Central Administrative Tribunal - Patna
Bindi Devi vs Postal on 27 September, 2024
1 OA No. /050/00176/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00176/2020
Reserved on: 02.09. 2024
Pronounced on: 27.09.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Bindi Devi, wife of late Ram Swarath Singh, Ward No.14,
Bajitpur Malahi, District Vaisali- 844 502.
.......... Applicant
-Versus-
Patna 1. The Union of India through the Secretary, Ministry of
Bench
Communication, Department of Posts, New Delhi -110 001.
2. The Director General, Department of Post, Dak Bhawan, Sansad
Marg, New Delhi - 110 001.
3. The Chief Postmaster General, Bihar Circle, GPO Complex,
Patna-800001.
4. The Director of Accounts (Postal), Patna-800 001.
5. Superintendent of Post Offices, Vaisali Division, Hajipur-844102.
........Respondents
For Applicant:- Shri Sudhir Kumar Tiwary, Advocate.
For Respondents:- Shri Rana Randhir Singh, Addl. CGSC
ORDER
PER:- AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. Heard learned counsel for parties with consent through video conferencing mode.
2 OA No. /050/00176/2020PRAYER
2. By way of present Original Application filed under Section 19 of Administrative Tribunals Act 1985, applicant has sought the main relief (as extracted from OA) as under:-
"8(i) The applicant humbly prays that the respondents may be directed to finalize her family pension w.e.f. 15.06.2017 and its benefits under CCS(Pension) Rules, 1972 and release the family pension and consequential benefits immediately.
8(ii) The applicant further prays that arrears of the family pension and its benefits with 10% interest may be granted.
8(iii) Any relief/reliefs may be granted to the applicant for Patna Bench ends of justice."
FACTS IN BRIEF
3. Briefly stated facts as adumbrated by applicant in the instant OA are that her husband was initially appointed as Casual Labour Night Guard with the respondents on 04.08.1984. Thereafter he was granted temporary status w.e.f. 29.11.1992 vide Memo dated 04.08.1994 (Annexure A/1) status at par with Group 'D' employee w.e.f. 29.11.1992.
As per provision of Grant of Temporary Status Scheme, 1989, a person who had completed three years as temporary status casual labour, would be treated at par with Group 'D' employee, therefore, husband of applicant was informed vide Memo dated 04.08.1994 that he had been granted status as par with Group 'D' employee w.e.f. 29.11.1992.
Meanwhile, applicant's husband died in harness on 15.06.2017 leaving behind widow (applicant), one minor son and one minor daughter.
4. It is the case of applicant in the OA that after death of her husband, she has not been granted family pension and other benefits. Applicant 3 OA No. /050/00176/2020 made a representation to the respondents for counting 50% service of her husband as temporary status period for grant of pensionary benefits.
Whereas husband of the applicant has completed more than 10 years qualifying service. Applicant's husband was granted temporary status vide Memo dated 04.08.1994 w.e.f. 29.11.1992 and granted status at par with Group 'D' employee w.e.f. 29.11.1992 and died in harness on 15.06.2017.
5. It is also the case of applicant that the qualifying service of her husband being counted from 29.11.1992 for pensionary benefits although Patna Bench 50% period would also need to be counted from 29.11.1992 to 15.06.2017 (date of death in harness) as per CCS (Temporary Service) Rules, 1965 which entitles the applicant for family pension and other pensionary benefits. Therefore, denial of her claim by the respondents is violative of rules and judicial precedents in similar facts and legal issue.
6. Per contra, opposing the claim of the applicant, respondents have filed written statement and stated that late Shri Ram Swarth Singh, (husband of applicant) was initially appointed as Casual Labour Night Guard at Bidupur RS Sub Post Office under Vaishali Division on 29.11.1989. He was granted temporary status w.e.f. 29.11.1989 and after completion of three years of service under temporary status, he was conferred casual labour with temporary status at par with temporary status Group 'D' employee w.e.f. 29.11.1992 vide order dated 04.08.1994 in pursuance of order contained in Secretary, Posts, New Delhi letter dated 12.04.1991. He died on 15.06.2017 before getting regularized in departmental cadre of MTS/Group-D. Had husband of the applicant 4 OA No. /050/00176/2020 regularized as Group 'D' employee before his death, he would have been entitled to get pensionary benefits as per Dte. Letter dated 12.04.1991.
