IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9212 of 2006 1. The Union Of India through Commissioner of Central Excise, Patna 2. The Commissioner, Custom, Patna 3. Deputy Commissioner, Custom (H), Patna 4. Assistant Commissioner, Custom (Division) Muzaffarpur ……… Respondents Applicants Versus 1. Parmila Devi w/o Late Bindeshwar Paswan resident of Mohalla Brahampura, Sanjay Cinema Road, Police Station Brahampura, District Muzaffarpur ………..Applicant Respondent 2. Central Administrative Tribunal, Patna Bench, patna through its Registrar ………. Respondents ----------- For the Petitioners : Mr. Sanjay Kumar, C.G.C. For the Respondents : Mr. Pramod Manbansh, 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. The Government of India, Department of Personnel and Training, framed the scheme called Casual Labourers (Grant of Temporary status and Regularization) Scheme of Government of India – 1993 effective from 1st September, 1993. It reads thus: i. Wages at daily rates with reference to the minimum of the pay scale for a corresponding regular group D official including DA HRA and OCA. ii. benefits of increments at the same rate as applicable to Group D employee would be taken into account for calculating prorate wages for every one year of service subject to performance of duty for at least 240 days 206 days in administrative offices observing 5 days week) in the year from the date of concernment of temporary status. iii. Leave entitlement will be on pro-rate basis at the rate of one day for every 10 days of work casual or any other kind of leave except maternity leave, will not be - 2 - admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits on encashment of leave on termination of service for any reason or on their quitting service. iv. Maternity leave to lady casual labourer as admissible to regular group `D‘ employees will be allowed 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization. v. 50% of the service rendered under Temporary status would be counted for the purpose of retirement benefits after their regularization. vi. After rendering three years continuous service after conferment of temporary status the Casual Labourers would be treated on par with temporary Group `D‘ employees for the purpose of contribution to the General Provident fund, and would also further be eligible for the grant of Festival Advance Food advance on the same conditions as are applicable to temporary Group `D‘ employees provided they furnish two sureties from permanent Govt. servants of their Department.‖ 2. Bindeshwar Paswan, husband of respondent no. 1 (original applicant) was employed as Casual Labourer in the office of the Assistant Commissioner, Customs, Muzaffarpur in the year 1991. He was conferred temporary status with effect from 1st September, 1993 under the aforesaid scheme. He died on 30th August, 2003. Thus, he, almost, completed ten years in that status. The claim of the respondent no. 1 for family pension came to be rejected by the department. That necessitated her to approach Central Administrative Tribunal, Patna Bench, Patna (for short, ‗the Tribunal‘) by filing Original Application (O.A. No. 266 of 2005. 3. The Tribunal, by its order dated 6th March, 2006, allowed the original application in part by directing the respondents therein (present petitioners) to calculate family pension admissible to - 3 - her on death of her husband, treating that he had served in a temporary service for one full year before his death, and to pay her arrears of pension and then continue to pay her family pension thereafter. 4. The legality and correctness of this order has been put in issue by the Union of India and its functionaries in this writ petition. 5. The Tribunal, inter alia, relied upon a decision given by its Jodhpur Bench in the case of Smt. Santosh Vs. Indian Council of Agriculture Research and others 2004[3] ATJ 42. The said decision has been reversed by the Supreme Court in Indian Council of Agricultural Research and anr. Vs. Santosh (2006) 11 Supreme Court Cases 157. The Supreme Court considered the matter thus: ―9. The scheme applicable to employees of Appellant I is very specific in its scope of operation. The scheme was issued by the Department of Personnel and Training and the scheme is called ‗the Casual Labourers Grant of Temporary Status and Regularization) Scheme of Government of India,1993‖ (in short the ―Scheme‖). The said scheme is applicable with effect from 1-.9-1993. Clause 4 reads as follows: ―4. Temporary status.—(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year which indicates one must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 day week). (ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group`D‘ posts. (iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be a daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work. 9iv) Such causal labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D‘ posts.‖ - 4 - 10. Similarly, clause 5 so far as relevant, reads as follows: * * * (v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularization.‖ 11. Clause 6 makes the position clear that no benefits other than trhose specified earlier in the scheme shall be admissible to casual labourers with temporary status. The relevant clause reads as follows; ―6. No benefits other than those specified above will be admissible to casual labourers with temporary status. However, if any additional benefits are admissible to causal workers working in industrial establishments in view of the provisions of the Industrial Disputes Act, they shall be continue to be admissible to such casual labourers.‖ 12. A bare reading of the provis9ions makes it clear that the Durga lal was not entitled to any family pension. The direction given by CAT for regularization is contrary to what has been stated in Umadevi case. At para 45 of the judgment it was noted as follows: (SCC pp.37-38) ―45. While directing the appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or causal in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain-- not at arm‘s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casual got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a - 5 - causal or temporary employment if one is not inclined to go in for such an employment.; It is in that context that on has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Articled 14 of the Constitution.‖ 13. Merely because compassionate appointment has been granted to the legal heir of Late Durga Lal that does not in any way improve the situation so far as the respondent is concerned. That is an appointment given to a legal heir even if it is accepted to be a regular, subsequent to the death of Durga Lal and such appointment cannot alter the status of late Durga Lal in service. The impugned judgment of the High Court confirming that of CAT cannot be sustained. Both the CAT‘s order and judgment of the High Court stand set aside. The appeal is allowed but without any order as to costs.‖ 6. The Supreme Court in the case of Santosh has held that as per Clause 6, no benefits other than those specified in the scheme is admissible to casual labourers with temporary status. 7. The counsel for the respondent no. 1 did not dispute that the scheme makes no provision for grant of family pension to the heirs of deceased casual labourer with temporary status. If that be so, we are afraid, in the light of Clause 6, of the scheme, no benefit other than those specified in the scheme is admissible to casual labourer with temporary status. - 6 - 8. The Tribunal seriously erred in applying sub – rule [2] to Rule 10 of CCS [Temporary Service] Rule, 1965 which, we are afraid, has no application. 9. In the light of the legal position laid down by the Supreme Court in the case of Santosh, the order passed by the Tribunal cannot be sustained. 10. We , accordingly, allow the writ petition, quash and set aside the order dated 6th March, 2006 passed by the Tribunal. O.A. No. 266 of 2005 stands dismissed. Rule is made absolute with no order as to costs. R.M. Lodha, CJ Kishore K. Mandal, J. Anil/