Central Administrative Tribunal - Patna
Dhaneshwar vs Railway on 29 May, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00273/2017
Order Dated : 29th May, 2024
CORAM
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER [J]
1. DHANESHWAR SON OF LATE ANAND LAL, RESIDENT OF
VILLAGE- HOHAD, POST-SIKNI,
SIKNI, DISTRICT RAMGARH EX
TRACKMAN UNDER DEPUTY CHIEF ENGINEER (CON),
GANGA BRIDGE, EAST CENTRAL RAILWAY, PATNA
(BIHAR).
2. BIRSAU SON OF LATE SAWANA, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER (CON), EAST CENTRAL
RAILWAY,
LWAY, DHANBAD RESIDENT OF VILLAGE HOHAD,
POST-SIKNI, DISTRICT- RAMGARH.
3. AMRIT SON OF LATE GANPAT, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER (CON), EAST CENTRAL
RAILWAY, DHANBAD RESIDENT OF VILLAGE HOHAD,
POST-SIKNI, DISTRICT- RAMGARH.
4. MOHRA SON OF LATEDANOU, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER (CON), FAST CENTRAL
RAILWAY, DHANBAD, RESIDENT OF-BANGSORI
OF POST--
HONEG DISTRICT-RAMGARH.
RAMGARH.
5. SARJU SON OF LATE RITU, EX TRACKMAN UNDER
SECTION ENGINEER, P.WAY (CON), EAST CENTRAL
RAILWAY, GOMOH, DHANBAD, RESIDENT OF -BEYAN
BEYAN
POST- BARIYATU DISTRICT- RAMGARH.
6. HARKHU SON OF LATE NATHU, EX TRACKMAN UNDER
SECTION ENGINEER, P.WAY (CON), EAST CENTRAL
RAILWAY, GOMOH, DHANBAD, RESIDENT OF VILLAGE
HOHAD, POST-SIKNI,
SIKNI, DISTRICT-RAMGARH.
DISTRICT
7. RAWAN SON OF LATE LALKA, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER, (CON), EAST CENTRAL
RAILWAY, HAZARIBAGH, RESIDENT OF-BEYAN,
OF POST--
BARIYATU DISTRICT-RAMGARH.
RAMGARH.
8. ALKU SON OF LATE BHAGU EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER, (CON), EAST CENTRAL
RAILWAY, HAZARIBAGH, RESIDENT OF VILLAGE HOHAD,
POST-SIKNI, DISTRICT- RAMGARH.
9. JADAV SON OF LATE KAMAL, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER, (CON), EAST CENTRAL
RAILWAY, DHANBAD, RESIDENT OF VILLAGE-
VILLAGE BAIPUR,
POST-DULMI, DISTRICT- RAMGARH.
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10. LALKU SON OF LATE MADHU, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER, (CON),
(CON), EAST CENTRAL
RAILWAY, DHANBAD, RESIDENT OF VILLAGE-
VILLAGE HOHAD,
POST-SIKNI, DISTRICT- RAMGARH.
11. MUTAR SON OF LATE LALDHARI, EX TRACKMAN UNDER
DEPUTY CHIEF ENGINEER, (CON), EAST CENTRAL
RAILWAY, DHANBAD, RESIDENT OF VILLAGE HOHAD,
POST-SIKINI, DISTRICT-RAMGAR
RAMGARH.
12. PYARI SON OF LATE BHAWANI, EX TRACKMAN UNDER
SECTION ENGINEER, P.WAY/ (CON), EAST CENTRAL
RAILWAY, BARKAKANA, RESIDENT OF VILLAGE HOHAD,
POST-SIKNI, DISTRICT-RAMGARH.
RAMGARH.
13. DUBWA SON OF LATE MOHAR NATH, RESIDENT OF
VILLAGE- HOHAD, POST-SIKNI,
SIKNI, DISTRICT-
DISTRICT RAMGARH, H, EX
TRACKMAN UNDER DEPUTY CHIEF ENGINEER (CON),
EAST CENTRAL RAILWAY, DANAPUR DISTRICT-PATNA
DISTRICT PATNA
(BIHAR)
.......... Applicants..
-Versus
Versus-
1. THE UNION OF INDIA THROUGH THE GENERAL
MANAGER, EAST CENTRAL RAILWAY, HAJIPUR,
DISTRICT - VAISHALI (BIHAR). 844101.
2. THE GENERAL (PERSONNEL), EAST
L MANAGER (PERSONNEL),
CENTRAL RAILWAY, HAJIPUR, DISTRICT VAISHALI
(BIHAR). 844101.
3. THE CHIEF ADMINISTRATIVE OFFICER (CON),
(CON), EAST
CENTRAL RAILWAY, MAHENDRUGHAT, PATNA (BIHAR).
800004.
4. THE DEPUTY CHIEF ENGINEER (CON), EAST CENTRAL
RAILWAY, DHANBAD. 826001.
