Union Of India v. Basanti Domin

For the Petitioners : Mr. Sanjay Kumar, C.G.C. For the Respondents : Mr. Jayant Kumar Karn, Advocate ---------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 10th November, 2008. Basudeo Dom was engaged as Contingent paid sweeper in the year 1979-80. He died on 3rd January, 2004. His wife claimed retiral benefits including family pension which was denied by the postal authorities. Aggrieved thereby, she approached the Central Administrative Tribunal, Patna Bench, Patna ( for short, „the Tribunal‟) by filing Original Application ( O.A. No. 474 of 2004). The Tribunal, after hearing the parties, allowed the Original Application on 5th April, 2005 and directed the postal authorities to make payment of family - 2 - pension to her and pay arrears. The Central Government through Postal authorities, by means of this writ petition, has challenged the order of the Tribunal.

2. The Department of Posts framed a scheme called „Casual Labourers (Grant of Temporary Status and Regularization) Scheme‟ in the year 1989. The said scheme reads thus: labourers and Regularization) Scheme.- “2. Casual Labourers (Grant of Temporary Status In compliance with the directions of the Hon‟ble Supreme Court a scheme was drawn up by this Department in consultation with the Ministries of Law, Finance and Personnel and the President has been pleased to approve the said scheme. The scheme is as follows:- 1. „Temporary Status‟ would be conferred on in employment as on the casual 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year; during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing five days). 2. Such casual workers engaged working hours, viz., 8 hours including ½ hour‟s lunch time will be paid at daily rates on the basis of the minimum of the pay-scale for a regular Group „D‟ official including DA, HRA and CCA. 3. Benefit of increment at the same rate as applicable to a Group „D‟ employee would be taken into account for calculating per month rate wages, after completion of one year of service from the date of conferment of Temporary Status. Such increment will be taken into account after every one year of service subject to performance of duty for at least 240 days (206 days in establishments observing five days week) in the year. 4. Leave entitlement will be one days for every 10days‟ of work. Casual leave or any other kind of leave, will not be leave, except maternity admissible. No encashment of leave is permissible on termination of services for any reason or on the casual labourers quitting service. 5. Maternity leave to lady full time casual labourers will be allowed as admissible to regular - 3 - After service Their entitlement Group „D‟ employee. 6. rendered under 50% of Temporary Status would be counted for the purpose of retirement benefits after regularization as a regular Group „D‟ official. 7. Conferment of Temporary Status does not automatically imply that the casual labourers would be appointed as a regular Group „D‟ employees within any fixed time frame. Appointment to Group „D‟ vacancies will continue to be done as per the extant rules, which stipulate recruitment preference to eligible ED employees. 8. three years‟ continuous rendering service after conferment of temporary status, the casual labourers would be treated at par with temporary Group „D‟ employees for the purpose of contribution to General Provident Fund. They would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group „D‟ employees, provided they furnish two sureties from permanent Government servants of this Department. 9. to Productivity-Linked Bonus will continue to be at the rate applicable to casual labourers. 10. Temporary status does not debar dispensing with the service of a casual labourer after following the due procedure. 11. If a labourer with temporary status commits misconduct and the same is proved in an enquiry reasonable opportunity, his after giving him services will be dispensed with. 12. Casual labourers may be regularized in units availability of vacancies. 13. For purpose of appointment as a regular Group „D‟ official, the casual labourers will be allowed age relaxation to the extent of service rendered by them as casual labourers. 14. The casual labourers can be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work. 15. The engagement of the casual labourers will continue to be on daily rates of pay on need basis. 16. The conferment of temporary status has no relation to availability of sanctioned regular Group „D‟ posts. 17. No recruitment from open market for Group „D‟ posts except compassionate appointments will recruiting units also, subject - 4 - be done till casual labourers with the requisite qualification are available to fill up the posts in question.”

3. The Scheme is self-contained and it provides certain benefits to temporary status casual labourers in employment with postal department from 29th November, 1989 who continued to be currently employed and have rendered continuous service of at least one year. Upon careful perusal of the scheme, we find that it only confers temporary status for the limited purposes and it does not include grant of family pension to the wife of such deceased employee. It is true that the deceased employee was given temporary status with effect from 1st April, 2001. However, he was only entitled to the benefits provided in the scheme which did not include family pension. Clause 6 of the Scheme provides that 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after regularization as a regular Group „D‟ official. The applicant‟s husband was never regularized. As per Clause 8, after rendering three years‟ continuous service and upon conferment of temporary status, the casual labourers would be treated at par with temporary Group „D‟ employees for the purpose of contribution to General Provident Fund. Firstly, under Clause 6, the casual labourer who has been conferred temporary status is treated at par with temporary Group „D‟ employee for the purpose of contribution to General Provident Fund only after rendering three years continuous service and upon conferment of temporary status. The benefit in - 5 - Clause 8 is only for the purpose of General Provident Fund and other allowances as set out therein. Secondly, and more importantly, in the present case, the husband of the applicant had not even completed three years‟ continuous service after conferment of temporary status. As noticed above, he was given temporary status with effect from 1st April, 2001. He died on 3rd January, 2004. Thus, he had not rendered three years‟ continuous service after conferment of temporary status for being entitled to even benefit under Clause 8 of the scheme.

