IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10-09-2008 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE K.KANNAN W.P.NO.1755 of 2008 and M.P.NOS.1 and 2 of 2008 1.Union of India represented by the Chairman, Railway Board, Ministry of Railways, Government of India, Rail Bhavan, New Delhi. 2. The Chief Personnel officer, General Manager's Office, Southern Railway, Parktown, Chennai 600 003. 3. The Deputy Chief Personnel Officer, Personnel Branch, Central Workshops, Southern Railway, Ponmalai, Trichy 620 004. ...Petitioners Vs. 1.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai 600 104. 2. S.Rangarajan ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the entire records of the first respondent in O.A.NO.517 of 2006 including the order dated 18.7.2007 and the consequential corrigendum dated 13.8.2007 made in O.A.NO.517 of 2006 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners:Mr.V.G.Suresh Kumar For Respondent No.2: Ms.Y.Kavitha for Mr.P.V.S.Giridhar O R D E R K.KANNAN,J Heard Mr.V.G.Suresh Kumar, learned counsel appearing for the petitioners and Ms. Y.Kavitha, learned counsel appearing on behalf of Mr.P.V.S.Giridhar for respondent No.2. Disposition before Tribunal: 2.The order under challenge before us is the order of the Central Administrative Tribunal dated 18.7.2007 passed in O.A.No.517 of 2006. The impugned order directs the Railway Administration to grant pro-rata pension to the second respondent, who was applicant before the Tribunal with effect from 22.11.1975, as well as gratuity with all attendant benefits including the arrears of pay flowing therefrom. Facts in brief: 3. The facts as stated in the application before the Tribunal were that the applicant was undergoing training as 'Apprentice Mechanic' from 31.10.1955 to 5.1.1961 and was posted to the working post on 6.1.1961. During the period of apprenticeship, he was paid Rs.55/- p.m. in grade Rs.55-3-67 and posted to the Foundry Shop, Central Workshop, Golden Rock, Tiruchirappalli from 31.10.1955 and after undergoing training at various places for five years up to 5.1.1961, he was absorbed as Journeyman for a period of six months on a pay of Rs.150/- p.m. in the grade of Rs.150-240 from 6.1.1961 and thereafter promoted as Charge-man Grade 'C' in the scale of Rs.205- 280 from 28.9.1961. He resigned his post on 31.12.1966 voluntarily and sought employment with Public Sector undertaking viz.,BHEL and superannuated in the year 1994. 4. His further contention was that his period of service from the date of regular absorption from 6.1.1961 till the date of his voluntary resignation was 5 years 11 months and 25 days and the period when he was an apprentice from 31.10.1955 to 5.1.1961, was also to be reckoned as qualifying service. On such a basis, he should be found entitled to pro-rato pension on the original direction of the Tribunal in O.A.NO.60 of 2001 to the Railway Administration to consider his representations dated 22.6.2000 and 30.9.2000. By communication dated 14.1.2001, his request was denied and he filed the O.A.NO.17 of 2006 before the Tribunal in July, 2006. The Tribunal allowed the application and granted the relief as prayed for. https://hcservices.ecourts.gov.in/hcservices/ Reasoning of the Tribunal: 5. While allowing the application, the Tribunal considered the fact that the original order of appointment mentioned the grade as Rs.55-3-67 and used an appellation "pay" and did not make any reference to stipend . It had adverted to a ruling of the Bangalore Bench of Central Administrative Tribunal in a similar matter where the period of apprenticeship was found as eligible to be counted for pension. It rejected the contention made on behalf of the Railways referring to Circular dated 17.4.1984 making possible only for persons who retired after the date of circular to claim pension. According to the Tribunal, the correct interpretation of the circular would be that the pension cases that were settled after the date of circular were covered by the relaxation. It is this order that is in challenge before us. The case can be disposed of by adverting to each of the contentions raised by counsel on both sides: (i) Mode of Recruitment: 6. The Indian Railway Establishment Manual sets out a specific rule for the method of recruitment for Apprentice Mechanic. The relevant rule is as follows: "33.Recruitment- Recruitment as apprentice mechanics will be to feed supervisory categories. These candidates will be required to deposit a security of