Since he was not regularized in regular service at the time of his death, he or his wife, i.e., applicant in present OA, is not entitled to get pensionary benefits under CCS (Pension) Rules, 1972. Had husband of the applicant regularized as Group 'D' employee before his death, he would have been entitled to get pensionary benefits as per Dte. Letter dated 12.04.1991
7. It is further stated by the respondents in the Written Statement that as per Casual Labour (Grant of Temporary Status and Regularization) Patna Bench Scheme in the Department of Posts, circulated vide letter dated 12.04.1991, 50% of service rendered under temporary status would be counted for the purpose of retirement benefit only after their regularization. Moreover, CCS (Pension) Rules, 1972 shall not apply to persons in casual and daily-rated employment, who are paid from contingency fund.
8. It is also stated in the WS that CCS (Temporary Service) Rules, 1965 shall also not apply to persons employed in extra-ordinary establishments or in work-charged establishments other than the persons employed temporarily and who opted for pensionary benefits and paid from contingencies as mentioned in Rule (4)(d) & (e) of the CCS (Temporary Service) Rules, 1965. In the said rules, "Temporary Service"
is defined as the service of a temporary government servant in a temporary post or officiating service in a permanent post under the Government of India. But in the present case applicant's husband was employed only in extra-temporary establishment - neither he was 5 OA No. /050/00176/2020 employed on temporary post nor did he officiate in a permanent post and he was paid from contingencies.
9. Respondents further averred in the WS that total strength of MTS cadre in Vaishali Division is 25 at present. There were 23 temporary status Group 'D' (now MTS) in this Unit. Out of the said vacancies, seniority of applicant's husband was at serial no.18. Among all temporary status only 12 were regularized against the vacancies meant for casual labourers. Remaining including applicant's husband remained under temporary status due to non-availability of vacancies till his death. It is Patna Bench also pertinent to ention here that only 25% of total vacancies are kept for appointment as MTS through selection of casual labourers on seniority basis by DPC. The respondents have also stated that Hon'ble High Court, Patna vide judgment dated 14.10.2019 in CWJC No.15420 of 2019 Union of India vs. Bhikhani Devi also confirms the fact that CCS (Pension) Rules, 1972 are not applicable to TS Group 'D' (now MTS) employees without their regularization on a regular post.
SUBMISSIONS
10. Shri S.K. Tiwary, learned counsel for applicant contended that:-
(i) Husband of the applicant was appointed as Casual labour Night Guard paid from contingency fund on 04.08.1984 and granted temporary status at par with Group 'D' employee w.e.f.
29.11.1989 vide Order dated 04.08.1994 (Annexure A-1) and granted benefits of regular Group 'D' employee w.e.f. 29.11.1989. Respondents did not consider husband of applicant for MTS cadre in 24 years active service. Husband of applicant died in harness on 15.06.2017 (Annexure A-2) while working as Contingency Paid Night Guard at par with Group 'D' employee 6 OA No. /050/00176/2020 of Postal Department as evident from Office Order dated 04.08.1994 (Annexure A-1).
(ii) Applicant's case is covered by catena of Orders of this Tribunal upheld by Hon'ble High Court, Patna. The decisions of Hon'ble High Court, Patna in Union of India & Ors. versus Meena Devi @ Meena Kunwar CWJC No.7760 of 2015 vide judgment dated 08.12.2022 reported in 2023 2023 (!) PLJR 506 is squarely applicable in present case.
(iii) Applicant's husband was granted temporary status at par with Group 'D' employee vide Office Order dated 04.08.1994 w.e.f. 29.11.1992 and died in harness on 15.06.2017. Applicant is widow of deceased employee and is legally entitled for pension as per Rule 10 (2) of CCS ("TS) Rules, 1965, completed more than Patna Bench ten years as qualifying service in temporary status Group 'D' vide Order dated 04.08.1994 (Annexure A-1).
