Central Administrative Tribunal - Delhi

Shri Prem Pal Singh vs Union Of India on 29 May, 2014

CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH

O.A. No. 1921/2014

New Delhi this the 29th day of May, 2014

HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (J)

Shri Prem Pal Singh
S/o Shri Mohan Lal
Age 60 years
R/o Gali No.4, Mohalla Adarsh Nagar,
Mendu Road, Hathras,
District Hathras, UP
Working as Helper Khalasi
Under Senior Section Engineer,
Shatabdi,
New Delhi Railway Station,
New Delhi. ..Applicant

By Advocate: Shri R.K. Shukla.

Versus

1. Union of India
Through General Manager,
Northern Railway
Headquarter,
Baroda House,
New Delhi.

2. Divisional Railway Manager
Northern Railway, DRM Office,
Delhi Division, Estate Entry Road,
Paharganj,
New Delhi.

3. Senior Section Engineer (Shatabdi)
Delhi Division,
New Delhi Railway Station,
New Delhi. ..Respondents

ORDER (ORAL)

Honble Mr. G. George Paracken, Member (J)

The Applicant has filed this Original Application under
Section 19
of the Administrative Tribunals Act, 1985 seeking extension of benefit granted by this Tribunal in its order dated 06.05.2014 in OA No.3745/2012 
Shyam Pyare Yadav and Others Vs. U.O.I. & Others
.

2. The relevant facts, as stated by the Applicant in this OA are that he was appointed as a Khalasi on 15.07.1975 at Shahdara and remained in that capacity till 14.10.1976. Thereafter, he was re-engaged in the month of June, 1985 in open line under PWI, Nizamuddin under Delhi Division as Khalasi. Later on, he was granted temporary status on 18.03.1986 and subsequently he was regularized in service in the year 2001. He was further promoted to the post of Helper Khalasi and finally retired from service on 31.05.2014 after attaining the age of superannuation. On the basis of the aforesaid order of this Tribunal in OA No.3745/2012 (supra), Applicant has made a representation to the Respondents on 06.02.2014 requesting them to extend the same benefits to him also. However, the same has not been considered and disposed of by the Respondents so far. He has, therefore, approached this Tribunal by the present OA seeking a direction to the Respondents to count the 50% service rendered by him in the capacity as causal labourer and 100% of the period of service rendered by him on temporary status basis.

3. We have heard the learned counsel for the Applicant Shri R.K. Shukla. The issue regarding counting of casual service and temporary status service is a settled matter. The Honble Andhra Pradesh High Court in its judgment in Writ Petition No.10837 of 2011 
General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. and another vs. Shaik Abdul Khader
decided on 23.6.2003 held that once temporary status is granted to a person who is absorbed later on in regular service, he 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. The relevant part of the said Order reads as under:-

5. Now different provisions of Master Circular 54 of 1994 shall have to be gone into to 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."

6. Reference has been made to another extract of para-2005 of Indian Railway Establishment Manual, Volume-II. Sub-para-1 of para 2005(a) lays down;

"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."

7. 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 allowed 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 in regular service caries 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 Railway Services (Pension) Rules which 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.

Provided further that-

(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.

4. The Honble High Court of Delhi has also, vide common judgment dated 23.11.2007 in Civil Writ Petition No.631-633 of 2006 in the matter of
Union of India vs. Shri Raj Kumar
etc., passed the following directions:-

Learned counsel for the Review Applicant-petitioner submits that the above writ petition had been withdrawn since the Special leave Petition that had been filed by the Railways challenging the order of the High Court of Andhra Pradesh, which had dismissed the Writ Petition filed by the Railways against the order of the Central Administrative Tribunal at Hyderabad. Counsel submits that the petitioners have now learnt that the Special Leave Petition had been withdrawn on humanitarian grounds as the respondent had died. The order passed by the Supreme Court does not contain any such indication. Besides it had been put to learned counsel for the Review Applicant if the view taken by the Central Administrative Tribunal, Hyderabad as also the High Court of Andhra Pradesh, had been assailed by the Railways in any other petition. To that, counsel replied that as per his knowledge, no such petition has been filed challenging similar views taken by the High Court of Andhra Pradesh. The Review Petition also does not disclose any error apparent on the face of it.

In these circumstances, we find no justification for allowing the present petition.

