Central Administrative Tribunal - Madras
M Lakshmanan vs M/O Railways on 20 July, 2023
0.A.310/00676/2018 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH 0A/310/00676/2018 Dated Thursday the 20" day of July Two Thousand Twenty Three CORAM : HON'BLE MRS. LATA BASWARAJ PATNE, Member (J) M.Lakshmanan, Retd.Khalasi Helper, SSE/Elect/AJJ/MAS Division/S.Rly, No.2/56, Thalangai Village & Post, Ammur -via Walajah Taluk, Vellore, . Applicant By Advocate M/s. Ratio Legis Vs 1. Union of India rep.by The General Manager, Southern Railway, Park Town, Chennai - 600 003. 2. The Assistant Personnel Officer/Settlement, Chennai Division, Southern Railway, Chennai. .. Respondents By Advocate Dr. D. Simon 0.A.310/00676/2018 ORAL ORDER
(Pronounced by Hon'ble Mrs. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA seeking the following reliefs:
"to call for records related to the impugned order No.M/P3/500/Settle dated 08.01.2018 made by the 2"
respondent and to quash the same, and further to direct the respondents tO treat the entire period from 06.03.1978 till 05.03.1988 in full as qualifying service for the purpose of pension and thereby to revise the retirement benefits and to -
pay all the consequential arrears with admissible interest and to pass such other orderforders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
2. 'The brief facts of the case in nutshell are as follows:
The applicant was engaged as a Casual Labourer/Substitute in Chennai Division in Southern Railway and was extended with Temporary Status on 06.03.1978 and subsequently regularized on 05.03.1988 against substantive vacancy and retired from service on attaining the age of superannuation on 30.06.2012. While determining the qualifying service for retirement benefits, 50% of the Temporary Status service from 06.03.1978 to 05.03.1988 only was reckoned as qualifying service contrary to the Establishment Manual, Railway Services (Pension) Rules, 1993 and the law settled by the Hon'ble Apex Court
0.A.310/00676/2018 3 and therefore the representation dated 25.11.2017 submitted by the applicant with necessary documents was rejected vide impugned order No.M/P3/500/Settle dated 08.01.2018 by the 2" respondent and hence this Original Application is preferred before this Tribunal for intervention and to render justice..
3. After notice, the respondents have entered appearance through their counsel and filed their counter and opposed the relief, The respondents have contended that the applicant was engaged as a casual labour and on compietion of 4 months of continuous service, he was granted temporary Status w.e.f, 06..03.1978, He was empanelled as a Temporary Gangman in scale Rs.775-1025 with effect from 05.03.1988. He retired asa Helper Grade I in scale Rs.5200-2000 + Grade Pay Rs.2000/- with effect from 30.06.2012. In terms of Rule 31 of the Railway Service Pension Rules, 1993, 50% of the casual labour service from 06.03.1978 to 05.03.1988 has been reckoned as qualifying service and 100% service from 05.03.1988 to 30.06.2012 has been reckoned as qualifying service and the qualifying service was worked out to 29.5 years.
Rule 31 of the Railway Services (Pension) Rules - Counting of service paid from Contingencies- In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies benefits on absorption in regular employment, subject to the following conditions namely:
() 0.4.310/00676/2018 4 (a} the service paid from contingencies has been in a job involving whole time employment;
(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of malis, chowkidars and khalasis;
(c) 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 no analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;
(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break; Provide that the weightage for past service paid from contingencies shall be limited to the period after 1st January 1961 subject to the condition that authentic records of service such as pay bill, leave record or service-book is available.
NOTE -
(1) the provisions of this rule shall also apply to casual labour paid from contingencies.
(2) The expression "absorption in regular employment" means absorption against a regular post.
