Delhi High Court
Union Of India & Anr. vs Ishwar Dass on 17 August, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17.08.2018
+ W.P.(C) 8623/2018
UNION OF INDIA & ANR. ..... PETITIONERS
Through : Mr.Ashok Singh, Advocate.
versus
ISHWAR DASS ..... RESPONDENT
Through : None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. By the present petition, the petitioners have sought quashing of
the order dated 17.02.2015, passed in OA No.4286 of 2013 as also the
order dated 23.01.2018, passed in Review Application No.259/2016,
whereby the Central Administrative Tribunal, Principal Bench, New
Delhi, has allowed the Original Application (OA) filed by the
respondent with a direction to the petitioners to re-determine the
qualifying service of the respondent by counting 50% of his casual
service and 100% of his substitute service as a store Khallasi and pay
him the arrears with interest at the rate of 9% per annum within a
period of two months.
2. The brief facts of the case as noted by the Tribunal are that the
Respondent (Applicant before the Tribunal) having been appointed as
a casual labour in Railway Electrification, Tilak Bridge, New Delhi on
28.05.1976, worked there till 09.08.1981 in the same capacity,
whereafter, he was deployed in the Horticulture Department of the
Northern Railways where he worked for a further period of 128 days
upto 16.12.1981. On 26.12.1981, the respondent was absorbed as a
substitute Store Khallasi in the Diesel Shed, Tugalakabad after
undergoing the regular selection process and was thereafter promoted
as a Clerk on 01.01.1995, from which post he had superannuated on
30.04.2013.
3. While the respondent was still in service as a Clerk, a circular
dated 28.02.2010 was issued by the Railway Board providing for the
entire service of employees as a 'substitute' to be counted for
determining the qualifying service for pensionary benefits. Upon his
superannuation on 30.04.2013, a Pension Payment Order sanctioning
pension to the respondent was issued, according to which his
qualifying service as a store Khallasi was counted w.e.f. 30.04.1987
and not from 26.12.1981, the date from which the respondent claimed
to be working as a substitute Diesel Khallasi. Aggrieved by the non-
inclusion of the period from 28.05.1976 to 16.12.1981 & 26.12.1981
to 30.04.1987 as his qualifying service, the respondent made
representations to the petitioner which remained unanswered, leading
to the filing of the OA.
4. In the OA filed before the Tribunal, praying for a direction to
the petitioner to include his full substitute Khallasi service starting
from 26.12.1981 as also 50% of the period of service rendered by him
as a casual labour from 28.05.1976 to 16.12.1981, as qualifying
service for the pension, the respondent not only stated that he had been
appointed as a substitute Khallasi w.e.f. 25.12.1981, but also annexed
a copy of his appointment letter dated 07.12.1981 as Annexure A-5.
At this stage, it may be noted that in their counter affidavit filed before
the Tribunal, the petitioners did not dispute the genuineness of the
appointment letter filed by the respondents and merely stated that the
respondent had remained an unscreened Diesel cleaner till 1987.
5. Upon considering the rival contentions of the parties, the
Tribunal allowed the OA vide impugned order dated 17.02.2015. The
petitioners thereafter preferred a review application before the
Tribunal wherein, for the first time, they contended that the letter
dated 07.12.1981, based on which the respondent had claimed that he
had been appointed as a substitute Khallasi, was unavailable in their
office and on this ground, sought review of the Tribunal's order
allowing the OA. The said review petition was however rejected by
the Tribunal vide order dated 23.01.2018 by holding that there was no
error apparent on the face of the record.
6. The present writ petition has been filed impugning both the
above orders passed by the Tribunal. Besides reiterating the same
pleas as taken before the Tribunal, Mr. Ashok Singh, learned counsel
for the petitioners urges that the petitioners were fully justified in
counting the service of the respondent w.e.f. 30.04.1987, as there was
no record of the respondent showing that he had been appointed as a
substitute Khallasi w.e.f. 26.12.1981, as claimed by him. He submits
that even the service book of the respondent only refers to him as a
store Khallasi and there was nothing to show his appointment as a
substitute Khallasi at any stage.
7. Having heard the learned counsel and on perusing the impugned
orders as also the record, we find no infirmity in the orders passed by
the Tribunal. The record shows that the respondent had not only filed
a copy of his service book, but also enclosed with his OA, a copy of
the appointment letter dated 07.10.1981 issued by the Divisional
Office of the Northern Railway, New Delhi/ Petitioner No. 2 clearly
showing that he had been appointed as a substitute Diesel Khallasi
vide order dated 07.12.1991, which averment had not been denied by
the petitioners in their reply before the Tribunal. In the absence of any
denial by the petitioners to the appointment letter annexed by the
respondents with the Original Application showing his appointment as
a substitute Khallasi, in our view the Tribunal was justified in
accepting the claim of the respondent that he had been appointed as a
substitute Khallasi w.e.f. 26.12.1981, vide letter dated 07.12.1991
prior whereto, he was a casual labour from 28.05.1976. As a result,
the Tribunal's order directing the petitioner to include not only the
respondent's entire substitute service from 26.12.1981 to 30.04.1987,
as also 50 % of his casual service from 28.05.1976 to 16.12.1981, in
accordance with the Railway Board's Circular dated 25.02.2010,
cannot be faulted.
8. For the aforesaid reasons we find no reason to interfere with the
impugned orders passed by the Tribunal. The writ petition is
dismissed in limine, as being meritless.
(REKHA PALLI)
JUDGE
(HIMA KOHLI)
JUDGE
AUGUST 17, 2018
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