Union Of India Thru. Mini. Of ... vs Smt. Kamla Pandey And Anr.
2023 Latest Caselaw 7592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 42
 

 
Case :- WRIT - A No. - 47099 of 2012
 
Petitioner :- Union Of India Thru. Mini. Of Railway And Others
 
Respondent :- Smt. Kamla Pandey And Anr.
 
Counsel for Petitioner :- M.K. Sharma,Rajnish Kumar Rai,S.C.
 
Counsel for Respondent :- J.P. Pandey,Pramod Kumar (Saxena),Pramod Kumar Saxena,S.C.,Vijay Kumar Singh
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Rajendra Kumar-IV,J.

Per : Suneet Kumar,J.

1. Heard Sri Rajesh Tripathi, learned counsel appearing for the petitioner-Union of India-Railways and Sri Pramod Kumar (Saxena) assisted by Sri Ramesh Narain Pandey, learned counsel for the respondent.

2. The writ petition is directed against the order dated 22 May 2012, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (for short "Tribunal"), in Original Application No. 1144 of 2006 (for short "OA"), whereby, allowing the family pension to the first respondent/original applicant.

3. During pendency of the writ petition, the original applicant died, the legal heirs have been substituted.

4. The original applicant, a widow, of R.R. Pandey, who was employed as casual labour with the Railways from 8 August 1977. He was given temporary status w.e.f. 1 January 1985, vide order dated 25 November 1985. The employee died on 12 July 1988. On the death, the widow/original applicant came to be engaged as fresh casual labour, vide order dated 22 August 1988. In 2012, she approached the Tribunal by filing OA seeking family pension for herself and for her minor son under the pension Rules applicable to the employees of the Railways. The OA was contested by the petitioners/respondents, inter alia, contending that for entitlement of pension minimum 10 years of employment is mandated under the Rules. The husband of the respondent was engaged as a casual labour from 29 August 1979 to 1 September 1980, and thereafter with breaks until his death, according to the petitioner the total length of service rendered by the deceased employee was 8 years 9 months and 9 days. In other words, having rendered less than 10 years of service, family pension was not admissible to the respondent, since the deceased employee was a casual labour.

5. The learned Tribunal relying on Rule 18 of the Railway Service (Pension) Rules, 1993 (for short ''Pension Rules') in particular sub-Rule (3) of Rule 18, allowed the OA. The petitioner/respondents were directed to grant family pension to the respondent/original applicant from the date of eligibility and also to pay arrears.

6. Learned counsel appearing for the petitioner submits that the Pension Rules, in particular Rule 18, would not apply in the case of casual labour, therefore, the respondent/original applicant was not entitled to family pension. It is further submitted that at no point of time the husband of the respondent-original applicant came to be appointed as a temporary railway servant, nor, was he regularized on a regular Group D post, accordingly, as per Pension Rules a casual labour is not entitled to pension.

7. Per contra, the learned counsel appearing for the respondent/original applicant submits that the employee, admittedly, came to be engaged as a casual labour but subsequently, was given temporary status w.e.f. 1 January 1985, after granting age relaxation of 1 year 3 months and 16 days. Accordingly, it is urged that the employee was conferred temporary status/regularized against a Group D post. It is further submitted that it is noted in the impugned judgment of the learned Tribunal that the respondent/original applicant came to be given compassionate appointment on the death of the employee, meaning thereby, that had the employee not been a temporary railway servant or a regular employee, compassionate appointment would not have been given to the respondent.

8. Further, it is submitted that the case of the respondent/original applicant would be governed as per Section (a) non-gazetted staff (1) Temporary Railway Servants Rule 2301 under Chapter XXIII of the Railway Establishment Manual, which was applicable on the date of death of employee i.e. 1988. He further submits that the Rule defining ''temporary railway servant' subsequently, came to be amended/modified, as reflected in Chapter XV Volume (1) (revised addition 1989) and in the terms and conditions applicable to railway servants and substitutes in temporary servants non-gazetted staff Rule (1501). It is sought to be urged that the expression ''casual labour with temporary status', was subsequently incorporated in the defination in 1989, which was not excluded in the earlier Rule. It is, therefore, submitted that earlier ''casual labour' was excluded from the definition of ''temporary railway servant', and since the employee was conferred ''casual labour with temporary status', prior to 1989, his spouse/widow would be entitled to family pension. In other words, it is sought to be urged that the Rule excluding ''casual labour with temporary status', which came to be incorporated in 1989 cannot be given effect retrospectively so as to non-suit the respondent and deprive her family pension.

9. It is urged that the learned Tribunal has not committed any illegality or perversity in granting family pension, the writ petition being devoid of merit is liable to be dismissed.

10. Rival submissions fall for consideration.

11. The sole question that arises for consideration is, as to whether, the respondent/original applicant was eligible and entitled to family pension under the Pension Rules, or in the alternative is ''casual labour with temporary status' entitled to pension.

12. Rule 18(1) of Pension Rules provides for pension, inter alia, to temporary railway servant. The Rule reads thus:

Rule-18: Pensionary, terminal or death benefits to temporary railway servant. -

(1) A temporary railway servant who retires on superannuation or on being declared permanently incapacitated for further railway service by the appropriate medical authority after having rendered temporary service 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 railway servant under these rules.

13. On plain reading of rule it provides that a temporary railway servant, who retires on superannuation or being declared permanently incapacitated for further railway service after having rendered temporary service not less than 10 years, shall be eligible for grant of superannuation, retirement gratuity and family pension, as admissible to permanent railway servant. In other words, the rule mandates two conditions for earning family pension: (i) the employee must have been a ''temporary railway servant'; (ii) must have rendered service for not less than 10 years.

14. Sub-rule (3) of Rule 18 provides for family pension in the event of death in harness of a temporary railway servant. Sub-rule (3) of Rule 18 is extracted:

In the event of death in harness of a temporary railway servant his family shall be eligible to family pension and death gratuity on the same scale as admissible to families to permanent railway servants under these rules

15. In other words, the rule mandates that in the event of death of a ''temporary railway servant', his family shall be eligible for the family pension as admissible to families of permanent railway servant under the Rules. It does not mandate 10 years of service, which is required to be satisfied in respect of temporary railway servant, who retires on attaining the age of superannuation or being declared permanently incapacitated. The Rule does not employ the expression, ''casual labour with temporary status'.

16. The entitlement to family pension to the respondent/original applicant is dependent upon the fact that whether the employee was conferred/appointed ''temporary railway servant'. It is not being disputed that the employee came to be appointed as a casual labour and on having put in the requisite number of days/ years, mandated in terms of Railway Board Circular dated 1 June 1985, temporary status would be conferred upon the casual labour. The employee was conferred the status of ''casual labour with temporary status', w.e.f. 1 January 1985 vide order dated 25 November 1985. The order reads ''...... under noted project casual labour working on this sub-division, having more than 3 years but less than 5 years (1551 days) service including 360 days continuous working days as on 1.1.84 on being declared medically fit in classes as shown against each are are being given temporary status w.e.f. 1.1.84 in grade and scale indicated against each: .....' It appears that the employee was granted age relaxation while conferring upon him status of ''casual labour with temporary status'. The employee thereafter died in 1988. Admittedly, on the death of the employee he was not working/engaged as ''temporary railway servant'. Rule 18 of Pension Rules was, therefore, not applicable upon him.

17. Under Railway Establishment Manual Rule 2301, a casual labour has been excluded from the definition of temporary railway servant. The rule reads thus:

''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', a ''contract' or ''part time' employee or an ''apprentice'.

18. The question that arises is as to whether ''casual labour with temporary status' is entitled to pension/family pension.

19. Subsequently, it appears that the Rule came to be amended/modified being Rule 1501 in the Railway Establishment Manual (revised addition 1989) which is extracted:

''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'.

20. The Rule is pari materia with the earlier Rule, except the expression "casual labour with temporary status" was added excluding such category/class of casual labour from the definition of ''temporary railway servant'. The modification was incorporated by Railways after the decision rendered by the Supreme Court in Inder Pal Yadav and others vs. Union of India and others1. It is thereafter category of ''casual labour with temporary status' was created from amongst the casual labour. It would be relevant at this stage to notice the definition of ''casual labour'. Rule 2501 is extracted:

Casual labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short period. Labour of this kind is normally recruited form the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour.

21. The submission of the learned counsel appearing for the respondent/original applicant is that since the expression ''casual labour with temporary status', was not part and parcel of the earlier definition of ''temporary railway servant', therefore, the same would not be applicable in the case of respondent as the employee had died in 1988 prior to the amendment. The temporary status was conferred upon the employee prior to the amendment which cannot be read retrospectively to have been excluded in the earlier definition of ''temporary railway servant', therefore, it is urged that the respondent/original applicant is entitled to family pension being admissible to her under the Rules on the death of the employee.

22. In our opinion the submission of the learned counsel for the respondent/original applicant is misconceived and based upon misreading of the Rule.

23. The definition of ''temporary railway servant' excludes, casual labour, Railways in compliance of the decision of the Supreme Court in Inder Pal Yadav (supra) upgraded the status of casual labour, who had put in a requisite number of days/years of service with the Railways. The category being ''casual labour with temporary status', were conferred higher wages in the pay-scale and was also entitled to gratuity. But the ordinary ''casual labour', as well as, ''casual labour with temporary status', i.e. a class within a class of casual labour continued to be excluded from the definition of ''temporary railway servant'. By no stretch of imagination, it can be said that the definition of ''temporary railway servant' as defined earlier did not exclude ''casual labour with temporary status', therefore, a casual labour with temporary status is entitled to pension. The occasion to exclude ''casual labour with temporary status' from the definition of ''temporary railway servant' arose after such a class came to be created after the decision in Inder Pal Yadav (supra). Accordingly, Railways, in their wisdom, clarified by amending the definition of ''temporary railway servant' to exclude the ''casual labour with temporary status'.

24. On reading of the definitions of ''temporary railway servant', as it stood earlier and prior to amendment, casual labour, be it ordinary casual labour or with temporary status, are excluded from the definition of ''temporary railway servant'. The submission of the learned counsel for the respondent/original applicant that since the authorities had granted age relaxation while conferring the ''temporary status' upon the casual employee, it would be deemed that the employee came to be regularized on the establishment of the Railways. Further, on the death of the employee the Railways had given respondent/original applicant compassionate appointment which could not have been given in the case had the deceased employee been of a casual labour. The argument is misconceived and not borne from the material placed on record. Age relaxation while conferring temporary status on a casual labour would not tantamount to regularization as the order nowhere states that the deceased employee came to be conferred status of a ''temporary railway servant'.

25. The order dated 25 November 1985, clearly notes that the casual labour working in the sub division and having completed the requisite number of years/days of service or continuous work, as on 1 January 1984, are being given temporary status. The order dated 22 August 1988, relied upon by the respondent while conferring compassionate appointment to the respondent/original applicant reads as follows:

"GM has accorded his approval for the engagement of Smt. Kamla Pandey widow of Late Ram Raj Pandey, Ex. Casual Record Sorter as a fresh Casual Labour under F.A. & C.A.O./CORE/Allahabad."

26. From bare perusal of the order, it is evident that the respondent/original applicant came to be engaged as a casual labour. It is not a compassionate appointment on the regular establishment of the Railways against any post. The status of the respondent/original applicant and her husband was that of a casual labour or casual labour with temporary status.

27. Such casual labour who acquire temporary status, will not, however, be brought on the permanent or regular establishment or treated in regular employment of Railways until and unless they are selected through regular Selection Board for Group D Posts in the manner laid down from time to time.

28. On specific query, it is informed that the respondent/original applicant subsequently came to be regularized on a Group-D Post in 2005 by the Railways. Until then, she worked as a ''casual labour with temporary status'.

29. In the backdrop of the facts noted herein above, it is categorically evident that at no stage the deceased employee was engaged or appointed as ''temporary railway servant', nor, was he regularized against the post on the regular establishment by the Railways. In the circumstances, having regard to Rule 18 of Pension Rules, the deceased employee was not entitled to pension being ineligible under the Rules. Accordingly, the respondent/original applicant was not entitled to pension on the death of her husband being ineligible.

30. The learned Tribunal misdirected itself without adverting to the categorical stand taken by the petitioners before the Tribunal that the deceased employee was neither eligible nor entitled to pension. The learned Tribunal committed an error in relying on Section 18 of the Pension Rules to direct grant of family pension merely for the reason that the employee had put in 10 years of temporary service since 1977, further, in the opinion of the Tribunal, as per sub-Rule (3) of Rule 18, in the case of death in harness the mandate of 10 years is not provided under the Rules. The opinion so formed is on misreading of Rule 18 as a whole.

31. Casual labour as per circular 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.

32. In our opinion, the reasoning assigned by the learned Tribunal is on a wrong premise based on an assumption that the deceased employee was a ''temporary railway servant', whereas, under the Pension Rules ''casual labour with temporary status', is ineligible and excluded from the definition of ''temporary railway servant'.

33. The Supreme Court in General Manager, North West Railway and others vs. Chanda Devi2, held that the Railway Rules made a distinction between casual labour having temporary status and temporary railway servant. The Pension Rules under which Railway employees are granted pension do not apply to casual employees conferred with temporary status which merely protects a casual employee's service. In the given facts, the employee, therein, came to expire on 29 December 1988, prior to his death the employee was conferred substitute temporary status, the claim of the widow of the employee for family pension came to be rejected as it was not admissible to substitute employees. Para-32 is extracted:

"What was protected by conferring temporary status upon a casual employee was his service and by reason thereof the pension rules were not made applicable. A workman had not been and could not have been given a status to which he was not entitled to."

34. In the circumstances, the writ petition is allowed. The impugned order dated 22 May 2012, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, is hereby set aside and quashed.

Order Date :- 16.3.2023

S.Prakash