01.
5. THE DEPUTY CHIEF ENGINEER (CON), EAST CENTRAL
RAILWAY, HAZARIBAGH. 825301.
6. THE DEPUTY CHIEF ENGINEER (CON), EAST CENTRAL
RAILWAY, DANAPUR DISTRICT-PATNA
DISTRICT (BIHAR) 801105.
7. THE SENIOR DIVISIONAL FINANCIAL MANAGER, EAST
CENTRAL RAILWAY, DHANBAD. 826001.
8. THE SENIOR DIVISIONAL FINANCIAL MANAGER, EAST
CENTRAL RAILWAY, DANAPUR DISTRICT-PATNA
DISTRICT PATNA (BIHAR)
801105.
......... Respondents.
For Applicant : Shri M.P. Dixit,, Advocate.
For Respondents : Shri T.N. Thakur, Addl. C.G.S.C.
C.G.S.
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O R D E R (O R A L)
AS PER : AJAY PRATAP SINGH, MEMBER [JUDICIAL]
1. By way of present application applicants seeking direction to reckon on entire service of applicant applicants under Temporary Status as full, full 100% instead of 50% and further to direct to count 50% of service rendered as Casual labour in light of law laid down by Hon'ble Supreme Court in case of Union of India versus Sar Sarju.
u. So also seeking direction to revise the entire pensionary benefits and make payment of arrears with 15% interest with all consequential benefits.
PRAYER
2. The applicants have claimed following main relief (as extracted from OA) OA):-
(i) That your Lordships may graciously be pleased to command /direct "That 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 and other cases referred therein without any further delay.
(ii) That the Respondents be further
furt directed to revise the entire
pensionnary benefits accordingly and make payment of arrears with 15% interest together with all consequential benefit.
(iii) Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicants."
FACTS IN BRIEF
3. Applicants are retired employees of construction organization of East Central Railway and were initially appointed as casual labour in the year 1972, 1970, 1970, 1970, 27.10.1969, 1972, 1972, 21.09.1972, 1972, 1972, 1972, 1972 and 1974 respectively, subsequently granted Temporary Status w.e.f. 01.01.1981 and were regularized on 01.04.1988. Applicants pplicants were finally super superannuated annuated from service on 30.09.2007, 31.01.2009, 30.10.2009, 31.03.2009, 30.10.2011, 31.01.2005, 31.10.2010, 30.09.2009, 30.09.2007, 30.04.2003, 31.08.2004, 31.05.2012 and 31.08.2010 respectively while working as Trackman.
4. It is the case of applicants that at respondents have not counted service rendered by applicants as casual labour till date of grant of Temporary Status as qualifying service for pension purpose and applicants // 4 // OA/050/00273/2017 are entitled for reckoning of 50% casual service for calculating pension and pensionary sionary benefits. Hon'ble Supreme Court in case of Union of India and Sarju u has held that employees are entitled for reckoning 100% of service rendered under Temporary Status Status, whereas respondents have granted only benefit of 50% reckoning service as Tempor Temporary ary Status till date of retirement whereas applicants are entitled for reckoning 100% of period of service of obtaining Temporary Status to the date of superannuation.
5. Per-contra respondents have contested the claim of applicants by filing written statement and ha have stated that for pension and pensionary benefits service has been calculated @50% for period of Temporary Status till regularization and 100 100% from date of regularization regularization till retirement and applicants have never raised any objection during their service period. Stand of the respondents that right to applicants accrued as per Pension Rules, 1993 and no vested right more than that that.
6. Respondents in para-13 13 of written statement statement have admitted the facts that 50% period of service after Temporary Status till regularization and 100% from date of regularization till retirement was counted for purpose of pensionary benefits.
SUBMISSION ON BEHALF OF THE APPLICANTS
7. 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 in SLP(c) No.20041/2008 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 200 20044 to 2012 and entitled for similar treatment with consequential benefits ii.e.
.e. revised pension etc.
8. 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 judg judgment ment in case of Union of India &ors versus Kumar, (2017) 13 SCC 388 is judgment in persona not applicable Rakesh Kumar 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 200 2004 to 2012, the judgment in case of Union of India versus Sarju // 5 // OA/050/00273/2017 was applicable and in case of Union of India versus Rakesh Kumar judgment was delivered subsequently on 24th March 2017 hence cannot be made applicable retrospectively.
9. 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 rsus Rakesh Kumar (supra) is later and same shall not be applicable in the present case on hand.
10. 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 law laid down in case of Union of India versus Rakesh Kumar (supra).
11. 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, others, reported in 2013 (4) PLJR (SC) 403.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
12. Shri T.N. Thakur, 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 service 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 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 Manual-Volume-1.(in (in short IREM-I) IRE
13. Shri T.N. Thakur, learned Additional Standing Counsel for the respondents vociferously canvassed that all the applicants have been correctly as per Pension Rules 1993 granted service benefits by reckoning // 6 // OA/050/00273/2017 50% of service period after obtaining temporar 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.
