$~28 & 29 * IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
10. 11.2014 + W.P.(C) 7618/2014, C.M. NOS. 17952/2014 & 17953/2014 UNION OF INDIA & ORS. ..... Petitioner Through : Sh. J.K. Singh, Advocate. versus PREM PAL SINGH ..... Respondent Through : None. + W.P.(C) 7627/2014, C.M. NOS.17970/2014 & 17971/2014 UNION OF INDIA & ORS. ..... Petitioners Through : Sh. J.K. Singh, Advocate. versus SHYAM PYARE YADAV & ORS. ..... Respondents Through : None. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) % 1. The controversy involved in these two proceedings under Article 226 of the Constitution arising from two separate orders of the Central Administrative Tribunal (CAT) dated 06.02.2014 29.05.2014 in O.A. No.3745/2012 and O.A. and No.1921/2014 respectively, is the admissibility of pension by reckoning the period of casual/temporary employment of those working in the Railways. The W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 1 facts are brief. The respondents/applicants approached the CAT for fixation of pension. The stand of petitioner/Railways was that in both cases, the applicants were ineligible because at the point of time when the retirement of the railway employees occurred, the requisite service prescribed in the rules for purposes of earning pension had not been put in by the concerned employees. The CAT, in both the cases, after considering the submissions of the parties especially para 2005 of the Indian Railway Establishment Manual (IREM), Master Circular No.54 and the provisions of the Railway Services (Pension) Rules, 1993 held that the applicant employees were entitled to reckon the entire period of their service as temporary employees, and half the period as casual labourers. In doing so, the CAT discussed and dealt with several judgments, including the decision of the Andhra Pradesh High Court in General Manager, South Central Railway v. Shaik Abdul Khader 2004 (1) SLR214 2. It is contended on behalf of the Railways that the impugned order is erroneous and has serious ramifications. Learned counsel submitted that Rule 31 of the Railway Services (Pension) Rules, clearly entitled the employees - who are paid from contingencies, to only reckon part of that service. Consequently, para 20 of the Master Circular No.54 and para 2005 of the IREM had to be given due weightage. Instead the CAT relied upon the wrong provision, i.e. Rule 20 of the Railway Services (Pension) Rules and held that the entire period of service of an employee as a temporary hand had to be reckoned, and half the service as casual employee - till the attainment of temporary status, had to be reckoned. Learned counsel submitted that the judgment in Shaik Abdul Khader (supra) was subsequently W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 2 doubted and held to be inapplicable in another Division Bench ruling of the Andhra Pradesh High Court in General Manager SCR v. A. Ramanamma [W.P.(C) 10838/2001 and connected cases (decided on 01.05.2009). Learned counsel also relied upon the judgment of the Supreme Court in General Manager North West Railway and Ors. v. Chanda Devi 2008 (1) SCC (LS) 399. He emphasized that the latter decision of the Supreme Court took note of the very same circulars and analysed all previous decisions dealing with casual workers/temporary employees and the service benefits they were entitled to in the Indian Railway after regularization. Learned counsel highlighted that Chanda Devi (supra) stated that casual and temporary service would not be pressed into service for the purpose of entitling the pension under the Railway Services (Pension) Rules.