(iv) Applicant cannot be made to suffer on lapses on part of respondents not issued order of regularization from 04.08.1984 to 15.06.2017 for husband and neither rejected till death in harness. Hon'ble 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".
(v) Applicant husband was granted temporary status w.e.f.
29.11.1992, worked for three years and as per scheme, related to casual labour (Grant of Temporary Status and 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 complete three years service in newly acquired temporary status and entitled for benefits to temporary Group 'D' employees w.e.f. 29.11.1992.
(vi) Applicant husband was working as temporary status at par with temporary Group 'D' employee w.e.f. 29.11.1992 till died on 15.06.2017 in harness as per scheme of Govt. of India and entitled 7 OA No. /050/00176/2020 for pension as per Rule 10 of Central Civil Services (Temporary Services) Rules, 1965 (in short Rules 1965), applicant husband 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. So also exactly in identical facts and legal issue, this Tribunal in OA No.050/00145/2019 Shiv Chandra Sah versus Union of India & Ors., vide order dated 21.02.2022 directed the respondents to grant pension on retirement considering 50% of T.S. period as qualifying service for issue of PPO and other retirement benefits. The Hon'ble High Court, Patna in CWJC No.14115/2013 Union of India vs. Shiv Chandra Sah, upheld Patna Bench order dated 21.02.2022, in OA No.145/2019 of this Tribunal, vide judgment dated 22.08.2024. The issue involved in present OA is no more re-integra.
(vii) 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 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 appointed in a substantive capacity, the benefits under these rules shall be payable to Govt. servant to extent provided in Rules, 1965.
(viii) Applicant and her husband-deceased employee is also covered by Schemes, Rules 1965 and read with CCS (Pension) Rules and entitled for pension and retiral benefits.
(ix) Applicant's deceased husband is entitled to reckon qualifying services for pension purposes 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 entitled to reckon entire period from date of taking charge.
(x) Applicant's husband -deceased employee is entitled for reckoning services for purposes of pension as held by this Tribunal in 8 OA No. /050/00176/2020 identical-pari-mereria rules in case Mojib Ansari versus Union of India, OA No. 265/2021 decided on 29.05.2023 and in para- materia provision in case of Union of India vs. Rakesh Kumar (2017) 13 SCC 388 by Hon'ble Supreme Court.
(xi) Applicant cannot be made to suffer merely stating that deceased husband of applicant could not be promoted or regularized at the time of death in harness after serving for 24 years. 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 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 Patna Bench order of this Tribunal.
11. Shri Rana Randhir Singh, learned Additional C.G.S.C. appearing for respondents submitted that :
(i) Husband of applicant was conferred status of Group 'D' employee of Department as per Scheme dated 27.12.1991 and
12.04.1991. Deceased employee continued from 29.11.1992 as temporary employee till died in harness on 15.06.2017 without regularization, not entitled for relief claimed.
(ii) Applicant's husband not entitled to reckon qualifying services for pensionary purposes being at par with Group 'D' employee and applicant not entitled under CCS (Pension) Rules and Rules 1965 for grant of pension/family pension as deceased employee status was of temporary employee not regularized at the time of death.
THE ISSUE
12. From the above submissions of the learned counsel for the parties and material placed on record. The admitted fact that applicant joined services as Contingency Paid Night Guard as Casual Labour on 04.08.1984. Thereafter conferred temporary status w.e.f. 29.11.1992 after rendering continuous long, efficient service all his active life till died in harness on 15.06.2017. The core issue arises before this Tribunal for determination is:-
"Whether deceased employee, the husband of the applicant who was appointed as Night Guard CasualLlobour and thereafter conferred the status of temporary employee w.e.f. 29.11.1992 and died on 15.06.2017 after 24 years of active service and his legal heir-Smt. Bindi Devi -the applicant is entitled to benefit of pension or family pension or not?"9 OA No. /050/00176/2020
ANALYSIS
13. 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 (Temporary Services) Rules, 1965, the Central Civil Services (Pension) Rules 2021, judgment binding precedents in similar cases, in cases of pari-materia provisions passed by Hon'ble Supreme Court, Hon'ble High Courts, our own Hon'ble High Court Patna and Benches of the Central Administrative Tribunal as under:-.