4. In the case of Union of India and ors. Vs. Rabia Bikaner and ors., (1997) 6 Supreme Court Cases 580, the question for consideration before the Supreme Court was whether the widow of a casual labourer in Railway Establishment, who died after putting in six months‟ service and obtaining the status of a temporary workman but before his appointment to a temporary post after screening, is entitled to family pension under 1964 Family Pension Scheme. The Supreme Court while dealing with the question, considered the matter thus: “ 3.The Railway Board in its letter bearing S.No.3214- Circular No.720-E/0-IX (Pension) dated 26.10.1965 after examining the question, had stated that “the Family Pension Scheme, 1964 for railway employees is applicable in the case of regular employees on pensionable establishment. Since the casual labourers will be brought on to the pensionable establishment only their absorption against regular temporary posts, it follows that they will come under the purview of the scheme from the date of their absorption against the regular temporary posts. In other words, the benefits of the Family Pension Scheme, 1964 for railway employees will be admissible in the case of death of such an employee while in service, only if he had completed a minimum period one year‟s continuous service from the date he was absorbed against a regular temporary post”. - 6 - service- of

4. It is contented by the learned counsel for the respondent-widows that under para 2511- “Rights and Privileges admissible to the casual labourers who are treated as temporary after completion of six the Railway months‟ continuous Establishment Manual, they are entitled to family pension. We find it difficult to give acceptance to the contention. It is seen that every casual labourer employed in the railway administration for six months is entitled to temporary status. Thereafter, they will be empanelled. After empanelment, they are required to be screened by the competent authority and as and when vacancies for temporary posts in the regular establishment are available, they should be appointed in the order of merit after screening. On their appointment, they are also required to put in minimum service of one year in the temporary post. In view of the above position, if any of those employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible to pension under the Family Pension Scheme, 1964. In all these cases, though some of them have been screened, yet appointments were not given since the temporary posts obviously were not available or in some cases they were not even eligible for screening because the posts become available after the death. Under these circumstances, respondent-widows are not eligible for the family pension benefits. 5. The learned counsel strongly relied upon the judgment in Prabhavati Devi v. Union of India (1996) 7 SCC 27: 1996 SCC (L&S) 369: (1988) 2 SCR 138. Therein, the facts were that from the year 1981 to 27- 4-1993, the husband of the appellant had worked as casual worker and obtained the status of substitutes who were working, as defined under Rule 2315 of the regular Railway Establishment Manual, establishment on a regular scale of pay and allowances applicable to those posts in which they were employed. Since he died while working in the regular post, his widow became eligible to claim the benefits of the pension scheme. Thus, in that case, the appellant‟s husband was a substitute working in a regular scale of pay in the Railway Establishment. Obviously, he was screened and was also appointed to the temporary status but instead of being given appointment to a temporary post, he was treated as substitute and appointed to the vacancy when the in a - 7 - regular candidates went on leave. Under these circumstances, this Court had held that the widow of such employee is entitled to the benefit of the family pension. The above ratio is inapplicable to the cases referred to hereinbefore. The question also was considered in a recent judgment of this Court in Union of India v. Sukanti, SLP (c) No.3341 of 1993 decided on 30-07-1996, wherein relying on the ratio in Ram Kumar case (1998) 1 SCC 306: 1988 SCC (L&S) 329: (1987) 5 ATC 404: (1988) 2 SCR 138, this Court held that no retiral benefit was available to the widow of the casual labourer who had not been regularized till his death. Thus, we hold that the view taken by the Tribunal in granting the pensionary benefits to the respondents is clearly illegal.”

5. Applying the said analogy, in the light of the scheme noticed above, the only conclusion that can be drawn is that the widow of Basudeo Dom was not entitled to the family pension.

6. The view of the Tribunal, therefore, cannot be sustained and the judgment has to be set aside.

7. We, accordingly, allow the writ petition and quash and set aside the order dated 5th April, 2005 passed by the Tribunal. Rule is made absolute. No order as to costs. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/