IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice F.M. IBRAHIM KALIFULLA and The Honourable Mr.Justice K.CHANDRU W. P. No. 33420 of 2006 and M.P. Nos. 1 of 2006 and 1 of 2008 1. The Union of India Rep. by Chief Personnel Officer Personnel Branch Southern Railway, Chennai 2. The Senior Divisional Personnel Officer Personnel Branch Southern Railway, Chennai ... Petitioners -vs- 1. The Registrar Central Administrative Tribunal Chennai 2. Selvaraj alias I. Raj ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorari to call for the records pertaining to the order dated 26.4.2006 passed by the Tribunal in O.A. No. 703 of 2005 and quash the same. For Petitioners : Mr. R. Thiagarajan, SC for Mr. V.G. Sureshkumar For Respondent 2 : Mrs. T. Kokilavane ORDER
K. CHANDRU, J.
Heard the arguments of Mr. R. Thiagarajan, learned Senior Counsel for Mr. V. G. Sureskumar, appearing for the petitioners and Mrs. T. Kokilavane, learned counsel appearing for the second respondent and have perused the records.
2. The Union of India, aggrieved by the order dated 26.4.2006 passed by the Central Administrative Tribunal [for short, ‘CAT’] in O.A. No. 703 of 2005, has filed the present writ petition.
3. The second respondent, who after getting retired from the Railways as a Master Craftsman / Carpenter on 30.6.2005, filed the Original Application before the first respondent Central Administrative Tribunal (CAT) seeking for a direction to the petitioners to include the period of service rendered by him as Casual Labour Carpenter from 20.02.1970 to 31.3.1974 for grant of pensionary benefits. The second respondent stated that he joined the services of the Railways as a Casual Labour Carpenter and was working under the Permanent Way Inspector (PWI), Tiruvallur from 02.02.1970 to 31.7.1972 without break in service. Subsequently, he worked in the Engineering Department at Avadi from 01.11.1972 to 31.7.1974. Thereafter, by a proceedings dated 06.3.1974, his services were utilised by the Assistant Engineer, North East Line, Madras Division. He was permanently absorbed w.e.f. 01.8.1974. After continuously working, he attained the age of superannuation on 30.6.2005.
4. When he found that his services rendered prior to the date of permanent absorption were not counted for pensionary benefits, he moved the CAT. The CAT, by its judgment dated 26.4.2006, partially allowed the O.A. and directed that 50% of his service rendered during 02.02.1970 to 31.3.1974 should be counted for calculating all the retiral benefits. Aggrieved by the same, the Union of India has filed the present writ petition.
5. Since there was a considerable emphasis made on the second respondent not establishing such service details before the CAT, we called for the original file from the CAT which was obtained and circulated by the Registry. We also directed the petitioner Railways to produce the Service Register of the second respondent which was also circulated by Mr. R. Thiagarajan, learned Senior Counsel appearing for the Railways and we have perused the entire records.
6. Mr. R. Thiagarajan, learned Senior Counsel submitted that the Railway Services (Pension) Rules 1993 do not take into account the service rendered on market rates or on daily rates. He referred to Rule 14.2 of the Railway (Pension) Rules. He further submitted that Rule 31 of the Railway (Pension) Rules relied on by the CAT has no application to the case on hand.
7. On the contrary, Rule 31 of the Pension Rules supports the case of the second respondent. Rule 31 reads as follows:- "31. Counting of service paid from contingencies.-- In respect of a railway servant, in service on or after the 22nd day of August, 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely:- (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 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 rate computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears 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;
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 is available.”
8. It was also brought to our notice paragraph 2005 of the The Indian Railways Establishment Manuel (IREM) which sets out the right of a Casual Labour getting status of a Railway servant. Paragraph 2005(2) deals with services to be counted for pension purpose:-
“Casual labour including Project 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 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 regular service. Daily rated casual labour will not be entitled to these benefits.”
