Hon. Manoj Misra, J.
( Delivered by Hon. Manoj Misra, J.)
1. By this petition, the Union of India through General Manager, North Central Railway, Subedarganj, Allahabad and its concerned officers, have challenged the order dated 19.4.2011 passed by the Central Administrative Tribunal, Allahabad (hereinafter referred to as the Tribunal) in Original Application No. 207 of 2010 preferred by the respondent No.1 (hereinafter referred to as the claimant) for the benefit of Post Retirement Passes.
2. The claimant preferred Original Application No 207 of 2010 stating, inter alia, that he was initially appointed on 15.4.1975/13.3.1979 as Casual Khalasi in the North Central Railway, Head Quarter at Kanpur and was accorded temporary status on 13.3.1989 on the post of Khalasi. On 26.5.1995 he was transferred from Kanpur to New Delhi for absorption against a clear vacancy. Later, on 31.12.1996, after screening, he was absorbed and empanelled, as a regular Electrical Khalasi and was placed at serial No.310 in the panel. Thereafter, on 17.8.98, the claimant was transferred from New Delhi to Kanpur, from where he retired on 31.7.2008. Before his retirement, on 15.5.2008, the claimant submitted an application for post retirement passes, followed by another application dated 25.5.2008, which was rejected on 11.1.2010. The order dated 11.1.2010 has been brought on record as part of Annexure-1 to the writ petition. A perusal thereof goes to show that the Railway Authorities did not take into account half of the period of casual service rendered by the claimant before attainment of temporary status while calculating the period of qualifying service rendered by the claimant for pass entitlement. The relevant extract from the order dated 11.1.2010 is reproduced below:
"In terms of instructions contained in Rly. Board letter No. E/NG/11/70/CL/12 dt.14 Oct. 1980 half of the Ty. Status service as qualifying for pensionary benefit is admissible. As the casual service is not to be counted, the same may not be included for the purpose of pass entitlement."
3. Challenging the order dated 11.1.2010 the claimant (respondent no.1) preferred the Original Application No. 207 of 2010 on the ground that his service rendered as casual labour should have been taken into account for the purpose of ascertaining whether he completed the qualifying period of service for gaining entitlement to post-retirement passes. He further claimed that since the Railway Authorities had been taking half of the period of casual service for the purpose of calculating qualifying service for pensionary benefits, after absorption in the Railway Establishment, therefore, not counting the said period for the purpose of entitlement to post-retirement passes was unjustified.
4. The Railway Authorities, in their counter reply before the Tribunal, justified the order dated 11.1.2010 on the ground that the claimant had not completed 20 years service from the date of attaining temporary status till the date of his retirement, therefore, he was not entitled to post retirement passes. The service rendered as a casual labour is not to be counted for calculating qualifying service for the purpose of passes entitlement.
5. A supplementary counter reply was also filed on behalf of the Railway Authorities thereby bringing on record that the President of India by exercising power conferred under the proviso to Article 309 of the Constitution of India has framed rules governing issuance of passes to the Railways' servants. These rules are known as the Railway Servants (Pass) Rules, 1986. A complete copy of the Railway Servants (Pass) Rules, 1986 were provided to us during the course of hearing. The relevant provisions of the Railway Servants (Pass) Rules, 1986 are being reproduced herein below: "Rule 1.Short Title, Commencement and Application:
(1) These Rules may be called the Railway Servants (Pass) Rules, 1986.
(2) They shall come into force on the date of their publication in the Official Gazette.
(3) Except where specifically provided to the contrary, they shall apply to all railway servants under the administrative control of the Ministry of Railways ( Railway Board) but shall not apply to:-
(h) ''railway servant' means a person who is a member of a service or who holds a post under the administrative control of Railway Board and includes a person who holds a post in the Railway Board. Persons 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 do not come within the scope of this definition. This term excludes casual labour for whom special orders have been issued.
Rule 4. Kinds of Passes: (1) A railway servant or the entitled members of his/her family and dependent relatives as defined in these Rules may be issued the following kinds of passes, namely
(i) duty pass;
(ii) privilege pass including passes while on deputation;
(iii) school pass;
(iv) post- retirement complimentary pass;
(v) widow pass;
(vi) residential card pass; and
(vii) special pass.
(2) The Passes specified in clause (i) of sub-rule (1) may be issued in the form of metal pass, a card pass or a cheque pass.
Rule 8. Post-retirement Pass: (1) a post-retirement complimentary pass may be issued to a railway servant after retirement or after he ceases to be a railway servant; and (2) The category of railway servants, the circumstances and the conditions subject to which a pass under sub-rule (1) may be issued shall be as specified in Schedule IV.
Rule 16. Status of Pass Manuals etc.: The provisions contained in Pass Manuals issued by the respective Railway or any other provisions on Passes contained in any other Manual, Rules, etc. shall be valid provided it is not in contravention with the provisions laid down in these Rules."
