Full Judgment Text
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CASE NO.:
Appeal (civil) 5833 of 2007
PETITIONER:
General Manager, North West Railway & Ors.
RESPONDENT:
Chanda Devi
DATE OF JUDGMENT: 12/12/2007
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 23046 of 2005]
WITH
CIVIL APPEAL NO. 5839 OF 2007
[Arising out of SLP(Civil) No. 23737 of 2005]
S.B. SINHA, J :
Leave granted.
1. Interpretation of some of the provisions of the Indian Railway
Establishment Manual (hereinafter referred to as \023the Manual\024) is in
question in these appeals which arise out of judgments of the Rajasthan High
Court, Jaipur Bench at Jaipur dated 25.4.2005 in DB Civil W.P. No. 5317 of
2004 and dated 25.4.2005 in D.B. Civil WP No. 5316 of 2004 affirming
orders dated 12.4.2004 in O.A. No. 536/2003 and order dated 7.4.2003 in
O.A. No. 233/2003 respectively.
2. The fact of the matter is as under :
Smt. Santosh, Respondent No. 1, in Civil Appeal arising out of SLP
(C) No. 23737 of 2005, is widow of one Ram Niwas who was appointed as a
project casual labour on 8.11.1979. The case of regularisation of the
similarly situated employees came up for consideration before this Court in
Inder Pal Yadav and Others Vs Union of India and Others [(1985) 2 SCC
648]. During hearing of the said matter from time to time, the Court inter
alia suggested for framing of a scheme of regularisation; pursuant whereto
and in furtherance whereof, proposals were placed before this Court it by the
Railway Administration of Union of India from time to time. A Scheme
was eventually produced before this Court; clause 5.1 whereof reads thus :
\0235.1. As a result of such deliberations, the Ministry of
Railways have now decided in principle that casual
labour employed on projects (also known as \021project
casual labour\022) may be treated as temporary on
completion of 360 days of continuous employment.
The Ministry have decided further as under:
(a) These orders will cover :
(i) Casual labour on projects who are in service as on
January 1, 1984 ; and
(ii) Casual labour on projects who, though not in
service on January 1, 1984, had been in service
on Railways earlier and had already completed
the above prescribed period (360 days) of
continuous employment or will complete the said
prescribed period of continuous employment on
re-engagement in future. (A detailed letter
regarding this group follows.)
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(b) The decision should be implemented in phases
according to the schedule given below :\024
The said Scheme was accepted by this Court subject to the
modification that clause 5.1(a) (i), the date from which the Scheme was
made effective was from January, 1981.
3. The Railway Administration in terms of the said scheme during
pendency of the said Writ petition issued an Office Order; the relevant
portion whereof reads as under:-
\0231. Under instruction given in the above referred letter of
Head Office those Casual Workers who have completed
3 years on 01.01.1984 but less than 5 years and who have
worked for more than 1095 days have been ordered to be
considered as Temporary employees from 01.01.1985.
2. Those casual workers who have worked for 360 days
on 31.12.83 but less than 3 years have been ordered to be
considered as temporary employees from 01.01.1986.
Therefore, the following casual workers are eligible to be
considered as temporary employees but they will be
appointed only after their selection by the selection
committee.\024
4. In the said Office Order, the name of said Ram Niwas was shown at
Serial No. 15 which reads as under:-
\023S.
No.
Name
Date of
Birth
Date of
first
appoint
ment
Total
Service
days on
31.12.83
Date for
being
considered
Temporary
employees
*
*
*
*
*
*
15.
Ramniwas
Singh
Syotaaj Singh
07.03.56
08.11.79
707
01.01.86\024
5. By reason of another circular letter, the date 1.1.1984 was changed to
11.3.1983. Ram Niwas expired on 29.12.1988. By an order dated
24.1.1989, the application of Respondent no. 1 herein to give appointment to
him on compassionate ground was rejected stating:
\023It is regretted and informed that Shri Ram Niwas
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S/o Shyotaj Singh under CSI (C) Jaipur expired on
29.12.88.
