Kerala High Court

Union Of India vs Sadanandan V on 25 February, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                     2025:KER:19593

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                   &

               THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

    TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946

                        OP (CAT) NO. 67 OF 2024

          AGAINST THE ORDER DATED 02.03.2023 IN OA NO.288 OF 2019 OF

           CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH


PETITIONERS/RESPONDENTS:

    1       UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER
            SOUTHERN RAILWAY, PARK TOWN, CHENNAI, PIN - 600003
    2       SENIOR DIVISIONAL PERSONNEL OFFICER,
            SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION,
            THIRUVANANTHAPURAM, PIN - 695014
    3       THE DIVISIONAL RAILWAY MANAGER,
            SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION,
            THIRUVANANTHAPURAM, PIN - 695014

            BY ADV C.DINESH

RESPONDENT/APPLICANT:

            SADANANDAN V., AGED 71 YEARS
            S/O VELAYUDHAN, RETIRED GATE KEEPER, TRIVANDRUM
            DIVISION, SOUTHERN RAILWAY, MAVELIKKARA,
            RESIDING AT KOTTAKKAL, PADINJATHATHIL, CHERAVATHY,
            KAYAMKULAM P.O., ALLEPPEY DISTRICT, PIN - 690502

OTHER PRESENT:

            SRI MARTIN G THOTTAN

        THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 25.02.2025, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(CAT) No.67/2024
                                         2

                                                                  2025:KER:19593


                                   JUDGMENT

K. V. JAYAKUMAR, J

Impugning the order of the Central Administrative Tribunal in

O.A.No.288/2019 dated 02.03.2023, Union of India and its officers

preferred this OP(CAT), whereby the following claim of the

respondent/applicant has been allowed by the Tribunal.

"1) Declare that the applicant is having 30 years of qualifying service, reckoning his full service from 05.10.1983 to 30.06.2011 as qualifying along with 50% of his casual service and to direct the respondents accordingly.

11) Direct the respondents to revise the applicant's pensionary benefits and also to grant 3rd financial up-gradation under MACP Scheme on the basis of the above declaration with all consequential benefits.

III) Award costs of and incidental to this application.

IV) Pass such other orders or directions as deemed fit."

2. The respondent/applicant is a retired Track

Maintainer from Southern Railway. He started his career as Casual

Labourer on 22.06.1973. He was granted temporary status from

2025:KER:19593 23.10.1978. Prior to that, had put in more than three years casual labour

service. As per Annexure-A1 order dated 05.10.1983, was appointed as

Substitute Gangman and later, was regularized in service with effect from

27.02.1987. He retired from service on superannuation on 30.06.2011

with grade pay of Rs.2,000/-. The grievance of the respondent/applicant

was that, even though he had more than 30 years of qualifying service,

was given only two promotions/financial upgradations.

3. As per Annexure-A2 service certificate, his qualifying

service is shown as 28 years, which was arrived at by reckoning 50% of

casual service from 23.10.1978 to 26.02.1987 and full service from

27.02.1987 to 30.06.2011. The respondent/applicant further contended

that the petitioners had failed to consider the fact that he was appointed

as Substitute Gangman on 05.10.1983 and continued as such till he was

regularly appointed on 27.02.1987, against the mandate in Rule 37(2) of

the Railway Services (Pension Rules) 1993.

4. Placing reliance on a decision in Union of India

and Ors. v. Rakesh Kumar and others [AIR 2017 SC 1691], the

respondent/applicant contended that he is eligible to reckon 50% of

casual labour service prior to the grant of temporary status. The stand of

the petitioners/respondents before the Tribunal and before us is that, the

2025:KER:19593 applicant had only 28 years 2 months and 16 days total service and he is

not eligible for 3rd Modified Assured Career Progression Scheme (MACP).

5. Noticing the rival contentions of the parties, the

learned Tribunal allowed the OA and directed the petitioners to grant 3 rd

MACP.

6. The learned counsel for the respondent/applicant

supported the order of the Tribunal.

7. Adv.C.Dinesh, the learned counsel for the

petitioners/Union of India on the other hand submitted that the

impugned order is illegal and unsustainable. The Tribunal is not justified

in granting the 3rd MACP to the applicant.

8. We have heard the rival contentions of the parties and

perused the paper book.

9. The main contention of the petitioners is that 50% of

the casual labour service entered by the applicant prior to his

appointment as Substitute Gangman can be taken into account only for

the purpose of granting pension and not for the purpose of granting the

benefit of 3rd MACP. At this juncture, it will be better to extract Ext.R1(C).

