Sukhdev vs Union Of India Through General Manager, Head Quarter, North Central Railway, Prayagraj-211015 & Ors

Mohan Pyare, Member (A)

Shri S.M. Ali, learned counsel for the applicant and Shri Krishna Deo Rai, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

"(i) To issue order or direction to the concern authority to issue revised pension payment order and service certificate under pension rules 1993 with all consequential benefits and to pay the arrears of old pension from due date along with 12% interest.

(ii) To recalculate the 50% (casual and MRCL), service period as qualifying service for purpose of pension as per pension rules 1993 and in the light of rules and law.

(iii) Or may pass such other and further order or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case and to decide the pending representation dated 23.11.2021 by reasoned and speaking order as per rules and circular issued by Railway Board.

(iv) To issue award the cost of the petition in favour applicant."

The brief facts as narrated by the applicant are that the applicant was initially appointed as a casual labour on 19.11.1977 under the provisions of the Indian Railway Establishment Manual and was granted Temporary Status (MRCL) in 1989 while working under Jhansi Division. He was subsequently regularized on 29.11.2004 on the post of Safaiwala, although, the General Manager had approved his absorption before 01.01.2004 and his name appeared at Serial No. 493 in the approved list. Despite this, the respondents wrongly placed him under the New Pension Scheme (NPS) instead of the Old Pension Scheme (OPS) and failed to count 50% of his casual labour and Temporary Status service as qualifying service for pensionary benefits as required under Para 2005(a) of IREM Vol. II and in terms of the judgment of the Hon'ble Supreme Court in Union of India vs. Rakesh Kumar & Others dated 24.03.2017, followed by Railway Board letter dated 27.04.2017. Further, as per Government of India O.M. dated 17.02.2020 and Railway Board RBE No. 28/2020 dated 03.03.2020, employees who were found suitable for appointment before 31.12.2003 but appointed after 01.01.2004 are entitled to coverage under the Old Pension Scheme. Since the applicant was found suitable before 31.12.2003, his case squarely falls within the said policy. The applicant submitted his option for OPS and his name was included at Serial No. 05 in the DRM Jhansi list dated 09.04.2021 for closure of NPS; however, even after his retirement on 31.10.2019, correct pensionary benefits under the Railway Services (Pension) Rules, 1993 have not been granted. Similarly situated employees were granted OPS benefits by order dated 26.02.2022, but the applicant's representation dated 23.11.2021 is still pending consideration. Hence, this OA.

The respondents have refuted the claim of the applicant by filing a detailed counter affidavit and have submitted that the applicant was initially appointed as temporary Safaiwala vide letter dated 29.11.2004 and he was retired on 31.10.2019 from the Post Parcel Porter. As per guideline issued by Railway Board, the applicant was converted from national pension system to Rail Service Pension Rules- 1993 vide Office Order dated 07.07.2023 and a letter dated 16.11.2023 has already been sent to the Account Department for further necessary action. It is submitted that, as per guidelines issued by Railway Board after considering the available record and application of the applicant and on the basis of decision of competent authority and after verification of account department the case of applicant has been converted from National Pension System to Railway Service Pension Rules 1993 as the applicant was declared successful prior to 31.12.2003. It is further submitted that none of the grounds taken by the applicant are tenable in eyes of law, hence, the applicant is not entitled for any relief. On the basis of above submission, learned counsel for the respondents has submitted to dismiss the OA as devoid of merit.

I have heard the rival submissions and gone through the record available in this OA.

Learned counsel for the applicant has relied upon the Para 2005(a) of IREM Vol. II, which is reproduced as below :-

"2005. Entitlements and Privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 days or 360 days of continuous employment (as the case may be) (a) Casual labour treated as temporary are entitledto the rights and benefits admissible to temporary railway servants as laid down in Chapter XXIII of this Manual. The rights and privileges admissible to such labour also include the benefit of D & A Rules. However, their service prior to absorption in temporary/permanent/regular cadre after the required selection/screening will not count for the purpose of seniority and the date of their regular appointment after screening/selection shall determine their seniority vis-a-vis other regular/temporary employees. This is, however, subject to the provision that if the seniority of certain individual employees has already been determined in any other manner, either in pursuance of judicial decisions or otherwise, the seniority so determined shall not be altered.

Casual labour including Project casual labour shall be eligible to count only half the period of service rendered by them after attaining temporary status on completion of prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits. This benefit will be admissible only after their absorption in regular employment. Such casual labour, who have attained temporary status, will also be entitled to carry forward the leave at their credit to new post on absorption in regular service. Daily rated casual labour will not be entitledto these benefits.

(b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent or regular establishment or treated as in regular employment on Railways until and unless they are selected through regular Selection Board for Group D Posts in the manner laid down from time to time."

Learned counsel for the applicant also relied upon the Railway Board letter dated 27.04.2017, which is reproduced as below :-

"Subject: Counting of the period of service of Open Line Casual Labour and Project Casual Labour after their attainment of Temporary Status as qualifying service for pensionary benefits on absorption in regular employment on Railways.

[No. E(NG)11/2017/ECR/CL/4, dated 27.4.2017.)

The issue of Counting of the period of service of Open Line Casual Labur and Project Casual Labour after their attainment of Temporary Status as qualifying service for pensionary benefits on absorption in regular employment on Railways have been under consideration of Board for quite some time owing to spate of litigations in various courts.

The matter has comprehensively been deliberated by the Board and accordingly, instructions contained in Board's letter No. E(NG)II/78/CL/12 dated 14.10.1980 and E(NG)II/85/CL/6 dated 28.11.1986 (Bahri's RBO 91/1986, p. 394) are re-iterated. Further, all such cases pending in various courts on the issue may also be contested in light of Hon'ble Supreme Court judgement dated 24.3.2017 in Civil Appeal No. 3938/2017 arising out of SLP(C) No. 23723/2015 in case of Union on India & ors., v/s Rakesh Kumar & ors."

Here, it is pertinent to reproduce the para 55 of the judgment of Hon'ble Supreme Court in the case of Union of India & ors Vs. Rakesh Kumar & ors decided on 24.03.2017 in Civil Appeal No.3938 of 2017, which is below :-

"55. In view of foregoing discussion, we hold :

(i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension.

(ii) the casual worker before obtaining the temporary status is also entitledto reckon 50% of casual service for purposes of pension.

(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.

(iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfill the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.

After considering the rival submissions and examining Para 2005(a) of IREM Vol. II along with Railway Board letter dated 27.04.2017 and the judgment of the Hon'ble Supreme Court in Union of India vs. Rakesh Kumar & Others, the Tribunal finds that the applicant had attained temporary status long before his regular absorption and, therefore, in terms of the applicable rules, he is entitled for counting of 50% of the service rendered prior to and after attaining temporary status and before regular absorption as qualifying service for pensionary benefits. The record further shows that the respondents themselves have already converted the applicant from NPS to Railway Services Pension Rules, 1993 vide Office Order dated 07.07.2023 on the ground that he had been found suitable prior to 31.12.2003. In such circumstances, denial of consequential pensionary benefits and non-counting of qualifying service cannot be justified. The OA is liable to be allowed and is accordingly allowed. The respondents are directed to recalculate the applicant's qualifying service by including 50% of the casual labour/MRCL service in accordance with Para 2005(a) of IREM Vol. II as well as para 55 of the judgment of Hon'ble Supreme Court in the case of Union of India & ors Vs. Rakesh Kumar & ors and to revise his pension and retiral benefits under the Railway Services (Pension) Rules, 1993 within a period of three months from the date of receipt of certified copy of this order. No order as to costs.

All MAs pending in this O.A. also stand disposed off.