14. Shri T.N. Thakur,, learned Additional Additional Standing Counsel also contended that Hon'ble Supreme Court in case of Union of India &Ors.
given direction on special facts and same is judgment Versus Sarju (supra)given in personam 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 app applicants licants at the time of retirement for grant of pension.
15. Shri T.N. Thakur,, 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 n 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 India and others versus Rakesh Kumar reported in (2017) 13 SCC 338: 2017 (3) PLJR SC 83..
16. Shri T.N. Thakur,, learned Additional Standing Counsel also emphasized that Hon'ble High Court of Judicatu Judicature re 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 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.
17. This Tribunal has bestowed ed anxious considerations on the rival contentions of the learned counsel appearing for the parties and perused the material placed on record and precedents relied.
relied
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18. The admitted facts are that all the applicants were engaged as causal labourers in railways bbefore efore year 1971, 19 , granted temporary status w.e.f. 01.0 01.01.1981 and regularized on 01.04.1988 regular post of Trackman. The respondents have counted only 50% of the service period after obtaining temporary status casual labour till date of regularization/absor regularization/absorption ption 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 50%, 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.
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).
19. The dispute in the present case is that applicants are claiming reckoning towards qu qualifying alifying 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 similar treatment to count 100% of service for temporary status period based on laws laid down in case of &Ors. Versus Sarju (supra).
Union of India &Or (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 rant of benefits of pension for casual temporary status employees in railway subsequently regularized/absorbed on regular post.
THE ISSUE
20. 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 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?
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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
21. The Rules which are relevant to decide both the issues are extracted as under:
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 a 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 ass his last working day."
Rule 20. Commencement of qualifying service- 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 substant 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 April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; se; 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) .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) Contingencies In Rule 31"Counting of service paid from Contingencies-
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, employ subject to the following condition namely: -
the service paid from contingencies has been in a job involving whole time employment;
// 9 // OA/050/00273/2017 the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned tioned 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 regula 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 absorptio 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 service 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:-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 iff it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, 1 the benefit has also been extended to Project Casual Labour."
(iv) The Para 2005 of IREM-Vol-I
IREM reads as-
The Next Provision needne to be noted is Para 2005 of IREM, which is as follows:-
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 b 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 vis other regular/ temporary employees. This is however, subject to the provisions that if the seniority of certain 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 P 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 // 10 // OA/050/00273/2017 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 i regular service. Daily rated casual labour will not be entitled to these benefits.
(iv) 1501 of Chapter-XV XV of IREM-I IREM (i) Temporary Railway Servants Definition--A 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"
"part employee or an "apprentice".
(v) 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 ofUnion of India Versus Rakesh Kumar, reported in 2017 (13) SCC 388: AIR 2017 Supreme Court 1691 was seisin with only issue "whether "w 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 respondents 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 schemesche 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.
ion. So also casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.
[Emphasis Supplied] upplied] ANALYSIS
22. This Tribunal extracted herein above the relevant rules framed under the proviso to the Article 309 of the Constitution of India.
India. The applicants were initially engaged as causal labour in railway prior to1971, to19 , granted temporary status and regularized on the regular post of Trackmen.
23. I am 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.
1993. The applicants have vested legal right to count period of qualifying service and same has accrued accordance with statutory rules. Tribunal examining the relevant rules to resolve the controversy related to reckoning period of service to be // 11 // OA/050/00273/2017 counted as qualifying for the purposes of calculation of pension for the applicants in the case on hand.
24. 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 officiatin 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 ooff 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 "Provided 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 reckoned, the employee must be appointed ointed on the regular post and not otherwise. The combined reading of the first proviso to Rule 20 and Rule 20of 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.
25. 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 ragraph no. 29 observed as under:-
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."
26. Rule 31 of Pension Rule 1993 prescribes for counting of service paid from contingencies in respect of a railway servant in service on 22.08.1968,, half the service paid from contingencies shall be taken or after 22.08.1968 // 12 // OA/050/00273/2017 into account for calculating pensionary benefits on absorption in regular Note-II of Rule 31 of Pension Rules 1993 specifically employment. The Note expressly provided intention to count half of the services rendered as casual labour before obtaining the status of temporary casual labour. This Tribunal can safely conclude that all thee applicants have vested legal right accrued at the time of superannuation to reckon 50% of service period as casual labour before obtaining temporary status.
27. 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 Tribunal 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.
28. This Tribunal has considered the matter and already analyzed in detail related to the issue no. 1 related to reckoning 50% casual service before ob obtaining taining 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 re-calculation calculation of retiral benefits payable to the applicants and respondents are directed to verify erify and extend benefits of said 50% services of casual period, if already not have been extended to the applicants.
