HON'BLE DrK.B.S.RAJAN, JUDICIAL MEMBER
1. As the above O.As deal with one and the same legal issue, all these cases have been heard together and they are dealt with in this common order.
2. For the purpose of reference, O.A.1074/ has taken up as the lead case.
3. The details of each case have been given by the applicant succinctly in ground (A) of each O.A. Accordingly, as a part of the facts of the case, these are reproduced as hereunder:
O.A.1074/2010
4. The applicant was initially engaged as Casual Labour on 28.4.1969. He acquired temporary status after acquiring 4 months continues service on 28.8.1969. Temporary status was granted to him only w.e.f. 1.1.1981 though he acquired temporary status as on 28.8.1969 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 15.10.1983. Therefore, half of the period of casual service from 28.8.1969 to 14.10.1983 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-6 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 15.10.1983 till the date of his retirement on 31.7.2008 and half of the period from 1.1.1981 to 14.10.1983. Half of the period from 24.8.1969 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1075/2010
5. The applicant was initially engaged as Casual Labour on 7.12.1968. He acquired temporary status after acquiring 4 months continues service on 7.4.1969. Temporary status was granted to him only w.e.f. 1.1.1981 though he acquired temporary status as on 7.4.1969 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 20.4.1985. Therefore, half of the period of casual service from 7.4.1969 to 19.4.1985 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-6 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 20.4.1985 till the date of his retirement on 31.5.2009 and half of the period from 1.1.1981 to 19.4.1985. Half of the period from 7.4.1969 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1076/2010
6. The applicant was initially engaged as Casual Labour on 27.5.1965. He acquired temporary status after acquiring 4 months continues service on 27.9.1965. Temporary status was granted to him only w.e.f. 1.1.1981 though he acquired temporary status as on 7.4.1969 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 20.4.1985. Therefore, half of the period of casual service from 27.9.1965 to 19.4.1985 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 20.4.1985 till the date of his retirement on 31.7.2004 and half of the period from 1.1.1981 to 19.4.1985. Half of the period from 27.9.1965 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1077/2010
7. The applicant was initially engaged as Casual Labour on 8.6.1965. He acquired temporary status after acquiring 4 months continues service on 8.10.1965. Temporary status was granted to him only w.e.f. 1.1.1981 though he acquired temporary status as on 8.10.1965 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 2.6.1973. Therefore, half of the period of casual service from 8.10.1965 to 2.6.1973 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 2.6.1973 till the date of his retirement on 31.8.1997 and half of the period from 2.3.1973 to 3.6.1973 is only reckoned as qualifying service. Half of the period from 8.10.1965 to 2.2.1973 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1978/2010
8. The applicant was initially engaged as Casual Labour on 3.5.1966. He acquired temporary status after acquiring 4 months continues service on 3.5.1966. Temporary status was not granted to him though he acquired temporary status as on 3.9.1966 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 26.10.1977. Therefore, half of the period of casual service from 3.5.1966 to 25.10.1977 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 26.10.1977 till the date of his retirement on 31.3.2008. Half of the period from 3.9.1966 to 25.10.1977 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1079/2010
9. The applicant was initially engaged as Casual Labour on 7.8.1972. He acquired temporary status after acquiring 4 months continues service on 7.12.1972. Temporary status was granted to him only with effect from 1.1.1981 though he acquired temporary status as on 7.12.1972 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 20.4.1985. Therefore, half of the period of casual service from 7.12.1972 to 19.4.1985 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 20.4.1985 till the date of his retirement on 30.6.2006 and half of the period from 1.1.1981 to 19.4.1985. Half of the period from 7.12.1972 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1080/2010
10. The applicant was initially engaged as Casual Labour on 1.5.1972. He acquired temporary status after acquiring 4 months continues service on 1.9.1972. Temporary status was not granted to him though he acquired temporary status as on 1.1.1981 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 24.4.1985. Therefore, half of the period of casual service from 1.9.1972 to 24.4.1985 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 24.4.1985 till the date of his retirement on 31.1.2004 and half of the period from 1.1.1981 to 24.4.1985. Half of the period from 1.5.1972 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
