WP(C) 2209/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA THE HON’BLE MR. JUSTICE P.K. SAIKIA JUDGEMENT AND ORDER (ORAL) B.K. Sharma, J Heard Mr. A. Dasgupta, learned counsel for the petitioner as wel l as Ms. U. Chakraborty, learned counsel representing the respondent Railways. 2. By means of this writ petition, the petitioner has challenged the judgme nt and order dated 10.1.2008 passed by the learned Central Administrative Tribun al, Guwahati Bench (hereinafter referred to as the Tribunal) in the Original App lication (OA) No. 98/2007, by which the application has been dismissed. 3. The short question which falls for our consideration is as to whether th e husband of the petitioner, Late Lutera Ram Goala, being in the employment roll of the Railways as casual employee with temporary status could be said to be a temporary and/or permanent Railway employee so as to entitle his wife i.e. the p etitioner family pension. 4. The husband of the petitioner was appointed in the construction wing of the N.F. Railways as casual motor vehicle driver. That was in the year 1985 and to be precise on 7.3.1985. Thereafter he was conferred with temporary status wit h effect from 1.3.1986. Although according to the petitioner, the husband of the petitioner was promoted as a Grade-II driver, but there is dispute relating to the same as the respondents have denied that he was so promoted. The petitioner’ s husband was sent for screening test towards consideration of his case for regu lar appointment. However, such screening as was ordered on 23.7.1994 could not b e held. Be it stated here that the husband of the petitioner was not the lone ca sual worker for such screening test. There were hundreds of such other casual em ployees. 5. While the husband of the petitioner was working as casual employee with the temporary status, he expired on 19.3.1997. By that time, he had rendered abo ut 12 years of service. Although the petitioner has been paid gratuity etc. on a ccount of death of her husband, but was not paid family pension. She agitated he r grievance relating to the same, but the same having not yielded any result, sh e approached the Tribunal by filing the aforesaid O.A. No. 130/2006. The O.A. ha ving been dismissed by the impugned judgment and order dated 10.1.2008, she has approached this Court invoking writ jurisdiction under Article 226 of the Consti tution of India. 6. Mr. Dasgupta, learned counsel for the petitioner, referring to the purpo rted promotion of the petitioner’s husband as driver Grade-II in the year 1990 ( 15.5.1990) submits that although the petitioner was appointed as casual employee , but he having been promoted during such casual employment, his services are re quired to be construed as that of a substituted employee and consequently the pe titioner is entitled to receive family pension. In this connection, he has place d reliance on the decision of the Apex Court reported in (1996) 7 SCC 27 (Prabha vati Devi Vs. Union of India & Ors.). 7. Countering the above argument, Mrs. U. Chakraborty, learned counsel repr esenting the Railways, submits that the petitioner’s husband being not a regular Railway employee, she is not entitled to receive family pension. Referring to t he detailed written argument submitted by her, she submits that the plea of the petitioner that her husband should be construed to be a substitute employee bein g an afterthought is not tenable both on fact as well as in law. She has also re ferred to the decision of the Apex Court reported in (1997) 6 SCC 580 (Union of India & Ors. Vs. Rabia Bikaner & Ors.), in which the Apex Court in reference to the provisions of Railway Services (Pension) Rules, 1993 and the provisions of t he Indian Railways Establishment Manual held that widow of a casual employee wit h temporary status is not entitled to family pension. 8. We have considered the rival submissions made by the learned counsel for the parties and the materials on record and have given our anxious consideratio n to the same. 9. Although, Mr. Dasgupta, learned counsel for the petitioner seeks to proj ect the case of the petitioner’s husband as that of a substitute employee in the Railways, but nowhere in the pleadings, there is even an iota of whisper regard ing such status of the husband of the petitioner. It is only on the basis of the purported promotion of the husband of the petitioner in the year 1990 (15.5.199 0), learned counsel for the petitioner submits that in view of such promotion, t he appointment of the petitioner’s husband should be construed to be that of a s ubstitute employee. 