Central Administrative Tribunal - Delhi
While Working As Clts Against vs The Union Of India on 21 April, 2010
CENTRL ADMINISTRTIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. NO. 554/2009
New Delhi, this the 21st day of April, 2010
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBlE MR. SHAILENDRA PANDEY, MEMBER (A)
Shri Kundan aged about 61 = years
S/o Late Shri Battan superannuated on
Attaining age of 60 years w.e.f. 9.3.2006
While working as CLTS against
Regular sanctioned post of Beldar
(Farm Hand) in EBS Babugarh
Under Directorate of Remount & Veterinary Services,
QMGs Branch AHQ Ministry of Defence
R/o Village & Post Babugarh District Ghaziabad
(U.P.) Applicant
(By Advocate: Shri V.P.S. Tyagi)
Versus
1. The Union of India
(Through Secretary),
Ministry of Defence, South Block,
New Delhi
2. The Secretary,
Ministry of Personnel,
P.G. Pensions,
(Department of Personnel and Training),
North Block,
New Delhi.
3. The Director General,
Remount & Veterinary Service,
QMGs Branch, AHQ,
Integrated HQrs of MOD (Army)
West Block-III, R.K. Puram,
New Delhi
4. The Controller General of Defence Accounts (CGDA),
West Block V, R.K. Puram,
New Delhi.
5. The Commandant,
Equine Breeding Stud,
Babugarh Cantt. . Respondents
By Advocate: Shri D.S. Mahendru.
O R D E R
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 3.3.2008 (page 18) whereby he was informed that since he had worked on casual basis without being regularized, he is not entitled to pensionary benefits. However, he could be allowed the benefit of entire casual service under the provisions of payment of Gratuity Act. He has further sought ex-post-facto approval for grant of pensionary benefits at par with similarly situated persons by invoking provisions of Rule 88 of CCS (Pension) Rules, 1972.
2. It is stated by the applicant that he was initially engaged as a casual labourer as Beldar with effect from 1.3.1980 and continued as such up to March, 2006. He was conferred with temporary status under the DOP&T OM dated 10.9.1993 whereupon he became entitled to be regularized by absorption in Group D post as and when vacancies became available. 83 vacancies were released in July, 2005 and recruitment notification was issued for Group C and Group D posts in Equine Breeding Stud. 76 posts of Group D were to be filled out of 2/3rd, i.e., 51 which were earmarked to be filled from amongst the CLTS and 25 vacancies from open market as direct recruit. Out of 51, only 45 were selected and six vacancies remained unfilled for want of suitable persons from amongst the candidates. The whole process was a shame because it was organized to mint the money. In the process they irregularly held many CLTs as overaged and not being allowed to participate in the selection process. Even though applicant was at Sl.No.1, he was not considered for substantive absorption of Group D and ultimately superannuated with effect from 9.3.2006 by an order passed on 10.2.2006 meaning thereby that 26 years of applicants services were washed out on the ground that he was overaged. Since respondents did not regularize the applicant, he had no other option but to file OA NO. 2624/2006 which was decided on 29.10.2007 on the analogy of the case of Charan Singh decided on 2.2.2006 whereby respondents were directed to consider the case of applicant therein for ex-post-facto sanction under Rule 88 of CCS (Pension) Rules, 1972 keeping in mind the undue hardship caused to the applicant. He further submitted that number of persons have been granted pension, namely, Shri Babu, Shri Daulat, Shri Tukki Ram and Smt. Ramwati and some who had even approached the court had been given pension, namely, Shri Balwanta, Shri Tilak Ram. Shri Charan Singh and Shri Mohd. Razak. Apart from one Chuttan, who had been given relief by Honble High Court of Delhi, applicant also submitted that the payment of Gratuity Act would not apply to him as such he should be considered for grant of pension by granting ex-post-facto sanction under Rule 88 of the CCS (Pension) Rules, 1972.
