Case: Union Of India  Vs. Rakesh Kumar

2. The respondents to the appeal were initially appointed as casual labour in the Northern Railway, after working for one or more years, they were granted temporary status and subsequently regularised against regular posts. For example, the Respondent No. 1 was engaged on casual basis from 27.06.1984 and w.e.f. 22.06.1985 he was granted temporary status. Subsequently, w.e.f. 31.12.1996 he was regularised against a post and has been working in such capacity at New Delhi Railway Station. Respondent No. 1 raised a grievance regarding granting him full service benefit from 22.06.1985 to 31.12.1996 instead of 50 per cent service benefit. Similarly, Respondent Nos.2 - 24 were engaged initially on casual basis and after one or two years were granted the temporary status and thereafter were regularised w.e.f. 31.12.1996. All the respondents raised the same grievance i.e. giving full service benefit for the period during which they were working, having temporary status. Respondent Nos.1 to 24 filed O.A.No.2389 of 2014 before the Central Administrative Tribunal Principal Bench, New Delhi3. Before the Tribunal the applicants claimed for following reliefs:-(a) To direct the respondents to count the services rendered by the applicants in the capacity of casual labour as 50% after counting 120 days and 100% from the date of temporary status till their regularisation for the purpose of pension and pensionary benefits and other benefits as a qualifying service(b) To direct the respondents to extend the benefits of judgment and order passed in Shyam PyareOrs. which is on the basis of Shaikh Abdul Khadars Judgment for the purpose of pension and pensionary benefits as well as other consequential benefits, accordingly the respondents be directed to examine the cases of the applicants in accordance with law(c) Any other relief which this Honble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicants4. The Tribunal relying on its earlier order dated 29.05.2014 in a similar case being O.A.No.1921 of 2014, Shri Prem Pal v. Union of India and Ors. allowed the Original Application filed by the respondent. Tribunal in its order dated 18.07.2014 referred to various orders passed by it wherein Tribunal had held that a casual labour after having been granted temporary status is entitled to reckon 100 per cent period of service with temporary status for the pensionary benefit5. Tribunal disposed of the Original Application by issuing following directions:-In view of the above position, we dispose of this OA at the admission stage itself with the direction to the respondents to examine the cases of the applicants in the light of the aforesaid Orders of this Tribunal. If applicants cases are also covered by the said Orders, they shall also be accorded the same benefits. In any case, the respondents shall pass appropriate order in this case within a period of two months from the date of receipt of a copy of this Order. There shall be no order as to cost6. The Union of India and Railway Authorities aggrieved by the aforesaid directions of the Tribunal filed writ petition before Delhi High Court being Writ Petition No. 7783 of 2014. The case of the appellants before the High Court was that only 50 per cent of the temporary status of service can be counted for the purpose of the pensionary benefit. It was pleaded in the writ petition that the judgment of Andhra Pradesh High Court in General Manager, South Central Railway, SecunderabadAnr. v. Shaik Abdul Khader reported in 2004 (1) SLR 214   had been dissented by the Andhra Pradesh High Court itself in a subsequent judgment dated 01.05.2009 in Writ Petition(C) No. 10838 of 2001, General Manager, South Central Railway, Secunderabad v. A. Ramanamma. It was further pleaded that Para 2005 of IREM permits only 50 per cent of temporary status service to be counted for purposes of pensionary benefit7. Delhi High Court vide its judgment and order dated 14.11.2014 dismissed the writ petition following its earlier judgment dated 10.11.2014 in W.P.(c) 7618 of 2014 in Union of India v. Prem Pal Singh. It is useful to extract the entire judgment of the Delhi High Court dated 14.11.2014:The dispute in this case is as to the manner in which the respondents/applicants period of service to be counted for the purpose of terminal and pensionary benefitsThe petitioner Union of India is aggrieved by an order of the Central Administrative Tribunal dated 18.07.2014. At the outset, it was pointed out that this Court in W.P.