Union Of India And Others vs Smt. Panna Devi And Another
2017 Latest Caselaw 6486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 30.10.2017
 
						Delivered on 8.11.2017
 
Court No. - 35
 
Case :- WRIT - A No. - 37189 of 2007
 

 
Petitioner :- Union Of India And Others
 
Respondent :- Smt. Panna Devi And Another
 
Counsel for Petitioner :- Kaushlesh Pratap Singh
 
Counsel for Respondent :- Sudama Ram,Anand Kumar,S.C.
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Siddharth,J.

(Delivered by Hon'ble Siddharth,J.)

Heard Shri K.P. Singh, learned counsel for the petitioner and Shri Anand Kumar learned counsels for the respondents.

Petitioners have filed the above noted writ petition challenging the order dated 22.9.2006 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad whereby Original Application No. 306 of 2005 filed by the respondent no.1 was allowed granting her family pension and other terminal benefits after the death of her husband.

The petitioner's case is that husband of respondent no.1, late Ram Sumer, was employed as Casual labourer from 24.3.1973 and after 120 days of continuous service, he acquired status of temporary railway servant. Husband of respondent no.1 expired on 16.3.1983 and prior to his death he was declared medically unfit vide memo dated 3.8.1982. The respondent no.1 filed Original Application No. 818 of 2004 before the Central Administrative Tribunal, Allahabad Bench, Allahabad claiming family pension and other terminal benefits alongwith prayer for her son's appointment on compassionate ground, which was disposed of at the stage of admission directing the respondent no.1 to decide her claim. The claim of the petitioner was rejected by order dated 17/18/.11.2004 by the respondent on the ground that there is difference between "substitute" and "causal labour" without screening.

Respondent no.1 again approached the Central Administrative Tribunal, Allahabad Bench Allahabad by way of Original Application No. 387 of 2005, challenging the order dated 17/18.11.2004 passed by the respondent, which was allowed by the order dated 22.9.2006 directing payment of pension and other post retiral dues to the respondent no.1.The petitioners have approached this Court under Article 226 of the Constitution of India challenging the same.

The respondent no.1 has filed her counter affidavit stating that her husband was working as temporary railway employee against the regular vacancy of Khalasi/Group-"D" railway servant and drawing his regular salary with authorised payscale, annual increments etc. , therefore, she is entitled for family pension and other post retiral benefits.

Respondent no.1 has brought on record by way of annexure-CA 1 Circular dated 26.10.1965 of Railway which provides as follows-:

"Sub- Casual labour-Admissibility of benefits under the Family Pension Scheme for Rly. Employees, 1964.

A copy of Railway Board's letter No. F(P)65PN-1/21, dated 21.10.1965 on the above subject is forwarded for information and necessary action.

Railways Board's letter No. E(NG) 64 CL/25, dated 4.9.1965 was circulated under this office letter No. 220-E/190-VI(Eiv) dated 16.10.1965.

Copy of Rly. Board's letter No. F(P)65 PN-1/21, dated 21.10.65 from the Asst. Director , Finance (Estt.) to the General Managers, all Indian Railways and others.

Sub.As above.

A question has been raised whether Casual labourers who are treated as temporary employees on completion of six months continuous service are covered by the benefits admissible under the Family Pension Scheme for Railway Employees, 1964.

In this connection, it has been observed that the railways had experienced certain difficulties in creating necessary temporary posts to accommodate the casual labourers on completion of six months, continuous service. Orders have been issued in that connection, as per Railway Board's letter No. E(NG) 64CL/25 dated 4.9.2015 wherein it has been stated that while certain benefits will accrue to such employees without their being absorbed against regular posts, the service for pensionary benefits will count only from the dates such employees are actually absorbed against regular temporary posts. The Family Pension Scheme for Railway Employees, 1964 is applicable in the case of regular employees on pensionable establishment. Since the casual labourers will be brought on to the pensionable establishment only on their absorption against regular temporary posts, it follows that they will come under the purview of the scheme from the date of their absorption against the regular temporary posts. In other words, the benefits of the family pension scheme for railway employees, 1964 will be admissible in the case of death of such an employee while in service, only if he had completed a minimum period of one year's continuous service from the date he was absorbed against a regular temporary post."

