IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY THE FIRST DAY OF MAY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR. JUSTICE GHULAM MOHAMMED and THE HON'BLE MR. JUSTICE G. BHAVANI PRASAD Writ Petition Nos. 10838 of 2001, 15356 of 2001, 8793 of 2002, 20126 of 2004, 20896 of 2004, 6919 of 2005, 8640 of 2005, 15580 of 2005, 6090 of 2006, 13949 of 2006 and 24741 of 2007 W.P. No.10838 of 2001: Between: 1 The General Manager, South Central Railway, Secunderabad - 500 371. 2 The Divisional Railway Manager, South Central Railway, Vijayawada Division, Vijayawada - 520 001. ..... PETITIONERS AND A.Ramanamma, D/o. Venkaiah, R/o. V.N.R.Peta, Bitragunta - 524 142. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction particularly one in the nature of Writ of Certiorari declaring the judgment dated 21-11-2000 in O.A.No.1726 of 1999 on the file of the Central Administrative Tribunal of the Hyderabad Bench as bad, illegal, void and quash the same. Counsel for the Petitioners: MR.R.S.MURTHY Counsel for the Respondent : MR.G.SIMHADRI W. P. No.15356 of 2001: Between: 1 Union of India, Rep. by its General Manager, South Central Railway, Rail Nilayam, Secunderabad. 2 Divisional Railway Manager, South Central Railway, Guntakal Division, Guntakal, Anantapur. 3 Sr. Divisional Personnel Officer, South Central Railway, Guntakal Division, Guntakal, Anantapur. ..... PETITIONERS AND Smt. Ayyamma, Gangwoman Khalasi, Under Senior Section Engineer, S.C.Railway, Raichur, Karnataka. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ Order or Direction or particularly one in the nature of Writ of Certiorari declaring the Judgment dated 07/07/2000 in O.A.No.1274/99, dated 19/09/2000 in R.A.No.64/2000 in O.A.No.1274/99, dated 27-2-2001 and 8-3-2001 of M.A. No.163 of 2001 in R.A. No. 64/2000 in O.A.No.1274/99 on the file of the Central Administrative Tribunal of Hyderabad Bench as bad, illegal, void and quash the same. Counsel for the Petitioners: MR.R.S.MURTHY Counsel for the Respondent: W. P. No. 8793 of 2002: Between: S.Kalavathi W/o Late S. Sathaiah Balaiah R/o H.No.17-377 (New) Old No.17-207 J.L.N.S Nagar,Lallaguda PO Secunderabad-500 017 ..... PETITIONER AND 1 Union Of India rep by its General Manager South Central Railways 3rd Floor Rail Nilayam Secunderabad --071 2 Union of India rep by The Chief Personnel Officer South Central Railway 4th Floor ,Rail Nilayam Secunderabad-017 3 Union Of India rep. by The Divisional Railway Manager South Central Railway, Hyderabad Division Secunderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ of Mandamus or any other appropriate writ order or direction in OA.No.807 of 2001 Dt: 27-9-2000 of RA 76 of 2001 Dt: 9-1-2002 on the file of the Central Administrative Tribunal Bench as illegal arbitrary, violation of rules and consequently direct the respondents 1& 2 to sanction family pension to the widow of the deceased railway servant and also appointment on the compassionate grounds to her son Sri Jagadeesh under as the action taken by the respondent is illegal arbitrary and violation of principles of natural justice under rules 14, 16, & 21 of Constitution of India. Counsel for the Petitioner: MR.G.SANYASI RAO Counsel for the Respondents: MR.R.S.MURTHY W. P. No. 20126 of 2004: Between: 1 Union of India, rep by the General Manager, South Central Railway, Secunderabad - 500 371. 2 The Divisional Railway Manager, South Central Railway, Vijayawada. ..... PETITIONERS AND Smt. Ch. Koteswaramma, W/o. Late Ch. Satyanarayana, R/o. Bogole Bazar, Bitragunta - 524 141. Nellore District, Andhra Pradesh. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue appropriate writ order or direction particularly one in the nature of writ of certiorari declaring the judgment dated 01-04- 2004 in OA 996/2003 on the file of the Central Administrative Tribunal, Hyderabad Bench as bad, illegal, void and quash the same. Counsel for the Petitioners: MR.R.S.MURTHY Counsel for the Respondent: MS. HEMA JAISWAL W. P. No. 20896 of 2004: Between: 1 The General Manager, South Central Railway, Secunderabad 2 The Divisional Railway Manager, South Central Railway, Vijayawada Division, Krishna District ..... PETITIONERS AND Smt.K.Malleshwari, W/o Late K. Ravi, C/o K.Raja Rao, Chiravvuru Village, Tadepalli mandal, Krishna Canal Post, Guntur District .