Central Administrative Tribunal - Patna
Ramashish vs Railway on 10 April, 2024
::1:: OA 708/2016/CAT/PATNA BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00708/2016
Reserved on: 21.02. 2024.
Pronounced on:10.04.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, MEMBER [A]
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
1. Ramashish son of Late Dwarik, Ex-Trackman under Senior Section
Engineer (P.Way), East Central Railway, Mokama District-Patna, resident of
village Kanhaipur via-Mokama District-Patna (Bihar).
2. Shital son of Late Borhan, Ex-Trackman under Senior Section Engineer
(P.Way), East Central Railway, Mokama District-Patna, resident of village
Kanhaipur via-Mokama District-Patna (Bihar).
3. Sahdeo Son of Late Lalu, Ex Trackman Under Senior Section Engineer
(P.Way), East Central Railway, Mokama District-Patna, Resident of Village
Kanhaipur Via Mokama District-Patna (Bihar).
.......... Applicants.
-Versus-
1. The Union of India through the General Manager, East Central Railway,
Hajipur, District-Vaishali, (Bihar).
2. The General Manager (Personnel), East Central Railway, Hajipur, District-
Vaishali, (Bihar).
3.The Financial Advisor & Chief Accounts Officer, East Central Railway,
Hajipur (Bihar).
4. The Divisional Railway Manager, East Central Railway, Danapur.
5. The Senior Divisional Personnel Officer, East Central Railway, Danapur.
6. The Senior Divisional Engineer (Co-Ordination), East Central Railway,
Danapur.
7. The Senior Divisional Financial Manager, East Central Railway, Danapur
........Respondents
For Applicant:- Shri M.P. Dixit Advocate
For Respondents:- Shri Bindhyachal Rai Additional Standing Counsel
ORDER
AS PER AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. The present Original Application has been filed under Section 19 of the Administrative Tribunals, Act 1985 seeking direction to the respondents to reckon 100% period of their services as casual worker after obtaining temporary status till they are regularized on a regular/temporary post instead of 50%. So also casual worker before obtaining the temporary status are also entitled to ::2:: OA 708/2016/CAT/PATNA BENCH reckon 50% of casual services for purposes of pension and pensionary benefits and revise the pension and pensionary benefits and pay arrears with interest @ 15%.
PRAYER
2. The applicants have claimed following main relief(s) (as extracted from the OA) as under:-
"8.1 That your Lordships may graciously be pleased to command /direct the Respondents to count entire service of applicants rendered under Temporary status as full i.e. 100% instead of 50% and further be pleased to direct them to count 50% service of applicants rendered as Casual Labour in view of the judicial pronouncements as contained in Annexure A / 2 to A / 6 without any further delay.
8.2 That the Respondents be further directed to revise the entire pensionary benefits accordingly and make payment of arrears with 15% interest together with all consequential benefit.
8.3 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicants."
FACTS IN BRIEF
3. Shorn of unnecessary details, the briefly stated facts, as adumbrated by the applicants, necessary for the resolution in the lis, are as follows:-
The applicants are three in number superannuated from the post of Trackmen under Senior Section Engineer (Path-Way), East Central Railway, Mokama,Danapur Division, district-Patna. The service details of the applicants as stated in the OA as under:
Sl. Name of applicants. Date of Date of grant of Year of Date of No. engagement as Temporary Status. regularization on Superannuation.
casual worker. regular temporary
post
1 2 3 4 5 6
1. Ramashish 01.01.1987 01.01.1987 1992 30.04.2012
2. Shital 01.01.1983 01.01.1983 1990 31.03.2005
3. Sahdeo 16.11.1978 16.11.1978 1980 31.10.2005
4. The applicants have further stated that respondents have not counted towards qualifying service for pension and pensionary benefits rendered as casual labour before obtaining the temporary status and the applicants are entitled for 100 % counting of service rendered after obtaining temporary status till they are regularized on the regular post, whereas respondents reckoned only 50% of their service as temporary status casual worker.
5. It is also the case of the applicants that in similar facts and identical legal issue this Tribunal in O.A. No. 505/2005, titled as Manikant Jha Versus Union of India & ors allowed the O.A. vide order dated 02.09.2006 in O.A. No. ::3:: OA 708/2016/CAT/PATNA BENCH 505/2005. Thereafter, Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.(s) 20041/2008 titled as Union of India and others versus Sarju with four connected cases vide order dated 30.09.2011 (Annexure A-3) upheld the orders of this Tribunal and Hon'ble High Court Patna and directed to respondents to count the full service, 100% period of service of casual worker after obtaining temporary status till they are regularized on a regular post and resultantly all the S.L.P. were dismissed.
6. The applicants have also stated that this Tribunal in the batch of 29 similar original applications with lead case O.A. No. 657/2012 allowed vide common order dated 07.11.2014 and directed respondents to count 100% continuous service towards pensionary benefits if otherwise admissible from the period of temporary status till date of regularization and thereafter till date of superannuation and to count 50% for period of continuous services rendered as casual labour till date of obtaining temporary status with liberty to the respondents to verify the service and other records of the employee for ascertaining genuineness. The applicants also claiming similar benefits as granted by this Tribunal in similar cases O.A. No. 317/2016 (Patna) Mandish Versus Union of India & ors decided on 17.05.2016.
7. Per contra, the respondents have contested the claim of the applicants by filing the Written Statement that applicants have retired and all admissible benefits paid to them. The Para 2005 of IREM-Vol.I stipulates that casual labour on grant of temporary status and thereafter regularized by way of absorption in the railway service on regular post than the casual labour are entitled to count 50% service period from date of temporary status to date of regularization on regular post for purposes of pension and other benefits. The Para 20 of Master Circular No. 54 dated 30.09.1994 also recognizes legal right of casual labour to count 50% period of service after attainment of temporary status if followed by absorption in service as regular railway employee for reckoning for pensionasry benefits. The Hon'ble Supreme Court in case of General Manager, North West Rly & Ors Versus Chanda Devi, (2008) 2 SCC 108 also considered nature of employment of casual labour who was granted temporary status after referring to Rule 2001, 2002 and 2005 of the IREM and held that Rule 2005 of IREM Vol.-I has statutory force and lays ::4:: OA 708/2016/CAT/PATNA BENCH down entitlement and privileges available to the casual labour with temporary status.
8. The respondents have further stated Railway Service (Pension) Rules-
1993 (for brevity hereinafter referred as Pension Rules 1993) that as per Rule 21 the engagement as period in causal labour capacity not to be treated as qualifying services for pension etc. Thus as per Rule, Para 2005 of the IREM Vol.-I and Para 20 of Master Circular No.54, the 50% of services of casual service after obtaining temporary status till date of regularization and 100% of service from date of regular posting till date of superannuation to be counted as qualifying services for pension purpose.
9. The respondents also submitted in the WS that Hon'ble Supreme Court in case of Union of India and ors versus Rakesh Kumar reported in (2017) 13SCC 388 has relied on Rule 20 & 31 Note-1 of Pension Rules 1993 read with Para 20 of Master Circular No.54 and Para 2005 of IREM-1 and upheld hence claim of applicants is not admissible accordance with rules.