29. no.2 "whether Now coming as to the next issue, issue no.2, 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?"
30. I have already extracted relevant rules to resolve the controversy. Rule 20of 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 ption in the services. Further the sub sub-para 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 // 13 // OA/050/00273/2017 being regularized as per sub sub-para para (a) of para 2005 of IREM-Vol.
Vol. I, applicants are entitled to reckon 50% of service period as temporary status. 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 IREM-Vol. I, thereafter ter 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 substantiv substantivee 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 sta status tus 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 be nefits. The sub-para benefits. para (a) of Para 2005 of IREM 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 continuous employment and before regular absorption as qualifying service for the purpose of poensionarybenefits."
[Emphasis Supplied] upplied] 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 ass regular railway employee, counts for pensionary benefits. With effect from 1-1-1981, 1 1981, the benefit has also been extended to Project Casual Labour."
[Emphasis Supplied] upplied]
31. The perusal of Para 20 of the Master Circular No. 54 already extracted hereinabove indi indicates cates 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.
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32. I have analysed entire relevant rules applicable to carve out legal entitlement of applicants so far relates to issue no.2 and I am of the view that the applicants are entitled to reckon 50% of his services after obtaining temporary status till they were reg regularized ularized 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 sub-para para (a) of Para 2005 of IREM--I. Accordingly, this Tribunal decide the issue no.2, against all the applicants and 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 rregularized egularized 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) (supra)in 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 H High igh Court of Patna, their Lordships have followed the recent judgment of Hon'ble Apex Court and bound by judgments of our own Hon'ble High Court of the State.
33. Now reversing back to the gist of the contentions of Shri M.P. Dixit, learned counsel for the app applicants licants,, 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 claimof applicants based on order dated 30.09.2011 passed by Hon'ble Supreme Court in case of Union of India &ors versus Sarju(supra) Sarju(supra) and on similar lines orders passed by this Tribunal.
34. Shri T.N. Thakur,, 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 temporarystatus for pensionary benefits accordance with statutory rules and they have no vested legal right, no legal right accrued.
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 // 15 // OA/050/00273/2017 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 T.N. Thakur vociferously canvassed that applicants aare re 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.
35. Much emphasis has been placed by Shri 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 matter of counting of past services of temporary status period to exte nt of 100% till date of regularization. Per contra,, Shri extent T.N. Thakur. learned ASC placed heavy reliance on the binding precedent, judgment in rem having bending force under Article 141 of the Constitution of India. Shri Thakur further submitted that order passed in case of Union of India &Ors. Versus Sarju (supra) was based on special facts and elaborate on the scheme, legal point the judgment in latest case Union of India &Ors. Versus Rakesh Kumar (supra)is (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.
36. Before dealing with the contentions of the parties, This Tribunal think it appropriate to refer to the entire order dated 30.09.2011 in case of Union of India &Ors. Versus Sarju Sa (supra)so so also relevant paragraphs of judgment dated 24th March, 2017 in case of Union of India &Ors. Versus Rakesh Kumar (supra)and and followed by their Lordships of our own Hon'ble High Court, Patna, for ready reference reproduced as as-
30.09.2011 in case of Judgment dated 24th March, 2017 in case of Order dated 30.09.
Union of India &Ors. Versus Sarju Union of India &Ors. Versus Rakesh Kumar (supra) (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 (supra) is reproduced for ready reference as under:-
under:
special leave petitions are directed 22. From the above submissions of the learned against the orders passed by the different counsel for the parties and materials on record, Division Benches of the Patna High the only issue which arises for consideration in Court dismissing the writ petitions filed these appeals is: by the petitioners against the directions Whether the entire services of a casual given by the Central Adminis Administrative worker after obtaining temporary status Tribunal, Patna Bench (for short, 'the till his regular absorption on a post is Tribunal') for counting the service of the entitled to be reckoned for pensionary respondents with effect from the date benefit or only 50 per cent period of such they were given temporary status till the service can be reckoned for pensionary date of superannuation for the purpose benefit? of calculation of pension and other 23. In so far as reckoning of 50 per cent casual // 16 // OA/050/00273/2017 retiral ben benefits. SLP(C) No.35934 of period, there is no challenge and it is clear that 2009 is directed against the order of the the said reckoning is in accordance with wit Rule 31 High Court which upheld the direction of Rules, 1993 and the benefit of said 50 per cent given by the Tribunal for counting of services of casual period had already been casual and temporary service for the extended to the respondents. Thus, we need to purpose of payment of retiral benefits. answer in these appeals the only question as noted Sarju (respondent in SLP(C) above.
