Delhi High Court
Union Of India & Ors. vs Smt. Kamla Devi on 29 May, 2023
2023:DHC:3777-DB
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 29, 2023
+ W.P.(C) 2320/2023, CM APPL. 8787/2023
UNION OF INDIA & ORS.
..... Petitioners
Through: Ms. Manisha Agrawal Narain, CGSC
with Ms. Rakshita Goyal and
Mr. Sandeep Singh Somaria, Advs.
alongwith Mr. S. S. Rathi, APO,
Legal/DLI, Mr. Vijay Singh, APO,
Settlement/DLI and Dr. D. S. Meena,
Sr. Law Officer, DLI for UOI
versus
SMT. KAMLA DEVI
..... Respondent
Through: Mr. T. D. Yadav, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
JUDGMENT
V. KAMESWAR RAO, J
1. This petition has been filed by the petitioners challenging the
orders dated March 22, 2021 in Original Application No.2208/2018
and September 9, 2022 in Review Application No.28/2022 passed by
the Central Administrative Tribunal, Principal Bench, New Delhi
('Tribunal', for short). The Tribunal, vide order dated March 22, 2021
allowed the OA filed by the respondent herein and directed the
petitioners herein to grant family pension at rates applicable from time
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to time and other terminal dues as per rules with interest on the arrears
which are due from May 23, 2018. By the order dated September 9,
2022, the Tribunal has dismissed the review application filed by the
petitioners herein seeking review of order dated March 22, 2021 on the
ground that there is no error apparent either on facts or in law in the
order dated March 22, 2021.
2. The facts as noted from the petition are that the respondent is
the widow of one Narayan Dutt, who was engaged as a casual labour
on December 18, 1972 under the petitioners / Northern Railway. He
was granted the authorised pay scale of ₹196-232 w.e.f. April 1, 1974.
He was drawing a basic pay of ₹226/- per month, when he
unfortunately died on July 28, 1983. He left behind his widow, three
children aged around four years (son), two years, and six months
(daughters).
3. On the death of the respondent's husband, the respondent was
paid his gratuity. Subsequently, her elder son was appointed as a
Group-D employee on compassionate ground by the petitioners in the
Railway in the pay scale of ₹2550-3200 on March 8, 2001.
4. It was the case of the respondent that her case is covered under
Rule 75 of Family Pension Scheme for Railway Servants, 1964 ('Rules
of 1964', hereinafter) for payment of family pension and other retiral
benefits. She made representations in this regard on November 10,
2017. However, there has been no response which resulted in filing of
O.A. 2208/2018, wherein she had relied upon the judgment of the
Supreme Court in the case of Prabhavati Devi v. Union of India &
Ors., (1996) 7 SCC 27.
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5. The case of the petitioners herein before the Tribunal was that
the husband of the respondent, Narayan Dutt was not screened and as
such he was not a regular employee. A reference has also been made
in the reply filed by the petitioners that the son of the respondent has
also been given compassionate appointment.
6. The Tribunal was of the view that the husband of the
respondent had put in service from December 18, 1972 to July 28,
1983. The said service was in an authorised scale from April 1, 1974 to
July 28, 1983, i.e., of more than nine years, as against one year
specified in Rule 75 of the Rules of 1964 which is reproduced as
under:
"75. Family Pension Scheme for railway servants,
xxx xxx xxx
(2) Without prejudice to the provisions contained in sub-
rule (3), where a railway servant dies:-
(a) after completion of one year of continuous service,
or
xxx xxx xxx
the family of the deceased shall be entitled to a family
pension 1964 (hereinafter in this rule referred to as
family pension) the amount of which shall be determined
in accordance with the Table below .....
xxx xxx xxx
(3) The amount of family pension shall be fixed at
monthly rates and expressed in whole rupees and where
the family pension contains a fraction of a rupee, it shall
be rounded off to the next higher rupee:
Provided that in no case a family pension in excess of
the maximum specified under this rule shall be
allowed."
