JUDGMENT 1. - This writ petition in the nature of certiorari has been filed by the Union of India through its General Manager, North-Western Railway, Jaipur and other officers, against the order dated 5.1.2007 by which the original application No. 57/2004 as well as Misc. Application No. 136/2006 filed by Smt. Santosh Kaur alias Smt. Satwant Kaur was allowed by the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as "the Tribunal"), directing the petitioners to grant family pension and other retiral dues in respect of deceased Railway Servant, late Shri Lal Singh, who was working as Gangman and expired on 14.11.1977 while in service, after serving the Railways for about 4 and 1/2 years and also to grant arrears w.e.f. 4.3.2003, i.e. one year prior to the date of filing of the original application. However, the prayer for granting compassionate appointment to the son of the respondent was rejected by the learned Tribunal on the ground that the respondent herself is a permanent employee of the State Government. The learned Tribunal further directed that in cash the aforesaid order is not implemented within a period of 3 months, interest @ 8% per annum shall be paid to the respondent after expiry of period of three months. 2. The relevant facts of the case are that the respondent filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal with the prayer that she be granted family pension w.e.f 15.11.1977 i.e. soon after the date of sad demise of her husband. It was also prayed that her son be granted compassionate appointment. It was alleged in the original application the respondent's husband Lal Singh (hereinafter referred to as "the deceased employee") was appointed as a Substitute Gangman in the services of Railways on 29.6.1973. He was conferred temporary status on 2.12.1973 after expiry of six months' service. On 1.10.1977, the deceased employee was screened and placed in the panel for regularisation. On 14.11.1977, he expired, vide order dated. 21.3.1979, the services of one Sh. Ota Singh who was at serial No.1 in the merit list issued on 1.10.1977, were regularized. 3. He was conferred temporary status on 2.12.1973 after expiry of six months' service. On 1.10.1977, the deceased employee was screened and placed in the panel for regularisation. On 14.11.1977, he expired, vide order dated. 21.3.1979, the services of one Sh. Ota Singh who was at serial No.1 in the merit list issued on 1.10.1977, were regularized. 3. The learned counsel for the Railways submitted that till the date of death, the deceased employee was substitute and under Rule 3(26) of the Railway Service Pension Rules, 1993 (hereinafter referred to as the Rules of 1993), the substitute is not deemed to be a Railway servant unless he is absorbed in the regular service. The learned counsel for the Union of India also submitted that under the Indian Railway Establishment Manual, the employees who are holding temporary status, can be brought on regular establishment only after selection as per Rules and there cannot be automatic absorption of substitutes. Such employees can be absorbed to Railway Service only on the basis of their position in the select list. 4. The learned counsel for the Railways has also drawn our attention to the fact that in the Railway Record. the name of deceased employee's wife is shown as Smt. Satwant Kaur and not as Smt. Santosh Kaur, which they, for the first time, came to know in her affidavit filed on 11.8.1981, therefore, the order of the Tribunal granting family pension, to Smt. Santosh Kaur is wholly illegal. In support of his contention the learned counsel for the Railways has placed reliance on the following authorities: (1) Union of India V/s Rabia (1997) 6 SCC, 580 . (2) Secretary, State of Karnataka V/s Uma Devi (2006) 4 SCC 1 . 5. On the other hand, learned counsel for the respondent while relying on the decisions of Hon'ble Supreme Court (3) Prabhavati Devi V/s Union of India and Ors. reported in AIR 1996 (SC) 752 , (4) Mastan Bee V/s General Manager, South H.N. & P. (2003) SCC 184 and various provisions under the Railway Pension Rules and Indian Railway Establishment Manual has submitted that the order of the Tribunal does not suffer from any infirmity. The learned counsel for the respondent further submitted that family pension has rightly been granted to the respondent Santosh Kaur. The learned counsel for the respondent further submitted that family pension has rightly been granted to the respondent Santosh Kaur. It was submitted by the learned counsel for the respondent that the out of love and affection, the deceased employee used to call the respondent as Satwant Kaur and the same was entered in the Railway Record, which cannot be a ground for rejecting the family pension. 6. To resolve the controversy involved in this petition, the most important factor under consideration is as to who is entitled for family pension? 