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PETITIONER: UNION OF INDIA ORS.

       Vs.

RESPONDENT: RABIA BIKANER ETC.

DATE OF JUDGMENT:       07/07/1997

BENCH: K. RAMASWAMY, D.P. WADHWA.

ACT:

HEADNOTE:

JUDGMENT:                           W I T H              CIVIL APPEAL NO 4374-4378 OF 1997 (Arising out  of SLP (C) Nos.7397, 7229, 9065, 9096 and 5731 of 1997)                          O R D E R      Leave granted.      The question  of law  that arises for determination is: whether  the   widow  of   a  casual   labourer  in  Railway Establishment, who died after putting in six month’s service and obtaining the status of a temporary post after screening is entitled  to family pension under the 1964 Family Pension Scheme? This  question was  considered by  a Bench  of  this Court in  Ram Kumar  vs. Union of India [(1988) 2 SCR 138 at 144] this Court hold held thus:      "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."      The Railway  Board in  its  letter  bearing  S.no.3214- Circular no.  720-E/O-IX (Pension)  dated October  26,  1965 after examining  the question,  had stated  that "the Family Pension Scheme for Railways employees, 1964 is applicable in the case  of Railways  employees, 1964  is applicable in the case of  regular  employees  on  pensionable  establishment. Since the  casual  labourers  will  be  brought  on  to  the pensionable establishment  only on  their absorption against regular temporary  posts, it  follows that  they  will  come

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under the  purview of  the scheme  from the  date  of  their absorption against  the regular  temporary posts.  In  other words, the benefits of the Family Pension Scheme for Railway Employees, 1964  will be  admissible in the case of death of such an  employee while in service, only if he had completed a minimum  period of  one year’s continuous service from the date he was adsorbed against a regular temporary post".      It  is   contended  by  the  learned  counsel  for  the respondent-widows  by   the  learned   counsel  that   under paragraph 2511-"Rights  and  Privileges  admissible  to  the casual  labourers   who  are   treated  as  temporary  after completion of  six  months  continuous  service"  -  of  the Railway pension.  We find it difficult to give acceptance to the contention.  It  is  seen  that  every  casual  labourer employed 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 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  circumstance,  the respondent-widows are  not eligible  to the  family  pension benefits.      The learned  counsel strongly  relied upon the judgment in Pradhavati  Devi vs.  Union of  India [(1996) 7 SCC 27 ]. Therein, the facts were that from the year 1981 to April 27, 1993, the  husband of  the appellant  had worked  as  casual worked  as   casual  worker   and  obtained  the  status  of substitute who  were  worker  and  obtained  the  status  of substitutes who  were working, as defined under Rule 2315 of the Railway Establishment Manual, in a regular establishment on a regular scale of pay and allowances applicable to those posts in  which they  were employed,  Since  he  died  while working in  the regular  post, his  widow became eligible to claim the  benefits of  the pension  scheme. Thus,  in  that case, the  appellant’s husband was a substitute working in a regular  scale   of  pay   in  the   railway  establishment. Obviously, he  was screened  and was  also appointed  to the temporary post,  he was treated as substitute went on leave. under these circumstances, this Court had held that widow of such employee  is entitled  to the  benefit  of  the  family pension. The  above  ratio  is  inapplicable  to  the  cases referred to  hereinbefore. The  question also was considered in a  recent judgment  of this  Court in  Union of India vs. Sukanti &  Anr. [SLP (C) No.3341/93 etc. decided on July 30, 1996] wherein  relying on  the ratiral benefit was available to the  widow of  the casual  labour of the who had not been regularised fill  his death.  Thus, we  hold that  the  view taken by  the Tribunals  in granting the pensionary benefits to the respondents is clearly illegal.      The appeals are accordingly allowed and the O.As. stand dismissed, but in the circumstances, without costs. However, if any amounts have already been paid pursuant to the orders of the Tribunal, the same may be recovered from them.

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