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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3938 OF 2017  (ARISING OUT OF SLP (C) NO. 23723 OF 2015

UNION OF INDIA & ORS.         .... APPELLANTS

VERSUS  

RAKESH KUMAR & ORS.             .... RESPONDENTS

WITH C.A .NO.3939 OF 2017 (ARISING OUT OF SLP(C)NO.23725 OF 2015),

C.A. NO.3940 OF 2017 (ARISING OUT OF SLP(C)NO.3382 OF 2016),

C.A. NO.3941 OF 2017 (ARISING OUT OF SLP(C) No.28597 OF 2016),

C.A. NO.4384 OF  2017 (ARISING OUT OF SLP(C)NO.821 OF 2017),

C.A. NO.3943 OF 2017 (ARISING OUT OF SLP(C) NO.8365 OF 2017 @CCNO.1516/2017  AND  C.A. NO.3944 OF 2017 (ARISING OUT OF SLP(C) NO.3719 OF 2017 )  

J U D G M E N T

ASHOK BHUSHAN, J.

These appeals have been filed by the Union of

India, Divisional Railway Manager, Northern Railway

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alongwith few other Railway Authorities challenging

judgments of Delhi High Court by which writ petitions

filed by the appellants have been dismissed.  All the

appeals raise similar questions of law and are based on

almost identical facts. It shall be sufficient to note

the facts of C.A. No.3938 of 2017 arising out of SLP

(C) No. 23723 of 2015 in detail for appreciating the

issues raised in this batch of appeals.  

CA NO. 3938 2017(ARISING OUT OF SLP(C) NO.23723 OF 2015)

2. The respondents to the appeal were initially

appointed as casual labour in the Northern Railway,

after working for one or more years, they were granted

temporary status and subsequently regularised against

regular posts. For example, the Respondent No. 1 was

engaged on casual basis from 27.06.1984 and   w.e.f.

22.06.1985 he was granted temporary status.

Subsequently, w.e.f. 31.12.1996 he was regularised

against a post and has been working in such capacity at

New Delhi Railway Station.  Respondent No. 1 raised a

grievance regarding granting him full service benefit

from 22.06.1985 to 31.12.1996 instead of 50 per cent

service benefit.  Similarly, Respondent Nos.2 – 24 were

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engaged initially on casual basis and after one or two

years were granted the temporary status and thereafter

were regularised w.e.f. 31.12.1996.   All the

respondents raised the same grievance i.e. giving full

service benefit for the period during which they were

working, having temporary status.  Respondent Nos.1 to

24 filed O.A.No.2389 of 2014 before the Central

Administrative Tribunal Principal Bench, New Delhi.  

3. Before the Tribunal the applicants claimed for

following reliefs:­

"(a) To direct the respondents to count  the  services  rendered by  the applicants in the capacity of casual labour as 50% after counting 120 days and 100% from the date of temporary status till their regularisation for the purpose of pension and pensionary benefits and other benefits as a qualifying service.

(b) To direct the respondents to extend the benefits of judgment and order passed in Shyam Pyare & Ors. vs. UOI & Ors. which is on the basis of Shaikh Abdul Khadar's Judgment for the purpose of pension and pensionary benefits as well as other consequential benefits, accordingly the respondents be directed to examine the cases of the applicants in accordance with law.  

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(c) Any other relief which this Hon'ble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicants.”

4. The Tribunal relying on its earlier order dated

29.05.2014 in a similar case being O.A.No.1921 of 2014,

Shri Prem Pal vs Union of India and Ors. allowed the

Original Application filed by the respondent. Tribunal

in its order dated 18.07.2014 referred to various

orders passed by it wherein Tribunal had held that a

casual labour after having been granted temporary

status is entitled to reckon 100 per cent period of

service with temporary status for the pensionary

benefit.  

5. Tribunal disposed of the Original Application by

issuing following directions:­

"In view of the above position, we dispose of this OA at the admission stage  itself  with  the  direction to the respondents to examine the cases of the applicants in the light of the aforesaid Orders of this Tribunal. If applicants' cases are also covered by the said Orders, they shall also be accorded the same benefits. In any case, the respondents shall pass appropriate order in this case within a period

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of two months from the date of receipt of a copy of this Order. There shall be no order as to cost.”