O.A.1081/2010
11. The applicant was initially engaged as Casual Labour on 21.12.1965. He acquired temporary status after acquiring 4 months continues service on 21.4.1966. Temporary status was granted to him only w.e.f. 1.1.1981 though he acquired temporary status as on 21.4.1966 as provided in Rule 2001 of IREM. He was absorbed in regular service as Gangman on 5.4.1991. Therefore, half of the period of casual service from 21.4.1966 to 5.4.1991 has to be taken as qualifying service for calculating the pension and pensionary benefits. But in Annexure A-2 pension Payment Order, the period reckoned as qualifying service for pension is only from the date of absorption of the applicant as Gangman in the regular establishment on 5.4.1991 till the date of his retirement on 30.6.2004 and half of the period from 1.1.1981 to 5.4.1991. Half of the period from 21.4.1966 to 1.1.1981 is not treated as qualifying service. It is illegal, arbitrary and unsustainable and it violates the fundamental rights of the applicant under Article 14 and 16 of the Constitution of India.
12. The applicants have sought the following reliefs:
(i) to direct the respondents to revise the pension and the retrial benefits of the applicant taking into account half of the service rendered by him as casual labour after he acquired temporary status on 3.5.1966 till the date of regular absorption on 26.10.1977 for the purpose of calculation of qualifying service and to work out the pensionary benefits.
(ii) to direct the respondents to pay the gratuity of the applicant for the period of service rendered by him as casual labourer till his absorption in regular service with interest accrued.
13. Respondents have contested the O.A. According to them, the applicants have been granted temporary status from 1.1.1981 and they accepted and acted upon the said status all these periods spanning over 30 years. Though the applicants retired in the recent past, the grievance which they want redress from the Tribunal pertains to the period of late 1960's which is nearly two scores of years ago. Even application for condonation of delay has not been filed. As such, the O.A suffers from delay and latches. As regards merits of the matter, they have contended that the applicants' services have been calculated for pension purposes taking into account the full service period from the date of their regularization and half the period from the date of their temporary status. If at all the applicants were entitled to any benefit of their casual labour services prior to 1981, the same was only with reference to payment of gratuity under the Payment of Gratuity Act, 1972. However, no such application has been furnished by the individuals. On receipt of such representations with supporting documents the due gratuity amount would be paid to the applicants, if otherwise the applicants are eligible.
14. The applicants have filed their rejoinder contending that though they were granted temporary status from 1.1.1981, the same should not be construed as any project casual labour. The applicants were made to work under IOW Construction/open line. Courts have distinctly distinguished between project casual labour, construction casual labour, and open line casual labour. In so far as project casual labour is concerned, as per Inderpal they were granted the temporary status while in respect of other two on completion of certain days of casual labour service by virtue of relevant rules, the applicants have acquired temporary status. It is the period from the date of temporary status which they had acquired, that their 50% period should be counted for the purpose of qualifying service.
15. Counsel for the applicant argued mainly on the aforesaid lines and in so far as delay and laches are concerned, relying upon certain decisions of this Tribunal, counsel argued that the question of ascertaining qualifying service comes only at the time of retirement and as such cause of action has to be construed to have arisen not from the initial date that the applicants claim temporary status but from the date when the respondents while calculating the qualifying service, omitted to take into account the period from the date the individuals acquired temporary status till the date they were granted temporary status by the Railways. This being only at the time of superannuation, the question of limitation does not arise.
16. As regards the main merit of the matter, emphasis was laid in respect of candidates acquiring temporary status and candidates granting temporary status. Grant of temporary status would not obliterate the vested right on the temporary status acquired prior to such grant of temporary status.