The particular of the employee is as under. The
employee was not expired while on injured on
duty.
*
The settlement of employee is being done shortly.\024
His wife filed an application for grant of family pension. The said
application was rejected by an Order dated 23.4.2003 stating :
\023Ref: Your Application Letter dated 5.3.2005
Your application for grant of family pension has
been examined and found that as per Railway Rules,
Pension is not admissible to substitute temporary
employees.
For information please.
Sd/-
Sr. D.P.O.
Jaipur\024
6. Original application came to be filed by the first respondent before the
Central Administrative Tribunal questioning the validity of the said Rule.
The same was allowed by a Judgment and Order dated 7.4.2004 relying on
or on the basis of a decision of a co-ordinate Bench of the Tribunal at
Ahmedabad Bench in Smt. Vallam Badia v. Union of India [2003) (2) SLJ
CAT 271] which was affirmed by a Division Bench of the Gujarat High
Court in Union of India v. Shanti Devi, Ramawat Jakri & Ors. [Special
Leave Appeal No.12456/03 etc. decided on 21.7.2003]. The Writ Petition
filed thereagainst by the appellant was dismissed by a Bench of the
Rajasthan High Court holding :
\023The controversy with regard to the matter being covered
in favour of the petitioner or the respondent widow of
Ram Niwas by virtue of judgments either referred before
the Tribunal or before this Court in the context of
findings given with regard to the status of Ram Niwas,
loose all its significance. The said controversy would
have been relevant only if it was proved that the status of
Ram Niwas was that of a casual labour with temporary
status. Surely, if such was a finding given by us, we
would have discussed the matter threadbare on the basis
of judgment in Union of India and Others v. Rabia
Bikaner and others (supra) and the judgment reported in
1988(1) SCC 306 and the order of review passed by the
Supreme Court in the matter of Ram Kumar and others
V. Union of India and others 1996(1) All India Services
Law Journal Vol. IV 116. We may, however, mention
that the counsel defending widow of Ram Niwas
vehemently contends that the judgment rendered by the
Supreme Court in UOI V. Rabia Bikaner (supra) cannot
possibly be applied as the same is based upon judgment
in Ram Kumar (supra) which has been reviewed in view
of the introduction of policy of pension to temporary
employees by the Railway itself.\024
7. Mr. Paramjit Singh Patwalia, learned senior counsel appearing on
behalf of the appellant would draw our attention to different provisions of
the Indian Railway Establishment Manual, the relevant provisions whereof
would be noticed hereinafter, and contend that the Tribunal and
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consequently, the High Court committed a serious error in passing the
impugned judgment insofar as they failed to take into consideration the
distinctive feature of a workman with a status of temporary employee and
one as casual labour with a temporary status. It was urged that the High
Court as also the Tribunal committed a serious error insofar as they failed to
take into consideration the decisions of this Court in Ram Kumar and Others
Vs. Union of India and Others [1988 (1) SCC 306] as also its review order
reported in Ram Kumar Vs. Union of India and Ors. [1996 (1) SLJ 116] and
Union of India and Others Vs. Rabia Bikaner and Others [(1997) 6 SCC
580] in their proper prospective. It was further submitted that the view taken
by the Tribunal and the High Court is wholly unsustainable inasmuch as the
word \023pensionable\024 occurring in the letter dated 24.1.1989 was an apparent
mistake which in terms of the provisions of the Manual should have been
ignored. Even the Circular letter issued by the Western Railway on the basis
whereof the workman was given a temporary status is of no value.
8. Mr. P.K. Sharma, learned counsel appearing on behalf of the
respondent, on the other hand, submitted that the case of the respondent is
governed by Railway Services (Pension) Rules - 1993. It was urged that
both in the scheme for appointment as also the letter dated 24.1.1989, the
Railway Administration having accepted that the Shri Ram Niwas husband
of the first respondent was a temporary employee, it is impermissible for the
appellant now to change its stand.
9. We, before embarking upon the rival contentions of the learned
counsel for both the parties, intend to place on record that the provisions of
the Railway Services (Pension) Rules have no application in the instant case.