The respondent no.1 has also stated that as per Family Pension Scheme,1964 for railway servants respondent no.1 is entitled to get pension.

Before proceeding with the analysis of the facts set up by the parties, it is necessary to consider the provisions of the Railway Establishment Manual. It defines the temporary railway servants vide Rule 1501 of Chapter XV. 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".

Rule 2005 of Railway Establishment Manual is as follows :-

"2005. Entitlements and privileges admissible to casual labour who are treated as temporary (i.e. given temporary status) after the completion of 120 days or 360 days of continuous employment (as the case may be)----(a) Casual labour treated as temporary are entitled to the rights and benefits admissible to temporary railway servants as laid down in Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of 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 in Railways until and unless they are selected through regular Selection Board for Group D posts in the manner laid down from time to time. Subject to such orders as the Railway Board may issue from time to time and subject to such exceptions and conditions like appointment on compassionate grounds, quotas for handicapped and ex-servicemen, etc. as may be specified in these orders they will have a prior claim over others to recruitment on a regular basis and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as casual labour before attaining the age of 28 years should be allowed relaxation of the maximum age-limit prescribed for Group D posts to the extent of their total service which may be either continuous or in broken periods.

(c) No temporary posts shall be created to accommodate such casual labour, who acquire temporary status, for the conferment of attendant benefits like regular scale of pay, increment, etc. After absorption in regular employment, half of the service rendered after attaining temporary status by such persons before regular absorption against a regular/temporary/permanent post, will qualify for pensionary benefits, subject to the conditions prescribed in the Railway Board's Letter No. E(NG)II/78/CL/12 dated 14.10.1980. [Letter No. E(NG)II/85/CL/6 dated 28.11.1986 in the case of project casual labour.

(d) Casual labour who have acquired temporary status and have put in three years' continuous service should be treated on a par with temporary railway servants for purpose of festival advance/flood advance on the same conditions as are applicable to temporary railway servants for grant of such advance provided they furnish two sureties from permanent railway employees.

(e) Casual labour engaged on works, who attain temporary status on completion of 120 days' continuous employment on the same type of work, should be treated as temporary employees for the purpose of hospital leave in terms of Rule 554-R-I (1995Edn.).

A casual labour who has attained temporary status and has been paid regular scale of pay, when re-engaged, after having been discharged earlier on completion of work or for non-availability of further productive work, may be started on the pay last drawn by him. (This shall be effective from 2nd October, 1980.)"

Rule 75 of Family Pension Scheme for the Railway Servant 1964 is also relevant and is as follows,

"75. Family Pension Scheme for railway Servants, 1964-(1) The provisions of this rule shall apply:-

(a) to a railway servant entering service in a pensionable establishment on or after the 1st January, 1964; and

(b) to a railway servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for Railway Employees, 1964, contained in Railway Board's letter No. F(P)63 PN-1/40, dated the 2nd January, 1964 as in force immediately before the commencement of these rules.

Note.- The provisions of this rule have also been extended from 22nd September, 1977, to railway servants on pensionable establishments who retired or died before the 31st December, 1963 and also to those who were alive on that date but had opted out of the 1964 scheme.

(2) Without prejudcie to the provisions contained in sub-rule (3), where a railway servant dies:-

(a) after completion of one year of continuous service, or

(b) before completion of one year of continuous service provided the deceased railway servant immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for railay service."