RULE OF LAW (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 and approved by his Excellency President of India relevant portion is reproduced as under for appreciation of the Patna Core issue involved in the present OA:-
Bench Casual Labourers (Grant of Temporary Status and Regularisation) Scheme : In compliance with the directions of the Hon'ble Supreme Court a scheme was drawn up by this Department in consultation 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 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 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 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 10 OA No. /050/00176/2020 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 to availability of vacancies.
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 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 Patna daily rates of pay on need basis.
Bench 16. The conferment of temporary status has no relation to availability 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 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.
[G.I. Dept of Posts.Lr. No.45-95/87-SPB.I, dated 12th April,1991] [Emphasis Supplied]
(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-
Clarification -1 Further to Letter No. 45-95/87-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, if they have completed one year of service at least 240 days.
[G.I. DEPTT. OF POSTS, LR No. 45-56/92, 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 to such benefits as are admissible to Group 'D' employees on regular basis.
11 OA No. /050/00176/20202. In compliance with the above-said 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 circular No. 45- 95/87-SPB. I, dated 12-4-1991, 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 service 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 and retirement benefits after their regularization; (4) Central Government Employees' Insurance Scheme; (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 Patna such employees may also be maintained.
Bench [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 (1-B), a temporary Government servant who retires on superannuation or is discharged from service or is declared invalid for further service shall 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 measure, the provisions of sub-rule (1) shall apply subject to the modification that the rate of gratuity payable in his case shall not be less than two-thirds of, but in no case exceeding, the rate specified in sub-rule (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 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 (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 12 OA No. /050/00176/2020
(ii) in the event of his death after retirement, the members of his family 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.
(C) The Central Civil Services (Pension) Rules 1972 Now consequent of seventh Central Pay Commission old rules 1972 reviewed 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:-
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 Patna the Official Gazette.
Bench
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, 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 by or under the provisions of the Constitution or any other law for the time being in force.
Explanation.- These rules shall also apply to:-
(6) the case of Government servants appointed in temporary capacity to civil services and posts in connection 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 the Central Civil Services (Temporary Service) Rules, 1965.
50. Family Pension.- (1) Where a Government servant 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 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 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.13 OA No. /050/00176/2020
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.
[Emphasis Supplied] CASE - LAW
14. Before examining the core issue framed. This Tribunal would first deal with binding precedent some of the various judgments settled the law on the similar facts and the issue involved not been referred to higher bench. So also judgments dealing with pari-materia provisions related to same category of employees as under:-
(i) The Hon'ble Supreme 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 :-
Patna "writ petitioner in W.P. No. 1624/1986 working as substitute Bench employees and casual labourers in the Department of Posts, Govt. of India claimed relief to treat at par with regular employees and be paid same emoluments as regular employees. The Hon'ble Supreme Court in Para 11 directed as under:-
" 11 The Temporary Status would be available to the casual labourers in the Postal Department on completion of one year continuous service 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 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 of the Constitution should provide the same. After rendering three years of continuous 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."
[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:-
"3. Dr. Anand Prakash, learned Senior 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 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 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 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 14 OA No. /050/00176/2020 served the government for almost-two decades it would be unfair to treat him as temporary/quasi-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. The services of the appellant shall be treated to be in 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 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 Temporary Patna Status Casual Labour, was never regularized nor worked on a regular Bench 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 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 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, CWJC No. 11435 of 2017 decided on 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 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 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 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 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) 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 Court Patna dealing with 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 15 OA No. /050/00176/2020 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 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 and his legal heirs is entitled to benefit of pension/family pension or not ?"