10. The rejoinder has been filed by the applicants specifically denying the contentions of the respondents made in the WS and stated that applicants entitled for similar treatment and 100% service to be counted for temporary status period instead of 50% and 50% be also reckoned for period as casual labour before attaining temporary status. Thereafter respondents be directed to revise pension and other benefits based on laws laid down in case of by Hon'ble Supreme Court and same is binding precedent and earlier judgment-in-rem and judgment in case of Union of India & Ors. Versus Rakesh Kumar (supra) in judgment in personam hence not applicable. So also stated that Railway Board has issued letter no. E(NG) II/2014/CL/14 dated 25.11.2014 and directed to provide for 100% of temporary status casual service rendered before absorption in regular employment being treated as qualifying service for the purpose of grant of pensionary benefits. The batch of cases decided by this Tribunal on 07.11.2014 upheld by Hon'ble High Court on 18.08.2015 in CWJC No. 11695 of 2015 and no SLP preferred before the Hon'ble Supreme Court.
::5:: OA 708/2016/CAT/PATNA BENCH SUBMISSION ON BEHALF OF THE APPLICANTS
11. Shri M.P. Dixit, learned counsel appearing for the applicants argued that Hon'ble Supreme Court in similar cases from Hon'ble High Court Patna titled Union of India & ors versus Sarju (supra) vide order dated 30.09.2011 upheld the orders of this Tribunal and directed to reckon full service, 100% period of service of temporary status till they are regularized and so applicants in present OA superannuated between year 2005 to 2012 and entitled for similar treatment with consequential benefits i.e. revised pension etc.
12. Shri M.P. Dixit, learned counsel appearing for the applicants submitted that order passed in case of Union of India & ors versus Sarju (supra) is judgment in rem, earlier binding precedent and applicable in present case whereas judgment in case of Union of India & ors versus Rakesh Kumar (supra) is judgment in personam not applicable in the present case. The judgment dated 30.09.2011 passed in case of Union of India versus Sarju (supra) is applicable as on date of retirement in year 2005 to 2012, the judgement in case of Union of India versus Sarju (supra) was applicable and in case of Union of India versus Rakesh Kumar (supra) judgment was delivered subsequently on 24th March 2017 hence cannot be made applicable retrospectively.
13. Shri M.P. Dixit, further canvassed that in case of the applicants, the judgment dated 30.09.2011, passed in case of Union of India versus Sarju (supra) is earlier and shall prevail being judgment in rem, whereas judgment dated 24.03.2017 in case of Union of India versus Rakesh Kumar (supra) is later and same shall not be applicable in the present case on hand.
14. Shri M.P. Dixit, learned counsel for the applicants, also contended that prior to year 2015 similarly placed employee granted reckoning benefits of 100% period of service as temporary status casual labour for pension benefits and so applicants cannot be discriminated based on laws laid down in case of Union of India versus Rakesh Kumar (supra).
15. Shri M.P. Dixit, learned counsel for the applicants, during arguments laid much emphasis on law laid down by Hon'ble Supreme Court in case of G.L. Batra Versus State of Haryana and others, reported in 2013 (4) PLJR (SC)
403.
::6:: OA 708/2016/CAT/PATNA BENCH SUBMISSIONS ON BEHALF OF THE RESPONDENTS
16. Shri Bindhyachal Rai, learned Additional Standing counsel appearing for the respondents, in his turn would submit that all the applicants initially engaged as the casual labour in railways, conferred with the temporary status and thereafter absorbed on the regular post. The qualifying service for the pension were reckoned 50% of service period after obtaining temporary status till date of the regularization on regular post and 100% of services period reckoned after date of regularization till date of superannuation. The qualifying service for pension and pensionary benefits as stated hereinabove has been reckoned accordance with Rule 20, Note-1 of Rule 31 of Pension Rules 1993 and read with Para 20 of Master Circular No.54 and Para 1501, 2005, 2005(a) of the Indian Railway Establishment Manual-Volume-1. (in short IREM-I)
17. Shri Bindhyachal Rai, learned Additional Standing Counsel for the respondents vociferously canvassed that all the applicants have been correctly as per pension rules granted service benefits by reckoning 50% of service period after obtaining temporary status casual labour and 100% after date of regular appointment till date of superannuation and the applicants do not have any vested legal right and no any legal right accrued in their favour to claim 100% of service period to be reckoned for temporary status period. The claim is contrary to statutory Pension Rules 1993.
18. Shri Bindhyachal Rai, learned Additional Standing Counsel also contended that Hon'ble Supreme Court in case of Union of India & Ors. Versus Sarju (supra) given direction on special facts and same is judgment in personam, whereas in case of Union of India & Ors. Versus Rakesh Kumar (supra) later decision has laid down point of law in elaborate manner after considering all relevant provisions applicable to applicants at the time of retirement for grant of pension.
19. Shri Bindhyachal Rai, learned Additional Standing Counsel appearing for the respondents to buttress his submissions heavily placed reliance on judgments dated, 24.07.2017 in CWJC No.5111 of 2017, The Union of India & ors versus Binod Singh and Judgment dated 21.12.2017 in CWJC No. 12459 of 2017 titled the Union of India and others versus Ramjee and others passed by Hon'ble High Court, Patna modified orders of this Tribunal in similar cases and followed very recent decision of Hon'ble Supreme Court in case of Union of ::7:: OA 708/2016/CAT/PATNA BENCH India and others versus Rakesh Kumar reported in (2017) 13 SCC 338: 2017 (3) PLJR SC 83.
20. Shri Bindhyachal Rai, learned Additional Standing Counsel also emphasized that Hon'ble High Court of Judicature at Patna has followed law laid down on the point of law by Hon'ble Supreme Court in recent case of Union of India & Ors. Versus Rakesh Kumar (supra) and the said decisions of the Hon'ble High Court at Patna are binding precedents on this Tribunal and applicants are entitled to reckon only 50% of service of temporary status till date of regularization for qualifying service and do not have any vested right to claim 100% service period to be counted for temporary status period.
21. We have bestowed our anxious considerations on the rival contentions of the learned counsel appearing for the parties and perused the material placed on record.
22. The admitted facts are that all the applicants were engaged as causal labourers in railways before year 1987, granted temporary status and regularized on regular post of Trackman. The respondents have counted only 50% of the service period after obtaining temporary status casual labour till date of regularization/absorption against the regular post and reckoned 100% of period of service from date of regularization till date of superannuation for purposes of qualifying service towards grant of pension and pensionary benefits. So also the respondents not counted half period of casual service in railways before attaining temporary status as qualifying service for pensionary benefits. Admittedly in identical cases Union of India & Ors. Versus Binod Singh in CWJC No. 5111/2017 decided on 24.07.2017 and Union of India & Ors. Versus Ramjee & Ors. decided on 21.12.2017. Hon'ble High Court of Patna has followed the recent judgment in case of Union of India & Ors. Versus Rakesh Kumar (supra).