17. Counsel for the respondents on the other hand argued that grant of temporary status would be the crucial date from which the services are to be reckoned with.
18. Arguments were heard and documents perused. First as to the objection on limitation. This point need not dilate us any longer since in one of the earlier judgments in identical circumstances, the Tribunal has, in its order dated 17-07-2003, held in the case of N.P. Ouseph (OA No. 689 of 2002) as under:
".... I shall first deal with the question of limitation. The applicant was retired from service only on 31-01-02. The computation of qualifying service would arise at the time of retirement. If there is any errors or omission in computation of qualifying service for pension the proper occasion for the applicant to challenge that is after seeing the calculation sheet i.e. Pension Payment Order. This hve occurred only in the year 2002. I am of the considered view that the application is perfectly on time and that the respondent issued an order granting temporary status on 23-03-1969 and that the applicant did not object to, that would not in any way stand in the way of the applicant questioning the date on which he became entitled to have half the service counted as qualifying service for pension. Therefore, the plea of limitation is only to be rejected."
Thus, so far as limitation is concerned, the said objection of the respondents has to be rejected.
19. Now on merits of the matter: Admitted facts are that all the applicants initially joined as casual labourers much earlier than 01-01-1981 and completed 120 days of continuous service. Later on on 01-01-1981 or thereafter, they were granted temporary status, followed by regular appointment in Group D and finally these have also retired. While working out the total period of qualifying service, the respondents had taken into account the regular period of service and half the service rendered as temporary status reckoning the same from the date of grant of regularization. The respondents view the nature of casual labour service of the applicants as one coming under Project Casual Labour and apply the scheme accepted by the Apex Court in Inder Pal Yadav Case, whereas, according to the applicants, they being casual labourers either on open line or of construction wing, 50% of service should be from the date they had acquired the temporary status (on completion of 120 days of service) and not from the date of grant of temporary status from 1981 or thereafter.
20. The entire case revolves round the character of the casual labour service of the applicants - open line/construction/project casual labourer. For, acquiring/grant of temporary status to the above categories of casual labourers was not uniform. The following decisions of the Apex Court would elucidate the difference.
Project Casual Labour:
21. Inder Pal Yadav vs Union of India (1985) 2 SCC 648 deals with project casual labourers and their temporary status. According to the said judgment, the Railway Ministry framed a scheme vide circular No. E(NG)II/84/CL/41 dated 01-06-1984. The scheme envisages casual labour employed on projects (also known as 'project casual labour') may be treated as temporary on completion of 360 days of continuous employment and the said scheme would cover -
(i) Casual labour on projects who are in service as on January 1, 1984; and
(ii) Casual labour on projects who, though not in service on January 1, 1984, had been in service on Railways earlier and had already completed the above prescribed period (360 days) of continuous employment or will complete the said prescribed period of continuous employment on re-engagement in future. (A detailed letter regarding this group follows.)
Implementation of the scheme was to take place in phases as per the schedule given below:
Sl Length of service (i.e. In continuous employment Date by which decision Date from which may be treated as temporary should be implemented
i) Completed 5 years as on 01-01-1984 12/31/84
ii) Completed 3 years but less than 5 years as on 01- 01-1984 01/01/85
iii) Completed 360 days but less than 3 years as on 01- 01-1984 12/31/86
(iv) Would be completing 360 days after 01-01-1984 31-03-1987 or on completion.
After so extracting the actual wordings as contained in the scheme, the Apex Court has stated as under:-
5. The scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court's order. To illustrate, in some matters, the court granted interim stay before the workmen could be retrenched while some others were not so fortunate. Those in respect of whom the court granted interim relief by stay/suspension of the order of retrenchment, they would be treated in service on January 1, 1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the scheme. There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.
Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify Part 5.1(a) (i) by modifying the date from January 1, 1984 to January 1, 1981. With this modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by recasting the stages consistent with the change in the date as herein directed.