7. The Railway Pension Rules under the Indian Railway Establishment Manual deal with the pension to the Railway employees. Section 2 of the Indian Railway Establishment Manual under the heading "Pension Rules" prescribes conditions governing pension. Rule 2309 R-II of the Pension Rules provides for the cases in which claims for pension are inadmissible, which reads as under : "Cases in which claims for Pension are inadmissible:- In the following cases no claim to pension is admitted (a) When an officer is appointed for a limited time only, or for a specified duty, on the completion of which he is to be discharged. (b) When a person is employed temporarily, on monthly wages without specified limit of time or duty. (c) When a person's whole time is not retained for the public service but, he is merely paid for work done for the State. (d) When a public servant holds some other pensionable office, he earns no pension in respect of an office of the kind mentioned in clause (c) or in respect of duties paid for by a local allowance. (e) When an officer serves under a covenant which contains no stipulation regarding pension." 8. In the present case, if the case of the deceased employee is looked into in light of the aforesaid five inadmissibility for pension, it cannot be said that his case falls under any of the five categories because the deceased employee was neither appointed for a limited time; nor he was employed temporarily on monthly wages; nor he was merely paid for the work done; nor he was holding some other pensionable office and nor he was serving under a covenant which contained no stipulation regarding pension. When the case of the deceased employee does not fall in any of the categories mentioned hereinabove, there is no reason as to why the pension was disallowed to the respondent. The reason for disallowing the pension which has been given by the petitioners is that the deceased employee was substitute employee. 9. The definition of "Substitute" has been given under Rule 3(26) of the Pension Rules which reads as under : "Substitute mean a person engaged against a regular, permanent or temporary post by reason of absence on leave or otherwise of a permanent or temporary railway servant and such substitute shall not be deemed to be railway servant unless he is absorbed in the regular railway service." As per the definition of "Substitute", the substitute shall not be deemed to be railway servant unless he is absorbed in the regular service. 10. Before proceeding further, it is relevant to refer to the definition of "Railway Servant". Rule 3(23) of the Railway Services (Pension) Rules, 1993 defines "Railway Servant" which reads as under : "Railway Servant means a person who is a member of a railway service or holds a post under the administrative control of the Railway Board and includes a person who is holding the post of Chairman, Financial Commissioner or a member of the Railway Board, but does not include casual labour or persons lent from a service or post which is not under the administrative control of the Railway Board to a service or post which is under such administrative control." As per the definition of "Railway servant" causal labours have not been treated to be Railway servant. 11. Now the question which arises for determination is as to what was the status of the deceased employee when he expired. In this regard, it is an admitted fact that when the deceased employee died on 14.11.1977, he was holding temporary status of Gangman and after serving for about 4 and 1/2 years, he expired on the aforesaid date. If we turn to the merit list (Annex.A/7) which was issued after screening, it is clear that 45 substitutes were found fit after screening for regular appointment for category "D" service against the vacancies available till 30.6.1975. In this list, the name of the deceased employee appears at serial No.36. If we turn to the merit list (Annex.A/7) which was issued after screening, it is clear that 45 substitutes were found fit after screening for regular appointment for category "D" service against the vacancies available till 30.6.1975. In this list, the name of the deceased employee appears at serial No.36. A bare perusal the merit list dated 7.10.1977 clearly goes to show that the deceased employee was deemed to have been absorbed in the regular service w.e.f. 30.6.1975. The Railway has failed to give satisfactory explanation as to why Mr. Ota Singh who was at serial No.1 in the merit list dated 7.10.1977 was regularised w.e.f. 21.3.1979, whereas the merit list dated 7.10.1977 categorically clarifies that the persons named in this list have been found fit for regular appointment against the vacancies available upto 30.6.1975 and even in the merit list (Annex.A/7), it has been recommended that these persons be given regular appointment against the vacancies which have arisen upto 30.6.1975. Despite the merit list (Annex.A/7), if the formal order for regularisation was not issued, the respondent cannot be made to suffer as there was no fault on part of the deceased employee. Therefore for all practical purposes the deceased employee shall be deemed to be regular employee w.e.f. 30.6.1975 i.e. much prior to his death. 12. The learned counsel for the petitioner has not been able to satisfy this Court that the family of the substitute employee, who has been screened and has been placed in the merit for granting regular appointment, is not entitled to get pension for the reason that he has died before the order of regularisation could be issued. In our view, when the deceased employee had been screened and had been found fit for regular appointment against the vacancies which arose upto 30.6.1975, he will be deeded to be regular employee w.e.f. 30.6.1975 irrespective of the fact as to whether the order of regularisation has been issued or not. For the delay and laches on the part of the employer in issuing order for regularisation, the employee or his family cannot be made to suffer in consequence of infringement of their fundamental right, which is the cardinal principle of service jurisprudence. 13. The learned counsel for the respondent has relied on the case of Prabhavati Devi (supra). For the delay and laches on the part of the employer in issuing order for regularisation, the employee or his family cannot be made to suffer in consequence of infringement of their fundamental right, which is the cardinal principle of service jurisprudence. 13. The learned counsel for the respondent has relied on the case of Prabhavati Devi (supra). In the said case, the Hon'ble Supreme Court has held that a casual labour on completion of more than one year's continuous service before his death acquires right and privileges of temporary status and his dependents are eligible for family pension. It is of course true that this case was distinguished by the Hon'ble Supreme Court in the case of Rabia (supra). In the case of Rabia (supra), the Hon'ble Supreme Court has observed as under : "It is true that under para 2511 of the Railway Establishment Manual, casual labourers with temporary status are entitled to certain entitlements and privileges granted to temporary railway servants but this does not entitle them to family pension. Every casual labourer employed in railway administration for six months, is entitled to temporary status. They are then empanelled and thereafter, they are required to be screened by the competent authority. They are appointed in the order of merit as and when vacancies for temporary posts in the regular establishment are available. On their appointment they are also required to put in minimum service of one year in the temporary post. 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 for pension. In all these cases, though some of the deceased employees had been screened, yet appointments were not given to them since temporary posts were not available or in some cases they were not even eligible for screening because the posts became available after the death. Under these circumstances, the respondent - widows are not eligible for family pension benefits. However, if any amounts have already been paid pursuant to the orders of the Administrative Tribunal, the same may not be recovered from them". 14. Though the ratio laid down in Prabhavati Devi's case (supra) was held to be inapplicable in Rabia's case, but facts of the present case are distinguishable. However, if any amounts have already been paid pursuant to the orders of the Administrative Tribunal, the same may not be recovered from them". 14. Though the ratio laid down in Prabhavati Devi's case (supra) was held to be inapplicable in Rabia's case, but facts of the present case are distinguishable. In the case of Prabhavati Devi (supra), the husband of the appellant therein had worked from 1981 to 27.4.1993 and obtained the status of substitutes on a regular scale of pay and allowances applicable to those posts in which they were employed. Since he died while working in the regular post, his widow became eligible to claim the benefits of the pension scheme. Thus, in that case, the appellant's husband was a substitute working in a regular scale of pay in the Railway Establishment. He was also screened and was also appointed to the temporary status, but instead of giving appointment to a temporary post, he was treated as substitute and appointed to the vacancy when the regular candidate went on leave. Whereas in Rabia's case (supra), the employee was not regularized. In Rabia's case, in para 4, it was observed by the Hon'ble Supreme Court that the casual labourers who are treated as temporary after completion of six months' continuous service are not entitled to family pension as every casual labourer employed in the railway administration for six months is entitled to temporary status. Thereafter they will be empanelled and 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. In the case of Rabia (supra) though some of them have been screened, yet appointments were not given since the temporary posts were not available or in some cases, they were not even eligible for screening because the posts become available after the death. Under the aforesaid circumstances, the Horlble Supreme Court held that the respondent - widows are not eligible for family pension benefits. 