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Judgment
Om Prakash VII, Member (J)
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
“(i) To issue an order or direction in the suitable nature quashing the Impugned Calculation Sheet dated:-24.01.2012, issued by Respondent No.2 and the Pension Payment Order(P.P.O.) which is to be issued in pursuance to aforesaid Calculation Sheet dated:-24.01.2012 which is enclosed as Annexure No. A-1, to this Original Application.
(ii) To issue an order or direction in the suitable nature of mandamus commanding the respondents to recalculate and re fix the Pension of the applicant and to issue revised P.P.O after calculating entire length of his service since his First date of appointment on 16.03.84 as mentioned in the Seniority List dated:-11.02.2009.
(iii) To issue an order or direction in the suitable nature of mandamus commanding the respondents to release all consequential benefits and promotion on account correction of length of qualifying service.
(iv) To issue an order or direction in the suitable nature of mandamus commanding the respondents to pay the arrears along with market rate of interest.
(v) To issue any order or direction, which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(vi) To award the cost of the Application to the applicant
The brief facts of the case are that the applicant was initially appointed as a Casual Labour in 1984 and was granted temporary status after medical examination in March 1986. He continued in service and was retired on 31.01.2012 on attaining superannuation. The dispute arises regarding calculation of qualifying service for pension. While the respondents have mentioned the applicant’s appointment date as 09.09.1986 and regularization on 31.07.2001. Other official documents (Annexure A-3 and A-4) indicate his appointment as 16.03.1986 and even 10.03.1984. The applicant’s case is that his appointment in 1984 and subsequent grant of temporary status in 1986 should be taken into account, and 50% of his casual labour service as well as the entire service from temporary status till regularization should be counted as qualifying service. According to him, respondents have wrongly restricted his qualifying service to 17 years 5 months, whereas it should be more than 26 years, thereby affecting his pension and retiral benefits. He seeks direction to the respondents to recalculate his pensionary benefits by counting 50% of casual labour service and full service between temporary status and regularization, in line with settled law.
In the counter affidavit, the respondents have categorically stated that the applicant’s qualifying service for post-retiral benefits has been correctly calculated as 17 years and 5 months, strictly in accordance with law. It is submitted that under the applicable rules, only 50% of the period spent as casual labour and 50% of the temporary status service can be reckoned towards qualifying service. On this basis, the calculation sheet prepared is lawful and proper and, therefore, the Original Application is devoid of merit and liable to be dismissed.
The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. and nothing new has been added.
I have heard Shri Vinod Kumar, learned counsel for the applicant and Shri S.C. Mishra, learned counsel for the respondents and perused the record.
The submission of learned counsel for the applicant is that the applicant was appointed as a Casual Labour in 1984. He was medically examined on 16.03.1986 and was granted time scale thereafter. He was initially posted at Bhojipura and was subsequently transferred from one place to another. The applicant retired on 31.01.2012 after attaining the age of superannuation. It was further argued that in the applicant’s pension papers, the respondents have disclosed the date of appointment as 09.09.1986 and the date of regularization as 31.07.2001. However, in some documents the date of appointment has been shown as 16.03.1986 (Annexure A-3), and in Annexure A-4, the date of appointment has been shown as 10.03.1984. In fact, the applicant was appointed in 1984 itself and was granted temporary status in 1986. Therefore, the respondents ought to have calculated 50% of the period of casual labour service as well as the entire period between the grant of temporary status and regularization as qualifying service while determining his post-retiral benefits. It was also argued that the respondents have wrongly shown the applicant’s qualifying service as 17 years and 5 months, whereas if the facts disclosed in the papers issued for retiral benefits (Annexure A-1) are taken into consideration, the total qualifying service would be more than 26 years. Accordingly, all the post-retiral benefits should have been calculated on that basis. Learned counsel for the applicant, therefore, urged that the Original Application be allowed and the respondents be directed to reconsider the applicant’s case afresh in the light of the settled principle of law, by counting 50% of the casual labour service and the entire period of temporary status service as qualifying service. Learned counsel for the applicant has placed reliance on the following case laws:-
“(i) Union of India and others Vs. Rakesh Kumar and others decided in Civil Appeal No. 3938/2017 (arising out of SLP (C) No. 23723 of 2015 on 24.3.2017.
(ii) Union of India and others Vs. Munshi Ram decided in Civil Appeal No. 2811/2022 (arising from SLP (Civil) No. 6526/2022 @ Diary No. 27620/2020 on 31.10.2022 by Hon’ble Supreme Court;
(iii) Lala Ram Vs. Union of India and others decided in OA No. 842 of 2013 on 02.04.2024 by this Tribunal.
In rebuttal, learned counsel for the respondents argued that total qualifying period while preparing the post retiral dues was calculated 17 years and 5 months only, which is in accordance with law. The applicant is entitled only 50% period of temproary service as well as 50% of casual labour service, thus, there is no illegality and infirmity in the impugned calculation sheet. Learned counsel for the respondents refers to the contents of the counter affidavit as well as documents annexed therewith and further argued that OA lacks merits and is liable to be dismissed.
I have carefully considered the rival submissions advanced by learned counsel for the parties and perused the material available on record.
Before discussing the submissions raised across the bar, it will be useful to quote para 55 (iii) of Rakesh Kumar (supra) case:-
“iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993”.
In para 11 of Munshi Ram (supra) case, the Hon’ble Supreme Court has held as under:-
“11. In view of the above and for the reasons stated above and even applying the doctrine of stare decisis, on the aforesaid ground alone, the present appeals deserve to be dismissed and are accordingly dismissed, by holding that the respondents – Commission Vendors/bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits like other office bearers/Vendors working under the Railway Board, working in different zones/divisions, namely, Western Railway, Eastern Railway, Southern Railway and South-Eastern Railway”.
This Tribunal in Lala Ram (supra) case relying upon the several judgments of the Hon’ble Supreme Court has directed the competent authority to count past service of the applicant towards EDDA for the purpose of pensionary benefits including pension as per rules.
In this case as is evident from the record, if the stand taken in the retiral benefits paper i.e. Annexure A-1 to the OA is taken into consideration, temporary status was allowed to the applicant on 09.09.1986 and his service was regularized on 31.07.2001 and he was retired on 31.01.2012. If sub para (iii) of para 55 of Rakesh Kumar (supra) case as well as ratio laid in Munshi |Ram (supra) case are taken into consideration, complete period of temporary status and 50% of casual labour period service shall be taken into consideration while calculating the qualifying service. Document annexed with the OA, which has not been specifically refuted in the counter affidavit clearly reveals that applicant was allowed temporary status on 09.09.1986 and he was regularized on 31.07.2001. Paper annexed with the OA as well as counter affidavit also reveals that prior to granting of temporary status, applicant was working as Casual Labour and on fulfilling the minimum requirement, he was allowed temporary status. Thus, respondents ought to have taken 50% of the casual period, which start since 1984 as would be clear from Annexure A-4 of the OA. and also the entire period of temporary status. Thus, in the light of the settled preposition of law, OA is liable to be allowed and competent authority amongst the respondents is liable to be directed to issue revised PPO counting the total period of temporary status and 50% of casual labour period in qualifying service.
Thus, on the basis of aforesaid discussion OA is allowed and impugned calculation order dated 24.01.2012 is set aside. Respondents are hereby directed to count 50% casual period and entire period of temporary status into the qualifying service and to issue revised PPO accordingly extending monetary benefit occurred in favour of applicant. This exercise be completed within a period of three months from the date of receipt of certified copy of the order. No costs. All associated MAs also stand disposed of.