6. The Union of India and Railway Authorities

aggrieved by the aforesaid directions of the Tribunal

filed writ petition before Delhi High Court being Writ

Petition No. 7783 of 2014.  The case of the appellants

before the High Court was that only 50 per cent of the

temporary status of service can be counted for the

purpose of the pensionary benefit. It was pleaded in

the writ petition that the judgment of Andhra Pradesh

High Court in  General Manager, South Central Railway,

Secunderabad & Anr. vs. Shaik Abdul Khader reported in

2004 (1) SLR 2014  had been dissented by the Andhra

Pradesh High Court itself in a subsequent judgment

dated 01.05.2009 in Writ Petition(C) No. 10838 of 2001,

General Manager, South Central Railway, Secunderabad

vs. A. Ramanamma. It was further pleaded that Para 2005

of IREM permits only 50 per cent of temporary status

service to be counted for purposes of pensionary

benefit.  

7. Delhi High Court vide its judgment and order dated

14.11.2014  dismissed  the writ petition  following  its

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earlier judgment dated 10.11.2014 in W.P.(c) 7618 of

2014 in Union of India vs. Prem Pal Singh. It is useful

to extract the entire judgment of the Delhi High Court

dated 14.11.2014:  

“The dispute in this case is as to the manner in which the respondents/applicants' period of service to be counted for the purpose of terminal and pensionary benefits.

The petitioner Union of India is aggrieved by an order of the Central Administrative Tribunal dated 18.07.2014. At the outset, it was pointed out that this Court in W.P.(C)7618/2014 and connected case (Union of India & Ors. vs. Prem Pal Singh), decided on 10.11.2014 had occasion  to deal  with  an  identical matter. The only difference was that the orders of the CAT in those cases was made on 06.02.2014 and 29.05.2014. The Court had on that occasion taken into consideration the Railway Service (Pension) Rules, specifically Rule 20 as well as the Master Circular no.54 (paragraph 20) and paragraph 2005 IREM. In addition, the Court had considered various rulings including those of the Supreme Court and held that 50% of the period spent by casual employee subject to his being conferred temporary status and eventual regularisation was entitled to reckon for the purposes of pensionary and terminal benefits and likewise the entire period of temporary service ­ subject to

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regularisation – was eligible to be counted for the purposes of pension and terminal benefits.

Following the said decision in W.P. (C) 7618/2014 decided on 10.11.2014, this petition is accordingly dismissed.”

C. A. NO. 3939  2017 (ARISING OUT OF SLP (C) 23725 OF 2015)

8. This appeal has been filed against the judgment of

the Delhi High Court dated 10.11.2014 in W.P. (C) No.

7627 of 2014  Union of India & ors. vs. Shyam Pyare

Yadav & Ors.  by which judgment dated 10.11.2014 two

writ petitions being W.P. (C) No. 7618 of 2014, Union

of India vs. Prem Pal Singh  and W.P. (C) No. 7627 of

2014,  Union of India   & Ors. vs. Shyam Pyare Yadav &

Ors. had been decided.  

9. The respondents to the writ petition were also

casual  employees  in a construction  organisation,  who

were granted temporary status subsequently and were

regularised against permanent posts. They also claimed

benefit of 100 per cent service after grant of

temporary status for the purpose of pension. They filed

O.A.No.3745 of 2012, which was allowed by Central

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Administrative Tribunal by its judgment dated

06.02.2014 against which W. P. (C) No. 7627 of 2014 was

filed by Union of India, which was dismissed by Delhi

High Court on 10.11.2014

C.A.NO. 3940 OF 2017(ARISING OUT OF SLP(C)NO.3382 OF 2016)

10. The appeal had been filed against the judgment of

the Delhi High Court dated 18.11.2014 in W. P. (C) No.

7913 of 2014. The  W. P.(C) No. 7913 of 2014, following

the judgment dated 10.11.2014 in Union of India & Ors.

vs. Prem Pal Singh (Supra), has been dismissed. The

respondents were also appointed as casual labourers who

were subsequently granted temporary status and were

thereafter, regularised against permanent posts. They

also claimed entire period of temporary status to be

considered  for pensionary benefit. An O.A.No.2221 of

2013 was filed which was allowed on 23.05.2014 against

which W.P.(C) No. 7913 of 2014 was filed, which was

dismissed on 18.11.2014.

C. A. NO. 3941 OF 2017(ARISING OUT OF    SLP(C)NO.   28597 OF 2016)

11. The appeal has been filed against judgment of

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Delhi High Court dated 18.01.2016 in W.P. (C) No. 10202

of 2015 and other connected writ petitions. The High

Court following its earlier judgment dated 10.11.2014

in Union of India & Ors. vs. Prem Pal Singh (Supra) had

dismissed the writ petitions. The respondents were also

casual employees, who were granted temporary status and

thereafter, regularised.  They claimed reckoning of the

100 per cent service period performed by them after

obtaining temporary status for the purpose of

pensionary benefit. Original Application was filed

before the tribunal which was allowed against which the

writ petition was filed.