According to Rule 20, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. The casual labour with temporary status is not appointed against any post. Until and unless he is empanelled for regular absorption as per his turn, he cannot be termed as a railway servant. However, for the purpose of calculating the service between the date of grant of temporary status and the date of regular absorption, Rule 31 stipulates that only half of the services would be reckoned as qualifying 0.4.310/00676/2018 5 service. Rule 18 is applicable only to a temporary railway servant and the applicant being a casual labour with temporary status cannot be considered as temporary railway servant. He is a casual labour and not a confirmed railway servant and he becomes a regular railway servant only on 05.03.1988. Therefore, his case can be governed only under Rule 31 and not under Rule 18. The respondents further submitted that Para 21 of the Master Circular is to be read along with Rule 31 of the Railway Services Pension Rules. The casual labour service is reckoned for qualifying service only when It is followed by a regular service and only 50% of the service taken from the date of grant of temporary status till absorption as a regular servant. This rule position is approved by the Hon'ble Supreme Court of India in UOI Vs. Rakesh Kumar- Civil Appeal No.3938 of 2017, Further Rule 24 of Railway Services Pension Rules, deals with counting of service of a person who is engaged on contract basis whereas the applicant was only a casual labour and only Rule 31. of Railway Services Pension Rules, 1993 is applicable to the applicant and hence it has been correctly applied. The respondents denied that the applicant's service as casual labour/substitute before and after conferment of temporary status was paid out of Consolidated Fund of India and only 50% of the service will count for qualifying service in terms of Rule 31. Moreover the applicant has not furnished any document to prove that his services were paid out of Consolidated Fund of India. Further Para 2501 of the Indian Railway Establishment Manuai (IREM) defines a Casual Labour. The term Casual labour refers to labour whose employment is intermittent, Sporadic or extends over w)
0.A.310/00676/2018 6 short period or continued from one work to another. Labour of this kind is normally recruited from the nearest available source. They are not ordinarily liable to transfer and the conditions applicable to permanent and temporary staff do not apply to such Labour. The Casual Labour of Railweys should be employed only on the following types of cases namely:-
(i) Staff paid from contingencies except those retained for more than 4 months continuously - such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than 4 months without a break will be treated as temporary, after the expiry of 4 months of continuous employment.
(ii) Labour on projects, irrespective of duration except those transferred from other temporary or permanent employment.
(ii) Seasonal labour who are sanctioned for specific works of less than 120 days duration -- for example, re-laying and the total continuous period of such work at any one time is more than 4 months duration, they should be treated as temporary, after the expiry of 4 months of continuous employment.
For the purpose of determining the eligibility of labour to be treated as temporary, the criterion should be the period of continuous work put in by each individual labour on the same type of work and not the period put in collectively by any particular gang or group of labourers. The Casual Labours are granted Temporary Status after 4 months of continuous period of work, i.@., after putting in continuous 120 days of work. As and when regular vacancies are available, the Casual Labours are regularized against such regular posts, The same depends upon the availability of the regular vacancies in the respective 'departments. The respondents have also contended that
0.A.310/00676/2018 7 according to settled law, a Casual Labour after attaining Temporary Status Is entitied to reckon 50% of his services till he is regularised on a regular post and secondly they are entitled to reckon full service from the date of taking charge of the post in terms of Rule 20 of the Railway Services Pension Rules, 1993, 4, Heard both the learned counsel on both sides and perused the OA and relevant documents.
5. To deal with the submissions made by the parties, it is necessary to go through the rule position relied on by the parties. The applicant's counsel in support of his case has relied upon the following Rule position:
Rule 14 of the Railway Services Pension Rules, 1993:-
"14. Periods which shall not be treated as service for pensionary benefits-Periods of employment in any of the following capacities shall not constitute service for pensionary benefits, namely,-
(i) in a part-time capacity;
(ii) at casual market or daily rates;
(iii) in a non-pensionable post;
(iv) in a post paid from contingencies except as provided in rule 31;
(v) under a covenant or a contract which does not specifically provided for grant of pensionary benefits;
{vi) work done on payment of a fee or honorarium;
(vii) Apprentice period of Special Class Apprentices (Authority: Railway Board's letter No. F(E)III/99/PN 1/(Modification) dated 23.5.2000) (viti) removal or dismissal from service in accordance with rule 40;
(ix) resignation from service save as indicated under rule 41;
(x) period of unauthorised absence in continuation of authorised leave of absence treated as overstay, 0.4.310/00676/2018 3
(xi) joining time allowed to a railway servant transferred at his own request and not in public interest for which he is not entitled to be paid;
(xii) period of service treated as dies-non;
(xii) foreign service in respect of which the foreign employer or railway servant has not paid service contributed unless the payment has been specifically waived by the President;
(xiv) on contract basis except when followed by confirmation. NOTE:
Unpaid holidays, Sundays and short periods of leave for half-a-day or less granted to railway workshop staff shall be treated as qualifying service."
