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CASE NO.: Appeal (civil)  5833 of 2007

PETITIONER: General Manager, North West Railway & Ors.

RESPONDENT: Chanda Devi

DATE OF JUDGMENT: 12/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising 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 :

       Leave granted.

1.  Interpretation of some of the provisions of the Indian Railway  Establishment Manual (hereinafter referred to as \023the Manual\024) 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. 2.      The fact of the matter is as under :       Smt. Santosh, 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  Inder Pal Yadav and Others Vs Union of India and Others [(1985) 2 SCC  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 : \0235.1.   As a result of such deliberations, the Ministry of  Railways have now decided in principle that casual  labour employed on projects (also known as \021project  casual labour\022) may be treated as temporary on  completion of 360 days of continuous employment.   The Ministry have decided further as under:

(a)  These orders will cover :

(i)  Casual labour on projects who are in service as on  January 1, 1984 ; and

(ii) 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.)

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(b)  The decision should be implemented in phases  according to the schedule given below :\024

       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.   3.      The 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:- \0231.  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.

2.   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.   Therefore, the following casual workers are eligible to be  considered as temporary employees but they will be  appointed only after their selection by the selection  committee.\024

4.      In the said Office Order, the name of said Ram Niwas was shown at  Serial No. 15 which reads as under:- \023S. No.  Name Date of  Birth Date of  first  appoint ment Total  Service  days on  31.12.83 Date for  being  considered  Temporary  employees * *** *** *** *** *** 15. Ramniwas  Singh  Syotaaj Singh 07.03.56 08.11.79 707 01.01.86\024

5.      By 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: \023It is regretted and informed that Shri Ram Niwas

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S/o Shyotaj Singh under CSI (C) Jaipur expired on  29.12.88.

The 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.\024

       His wife filed an application for grant of family pension.  The said  application was rejected by an Order dated 23.4.2003 stating :      \023Ref:   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.            For information please.                                                          Sd/-                                         Sr. D.P.O.                                          Jaipur\024       

6.      Original application came to be filed by the first respondent before the  Central Administrative Tribunal questioning the validity of the said Rule.   The 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 : \023The 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.\024

7.      Mr. 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

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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  Vs. Union of India and Others  [1988 (1) SCC 306] as also its review order  reported in Ram Kumar Vs. Union of India and Ors. [1996 (1) SLJ 116] and  Union of India and Others Vs. Rabia Bikaner and Others [(1997) 6 SCC  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 \023pensionable\024 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.   8.      Mr. 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 stand.   

9.      We, 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.   The 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 : \0232.   Application \026 Save as otherwise expressly provided in  these rules, these rules shall apply to the following  railway servants, namely :-

(1)     any Group \021D\022 railway servant whose service was  pensionable before the introduction of Pension  System for Railway Servants on the 16th day of  November, 1957;

(2)     any non-pensionable railway servants who was in  service on the 16th day of November, 1957 and  who elected to be governed by these rules,

(3)     any 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

(4)     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.\024

10.     A 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.   11.     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 \021apprentices\022,  Chapter XX provides for \021casual labour\022.   12.     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

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Rules framed under the proviso appended to Article 309 of the Constitution  of India.  Their services are indisputably protected under Article 311(2)  thereof.  [See Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways,  Maligaon, Pandu, etc. AIR 1964 SC 600]

13.     In Khem Chand Vs. Union of India and Others [AIR 1958 SC 300],  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.

14.     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; \0232001. (i)  Definition of Casual Labour \026 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.   The conditions applicable to permanent and  temporary staff do not apply to casual labour.\024

15.     Rule 2002 lays down the rights and privileges admissible to casual  labour stating; \0232002.  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, Workmen\022s Compensation Act, etc. or those  specifically sanctioned by the Railway Board from time  to time.\024

16.     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 following terms; 2005.   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).--(a) 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 Manual.   The 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.   This 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.

         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

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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.

(b)     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.   Subject 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.

(c)     No 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 Board\022s 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).

(d)     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.

(e)     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  (1985 Edition).

A 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).

17.     The aforementioned Rule 2005 replaced an earlier Rule being Rule  251 occurring in Chapter XXV of the previous publication which has inter

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alia been noticed by this Court in Ram Kumar and Others Vs. Union of India  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 Yadav\022s case held; \02312.    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.\024

18.     A clarification was, however, subsequently made in Ram Kumar and  Others Vs. Union of India and Others  [1988 (1) SCC 306], stating; \023The 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 Board\022s decision may be implemented.\024

19.     Ram Kumar (supra) was followed by this Court in Union of India and  Others Vs. Rabia Bikaner and Ors. [1997 (6) SCC 580] stating : \0234.  It is contended by the learned counsel for the  respondent-widows that under para 2511 \026 \023Rights and  Privileges admissible to the casual labourers who are  treated as temporary after completion of six months\022  continuous service\024 \026 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.\024

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20.     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. \0231501 (i) Temporary Railway Servants Definition \026 A \023temporary railway servant\024 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 \023casual  labour\024, including \021casual labour with temporary status\022,  a \023contract\024 or \023part time\024 employee or an \023apprentice\024.\024

21.     We 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).    However, 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.   22.     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. 23.     The Gujarat High Court in Rukhiben Rupabhai (supra), no doubt on  analyzing the scheme filed before this Court, opined : \02332. 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, (1) permanent, (2)  temporary (3) casual labour and (4) 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.\024;

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    but evidently the provisions of the Railway manual were not  considered in their proper perspective.         What 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.   This 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. 24.     In 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 nature.  25.     Mala 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.          26.     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  Union, Trivandrum Division Vs. General manager, Souther Railway and  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.          27.     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 entitled to.   28.     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.    29.     For 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.