Rs.50. Qualification-(a) Age-between 15 and 19 years (b) Education- Matriculation or its equivalent examination with mathematics and science. Training-Apprenticeship for five years, stipend Rs.55-3-67. (ii)stipend, not pay: The rule sets out the scale Rs.55-3-67 as only a stipend and not pay. The successful completion of the apprenticeship alone entitles the person to draw salary in the grade of Rs.150-225. Indian Railway Establishment Manual stipulates under Chapter XXIV in Para 2405 that during the period of training apprentices are entitled to such stipend and allowances as may be prescribed for them from time to time. The expression 'allowances' ruled out any other mode of understanding the remuneration as a scale of pay. (iii) Reference to age: If we see the age qualification for 'Apprentice Mechanic , it states that as between 15 and 19, there could be no permanent employment in a Public Sector undertaking normally in recognised https://hcservices.ecourts.gov.in/hcservices/ scale of pay for a person less than 18 years of age. (iv) Scale of pay in the next grade: After the completion of period of apprenticeship, next grade in regular scale of Rs.150-225, which is a quantum jump from the stipend. (v) Introduction of pension scheme- Non-exercise of option: It is contended on behalf of the Railways that the pension scheme had been introduced in the Railways in the year 1957 and it provided for option to be exercised either to claim Pension or Provident Fund and the applicant had exercised an option to receive Provident fund and secured Rs.805/- as provident fund optee at the time of voluntary resignation. By such conduct, the applicant had forfeited the right to claim any pension. The employer can validly fix a cut-off date for introducing any new pension scheme as laid down in in Union of India Vs. V.S.R.Dhingra (2008) 2 SCC 29 and several earlier decisions. What could be discriminatory, that would stand foul of Article 14 of the Constitution, as laid down in D.S.Nakara Vs. Union of India (1983) 1 SCC 305 is only introduction of a benefit retrospectively (or prospectively) fixing a cut off date arbitrarily, thereby directing a single homogeneous class of pensioners into two groups and subjecting them to different treatment. On the first occasion in 1957, when the scheme was introduced, the petitioner has not exercised the option. In 1984, when pension scheme was extended to persons who continued in service with Railways, he was not in employment with Railways. Obviously, he did not qualify himself to claim pension by treating the period of apprenticeship as qualifying service. 7. The contention made on behalf of the respondent that since in the first order of appointment issued to the respondent, a reference has been made only to "pay" and not to stipend, it is determinant of the fact that the period of apprenticeship should count only for qualifying number of year of service for the purpose of converting him as entitled to pro-rata pension. It is submitted on behalf of the respondent and which has been accepted by the Administrative Tribunal ,that the Bangalore Bench has already held that the period of apprenticeship should also count for qualifying service. We do not feel inclined to accept the said view as correct, in view of the specific rule as cited above which disallows the period of apprenticeship from reckoning the qualifying number of service. https://hcservices.ecourts.gov.in/hcservices/ 8. Mr.G.Suresh Kumar also draws our attention the circular issued by the Railway Board to the effect that in the matter regarding grant of retirement benefits to permanent railway servants and permanently absorbed in public sector undertaking subsequently from Railway service, who was not a pension optee at the time of his permanent absorption in public sector undertaking, would not be covered under the provisions of the order dated 7.4.1995. The said order itself refers to the Board's proceedings setting out guidelines for ascertaining the class of persons who would be entitled for pro- rata retirement pension on absorption in a public sector undertaking. The counsel for the respondent contends that the said circular was quashed by the decision of the Administrative Tribunal at Bangalore. We have not had the benefit of reasoning of the so called order of the Tribunal. But, even without reference to the said circular, our decision could not be deflected to take any other view on account of the reasoning we have adopted in leaving out of reckoning the period