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Judgment
ORDER
Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
“i)To issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 05.06.2017 (Annexure No.A-I).
ii) To issue another Writ, order or direction in the nature of MANDAMUS thereby commanding the Respondents to immediately allow the family pension according to ratio already decided by Hon’ble High Court, Allahabad in Writ Petition No.38446/1998 (Smt. Bittan Devi Shukla Vs. UOI & Ots) on 20-7-2009 and at par with other similarly situated persons, for which a time bound order is fervently prayed;
iii) To issue any other suitable order in favour of the applicant as deemed fit by this Hon’ble Tribunal in the facts and circumstances of the case;
iv) To award cost of the applicant in favour of the humble applicant.”
The facts of this case are that the husband of applicant named late Shri Ram Khilari was working as Temporary khallasi in Class IV employee (Gangman) under Permanent-Way Inspector Morena in Jhansi Division who died in harness during service on 25/05/1996 survived by the Family members consisting of Wife (applicant), three sons and two unmarried Daughters. The applicant's husband was initially engaged as casual labour on 24/08/1976 and after completion of requisite service, he was conferred MRCL status on 03/01/1987. The husband of the applicant was a regular subscriber of Provident Fund bearing No. 03739746. Pursuant to Railway Board circular No. E(NG)II/96/CL/61 dated 03/09/1996, applicant had submitted representations dated 05/03/2009 and 10/03/2009 for granting family pension but the respondents rejected the claim of the applicant vide letter No.P/ESP11/R39/58/109 dated 07/05/2009.
Submission of learned counsel for the applicant is that the husband of the applicant undoubtedly had requisite/sufficient qualifying services for entitlement of family pension since the husband of the applicant died in harness, which entitled the applicant for family pension. The details of service rendered by her husband of more than 10 years are given: Casual service from 24/08/1976 to 18/03/1977 = 207 days, 50% Q.S.: MRCL service from 03/01/1987 to 25/05/1996 = 9 years, 4 months and 22 days as 100% Q.S. Pursuant to Railway Board circular No. E(NG)II/96/CL/61 dated 03/09/1996, G.M.(P) HQ, CSTM vide letter No. HPB/22513/R/MRCL dated 03/02/1999 addressed to DRM (P) JHS & others, circulated under DRM's letter No. P/162/01/EG/policy dated 05/02/1999, it was instructed that all casual labour, who were actually on Roll as on 30/04/1996 and expired subsequently should be treated as deemed to have been regularized against Group 'D' Post and their Widows/Wards would thus not stand to lose on any aspects such as settlement dues, compassionate grounds appointment, etc on account of the administrative lapses. Being Aggrieved with the aforesaid decision, the applicant was constrained to file OA No. 71 of 2010, Smt. Radha Vs U.O.I. & another before this Tribunal which was disposed of on 12/04/2010 with the specific observation/direction as given below:-
"A perusal of the documents filed by the applicant as well as the judgment of the Hon'ble High Court of Allahabad in case of writ petition No. 38446/1998 (Smt.Bittan Devi Shukla Vs. U.O.I), make it clear that a strong case is made out for grant of family pension to the applicant. It is also clear on the basis of the documents on record that Shri Ram Khiladi deceased was not working as casual labour but had acquired temporary status. In the light of the above, directing respondents to consider the case of the applicant in the light of the documents provided by her and pass speaking & reasoned in accordance with law and rule."
It is further argued that the ratio of law laid down by Hon'ble High Central Administrative TribunalCourt, Allahabad, in W.P. No. 38446/1998 Smt. Bitton Devi Shukla Vs U.O.I. & Ors was quite clear and the relevant operative portion of the judgment is reproduced with verbatim as under:-
"In this case of Lalmani Shukla had put in 16½ years of service which include 5 years of service, after acquiring temporary status, considering such length of service, rendered by him we are of view of that he would be deemed to have been regularized and the petitioner was entitled to the payment of family pension. We accordingly allow this petition and set aside the order of Central Administrative Tribunal dated 06/10/1998 and allow the original applications of the petitioner and directed the respondent to pay family pension to the petitioner."
Learned counsel for the applicant contended that the facts and circumstances of the applicant are identical as compared to Smt. Bitton Devi Shukla and hence the applicant is entitled to the protection of equity and equality in law as guaranteed under Articles 14 and 16 of the Constitution of India. In compliance with the judgment dated 12/05/2010, Respondent No. 2, i.e., DRM(P), Jhansi instead of deciding the matter by showing compassion towards the family of the deceased, rejected the claim for family pension vide letter No. P/ESP5/R39/5A/109 dated 09/06/2010 mentioning that the casual labour with temporary status is not entitled for pensionary benefits which was not categorical assessment of relevant documents available on record in consonance with the judgment dated 28-7-2009 of Hon'ble High Court according with which the case of the applicant is squarely covered.