2025:KER:19593

10. On a perusal of Annexure -R1(c), it is clear that, 50%

of casual labour service has to be considered for the grant of benefit under

the MACP scheme. The Central Administrative Tribunal, noticing the

rival contentions of the parties allowed the claim of the applicant. The

relevant paragraphs are extracted hereunder:

"8. The application has two limbs. First limb is regarding the estimation of qualifying service. Basing on Annexure-A1 office order dated 05.10.1983 it is pointed out that while being engaged as temporary casual labourer he was appointed as 'Substitute Gangman'. Later he was regularly appointed as Gangman on 27.02.1987 and retired from service on 30.06.2011. While estimating qualifying service for pension, full period from 27.02.1987 to 30.06.2011 and 50% of the casual labour service from 23.10.1978 to 26.02.1987 was reckoned. According to the applicant, the respondents were bound to reckon the entire service from 05.10.1983 to 30.06.2011 and 50% of casual labour service from 23.10.1978 to 04.10.1983. We find considerable force in the argument. In this connection the learned counsel for the applicant also submitted that, while estimating qualifying service, Rule 32 of the Rules was ignored.

9. We have no doubt that Rule 32 recognises counting of service of substitute for pensionary benefits 'from the date of completion of three months in the case of teachers and four months in other cases of continuous service as substitute followed by absorption in a regular Group C or Group D post without any break. Apparently, the applicant cannot take shelter under Rule 32 since it formed part of the Rules formulated in 1993

2025:KER:19593 whereas Annexure-A1 was issued on 05.10.1983. When the incongruity was pointed out, the learned counsel submitted that, even earlier Railway Board had issued directions to save substituted service. To buttress the contention he has taken to us a copy of Railway Ministry's letter No.F(E)III/68/PNI/21 dated 22.07.1970 addressed to General Manager, All India Railways and others, which reads thus:

"Substitute service-Counting for Pensionary benefits Attention is invited to para 6 of the Board's letter No.E(NG)65LR1/1 dated 1"

September 1965 wherein it was inter alia laid down that the substitutes should be afforded all rights and privileges as are admissible to temporary Railway servants on completion of six months continuous service. A question has been raised as to the extent to which the substitutes service is to be taken into account for pensionary benefits. The matter has been carefully considered by the Board and it is clarified that the service as substitute will count for pensionary benefits from the date of completion of six months (three months in the case of Teachers) continuous service as substitute provided it is followed by absorption in regular Class III/Class IV service without break. The substitute service rendered before the issue of these orders will also be regulated accordingly."

10. From the above we are convinced that Rule 32 of the Rules is the true reflection of the above policy decision of the Ministry, so that the applicant is justified in claiming regular service from the date of Annexure-A1.

11. From the above communication it is obvious that the Ministry has taken decision even to ratify and regulate all substitute service rendered prior to the issue of

2025:KER:19593 the orders. In the circumstances, the note give below Annexure-A1 is otiose and is liable to be ignored.

12. The respondents have no case that after Annexure-Al the applicant had any break in service. Therefore, it was imperative on the part of the respondents to reckon his period of service from the date of appointment as Substitute Gangman, that is from 05.10.1983, as full service.

13. The second limb is regarding reckoning 50% of the casual labour service from 23.10.1978 to 04.10.1983, which should have been reckoned for the purpose of granting MACP. For this, the applicant has relied on Annexure-A6 communication of the Railway Board. Paragraphs 2 and 3 of the communication read thus:

"2. The issue regarding extension of the scope of the MACP Scheme so as to count 50% of temporary status casual labour service on absorption in regular employment for the purpose of grant. of benefit under the MACPS had been under consideration.

3. The matter has been examined and it has been decided that 50% of temporary status casual labour service on absorption in regular employment may be taken into account towards the minimum service of 10, 20 and 30 years for the gront of benefit under the MACP Scheme on the analogy that the same is also reckoned as qualifying service for pension."