5. The very issue was decided by the Apex Court in Special Leave to Appeal (Civil) No.(s) 20041/2008 -
Union of India and Others Vs. Sarju
decided on 30.09.2011. The relevant part of the said order reads as under:-

Sarju (respondent in SLP(C) No. 20041/2008) was engaged as casual labour on 17.1.1960. He was given temporary status with effect from 1.1.1981 and regularised with effect from 1.4.1988. On attaining the age of superannuation, he was retired from service on 30.11.2001. The application filed by him under
Section 19
of the Administrative Tribunals Act, 1985 (for short, 'the Act') for counting his temporary service as part of qualifying service for the purpose of calculation of the retiral benefits was disposed of by the Tribunal vide order dated 1.3.2006, the operative portion of which reads as under:

"In view of the law
laid down by
the Hon'ble Andhra Pradesh High Court as well as C.A.T., Cuttack Bench, there is no basis/ground to take different view. In the result, the O.A. is allowed. The respondents are directed to recalculate the pension with arrears from due date (the date of superannuation) with all incidental benefits after counting the full service from the date of grant of temporary status i.e. 1.4.1981. These exercises should be completed within a period of four months from the date of receipt of a copy of this order. There shall be no order as to cost."

Ishwar Nand Mishra (respondent in SLP(C) No. 13709/2009) was engaged as casual labour in 1966. He was granted temporary status with effect from 10.3.1971 and was regularised with effect from 27.5.1981. After attaining the age of superannuation, he filed an application for counting his past service for the purpose of pension etc., which was disposed of by the Tribunal vide order dated 16.1.2008, the operative portion of which reads as under:

"In view of the law
laid down by
the Hon'ble Andhra Pradesh High Court as well as CAT, Cuttack Bench, and Patna bench there is no basis/grounds to take a different the pension with arrears from due date (the date of superannuation) with all
incidental benefits after counting the full service from the date of grant of temporary status i.e. 15.3.1971. The exercise should be completed within a period of four months from the date of the receipt of a copy of this order, No order as to the costs."

Mani Kant Jha (respondent in SLP(C) No. 35934/2009) joined service as casual labour on 30.7.1973. He was granted temporary status with effect from 1.1.1981 and was absorbed on regular basis with effect from 1.4.1988. After attaining the age of superannuation with effect from 30.6.2005, the respondent filed O.A. No. 505/2005 for issue of a direction to the petitioners herein to count his past service as part of qualifying service for the purpose of calculation of retiral benefits. The same was disposed of by the Tribunal vide order dated 29.11.2006, the operative portion of which reads as under:

In the result, this application is allowed. The respondent No.2 and 3, namely the Chief Administrative Officer [Con] E.C. Railway, Mahendrughat, Patna and the Chief Personnel Officer, E.C. Railway, Hazipur, are hereby directed to get the qualifying period of service of the applicant, for the purposes of pensionary benefits, calculated afresh adding thereto the entire period of service undergone by the applicant under temporary status and half period of service undergone as casual labourer and then to have the pensionary benefits calculated thereupon afresh. This should be done within three months of the receipt of a copy of this order whereafter the arrears of retiral benefits including of the pension, should be paid within one month, eligible failing which the amount of unpaid arrears would be payable with interest @9% per annum starting from the date of expiry of the period of four months after receipt of a copy of order, till the amount is paid."

Chanarik and 4 others (respondents in SLP(C) No.35936/2009) were initially engaged as
CPC
/Gangmen. They were given temporary status with effect from 26.12.1985, 25.1.1986 and 14.2.1986 respectively. After superannuation from the service, they filed O.A. No. 260/2005 for issue of a direction to the petitioners herein to count their total service as part of qualifying service for the purpose of payment of retiral dues. The same was disposed of by the Tribunal vide order dated 2.9.2005, the operative of which reads as under:

"In the result, this OA is allowed. The Respondents are directed to grant pension with arrears from due date (date of superannuation), with all incidental benefits, after counting the full service from the date of grant of temporary status i.e. 26.12.1985, 25.1.1986, 26.12.1985, 14.2.1986 and 26.12.1985 respectively."