Learned counsel for the applicant states that it has come to the notice of the applicant that in the case of similarly situated persons, ADEN (HQ), Jhansi vide order No. 2012, No. JHS/AE/S-22 dated 16/11/2012, Late Shri Narayan Singh S/O Shyam Lal Singh, Ex MRCL under SSE/works/West/Jhansi, expired on 30/11/2011 pursuant to letter No. P/162/01/EG/ Policy dated 15/02/1999 was regularized as Khallasi w.e.f 30/04/1996 retrospectively by granting financial benefits for the year 1997/98, the photocopy of the aforesaid letter dated 30/09/1996, 15/02/1999, 30/11/2011 and 16/11/2012 are collectively filed and marked as Annexure No. A -X of 2nd Compilation. According to the above order of regular absorption in Group 'D', the ward of Late Narayan Singh named Arun Kumar (D.O.B 30/05/1982) was allowed family pension vide P.P.O. No.1313030220 dated 15/05/2013 by computing net qualifying service, 9.5 years. A copy where of is filed herewith and marked as Annexure No. A -XI of 2nd Compilation. Pursuant to the judgment dated 04/08/2008 of Hon'ble Apex Court in SLP No. CC 10172-10173/2008 U.O.I Vs Rajkumar arising out of J/M & order dated 18/04/2007 in R.P No. 360/2007 of Hon'ble High Court, New Delhi and relying thereupon another J/M dated 29/05/2014 delivered by Hon'ble CAT (Principal bench) New Delhi in O.A No. 1921/2014, Prem Pal Singh Vs U.O.I & Ors, it was directed that the respondent/railway shall count 50% of casual serve and 100% of temporary status service on regular absorption towards pension and any other benefits. The Railway Board vide letter No.E(NG)II/2014/CL/14 dated 25-11-2014 addressed to Secretary, D.O.P.T, New Delhi has pointed out shortcomings specifically about the absolute number of casual labour involved and consequents managerial problems coupled with only 50% of temporary status Casual labour service being allowed to be counted Qualifying Service; a number of Casual labour either are ineligible for pension for want of requisite qualifying service of ten years or are getting a very meager amount of pension, this puts them to great hardship. Thus, with the concurrence of the Finance Directorate of Ministry of Railway, a modified O.M. dated 15.4.1968 was issued providing that 100% temporary status casual service will be allowed to be reckoned for the purpose of determining the qualifying service for grant of pensionary benefits. In the above facts and circumstances, the matter of the applicant is identical and at par with similarly situated persons, hence, the respondents have no locus standi to deprive the poor applicant of her entitlement to family pension as the husband of applicant has sufficient qualifying service for pension.
Submission of learned counsel for the respondents is that as per Para 3 (23) of the Railway Service (Pension) Rules, 1993, there is no such provision for granting/allowing pension to the monthly rated casual labours or their family members and since the husband of the applicant was not a regular employee of the Railway, this case does not come in the purview of the family pension. The 50% service period spent by employee prior to regularization as Monthly Rated Casual Labour is to be counted after his regularisation for pensionary benefits, as such no question arises for counting 50% casual service & 100% MRCL Service for Pensionary benefit in terms of Railway Service (Pension) Rules, 1993 contained in Para 2005 of IREM Vol II. He states that the instruction issued by the General Manager (P)HQ/CSTM letter No. HPB/22513/R/MRCL dated 03.02.1999 was subsequently withdrawn vide General Manager (P) HQ/CSTM, Letter No. HPB/22513/R/MRCL dated 15.09.1999 (Annexure CA-2). He further states that the family pension in the matter of the said Late Narayan Singh was subsequently withdrawn vide letter no.P/ESP-11/N-138/74/201 dated 23.09.2013, keeping in view the instruction contained in the letter of General Manager (P)HQ/CSTM, Letter No.HPB/22513/R/MRCL dated 15.09.1999. Thus, referring to para 3 (23) of the Railway Service (Pension) Rules, 1993, learned counsel for the respondents argued that there is no such provision to sanction family pension of a monthly rated casual labor. He states that no instruction has been received from Railway Board to count 100% qualifying service of MRCL Employee for the purpose of pensionary benefits and the said period, as per the Railway Service (Pension) Rules, 1993, is to be counted after regularization of the service of the employee while in the present case, the husband of the applicant was not a regularized while in service. Hence, he states that the claim of the applicant has been rightly rejected.