No. 20041/2008) 041/2008) was engaged as casual 25. Para 20 of the Master Circular No. 54 is labour on 17.1.1960. He was given quoted as below:- temporary status with effect from "20. Counting of the period of service of 1.1.1981 and regularised with effect Casual Labour for pensionary benefits:
from 1.4.1988. On attaining the age of - Half of the period of service of casual superannuation, he was retired from labour (other than casual labour service on 30.11.2001. The application employed on Projects) after attainment of filed by him under Section 19 of the temporary status on completion of 120 Administrative Tribunals Act, 1985 (for days continuous con service if it is followed short, 'the Act') for counting his by absorption in service as regular temporary service as part of qualifying railway employee, counts for pensionary service for the purpose of calculation of benefits. With effect from 1-1-1981, 1 the the retiral benefits was disposed of by benefit has also been extended to Project the Tribunal vide order dat dated 1.3.2006, Casual Labour."
the operative portion of which reads as 26. Next Provision need to be noted is Para under: 2005 of IREM, which is as follows:-
"In view of the law laid down by "2005 IREM:
the Hon'ble Andhra Pradesh 2005. Entitlements and privileges High Court as well as C.A.T., admissible to Casual Labour who are Cuttack Bench, there is no treated as temporary (i.e. given basis/ground to take different temporary status) after the completion view. In the result, the O.A. is of 120 day or 360 days of continuous allowed. The respondents are employment (as the case may be). directed to recalculate the (a) Casual labour treated as temporary pension with arrears from due are entitled to the rights and benefits date (the date of admissible to temporary railway superannuation) with all servants as laid down in Chapter XXIII incidental benefits after of this Manual. The rights and counting the full service from privileges admissible to such labour also the date of grant of temporary include the benefit of D & A rules. rul status i.e. 1.4.1981. These However, their service prior to exercises should be completed absorption in temporary/ permanent/ within a period of four months regular cadre after the required from the date of receipt of a selection/ screening will not count for copy of this order. There shall the purpose of seniority vis-a-vis vis other be no order as to cost." regular/ temporary employees. This is IshwarNand Mishra however, subject to the provisions provisio that if (respondent in SLP(C) No. 13709/2009) the seniority of certain individual was engaged as casual labour in 1966. employees has already been determined He was granted temporary status with in any other manner, either in effect from 10.3.1971 and was pursuance of judicial decisions of regularised with effect from 27.5.1981. otherwise, the seniority so determined After attaining the age of shall not be altered. superannuation, he filed an application Casual labour including for counting his past service for the Project casual labour labou shall be eligible to purpose of pension etc., which was count only half the period of service disposed of by the Tribunal vide order rendered by them after attaining dated 16.1.2008, 6.1.2008, the operative portion of temporary status on completion of which reads as under: prescribed days of continuous "In view of the law laid down by employment and before regular the Hon'ble Andhra Pradesh absorption, as qualifying service for the High Court as well as CAT, purpose of pensionary benefits.
bene This
Cuttack Bench, and Patna benefit will be admissible only after
bench there is no basis/grounds their absorption in regular employment.
to take a different the pension Such casual labour, who have attained
with arrears from due date (the temporary status, will also be entitled to
date of superannuation) with all carry forward the leave at their credit to
incidental benefits after new post on absorption in regular
counting the full service from service. Daily rated casual labour will
the date of grant of temporary not be entitled to these benefits.
status i.e. 15.3.1971. The 27. Railway Services (Pension) Rules, 1993
exercise should 4 be completed have been framed under proviso to Article 309 of
within a period of four months the Constitution of India. Rule 20 and Rule 31 of
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from the date of the receipt of a Rules, 1993 which are relevant for our purpose,
copy of this order, No order as are extracted as below: -
to the costs." "20. Commencement of
Mani Kant Jha (respondent in service Subject to the
qualifying service-
SLP(C) No. 35934/2009) joined service provisions of these rules, qualifying
as casual labour on 30.7.1973. He was service of a railway servant shall
granted temporary status with effect commence from the date he takes charge
from 1.1.1981 and was absorbed on of the post to which he is first appointed
regular basis with effect from 1.4.1988. either substantively or in an officiating or After attaining the age of temporary capacity:
superannuati superannuation with effect from Provided that officiating or 30.6.2005, the respondent filed O.A. No. tempor temporary service is followed, without 505/2005 for issue of a direction to the interruption, by substantive appointment petitioners herein to count his past in the same or another service or post:
service as part of qualifying service for Provided further that - the purpose of calculation of retiral (a) in the case of a railway benefits. The same was disposed of by servant in a Group 'D' service or post the Tribunal vide order dated who held a lien or a suspended lien on a 29.11.2006, the operative portion of permanen pensionable post prior to the permanent which reads as under: 17th April, 1950, service rendered before "In the result, this application is attaining the age of sixteen years shall allowed. The respondent No.2 not count for any purpose; and and 3, namely the Chief (b) in the case of a railway Administrative Officer [Con] servant not covered by clause (a), service E.C. Railway, Mahendrughat, rendered before attaining the age of Patna and the Chief Personnel eighteen years shall not count, except for Officer, E.C. Railway, Hazipur, compensation gratuity."
