employee was not at fault for such lack of regularization and not regularized to deceased employee inspite 14 years temporary service and directed to grant family pension and other retiral benefits inspite of not regularized.
regu
43. In case of Awadhesh Prasad Singh (supra), Division Bench of this Tribunal decided similar issue in light of same scheme of Department of Posts seeking pension and other pensioner benefits including regularization in terms of Rule 10, CCS (TS) Rules 1965 read with CCS Pension Rules and Government of India decisions, 28 OA/050/00372/2021 department of Posts. On examination of Government of India Department of Posts Policy dated 30.11.1992, Central Civil Services (Temporary Service) Rules 1965 read with CCS Pension Rules R 1972 held that Temporary employee of Central Government becomes entitled to pension, retirement gratuity, family pension benefits in cases of retirement from superannuation or invalidation after continuous temporary/quashi permanent service not less than 10 years, event of voluntary retirement after 20 years service and event of death in harness. The OA was allowed . Pension and all other benefits were granted treating his superannuation on 31.10.2019. The Hon'ble High Court Patna has upheld the order and dismissed writ application. The present OA is no different fully covered issue no more integra and binding on the Tribunal.
44. In case of Santosh Kumari (supra) learned Coordinate Bench at Chandigarh of this Tribunal decided in October 2023 dealing with issue "whether person who has not been regularized by respondents, the provision of Rule 54 (2) of the CCS Pension Rule 1972 for grant of family pension is attracted or not ?" The learnd Tribunal On examination of core legal issue has held that case is fully covered by judgement in similar cases of Alka Sharma vs Union of India, 2017 (2) SCT (P&H) (DB) passed by Hon'ble High Court Punjab & Haryana also squarely covered in case of postal department Sr. Superintendent of Posts Offices Office vs Painu Ram in CWP No. 2299/2014 and Meena Devi in CWP No. 34 of 2014 passed by Hon'ble High Court Himachal Pradesh.
Considering the facts and circumstances of the present case and legal issue in hand in present case also qualified by precedents binding judicial pronouncements cited herein above of Hon'ble Supreme Court and High Court of Punjab & Himachal Pradesh and our own Hon'ble High Court Patna and Coordinate Benches of this Tribunal and present case is no different. This Tribunal is of the considered ered opinion that the case of applicant is a covered matter on facts and legal issue involved in the present case and no more res- integra.. The applicant is also entitled for the same treatment and consequential benefits envisaged in the Fundamental Right under Article 14 & 21 of Constitution of India guaranteed to the applicant too..
45. In view whereof reading of sub-
sub clause (3) of clause 2 of Para 5 of the Scheme, dated 30.11.1992 reproduced herein above relating to benefit to casual labourers on completion comple of three years service in temporary status of Casual Labourers (Grant of temporary status and regularization) Scheme is crystal clear that temporary employee is entitled to pension and retirement benefits, if he has completed three years of service in temporary status followed by regularization, The husband of applicant granted temporary status w.e.f. 1.8.2000 and not been regularized by respondents inspite of requests and for no fault stood retired on 30.6.2018 and died on 28.5.2022.
The condition of services of the Temporary Government servants are regulated by the Central Civil Services (Temporary Services) Rules 1965. As per Rule 10 of Rules 1965, legal right accrued for grant of pension, retirement gratuity and in the event of death th after retirement, members of his family shall be eligible for the grant of family pension read with the provisions of Central Civil Services (Pension) Rules 2021 (Erstwhile Rules 1972). The explanation (6) provides appended to Rule 2 Applicability Clause of the CCS Pension Rules 2021 to the extend these rules shall also apply to the case of government servant appointed in temporary capacity who retired or were retired before been appointed in a substantive capacity, the benefits under these rules shall sha be payable to the government servant to the extent provide in the Central Civil Services (Temporary Service ) Rules 1965.