6. The sub-rule (2) of Rule 8 provides that the circumstances and the conditions subject to which a pass may be issued to a Railway Servant after retirement are specified in Schedule IV. Schedule IV provides for various categories of employees. The relevant category, to which the claimant belongs, is group D. The condition for issue of a post- retirement complimentary pass to an employee belonging to Group-D, as contained in Schedule IV, is reproduced below:-
"Retired with minimum railway service of 20 years, irrespective of the date of retirement."
7. The main question that arises for our adjudication is whether the words ''Railway service of 20 years', as mentioned in the Railway Servants (Pass) Rules, 1986, includes the service rendered as a casual labour, before attainment of temporary status, or not.
8. We have heard Sri A.K. Gaur, Advocate counsel for the petitioners and Sri Amar Deo Singh, Advocate who appeared for the claimant respondent, and have perused the record.
9. The contention of the counsel for the petitioners is that considering the definition of "Railway Servant", as contained in Rule 2(h) of the Railway Servants (Pass) Rules, 1986, the service rendered as a casual labour has to be excluded while counting the qualifying service of 20 years for entitlement to Post Retirement Passes. The counsel for the petitioners has drawn our attention to Annexure No.6 to the writ petition, which is Railway Board circular No.E(W)2004-PS5-1/15, dated 26.5.2006. The contents of the said circular are being reproduced below:
"Subject: Counting of temporary service of casual labourers for the purpose of Post-Retirement Complimentary Passes. (No. E (W) 2004 - PS 5-1/15, dated 26.5.2006) AIRF has raised a demand for issuing Post-Retirement Complimentary Passes to casual labourers taking into account 50% service of casual labourers from temporary status till their regular absorption for the purpose of Post Retirement Complimentary Pass facilities.
In this connection, attention is invited to instructions issued vide Board's letter No. E(NG) 64CL/25, dated 29.1.1966 which unambiguously provide that continuous service rendered by casual labourers after acquiring temporary status is counted for the purpose of Post- Retirement Complimentary Passes. It is, accordingly, reiterated that the instructions as contained in Board's letter dated 29.1.1966 should be followed scrupulously on Zonal Railways.''
10. Relying on the aforesaid circular, as also the definition of Railway Servant in Rule 2(h) of the Railway Servants (Pass) Rules, 1986, the counsel for the petitioners has contended that the service rendered by a casual labour before attaining temporary status cannot be counted for the purpose of ascertaining eligibility for grant of post retirement passes. The counsel for the petitioners has also placed before us Rule 16 of the Railway Servants (Pass) Rules, 1986 which provides that the provisions contained in Pass Manuals issued by the respective Railway or any other provisions on Passes contained in any other Manual, Rules, etc. shall be valid provided it is not in contravention with the provisions laid down in these Rules.
11. The counsel for the petitioners has further submitted that since it is the admitted case of the claimant that he attained temporary status on 13.3.1989, and that he retired on 31.7.2008, therefore, he did not complete the qualifying period of 20 years of service for gaining entitlement to retirement passes under the Rules.
12. The counsel for the petitioners contended that the Tribunal committed manifest error of law on three counts: (a) by misreading the pleadings so as to hold that the admitted case of the parties was that the claimant attained temporary status on 13.3.1979, when it was 13.3.1989; (b) by placing reliance on a judgment of Andhra Pradesh High Court in the case of G.M. South Central Railway, A.P. Vs. Shalik Abdul Khader, 2004(2) ATJ, 23 so as to hold that 50% of the service rendered prior to attainment of temporary status would be counted towards qualifying service for entitlement to post-retirement passes even though that judgment was rendered with regards to the claim for pensionary benefits; and (c) by ignoring the impact of the Railway Servants (Pass) Rules, 1986.
13. Having gone through the judgment of the Tribunal we find that although in paragraph-2 of its judgment, while summarizing the facts of the case, the Tribunal has noted that the claimant was granted temporary status on 13.3.1989 on the post of Khalasi, but in paragraphs 4, 5 and 6, the date of attaining temporary status has been mentioned as 13.3.1979 instead of 13.3.1989. This could be typographical error. However, the fact is that the admitted case of the claimant in para 4.2 of the Original Application was that he attained temporary status on 13.3.1989. The averments made in paragraphs 4.2 of the Original Application are reproduced below:-
"That the respondents have granted the temporary status on 13.3.1989 to the applicant on the post of Khalasi in North Central Railway Kanpur."
14. Thus, from the own admission of the claimant it was established that he attained temporary status on 13.3.1989. This date of award of temporary status has not been challenged by the claimant in his original application. Therefore, we have no option but to hold that the temporary status was attained by the claimant on 13.3.1989. The observation to the contrary, made by the Tribunal, is erroneous.
15. The Tribunal while allowing the original application of the claimant held that 50% of the period of service rendered by the claimant as a casual labour, before attaining temporary status, should be counted while calculating the period of qualifying service rendered by the claimant for entitlement to retirement passes. While holding as above, the Tribunal placed reliance on the judgment of Shalik Abdul Khader (Supra).