are hereby directed to get the qualifying period of service of "31. Counting of service paid the applicant, for the purposes Contingencies In respect of a from Contingencies-
of pensionary benefits, railway servant, in service on or after the calculated afresh adding 22nd day of August, 1968, half the thereto the entire period of service paid from contingencies shall be service undergone by the taken into account for calculating applicant under temporary pensionary benefits on absorption in status and half period of service regular employment, subject to the undergone as casual labourer following condition namely: -
and then to have the pensionary the service paid from benefits calculated thereupon contingencies has been in a job involving afresh. This should be done wholetime employment;
within three months of the the service paid from
receipt of a copy of this order continge
contingencies should be in a type of work
whereafter the arrears of retiral or job for which regular posts could have
benefits including of the been sanctioned such as posts of malis,
pension, should be paid within chowkidars and khalasis;
one month, eligible failing the service should have been
which the amount of unpaid such for which payment has been made
arrears would be payable with either on monthly rate basis or on daily
interest @9% per annum ratess computed and paid on a monthly
starting from the date of expiry basis and which, though not analogous to
5 of the period of four months the regular scales of pay, borne some
after receipt of a copy of order, relation in the matter of pay to those
till the amount is paid." being paid for similar jobs being
Chanarik and 4 others performed at the relevant period by staff
(respondents in SLP(C) No. 35936/2009) in regular establishments;
were initially engaged as (b) the service paid from
CPC/Gangmen. They were given contingencies has been continuous and
temporary status with effect from followed by absorption in regular
26.12.1985, 25.1.1986 and 14.2.1986 employment without a break;
respectively. After superannuation from Provided that the weightage for
the service, they filed O.A. No. 260/2005 past service paid from contingencies
for issue of a direction to the petitioners shall be limited to the period after 1st
herein to count their total service as part January, 1961 subject
subjec to the condition
of qualifying service for the purpose of that authentic records of service such as
payment of retiral dues. The same was pay bill, leave record or service-book
service is
disposed of by the Tribunal vide order available.
dated
ed 2.9.2005, the operative of which NOTE - (1) the provisions of
reads as under: this rule shall also apply to casual labour
"In the result, this OA is paid from contingencies.
allowed. The respondents are (2) The expression "absorption
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directed to grant pension with in regular employment" means
arrears from due date (date of absorption against a regular post."
superannuation), with all 28. The perusal of para 20 of the Master incidental benefits, after Circular indicates that only half of the period of counting the full service from service of a casual labour after attainment of the date of grant of temporary temporary status on completion of 120 days status i.e. 26.12.1985, continuous service if it is followed by absorption 25.1.1986, 26.12.1985, in service as a regular Railway employee, counts 14.2.1986 and 26.12.1985 for pensionary benefits.
benefits respectively." 29. Para 2005 of Indian Railway Establishment Ram Barai (respondent in Manual also contains the same scheme for SLP(C) No. 14690/2010) was initially reckoning the period for pensionary benefit. Para engaged as Casual Labour/Gangman on 2005 contains the heading:
head 17.4.1967. He was granted temporary "2005.
2005. Entitlements and Privileges status us with effect from 11.11.1990 and admissible to Casual Labour who are was regularised with effect from treated as temporary (i.e. given 18.9.1995. After superannuation from temporary status) after the completion of service, he filed O.A. No. 97/2006 for 120 days or 360 days of continuous counting his total service for the purpose employment (as the case may be)." of retiral benefits. The same was 30. The above heading enumerates the disposed of by the Tribunal vide or order privileges ivileges admissible to casual labour who are dated 31.8.2007, the relevant portion of treated as temporary.
temporary Clause(a) of para 2005
which reads as under: provides: "
"I have considered the rival Casual labour including Project
view points carefully. In view of casual labour shall be eligible to count
the judicial pronouncements of only half the period of service rendered
Hon'ble Andhra Pradesh High by them after attaining temporary status
Court and the Divisional Bench on completion of prescribed days of
of Central Administrative continuous employment and before
Tribunal as well as or single regular absorption, as qualifying service
Bench of Central for the purpose of pensionary benefits."
