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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: DR.BALIAR SINGH

DATE OF JUDGMENT:       25/11/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 25TH DAY OF NOVEMBER, 1997 Present:                Hon’ble Mrs.Justice Sujata V.Manohar                Hon’ble Mr.Justice D.P.Wadhwa A.S.Nambiar, Sr.Adv.,  (Ms.Kanupriya Mittal, Ms.Sushma Suri) Ads. for Arvind Kr.Sharma, Adv. with him for the appellants. Janaranjan Das, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: Mrs. Sujata V. Manohar, J.      Delay Condoned.      Leave granted.      The respondent initially served under the Government of Orissa from  14.4.1962 to  11.5.1972. Thereafter  he  served with  the   Government  of   Chandigarh  from  15.5.1972  to 29.12.75.  The   respondent  joined  the  railways  and  was appointed as  plastic surgeon  at Byculla  Hospital, Central Railway, on  31.12.1975. He  sought voluntary retirement and was allowed  to voluntarily retire from his service with the Central Railway  on  1.4.1987.  He  would  have  retired  on superannuation on  26.11.1991. The respondent thus served as followed: ------------------------------------------------------------ S.No.     SERVICE RENDERED WITH     YEARS     MONTHS   DAYS ------------------------------------------------------------ 1.        Service rendered in     10 years     0        28           Government of Orissa ------------------------------------------------------------ 2.        Service rendered in      3 years     7        14           the Government of           Chandigarh ------------------------------------------------------------ 3.        Service rendered in      11 years    2        9           the Railways ------------------------------------------------------------           Total                    24          10       21 ------------------------------------------------------------      Prior to  his voluntary  retirement, he  had  sought  a clarification as  to whether  his  past  services  with  the Government of  Orissa and the Government of Chandigarh would

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court for the purpose of pensionary benefits. By order dated 29.5.1985, the  appellants informed  the respondent that his past services  with the Governments of Orissa and Chandigarh would count as qualifying service to pensionary benefits. He would also  get an additional five years’ service on account of voluntary  retirement; and  as a result his total service for pensionary  benefits would  be 29 years, !1 months and 9 days.      The  respondent   was  accordingly  granted  retirement benefits. He has, however, been denied complimentary railway passes on retirement on the ground that his service with the railways   was of  less than  20 years  and hence he was not eligible for complimentary railway passes on retirement. The respondent moved  the  Central  Administrative  Tribunal  by filing O.A.No.530  of 1996 claiming a right to complimentary railway passes.  His application  has been  allowed  by  the Central Administration  Tribunal, Bombay  Bench, Hence,  the Union of India through the General Manager, Central Railway, has filed the present appeal.      Under Railway Services Pension Rules, Chapter III deals with qualifying  service. Under  Rule 22,  the service  of a railway servant  which shall qualify for pensionary benefits includes, inter  alia, service  rendered under  the  Central Government in  a Civil  Ministry or Department or a civilian employee  under   the  Ministry  of  Defence  including  the Ordanance Factories,  or a  state Government before transfer to railways.  In accordance  with the provisions of Rule 27, such service  will count for the purpose of pension. Rule 27 prescribes the  detail  of  such  counting  of  service  for various kinds  of pensionary  benefits. Th  e respondent has been given the benefit of counting his previous service with the State  of Orissa  sand with the Government of Chandigarh as qualifying  service for  the purpose  of  his  retirement benefits under  the said  Pension Rules. Under the Scheme of voluntary Retirement  for railway  employees which  has been set out  in the Railway Board’s letter dated 9.11.1977 it si provided that  in respect of those employees who are allowed to retire  voluntarily  under  the  terms  of  that  scheme, weightage of  upto five  years would be given as an addition to the  qualifying service  in the  case of  those  who  are governed  by   Railway  Pension   Rules.  Accordingly,   the respondent has  also been  given an  addition of five years’ service for the purpose of his retirement benefits.      It is the contention of the respondent that the service which has  been counted  as a part of his qualifying service and the  weightage of  five years’  service which  has  been given to  him on account of his voluntary retirement, should also be  taken into  account for  the purpose  of giving him complimentary railway passes after retirement. The Rules for grant  of  complimentary  railway  passes  are,  however,  a completely different set of Rules unconnected with the Rules relating to pension or voluntary retirement. Railway Servant (Pass) Rules,  1986, have  been framed  in exercise of power conferred by  the proviso to Article 309 of the Constitution and they  were in  force at  the time  when  the  respondent retired. These  Rules have  undergone several amendments. At the  time   when  the   respondent  retired,   the  relevant provisions of  Railway Servant  (Pass) Rules,  1986 were  as follows:      "Rule 8: Post-retirement Pass:-      (1) A  post-retirement pass  may be      issued to  a railway  servant after      retirement of after he ceases to be      a railway servant.      (2)   The   category   of   railway