9. In the present case, though the original Service Register in respect of the second respondent had entries only from 01.4.1974, in the reply to the rejoinder filed by the petitioner Railways, they had mentioned about the second respondent’s service rendered before 01.4.1974 in paragraph 2 of the statement, which reads as follows:-
“The respondents submit that the services rendered by the applicant under the control of Permanent Way Inspector / Re-railing / Avadi from 2.2.1970 to 31.3.1974 is only daily rated Casual Labour service and subsequently, he was engaged as a Casual Labour from 1.4.1974 to 31.7.1974 at Permanent Way Inspector, Thiruvottiyur. As he had completed four months continuous service from 1.4.1974, he was granted temporary status with effect from 1.8.1974 and was absorbed in regular cadre with effect from 16.10.1984….”
10. Apart from this, the second respondent had filed copies of the Casual Labour Service Card as Annexure I which was countersigned by PWI / RR / Tiruvallur and another card as Annexure II countersigned by the PWI / RR / Avadi along with the Original Application. This was not controverted by the petitioner Railways. Though it was stated in the reply statement that the second respondent was not engaged continuously, but Annexures I and II prove the opposite of the averments made by the Railways. Annexure I shows that the second respondent had worked from 02.02.1970 to 30.11.1970 and thereafter, from 01.3.1971 to 31.10.1971 and finally from 01.01.1972 to 31.7.1972. In Annexure II, it seen that he had worked 01.11.1972 to 31.3.1974 continuously. Curiously in Annexure II an endorsement has been made to show as if he had left the service on his own accord. But the entry in the Service Register produced by the Railways shows that he had been working from 01.4.1974 onwards. Hence, it is impossible for the second respondent to leave the service on the evening of 31.3.1974 and start to work in the same Railways from the next morning ie., 01.4.1974 onwards.
11. Apart from the factual aspect of the second respondent working as a Casual Labour continuously, Mr. R. Thiagarajan, learned Senior Counsel submitted that even then, the said service cannot be counted for pension purpose. The sheet anchor of this case was the decision of the Supreme Court in Union of India and others v. K.G. Radhakrishna Panickar and others [1998 (5) SCC 111]. He particularly relied on the following passages found in paragraphs 11 and 12, which read as follows:-
Para 11: “…. The decision in Inder Pal Yadav does not support such a view. It must, therefore, be held that prior to the scheme which was accepted by this Court in the case of Inder Pal Yadav Project Casual Labour could not claim temporary status and such temporary status could only be acquired by them on the basis of the scheme as accepted in Inder Pal Yadav.
Para 12: In its judgment dated 8-2-1991 the Tribunal has held that exclusion of period of service rendered as Project Casual Labour before they were regularly absorbed prior to 1-1-1981 results in such employees being discriminated against as compared to Project Casual Labour who were employed subsequently and whose service as Project Casual Labour prior to absorption is counted for the purpose of qualifying service. The said finding of the Tribunal is based on the decision of this Court in D.S. Nakara. In this regard, it may be stated that the Tribunal was in error in invoking the principle laid down in D.S. Nakara in the present case. The decision in D.S. Nakara has been considered by this Court in subsequent decisions and it has been laid down that the principle laid down in D.S. Nakara can have application only in those cases where there is discrimination in the matter of existing benefit between similar set of employees and the said principle has no application where a new benefit is being conferred with effect from a particular date. In such a case the conferment of the benefit with effect from a particular date cannot be held to be violative of Article 14 of the Constitution on the basis that such a benefit has been conferred on certain categories of employees on the basis of a particular date. (See: Krishena Kumar v. Union of India; State of W.B. v. Ratan Behari Dey and State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti.) In the present case, the benefit of counting of service prior to regular employment as qualifying service was not available to casual labour. The said benefit was granted to Open Line Casual Labour for the first time under order dated 14-10-1980 since Open Line Casual Labour could be treated as temporary on completion of six months period of continuous service which period was subsequently reduced to 120 days under para 2501(b)(i) of the Manual. As regards Project Casual Labour this benefit of being treated as temporary became available only with effect from 1-1-1981 under the scheme which was accepted by this Court in Inder Pal Yadav. Before the acceptance of that scheme the benefit of temporary status was not available to Project Casual Labour. It was thus a new benefit which was conferred on Project Casual Labour under the scheme as approved by this Court in Inder Pal Yadav and on the basis of this new benefit Project Casual Labour became entitled to count half of the service rendered as Project Casual Labour on the basis of the order dated 14-10-1980 after being treated as temporary on the basis of the scheme as accepted in Inder Pal Yadav. We are, therefore, unable to uphold the judgment of the Tribunal dated 8-2-1991 when it holds that service rendered as Project Casual Labour by employees who were absorbed on regular permanent/temporary posts prior to 1-1-1981 should be counted for the purpose of retiral benefits and the said judgment as well as the judgment in which the said judgment has been followed have to be set aside. The judgments in which the Tribunal has taken a contrary view have to be affirmed.”