15. However, the facts of the present case are different. In the present case, the deceased employee had been screened and after screening merit list was also prepared in which name of the deceased employee was placed at serial No.36. 15. However, the facts of the present case are different. In the present case, the deceased employee had been screened and after screening merit list was also prepared in which name of the deceased employee was placed at serial No.36. A perusal of the merit list (Annex.A/7) goes to show that 42 substitutes were screened and selected of regular appointment against the vacancies available upto 30.6.1975. Therefore, the deceased employee had been selected for regular appointment against the vacancies upto 30.6.1975, but on account of delay and laches on the part of the Railway Administration, formal order of regularisation could not be issued. Thus, the authority cited by the learned counsel for the petitioners in the case of Union of India V/s Rabia (supra) would not be helpful to the petitioners. 16. The learned counsel for the petitioners has also relied on the case of Secretary, State of Karnataka V/s Uma Devi (supra). In the said case, the Hon'ble Supreme Court has held that it is erroneous to merely consider equity for the handful of people who have approached the Court with a claim whilst ignoring equity for the teeming millions seeking employment and a fair opportunity for competing for employment. It was further held that the Scheme of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment de hors the Constitutional Scheme of public employment. The ratio laid down in the case of Uma Devi (supra) is not applicable to facts of the present case, as in the present case, the deceased employee had already been screened and had been selected for regular appointment as per law acquired to regular status w.e.f. 30.6.1975, which can be termed as a deemed status of a regular employee. 17. The learned counsel for the respondent has also relied on the case of S.K. Mastan Bee V/s General Manager, South General Railway and another (supra). In the said case, the family pension was claimed after a lapse of 22 years as the petitioner was an illiterate widow with meagre resources and it was observed by the Hon'ble Supreme Court that the petition and the claim was maintainable despite delay where the petitioner was an illiterate widow with meagre resources who had been deprived by the Railways of her Gangman husband's arrears of family pension. 18. 18. Under the aforesaid circumstances, we are of the opinion that in the present case when the deceased employee was regular employee of the Railway w.e.f. 30.6.1975 in view of the merit list (Annex.A/7), his widow was entitled to get family pension. 19. The next question which requires consideration of this Court is as to whether the respondent Smt. Santosh Kaur is entitled to get family pension or not because her name in the Railway record is entered as Smt. Satwant Kaur. The learned counsel for the respondent has placed on record various documents, namely, Secondary School Certificate, letter of Housing Board, family Card, PAN card etc. in which her name has been shown as Smt. Santosh Singh w/o Sh. Lal Singh, but in the service record, her name has been entered as Smt. Satwant Kaur. We have gone through the judgment of the learned Tribunal. The learned Tribunal, while allowing the misc. application, has rightly observed that the gratuity was earlier paid by the Railway to the respondent - herself and now they cannot turn round and doubt the genuineness of the applicant for paying her family pension. We have also perused the record produced by the learned counsel for the respondents during the course of hearing, wherein the address of the respondent Smt. Santosh Kaur alias Satwant Kaur is same and even photographs on the document also tally with the respondent who was present in the Court. That apart except the respondent, nobody else has claimed the retiral benefits of the deceased employee late Sh. Lal Singh. Under such circumstances, we are not inclined to go into this controversy by taking contrary view to the one taken by the learned Tribunal. However, we would like to make it clear that before granting family pension, the Railway Administration shall comply with the provisions of Rule 2838 R-II of the Pension Rules as contained in Section 7 of the Indian Railway Establishment Manual under the Pension Rules which deals with the identification pensioners.Accordingly, this writ petition is dismissed with costs and the order dated 5.1.2007 passed by the learned Tribunal is affirmed. The cost is quantified at Rs. 2,000/- which shall be paid to the respondent No.1 within a period of one month from today.Petition dismissed with costs. *******