Rule 20 of the Railway Services Pension Rules, 1993:-
"20. Commencement of qualifying service- Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post: Provided further that -
(a) in the case of a railway servant in a Group 'D' service or post who heid 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: 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)III/99/PN 1/(Modification) dated 23.5.2000}
(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under rule 34. (Authority: Railway Board's letter No. F(E)IT/2004/PN1/21(Amendment} dated 7,12.2004),"
Rule 21(2) of the Railway Services Pension Rules, 1993:~ @e
0.A.310/00676/2018 9 "21. Conditions subject to which service qualifies:
(2) In case of a raitway servant belonging to a State Government who is permanently transferred to a service or post under the railways, the continuous service rendered under the State Government in an officiating or temporary capacity if any, followed without interruption by substantive appointment or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify: Provided that nothing contained in this sub-rule shall apply to any such railway servant who is appointed otherwise than by deputation to a service or post to which these rules apply."
Rule 31(c) of the Railway Services Pension Rules, 1993:-
"31. Counting of service paid from Contingencies-
{c) 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 no analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments;"
Rule 32 of the Railway Services Pension Rules, 1993:-
"32. Counting of service of Substitute - Service rendered as substitute shall be counted for pensionary benefits from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group C or Group D posts without any break."
Para 3 of SER No.239/80 dated 31.10.1980:-
"As regards "Substitute Service" the service as Substitute counts for pensionary benefits from the date of completion of six months' (3 months' in the case of teachers} continuous service as substitute provided it is followed by absorption in regular class IlI/class IV service without break, as already provided in Railway Ministry's letter No.F(E)III.69PN-1/21 dated 22.07.1970."
0.4.310/00676/2018 10 The definition of Casual Labour as given in Chapter XXV Para 2501 (b) (i) TREM is as under:-
"Staff paid from contingencies except those retained for more than six months continuously: Such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than six months without a break will be treated as temporary after the expiry of the six months of continuous employment."
2511. Rights and Privileges admissible to Casual Labour who are treated as temporary after the completion of six months' continuous service :--
"(a) Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in 'Chapter XX III of the Indian Railways Establishment Manual. The rights and privileges admissible to such labour also include the benefit of Discipline & Appeal Rules. Their service prior to the date of completion of six months' continuous service will not however count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regular service.
(b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent or regular establishment unless they are selected through regular Selection Boards for Class IV Staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as Casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods.
(c) It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status, for the conferment of attendant benefits like regular scale of pay, increment etc. Service prior to absorption against a
0.A.310/00676/2018 11 regular temporary/permanent post after requisite selection will, however, not constitute as qualifying service for pensionary benefits."
Esst. Serial Circular No.104/74 in Lr.No.P(R)407/Pt.IL dated 2.7.74 Para 2 reads as under:
"2.In order to implement the Board's directive cited above, the following action has to be taken viz:-
(a) A review of the existing Class IV cadre of ail departments in all the locations referred te above has to be undertaken in order to assess the additional posts that have to be created to cope up with the additional regular work against which casual labour on daily rates are now being engaged. While assessing the number of posts required, the regular vacancies against which Casual Labour/Substitutes are at present working should be excluded.
(b) In para 1 (iv) of Board's letter referred to above, it has been stated that after specific locations have been identified where casual labour should not be engaged, a decision should be taken as to the number of permanent posts likely to be created with the concurrence of associate finance. The decision may be taken based on the cadre revision conducted by the Divisional Officer of the concerned department in consultation with Divisional Personnel Officer, and posts created not later than 30.9.74,"
It is also necessary to note down the Rules Regulating Recruitment and other Service conditions of Casual Labour and Substitutes:-
"Para 28. Casual labour to be treated as "Temporary" after completion of four months continuous service:- Such of these casual labourers who continue to do the same work for which they were engaged or other work of the same type for more than 4 months without a break, will be treated as temporary and paid at monthly rates in regular time-scales after the expiry of the 4 months continuous employment.
