M.A. Govindasamy vs The Union of India

P.K. Misra, J.—Writ petition is filed for the issuance of a writ of certiorari calling for the entire records in RA. No. 31 of 1998 in O.A. No.

1522/95 dated 11.11.1998 on the file of the Central Administrative Tribunal and quash the same.

Heard counsel appearing for the parties.

In this writ petition, the petitioner has challenged the order dated 11.11.1998 passed by the Central Administrative Tribunal, rejecting the

Original Application No. 1522 of 1995 filed by the present petitioner. In the said application before the Tribunal, the petitioner had prayed for a

direction to treat the entire service as qualifying period of service for the calculation of pension, gratuity etc., The petitioner claimed that he had

been initially appointed on temporary basis and the said temporary appointment continued without any break and ultimately the petitioner was

confirmed in the said service. Subsequently, he was retired in due course. While calculating the retirement benefits, the service rendered by the

petitioner in temporary capacity was calculated at the rate of 50% as qualifying service for the purpose of pensionary benefits. The petitioner had

claimed that the entire service including the period during which the petitioner was temporarily employed should be considered. The Tribunal has

rejected such application on the ground that as per Railway Board''s instructions dated 14.10.1980, only 50% of the temporary benefits on

absorption as regular Railway employees and it is observed that merely because the full pension had been granted in respect of further process on

erroneous basis, such benefit cannot be extended to the applicant.

Learned counsel appearing for the petitioner has drawn our attention to the service book of the petitioner. The relevant entry in the aforesaid

service book relating to the petitioner indicates that the petitioner was appointed on temporary status ''Hamal'' on completion of 6 months of

continuous service and scale of pay was fixed at Rs. 30-1/2-35 plus allowances as admissible. It was further indicated that his service was

temporary, he was deemed to be on probation. Subsequently, it appears that he was confirmed in service with effect from 1.1.1965. The other

entries in the service book indicate that the period not qualifying for pension was ''nil''. Such entries are made for the period right from 1958 to

1965 and subsequently. In other words, even if initially service of the petitioner was temporary, the entire period was being considered as eligible

for the purpose of pension. In the aforesaid factual background, learned counsel for the petitioner has invited out attention to the Rule 20 of

Chapter III of Railway Services (pension) Rules 1993.

Learned counsel for the respondents on the other hand has submitted that the said Rule 20 would not be applicable, but Rule 31 of the said

Rules would be applicable. Both the rules are relevant and they are extracted hereunder:-

Commencement of qualifying service-Subject to the provisions of these rules, qualifying service of a railway servant shall commence from the

date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity;

Provided that officiating or temporary service is allowed, without interruption, by substantive appointment in the same or another service or post:

Counting of service paid from Contingencies-In respect of a railway servant, in service on or after the 22nd day of August, 1968, half the

service paid from contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment, subject to the

following conditions, namely:-

(a) the service paid from contingencies has been in a job involving whole-time employment;

(b) the service paid from contingencies should be in a type of work or job for which regular posts could have been sanctioned such as posts of

malis, chowkidars and khalasis;

(c) the service should have been such for which payment has been made either on monthly rate basis or on daily rates computed and paid on a

monthly basis and which, though not analogous to the regular scales of pay, borne some relation in the matter of pay to those being paid for similar

jobs being performed at the relevant period by staff in regular establishment;

(d) the service paid from contingencies has been continuous and followed by absorption in regular employment without a break;

Apart from the above two rules, Rule 23 is also somewhat relevant to this case, which reads as follows:-

Counting of service on probation-Service constituting period of a railway servant appointed as a probationer or on probation and also the last

two years of apprenticeship period of Special Class Apprentice shall be treated as qualifying service.

A mere perusal of Rule 20 indicates that qualifying service, commences from the date of the taking charge of the post to which he was first

appointed either substantively or in an officiating or temporary capacity. Similarly Rule 23 indicates that the period of probation of a Railway

servant appointed as a probationer or on probation and also the last two years of apprenticeship period of Special Class Apprentices shall be

treated as qualifying service. In our opinion, Rule 20 is squarely applicable to the case of the applicant and since he was appointed on temporary

basis and subsequently confirmed, the entire period has to be counted for the purpose of calculating the pension, payable to the petitioner. This is

also strengthened by the Rule 23, which indicates that the period of probation is also to be calculated for the purpose of calculating pension. If a

person is appointed on temporary basis on regular scale of pay, it cannot be said that Rule 31 will be applicable for him.

Apart from the above aspect, the entries in the service book of the petitioner is apparent that from the beginning it is indicated that the entire

period shall be calculated for the purpose of pension. Though he was initially appointed on temporary basis, subsequently he was confirmed

without any break in the service.

Learned counsel for the respondents has also referred the circular issued in the year 1980. This circular cannot whittle down the scope of the

rules and has no application to the present case.

Accordingly, the impugned order dated 11.11.1998 passed by the Central Administrative Tribunal is quashed and the writ petition is allowed. It

is directed that the entire period from the date of initial appointment till the date of superannuation of the petitioner on temporary basis shall be

calculated as qualifying service for the purpose of the pensionary benefits, gratuity etc., First respondent is directed that necessary calculation shall

be made and the differential amount shall be paid within four months from the date of communication of this order. No costs.