The Union of India v. The Registrar Central Administrative Tribunal Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 10..6..2008Coram:The Honourable Mr.Justice F.M. IBRAHIM KALIFULLAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 33420 of 2006andM.P. Nos. 1 of 2006 and 1 of 20081.The Union of IndiaRep. by Chief Personnel OfficerPersonnel BranchSouthern Railway, Chennai2.The Senior Divisional Personnel OfficerPersonnel BranchSouthern Railway, Chennai... Petitioners-vs- 1.The Registrar Central Administrative Tribunal Chennai2.Selvaraj alias I. Raj ... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorari to call for the records pertaining to theorder dated 26.4.2006 passed by the Tribunal in O.A. No. 703 of 2005 andquash the same.For Petitioners: Mr. R. Thiagarajan, SC for Mr. V.G. SureshkumarFor Respondent 2: Mrs. T. KokilavaneORDERK. CHANDRU, J.Heard the arguments of Mr. R. Thiagarajan, learned Senior Counselfor Mr. V. G. Sureskumar, appearing for the petitioners and Mrs. T.Kokilavane, learned counsel appearing for the second respondent and haveperused the records. https://hcservices.ecourts.gov.in/hcservices/

2.The Union of India, aggrieved by the order dated 26.4.2006passed 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 theRailways as a Master Craftsman / Carpenter on 30.6.2005, filed theOriginal Application before the first respondent Central AdministrativeTribunal (CAT) seeking for a direction to the petitioners to include theperiod of service rendered by him as Casual Labour Carpenter from20.02.1970 to 31.3.1974 for grant of pensionary benefits. The secondrespondent stated that he joined the services of the Railways as aCasual Labour Carpenter and was working under the Permanent WayInspector (PWI), Tiruvallur from 02.02.1970 to 31.7.1972 without breakin service. Subsequently, he worked in the Engineering Department atAvadi from 01.11.1972 to 31.7.1974. Thereafter, by a proceedings dated06.3.1974, his services were utilised by the Assistant Engineer, NorthEast Line, Madras Division. He was permanently absorbed w.e.f.01.8.1974. After continuously working, he attained the age ofsuperannuation on 30.6.2005. 4.When he found that his services rendered prior to the date ofpermanent absorption were not counted for pensionary benefits, he movedthe CAT. The CAT, by its judgment dated 26.4.2006, partially allowedthe O.A. and directed that 50% of his service rendered during 02.02.1970to 31.3.1974 should be counted for calculating all the retiral benefits.Aggrieved by the same, the Union of India has filed the present writpetition.5.Since there was a considerable emphasis made on the secondrespondent not establishing such service details before the CAT, wecalled for the original file from the CAT which was obtained andcirculated by the Registry. We also directed the petitioner Railwaysto produce the Service Register of the second respondent which was alsocirculated by Mr. R. Thiagarajan, learned Senior Counsel appearing forthe Railways and we have perused the entire records.6.Mr. R. Thiagarajan, learned Senior Counsel submitted that theRailway Services (Pension) Rules 1993 do not take into account theservice rendered on market rates or on daily rates. He referred toRule 14.2 of the Railway (Pension) Rules. He further submitted thatRule 31 of the Railway (Pension) Rules relied on by the CAT has noapplication to the case on hand. 7.On the contrary, Rule 31 of the Pension Rules supports thecase of the second respondent. Rule 31 reads as follows:-"31.Counting of service paid from contingencies.-- Inrespect of a railway servant, in service on or after the22nd day of August, 1969, half the service paid fromcontingencies shall be taken into account for calculating https://hcservices.ecourts.gov.in/hcservices/ pensionary benefits on absorption in regular employmentsubject to the following conditions, namely:-(a)the service paid from contingencies has been ina job involving whole-time employment;(b)the service paid from contingencies should be ina type of work or job for which regular postscould have been sanctioned as posts of malis,chowkidars and khalasis;(c)the service should have been such for whichpayment has been made either on monthly ratebasis or on daily rate computed and paid on amonthly basis and which, though not analogous tothe regular scales of pay, bears some relationin the matter of pay to those being paid forsimilar jobs being performed at the relevantperiod by staff in regular establishments;(d)the service paid from contingencies has beencontinuous and followed by absorption in regularemployment without a break;Provided that the weightage for past service paidfrom contingencies shall be limited to the period after1st January 1961 subject to the condition that authenticrecords of service such as pay bill, leave record orservice book is available."8.It was also brought to our notice paragraph 2005 of the TheIndian Railways Establishment Manuel (IREM) which sets out the right ofa 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 shallbe eligible to count only half the period of servicerendered by them after attaining temporary status oncompletion of prescribed days of continuous employment andbefore regular absorption, as qualifying service for thepurpose of pensionary benefits. This benefit will beadmissible only after their absorption in regularemployment. Such casual labour, who have attainedtemporary status, will also be entitled to carry forwardthe leave at their credit to new post on absorption inregular service. Daily rated casual labour will not beentitled to these benefits."9.In the present case, though the original Service Register inrespect of the second respondent had entries only from 01.4.1974, in thereply to the rejoinder filed