Ram Barai (respondent in SLP(C) No. 14690/2010) was initially engaged as Casual Labour/Gangman on 17.4.1967. He was granted temporary status with effect from 11.11.1990 and was regularised with effect from 18.9.1995. After superannuation from service, he filed O.A. No. 97/2006 for counting his total service for the purpose of retiral benefits. The same was disposed of by the Tribunal vide order dated 31.8.2007, the relevant portion of which reads as under:

"I have considered the rival view points carefully. In view of the judicial pronouncements of Hon'ble Andhra Pradesh High Court and the Divisional Bench of Central Administrative Tribunal as well as or single Bench of Central Administrative Tribunal, I agree that the applicant is entitled to get pension treating the entire period of service of temporary status as pensionable and the period of service rendered as cast labour as 50 per cent pensionable. The respondent are directed to give these benefits as and when the applicant retires."

The writ petitions filed by the petitioners questioning the legality and correctness of the orders passed by the Tribunal were dismissed by the High Court.

We have heard learned counsel for the parties and perused the record. We have also gone through the judgment of this Court in
Union of India and others vs. K.G.Radhakrishnan Panickar and others
[(1998) 5 SCC 111]. In our view, the directions given by the Tribunal in the matter of counting of past service of the respondents for the purpose of calculation of the retiral benefits did not suffer from any legal infirmity and the High Court rightly declined to interfere with the same.

The judgment of this Court in
Union of India vs. K.G. Radhakrishnan Panickar
(supra) on which reliance has been placed by learned counsel for the petitioners is clearly distinguishable. In that case, the Court was called upon to consider whether the services rendered by the employees as Project Casual Labour can be treated as part of the qualifying service for the purpose of calculation of the retiral benefits and whether the cut off date fixed in the policy framed by the Railway Administration for counting half of the service rendered as Project Casual Labour was discriminatory and violative of
Article 14
of the Constitution. After adverting to the relevant policy decisions, this Court held that the policy of the Railways does not suffer from any constitutional infirmity. That judgment has no bearing on the decision of the issue whether temporary service, which was followed by regularisation should be counted as part of the qualifying service for the purpose of retiral benefits. As a matter of fact, if the respondents had prayed for counting half of the service rendered by them as Project Casual Labour as part of qualifying service, we may have examined the issue in detail and decided whether the said prayer should be granted. However as they did not challenge the orders of the Tribunal before the High Court, we refrain from expressing any opinion on the issue.

The special leave petitions are accordingly dismissed. The petitioners are directed to calculate the pension and other retiral benefits payable to the respondents keeping in view the directions given by the Tribunal and pay the arrears within next three months with interest at the rate of 12% from the dates of their retirement on attaining the age of superannuation.

A report showing compliance of this order shall be filed in the Registry of this Court within four months and the matter be posted before the Court in the 3rd week of February, 2012.

6. This Tribunal has also decided the same issue vide Order dated 27.2.2012 in OA No.3041/2011 
Shri Sita Ram vs. Union of India and others
. The relevant part of the said Order reads as under:-

6. They have thus stated the calculations of net qualifying service made in the case of applicant were in consonance with the lines of policy and rules on the subject. Hence, the pensionary benefits have been worked out as per the rules, therefore, the OA may be dismissed.

7. We have heard both the counsel and perused the pleadings as well.

8. If we go by the rule position, probably what respondents are stating is correct but it is relevant to note that Andhra Pradesh High Court was dealing with the same point in the case of Shaik Abdul Khader as raised in the present case (page 48). In the very first paragraph it is noted that the question considered by the Tribunal was whether 50% of the service rendered by the respondent as casual labour could be counted towards qualifying service for the purpose of pension. The question which was required to be considered by the High Court was, as noted in para 3, whether the respondent was entitled to get his services counted in full from 1.1.1983 when he became causal labour or was it incumbent to take only 50% of this service into account for the purpose of pension. It is relevant to note that reference was also made to Rule 31 of the Railway Services (Pension) Rules, 1993 and Master Circular No.54 of 1994. After discussing all the points, it was held by the Honble Andhra Pradesh High Court that the respondent was entitled to get the service counted in full from 1.1.1983. He was also entitled to get half of the service counted before 1.1.1983 from the date he had joined in the Railways as casual labour. Perusal of above shows that from the date respondent therein was given temporary status, the court had directed it should be counted as full service and from the date he had joined in the Railways as casual labour till he was given temporary status 50% of the period is to be counted for the purposes of pensionary benefits.