3. Counsel for the applicant placed reliance on the judgment given by the Honble High Court of Delhi in the case of Shri Brij Mohan and 11 Others Vs. U.O.I. & Others decided on 28.1.2009 and the judgments given by this Tribunal in the cases of Shri Charan Singh Vs. U.O.I. & Others (OA No. 1029/2005 decided on 2.2.2006), Shri Mohammad Razak Vs. U.O.I. (OA No. 427/2004 decided on 22.4.2004), Shri Blawant Vs. U.O.I. & Others (OA No. 801/2005 decided on 26.10.2005) and etc. etc.
4. Respondents have opposed this OA on the ground that applicant has sought regularization of his service and pensionary benefits but Apex Court had already decided in the case of Secretary, State of Karnataka & Others Vs. Uma Devi and Others reported in (2006 (4) SCC 1) that illegal, irregular and improper recruitment not based on merit and proper selection process would be taken as back door entry in violation of the principle of equality of opportunity enshrined in the constitution. Applicant did not approach the court at the time when he was not considered in the year 2005 on the ground of being overaged. As far as his earlier OA is concerned, the directions have already been complied with because the case had been taken up with the DOP&T through departmental channel on the basis of existing rules. The DOP&T ruled that since the applicant was working on casual basis without being regularized, hence pensionary benefits are not admissible to the applicant. Since he was found eligible for benefit of entire casual service under provisions of payment of Gratuity Act, accordingly his gratuity claim was passed by CDA (Army) for Rs.33,551/- and paid vide cheque No.523301 dated 21.5.2008 which has been accepted by the applicant, therefore, it is not open to the applicant to say that the payment of Gratuity Act would not apply to him. Once applicant has accepted the amount given to him under the payment of Gratuity Act, he cannot challenge the same. They also stated that pursuant to the directions given by the Tribunal they have already issued order dated 28.11.2007 which reads as under:-
Please refer the order of Honble Central Administrative Tribunal, Principal Bench, New Delhi dated 29.10.2007 in case of Ex.CLTS Kundan S/o Late Shri Battan in OA No.2624/2006 filed by you.
2. In the compliance with the directions of the CAT (PB) New Delhi, orders in OA No. 2624/2006 dated 29th October, 2007. Your OA, which had been ordered to be treated as representations, has been considered by the respondents to forward the same to the DOP&T for the grant of ex-post-facto sanction of retrial benefits in your favour. After due consideration, it has been noted that no undue hardship as required under Rule 88 of CCS (Pension) Rules, 1972 have been clearly spelt out. The grounds given in the OA may be the grounds in several other and similar cases, which do not call for any special considerations in terms of Rule 88 of CCS (Pension) Rules, 1972.
3. Your case for grant of retrial benefits has been rejected/considered.
5. They have further stated that applicant cannot claim pensionary benefits as a matter of right because casual labourers are specifically excluded from the CCS (Pension) Rules, 1972.
6. Counsel for the respondents further stated that as far as Chuttans case is concerned, Honble High Court of Delhi had noted as follows:-
The writ petition is, therefore, dismissed in the peculiar facts and circumstances of this case. It shall, however, be open to the petitioners to raise the question whether an employee who is granted temporary status and who retires after attaining the age of superannuation would not be entitled for pensionary benefits in appropriate case. It is further clarified that the decision in the present writ petition shall not be a precedent. Considering the facts and circumstances, the parties are also left to bear their own costs.
which clearly shows that the question of pensionary benefits is left open and can be argued. Similarly the case of Mohammad Razak (Supra) which has been made basis for giving relief to other persons, who are similarly situated, was considered by the Full Bench in the case of Bhagwati Devi and after considering all the contentions it has been held not to be a good law, therefore, reliance placed on the case of Mohammad Razak is absolutely misplaced. Counsel for the respondents relied on the judgment dated 4.10.2007 given in OA No. 1786/2007 in the case of Shri Bashir Vs. U.O.I. & Others (page 129). They have thus prayed that the OA may be dismissed.