of service during apprenticeship. A subsequent circular No.38/2003 reiterates the position thus: "The matter regarding grant of retirement benefits to permanent railways servants governed by CPF/SRPF Scheme and permanently absorbed in Public Sector Undertaking etc., has been examined in consultation with DOP & PW who have clarified that such employees permanently absorbed in Public Sector Undertaking etc., either prior to 21st September 1967 or on or after 21st September 1967 are not covered by the instructions contained in Board's letter of even number dated 7th April 1995. Accordingly, any Railway servant, who was not a pension optee at the time of his permanent absorption in Public Sector Undertakings etc., would not be covered under the provisions of the orders dated 7th April 1995. The corrigendum issued vide Board's letter of even number dated 25th June 1997 may, therefore, be treated as withdrawn. 9. Rule 407 for reckoning of service with reference to the manual of Railway Pension Rules 1950 describes the periods which are not treated as service. The period of service in temporary capacity not followed without break by confirmation or permanent pensionable post, is referred to as one of the categories where the period of employment would not constitute service for pensionary benefits. Explanation 3 to the said rule is to the effect "in the case of temporary or permanent Railway servants who are appointed as apprentice and are thereafter absorbed permanently in the post/service for which they are apprentices, the period of apprenticeship will be treated as dies-non. i.e. neither constituting break in service nor counting as qualifying service during that https://hcservices.ecourts.gov.in/hcservices/ period, if they were paid stipend and not pay under Rule 2015". 10. The relevant rule relating to recruitment refers only to a stipend and merely because it sets out a scale Rs.55-3-67, it cannot be understood as 'pay'. Nor indeed by a mere reference to 'pay' in the appointment order, contrary to the Rule , could it be treated as 'pay'. The Rule relating to payment of pension, the age of the person qualified to be an apprentice, the next scale after the completion of apprenticeship, and the non-exercise of option for pension scheme all conjointly go to establish that the respondent is not entitled to any pro rata pension. Even the specification of a cut off date for application of he pension benefit by reference to the circular dated 17.4.1984 makes the respondent ineligible for the relief sought for. The reasoning of the Tribunal on this aspect is also wrong. Denial of pro-rate pension, if discriminatory: 11.The last submission made on behalf of the counsel for the respondent is that there are other persons similarly placed who had been granted pro-rata pension. In particular,counsel for the respondent would draw our attention to persons by names B.Rajagopalan, B.Muthu Srinivasan who had been appointed as apprentice Mechanics on 31.10.55 and 21.10.57 respectively and they had been granted pension including the period of service as apprentice. 12. The said instance cannot afford any parallel situation in view of the fact that said employees had continued in railways and were in service at the time when amended pension scheme was introduced. No other instance of discrimination have been pointed out to us. Indeed, there cannot be any equality on any aspect that offends rule or any matter that is contrary to law. Conclusion: 13. In these circumstances, we are of the view that the reasoning adopted by Central Administrative Tribunal in so far as it has permitted pro-rata pension to be paid with other benefits is contrary to rules and cannot be sustained. We accordingly, set aside the order of the Central Administrative Tribunal and allow the writ petition. No costs. Consequently, connected M.Ps. are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ VJY To 1.Union of India represented by the Chairman, Railway Board, Ministry of Railways, Government of India, Rail Bhavan, New Delhi. 2. The Chief Personnel officer, General Manager's Office, Southern Railway, Parktown, Chennai 600 003. 3. The Deputy Chief Personnel Officer, Personnel Branch, Central Workshops, Southern Railway, Ponmalai, Trichy 620 004. 4.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai 600 104. +1 cc To Mr.V.G.Suresh Kumar, Advocate, SR.51913 +1 cc To Mr.P.V.S.Giridhar, Advocate, SR.51480 W.P.NO.1755 of 2008 kj [co] gkg/18.9 https://hcservices.ecourts.gov.in/hcservices/