The family pension has been defined in the Railway Pension Rules,1973 the family pension admissible under Rule 75. Rule 3 (23) defines railway servants means a person who is a member of the Railway service or hold a post but it does not include the causal labour or person. Rule 3(26) defines "Substitute " means a person engaged against a regular, permanent or temporary post by reason of absence on leave or otherwise of a permanent or temporary Railway Servant and such 'substitute' shall not be deemed to be a railway servant unless he is absorbed in the regular railway service.

Analysis of the above provisions of the Railway Establishment Manual and Pension Rules makes it clear that without screening and actual absorption of a causal or temporary employee of a railway in regular establishment as per the rules, he does not become entitled to get pensionary and post retiral benefits. By merely acquiring the status of temporary railway servant he gets other benefits like a payscale, increments, etc., like regular employees but he does not become entitled to claim pensionary benefits.

The counsel for the petitioner has relied upon the decision of the Apex Court in the case of Union of India and others vs.Rabia Bikaner etc., reported in Manupatra, MANU/SC/0758/1997; General Manager, North West Railway and Ors. Vs. Chanda Devi reported in Manupatra, MANU/SC/8220/2007, (2008) 2 SCC 108 and judgment of this court in Writ-A No. 46149 of 2011, Union of India through G.M.,N.E. Railway , Gorakhpur and others Vs. Smt. Somwati and another.

On the other hand learned counsel for the respondent has relied upon the judgement in the case of Union of India Vs. Sumitra Devi and others, dated 03.08.2016, passed by High Court OF Jharkhand At Ranchi, in W.P.(S) No. 1602 of 2009 and judgment of this court in Writ-A No. 13494 of 2013, Union of India through G.M., N.C.R. and another Vs. Mithilesh Kumari.

Now considering the case laws filed by the petitioner in the case of Union of India and others Vs. Rabia Bikaner etc. (Supra),paragraph-4 of the judgement is relevant and is quoted below:

"It is contended by the learned counsel for the respondent-widows that under paragraph 2511-"Rights and Privileges admissible to the casual labourers who are treated as temporary after completion of six months continuous service" - of the Railway Establishment Manual, they are entitled to family pension. We find it difficult to give acceptance to the contention. It is seen that every casual labourer employed in the railway administration for six months is entitled to temporary status. Thereafter, they will be empanelled. After empanelment, they are required to be screened by the competent authority and as and when vacancies for temporary posts in the regular establishment are available, they should be appointed in the order of merit after screening. On their appointment, they are required to put in minimum service of one year in the temporary post. In view of the above position, if any of those employees who had put in the required minimum service of one year, that too after the appointment to the temporary post, died while in service, his widow would be eligible to pension under the Family Pension Scheme, 1964. In all these cases, though some of them have been screened, yet appointments were not given since the temporary posts obviously were not available or in some cases they were not even eligible for screening because the posts become available after the death. Under these circumstance, the respondent-widows are not eligible to the family pension

benefits."

Learned counsel for the petitioner relied upon second case of General Manager, North West Railway and ors. Vs. Chanda Devi(Supra) which is a detailed judgement on the issue and it relies upon the judgement in the case of Union of India and ors. Vs. Rabia Bikaner and ors. (supra) in paragraph -18. In paragraph-19 of the judgement the Apex Court has considered definition of "Temporary railway servant" which means such a railway servant who has no lien on the permanent post and it does not includes causal labour including casual labour with temporary status."

The third case law relied upon by the learned counsel for the petitioners' in the case of Union of India through G.M.N.E. Railway, Gorakhpur and others Vs. Smt. Somwati and another(Supra) wherein Division Bench of this Court has relying upon the judgement of Union of India Vs. Rabia Bikaner etc. (Supra) and General Manager North West Railway Vs. Chanda Devi (Supra) held in paragraphs 18 and 19 are as follows:-