by the petitioner Railways, they hadmentioned about the second respondent's service rendered before01.4.1974 in paragraph 2 of the statement, which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The respondents submit that the services rendered by theapplicant under the control of Permanent Way Inspector /Re-railing / Avadi from 2.2.1970 to 31.3.1974 is onlydaily rated Casual Labour service and subsequently, he wasengaged as a Casual Labour from 1.4.1974 to 31.7.1974 atPermanent Way Inspector, Thiruvottiyur. As he hadcompleted four months continuous service from 1.4.1974, hewas granted temporary status with effect from 1.8.1974 andwas absorbed in regular cadre with effect from16.10.1984...."10.Apart from this, the second respondent had filed copies of theCasual Labour Service Card as Annexure I which was countersigned byPWI / RR / Tiruvallur and another card as Annexure II countersigned bythe PWI / RR / Avadi along with the Original Application. This wasnot controverted by the petitioner Railways. Though it was stated inthe reply statement that the second respondent was not engagedcontinuously, but Annexures I and II prove the opposite of theaverments made by the Railways. Annexure I shows that the secondrespondent had worked from 02.02.1970 to 30.11.1970 and thereafter, from01.3.1971 to 31.10.1971 and finally from 01.01.1972 to 31.7.1972. InAnnexure II, it seen that he had worked 01.11.1972 to 31.3.1974continuously. Curiously in Annexure II an endorsement has been made toshow as if he had left the service on his own accord. But the entry inthe Service Register produced by the Railways shows that he had beenworking from 01.4.1974 onwards. Hence, it is impossible for the secondrespondent to leave the service on the evening of 31.3.1974 and start towork in the same Railways from the next morning ie., 01.4.1974 onwards.11.Apart from the factual aspect of the second respondent workingas a Casual Labour continuously, Mr. R. Thiagarajan, learned SeniorCounsel submitted that even then, the said service cannot be counted forpension purpose. The sheet anchor of this case was the decision of theSupreme Court in Union of India and others v. K.G. RadhakrishnaPanickar and others [1998 (5) SCC 111]. He particularly relied on thefollowing passages found in paragraphs 11 and 12, which read as follows:-Para 11:".... The decision in Inder Pal Yadav does not supportsuch a view. It must, therefore, be held that prior to thescheme which was accepted by this Court in the case ofInder Pal Yadav Project Casual Labour could not claimtemporary status and such temporary status could only beacquired by them on the basis of the scheme as accepted inInder Pal Yadav.Para 12:In its judgment dated 8-2-1991 the Tribunal has held thatexclusion of period of service rendered as Project CasualLabour before they were regularly absorbed prior to 1-1-1981 results in such employees being discriminated against https://hcservices.ecourts.gov.in/hcservices/ as compared to Project Casual Labour who were employedsubsequently and whose service as Project Casual Labourprior to absorption is counted for the purpose ofqualifying service. The said finding of the Tribunal isbased on the decision of this Court in D.S. Nakara. Inthis regard, it may be stated that the Tribunal was inerror in invoking the principle laid down in D.S. Nakarain the present case. The decision in D.S. Nakara has beenconsidered by this Court in subsequent decisions and ithas been laid down that the principle laid down in D.S.Nakara can have application only in those cases wherethere is discrimination in the matter of existing benefitbetween similar set of employees and the said principlehas no application where a new benefit is being conferredwith effect from a particular date. In such a case theconferment of the benefit with effect from a particulardate cannot be held to be violative of Article 14 of theConstitution on the basis that such a benefit has beenconferred on certain categories of employees on the basisof a particular date. (See: Krishena Kumar v. Union ofIndia; State of W.B. v. Ratan Behari Dey and State ofRajasthan v. Sevanivatra Karamchari Hitkari Samiti.) Inthe present case, the benefit of counting of service priorto regular employment as qualifying service was notavailable to casual labour. The said benefit was grantedto Open Line Casual Labour for the first time under orderdated 14-10-1980 since Open Line Casual Labour could betreated as temporary on completion of six months’ periodof continuous service which period was subsequentlyreduced to 120 days under para 2501(b)(i) of the Manual.As regards Project Casual Labour this benefit of beingtreated as temporary became available only with effectfrom 1-1-1981 under the scheme which was accepted by thisCourt in Inder Pal Yadav. Before the acceptance of thatscheme the benefit of temporary status was not availableto Project Casual Labour. It was thus a new benefit whichwas conferred on Project Casual Labour under the scheme asapproved by this Court in Inder Pal Yadav and on the basisof this new benefit Project Casual Labour became entitledto count half of the service rendered as Project CasualLabour on the basis of the order dated 14-10-1980 afterbeing treated as temporary on the basis of the scheme asaccepted in Inder Pal Yadav. We are, therefore, unable touphold the judgment of the Tribunal dated 8-2-1991 when itholds that service rendered as Project Casual Labour byemployees who were absorbed on regular permanent/temporaryposts prior to 1-1-1981 should be counted for the purposeof retiral benefits and the said judgment as well as thejudgment in which the said judgment has been followed have https://hcservices.ecourts.gov.in/hcservices/ to be set aside. The judgments in which