Hon'ble Pankaj Naqvi,J.
(Delivered by Hon'ble Pankaj Naqvi,J.) Union of India through its General Manager, North Eastern Railway, Gorakhpur and another have preferred this writ petition challenging the order dated 1.10.2004 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 1511 of 1994 Shayama Charan Tiwari Vs. Union of India and others wherein the Original Application filed by respondent has been allowed and a direction has been issued to the petitioners to finalize the pensionary benefits of the said respondent, treating him as a casual labour with temporary status.
1. The case set up by the claimant before the Tribunal was that he had served in the Army Services during 1955 to 1964 and thereafter he had been engaged as casual labour on 31.1.1975 under the XEN/Survey, Gorakhpur North Eastern Railway and was disengaged on 15.8.1975. He had also worked from 30.1.1975 till his retirement on 31.10.2003. The claimant was re-engaged on 16.9.1975 as a casual Khalasi and while working he was also granted skilled Grade-III (Mate) with effect from 16.3.1976 and that he was also granted promotion as Skilled Machine Operator from 1.7.1978 and further as Highly Skilled Machine Operator (Grade-B) with effect from 1.1.1981. From 1.1.1981, he also claims to have got temporary status and all the benefits as are given to the temporary employees. He also claims to have been promoted as Skilled Machine Operator (Grade -1) w.e.f. 16.5.1981 and as Machine Operator w.e.f. 7.5.1987. On 2.11.1982 the claimant gave an application to the Chief Engineer (Construction) North Eastern Railway for regularizing his services being an ex-army-man in view of reservation granted to Ex-serviceman to the extent of 20% in class IV (10% in class III) and also in view of Railway Board letter dated 1.5.1971 but the same was never considered by the Railway Administration, even though juniors to the claimants were regularized. A screening was conducted on 14.5.1984 but claimant was not called to face the screening process and on the contrary juniors to the claimant had been called, and upon a representation filed by the claimant before the Executive Engineer (Survey) for a screening against 40% construction reserved post, the Executive Engineer (Survey), Gorakhpur on 18.5.1984 sent a letter to the Chief Engineer (Construction) Northern Eastern Railway, Gorakhpur for calling the claimant in screening and yet nothing proceeded in the matter.
2. On 16.8.1984 a letter is said to have been issued from the office of Chief Engineer (Construction) NER, Gorakhpur by which all the project casual labours who have been granted temporary status with effect from 1.1.1984 have also become entitled to all the rights and benefits admissible to temporary railway servant in terms of Railway Board letter dated 7.5.1983 and further an order dated 8/9-5-1985 was issued by the General Manager (P) by which all the benefits of paragraph 2301 to 2314 of the Indian Railway Establishment Manual have been extended to all the temporary status employees in the construction division and that the same benefits have also been granted to the casual labour absorbed against 40% construction reserved post of regular employee. Even though, the claimant was shown at serial no. 2 of the provisional seniority list of the project casual labourers, yet juniors to the claimant have been regularized bypassing the claimant in the subsequent screenings which took place on 4.2.1988 and again in 1992, the claimant was not called for. In his representation dated 16.8.1993, the claimant had also disclosed the name of persons juniors to him namely Surya Prasad, Ramdeo, Shambhoo, Moti Lal, Ram Lal, Badshah Ahmad, Gopal Singh and others, whose services were regularized after screening in ignorance of the preferential claim of the claimant.
3. However, the claimant retired on 31.10.1993 from the post of Machine Operator. After his superannuation he claims to have made a representation on 19.11.1993 and 11.4.19994 to the C.P.O., N.E.R., Gorakhpur for granting pensionary benefits but to off no avail and it was in these circumstances that the claimant filed the aforesaid application for seeking a direction directing the Railway Administration to grant pensionary benefits to him from the date of his retirement etc.
4. A counter affidavit on behalf of the Railway Administration before the Tribunal stated that the claimant was granted temporary status only with effect from 1.1.1981 and that vide letter dated 16.8.1984 casual labourers with temporary status have been conferred certain rights and benefits which are admissible to temporary railway servants in terms of Railway Board letter dated 7.5.1983 and that pensionary benefits are still not available to temporary status casual employees.
5. The Tribunal vide its order dated 1.10.2004 has held that in view of the decision of the Apex Court in Ram Kumar Vs. Union of India and others reported in 1996 (1) AISLJ 116 casual labourers attaining temporary status are entitled for pensionary benefits as per the orders issued by the Railway Board. In coming to the aforesaid conclusion the Tribunal relied on paragraph 10.1 of the Railway Ministry Circular dated 15.4.1987 providing for terminal benefits to a temporary railway employees who retired on superannuation or on being declared permanently incapacitated for further railway service, and the relevant paragraph reads as under:
"10.1. In partial modification of the Ministry of Railways letter No. F(E) III 78/PN-1/13 dt. 21.2.1981, temporary Railway employees who retired on superannuation or on being declared permanently incapacitated for further Railway service by the appropriate medical authority after having rendered temporary service of not less than ten years, shall be eligible for grant of superannuation/invalid pension, retirement gratuity and family pension at the same scale as admissible to permanent employees under the relevant provisions of the Manual of Railway Pension Rules, 1950, and such other orders as may be force.....".
6. Accordingly a direction was issued to the Railway Administration to fix the pensionary benefits of the claimant treating him to be a casual labourer with a temporary status. The petitioner Union of India and the Railway administration being aggrieved against the aforesaid order of the Tribunal have preferred the present writ petition.