14. The learned Standing Counsel has submitted with the aid of Annexure-R1(c) that it is very clear that, in order to grant MACP, service rendered on regular basis alone can be reckoned. In other words, 50% of the casual labour service rendered by the applicant prior to his appointment as Substitute Gangman can be taken into account only for the purpose of granting pension and not

2025:KER:19593 for the purpose of granting benefit of financial upgradation under the MACP scheme. It is true that going by the MACP scheme also actual period of service is necessary. At the same time, Annexure-R1(c) was issued on 10.06.2009, but Annexure-A6 communication issued on 04.12.2009 by the Railway Board clearly mandates that such 50% of temporary status casual labour service on absorption in regular employment also can be reckoned for the purpose of granting MACP. Of course, it must be noticed that Annexure-R1(c) is in tune with Annexure-R1(a) dated 05.04.2021. But on the date of retirement of the applicant, on 30.06.2011, the position was as communicated through Annexure-A6. On that basis reliefs have been granted to an employee as shown in the order dated 18.01.2019 in Ο.Α.609/2017. Annexure-A7 also indicate that, despite the fact that Annexures-R1(c) was referred in the order, one N.Vijayan, a retired Trackman was granted financial upgradation counting his substitute service from 06.08.1996 to 30.11.2013. Of course Annexure-R1(b) was issued on 30.04.2021. But it is silent about Annexure-Aб. In the circumstances, having regard to the fact that on the date of retirement of the applicant Annexure-A6 was in force, we are inclined to direct the OF respondents to grant financial upgradation, taking into account the services rendered by the applicant including 50% of the casual labour service from 23.10.1978 to 04.10.1983 as well.

Original Application is allowed as above. No costs."

11. Upon hearing the submission of the learned counsel

and on perusal of the order of the Central Administrative Tribunal and

appraisal of the paper book, we do not find any illegality, perversity, much

less fallacy in the order of the Central Administrative Tribunal. The

2025:KER:19593 learned Central Administrative Tribunal evaluated the questions of fact

and law and arrived at a proper conclusion in our view. No good ground

for interference is made out. We do not find any ground to invoke the

powers under Section 227 of the Constitution of India.

Original Petition is devoid of merit and is dismissed.

Sd/-

AMIT RAWAL JUDGE

Sd/-

K. V. JAYAKUMAR JUDGE

Sbna/

2025:KER:19593

APPENDIX OF OP (CAT) 67/2024

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE OFFICE ORDER NO.AEN/OLN/263 OF 5.10.1983 Annexure A2 TRUE COPY OF THE SERVICE CERTIFICATE O THE APPLICANT Annexure A3 TRUE COPY OF THE REPRESENTATION DATED 16.12.2015 SUBMITTED BY THE APPLICANT Annexure A4 TRUE COPY OF THE LETTER SUBMITTED BY THE APPLICANT NO.V/P.626/PA2016/189/VGR DATED 14.12.2016 Annexure A4(a) TRUE COPY OF THE APPLICATION SUBMITTED IN THE PRESCRIBED FORMAT AT PENSION ADALATH DATED 30.5.2016 Annexure A4(b) TRUE COPY OF THE APPLICATION SUBMITTED IN THE PRESCRIBED FORMAT PENSION ADALATH DATED 31.10.2016 Annexure A4(C ) TRUE COPY OF THE APPLICATION SUBMITED IN THE PRESCRIBED FORMAT AT PENSION ADALAT DATED 9.6.2017 Annexure R1(a) TRUE COPY OF OM NO.F.NO.22034/4/2020-ESTT(D) DATED 5.4.2021 ISSUED BY THE MINISTRY OF PERSONA=NEL PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA Annexure R1(b) TRUE COPY OF THE LETTER S NO.PC-VII/168 (NO.PC-V/2016/MACPS/1 DATED 30.4.2021 Annexure R1(C) TRUE COPY OF THE LETTER S NO.PC/VI/110(NO.PC-

V/2009/ACPS/2 DATED 25.02.2010 Annexure A5 TRUE COPY OF THE APPLICANT'S SERVICE CARDS ALONG WITH TYPED COPY Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION IN OA NO.180/00288/ 2019 ALONG WITH ANNEXURES Exhibit P2 TRUE COPY OF THE REPLAY STATEMENT FILED BY THE PETITIONER IN OA NO.180/00288/ 2019 DATED 19.11.2019 Exhibit P3 TRUE COPY OF THE ADDITIONAL STATEMENT FILED BY THE PETITIONER IN OA NO.180/00288/2019 DATED 11.11.2022 Exhibit P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT

2025:KER:19593 Exhibit P5 TRUE COPY OF THE ORDER ISSUED BY THE MINISTRY OF RAILWAYS DATED 14.2.2023 Exhibit P6 TRUE COPY OF THE ORDER OF THE HON'BLE TRIBUNAL IN OA NO.180/00288 OF 2019 DATED 2.3.2023