So also held that sub-clause (3) of clause (2) of Para 5 of Casual Labourers (Grant of Temporary Status and Regularization Scheme is crystal clear that temporary employees 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 Patna Bench of 2008 (CAT, Patna) rejecting CWJC No. 7760/2015 of Department of Posts. Their Lordships also directed as under :-
"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 (2) of Rule 10 of Rules 1965 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 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 offices versus Shri Painu Ram decided on 23.7.2018, dealing with identical issue on facts and legal points and law as involved in present O.A "whether a part timer, who was conferred temporary 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 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 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 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 fault for such 16 OA No. /050/00176/2020 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 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 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.
15. 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:-
(a)(i) The Division Bench of this Tribunal in O.A. No. 050/00143/2018 Awadhesh Prasad Singh versus The Union of India & ors decided on 28.10.2021. The said O.A. was filed by Night Guard working in Department of Patna Posts seeking pension and other pensionary benefits in terms of Rule 10, CCS Bench (TS) Rules 1965 read with GID (3) below Rule 2 of CCS (Pension) Rules, 1972.
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. 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.
The Division bench of this Tribunal considering impact of clause 5 of Government of India, Department of Posts letter No. 66-9/91-SPB. I dated 30th November, 1992- benefits to a casual labour on completion of three years service in Temporary status become 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 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 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, 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 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 that their services be treated as a regular one. However, it is made clear that they shall not be 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 to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they 17 OA No. /050/00176/2020 entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined 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]
(ii) Hon'ble High Court, Patna in CWJC No.128 of 2024 in Union of India & Ors. vs. Awadhesh Prasad Singh (arising out of order dated 02.08.2021 in OA No.050/00143/2018 Awadhesh Prasad Singh vs. Union of India & Ors.). Their Lordships vide order dated 08.04.2024, heard the matter at length and observed that no prima facie case made out. Thereafter vide order dated 20.06.2024 upheld order dated 28.10.2021 in OA No.143 of 2018. The present OA on hand also no different.
(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 Patna deceased employee. The learned Tribunal dealt issue "whether the person Bench who has not been regularized by the respondents the provision of Rule 54 (2) of the CCS Pension Rules, 1972 is attracted or not ? The learned 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 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 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.
16. In present case this Tribunal is dealing with the issue "Whether deceased employee, the husband of the applicant who was appointed as Night Guard CasualLlobour and thereafter conferred the status of temporary employee w.e.f. 29.11.1992 and died on 15.06.2017 after 24 years of active service and his legal heir-Smt. Bindi Devi -the applicant is entitled to benefit of pension or family pension or not?"
17. Admittedly, husband of the applicant was initially engaged on 04.08.1994 as Contingency Paid Night Guard Casual Labourer. The department of posts vide instruction dated 17.5.1989 clarified 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 01.10.1989. The scheme provided provisions for conferment of temporary status to casual labourers. So also the 18 OA No. /050/00176/2020 scheme specified advantages at part with Group 'D' regular employee available on conferment of status of temporary employee.
18. The casual labourers in the Department of Posts filed writ petition before Hon'ble Supreme Court in case of Jagrit Mazdoor Union 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 employees. 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 state as an ideal employer fulfilling the Directive Principles of state policy should treat similarly with regular employees in the department".
Patna Bench
19. The Hon'ble Supreme Court, three Judge Bench in Jagrit Mazdoor Union (supra) decided on 29.11.1989 also held as 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 to such benefits as are admissible to Group 'D' employees on regular basis."
[Emphasis Supplied]
20. In compliance with directions of Hon'ble Supreme Court in the case of Jagrit Mazdoor Union (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.
21. The Scheme dated 12.4.1991 having binding statutory force, social and beneficial legislation to protect fructify the legislative intent to extend benefits to long continuous working of casual labourers.
22. The Scheme dated 12.04.1991 confers temporary status on casual labourers in employment as on 29.11.1989. The husband of the applicant is appointee of year 1984 admitted fact and has been requesting to regularize and ought to have been regularized in accordance with law as regular employee for no fault of 19 OA No. /050/00176/2020 applicant made to suffer in spite of working temporary employee w.e.f. 29.11.1992 violating Article 14, 21, 31A and 300 of the Constitution of India.
