Jharkhand High Court
Devendra Kumar Tiwari @ Dewendra Tiwari vs The Union Of India on 5 June, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:14490-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7495 of 2023
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Devendra Kumar Tiwari @ Dewendra Tiwari, son of Late Bikram
Tiwari, resident of Village- Sharshaw, P.O. & P.S.- Dharundha,
District- Siwan (Bihar)
... ... Petitioner
Versus
1. The Union of India, through the General Manager, East
Central Railway, Hajipur (Bihar)
2. The General Manager, East Central Railway, Hajipur (Bihar)
3. The Divisional Railway Manager, East Central Railway,
Dhanbad Division, Dhanbad
4. The Senior D.P.O., East Central Railway, Dhanbad Division,
Dhanbad
5. The Divisional Personnel Officer, East Central Railway,
Dhanbad Division, Dhanbad
6. The Station Manager, East Central Railway, Dhanbad Division,
Dhanbad
.... ... Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. M.M. Sharma, Advocate
Mr. Saibal Mitra, Advocate
Mr. S.B. Gupta, Advocate
For the Respondents : Mr. Anil Kumar, A.S.G.I.
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Reserved on 06.05.2025 Pronounced on 05.06.2025
Per : Rajesh Shankar, J. :
The present writ petition has been preferred seeking following
reliefs: -
(i) For quashing of the order dated 09.10.2023 passed
by the Central Administrative Tribunal, Patna Bench, Circuit
Bench at Ranchi in OA/051/00062/2021 whereby and
whereunder the original application filed by the petitioner for
calculation of entire service period rendered by him for the
purpose of counting the length of service along with annual
increments and for grant of pension, gratuity along with
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other retiral benefits after calculation of the total period of
service and for grant of all other pecuniary benefits which
the petitioner is found entitled along with interest, has been
rejected.
(ii) For direction upon the concerned respondents to
calculate the entire service period rendered by
the petitioner for the purpose of counting the length of
service along with annual increments.
(iii) For further direction upon the respondents to grant
the pension, gratuity along with other retiral benefits after
calculation of the total period of service.
(iv) For further direction upon the respondents to grant
all other pecuniary benefit to the petitioner with interest.
(v) For issuance of any other appropriate
writ(s)/order(s)/direction(s) as this Hon'ble Court may deem
fit and proper under the facts and circumstances of this case.
2. The learned counsel for the petitioner submits that the
petitioner was appointed as Volunteer Ticket Collector (VTC) in
Sealdah Division of Eastern Railway in the month of February, 1981
and he worked till 05.10.1994. Thereafter, the petitioner along with
several others moved before the Central Administrative Tribunal,
Calcutta Bench by filing O.A. No. 161 of 1992 seeking direction upon
the respondents to absorb them in regular/permanent service with
temporary status and to grant them all consequential benefits
retrospectively. The said O.A was disposed of on 19.08.1993 directing
the respondents to treat the petitioner and other similarly situated
persons as temporary railway employees, however it was observed
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that the railways would have the right to deploy them wherever
vacancy arises. It was also observed that they would be absorbed
against regular vacancies in accordance with their seniority.
3. Pursuant to the direction of the Tribunal, the petitioner was
declared as a substitute with temporary status vide office order dated
10.04.1995 and he was deployed as Shuntman, a Group-D post in the
scale of Rs. 750-940/-. The petitioner was posted under Station
Master, Phusro Railway Station and he joined there on 14.06.1995
where he fell ill. Due to frequent illness, he requested to transfer him
elsewhere and accordingly, he was relieved by the Station Master to
join the office of Assistant Operations Manager (A.O.M.), Dhanbad
vide order dated 28.03.1996.
4. Thereafter, the petitioner reported to the office of A.O.M.,
Dhanbad on 29.03.1996 but he was kept waiting for posting. He filed
representation but no action was taken. He then filed O.A. No. 595 of
1999(R) in Central Administrative Tribunal, Patna Bench, Circuit
Bench, Ranchi and the said O.A. was allowed in favour of the
petitioner vide order dated 26.10.2010. Subsequently, the petitioner
was given posting as 'Shuntman' at Dhanbad and he finally retired
from there on 31.01.2020. Thereafter, the petitioner filed
OA/051/00062/2021 in Central Administrative Tribunal, Patna Bench,
Circuit Bench, Ranchi for grant of pension, gratuity and other retiral
benefits after calculation of his entire service period rendered by him,
however the said O.A. was dismissed vide impugned order dated
09.10.2023 applying the doctrine of estoppel by acquiescence.
5. It is further submitted that the petitioner had worked
continuously under the respondents on different posts since 1981,
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initially as VTC and subsequently as substitute temporary staff and as
such he is entitled to be paid pension, gratuity and other retiral
benefits after counting his entire previous service.
6. It is also contended that as per the order dated 26.10.2010
passed in O.A No. 595 of 1999(R), the petitioner was denied back
wages treating him in continuous service and the respondents were
directed to arrange his posting against the vacancy of Group-D post.
The learned Tribunal in its order dated 09.10.2023 passed in
OA/051/00062/2021 however failed to take into consideration the
previous order dated 26.10.2010 passed in O.A. No. 595 of 1999(R).
It is a well settled principle of law that the pension is not a bounty,
rather it is the legal right of an employee who has devoted his life
under the management.
7. Learned counsel for the petitioner puts reliance on the judgment
of the Hon'ble Supreme Court rendered in the case of Union of
India & Others vs. Munshi Ram reported in 2022 SCC OnLine
SC 1493.
