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Tuesday, March 28, 2017

we hold : i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension. ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension. iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993. iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993. 56. In result, all the appeals are allowed. The impugned judgments of Delhi High Court are set aside. The writ petitions filed by the appellants are allowed, the judgments of Central Administrative Tribunal are set aside and the Original Applications filed by the respondents are disposed of in terms of what we have held in para 55 as above.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3938 OF 2017
                  (ARISING OUT OF SLP (C) NO. 23723 OF 2015


          UNION OF INDIA & ORS.                    .... APPELLANTS

                                   VERSUS

           RAKESH KUMAR & ORS.                    .... RESPONDENTS


WITH
C.A .NO.3939 OF 2017
(ARISING OUT OF SLP(C)NO.23725 OF 2015),

C.A. NO.3940 OF 2017
(ARISING OUT OF SLP(C)NO.3382 OF 2016),

C.A. NO.3941 OF 2017
(ARISING OUT OF SLP(C) No.28597 OF 2016),

C.A. NO.4384 OF  2017
(ARISING OUT OF SLP(C)NO.821 OF 2017),

C.A. NO.3943 OF 2017
(ARISING OUT OF SLP(C) NO.8365 OF 2017 @CCNO.1516/2017 AND
C.A. NO.3944 OF 2017
(ARISING OUT OF SLP(C) NO.3719 OF 2017 )


                                  J U D G M E N T


ASHOK BHUSHAN, J.


      These appeals have been  filed  by  the  Union  of  India,  Divisional
Railway Manager, Northern Railway alongwith few  other  Railway  Authorities
challenging  judgments of Delhi High Court by which writ petitions filed  by
the  appellants  have  been  dismissed.   All  the  appeals  raise   similar
questions of law and are based  on  almost  identical  facts.  It  shall  be
sufficient to note the facts of C.A. No.3938 of 2017 arising out of SLP  (C)
No. 23723 of 2015 in detail for  appreciating  the  issues  raised  in  this
batch of appeals.

CA NO. 3938 2017(ARISING OUT OF SLP(C) NO.23723 OF 2015)

2.     The respondents to the appeal  were  initially  appointed  as  casual
labour in the Northern Railway, after working for one or  more  years,  they
were granted temporary status and subsequently regularised  against  regular
posts. For example, the Respondent No. 1 was engaged on  casual  basis  from
27.06.1984  and   w.e.f.  22.06.1985  he  was  granted   temporary   status.
Subsequently, w.e.f. 31.12.1996 he was regularised against a  post  and  has
been working in such capacity at New Delhi Railway Station.  Respondent  No.
1 raised a grievance  regarding  granting  him  full  service  benefit  from
22.06.1985  to  31.12.1996  instead  of  50  per   cent   service   benefit.
Similarly, Respondent Nos.2 – 24 were engaged initially on casual basis  and
after one or two years were granted  the  temporary  status  and  thereafter
were regularised w.e.f. 31.12.1996.  All the  respondents  raised  the  same
grievance i.e. giving full service benefit for the period during which  they
were working,  having  temporary  status.   Respondent  Nos.1  to  24  filed
O.A.No.2389 of 2014 before the  Central  Administrative  Tribunal  Principal
Bench, New Delhi.

3.    Before the Tribunal the applicants claimed for following reliefs:-
"(a)  To direct the respondents  to  count  the  services  rendered  by  the
applicants in the capacity of casual labour as 50% after counting  120  days
and 100% from the date of temporary status  till  their  regularisation  for
the purpose of pension and pensionary  benefits  and  other  benefits  as  a
qualifying service.

(b)   To direct the respondents to  extend  the  benefits  of  judgment  and
order passed in Shyam Pyare & Ors. vs. UOI & Ors. which is on the  basis  of
Shaikh Abdul Khadar's Judgment for the purpose  of  pension  and  pensionary
benefits  as  well  as  other  consequential   benefits,   accordingly   the
respondents  be  directed  to  examine  the  cases  of  the  applicants   in
accordance with law.

(c)   Any other relief which this Hon'ble Tribunal deem fit and  proper  may
also be passed in the facts and circumstances of the case in favour  of  the
applicants.”


4.    The Tribunal relying on  its  earlier  order  dated  29.05.2014  in  a
similar case being O.A.No.1921 of 2014, Shri Prem Pal vs Union of India  and
Ors. allowed the Original Application filed by the respondent. Tribunal   in
its order dated 18.07.2014 referred to various orders passed by  it  wherein
Tribunal had held that a casual labour after having been  granted  temporary
status is entitled to reckon 100 per cent period of service  with  temporary
status for the pensionary benefit.

5.    Tribunal disposed of the Original  Application  by  issuing  following
directions:-
"In view of the above position, we dispose  of  this  OA  at  the  admission
stage itself with the direction to the respondents to examine the  cases  of
the applicants in the light of the aforesaid Orders  of  this  Tribunal.  If
applicants' cases are also covered by the said Orders, they  shall  also  be
accorded the  same  benefits.  In  any  case,  the  respondents  shall  pass
appropriate order in this case within a period of two months from  the  date
of receipt of a copy of this Order. There shall be no order as to cost.”