Administrative Tribunal, I 35. The Judgment of this Court in Chanda agree that the applicant is Devi's case(Supra) considered the nature of entitled to get pension treating employment of casual labourl who was granted the entire period of service of temporary status. In the above case, Smt. Santosh, temporary status as the respondent was widow of Sh. Ram Niwas who pensionable and the period of was a project casual labour. Under the scheme service rendered as cast labour framed by Union of India in pursuance of order of as 50 per cent pensionable. The this court in Inderpal Yadav Vs. Union of India, respondent are directed to give 1985 (2) SCC 648, Ram Niwas was treated as these benefits as and when the temporary employee w.e.f 01.01.1986. After the applicant retires." death of Ram Niwas, her widow filed the claim for The writ petitions filed by the grant of family pension which was rejected by the petitioners questioning the legality and Railway against which the widow approach the correctness of the orders passed by the Central Administration Admin Tribunal. The Tribunal Tribunal were dismissed by the High allowed the claim, Writ Petition filed by Union of Court. India was dismissed by the Rajasthan High Court We have heard learned counsel against which the appeal was filed. After referring for the parties and perused the record. to Rule 2001, Rule2002 and Rule 2005 of IREM, We have also gone through the judgment this Court held that Rule 2005 clearly lays down of this Court in Union of India and the entitlement and privileges admissible to casual others vs. K.G.RadhakrishnanPanickar labour who are treated as temporary i.e. given and others [(1998) 5 SCC 111]. In our temporary status. view, the directions given by the 36. This Court further held that there is a Tribunal ribunal in the matter of counting of distinction between the casual labour having a past service of the respondents for the temporary status and temporary tempora servant, para 24 purpose of calculation of the retiral of the judgment is relevant which is quoted as benefits did not suffer from any legal below:
infirmity and the High Court rightly "24. The contrast between a declined to interfere with the same. The casual labour having a temporary status judgment of this Court iin Union of India and a temporary servant may vs. K.G. RadhakrishnanPanickar (supra) immediately be noticed from the on which reliance has been placed by definition of a temporary railway servant learned counsel for the petitioners is contained in i Rule 1501 occurring in clearly distinguishable. In that 7 case, Chapter XV of the Manual:
the Court was called upon to consider "1501.(i) Temporary railway whether the services rendered by the servants employee employees as Project Casual Labour can Definition- A 'temporary be treated as part of the qualifying railway servant' means a railway servant service for the purpose of calculation of without a lien on a permanent post on a // 19 // OA/050/00273/2017 the retiral benefits and whether the cut railway or any other administration or off date fixed in the policy framed by the office under the Railway Railw Board. The term Railway Administration for counting half does not include 'casual labour', of the service render rendered as Project including 'casual labour' with temporary Casual Labour was discriminatory and status', a 'contract' or 'part time' violative of Article 14 of the employee or an 'apprentice'." Constitution. After adverting to the 39. Much reliance has been placed by learned relevant policy decisions, this Court held counsel for the respondent as well as Delhi High that the policy of the Railways does not Court on rule 20. Rule 20 provides: suffer from any constitutional infirmity. 20...Subject to the provisions of That judgme judgment has no bearing on the these rules, qualifying service of a decision of the issue whether temporary railway servant shall commence from the service, which was followed by date he takes charge of the post to which regularisation should be counted as part he is first appointed either substantively of the qualifying service for the purpose or in an officiating or temporary of retiral benefits. As a matter of fact, if capacity: the respondents had prayed for ccounting Provided that officiating or half of the service rendered by them as temporary service is followed, without Project Casual Labour as part of interruption, by substantive appointment qualifying service, we may have in the same or another service or post..." examined the issue in detail and decided 40. Rule 20 provides that qualifying service whether the said prayer should be shall commence from the date the employee emplo takes granted. However as they did not charge of the post to which he is first appointed challenge the orders of the TribunaTribunal either substantively or in an officiating or before the High Court, we refrain from temporary capacity. Rule 20 is attracted when a expressing any opinion on the issue. person is appointed to the post in any of the above The special leave petitions are capacities Rule 20 has no application when capacities.
accordingly dismissed. The petitioners appoint appointment is not against any post. When a are directed to calculate the pension and casual labour is granted a temporary status, grant other retiral benefits payable to the of a status confers various privileges as respondents keeping in vie view the enumerated in para 2005 of IREM. One of the directions given by the Tribunal and pay benefits enumerated in para 2005 sub clause(a) is the arrears within next three months with also to make him eligible to count cou only half of the interest at the rate of 12% from the dates services rendered by him after attaining of their retirement on attaining the age temporary status. Rule 20 is thus clearly not of superannuation. attracted in a case where only a temporary status A report showing compliance of is granted to casual worker and no appointment is this order shall be filed in the Registry of made in any capacity against any post. The Delhi this Court within four months and the High Court in the impugned judgment relies on matter be posted before the Court in the proviso to Rule 20 for coming to the conclusion in 3rd week of February, 2012. para 7 of the judgment.
"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 treat 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.
pe 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 theth 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 // 20 // OA/050/00273/2017 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 bee 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 ubsequent 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(Pen 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 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 t 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 inA.
in 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:
provides:-
" The provisions of this Rule shall also apply to casual labour paid from contingencies tingencies 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.