23. The dispute in the present case is that applicants are claiming reckoning towards qualifying service for pension and pensionary benefits 50% of the casual labour period before obtaining temporary status and 100% counting of service rendered after obtaining temporary status casual labour till date of regularization instead of 50% of their temporary status service period already counted by the respondents for pensionary benefits. The claim of the applicants is based on ::8:: OA 708/2016/CAT/PATNA BENCH similar treatment to count 100% of service for temporary status period based on laws laid down in case of Union of India & Ors. Versus Sarju (supra). Whereas Hon'ble High Court of Patna has followed the recent decisions of Hon'ble Supreme Court in case of Union of India & Ors. Versus Rakesh Kumar (supra) harmonizing conflicting judgments to bring about uniformity in relation to grant of benefits of pension for casual temporary status employees in railway subsequently regularized/absorbed on regular post.
THE ISSUE
24. From the above submissions of the learned counsel for the parties and material on record, the issues which arise for consideration in the present O.A. are-
1. Whether the casual workers before obtaining the temporary status is also entitled to reckon 50% of casual services for the purpose of pensionary benefits?
2. Whether the entire service of a casual worker in railway after obtaining temporary status till their regular absorption on a post is entitled to be reckoned for pensionary benefit or only 50% period of such service can be reckoned for pensionary benefits ?
THE RELEVANT RULES
25. The Rules which are relevant to decide both the issues are extracted as under:-
(i) The Railway Services (Pension) Rules, 1993 (in short Pension Rules 1993) have been framed under proviso to Article 309 of the Constitution of India. The Rules which are relevant to decide the issue, are extracted for ready reference as below:-
Rule 6. Regulation of claims to pension or family pension. - (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a railway servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be.
(2) The day on which a railway servant retires or is retired or is discharged or is allowed to resign from service or dies as the case may be, shall be treated as his last working day."
Rule 20. Commencement of qualifying service- Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post:
Provided further that-
(a) in the case of a railway servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th ::9:: OA 708/2016/CAT/PATNA BENCH April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; and
(b) in the case of a railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity (Authority: Railway Board's letter No. F(E)/99/PN (Modification) dated 23.5.2000)
(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under rule 34. (Authority: Railway Board's letter No. F(E)11/2004/PN1/21(Amendment) dated 7.12.2004)
(ii) Rule 31 "Counting of service paid from Contingencies- In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following condition namely: -
the service paid from contingencies has been in a job involving wholetime employment;
the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;
the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(b) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break;
Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service-book is available.
NOTE - (1) the provisions of this rule shall also apply to casual labour paid from contingencies.
(2) The expression "absorption in regular employment" means absorption against a regular post."
(iii) Para 20 of the Master Circular No. 54 is quoted as below:-
"20. Counting of the period of service of Casual Labour for pensionary benefits: - Half of the period of service of casual labour (other than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, the benefit has also been extended to Project Casual Labour."
(iv) The Para 2005 of IREM-Vol-I reads as-
The Next Provision need to be noted is Para 2005 of IREM, which is as follows:-
2005. Entitlements and privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be).
(a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of D & A rules. However, their service prior to absorption in temporary/ permanent/ regular cadre after the required selection/ screening will not count for the purpose of seniority vis-a-vis other regular/ temporary employees. This is however, subject to the provisions that if the seniority of certain ::10:: OA 708/2016/CAT/PATNA BENCH individual employees has already been determined in any other manner, either in pursuance of judicial decisions of otherwise, the seniority so determined shall not be altered.
Casual labour including Project casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits.
(iv) 1501 of Chapter-XV of IREM-I (i) Temporary Railway Servants Definition--A "temporary railway servant" means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. The term does not include "casual labour", including 'casual labour with temporary status', a "contract" or "part-time"
employee or an "apprentice".
(v) 24. So far as reckoning period of service in case of railway employees for pensionary benefits. The issue is no more res-integra. The Hon'ble Supreme Court in case of Union of India Versus Rakesh Kumar, reported in 2017 (13) SCC 388: AIR 2017 Supreme Court 1691 was seisin with only issue "whether the entire service of a casual worker after obtaining temporary status till his regular absorption on a post is entitled to be reckoned for pensionary benefit or only 50 percent period of such service can be reckoned for pensionary benefit?" In case of Rakesh Kumar (supra) the respondents- employees from railway were initially appointed as casual labor in Northern Railway after working and were granted temporary status and subsequently regularized against posts. The Hon'ble Supreme Court examined scheme of Rules, 1993, Para 2005 of IREM. The Hon'ble Apex Court in Para 55 held that casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularized on a regular/temporary post for purpose of calculation of pension. So also casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
[Emphasis supplied] ANALYSIS AND FINDINGS
26. We have extracted herein above the relevant rules framed under the proviso to the Article 309 of the Constitution of India. The applicants were initially engaged as causal labour in railway prior to1987, granted temporary status and regularized on the regular post of Trackmen under Senior S.E. (P- Way), ECR, Mokama and superannuated on 30.04.2012, 31.03.2005 and 31.03.2005 respectively.
27. We are of the view that right to pension accrued in favour of the applicants on superannuation in accordance with the statutory Pension Rules 1993 and, the Railway Board Circulars having statutory force extracted herein above sub- servient to Pension Rules 1993. The applicants have vested legal right to count period of qualifying service and same has accrued accordance with statutory rules. We are examining the relevant rules to resolve the controversy related to ::11:: OA 708/2016/CAT/PATNA BENCH reckoning period of service to be counted as qualifying for the purposes of calculation of pension for the applicants in the case on hand.
28. Rule 20 of Pension Rules 1993 stipulates that qualifying service shall commence from the date the employees takes charge of the post to which he is initially appointed either substantively or in an officiating or temporary capacity. Rule 20 of Pension Rules 1993 in clear as noon day that same is applicable when an employee is appointed against the post in substantive capacity or in an officiating or temporary capacity. It is also clear from the plain reading of Rule 20 that it is attracted only when employee is appointed against any post. The proviso to Rule 20 reads as "Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post." The plain reading of the proviso appended to Rule 20 on Pension Rules 1993 makes it clear to count commencement of qualifying service from the date of employee takes charge of the post for qualifying service to be reckoned, the employee must be appointed on the regular post and not otherwise. The combined reading of the first proviso to Rule 20 and Rule 20 of Pension Rules 1993 make it abundantly clear that merely grant of temporary status to casual labours employees will not be entitled to count their services of temporary status for pensionary purposes but employee also to be appointed on the regular post/absorbed on regularization, than only the railway employees entitled to count their services of date of taking charge and condition precedent to be regularized on same or any regular post than for qualifying service will be counted from date of taking charge.
29. The Hon'ble Supreme Court in case of General Manager, North West Railway and others versus Chanda Devi, reported in (2008) 2 SCC 108 in paragraph no. 29 observed as under:-
"29. In absence of any statutory rules framed, executive instructions can be issued in relation to the matter governed by the constitutional provisions. In Khem Chand [AIR 1958 SC 300] this Court had noticed the relevant constitutional provisions and opined that the Railway Manual was an amalgam of various circulars issued from time to time. Such executive instructions or rules framed would be statutory in nature."
30. Rule 31 of Pension Rule 1993 prescribes for counting of service paid from contingencies in respect of a railway servant in service on or after 22.08.1968, half the service paid from contingencies shall be taken into account for ::12:: OA 708/2016/CAT/PATNA BENCH calculating pensionary benefits on absorption in regular employment. The Note- I of Rule 31 of Pension Rules 1993 specifically expressly provided intention to count half of the services rendered as casual labour before obtaining the status of temporary casual labour. We can safely conclude that all the applicants have vested legal right accrued at the time of superannuation to reckon 50% of service period as casual labour before obtaining temporary status.