Para 37.Rights and Privileges Admissible to Casual labour who are treated as Temporary after completion of 4 months
0.A.310/00676/2018 12 continuous service:- Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in 'Chapter XX IIL of the Indian Railways Establishment Manual. The rights and privileges admissible to such labour also include the benefit of Discipline & Appeal Rules. Their service prior to the date of completion of 4 months' continuous service will not, however, count for any purposes, like reckoning of retrenchment benefits, leave, salary, etc. Para 38. Absorption of Casual Labourers in Regular vacancies:-
Casual labour who are borne on the register of each employment unit e.g. Depot, Shed etc. will be eligible for engagement against regular vacancies in Class IV categories....."
6. The respondents' counsel to support his contentions has relied upon the following judgments and circulars. The order dated 29.01.2015 of Hon'ble CAT, Chennai Bench, in OA No.593 of 2014 wherein it is held as under:
"6.The Respondents have submitted that Casual Labour in the Indian Railways was divided into three categories, namely (I) Open Line Casual Labour, (ii) Project Casual Labour and (tii) Seasonal Labour. The Open Line Casual Labour was granted TS (Temporary Status) on completion of 6 months of continuous employment [subsequently reduced to 120 days] and they were treated as temporary thereafter. Since the period of service of Open Line Casual Labour after attaining TS was not counted as qualifying service, the Railway Board vide order dated 14.10.1980 decided to grant TS to Casual Labour other than the Project Casual Labour and the concession of counting half of the service from the date of conferment of TS till regular absorption. The Project Casual Labour was left out of this order as earlier there was no provision to grant TS to them till the matter was agitated before the Hon'ble Supreme Court in the case of Inder Pal Yadav & Ors. Vs. UOT during the pendency of which the Ministry of Railways came up with a scheme for grant of TS to Project Casual Labour and the same was accepted by the Hon'ble Supreme Court with some modification......
9.The Respondents have submitted that the Railway Board's letter No.E(II)/86/AT/GRA/1-T dated 30.06.2000 (Annexure R/Tll=Annexure A/3) was not applicable to the facts of the
0.A.310/00676/2018 13 case. He could claim only gratuity in terms of this letter. He was entitled to his service from 01.01.1981 to 30.04.2013 being taken into account for pensionary benefits and his service from 01.02.1972 to 31.12.1980 cannot be taken into account as qualifying service for this purpose, as per the scheme which was approved by the Hon'ble Supreme Court in the case of Inder Pal Yadav & Ors. Vs. UOT and as per the law laid down in the case of Union of India Vs. K.G.Radhakrishna Panikar. Rule 31 of the Railway Services (Pension) Rules 1993 was not applicable to the case of the applicant as he was only a Project Casual Labour and his service from 01.02.1972 to 31.12.1980 was not service paid from contingency which refers only to Open Line Casual Labour. He was Paid from expenditure not meant for regular work or for whole time employment."
The order dated 10.04.2019 of Hon'ble CAT, Chennai Bench, in OA No.206 of 2018, the relevant portion is extracted as under:
"9.The applicant by virtue of his having refused the chances of early absorption and having continued as a Casual Labour with temporary status till 1992 with a view to availing the benefit of being absorbed only as a Rivetter under the prescribed quota and having got that benefit, he disentitled himself for regularisation from any retrospective date. His regularisation as regular Rivetter w.e.f 23.12.1992 is perfectly legal and his claim for retrospective regularisation is thus impermissible. He was thus rightly absorbed as a regular Rivetter w.e.f 23.12.1992. Further the applicant has not produced any record to show that he has been paid from the consolidated fund of India during the period from 21.11.1974 till 23.12.1992."
Southern Railway PBC No.289/2019 dated 42.12.2019 and Railway Board Lr.NoE(NG)11/2017/ECR/CL/4 dated 15.11.2019 on the subject of counting of casual service of Open Line Casual Labour and Project Casual Labour prior to attainment of temporary status for pensionary benefits on their absorption in regular employment on Railways. Para 2, 5 & 7 are extracted hereunder:
0.A.310/00676/2018 i4 "2.AS per the extant/settled practice and various rules/circulars of the Railways while 50% of the service after attaining temporary status by the Casual Labour and 100% of service after regularisation (taking charge of a regular post) are admissible for counting of pensionary benefits under the pre NPS regime, no part of casual service prior to attainment of temporary status has been counted for pensionary benefits. A catena of Railway rules make this position clear and explicit, These include Railway Board's instructions to all Railways dated 14.10.1980 and Para 2005(a) of the Indian Railways Establishment Manual (Vol.IT), Rule 14 and Rule 20 of the Railway Services (Pension) Rules are also in consonance with this.....