6.    The Union of India and Railway Authorities aggrieved by the  aforesaid
directions of the Tribunal filed  writ  petition  before  Delhi  High  Court
being Writ Petition No. 7783 of 2014.  The case  of  the  appellants  before
the High Court was that only 50 per cent of the temporary status of  service
can be counted for the purpose of the pensionary benefit. It was pleaded  in
the writ petition that the judgment of Andhra Pradesh High Court in  General
Manager, South Central Railway, Secunderabad & Anr. vs. Shaik  Abdul  Khader
reported in 2004 (1) SLR 2014 had been dissented by the Andhra Pradesh  High
Court itself in a subsequent judgment dated 01.05.2009 in  Writ  Petition(C)
No. 10838 of 2001, General Manager, South Central Railway, Secunderabad  vs.
A. Ramanamma. It was further pleaded that Para 2005 of IREM permits only  50
per cent  of  temporary  status  service  to  be  counted  for  purposes  of
pensionary benefit.
7.    Delhi High  Court  vide  its  judgment  and  order  dated   14.11.2014
dismissed the writ petition following its earlier judgment dated  10.11.2014
in W.P.(c) 7618 of 2014 in Union of India vs. Prem Pal Singh. It  is  useful
to extract the entire judgment of the Delhi High Court dated 14.11.2014:
      “The dispute in this case is as to the manner in which the
respondents/applicants' period of service to be counted for the  purpose  of
terminal and pensionary benefits.

      The petitioner Union of India is aggrieved by an order of the
Central Administrative Tribunal dated 18.07.2014.  At  the  outset,  it  was
pointed out that this Court in W.P.(C)7618/2014 and  connected  case  (Union
of India & Ors. vs. Prem Pal Singh), decided on 10.11.2014 had  occasion  to
deal with an identical matter. The only difference was that  the  orders  of
the CAT in those cases was made on 06.02.2014 and 29.05.2014. The Court  had
on that occasion taken into  consideration  the  Railway  Service  (Pension)
Rules, specifically Rule 20 as well as the Master Circular no.54  (paragraph
20) and paragraph 2005 IREM. In addition, the Court had
considered various rulings including those of the Supreme Court and held
that 50% of the period spent by casual employee subject to his being
conferred temporary status  and  eventual  regularisation  was  entitled  to
reckon for the purposes of pensionary and  terminal  benefits  and  likewise
the entire period of temporary service - subject  to  regularisation  –  was
eligible to be counted for the purposes of pension and terminal benefits.

      Following the said decision in W.P. (C) 7618/2014 decided on
10.11.2014, this petition is accordingly dismissed.”



C. A. NO. 3939  2017 (ARISING OUT OF SLP (C) 23725 OF 2015)


8.    This appeal has been filed against the  judgment  of  the  Delhi  High
Court dated 10.11.2014 in W.P. (C) No.  7627 of 2014 Union of India  &  ors.
vs. Shyam Pyare Yadav & Ors. by which judgment  dated  10.11.2014  two  writ
petitions being W.P. (C) No. 7618 of 2014,  Union  of  India  vs.  Prem  Pal
Singh and W.P. (C) No. 7627 of 2014, Union of India  & Ors. vs. Shyam  Pyare
Yadav & Ors. had been decided.
9.    The respondents to the writ petition were also casual employees  in  a
construction organisation, who were granted  temporary  status  subsequently
and were regularised against permanent posts. They also claimed  benefit  of
100 per cent service after grant of temporary  status  for  the  purpose  of
pension. They filed O.A.No.3745  of  2012,  which  was  allowed  by  Central
Administrative Tribunal by its judgment dated 06.02.2014  against  which  W.
P. (C) No. 7627 of 2014 was filed by Union of India, which was dismissed  by
Delhi High Court on 10.11.2014

C.A.NO. 3940 OF 2017(ARISING OUT OF SLP(C)NO.3382 OF 2016)

10.   The appeal had been filed against  the  judgment  of  the  Delhi  High
Court dated 18.11.2014 in W. P. (C) No. 7913 of  2014.  The   W.  P.(C)  No.
7913 of 2014, following the judgment dated 10.11.2014 in Union  of  India  &
Ors. vs. Prem Pal Singh (Supra), has been dismissed.  The  respondents  were
also appointed as casual labourers who were subsequently  granted  temporary
status and were thereafter, regularised against permanent posts.  They  also
claimed entire period of temporary status to be  considered  for  pensionary
benefit. An O.A.No.2221 of 2013 was filed which was  allowed  on  23.05.2014
against which W.P.(C) No. 7913 of 2014 was filed,  which  was  dismissed  on
18.11.2014.

C. A. NO. 3941 OF 2017(ARISING OUT OF SLP(C)NO.28597 OF 2016)


11.   The appeal has been filed against judgment of Delhi High  Court  dated
18.01.2016  in  W.P.  (C)  No.  10202  of  2015  and  other  connected  writ
petitions. The High Court following its earlier  judgment  dated  10.11.2014
in Union of India & Ors. vs. Prem Pal Singh (Supra) had dismissed  the  writ
petitions. The respondents were also  casual  employees,  who  were  granted
temporary status and thereafter, regularised.   They  claimed  reckoning  of
the 100 per cent service period performed by them after obtaining  temporary
status for the purpose  of  pensionary  benefit.  Original  Application  was
filed before the tribunal which was allowed against which the writ  petition
was filed.

C.A.NO. 4384 OF 2017(ARISING OUT OF SLP(C) NO.821 OF 2017)

12.   The appeal had  been  filed  against  the  judgment  and  order  dated
18.01.2016 passed by Delhi High Court in W.P.(C) No.10706 of 2015. The  High
Court relying on its earlier judgment dated 10.11.2014 in Union of  India  &
Ors.  vs.  Prem  Pal  Singh  (Surpa)  dismissed  the  writ   petition.   The
respondents were also casual labourers, who were  granted  temporary  status
and  thereafter,  regularised  against   the   permanent   posts.   Original
Application was filed before the Tribunal which was  allowed  against  which
judgment, the writ petition was filed, which got dismissed.