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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 pro 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 t 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 Note Rule 31 has to be counted to the extent of 50% 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 c 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 Pen 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 ar 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]
37. Hon'ble High court, Patna in and CWJC No. 5111 of 2017 titled the Union of India &Ors versus Binod Singh decided on 24.7.2017and CWJC No. 12459 of 2017titled the Union of India &Os versus Ramjee and others decided on 21.12.2017.Their 21.12.2017. Lordships have followed the recent decision of Hon'ble Supreme Court in the case of Union of India &Ors. Versus Rakesh Kumar (supra).
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38. I think it proper to refer the entire judgments of their Lordships of our own Hon'ble High Court, Patna to answer the contentions contentions of the parties. The Judgment dated 24.7.2017 in case of Union of India &ors versus Binod Singh &Ors (supra) and dated 21.12.2017 in case of (supra)and for ready reference Union of India &Ors versus Ramjee & ors (supra)for reads as under ::-
"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 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; 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 fit 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 herein below:-
"55. In view of foregoing ing 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 entitl 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 requirementt 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 // 23 // OA/050/00273/2017 Sanctioning Authority Autho 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 andan 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 tempor 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 t 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 e 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 64 is set aside and the writ application stands allowed."
[Emphasis Supplied] upplied]
39. 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:-
under:
"Nobody appears on behalf of the private-respondent.
private 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 centcen 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 C 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:
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.
// 24 // OA/050/00273/2017
(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 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 dese 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 serving 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 inn terms of above."
[Emphasis Supplied] upplied]
40. The Division Bench of this Tribunal in case involving identical facts and legal issue titled Ramashish Ram vs. Union of India & ors in OA 70 708/2016 /2016 decided on 10.04.2024 has held that period of casual labour prior to grant of Temporary Status in light of Note Note-I of Rule 31 of Pension Rules, 1993 all the applicants are entitled and respondents are directed to verify and re re-calculate, calculate, count to the extent of 50% for revised pension and other retiral dues along with arrears and also to reckon 50% of service period after obtaining Temporary Status till the date of regularization and thereafter reckon 100% period from the date of regularization till the their retirement.
41. Bare perusal of judgments 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 applic applicants ants 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 (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 aside orders of this Tribunal in similar Lordships in above cited cases set-aside // 25 // OA/050/00273/2017 dispute with modification in terms of paragraph 55 of the judgment in case case of Union of India &Ors. Versus Rakesh Kumar (supra).
42. In view, whereof, This Tribunal hold that both the issues are no more res res-integra and squarely covered by recent and the elaborate judgment of the Hon'ble Supreme Court in case of Union of India &Ors.. Versus Rakesh Kumar (supra)and as analysed in preceeding paras 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 bound by the decisions of our own Hon'ble High Court, Patna.
43. 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.
44. 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). I have carefully gone through &Ors.(supra). ugh the above cited judgment.
45. 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 Supre Supreme Court in the case of Dr. Subramanian Swamy versus SCC75.. The relevant paragraph State of Tamil Nadu and others, (2014) 5 SCC75 47 which reads as under
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 not reliance on decisions without discussing as to how the factual situation fits in with the fact Situation tuation of the decision on which reliance is placed."
[Emphasis Supplied]
46. The Hon'ble Supreme Court in Nair Service Society vs Dr. T.Beer Masthan in (2009) 5 SCC 545. Relevant para 48 reads as:-
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."
[Emphasis Supplied] upplied] // 26 // OA/050/00273/2017
47. Now ow 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 app appointment?" Shri G.L. Batra worked as senior most Addl. Secr Secretary in the Lok-Saha Saha and later on joined as member. Haryana Public Service Commission. The issue related to re re-fixation 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 judgment 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 judgment of single bench which was affirmed by an another co co-ordinate 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.
48. But here in the case on hand I have analysed in detail the statutory scheme for grant of pension and reckoning qualifying service to grant benef benefit it of pension for casual or temporary status employees working in the Railway. The Hon'ble Supreme Court in the recent judgment in elaborate manner harmonized the diverse opinions and 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 judgment rendered in case of G.L. Batra (supra) relied by learned counsel for the applicants in my opinion, not applicable in the facts and circumstances of present case on hand.
CONCLUSION
49. This Tribunal has already analysed in detail the issue in light of aforesaid analysis. Accordingly, finding on issue no.1 is decided in favour of the applicants and hold that the period of casual labour prior to grant of temporary status in light of Note 1 of Rule 31 of pension Rules // 27 // OA/050/00273/2017 1993 all the applicants are entitled and respondents are directed to verify and re--calculate, calculate, count to the extent of 50% for revised pension pension and other retiral benefits and alongwith 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 pay payment.
50. Findings indings so far as on issue no.2, Tribunal 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, decide issue no.2 against all the applicants.
51. Resultantly,, the original application is partly allowed and disposed of to the extent indicated herein above.
above
52. There shall be no order as to costs.
53. As a sequel thereof, pending miscellaneous application(s), if any, shall also stands disposed of.
Sd/-
[Ajay Pratap Singh] Judicial Member Central Administrative Tribunal Patna Bench, Patna sks/-