C.A.NO. 4384 OF 2017(ARISING OUT OF SLP(C) NO.821 OF  2017)

12. The appeal had been filed against the judgment

and order dated 18.01.2016 passed by Delhi High Court

in W.P.(C) No.10706 of 2015. The High Court relying on

its earlier judgment dated 10.11.2014 in Union of India

& Ors. vs. Prem Pal Singh  (Surpa)  dismissed the writ

petition. The respondents were also casual labourers,

who were granted temporary status and thereafter,

regularised against the permanent posts. Original

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Application was filed before the Tribunal which was

allowed against which judgment, the writ petition was

filed, which got dismissed.  

C.A. No.3943 OF 2017[ARISING OUT OF SLP(C)No.8365 OF 2017 (CC NO. 1516)]

13. The appeal has been filed against the judgment of

the Delhi High Court dated 31.03.2016 in W.P.(C)No.

9286 of 2015. The High Court relying on its earlier

judgment dated 10.11.2014 in Union of India & Ors. vs.

Prem Pal Singh (Supra) had dismissed the writ petition.

The respondents were also engaged as casual labourers,

who were accorded temporary status and thereafter were

regularised. Original Application filed by the

respondents were allowed holding that they were

entitled to reckon the entire period of temporary

service for pensionary benefit, which order was

affirmed by the High Court.

C.A. No.3944 OF 2017(ARISING OUT OF SLP(C)No. 3719 OF 2017)

14. This appeal has been filed against the judgment

and order dated 18.01.2016 in W.P.(C) No.11521 of 2015.

The High Court relying on its earlier judgment dated

10.11.2014 in Union of India & Ors. vs. Prem Pal Singh

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(Supra)  dismissed the  writ petition. The respondents

were also initially appointed as casual labourers and

thereafter, granted temporary status and subsequently,

were regularised for the permanent posts. They filed an

O.A. before the Central Administrative Tribunal,

claiming reckoning of entire period of temporary

service for pensionary benefit, which application was

allowed, aggrieved by which order Union of India had

filed an application, which had been dismissed.  

15. From the facts, as noted above, it is clear that

all the writ petitions filed by the Union of India

giving rise to the above appeals have been dismissed

relying on the judgment of the High Court dated

10.11.2014 in  W. P.(C) No. 7618 of 2014 and  W. P.(C)

No. 7627 of 2014. Against the judgment dated 10.11.2014

in  W. P.(C) No. 7618 of 2014, an  SLP (C) No. 23720 of

2015 had been filed, which was heard on 08.03.2017.

SLP (C) No. 23720 of 2015 had been disposed of in view

of the statement made by the learned counsel for the

respondents as noticed in the order dated 08.03.2017.

However, against the same judgment dated 10.11.2014

rendered in W.P(C)No. 7618 of 2014 and W.P.(C)   No.

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7627 of 2014 the Union of India has filed SLP(C) No.

23725 of 2015 arising out of W.P.(C)No. 7627 of 2014

which is also taken up for consideration in this batch

of appeals.

16. Judgment of Delhi High Court dated 10.11.2014 had

been followed in all other cases. We shall refer to the

judgment of the High Court dated 10.11.2014 as the

impugned judgment while considering all these appeals.  

17. We have heard, Mr. Maninder Singh, learned

Additional Solicitor General on behalf of the

appellants. We have also heard Mr. M.C. Dhingra,   and

other learned counsel appearing for the respondents in

support of the judgment of the Delhi High Court.  

18. Learned Additional Solicitor General   in support

of the appeal contended that the High Court committed

error in holding that a casual employee is entitled to

reckon the 100 per cent period after getting temporary

status for computation of pension. He submitted that

the computation of pension is governed by statutory

rules, namely, Railway Services (Pension) Rules, 1993

(hereinafter referred to as 'Rules,1993'), under which

only 50 per cent period can be counted of a casual

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labour, who attains a temporary status as per Rule 31

of Rules,1993. He contended that the judgment of Andhra

Pradesh High Court in  General Manager, South Central

Railway, Secunderabad & Anr. vs. Shaik Abdul Khader

reported in 2004 (1) SLR 2014 which is the basis of the

judgment of the High Court, had itself been dissented

and not followed by the Andhra Pradesh High Court in

General Manager, South Central Railway vs. A.

Ramanamma(Supra) decided on 01.05.2009. It is contended

that casual labourer who is granted temporary status is

paid out of contingency and is governed by Rule, 31 of

Rules, 1993.

19. He further contended that the issue is completely

covered by the judgment of the Apex Court reported in

General Manager, North West Railway & Ors. vs. Chanda

Devi, 2008 (2) SCC 108  and High Court as well as

Tribunal had committed error in holding that casual

worker after obtaining temporary status is entitled to

reckon 100 per cent period of service. He submitted

that the Delhi High Court has committed error by not

following the judgment of this Court in  Chanda Devi

case (Supra) and inappropriately distinguished the same

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by saying that it did not consider Rule, 20 of Rules,

1993.  