I have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents record.
8.Central Administrative Tribunal Rule 3 of Railway Service (Pension) Rules 1993, provides that the term ‘railway servant’ for the purpose of the aforesaid rules does not include casual labour. The said portion is quoted below:-
w)“railway servant” means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding the post of Chairman and Chief Executive Officer, Member (Finance) or a Member of the Railway Board but does not include casual labour or person lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control;
Rule 2005 of IREM vol II regarding 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) provides regarding pensionary benefit as under:
“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.”
The contention of the applicant is that as per the Railway Board Circular dated 03.09.1996 and the CSTM letter dated 3/5.02.1999, the husband of the applicant, who died in harness on 25.05.1996 during service on roll, ought to have been deemed to be regularised and the applicant accordingly should be considered eligible for family pension. Learned counsel for the respondents, on the other hand, states that the instruction issued by the General Manager (P)HQ/CSTM letter No. HPB/22513/R/MRCL dated 03.02.1999 was subsequently withdrawn vide General Manager (P) HQ/CSTM, Letter No. HPB/22513/R/MRCL dated 15.09.1999 and since the applicant was never regularised, the applicant is not eligible for family pension as per the rules.
It will be useful to quote the judgement dated 28.07.2009 of the Central Administrative TribunalHon’ble Allahabad High Court in Writ Petition No.38446/1998:-
Lal Mani Shukla the husband of the petitioner was employed as a casual Chowkidar on 22.7.1978. He acquired temporary status on 20.11.89. He continued in this capacity till 2.10.94 when he died in harness. His widow Smt.Bittan Devi Shukla had applied for payment of family pension. The claim was rejected by the Department by order dated 22/7/96 which does not contain any reasons. The petitioner filed a claim petition before the Central Administrative Tribunal. The Tribunal by its order dated 6.10.98 rejected the claim petition. Before the Tribunal the stand of the Union of India in its counter affidavit was that Lal Mani Shukla the late husband of the petitioner had not been regularised and in the absence of the regularisation family pension was not admissible to the petitioner . The Tribunal found that although Lal Mani Shukla had rendered sufficient service in the department by putting in 16 years of service but the petitioner is not entitled to family pension as the rules do not permit. Before us the counsel for the petitioner has placed reliance on Rule 54 of the Central Civil Services Pension Rules. Sub Rule (2) (a) of Rule 54 of Family Pension, 1964 provides that where a Government servant dies after completion of one year of continuous service , his family shall be entitled to Family Pension, 1964. Under sub clause (aa) of sub rule (2) of Rule 54, family pension may be paid before completion of one year of continuous service if the deceased Government servant immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit.. The definition of continuous service includes temporary service also. Rule 2 (b) of the Pension Rules however provides that persons in casual and daily rated employment will not be governed by the Rules. The petitioner's husband without any dispute however had put in 5 years of service after acquiring temporary status and the total period for which he had served the department was about 16 years. The objection taken by the respondents that the husband of the petitioner had not been regularised in service is also in our view not a sufficient ground for rejecting the claim of the petitioner. The husband of the petitioner undisputedly had put in more than 16 years of service as casual labour which included 5 years of service after acquiring temporary status.
The very fact that the petitioner's husband had served for such a long time as 16 years is itself a basis for treating him as regular for the purpose of payment of family pension. In Yashwant Hari Katakkar Vs. Union of India and Others 1996 SCC ( L & S) 464 the Supreme Court had directed payment of pension to an employee who had taken premature retirement after putting in 18 and half years of service under the Central Government. In that case the objection taken was that the employee had not put in more than 10 years of permanent service which was the requirement of the rule for grant of pension. The apex court has taken the view that as the employee had put in 18 and half years of service he would be deemed to be permanent for the payment of pension. We are quoting the following passage from Yshwant Hari Katakkar case (supra).
Central Administrative Tribunal“It is contended that since the total service of the appellant was in quasi-permanent capacity he was not entitled to the pensionary benefit. There is nothing on the record to show as to why the appellant was not made permanent even when he had served the Government for 18 ½ years. It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not a permanent employee of the government. The appellant having served the Government for almost two decades it would be unfair to treat him as temporary/quasi-permanent. Keeping in view the facts and circumstances of the case we hold that the appellant shall be deemed to have become permanent after he served the Government for such a long period. The services of the appellant shall be treated to be in permanent capacity and he shall be entitled to the pensionary benefits.”