9. It is stated by the counsel for the applicant that the judgment given by the Honble Andhra Pradesh High Court was challenged by the Railways in the Honble Supreme Court but that was dismissed on 13.5.2008. Thereafter, the same relief was given by the Tribunal in the case of Gurdial Singh, which too was challenged by the Railways in the Honble High Court of Delhi by filing Writ Petition No. 2528/2007. The said Writ Petition was dismissed on 12.12.2007 by observing as follows:-

The question involved is as to whether service rendered by an employee after the grant of temporary status and before he was regularised should be counted for the purpose of fixing the pension. The learned Tribunal has answered this question in affirmative relying upon the judgment of Central Administrative Tribunal, Hyderabad, passed in the case of
Sheikh Abdul Qadir v. Union of India
. Against the judgment Railways had filed Writ Petition in the High Court of Andhra Pradesh which Writ Petition was also dismissed affirming the judgment of the Central Administrative Tribunal. SLP filed by the Railways was also dismissed as withdrawn. Taking note of these facts, this court has upheld similar view in the Writ Petition No.631-33/2006 and review petition filed therein has also been dismissed by the Division Bench of this court vide order dated 23.11.2007.

In view of the aforesaid, we do not find any merit in this petition which is accordingly dismissed.
meaning thereby that the view taken by the Honble Andhra Pradesh High Court in the case of Shaik Abdul Khader has been followed by the Honble High Court of Delhi as well. On the basis of above two judgments, this Tribunal has passed order dated 17.1.2012 in another OA bearing No.665/2011 in the case of
Manash Sarkar Vs. U.O.I. & Others
whereby OA was allowed in terms of order passed by Honble Andhra Pradesh High Court. It is thus clear that two High Courts have already taken a decision that the entire period from the date of joining of temporary status till a person is regularized has to be taken into consideration for computing the pensionary benefits. We are bound by the judgments given by the Honble High Court, therefore, this OA is disposed of with a direction to the respondents to count the entire period from 15.7.1981 to 1.7.1986 for the purposes of pensionary benefits. They shall thus recalculate and refix the pension of the applicant and give him the arrears thereof in accordance with law within a period of 4 months from the date of a receipt of this order. It goes without saying that in case some other contrary orders are passed by the Honble High Court of Delhi in the meantime, as we are informed some other cases have been filed by the Railways, the same shall be binding on the applicant also.

10. With the above direction, this OA stands disposed of. No costs.

7. The aforesaid Order has also been upheld by the Honble High Court of Delhi, vide its Order dated 4.1.2013, in Writ Petition (Civil) No.4300/2012 and other connected case  Union of India through General Manager, Northern Railway & Anr. vs. Sita Ram. The operative part of the said Order reads as under:-

9. Though the Andhra Pradesh High Court has not juxtaposed regular employment vis-`-vis permanent employment, but in our opinion the same is implicit in the reasoning of the High Court when we noticed that the High Court thereafter proceeded to consider a Master Circular No.54 of 1994, para 20 thereof reads as under:-

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.

10. The Andhra Pradesh High Court thereafter proceeded to note para 2005 of Indian Railway Establishment Manual, Volume-II which reads as under:-

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.
and then proceeded to hold that para 20 of the Master Circular No.54 and Para 2005 of the Railway Establishment Manual Volume-II bring out, to give clarity, that with respect to casual labour other than casual labour employed on projects, on attaining temporary status, if followed by absorption as a regular railway employee, half service as casual labour has to be reckoned while calculating length of service meaning thereby the entire service rendered while on temporary status.

11. We agree with the reasoning of the High Court, against which decision Leave to Appeal was dismissed by the Supreme Court and second time when a Division Bench of this Court simply followed the law declared by the Andhra Pradesh High Court, once again Leave to Appeal was refused by the Supreme Court.

12. The two office orders intended to be relied upon cannot be in derogatory of the Rule and the Statutory Railway Manual. It is trite that an office order cannot cut down a grant under a Rule or a Statutory Railway Manual. It is trite that beneficial legislation has to be construed, insofar the language permits, in favour of the grantee. A pension is not a bounty. It is earned by dint of hard-work and a Statutory Rule or a Statutory Manual pertaining to pension and particular when it concerns the lowly paid employees, and in the instant case casual workers who attained a temporary status followed by permanent absorption have to be construed liberally. We dismiss the two writ petitions and affirm the orders passed by the Tribunal in both cases.

