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Judgment
Dr. Anand S. Khati, Member (A)
The instant O.A. has been filed by the applicant, who is wife of Shri Bhagmal, a temporary status employee under the respondent No.3, challenging the order dated 26.11.2019, whereby her claim for family pension and pensionary benefits has been rejected.
The brief facts of the case as narrated by the learned counsel for the applicant are that the husband of the applicant, viz. Shri Bhagmal, was appointed as Casual Labourer on 18.06.1983 under the respondent No.3. Vide order dated 20.08.1991, he was granted temporary status w.e.f. 29.11.1989 to be treated at par with Group-D employees. Despite availability of vacancies, he could not be regularized and continued to work as such till 31.10.2006, when he died in harness. After his death, his wife did not get any pension and pensionary benefits and her request for grant of compassionate appointment to her son was also rejected vide letter dated 04.06.2012. Feeling aggrieved, the applicant has filed the instant O.A. seeking the following relief(s):
“(i) quash letter dt.26-11-19 (ANNEXURE A1 supra), directing the respondents to release death-cum-retirement benefits of deceased Bhagmal and family pension to the applicant along with arrears thereof with interests @ 9% p.a.;
AND/OR
(ii) pass such other order/s as may be deemed fit & proper.”
The learned counsel for the applicant referred to the Casual Labourers (Grant of Temporary Status and Regularizations) Scheme issued by the DoP&T vide OM dated 10.09.1993 and submitted that contrary to the provisions of the said scheme, the applicant has been denied the death-cum-retirement benefits of her deceased husband.
Learned counsel for the applicant has placed reliance on the judgment dated 06.01.2020 passed by the Hon’ble Supreme Court in Yashwant Hari Katakkar vs. Union of India & Ors., (1996) 7 SCC 113, whereby the Hon’ble Apex Court directed the respondents to grant pension to a temporary status employee, and held as follows:
“There is nothing on record to show as to why the appellant was not made permanent even when he had served the Government for 18½ years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government.”
On the basis of the aforesaid judgment, the Hon’ble High Court of Delhi has also allowed various identical cases, such as, in the case of Smt. Sharda Devi vs. Union of India [WP(C) No.3018/2012 dated 25.04.2013] and Union of India vs. Munni Devi [WP(C) No.5907/2017 and batch dated 06.01.2020]. He pleaded that the husband of the applicant had served the respondents for 23 years and 6 months, i.e., more than 6 years as Casual Labourer and 17 years with temporary status, and as held by the Hon’ble Supreme Court as well as by the Hon’ble High Court of Delhi, the applicant is entitled for family pension and pensionary benefits.
The learned counsel for the applicant further submitted that this O.A. is squarely covered by the order dated 15.10.2019 passed by a coordinate bench of this Tribunal in O.A. No.1789/2018 titled Smt. Jagbiri Devi vs. Union of India & Ors., also followed in O.A. No.1710/2020 titled Sushila vs. ICAR & Ors., decided on 05.09.2023; and prayed that similar directions be issued in the case of the applicant being similarly placed to the applicants in the aforesaid cases.
Per contra, the learned counsel for the respondents submitted that late Shri Bhagmal was a temporary status Casual Labourer, at par with Group ‘D’ employees. As he was junior to such other temporary status Casual Labourers, his services were not regularized as Mailman (Group D) till the time of his unfortunate death. Hence, the services rendered by him as Casual Labourer, conferred with temporary status, were not counted for retiral benefits including family pension. After his demise, an amount of Rs.18,740/- was paid to his wife on account of CGEGIS vide letter dated 02.01.2007 and amount of Rs.9,059/- was also paid to her vide memo dated 13.06.2005 on account of refund of GPF balance at his credit. Since the applicant is not entitled for any pensionary benefits, DCRG, family pension etc., her representation was duly replied by the respondents vide letter dated 26.11.2019. Further, her request for grant of compassionate appointment to her son was rejected vide memo dated 04.06.2012, clearly mentioning that the scheme of compassionate appointment is applicable to the dependents of Government servants who are appointed on regular basis and not who are working on daily wages/ casual/ apprentice/ adhoc/ contract or re-employment basis and, therefore, the case of Shri Vinod Kumar, Son of late Shri Bhagmal, for compassionate appointment could not be considered. He also added that Casual Labourers (Grant of Temporary Status and Regularisation) Scheme circulated vide DoP&T OM dated 10.09.1993 does not apply to casual workers in Railways, Department of Telecommunication and Department of Posts, who have their own schemes; and according to Department of Posts OM dated 30.11.1992, other benefits like Leave, holidays, CGEGIS, GPF, Medical Aid, LTC, Bonus and all advances are admissible to casual labourers on conferring the temporary status at par with temporary Group ‘D’ employees, which were allowed to the deceased employee.