23. The applicant's husband has been conferred temporary status w.e.f. 29.11.1992 pursuant to order dated 04.08.1994 (Annexure A-1) and the statutory binding scheme has conferred certain advantages to 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 '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. The legislative intent is clear as noon day in formulating the statutory scheme dated 12.4.1991 and writ in the nature of Patna Bench 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 after rendering three years continuous service as temporary status.
24. The deceased husband of applicant was conferred temporary status w.e.f. 29.11.1992 (Annexure A-1) and accordance with Para 8 of the scheme and on principles of beneficial construction and harmoniously construing the scheme. The applicant's husband since 29.11.1992 attained status of temporary Group 'D' employees and regularly contributed to G.P.F. The applicant's husband was in capacity of temporary employee w.e.f. 29.11.1992 vide Order dated 04.08.1994 (AnnexureA-1). The applicant's husband having continuously worked as temporary status casual labourer since 29.11.1992 is holder of post of temporary employee/quasi permanent status and deserves to be dealt fairly 20 OA No. /050/00176/2020 by the model employer state accordance with guarantee 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 for more than 24 years in temporary post and without considering for regularizing till death on 15.06.2017.
25. The husband of the applicant husband acquired status of temporary employee Group 'D' of Department of Posts on 29.11.1992 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 Mazdoor Union (supra).
26. The Para 17 of statutory scheme also provides in mandatory terms no Patna recruitment from open market for Group 'D' posts till casual labourers Bench 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 deceased husband of the applicant was 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 cannot take advantages and plea not even considered for regularization available to them that since no regularization no pension etc. The husband of applicant died in harness on 15.06.2017 and no one has control over death, hence, cannot be denied benefits of beneficial measures of CCS (TS) Rules, 1965.
27. This Tribunal considering the specific averments made by applicant in the O.A that respondents have not regularized services on regular post as per law on time in case of her husband, in spite of written requests and died on 15.06.2017 without being regularized. 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 1984. Hence respondents cannot take advantage of own mistakes and latches to deny retirement benefits as not regularized deceased employee before retirement. The matter of right, right accrued pursuant to the scheme and policy applicable to applicant and deceased employee ought to have at least considered for regularization before date of death. The applicant worked since 1984 till 21 OA No. /050/00176/2020 15.06.2017 almost more than twenty three (23) years in the department in Contingency Paid capacity as Night Guard.
28. The department of posts issued clarifications some of reproduced herein above enumerating advantages of temporary employee. 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 deceased employee in light of statutory scheme and policies and cannot be taken away by respondents. The Department 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 justice. So also envisaged in D.P.S.P. Part IV of Constitution. These policy, scheme circulars are Patna Bench 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. The said contention deserves to be rejected and applicant can not be denied relief claimed.
29. The sub-clause 2 of clause 5 of G.I.D (5) policy dated 30.11.1992 quoted herein above is also crystal clear that casual labourers of the postal department with effect from date of completion three years of service in newly acquired temporary status in present case w.e.f. 02.06.2003 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.
30. The Conditions of Service of temporary government servants are regulated by 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 government 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 22 OA No. /050/00176/2020 without substantive appointment are held entitled for pension etc as per Rules 1965 and Pension Rules 2021.
31. 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 explanations (6) of CCS Pension Rules 2021 are applicable to those temporary employee like applicant. So 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 services 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 extent provided in the Central Civil Services Patna Bench (Temporary Service) Rules, 1965. Thus applicant entitled to benefits as admissible to any other public servant and respondents have violated fundamental right enshrined in Article 14 and 21 of Constitution of India.
32. 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.
33. The applicant's husband died in harness on 15.06.2017 as temporary employee for no fault of own not regularized, respondents did not discharge their duties and no rebuttal in reply to O.A. Whereas Rule 10 of Rules 1965 read with Pension Rules 2021 and Policy dated 30.11.1992 provides for grant of pension, family pension and retirement benefits to temporary employee. The status of employee was at par with regular employee on long 23 years continuation on temporary post in welfare state. The Scheme of statutory Rules 1965 read with Pension Rules 2021 would prevail over any policy decision.
