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2011 DIGILAW 989 (GAU)

Mira Rani Goala v. Union of India

2011-12-16

BIPLAB KUMAR SHARMA, PRASANTA KUMAR SAIKIA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. A. Dasgupta, learned counsel for the petitioner as well as Ms. U. Chakraborty, learned counsel representing the respondents Railways. By means of this writ petition, the petitioner has challenged the judgment and order dated 10.1.2008 passed by the learned Central Administrative Tribunal, Guwahati Bench (hereinafter referred to as the Tribunal) in the Original Application (OA) No. 98/2007, by which the application has been dismissed. 2. The short question which falls for our consideration is as to whether the husband of the petitioner, Late Lutera Ram Goala, being in the employment roll of the Railways as casual employee with temporary status could be said to be a temporary and/or permanent Railway employee so as to entitle his wife i.e. the petitioner family pension. 3. The husband of the petitioner was appointed in the construction wing of the N.F. Railways as casual motor vehicle driver. That was in the year 1985 and to be precise on 7.3.1985. Thereafter he was conferred with temporary status with effect from 1.3.1986. Although according to the petitioner, the husband of the petitioner was promoted as a Grade-II driver, but there is dispute relating to the same as the respondents have denied that he was so promoted. The petitioner's husband was sent for screening test towards consideration of his case for regular appointment. However, such screening as was ordered on 23.7.1994 could not be held. Be it stated here that the husband of the petitioner was not the lone casual worker for such screening test. There were hundreds of such other casual employees. 4. While the husband of the petitioner was working as casual employee with the temporary status, he expired on 19.3.1997. By that time, he had rendered about 12 years of service. Although the petitioner has been paid gratuity etc. on account of death of her husband, but was not paid family pension. She agitated her grievance relating to the same, but the same having not yielded any result, she approached the Tribunal by filing the aforesaid O.A. No. 130/2006. The O.A. having been dismissed by the impugned judgment and order dated 10.1.2008, she has approached this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 5. Mr. She agitated her grievance relating to the same, but the same having not yielded any result, she approached the Tribunal by filing the aforesaid O.A. No. 130/2006. The O.A. having been dismissed by the impugned judgment and order dated 10.1.2008, she has approached this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 5. Mr. Dasgupta, learned counsel for the petitioner, referring to the purported promotion of the petitioner's husband as driver Grade-II in the year 1990 (15.5.1990) submits that although the petitioner was appointed as casual employee, but he having been promoted during such casual employment, his services are required to be construed as that of a substituted employee and consequently the petitioner is entitled to receive family pension. In this connection, he has placed reliance on the decision of the Apex Court reported in (1996) 7 SCC 27 , Prabhavati Devi v. Union of India & Ors. 6. Countering the above argument, Mrs. U. Chakraborty, learned counsel representing the Railways, submits that the petitioner's husband being not a regular Railway employee, she is not entitled to receive family pension. Referring to the detailed written argument submitted by her, she submits that the plea of tile petitioner that her husband should be construed to be a substitute employee being an afterthought is not tenable both on fact as well as in law. She has also referred to the decision of the Apex Court reported in (1997) 6 SCC 580 , Union of India & Ors. v. Rabia Bikaner & Ors., in which the Apex Court in reference to the provisions of Railway Services (Pension) Rules, 1993 and the provisions of the Indian Railways Establishment Manual held that widow of a casual employee with temporary status is not entitled to family pension. 7. We have considered the rival submissions made by the learned counsel for the parties and the materials on record and have given our anxious consideration to the same. 8. Although, Mr. 7. We have considered the rival submissions made by the learned counsel for the parties and the materials on record and have given our anxious consideration to the same. 8. Although, Mr. Dasgupta, learned counsel for the petitioner seeks to project the case of the petitioner's husband as that of a substitute employee in the Railways, but nowhere in the pleadings, there is even an iota of whisper regarding such status of the husband of the petitioner it is only on the basis of tile purported promotion of the husband of the petitioner in the year 1990 (15.5.1990), learned counsel for the petitioner submits that in view of such promotion, the appointment of the petitioner's husband should be construed to be that of a substitute employee. 