C.A. No.3943 OF 2017[ARISING OUT OF SLP(C)No.8365 OF 2017 (CC NO. 1516)]

13.   The appeal has been filed against  the  judgment  of  the  Delhi  High
Court dated 31.03.2016 in W.P.(C)No. 9286 of 2015. The  High  Court  relying
on its earlier judgment dated 10.11.2014 in Union of India & Ors.  vs.  Prem
Pal Singh (Supra) had dismissed the  writ  petition.  The  respondents  were
also engaged as casual labourers, who were  accorded  temporary  status  and
thereafter were regularised. Original Application filed by  the  respondents
were allowed holding that they were entitled to reckon the entire period  of
temporary service for pensionary benefit, which order was  affirmed  by  the
High Court.

C.A. No.3944 OF 2017(ARISING OUT OF SLP(C)No. 3719 OF 2017)

14.   This appeal has been  filed  against  the  judgment  and  order  dated
18.01.2016 in W.P.(C) No.11521 of  2015.  The  High  Court  relying  on  its
earlier judgment dated 10.11.2014 in Union of India  &  Ors.  vs.  Prem  Pal
Singh (Supra)  dismissed  the  writ  petition.  The  respondents  were  also
initially appointed as casual labourers and  thereafter,  granted  temporary
status and subsequently, were regularised  for  the  permanent  posts.  They
filed  an  O.A.  before  the  Central  Administrative   Tribunal,   claiming
reckoning of entire period of  temporary  service  for  pensionary  benefit,
which application was allowed, aggrieved by which order Union of  India  had
filed an application, which had been dismissed.
15.   From the facts, as  noted  above,  it  is  clear  that  all  the  writ
petitions filed by the Union of India giving rise to the above appeals  have
been dismissed relying on the judgment of the High  Court  dated  10.11.2014
in  W. P.(C) No. 7618 of 2014 and  W. P.(C) No. 7627 of  2014.  Against  the
judgment dated 10.11.2014 in  W. P.(C) No. 7618 of 2014,  an   SLP  (C)  No.
23720 of 2015 had been filed, which was heard on 08.03.2017.   SLP  (C)  No.
23720 of 2015 had been disposed of in view of  the  statement  made  by  the
learned  counsel  for  the  respondents  as  noticed  in  the  order   dated
08.03.2017. However, against the same judgment dated 10.11.2014 rendered  in
W.P(C)No. 7618 of 2014 and W.P.(C)  No. 7627 of 2014 the Union of India  has
filed SLP(C) No. 23725 of 2015 arising out of W.P.(C)No. 7627 of 2014  which
is also taken up for consideration in this batch of appeals.
16.   Judgment of Delhi High Court dated 10.11.2014  had  been  followed  in
all other cases. We shall refer to the judgment  of  the  High  Court  dated
10.11.2014 as the impugned judgment while considering all these appeals.
17.   We have  heard,  Mr.  Maninder  Singh,  learned  Additional  Solicitor
General on behalf of the appellants. We have also heard  Mr.  M.C.  Dhingra,
and other learned counsel appearing for the respondents in  support  of  the
judgment of the Delhi High Court.
18.   Learned  Additional  Solicitor  General   in  support  of  the  appeal
contended that the High Court committed  error  in  holding  that  a  casual
employee is entitled to  reckon  the  100  per  cent  period  after  getting
temporary  status  for  computation  of  pension.  He  submitted  that   the
computation of pension is  governed  by  statutory  rules,  namely,  Railway
Services (Pension) Rules, 1993 (hereinafter referred  to  as  'Rules,1993'),
under which only 50 per cent period can be counted of a casual  labour,  who
attains a temporary status as per Rule 31 of Rules,1993. He  contended  that
the judgment of Andhra Pradesh High Court in General Manager, South  Central
Railway, Secunderabad & Anr. vs. Shaik Abdul Khader  reported  in  2004  (1)
SLR 2014 which is the basis of the judgment of the High  Court,  had  itself
been dissented and not followed by the Andhra Pradesh High Court in  General
Manager,  South  Central  Railway  vs.  A.   Ramanamma(Supra)   decided   on
01.05.2009. It is contended that casual labourer who  is  granted  temporary
status is paid out of contingency and is governed  by  Rule,  31  of  Rules,
1993.
19.   He further contended that the  issue  is  completely  covered  by  the
judgment of the Apex Court reported in General Manager, North  West  Railway
& Ors. vs. Chanda Devi, 2008 (2) SCC 108 and High Court as well as  Tribunal
had  committed  error  in  holding  that  casual   worker  after   obtaining
temporary status is entitled to reckon 100 per cent period  of  service.  He
submitted that the Delhi High Court has committed  error  by  not  following
the judgment of this Court in Chanda Devi case (Supra)  and  inappropriately
distinguished the same by saying that  it  did  not  consider  Rule,  20  of
Rules, 1993.
20.   Learned  counsel  for  the  respondents  refuting  the  submission  of
counsel for the appellants contended that the High Court has  not  committed
any error  in  dismissing  the  writ  petition  of  the  appellants.  It  is
contended that after obtaining the temporary status entire service is to  be
reckoned for computation of pension. It  is  further  contended  that  under
Rule, 20 of Rules, 1993 qualifying service to a  Railway  Servant  commences
from the date he takes  charge  of  the  post  either  substantially  or  in
officiating or in temporary capacity of  employment.  The  respondents  were
granted temporary status, their working is in temporary  capacity  and  they
are entitled for the benefit under Rule, 20 of Rules, 1993. It is  contended
that the judgment of the Andhra  Pradesh  High  Court  in  General  Manager,
South Central Railway vs. Shaik Abdul Khader(Supra) had rightly been  relied
by the High Court.
21.   Mr. M.C.  Dhingra  contended  that  there  is  no  difference  between
Railway Servants, one who is paid out of Contingency  or  one  that  who  is
paid out of Consolidated Fund.  He submitted  that  no  distinction  can  be
made from the source of payment.
22.   From the above submissions of the learned counsel for the parties  and
materials on record, the only issue which arises for consideration in  these
appeals is:
Whether the entire services of a casual  worker  after  obtaining  temporary
status till his regular absorption on a post is entitled to be reckoned  for
pensionary benefit or only 50  per  cent  period  of  such  service  can  be
reckoned for pensionary benefit?