(C)7618/2014 and connected case (Union of IndiaOrs. v. Prem Pal Singh), decided on 10.11.2014 had occasion to deal with an identical matter. The only difference was that the orders of the CAT in those cases was made on 06.02.2014 and 29.05.2014. The Court had on that occasion taken into consideration the Railway Service (Pension) Rules, specifically Rule 20 as well as the Master Circular no.54 (paragraph 20) and paragraph 2005 IREM. In addition, the Court had considered various rulings including those of the Supreme Court and held that 50% of the period spent by casual employee subject to his being conferred temporary status and eventual regularisation was entitled to reckon for the purposes of pensionary and terminal benefits and likewise the entire period of temporary service - subject to regularisation - was eligible to be counted for the purposes of pension and terminal benefitsFollowing the said decision in W.P. (C) 7618/2014 decided on 10.11.2014, this petition is accordingly dismissedC.A. NO. 3939 2017 (ARISING OUT OF SLP (C) 23725 OF 2015)8. This appeal has been filed against the judgment of the Delhi High Court dated 10.11.2014 in W.P. (C) No. 7627 of 2014 Union of Indiaors. v. Shyam Pyare YadavOrs. by which judgment dated 10.11.2014 two writ petitions being W.P. (C) No. 7618 of 2014, Union of India v. Prem Pal Singh and W.P. (C) No. 7627 of 2014, Union of IndiaOrs. v. Shyam Pyare YadavOrs. had been decided9. The respondents to the writ petition were also casual employees in a construction organisation, who were granted temporary status subsequently and were regularised against permanent posts. They also claimed benefit of 100 per cent service after grant of temporary status for the purpose of pension. They filed O.A.No.3745 of 2012, which was allowed by Central Administrative Tribunal by its judgment dated 06.02.2014 against which W. P. (C) No. 7627 of 2014 was filed by Union of India, which was dismissed by Delhi High Court on 10.11.2014C.A.NO. 3940 OF 2017(ARISING OUT OF SLP(C)NO.3382 OF 2016)10. The appeal had been filed against the judgment of the Delhi High Court dated 18.11.2014 in W. P. (C) No. 7913 of 2014. The W. P.(C) No. 7913 of 2014, following the judgment dated 10.11.2014 in Union of IndiaOrs. v. Prem Pal Singh (Supra), has been dismissed. The respondents were also appointed as casual labourers who were subsequently granted temporary status and were thereafter, regularised against permanent posts. They also claimed entire period of temporary status to be considered for pensionary benefit. An O.A.No.2221 of 2013 was filed which was allowed on 23.05.2014 against which W.P.(C) No. 7913 of 2014 was filed, which was dismissed on 18.11.2014C. A. NO. 3941 OF 2017(ARISING OUT OF SLP(C)NO .28597 OF 2016)11. The appeal has been filed against judgment of Delhi High Court dated 18.01.2016 in W.P. (C) No. 10202 of 2015 and other connected writ petitions. The High Court following its earlier judgment dated 10.11.2014 in Union of IndiaOrs. v. Prem Pal Singh (Supra) had dismissed the writ petitions. The respondents were also casual employees, who were granted temporary status and thereafter, regularised. They claimed reckoning of the 100 per cent service period performed by them after obtaining temporary status for the purpose of pensionary benefit. Original Application was filed before the tribunal which was allowed against which the writ petition was filedC.A.NO. 4384 OF 2017(ARISING OUT OF SLP(C) NO.821 OF 2017)12. The appeal had been filed against the judgment and order dated 18.01.2016 passed by Delhi High Court in W.P.(C) No.10706 of 2015. The High Court relying on its earlier judgment dated 10.11.2014 in Union of IndiaOrs. v. Prem Pal Singh (Surpa) dismissed the writ petition. The respondents were also casual labourers, who were granted temporary status and thereafter, regularised against the permanent posts. Original Application was filed before the Tribunal which was allowed against which judgment, the writ petition was filed, which got dismissedC.A. No.3943 OF 2017[ARISING OUT OF SLP(C)No.8365 OF 2017 (CC NO. 1516)]13. The appeal has been filed against the judgment of the Delhi High Court dated 31.03.2016 in W.P.