Union of India and Others vs Girish Pal and Others

CM N0. 6238/2011

Heard.

Learned counsel for the respondent submits that he has no objection to the restoration of the writ petition. Accordingly, the order dated 29th

March, 2011 dismissing the writ petition for default of appearance is recalled and the writ petition is restored to its original position. The order

dated 7th September, 2005 shall continue to operate till disposal of the writ petition.

This application is allowed in the above terms.

W.P.(C) 13185/2005

Learned counsel for the petitioner submits that she waives the cost which was imposed upon the respondents by an order dated 6th August,

2008. With the consent of both the parties, the writ petition is taken up for disposal. We have heard learned counsel for the parties at length. The

sole ground and short question which has been raised before us is the permissibility of treating services rendered as casual labour as part of

qualifying service for the purposes of computation of pension after the employer works out a scheme for regularization of such persons de hors any

provision for the same in the scheme under which their services have been regularized.

To the extent necessary, the facts giving rise to the present case are noticed hereafter.

The respondents before us were engaged as casual labourer. Pursuant to an office memorandum dated 10th September, 1993, the respondents

were initially accorded temporary status and later regularized against Group ''D'' posts. The respondents laid a claim for grant of seniority and all

other benefits including the computation of the services rendered by them as casual labourers as well as on temporary basis for the purposes of

qualifying pensionable services with effect from the date of their initial appointments by way of a petition filed under the Administrative Tribunal

Act, 1985 before the Principal Bench of the Central Administrative Tribunal. On a consideration of the rival contentions, the Central Administrative

Tribunal by impugned judgment dated 9th July, 2004 placed reliance on the pronouncement of the Division Bench of Andhra Pradesh High Court

reported at 2004 (2) ATJ HC (AP) 23 entitled General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. & Anr. v. Shaik

Abdul Khader and declined grant of regularization from the date of initial engagement of the respondents as casual labourers. However, it directed

that the seniority shall commence from their regular appointment in Group ''D'' and that their qualifying service shall be computed by the petitioner

in the light of the decision of the Andhra Pradesh High Court in the case of Shaik Abdul Khader (supra).

In order to adjudicate upon the issue noticed by us hereinabove, it may be useful to refer to the pronouncement of the Andhra Pradesh High

Court in Shaik Abdul Khader (supra). We find that the Andhra Pradesh High Court was considering the writ petition which had been filed by the

petitioner laying a challenge to an order of the Tribunal directing that 50% of the services rendered by the respondents as casual labour would be

counted towards the qualifying service for the purposes of pension. Just as the respondents before us, the respondent before the Andhra Pradesh

High Court was also a casual labour and was conferred temporary status in terms of a master circular No. 54/1994. This circular provided that

half of the period of services of casual labourers after attainment of temporary status on completion of 120 days continuous service would count

for pensionary benefits. The respondent had contended that he was a casual labourer from 6th January, 1979 and had been given temporary status

from 1st January, 1983 and that, therefore, 50% of the services rendered by him for this period had to be counted whereafter the services from 1st

January, 1983 had to be counted in full for computing pensionable service.

It is noteworthy that Rule 31 of the Railway Services (Pension) Rules, 1993 had prescribed that half of the services from contingencies shall be

taken into account for calculating pensionary benefits on absorption in regular appointment subject to conditions stipulated in the Rules. The

Andhra Pradesh High Court had also answered the question as to whether a person upon getting temporary status, could be said that to have been

absorbed into service in terms of Rule 31.

We may note that the Andhra Pradesh High Court made a reference to the extract of para 205 of the Indian Railways Establishment Manual,

Volume-II which applies to casual labourers, including project casual labourers, and contains a provision for counting half of the period of service

rendered after attaining temporary status, as qualifying service for the purposes of pensionary benefits after absorption in regular employment. In

this regard, the petitioner had also placed the provisions of the master circular No. 54/1994 before the court.

It was on a reading and application of these circulars as well as the pensionary rules as were applicable in the railway service that, in para 20 of

the said judgment, the Andhra Pradesh High Court held that the respondent was entitled to get the period of service after his temporary

engagement, counted for the purposes of qualifying service as well as half of the period of service rendered as a casual labourer, after attainment of

temporary status on completion of 120 days continuous service, if it is followed by absorption in service as a regular employee, would count for

pensionary benefits.

In the instant case, it is an admitted position that the respondents before us were working as casual labourers for the period till they were

granted temporary status pursuant to an Office Memorandum dated 10th September, 1993. The relevant provisions of this Office Memorandum

which have a bearing on the instant case read as under:-

This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and

subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of

Telecommunication and Department of Posts who already have their own schemes.

Temporary status would entitle the casual labourers to the following benefits:--

(v) 50% of the service rendered under Temporary Status would be counted for the purpose of retirement benefits after their regularization.

No benefits other than those specified above will be admissible casual labourers with temporary status. However, if any additional benefits are

admissible to casual workers working in Industrial establishments in view of provisions of Industrial Disputes Act, they shall continue to be

admissible to such casual labourers.

Despite a conferment of temporary status, the services of a casual labourers may be dispensed with by giving a notice of one month in writing. A

casual labourer with temporary status can also quit service by giving a written notice of one month. The wage for the notice period will be payable

only for the days on which such casual worker is engaged on work.