20. Learned counsel for the respondents refuting the

submission of counsel for the appellants contended that

the High Court has not committed any error in

dismissing the writ petition of the appellants. It is

contended that after obtaining the temporary status

entire service is to be reckoned for computation of

pension. It is further contended that under Rule, 20 of

Rules, 1993 qualifying service to a Railway Servant

commences from the date he takes charge of the post

either substantially or in officiating or in temporary

capacity of employment. The respondents were  granted

temporary status, their working is in temporary

capacity and they are entitled for the benefit under

Rule, 20 of Rules, 1993. It is contended that the

judgment of the Andhra Pradesh High Court in  General

Manager, South Central Railway vs. Shaik Abdul

Khader(Supra)  had rightly been relied by the High

Court.  

21. Mr. M.C. Dhingra contended that there is no

difference between Railway Servants, one who is paid

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out of Contingency or one that who is paid out of

Consolidated Fund.   He submitted that no distinction

can be made from the source of payment.

22. From the above submissions of the learned counsel

for the parties and materials on record, the only issue

which arises for consideration in these appeals is:

Whether the entire services of a casual

worker after obtaining temporary status till

his regular absorption on a post is entitled

to be reckoned for pensionary benefit or only

50 per cent period of such service can be

reckoned for pensionary benefit?

23. In so far as reckoning of 50 per cent casual

period, there is no challenge and it is clear that the

said reckoning is in accordance with Rule 31 of Rules,

1993 and the benefit of said 50 per cent services of

casual period had already been extended to the

respondents. Thus, we need to answer in these appeals

the only question as noted above.

24. The Tribuanl as well as High Court has referred to

Para 20 of the Master Circular No. 54, Para 2005 of

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Indian Railway Establishment Manual (IREM) as well as

Rules, 1993.  

25. Para 20 of the Master Circular No. 54 is quoted as

below:­

“20. Counting of the period of service of Casual Labour for pensionary  benefits:  ­  Half  of the period  of  service  of  casual labour (other than casual labour employed on Projects) after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as regular railway employee, counts for pensionary benefits. With effect from 1­1­1981, the benefit has also been extended to Project Casual Labour.”

26. Next Provision need to be noted is Para 2005 of

IREM, which is as follows:­

"2005 IREM: 2005. Entitlements and privileges admissible to Casual Labour who are treated as temporary (i.e. given temporary status) after the completion of 120 day or 360 days of continuous employment (as the case may be). (a) Casual labour treated as temporary are entitled to 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

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temporary/ permanent/ regular cadre after the required selection/ screening will not count for the purpose of seniority vis­a­vis other regular/ temporary employees. This is however, subject to the provisions that if the seniority of certain individual employees has already been determined in any other manner, either in pursuance of judicial decisions of 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 entitled to these benefits.

... ... ... ...”

27. Railway Services (Pension) Rules, 1993 have been

framed under proviso to Article 309 of the

Constitution of India. Rule 20 and Rule 31 of Rules,

1993 which are relevant for our purpose, are extracted

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as below: ­

"20. 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 followed, without interruption, by substantive appointment in the same or another service or post:   

Provided further that ­  

(a) in the case of a railway servant in a Group ‘D’ service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose; and  

(b) in the case of a railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity.”

“31.  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 condition namely: ­

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(a) the service paid from contingencies has been in a job involving whole­time 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 establishments;

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

Provided that the weightage for past service paid from contingencies shall be limited to the period after 1st January, 1961 subject to the condition that authentic records of service such as pay bill, leave record or service­book is available.

NOTE ­ (1) the provisions of this rule shall also apply to casual labour paid from contingencies.  

(2) The expression “absorption in regular employment” means absorption against a regular post.”

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28. The perusal of para 20 of the Master Circular

indicates that only half of the period of service of a

casual labour  after attainment of temporary status  on

completion of 120 days continuous service  if it is

followed by absorption in service as a regular Railway

employee, counts for pensionary benefits.

29. Para 2005 of Indian Railway Establishment Manual

also contains the same scheme for reckoning the period

for pensionary benefit. Para 2005 contains the heading:

“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).”

30. The above heading enumerates the  privileges

admissible to casual labour who are treated as

temporary. Clause(a) of para 2005 provides:

"...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

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prescribed days of continuous employment and before regular absorption, as qualifying service for the purpose of pensionary benefits.”