7. We have heard both the counsel and perused the pleadings as well. As far as judgment of Honble High Court in Brij Mohan and 11 others (Supra) is concerned, the issue there was whether the causal labourer could have been denied consideration for absorption on the ground that they were overaged in the recruitment held in the year 2005. It was observed by the Honble High Court that the details provided would show that though some of the petitioners were initially engaged between 1982 to 1986/1987 had rendered lesser service than six moths in one stretch, from the batch 1989 and onwards all of them have service for more than six months every year. It was thus held that the petitioners could not be said to be engaged against any seasonal work as sought to be contended by learned counsel for the respondents. It was in those circumstances held that as per the aforesaid rules, as quoted by the respondents, which reads as under:-
Period spent as casual labourer. Broken period of service rendered as a casual labourer may also be taken into account for the purpose of age relaxation for appointment in regular establishment, provided that one stretch of such service is for more than six months.
the petitioners were entitled to get the age relaxation for the period they had served on casual basis. It was further held once age relaxation is given then they would be within the age limit and, therefore, were wrongly excluded from appointment on regular basis. It was thus held that they would be entitled to regularization from the date their juniors were regularized but the fact remains that the applicant before us had never made any grievance in the year 2005 on the ground that he was not considered being overaged, therefore, he cannot get the benefit of the judgment in Brij Mohans case (Supra). In any case the case decided on the basis of facts in that case. The only point which was argued by the counsel for the applicant strenuously before us was that since number of other persons have been given pensionary benefits after giving them ex-post-facto sanction under Rule 88 of CCS (Pension) Rules, 1972, applicants case should also be considered on the same lines. He has placed reliance on the case of Mohammad Razak Vs. U.O.I. & Others. However, it is relevant to note that the same issue came up for consideration before the Full Bench of this Tribunal in the case of Geeta Rani Santra Vs. U.O.I. before Calcutta Bench CAT Full Bench Judgments (1997-2001) 295. Of course, Full Bench was dealing with the case of casual labourer in Railway but the principle laid down is same. It was observed by the Full Bench as follows:-
Applicant has basically relied on the order dated 22.4.2004 passed in OA No. 427/2004 [Mohammad Razak vs. Union of India & Ors]. Perusal of same shows that in the said order reliance was placed by this Tribunal on the decision of the Full Bench of the Tribunal in the case of Gita Rani Santra vs. Union of India & Ors, wherein it was held that minimum period of continuous service of Casual Labourer with temporary status prior to the death or superannuation has to be 20 years for entitlement of pensionary benefits in cases of Railways. Reliance was also placed in the case of Smt. Latifan vs. Union of India, to state that since applicants husband had put in such a long period of service with the Respondents, she is entitled to get the retiral benefits irrespective of her husband not being regularized. However, as on date situation has changed because after the Full Bench judgment in the case of Geeta Rani Santra, the matter was referred to a Larger Bench consisting of The Honble Chairman, Vice Chairman and three Members of the Tribunal in the case of Bhagwati Devi vs. Union of India & Ors in OA No. 1722/2005. The Larger Bench has finally decided the matter on 5th September, 2007. The question referred in this case was as follows:
Whether widow of casual labourer with temporary status, died in harness is entitled to family pension under the provisions of Railway Services (Pension) Rules, 1993?.
The above question was reframed by the Larger Bench as follows:-
Whether the legal representatives of a casual labourer who had attained temporary status could be denied benefits of family pension for the reason that before his death he had not been subjected to screening and had not been formally regularized in service.
5. Reference was made to the following judgments by either side. Indian Council of Agricultural Research & Anr vs. Smt. Santosh [2007 (2) AISLJ SC 231], Prabhavati Devi vs. Union of India & Ors [1996 (1) SLJ 89], Smt. Vallam Badia vs. Union of India &Ors. [2003 (2) (CAT) AISLJ 271], Smt. Nehni Bai vs. Union of India & Ors [1994 (3) SLJ CAT 523], Ram Kumar & Ors. vs. Union of India & Ors. [1996 (1) AISLJ 116], Rukhiben Rupa Bhai vs. Union of India & Ors. [2006 (2) ATJ 1], Inder Pal Yadav [1985 (2) SCC 648], Union of India & Ors. vs. Rabia Bikaner etc [JT 1997 SC 95,] and also Anita Devi vs. Union of India & Ors [2006 (2) ATJ 260], Smt. Latifan vs.Union of India &Ors [2002 (1) ATJ 260], Geeta Rani Santra vs. Union of India & Ors decided by a Full Bench of the CAT Calcutta Bench (CAT Full Bench Judgments (1997-2001) 295), Union of India vs. Sukanti & Anr (SLP (C) No. 334 of 1993) and also Secretary of State of Karnataka vs. Uma Devi. [2006 (4) SCC page 1].