6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly.
Thus, in so far as Project casual labour is concerned, their temporary status is one arisen out of the scheme formulated. Those who had completed 360 days of casual labour service were to be granted temporary status and the Apex Court accepted the scheme from 01-01-1981. Prior to the scheme as modified in the case of Inder Pal Yadav, project casual labour could not claim temporary status and such temporary status could only be acquired by them on the basis of the scheme as accepted in Inder Pal Yadav. (See Union of India v. K.G. Radhakrishana Panickar, (1998) 5 SCC 111) Thus, period of casual labour service prior to grant of temporary status was of least consequence for the purpose of working out qualifying service, though the service would be good for payment of Gratuity under the Payment of Gratuity Act, 1972, which, the respondents are prepared to afford to the applicants, subject to their fulfilling the attendant conditions.
Open line casual labour
22. As regards open line casual labour, Para 2501 of the Indian Railway Establishment Manual deals with the same. Referring to the said provisions of the Railway Establishment Manual, the Apex Court in the case of Union of India vs K.G. Radhakrishna Panickar (1998) 5 SCC 111 has held as under:-
3. In sub-para (a) of para 2501 of the Indian Railway Establishment Manual (hereinafter referred to as "the Manual"), as it stood at the relevant time, the expression "casual labour" was defined in these terms:
"Casual labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods. Labour of this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour."
4. In sub-para (b) of para 2501 of the Manual casual labour was divided into three categories, namely, (i) staff paid from contingencies except those retained for more than six months continuously, known as Open Casual Labour; (ii) labour on projects, irrespective of duration, known as Project Casual Labour; and (iii) seasonal labour who are sanctioned for specific works of less than six months' duration. Persons falling in category (i) who continued to do the same work or other work of the same type for more than six months without a break were to be treated as temporary after the expiry of the period of six months of continuous employment. The said period of six months was subsequently reduced to 120 days.
Thus, the case of open line casual labourers is plain and simple. Once 120 days of service of casual labour is complete, they acquired temporary status and on regularisation, their qualifying service shall have to be incremented by adding half the temporary service.
Construction Wing casual labourers
23. In so far as construction casual labourers are concerned, if the construction work relates to the open line, then they are treated as open line casual labour only. In this regard, the following decisions of the Apex Court would be very much relevant:-
(a) Union of India v. Basant Lal, (1992) 2 SCC 679, at page 683:
"It was not disputed before us by learned counsel for the Union of India that in case the workers were employed in the construction work on the open line then they would acquire a temporary status after continuous employment of 120 days, but if the workers were employed on a project work then they can acquire temporary status only after completing 360 days of service. Learned counsel thus strenuously urged that in the present case the stand taken by the Railway was that the workers were employed in the Construction Division and being project workers, the rule of 360 days of service ought to have been applied in their case. It was also contended that the Tribunal did not record a finding that the workers in the present case were engaged on open line and not on project works and in the absence of such finding the Tribunal was wrong in applying the rule of 120 days of continuous service in the present case.
4. We have considered the arguments advanced on behalf of both the parties and have thoroughly perused the record. The workers had clearly come forward with a case that they were employed as casual labour in the Construction Division and in this regard they placed on record the letter of appointment Annexure IV which reads as under:
"INFORMATION--
You are being informed by Asstt. Engineer Construction/Northern Railway, Kurukshetra by information No. E-II/AEN/C/KKDEA/dated July 19, 1988 that you are being appointed in the post of as casual labour. This appointment shall only be for the monsoon period. In this duration, your services can be terminated at any moment. You shall not be entitled for any claim in respect of this service.
N.E. IT/R.P.G./N/Ambala
Chawni, dated 7/88
Permanent way Inspector/
Construction N. Railway."