31. Let us now look into the judgment of High Court

dated 10.11.2014 to find out the reasons for holding

that the casual labour after obtaining temporary status

is entitled to reckon entire period of service for

pensionary benefits. In Para 7 of the judgment the High

Court refers to para 20 of the Master Circular and para

2005 of IREM as administrative instructions clarifying

that half the period spent as casual labourers would be

eligible to reckon for the purpose of pension. In Para

6 of the judgment following was stated by the High

Court:

"6. It would be immediately apparent that the Master Circular No. 54 and para 2005 of the IREM deal with a situation where casual labourers/workers are eventually regularised after attainment of temporary status. The combined effect of these is to entitle the individuals who work as casual workers for a period, to reckon half of that period for the purpose of pension...”

32. The High Court in the impugned judgment has relied

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on Rule 20 of  Rules, 1993  and judgment of Andhra

Pradesh High Court in  General Manager, South Central

Railway, Secunderabad & Anr. Vs. Shaikh Abdul

Khader(Supra).  Andhra Pradesh High Court in the above

case after referring to Rule 31 of Rules, 1993, para 20

of Master Circular No.54 of 94 and para 2005 of IREM as

well as Rule 20 laid down following:

"...If this sub­para is read with para­20 and also with Rule­31, there remains no doubt that on absorption whole of the period for which a casual labour worked after getting temporary status would have to be counted and half of the period has to be counted of the period for which a casual labour worked without being absorbed. Once he is given temporary status  that means  that  he  has  been absorbed in the department. Even para 2005(a) has been drafted in the same way because of the fact that even such casual labour who have attained temporary status are allowed to carry forward the leave at their credit in full to the new post on absorption in regular service. Therefore, we have no doubt in our mind that once temporary status is granted to a person  who  is  absorbed  later  on in regular service carries forward not only the leave to his credit but also carries forward the service in full. Half on the service rendered by him as casual labour before getting the temporary status has to be counted. Therefore,  we  do  not  feel  that  the Tribunal was wrong in coming to the

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conclusion it has, although we may not agree with the reasons given by the Tribunal. The view taken by us is further strengthened by mandate of Rule­20 of Railway Services(Pension) Rules which lays down:

"20. 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 followed, without interruption, by substantive appointment in the  same or another service or post. Provided further that (a)......(b).....”

Therefore, we hold that the respondent was entitled to get the service counted in full from January 1, 1983. He was also entitled to get half of the service counted before January 1, 1983 from the date he had joined in the railways as casual labour. ”

33. The above judgment of Andhra Pradesh High Court

was subsequently considered by the Andhra Pradesh High

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Court itself in Writ Petition No. 10838 of 2001, the

General Manager, South Central Railway, Secunderabad &

another Vs. A.Ramanamma  decided on 01.05.2009 wherein

earlier judgment of Andhra Pradesh High Court in Shaikh

Abdul Khader(Supra) was not followed after referring to

judgment of this High Court in  General Manager, North

West Railway & others Vs. Chanda   Devi, 2008 (2) SCC

108.

34. Following are reasons given in subsequent judgment

for not following Shaik Abdul Khader(Supra):

“  Similarly,  Shaik Abdul Khader(supra)  directing counting of the entire service rendered by a casual labour after getting temporary status even before absorption for purposes of qualifying service for pension/family pension, runs contrary to the distinction between 'casual labour with temporary status' and 'temporary railway servants' recognized by  Chanda Devi(supra)  and other decisions of the Supreme Court. The conclusion in Shaik Abdul Khader(supra)  that once a  casual  labour is  given  temporary status, that means that he has been absorbed in the department, does not appear to fit in with the interpretation of the rules and the legal position by the Apex Court.”

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35. The Judgment of this Court in  Chanda Devi's

case(Supra)  considered the nature of employment of

casual labour who was granted temporary status. In the

above case, Smt. Santosh, the respondent was widow of

Sh. Ram Niwas who was a project casual labour. Under

the scheme framed by Union of India in pursuance of

order  of this  court  in  Inderpal Yadav Vs.  Union  of

India, 1985 (2) SCC 648,  Ram Niwas was treated as

temporary employee w.e.f 01.01.1986. After the death of

Ram Niwas, her widow filed the claim for grant of

family pension which was rejected by the Railway

against which the widow approach the Central

Administration Tribunal. The Tribunal allowed the

claim, Writ Petition filed by Union of India was

dismissed by the Rajasthan High Court against which the

appeal was filed. After referring to Rule 2001,

Rule2002 and Rule 2005 of IREM, this Court held that

Rule 2005 clearly lays down the entitlement and

privileges admissible to casual labour who are treated

as temporary i.e. given temporary status.  

