Kumar & Ors Vs. Union of India & Ors  INSC 357 (2 December 1987)
RANGNATH MISRA RANGNATH OZA, G.L. (J) CITATION: 1987 SCALE (2)1192
Railway Establishment Manual-Para 2511-Casual labour employed by Railway
Administration-Engaged on construction and open line-Whether entitled to same
pay- Regularisation and grant of temporary status to casual labour-Necessity
for-Effective implementation of provisions for protection of casual labour-Emphasised-Retiral
benefits- Admissibility of.
The petitioners, who were engaged on terms of casual labour for periods varying
between 10 and 16 years in the Construction Department of the Signal Unit in
the Northern Railway, filed writ petitions in this Court alleging that though
they had put in continuous service for quite a long period, the Railway
Administration-the respondent, had not treated them as temporary servants and
had applied discriminatory rates of wages, and prayed for a direction to treat
them at par with maintenance workers, and to declare that they were entitled to
equal pay for equal work and absorption in the regular cadre in The permanent
category as per the circulars issued by the respondents.
respondents in their counter affidavits contested the claim of the petitioners
contending that out of the forty four petitioners, sixteen bad been empanelled,
five of whom had been given temporary appointments, eleven had refused to join
and seventeen had been given temporary status, and that by the Railway Board's
directions on January 1, 1984, project casual labourers were now entitled to
all privileges that were applicable to open line temporary railway servants,
that temporary status will first be given in the cadre of Khallasis and then
promotion to skilled category, after conducting trade test, and that the
employees in the open line acquired temporary status on completion of 120 days
of service whereas such status was acquired by the casual labour in project
work on completion of 360 days as formulated under orders of this Court.
of the writ petitions, ^
Casual labour seems to be the requirement of the Railway 139 administration and
cannot be avoided. The Railway Establishment A Manual has made provisions for
their protection, but implementation is not effected. Several instructions were
issued by the Railway Board and the Northern Railway Headquarters to remove the
difficulties faced by the casual labour but there is slackness in enforcing
them. This Court hopes and trusts that such an unfortunate situation will not
arise again and in the event of any such allegation coming to the Court, the
Administration will have to be blamed. [144F-G] No doubt, the petitioners have
put in more than 360 days of service. But keeping the prevailing practice,
distinction between the casual labour employed in the open line, and in the
project line cannot be obliterated. [141D- F] The Railway Administration should
take prompt steps to screen such of the petitioners who have not yet been
tested for the purpose of regularising their services. [144C] the respondents
are directed to consider the claims of the petitioners promptly and make
appropriate orders for their regularisation. [144D-E] The petitioners are
entitled to the same pay as is admissible to others, either in the project or
in the open line. Retiral benefit of pension is not admissible.[144D,B]
Writ Petition Nos. 15863-15906 of 1984.
Article 32 of the Constitution of India) D.N. Goburdhan, D. Goburdhan, Ms. Gita
Luthra and Ms. Pinky Anand for the Petitioners.
Ramaswamy, Additional Solicitor General, Kuldeep Singh, Additional Solicitor
General, C. Ramesh and Mrs.
Suri for the Respondents. G The Judgment of the Court was delivered by RANGANATH
MISRA, J. The petitioner in each of these applications under Article 32 of the
Constitution is a workman engaged on terms of casual labour for periods varying
between 10 140 and 16 years in the Construction Department of the Signal Unit
in the Northern Railway. All the writ petitions having disposed of by a common
judgment as questions of law and fact involved therein are similar.
petitioners alleged that notwithstanding the fact that each of them has put in
continuous service for quite a long period, the Railway Administration,
respondent herein, has not treated them as temporary servants and has applied
discriminatory rates of wages. They have asked for a direction to treat the
petitioners at par with maintenance workers and to declare that they are
entitled to equal pay for equal work and have asked for their absorption in the
regular cadre in the permanent category as per the circulars issued by the
respondents. A number of documents and circulars issued by the Administration
have been produced in support of their claim.
Senior Signal & Telecom Engineer (Power Signalling) has filed a
counter-affidavit on behalf of the respondents challenging the claim of the
petitioners. According to the respondents five out of the forty-four petitioners
in this group of writ petitions had undergone medical examination and were
granted temporary status as Khallasis. One of them has been directed to be
absorbed against a permanent vacancy in the open line; five others have refused
to go to the open line for permanent absorption. He further averred that though
prior to the issue of the Railway Board's directions on January 1, 1984,
project casual labourers were not entitled to all the privileges like House
Rent Allowance, City Compensatory Allowance, Casual Leave, increment etc., they
are now entitled to all the privileges as applicable to open line temporary
railway servants after attaining temporary status. In Paragraph 23 of the
counter-affidavit, it has been specifically pleaded that as per the extant rules,
temporary status will first be given in the cadre of Khallasi and then
promotion to skilled category after conducting the trade-test is admissible. A
further detailed counter-affidavit has again been filed by another Senior
Signal & Telecom Engineer, wherein along with the affidavit particulars of
service of each of the petitioners has been provided. Petitioners have filed a
the hearing of the applications, counsel for the petitioners as also the
learned Additionaly Solicitor General were given full opportunity of placing
their arguments and documents. In addition, they have also furnished written
It is stated on behalf of the Administration that out of forty four petitioners
sixteen have now been empanelled and of them five have been given temporary
are said to have refused to join and seventeen are still continuing with
temporary status. Learned Additional Solicitor General states that petitioners
are project employees and do not belong to the open line. According to him-
employees in the open line acquire temporary status on completion of 120 days
of service as against 180 days which was the previous requirement. That status
is acquired on completion of 360 days by casual labour in Project Works as
provided in the scheme formulated under orders of this Court, though such
status were acquirable by project casual labourers on completion of 180 days of
continuous employment previously. Learned counsel for the respondents has
placed reliance on the definition of 'Project' which means: "a project
should be taken as construction of new lines, major projects, restoration of
dismantled lines and major important open line works, line doubling, widening
of tunnels etc. which are completed within a definite time limit".
