Shyam Pyare Yadav v. Union Of India

Mr. P.K. Basu, Member (A) The applicants were appointed as casual workers in the respondent-organization between the period 1974 to 1978, granted temporary status from 1.01.1981 to 31.10.1989 and were subsequently regularized. Their prayer is that services rendered by them in the capacity of temporary status till regularization should be counted as 100% qualifying service for the purpose of pension and pensionary benefits as well as other benefits and based on the decision of the Honble Andhra Pradesh High Court in W.P. No.10837/2001, General Manager, South Central Railway, Rail Nilayam, Secunderabad, A.P. and another Vs. Shaik Abdul Khader decided on 23.06.2003, the services rendered by them as casual workers before granting temporary status should be counted as 50% qualifying service for grant of aforesaid benefits.

2. The applicants relied mainly on Shaik Abdul Khader (supra) judgment in which the Honble Court held that once a casual labour is granted the temporary status and later regularly absorbed in service, he is entitled to count full service for the period of temporary status till regularization for the purpose of pension and half of the service before the period of temporary service. In the cited case, the Honble Court had gone into Rule 31 of the Railway Services (Pension) Rules, 1993 along with para 20 of the Master Circular No.54 and para 2005 of the Indian Railway Establishment Manual, Volume-II and then come to the above conclusion. The applicant informed that the judgment in Abdul Khaders case was challenged in the Honble Supreme Court but later on the petition was withdrawn by the respondent-railways. The learned counsel also produced judgment of the Honble Supreme Court in Union of India and ors. Vs. Sarju, SLP No.20041/2008 where the Honble Supreme Court has upheld the principle laid down in Abdul Khader (supra). The Honble High Court of Delhi in WP ) no.5958/2007 and this Tribunal in OAs no. 1502/2005 and 2006/2006 also followed the judgment in the case of Abdul Khader (supra). Therefore, the applicants emphasize that in the background of the law settled in this regard, their prayer should be allowed.

3. The respondents first and foremost objection is on maintainability of this OA on the ground of limitation. It is submitted that Abdul Khaders judgment was delivered in 2003 and thereafter several other Writ Petitions have been disposed of upto March 2009 but the applicants slept over the matter and have now come before this Tribunal. It was also stated that neither the applicants have filed any petition for condonation of delay. On the question of delay, the respondents cited the following rulings to emphasize the point that the Honble Apex Court has, time and again, held that gross delay and laches should not be overlooked and if it is found that a party has approached the Court after a long delay, the same might disentitle it to the desired relief:

(i) Government of W.B. Vs. Tarun K. Roy and others, (2004) 1 SCC 347

(ii) A.P. Steel Re-rolling Mill Ltd. Vs. State of Kerala and others, (2007) 2 SCC 725

(iii) Bharat Sanchar Nigam Limited Vs. Ghanshyam Dass & ors., 2011 (1) S.L.J. 472

(iv) Ghulam Rasool Lone Vs. State of Jammu and Kashmir and another, (2009) 15 SCC 321

(v) Ramesh Chand Sharma Vs. Udham Singh Kamal and others, 2000 SCC (L&S) 53

(vi) New Delhi Municipal Council Vs. Pan Singh and others, (2007) 9 SCC 278 The respondents further relied on Para 2005 (a and b) of IREM and the railway Boards instructions according to which only 50% of temporary status service can be counted for the purpose of pensionary benefits and for granting ACP. It was stated that the Honble Courts have failed to take into consideration clause (b) of Para 2005 of the IREM which states as follows: b) Such casual labour, who acquire temporary status, will not, however, be brought on 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.

4. Our attention was also drawn to RBE 69/2004 dated 31.03.2004 (Annexure R-1) in which it has been decided as follows: The matter has been examined and it has been decided that 50% of temporary status casual service on absorption in regular employment may be taken into account towards the minimum service of 12/24 years for the grant of benefit under the ACP Scheme on the analogy that the same is also reckoned as qualifying service for pension.

5. We have heard both the sides.

6. On the question of limitation, the applicants explained that several judgments of the Courts were received upto 2009. The applicants then preferred representation dated 16.09.2012 before the respondents but with no response. Thereafter, they filed the present OA. In any case, several orders of the Honble Courts were under challenge in the Honble Supreme Court in UOI Vs. Sarju (supra) and finally the Honble Supreme Court disposed of the matter only in 2012. Therefore, we do not find that there has been any delay. This was an issue which was affecting large number of employees and it was only reasonable for them to wait till the matter is decided by the Honble Courts and now there are several judgments in favour of the petitioners.

7. The OA is, therefore, allowed and the respondents are directed to count the services rendered by the applicants in the capacity of temporary status till regularization as a 100% qualifying service for the purpose of pension and pensionary benefits as well as other benefits. They are further directed to extend the benefits of judgment of Sheikh Abdul Khader as well as other judgments delivered by the Tribunal for the purpose of counting 50% of the service rendered by the applicants before granting temporary status as well. The aforesaid directions shall be implemented within a period of three months from the receipt of a certified copy of this order. No costs. ( P.K.Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/