13. No costs.

8. As recent as on 1.5.2014, this Tribunal again decided the same issue involved in the present case in OA No.4523/2013 
Shri Santan vs. Union of India and others
. The relevant part of the said Order reads as under:-

3. Based on the aforesaid judgment, this Tribunal has also passed Order in OA No.665/2011 - Manash Sarkar v. General Manager, Northern Railway and Ors. The operative part of the said order reads as under:-

6. We have heard the learned counsel for the parties and have gone through the material placed on record. We are of the view that the controversy in issue is covered by the judgment of the Andhra Pradesh High Court in Shaik Abdul Khaders case (supra) as well as the judgment of the High Court of Delhi in Chander Pals case (supra) dated 28.1.2008. At this stage, it will be useful to quote the relevant portion of the judgment of the High Court of Delhi in the case of Chander Pal (supra), which has been passed based upon the judgment of the Andhra Pradesh High Court and thus reads:-

Learned counsel for the petitioner very fairly submits that one of the questions arising for consideration in these writ petitions is whether the service rendered by an employee with temporary status is to be counted for purposes of fixation of his pension and other benefits on his being regularized.

We may note that the Central Administrative Tribunal had answered this question in the affirmative relying upon the judgment of the Central Administrative Tribunal, Hyderabad passed in the case of
Shaik Abdul Kahder Vs. Union of India
. The writ petition filed in the High Court of Andhra Pradesh, had been dismissed and the SLP preferred by the Railways had also been dismissed as withdrawn. The petitioner had sought to contend that the SLP had been dismissed as withdrawn on humanitarian grounds. The Court had the occasion to consider this while disposing of writ petition bearing WP(C) No.631-33/2006 and noted that the order passed by the Supreme Court did not contain any such indication of the SLP being withdrawn on humanitarian grounds. Accordingly, the Review Petition filed being Review Petition No.360-2007 in WP(C) No.631-33/2006 was dismissed. Another Coordinate Bench of this Court, following the aforesaid writ petition, had dismissed WP(C) No.2528/2007. Mr. Dateer raises an objection that the claims of applicants before the Tribunal i.e., respondents in the writ petition are premature, as they have not yet retired. Ms. Meenu Maini, on the other hand, informs us that substantial number of applicants i.e., respondents in the writ petitions before us have already retired and others are at the verge of retirement. In these circumstances, the plea sought to be raised by learned counsel for the petitioners is wholly devoid of merit.

In these circumstances, following the aforesaid two judgments of the High court in the aforesaid two writ petitions being Review Petition No.360/2007 in WP(C)No.631-33/2006 and WP(C)No.2528/2007, the present writ petitions are also dismissed.

7. In view of what has been stated above, we are of the view that the applicant herein has made out a case for grant of relief. Accordingly, for parity of reasons given in the judgment of the Andhra Pradesh High Court in the matter of
Shaik Abdul Khader
(supra), this OA is allowed in the same terms. However, before parting with the matter, it may be observed that the learned counsel for applicant has drawn our attention to Railway Boards circular dated 25.2.2010 based upon another circular dated 4.12.2009, which stipulates that for the purpose of extension of the benefit of MACP Scheme, 50% of temporary status casual labour service on absorption in regular employment may be taken into account. Suffice it to observe that here we are not concerned with the extension of benefits of MACP Scheme but the case of the applicant is regarding taking into consideration the full period of temporary status for counting of qualifying service instead of 50% of the period for the purpose of pensionary benefits and not for the purpose of MACP Scheme.

8. For the foregoing reasons, the OA shall stand disposed of. No costs.

4. In view of the above position, this OA is allowed and the impugned order dated 02.01.2013 is quashed and set aside. Consequently, we direct the respondents to count the entire 100% temporary status casual service and 50% of casual service of the applicant as qualifying service for the purpose of granting the benefits under MACP, pensionary benefits etc. The respondents shall also pass appropriate orders implementing the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no orders to costs.

9. In the above facts and circumstances of the case, we dispose of this OA at the admission stage itself with a direction to the Respondents to examine the case of the Applicant in the light of the aforesaid orders/judgments. If the submission made by the Applicant in this OA regarding his service as casual labour followed by temporary service is correct, the Respondents shall count 50% of the casual service and 100% of the temporary status service towards pension and any other benefits covered by the aforesaid judgments. The Respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a certified copy of this Order.

10. There shall be no order as to costs.

(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)

Rakesh