36. This Court further held that there is a

distinction between the casual labour having a

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temporary status and temporary servant, para 24 of the

judgment is relevant which is quoted as below:

"24. The contrast between a casual labour having a temporary status and a temporary servant may immediately be noticed from the definition of a temporary railway servant contained in Rule 1501 occurring in Chapter XV of the Manual:

"1501.(i) Temporary railway servants

Definition­ A 'temporary railway servant' means a railway servant without a lien on a permanent post on a railway or any other administration or office under the Railway Board. The term does not include 'casual labour', including 'casual labour' with temporary status', a 'contract' or 'part time' employee or an 'apprentice'.”

37. This Court in the above case has also disapproved

the judgment of Gujarat High Court wherein it was held

that casual labour after obtaining temporary status

becomes a temporary railway servant. The reasons given

by Gujarat High Court were extracted by this Court in

para 27 of the judgment, and in para 31 of the judgment

Gujarat High Court's judgment was disapproved. Para 27

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and para 31 are extracted as below:

"27. The Gujarat High Court in Rukhiben Rupabhai Vs. Union of India no doubt on analysing the scheme filed before this Court, opined:

“32. This change has been made by the Railways after the Apex Courts decision in  Inder Pal Yadav case. The original definition of 'temporary railway servant' is clear, but in the abovequoted definition in Rule(1501), the Railways have included the 'casual labour with temporary status', thereby, taking them out from the category of 'temporary railway servant'. How and why this change has been made, what procedures were adopted for making the change, there is no whisper, although, this change has grievously affected the casual labour becoming temporary on completion of 360 days' continuous employment, and committed breach  of the Apex Court's decision in  Inder Pal Yadav case  followed by  Dakshin Railway Employees Union Vs. GM, Southern Railway, (1987) 1 SCC 677, 1987 SCC (L&S) 73,  making casual labour 'temporary railway servant'. Since there exists only four categories, namly, (1)

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permanent, (2) temporary, (3) casual labour,  and (4) substitutes, casual labour, under the original scheme approved in cases referred to hereinbefore, becomes 'temporary railway servant', after completion of 360 days' continuous employment, therefore, he cannot be made 'casual labour with temporary status' by subsequent gerrymandering by the Railways by its circular dated 11.09.1986, which was not brought to the notice of the Apex Court in  Dakshin Railway Employees case. Therefore, this circular has no legal sanction against the Apex Courts decision in Inder Pal Yadav case, contrary to original scheme and as such, hit by Articles 14, 16, 21, 41/42 of the Constitution of India.”

But evidently the provisions of the Railway Manual were not considered in their proper perspective.

31. The Gujarat High Court in our opinion, therefore, committed a fundamental error in opining otherwise. It failed to notice that when casual labour has been excluded from the definition of permanent or temporary employee, he with temporary status could not have become so and there is no legal sanction therefore. It is for the legislature to put the employees to (sic) an establishment in different categories. It may create a new

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category to confer certain benefits to a particular class of employees. Such a power can be exercised also by the executive for making rules under the proviso appended to Article 309 of  the  Constitution of India.  Dakshin Railway employees Union Vs. GM, Southern Railway whereupon reliance has been placed by the Gujarat High Court in Rukhiben  Rupabhai  does not lead  to the said conclusion as was sought to be inferred by it. The question therein was as to whether any direction was to be issued to include the petitioners therein in the scheme for absorption as formulated pursuant to the directions of the Court. ”

38. In  Chanda Devi's case, ultimately this Court set

aside the judgment of Rajasthan High Court which held

that the widow of Shri Niwas was entitled for pension.

This Court held that there is a distinction between

casual labour having temporary status and the temporary

servant. The cases before us are all the case where

casual labour has been granted temporary status. Grant

of temporary status is not equivalent to grant of an

appointment against a post.  

39. Much reliance has been placed by learned counsel

for the respondent as well as Delhi High Court on rule

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20. Rule 20 provides:

"20...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 followed, without interruption, by substantive appointment in the same or another service or post...”

40. Rule 20 provides that qualifying service shall

commence from the date the employee takes charge of the

post to which he is first appointed either

substantively or in an officiating or temporary

capacity. Rule 20 is attracted when a person is

appointed to the post in any of the above capacities.

Rule 20 has no application when appointment is not

against any post. When a casual labour is granted a

temporary status, grant of a status confers various

privileges as enumerated in para 2005 of IREM. One of

the benefits enumerated in para 2005 sub clause(a) is

also to make him eligible to count only half of the

services rendered by him after attaining temporary

status. Rule 20 is thus clearly not attracted in a case

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where only a temporary status is granted to casual

worker and no appointment is made in any capacity

against any post. The Delhi High Court in the impugned

judgment relies on proviso to Rule 20 for coming to the

conclusion in para 7 of the judgment.