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an Order, writ or direction more particularly one in the nature of Writ of Certiorari by calling that all the records relating to OA No.1638/2003 on the file of the Central Administrative Tribunal, Hyderabad Bench and declare the order dated 07-07-2004 in O.A.No.1638/2003 as illegal, arbitrary and against the rules in force and to the settled principles of law and quash or set aside the same. Counsel for the Petitioners: MR.A.KRISHNAM RAJU Counsel for the Respondent: MR.G.SANYASI RAO W. P. No. 6919 of 2005: Between: Smt. Shantha Kumari, W/o. Late N. Parsu Ramulu, Nagapural Village, Pedaparapudi Mandal, Krishna District. ..... PETITIONER AND UOI rep. by its, The General Manager, South Central Railway, Secunderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ of mandamus or any other appropriate writ, order or direction in O.A.No.691/2003 dt. 5.3.2004 on the file of Central Administrative bench as illegal, arbitrary, violation of rules and consequently direct the respondents to sanction family pensionary benefits to the widow of the deceased railway servant from the date of death i.e. 3.11.2001 with consequential arrears, as the action taken by the respondent is illegal, arbitrary and violation of principles of natural justice under Articles 14, 16 and 21 of constitution of India. Counsel for the Petitioner: MR.PADMALATHA YADAV Counsel for the Respondent: MR.R.S.MURTHY W. P. No. 8640 of 2005 Between: Smt. V. Seetha, W/o. Raja Rao, R/o. Aurangabad vill, Kovvur Mandal, W.G.District. ..... PETITIONER AND UOI rep. by the General Manager, South Central Railway, Secunderabad. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in OA.No.83/03 dt. 13.6.2003 on the file of Central Administrative Tribunal bench as illegal, arbitrary, violation of rules and consequently direct the respondent to sanction family pensionary benefits to the widow of the deceased railway servant from the date of death i.e.,15.11.1987 with consequential arrears, as the action taken by the respondent is illegal, arbitrary and violation of principles of natural justice under Art. 14, 16 and 21 of the Constitution of India. Counsel for the Petitioner: MR.S.R.SANKU & KAVITI MURLI KRISNA Counsel for the Respondent: MR.R.S.MURTHY W. P. No. 15580 of 2005 Between: Smt. Kanamma W/o Late, V. Pothuraju Aurangabad Village, Kovvur Mandal, East Godavari District ..... PETITIONER AND UOI rep by (1) The General manager, South Central Railway, Secunderabad (2) The Divisional Railway Manager S.C. Railway Vijayawada, .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ of Mandamus or any other appropriate Writ, order or direction in OA. NO. 84/03 dated 9-06-2003 on the file of Central Administrative bench as illegal, arbitrary, violation of rules and consequently direct the respondents to sanction family pensionary benefits tot he widow of deceased railway servant from the date of death i.e. 4-11-1977 with consequential arrears, as the action taken by the respondent is illegal, arbitrary and violation of principles of natural justice under Art 14, 16 and 21 of constitution of India. Counsel for the Petitioner: MR.S.R.SANKU & KAVITI MURLI KRISNA Counsel for the Respondents: MR.R.S.MURTHY W. P. No. 6090 of 2006 Between: T. Raja Reddy Ex. Head Clerk, INCOM/O/SC, S/o T.S.N. Reddy H. No. 44-120/3, Tirumala Nagar, Near ZTS Moulali, Hyderabad ….PETITIONER AND UOI Rep by its 1. The General Manager, South Central Railway, Secunderabad 2 The Chief Personnel Officer, Rail Nilayam South Central Railway, Secunderabad 3 The Chief Operating Manager (Traffic) Second Floor, Rail Nilayam South Central Railway Nilayam South Central Railway, Secunderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ of Mandamus or any other appropriate Writ order or direction in O.A. No. 1124/2004 dated 24-03-2005 of Central Administrative Tribunal Bench of Hyderabad and set a side the same along with impugned letter No. P(T) 407/Counting of CL Service of GM/P/SC dated 27-9-2002 and further direct the respondent to add 50% of the Causal service tot he regular Service and arrange to pay consequential arrears in retrial dues and revise monthly pension w.e.f. 01-10-2002. Counsel for the Petitioner: MR.G.SANYASI RAO Counsel for the Respondents: MR.R.S.MURTHY W. P. No.13949 of 2006: Between: 1 Smt. Ch. Jyothi, Summer Water Woman(died) per LR, W/o. Late Ch. Koteshwar Rao, South Central Railway, Vijayawada Division, Krishna, Krishna District. 2 Ch. Nageswar Rao S/o. late Ch. Jyothi Nunna Bodapadu, 15-128, Vijayawada Rural, Krishna District (The 2nd petitioner brought on record as LR of deceased petitioner as per C.O. dt.31-7-2007 in WPMP 20164 if 2007) ..... PETITIONERS AND UOI Rep. by its 1. The General Manager, South Central Railway, Secunderabad. 2 Divisional Railway Manager, South Central Railway, Vijayawada. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ of Mandamus or any other appropriate writ, order or directions in O.A.No. 611/2005 dt. 27-4-206 on the file of the Central Administrative Tribunal of Hyderabad bench as illegal or arbitrary and violation of rules and Principles of natural justice under Art 14, 16 of the Constitution of India and consequently set a side the same along with impugned order no. P500/Settlement/Appeals/87 dt. 15-6- 2004 of GM/SC and further direct the respondent to consider for sanction the family pension to the widow, petitioner the deceased husband from the date of death and pay consequential arrears with costs. Counsel for the Petitioners: MR.G.SANYASI RAO Counsel for the Respondents: MR.R.S.MURTHY W. P. No. 24741 of 2007: Between: UOI, Rep.by its 1. The General Manager, South Central Railway, 3rd Floor, Railnilayam, Secunderabad 2. The Divisional Railway Manager, S.C.R Vijayawada, Krishna Dist. ..... PETITIONERS AND 1 Smt.S.Mary, W/o.Late Mariyanna, R/o.Rly.Orts.624-K, Bogguline Colony,Vijayawada, Krishna Dist 2 Central Administrative Tribunal, Hyderabad Bench,Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order, writ or direction more particularly one in the nature of writ of Certiorari by calling that all the records relating to OA No.762/06 on the file of the Central Administrative Tribunal, Hyderabad Bench (2nd Respondent) and declare the order dt.17-04- 2007 in OA No.762 as illegal, arbitrary and against the rules in force and the settled principles of law and quash or set aside the same. Counsel for the Petitioners: MR.A.KRISHNAM RAJU Counsel for the Respondents: The Court made the following : COMMON ORDER: (Per Hon’ble Sri Justice G. Bhavani Prasad) Entitlement to or eligibility for pension and family pension of casual labour with temporary status vis-à-vis temporary railway servant is more or less the common question arising in this batch of 11 writ petitions and hence, they are heard and being disposed of by this common order with consent and at request. The factual background for each of these writ petitions is as under: W.P. No.10838 of 2001: A. Ramanamma worked as Senior Gangwoman under PWI/BTTR in Bitragunta section of South Central Railway. The Chief Medical Superintendent, Vijayawada found her unfit for further service under Medical Certificate No.89, dated 26-05-1994 and she was discharged from service with effect from 26-05-1994. She was paid only small amounts towards retiral benefits and was not paid invalid pension. She represented to the Divisional Manager, South Central Railway, Vijayawada on 02-01-1999, that she was in continuous employment of the railways since 1965 and having completed the qualifying service of more than 10 years, she was entitled to invalid pension. However, the General Manager, South Central Railway, Secunderabad informed by a letter, dated 01-09-1999 that her net qualifying service was only 9 years and hence, she was paid service gratuity, retirement gratuity, Central Government Insurance and leave encashment as per rules, but she was not entitled to pensionary benefits from 1965, as she worked as casual labour on daily wages and was not entitled for monthly rates due to break in service. Then, she filed O.A. No.1726 of 1999 before the Central Administrative Tribunal, Hyderabad Bench (for short “the Tribunal”) contending that in W.P. No.1174 of 1982, the High Court accepted her employment as casual labour since 1965 and found her retrenchment in 1979 to be illegal. The Railway Administration was directed to pay arrears of wages up to the end of June, 1982. She further contended that even as per the Railway Board’s letter, dated 14-10-1980, half the service rendered by casual labour after attainment of temporary status on completion of 120 days continuous service would be allowed to be counted towards pension, if such service was followed by absorption as a regular employee. But her service from 1965 to 1982 was not counted. As per Para-2001 of IREM (Indian Railway Establishment Manual) Volume-II, casual labour engaged in open line for more than 120 days without break are given temporary status, entitled to 1/30 of the minimum of the appropriate pay scale plus dearness allowance and as per Para-2005, 50% of such service shall be counted for purpose of pensionary benefits. The Supreme Court also directed payment of initial stage of pay as a temporary employee, to casual labour completing 120 days. The Central Administrative Tribunal, Hyderabad Bench also held similarly in O.A. No.1020 of 1992, and the order issued on 09-06-1994 cannot have retrospective effect from 26-05-1994 in discharging her from service. Therefore, she filed the application O.A. No.1726 of 1999 before the Tribunal to direct payment of pensionary benefits taking into account 50% of the service rendered from 1965 to 09-06-1994. The Railway Administration contested the claim stating that Ramanamma was granted temporary status only with effect from 01-01-1983, which cannot be challenged after 16 years, as the same is barred by limitation