the Tribunal hastaken a contrary view have to be affirmed."The aforesaid case has no application to the case on hand as the secondrespondent neither worked as a Project Casual Labour nor was abeneficiary of the Inder Pal Yadav's case referred to above.12.The learned Senior Counsel also referred to the judgment ofthe Supreme Court in Madhyamik Shiksha Parishad, U.P. v. Anil KumarMishra and others [2005 (5) SCC 122] and submitted that the concept of240 days of service will arise only if persons are working in theregular post and, therefore, the second respondent was not eligible forgetting the said service counted for pensionary purpose. In thepresent case, such a question does not arise in view of the specificprovision found in Rule 31 of the Railway (Pension) Rules.13.Mrs. T. Kokilavane, learned counsel for the second respondentplaced reliance upon the judgment of the Supreme Court in Union of Indiaand another v. R.C. D'Souza [1987 (2) SCC 211] and referred to thefollowing 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 iscertainly entitled to the benefit of the amended provisionfrom September 20, 1985. Sub-rule (2) as amended in termsapplies to him and counsel for the appellants has alsoaccepted this position. Therefore, the respondent isentitled to absorption in the cadre with effect from thedate the amended rule came into force and he is,therefore, to be confirmed in the post of Commandant andabsorbed in the appropriate cadre from that date.Admittedly the respondent has put in continuous service ofmore than 20 years in the Force and it would be totallyunjustified to deprive him of credit of service. Though hemay not be entitled to other advantages of such serviceprior to the date of absorption, in our view, he should beentitled to count that period for pension entitlement. We,therefore, allow the appeal to the extent that thedirection of the High Court to absorb the respondent fromthe date of his appointment stands set aside and in itsplace the respondent shall be entitled to absorption witheffect from September 20, 1985. His seniority in the postof Commandant shall run from that date and he would beentitled to all service advantages on the basis of suchabsorption from September 1985. He would, however, beentitled to credit of continuous service for the entireperiod of service as Assistant Commandant and Commandantfor the limited purpose of pension." https://hcservices.ecourts.gov.in/hcservices/

14.The Supreme Court had necessarily dealt with a case of a widowof a temporary Casual Labour claiming family pension on the temporaryservices put in by her husband. The Supreme Court negatived her claimand reversed the judgment of the Gujarat High Court rendered in herfavour. The said judgment rendered on 12.1.22007 is subsequentlyreported in 2008 (2) SCC 108 [General Manager, North West Railway andothers v. Chanda Devi]. The following passages found in paragraphs31 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. Itfailed to notice that when casual labour has beenexcluded from the definition of permanent or temporaryemployee, he with temporary status could not have becomeso and there is no legal sanction therefor. It is for thelegislature to put the employees to (sic) anestablishment in different categories. It may create anew category to confer certain benefits to a particularclass of employees. Such a power can be exercised also bythe executive for making rules under the proviso appendedto Article 309 of the Constitution of India. DakshinRailway Employees Union v. GM, Southern Railway [(1987(1) SCC 677] whereupon reliance has been placed by theGujarat High Court in Rukhiben Rupabhai (supra) does notlead to the said conclusion as was sought to be inferredby it. The question therein was as to whether anydirection was to be issued to include the petitionerstherein in the scheme for absorption as formulatedpursuant to the directions of the Court.Para 32:What was protected by conferring temporary status upon acasual employee was his service and by reason thereof thePension Rules were not made applicable. A workman had notbeen and could not have been given a status to which hewas not entitled to."However, the said observation of the Supreme Court has no application tothe facts of the present case since the second respondent was absorbedas a regular Railway servant and retired in that capacity.The saiddecision may not have direct application to the case on hand, thepresent case is covered by the Rules framed by the Railways. 15.After going through the original records, this Court findsthat the second respondent had continuously worked from 1970 to 1974 andhe, not being a project employee, is eligible to count the 50% of hisservice rendered before the grant of status of temporary Railway servantin terms of Rule 31 of the Railways (Pension) Rules. The CAT hadcorrectly applied the relevant Rules and granted relief to the secondrespondent and it does not call for any interference by this Court. https://hcservices.ecourts.gov.in/hcservices/

16.In view of the above, writ petition fails and will standdismissed. However, there will be no order as to costs. ConnectedMiscellaneous Petitions will stand closed. The petitioner Railways isdirected to implement the order of the CAT and revise the pensionpayable to the second respondent within a period of eight weeks from thedate of receipt of a copy of this order.Sd/Asst. Registrar/true copy/Sub Asst.RegistrargriTo1. The Registrar Central Administrative Tribunal Chennai.2. The Chief Personnel Officer, Personnel Branch, Southern Railway, Chennai.3. The Section Divisional Personnel Officer, Personnel Branch, Southern Railway, Chennai.+1 cc to Mrs.T.Kokilavani, Advocate, SR.No.28385.Bv (co)krd / 12.6.08 W. P. No. 33420 of 2006