In the application filed before the Tribunal the workers took a clear stand that they were class IV employees in the Northern Railway and were employed in the Construction Division and employed as Gangmen and Mates. They had been working for over 120 days and as such were entitled to all the rights and privileges admissible to temporary Railway servants. The workers in para 4.37 of their application stated as under:
"That in fact, the Railway Board, and high officials have always considered the class IV employees in high esteem. It has even ordered by a Railway Circular dated December 29, 1978, which has a statutory force that all workers in the Division be made permanent and regular after completing the mandatory days in casual work. It has also noticed, that, Delhi Divisions and other divisions are not following the orders, and they should implement the orders. A true copy of the annexure is marked as Annexure V."
The Railway filed a written statement before the Tribunal and gave the following reply to para 4.37:
"Para 4.37 is admitted only insofar as it is a matter of record. But the same is against ill-motivated and highly misconceived."
The Railway as such did not deny the allegations made in para 4.37 in the application filed by the workers, and on the other hand admitted by saying that it was a "matter of record". The contents of Annexure IV extracted above clearly goes to show that the information given by Assistant Engineer, Construction/Northern Railway, Kurukshetra dated July 19, 1988 workers were appointed in the post of casual labour and it nowhere mentioned that they were employed as casual labour on a project work. Apart from this letter, it is nowhere the case of the Railway that there was any other order of appointment, nor they have placed any documentary evidence on record before the Tribunal or even before this Court to show that the workers were employed as casual labour on a project work.
(b) L. Robert D'Souza vs Executive Engineer, S.Rly (1992) 1 SCC 645 and again construction unit is a regular unit all over the Indian Railways. It is a permanent unit and cannot be equated to project. Therefore, the averment of the Railway Administration that the appellant was working on project cannot be accepted. He belonged to the construction unit.
While the above decisions referred to construction casual labour engaged in the construction unit of the Railways, in so far as casual labourers engaged in the construction activities of Project Units were concerned, a difference had been struck. These labourers, though engaged in construction work, mainly were part of the Project labour and hence they were considered to be Project labour only. This is evidenced by the the decision in the case of L.Robert D'Souza wherein the Apex Court has held,
21. Rule 2501(b)(i) clearly provides that even where staff is paid from contingencies, they would acquire the status of temporary railway servants after expiry of six months of continuous employment. But reliance was placed on Rule 2501(b)(ii) which provides that labour on projects, irrespective of duration, except those transferred from other temporary or permanent employment would be treated as casual labour. In order to bring the case within the ambit of this provision it must be shown that for 20 years appellant was employed on projects. Every construction work does not imply project. Project is correlated to planned projects in which the workman is treated as work-charged. (emphasis supplied)
In Civil Writ Petition 33412 of 2005 (S), referring to the above part of the judgment of the Apex Court in Robert D'Souza, the High Court of Kerala has further stated as under:-
Engagement of the casual labourers for the construction work in projects will not be engagement under the Construction Wing..... Learned counsel pointed out that the casual labourers employed in construction work on projects shall also be treated as Project Casual Labourer. But engagement of casual labourers in construction work on Projects and engagement of casual labourers under the Construction Wing are distinct and different. (Emphasis supplied)
Thus, construction casual labourers could either be one of Construction Wing who fall in line with open line casual labourers in which event, they acquire the temporary status or they could be construction wing of Project Casual labourers, in which event they have to be granted temporary status in accordance with the Scheme formulated and accepted by the Apex Court in Inder Pal Yadav.
24. In nutshell, parity has been brought between the Construction Wing Casual Labour and Open line casual labourer, while the Project line casual labour formed an independent group so far as temporary status was concerned. The former belongs to the category of Casual labourers who 'acquired' temporary status by virtue of having been in continuous engagement of casual labour service for a requisite period of 120 days and above, while in so far as Project Casual Labourers were concerned, as held in Radhakrishna Panicker (supra), prior to the framing of a scheme there was no provision of temporary status and it was only after framing of the scheme as modified in Inder Pal Yadav that they were to be granted temporary service on completion of 360 days of continuous service as a casual labourer.