(C)No. 9286 of 2015. The High Court relying on its earlier judgment dated 10.11.2014 in Union of IndiaOrs. v. Prem Pal Singh (Supra) had dismissed the writ petition. The respondents were also engaged as casual labourers, who were accorded temporary status and thereafter were regularised. Original Application filed by the respondents were allowed holding that they were entitled to reckon the entire period of temporary service for pensionary benefit, which order was affirmed by the High CourtC.A. No.3944 OF 2017(ARISING OUT OF SLP(C)No. 3719 OF 2017)14. This appeal has been filed against the judgment and order dated 18.01.2016 in W.P.(C) No.11521 of 2015. The High Court relying on its earlier judgment dated 10.11.2014 in Union of IndiaOrs. v. Prem Pal Singh (Supra) dismissed the writ petition. The respondents were also initially appointed as casual labourers and thereafter, granted temporary status and subsequently, were regularised for the permanent posts. They filed an O.A. before the Central Administrative Tribunal, claiming reckoning of entire period of temporary service for pensionary benefit, which application was allowed, aggrieved by which order Union of India had filed an application, which had been dismissed15. From the facts, as noted above, it is clear that all the writ petitions filed by the Union of India giving rise to the above appeals have been dismissed relying on the judgment of the High Court dated 10.11.2014 in W. P.(C) No. 7618 of 2014 and W. P.(C) No. 7627 of 2014. Against the judgment dated 10.11.2014 in W. P.(C) No. 7618 of 2014, an SLP (C) No. 23720 of 2015 had been filed, which was heard on 08.03.2017. SLP (C) No. 23720 of 2015 had been disposed of in view of the statement made by the learned counsel for the respondents as noticed in the order dated 08.03.2017. However, against the same judgment dated 10.11.2014 rendered in W.P(C)No. 7618 of 2014 and W.P.(C) No. 7627 of 2014 the Union of India has filed SLP(C) No. 23725 of 2015 arising out of W.P.(C)No. 7627 of 2014 which is also taken up for consideration in this batch of appeals16. Judgment of Delhi High Court dated 10.11.2014 had been followed in all other cases. We shall refer to the judgment of the High Court dated 10.11.2014 as the impugned judgment while considering all these appeals.

Reasoning: 45. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct law46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporary status47. In the impugned judgment of the Delhi High Court it is held that entire services of casual labour after obtaining temporary status who was subsequently regularised is entitled to reckon. Casual labour who has been granted temporary status can reckon half of services for pensionary benefits as per Rule 31. The reasons given by the Delhi High Court in the impugned judgment in para 6, 7 and 8 having been found not to be correct reasons, we are of the view that judgment of Delhi High Court is unsustainable and deserved to be set aside48. We, however, are of the view that the period of casual labour prior to grant of temporary status by virtue of Note-1 Rule 31 has to be counted to the extent of 50% for pensionary benefits50. Thus, in cases of those railway servants who are not eligible as per existing rules for grant of pension and there are certain mitigating circumstances which require consideration for relaxation the proposals can be forwarded by Pension Sanctioning Authority to Railway Board in an individual or group of casesWith regard to the work-charged services, Punjab High Court had taken note of the judgment in Kesar Chand v. State of Punjab, (1988) 5 SLR 27(Punjab) wherein Rule 3.17(ii) of the Punjab Civil Services Rules providing that period of service in work-charged establishments as not qualifying service was struck down. Thus the work-charged services rendered by respondent in the State Government was counted53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present case54. Another judgment relied by Shri Dhingra is in CWP No.2371 of 2010 [Harbans Lal v. State of Punjab23. In so far as reckoning of 50 per cent casual period, there is no challenge and it is clear that the said reckoning is in accordance with Rule 31 of Rules, 1993 and the benefit of said 50 per cent services of casual period had already been extended to the respondents.28. The perusal of para 20 of the Master Circular indicates that only half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as a regular Railway employee, counts for pensionary benefits.The cases before us are all the case where casual labour has been granted temporary