3. Para 2005 of the IREM - which deals with entitlements and privileges admissible to casual labourer, who were subsequently treated as temporary, reads as follows:
“ 2005. Entitlements and Privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be). (a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in 'Chapter XX III of this Manual. The rights and privileges admissible to such labour also include the benefit of D&A Rules. However, their service prior to absorption in temporary/permanent/regular cadre after the required selection/ screening will not count for the purpose of seniority and the date of their regular appointment after screening/selection shall determine their seniority vis-a-vis other regular/temporary employees. This is however, subject W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 3 to the provision that if the seniority of certain individual employees has already been determined in any other manner, either in pursuance of judicial decisions or otherwise, the seniority so determined shall not be altered. 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. (b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent or regular establishment or treated as in regular employment on Railways until and unless they are selected through regular Selection Board for Group D Posts in the manner laid down from time to time. Subject to such orders as the Railway Board may issue from time to time, and subject to such exceptions and conditions like appointment on compassionate ground, quotas for handicapped and exserviceman etc. as may be specified in these orders they will have a prior claim over others to recruitment on a regular basis and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as Casual labour before attaining the age of 28 years should be allowed relaxation of the maximum age limit prescribed for group ‘D’ posts to the extent of their total service which may be either continuous or in broken periods. (c) No temporary posts shall be created to accommodate such casual labour, who acquire temporary status, for the conferment of attendant benefits like regular scale of pay, increment etc. After absorption in regular employment, half of the service rendered after attaining temporary status by W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 4 such persons before regular absorption against a regular/ temporary/ permanent post, will qualify for pensionary benefits, subject to the conditions prescribed m Railway Board's letter No.E(NG)II/78/CL/12 dated 14-10-80. (Letter No.E(NG) II/85/CL/6 dated 28-11-86 in the case of Project casual labour). (d) Casual labour who have acquired temporary status and have put in three years continuous service should be treated at par with temporary railway servants for purpose of festival advance/Flood Advance on the same conditions as ARE applicable to temporary railway servantS for grant of such advance provided they furnish two sureties from permanent railway employees. (e) Casual labour engaged on works, who attain temporary status on completion of 120 days continuous employment on the same type of work, should be treated as temporary employees for the purpose of hospital leave in terms of Rule 554-R-I (1985 Edition). A casual labour who has attained temporary status and has been paid regular scale of pay, when re-engaged, after having been discharged earlier on completion of work or for non-availability of further productive work, may be started on the pay last down by him. (This shall be effective from 2nd October 1980).”
4. On the subject of pension, para 20 of the Master Circular No.54 states as follows:
“20. Counting of the period of service of Casual Labour for pensionary benefits Half of the period of service of a casual labour (other than casual labour employed on Projects) after attaining 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 01.01.1981, the benefit has also been extended to Project Casual labour.”
W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 5 5. The Indian Railways had relied upon Rule 31 of the Railway Services (Pension) Rules, 1993. The same reads as follows:
“31. Counting of service paid from Contingencies- In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the following condition 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 or job for which regular posts could have been sanctioned such 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 no analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar jobs being performed at the relevant period by staff in regular establishments; (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. NOTE - (1) the provisions of this rule shall also apply to casual labour paid from contingencies. (2) The expression “absorption in regular employment” means absorption against a regular post.”
W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 6 6. It would be immediately apparent that the Master Circular No.54 and para 2005 of the IREM deal with a situation where casual labourers/workers are eventually regularised after attainment of temporary status. The combined effect of these is to entitle the individuals who work as casual workers for a period, to reckon half of that period for the purpose of pension. Neither of these provisions nor Rule 31 deals with how: (a) temporary employment has to be considered for the purpose of pension; (b) whether temporary employment per se differs from permanent employment for the purposes of reckoning entitlement to terminal benefits. It is here that Rule 20 of the Railway Services (Pension) Rules becomes relevant. The same reads as follows:
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) in the case of a railway servant in a Group D service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; and (b) in the case of a railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 7 gratuity;(Authority: Railway Board’s letter F(E)III/99/PN1(Modification) dated 23.5.2000) No.(c) the provisions of clause (b) shall not be applicable in the cases of counting of military service for civil pension under rule 34.(Authority: Railway Board’s letter No.F(E)III/2004/PN1/21(Amendment) dated 7.12.2004)”
7. The proviso, in our opinion, puts the controversy beyond a shade of doubt in that if an employee officiates in service or is treated as temporary railway servant and subsequently regularized or granted substantive appointment, the entire period of his combined service as temporary appointee followed by the service spent as a permanent employee has to be reckoned for the purpose of pension. Since Rule 20 does not deal with what is to be done with the period of service spent as casual labourer, para 20 of the Master Circular 54 and para 2005 of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purposes of pension.
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 W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 8 entire period of temporary and substantive appointment for the purposes of pension.
9. For the foregoing reason, the Court is of the opinion that the impugned order does not call for interference. The writ petitions are accordingly dismissed along with the pending applications. S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) NOVEMBER10 2014 ‘ajk’ W.P.(C) 7618/2014 & W.P.(C) 7627/2014 Page 9