31. The issue no.1 so far relates to reckoning of 50% casual period before obtaining the temporary status for purposes of pension to be in accordance with Note 1 of Rule 31 of Pension Rules 1993 and we hold that applicants are entitled to count for 50% casual period before attaining temporary status and said benefits has been illegally denied and has not been extended to these applicants.
32. We have considered the matter and already analyzed in detail related to the issue no. 1 related to reckoning 50% casual service before obtaining temporary status for purpose of qualifying service for grant of pension in light of Note 1 of Rule 31 of Pension Rules 1993. Accordingly we decide the issue no.1 in favour of the applicants and applicants are entitled to reckon 50% of their services as casual labour before obtaining the temporary status for the purpose of re-calculation of retiral benefits payable to the applicants and respondents are directed to verify and extend benefits of said 50% services of casual period, if already not have been extended to the applicants.
33. Now coming as to the next issue, issue no.2, "whether entire, 100% service of a casual worker in railway after obtaining temporary status till their regular absorption on a post entitled to reckon for pensionary benefits or only 50% period of such service can be reckoned accordance with rules?"
34. We have already extracted relevant rules to resolve the controversy. Rule 20 of the Pension Rules, 1993 provides to count qualifying service for pension purpose from the date these applicants appointed in temporary capacity with condition precedent that employee should be absorbed on substantive appointment and there should be no interruption in the services. Further the sub- para (a) of Para 2005 of IREM-Vol. I, recognizes to count half of the services rendered as temporary status casual labour before regular absorption. Thus before being regularized as per sub-para (a) of para 2005 of IREM-Vol. I, applicants are entitled to reckon 50% of service period as temporary status.
::13:: OA 708/2016/CAT/PATNA BENCH Thereafter as per Rule 20 of Pension Rules, 1931 once these applicants acquired status of temporary railway employee as defined in para 1501 of the IREM-Vol. I, thereafter on regularization on regular post of Trackmen, the vested legal right accrues for counting of 100% service till date of superannuation. So far as service period from date of attaining temporary status casual labour till regular absorption on substantive appointment as per rules i.e. Para 1501 of IREM, applicants held status of purely temporary casual labour and they were not temporary railway employee so only entitled for reckoning 50% of service rendered after obtaining temporary status casual labour. Thus no legal right accrued in favour of applicants of this O.A. as on date of superannuation accordance with statutory rules for railway employees to reckon 100% of service rendered after obtaining temporary status till date of regularization as their status till date of regularization as their status in railways was of temporary casual labour and not of temporary railway employees. The next provision to be noted is Para 2005 of IREM-I also provides for same scheme for counting the period for pensionary benefits. The sub-para (a) of Para 2005 of IREM-I provides-
" 2005(a)........Casual labour including project labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption as qualifying service for the purpose of poensionary benefits."
[Emphasis supplied] The Para 20 of Master Circular No. 54 for ready reference reiterated as:-
"20. Counting of the period of service of Casual Labour for pensionary benefits: - Half of the period of service of casual labour (other than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, the benefit has also been extended to Project Casual Labour."
[Emphasis supplied]
35. The perusal of Para 20 of the Master Circular No. 54 already extracted hereinabove indicates that only half of the period of service of a casual labour after attainment of temporary status if it is followed by absorption in service as a regular railway employees, counts for pensionary benefits.
36. We have analysed entire relevant rules applicable to carve out legal entitlement of applicants so far relates to issue no.2 and we are of the view that the applicants are entitled to reckon 50% of his services after obtaining temporary ::14:: OA 708/2016/CAT/PATNA BENCH status till they were regularized on a regular/temporary post of Trackmen for the purpose of calculation of pension and pensionary benefits in the light of Rule 20, 31 of Pension Rules read with Para 20 of the Master Circular No.54 and Para 2005 and sub-para (a) of Para 2005 of IREM-I. Accordingly, we decide the issue no.2, against all the applicants and we hold that no vested right accrued in the favour of the applicants to reckon 100% of casual worker service period after obtaining temporary status till all of them were regularized on a regular post of Trackmen instead applicants have been correctly granted as per rules benefits of reckoning period 50%of their services after obtaining temporary status till they are regularized. The Hon'ble Supreme Court in recent decision in case of Union of India & Ors. Versus Rakesh Kumar (supra) in identical facts and legal issues after taking into consideration conflicting judgments has explained and harmonised to bring uniformity on the issues involved in this case on hand. The Hon'ble High Court of Patna, their Lordships have followed the recent judgment of Hon'ble Apex Court and we are bound by judgments of our own Hon'ble High Court of the State.
37. Now reversing back to the gist of the contentions of Mr. M.P. Dixit, learned counsel for the applicants, criticizing the inaction of respondents not counting 100% of period of service of casual worker after obtaining temporary status till date of regularization instead respondents reckoned 50% of temporary status casual labour services for the pension. The claim of applicants based on order dated 30.09.2011 passed by Hon'ble Supreme Court in case of Union of India & ors versus Sarju (supra) and on similar lines orders passed by this Tribunal.
38. Shri Bindhyachal Rai, learned Additional Standing Counsel appearing for all the respondents would submit that applicants have been correctly granted benefits of counting 50% of services period of temporary status for pensionary benefits accordance with statutory rules and they have no vested legal right, no legal right accrued. The Hon'ble Supreme Court in recent judgment of Union of India & Ors. Versus Rakesh Kumar (supra) has considered the conflicting judgments and scheme of statutory rules for casual worker, temporary status working in railways. The Hon'ble High Court Patna, their Lordships followed the ratio of judgment in recent case of Union of India & Ors. Versus Rakesh Kumar (supra) passed by Hon'ble Supreme court. Shri Bindhyachal Rai ::15:: OA 708/2016/CAT/PATNA BENCH vociferously canvassed that applicants are entitled for 50% of service period after obtaining temporary status and the relevant rules not permit to extend benefits to count 100% service as temporary status casual worker before date of regularization.
39. Much emphasis has been placed by Mr. M.P. Dixit, learned counsel for the applicants on order dated 30.09.2021 passed in case of Union of India & ors versus Sarju (supra) passed by Hon'ble Supreme Court directing in similar matte of counting of past services of temporary status period to extent of 100% till date of regularization. Per contra, Shri Bindhyachal Rai learned ASC placed heavy reliance on the binding precedent, judgment in rem having bending force under Article 141 of the Constitution of India. Shri Rai further submitted that order passed in case of Union of India & Ors. Versus Sarju (supra) was based on special facts and elaborate one the scheme, legal point the judgment in latest case Union of India & Ors. Versus Rakesh Kumar (supra) is followed by Hon'ble High Court Patna of the state binding on this Tribunal to follow and same cannot be bypassed by this Tribunal.