The case for the payment of family pension which is admissible in a situation of greater hardship ( death) of an employee stands on a better footing. Family pension involves a social need.
A Division Bench of this court in writ petition no. 38086 of 2006 Superintendent of Post Office & another Vs Central Administrative Tribunal & another decided on 8/9/2000 has taken the view that a contingency paid Chowkidar who was not regularised in service although he had put in about 20 years of service would be deemed to have been regularised for the purpose of payment of family pension. We are of the same view .
The considerations for grant of family pension are different from those for the grant of regular pension. Family pension meets a social need. It is keeping in view such spirit that even under Rule 54 of the Family Pension even one year of continuous service rendered by the deceased government servant is treated as sufficient for payment of family pension. In Prabhavati Devi Vs. Union of India, (1996) 7 SCC (Labour and Service) 369 it was held that the widow and children of a casual worker in the railways who had acquired the status of a substitute and was continuing as such for over a year followed by death would be entitled to family pension. In that case no doubt the court was considering the claim in the context of certain provisions of Railway Establishment Manual but it is apparent from the said decision that family pension was given even though the employee had not been regularized and was merely a substitute. So also in Smt. Mandodari Devi Vs. Union of India and another Writ Petition No. 34859 of 2003 decided on 25.1.2005 a Division Bench up held the order of the Central Administrative Tribunal granting family pension to the family of a Gang man who had attained temporary status and had died after screening for his regularization had taken place but before the panel of selected candidates could be declared. The Tribunal allowed the claim petition for family pension and this court up held the Tribunal's order.
In this case Lal Mani Shukla had put in 16 ½ years of Central Administrative Tribunalservice which include 5 years of service after acquiring temporary status. Considering such long length of service rendered by him we are of the view that he would be deemed to have been regularised and the petitioner was entitled to the payment of family pension. We accordingly allow this petition and set aside the order of the Central Administrative Tribunal dated 6.10.98 and allow the original application of the petitioner and direct the respondents to pay family pension to the petitioner.”
In the present matter, the applicant’s husband was engaged as casual labourer on 24.08.1976 and he obtained MRCL status on 30.01.1987 and he died in harness during service on 25.05.1996. Vide circular dated 03.09.1996, the Railway Board had given the directive to regularise all the casual labourers who were on roll as on 30.04.1996 by 1997-98. Thereafter, vide the letter dated 03.02.1999, it was directed that pursuant to the circular dated 03.09.1996, those casual labourers who were on roll as on 30.04.1996 but subsequently expired without having their services regularised should be deemed to have been regularized so that the widows/wards do not lose on any aspect such as settlement dues etc. The applicant was fully eligible for the family pension as such. However, later the letter dated 03.02.1999 was withdrawn vide letter dated 15.09.1999. Yet, it must be kept in mind that the directive of the Railway Board to regularise the casual laborers who were on roll as on 30.04.1996 remained operative till the letter dated 15.09.1999 was issued.
In my considered opinion and in view of the law laid down by the Hon’ble Allahabad High Court in the Bittan Devi Shukla(supra) case, the applicant’s husband will be deemed to have been regularized on the post. Even though the circular dated 15.09.1999 had withdrawn the circular on the basis of which the deceased causal labourers who were on roll as on 30.04.1996 were deemed to have been conferred the regular status, the entitlement of the applicant cannot be questioned as the applicant’s husband was on roll on 30.04.1996 of the casual labourers register. He died on 25.05.1996. Thus, benefit should be deemed to have been accrued to the family of the deceased casual labourers holding temporary status on the date of death being on roll on the said cut off date. The circular dated 15.09.1999 itself provides that the issue already settled before this cancellation letter need not be reviewed. Since a similar case came up for consideration before the Hon’ble Allahabad High Court after dismissal of an O.A. filed before this Tribunal in Bittan Devi Shukla (supra) case, Hon’ble Allahabad High Court referring to the family pension rules, other case laws as well as other aspects of the matter, has held that issue of pension to the MRCL having a temporary status is different aspect from the family pension to the dependent of the deceased MRCL. The facts of the present matter is squarely covered with the ratio of law laid down by Hon’ble Allahabad High Court in Bittan Devi Shukla (Supra) case and the applicant is entitled for family pension on the similar grounds.
Accordingly, the O.A. is allowed. The respondents are hereby directed to release the family pension (and also to pay the arrears thereof) in favour of the applicant within a period of three months from the date of receipt of a certified copy of this order.
All associated M.As. also stand disposed of. No order as to costs.