General Manager, North
West Railway &
Ors. Vs. Chanda Devi  Insc 1261 (12 December 2007)
Sinha & Harjit Singh Bedi
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 :
Interpretation of some of the provisions of the Indian Railway Establishment
Manual (hereinafter referred to as the Manual) 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.
fact of the matter is as under :
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 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 :
As a result of such deliberations, the Ministry of Railways have now decided in
principle that casual labour employed on projects (also known as project
casual labour) may be treated as temporary on completion of 360 days of
Ministry have decided further as under:
These orders will cover :
Casual labour on projects who are in service as on January 1, 1984 ; and
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.)
The decision should be implemented in phases according to the schedule given
below : 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.
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:- 1. 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.
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.
the following casual workers are eligible to be considered as temporary
employees but they will be appointed only after their selection by the
the said Office Order, the name of said Ram Niwas was shown at Serial No. 15
which reads as under:- S. No.
Date of Birth Date of first appoint ment Total Service days on 31.12.83 Date
for being considered Temporary employees * *** *** *** *** *** 15.
Singh Syotaaj Singh 07.03.56 08.11.79 707 01.01.86
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:
is regretted and informed that Shri Ram Niwas S/o Shyotaj Singh under CSI (C) Jaipur
expired on 29.12.88.
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. His wife filed
an application for grant of family pension. The said application was rejected
by an Order dated 23.4.2003 stating :
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.
Sr. D.P.O. Jaipur
Original application came to be filed by the first respondent before the
Central Administrative Tribunal questioning the validity of the said Rule.
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 :
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.
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 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 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 pensionable 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.
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
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.
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
Application Save as otherwise expressly provided in these rules, these rules
shall apply to the following railway servants, namely :-
Group D railway servant whose service was pensionable before the
introduction of Pension System for Railway Servants on the 16th day of
non-pensionable railway servants who was in service on the 16th day of
November, 1957 and who elected to be governed by these rules,
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
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.
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.
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 apprentices, Chapter XX
provides for casual labour.
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 Rules framed under
the proviso appended to Article 309 of the Constitution of India. Their
services are indisputably protected under Article 311(2) Maligaon, Pandu, etc.
AIR 1964 SC 600] 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.
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;
(i) Definition of Casual Labour 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.
conditions applicable to permanent and temporary staff do not apply to casual labour.
Rule 2002 lays down the rights and privileges admissible to casual labour
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, Workmens
Compensation Act, etc. or those specifically sanctioned by the Railway Board
from time to time.
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
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).—
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
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.
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.
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.
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.
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.
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
Boards 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).
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.
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
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).
The aforementioned Rule 2005 replaced an earlier Rule being Rule 251 occurring
in Chapter XXV of the previous publication which has inter 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 Yadavs case held;
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.
clarification was, however, subsequently made in Ram Kumar and The 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 Boards decision may be implemented.
Ram Kumar (supra) was followed by this Court in Union of India and 4. It
is contended by the learned counsel for the respondent-widows that under para
2511 Rights and Privileges admissible to the casual labourers who are
treated as temporary after completion of six months continuous
service 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.
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.
(i) Temporary Railway Servants Definition A temporary railway
servant 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 casual labour, including casual labour with
temporary status, a contract or part time employee or
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).
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.
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.
The Gujarat High Court in Rukhiben Rupabhai
(supra), no doubt on analyzing the scheme filed before this Court, opined :
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,
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.;
evidently the provisions of the Railway manual were not considered in their
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.
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.
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
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.
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
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.
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
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.
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.