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CASE NO.: Appeal (civil)  4502 of 2005

PETITIONER: Union of India & Ors.    

RESPONDENT: Kamla Devi                       

DATE OF JUDGMENT: 22/07/2005

BENCH: RUMA PAL & DR. AR. LAKSHMANAN

JUDGMENT: JUDGMENT

O R D E R (Arising out of SLP(C) No. 24145 of 2004)

                                Leave granted.                 The respondent’s husband was a  canteen employee.  He was appointed on Ist  December 1979.  On 12.7.1990 he retired on  medical grounds.  In the meanwhile, the  Government had issued a Notification on  11.12.1979 by which with effect from 1.10.1979  the Government would treat all posts in  canteen and tiffin rooms run departmentally by  the Government of India as civil posts.  It  was made clear by Notification dated  11.12.1979 that all present and future  incumbents of the posts would qualify as  holders of Civil posts under the Central  Government and that necessary rules governing  their conditions of service would be framed  under proviso to Art.309 of the Constitution  of India to have retrospective effect from  first day of October, 1979.         The workers of the canteens then filed  proceedings under Art.32 before this Court for  enforcement of their rights claiming inter  alia parity with Railway employees. The  workers of three classes of canteens were the  claimants viz.(i) Statutory canteens (ii) Non- statutory recognized canteens and (iii) non- statutory non-recognized canteens.

-2-         The issue as to whether all the canteen  employees should be treated as Railway  employees and whether all service conditions  be extended to them which are available to  Railway employees was decided by this Court in  M.M.R.Khan & Others vs. Union of India & Ors.  reported in 1990 (Supp.) SCC 191.  This Court  held that the relationship of employer and  employee has been created between the Railway  Administration and the canteen employees from  the very inception and that it would not be  gainsaid that for the purposes of the

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Factories Act, the employees in the statutory  canteen were the employees of the Railway.  It  was noted that the Railway Board had already  treated the employees of all statutory and  eleven daily basis non-statutory recognised  canteens as Railway employees with effect from  October 27, 1980.  However, the Court went on  to say that the employees of the other non- statutory recognised canteens would, however,  be treated as Railway employees with effect  from Ist April 1990, and that they would be  extended all the benefits as such Railway  employees with effect from that date,  according to the service conditions prescribed  for them under the relevant rules and orders.   The claim of the non-statutory non-recognized  canteen workers was negatived.         The husband of the respondent together with  other employees of non-statutory recognized  canteens filed writ petitions in which similar  reliefs as  

-3- were considered and granted in M.M.R. Khan’s  case were prayed for.  The Court disposed of  the writ petition by the following order on  11.10.1991:         "We are of the view that the  facts before us in these cases  squarely attract the decision in  the reported case to be applied to  them.  In that view of the matter,  we allow the Writ Petitions for the  reasons indicated in the said  Judgement and direct the benefits  to be given to the Petitioners in  the following way.         By an interim order dated  26.9.1983 certain reliefs had been  granted.  In respect of the reliefs  already granted  this order shall  be deemed to be operative from that  date.  In case any further benefits  are admissible, those will be  admissible from 1.10.1991.

       For the purpose of calculation of  pension service from the date of  the interlocutory order shall be  counted.

       By the interim order dated 22.9.1983  referred to in the body of the quotation  above, a direction was given given to the  effect that pending hearing and disposal of  the writ petitions, including the petition  wherein the respondent’s husband was a party,  all employees of non-statutory recognized  canteens would be paid at the same rate and on  the same basis on which employees of statutory

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canteens were being paid.                On the application of the Union of India for  clarification of the order dated 11.10.1991,  quoted earlier, on 10th August 1993 this Court  passed the following order:

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       "The learned Additional Solicitor  General appearing for Union of India  states that the pension will be given  to all those who retired after  1.10.1991.  However, for the purpose  calculating the pension their  services on and from 26.9.83 be taken  into consideration.  In case of those  whose service falls short of the  qualifying period, the service  rendered them prior to 26.9.83 will  be taken into consideration to extent  of the short fall.  On these  clarifications we find that there is  nothing further to be done in the  matter. It is disposed of  accordingly."

       Admittedly, the respondent’s husband had  retired before 11.10.1991.  Indeed, he had  died on 28.3.1991. In 1994, the Federation of  All India Central Government Canteens  Employees Association filed another writ  petition in which it appears that the  petitioners had asked for a change of the cut  off date as fixed by the order dated  10.8.1993.  The writ petition was dismissed  but this Court said that  the dismissal would not preclude the  Federation from approaching the High Court or  the Central Administrative Tribunal whichever  had the jurisdiction.  In other words, the  order dated 10th August 1993 was not  interfered with.         Taking a cue from this order, the canteen  workers sought to reopen the issue of the cut  off date before the Central Administrative  Tribunal. The respondent’s husband filed an  independent application before the Central  Administrative Tribunal. The CAT directed the  Union of India to  

-5- grant the benefits of the entire period of  service prior to the applicants having been  declared as Government Servants for counting  towards pensionary benefits. The respondent’s  husband sought to contend that the benefits of  the Tribunal’s order should also be made  available in respect of persons when they

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retired prior to the cut off  date i.e. prior  to 11.10.1991.  This was allowed by the  Tribunal.  The Union of India preferred a writ  petition. The writ petition was dismissed.   Challenging this order the appellants have  approached this Court.         We are of the view that the issue as far as  cut-off date of classification of non- statutory canteen employees is concerned, it  must be taken to have been concluded by the  order dated 10.8.1993 passed by this Court.   It was not open to the respondent to seek  variation of the same either before the CAT or  the High Court.  The order dated 10th August  1993 has attained finality and there can be no  dispute as to the language of the order. The  respondent could not reopen the issue.  In  this view of the matter, the decisions of the  courts below are set aside and the appeal is  allowed.  We are making it clear that this  decision will not affect the proceedings said  to be pending before the CAT on the  application of the Federation dated 3.12.1999  in any manner.