under the Administrative Tribunals Act, 1985. Though she worked on daily wages as casual labour from 13-01-1965 with intermittent breaks, she was screened and absorbed as Gangwoman with effect from 16-09-1987. After she was declared medically unfit and discharged from service, she was paid all settlement dues as per rules. Casual labour engaged in open line and on project works stand on a different footing and hence, Ramanamma was contended to be not entitled to the claim. The Tribunal referring to its decisions in similar cases, holding that the total service for conferment of temporary status is required to be taken into account, allowed the application accordingly. The Railway Administration filed the writ petition to quash the said judgment dated 21-11-2000 contending that the judgment was based on the judgment in O.A. No.82 of 1990 in respect of project casual labour and the Supreme Court reversed the same in Union of India v. K.G. Radhakrishna Phanikar[1] in tune with the law declared in Union of India and others v. Rabia Bikaner[2]. The direction of the Tribunal violates Para-2005 (c) of IREM Volume-II and the Master Circular No.54 and Rule 3(23) of Railway Services (Pension) Rules, 1993. A railway servant does not include casual labour and the Supreme Court also held in V. Kameswari v. Union of India[3] that casual labour are entitled to benefits only after regular absorption. Similar was State of Haryana v. Piara Singh[4]. The Tribunal deviated from its own decisions in other cases and its judgment has to be reversed. In W.P.M.P. No.13468 of 2001, the operation of the impugned judgment was suspended till further orders, on 07-06-2001. W.P. No.15356 of 2001: Ayyamma filed O.A. No.1274 of 1999 before the Central Administrative Tribunal, Hyderabad Bench claiming that her husband Adam, who was initially engaged as casual labour, was granted temporary status and monthly scale of pay in the grade of Gangman with effect from 21-07-1969 in PWI/BG/Guntakal. Adam’s name was included in the list of APS Gangmen eligible for empanelment and absorption when permanent vacancies of gangmen arose on 31-12-1980. However, Adam was called for screening test after two years, but he could not attend due to health reasons. In a similar situation, benefit was extended to one C. Narayana and the benefit of compassionate appointment to his ward and family pension to his wife were granted on the basis of deemed empanelment of C. Narayana who was also not screened by the Screening Committee prior to his death on 21-12-1989. Though Ayyamma made several representations for similar treatment, her request was rejected by a memo, dated 20-08-1992 on the ground of Adam not appearing before the Screening Committee on 22-12-1982 and 01-02-1983. Hence, she requested for grant of family pension to her. The Railway Administration resisted the claim stating that Adam was initially engaged as a casual labour on daily wages and was granted temporary status on completion of 180 days of service. He was irregular and was frequently absenting himself from duty. He did not attend the screening test on 22-12-1982 and 01-02-1983 and was, in fact, continuously absent from duty. He did not produce any medical certificate for his sickness and his qualifying working days were reduced due to his continuous unauthorized absence. Hence, he became ineligible for being called for the screening test. Ayyamma is not entitled to family pension, as Adam expired while working as casual labour with temporary status, but she was appointed as casual labour on compassionate grounds and after completion of 120 days of continuous service, temporary status was granted to her and she was given monthly pay as per scales. The Tribunal noted in its order dated 07-07-2000 that C. Narayana referred to by Ayyamma had attended the screening test on 13-06-1988 before his death, but it observed that temporary service without interruption till confirmation would count for qualifying service for pension. Referring to the decisions of other Benches, the Tribunal held that Adam was entitled to receive pensionary benefits by treating the entire service from the date of joining as qualifying service under the Pension Rules. Adam was also considered to be included within the meaning of ‘railway servant’ as given in the Pension Rules. The Tribunal also felt that not undergoing the screening test is not a disqualification for pension even if it comes in the way of regularization or subsequent promotion. The Tribunal, therefore, directed the respondents before it to work out the pensionary benefits of Adam with effect from the date on which temporary status was conferred on him and the consequent family pension to which Ayyamma becomes entitled