5.Since DoP&PW, in their reply dated 13.08.2019 have suggested that DoPT's advice may also be taken in the matter, DoPT has also been requested by this Ministry vide OM No. E(NG)IT/2017/ECR/CL/4 dated 20.09.2019 to confirm interpretation of rules/guidelines that only 50% of temporary status service would be counted for pensionary benefits after regularisation of Casual labour and that period prior to temporary status would not count for Pensionary benefits.
7. These views brought out at para-4 & para-5 above can be useful while contesting court cases of Commission Bearers/Vendors also wherein a spate of Court cases have been filed in several Railways. In spite of the Railways stand on the matter that equivalence between Casual Labour & Commission Bearers cannot be established, Hon'ble Courts of law are often drawing analogy between Casual Labour and Commission Bearers/Vendors and are treating both at par in the context of counting of 50% of service before absorption rendered by the latter also for pensionary benefits,"
Master Circular No.54 "2. Counting of the period of service paid from contingencles:- The service paid from Contingencies shall be allowed to count towards pension at the time of absorption in regular employment subject to conditions specified in the orders. [Authority: Letter No. F(E)III/68/PN 1/25 dated 22,08.1968]"
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0.A.310/00676/2018 15
7. To summarise the issue, it is necessary to consider the service book of the applicant placed before the Bench. From the bare perusal of the service book, it can be noted that in the column of "Date of first appointment", it has been shown as 06.03.1978. In the column of "Capacity on appointment" it has been shown as CPC Khalasi. The applicant came to be appointed in the pay and grade at Rs.196/- 196-232, It is also to be noted from the said service book that the applicant having completed four months of qualifying service on daily rate of pay fulfilling the conditions set out in Railway Board No.E(NG)60/CL113 of 20.08.1962 PC 72/AC7/69/3(1) of 12.07.1973 brought onto Temporary Status on monthly rate of pay under revised scale of pay from 06.03.1978. Subsequently, it has been also recorded in the service book that his pay has been increased from time to time. Thereafter, he has been empanelled and posted as Temporary Gangman in the scale of Rs.775-1025 w.e.t 05.03.1988 and thereby the applicant's services have been regularised w.e.f 05.03.1988. Thereafter, the applicant came to be promoted as a Khalasi Helper in the year 1996 and his pay has been fixed accordingly. He retired as Khalasi Helper Grade I in scale Rs.5200-20000 + Grade Pay Rs.2000/-. It is also seen from the statement of fixation of pay under the Railway Services Revised Pay Rules, 1986 that the applicant was working Khalasi Helper on officiating capacity. To consider the Issue involved in the matter, it is necessary to consider the rules which are extracted as follows:-
Rule 1003 in Chapter 10 of the Indian Railways Financial Code:-
a) O)
0.A.310/00676/2018 16 "1003. No pay, or additions to pay, or compensatory allowances of any kind may be charged as Contingent Expenditure. As an exception to this, however, pay and allowances in the following cases are treated as Contingent Expenditure; (i) Hot weather establishment. (ii) Staff employed in connection with the upkeep of an office. (iii) Safaiwalas etc. whether whole time servants or not, provided they are not entitled to service gratuity. (iv) Such Class IV staff as malies and grass cutters etc., specially permitted by the Railway Board to be charged to contingencies."
Rule 20 of the Pension Rules, 1993:-
"Qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity:
Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post."
8. As a result of discharging the duties of Temporary Gangman, the applicant was extended with 'annual increment' as can be seen from the Service Book which is provided to the regular railway servants, as per Rule 1318 & Rule 1320 of the Indian Railways Establishment Code. Casual Labours engaged in regular nature duties should be treated as 'Substitutes with regular scale of pay' as per Railway Board's letter No.E(NG)II-7CL/274 dated 20.06.1974. As provided under Rule 21 of the Pension Rules, 1993 it is to be noted that in case of Railway servants belonging to State Government who is permanently transferred to a service or post under the railways, the continuous service rendered under the State Government in an officiating or temporary capacity if any, followed without interruption by substantive appointment or the continuous service rendered under that Government in an officiating or temporary capacity, as the case may be, shall qualify for pension. It is also to
0.A.310/00676/2018 17 be noted that as per Rule 14 of the Pension Rules, 1993 Periods which shall not be treated as service for pensionary benefits :- (iv) in a post paid from contingencies except as provided in Rule 31.