7. The Tribunal had also relied upon the judgment in the case of
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Prabhavati Devi (supra). The Tribunal has referred to a notification
signed by Assistant Personnel Officer-IV, Delhi Division, New Delhi
dated September 23, 1983, wherein it was notified that Narayan Dutt,
Substitute S&T Khallasi working under Signal Inspector (West) Delhi
had died on July 28, 1983 and any information with respect to any
amounts due to the said employee, be sent to the Settlement Section of
the Personnel Branch. It was thereafter recorded by the same Assistant
Personnel Officer that Narayan Dutt was appointed Khallasi; scale of
pay of ₹196-232 was granted to him w.e.f. April 1, 1974; Provident
Fund (PF) was deducted from December 1980; he is an unscreened
Khallasi; and he was not absorbed against a regular post.
8. The Tribunal noted that the aforesaid aspects recorded by the
Assistant Personnel Officer-IV, Delhi Division, New Delhi have not
been contested by the petitioners. In other words, the Tribunal was of
the view that Narayan Dutt had acquired the status of a temporary
employee.
9. That apart, the Tribunal by relying upon Prabhavati Devi
(supra), directed that under the conditions, a substitute shall be
accorded all the rights and privileges as may be admissible to a
temporary Railway servant from time to time on completion of six
months of continuous service.
10. Even before this Court, Ms. Manisha Agrawal Narain, learned
CGSC appearing for the petitioners would submit that there are
relevant provisions related to the process of screening of casual
labours. Narayan Dutt was not screened and as such he was not a
regular employee in the department. Hence, he was not entitled to any
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pensionary benefits.
11. That apart, regularisation, entitlement of pension and family
pension as well as counting of casual service is governed by the
provisions of paragraph 2005(a) which stipulated that casual labours
including project casual labours shall be eligible to count only half the
period of service rendered by them after obtaining 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
employment. Such casual labours, who have attained temporary status
will also be entitled to carry forward leaves at their credit to the new
post on absorption in regular service. Daily wagers and casual labours
are not entitled to such benefits.
12. She submitted that the Tribunal has failed to take into account
that circulars issued by the Railway Board has statutory force of law as
per paragraph 157 of the Indian Railway Establishment Code.
Therefore, such circulars have the force of law, being an analogous
rule at par, framed by delegated authority under the proviso to Article
309 of the Constitution of India. Hence, the respondent was not
entitled to family pension as widow of an unscreened employee.
13. On the other hand, Mr. T.D. Yadav, learned counsel for the
respondent would justify the order of the Tribunal. The benefits given
by the Tribunal in favour of the respondent in terms of law laid down
by the Supreme Court and the rules of the Railways cannot be set
aside, merely because the petitioners contend that the appointment of
Narayan Dutt was not regular, as he was not screened.
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14. He states that in the facts of this case, this Court ought not
interfere with the impugned order.
15. Having heard the learned counsel for the parties, the issue
which arises for consideration is whether the deceased husband of the
respondent was entitled to pension, which shall now entitle the
respondent herein to family pension.
16. Though the Tribunal has relied upon the judgment in the case
of Prabhavati Devi (supra), we find that two subsequent judgments of
the Supreme Court on the same issue, being Union of India and Ors.
v. Rabia Bikaner and Ors., (1997) 6 SCC 580, and General Manager,
North West Railway & Ors. v. Chanda Devi, Civil Appeal No.
5833/2007, decided on December 12, 2007, have not even been
considered by the Tribunal. In General Manager, North West
Railway (supra), the aggrieved was Smt. Santosh, widow of one Ram
Niwas, who was appointed as project casual labour on November 8,
1979. The Supreme Court noted that the case of regularisation of
similarly situated employees had come up before the Court earlier in
Inder Pal Yadav and Ors. v. Union of India and Ors., (1985) 2 SCC
648. During the hearing of that matter, the Apex Court had, inter alia,
suggested for framing a scheme for regularisation of such employees.