40. Before into the contentions of the parties, we think it appropriate to refer to the entire order dated 30.09.2011 in case of Union of India & Ors. Versus Sarju (supra) so also relevant paragraphs of judgment dated 24th March, 2017 in case of Union of India & Ors. Versus Rakesh Kumar (supra) and followed by their Lordships of our own Hon'ble High Court, Patna, for ready reference reproduced as-
Order dated 30.09.2011 in case of Judgment dated 24th March, 2017 in case Union of India & Ors. Versus Sarju of Union of India & Ors. Versus Rakesh (supra) Kumar (supra). The relevant para 22 to 56 reads as-
Delay condoned. The relevant portion of judgment of Rakesh Kumar Four of the above noted five special (supra) is reproduced for ready reference as under:-
leave petitions are directed against the 22. From the above submissions of the learned orders passed by the different Division counsel for the parties and materials on record, the Benches of the Patna High Court dismissing only issue which arises for consideration in these the writ petitions filed by the petitioners appeals is:
against the directions given by the Central Whether the entire services of a casual Administrative Tribunal, Patna Bench (for worker after obtaining temporary status short, 'the Tribunal') for counting the service till his regular absorption on a post is of the respondents with effect from the date entitled to be reckoned for pensionary they were given temporary status till the date benefit or only 50 per cent period of such of superannuation for the purpose of service can be reckoned for pensionary calculation of pension and other retiral benefit?
::16:: OA 708/2016/CAT/PATNA BENCH benefits. SLP(C) No.35934 of 2009 is 23. In so far as reckoning of 50 per cent casual directed against the order of the High Court period, there is no challenge and it is clear that the which upheld the direction given by the said reckoning is in accordance with Rule 31 of Tribunal for counting of casual and Rules, 1993 and the benefit of said 50 per cent temporary service for the purpose of payment services of casual period had already been of retiral benefits. extended to the respondents. Thus, we need to Sarju (respondent in SLP(C) No. answer in these appeals the only question as noted 20041/2008) was engaged as casual labour above.
on 17.1.1960. He was given temporary status 25. Para 20 of the Master Circular No. 54 is with effect from 1.1.1981 and regularised quoted as below:- with effect from 1.4.1988. On attaining the "20. Counting of the period of service of age of superannuation, he was retired from Casual Labour for pensionary benefits: - service on 30.11.2001. The application filed Half of the period of service of casual by him under Section 19 of the labour (other than casual labour Administrative Tribunals Act, 1985 (for employed on Projects) after attainment of short, 'the Act') for counting his temporary temporary status on completion of 120 service as part of qualifying service for the days continuous service if it is followed by purpose of calculation of the retiral benefits absorption in service as regular railway was disposed of by the Tribunal vide order employee, counts for pensionary benefits.
dated 1.3.2006, the operative portion of With effect from 1-1-1981, the benefit has
which reads as under: also been extended to Project Casual
"In view of the law laid down by the Labour."
Hon'ble Andhra Pradesh High 26. Next Provision need to be noted is Para 2005 Court as well as C.A.T., Cuttack of IREM, which is as follows:-
Bench, there is no basis/ground to "2005 IREM:
take different view. In the result, the 2005. Entitlements and privileges O.A. is allowed. The respondents are admissible to Casual Labour who are directed to recalculate the pension treated as temporary (i.e. given with arrears from due date (the date temporary status) after the completion of of superannuation) with all 120 day or 360 days of continuous incidental benefits after counting the employment (as the case may be). full service from the date of grant of (a) Casual labour treated as temporary temporary status i.e. 1.4.1981. These are entitled to the rights and benefits exercises should be completed within admissible to temporary railway servants a period of four months from the date as laid down in Chapter XXIII of this of receipt of a copy of this order. Manual. The rights and privileges There shall be no order as to cost." admissible to such labour also include Ishwar Nand Mishra (respondent in the benefit of D & A rules. However, their SLP(C) No. 13709/2009) was engaged as service prior to absorption in temporary/ casual labour in 1966. He was granted permanent/ regular cadre after the temporary status with effect from 10.3.1971 required selection/ screening will not and was regularised with effect from count for the purpose of seniority vis-a- 27.5.1981. After attaining the age of vis other regular/ temporary employees.
superannuation, he filed an application for This is however, subject to the provisions counting his past service for the purpose of that if the seniority of certain individual pension etc., which was disposed of by the employees has already been determined Tribunal vide order dated 16.1.2008, the in any other manner, either in pursuance operative portion of which reads as under: of judicial decisions of otherwise, the "In view of the law laid down by the seniority so determined shall not be Hon'ble Andhra Pradesh High altered.
Court as well as CAT, Cuttack Casual labour including Project Bench, and Patna bench there is no casual labour shall be eligible to count basis/grounds to take a different the only half the period of service rendered pension with arrears from due date by them after attaining temporary status (the date of superannuation) with all on completion of prescribed days of incidental benefits after counting the continuous employment and before full service from the date of grant of regular absorption, as qualifying service temporary status i.e. 15.3.1971. The for the purpose of pensionary benefits. exercise should 4 be completed This benefit will be admissible only after within a period of four months from their absorption in regular employment.
the date of the receipt of a copy of Such casual labour, who have attained
this order, No order as to the costs." temporary status, will also be entitled to
::17:: OA 708/2016/CAT/PATNA BENCH
Mani Kant Jha (respondent in carry forward the leave at their credit to
SLP(C) No. 35934/2009) joined service as new post on absorption in regular service.
casual labour on 30.7.1973. He was granted Daily rated casual labour will not be
temporary status with effect from 1.1.1981 entitled to these benefits.