10. We have gone through the pleadings both in the original application as w ell as in the present writ petition. In paragraph 4.4. of the original applicati on, there is an averment that the husband of the petitioner was promoted as Grad e-II driver vide order dated 15.5.1990. In response to the said averment, the Ra ilways in their written statement denied the same. It was stated in the written statement that the petitioner’s husband was not promoted to any higher grade. It was also stated that there is no office order promoting the petitioner’s husban d as Grade-II driver during casual employment. It was stated that it might be in the exigencies of service, he was allowed to work in some other assignment. 11. In the writ petition also, the petitioner has stated casually about her husband’s purported promotion as Grade-II driver on 15.5.1990, which has been de nied by the respondents in their counter affidavit. It has been stated that such promotion is a disputed one and that some local arrangements might have been ma de, which the petitioner cannot espouse to be a case of substitute employee in l ieu of casual employee. 12. Above aspect of the matter will have to be considered in reference to th e attending facts and circumstances and the relevant records, which have been pr oduced by the learned counsel representing the railways along with the written a rgument. Apart form the fact that there is no whisper in any of the pleadings ei ther in the O.A. or in the writ petition that the petitioner’s husband was appoi nted as a substitute employee, the very fact that he was empanelled for screenin g test in the circular letter dated 4.9.1994 at serial No. 198 would go to show that he was never appointed as substitute. The said circular letter was circulat ed enclosing therewith as many as 419 names of casual employees requiring them t o undergo screening test. If the petitioner’s husband was appointed at any point of time as substitute, his name could not have been included in the said list. 13. The aforesaid circular letter has circulated for screening process to ac commodate the casual employees against 12 vacancies. As noted above, the petitio ner’s husband was included in the list at serial No. 198. The materials have dis closed that the petitioner’s husband was called to appear in trade test on 18.11 .1996, results of which were declared on 12.5.1997. Although he appeared in the trade test/screening test, his name could not be included in the list of success ful candidates as he failed to qualify in the said test. Consequently, his servi ce could not be regularized. The next screening test was held on 30.12.1997, res ults of which were declared on 31.12.1997, but in the meantime, the husband of t he petitioner expired on 19.3.1997 i.e. 9 months before the screening test. Thus , naturally he could not appear in the screening test. 14. It is in the aforesaid circumstances, the respondents had contended befo re the Tribunal that the petitioner is not entitled to family pension. In Rebia Bikaner (supra), the question before the Apex Court was: Whether the widow of a casual labourer in Railway Establishment, who died after putting in six months service and obtaining the status of a temporary workman but before his appointme nt to a temporary post after screening, is entitled to family pension? 15. Answering the said question, the Apex Court in reference to the provisions in the Railways Establishment Manual held that although the casual em ployee with temporary status are entitled to certain entitlements and privileges granted to temporary railway servants, but the same does not entitle them to fa mily pension. 16. The learned Tribunal having considered the above factual aspects of the matter and having found that the petitioner’s husband was a casual emplo yee with temporary status, she is not entitled to family pension. Had it been a case of appointment of the petitioner’s husband as substitute, there would have or should have been an order to that effect. However, except the vague and gener al statement that the petitioner’s husband was allowed to work as Grade-II drive r, there is nothing to show that he was appointed as a substitute driver. Such p urported promotion of the petitioner’s husband has also been denied by the respo ndents as noted above. That apart, as noted above, throughout the proceedings bo th before the Tribunal and this Court, it is not the case of the petitioner that her husband had worked in the railways as a substitute. It is only during the c ourse of hearing of this writ petition, the learned counsel for the petitioner h as sought to project the case of the petitioner as that of entitlement to family pension by the widow of as substitute employee. 17. For all the aforesaid reasons, we do not find any merit in the writ peti tion and accordingly it is dismissed. However, there shall be no order as to cos ts.