"18. We have gone through the record of the case and have considered the submissions made by the counsels for the parties. From the record we find that the Tribunal had relied on Rule 18 sub rule (3) of the Railway Services (Pension) Rules, 1993, so as to hold that even family of temporary railway servant shall be eligible to family pension. However, while relying on the aforesaid Rule, the Tribunal failed to notice the fine difference between a casual labourer (having temporary status) and a temporary railway servant. Probably because the pleadings of the parties were not specific enough or the relevant Rules and decisions were not placed before it. But here before us, the counsels have placed the entire law and the provisions governing the field. From the Rules and the judgments that we have noticed above, we find that a temporary railway servant is different from a casual labour (having temporary status). The status of a temporary railway servant is attained by a casual labour (having temporary status) only after he undergoes screening test and absorption process in the regular railway establishment either against a temporary post or permanent post.

19. Now, the question that we are required to decide is whether the husband of the claimant was a temporary railway servant or just a casual labour with temporary status on the date of his death. In the present case we find that the claimant has nowhere pleaded in denial to the specific stand of the Railways that her husband had not underwent screening/ absorption process. Rather it has been pleaded by her that it should be presumed by the sheer length of her husband's service that he was absorbed / regularised. We are afraid that no such presumption can be drawn. Moreover, no documentary evidence was produced on behalf of the claimant to substantiate that her husband had, after undergoing screening test, attained the status of temporary / regular railway servant. Mere award of time scale of pay would not confer the status of a temporary railway servant in regular establishment, as has been noticed in the two judgments of the Apex Court referred to above. Accordingly, we hold that the respondent no.1 was unable to establish that her husband underwent screening/ absorption process, and had attained the status of a temporary railway servant so as to make her entitled to family pension under the rules.

The case law of Union of India Vs. Sumitra Devi relied upon by the learned counsel for the respondent no.1 has although referred the judgement of General Manager, North West Railway and ors, Vs. Chanda Devi of the Apex Court but has not considered the paragraphs 18 and 19 thereof which clearly distinguish the difference between temporary railway servant and causal labour with temporary status. The procedure provided for absorption of causal labour as regular employee after screening. The details of paragraph 18 of the aforesaid judgment have not been considered by the Jharkhand High Court therefore it can not be relied upon while considering the case of the respondent no.1.

The second judgement relied upon by the learned counsel for the respondent no.1 is the judgement of this court passed in Writ-A 13494 of 2013, Union of India Vs. Mithilesh Kumari (Supra), wherein the judgement passed in the case of Prabhavati Devi Vs. Union of India (1996) 7 SCC27 has been relied upon. This judgement in the case of Prabhavati Devi (Supra) was distinguished by paragraph-5 of the judgement of Apex Court in the case of Rabia Bikaner, etc.,(Supra) on the ground that husband of Prabhawati Devi had worked as causal labour and acquired status of a substitute and then he was working in regular establishment on regular payscale and allowance and,therefore, she was given benefits of pension. The case of the respondent no.1 therefore,is not akin to case of Prabhavati Devi(supra).Therefore this judgement will not help the respondent no.1 since her husband never worked in regular establishment nor was getting regular payscale at the time of his death. He was found medically unfit and never absorbed in regular service after screening .

In view of the above facts and circumstances we find that judgement of the tribunal granting pension and other terminal benefits to the respondent no.1 cannot be sustained since the decision of the Apex Court in the case of Prabhawati Devi (supra) was distinguished in the case of Rabia Bikaner etc,(Supra). The tribunal has recorded the finding in paragraph 12 of the judgement that it is not within its power to compel the respondents to regularise the services of the deceased husband of the respondent, but it has granted the relief on the ground that he had worked in the department for about ten years and, therefore it would be highly unjust to deny the family pension and terminal benefits to his family. Such a view of the tribunal is not in accordance with the Rules of the Railway and settled legal position discussed above and cannot be justified.

In view of the above fact and also the legal position of the case, the order dated 22.9.2006 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No 387 of 2005 is quashed.

The writ petition is allowed. There shall be no order as to cost.

Order Date :- 8.11.2017

Atul kr. sri.