and was absorbed on regular basis with 27. Railway Services (Pension) Rules, 1993 have effect from 1.4.1988. After attaining the age been framed under proviso to Article 309 of the of superannuation with effect from Constitution of India. Rule 20 and Rule 31 of 30.6.2005, the respondent filed O.A. No. Rules, 1993 which are relevant for our purpose, 505/2005 for issue of a direction to the are extracted as below: -
petitioners herein to count his past service as "20. Commencement of part of qualifying service for the purpose of qualifying service- Subject to the calculation of retiral benefits. The same was provisions of these rules, qualifying disposed of by the Tribunal vide order dated service of a railway servant shall 29.11.2006, the operative portion of which commence from the date he takes charge reads as under: of the post to which he is first appointed "In the result, this application is either substantively or in an officiating or allowed. The respondent No.2 and 3, temporary capacity:
namely the Chief Administrative Provided that officiating or Officer [Con] E.C. Railway, temporary service is followed, without Mahendrughat, Patna and the Chief interruption, by substantive appointment Personnel Officer, E.C. Railway, in the same or another service or post: Hazipur, are hereby directed to get Provided further that - the qualifying period of service of the (a) in the case of a railway applicant, for the purposes of servant in a Group 'D' service or post who pensionary benefits, calculated held a lien or a suspended lien on a afresh adding thereto the entire permanent pensionable post prior to the period of service undergone by the 17th April, 1950, service rendered before applicant under temporary status attaining the age of sixteen years shall not and half period of service undergone count for any purpose; and as casual labourer and then to have (b) in the case of a railway the pensionary benefits calculated servant not covered by clause (a), service thereupon afresh. This should be rendered before attaining the age of done within three months of the eighteen years shall not count, except for receipt of a copy of this order compensation gratuity." whereafter the arrears of retiral benefits including of the pension, "31. Counting of service paid should be paid within one month, from Contingencies- In respect of a eligible failing which the amount of railway servant, in service on or after the unpaid arrears would be payable 22nd day of August, 1968, half the service with interest @9% per annum paid from contingencies shall be taken starting from the date of expiry 5 of into account for calculating pensionary the period of four months after benefits on absorption in regular receipt of a copy of order, till the employment, subject to the following amount is paid." condition namely: -
Chanarik and 4 others (respondents the service paid from in SLP(C) No. 35936/2009) were initially contingencies has been in a job involving engaged as CPC/Gangmen. They were given wholetime employment; temporary status with effect from the service paid from 26.12.1985, 25.1.1986 and 14.2.1986 contingencies should be in a type of work respectively. After superannuation from the or job for which regular posts could have service, they filed O.A. No. 260/2005 for been sanctioned such as posts of malis, issue of a direction to the petitioners herein chowkidars and khalasis;
to count their total service as part of the service should have been qualifying service for the purpose of payment such for which payment has been made of retiral dues. The same was disposed of by either on monthly rate basis or on daily the Tribunal vide order dated 2.9.2005, the rates computed and paid on a monthly operative of which reads as under: basis and which, though not analogous to "In the result, this OA is allowed. the regular scales of pay, borne some The respondents are directed to relation in the matter of pay to those being grant pension with arrears from due paid for similar jobs being performed at date (date of superannuation), with the relevant period by staff in regular all incidental benefits, after counting establishments;
::18:: OA 708/2016/CAT/PATNA BENCH
the full service from the date of grant (b) the service paid from
of temporary status i.e. 26.12.1985, contingencies has been continuous and
25.1.1986, 26.12.1985, 14.2.1986 followed by absorption in regular
and 26.12.1985 respectively." employment without a break;
Ram Barai (respondent in SLP(C) Provided that the weightage for
No. 14690/2010) was initially engaged as past service paid from contingencies shall
Casual Labour/Gangman on 17.4.1967. He be limited to the period after 1st January,
was granted temporary status with effect 1961 subject to the condition that
from 11.11.1990 and was regularised with authentic records of service such as pay
effect from 18.9.1995. After superannuation bill, leave record or service-book is
from service, he filed O.A. No. 97/2006 for available.
counting his total service for the purpose of NOTE - (1) the provisions of this
retiral benefits. The same was disposed of by rule shall also apply to casual labour paid
the Tribunal vide order dated 31.8.2007, the from contingencies.
relevant portion of which reads as under: (2) The expression "absorption in
"I have considered the rival view regular employment" means absorption
points carefully. In view of the against a regular post."
judicial pronouncements of Hon'ble 28. The perusal of para 20 of the Master Andhra Pradesh High Court and the Circular indicates that only half of the period of Divisional Bench of Central service of a casual labour after attainment of Administrative Tribunal as well as temporary status on completion of 120 days or single Bench of Central continuous service if it is followed by absorption in Administrative Tribunal, I agree that service as a regular Railway employee, counts for the applicant is entitled to get pensionary benefits. pension treating the entire period of 29. Para 2005 of Indian Railway Establishment service of temporary status as Manual also contains the same scheme for pensionable and the period of reckoning the period for pensionary benefit. Para service rendered as cast labour as 50 2005 contains the heading:
per cent pensionable. The "2005. Entitlements and Privileges respondent are directed to give these admissible to Casual Labour who are benefits as and when the applicant treated as temporary (i.e. given temporary retires." status) after the completion of 120 days or The writ petitions filed by the 360 days of continuous employment (as petitioners questioning the legality and the case may be)." correctness of the orders passed by the 30. The above heading enumerates the privileges Tribunal were dismissed by the High Court. admissible to casual labour who are treated as We have heard learned counsel for temporary. Clause(a) of para 2005 provides: "
the parties and perused the record. We have Casual labour including Project also gone through the judgment of this Court casual labour shall be eligible to count in Union of India and others vs. only half the period of service rendered by K.G.Radhakrishnan Panickar and others them after attaining temporary status on [(1998) 5 SCC 111]. In our view, the completion of prescribed days of directions given by the Tribunal in the matter continuous employment and before of counting of past service of the respondents regular absorption, as qualifying service for the purpose of calculation of the retiral for the purpose of pensionary benefits."
benefits did not suffer from any legal 35. The Judgment of this Court in Chanda infirmity and the High Court rightly declined Devi's case(Supra) considered the nature of to interfere with the same. The judgment of employment of casual labour who was granted this Court in Union of India vs. K.G. temporary status. In the above case, Smt. Santosh, Radhakrishnan Panickar (supra) on which the respondent was widow of Sh. Ram Niwas who reliance has been placed by learned counsel was a project casual labour. Under the scheme for the petitioners is clearly distinguishable. framed by Union of India in pursuance of order of In that 7 case, the Court was called upon to this court in Inderpal Yadav Vs. Union of India, consider whether the services rendered by 1985 (2) SCC 648, Ram Niwas was treated as the employees as Project Casual Labour can temporary employee w.e.f 01.01.1986. After the be treated as part of the qualifying service for death of Ram Niwas, her widow filed the claim for the purpose of calculation of the retiral grant of family pension which was rejected by the benefits and whether the cut off date fixed in Railway against which the widow approach the the policy framed by the Railway Central Administration Tribunal. The Tribunal Administration for counting half of the allowed the claim, Writ Petition filed by Union of service rendered as Project Casual Labour India was dismissed by the Rajasthan High Court was discriminatory and violative of Article against which the appeal was filed. After referring ::19:: OA 708/2016/CAT/PATNA BENCH 14 of the Constitution. After adverting to the to Rule 2001, Rule2002 and Rule 2005 of IREM, relevant policy decisions, this Court held that this Court held that Rule 2005 clearly lays down the policy of the Railways does not suffer the entitlement and privileges admissible to casual from any constitutional infirmity. That labour who are treated as temporary i.e. given judgment has no bearing on the decision of temporary status. the issue whether temporary service, which 36. This Court further held that there is a was followed by regularisation should be distinction between the casual labour having a counted as part of the qualifying service for temporary status and temporary servant, para 24 the purpose of retiral benefits. As a matter of of the judgment is relevant which is quoted as fact, if the respondents had prayed for below:
counting half of the service rendered by them "24. The contrast between a as Project Casual Labour as part of casual labour having a temporary status qualifying service, we may have examined and a temporary servant may immediately the issue in detail and decided whether the be noticed from the definition of a said prayer should be granted. However as temporary railway servant contained in they did not challenge the orders of the Rule 1501 occurring in Chapter XV of the Tribunal before the High Court, we refrain Manual:
from expressing any opinion on the issue. "1501.(i) Temporary railway The special leave petitions are servants accordingly dismissed. The petitioners are Definition- A 'temporary railway directed to calculate the pension and other servant' means a railway servant without retiral benefits payable to the respondents a lien on a permanent post on a railway or keeping in view the directions given by the any other administration or office under Tribunal and pay the arrears within next the Railway Board. The term does not three months with interest at the rate of 12% include 'casual labour', including 'casual from the dates of their retirement on labour' with temporary status', a 'contract' attaining the age of superannuation. or 'part time' employee or an A report showing compliance of this 'apprentice'."
order shall be filed in the Registry of this 39. Much reliance has been placed by learned Court within four months and the matter be counsel for the respondent as well as Delhi High posted before the Court in the 3rd week of Court on rule 20. Rule 20 provides: February, 2012. 20...Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post..."
40. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to the post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in para 2005 of IREM. One of the benefits enumerated in para 2005 sub clause(a) is also to make him eligible to count only half of the services rendered by him after attaining temporary status.
Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to casual worker and no appointment is made in any capacity against any post. The Delhi High Court in the impugned judgment relies on proviso to Rule 20 for coming to the conclusion in para 7 of the judgment.
::20:: OA 708/2016/CAT/PATNA BENCH "7. The proviso, in our opinion, puts the controversy beyond a shade of doubt in that if an employee officiates in service or is treated as temporary railway servant and subsequently regularized or granted substantive appointment, the entire period of his combined service as temporary appointee followed by the service spent as a permanent employee has to be reckoned for the purpose of pension. Since Rule 20 does not deal with what is to be done with the period of service spent as casual labourer, para 20 of the Master Circular 54 and para 2005 of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purposes of pension."
42. The above Proviso has to be read along with the main Rule 20, when main Rule 20 contemplates commencement of qualifying service from the date he takes charge of the post, the appointment to a post is implicit and a condition precedent. The proviso put another different condition that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post. The proviso cannot be read independent to the main provision nor it can mean that by only grant of temporary status a casual employee is entitled to reckon his service of temporary status for purpose of pensionary benefit.
43. The Delhi High Court in impugned judgment has not relied the subsequent judgment of Andhra Pradesh High Court in A.Ramanamma dated 01.05.2009 and did not follow the judgment of this court in Chanda Devi case (Supra) on the ground that Rule 20 specifically the proviso has not been considered. This Court in Chanda Devi's case did not refer to Rule 20 since Rule 20 had no application in the facts of that case because the appointment of husband of respondent in Chanda Devi's case was not against any post. Rule 20 being not applicable non-reference of Rule 20 by this Court in Chanda Devi's case is inconsequential. In para 8 of the impugned judgment, the Delhi High Court for not relying on A.Ramanamma and Chanda Devi case gave following reasons:
"8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra), with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso ::21:: OA 708/2016/CAT/PATNA BENCH which specifically deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension."
44. The judgment of Andhra Pradesh High Court in A.Ramanamma case had considered in detail the judgment of this Court in Chanda Devi's case as well as Para 20 of Master Circular and para 2005 of IREM and has also considered other case of this Court and has rightly come to the conclusion that casual labour after obtaining temporary status is entitled to reckon only half of the period. It may, however, be noticed that in A. Ramanamma case the Andhra High Court has also held that 50% of service as casual labour cannot be counted, which is not correct. Rule 31 of Rules, 1993 provides for counting of service paid from contingencies. Note 1 of Rule 31 provides:-
" The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies."
45. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct law.
46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for "half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in." Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporary status.
48. We, however, are of the view that the period of casual labour prior to grant of temporary status by virtue of Note-1 Rule 31 has to be counted to the extent of 50% for pensionary benefits.
55. In view of foregoing discussion, we hold :
i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension.
ii)the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to ::22:: OA 708/2016/CAT/PATNA BENCH reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.
iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.
56. In result, all the appeals are allowed. The impugned judgments of Delhi High Court are set aside. The writ petitions filed by the appellants are allowed, the judgments of Central Administrative Tribunal are set aside and the Original Applications filed by the respondents are disposed of in terms of what we have held in para 55 as above.
[Emphasis Supplied]
41. Hon'ble High court, Patna in and CWJC No. 5111 of 2017 titled the Union of India & Ors versus Binod Singh decided on 24.7.2017 and CWJC No. 12459 of 2017 titled the Union of India & Os versus Ramjee and others decided on 21.12.2017. Their Lordships have followed the recent decision of Hon'ble Supreme Court in the case of Union of India & Ors. Versus Rakesh Kumar (supra). We think proper to refer the entire judgements of their Lordships of our own Hon'ble High Court, Patna to answer the contentions of the parties. The Judgement dated 24.7.2017 in case of Union of India & ors versus Binod Singh & Ors (supra) and dated 21.12.2017 in case of Union of India & Ors versus Ramjee & ors (supra) for ready reference reads as under
:-
42. The Hon'ble High Court, Patna Their Lordships have followed the recent judgment of Hon'ble Supreme Court in case of Union of India Versus Binod Singh (supra) vide judgment dated 24.07.2017 reads as:-
"Heard learned Senior counsel for the petitioners and learned counsel for the private respondent.
The decision of the Central Administrative Tribunal (hereinafter referred to as the "Tribunal"), Patna Bench, Patna dated 4th October, 2016 is subject matter of challenge before this Court. It is the direction issued in paragraph 10 of the said order, which is the bone of contention, which reads as under:
"10. Accordingly, the OA is allowed. The respondents are directed to count 100% period rendered under Temporary Status from 01.01.1981 and 50% service ::23:: OA 708/2016/CAT/PATNA BENCH rendered as casual labourer from 01.12.1972 along with the 100% period after regularization till the date of superannuation and thereafter to revise the entire pensionary benefits and make payment of arrears thereof with interest @ 8% p.a. with all consequential benefits within a period of two months from the date of receipt of a copy of this order. However, there shall be no order as to costs."
The learned Senior counsel representing the Railways submits that in view of a very recent decision of Hon'ble Apex Court rendered in the case of Union of India Vs. Rakesh Kumar since reported in 2017 (3) PLJR SC 83; the very gamut of the dispute as well as judgments of conflicting kind passed from time to time was considered by the Division Bench in detail. The Court has explained those decisions and to harmonize and bring about uniformity in relation to grant of benefit of pension for casual or temporary status employees working in the Railway, by crystallizing its view in concluding part of the said decision. The ratio of the said decision of the Hon'ble Apex Court is reproduced hereinbelow:-
"55. In view of foregoing discussion, we hold:
(i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularized on a regular/temporary post for the purposes of calculation of pension.
(ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
(iii) those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.
(iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993."
If this is what has been held by the Hon'ble Apex Court in the decision rendered on 24.03.2017 with regard to the calculation or reckoning of period of casual as well as temporary status employees, which has been fixed at 50% for casual and 50% for temporary status, the order of the Tribunal seems to be contrary to the above legal view. Therefore, to harmonize and to further rule out further confusion which the Tribunal may commit in passing further orders in similar dispute, the impugned order dated 4th October, 2016 passed in O.A. No. 645/2015 is set aside. The benefit of pension for the casual period and temporary status will be calculated on 50/50 basis and pension will accrue accordingly.
The stand of the counsel for the private respondent is that even in the latest decision of the Hon'ble Supreme Court, not all decisions of the Hon'ble Apex Court, has been taken into consideration nor was the circular of the Railway Board taken into consideration.
Such a submission is required to be rejected on perusal of the order of the Hon'ble Apex Court in the case of Union of India Vs. Rakesh Kumar (supra) because the effort of the Hon'ble Apex Court is to harmonize diverse opinions which has been vexing the courts, the time has come when the harmony sought to be restored by the Hon'ble Apex Court be implemented.