23.   In so far as reckoning of 50 per  cent  casual  period,  there  is  no
challenge and it is clear that the said  reckoning  is  in  accordance  with
Rule 31 of Rules, 1993 and the benefit of  said  50  per  cent  services  of
casual period had already been extended to the respondents.  Thus,  we  need
to answer in these appeals the only question as noted above.
24.   The Tribuanl as well as High Court has referred  to  Para  20  of  the
Master Circular No. 54, Para 2005 of  Indian  Railway  Establishment  Manual
(IREM) as well as Rules, 1993.
25.   Para 20 of the Master Circular No. 54 is quoted as below:-
      “20.   Counting  of  the  period  of  service  of  Casual  Labour  for
pensionary benefits: - Half of  the  period  of  service  of  casual  labour
(other  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.”

26.   Next Provision need to be noted is Para 2005  of  IREM,  which  is  as
follows:-
"2005 IREM:
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
XXIII 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  vis-a-vis
other  regular/  temporary  employees.  This  is  however,  subject  to  the
provisions that  if  the  seniority  of  certain  individual  employees  has
already been  determined  in  any  other  manner,  either  in  pursuance  of
judicial decisions of 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.

            ...  ...   ...  ...”


27.   Railway Services (Pension) Rules, 1993 have been framed under  proviso
to Article 309 of the Constitution of India. Rule 20 and Rule 31  of  Rules,
1993 which are relevant for our purpose, are extracted as below: -
"20. Commencement of qualifying service- Subject to the provisions of  these
rules, qualifying service of a railway servant shall commence from the  date
he takes  charge  of  the  post  to  which  he  is  first  appointed  either
substantively or in an officiating or temporary capacity:

 Provided  that  officiating  or  temporary  service  is  followed,  without
interruption, by substantive appointment in the same or another  service  or
post:

      Provided further that -

(a) in the case of a railway servant in a Group  ‘D’  service  or  post  who
held a lien or a suspended lien on a permanent  pensionable  post  prior  to
the 17th April, 1950, service rendered before attaining the age  of  sixteen
years shall not count for any purpose; and

(b) in the case of a railway servant not  covered  by  clause  (a),  service
rendered before attaining the age of eighteen years shall not count,  except
for compensation gratuity.”

“31. Counting of service paid from Contingencies- In respect  of  a  railway
servant, in service on or after the 22nd  day  of  August,  1968,  half  the
service paid from contingencies shall be taken into account for  calculating
pensionary benefits on absorption in  regular  employment,  subject  to  the
following condition namely: -

(a) the service paid from contingencies has been in a job  involving  whole-
time employment;

(b) the service paid from contingencies should be in a type of work  or  job
for which regular posts could have been sanctioned such as posts  of  malis,
chowkidars and khalasis;

(c) the service should have been  such  for  which  payment  has  been  made
either on monthly rate basis or on  daily  rates  computed  and  paid  on  a
monthly basis and which, though not analogous to the regular scales of  pay,
borne some relation in the matter of pay to those  being  paid  for  similar
jobs  being  performed  at  the  relevant  period  by   staff   in   regular
establishments;

(d) the service paid from contingencies has been continuous and followed  by
absorption in regular employment without a break;

      Provided that the weightage for past service paid  from  contingencies
shall be limited to the period  after  1st  January,  1961  subject  to  the
condition that authentic records of service such as pay bill,  leave  record
or service-book is available.

NOTE - (1) the provisions of this rule shall also  apply  to  casual  labour
paid from contingencies.

(2) The expression  “absorption  in  regular  employment”  means  absorption
against a regular post.”


28.   The perusal of para 20 of the  Master  Circular  indicates  that  only
half of the period of  service  of  a  casual  labour  after  attainment  of
temporary status on completion of 120  days  continuous  service  if  it  is
followed by absorption in service as a regular Railway employee, counts  for
pensionary benefits.

29.   Para 2005 of Indian Railway Establishment  Manual  also  contains  the
same scheme for reckoning the  period  for  pensionary  benefit.  Para  2005
contains the heading:

“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).”

30.   The above heading  enumerates  the  privileges  admissible  to  casual
labour who are treated as temporary. Clause(a) of para 2005 provides:

"...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.”


31.   Let us now look into the judgment of High Court  dated  10.11.2014  to
find out the reasons for holding that  the  casual  labour  after  obtaining
temporary status  is  entitled  to  reckon  entire  period  of  service  for
pensionary benefits. In Para 7 of the judgment  the  High  Court  refers  to
para 20 of the Master Circular and  para  2005  of  IREM  as  administrative
instructions clarifying that half  the  period  spent  as  casual  labourers
would be eligible to reckon for the purpose of pension. In  Para  6  of  the
judgment following was stated by the High Court:
"6. It would be immediately apparent that the Master  Circular  No.  54  and
para 2005 of the IREM deal with a situation where  casual  labourers/workers
are  eventually  regularised  after  attainment  of  temporary  status.  The
combined effect of these is to entitle the individuals who  work  as  casual
workers for a period, to reckon half of  that  period  for  the  purpose  of
pension...”