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    servants, the circumstances and the      conditions subject  to which a pass      under sub-rule  (1) may  be  issued      shall be  as specified  in Schedule      IV.      Schedule   IV    which   deals   with   post-retirement complimentary pass is as follows: ----------------------------------------------------------- Category              Number of  Conditions for   Other                       passes     issue of post-   facilities                       admissi-   retirement                       ble in     complimentary                       one year   pass ------------------------------------------------------------ Groups:               2 sets     .....            ..... A & B (a) With 20 years service on Railways and above but less than 25 years. ------------------------------------------------------------ (b) With 25 years     3 sets     .....            ...... service on Rail- ways and above ------------------------------------------------------------ C                     1 set      .....            ...... (a) With 20 years service in the Railways and above but less than 25 years. ------------------------------------------------------------ (b) With 25 years     2 sets     ....             ...... service with Railways and above ------------------------------------------------------------ D                     1 set, in  .....            ...... (a) With 25 years     alternate services in           years Railways and above ------------------------------------------------------------ (b) Less than 25      NIL years Services ------------------------------------------------------------      Under Schedule  IV the  category  of  persons  who  are eligible for  post-retirement complimentary pass consists of those with 20 years of service on railway and above but less than 25  years or  with 25  years of service on railways and above. Each of the categories must have the specified number of years’  service on railways. There is no provision in the Railway Servant  (Pass) Rules,  1986 for counting service in any other  organisation, the State Government or the Central Government for  the purpose  of railway  passes. a  railways servant under  the Railway  Servant (Pass)  Rules,  1986  is defined under Rule 2(h) to mean "a person who is a member of the service or holds a post under the administrative control of Railway Board and includes a person who holds post in the Railway Board. Persons lent from a service or a pst which is not under the administrative control of the Railway Board to a service or post which is under such administrative control do not  come within  the scope  of  this  definition......". Under the  Railway Servant  (Pass) Rules,  1986 the  service

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which is  counted for  the purpose of grant of complimentary passes on  retirement of a railway servant is service on the railways  alone.  The  respondent  who  had  served  in  the railways only  for 11 years, 2 months and 9 days, therefore, pass not  qualify for  complimentary railway  on  retirement since he  has to  his credit railway service of less than 20 years.      The respondent  contended that  the weightage  of  five years’ service  given to persons retiring voluntarily should also be  given for  the purposes  of  complementary  railway passes after  retirement. He  has  drawn  our  attention  to clause 9  of the  Railway Board  letter of  9.11.1977  which provides that  the weightage  of five  years given  year the voluntary  retirement   scheme  will   count  towards  post- retirement passes. Unfortunately for the respondent, even if he is  given weightage  of five years, his 11 years’ service with the  railways become  sixteen years’  service. He still ralls short  of 20  years’. service which is required before he can obtain complimentary railway passes after retirement.      The Tribunal  has relied  heavily upon  a  judgment  of Central Administrative  Tribunal, Jodhpur  Bench in the case of Jagdishwer  Bhatt v.  Union of  Indra ([1996]  34 ATC 92) which was  a similar case of a Divisional Medical Officer in the railway  who retired  without  completing  20  years  of service in  the railways. While the Tribunal had granted him the benefit  of complimentary  passes after  retirement,  in appeal, this Court by its judgment and order dated 24.2.1997 (S.L.P.(C) NO.21339/96,  Union of India v. Jagdishwer Bhatt) has set aside the order of the Tribunal. This Court had held that it  is ncessary  to have  a minimum  20 years of actual service in  the  railways  before  a  person  qualified  for complimentary passes  on retirement.  It has  held that  the extension of  length of  service on the basis of Rule 2423-A (C.S.R. 404-P)  for the purpose of superannuation pension is not available  for counting  service  in  the  railways  for obtaining complimentary  passes after  retirement.  What  is required to  be counted  is actual  service in the railways. Far from  helping the  respondent this judgment supports the view which  we have  taken. The  provisions of  other  Rules cannot be  imported into  Railway Servant (Pass) Rules, 1986 unless these  Rules so  provide or  unless any  of the other Rules so provide.      It was  also contended  by the  respondent that Railway Servant (Pass)  Rules, 1986  were not  in existence  when he joined the  railways and,  therefore, these  Rules cannot be applied to  him. However,  when a pension joins a Government service such  as the  railways, he  knows that  his  service conditions are  liable to  change  either  by  amendment  or addition  of   statutory  Rules   and  other  administrative instruction. He  will be government by the Rules in force at the time  when he  retires. He  acquires no vested rights by reason of  the Rules which were in force at the time when he joined the Government services.      The respondent also contended that in the case of other officers who have retired with less than 20 years of railway service, the Railway Board had relaxed the Rules in order to grant complimentary  railway passes  to these officers after retirement. His  case was also similarly recommended but the Railway Board has declined to relax the Rules in his favour. Looking to  the Railway  Servant (Pass) Rules, 1986, and the actual years  of service rendered by the respondent with the railways, this is not a fit case where one can recommend any relaxation of  Rules by  the Railway Board assuming that the Railway Board  has such  power to  relax the  Rules. Learned counsel for the appellants has stated before us that in view

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of the  fact that  the respondent took voluntary retirement, and  the   railways  lost  many  years  of  service  of  the respondent, the  Railway Board  did not  consider this a fit case for  relaxation of  Fuels. The  respondent who  retired voluntarily on  1.4.1987 would have otherwise retired in the year 1991.  The Railway Board applied is mind to the request and has  refused to  exercise its  discretion,  even  if  we assume that  the Railway  Board had  the power  to relax the Rules. Hence this submission also has no merit.      The appeal  is, therefore,  allowed  and  the  impugned order of the Tribunal is set aside. The application filed by the respondent before the Tribunal is dismissed. There will, however, be no order as to costs.