The said Pension Rules came into force from 2.12.1993. Rule 2 of the Rules
provides for application thereof only in respect of the following category of
candidates :
\0232. Application \026 Save as otherwise expressly provided in
these rules, these rules shall apply to the following
railway servants, namely :-
(1) any Group \021D\022 railway servant whose service was
pensionable before the introduction of Pension
System for Railway Servants on the 16th day of
November, 1957;
(2) any non-pensionable railway servants who was in
service on the 16th day of November, 1957 and
who elected to be governed by these rules,
(3) any non-pensionable railway servant who was in
service on the 1st day of January, 1986 and did not
opt to be governed by the State Railway Provident
Fund (Contributory) Rules; and
(4) any person entering a railway service on or after
the 16th November, 1957, except a person who is
appointed on contract or re-employed after
superannuation or whose terms of appointment
specifically provide to the contrary.\024
10. A bare perusal of the aforementioned provisions would clearly go to
show that the statutory rules for grant of pension made in view of the
proviso appended to Article 309 of the Constitution of India cannot be said
to have any application in the instant case.
11. The Manual was made for the purpose of simplification of various
circular letters issued by the competent authority from time to time. It is
divided in separate chapters. Chapter XIX provides for \021apprentices\022,
Chapter XX provides for \021casual labour\022.
12. Indisputably, the Railway servants, if appointed on a regular basis,
would enjoy a status having regard to the provisions contained in Article 309
of the Constitution of India. Recruitment Rules are applicable to the
temporary and permanent government servants and they are governed by the
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Rules framed under the proviso appended to Article 309 of the Constitution
of India. Their services are indisputably protected under Article 311(2)
thereof. [See Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways,
Maligaon, Pandu, etc. AIR 1964 SC 600]
13. In Khem Chand Vs. Union of India and Others [AIR 1958 SC 300],
this Court traced the history of Article 309 and 310 of the Constitution of
India as also the provisions of Indian Railway Service Establishment Code
which governs the Railway servants. It was noticed that the said Rules have
originally been framed under Section 96-B (2) of the Government of India
Act, 1915.
14. Indisputably, the case of the Ram Niwas was governed by Chapter
XX of the Rules. Rule 2001 excludes the applicability thereof which govern
the service conditions of permanent and temporary staff stating;
\0232001. (i) Definition of Casual Labour \026 Casual Labour
refers to labour whose employment is intermittent,
sporadic or extends over short periods or continued
from one work to another. Labour of this kind is
normally recruited from the nearest available
source. They are not ordinarily liable to transfer.
The conditions applicable to permanent and
temporary staff do not apply to casual labour.\024
15. Rule 2002 lays down the rights and privileges admissible to casual
labour stating;
\0232002. Entitlements and privileges admissible to
Casual Labour - Casual Labour are not eligible for any
entitlements and privileges other than those statutorily
admissible under the various Acts, such as, Minimum
Wage Act, Workmen\022s Compensation Act, etc. or those
specifically sanctioned by the Railway Board from time
to time.\024
16. Rule 2005 clearly lays down the entitlement and privileges admissible
to casual labour who are treated to be temporary i.e. given temporary status
in the following terms;
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 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 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-‘-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
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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.
(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.
Subject to such orders as the Railway Board may
issue from time to time, and subject to such
exceptions and conditions like appointment on
compassionate ground, quotas for handicapped and
ex-servicemen etc. as may be specified in these
orders they will have a prior claim over others to
recruitment on a regular basis and they will be
considered for regular employment without having
to go through employment exchanges. Such of them
who join as Casual labour before attaining the age of
28 years should be allowed relaxation of the
maximum age limit prescribed for Group D posts to
the extent of their total service which may be either
continuous or in broken periods.
(c) No temporary posts shall be created to accommodate
such casual labour, who acquire temporary status,
for the conferment of attendant benefits like regular
scale of pay, increment etc. After absorption in
regular employment, half of the service rendered
after attaining temporary status by such persons
before regular absorption against a
regular/temporary/permanent post, will qualify for
pensionary benefits, subject to the conditions
prescribed in Railway Board\022s letter No.