32.   The High Court in the impugned judgment  has  relied  on  Rule  20  of
Rules, 1993 and judgment of Andhra Pradesh High Court  in  General  Manager,
South Central Railway, Secunderabad & Anr. Vs. Shaikh  Abdul  Khader(Supra).
Andhra Pradesh High Court in the above case after referring to  Rule  31  of
Rules, 1993, para 20 of Master Circular No.54 of 94 and para  2005  of  IREM
as well as Rule 20 laid down following:
"...If this sub-para is read with  para-20  and  also  with  Rule-31,  there
remains no doubt that on absorption whole of the period for which  a  casual
labour worked after getting temporary status would have to  be  counted  and
half of the period has to be counted  of  the  period  for  which  a  casual
labour worked without being absorbed. Once  he  is  given  temporary  status
that means that he has been absorbed in the department.  Even  para  2005(a)
has been drafted in the same way because of the fact that even  such  casual
labour who have attained temporary status are allowed to carry  forward  the
leave at their credit in full to the  new  post  on  absorption  in  regular
service. Therefore, we have no doubt in our mind that once temporary  status
is granted to a person who is absorbed later on in regular  service  carries
forward not only the leave to  his  credit  but  also  carries  forward  the
service in full. Half on the  service  rendered  by  him  as  casual  labour
before getting the temporary status has to be counted. Therefore, we do  not
feel that the Tribunal was  wrong  in  coming  to  the  conclusion  it  has,
although we may not agree with the reasons given by the Tribunal.  The  view
taken by us is  further  strengthened  by  mandate  of  Rule-20  of  Railway
Services(Pension) Rules which lays down:

"20. Commencement of Qualifying service: Subject to the provisions of  these
rules, qualifying service of a railway servant shall commence from the  date
he takes  charge  of  the  post  to  which  he  is  first  appointed  either
substantively or in an officiating or temporary capacity.

Provided  that  officiating  or  temporary  service  is  followed,   without
interruption, by substantive appointment in the same or another  service  or
post.
Provided further that
(a)......(b).....”

Therefore, we hold that the respondent  was  entitled  to  get  the  service
counted in full from January 1, 1983. He was also entitled to  get  half  of
the service counted before January 1, 1983 from the date he  had  joined  in
the railways as casual labour. ”


33.   The above judgment of  Andhra  Pradesh  High  Court  was  subsequently
considered by the Andhra Pradesh High Court  itself  in  Writ  Petition  No.
10838 of 2001, the General Manager, South Central  Railway,  Secunderabad  &
another Vs. A.Ramanamma decided on 01.05.2009 wherein  earlier  judgment  of
Andhra Pradesh High Court in Shaikh Abdul  Khader(Supra)  was  not  followed
after referring to judgment of this High Court  in  General  Manager,  North
West Railway & others Vs. Chanda  Devi, 2008 (2) SCC 108.

34.   Following are reasons given in subsequent judgment for  not  following
Shaik Abdul Khader(Supra):

“ Similarly, Shaik Abdul Khader(supra)  directing  counting  of  the  entire
service rendered by a casual labour  after  getting  temporary  status  even
before absorption for purposes  of  qualifying  service  for  pension/family
pension, runs contrary  to  the  distinction  between  'casual  labour  with
temporary status' and 'temporary  railway  servants'  recognized  by  Chanda
Devi(supra) and other decisions of the  Supreme  Court.  The  conclusion  in
Shaik Abdul Khader(supra) that once  a  casual  labour  is  given  temporary
status, that means that he has been absorbed in  the  department,  does  not
appear to fit in  with  the  interpretation  of  the  rules  and  the  legal
position by the Apex Court.”

35.   The Judgment of this Court in  Chanda  Devi's  case(Supra)  considered
the nature of employment of casual labour who was granted temporary  status.
In the above case, Smt. Santosh, the respondent was widow of Sh.  Ram  Niwas
who was a project casual labour. Under the scheme framed by Union  of  India
in pursuance of order of this court in Inderpal Yadav Vs.  Union  of  India,
1985 (2) SCC  648,  Ram  Niwas  was  treated  as  temporary  employee  w.e.f
01.01.1986. After the death of Ram Niwas, her  widow  filed  the  claim  for
grant of family pension which was rejected by the Railway against which  the
widow approach the Central Administration  Tribunal.  The  Tribunal  allowed
the claim, Writ Petition filed by  Union  of  India  was  dismissed  by  the
Rajasthan High Court against which the appeal was filed. After referring  to
Rule 2001, Rule2002 and Rule 2005 of IREM, this Court held  that  Rule  2005
clearly lays down  the  entitlement  and  privileges  admissible  to  casual
labour who are treated as temporary i.e. given temporary status.

36.   This Court further held  that  there  is  a  distinction  between  the
casual labour having a temporary status and temporary servant,  para  24  of
the judgment is relevant which is quoted as below:

"24. The contrast between a casual labour having a temporary  status  and  a
temporary servant may immediately  be  noticed  from  the  definition  of  a
temporary railway servant contained in Rule 1501 occurring in Chapter XV  of
the Manual:

"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'.”