the petitioners have put in more than 360 days of service. Though counsel for
the petitioners had pointed out that the Administration was requiring
continuous service for purpose of eligibility, learned Additional Solicitor
General on instructions obtained from the Railway officers present in Court
during arguments has clarified that continuity is not insisted upon and though
there is break in such continuity the previous service is also taken into
account. Learned Additional Solicitor General has made a categorical statement
before us that once temporary status is acquired, casual employees of both
categories stand at par. Keeping the prevailing practice in the Railways in
view, it is difficult for us to obliterate the distinction between the two
categories of employees till temporary status is acquired.
the acquisition of temporary status the casual labourers are entitled to:
Termination of service and period of notice (subject to the provisions of the
Industrial Disputes Act, 1947).
Scales of pay.
Compensatory and local allowances.
(4) Medical attendance (5) Leave rules.
Provident Fund and terminal gratuity.
Allotment of railway accommodation and recovery of rent.
Any other benefit specifically authorised by the Ministry of Railways.
is not disputed that the benefit of Discipline and Appeal Rules is also
applicable to casual labour with temporary status. It is also conceded that on
eventual absorption in regular employment half the service rendered with
temporary status is counted as qualifying service for pensionary benefits.
the Signal and Telecom Construction organisation under which the petitioners
are working, according to the Railway Administration further privileges of
being regularised in permanent service is afforded by giving them access to
their regularisation against permanent vacancies which mostly occur in open
line. For such purpose, casual labour in open line as well as willing project
casual labour are combined for the purpose of screening and forming of panel on
the basis of seniority depending upon the days of work put in. In view of the
submission, learned counsel for the respondents has pleaded that the allegation
of discrimination does not exist.
arising out of termination of employment and inter se seniority came before
this Court in the Writ Petition No. 147 of 1983 (Inderpal Yadav & Ors v.
Union of India. This Court changed the existing prevalent practice for
reckoning seniority and directed that seniority of project casual labourers
should be combined and prepared department wise and category wise and in terms
of the directions of this Court, steps have been taken. It has been further
contended that by the time these writ petitions were filed, the Railway,
Board's order of 1st of June, 1984, had not been given but with those
directions now holding the field; the ambit of grievances has been very much
Additional Solicitor General has gone 143 to the extent of even saying that
nothing survives in the writ petitions.
exactly are the benefits admissible to temporary railway servants have,
however, been seriously debated.
2511 of the Indian Railway Establishment Manual provides:- (a) "Casual labour
treated as temporary are entitled to all the rights and privileges admissible
to temporary railway servants as laid down in Chapter XXIII of the Indian
Railway Establishment Manual. The rights and privileges admissible to such
labour also include the benefits of the Discipline and Appeal Rules. Their
service, prior to the date of completion of six months' continuous service will
not, however, court for any purposes like reckoning of retirement benefits,
seniority etc. Such casual labourers will, also, be allowed to carry forward
the leave at their credit to the new post on absorption in regulation service.
Such casual labour that acquire temporary status, will not, however, be brought
on to the permanent establishment unless they are selected through regular
Selection Boards for Class IV staff. They will have a prior claim over others
to permanent recruitment and they will be considered for regular employment
without having to go through employment exchanges. Such of them who join as
casual labourers before attaining the age of 25 years may be allowed relaxation
of the maximum age limit prescribed for Class IV posts to the extent of their
total service which may be either continuous or in broken periods.
It is not necessary to create temporary posts to accommodate casual labourers
who acquire temporary status for the conferment of attendant benefits like
regular scales of pay, increments etc. Service prior to the absorption against
a regular temporary/permanent post after requisite selection will, however not
constitute as qualifying service for pensionary benefits." 144 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 retiral benefit of pension is not
admissible to either category of employees.
already stated, sixteen out of the forty-four petitioners have already been
empanelled and eleven seem to have joined, while seventeen are continuing on
temporary status. We expect the Railway Administration to take prompt steps to
screen such of the petitioners who have not yet been tested for the purpose of
regularising their service.
Additional Solicitor General specifically accepted the position that the
petitioners should be entitled to the same pay as is 1) admissible to others
either in the project or in the open line. That would take away inequality
which is main grievance of the petitioners.
respondents shall have a direction to consider the claims of each of the
petitioners promptly and make appropriate orders for their regularisation.
over ten years, litigations of this type have been coming to the Court. About
three years back, this Court directed a scheme for absorption in Yadav's case
which has been framed and is operative. Casual labour seems to be the
requirement of the Railway Administration and cannot be avoided. The Railway
Establishment Manual has made provisions for their protection but
implementation is not P effective. Several instructions issued by the Railway
Board and the Northern Railway Headquarters were placed before us to show that
the Administration is anxious to take appropriate steps to remove the
difficulties faced by the casual labour but there is perhaps slackness in
enforcing them. We hope and trust that such an unfortunate situation will not
arise again and in the event any such allegation coming to the Court, obviously
the Administration will have to be blamed.
writ petitions are disposed of with the directions indicated above without any
order for costs.
Petitions disposed of.