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2014 DIGILAW 473 (AP)

Secretary v. V. Michael Raju

2014-03-26

ANIS, K.C.BHANU

body2014
ORDER K.C. Bhanu, J. 1. These writ petitions are filed seeking to issue writ of Certiorari calling for the records pertaining to the order, dated 31.8.2010, in O.A. Nos. 616 and 492 of 2010 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, "the Tribunal") and quash the same. Respondent No. 1 in both the writ petitions filed the aforementioned Original Applications before the Tribunal to declare that their case is governed by the Pension Scheme available prior to 1.1.2004 i.e., the date of introduction of New Pension Scheme; for consequential orders to allow all the retirement benefits under the Old Pension Scheme after declaring Serial Circular No. 206 of 2004, dated 16.12.2004 of petitioner No. 1 herein in the form of clarification to the New Pension Scheme as contrary to law and to set aside the same. 2. The Tribunal, upon considering the material on record, allowed the Original Applications directing the petitioners herein to count 50% of service rendered by the applicants on acquiring temporary status till regularization for pension as per Old Pension Scheme; and to grant all the retirement benefits to the applicant in O.A. No. 616 of 2010 to which he is entitled under the Old Pension Scheme and pass appropriate orders. Challenging the same, the present writ petition is filed by the Railways. 3. Learned Standing Counsel appearing for the Railways/writ petitioners contended that the services of the applicants were regularized after the New Pension Scheme came into existence by virtue of Serial Circular No. 206/2004, dated 16.12.2004; that the individuals, who have been regularized after introduction of the New Pension Scheme, would be governed by the same; that in view of this Serial Circular No. 206/2004 and in view of the fact that the services of the applicants were regularized after 2004, the New Pension Scheme would be applicable to them; that since they are "Temporary Railway Servants" within the meaning of Indian Railway Establishment Manual Volume I, they are not entitled to the Old Pension Scheme and hence, he prays to set aside the impugned order. 4. 4. On the other hand, learned counsel for respondent No. 1/applicants contended that the New Pension Scheme would apply only to the new recruits, who came into service on or after 01.01.2004; that admittedly, the applicants were given temporary status long prior to 1.1.2004 and therefore, they come within the meaning of "Railway Servants"; that the Tribunal, after considering the same, rightly allowed the Original Applications and that order needs no interference by this Court and hence, prays to dismiss" the writ petitions. 5. It is not in dispute before this Court that the Railways introduced a New Pension Scheme by Serial Circular No. 10/2004, dated 11.2.2004. A copy of the Gazette Notification No. 5/7/2003-ECB & PR dated 22.12.2003, published by the Ministry of Finance Department of Economic Affairs introducing a new restructured defined Contribution Pension System for all new entrants to Central Government service including Railway service, from 1st of January, 2004 along with a copy of the resolution, dated 10th October, 2003, constituting the interim Pension Fund Regulatory and Development Authority (PFRDA) is circulated for information and necessary action. As seen from this scheme, it is clear that all the Zonal Railway administrations, Production Units, Recruiting Authorities etc., are advised to incorporate these changes, if considered necessary, in their prospectus/application forms/offer of appointments to be issued to the new recruits. The new recruits joining the Railway services from 1.1.2004 on the basis of the offer of appointment already issued shall also be covered by the New Pension System and not by the Railway Services (Pension) Rules, 1993 (for short, "the Rules") and State Railway Provident Fund Rules. Therefore, as seen from this system, it is clear that the New Pension Scheme would be applicable only to the new entrants to the Central Government Service including Railway Service. When the services of the applicants were admittedly regularized on or after 1.1.2004, it has to be seen as to whether they come within the meaning of new recruits in the railways or not. For that purpose, the Rules, which govern the service conditions of applicants have to be looked into. 6. "Railway Servant" is defined under Section (sic. When the services of the applicants were admittedly regularized on or after 1.1.2004, it has to be seen as to whether they come within the meaning of new recruits in the railways or not. For that purpose, the Rules, which govern the service conditions of applicants have to be looked into. 6. "Railway Servant" is defined under Section (sic. Rule) 3(23) of the Rules, which reads as follows: 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 Person 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. Therefore, from the above Rule, it is clear that only the casual labour and the persons borrowed from other departments are excluded from the definition of "Railway Servant". It is not in dispute that admittedly, the applicants were given temporary status long prior to 1.1.2004. 7. Learned counsel for the petitioners placed strong reliance on the meaning of "Temporary Railway Servant," as defined in the Indian Railway Establishment Manual Volume - I, which reads as under: 1501. (i) Temporary Railway Servants: A "temporary railway servant" means a railway servant without a lien on a permanent post on a Railway or any other administration or office under the Railway Board. The term does not include "casual labour", including 'casual labour with temporary status', a "contract" or "part-time" employee or an "apprentice". Basing on the said definition, learned counsel for the petitioners contended that a casual labour with temporary status does not come within the meaning of a "Temporary Railway Servant", but as per the Rules, a person given a casual labour, who was given a temporary status, can be termed as a Railway Servant. Therefore, when a statutory Rule clearly defines as to who is a "Railway Servant", that has to be taken into consideration. Therefore, the 'Temporary Railway Servant', as defined under Indian Railway Establishment Manual Volume - I, cannot be taken into consideration for the reason that they cannot override the statutory rules. Therefore, when a statutory Rule clearly defines as to who is a "Railway Servant", that has to be taken into consideration. Therefore, the 'Temporary Railway Servant', as defined under Indian Railway Establishment Manual Volume - I, cannot be taken into consideration for the reason that they cannot override the statutory rules. Therefore, the contention of the learned counsel for the petitioners that the applicants are temporarily working with the Railways is untenable since they were absorbed in the regular pay scale. Therefore, at any rate, they cannot be termed as new recruits or new entrants. 8. Learned counsel for the petitioners placed reliance on the clarification given by the Railway Board in Serial Circular No. 206/2004, dated 16.12.2004, wherein certain queries and clarifications were sought for. For Query No. 1 as to whether New Pension System is applicable to substitutes/monthly rated casual labour unless absorbed as regular employees or not, the reply given is that the grant of temporary status to casual employees is without reference to the availability of regular Gr. 'D' post, the casual employees on grant of temporary status do not hold any post under the Government and that the individuals, who have been regularized after the introduction of New Pension Scheme, would be governed by the same. Basing on the said comments, learned counsel for the petitioners contended that since the services of the applicants have been regularized admittedly after 1.1.2004, their cases have to come within the New Pension Scheme introduced on 1.1.2004. The said clarification is contrary to the New Pension Scheme introduced on 1.1.2004, as all the Zonal Railway administrations, Production Units, Recruiting Authorities etc., are advised to incorporate these changes to the new recruits only. Admittedly, the applicants are not the new recruits though their services have been regularized after the New Pension Scheme came into force. But prior to the scheme, they were the regular railway servants of the Railways, as temporary status has been conferred on them by putting them on the regular pay scales. Therefore, the New Pension Scheme is applicable only to the new recruits. So, we do not find any error apparent on the face of the record so as to call for interference by this Court. Hence, there are no merits in these writ petitions and they are liable to be dismissed. Accordingly, the Writ Petitions are dismissed. There shall be no order as to costs. So, we do not find any error apparent on the face of the record so as to call for interference by this Court. Hence, there are no merits in these writ petitions and they are liable to be dismissed. Accordingly, the Writ Petitions are dismissed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in these Writ Petitions shall stand closed.