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2013 DIGILAW 225 (GUJ)

Union of India v. Pratapbhai Mansing

2013-04-22

R.D.Kothari, Ravi R.Tripathi

body2013
Judgment Ravi R. Tripathi, J.—The present petition is filed by the Union of India through Ministry of Railway with General Manager, Western Railway and Divisional Railway Manager (E), Western Railway, Baroda, being aggrieved by judgment and order dated 13.9.2005 passed in O.A. No.159 of 2005. 2. The controversy involved in this matter is that the original petitioner, who was granted temporary status on 30.3.1986, was absorbed on regular basis on 15.11.1996. Thereafter, he retired on reaching the age of superannuation on 31.5.2000. The question arose about the grant of pension to this petitioner for which he approached the Railways by filing a representation on 26.8.2000. But that representation was disposed of by the Railways and therefore, the petitioner approached the Central Administrative Tribunal by filing O.A. No.85 of 2004. The said O.A. was decided by the Central Administrative Tribunal by direction to the Railways to decide the representation within 15 days. 3. The representation was decided by the Railways by order dated 16.4.2004 and it was conveyed to the petitioner that as he has not completed 10 years’ qualified service to receive pension, he cannot be paid any pension. According to Railways, the qualifying service of the petitioner was only 8 years 7 months and 15 days. This was on the basis that the service put in by the petitioner with ‘temporary status’ until he was absorbed on regular basis, could be considered only to the extent of 50% towards qualifying service. 4. This decision of the Railways was challenged by the petitioner by filing O.A. No.159 of 2005 which came to be decided by judgment and order dated 13.9.2005 (which is under challenge). 5. Learned advocate Mrs. Vasavdatta Bhatt appearing for the petitioners invited attention of the Court to the reasoning part of the judgment which is in Para.4. The Hon’ble Tribunal relied upon a decision of the Division Bench of this Court in the case of Rukhiben Rupabhai vs. Union of India in SCA No.15807 and 15808 of 2003, decided on 11.5.2005 and relying on that decision, the Hon’ble Tribunal allowed the Original Application. The Hon’ble Tribunal relied upon a decision of the Division Bench of this Court in the case of Rukhiben Rupabhai vs. Union of India in SCA No.15807 and 15808 of 2003, decided on 11.5.2005 and relying on that decision, the Hon’ble Tribunal allowed the Original Application. It will be appropriate to note here that learned advocate appearing for the Railways did contend before the Hon’ble Tribunal that the judgment in the case of Rukhiben (Supra) is challenged by the respondents (Railways) before the Hon’ble the Apex Court by way of SLP and therefore, no reliance be placed on the said judgment and order. The Hon’ble Tribunal did not accept the aforesaid submission of the learned advocate appearing for the Railways and as there was no stay against the operation of the Division Bench’s judgment of this Court, the Hon’ble Tribunal holding that the judgment is binding to the Hon’ble Tribunal, decided the matter accordingly. 6. Learned advocate appearing for the Railways made available for perusal a copy of the judgment and order passed by the Hon’ble the Apex Court in the matter of Civil Appeal No.7145 of 2005 and other appeals dated 21.7.2011. The Hon’ble the Apex Court was pleased to quash and set aside the judgment of the Division Bench of this Court and while doing so, granted permission to the employees to challenge the amendment to the Rules. For ready perusal, the relevant part of that judgment is quoted, thus : “At this juncture learned counsel appearing on behalf of the respondents submit that since the amended Scheme dated 11th September, 1986 has not been properly appreciated in Chanda Devi (Supra), the issue may be referred to a larger Bench. We are afraid, we are unable to persuade ourselves to agree with the submission made by the learned counsel for the simple reason that the validity of Rule 1501, whereby the Railways had included the “casual labour with temporary status” in the definition of “temporary railway servant”, by its circular dated 11th September,1986, had not been questioned by the respondent before the High Court, and therefore, in the absence of any statutory rules framed, the terms and conditions of services of the employees of the railways could be governed by the Railway Manual, an amalgam of various circulars issued from time to time. For afore-going reasons and following the ratio of the decision in Chanda Devi’s case (Supra), we allow all the appeals and set aside the impugned judgments. However, we clarify that it will be open to the respondent – employees, if so advised, to challenge the validity of the aforenoted amendment carried out in terms of circular dated 11th September, 1986. If such a challenge is laid within three months from today, the appropriate forum shall examine the issue on merits, and shall not non-suit the party concerned on the ground of delay. However, in the facts and circumstances of the case, the parties are left to bear their own costs.” 7. In view of the aforesaid fact situation, the judgment and order passed by the Hon’ble Tribunal in O.A. No.159 of 2005 cannot be allowed to stand. The same is hereby quashed and set aside. 8. Learned advocate Mr. Dave appearing for the respondent submitted that some of the employees have approached the Hon’ble Tribunal challenging the amendment as the leave was granted by the Hon’ble the Apex Court by filing O.A. No.375 of 2011 which is reported to be pending as on date. It is submitted that present respondent – original petitioner be also allowed to revive the said O.A. with a permission to carry out necessary amendment in O.A. so as to incorporate challenge to the amendment at par with O.A. No.375 of 2011 and the Hon’ble Tribunal may be directed to decide the O.A. of the petitioner along with the pending O.A. being O.A. No.375 of 2011. 9. The request is found reasonable. The same is granted. The judgment and order dated 13.9.2005 is quashed. The O.A. No.159 of 2005 is ordered to be revived with a permission to carry out the necessary amendment in O.A. to incorporate the challenge to the amendment as is permitted by the Hon’ble the Apex Court on the same lines as the challenge is made in O.A. No. 375 of 2011. Rule is made absolute with no order as to costs.