25. In the case of open line/construction wing casual labourers, in fact in a few cases, temporary status was granted by the Railways from a later date and the question came up as to whether their temporary status was based on acquiring the said status by virtue of having completed the requisite days of casual labour service or it should be granted. In the case of N.P. Ouseph vs Union of India and others vide OA No. 689 of 2002, relied upon by the counsel for the applicant, the applicant therein entered the service on 21-08-1964. He was granted temporary status from 23-03-1969 (holding that he was engaged from September, 1968). The Tribunal on consideration of evidences held that the applicant therein entered the service on 21-08-1964 and that on completion of 120 days of service he acquired the temporary status w.e.f. 21-12-1964 itself. This was challenged before the High Court, but the High Court has dismissed the writ petition No. 35336 of 2003 by its judgment dated 11-11-2003.
26. Para 2501 of the Indian Railway Establishment Manual itself distinguishes between Openline casual labourer and Project Wing Casual labourer. This Para has been substituted by paragraph 2001 in the subsequent editions as referred to in the case of General Manager, North West Railway vs Chanda Devi (2008) 2 SCC 108, wherein the Apex Court has extracted para 2001 (Definition of Casual Labour), Rule 2002 (rights and privileges admissible to casual labour), and 2005 (which provides for rights and privileges admissible to casual labourer on attaining temporary status). Para 2005 of the Manual reads as under:-
"2005. Entitlements and privileges admissible to casual labour who are treated as temporary (i.e. given temporary status) after the completion of 120 days 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 XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of DandA 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-`-vis other regular/temporary employees. This is, however, subject 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 in 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 grounds, quotas for handicapped and ex-servicemen, 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 such persons before regular absorption against a regular/temporary/permanent post, will qualify for pensionary benefits, subject to the conditions prescribed in the Railway Board's Letter No. E (NG)II/78/CL/12 dated 14-10-1980. [Letter No. E(NG) II/85/CL/6 dated 28-11-1986 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 on a 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 Edn.).
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 drawn by him. (This shall be effective from 2nd October, 1980.)"
27. Thus, the provisions relating to temporary status of the casual labourer are very clear. Now, it is to be ascertained as to which of the categories (open line/construction wing/project wing or construction unit of project wing do the applicants belong. For this purpose, the parameters are available. Cases of admitted position need not be gone into. It is only where there is a dispute, which would mainly consist of construction wing, that the cases are to be analysed. To ascertain whether a construction unit casual labourer belongs to the construction wing or project wing, one test is about the authority who had issued the certificate. Next is if the individual had been transferred from one construction wing to another, the same too would serve the purpose of ascertaining the category to which he belongs. (See L. Robert D'Souza). This calls for examination of each case and the same is as under:-
28. Before, however going into that aspect, one important development in respect of pension has to be mentioned here. In respect of those who had superannuated after 01-01-2006 (i.e. After the implementation of the recommendations of the Sixth Pay Commission), subject to fulfilling the minimum years of qualifying service, there is no co-relation between the total years of service and the quantum of pension, which is half the basic pay and grade pay or half the minimum in the scale of pay and half the grade pay whichever is more. Counsel for the respondents adverted to this aspect as well at the time of his argument. Thus, if the period of temporary status is included in the qualifying service to the extent of half such period then, though the qualifying period may rise from the one worked out by the railways to a higher figure, the same may not be in any way helpful to the applicants in respect of pension, though to some extent there may be an increase in the death-cum-retirement gratuity. Instead, if the applicants desire to retain the temporary status from the date they were granted the same by the Railways, and claim Payment of Gratuity under the Payment of Gratuity Act, individuals might have certain monetary advantages. Vide para 6 of the counter, respondents are prepared to consider payment of gratuity under the Payment of Gratuity Act, 1972, if otherwise eligible. This has been stated even in that reply filed on 04-07-2011, in respect of OA No. 1076 of 2010 which by and large contains the same material as in other replies (save denying certain legal issues and facts)
29. All the Applications are identical in nature. It is only the dates of initial engagement, completion of 120 days of service as casual labour, grant of temporary status, dates of regular appointment and dates of retirement that vary from case to case. All the applicants have claimed that they had worked in the Construction Wing at Ernakulam Junction and have added Annexure A-1 to A-4 in this regard. They have asserted that their case is identical to one in OA No. 623 of 2004 which was, along with various other O.As decided and the claim of the applicants therein was allowed. The said order of the Tribunal had been challenged in CWP No. 11027 of 2006 which was dismissed by a detailed judgment dated 24-07-2009. Of course, the respondents have stated in their counter that the said judgment is under challenge before the Apex Court (there seems to be some confusion over the number of the SLP which is immaterial here) and the decision of the Apex Court is awaited.
