V.K. Aggarwal v. Chairman & M.D, IRCTC

1. In this writ petition, the petitioners have sought the following reliefs: “(i) allow the Writ Petition with costs;

(ii) Issue an Order or direction or Writ in the nature of Mandamus commanding the Respondents to discharge their statutory liability for payment of Pension/family pension to petitioner absorbees with all consequential retirement benefits to which they are entitled on their superannuation/retirement by counting the service rendered by them in the Railways and combining the total service rendered by them in the Railways and in the IRCTC for the purpose of 2015:DHC:9799 pensionary benefits in terms of the terms and conditions of their service and the provisions contained in Rule 53A of the Railway Services (Pension) Rules, 1993 by creating Pension Fund without any further delay;

(iii) to issue order or direction for any further consequential relief to the petitioners.

2. Some of the relevant facts are, the petitioners were appointed in the Catering Department of the Indian Railways in the year 1987-1988. In the year 1999, Ministry of Railways created a Public Sector Enterprise known as Indian Railways Catering and Tourism Corporation (IRCTC), the respondent No. 1 to upgrade and professionalise catering services. On March 31, 2003, Ministry of Railways notified terms and conditions, laying down for payment of pension to railway staff consequent upon conversion of Catering Department of the Indian Railways into IRCTC. It is a matter of record, the petitioners belong to Catering Department, were transferred along with the other employees on deemed deputation basis to IRCTC. In the month of April, 2005, the Ministry of Railways accorded approval to the proposal of IRCTC for creating Gazette cadre in IRCTC. Accordingly, IRCTC notified the applications from eligible railway staff, who were on deemed deputation in IRCTC for selection to the post of Assistant Manager in the Grade of Rs. 10750-12000/- (IDA), equivalent to Group-B in Railways. The petitioners, who applied through proper channel, were found successful and were issued terms of appointment. It is a matter of record that the terms of appointment stipulated that the petitioners would be entitled for pensionary benefits on the basis of combined service rendered by them in the Railways and in the IRCTC in accordance with the formula for calculating pensionary/family pension under the Railway Services (Pension) Rules,

1993. In the meantime, on March 10, 2005, the Railway Board amended the Pension Rules, incorporating the Rule 53A in the Railway Services (Pension) Rules, 1993. On their appointment, the petitioners were absorbed in IRCTC as Assistant Managers/Catering in the Grade of Rs. 10500-16750. The case of the petitioners is that, despite their representations, their grievances for grant of pension in terms of Rule 53A was not responded. It is only on an application under the R.T.I. Act, a reply was given by IRCTC on January 3, 2014, which I reproduce as under: “1.[3] Pensionary liabilities in respect of the employees who have opted for pension on the basis of combined service, for the service rendered till the date of absorption can be transferred only after creation of pension fund. The decision regarding the same is pending with Ministry of Railways.

2. As per the present practice, settlement dues of Railways employees of Catering Cadre working in IRCTC, are being settled on pro-rate basis i.e. pension and other settlement dues are settled by concerned Railways for the period of service rendered in Railways and IRCTC is discharging its liabilities to the optees for their length of serviced in IRCTC by way of one time 100% commutation of pension and differential of other settlement dues.”

3. I may only note here, one of the petitioners i.e petitioner No.1 has retired. I have been informed that he has been given pension for the service put in by him in the Railways before his absorption in IRCTC. Similarly, the IRCTC had also granted one time 100% commutation of pension apart from settling the other dues. The respondents have filed their counter-affidavits, wherein, they have contested the claim of the petitioners. The IRCTC-respondent No. 1 in its reply has taken the following stand:

4. The respondent Nos. 2 and 3 have taken a similar stand as taken by the respondent No. 1- IRCTC. That apart, it is their case that a formal notice of relieving the employees from Railways to IRCTC was issued on December 8, 2005 and September 21, 2006. It is also stated that the petitioner No. 1 has retired on October 31, 2014 from IRCTC. His final dues from Railways have been calculated on the basis of his pay in Railways at the time of his absorption in IRCTC i.e. on November 21,

2005.

5. Mr.M.S.Saini, learned counsel appearing for the petitioners has reiterated the stand taken in the writ petition. He would argue that in terms of the appointment letter, the petitioners being entitled to pensionary benefits on the basis of combined service of Railways and IRCTC, the respondents are required to give the pensionary benefits on that basis only and now, cannot resile from their solemn stand in the appointment letter. He has drawn my attention to Rule 53A of the Railways Services (Pension) Rules, 1993 as inserted with effect from September 30, 2000. He would state, under the said Rules also, a Railway servant, who has been absorbed as an employee of public sector undertaking or autonomous body, as the case may be, shall be eligible for pensionary benefits on the basis of combined service rendered by him or her in the Railways as per the formula laid down under the Rules. According to him, the petitioners are entitled to the benefits as claimed for in the petition.

6. On the other hand, Ms. Raavi Birbal, learned counsel appearing for the respondent No. 1 would contest the claim and submit that in the year 2010, the Catering Department has been re-transferred back to the Ministry of Railways. According to her, Rule 53A which was inserted in the Railway Services (Pension) Rules have not been given effect to. She would also state, the said Rule would have been operational only in the eventuality, there was an en-masse absorption of the persons working in the Catering Department in IRCTC for which, the IRCTC was formed. The Catering Department having been re-transferred back, in the absence of any Pension Fund (having not been created by the Central Government), Rule 53A has no application. It is her case that the petitioners’ appointment was a fresh appointment as Assistant Managers/Catering in IRCTC. No doubt, clause 4 of the terms of appointment, states that, they would be entitled to the pensionary benefits on the basis of combined services of Railways and IRCTC, but that was subject to the guidelines issued by the Railways. She would also state, that even in terms of March 31, 2003 notification, the only manner in which, the pensionary benefits need to be given is that the petitioners would be entitled to pro-rata pension for the service rendered in the Railways and separately for the service rendered in IRCTC which has been done in this case. It is her case that the reliefs as prayed for by the petitioners, cannot be granted.

7. Mr.Jagjit Singh, learned counsel appearing for the respondent Nos. 2 and 3 would reiterate the submissions as made in their counteraffidavit by the said respondents. That apart, he would also reiterate the submission as made by Ms. Raavi Birbal, keeping in view the notification dated March 31, 2003 and Rule 53A of the Railways Pension Rules.