The impugned order dated 04.10.2016 passed in O.A. No. 645/2015 is set aside and the writ application stands allowed."
[Emphasis supplied]
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43. The Hon'ble High Court, Patna, Their Lordships have taken a similar view vide judgment dated 21.12.2017 in case titled Union of India and ors versus Ramjee & Ors (supra) observing as under:-
"Nobody appears on behalf of the private-respondent. Heard learned senior counsel representing the Railways. Perused the order, dated 29.03.2017, passed by the Central Administrative Tribunal, Patna Bench, Patna in O. P. No. 740 of 2016.
The Tribunal obviously seems to have erred in directing the respondents to account 100 per cent period rendered in temporary status from 01.01.1981 and 50 per cent service rendered as casual labourer from 01.12.1972 along with the 100 per cent period after regularization till the date of superannuation for calculation of arrears and payments with interest of 8 per cent.
The Court, keeping in mind the decision rendered in the case of Union of India Vs. Rakesh Kumar, reported in 2017 (3) PLJR SC 83 sets aside the impugned order with a modification that the calculation will be required to be done in terms of what the Apex Court has laid down in paragraph 55 of the said judgement, which reads as under:
"55. In view of forgoing discussion, we hold:
(i) the casual worker after obtaining temporary status is entitled to reckon 50 % of his services till he is regularized on a regular / temporary post for the purposes of calculation of pension.
(ii) the casual worker before obtaining the temporary status is also entitled to reckon 50 % of casual service for purposes of pension.
(iii) those casual workers who are appointed to any post either substantively or Patna High Court CWJC No.12459 of 2017 dt.21-12-2017 3/3 in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.
(iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in wring, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993."
The Writ Application stands allowed in terms of above."
[Emphasis supplied]
44. Bare perusal of judgements extracted hereinabove passed by their Lordships of our own High Court, Patna, binding on this Tribunal. Their Lordships were in seisin with identical issues in similar facts, whereby this Tribunal in Original applicants issued direction on to count 100% period rendered under temporary status before date of regularization and to count 50% service rendered as Casual labourer before attaining temporary status with consequential benefits. Their Lordships have observed in above cases of Binod Singh and Ramjee (supra) extracted hereinabove that the orders of this Tribunal seems to be contrary to the recent legal view in case of Union of India vs Rakesh Kumar ::25:: OA 708/2016/CAT/PATNA BENCH (supra) with regard to the reckoning of period of casual as well as temporary employees as to 50% for casual period and 50% for temporary status period. Their Lordships in above cited cases set-aside orders of this Tribunal in similar dispute with modification in terms of paragraph 55 of the judgement in case of Union of India & Ors. Versus Rakesh Kumar (supra).
45. In view, whereof, we hold that both the issues are no more res-integra and squarely covered by recent and the elaborate judgement of the Hon'ble Supreme Court in case of Union of India & Ors. Versus Rakesh Kumar (supra) and as analysed in preceeding paras by us that our own Hon'ble High Court, Patna and their Lordships have followed ratio laid by Hon'ble Supreme Court in case of Union of India & Ors. Versus Rakesh Kumar (supra) and this Tribunal is bound by the decisions of our own Hon'ble High Court, Patna. Therefore, the submissions advanced on the issue so far as to reckon 100% of service period after obtaining temporary status instead of 50% before date of regularization by Shri M.P. Dixit, learned counsel for the applicants, is hereby repelled.
46. Shri M.P. Dixit, learned counsel for the applicants has placed reliance on the judgement of Hon'ble Supreme Court in case of G.L. Batra versus State of Haryana & Ors. (supra). We have carefully gone through the above cited judgement.
47. But it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of fact of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in the case of Dr. Subramanian Swamy versus State of Tamil Nadu and others, (2014) 5 SCC75. The relevant paragraph 47 which reads as under--
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The Court should not-place reliance on decisions without discussing as to how the factual situation fits in with the fact Situation of the decision on which reliance is placed."
[Emphasis supplied]
48. The Hon'ble Supreme Court in Nair Service Society vs Dr. T.Beer Masthan in (2009) 5 SCC 545. Relevant para 48 reads as:-
"48. Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field."
::26:: OA 708/2016/CAT/PATNA BENCH
[Emphasis supplied]
49. We are now proceeding to examine the factual aspects as was in the case of G.L. Batra (supra) and found that issue was related to "whether state government is competent to vary the remuneration fixed to a constitutional appointee to his disadvantage, after his appointment?" Mr. G.L. Batra worked as senior most Addl. Secretary in the Lok-Saha and later on joined as member. Haryana Public Service Commission. The issue related to re-fixation of remuneration as per Regulation 6 of the 1972. The learned single Bench of Hon'ble High Court in Ram Phal Singh (supra) related to member, H.P.S.C held in favour of member H.P.S.C and the Division Bench of Hon'ble High Court Punjab & Haryana placing reliance on Ram Phal Singh case (supra), rendered in M.P. Pandove (supra) again so which the SLP before Hon'ble Apex Court was dismissed. The above facts were brought to knowledge of D.B. of Hon'ble High Court of the Punjab and Haryana but the Division Bench overruled the judgement in Ram Phal Singh's case (supra). The Hon'ble Supreme court in such circumstances held in para 13 and 15 that High Court could not overrule judgement of single bench which was affirmed by an another co-ordinate Bench and should have referred the matter to a larger bench and when an earlier decision may seem to be incorrect to a Bench but yet it will have the binding effect on the later Bench of coordinate jurisdiction.
50. But here in the case on hand we have analysed in detail the statutory scheme for grant of pension and reckoning qualifying service to grant benefit of pension for casual or temporary status employees working in the Railway. The Hon'ble Supreme Court in the recent judgement in elaborate manner harmonized the diverse opinions and our own Hon'ble High Court Patna, their Lordship followed the ratio laid down in recent case of Union of India & Ors. Versus Rakesh Kumar (supra) binding on this Tribunal. Therefore with great respect the judgement rendered in case of G.L. Batra (supra) relied by learned counsel for the applicants in our opinion, not applicable in the facts and circumstances of present case on hand.
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CONCLUSION
51. We have already analysed in detail the issue in light of aforesaid analysis. Accordingly, our finding on issue no.1 is decided in favour of the applicants. We hold that the period of casual labour prior to grant of temporary status in light of Note 1 of Rule 31 of pension Rules 1993 all the applicants are entitled and respondents are directed to verify and re-calculate, count to the extent of 50% for revised pension and other retiral benefits and along with arrears within three months from the date of receipt of the certified copy of the order passed today failing which the interest shall be paid at the rate of 9% from the date of their entitlement till final payment.
52. Our findings so far as on issue no.2, we hold that to reckon 50% of service period after obtaining temporary status till date of regularization and is correct and in accordance with rules and all the applicants are not entitled to reckon of 100% temporary status period till their regularization/absorption on regular post. Accordingly, we decide issue no.2 against all the applicants.
53. Resultantly, the original application is partly allowed and disposed of to the extent indicated herein above.
54. There shall be no order as to costs.
55. As a sequel thereof, pending miscellaneous application(s), if any, shall also stands disposed of.
Sd/- Sd/- (Ajay Pratap Singh) (Sunil Kumar Sinha) Judicial Member Administrative Member bp/-