9. We have gone through the pleadings both in the original application as well as in the present writ petition. In paragraph 4.4. of the original application, there is an averment that the husband of the petitioner was promoted as Grade-II driver vide order dated 15.5.1990. In response to the said averment, the Railways in their written statement denied the same. It was stated in the written statement that the petitioner's. husband was not promoted to any higher grade. It was also stated that there is no office order promoting the petitioner's husband as Grade-H driver during casual employment. It was stated that it might be in the exigencies of service, he was allowed to work in some other assignment. 10. In the writ petition also, the petitioner has stated casually about her husband's purported promotion as Grade-II driver on 15.5.1990, which has been denied by the respondents in their counter affidavit. It has been stated that such promotion is a disputed one and that some local arrangements might have been made, which the petitioner cannot espouse to be a case of substitute employee in lieu of casual employee. 11. Above aspect of the matter will have to be considered in reference to the attending facts and circumstances and the relevant records, which have been produced by the learned counsel representing the railways along with the written argument. 11. Above aspect of the matter will have to be considered in reference to the attending facts and circumstances and the relevant records, which have been produced by the learned counsel representing the railways along with the written argument. Apart form the fact that there is no whisper in any of the pleadings either in the O.A. or in the writ petition that the petitioner's husband was appointed as a substitute employee, the very fact that he was empanelled for screening test in the circular letter dated 4.9.1994 at serial No. 198 would go to show that he was never appointed as substitute. The said circular letter was circulated enclosing therewith as many as 419 names of casual employees requiring them to undergo screening test If the petitioner's husband was appointed at any point of time as substitute, his name could not have been included in the said list. 12. The aforesaid circular letter has circulated for screening process to accommodate the casual employees against 12 vacancies. As noted above, the petitioner's husband was included in the list at serial No. 198. The materials have disclosed that the petitioner's husband was called to appear in trade test on 18.11.1996, results of which were declared on 12.5.1997. Although he appeared in the trade test/screening test, his name could not be included in the list of successful candidates as he failed to qualify in the said test. Consequently, his service could not be regularized. The next screening test was held on 30.12.1997, results of which were declared on 31.12.1997 but in the meantime the husband of the petitioner expired on 19.3.1997 i.e. 9 months before the screening test. Thus, naturally he could not appear in the screening test. 13. It is in the aforesaid circumstances, the respondents had contended before the Tribunal that the petitioner is not entitled to family pension. In Rebia Bikaner (supra), the question before the Apex Court was : Whether the widow of a casual labourer in Railway Establishment, who died after putting in six months service and obtaining the status of a temporary workman but before his appointment to a temporary post alter screening, is entitled to family pension? 14. In Rebia Bikaner (supra), the question before the Apex Court was : Whether the widow of a casual labourer in Railway Establishment, who died after putting in six months service and obtaining the status of a temporary workman but before his appointment to a temporary post alter screening, is entitled to family pension? 14. Answering the said question, the Apex Court in reference to the provisions in the Railways Establishment Manual held that although the casual employee with temporary status are entitled to certain entitlements and privileges granted to temporary railway servants, but the same does not entitle them to family pension. 15. The learned Tribunal having considered the above factual aspects of the matter and having found that the petitioner's husband was a casual employee with temporary status, she is not entitled to family pension. Had it been a case of appointment of the petitioner's husband as substitute, there would have or should have been an order to that effect. However, except the vague and general statement that the petitioner's husband was allowed to work as Grade-II driver, there is nothing to show that he was appointed as a substitute driver. Such purported promotion of the petitioner's husband has also been denied by the respondents as noted above. That apart, as noted above, throughout the proceedings both before the Tribunal and this Court, it is not the case of the petitioner that her husband had worked in the railways as a substitute. It is only during the course of hearing of this writ petition, the learned counsel for the petitioner has sought to project the case of the petitioner as that of entitlement to family pension by the widow of as substitute employee. For all the aforesaid reasons, we do not find any merit in the writ petition and accordingly it is dismissed. However, there shall be no order as to costs. Petition dismissed.