UNION OFINDIA Petitioner Through Mr.V.S.R.Krishna,Adv. v. RAMPRATAP SINGH&ORS

31. Counting ofservicepaidfrom contingencies:-In respectofa railwayservant, in service on or after the 22 day ofAugust 1969,halfthe service paidfrom contingencies shall be taken into account for calculating pensionary benefits on absorption in regular employment subject to the following conditions, namely; (a) The servicepaidfrom contingencies has been in a job involving whole-timeemployment. (b)The servicepaidflom contingencies should be in a type ofworkorjobfor which regularposts could have beensanctionedaspostsofchowkidarsandkhalasis;

(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 ofpay, bears some relation In the matter of payment to those being paidfor similar jobs being performed at the relevant period by staff in regular establishment;

(d) The service paid from contingencies has been continuous and followed by absorption in regular employment without a break Provide that the weightageforpastservicefrom contingencies shall be limited to theperiod after January 1961 subject to the condition thatauthentic records ofservice such aspay billleave recordofservice book is available."

XXX XXX XXX XXX XXX Entitlements and Privileges admissible to Casual Labour who are treated as temporary (Le. given temporary status) after the completion of120 day or 360days ofcontinuous employment(as the case may be). (a)Casuallabour 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 ofD&A Rules. However, their service prior to absorption in temporary/permanent/regular cadre after the required selection/screening will not countfor thepurpose 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 ifthe seniority ofcertain individual employees has already been determined in any other manner, either in pursuance ofjudicial decisions or otherwise, the seniorityso determinedshall 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 ofprescribed days ofcontinuous 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 carryforward the leave attheir creditto newposton absorption in regular service.Daily rated casuallabour willnot be entitledto these benefits. (b)Such casuallabour 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 Boardfor GroupD Posts in the manner laid down from time to time. Subject to such orders as the Railway Board may issuefrom time to time, andsubjectto such exceptions and conditions like appointment on compassionate ground, quotas for handicapped and exserviceman 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 withouthaving to go through employment exchanges. Such ofthem whojoin as Casual labour before attaining the age of28yearsshould be allowed relaxation ofthe maximum age limit prescribedfor group 'D'posts to theextentoftheir total service which may be either continuous or in brokenperiods.

(c) No temporary posts shall be created to accommodate such casual labour, who acquire temporary status, for the conferment of attendant benefits like regularscale ofpay,incrementetc. After absorption in regular employment, halfofthe service rendered after attaining temporary status by such persons before regular absorption against a regular/temporary/permanent post, will qualifyfor pensionary benefits, subject to the conditions prescribed m Railway Board's letter No. E(NG)II/78/CL/12 dated14-10-80.(Letter No.E(NG) II/85/CL/6 dated 28-11-86 in the case of Project casuallabour).

(d) Casual labour who have acquired temporary status and haveput in three years continuous service should be treated at par with temporary railway servants for purpose of festival advance/Flood Advance on thesame conditions as ARE applicable to temporary railway servantsfor grant ofsuch 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 ofRule 554-R-l (1985Edition). A casual labour who has attained temporary status and has been paid regular scale ofpay, when re-engaged, after having been discharged earlier on completion ofwork orfor non-availability offurther productive work, may be started on thepay last down j I& by him. (This shall he effective from 2nd October 1980)." The judgment notes and takes on record para 20 of the Master Circular No.54 which reads as under:

20. Counting of the period of service of Casual Labourforpensionary benefits Halfoftheperiod ofservice ofa casuallabour(other than casual labour employed on Projects) after attaining of temporary status on completion of120 days continuousservice ifitisfollowed by absorption in service as regular railway employee, countsfor pensionary benefits. With effectfrom 01.01.1981, the benefit has also been extended to Project Casual labour." Interpreting the said paragraph it is held that the paragraph deals with the situation where a casual labour/worker is eventually regularised after attainment oftemporary status and the combined effect ofRule 31,Para 2005 and para 20 ofthe Master Circular 54 is that ifsuch worker/labourer had earlier worked as casual labour for a period,then halfofthe said period would be reckoned for the purpose ofpension. Thereafter, reference was made to Rule 20 of the Service (Pension)Rules,which reads as under:

20. Commencement of qualifying service- Subject to the provisions of these rules, qualifying service ofa railway servantshall commencefrom the date he takes charge ofthe post to which he isfirst appointed either substantively or in an officiating or temporary capacity: // Provided that officiating or temporary service is followed, without interruption, by substantive appointmentin thesame oranotherservice orpost: Providedfurther that— (a) in the case ofa railway servant in a Group D service orpost who held a lien or a suspended lien on a permanentpensionablepostprior to the 17th April, 1950, service rendered before attaining the age of sixteen yearsshallnotcountfor anypurpose;and (b) in the case ofa railway servant not covered by clause (a), service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity;(Authority: Railway Board's letter No. F(E)III/99/PNl/(Modification)dated23.5,2000) (c)theprovisions ofclause(b)shall not be applicable in the cases ofcounting ofmilitary servicefor civil pension under rule 34.(Authority: Railway Board's letter No. F(E)III/2004/PNl/21(Amendment) dated 7.12.2004)' The Division Bench,elucidating on the said Rule has held: "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 astemporary 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 halfthe period spent as casual labourers would be eligible to be reckoned for purposes ofpension.

8. In the opinion ofthis 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 ofthe 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 ofthis Court, entitles, those who work as casual labourers; are granted temporary status, and; eventually appointed substantively to the Railways, to reckon the entire period oftemporary and substantive appointment for the purposes ofpension." I We respectfully agree with the aforesaid reasoning given by the Division Bench and following the same, the present writ petitions have to be dismissed. Learned counsel for the petitioner has not been able to highlight and point out any difference or peculiar facts in these writ petitions for us to take a different view,from the view taken by the Division Bench inPrem PalSingh(supra). Learned counsel for the respondents during the course of hearing,had drawn our attention to order dated 17.08.2015 passed in Special Leave to Appeal(C)No.14561 of2015 in the appeal preferred by the Union ofIndia challenging the judgment dated 10.11.2014 in the case of Prem PalSingh (supra). A perusal of the said order would indicate that a limited show cause notice has been issued as it was highlighted by the Union ofIndia that the employee had worked up to 14.10.1976 and was re-engaged after a lapse of 10 years in June, 1985. The contention of Union of India was that by virtue ofthe judgment of the High Court this period between 15.10.1976 to 1985 would be counted. The order passed by the Supreme Court issuing notice specifically records that limited notice was being issued. The facts in these cases do not reveal a similar factual matrix and no such assertion/contention has been raised. With the aforesaid observations and findings, the writ petitions are dismissed.

JANUARY 18,2016/acm SANJIV KHANNA,J ASHUTOSH KUMAR,J