Pursuant thereto and in furtherance thereof, proposals were placed
before the Supreme Court by the Railway Administration. A scheme
was eventually produced before the Supreme Court, Clause 5.1
whereof reads:
"5.1. As a result of such deliberations, Ministry of Railways
has now decided in principle that casual labour employed on
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projects (also known as „project casual labour) may be treated
as temporary on completion of 360 days of continuous
employment. The Ministry have decided further as under:
"(a) These orders will cover:
(i) Casual labour on projects who are in service as
on January 1, 1984; and
(ii) Casual labour on projects who, though not in
service on January 1, 1984, had been in service on
Railways earlier and had already completed the
above prescribed period (360 days) of continuous
employment or will complete the said prescribed
period of continuous employment on re-engagement
in future. (A detailed letter regarding this group
follows.)
(b) The decision should be implemented in phases
according to the Schedule given below:
**** **** ****"
17. In terms of the scheme, those casual labours, who have
completed three years as on January 1, 1984, but less than five years
and who have worked for more than 1095 days have been ordered to
be considered as temporary employees from January 1, 1985. Those
casual labour who have worked for 360 days on December 31, 1983,
but less than three years have been ordered to be considered as
temporary employees from January 1, 1986. Therefore, certain casual
workers were eligible to be considered as temporary employees, but it
was decided to appoint them only after their selection by the selection
committee.
18. Unfortunately, Ram Niwas expired on December 29, 1988.
His wife filed an application for grant of family pension. The said
request was rejected on April 23, 2003 stating that she is not entitled to
family pension under the Railway Rules. In other words, the pension
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is not admissible to substitute temporary employees.
19. The Tribunal allowed the OA vide judgment / order dated
April 7, 2004 relying upon a decision of a Coordinate Bench of the
Tribunal at Ahmedabad in the case of Smt. Vallam Badia v. Union of
India (2003) 2 SLJ CAT 271, which was affirmed by the Division
Bench of the Gujarat High Court.
20. The Supreme Court noted the provisions of the Railway
Service (Pension) Rules to hold that the said Rules are not applicable
as the same shall apply only to the Railway servants. In other words
only Railway servants appointed on regular basis would enjoy the
status having regard to the provisions contained in Article 309 of the
Constitution of India. The Supreme Court was also of the view that the
case of Ram Niwas shall be governed by Chapter XX of the Rules.
Rule 2001 excludes the applicability thereof which governs the service
conditions of permanent and temporary staff. Rule 2002 lays down the
rights and privileges admissible to casual labours. It was clearly stated
casual labours are not entitled to any privileges other than those
statutorily admissible under various Acts such as Minimum Wages
Act, 1948, the Workmen's Compensation Act, 1923 etc. or those
specifically sanctioned by the Railway Board from time to time. Rule
2005 lays down entitlement and privileges admissible to casual labours
who are treated as temporary, i.e., those given temporary status, on the
following terms:
"2005 clearly lays down the entitlement and privileges
admissible to casual labour who are treated to be temporary
i.e. given temporary status in the following terms;
2005. Entitlements and Privileges admissible to Casual
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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-„-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 on
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
ground, quotas for handicapped and ex-servicemen etc. as
may be specified in these orders they will have a prior claim
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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 Railway
Board\022s letter No. E(NG)II/78/CL/12 dated 14-10-80.
(Letter No. E(NG)II/85/CL/6 dated 28-11-86 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
at 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 (1985 Edition)."
21. The Supreme Court has noted that a casual labour who has
attained temporary status and has been paid regular pay-scale, 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
last pay drawn by him. In paragraphs 17 to 23, it held as under:
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"17. The aforementioned Rule 2005 replaced an earlier Rule
being Rule 251 occurring in Chapter XXV of the previous
publication which has inter alia been noticed by this Court in
Ram Kumar and Others Vs. Union of India and Others
[(1988) 1 SCC 306]. Ranganath Misra, J. speaking for a
Division Bench noticing the different entitlements of an
employee who has acquired temporary status as noticed in
Inderpal Yadav case held; 2. It is the stand of the learned
Additional Solicitor General that no pensionary benefits are
admissible even to temporary railway servants and, therefore,
that retiral advantage is not available to casual labour
acquiring temporary status. We have been shown the different
provisions in the Railway Establishment Manual as also the
different orders and directions issued by the Administration.
We agree with the learned Additional Solicitor General that
retrial benefit of pension is not admissible to either category
of employees.