"7. The proviso, in our opinion, puts the controversy beyond a shade of doubt in that if an employee officiates in service or is treated as temporary railway servant and subsequently regularized or granted substantive appointment, the entire period of his combined service as temporary appointee followed by the service spent as a permanent employee has to be reckoned for the purpose of pension. Since Rule 20 does not deal with what is to be done with the period of service spent as casual labourer, para 20 of the Master Circular 54 and para 2005 of the IREM address the said issue. Being administrative instructions, they clarify that half the period spent as casual labourers would be eligible to be reckoned for purposes of pension.”

41. The proviso to Rule 20 reads as:

 “Provided that officiating or temporary service is followed, without interruption, by substantive appointment in the same or in another service or post.”

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42. The above Proviso has to be read along with the

main Rule 20, when main Rule 20 contemplates

commencement of qualifying service from the date  he

takes charge of the post, the appointment to a post is

implicit and a condition precedent. The proviso put

another different condition that officiating or

temporary service is followed, without interruption, by

substantive appointment in the same or another service

or post. The proviso cannot be read independent to the

main provision nor it can mean that by only grant of

temporary status a casual employee is entitled to

reckon his service of temporary status for purpose of

pensionary benefit.

43. The Delhi High Court in impugned judgment has not

relied the subsequent judgment of Andhra Pradesh High

Court in  A.Ramanamma  dated 01.05.2009 and did not

follow the judgment of this court in Chanda Devi case

(Supra)  on the ground that Rule 20 specifically the

proviso has not been considered. This Court in  Chanda

Devi's case did not refer to Rule 20 since Rule 20 had

no application in the facts of that case because the

appointment of husband of respondent in  Chanda Devi's

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case  was not against any post. Rule 20 being not

applicable non­reference of Rule 20 by this Court in

Chanda Devi's case is inconsequential. In para 8 of the

impugned judgment, the Delhi High Court for not relying

on  A.Ramanamma  and  Chanda Devi case  gave following

reasons:

"8. In the opinion of this Court, the subsequent ruling of the Andhra Pradesh High Court in Ramanamma(supra),  with respect, does not declare the correct law. Though the judgment has considered certain previous rulings as well as the provisions of the IREM and Rule 31 of the Railway Services(Pension) Rules, the notice of the Court was not apparently drawn in that case and the Court did not take into account Rule 20, especially the proviso which specifically deals with the situation at hand. Likewise, Chanda Devi(supra) did not consider the effect of Rule 20, which, in the opinion of this Court, entitles those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period of temporary and substantive appointment for the purposes of pension.”

44. The judgment of Andhra Pradesh High Court in

A.Ramanamma case had considered in detail the judgment

of this Court in Chanda Devi's case as well as Para 20

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of Master Circular and para 2005 of IREM and has also

considered other case of this Court and has rightly

come to the conclusion that casual labour after

obtaining temporary status is entitled to reckon only

half of the period. It may, however, be noticed that in

A. Ramanamma case the Andhra High Court has also held

that 50% of service as casual labour cannot be counted,

which is not correct. Rule 31 of Rules, 1993 provides

for counting of service paid from contingencies. Note 1

of Rule 31 provides:­

" The provisions of this Rule shall also apply to casual labour paid from contingencies when Note 1 expressly makes applicable Rule 31 to the casual labour they are also entitled to reckon half of casual services paid from contingencies.”

45. Thus except to the above extent, the judgment of

Andhra Pradesh High Court in  A. Ramanamma case  lays

down the correct law.

46. As observed above, the grant of temporary status

of casual labour is not akin to appointment against a

post and such contingency is not covered by Rule 20 and

the same is expressly covered by Rule 31 which provides

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for “half the service paid from contingencies shall be

taken into account for calculating pensionary benefits

on absorption in regular employment subject to certain

conditions enumerated there in.” Thus Rule 31 is

clearly applicable while computing the eligible

services for calculating pensionary benefits on

granting of temporary status.

47.  In the impugned judgment of the Delhi High Court

it is held that entire services of casual labour after

obtaining temporary status who was subsequently

regularised is entitled to reckon. Casual labour who

has been granted temporary status can reckon half of

services for pensionary benefits as per Rule 31. The

reasons given by the Delhi High Court in the impugned

judgment in para 6, 7 and 8 having been found not to be

correct reasons, we are of the view that judgment of

Delhi High Court is unsustainable and deserved to be

set aside.

48. We, however, are of the view that the period of

casual labour prior to grant of temporary status by

virtue of Note­1 Rule 31 has to be counted to the

extent of 50% for pensionary benefits.

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49. There is one more aspect of the matter which needs

to be noted. There is specific rule in Rules, 1993 i.e.