E(NG)II/78/CL/12 dated 14-10-80. (Letter No.
E(NG)II/85/CL/6 dated 28-11-86 in the case of
Project casual labour).
(d) Casual labour who have acquired temporary status
and have put in three years continuous service
should be treated at par with temporary railway
servants for purpose of festival advance/Flood
Advance on the same conditions as are applicable to
temporary railway servants for grant of such
advance provided they furnish two sureties from
permanent railway employees.
(e) Casual labour engaged on works, who attain
temporary status on completion of 120 days
continuous employment on the same type of work,
should be treated as temporary employees for the
purpose of hospital leave in terms of Rule 554-R-I
(1985 Edition).
A casual labour who has attained temporary status and has
been paid regular scale of pay, when re-engaged, after
having been discharged earlier on completion of work or
for non-availability of further productive work, may be
started on the pay last drawn by him. (This shall be
effective from 2nd October, 1980).
17. The aforementioned Rule 2005 replaced an earlier Rule being Rule
251 occurring in Chapter XXV of the previous publication which has inter
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alia been noticed by this Court in Ram Kumar and Others Vs. Union of India
and Others [(1988) 1 SCC 306]. Ranganath Misra, J. speaking for a
Division Bench noticing the different entitlements of an employee who has
acquired temporary status as noticed in Inderpal Yadav\022s case held;
\02312. It is the stand of the learned Additional Solicitor
General that no pensionary benefits are admissible even to
temporary railway servants and, therefore, that retiral
advantage is not available to casual labour acquiring
temporary status. We have been shown the different
provisions in the Railway Establishment Manual as also
the different orders and directions issued by the
Administration. We agree with the learned Additional
Solicitor General that retrial benefit of pension is not
admissible to either category of employees.\024
18. A clarification was, however, subsequently made in Ram Kumar and
Others Vs. Union of India and Others [1988 (1) SCC 306], stating;
\023The only other question to be seen is with regard to
entitlement to pension. It appears that the Board on the
basis of the Fourth Pay Commission report has provided
for pension at the time of superannuation even to those
who are temporary employees. In paragraph 12 of our
order on the basis of material then placed before us, we
had taken the view that temporary employees were not
entitled to pension on superannuation. We direct the
Railway Board to consider the claim of temporary
employees who are before us for pension at the time of
superannuation or otherwise in view of the fact that the
Board has taken its own decision differently. Obviously
appropriate material had not been placed before this
Court when the submission of Mr. Ramaswamy for
Railway administration was accepted in the order. The
decision is beneficial to the employees and we direct that
the Board\022s decision may be implemented.\024
19. Ram Kumar (supra) was followed by this Court in Union of India and
Others Vs. Rabia Bikaner and Ors. [1997 (6) SCC 580] stating :
\0234. It is contended by the learned counsel for the
respondent-widows that under para 2511 \026 \023Rights and
Privileges admissible to the casual labourers who are
treated as temporary after completion of six months\022
continuous service\024 \026 of the Railway Establishment
Manual, they are entitled to family pension. We find it
difficult to give acceptance to the contention. It is seen
that every casual labourer employed in the railway
administration for six months is entitled to temporary
status. Thereafter, they will be empanelled. After
empanelment, they are required to be screened by the
competent authority and as and when vacancies for
temporary posts in the regular establishment are
available, they should be appointed in the order of merit
after screening. On their appointment, they are also
required to put in minimum service of one year in the
temporary post. In view of the above position, if any of
those employees who had put in the required minimum
service of one year, that too after the appointment to the
temporary post, died while in service, his widow would
be eligible to pension under the Family Pension Scheme,
1964. In all these cases, though some of them have been
screened, yet appointments were not given since the
temporary posts obviously were not available or in some
cases they were not even eligible for screening because
the posts become available after the death. Under these
circumstances, the respondent-widows are not eligible for
the family pension benefits.\024
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20. 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.