18. A clarification was, however, subsequently made in Ram
Kumar and Others Vs. Union of India and Others [1988 (1)
SCC 306], stating;The only other question to be seen is with
regard to entitlement to pension. It appears that the Board on
the basis of the Fourth Pay Commission report has provided
for pension at the time of superannuation even to those who
are temporary employees. In paragraph 12 of our order on
the basis of material then placed before us, we had taken the
view that temporary employees were not entitled to pension
on superannuation. We direct the Railway Board to consider
the claim of temporary employees who are before us for
pension at the time of superannuation or otherwise in view of
the fact that the Board has taken its own decision differently.
Obviously appropriate material had not been placed before
this Court when the submission of Mr. Ramaswamy for
Railway administration was accepted in the order. The
decision is beneficial to the employees and we direct that the
Boards decision may be implemented.
19. Ram Kumar (supra) was followed by this Court in Union
of India and Others Vs. Rabia Bikaner and Ors. [1997 (6)
SCC 580] stating : . It is contended by the learned counsel for
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the respondent-widows that under para 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 also 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
circumstances, the respondent-widows are not eligible for the
family pension benefits.
20. 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.
501 (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.
21. We have noticed hereinbefore that in the Office Order
dated 24.1.1989, the designation has been shown as T.S.
Helper CSI (Construction) i.e. temporary status as per the
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CSI (Construction). However, wrongly it was said to be a
pensionable post. Before the High Court, an additional
affidavit was filed by the Railway Administration wherein
inter alia it was stated that the screening tests were held long
thereafter viz. some time in the year 1999. Only upon holding
a screening test, the services of the employees concerned
could be regularized; and as in the case of Ram Niwas, he
had expired in the year 1988, he had not and could not have
undergone any screening test and that no pensionary benefit
or benefit of family pension was admissible to him.
22. The decision of the Gujarat High Court relied upon by the
Tribunal as also the Division Bench, in our opinion, may not
be correct. It was held therein that as temporary servant also
is entitled to pension on his attaining the age of
superannuation, the purported amendment in the Railway
Manual to the effect that they would enjoy the status of
temporary employee is bad in law.
23. The Gujarat High Court in Rukhiben Rupabhai (supra),
no doubt on analyzing the scheme filed before this Court,
opined : 2. This change has been made by Railways after the
Apex Court decision in Inder Pal Yadav case (supra). The
original definition „temporary railway servant‟ is clear, but in
the above quoted definition in Clause (1501), 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 decisions in Inder Pal Yadav case (supra) followed by
Dakshin Railway Employees case (supra), making casual
labour „temporary railway servant‟. Since there exists only
four categories, namely, (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
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„casual labour with temporary status‟ by subsequent
gerrymendering by the Railways by its Circular dated 11th
September 1986, which was not brought to the notice of the
Apex Court in Dakshin Railway Employees case (supra).
Therefore, this Circular has no legal sanction, against the
Apex Court decisions in Inder Pal Yadav case (supra),
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. What has been
considered therein was that the Railway Mannual should be
given effect to as it governs the terms and conditions of
service of the employees working under the Railway
Administration. A scheme when engrafted in a rule must be
read in the context in which the same was done. This Court
while accepting the scheme, nowhere suggested that the
amendments made in the Railway Manual would be of no
effect. Even otherwise the same could not have been done."
22. The Supreme Court finally held that the Gujarat High Court
had failed to notice that when casual labour has been excluded from
the definition of a permanent or temporary employee, he could not
have become a temporary employee and there is no legal sanction
thereof. The Supreme Court was of the view that what was protected
by conferring a temporary status upon a casual labour was his service
and by reasons thereof, the pension rules were not made applicable. In
other words, any entitlement has to be strictly in terms of the statute /
statutory rules. In concluding as above, the Supreme Court was of the
view that a casual worker who acquired temporary status but was not a
temporary employee of the Railway cannot be held to be entitled to
Railway Pension Rules, which are only applicable to Railway servants,
which would not include a casual labour acquiring a temporary status.