30. It is to be noted herein that while the respondents have contended in the counter that the S.L.P. Filed against the judgment in Writ Petition in respect of OA No. 623 of 2004 and connected cases is pending before the Apex Court, the averment that the applicant is similarly situated as that in the aforesaid OA has not been refuted. Of course, they have stated that the said order in OA No. 623 of 2004 is per incurium and the Apex Court has in many cases held that a mistake need not be perpetuated. "Even if some other similarly placed persons have been granted some benefits inadvertently or by mistake such an order does not confer any legal right on those who did not have the prescribed qualification." In fact, this assertion does not hold good at this juncture, since the applicants in the afore said OA and connected O.As have at their credit a detailed judgment of the High Court which go in their favour and the case is pending before the Apex Court. Hence, respondents' contention that the earlier order is per incurium cannot be accepted. This contention of the respondents has, therefore, to be summarily rejected. The order of the Tribunal in OA 623/2004 and connected cases, dealt with in detail referring to various decisions of the Apex Court and the same having been upheld by the High Court, we have no reason to differ from the above in respect of cases in hand, which are admittedly similarly situated. Thus, we also endorse the same and hold that all the applicants in OA Nos. 1074 of 2010 to 1081 of 2010 had acquired temporary status after completion of 120 days of casual labour service from the date he originally joined as a casual labour in the Construction Wing. The benefit thereof should, therefore, percolate to him.
31. Now it is the question as to whether the applicants' qualifying service should be recalculated taking into account the half the span of temporary status from the date the applicants have completed 120 days of casual labour service. That is what the claim has been. However, since the applicants have also claimed payment of Gratuity vide relief at para 8(b) and since the period of qualifying service has lost its significance in respect of pension after the acceptance of the sixth pay commission recommendations, the one which is advantageous to the applicants should be made available to the applicants. As such, ends of justice would be met if the applicants are given the option to choose either gratuity under the Payment of Gratuity Act, 1972 (for which the respondents are ready to consider vide para 6 of their reply) and the applicants would make due representation in this regard. We make one aspect clear here. The applicants, while making the representations could be in a position to file only those documents which are in their possession. As it may not be possible for the Respondents to cross verify the same with reference to their documents/records which might or might not, at this distance of time, be available with them, at best the applicants should be asked to file the documents under a sworn affidavit testifying the genuineness and the veracity of the details contained therein. On the basis of such sworn affidavit the case shall be processed at the earliest and the amount due paid to the applicants. An undertaking from the applicants to the effect that in the event of any material information being found false, they undertake to refund the entire or part of the Gratuity received by them shall also be given by the applicants. The affidavit may also contain the fact that the claim of the applicants is subject to the outcome of the special leave petition pending before the Apex Court in respect of the common order in O.A. No. 623 of 2004 and connected cases. Such representations with attendant documents and affidavit, if received within a period of three months, the same shall be processed and payment made to the applicants within three months thereafter.
32. All the O.As are allowed to the above extent. Under the circumstances, there shall be no orders as to costs.