HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL
PRADEEP NANDRAJOG, J. (Oral)
1. A common question arises for consideration in the two captioned writ petitions which challenge two separate orders, but on the same subject, passed by the Central Administrative Tribunal allowing OA No.665/2011 and OA No.3041/2011 filed by the respondents of the two captioned writ petitions.
2. The undisputed facts are that both respondents had joined the Indian Railway as Casual Labour (not Project Casual Labour) and having rendered the requisite service were brought on the list as employees acquiring temporary status followed by their services being made permanent and on retirement the issue cropped up as to what was the pensionable service rendered by the two. The Indian Railways reckoned only half of the service rendered after the respondents had acquired a temporary status and adding the same to the service rendered after they were made permanent sanctioned the pension. Following the decision rendered by a Division Bench of the Andhra Pradesh High Court in WP(C) No.10837/2001 G.M.South Central Railway v. Shaikh Abdul Kadar against which Leave to Appeal was refused by the Supreme Court and a non-speaking decision of this Court following the decision of the Andhra Pradesh High Court in WP(C) No.2528/2007 UOI v. Gurdial Singh, relief has been granted by the Central Administrative Tribunal to the respondents.
3. Conceding before us that the decision of the Andhra Pradesh High Court which was followed by this Court would require the two writ petitions to be dismissed, contention urged is that as far as this Court is concerned, when WP(C) No.2528/2007 was decided this Court had not independently applied its mind and thus the decision in the said writ petition would not operate as res judicata. As regards the decision of the Andhra Pradesh High Court is concerned, it is urged that the decision is per incuriam inasmuch as two relevant office orders were not placed before the Division Bench of the Andhra Pradesh High Court. The first is an office order dated October 14, 1980 which reads as under:-
“Sub: Counting of the period of service of Casual Labour after their attainment of temporary status, on completion of 120 days’ continuous service, as qualifying service for pensionary benefits on absorption as regular railway employees.
As a result of representations from the recognized labour unions and certain other quarters, the Ministry of Railway has been considering the demand that the period of service in the case of casual labour (i.e.) other than casual labour employed on projects) after their attainment of temporary status, on completion of 120 days continuous service, should be counted as qualifying service for pensionary benefits, if the same is followed by their absorption in service as regular Railway employees. The matter has been considered in detail in consultation with the Ministry of Home Affairs (Deptt. of Personnel and Administrative Reforms) and the Ministry of Finance. Keeping in view the fact that the aforesaid category of employees on their attainment of temporary status in practice enjoy more privileges as admissible to temporary employees such as they are paid in regular scale of pay and also earn increments, contribute to P.F. etc. the Ministry of Railways have decided with the approval of the President that the benefit of such service rendered by them as temporary employees before they are regularly appointed should be conceded to them as provided in the Ministry of Finance O.M. No.F.12(1)- EV/66 dated 14th May 1968 (Copy enclosed for ready reference). The concession of counting half of the above service as qualifying for pensionary benefits, as per the O.M. of 14th May, 1968, would be made applicable to casual labour on the Railway who have attained temporary status. The weightage for the past service would be limited from 1.1.1961 in terms of condition (e) of the O.M. ibid. past cases of retirements before the date of this letter will not be re-opened.
2. Daily rates casual labour or labour employed on projects will not however be brought under the purview of the aforesaid orders.
3. As regards “Substitute Service” the service as substitute counts for pensionary benefits from the date of completion of six months (3 months in the case of teachers) continuous service as substitute provided it is followed by absorption in regular Class III/Class IV service without break, as already provided in Railway Ministry’s letter No.F(E)111. 69PN-1/21 dated 22.7.70 (Copy enclosed for ready reference).
4. Necessary amendments to the Manual of Railway Pension Rules, 1950 will be issued separately.
5. This issues with the concurrence of the Finance Directorate of the Railway Board.”
And the second is an office order contained in the Railway Board letter No.E-9NG/85/CL/6 dated November 28, 1986, which reads as under:-
“Subject : Counting of period of service of project casual labour after their attainment of temporary status as qualifying for pensionary benefits on absorption in regular employment on Railways.
In the Ministry of Railway’s letter No.E(NG)II/78/CL/12 dated 14.10.1980 it was laid down that half the period of service put in by casual labourers on open line after attaining temporary status would count as qualifying service for pension on their eventual absorption in regular employment, it was added therein, however, that labour employed on project (or project casual labour) will come under the purview of the said orders.
2. As Railway Administration are aware the benefit of temporary status has since been extended to project casual labour vide Ministry of Railways Letter No.E(NG)II/84/CL/41 dated 1.6.84 read this Ministry’s letter of same number dated 12.09.1986.
3. In the PNM Meeting between the Board and the NFIR the Federation had requested that in the case of project casual labour also half the service rendered by them after attaining temporary status. If the same is followed by the absorption in regular employment should be reckoned as qualifying service for pensionary benefits.”
4. Now, as regards the first submission that the decision of this Court in WP(C) No.2528/2007 UOI v. Gurdial Singh is not on merits, it is a misnomer, for the reason the said decision has followed the law declared by the Andhra Pradesh High Court in the decision in Shaikh Abdul Kadar’s case (supra) which is a reasoned decision and suffice would it be for us to record that repeating the same thing makes it stale and repeating it for the third time makes it unpalatable. Where a High Court has considered a matter in depth and the reasoning is correct it would have a persuasive value for another High Court and if the reasons are found correct it would be sufficient for the second High Court to simply record its concurrence with the reasoning of the former.
5. Having dealt with the first submission we deal with the second. That two relevant office memorandums dated October 14, 1980 and November 28, 1986, contents whereof have been noted in paragraph 3 above were not brought to the notice of the Andhra Pradesh High Court and thus the decision is per incuriam.
6. It is not in dispute that the territory pertaining to pension of railway employees is occupied by Rules framed in exercise of the Constitutional power under Article 309 of the Constitution of India, called the Railway Service Pension Rules 1993, Rule 31 whereof reads as under:-
“31. Counting of service paid from contingencies:- In respect of a railway servant, in service on or after the 22nd day of August, 1969, half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, 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 cold have been sanctioned 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 not analogous to the regular scales of pay, bears some relation in the matter of payment to those being paid for similar jobs being performed at the relevant period by staff in regular establishment;
(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 of service book is available.”
7. A prima facie reading of the Rule would evidence that it provides for the manner in which service would be reckoned for purposes of pensionary benefits and highlights that half the service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment.
8. The Rule in question does not refer to a temporary status employment, and this was noted by the Andhra Pradesh High Court. The Andhra Pradesh High Court then proceeded to consider as to what happens when a railway employee acquires a temporary status and then proceeded to consider whether acquiring said status i.e. temporary status would amount to absorption in service as a regular employee.
9. Though the Andhra Pradesh High Court has not juxtaposed regular employment vis-à-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.
CM No.8913/2012 in WP(C) No.4300/2012 & CM No.16919/2012 in WP(C) No.6339/2012 Since the writ petitions have been disposed of the instant applications seeking stay of the impugned orders till the disposal of the petitions are disposed of as infructuous.
(PRADEEP NANDRAJOG) JUDGE JANUARY 04, 2013 dkb (VEENA BIRBAL) JUDGE