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23. The Supreme Court in paragraph 19 of its judgment has by
referring to the judgments in the case of Ram Kumar and Ors. v.
Union of India and Ors., 1988 1 SCC 306 and also Rabia Bikaner
(supra) held that under Rule 2511, the contention that the widow of the
deceased casual labour is entitled to family pension cannot be
accepted. In fact, we find that in Rabia Bikaner's case the Court has
held that a casual labour employed in Railway Administration for six
months after being granted temporary status, will have to be
empanelled and then screened by the competent authority. As and
when the vacancies for temporary posts in regular establishments are
available, they are to be appointed in the order of merit after screening.
It was also noted that on their appointment they are required to put
minimum service of one year in temporary post. The Supreme Court
was of the view that it is only when those employees who had put in
required minimum service of one year, that too after due appointment
to the temporary post, dies while in service, that his widow would be
eligible to pension under the Family Pension Scheme, 1964.
24. Having noted the above conclusion of the Supreme Court in
Rabia Bikaner (supra), reiterated in General Manager, North West
Railway & Ors. (supra), it must be stated that the late husband of the
respondent, was not empanelled for being screened to be appointed
against a temporary post in the regular establishment. Him not having
been appointed as a temporary railway servant, the respondent cannot
be said to be entitled to family pension. Though much reliance has
been placed by the learned counsel for the respondent and the Tribunal
on the noting of the Assistant Personnel Officer to state that the
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deceased husband of the respondent was being paid in the pay-scale of
₹196-232/- when he had died and that he was being paid PF, the same
would not enure to the benefit of the respondent as the noting also
reveal that the late employee was neither screened nor absorbed against
a regular post.
25. It may also be stated in paragraph 5 of Rabia Bikaner (supra),
the judgment in Prabhavati Devi (supra), on which much reliance has
been placed by the Tribunal while passing the impugned order, was
distinguished by the Supreme Court in the following words:
"5. The learned counsel strongly relied upon the judgment in
Prabhavati Devi v. Union of India [(1996) 7 SCC 27: 1996
SCC (L&S) 369: (1988) 2 SCR 138]. Therein, the facts were
that from the year 1981 to 27-4-1993, the husband of the
appellant had worked as casual worker and obtained the status
of substitutes who were working, as defined under Rule 2315 of
the Railway Establishment Manual, in a regular establishment
on a regular scale of pay and allowances applicable to those
posts in which they were employed. Since he died while
working in the regular post, his widow became eligible to
claim the benefits of the pension scheme. Thus, in that case, the
appellant's husband was a substitute working in a regular
scale of pay in the Railway Establishment. Obviously, he was
screened and was also appointed to the temporary status but
instead of being given appointment to a temporary post, he was
treated as substitute and appointed to the vacancy when the
regular candidates went on leave. Under these circumstances,
this Court had held that the widow of such employee is entitled
to the benefit of the family pension. The above ratio is
inapplicable to the cases referred to hereinbefore. The question
also was considered in a recent judgment of this Court in
Union of India v. Sukanti [ SLP (C) No. 3341 of 1993 decided
on 30-07-1996 (Appended below)] wherein relying on the ratio
in Ram Kumar case [(1988) 1 SCC 306 : 1988 SCC (L&S) 329
: (1987) 5 ATC 404 : (1988) 2 SCR 138] this Court held that
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no retiral benefit was available to the widow of the casual
labourer who had not been regularised till his death. Thus, we
hold that the view taken by the Tribunal in granting the
pensionary benefits to the respondents is clearly illegal."
26. In view of our discussion above, we are of the view that the
orders of the Tribunal are overlooking the position of law laid down by
the Supreme Court in Rabia Bikaner (supra) and General Manager,
North West Railway (supra). In terms of the said judgments, the
respondent is not entitled to family pension.
27. Accordingly, the petition is allowed. The orders of the
Tribunal dated March 22, 2021 and September 9, 2022 are set aside.
No order as to costs.
CM APPL. 8787/2023
Dismissed as infructuous.
V. KAMESWAR RAO, J.
ANOOP KUMAR MENDIRATTA, J.
MAY 29, 2023/aky
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