8. After discussing all these judgments and also referring to the Railway Services Pension Rules, 1993, the Larger Bench consisting of 5 Members observed as follows:-
The term `Railway servant is defined under Rule 3 (23) as following :
railway servant means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding a post of Chairman, Financial Commissioner or a Member of the Railway Board but does not include casual labour or Persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control.
Therefore, ex facie it is clear that a casual labourer will not be deemed to be under the coverage of the Pension Rules.
21. Rule 75 deals about the Family Pension Scheme. Here also, it is applicable to only Railway servants alone and if any person engaged in the Railway service, does not satisfy the definition of Railway Servant, it may not be logical for us, nevertheless, to declare that he requires to be brought inside, de hors the restriction so spoken. These appear to be elementary principles, while interpreting the provisions of the Statute.
23. Chapter 20 of the Indian Railway Establishment Manual, Vol. 2, is titled as Casual Labour. Paragraph 2001 defines the casual labour.
Paragraph 2005 refers to the entitlement and privileges admissible to casual labourers who are considered as temporary (who are given temporary status). We may quote the relevant portion as hereinunder :
(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 and the date of their regular appointment after screening/selection shall determine their seniority vis-`-vis other regular/temporary employees.
24. The sub-paragraph further directs that casual labourer shall be eligible to count only half the period of service rendered by them after attaining temporary status before regular absorption, as qualifying service, for the purpose of pensionary benefits. This benefit will be admissible; the rules make it abundantly clear, only after his absorption in regular employment. Sub-paragraph (b) has incorporated perhaps all important prescription, that the casual labourer who acquired status will not, however, be brought on to permanent or regular establishment or treated as in regular employment on Railways until and unless they are selected through regular Selection Board for Group `D posts in the manner laid down from time to time (emphasis supplied).
9. It was further observed that:
27. We may notice that there is no claim put on behalf of the applicants that they are temporary railway employees but applicants are agitating the claim on the basis of the temporary status that is gained. The service conditions are governed by statute and it is to be presumed that while issuing the rules, the President was aware of the categories dealt with. We have to decide the issue as is permitted, by interpreting the provisions of the statute alone. The cardinal rule has been succinctly laid down by the Supreme Court in Prabhu Narain & Ors. Vs. State of U.P. (2004 (13) SCC 662) when it stated No doubt pension is not a bounty, it is valuable right given to an employee, but in the first place it must be shown that the employee is entitled to pension under a particular rule and the Scheme as the case may be. If so viewed, we may have to observe that the Full Bench Judgment of the Calcutta Bench in Geeta Rani Santra (cited supra) has not been correctly decided. (emphasis laid) Referring to the Full Bench decision in the case of Geeta Rani Santra, it was observed as follows by the larger full bench:-
29. We may point out that Full Bench had erred, in comprehending the issue by entering into the field of law making. The duty of the court is to interpret the law and not to legislate. If the Full Bench felt that there was unfairness, in appropriate cases, perhaps the provision of statute could have been struck down on the basis of violation of Articles 14 and 16 of the Constitution of India. However, what has been done is to give a positive direction whereby persons, who were declared as ineligible to claim family pension or pension, have been directed to be so considered if the incumbent had undergone minimum period of service of 20 years. Insofar as the position runs contrary to statutory prescriptions and specific provision in the Establishment Manual, and overreaches the Pension Rules framed by the President under Article 309 of the Constitution of India, we have to observe that the decision requires and is hereby overruled.
