IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12762 of 2006 ----- 1. The Union Of India through the D.G. Department of Posts, Dak Bhawan, New Delhi. 2. The Chief Postmaster General, Bihar Circle, Patna. 3. the Postmaster General, Northern Region, Muzaffarpur. 4. The Director of Postal Services, Office of the Post Master General, Northern Region, Muzaffarpur. 5. The Superintendent of Post Offices, Champaran Division, Motihari. 6. The Superintendent of Post Offices, West Champaran Division, Bettiah. Versus 1. Radhika Devi wife of Late Nathuni Mahto, resident of village & Post Office Jagdishpur, P.S.Nautan, District West Champaran. 2. The Central Administrative Tribunal Patna through its Registrar. ----------- For the Petitioners : Mr.Sudhir Singh, Assistant Solicitor General, Mr. Sarvdeo Singh, Advocate For the Respondent No.1.: Mr. Jayant Kumar Karn, Advocate ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 11th November, 2008. Nathuni Mahto was engaged as a contingent paid night guard in the year 1974-75. He died on 1st March, 2001. His wife Radhika Devi (present respondent no. 1) claimed retiral benefits including family pension which was denied by the postal authorities. She approached the Central Administrative Tribunal for redressal of her grievance with - 2 - regard to her claim of family pension. The Tribunal after hearing the parties allowed the original application vide its Order dated 17th November, 2005 and directed the postal authorities to make payment of family pension and its arrear to her. The Postal authorities by means of this writ petition has challenged the order dated 17th November, 2005 passed by the Tribunal. 2. The department of Post has framed a scheme called Casual Labourers (Grant of Temporary Status and Regularization) Scheme in the year 1989. The Scheme reads thus: “2. Casual Labourers (Grant of Temporary Status and Regularization) Scheme.- In compliance with the directions of the Hon‟ble Supreme Court a scheme was drawn up by this Department in consultation with the Ministries of Law, Finance and Personnel and the President has been pleased to approve the said scheme. The scheme is as follows:- 1. „Temporary Status‟ would be conferred on the casual labourers in employment as on 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year; during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing five days). 2. Such casual workers engaged for full working hours, viz., 8 hours including ½ hour‟s lunch time will be paid at daily rates on the basis of the minimum of the pay-scale for a regular Group „D‟ official including DA, HRA and CCA. 3. Benefit of increment at the same rate as applicable to a Group „D‟ employee would be taken into account for calculating per month rate wages, after completion of one year of service from the date of conferment of Temporary Status. Such increment will be taken into account after every one year of service subject to performance of duty for at least 240 days (206 days in establishments observing five days week) in the year. 4. Leave entitlement will be one days for every 10days‟ of work. Casual leave or any other kind of - 3 - leave, except maternity leave, will not be admissible. No encashment of leave is permissible on termination of services for any reason or on the casual labourers quitting service. 5. Maternity leave to lady full time casual labourers will be allowed as admissible to regular Group „D‟ employee. 6. 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after regularization as a regular Group „D‟ official. 7. Conferment of Temporary Status does not automatically imply that the casual labourers would be appointed as a regular Group „D‟ employees within any fixed time frame. Appointment to Group „D‟ vacancies will continue to be done as per the extant recruitment rules, which stipulate preference to eligible ED employees. 8. After rendering three years‟ continuous service after conferment of temporary status, the casual labourers would be treated at par with temporary Group „D‟ employees for the purpose of contribution to General Provident Fund. They would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group „D‟ employees, provided they furnish two sureties from permanent Government servants of this Department. 9. Their entitlement to Productivity-Linked Bonus will continue to be at the rate applicable to casual labourers. 10. Temporary status does not debar dispensing with the service of a casual labourer after following the due procedure. 11. If a labourer with temporary status commits misconduct and the same is proved in an enquiry after giving him reasonable opportunity, his services will be dispensed with. 12. Casual labourers may be regularized in units other than recruiting units also, subject to availability of vacancies. 13. For purpose of appointment as a regular Group „D‟ official, the casual labourers will be allowed age relaxation to the extent of service rendered by them as casual labourers. 14. The casual labourers can be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work. 15. The engagement of the casual labourers will - 4 - continue to be on daily rates of pay on need basis. 16. The conferment of temporary status has no relation to availability of sanctioned regular Group „D‟ posts. 17. No recruitment from open market for Group „D‟ posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question.” 3. The scheme is self contained and it provides that temporary status would be conferred on the casual labourers in employment as on 29.11.1989 who continue to be currently employed and have rendered continuous service of at least one year. Upon careful consideration of the scheme, we find that it only confers status for the limited purpose and it does not include family pension to the wife of such deceased employee. Even if it be assumed that the husband of private respondent no. 1 was given temporary status, he was only entitled to the benefits provided in the scheme which did not include family pension. Clause 6 of the Scheme provides that 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after regularization as a regular Group „D‟ official. The husband of respondent no. 1 was never regularized. As per clause 8 of the Scheme after rendering three years‟ continuous service after conferment of temporary status, the casual labourers would be treated at par with temporary Group „D‟ employees for the purpose of contribution to General Provident Fund. Thus, the casual labourer who has been conferred temporary status is at par with Group “D” for the purpose of General Provident Fund after rendering - 5 - three years continuous service and after conferment of temporary status. Clause 8 is only for the purpose of General Provident Fund and no other benefit is set out therein. 