IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15756 of 2006(S)
1. THE CHIEF PERSONNEL OFFICER,
... Petitioner
2. THE SENIOR DIVISIONAL PERSONNEL OFFICER
3. THE DIVISIONAL RAILWAY MANAGER,
4. UNION OF INDIA, REPRESENTED BY
Vs
1. C.P. SEBASTIAN, CHATHIYALIL HOUSE,
... Respondent
2. THE CENTRAL ADMINISTRATIVE TRIBUNAL,
For Petitioner :SMT.M.R.SREELETHA, SC, RAILWAYS
For Respondent :SRI.GEORGEKUTTY MATHEW
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :20/03/2009
O R D E R
K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ.
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W.P(C).No.15756 OF 2006
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Dated this the 20th day of March, 2009
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The respondents in O.A.No.440/2003 before the Central
Administrative Tribunal, Ernakulam Bench, are the writ
petitioners. The 1st respondent was the applicant.
2. The brief facts of the case are the following:
The applicant was appointed as a Bearer on commission
basis under the Railways on 22.1.1981. Later, on 1.12.1983, he
was converted into a salaried Commission Bearer. As per the
direction of the Apex Court in Ext.P1 judgment, the persons like
applicant were absorbed into regular establishment. The
applicant’s turn arose for absorption in 1999 and he was
absorbed on 8.7.1999. On coming to know that the service
rendered by him on contract basis will not be reckoned for
pensionary benefits, the applicant approached the C.A.T. by
filing the aforementioned Original Application seeking
W.P.(C) No.15756/2006 2
appropriate reliefs. During the pendency of the Original
Application, he retired from service on 31.1.2004. The
respondents, who are the writ petitioners herein, resisted the
Original Application contending that the claim of the applicant is
unsustainable in the light of the relevant rules. The Tribunal
after hearing both sides disposed of the Original Application
directing the writ petitioners to count 50% of the service
rendered by him between 22.1.1981 and 8.7.1999 on contract
basis. Aggrieved by the above direction, the respondents in the
Original Application have preferred this writ petition.
2. The petitioners relying on rule 14 of the Railway
Services (Pension) Rules 1993 submitted that the service
rendered by the applicant as Bearer on commission basis cannot
be counted for pensionary benefits. Special reference was made
to Clause (v) of Rule 14, which says that employment under a
covenant or a contract which does not specifically provide for
grant of pensionary benefits cannot be counted. The applicant
was originally engaged on contract basis subject to the
conditions mentioned in Ext.P10. It is an order engaging a
person similarly placed like the applicant. Since the said order
W.P.(C) No.15756/2006 3
does not permit counting the service for pension, the claim of the
applicant is unsustainable, it is submitted.
3. The learned counsel for the 1st respondent on the
other hand relied on Clause (xiv) of Rule 14, which says that if an
appointment on contract basis is followed by confirmation, the
service on contract basis can be counted. The learned counsel
also relied on Rule 24 of the aforementioned Pension Rules,
which provides for counting of service on contract also for
pension. Clause (xiv) of Rule 14 of the Railway Services
(Pension Rules) reads as follows:
“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) …………………………………
(xiv) on contract basis except when followed
by confirmation.”Rule 24 reads as follows:
“24. Counting of service on contract:-
(1) A person who is initially engaged by
the Railways on a contract and is
subsequently appointed to the same or
another post in a substantive capacity,W.P.(C) No.15756/2006 4
without a break in service, such contract
period of service shall be treated like any
other permanent service, in the railway
and be taken into account for calculating
for the pensionary benefits, subject to the
conditions laid down in these rules,-(1) Provided that (i) the period of
contract service, during which the
Contract officer did not subscribe to the
State Railway Provident Fund
(Contributory), shall count to the extent
indicated above, if during such period, the
railway servant concerned did not receive
any inflated rates of pay by reason of
absence of any retirement benefits;(ii) if the railway servant
concerned has subscribed to the State
Railway Provident Fund (Contributory)
during a period of contract service, he
shall have the option either –(a) to refund the Government
contribution in the Provident Fund
together with interest thereon, and
Special Contribution to provident Fund, if
any, for the period in question and to
count the contract service for pensionary
benefits to the extent indicated above, or(b) to retain the Government
contribution to the Provident Fund with
interest thereon including any other
compensation and Special Contribution to
Provident Fund, if any, and not to count
the period of contract service in question
for pensionary benefits.W.P.(C) No.15756/2006 5
(2) The option, referred to in sub-clause
(a) or sub-clause (b) of clause (i) of sub-
rule (1), shall be exercised within three
months from the date of issue of the order
of confirmation of the railway servant
concerned in a substantive post and if he
is on leave on that date, within three
months of his return from leave,
whichever is later.(3) If no option is received from the
railway servant within the period referred
to in sub-rule (2), he shall be deemed to
have opted for retention of monetary
benefits referred to in sub-clause (b) of
clause (ii) of sub-rule (1).(4) Where a railway servant (on contract
basis ) who was admitted to the State
Railway Contributory Provident Fund opts
for the alternative in sub-clause (a) of
clause (ii) of sub-rule (1) above, the
amount of Government contribution
together with interest thereon including
any other compensation standing to his
credit in State Railway Provident Fund
(Contributory) and the Special
Contribution to the Provident Fund, if
any, shall be surrendered and such
amount shall be credited to the
Consolidated Fund of India:Provided that in a case where the
Government contribution and the Special
Contribution, if any, have been paid to the
railway servant, he shall be required to
refund the amount received by him
together with compound interest on the
amount actually received from the date(s)
of payment to the date of final refund, at
the rate which would have beenW.P.(C) No.15756/2006 6
applicable to the Government
contribution, if that amount would have
remained in the fund and earnest interest.
In case where the railway servant dies
before the entire amount is refunded, the
amount which remains to be refunded
shall be adjusted against the death
gratuity which may become payable to the
family of such railway servant.”
In this case, we notice that the applicant worked on
contract basis from 22.1.1981 to 8.7.1994. Thereafter, he was
absorbed in regular service. So, going by Rule 14 (xiv) and Rule
24 of the Pension Rules, we find nothing wrong with the
direction of the C.A.T. In the light of the above rules, we uphold
the claim of the applicant to the extent the same was upheld by
the Tribunal. In the result, the writ petition fails and it is
dismissed.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.L.JOSEPH FRANCIS, JUDGE)
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