Rule 107, which empowers Pension Sanctioning Authority

to approach the Ministry of Railways(Railway Board) for

dispensing with or relaxing the requirement of any Rule

operation of which causes hardship in any particular

case. Rule 107 is quoted as below:

"107. Power to relax – Where the pension sanctioning authority is satisfied that the operation of any of these rules causes undue hardship in any particular case, that authority, may for reasons to be recorded in writing, approach the Ministry of Railways (Railway Board) for dispensing with or relaxing the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The Ministry of Railways(Railway Board) shall examine each such case and arrange to communicate the sanction of the President to the proposed dispensation or relaxation as it may consider necessary keeping in view the merits of each case and keeping in view of an other statutory provisions:

Provided that no such order shall be made without concurrence of the Department of Pension and Pensioners' Welfare, in the Ministry of Personnel, Public Grievances and Pensions, Government of India.”

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50. Thus, in cases of those railway servants who are

not eligible as per existing rules for grant of pension

and there are certain mitigating circumstances which

require consideration for relaxation the proposals can

be forwarded by Pension Sanctioning Authority to

Railway Board in an individual or group of cases. We,

thus, while allowing this appeal and setting aside the

judgment of the High Court leave it open to the Pension

Sanctioning Authority to recommend for grant of

relaxation under Rule 107 in  deserving cases.

51. Shri M.C.Dhingra, learned counsel for the

respondent referred to case in  Punjab State

Electricity Board & Another Vs. Narata Singh & Another,

2004 (3) SCC 317. In the above case, the issue for

consideration was as to whether work­charged services

rendered by respondent in the Department of Punjab

State can be counted for the purpose of calculating

qualifying service for pension payable to him as an

employee of the Punjab State Electricity Board. The

High Court has issued directions for counting the

services rendered in the Irrigation Department of the

State of Punjab for calculating pension of the

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respondent  in Punjab State Electricity  Board. Punjab

State Electricity Board aggrieved by the judgment,

filed SLP before this Court. This Court noticed that in

the above judgment the Punjab State Electricity Board

has adopted earlier decisions in which pensionary

liability in respect of temporary services rendered in

the Government of India and State Government were taken

into consideration. Para 19 and para 20 of judgment as

cited below:

"19. The above­mentioned policy decisions taken by the Central Government and the Government of Punjab were taken into consideration by the Board which issued a Memo dated 25­11­1985 with reference to the subject of allocation of pensionary liability in respect of temporary service rendered in the Government of India and the State Government and adopted the policy decision reflected in the Letter dated 20.05.1982 of the Government of Punjab, w.e.f. 31.03.1982 as per the instructions and conditions stipulated in the said letter. This is quite evident from Memo No. 257861/8761/REG.6/V.5dated 25.11.1985 issued by the Under Secretary/P&R/for Secretary, PSEB, Patiala.

20. The effect of adoption of the policy decisions of the Central Government and the State Government was that a temporary employee, who had been retrenched from the service

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of the Central /State Government and had secured employment with the Punjab State Electricity Board, was entitled to count temporary service rendered by him under the Central/State Government to the extent such service was qualified for grant of pension under the rules of the Central/State Government."

52. With regard to the work­charged services, Punjab

High  Court  had taken note  of the  judgment  in  Kesar

Chand Vs. State of Punjab, (1988) 5 SLR 27(Punjab &

Haryana)  wherein Rule 3.17(ii) of the Punjab Civil

Services Rules providing that period of service in

work­charged establishments as not qualifying service

was struck down. Thus the work­charged services

rendered by respondent in the State Government was

counted.

53. The above judgment in no manner helps the

respondent in the present case. This Court in the above

case interpreted statutory rules and circulars issued

by the State Government as well as by the Board. The

said judgment has no application in the facts of

present case.

54. Another judgment relied by Shri Dhingra is in CWP

No.2371 of 2010 [Harbans Lal versus State of Punjab &

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Ors.] decided on 31.08.2010. In the said case also

Punjab and Haryana High Court considered the Punjab

Civil Services Rules and pension scheme which came into

effect w.e.f. 01.01.2004. The said judgment was on

different statutory rules and in facts of that case,

which  does not help respondent in the present case.

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 entitled to 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

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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.

56. In result, all the appeals are allowed. The

impugned judgments of Delhi High Court are set aside.

The writ petitions filed by the appellants are allowed,

the judgments of Central  Administrative Tribunal  are

set aside and the Original Applications filed by the

respondents are disposed of in terms of what we have

held in para 55 as above.

...........................J. ( A.K. SIKRI )

...........................J. NEW DELHI,          ( ASHOK BHUSHAN ) MARCH 24, 2017.