4. It transpires from the impugned order that the Tribunal relied upon its decision given by Jodhpur Bench in the case of Smt. Santosh Vs. Indian Council of Agricultural Research and others, 2004(3) ATJ, 43. 5. However, we find that the said judgment has been reversed by the Supreme Court on appeal. The Judgment of the Supreme Court is reported in (2006) 11 SCC. 157 (Indian Council of Agricultural Research and another Vs. Santosh) wherein the Supreme Court held that no benefits other than those specified in the Scheme are available to the labourers with temporary status. The Supreme Court noticed in paragraph 45 of the judgment given in the case of Secretary, State of Karnataka Vs. Uma Devi (3), (2006) 4 SCC, 1. In paragraph 12 of the report, the Supreme Court held thus : “12. A bare reading of the provisions makes it clear that late 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, (2006) 4 SCC 1: 2006 SCC ( L &S) 753. At para 45 of the judgment it was noted as follows: (SCC pp.37-88) “45. While directing that 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 casual 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 - 6 - 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 casually 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, innumberable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one 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 Article 14 of the Constitution.” 6. We considered the identical controversy in the case of Union of India Vs. Basanti Domin & another (C.W.J.C. No. 14968 of 2005) yesterday i.e. 10th November, 2008 in the light of the decision of the - 7 - Supreme Court in the case of Union of India and Others Vs. Rabia Bikaner & Others (1997) 6 SCC, 580 and we held thus: “4. In the case of Union of India and ors. Vs. Rabia Bikaner and ors., (1997) 6 Supreme Court Cases 580, the question for consideration before the Supreme 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 appointment to a temporary post after screening, is entitled to family pension under 1964 Family Pension Scheme. The Supreme Court while dealing with the question, considered the matter thus: “ 3.The Railway Board in its letter bearing S.No.3214- Circular No.720-E/0-IX (Pension) dated 26.10.1965 after examining the question, had stated that “the Family Pension Scheme, 1964 for railway employees is applicable in the case of regular employees on pensionable establishment. Since the casual labourers will be brought on to the pensionable establishment only their absorption against regular temporary posts, it follows that they will come under the purview of the scheme from the date of their absorption against the regular temporary posts. In other words, the benefits of the Family Pension Scheme, 1964 for railway employees will be admissible in the case of death of such an employee while in service, only if he had completed a minimum period one year‟s continuous service from the date he was absorbed against a regular temporary post”. 4. It is contented by the learned counsel for the respondent-widows that under para 2511- “Rights and Privileges admissible to the casual labourers who are treated as temporary after completion of six months‟ continuous service- of the Railway Establishment Manual, they are entitled to family pension. We find it difficult to give acceptance to the contention. It is seen that every casual labourer employed in the railway administration for six months is entitled to temporary status. Thereafter, they will be empanelled. After empanelment, they are required to be screened by the competent authority and as and when vacancies for temporary posts in the regular establishment are available, they should be appointed in the order of merit after screening. On their appointment, they are also required to put in minimum service of one year in the temporary post. In view of the above position, if any of those - 8 - employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible to pension under the Family Pension Scheme, 1964. In all these cases, though some of them have been screened, yet appointments were not given since the temporary posts obviously were not available or in some cases they were not even eligible for screening because the posts become available after the death. Under these circumstances, the respondent-widows are not eligible for the family pension benefits. 5. The learned counsel strongly relied upon the judgment in Prabhavati Devi v. Union of India (1996) 7 SCC 27: 1996 SCC (L&S) 369: (1988) 2 SCR 138. Therein, the facts were that from the year 1981 to 27- 4-1993, the husband of the appellant had worked as casual worker and obtained the status of substitutes who were working, as defined under Rule 2315 of the Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those posts in which they were employed. Since he died while working in the regular post, his widow became eligible to claim the benefits of the pension scheme. Thus, in that case, the appellant‟s husband was a substitute working in a regular scale of pay in the Railway Establishment. Obviously, he was screened and was also appointed to the temporary status but instead of being given appointment to a temporary post, he was treated as substitute and appointed to the vacancy when the regular candidates went on leave. Under these circumstances, this Court had held that the widow of such employee is entitled to the benefit of the family pension. The above ratio is inapplicable to the cases referred to hereinbefore. The question also was considered in a recent judgment of this Court in Union of India v. Sukanti, SLP (c) No.3341 of 1993 decided on 30-07-1996, wherein relying on the ratio in Ram Kumar case (1998) 1 SCC 306: 1988 SCC (L&S) 329: (1987) 5 ATC 404: (1988) 2 SCR 138, this Court held that no retiral benefit was available to the widow of the casual labourer who had not been regularized till his death. Thus, we hold that the view taken by the Tribunal in granting the pensionary benefits to the respondents is clearly illegal.” 5. Applying the said analogy, in the light of the scheme noticed above, the only conclusion that can be drawn is that the widow of Basudeo Dom was not entitled to the - 9 - family pension. 6. The view of the Tribunal, therefore, cannot be sustained and the judgment has to be set aside.” 7. For the self-same reasons, this writ petition deserves to be allowed and is allowed. The order dated 17th November, 2005 passed by the Central Administrative Tribunal, Patna Bench, Patna, impugned in the writ petition is quashed and set aside. The parties shall bear their own cost. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-