IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 15756 of 2006(S) -------------------------- OA.440/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, PARK TOWN, CHENNAI-3. 2. THE SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM. 3. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THYCAUD, THIRUVANANTHAPURAM. 4. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF RAILWAYS, RAILWAY BHAVAN, NEW DELHI. BY ADV. SMT.M.R.SREELETHA, SC, RAILWAYS RESPONDENTS: --------------- 1. C.P. SEBASTIAN, CHATHIYALIL HOUSE, ULLANAD P.O., ANTHINAD VIA KOTTAYAM-686 651. 2. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ADV. SRI.GEORGEKUTTY MATHEW FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.3.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.15756/2006 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN T.I.MADHAVAN VS.UNION OF INDIA'S CASE. EXT.P2: COPY OF THE O.A.NO.440/2003 FILED BY THE 1ST RESPONDENT BEFORE THE C.A.T., ERNAKULAM. EXT.P3: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER'S HEREIN IN THE ABOVE O.A. EXT.P4: COPY OF THE REJOINDER FILED BY THE APPLICANT IN THE ABOVE O.A. EXT.P5: COPY OF THE ORDER DT.24.2.2006 OF C.A.T IN O.A.NO.440/2003. EXT.P6: COPY OF THE ORDER OF CAT, MADRAS DT.29.12.2003 IN O.A.NO.980/2002. EXT.P7: COPY OF THE RAILWAY BOARD'S ORDER DT.19.12.2003. EXT.P8: COPY OF THE C.34/7/7/105 DATED 18.12.1978 ISSUED TO SRI.V.MANI. EXT.P9: COPY OF THE FOIL OF REMITTANCE OF THE SECURITY DEPOSIT. EXT.P10: COPY OF THE OFFICE ORDER NO.P(RR) 19/99 DT.21.6.1999 ISSUED BY THE 1ST PETITIONER. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. --------------------------------- W.P(C).No.15756 OF 2006 --------------------------------- Dated this the 20th day of March, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in O.A.No.440/2003 before the Central Administrative Tribunal, Ernakulam Bench, are the writ petitioners. The 1st respondent was the applicant. 2. The brief facts of the case are the following: The applicant was appointed as a Bearer on commission basis under the Railways on 22.1.1981. Later, on 1.12.1983, he was converted into a salaried Commission Bearer. As per the direction of the Apex Court in Ext.P1 judgment, the persons like applicant were absorbed into regular establishment. The applicant's turn arose for absorption in 1999 and he was absorbed on 8.7.1999. On coming to know that the service rendered by him on contract basis will not be reckoned for pensionary benefits, the applicant approached the C.A.T. by filing the aforementioned Original Application seeking W.P.(C) No.15756/2006 2 appropriate reliefs. During the pendency of the Original Application, he retired from service on 31.1.2004. The respondents, who are the writ petitioners herein, resisted the Original Application contending that the claim of the applicant is unsustainable in the light of the relevant rules. The Tribunal after hearing both sides disposed of the Original Application directing the writ petitioners to count 50% of the service rendered by him between 22.1.1981 and 8.7.1999 on contract basis. Aggrieved by the above direction, the respondents in the Original Application have preferred this writ petition. 2. The petitioners relying on rule 14 of the Railway Services (Pension) Rules 1993 submitted that the service rendered by the applicant as Bearer on commission basis cannot be counted for pensionary benefits. Special reference was made to Clause (v) of Rule 14, which says that employment under a covenant or a contract which does not specifically provide for grant of pensionary benefits cannot be counted. The applicant was originally engaged on contract basis subject to the conditions mentioned in Ext.P10. It is an order engaging a person similarly placed like the applicant. Since the said order W.P.(C) No.15756/2006 3 does not permit counting the service for pension, the claim of the applicant is unsustainable, it is submitted. 3. The learned counsel for the 1st respondent on the other hand relied on Clause (xiv) of Rule 14, which says that if an appointment on contract basis is followed by confirmation, the service on contract basis can be counted. The learned counsel also relied on Rule 24 of the aforementioned Pension Rules, which provides for counting of service on contract also for pension. Clause (xiv) of Rule 14 of the Railway Services (Pension Rules) reads as follows: “14. Periods which shall not be treated as service for pensionary benefits:- Periods of employment in any of the following capacities shall not constitute service for pensionary benefits, namely, - (i) ....................................... (xiv) on contract basis except when followed by confirmation.” Rule 24 reads as follows: “24. Counting of service on contract:- (1) A person who is initially engaged by the Railways on a contract and is subsequently appointed to the same or another post in a substantive capacity, W.P.(C) No.15756/2006 4 without a break in service, such contract period of service shall be treated like any other permanent service, in the railway and be taken into account for calculating for the pensionary benefits, subject to the conditions laid down in these rules,- (1) Provided that (i) the period of contract service, during which the Contract officer did not subscribe to the State Railway Provident Fund (Contributory), shall count to the extent indicated above, if during such period, the railway servant concerned did not receive any inflated rates of pay by reason of absence of any retirement benefits; (ii) if the railway servant concerned has subscribed to the State Railway Provident Fund (Contributory) during a period of contract service, he shall have the option either - (a) to refund the Government contribution in the Provident Fund together with interest thereon, and Special Contribution to provident Fund, if any, for the period in question and to count the contract service for pensionary benefits to the extent indicated above, or (b) to retain the Government contribution to the Provident Fund with interest thereon including any other compensation and Special Contribution to Provident Fund, if any, and not to count the period of contract service in question for pensionary benefits. W.P.(C) No.15756/2006 5 (2) The option, referred to in sub-clause (a) or sub-clause (b) of clause (i) of sub- rule (1), shall be exercised within three months from the date of issue of the order of confirmation of the railway servant concerned in a substantive post and if he is on leave on that date, within three months of his return from leave, whichever is later. (3) If no option is received from the railway servant within the period referred to in sub-rule (2), he shall be deemed to have opted for retention of monetary benefits referred to in sub-clause (b) of clause (ii) of sub-rule (1). (4) Where a railway servant (on contract basis ) who was admitted to the State Railway Contributory Provident Fund opts for the alternative in sub-clause (a) of clause (ii) of sub-rule (1) above, the amount of Government contribution together with interest thereon including any other compensation standing to his credit in State Railway Provident Fund (Contributory) and the Special Contribution to the Provident Fund, if any, shall be surrendered and such amount shall be credited to the Consolidated Fund of India: Provided that in a case where the Government contribution and the Special Contribution, if any, have been paid to the railway servant, he shall be required to refund the amount received by him together with compound interest on the amount actually received from the date(s) of payment to the date of final refund, at the rate which would have been W.P.(C) No.15756/2006 6 applicable to the Government contribution, if that amount would have remained in the fund and earnest interest. In case where the railway servant dies before the entire amount is refunded, the amount which remains to be refunded shall be adjusted against the death gratuity which may become payable to the family of such railway servant.” In this case, we notice that the applicant worked on contract basis from 22.1.1981 to 8.7.1994. Thereafter, he was absorbed in regular service. So, going by Rule 14 (xiv) and Rule 24 of the Pension Rules, we find nothing wrong with the direction of the C.A.T. In the light of the above rules, we uphold the claim of the applicant to the extent the same was upheld by the Tribunal. In the result, the writ petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps