Union of India and others Versus Munshi Ram
Union of India and others Versus Munshi Ram
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2811 OF 2022
(Arising from S.L.P(Civil) No. 6526/2022 @
Diary No. 27620/2020
Union of India and others …Appellants
Versus
Munshi Ram …Respondent
WITH
CIVIL APPEAL NO. 2812 OF 2022
(Arising from S.L.P(Civil) No.6530/2022 @
Diary No. 27618/2020
CIVIL APPEAL NO. 2813 OF 2022
(Arising from S.L.P(Civil) No.6531/2022 @
Diary No. 27616/2020
CIVIL APPEAL NOS. 2814-2815 OF 2022
(Arising from S.L.P(Civil) Nos. 5043-5044/2022
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 21.11.2019 passed by the High Court of Delhi
at New Delhi in Writ Petition (Civil) No. 4535/2019 and other allied writ
petitions, by which the High Court has allowed the said writ petitions
preferred by the respective private respondents herein and has set aside
the orders passed by the Central Administrative Tribunal and thereafter
1
directed the appellants – Northern Railway to count 50% of their service
as Commission Vendors, prior to their absorption, as “qualifying service”
for grant of pensionary benefits, the Union of India (Northern Railway)
and others have preferred the present appeals.
2. Catering service in Northern Railways prior to 1955 were being
managed through private contractors. Subsequently, the departmental
catering and vending services were started and the erstwhile staff of the
private contractors was taken as Commission Vendors. All Commission
Vendors were paid commission on sales turn over achieved by them
instead of paying regular salaries. Thereafter, a memorandum dated
13.12.1976 was issued by the Railway Board suggesting that the
Commission Vendors may be absorbed as Railway Employees. It was
stated therein that action would be taken to progressively absorb the
Commission Vendors/Bearers in regular vacancies.
2.1 There have been a series of litigations on the issue of absorption
of the Commission Vendors in the Railways. On 13.12.1983, this Court
disposed of Writ Petition (Civil) No. 6804-05/1982 (Saital Singh v.
Union of India) wherein a direction was issued for progressive
absorption of the Commission Bearers/Vendors in term of para 3 of
Memorandum dated 13.12.1976. Subsequently, in an order dated
8.9.1987 passed in Criminal Miscellaneous Petition No. 1670/1987 in
Writ Petition No. 31364 of 1986 and other allied writ petitions in the case
2
of T.L Madhavan, General Secretary, AIRCS Workers Union v. Union
of India, reported in 1988 Supp SCC 437, a further direction was
issued regarding the progressive absorption of all persons working as
Commission Bearers/Vendors on various railway platforms belonging to
the Central Railway and South-Central Railway in terms of the same
memorandum dated 13.12.1976 “as and when vacancies to the posts of
bearers in the Railway Catering Service occur”. It was further reiterated
that as already directed the Railways would first absorb all the Bearers
registered in accordance with the aforesaid memorandum and thereafter
the Vendors who are registered and until all the Bearers and Vendors
are accordingly absorbed, the Railway Administration shall not recruit or
appoint any person either as a Bearer or Vendor on permanent basis in
the Railway Catering Service from any other source.
2.2 Learned Single Judge of the High Court in Writ Petition (Civil) No.
5175/1998 (Gurdas Ram & Others v. Union of India) was dealing with
a batch of writ petitions by Commission Vendors, who sought the relief of
regularization, and in the alternative, absorption in Group ‘C’ posts. By
judgment and order dated 5.11.2012, the learned Single Judge
negatived the plea of regularization, however, the other relief, viz.,
absorption against vacant Group ‘C’ posts was allowed, provided they
had not crossed the age of 59 years. The respective original writ
3
petitioners – respondents herein all were absorbed pursuant to the
above order of the learned Single Judge in Group ‘C’ posts in 2015.
2.3 They then approached the Central Administrative Tribunal with
O.A. No. 219/2016 praying for further consequential relief of grant of
pensionary/retirement benefits. It was their case before the CAT that the
total service of each of the applicants rendered prior to their absorption
in the Railways should be counted towards “qualifying service” for the
purpose of such retirement/pensionary benefits. By judgment and order
dated 12.02.2016, the CAT dismissed the said OA by holding that since
the earlier judgment of the learned Single Judge declined the prayer of
regularization, it was not possible to entertain the plea for counting the
past service without questioning the absorption orders, even for
pensionary benefits.
2.4 However, thereafter another Bench of the Tribunal in O.A. No.
4079/2016 filed by one Munshi Ram (respondent in Civil Appeal No.
2811/2022), after following the decision of the Ernakulam Bench of the
CAT dated 4.6.2014 in OA No. 417/2013 and one other decision of the
same Bench, where identically situated applicants were granted the
relief of pensionary benefits, allowed the said OA 4079/2016. The
judgment and order passed by the CAT dismissing the OA and refusing
to grant any pensionary benefits to the Commission Vendors who were
subsequently absorbed by treating their earlier service rendered as
4
Commission Vendors, the original applicants filed the present Writ
Petition Nos. 12073/2016 and Writ Petition No. 3307/2017 before the
High Court.
2.5 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned CAT passed in OA No. 4079/2016 granting the
relief of pensionary benefits by counting their service rendered as
Commission Vendors, prior to their absorption, the Union of India
preferred the present Writ Petition No. 4535/2019 before the High Court.
All the aforesaid three writ petitions came to be heard together by the
High Court. By the impugned common judgment and order, the High
Court has allowed the writ petitions preferred by the original writ petitions
– Commission Vendors who were subsequently absorbed and has
dismissed the writ petition preferred by the Northern Railways on the
ground that so far as in the other Railways, namely, Southern Railways
and Central Railways pursuant to the various orders passed by the
different High Courts/Tribunals, their past service rendered as
Commission Vendors have been counted for the purpose of pensionary
benefits, there is no reason to deny such relief to the Commission
Vendors/Bearers in the Northern Railways.
2.6 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court holding that the services
rendered by the Commission Vendors/Bearers in the Northern Railways,
5
prior to their absorption, should be counted for the purposes of
pensionary benefits, the Union of India (Northern Railways) have
preferred the present appeals.
3. Ms. Madhavi Divan, learned Additional Solicitor General has
appeared on behalf of the appellants – Northern Railway and Shri
Sanjay Parikh, learned Senior Advocate has appeared on behalf of the
original applicants – private respondents herein.
3.1 Ms. Madhavi Divan, learned ASG has submitted that the short
issue in the present case is, whether Commission Vendors who were
absorbed into regular service are entitled to reckon 50% of the period of
service as Commission Vendors, prior to their absorption, as “qualifying
service” for grant of pensionary benefits. It is submitted, in other words,
whether Commission Vendors who are subsequently absorbed are
entitled to seek parity with regularised casual labourers, who by virtue of
Rule 2005 of the Indian Railway Establishment Manual, Vol. II, 1991
(IREM) r/w Rule 31 of the Railway Services (Pension) Rules, 1993 (for
short, ‘1993 Rules’), are entitled to include 50% of their service as casual
labourers while computing qualifying service for grant of pensionary
benefits.
3.2 It is submitted that as such the Commission Vendors have been
absorbed into regular service in the Indian Railways pursuant to (i)
Memorandum No. 76 dated 13.12.1976 issued by the Railway Board;
6
and (ii) the orders passed by this Court in various writ petitioners,
referred to hereinabove.
3.3 It is submitted that it is an admitted position that the Commission
Vendors in the present case have not completed 10 years of service
after absorption and before retirement, which is mandatory for receiving
pensionary benefits. In the submitted that in fact in the case of one of
the appellants/petitioners – Munshi Ram, he has served only for a period
of three and half months approximately between his absorption on
16.07.2015 and superannuation on 31.10.2015.
3.4 It is submitted that as such the respective Commission Vendors
who are subsequently absorbed in the Railways are claiming parity with
Casual Labourers and accordingly are claiming that 50% of their service
rendered as Commission Vendors prior to their absorption is to be
counted for qualifying service for pensionary benefits which is being
provided to the Casual Labourers.
3.5 It is submitted that therefore the question which is required to be
considered is, whether can the Commission vendors claim the benefit of
their past service at par with the Casual Labourers? It is submitted that
to appreciate the above, the difference between the status of
Commission vendors and the Casual Labourers is required to be
considered. The fundamental difference between the status of
7
Commission Vendors and Casual Labourers is explained by Ms.
Madhavi Divan in the chart which is as under:
Casual Labourer Commission Vendor/Bearer
Mode of
Appointment
Done by Sr.
Subordinate
authorized to recruit
after sanction of
General Manager.
No such provision.
Age Limit 18-28 years relaxable
up to 05 yrs.
Not defined.
Wages Daily rate wages
governed by
Minimum wages Act.
Work on commission basis
after sale of products.
Regularization Absorption against
permanent post after
attaining Temporary
Status following due
procedure of
screening by a
committee of 03
officers.
No provision for their
regularization in railway
service. Respondents in this
case were absorbed in railway
service in compliance of Delhi
High Court’s Order.
Emoluments Wages, transport
allowance, leave,
medical treatment,
Work on commission basis.
Holidays, travel
concessions.
Seniority Seniorities are
maintained and
promotions in higher
grade are done
accordingly.
No seniority is maintained.
They work at different stations
on commission basis.
Working hours Fixed under hours of
employment
Regulations.
No working Hours fixed.
8
Termination from
service
Disciplinary and
appeal rules are
applicable on them.
Not applicable.
3.6 It is further submitted that the Commission Vendors were engaged
on a purely contractual basis. The relevant terms of the proforma
contractual agreement entered into with the Commission Vendors are as
follows:
i. Clause 1: Commission vendors shall work on commission basis
[@Pg. 34 in Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx
ii. Clause 8: Open to either party to determine this agreement by
giving one month’s notice without assigning any reason and without
any compensation [@Pg. 35 in Application for Addl. Docs. i.e. IA No.
137388/2021].
iii. Clause 9: Commission vendors are not entitled to any
remuneration except commission on sale of articles [@Pg. 35 in
Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx
iv. Clause 13: Administration/Railways shall supply the articles to be
sold by commission vendors to the public travelling by train [@Pg. 35
in Application for Addl. Docs. i.e. IA No. 137388/2021].
xxx xxx xxx
v. Clause 16: Commission vendors shall not be treated as Railway
servant for any purpose [@Pg. 36 in Application for Addl. Docs. i.e.
IA No. 137388/2021].
It is submitted that from the above, it can be seen that there was
no master-servant relationship contemplated between a Commission
9
Vendor and the employer – Northern Railways. The remuneration was
only in the form of commission and further on no count was a
Commission Vendor was treated as a railway servant.
3.7 It is submitted that on the other hand, the Casual Labourers stood
on different footing. The provisions relating to Casual Labourers found
in a separate Chapter XX in the Railway Manual (IREM) show the
difference in status, which are as under:
i) Rule 2001 [@page 30 in Application for Addl. Docs. i.e. IA No.
137388/2021]:
2001: (I) Definition of Casual labour - Casual labour refers to labour whose
employment is intermittent, Sporadic or extends over short period 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.
Casual labour on Railway should ordinarily be employed only in the following
types of cases
.
(a) Casual Labour (Open Line).- Casual labour are primarily engaged to
supplement the regular staff in work of seasonal or sporadic nature, which
arises in the day to day working of the Railway system. This includes labour
required for unloading and loading of materials, special repair and
maintenance of tracks and other structures, supplying drinking water to
passengers during summer months, (recoupment of man-days lost on
account of absenteeism) patrolling of tracks, etc. casual labour so engaged in
the operation and maintenance of railway system is referred to as open line
casual labour, as distinct from project Casual Labour, described in para (b)
infra.
(b) Casual Labour (Project)- Casual Labour are also engaged on Railways
for execution of Railway projects, such as new lines, doubling, conversion,
construction of building, track Renewals, Route Relay interlocking Railway
Electrification, Setting up of new units etc. Casual Labour so engaged are
referred to as “Project Casual Labour”.
Such of those casual Labour engaged on open line (revenue) works, who
continue to do the same work for which they were engaged or other work
of the same type for more than 120 days without a break will be treated as
10
temporary (i.e. given “temporary status”) on completion of 120 days
continuous employment.
Casual Labour on projects who have put in 180 days of continuous
employment on works of the same type are entitled for 1/30th of the
minimum of the appropriate scale of pay plus Dearness allowance…
(ii) Grant of temporary status to project casual labour is regulated by
instructions separately issued by the Railway Board. As far as possible,
casual labourers required for new projects must be taken from amongst
those casual labourers. Who have worked on the open line/projects in the
past in preference to outsiders?
(ii) Seasonal labour sanctioned for specific works of less than 120 days
duration. If such labour is shifted from one work to another of the same type
and the total continuous period of such work at any time is more than 120
days duration, they should be treated as temporary (i.e. granted “temporary
status” after the expiry of 120 days continuous employment.
(emphasis supplied)
ii. Rule 2002 [@page 31 in Application for Addl. Docs. i.e. IA No.
137388/2021]:
2002. Entitlements and privileges admissible to Casual Labour.—Casual
Labour are not eligible for any entitlement and privileges other than those
statutorily admissible under the various Acts, such as. Minimum Wage Act,
Workmen's Compensation Act, etc. or those specifically sanctioned by the
Railway Board from time to time.
iii. Rule 2005 [@page 32 in Application for Addl. Docs. i.e. IA No.
137388/2021]:
xxx xxx xxx
2005. Entitlements and Privileges admissible to Casual Labour who are
treated as temporary (i.e. given temporary status) after the completion
of 120 day 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-a-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.
11
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 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.
(emphasis supplied)
iv. Rule 2006 [@page 32 in Application for Addl. Docs. i.e. IA No.
137388/2021]:
2006. Absorption of Casual Labour in regular vacancies. — Absorption of
casual labour in regular Group ‘D’ employment may be considered in
'accordance with instructions issued by the Railway Board from time to time.
Such absorption is, however, not automatic but is subject, inter-alia, to
availability of vacancies and suitability and eligibility of individual casual
labour and rules regarding seniority unit method of absorption etc. decided by
the Railway Administration.
It is submitted that therefore the Commission Vendors cannot claim
the benefits at par with the absorbed Casual Labourers.
3.8 It is further urged that the Casual Labourers are being granted the
benefits pursuant to the decision of this Court in the case of Union of
India v. Rakesh Kumar, (2017) 13 SCC 388. That on an interpretation
of concerning Rule 31 of the 1993 Rules which provides for counting of
service paid from contingencies, this Court held that period of Casual
Labourers prior to grant of temporary status by virtue of note on Rule 31
has to be counted to the extent of 50% for pensionary benefits. It is
submitted that Rule 31 which fell for consideration before this Court
reads as under:
12
31. Counting of service paid from contingencies.—In respect of a
railway servant, in service on or after the 22nd day of August, 1968, half
the service paid from contingencies shall be taken into account for
calculating pensionary benefits on absorption in regular employment,
subject to the following condition, namely—
(a) the service paid from contingencies has been in a job involving wholetime employment;
(b) the service paid from contingencies should be in a type of work or job
for which regular posts could have been sanctioned such as posts of
malis, chowkidars and khalasis;
(c) the service should have been such for which payment has been made
either on monthly rate basis or on daily rates computed and paid on a
monthly basis and which, though not analogous to the regular scales of
pay, borne some relation in the matter of pay to those being paid for
similar jobs being performed at the relevant period by staff in regular
establishments;
(d) the service paid from contingencies has been continuous and followed
by absorption in regular employment without a break:
Provided that the weightage for past service paid from contingencies shall
be limited to the period after 1-1-1961 subject to the condition that
authentic records of service such as pay bill, leave record or service book
is available.
Note.—(1) The provisions of this Rule shall also apply to casual labour
paid from contingencies.
(2) The expression “absorption in regular employment” means absorption
against a regular post.”
It is submitted that insofar as the Commission Vendors are
concerned, Rule 31 of the 1993 Rules shall not be applicable at all.
3.9 It is further submitted that so far as the Commission Vendors are
concerned, there are no commensurate rules and therefore, Rule 31 of
the 1993 Rules which formed the basis of the judgment in Rakesh
Kumar’s case (supra) cannot be applied to the Commission Vendors
who occupy an altogether different status.
3.10 It is submitted that as such Rule 14 of the 1993 Rules provides the
period which shall not be treated as service for pensionary benefits. It is
13
submitted that as per Rule 14(v) of the 1993 Rules, the period under a
covenant or a contract which does not specifically provide for grant of
pensionary benefits and/or the period on contract basis except when
followed by confirmation are not to be counted for pensionary benefits. It
is submitted that the respective Commission Vendors have been
rendering service under the contract which do not provide for grant of
pensionary benefits. They are not even paid regular salaries and they
were paid on the basis of the commission. It is submitted therefore by
applying Rule 14(v) of the 1993 Rules, service rendered as Commission
Vendors which are rendered under the contract and which do not provide
for grant of pensionary benefits, prior to their absorption, cannot be
counted for the pensionary benefits, otherwise the same shall be hit by
and/or contrary to Rule 14(v) of the 1993 Rules.
3.11 It is submitted that insofar as Rule 14(xiv) is concerned, the
expression “confirmation” indicates beyond any manner of doubt that the
said sub-rule applies only in cases where there was a substantive post in
which a contractual employee was confirmed at a later stage. It is
submitted that however, this is not the case insofar as the Commission
Vendors are concerned. It is submitted that upon harmonious
interpretation of Rule 14(v) and Rule 24 it becomes clear that period of
employment as Commission Vendors will not constitute service for
pensionary benefits. It is submitted that the aforesaid Rules, namely,
14
Rule 14(v) and 14(xiv) have not been considered in any of the judgments
that have been passed by the Tribunals or the High Courts in its correct
perspective. It is submitted that the contractual terms between
Commission Vendors and the Railways specifically omits to mention any
entitlement to pension.
3.12 It is submitted that the aforesaid fundamental differences between
Casual Labourers and Commission Vendors which relate to the mode of
appointment, nature of work, conditions of service, the applicable law,
the disciplinary proceedings etc. show that there can be no parity
between the two.
3.13. It is further submitted by Ms. Madhavi Divan, learned ASG that it is
required to be noted that some of the Commission Vendors insisted for
being absorbed in Group ‘C’ posts, rather than Group ‘D’ posts. Even,
these persons in particular including the respondents herein are seeking
selective parity with casual labourers as and when it suits their
convenience. Such Commission Vendors were granted Group ‘C’ posts,
pursuant to the order passed by the learned Single Judge. Such
absorption was not a matter of right, but rather a concession granted to
them which cannot be used as a platform to seek benefits which were
never intended to be extended to them. It is submitted that this was the
precise basis for the learned CAT Delhi’s order dated 12.02.2016 in
another case concerning similarly situated Commission Vendors wherein
15
it was held that the Commission Vendors absorbed prospectively
pursuant to the High Court’s order dated 05.11.2012 were not entitled to
seek consideration of past service because seeking such a relief
amounts to seeking review of the High Court’s order directing their
absorption.
3.14 It is vehemently submitted by Ms. Madhavi Divan, learned ASG
that in none of the judgments of the High Courts and the Tribunals which
have held against the Railways, considered the aforesaid differentia
between the casual labourers and the commission vendors and the law
on unequals not being treated equally. Ms. Madhavi Divan, learned ASG
has relied upon the decisions of this Court in the cases of Haryana State
Electricity Board v. Gulshan Lal, (2009) 12 SCC 231; Uttar Pradesh
Power Corporation Ltd. v. Ayodhya Prasad Mishra, (2008) 10 SCC
139; and Union of India v. Muralidhara Menon, (2009) 9 SCC 304 in
support of her submission that as observed and held by this Court in the
aforesaid decisions that unequals cannot be treated as equals.
3.15 Now so far as the reliance placed upon the dismissal of the special
leave petitions by this Court on earlier occasions, it is submitted that the
orders of dismissal passed by this Court on earlier occasions are either
on delay or are in any event summary dismissals. These are not
reasoned orders which tantamount to precedents under Article 141 of the
Constitution. In this regard, reliance is placed upon the decision of this
16
Court in the case of Union of India v. M.V. Mohanan Nair, (2020) 5
SCC 421 (paras 48 & 49).
3.16 Now so far as the findings recorded by the High Court that orders
in some cases have become final insofar as the Southern Railway and
Central Railway are concerned, it is submitted that merely because
orders in some cases have become final is no ground for seeking parity
in the present case. It is submitted that an illegality cannot be
compounded or perpetuated merely because it has been condoned or
committed in other cases. It is not open to the respondents to seek a
misplaced parity by seeking a perpetuation of an erroneous position in
law as laid down by the Tribunals and upheld by the High Courts. It is
submitted that there exists no right to negative equality. Reliance is
placed on the decision of this Court in the case of Gulshan Lal (supra)
(paras 31 to 35 and 43 to 47). Reliance is also placed on the decision of
this Court in the case of State of Odisha v. Anup Kumar Senapati,
(2019) 19 SCC 626 (para 39).
3.17 Ms. Madhavi Divan, learned ASG has further submitted that if the
impugned judgment and order passed by the High Court is not interfered
with, there shall be huge financial liability upon the Railways. On the
huge financial burden, Ms. Madhavi Divan, learned ASG has taken us to
the relevant paragraphs in IA No. 137388/2021, which are as under:
Financial implications
17
15. If the 50% of past service rendered as commission vendor/ bearers
were to be counted for computing the qualifying service for grant of
pensionary benefits, huge financial burden would fall upon the shoulders
of the public exchequer.
16. For Delhi Division alone, where only 57 commission vendors/bearers
are there at present, the financial burden would be more than Rupees 10
crores approx. For instance one Mr. Om Prakash (Respondent party in
SLP (C) Diary No. 27616/2020) was engaged as Commission Vendor on
commission basis on 17.02.1977 whose date of birth is 12.01.1956 and
absorbed in Railway on 27.07.2015. He was superannuated on
31.01.2016 when was drawing basic pay 18000 in Level 1 of 7th CPC.
As per the impugned Order, 50% of period from 17.02.1977 to 26.07.2015
comes to 19 years 02 months and 19 days if computed in compliance of
the judgment and order impugned in the present SLP. So the total
qualifying service would be 19 Years 8 months and 23 days. His total
pension would be Rs. 9000/- per month with admissible DA and Rs. 5000/-
family pension per month after demise of the retired employee.
Furthermore, the persons, so absorbed in regular service, who have
already retired without completing 10 years of service after their
absorption would also now become eligible for pensionary benefits which
lead to huge monetary expenditure to the public exchequer. It is therefore
clear that an employee who rendered only 6 months service after
absorption is to be paid Rs. 1,76,940/- lump sum and Rs. 9000/- per
month as pension for at-least 15 years (considering the life span of retiree
as 75 years). As per this illustration, Rs.16,20,000 as on average
excluding Dearness relief has to be paid to an employee who rendered
only about 6 months service after absorption.
17. In southern Railway itself, 1265 Commission Vendors/Bearers have
been regularized on the basis of direction issued by this Hon’ble Court till
2004. The Commission Vendors/Bearers, who are still in service after their
absorption into regular service, if given benefit of counting 50% pre
absorption service, would become entitled for MACP benefits which will
result in the pension and allied benefits also.
This financial impact shall be huge as it will apply to such Commission
Vendors/Bearers in all zones of Indian Railway across the country. There
are more than 1000 of such Commission Vendors/Bearers covered under
absorption scheme excluding those who had already retired from service
without completing 10 years of minimum qualifying service.
18. Zone wise status of the Commission Vendors/Bearers, number of
cases (pending and disposed) involving issues regarding computation of
50 % past service and its financial implication are being given below: -
Sl
No.
ZONE No. of court
cases
No. of Court
cases decided
No. of
Employee
Financial
implication
18
(Subject to
final
computation)
1 Northern
Rly.
13 7 57 Rs. 9 crores
approx. Plus
future pension
2 East Coast
Rly.
3 Nil Nil At present Nil.
Future
Financial
implication
will be
determined on
basis of the
decision
3 Central Rly. 4 1 69 Rs.
9,06,38,400 +
future pension
with DR
4 South
Eastern Rly.
43 Not Known 86
(70
absorbed)
Rs. 30 Lakhs
(approx) +
future pension
with DR
5 Southern
Rly.
36 3 1265 and out
of them, 282
have been
given benefit
as per order
of the Court.
Rs. 15 Crores
+ future
pension with
DR
6 South
Western Rly.
24 Not Known 32 Rs. 55,00,000
Approx +
future pension
with DR
7 South
Central Rly.
3 (Pending) Nil 180 Rs.85 Lakhs
(Approx.) +
future pension
with DR
8 Eastern Rly. 10 1 32 After impl. Of
court orders
the difference
is about 50202
(approx)
9 Western Rly. 7 5 62 Not
ascertained
yet. However
Future
Financial
implication
will be
determined on
basis of the
decision
10 North
Central Rly
NIL NIL NIL NIL
11 North Nil Nil Nil Nil
19
Frontier
Railway
12 West Central
Railway
Nil Nil Nil Nil
13 Soutj East
Central
Railway
Nil Nil Nil Nil
14 North
Western
Railway
Nil Nil Nil Nil
15 North
Eastern
Railway
Nil Nil Nil Nil
16 East Central
Railway
3 Nil Nil Not
ascertained
Future
Financial
implication
will be
determined on
basis of the
decision
1783
3.18 Making the above submissions, it is prayed to allow the present
appeals by reiterating and emphasising that the Commission Vendors
are not entitled to seek parity of treatment with Casual Labourers insofar
as counting their past service before absorption is concerned for grant of
pensionary benefits.
4. All these appeals are opposed by Shri Sanjay Parikh, learned
Senior Advocate appearing on behalf of the respective employees –
Commission Vendors.
4.1 Shri Sanjay Parikh, learned Senior Advocate appearing on behalf
of the contesting respondents – respective Commission Vendors has
submitted that the employer in this case is the Railway Board under the
20
Ministry of Railways. There are 16 zones and 68 divisions in the
Railways. Employees working in different zones/divisions being under
the same employer - Railway Board, ought to be treated similarly. There
cannot be any discrimination, inter se, as it will violate Articles 14 and 16
of the Constitution.
4.2 It is submitted that in the present case, the appellant – Union of
India – Railways has repeated the very same arguments, which were
earlier raised before various Tribunals, High Courts and before this Court
and which have been rejected. It is submitted that therefore it is not fair
and permissible in law to raise and repeat the same arguments every
time in pending litigations, when it has been given a quietus having
attained finality up to this Court.
4.3 It is submitted that the respective respondents were recruited as
Commission Vendors on different dates between 1970-1989 in Delhi
based on non-statutory canteens after completion of all the required
formalities.
4.4 Referring to the earlier D.O. letter dated 16.02.1974 from the
Railway Board, it is submitted that the names of the Commission
Bearers and Vendors should be registered in order of the length of their
service for their absorption in the permanent vacancies of bearers and
vendors in various departmental catering units to afford the main avenue
for absorption in the permanent order. It is submitted that in addition, it
21
was also mentioned in the D.O. letter dated 16.02.1974 that if there are
casual labourers/substitutes to be considered for regular absorption in
other Class IV categories, the Commission Bearers / Vendors should
also be considered along with them.
4.5 It is submitted that as there was a delay in absorption, by letter
dated 13.07.1976 in paragraph 3, it was directed that action should be
taken to absorb progressively the Commission Bearers/Vendors in
regular vacancies. It is submitted that both expressions “regularization”
and “absorption” have been used in paragraph 3. It is urged that
therefore it was decided by the Railway Board to give the Commission
Bearers/Vendors the status of Railway employees by taking /absorbing
them on permanent vacancies.
4.6 It is submitted that when the above D.O. letter dated 16.02.1974
read with letter of 13.07.1976 were not given effect to, a Writ Petition (C)
No.6804 of 1982 was filed before this Court under Article 32 of the
Constitution. It is submitted that the said writ petition came to be allowed
by this Court vide judgment and order dated 13.12.1983 and it was
directed that until all the bearers and vendors are absorbed as per D.O.
letter dated 13.07.1976, “the Railway cannot appoint any person either
as bearer or vendor on permanent basis in Railway service from any
other source”. It is submitted that this Court expressed hope that steps
to absorb bearers/vendors would be taken as early as possible. It is
22
submitted that the meaning and purport of the order was that all
vacancies of bearers/vendors in Railway shall be allocated for
absorption of Commission Bearers/Vendors and till that process is
completed, no appointment on permanent basis from any other source
shall be carried out.
4.7 It is submitted that the issue again came up before this Court in the
case of T.L. Madhavan (supra). That this Court again reiterated what
was stated in the earlier order in Writ Petition (C) No.6804 of 1982. That
in paragraph 3, it was also clarified that the vendors and bearers so
absorbed in the “Railway Catering Service” shall be entitled to salary
from the date of their absorption.
4.8 It is submitted that however, the process of absorption was
inordinately delayed and therefore, the Member Staff – Railway Board
wrote a letter dated 12.01.2004 to the General Manager - Northern
Railway about inordinate delay in absorption of Commission
Vendors/Bearers. The attention of the General Manager, Northern
Railway was also drawn to the Orders passed by this Court. The Board
also referred to the letters dated 20.08.1996 and 06.11.2000 which were
written to expedite the process of absorption. In the letter dated
31.07.2001, the Railway Board had written to all the General Managers
to absorb the Commission Vendors/Bearers “in the Commercial
Department as well as in other departments", in view of the fact that
23
catering department on zonal railways had been frozen resulting in very
few vacancies arising therein.
4.9 That the Railway Board issued another letter dated 02.08.2005
whereby it was decided that “all Commission Vendors/Bearers to be
absorbed, subject to medical fitness with age cut off as 59 years as on
01.04.2005 with education qualifications as read and write only”. It is
submitted that due to delay in absorption of the Commission
Bearers/Vendors, the Railway Board provided that even if the
Commission Bearers/Vendors have attained the age of 59 years but had
not superannuated, they will be absorbed.
4.10 It is contended that from the aforesaid facts and the various orders
passed by the Railway Board and this Court, it would show that the
Commission Vendors/Bearers were taken in the Railway services by way
of absorption in view of the facts and circumstances prevailing then and
these Commission Bearers/Vendors were discharging duties similar to
those discharged by the vendors/bearers of the Railway canteen. It is
submitted that as such the delay in absorption by different
zones/divisions of Railway was in violation of this Court's orders.
4.11 That in view of the delay and negligence of the Northern Railway in
not implementing the Railway Board's Order dated 13.12.1976 and the
orders passed by this Court, a number of Writ Petitions were filed by the
Commission Vendors/Bearers, which can be seen from the Judgment
24
given by the Delhi High Court dated 05.11.2012 in Gurdas Ram &
Others Vs. UOI & Others in W.P. (C) No.5175 of 1998 & CM No.14513
of 2010. It is submitted that it is pursuant to the judgment of the Delhi
High Court in the case of Gurdas Ram & Others (supra) that the
respondents herein were absorbed in Class III.
4.12 It is submitted that the learned Single Judge in the case of Gurdas
Ram & Others (supra) issued a madamus to the respondents (Northern
Railway) to absorb eligible petitioners who have not crossed age of 59
years in ‘Group C’ posts against vacant posts of this category after such
eligible petitioners formally make an application to seek absorption in
‘Group C’ posts. It is submitted that the judgment of the learned Single
Judge in Gurdas Ram & Others (supra) was accepted by the Northern
Railway and the appointments were given to the respondents herein as
well as to the others in the post of “Catering Waiter” in Grade Pay of
Rs.5200-20200+GP 1800/-.
4.13 On the issue whether the Commission Vendors/Bearers after their
absorption on a permanent sanctioned post in the Railways are entitled
for pension, Shri Sanjay Parikh, learned Senior Advocate has made the
following submissions: -
(i) Initially, these Commission Vendors/Bearers were working on
contractual basis and thereafter they were absorbed and
became permanent Railway employees on different dates.
25
That Rule 14 of the Railway Services (Pension) Rules, 1993
provides that periods of employment in the capacities
mentioned from (i) to (xiv) shall not constitute service for
pensionary benefits. That clause (xiv) of Rule 14 contains
an exception, namely, that "when employment on contract
basis is followed by confirmation". That the meaning of
confirmation will be absorption in Railway service or taking
them permanently in Railway service or confirmation in
Railway service by absorption/appointment etc. It is
submitted that the nomenclature may not be relevant. That
the respondents' case is covered by the said provision
because their contractual period was followed by their
confirmation/ absorption in the Railway services. That Rule
24 clarifies the situation further as it provides that if a person
is initially engaged by Railways on a contract (as
Commission Vendor/Bearer) and subsequently appointed to
the same or another post in a substantive capacity (as
Catering Waiter) in the present case, such contractual period
of service shall be treated like any other permanent service
in the Railway and be taken into account for calculating the
pensionary benefits.
26
(ii) That the said Rules were considered by the Kerala High
Court and by other High Courts in several Judgments and
the SLPS filed by the Railway Departments were dismissed,
even on merits. Therefore, various Tribunals/High Courts
have accepted 50% of the service rendered on contractual
basis before absorption for grant of pension. That the said
issue has attained finality as on this legal basis and the
Railways have implemented it.
(iii) Reliance is placed on the decision of this Court in the case of
Rakesh Kumar’s case (supra). It is submitted that in the
said judgment, this Hon'ble Court had considered the grant
of pension to the casual labours who were granted
temporary status and subsequently regularized for
determining the qualifying service and for grant of pension.
Reliance is placed on the final conclusion in paragraph 53.
(iv) Thus, according to the said judgment, a casual worker is
entitled to reckon 50% of causal service before obtaining
temporary status. That however, the Railway Board is taking
a contrary position and they are asserting that “only 50% of
temporary status service would be counted for pensionary
service after regularization” and that the period prior to
27
temporary status would not be counted for pensionary
benefits.
(v) That various orders passed by the respective High
Courts/Tribunals with respect to the Western Railway,
Eastern Railway, Southern Railway taking the view that the
Commission Vendors/Bearers are entitled for counting 50%
of the period for the purpose of pensionary benefits.
4.14 It is also submitted that therefore to deny the benefit of 50% of
earlier service rendered as Commission Vendors/Bearers for the
purpose of pensionary benefits only in one zone of the Railways namely,
Northern Railway, would be discriminatory and violative of Articles 14
and 16 of the Constitution.
4.15 It is further submitted that even on the Doctrine of Stare Decisis,
the respondents are entitled to the benefit of counting of their 50%
service/period rendered as Commission Vendors/Bearers for the
purpose of pensionary benefits. Reliance is placed on the decision of
this Court in Waman Rao and Ors. Vs. Union of India and Ors.,
(1981) 2 SCC 362 (para 40); Narinder Singh and Ors. Vs. State of
Punjab and Anr., (2014) 6 SCC 466 (para 22).
4.16 Now, so far as the submission on behalf of the Railways on the
financial liability/implication is concerned, it is submitted that the said
plea would violate Articles 14, 16 and 21 of the Constitution besides the
28
Rule of Law. It is submitted that the argument of financial implication
which is primarily been raised to deny equal treatment to the
Commission Vendors/Bearers now Catering Waiters may not be
accepted as the same is wholly unsustainable.
4.17 It is submitted that in the case of All India Judges’ Association
and Ors. Vs. Union of India and Ors., (1993) 4 SCC 288 (para 16), this
Court had considered the uniformity in the service conditions of judicial
officers and the question of financial burden raised by Union of India was
rejected as being misconceived. That in the said decision, this Court
has said that if a decision has financial implications, the Government is
obligated to loosen its purse.
4.18 It is submitted that in the case of Ashoka Kumar Thakur Vs.
Union of India and Others, (2008) 6 SCC 1, it is observed and held by
this Court that the State cannot avoid constitutional obligation on the
ground of financial inabilities.
4.19 It is further submitted by Shri Sanjay Parikh, learned Senior
Advocate that the concept of negative equality raised by learned ASG
shall not be applicable in the present case. It is submitted that the
judgment of this Court in the case of Anup Kumar Senapati (supra)
relied upon by the appellants is not applicable to the facts of the present
case. It is submitted that facts of the present case clearly establish the
right for being absorbed on the vacant posts and that the High Courts
29
have granted relief on the basis of the provisions of the Rules, 1993,
which has been confirmed by this Court. It is submitted that there are
admissions/concessions of the Railway Board and acceptance of the
series of judgments that the Commission Vendors/Bearers are entitled to
claim 50% of their service for the purpose of pension. That this is not a
case of either the decisions being wrong or there being any illegality or
fraud or that it is not even a case where the relief/benefit has been
granted inadvertently or by mistake. It is a case where different zones
and divisions under the Railway Board are granting pension whereas it
has been denied to other similarly situated persons in violation of Articles
14, 16 and 21 of the Constitution. It is submitted that therefore, the
present case is clearly covered by the decision of this Court in the case
of G.C. Ghosh and Ors. Vs. Union of India and Ors., 1991 Supp (2)
SCC 497.
4.20 Making above submissions and relying upon above decisions, it is
prayed to dismiss the present appeals.
5. We have heard learned Additional Solicitor General of India
appearing on behalf of the Union of India and others and Shri Sanjay
Parikh, learned Senior Advocate appearing on behalf of the
respondents.
At the outset, it is required to be noted that the issue in the present
case is with respect to Commission Vendors working in the Northern
30
Railway and the issue is whether the Commission Vendors who were
absorbed in the regular service are entitled to reckon 50% of the period
of service as Commission Vendors, prior to their absorption, as
qualifying service for grant of pensionary benefits, at par with the casual
labourers whose services were regularized by virtue of Rule 2005 of the
Indian Railway Establishment Manual, Vol. II, 1991 (IREM) r/w Rule 31
of the Railway Services (Pension) Rules, 1993.
At the outset, it is required to be noted that so far as the
Commission Vendors working in the Western Railway, Eastern Railway,
Southern Railway and South-Eastern Railway are concerned, pursuant
to different orders passed by the Central Administrative Tribunals and
High Courts, which have been confirmed by this Court, the issue is held
against the Union of India/Railways, the particulars of which are as
under:
i) By a detailed judgment and order in OA No. 238/2004, the
Central Administrative Tribunal allowed the said OA filed by the
Association/Trade Union of the employees of the Railways filed
on behalf of the Commission Vendors/bearers working in the
Western Railway, relying upon the earlier order passed by the
CAT in OA No. 538/1996 and the order passed by the Bombay
High Court in Writ Petition No. 499/2002, and held that the
Commission Vendors/bearers are entitled to 50% of the services
rendered by them as Commission Vendors/bearers for the
purpose of pension along with the services rendered by them as
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regular employees of the railways. The judgment and order
passed by the Tribunal in OA No. 538/1996 came to be
confirmed by the Bombay High Court, by judgment and order
dated 21.04.2008 passed in Writ Petition No. 190/2006. The
said judgment and order dated 21.04.2008 passed by the High
Court was the subject matter of the special leave petition before
this Court. This Court initially issued notice in the special leave
petition and thereafter by order dated 14.03.2011 passed in
SLP(Civil) No. 24166/2009, dismissed the special leave petition
on the ground of delay as well as on merits;
ii) With respect to the Commission Vendors/bearers working in the
Eastern Railway, there was a decision against the Railways by
the Calcutta High Court, which was the subject matter of Special
Leave Petition before this Court being Special Leave Petition
(Civil) No. 25730/2009. In the case of eastern railway, the CAT,
Calcutta Bench held in favour of the Commission
Vendors/bearers. The writ petition filed by the Railways came to
be dismissed by the Calcutta High Court against which the
aforesaid special leave petition came to be filed before this
Court, which was dismissed by order dated 14.03.2011;
iii) With respect to Commission Vendors/bearers working in the
Southern Railway, the High Court of Kerala at Ernakulam held in
favour of the similarly situated Commission Vendors/bearers. In
the case of Southern Railway, the CAT, Ernakulam Bench vide
order in OA No. 440/2003 decided in favour of the Commission
Vendors/bearers. The Railway Board and others filed a writ
petition before the High Court being Writ Petition No.
15756/2006. The High Court affirmed the order passed by the
tribunal directing that the 50% of the services rendered on
32
contract basis be counted for pension. Against the order passed
by the Kerala High Court, the Railways filed a special leave
petition before this Court, which came to be dismissed on the
ground of delay;
a. By another judgment, similar order was passed by the High
Court of Kerala, confirming the judgment and order passed by
the CAT, Ernakulam Bench, which was decided in favour of
the Commission Vendors/bearers. The said judgment and
order passed by the High Court has attained finality.
b. There were similar judgment(s) and order(s) passed by the
CAT, Ernakulam Bench which were in favour of the
Commission Vendors/bearers, which have attained finality.
iv) With respect to the Commission Vendors/bearers working in the
South-Eastern Railway, the CAT, Calcutta Bench vide order
dated 06.12.2010 in OA No. 758/2007 declined the claim of the
Commission Vendors/bearers. However, by a detailed judgment
and order dated 30.08.2012 in Writ Petition No. 28/2011, the
High Court of Calcutta held that the Commission
Vendors/bearers are entitled to 50% of the services rendered
prior to their regularization to be counted for pensionary benefits.
The special leave petition against the judgment and order
passed by the High Court of Calcutta came to be dismissed by
this Court being Special Leave Petition No. 25019/2013.
6. From the aforesaid, it can be seen that with respect to Commission
Vendors/bearers working in the Western Railway, Eastern Railway,
Southern Railway and South-Eastern Railway, they are held to be
entitled to 50% of the services rendered prior to their regularization to be
33
counted for pensionary benefits and all those Commission
Vendors/bearers are granted such benefits. Now the dispute is with
respect to Commission Vendors/bearers working in the Northern
Railway.
7. It cannot be disputed that employees working in different
divisions/zones in the Railways are under the very same employer –
Railway Board which is under the Ministry of Railways. There are 16
Zones and 68 Divisions in the Railways. Therefore, the employees
working under the same employer – Railway Board working in different
Zones/Divisions are required to be treated similarly and equally and are
entitled to similar benefits and are entitled to the same treatment. As
rightly submitted on behalf of the respondents, there cannot be any
discrimination inter se. Under the circumstances, on the ground of
parity, the Commission Vendors/bearers working in the Northern Railway
are entitled to the same benefits which are held to be entitled to all the
similarly situated Commission Vendors/Bearers working under different
Zones/Divisions. There cannot be different criteria/parameters with
respect to similarly situated employees – Commission Vendors/bearers
working in different Zones/Divisions, but working under the same
employer.
34
8. The Railways/UOI/Railway Board cannot be permitted to repeat
the same arguments which were raised before different Tribunals, High
Courts and also before this Court. Under the circumstances, the
respondents – Commission Vendors/bearers working in the Northern
Railway shall also be entitled to the same benefits which the other
Commission Vendors/bearers working in different Zones/Divisions are
held to be entitled to. There cannot be discrimination among the
similarly situated Commission Vendors/bearers. To deny similar benefits
would tantamount to discrimination and in violation of Articles 14 and 16
of the Constitution of India.
9. Now so far as the submission on behalf of the appellants -
UOI/Railways that there shall be huge financial burden on the Railways
is concerned, it is required to be noted that the issue is with respect to
pensionary benefits. Once it is found that the respondents – Commission
Vendors/bearers working in the Northern Railway are also entitled to
similar benefits which are given to the similarly situated Commission
Vendors/bearers working in different zones/divisions and since they are
already being paid the pensionary benefits by counting the benefit of
50% of their services rendered prior to their regularization, there is no
reason to deny the similar benefits to the respondents – Commission
35
Vendors/bearers working in the Northern Railway being similarly
situated.
10. Even the concept of negative equality submitted on behalf of the
appellants also shall not be applicable in the facts and circumstances of
the case, more particularly when the decisions of different High Courts
which are held against the appellants have been confirmed by this Court
and the special leave petitions have been dismissed on the ground of
delay as well as on merits.
11. In view of the above and for the reasons stated above and even
applying the doctrine of stare decisis, on the aforesaid ground alone, the
present appeals deserve to be dismissed and are accordingly dismissed,
by holding that the respondents – Commission Vendors/bearers working
in the Northern Railway are entitled to have 50% of their services
rendered prior to their regularization to be counted for pensionary
benefits like other office bearers/Vendors working under the Railway
Board, working in different zones/divisions, namely, Western Railway,
Eastern Railway, Southern Railway and South-Eastern Railway.
12. All these appeals are accordingly dismissed. No costs.
………………………………..J.
[M.R. SHAH]
NEW DELHI; ……………………………….J.
OCTOBER 31, 2022. [B.V. NAGARATHNA]
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