ORDER
Shanker Raju, Member (J)
1. As these OAs are founded on common facts with an identical question of law are being disposed of by this common order.
2. Admittedly, applicants who were initially engaged on casual basis under Railways have been accorded temporary status and were absorbed against permanent Group ‘D’ posts in the year 1980-81. By virtue of these OAs, applicants have sought re-fixation of pay, which they would have drawn in regular scale of pay on attaining temporary status, including arrears of pay.
3. The factual matrix transpires that a reference to the Full Bench as to grant of arrears of pay on implication of grant of temporary status on completion of certain period has been answered on 22.4.2008 in OA No. 2476/2006 with other OAs that the claim is beyond limitation and also beyond the purview of Section 21 (2) of the Administrative Tribunals Act, 1985.
4. Learned Counsel of the applicants states that as the Full Bench has dealt with only issue of arrears, the present claim is for re-fixation of pay on grant of temporary status as per Paras 2001 and 2005 of IREM Vol.2. and has sought benefit of decision in Shri Sahib Singh and Ors. v. Union of India and Ors. (OA No. 2970/2003) decided on 21.7.2005.
5. On the other hand, respondents’ counsel has relied upon the Full Bench decision and also took objection to limitation by citing decision of the Apex Court in Rattan Chandra Sammanta v. Union of India, , it is contended that the applications are not maintainable, as the cause of action has arisen prior to three years of establishment of Tribunal. As such lack of jurisdiction is also one of the grounds raised.
6. In rejoinder, learned Counsel of the applicants stated that decision of Apex Court in Shiv Dass v. Union of India and Ors. (2007) 9 SCC 274 to contend that if the claim is found sustainable in law, delay in filing the writ petition beyond a reasonable period i.e. 3 years, relief could be restricted to the period of 3 years only.
7. On careful consideration of the rival contentions of the parties, as per Para 2001 of the IREM Vol.2, a casual labour is defined as a labour whose employment is intermittent. Para 2002 of IREM prescribes that casual labourers are not entitled for any privileges other than statutory admissible under the rules. Para 2005 of the IREM provides that when causal labour treated as temporary is entitled to the benefits admissible to temporary Railway servant. However, para 2005 clearly indicates that no temporary post shall be accorded to accommodate such casual worker on temporary status for conferment of attaining regular scale of pay.
8. Chapter XV under Rule 105 of IREM Vol.1 defines temporary Railway servant as Railway servant without lien on permanent post but it does not include casual labour with temporary status. Accordingly, on grant of temporary status, minimum of pay scale is granted but grant of regular pay scale at par with a regular Railway employee is not permissible in law. As the casual labour with temporary status does not hold a substantive post and is only conferred temporary status with a view to have continuity in service, as ruled by the Apex Court in General Manager, North West Railway and Ors. v. Chanda Devi 2008(1) SCC (L&S) 399 with the following observations:
28. What has been considered therein was that the Railway Manual should be given effect to as it governs the terms and conditions of service of the employees working under the Railway Administration. A scheme when engrafted in a rule must be read in the context in which the same was done. This Court while accepting the scheme, nowhere suggested that the amendments made in the Railway Manual would be of no effect. Even otherwise the same could not have been done.
29. In absence of any statutory rules farmed, executive instructions can be issued in relation to the matter governed by the constitutional provisions. In Khem Chand this Court had noticed the relevant constitutional provisions and opined that the Railway Manual was an amalgam of various circulars issued from time to time. Such executive instructions or rules framed would be statutory in nature.
30. Mala fides cannot be attributed to legislation. It is only its validity, that can be challenged. In these cases, validity of the Rules was not under challenge.
The Gujarat High Court in our opinion, therefore, committed a fundamental error in opining otherwise. It failed to notice that when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefor. It is for the legislature to put the employees to (sic) an establishment in different categories. It may create a new category to confer certain benefits to a particular class of employees. Such a power can be exercised also by the executive for making rules under the proviso appended to Article 309 of the Constitution of India. Dakshin Railway Employees Union v. GM, Southern Railway whereupon reliance has been placed by the Gujarat High Court in Rukhiben Rupabhat does not lead to the said conclusion as was sought to be inferred by it. The question therein was as to whether any direction was to be issued to include the petitioners therein in the scheme for absorption as formulated pursuant to the directions of the Court.
What was protected by conferring temporary status upon a casual employee was his service and by reason thereof the Pension Rules were not made applicable. A workman had not been and could not have been given a status to which he was not entitled to.
Recruitment of government employees must be made strictly in terms of the statutory rules. Entitlements of the employees being governed by statute or statutory rules, the question of attribution of any malice in our opinion by the Gujarat High Court was clearly erroneous.
9. In our considered view, in the decision of Full Bench of the Tribunal, arrears of temporary status deeming it to be falling after 120 days ruled as under:
12. Again we may examine whether the claims could be brought within the bandwagon of a continuing claim so as to save it from the vice of limitation. The applicants have a contention that the original stipulation relating to six months continuous service for claiming temporary service had been reduced to four months, and they were not extended the benefits because a re-fixation was necessary as to whether in four months period, any of them qualified. But such orders had come in the year 1978, and it was in any case, well after the above temporary status was given to the applicants. Their cause of action had arisen in the year 1980 and thereabout. It was a claim for recognition of an anterior date for CPC Scales. As evidently, the claims cannot be entertained as a continuing claim, to get over the limitation, we are of the view that the application is hit by limitation and is not maintainable.
10. In the light of above, the claim of the applicant is barred by latches and does not fall within the jurisdiction of the Tribunal, yet in the wake of decision of the Apex Court in Chand Devi’s case (supra) and has the implication of paras of IREM, the claim for regular pay scale cannot be countenanced. Resultantly, OAs are found bereft of merit and are dismissed. No costs.
A copy of this order be kept in each file.