37.   This Court in the above case has  also  disapproved  the  judgment  of
Gujarat High Court wherein it was held that casual  labour  after  obtaining
temporary status becomes a temporary railway servant. The reasons  given  by
Gujarat High Court were extracted by this Court in para 27 of the  judgment,
and  in  para  31  of  the  judgment  Gujarat  High  Court's  judgment   was
disapproved. Para 27 and para 31 are extracted as below:

"27. The Gujarat High Court in Rukhiben  Rupabhai  Vs.  Union  of  India  no
doubt on analysing the scheme filed before this Court, opined:

      “32. This change has been made by the Railways after the  Apex  Courts
decision in Inder Pal Yadav case.  The  original  definition  of  'temporary
railway servant' is clear, but in the abovequoted definition in  Rule(1501),
the Railways have  included  the  'casual  labour  with  temporary  status',
thereby, taking them out from the category of 'temporary  railway  servant'.
How and why this change has been made,  what  procedures  were  adopted  for
making  the  change,  there  is  no  whisper,  although,  this  change   has
grievously affected the casual labour becoming temporary  on  completion  of
360 days' continuous employment, and committed breach of  the  Apex  Court's
decision in Inder Pal Yadav  case  followed  by  Dakshin  Railway  Employees
Union Vs. GM, Southern Railway, (1987) 1 SCC 677, 1987 SCC (L&S) 73,  making
casual labour 'temporary railway servant'.  Since  there  exists  only  four
categories, namly, (1) permanent, (2) temporary, (3) casual labour, and  (4)
substitutes, casual labour, under the  original  scheme  approved  in  cases
referred  to  hereinbefore,  becomes  'temporary  railway  servant',   after
completion of 360 days' continuous employment, therefore, he cannot be  made
'casual labour with temporary status' by subsequent  gerrymandering  by  the
Railways by its circular dated 11.09.1986, which  was  not  brought  to  the
notice of the Apex Court in Dakshin Railway Employees case. Therefore,  this
circular has no legal sanction against the Apex  Courts  decision  in  Inder
Pal Yadav case, contrary to original scheme and as  such,  hit  by  Articles
14, 16, 21, 41/42 of the Constitution of India.”

But evidently the provisions of the Railway Manual were  not  considered  in
their proper perspective.

31.  The  Gujarat  High  Court  in  our  opinion,  therefore,  committed   a
fundamental error in opining  otherwise.  It  failed  to  notice  that  when
casual labour  has  been  excluded  from  the  definition  of  permanent  or
temporary employee, he with temporary status could not have  become  so  and
there is no legal sanction therefore. It is for the legislature to  put  the
employees to (sic) an establishment in different categories. It  may  create
a new  category  to  confer  certain  benefits  to  a  particular  class  of
employees. Such a power can be exercised also by the  executive  for  making
rules under the proviso appended to  Article  309  of  the  Constitution  of
India. Dakshin Railway employees Union Vs. GM,  Southern  Railway  whereupon
reliance has been placed by the Gujarat  High  Court  in  Rukhiben  Rupabhai
does not lead to the said conclusion as was sought to  be  inferred  by  it.
The question therein was as to whether any direction was  to  be  issued  to
include the petitioners therein in the scheme for absorption  as  formulated
pursuant to the directions of the Court. ”

38.   In Chanda Devi's case, ultimately this Court set  aside  the  judgment
of Rajasthan High Court  which  held  that  the  widow  of  Shri  Niwas  was
entitled for pension. This Court held that there is  a  distinction  between
casual labour having temporary status and the temporary servant.  The  cases
before us are all the case where casual labour has  been  granted  temporary
status. Grant  of  temporary  status  is  not  equivalent  to  grant  of  an
appointment against a post.

39.   Much reliance has been placed by learned counsel  for  the  respondent
as well as Delhi High Court on rule 20. Rule 20 provides:
"20...Subject to the provisions of these  rules,  qualifying  service  of  a
railway servant shall commence  from the date he takes charge  of  the  post
to which he is first appointed either substantively or in an officiating  or
temporary capacity:
Provided  that  officiating  or  temporary  service  is  followed,   without
interruption, by substantive appointment in the same or another  service  or
post...”


40.   Rule 20 provides that qualifying service shall commence from the  date
the employee takes charge of the post to which he is first appointed  either
substantively or in  an  officiating  or  temporary  capacity.  Rule  20  is
attracted when a person is appointed  to  the  post  in  any  of  the  above
capacities. Rule 20 has no application when appointment is not  against  any
post. When a casual labour is granted a temporary status, grant of a  status
confers various privileges as enumerated in para 2005 of IREM.  One  of  the
benefits enumerated in para 2005 sub clause(a) is also to make him  eligible
to count  only  half  of  the  services  rendered  by  him  after  attaining
temporary status. Rule 20 is thus clearly not  attracted  in  a  case  where
only a temporary status is granted to casual worker and  no  appointment  is
made in any capacity against any post. The Delhi High Court in the  impugned
judgment relies on proviso to Rule 20 for coming to the conclusion  in  para
7 of the judgment.

"7. The proviso, in our opinion, puts the  controversy  beyond  a  shade  of
doubt in that if  an  employee  officiates  in  service  or  is  treated  as
temporary  railway  servant  and   subsequently   regularized   or   granted
substantive appointment, the  entire  period  of  his  combined  service  as
temporary appointee followed by the service spent as  a  permanent  employee
has to be reckoned for the purpose of pension. Since Rule 20 does  not  deal
with what is to  be  done  with  the  period  of  service  spent  as  casual
labourer, para 20 of the Master Circular  54  and  para  2005  of  the  IREM
address the said issue.  Being  administrative  instructions,  they  clarify
that half the period spent as casual  labourers  would  be  eligible  to  be
reckoned for purposes of pension.”

41.   The proviso to Rule 20 reads as:
 “Provided that officiating  or   temporary  service  is  followed,  without
interruption, by substantive appointment in the same or in  another  service
or post.”