Sub-Rule c of Rule 31 of the Pension Rules, 1993:-
"31(c) 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 no analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments"
Rule 32 of the Pension Rules, 1993.
"Counting of service of Substitute - Service rendered as substitute shall be counted for pensionary benefits from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group C or Group D posts ' without any break."
Para 2501 of the IREM defines a Casual Labour (IREM) defines a Casual Labour (i) Staff paid from contingencies except those retained for more than 4 months continuously - such of those persons who continue to do the same work for which they were engaged or other work of the same type for more than 4 months without a break will be treated as temporary, after the expiry of 4 months of continuous employment.
Para 37 of IREM: Rights and Privileges admissible to Casual labour who are treated as temporary after completion of four months' continuous service:-
"Casual Labours treated as temporary are entitled to all rights and privileges admissible to the temporary railway QO
0.A.310/00676/2018 18 servants as laid down in Chapter 23 of the IREM. The rights and privileges admissible to such labour also include the benefits of the Discipline & Appeal Rules. Their services prior to the date of completion of four months' continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will also be allowed to carry forward the leave at their credit to the new post on absorption in regular. service."
9. Learned counsel for the applicant has placed reliance upon the order dated 24.03.2017 passed by the Hon'ble Supreme Court of India in the matter of Civil Appeal No.3938/2017 in UOT & Ors. v. Rakesh Kumar & Ors and batch of other cases wherein law has been settled as under:
"55. In view of foregoing discussion, we hold :
iii} Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993."
Thereby treating the entire temporary service as a qualifying service for the purpose of retirement benefit. Though the said judgement is also relied by the respondents, according to the said findings of the Hon'ble Supreme Court, this will support the claim of the applicant.
10. As far as the order passed by this Tribunal in OA 206/2018 In the matter of A.E.Anthony relied upon by the respondents js concerned, para 9 of the said order also supports the case of the applicant. The respondents have also placed reliance on the order passed by this Tribunal in OA 593/2014 as well as OA 41/2013. However, the facts of the said cases are different from the applicant's case. Admittedly, the respondents while recording in the service book of the applicant, they themselves have mentioned that the applicant has
0.A.310/00676/2018 19 been confirmed with temporary status w.e.f 06.03.1978 and his services has been regutarised on 05.03.1988.| When the applicant has been superannuated on 30.06.2012, out of 10 years temporary status service, only 50% was considered as pension qualifying service. As per the Rule 37 of Rules Regulating Recruitment and Other Service Conditions of Casual Labour and Substitutes, the applicant's servite prior to completion of 4 months continuous service has to be counted for all purposes like reckoning of retrenchment benefit, leave salary, etc. Though the respondents have placed reliance upon the Railway Rules, Regulations, Instructions & paras as quoted above, however, the ratio of the same supports the claim of the applicant and hence there is no force in the submissions made by the respondents, ii. It is to be noted that as ithe applicant has rendered his service from 06.03.1978 as Substitute Casual Labour till his regular absorption,the issue involved in the present OA is noj more res integra and is squarely covered by the orders passed by this Tribunal in OA 644 of 2023 dated 22.06.2023 and in OA 700 of 2018 dated 28.06.2022. Hence,in my considered opinion, according to the settled position of law, the OA needs to be allowed. The order passed by the respondents dated 08.01.2018 is hereby quashed and set aside. The respondents are directed to treat the entire period from 06.03.1978 fill 05.03.1988 in full as qualifying service for the purposes of pension and to revise the retirement benefits and to pay all the consequential arrears with admissible interest by issuing airevised PPO. The above exercise should be 20 done within a period of three months from ¢ of this order.
12. The OAis allowed accordingly. No order as to costs.
pe rns we ee ee
0.A.310/00676/2018 he date of receipt of certified copy