status. Grant of temporary status is not equivalent to grant of an appointment against a post.40. Rule 20 provides that qualifying service shall commence from the date the employee takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. Rule 20 is attracted when a person is appointed to the post in any of the above capacities. Rule 20 has no application when appointment is not against any post. When a casual labour is granted a temporary status, grant of a status confers various privileges as enumerated in para 2005 of IREM. One of the benefits enumerated in para 2005 sub clause(a) is also to make him eligible to count only half of the services rendered by him after attaining temporary status. Rule 20 is thus clearly not attracted in a case where only a temporary status is granted to casual worker and no appointment is made in any capacity against any post.41. The proviso to Rule 2042. The above Proviso has to be read along with the main Rule 20, when main Rule 20 contemplates commencement of qualifying service from the date he takes charge of the post, the appointment to a post is implicit and a condition precedent. The proviso put another different condition that officiating or temporary service is followed, without interruption, by substantive appointment in the same or another service or post. The proviso cannot be read independent to the main provision nor it can mean that by only grant of temporary status a casual employee is entitled to reckon his service of temporary status for purpose of pensionary benefit.43. The Delhi High Court in impugned judgment has not relied the subsequent judgment of Andhra Pradesh High Court in A.Ramanamma dated 01.05.2009 and did not follow the judgment of this court in Chanda Devi case (Supra) on the ground that Rule 20 specifically the proviso has not been considered. This Court in Chanda Devis case did not refer to Rule 20 since Rule 20 had no application in the facts of that case because the appointment of husband of respondent in Chanda Devis case was not against any post. Rule 20 being not applicable nonreference of Rule 20 by this Court in Chanda Devis case is inconsequential. In para 8 of the impugned judgment, the Delhi High Court for not relying on A.Ramanamma and Chanda Devi case gave following reasons:8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra), with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specifically deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension.. The judgment of Andhra Pradesh High Court in A.Ramanamma case had considered in detail the judgment of this Court in Chanda Devis case as well as Para 20 of Master Circular and para 2005 of IREM and has also considered other case of this Court and has rightly come to the conclusion that casual labour after obtaining temporary status is entitled to reckon only half of the period. It may, however, be noticed that in A. Ramanamma case the Andhra High Court has also held that 50% of service as casual labour cannot be counted, which is not correct.ule 31 of Rules, 1993 provides for counting of service paid from contingencies. Note 1 of Rule 31 provides:-The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies.. Thus except to the above extent, the judgment of Andhra Pradesh High Court in A. Ramanamma case lays down the correct46. As observed above, the grant of temporary status of casual labour is not akin to appointment against a post and such contingency is not covered by Rule 20 and the same is expressly covered by Rule 31 which provides for half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to certain conditions enumerated there in. Thus Rule 31 is clearly applicable while computing the eligible services for calculating pensionary benefits on granting of temporaryThere is specific rule in Rules, 1993 i.e. Rule 107, which empowers Pension Sanctioning Authority to approach the Ministry of Railways(Railway Board) for dispensing with or relaxing the requirement of any Rule operation of which causes hardship in any particular case51. Shri M.C.Dhingra, learned counsel for the respondent referred to case in Punjab State Electricity BoardAnother v. Narata Singh, 2010 (4) SCC 317  53. The above judgment in no manner helps the respondent in the present case. This Court in the above case interpreted statutory rules and circulars issued by the State Government as well as by the Board. The said judgment has no application in the facts of present