16. We have gone through the judgment rendered by Andhra Pradesh High Court in the case of Shalik Abdul Khader (supra). Para 1 of the said judgment elucidates the question that was under consideration there. For ready reference, the same is being reproduced below:
"This is a writ petition filed by the South Central Railway challenging the order of Tribunal passed in O.A. No.907 /2000. The question that was considered by 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."
17. Accordingly, the said judgment cannot be taken as a binding precedent while considering entitlement to retirement passes, the issuance of which are now governed by Railway Servants (Pass) Rules, 1986 framed under the proviso to Article 309 of the Constitution of India. Thus, in our opinion the Tribunal fell in error by placing reliance on the judgment of the Andhra Pradesh High Court rendered in the case of Shalik Abdul Khader (supra), as also for not considering the import of the Pass Rules, 1986 framed under the Proviso to Article 309 of the Constitution of India.
18. The Apex Court in the case of General Manager, Western Railway and others Vs. Y.P. Sharma and others, reported (1999) 1 SCC page 549, in paragraph 3 of its judgment, observed as under:-
".......the issue of passes and privilege ticket orders to railway servant for travel by trains is now governed by the Railway Servants (Pass) Rules, 1986 which have been made under Article 309 of the Constitution by the President. Rule 16 of the Railway Servants (Pass) Rules, 1986 which deals with the status of the Pass Manual is as follows:-
16. Status of Pass Manuals etc:- ''The provisions contained in Pass Manuals issued by the respective Railway or any other provisions on passes contained in any other Manual/Rules etc. shall be valid provided it is not in contravention with the provisions laid down in these Rules.'' Therefore, in the case of conflict, the Railway Servants (Pass) Rule, 1986 prevail over the Pass Manual."
19. In view of the aforesaid decision of the Apex Court it is no longer permissible for us to use the definition of qualifying service with reference to pensionary benefits for the purpose of providing post-retirement passes to Railway Servants, which are specifically covered by Rule 4 and Rule 8 of the Railway Servants (Pass) Rules, 1986. The qualifying service for gaining entitlement to post-retirement pass has to be considered only with reference to the Railway Servants (Pass) Rules, 1986 together with such circulars or orders which are not in contravention with the provisions laid down in these Rules.
20. After having examined the various provisions of the Pass Rules, 1986 we find that although the terms "railway service" has not been defined in the Pass Rules, 1986 but since it has to be rendered by a " railway servant", therefore, 20 years of "railway service" as required for entitlement to post retirement passes have to be interpreted in such a manner that the definition of "Railway Servant" in Rule 2(h) of the Pass Rules, 1986, as also Rule 1(3) (ii) of the said Rules, is not rendered otiose. Rule 2(h) specifically excludes casual labour from the definition of railway servant. Likewise Rule 1 (3) (ii) provides that the Pass Rules, 1986 shall not apply to a person in the casual employment or employed on daily wages. Harmonizing the aforesaid provisions, as also the mandate of the circular dated 26.5.2006, we are of the view that for calculating the qualifying railway service of 20 years, the service rendered as a casual labour before attaining temporary status is not to be counted for the purpose of entitlement to post retirement complimentary passes. The decision to the contrary rendered by the Tribunal is erroneous in law and is liable to be set aside.
21. At this stage, it is necessary for us to note and deal with a novel contention raised by the counsel for the claimant-respondent. Bringing to our notice the provisions of paragraph 2005 of the Indian Railway Establishment Manual, Volume-II, which has been quoted in paragraph 21 of the writ petition, he contends that admittedly the date of appointment of the claimant as casual labour/khalasi was 15.4.1975/13.3.1979, therefore, he should have been awarded temporary status on completion of 120 days or 360 days of continuous employment, as the case may be. He contends that if such benefit is provided to the claimant then he would be having qualifying service of more than 20 years and, as such, would be entitled to the post retirement passes. This submission of the counsel for the claimant respondent cannot be accepted for the simple reason that ascertainment of the date of acquisition of temporary status is a question of fact dependent on continuous employment. Since, the claimant in his original application has made a categorical statement that he attained temporary status on 13.3.1989 it would not be permissible for us to consider a new plea which entails investigation into facts.
22. In view of the aforesaid discussion, we find that the claimant-respondent had not completed 20 years of qualifying service for the purpose of attaining eligibility to post retirement passes under the Railway Servants (Pass) Rules, 1986. The judgment of the Tribunal is, therefore, erroneous in law and is liable to be set aside.
23. In the result, the petition succeeds and is allowed. The judgment and order dated 19.4.2011 passed by the Central Administrative Tribunal, Allahabad in Original Application No. 207 of 2010, is hereby quashed and set aside.
24. There shall be no order as to costs.
I agree.
(Hon'ble Manoj Misra, J.) (Hon'ble Sunil Ambwani, J.) Order dated: 10 .2.2012. G.S.