\0231501 (i) Temporary Railway Servants
Definition \026 A \023temporary railway servant\024 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 \023casual
labour\024, including \021casual labour with temporary status\022,
a \023contract\024 or \023part time\024 employee or an \023apprentice\024.\024
21. We have noticed hereinbefore that in the Office Order dated
24.1.1989, the designation has been shown as T.S. Helper CSI
(Construction) i.e. temporary status as per the CSI (Construction).
However, wrongly it was said to be a pensionable post. Before the High
Court, an additional affidavit was filed by the Railway Administration
wherein inter alia it was stated that the screening tests were held long
thereafter viz. some time in the year 1999. Only upon holding a screening
test, the services of the employees concerned could be regularized; and as in
the case of Ram Niwas, he had expired in the year 1988, he had not and
could not have undergone any screening test and that no pensionary benefit
or benefit of family pension was admissible to him.
22. The decision of the Gujarat High Court relied upon by the Tribunal as
also the Division Bench, in our opinion, may not be correct. It was held
therein that as temporary servant also is entitled to pension on his attaining
the age of superannuation, the purported amendment in the Railway Manual
to the effect that they would enjoy the status of temporary employee is bad
in law.
23. The Gujarat High Court in Rukhiben Rupabhai (supra), no doubt on
analyzing the scheme filed before this Court, opined :
\02332. This change has been made by Railways after
the Apex Court decision in Inder Pal Yadav case
(supra). The original definition ‘temporary railway
servant’ is clear, but in the above quoted definition
in Clause (1501), 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 decisions in Inder Pal
Yadav case (supra) followed by Dakshin Railway
Employees case (supra), making casual labour
‘temporary railway servant’. Since there exists only
four categories, namely, (1) 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 gerrymendering by the
Railways by its Circular dated 11th September
1986, which was not brought to the notice of the
Apex Court in Dakshin Railway Employees case
(supra). Therefore, this Circular has no legal
sanction, against the Apex Court decisions in Inder
Pal Yadav case (supra), contrary to original
scheme and as such, hit by Articles 14, 16, 21,
41/42 of the Constitution of India.\024;
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but evidently the provisions of the Railway manual were not
considered in their proper perspective.
What has been considered therein was that the Railway Mannual
should be given effect to as it governs the terms and conditions of service of
the employees working under the Railway Administration. A scheme when
engrafted in a rule must be read in the context in which the same was done.
This Court while accepting the scheme, nowhere suggested that the
amendments made in the Railway Manual would be of no effect. Even
otherwise the same could not have been done.
24. In absence of any statutory rules framed, executive instructions can be
issued in relation to the matter governed by the constitutional provisions. In
Khem Chand (supra), this Court had noticed the relevant constitutional
provisions and opined that the Railway Manual was an amalgam of various
circulars issued from time to time. Such executive instructions or rules
framed would be statutory in nature.
25. Mala fide cannot be attributed to a legislation. It is only its validity,
that can be challenged. In these cases, validity of the Rules were not under
challenge.
26. 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 therefor. It is for the legislature to put the employees to an
establishment in different categories. It may create a new 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, Trivandrum Division Vs. General manager, Souther Railway and
Others [(1987) 1 SCC 677] whereupon reliance has been placed by the
Gujarat High Court in Rukhiben Rupabhai (supra) 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.
27. What was protected by conferring temporary status upon a casual
employee was his service and by reason thereof the pension rules were not
made applicable. A workman had not been and could not have been given a
status to which he was not entitled to.
28. Recruitment of Government Employees must be made strictly in
terms of the statutory rules. Entitlements of the employees being governed
by statute or statutory rules, the question of attribution of any malice in our
opinion by the Gujarat High Court was clearly erroneous.
29. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside accordingly. We, however, in exercise of our
jurisdiction under Article 142 of the Constitution of India direct that in the
event the respondent No.1 herein have been given any benefit including the
benefit of family pension, the same shall not be recovered. These appeals
are allowed with the aforesaid observations and directions. In the facts and
circumstances of this case, there shall, however, be no order as to costs.