IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1144 of 2006 1. Union Of India through General Manager, East Central Railway, Hajipur. 2. Divisional Railway Manager, E.C. Rly. Sonpur 3. Senior Divisional Personnel Officer, E.C. Rly. Sonpur. 4. Senior D.F.M. E.C. Railway, Sonpur. 5. Executive Engineer (Con) E.C.Railway, Barauni. 6. Assistant Engineer (West), E.C.Railway, Barauni. …….. Petitioners. Versus 1. Bhutta Rai, Son of Late Ram Autar Rai, Resident of village- Dharamrathpur, Bathua, P.O.Dharamrathpur Bathua, P.S.Pusa, District-Samastipur, Ex-Gangman, E.C.Railway under S.E.(P.Way) Khagaria (Bihar). 2. The Registrar, Central Administrative Tribunal, Bihar, Patna. ----------- For the petitioners : Mr.D.K.Sinha, Senior Advocate Mr. Mahesh Prasad III, Advocate For the respondent no.1: Mr. M.P.Dixit, Advocate Mr. Nityanand Mishra, Advocate Mr. Sanjay Kumar Dixit, Advocate -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 16th October, 2008 Mr. D.K.Sinha, senior counsel for the petitioners did not dispute that the order of the Central Administrative Tribunal in the present writ petition is founded on the decision of the Andhra Pradesh High Court in the case of General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. and another Vs. Shaik Abdul Khader. The Andhra Pradesh High Court considered the matter thus: - 2 - “4. The arguments and counter arguments can be appreciated only after going through the relevant rules. Rule 31 of the Railway Services (Pension) Rules, 1993 lays down: “31 Counting of service paid from contingencies:- In respect of a railway servant, in service on or after the 22nd day of August,. 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely: (a) the service paid from contingencies has been in a job involving whole-time employment. (b) the service paid from contingencies should be in a type of work of job for which regular posts could have been sanctioned as posts of malis, chowkidars and khalasis: (c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a monthly basis and which, though not analogous to the regular scales of pay, bears some relation in the matter of payment to those being paid for similar jobs being performed at the relevant period by staff in regular establishment; (d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break: Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service book is available.” Subject to condition laid down in this rule, in respect of a railway servant half of the service paid from contingencies shall have to be taken into account for calculating pensionary benefits on absorption in regular employment. Now the question is, when a person gets a temporary status whether it could be said that he had been absorbed in terms of Rule 31 because after absorption the service shall have to be counted keeping in view Rule 31. 5. Now different provisions of Master Circular 54 of 1994 shall have to be gone into which a reference has been made by the Tribunal. Para-20 of the Master Circular No. 54 lays down: “20 Counting of the period of service of casual labour for pensionary benefits:- Half of the period of service of a casual labour (either than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1.1.1981, the benefit has also been extended to Project Casual Labour.” Reference has been made to another extract of para-2005 of Indian Railway Establishment Manual, Volume-II. Sub-para 2005(a) lays down: - 3 - “Casual labour including Project Casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitled to these benefits.” If this sub-para is read with para-20 and also with Rule-31, there remains no doubt that on absorption whole of the period for which a casual labour worked after getting temporary status would have to be counted and half of the period has to be counted of the period for which a casual labour worked without being absorbed. Once he is given temporary status that means that he has been absorbed in the department. Even para 2005(a) has been drafted in the same way because of the fact that even such casual labour who have attained temporary status are followed to carry forward the leave at their credit in full to the new post on absorption in regular service. Therefore, we have no doubt in our mind that once temporary status is granted to a person who is absorbed later on the regular service carries forward not only the leave to his credit but also carries forward the service in full. Half of the service rendered by him as casual labour before getting the temporary status has to be counted. Therefore, we do not feel that the Tribunal was wrong in coming to the conclusion it has although we may not agree with the reasons given by the Tribunal. The view taken by us is further strengthened by mandate of Rule 20 of the Railways Services (Pension) Rules lays down: “20. Commencement of qualifying service:- Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post; (a)…… (b)……” Therefore, we hold that the respondent was entitled to get the service counted in full from 1.1.83. He was also entitled to get half of the service counted before 1.1.83 from the date he had joined in the railways as casual labour.” 2. We are informed by the counsel for the respondent no.1 that - 4 - the decision of the Andhra Pradesh High Court in the case of Shaik Abdul Khader was challenged by Railways by filing a petition for Special Leave to Appeal and that the said Special Leave petition was not pressed before the Supreme Court. The copy of the order dated 24th March, 2006 passed by the Supreme Court was placed before us for perusal. 3. Moreover, we have been informed that this court in the case of the Union of India & others Vs. The Central Administrative Tribunal & others, CWJC No.9604 of 2006, wherein identical issues had been raised, has taken the same view as that of the Andhra Pradesh High Court. 4. For all these reasons, we are satisfied that this writ petition is liable to be dismissed and is dismissed with no order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil