Uoi & Ors. vs Girish Pal & Ors.
2011 Latest Caselaw 6080 Del

2
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C)No.13185-86/2005 and CM No.6238/2011

%                               Date of decision: 13th December, 2011

       UOI & ORS.                           ..... Petitioners
                           Through : Ms. Amita Singh, Adv.

                     versus

       GIRISH PAL & ORS.               ..... Respondents
                      Through : Mr. Sunil Mund, Adv.

       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

                           JUDGMENT (ORAL)

CM No.6238/2011

Heard.

Learned counsel for the respondent submits that he has

no objection to the restoration of the writ petition.

Accordingly, the order dated 29th March, 2011 dismissing the

writ petition for default of appearance is recalled and the writ

petition is restored to its original position. The order dated 7th

September, 2005 shall continue to operate till disposal of the

writ petition.

This application is allowed in the above terms.

W.P.(C) 13185/2005

1. Learned counsel for the petitioner submits that she

waives the cost which was imposed upon the respondents by

an order dated 6th August, 2008. With the consent of both the

parties, the writ petition is taken up for disposal.

2. We have heard learned counsel for the parties at length.

The sole ground and short question which has been raised

before us is the permissibility of treating services rendered as

casual labour as part of qualifying service for the purposes of

computation of pension after the employer works out a scheme

for regularization of such persons de hors any provision for the

same in the scheme under which their services have been

regularized.

3. To the extent necessary, the facts giving rise to the

present case are noticed hereafter.

4. The respondents before us were engaged as casual

labourer. Pursuant to an office memorandum dated 10th

September, 1993, the respondents were initially accorded

temporary status and later regularized against Group „D‟ posts.

The respondents laid a claim for grant of seniority and all other

benefits including the computation of the services rendered by

them as casual labourers as well as on temporary basis for the

purposes of qualifying pensionable services with effect from

the date of their initial appointments by way of a petition filed

under the Administrative Tribunal Act, 1985 before the

Principal Bench of the Central Administrative Tribunal. On a

consideration of the rival contentions, the Central

Administrative Tribunal by impugned judgment dated 9th July,

2004 placed reliance on the pronouncement of the Division

Bench of Andhra Pradesh High Court reported at 2004 (2) ATJ

HC (AP) 23 entitled General Manager, South Central

Railway, Rail Nilayam, Secunderabad, A.P. & Anr. vs.

Shaik Abdul Khader and declined grant of regularization

from the date of initial engagement of the respondents as

casual labourers. However, it directed that the seniority shall

commence from their regular appointment in Group „D‟ and

that their qualifying service shall be computed by the

petitioner in the light of the decision of the Andhra Pradesh

High Court in the case of Shaik Abdul Khader (supra).

5. In order to adjudicate upon the issue noticed by us

hereinabove, it may be useful to refer to the pronouncement of

the Andhra Pradesh High Court in Shaik Abdul Khader

(supra). We find that the Andhra Pradesh High Court was

considering the writ petition which had been filed by the

petitioner laying a challenge to an order of the Tribunal

directing that 50% of the services rendered by the respondents

as casual labour would be counted towards the qualifying

service for the purposes of pension. Just as the respondents

before us, the respondent before the Andhra Pradesh High

Court was also a casual labour and was conferred temporary

status in terms of a master circular No.54/1994. This circular

provided that half of the period of services of casual labourers

after attainment of temporary status on completion of 120

days continuous service would count for pensionary benefits.

The respondent had contended that he was a casual labourer

from 6th January, 1979 and had been given temporary status

from 1st January, 1983 and that, therefore, 50% of the services

rendered by him for this period had to be counted whereafter

the services from 1st January, 1983 had to be counted in full for

computing pensionable service.

6. It is noteworthy that Rule 31 of the Railway Services

(Pension) Rules, 1993 had prescribed that half of the services

from contingencies shall be taken into account for calculating

pensionary benefits on absorption in regular appointment

subject to conditions stipulated in the Rules. The Andhra

Pradesh High Court had also answered the question as to

whether a person upon getting temporary status, could be said

that to have been absorbed into service in terms of Rule 31.

7. We may note that the Andhra Pradesh High Court made a

reference to the extract of para 205 of the Indian Railways

Establishment Manual, Volume-II which applies to casual

labourers, including project casual labourers, and contains a

provision for counting half of the period of service rendered

after attaining temporary status, as qualifying service for the

purposes of pensionary benefits after absorption in regular

employment. In this regard, the petitioner had also placed the

provisions of the master circular No.54/1994 before the court.

8. It was on a reading and application of these circulars as

well as the pensionary rules as were applicable in the railway

service that, in para 20 of the said judgment, the Andhra

Pradesh High Court held that the respondent was entitled to

get the period of service after his temporary engagement,

counted for the purposes of qualifying service as well as half of

the period of service rendered as a casual labourer, after

attainment of temporary status on completion of 120 days

continuous service, if it is followed by absorption in service as

a regular employee, would count for pensionary benefits.

9. In the instant case, it is an admitted position that the

respondents before us were working as casual labourers for

the period till they were granted temporary status pursuant to

an Office Memorandum dated 10th September, 1993. The

relevant provisions of this Office Memorandum which have a

bearing on the instant case read as under:-

"3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.

5. Temporary status would entitle the casual labourers to the following benefits:-

(v) 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after their regularization.

6. No benefits other than those specified above will be admissible casual labourers with temporary status. However, if any additional benefits are admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be admissible to such casual labourers.

7. Despite a conferment of temporary status, the services of a casual labourers may be dispensed with by giving a notice of one month in writing. A casual labourer with temporary status can also quit service by giving a written notice of one month. The wage for the notice period will be payable only for the days on which such casual worker is engaged on work."

10. It is apparent that so far as the respondents were

concerned, it was clearly stipulated in the memorandum that

upon regularization they would be entitled only to the benefit

of 50% of the services rendered by them under temporary

status which alone could be counted for the purposes of

computation of retirement benefits after they were regularized.

The respondents have accepted the benefit of their temporary

status as well as regularization under the Circular dated 10th

September, 1993. We may note that there is no challenge to

any provision of the Circular including para 5 sub para 5

thereunder. It is also apparent that the petitioners have taken

a conscious decision so far as the respondents are concerned

while providing for the manner in which qualifying services for

pension could be computed. The said scheme does not

envisage inclusion of service rendered on casual basis for the

purposes of computation of qualifying services for pension as

was made applicable to the employees before the Andhra

Pradesh High Court by way of Master Circular No.54/1994 and

para 225(A) of the Indian Railway Establishment Manual. It is

also not disputed before us that the Central Civil Services

(Pension) Rules which applied to the respondents which also do

not make any such provision under Rule 31 of the Railway

Services (Pension) Rules, 1993.

11. It is trite that a judgment is law on the facts it decides

and can apply only in the facts which were before the court. In

view of the above discussion, the pronouncement of the

Andhra Pradesh High Court in Shaik Abdul Khader (supra)

has no applicability to the facts of the instant case.

12. The petitioners have assailed the decision dated 9th July,

2004 of the Central Administrative Tribunal on the ground that

the grant of pension to civil employees of the government of

India has to be governed by the applicable rules. We find that

Rule 2(b) of the CCS (Pension) Rules, 1972 categorically states

that the Rules would not apply to persons in casual and daily

wage employment. Rule 13 of the CCS (Pension) Rules, 1972

stipulates that qualifying services of the government servant

shall commence from the date he takes over charge of the

post to which he is first appointed in either substantive or

officiating or temporary capacity. In this background, the

directions of the Central Administrative Tribunal that the

petitioners take into consideration the services rendered by

the respondents on casual basis for the purposes of computing

qualifying service for pension, would be contrary to the specific

provisions on the issue under the CCS (Pension) Rules, 1972.

13. It is also an admitted position before us that the scheme

of regularization notified by the petitioners by way of Office

Memorandum dated 10th September, 1993 was in the nature of

a special dispensation. It specifically provided in para 2(v) for

counting half of the service as temporary status and casual

labourer as the qualifying service for the purpose of pension

computaiton. This was the only benefit which a person so

engaged by the petitioners could be held entitled to. The

respondents who have been regularized under such scheme

cannot claim anything more.

14. Learned counsel for the respondents has placed reliance

on the decision dated 9th April, 2010 rendered in

W.P.(C)No.2331/2010 entitled Union of India vs. Sh. Wilson

Massey & Ors. wherein a similar issue was raised. Perusal of

this decision shows that the respondents had placed reliance

on the pronouncement of the Andhra Pradesh High Court in

Shaik Abdul Khader (supra) therein. The discussion by the

court would show that the submissions before us as well as

rule position which has been noticed by us hereinbefore, was

not placed before the Bench which has pronounced the

judgment in Sh. Wilson Massey (supra). The court has in

fact specifically noted that counsel for the petitioner has not

been able to show any precedent for the purposes of

computation of the qualifying services for the purposes of

pension. The court has also noticed that the petitioner‟s

counsel has not been able to show that the ratio in Shaik

Abdul Khader (supra) was not applicable in the facts and

circumstances of this case.

The position before us is otherwise. As such, no benefit

would enure to the respondents from this decision.

15. We may also notice the judicial precedent relied upon by

Ms. Amita Singh, learned counsel for the petitioner before us.

Our attention is drawn to the pronouncement reported as

(2000) 10 SCC 546 entitled Pema Ram vs. Union of India

& anr in support of the submissions that CCS (Pension) Rules

would prevail even over recruitment rules of the organization

in case of any conflict.

16. In support of the contention that so far as regularization

is concerned, the same is a matter of policy and that the

decision of the State on such policy decision would prevail,

reliance has been placed on the pronouncement of the

Supreme Court reported as 1997 SCC (L&S) 210 entitled

State of Haryana & Ors. vs. Jasmer Singh & Ors. There is

therefore substance in the submission that the scheme of

regularization dated 10th September, 1993 under which the

respondents have been regularized has to prevail and the

respondents are bound by the stipulations contained therein.

17. The petitioner was entitled to prescribe that on operating

a scheme of regularization, only 50% of the services rendered

after the casual labourer was granted temporary status would

be considered for the purposes of computation of qualifying

service. We draw strength in support of this conclusion also

from the judicial binding pronouncement reported at (1998) 5

SCC 111 entitled Union of India & Ors. vs. K.G.

Radhakrishana Panicar & Ors.

18. There is no issue before us that the respondents have

been discriminated amongst similarly placed employees. It is

an admitted position by the petitioner that the scheme for

regularization dated 10th September, 1993 has been equally

applied to all similarly placed casual labourers.

19. In this background, the direction by the tribunal to the

petitioner to compute the qualifying services of the

respondents for the purposes of pension in the light of the

decision in Shaik Abdul Khader (supra) is contrary to the

applicable rules on the subject and is unsustainable in law.

20. The respondents have not challenged the rejection of

their prayer for grant of regularization from the date of their

initial engagement as casual labourer or for their seniority.

21. In this background, the challenge made by the petitioner

has to succeed. We hereby set aside and quash the directions

of the Central Administrative Tribunal in the judgment dated

9th July, 2004 to the extent of the challenge made before us as

noticed hereinabove.

22. No order as to costs.

GITA MITTAL, J

J.R. MIDHA, J DECEMBER 13, 2011 aj