The learned counsel for the respondents argued that the applicant has attempted to base the cause of action on a judgment rendered by the Hon’ble High Court of Delhi in 2020 and it is settled principle of law that a judgment cannot be a cause of action. He further argued that the applicants in the aforesaid judgment had approached the Hon’ble High Court in the year 2014, whereas in the case of the applicant, the actual cause of action would have arose on the date of death of her husband, i.e. 31.10.2006. Thus, there is a delay of about 16 years, however, the reasons for the same have not been explained by the applicant. Hence, the O.A. deserves to be dismissed solely on this ground. In support of his contention, the learned counsel has relied upon the judgments passed by the Hon’ble Supreme Court in Rup Diamonds vs. Union of India, (1989) 2 SCC 356 (para 8), in State of Uttar Pradesh & Ors. vs. Arvind Kumar Srivastava & Ors., (2015) 1 SC 347 (para 22.2), and in State of Haryana & Ors. vs. Shakuntla Devi in Civil Appeal No.6271 of 2008, decided on 24.10.2008.
The learned counsel also relied upon the decision of the Hon’ble Allahabad High Court in Civil Misc. Writ Petition No.40736/2002 titled Manoj Kumar Pandey & Others vs. State of U.P. and Another, decided on 27.02.2006, wherein after detailed consideration of the issue and various decisions on the subject, the Hon’ble High Court dismissed the writ petition observing as under:
“10. If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.
In State of Karnataka & Ors. Vs. S.M. Kotrayya & Ors., (1996) 6 SCC 267, the Hon'ble Supreme Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches.
Same view has been reiterated by the Hon'ble Supreme Court in Jagdish Lal & Ors. Vs. State of Haryana & Ors., AIR 1997 SC 2366, observing as under:-
"Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh's ratio.... desperate attempts of the appellants to re-do the seniority, held by them in various cadre.... are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."
In M/s. Roop Diamonds & Ors. Vs. Union of India & Ors., AIR 1989 SC 674, the Hon'ble Supreme Court considered a case where petitioner wanted to get the relief on the basis of the judgment of the Supreme Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and latches observing as under:-
"There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not persued for several years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else's case came to be decided."
Thus, petitioner was not entitled to claim any benefit of the said judgment of this Court.
In view of the above, we are of the considered opinion that no relief can be granted to the petitioners. Petition lacks merit and is accordingly dismissed.”
He accordingly prayed that the O.A. is liable to be dismissed being devoid of any merit as being barred by limitation.
In rebuttal, the learned counsel for the applicant averred that family pension being continuous cause of action, the delay has already been condoned vide order dated 14.12.2022. Further, besides the direction in Yashwant Hari Katakkar (supra), the Hon’ble Supreme Court in the case of S.P. Uniyal & Ors. vs. Union of India in Civil Appeal No.3488/2010 decided on 25.09.2014, directed the respondent Postal Department to consider the claim of the family members of the deceased applicant No.4 therein, viz. Ganesh Singh, who was junior to the applicant’s husband Shri Bhagmal and died on 29.10.2008, for family pension; and the applicant being similarly situated is entitled for similar relief.
Heard Mr. Ranjit Sharma, learned counsel for the applicant and Mr. Abhishek Sharma, learned counsel appearing for the respondents and also gone through the pleadings/judgments placed on record.
It is noted that the applicant’s husband was engaged on 18.06.1983 and, subsequently, he was granted temporary status on 20.08.1991 w.e.f. 29.11.1989. He died in harness on 31.10.2006 after rendering more than 23 years of service, before his regularization. Vide the impugned order dated 26.11.2019, pension and pensionary benefits were denied to the applicant, since the applicant was not in regular cadre, which is a necessary condition as per DoP&T's OM No.51016/2/90 Estt. (C) dated 10.09.1993.