34. The explanation no. 6 to Rule 2of CCS Pension Rules 2021 makes it clear that applicant's husband who died in harness on 15.06.2017 before having been appointed in a substantive capacity as regular cadre employee for such type of category of temporary employee benefit of pension Rules 23 OA No. /050/00176/2020 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:-
(i) On retirement 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.
[Emphasis supplied]
35. 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 view of whereof of the firm view that Government of India, Department of Posts Patna instructions, scheme dated 12.4.1991 letter no. 66-9/91-SPB-I dated 30.11.1992 Bench and Rules 1965 extracted herein above are social legislation when read conjointly and 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 welfare and state as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part IV of the Constitution.
36. Thus respondents cannot take advantages of their own wrong and lapses and for no fault applicant cannot be made to suffer and applicant entitled to receive pension/family pension as if deceased husband retired from regular establishment and so also held by Hon'ble Supreme court in para 36 of judgment in case of Prem Singh versus State of U.P & Ors (2019) 10 SCC 516 reproduced herein above.
37. The contention of the 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 order dated 27.3.2018 passed in O.A. No. 372/2017 (Bhikhani Devi Vs Union of India) as Tribunal relied on ratio in CWJC No. 11435/2017 and 10978/2017 and SLP dismissed against 24 OA No. /050/00176/2020 same. Their Lordships in case of Bhikhani Devi (supra) observed that judgments relied by Tribunal in CWJC 11435/2017 and 10978/2017 and none of them considered the impact 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, pensionary benefits would not be admissible.
38. The learned counsel for applicant in rebuttal submitted that the Division Bench of Hon'ble High Court Patna in similar facts and legal 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 Patna Bench in similar OA No. 164/2008 (Patna) and granted benefits of family pension arrears as per Rule 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) 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 legal heir and she is awaiting for certain monetary benefits for more than decade, therefore to calculate monetary benefits in the light of sub-rule 2 of 10 of Rules 1965 and the same shall be extended to the respondents within a period of three months from the date 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]
39. 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 applicability of CCS Pension Rules. After considering the proposition of law precedent/ratio decidendi has been laid down. This Tribunal is bound 25 OA No. /050/00176/2020 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 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.
40. 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 Patna Bench 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 India guaranteed to the applicant too.
41. In view whereof reading of 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 has completed three years of service in temporary status followed by regularization. The applicant's husband granted temporary status w.e.f. 29.11.1992 and not been regularized by respondents inspite of requests and for no fault died in harness on 15.06.2017 after serving from 1984 to 15.06.2017.
42. 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 26 OA No. /050/00176/2020 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.
43. The Rule 50-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.
Patna Bench
44. 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 Temporary 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. (supra) upheld by Hon'ble High Court of Patna in CWJC No.128 of 2024 vide orders dated 20.06.2024 related to temporary status employee not regularized, 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 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.
45. 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 harness while working as Temporary Status at par with Group 'D' employee status in Postal 27 OA No. /050/00176/2020 Department, not been regularized, widow was denied family pension etc. This Tribunal referred ratio laid down in O.A. No. 164 of 2008 (Meena Devi vs. Union of India) decided 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 Devi (Supra) was whether applicant - widow of Temporary 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 Group '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.
Patna Bench
46. 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, 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.
47. Hon'ble High Court, Patna in above cited 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 status. On 28 OA No. /050/00176/2020 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 respondents 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 of 2018, 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 account 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. Patna Bench Respondents challenged order dated 21.02.2022 in identical case on hand titled Shiv Charndra Shah (supra) in CWJC No.1415 of 2023 Union of India vs. Shiv Chandra Shah, upheld by Hon'ble High Court, Patna vide order dated 22.08.2024.
48. In case of Ratneshwar 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 regularization 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 2017 and order dated 27.03.2018 passed in OA No.372/2017.
49. 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 29 OA No. /050/00176/2020 Tribunal order dated 20.09.2018 in OA No.777/2016. Their Lordships 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 years.