7. The submission of Sri Saral Srivastava, learned counsel for the petitioner is that the claimant was neither a temporary nor a permanent railway servant on the date of his superannuation in as much as, he had only acquired a temporary status with effect from 1.1.1981 and that the Tribunal has misread and misconstrued the ratio of the judgment laid down in the aforesaid decision of Ram Kumar, in as much as, the case of Ram Kumar related to grant of pensionary benefits to the temporary railway employees and not the casual labourers having acquired a temporary status.
8. Per contra Sri S.K. Pandey, learned counsel appearing for respondent no. 1 has sought to justify the grant of pensionary benefits in terms of the impugned order.
9.The sole issue to be examined by this Court is as to whether the respondent being a casual labourer with temporary status is entitled to pensionary benefits or not.
10. The term 'temporary railway servant' was defined in Rule 2301 contained in Chapter XXIII of the Indian Railway Establishment Manual, 1963 which reads as under: -
"2301. (i) Temporary Railway Servants - Definition - A "temporary railway servant" means a servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. The term does not include "casual labour", a "contract" or "part-time" employee or an "apprentice".
11. Similarly, the term 'temporary railway servant' has been defined in Rule 1501 contained in Chapter XV of the Indian Railway Establishment Manual, 1989 reads as under: -
"1501. (i) Temporary Railway Servants - Definition - A "temporary railway servant" means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. The term does not include "casual labour", including 'casual labour with temporary status', a "contract" or "part-time" employee or an "apprentice".
Admittedly petitioner is not claiming himself to be a temporary railway servant.
12. Rule 2511 in Chapter XXV of the Indian Railway Establishment Manual provides for certain entitlements to a casual labour with a temporary status employee. The said rule is quoted herein below: -
"(a) Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months' continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry forward the leave at their credit to the new post on absorption in regulation service.
(b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Selection Boards for Class IV staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employement without having to go through employment exchanges. Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods.
(c) It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status for the conferment of attendant benefits like regular scales of pay, increments etc. Service prior to the absorption against a regular temporary/permanent post after requisite selection will, however, not constitute as qualifying service for pensionary benefits."
13. Subsequently, the aforesaid rule i.e. Rule 2511 was replaced by Rule 2005, which 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 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 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 ex-serviceman 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 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)."
14. A perusal of the aforesaid rules would indicate that in both the sets of rules, the casual labours, who had acquired temporary status, are only entitled to the rights and benefits as are admissible to temporary railway servant, as laid down in Chapter XXIII of the Manual. It was also provided therein that such casual labours, who acquire temporary status will not, however, be brought on the permanent establishment unless they are selected through regular selection board in class IV staffs.
15. The Apex Court in the case of Ram Kumar and others v. Union of India and others, AIR 1988 SC 390 had held in paragraph 12 thereof that no pensionary benefits are admissible even to temporary railway servants, relying upon the statement of the learned Additional Solicitor General. The said paragraph reads as under: -
"12. It is the stand of the learned Additional Solicitor General that no pensionary benefits are admissible even to temporary railway servants and, therefore, that retiral advantage is not available to casual labour acquiring temporary status. We have been shown the different provisions in the Railway Establishment Manual as also the different orders and directions issued by the Administration. We agree with the learned Additional Solicitor General that retiral benefit of pension is not admissible to either category of employees."
16. Subsequently, in review petition filed before the Apex Court in the case of Ram Kumar (supra), the Apex Court observed that it appears that the railway board on the basis of the Fourth Pay Commission Report had provided for pension at the time of superannuation even to those, who are temporary employees, and accordingly, the railway board was directed to consider the claim of temporary employees for pension. The review judgment too did not grant pensionary benefits to the casual labourers with temporary status.
17. The case of Ram Kumar (supra) was followed by the Apex Court in Union of India and others v. Rabia Bikaner, (1997) 6 SCC 580 wherein a claim for family pension on behalf of a widow of a temporary status employee was rejected.
18. In a subsequent judgment in General Manager, North West Railway and others v. Chanda Devi, (2008) 1 SCC (L & S) 399 the Apex Court after considering the aforesaid previous decisions has held that what was protected by conferring temporary status on casual employee was his service, and by reason thereof the pension rules were not made applicable.
19. Reverting to the facts of the present case, we find that the Tribunal has completely misread and misconstrued the law laid down in the aforesaid case of Ram Kumar (supra) in granting pensionary benefits even to the respondent no. 1, who was a casual labour only with temporary status. The term 'railway servant' under Rule 3 (23) of the Railway Services (Pension) Rules, 1993 (for short pension rules) reads as under: -
"3 (23)"railway servant" means a person, who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person, who is holding the post of Chairman, Financial Commissioner or a Member of the Railway Board, but does not include casual labour or person lent from a service or post, which is not under the administrative control of the Railway Board to a service or post, which is under such administrative control."
20. Considering the nature of engagement held by the respondent, it cannot be said that he was entitled to claim pension in terms of pension rules. We also find that the Division Bench of this Court in Civil Misc. Writ Petition No.46149 of 2011 (Union of India and others v. Smt. Somwati and another) decided on 23.12.2011, wherein similar issue was decided and this Court held that status of temporary railway servant is attained only by casual labour (having temporary status) after he undergoes the screening test and a process of absorption in a railway establishment either against a temporary or a permanent post. As the respondent no. 1 never underwent through the said exercise, he cannot claim the status of temporary servant so as to claim pensionary benefits.
21.Accordingly, we are of the considered view that the Tribunal fell in error in misconstruing and misinterpreting the judgment of Ram Kumar (supra) in awarding the pensionary benefits to the respondent no. 1.
22. We allow the writ petition and set aside the order of the Tribunal dated 1.10.2004 in Original Application No.1511 of 1994 (Shayama Charan Tiwari Vs. Union of India and others) filed by the respondent no. 1 and further dismiss the said Original Application . No order as to costs.
Order Date : February 24th , 2012 Masarrat