and pay within three months. The period of unauthorized absence was, however, permitted to be excluded from the qualifying service and the consequential pensionary benefits. Review applications by the Railway Administration also failed before the Tribunal. The Railway Administration filed the writ petition challenging the said orders contending that Adam rendered service as casual labour with temporary status for 5 years 4 months and 22 days only and is not entitled to pension. Ayyamma appointed on compassionate grounds on daily wages from 26-04-1993 was granted temporary status from 24-08-1993 on completion of 120 days of continuous service and was absorbed in Group-D post of Gangwoman Khalasi and is continuing as such. Adam was unauthorisedly absent from 07-02-1982 to 01-08-1991 till his death, which amounts to abandonment of service without any intimation. In the impugned order of the Tribunal, it was noted that the Supreme Court in Union of India v. Radhakrishna Phanikar (1 supra) reviewed the order of Chennai Bench of the Tribunal and held that no retiral benefit was available to the widow of the casual labour who had not been regularized till his death. Union of India v. Rabia Bikaner (2 supra), Kameswari v. Union of India (3 supra), State of Haryana v. Piara Singh (4 supra), etc., declared that a casual labour not appointed to a post, has no right for retiral benefits. Only half of the service after attaining temporary status will qualify for pensionary benefits after absorption. The Tribunal took a different view in some other cases and hence, the impugned orders have to be set aside. The impugned judgment of the Tribunal was suspended as per orders in W.P.M.P. No.19212 of 2001, dated 31-07-2001. W.P. No.8793 of 2002: S. Sathaiah Balaiah was appointed as casual labour on 19-05-1969 and he attained temporary status on 19-11-1973 as CMR carpenter. He attained CMR Artisan status with effect from 23-01-1980 after passing the trade test and he was declared to be working as CMR Khalasi after trade testing and passing different cadres of skilled posts. He was given CMR scale in Artisan cadre with effect from 26-03-1980. He died on 04-01-1981 and due to his continuous service from 15-05-1969 (19-05-1969 ?) to 04-01-1981, he was eligible for all pensionary benefits. He left his wife S. Kalavathi, four sons and two daughters. Kalavathi represented to the Administration for compassionate appointment to her son and settlement of pensionary benefits. No action was taken for sanction of pensionary benefits and settlement of dues and the Pension Rules and the Family Pension Scheme entitle Kalavathi to the sanction of pensionary benefits and she filed O.A. No.807 of 2001 before the Central Administrative Tribunal, Hyderabad Bench for the purpose. The Administration opposed the request, as the request was hopelessly barred by time being filed 20 years after the cause of action without any reasons for the delay. The record showed that Sathaiah Balaiah was appointed on 19-11-1973 and his employment till his death on 04-01-1981 was temporary in nature. He was not regularized in any of the regular posts and he or his widow were not eligible for any pensionary benefits. Sathaiah Balaiah or Kalavathi are not entitled to any pension or family pension in the light of the decisions of the Apex Court and hence, the Railway Administration desired the request to be negatived. The Tribunal rendered the impugned order, dated 27-09-2001 and considered the deceased to be not a railway servant in terms of Para (Rule ?) 3(23) and is not a substitute in terms of Rule 3(26) of the Railway Pension Rules, 1993 and hence, the deceased or Kalavathi are not entitled to pension. The Tribunal followed Union of India v. Rabia Bikaner (2 supra), in which it was held that the widow of the casual labour in railway establishment, who died after acquiring temporary status but had not been regularized till death, shall not be entitled to family pension and hence, dismissed the petition. A petition for review in R.A. No.76 of 2001 was dismissed on 09-01-2002. Kalavathi filed the writ petition contending that Sathaiah Balaiah put in 11 years 8 months service including 4 years 6 months with temporary status and the balance regular service as carpenter. She and her four sons and two daughters are facing starvation and they are eligible for pension and family pension. The decisions of the Apex Court and the High Court upheld such entitlement and hence, she desired a direction for grant of family pension and compassionate appointment to her son, Jagadeesh. W.P. No.20126 of 2004: Ch. Satyanarayana was appointed as a casual labour with effect from 10-09-1963 and was granted temporary status with effect from 10-05-1967.