42.   The above Proviso has to be read along with the  main  Rule  20,  when
main Rule 20 contemplates commencement of qualifying service from  the  date
he takes charge of the post, the appointment to a post  is  implicit  and  a
condition precedent.  The  proviso  put  another  different  condition  that
officiating or temporary  service  is  followed,  without  interruption,  by
substantive appointment in the same or another service or post. The  proviso
cannot be read independent to the main provision nor it  can  mean  that  by
only grant of temporary status a casual employee is entitled to  reckon  his
service of temporary status for purpose of pensionary benefit.

43.   The  Delhi  High  Court  in  impugned  judgment  has  not  relied  the
subsequent judgment of  Andhra  Pradesh  High  Court  in  A.Ramanamma  dated
01.05.2009 and did not follow the judgment of  this  court  in  Chanda  Devi
case (Supra) on the ground that Rule 20 specifically  the  proviso  has  not
been considered. This Court in Chanda Devi's case did not refer to  Rule  20
since Rule 20 had no application in the  facts  of  that  case  because  the
appointment of husband of respondent in Chanda Devi's case was  not  against
any post. Rule 20 being not applicable non-reference  of  Rule  20  by  this
Court in Chanda Devi's case is inconsequential. In para 8  of  the  impugned
judgment, the Delhi High Court for not relying  on  A.Ramanamma  and  Chanda
Devi case gave following reasons:
"8. In the opinion of this  Court,  the  subsequent  ruling  of  the  Andhra
Pradesh High Court in Ramanamma(supra), with respect, does not  declare  the
correct law. Though the judgment has considered certain previous rulings  as
well  as  the  provisions  of  the  IREM  and  Rule  31   of   the   Railway
Services(Pension) Rules, the notice of the Court was  not  apparently  drawn
in that case and the Court did not take into  account  Rule  20,  especially
the proviso which specifically deals with the situation at  hand.  Likewise,
Chanda Devi(supra) did not consider the effect of Rule  20,  which,  in  the
opinion of this Court, entitles those who  work  as  casual  labourers;  are
granted temporary status, and; eventually  appointed  substantively  to  the
Railways,  to  reckon  the  entire  period  of  temporary  and   substantive
appointment for the purposes of pension.”

44.   The judgment of Andhra Pradesh High  Court  in  A.Ramanamma  case  had
considered in detail the judgment of this Court in  Chanda  Devi's  case  as
well as Para 20 of Master Circular and  para  2005  of  IREM  and  has  also
considered other case of this Court and has rightly come to  the  conclusion
that casual labour after obtaining temporary status is  entitled  to  reckon
only half of the period. It may, however, be noticed that  in  A.  Ramanamma
case the Andhra High Court has also held  that  50%  of  service  as  casual
labour cannot be counted, which is not  correct.  Rule  31  of  Rules,  1993
provides for counting of service paid from contingencies. Note 1 of Rule  31
provides:-
" The provisions of this Rule shall also apply to casual  labour  paid  from
contingencies when Note 1 expressly makes applicable Rule 31 to  the  casual
labour they are also entitled to reckon half of casual  services  paid  from
contingencies.”


45.   Thus except to the above extent, the judgment of Andhra  Pradesh  High
Court in A. Ramanamma case lays down the correct law.

46.   As observed above, the grant of temporary status of casual  labour  is
not akin to appointment against a post and such contingency is  not  covered
by Rule 20 and the same is expressly covered by Rule 31 which  provides  for
“half the service paid from contingencies shall be taken  into  account  for
calculating pensionary benefits on absorption in regular employment  subject
to certain  conditions  enumerated  there  in.”  Thus  Rule  31  is  clearly
applicable while computing the eligible services for calculating  pensionary
benefits on  granting of temporary status.
47.    In the impugned judgment of the Delhi High  Court  it  is  held  that
entire services of casual labour after obtaining temporary  status  who  was
subsequently regularised is entitled to reckon. Casual labour who  has  been
granted  temporary  status  can  reckon  half  of  services  for  pensionary
benefits as per Rule 31. The reasons given by the Delhi High  Court  in  the
impugned judgment in para 6, 7 and 8 having been found  not  to  be  correct
reasons,  we  are  of  the  view  that  judgment  of  Delhi  High  Court  is
unsustainable and deserved to be set aside.

48.   We, however, are of the view that the period of  casual  labour  prior
to grant of temporary status by virtue of Note-1 Rule 31 has to  be  counted
to the extent of 50% for pensionary benefits.
49.   There is one more aspect of the matter which needs to be noted.  There
is specific rule in Rules,  1993  i.e.  Rule  107,  which  empowers  Pension
Sanctioning Authority to approach the Ministry  of  Railways(Railway  Board)
for dispensing with or relaxing the requirement of  any  Rule  operation  of
which causes hardship in any particular case. Rule 107 is quoted as below:
"107. Power to relax – Where the pension sanctioning authority is  satisfied
that the operation of any of  these  rules  causes  undue  hardship  in  any
particular case, that authority, may for reasons to be recorded in  writing,
approach the Ministry of Railways (Railway Board)  for  dispensing  with  or
relaxing the requirements of that rule to such extent and  subject  to  such
exceptions and conditions as it may consider necessary for dealing with  the
case in a just  and  equitable  manner.  The  Ministry  of  Railways(Railway
Board) shall examine each such case and arrange to communicate the  sanction
of the President to the  proposed  dispensation  or  relaxation  as  it  may
consider necessary keeping in view the merits of each case  and  keeping  in
view of an other statutory provisions:

      Provided that no such order shall be made without concurrence  of  the
Department  of  Pension  and  Pensioners'  Welfare,  in  the   Ministry   of
Personnel, Public Grievances and Pensions, Government of India.”
50.   Thus, in cases of those railway servants who are not eligible  as  per
existing rules for  grant  of  pension  and  there  are  certain  mitigating
circumstances which require consideration for relaxation the  proposals  can
be forwarded by  Pension  Sanctioning  Authority  to  Railway  Board  in  an
individual or group of cases. We,  thus,  while  allowing  this  appeal  and
setting aside the judgment of the High Court leave it open  to  the  Pension
Sanctioning Authority to recommend for grant of relaxation  under  Rule  107
in  deserving cases.