The aforesaid case has no application to the case on hand as the second respondent neither worked as a Project Casual Labour nor was a beneficiary of the Inder Pal Yadav’s case referred to above.
12. The learned Senior Counsel also referred to the judgment of the Supreme Court in Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and others [2005 (5) SCC 122] and submitted that the concept of 240 days of service will arise only if persons are working in the regular post and, therefore, the second respondent was not eligible for getting the said service counted for pensionary purpose. In the present case, such a question does not arise in view of the specific provision found in Rule 31 of the Railway (Pension) Rules.
13. Mrs. T. Kokilavane, learned counsel for the second respondent placed reliance upon the judgment of the Supreme Court in Union of India and another v. R.C. D’Souza [1987 (2) SCC 211] and referred to the following passage found in paragraph 9 of the said judgment:-
Para 9: “Even though under sub-rule (2) of Rule 107 as it stood, the respondent was not entitled to claim absorption, he is certainly entitled to the benefit of the amended provision from September 20, 1985. Sub-rule (2) as amended in terms applies to him and counsel for the appellants has also accepted this position. Therefore, the respondent is entitled to absorption in the cadre with effect from the date the amended rule came into force and he is, therefore, to be confirmed in the post of Commandant and absorbed in the appropriate cadre from that date. Admittedly the respondent has put in continuous service of more than 20 years in the Force and it would be totally unjustified to deprive him of credit of service. Though he may not be entitled to other advantages of such service prior to the date of absorption, in our view, he should be entitled to count that period for pension entitlement. We, therefore, allow the appeal to the extent that the direction of the High Court to absorb the respondent from the date of his appointment stands set aside and in its place the respondent shall be entitled to absorption with effect from September 20, 1985. His seniority in the post of Commandant shall run from that date and he would be entitled to all service advantages on the basis of such absorption from September 1985. He would, however, be entitled to credit of continuous service for the entire period of service as Assistant Commandant and Commandant for the limited purpose of pension.”
14. The Supreme Court had necessarily dealt with a case of a widow of a temporary Casual Labour claiming family pension on the temporary services put in by her husband. The Supreme Court negatived her claim and reversed the judgment of the Gujarat High Court rendered in her favour. The said judgment rendered on 12.1.22007 is subsequently reported in 2008 (2) SCC 108 [General Manager, North West Railway and others v. Chanda Devi]. The following passages found in paragraphs 31 and 32 of the said judgment may be usefully reproduced below:-
Para 31: “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 [(1987 (1) SCC 677] whereupon reliance has been placed by the Gujarat High Court in Rukhiben Rupabhai (supra) 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.
Para 32: 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.”
However, the said observation of the Supreme Court has no application to the facts of the present case since the second respondent was absorbed as a regular Railway servant and retired in that capacity. The said decision may not have direct application to the case on hand, the present case is covered by the Rules framed by the Railways.
15. After going through the original records, this Court finds that the second respondent had continuously worked from 1970 to 1974 and he, not being a project employee, is eligible to count the 50% of his service rendered before the grant of status of temporary Railway servant in terms of Rule 31 of the Railways (Pension) Rules. The CAT had correctly applied the relevant Rules and granted relief to the second respondent and it does not call for any interference by this Court.
16. In view of the above, writ petition fails and will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions will stand closed. The petitioner Railways is directed to implement the order of the CAT and revise the pension payable to the second respondent within a period of eight weeks from the date of receipt of a copy of this order.
gri
To
The Registrar
Central Administrative Tribunal
Chennai