8. Per contra, learned counsel for the respondents submits that the
petitioner worked as VTC since 1981 which was not an approved post
and pursuant to the direction given by the Calcutta Bench of the
Central Administrative Tribunal vide judgment dated 19.08.1993
passed in O.A. No. 161 of 1992, the petitioner was deployed as
'Substitute' under Station Master, Phusro Railway Station vide office
order dated 10.04.1995 and he joined on 14.06.1995, however he
was not given temporary status due to habitual absenteeism.
9. It is further submitted that the petitioner was given temporary
status under Dhanbad Division only on 11.01.2012. Hence on the
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date of his retirement, he had served for a total period of 8 years 18
days only. As such, he was covered under the New Pension scheme.
Moreover, the petitioner was paid all admissible retirement benefits
including Gratuity, GIS, Leave Encashment and Composite Transfer
Grant (CTG).
10. It is further argued that the learned Tribunal, vide order dated
26.10.2010 passed in O.A. No. 595 of 1999, specifically observed that
the petitioner would not be entitled to back wages. The office order
dated 08.09.2011 whereby the petitioner was given posting as
'Substitute' at Maintenance Work Force under SM/MWF, clearly
mentioned that he would not be eligible for any pension or any
benefit under State Railway Provident Funds or Gratuity Rules and
the said office order was never challenged by the petitioner and thus
the same attained finality.
11. It is also submitted that the learned Tribunal has rightly
dismissed the OA/051/00062/2021 based on the doctrine of estoppel
by acquiescence.
12. Heard learned counsel for the parties and perused the materials
available on record.
13. Thrust of the argument of the learned counsel for the petitioner
is that the petitioner was appointed as VTC in Sealdah Division of
Eastern Railway in the month of February, 1981 and retired from the
post of 'Shuntman' on 31.01.2020 from East Central Railway,
Dhanbad and as such his entire period of service should be counted
for grant of pension, gratuity along with other retiral benefits.
14. Learned Additional Solicitor General of India appearing on behalf
of the Union of India, while refuting the said contention of learned
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counsel for the petitioner, submits that the petitioner was given
temporary status under Dhanbad Division only on 11.01.2012 and on
the date of retirement, he had served for a total period of 8 years
and 18 days and all the admissible retiral benefits have been paid to
him.
15. On perusal of the record of the case, it appears that initially the
petitioner was appointed as VTC in the year 1981 which was not an
approved post. The petitioner and other VTC employees moved
before the Calcutta Bench of CAT in O.A. No. 161 of 1992 for their
absorption in regular service with temporary status and pursuant to
the order dated 19.08.1993 passed by the learned Tribunal, the
petitioner was deployed as 'Substitute' with Temporary status vide
office order dated 10.04.1995 and he joined the post of 'Shuntman', a
Group 'D' post, in the scale of Rs.750-940/-. However, due to habitual
absenteeism, the petitioner did not complete 120 days of continuous
service required to attain the temporary status and he was not
conferred that status.
16. Further, vide order dated 26.10.2010 passed in O.A. No. 595 of
1999, the respondents were directed to arrange the posting of the
petitioner against the vacancy of Group-D post and accordingly, the
Assistant Personnel Officer, East Central Railway, Dhanbad issued an
office order no. 243 of 2011 dated 08.09.2011 posting him as a
Substitute at MWF. The said letter explicitly mentioned that the
petitioner would not get any back wages and action might be taken
against him as per rule with regard to his previous performance. It
was further mentioned in the said office order that the petitioner
would not be eligible for any pension or any benefit under State
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Railway Provident Funds or Gratuity Rules or any leave beyond that
admissible to a Substitute under the rules enforced from time-to-
time. It was also mentioned that the petitioner would have no claim
to be absorbed in regular cadre in any Group-D category unless he
was selected by duly constituted screening committee as per his turn.
17. The petitioner joined the post of 'Shuntman' by accepting the
said terms and conditions mentioned in the office order dated
08.09.2011 and he never challenged the said office order before the
court of law and thus the same attained finality. Moreover, after
retirement, the petitioner also availed the benefit of New Pension
Scheme.
18. We are of the view that the learned Tribunal has rightly
dismissed the OA filed by the petitioner applying the doctrine of
estoppel by acquiescence. The doctrine of estoppel by acquiescence
applies when a party remains silent on a matter where he has a duty
to speak or disclose and his inaction leads another party to believe
that he agrees to something resulting in the silent party being
prevented from contradicting that belief. This legal principle prevents
someone from taking a position that is inconsistent with his previous
silence or inaction, particularly if that silence has caused another
party to change the position to his detriment. While applying the
principle of estoppel by acquiescence, the court is primarily
concerned with the conduct of a party to determine as to whether he
can be permitted to take a different stand in a subsequent
proceeding, unless there exists a statutory interdict.
19. In the present case, the petitioner neither challenged the
conditions mentioned the office order dated 08.09.2011 at the time
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of joining as 'Substitute' nor challenged the same during his entire
service tenure. Even after the retirement, he availed the retirement
benefits under the New Pension Scheme. If the conditions mentioned
in the office order dated 08.09.2011 were not acceptable to the
petitioner, he should have challenged the same at that very time itself
and his silence will be deemed to be his acceptance of the said
conditions.
20. The petitioner, by filing the OA claimed for calculation of entire
service period rendered by him for the purpose of grant of pension,
gratuity and other retiral benefits which deserved to be disallowed in
view of the specific terms and conditions mentioned in the office
order dated 08.09.2011.
21. The judgment of Munshi Ram (supra) relied upon by learned
counsel for the petitioner is not applicable in the facts and
circumstance of the present case in view of the specific conditions
mentioned in the office order dated 08.09.2011 that he would not be
eligible for any pension or any benefit under the State Railway
Provident Funds or Gratuity Rules.
22. The writ petition being devoid of merit is, accordingly,
dismissed.
(M.S. Ramachandra Rao, C.J.)
(Rajesh Shankar, J.)
A.F.R.
Ritesh/