29 OA/050/00372/2021 The Rule 50-family family Pension of CCS Pension Rules 2021 (Erstwhile Rule 54 (2) of CCS Pension Rules 1972) and pari materia provision in Rule 75 of family pension scheme for Railway Segvants 1964. It is also submitted that Rule for family pension no where provides that the individual is to be a regular employee. The Hon'ble Supreme Court in case of Yashwant Hari Kakkar (supra) has held that it would be travesty of justice if retiree denied pensionary benefits simply on ground that he was not a permanent employee not regularized after served for 18 ½ years.
The legal issue in hand also qualified by judicial binding precedents pronouncements ements cited herein above of Hon'ble Supreme Court, Hon'ble High Court of Punjab & Haryana, Hon'ble High Court of Himachal Pradesh and our own Hon'ble High Court Patna, their Lordships upheld judgements of this Tribunal in identical facts and legal issue binding b precedents and present case is no different and core issue is no more res-integra.
res
46. For the above reasons,, the issue accordingly decided in the favour of the applicant.
47. In consequences, the deceased employee is held entitled for the pension n to be computed as per findings supra . The respondents are also directed to settle the family pension and other retiral benefits of the deceased employee and pay the arrears of pension and family pension from 28.5.2022 onwards with interest @ 8 percent per annum from the date of entitlement within three months failing which the interest shall be paid @ 9 percent per annum from the date of entitlement till final payment
48. The Original Application is accordingly allowed."
[Emphasis Supplied]
46. The legal issue ssue involved in the present case is also qualified by binding precedents cited herein above upheld by our own Hon'ble High Court Patna, their Lordships upheld orders passed by this Tribunal in identical facts, legal issue and binding precedents. This Trib Tribunal unal is of considered opinion that present case is no different and core issue is involved is no more res-integra.
47. Shri A.K. Singh, learned counsel for respondents much emphasized on that applicant did not accept promotion from temporary status- Generator Operato and submitted application dated 05.03.2015 for refusal for promotion, hence not worked for a day on regular post. Respondents merely made averments no such application dated 05.03.2015 of applicant filed. More so respondents cannot take advantage of own lapses and applicant worked from 1984 till 31.12.2020 almost 36 years continuous services and for reasons con conferred ferred temporary status 29.11.1989.
The respondents did not regularize applicant and there is no refusal by applicant for being considered for regularization. No order of promotion brought on record. Thus contention of respondents cannot be accepted in light ht of lapses not regularization services in 36 years, service of applicant. Hon'ble High Court, Patna in similar case travelled from this Tribunal in 30 OA/050/00372/2021 India,, decided on O.A. No.777/2016 Ratneshwar Singh vs Union of India 20.09.2018, in CWJC No.13117 of 2019 Union of India vs Ratneshwar Singh,, decided on 03.07.2019, their Lordships was seisin with same issue and argument and held that combined offer made by employer to promote and then treat him as regularized was not accepted by the applicant for his personal reas reasons, ons, but that cannot be construed to mean that he declined regularization on the post he was occupying, occupancy of the post continuous for more than 27 years remained undisputed. Hon'ble High Court in case of Ratneshwar Singh (Supra) repelled same argument argument and upheld order of this Tribunal.
CONCLUSION
48. For the above reasons, the applicant is held entitled for the pension to be computed as per findings supra. Respondents are directed to settle the pension and all other retiral benefits and pay the arrears within period of three months with interest @8% per annum from date of entitlement failing which the interest shall be paid @9% per annum from date of entitlement till final payment.
49. The Original Application is accordingly allowed.
50. Any pending Misc. Application (s), if any, shall also stands disposed of.
51. However, there shall be no order as to costs.
52. Registry is directed to send copy of order passed today to Chief Post Master General, Bihar Circle, Patna Patna-800001 800001 to report compliance of order passed today and submit report within four months for compliance of order passed today and in case of non non-compliance.
compliance. Registry is further directed to post this matter before Bench on 4th November, 2024 for reporting compliance.
Sd/-
[Ajay Pratap Singh] Judicial Member Central Administrative Tribunal Patna Bench, Patna Bp/sks/-