50. The present case is similar to cases cited herein above and covered by above precedents.
51. 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 services of Night Guard continuous since 13.01.1984 and Temporary Status conferred but not regularized and denied pension etc. This Patna Tribunal vide order dated 28.10.2021 allowed OA to grant pension and all Bench pensionary benefits treating his superannuation on 31.10.2019 date of retirement and directed for issuance of PPO within four months. Hon'ble High Court, Patna in CWJC No.128 of 2024 vide order dated 28.10.2024 affirmed order dated 20.10.2021 in Awadhesh Prasad Singh (supra).
52. 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 Court vide order dated 08.04.2024, heard at length and observed that prima-facie no case is made out, directed respondents to comply directions of the CAT as a last chance and affirmed order dated 28.10.2021 in the OA.
53. This Tribunal in similar facts and identical issue in case titled Naina Devi versus Union of India and others, OA No.1109 of 2015 vide order dated 24.11.2023 allowed OA. Relevant paragraphs 39 to 48 for ready reference are reproduced as 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 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 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 30 OA No. /050/00176/2020 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 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 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.
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.
43. In case of Awadhesh Prasad Singh (supra), Division Bench of Patna this Tribunal decided similar issue in light of same scheme of Bench 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, 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 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 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 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- 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 31 OA No. /050/00176/2020 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 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 Pension of CCS Pension Rules 2021 (Erstwhile Rule 54 (2) of CCS Pension Rules 1972) and pari materia Patna provision in Rule 75 of family pension scheme for Railway Segvants Bench 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 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 precedents and present case is no different and core issue is no more res-integra.
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 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]
54. The legal issue 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 Tribunal is of considered opinion that present case is no different and core issue is involved is no more res-integra.
55. Respondents much emphasized that husband of applicant while working as Temporary Status - Night Guard expressed his willingness to be promoted as 32 OA No. /050/00176/2020 regular employee, but not appointed on regular Group 'D' employee. As evident from pleadings husband of applicant worked since year 1984 till 2017 as Contingency Paid Night Guard but in more than 24 years of service could not be regularized and applicant's husband-deceased employee never refused to be regularized on post he was working. Respondents have not produced any order that applicant's husband was promoted and this Tribunal finds that argument has no force and devoid of merit and repelled.
56. Hon'ble High Court Patna in similar case of Union of India versus Ratneshwar Singh, CWJC No.13117 of 2019 vide judgment dated 03.07.2019 (Annexure - A/5 with OA) in paragraph 3, their Lordships held - "These letters nowhere indicate that the respondent-petitioner had declined to accept regularization. In the said circumstances, the combined offer made by Patna Bench petitioner to promote him and then to treat him as regularized was not accepted by the respondent-petitioner for his personal letters, but that cannot be construed to mean that he had declined regularization on the post he was occupying. The continuous occupancy of post remained for 27 years undisputed in said background judgment in CWJC No.11435 of 2017 as extracted in paragraph 11 of impugned judgment comes to the aid of respondent- petitioner." In view of law laid down in similar facts and contention raised by respondents, Ho'ble High Court, Patna their Lordships repelled similar contention as raised in case on hand. Arguments of learned counsel for respondents has no force ad no document, i.e., promotion order and no application of refusal and repelled has been produced. In view whereof, OA deserves to be allowed, with all consequential benefits.
CONCLUSION
57. For the above reasons, the deceased employee - husband of the applicant is held entitled for the pension to be computed as per findings supra. Respondents are directed to settle the pension, family pension and all other retiral benefits accordingly and pay the arrears within period of three months from date of production/receipt of order passed today, 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.
58. The Original Application is accordingly allowed.
59. Any pending Misc. Application (s), if any, shall also stands disposed of.
33 OA No. /050/00176/202060. However, there shall be no order as to costs.
61. Registry is directed to send copy of order passed today to Chief Post Master General, Bihar Circle, Patna-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-compliance. Registry is further directed to post this matter before Bench on 17th March, 2025 for reporting compliance.
(Ajay Pratap Singh) Judicial Member.
Central Administrative Tribunal, Patna Bench, Patna.
na/-
Patna Bench