It is apparent that so far as the respondents were concerned, it was clearly stipulated in the memorandum that upon regularization they would be

entitled only to the benefit of 50% of the services rendered by them under temporary status which alone could be counted for the purposes of

computation of retirement benefits after they were regularized. The respondents have accepted the benefit of their temporary status as well as

regularization under the Circular dated 10th September, 1993. We may note that there is no challenge to any provision of the Circular including

para 5 sub para 5 thereunder. It is also apparent that the petitioners have taken a conscious decision so far as the respondents are concerned while

providing for the manner in which qualifying services for pension could be computed. The said scheme does not envisage inclusion of service

rendered on casual basis for the purposes of computation of qualifying services for pension as was made applicable to the employees before the

Andhra Pradesh High Court by way of Master Circular No. 54/1994 and para 225(A) of the Indian Railway Establishment Manual. It is also not

disputed before us that the Central Civil Services (Pension) Rules which applied to the respondents which also do not make any such provision

under Rule 31 of the Railway Services (Pension) Rules, 1993.

It is trite that a judgment is law on the facts it decides and can apply only in the facts which were before the court. In view of the above

discussion, the pronouncement of the Andhra Pradesh High Court in Shaik Abdul Khader (supra) has no applicability to the facts of the instant

case.

The petitioners have assailed the decision dated 9th July, 2004 of the Central Administrative Tribunal on the ground that the grant of pension to

civil employees of the government of India has to be governed by the applicable rules. We find that Rule 2(b) of the CCS (Pension) Rules, 1972

categorically states that the Rules would not apply to persons in casual and daily wage employment. Rule 13 of the CCS (Pension) Rules, 1972

stipulates that qualifying services of the government servant shall commence from the date he takes over charge of the post to which he is first

appointed in either substantive or officiating or temporary capacity. In this background, the directions of the Central Administrative Tribunal that

the petitioners take into consideration the services rendered by the respondents on casual basis for the purposes of computing qualifying service for

pension, would be contrary to the specific provisions on the issue under the CCS (Pension) Rules, 1972.

It is also an admitted position before us that the scheme of regularization notified by the petitioners by way of Office Memorandum dated 10th

September, 1993 was in the nature of a special dispensation. It specifically provided in para 2(v) for counting half of the service as temporary

status and casual labourer as the qualifying service for the purpose of pension computation. This was the only benefit which a person so engaged

by the petitioners could be held entitled to. The respondents who have been regularized under such scheme cannot claim anything more.

Learned counsel for the respondents has placed reliance on the decision dated 9th April, 2010 rendered in W.P.(C) No. 2331/2010 entitled

Union of India v. Sh. Wilson Massey & Ors. wherein a similar issue was raised. Perusal of this decision shows that the respondents had placed

reliance on the pronouncement of the Andhra Pradesh High Court in Shaik Abdul Khader (supra) therein. The discussion by the court would show

that the submissions before us as well as rule position which has been noticed by us hereinbefore, was not placed before the Bench which has

pronounced the judgment in Sh. Wilson Massey (supra). The court has in fact specifically noted that counsel for the petitioner has not been able to

show any precedent for the purposes of computation of the qualifying services for the purposes of pension. The court has also noticed that the

petitioner''s counsel has not been able to show that the ratio in Shaik Abdul Khader (supra) was not applicable in the facts and circumstances of

this case.

The position before us is otherwise. As such, no benefit would enure to the respondents from this decision.

We may also notice the judicial precedent relied upon by Ms. Amita Singh, learned counsel for the petitioner before us. Our attention is drawn

to the pronouncement reported as Pema Ram Vs. Union of India (UOI) and Another, entitled Pema Ram v. Union of India & Anr. in support of

the submissions that CCS (Pension) Rules would prevail even over recruitment rules of the organization in case of any conflict.

In support of the contention that so far as regularization is concerned, the same is a matter of policy and that the decision of the State on such

policy decision would prevail, reliance has been placed on the pronouncement of the Supreme Court reported as 1997 SCC (L&S) 210 entitled

State of Haryana & Ors. v. Jasmer Singh & Ors. There is therefore substance in the submission that the scheme of regularization dated 10th

September, 1993 under which the respondents have been regularized has to prevail and the respondents are bound by the stipulations contained

therein.

The petitioner was entitled to prescribe that on operating a scheme of regularization, only 50% of the services rendered after the casual

labourer was granted temporary status would be considered for the purposes of computation of qualifying service. We draw strength in support of

this conclusion also from the judicial binding pronouncement reported at Union of India and Others Vs. K.G. Radhakrishana Panickar and Others,

entitled Union of India & Ors. v. K.G. Radhakrishana Panicar & Ors.

There is no issue before us that the respondents have been discriminated amongst similarly placed employees. It is an admitted position by the

petitioner that the scheme for regularization dated 10th September, 1993 has been equally applied to all similarly placed casual labourers.

In this background, the direction by the tribunal to the petitioner to compute the qualifying services of the respondents for the purposes of

pension in the light of the decision in Shaik Abdul Khader (supra) is contrary to the applicable rules on the subject and is unsustainable in law.

The respondents have not challenged the rejection of their prayer for grant of regularization from the date of their initial engagement as casual

labourer or for their seniority.

In this background, the challenge made by the petitioner has to succeed. We hereby set aside and quash the directions of the Central

Administrative Tribunal in the judgment dated 9th July, 2004 to the extent of the challenge made before us as noticed hereinabove. No order as to

costs.