Various judgments relied upon by the learned counsel for the respondents on the issue of delay in approaching this Tribunal cannot be made applicable to the present case, as the delay has already been condoned vide order dated 14.12.2022 passed in MA No. 2358/2022.
Learned counsel for the applicant has placed reliance on the judgment of the Hon'ble High Court of Delhi in WP(C) No. 5907/2017 in Union of India & Ors. vs. Munni Devi, the relevant paras of the same read as under:
"3. The central issue in all three petitions is whether the prayer of each of the Respondents for pensionary and retiral benefits, by treating casual labourers who were granted temporary status as those who were regularly employed, was tenable?
xxx xxx xxx xxx xxx
Before the CAT, reliance was placed by counsel for Munni Devi on the decisions in Jagrit Mazdoor Union vs. Mahanagar Telephone Nigam Limited, 1990 (Suppl) SCC 113 and Prabhawati Devi vs. Union of India, JT 1996 SC (7) 27. The CAT's attention was drawn to Rule 10 (2) of the CCS (Temporary Service) Rules, 1965 which reads as under:
"In the event of death of a temporary Government servant while in service, his family shall be eligible for family pension and death gratuity at the same scale and under the same provisions as are applicant to permanent central civilian Government Servants under the Central Civil Services (Pension) Rules, 1972". ”
The Hon’ble High Court concluded therein as under:
“33. While the Respondents in WP(C) No. 5907/2017 and 1767/2018 would be entitled to the reliefs as granted by the CAT including family pension, the arrears are confined to a period of three years prior to their filing their respective OAs before the CAT. The impugned orders of the CAT in their respective OAs stand modified accordingly. As far as Sunder Singh is concerned, he has served the full pensionable service and his petition before the CAT was also not belated. Therefore, in his case the impugned order of the CAT is affirmed as such.”
In Yashwant Hari Katakkar (supra), the Hon'ble Supreme Court held that temporary/quasi-permanent employees are eligible for pensionary benefits, the relevant portion of the said decision is extracted below:-
"3. Dr. Anand Prakash, learned senior Advocate appearing for the Union of India, has contended that on March 7, 1980 when the appellant was pre-maturely retired he had put in 18½ years of quasi-permanent service. According, to him to earn pension it was necessary to have minimum of 10 years of permanent service. It is contended that since the total service of the appellant was in quasi-permanent capacity he was not entitled to the pensionary benefit. There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 18½ years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the Government. The appellant having served the Government for almost two decades it would be unfair to treat him temporary/quasi- permanent. Keeping in view the facts and circumstances of this case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits. We allow the appeal, set aside the judgment of the Tribunal and direct the respondents to treat the appellant as having been retired from service on' March 7, 1980 after serving the Government for 18½ years (more than 10 years as permanent service) and as such his case for grant of pension be finalised within six months from the receipt of this order. The appellant shall be entitled to all the arrears of pension from the date of retirement. No costs.”
Indubitably, in the instant case, the applicant’s husband was granted temporary status w.e.f. 29.11.1989 and he worked as such for about 17 years, which is more than the period of three years’ required for regularisation and it was none of his fault, if he could not be regularised before his unfortunate death for whatever reason. The subject matter had already been adjudicated and allowed in various judicial pronouncements, as referred to hereinabove, and there is no reason to take a divergent view being similar in nature. Further, in view of the specific direction issued by the Hon’ble Supreme Court in the case of S.P. Uniyal (supra) to consider the claim of family pension by the family members of the deceased employee Shri Ganesh Singh, applicant No.4 therein, who was junior to the applicant’s husband Shri Bhagmal; the applicant is also entitled for grant of similar relief.
Resultantly, the O.A. letter dated 26.11.2019 is respondents are directed is allowed and the impugned quashed and set aside. The to treat the services of Shri Bhagmal, deceased husband of the applicant, as deemed regularised from the date of his demise, i.e. 31.10.2006, and grant her family pension and pensionary benefits along with arrears and release all payments to the applicant as expeditiously as possible but not later than three months from the date of receipt of a copy of this order. In case, the arrears of pensionary benefits are not paid within the above stipulated time, the same will draw interest at the rate applicable to GPF deposits till the date of actual payment.
There shall be no order as to costs.