51.   Shri M.C.Dhingra, learned counsel for the respondent referred to  case
in  Punjab State Electricity Board & Another Vs.  Narata  Singh  &  Another,
2004 (3) SCC 317.      In the above case, the issue  for  consideration  was
as  to  whether  work-charged  services  rendered  by  respondent   in   the
Department of Punjab State can be counted for  the  purpose  of  calculating
qualifying service for pension payable to him as an employee of  the  Punjab
State Electricity Board. The High Court has issued directions  for  counting
the services rendered in the Irrigation Department of the  State  of  Punjab
for calculating pension  of  the  respondent  in  Punjab  State  Electricity
Board. Punjab State Electricity Board aggrieved  by  the  judgment,    filed
SLP before this Court. This Court noticed that in  the  above  judgment  the
Punjab State Electricity  Board  has  adopted  earlier  decisions  in  which
pensionary liability in  respect  of  temporary  services  rendered  in  the
Government of India and State  Government  were  taken  into  consideration.
Para 19 and para 20 of judgment as cited below:
"19. The above-mentioned policy decisions taken by  the  Central  Government
and the Government of Punjab were taken  into  consideration  by  the  Board
which issued a Memo dated  25-11-1985  with  reference  to  the  subject  of
allocation of pensionary liability in respect of temporary service  rendered
in the Government of India and the State Government and adopted  the  policy
decision reflected in the Letter  dated  20.05.1982  of  the  Government  of
Punjab, w.e.f. 31.03.1982 as per the instructions and conditions  stipulated
in   the   said   letter.   This   is   quite   evident   from   Memo    No.
257861/8761/REG.6/V.5dated 25.11.1985 issued by the Under  Secretary/P&R/for
Secretary, PSEB, Patiala.

20.  The  effect  of  adoption  of  the  policy  decisions  of  the  Central
Government and the State Government was that a temporary employee,  who  had
been retrenched from the service of the Central /State  Government  and  had
secured employment with the Punjab State Electricity Board, was entitled  to
count temporary service rendered by him under the  Central/State  Government
to the extent such service was qualified for  grant  of  pension  under  the
rules of the Central/State Government."

52.   With regard to the work-charged services, Punjab High Court had  taken
note of the judgment in Kesar Chand  Vs.  State  of  Punjab,  (1988)  5  SLR
27(Punjab & Haryana) wherein Rule 3.17(ii)  of  the  Punjab  Civil  Services
Rules providing that period of service  in  work-charged  establishments  as
not qualifying service was  struck  down.  Thus  the  work-charged  services
rendered by respondent in the State Government was counted.
53.   The above judgment in no manner helps the respondent  in  the  present
case.  This  Court  in  the  above  case  interpreted  statutory  rules  and
circulars issued by the State Government as well as by the Board.  The  said
judgment has no application in the facts of present case.
54.   Another judgment relied by Shri Dhingra is  in  CWP  No.2371  of  2010
[Harbans Lal versus State of Punjab & Ors.] decided on  31.08.2010.  In  the
said case also Punjab and Haryana High Court  considered  the  Punjab  Civil
Services Rules and pension scheme which came into effect w.e.f.  01.01.2004.
The said judgment was on different statutory rules  and  in  facts  of  that
case, which  does not help respondent in the present case.
55.   In view of foregoing discussion, we hold :
i) the casual worker after obtaining temporary status is entitled to  reckon
50% of his services till he is regularised on a regular/temporary  post  for
the purposes of calculation of pension.

ii) the  casual  worker  before  obtaining  the  temporary  status  is  also
entitled to reckon 50% of casual service for purposes of pension.

iii)  Those  casual  workers  who  are  appointed   to   any   post   either
substantively or in officiating or in temporary  capacity  are  entitled  to
reckon the entire period from date of taking charge  to  such  post  as  per
Rule 20 of  Rules, 1993.

iv)    It  is  open  to  Pension  Sanctioning  Authority  to  recommend  for
relaxation in deserving case to the Railway Board  for  dispensing  with  or
relaxing   requirement of any rule with regard to those casual  workers  who
have been subsequently absorbed against the post  and  do  not  fulfill  the
requirement of existing rule for grant of pension, in deserving cases. On  a
request made in writing, the Pension Sanctioning  Authority  shall  consider
as  to  whether  any  particular  case  deserves  to   be   considered   for
recommendation for relaxation under Rule 107 of  Rules, 1993.
56.   In result, all the appeals are  allowed.  The  impugned  judgments  of
Delhi High Court are set aside. The writ petitions filed by  the  appellants
are allowed,   the judgments of  Central  Administrative  Tribunal  are  set
aside and the Original Applications filed by the  respondents  are  disposed
of in terms of what we have held in para 55 as above.


                                               ...........................J.
                                       ( A.K. SIKRI )

                                               ...........................J.
NEW DELHI,                     ( ASHOK BHUSHAN )
MARCH 24, 2017.

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