(emphasis supplied)
10. From the above, it can clearly be seen that the decision of earlier Full Bench in the case of Geeta Rani Santra has been over-ruled by the latest Larger Bench of 5 Members in the case of Smt. Bhagwati Devi. Therefore, the decision in the case of Mohammad Razak, benefit of which is sought for by the applicant in the present case, cannot advance the case of applicant in any manner. We say so because Mohammad Razaks case was decided on the basis of the judgment given in the case of Geeta Rani Santra. Once the said decision stands over-ruled, the applicant cannot be given benefit on the basis of said judgment. It would be relevant to mention here that though the Larger Bench though was dealing with the question whether widows of such casual labourers could claim family pension, who were not regularized before their death, but the underlying principle would be same even for the casual labourer himself if he claims pension on the basis of length of work rendered by him in the capacity of temporary status holder Casual Labour.
11. It would be relevant to point out that same is the position in CCS (Pension) Rules also. Rule 2 of CCS (Pension) Rules reads as under:
2. Application Save as otherwise provided in these rules, [these rules shall apply to Government servants appointed on or before the 31st day of December, 2003] including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to-
railway servants;
persons in casual and daily-rated employment;
persons paid from contingencies;
persons entitled to the benefit of a Contributory Provident Fund;
members of the All India Services;
persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries;
persons employed on contract except when the contract provides otherwise; and persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force. Perusal of above shows that persons in casual and daily rated employment are specifically excluded meaning thereby that they are not entitled to pension. No other Scheme was shown to us by the counsel for applicant under which pension would be admissible to applicant simply because he had worked for long period with respondents as Casual Labour with temporary status without being regularized.
12. In the latest judgment in the case of ICAR & Anr. vs. Smt. Santosh reported in 2007 (2) AISLJ S.C. 231, the matter was carried to the Honble Supreme Court against the order of Jodhpur Bench of this Tribunal, upheld by Rajasthan High Court, wherein it was held that though respondents husband was not holding permanent status in service, yet she was entitled to family pension and other benefits by treating him to have been regularized on the date of his death. Referring to Clause 6 of Casual Labourers (Grant of Temporary Status & Regularization), 1993, it was held by Honble Supreme Court that wife of late Durga Lal was not entitled to any family pension. It was also held that direction of Tribunal to deem the husband as regularized is not sustainable in law in view of Uma Devis Judgment. In other words, it was held that no benefit which is not given in the Scheme can be extended by Court and even with 20 years of service as Casual Labourer with temporary status, it was held no family pension could be allowed. It is relevant to note that Gita Rani Santras case was also referred to in this case, but not approved.
13. In view of above decisions, we have no hesitation to observe that even if in certain cases benefits were granted by this Tribunal and the same were subsequently implemented by the Respondents, the same cannot be extended to the applicant herein in the changed circumstances, as those judgments have already been over-ruled by the larger bench and matter has now finally been decided by Honble Supreme Court as well. Moreover, all these facts were noted and the case of Bashir was dismissed.
14. We had specifically asked counsel for the applicant whether the judgment in the case of Bashir has been challenged in the Honble High Court of Delhi, we were informed that it has not been challenged in the High Court of Delhi as such applicants case is fully covered by the judgment given in Bashirs case also (Supra).
15. As far as Chuttans case is concerned, we have quoted above the relevant portion to show that the question whether causal labourers would be entitled to pensionary benefits was left open and it was also clarified that the decision given in Chuttans case would not be treated as a precedent. In view of above, no benefit can be claimed by the applicant on the basis of judgment given in Chuttans case. It is absolutely clear that a person who has worked on casual basis with temporary status and retires without being regularized, he would not be entitled to pension because casual labourers are specifically excluded by the CCS (Pension) Rules, 1972. As far as Rule 88 of CCS (Pension) Rules is concerned, respondents have already held that applicant could not show any undue hardship which alone could be made the basis for ex-post-facto sanction by the Government.
16. In view of above, the relief, as claimed by the applicant, cannot be granted. The OA is accordingly dismissed. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh