# Union of India & Ors v. Smt. Kamla Pandey & Anr

- **Citation:** (2023) 4 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Writ-A No. 47099 of 2012
- **Bench:** Suneet Kumar, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-smt-kamla-pandey-anr-50101
- **Pages:** 8

## Headnote

Sri
J.P.
Pandey,
Sri
Pramod
Kumar
(Saxena), Sri Pramod Kumar Saxena, S.C.,
Sri Vijay Kumar Singh, Sri Ramesh Narain
Pandey

A. Service Law - Railway Service (Pension)
Rules, 1993-Section 18 Sub-Rule (3)-
pension to casual labour-deceased was a
casual labour-his wife approached the
Tribunal by filing OA seeking family
4 All. Union of India & Ors. Vs. Smt. Kamla Pandey & Anr.
261
pension for herself and for her minor son
under the pension rules applicable to the
employees of the railways-For entitlement
of
pension
minimum
10
years
of
employment is mandated under the RulesHowever the deceased rendered services
for less than 10 years-More so, he was not
appointed as a temporary railway servant,
nor was he regularized on a regular Group
D post, accordingly, as per Pension Rules a
casual labour is not entitled to pensionThe reasoning assigned by the Tribunal is
based on wrong assumption that the
deceased employee was a 'temporary
railway servant', whereas, under the
Pension
Rules
'casual
labour
with
temporary
status',
is
ineligible
and
excluded from the definition of 'temporary
railway servant'.(Para 1 to 34)

The writ petition is allowed. (E-6)

List of Cases cited:

Inder Pal Yadav & ors. Vs U.O.I. & ors.

## Text

260 INDIAN LAW REPORTS ALLAHABAD SERIES
1930 as applicable in U.P. But under
Public Account Default Act, 1850 it cannot
be recovered as arrears of land revenue. In
case
of
Titoo
Singh
Vs.
District
Magistrate,( Supra) the provision of
Sections 173 A and 21 was being
considered and the Division Bench of this
Court has held that it cannot be recovered
as arrears of land revenue. It can adopt
other modes of recovery.

In view of the aforesaid fact, we
are satisfied that the recovery cannot be
made against the petitioner unless and until
a liability to that effect of the loss of
government amount is fixed upon the
petitioner. "

24. Learned Counsel for the Union of
India on the other hand states that the
impugned order has rightly been passed but
he failed to substantiate the fact as to why
fresh disciplinary proceeding has not been
initiated as per direction of the Central
Administrative Tribunal.

25. After considering the rival
submissions made by both side as well as
perusing the record of the case, it is
apparent
that
no
fresh
disciplinary
proceeding was initiated as per direction
of Central Administrative Tribunal and
the petitioner is not a Public Accountant
as defined in Section 2 of the Public
Accountant Default Act, 1850 and as per
Division Bench judgment of this Court in
the case of Smt. Madhubala Bharti
(supra) the proceeding of recovery cannot
be initiated against the petitioner unless
and until a liability to that effect of the
loss of government amount is fixed upon
him and even the Public Accountant
Default Act, 1850 (Act No.12 of 1850)
has
been
repealed
by
the
Central
Government on 02.09.2019 through a bill
called as Repealing and Amending Bill,
2019 as the said Act has become
obsolete.

26. In view of the aforesaid, this
Court is of the opinion that the recovery
cannot be made against the petitioner
unless and until a liability to that effect of
the loss of government amount is fixed
upon
the
petitioner.
Therefore,
the
impugned order dated 06.05.2011 passed
by the respondent no.4, Chief Post
Master, Kanpur, District Kanpur Nagar is
quashed.

27. The Writ Petition is allowed. No
order as to cost.
----------
(2023) 4 ILRA 260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 47099 of 2012

Union of India & Ors. ...Petitioners
Versus
Smt. Kamla Pandey & Anr. ...Respondents

Counsel for the Petitioners:
Sri M.K. Sharma, Sri Rajnish Kumar Rai,
S.C., Sri Rajesh Tripathi

Counsel for the Respondents:
Sri
J.P.
Pandey,
Sri
Pramod
Kumar
(Saxena), Sri Pramod Kumar Saxena, S.C.,
Sri Vijay Kumar Singh, Sri Ramesh Narain
Pandey

A. Service Law - Railway Service (Pension)
Rules, 1993-Section 18 Sub-Rule (3)-
pension to casual labour-deceased was a
casual labour-his wife approached the
Tribunal by filing OA seeking family
4 All. Union of India & Ors. Vs. Smt. Kamla Pandey & Anr.
261
pension for herself and for her minor son
under the pension rules applicable to the
employees of the railways-For entitlement
of
pension
minimum
10
years
of
employment is mandated under the RulesHowever the deceased rendered services
for less than 10 years-More so, he was not
appointed as a temporary railway servant,
nor was he regularized on a regular Group
D post, accordingly, as per Pension Rules a
casual labour is not entitled to pensionThe reasoning assigned by the Tribunal is
based on wrong assumption that the
deceased employee was a 'temporary
railway servant', whereas, under the
Pension
Rules
'casual
labour
with
temporary
status',
is
ineligible
and
excluded from the definition of 'temporary
railway servant'.(Para 1 to 34)

The writ petition is allowed. (E-6)

List of Cases cited:

Inder Pal Yadav & ors. Vs U.O.I. & ors.
(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Rajesh Tripathi, learned
counsel appearing for the petitioner-Union
of India-Railways and Sri Pramod Kumar
(Saxena) assisted by Sri Ramesh Narain
Pandey, learned counsel for the respondent.

2. The writ petition is directed against
the order dated 22 May 2012, passed by the
Central Administrative Tribunal, Allahabad
Bench, Allahabad (for short "Tribunal"), in
Original Application No. 1144 of 2006 (for
short "OA"), whereby, allowing the family
pension to the first respondent/original
applicant.

3. During pendency of the writ
petition, the original applicant died, the
legal heirs have been substituted.

4. The original applicant, a widow, of
R.R. Pandey, who was employed as casual
labour with the Railways from 8 August
1977. He was given temporary status w.e.f.
1 January 1985, vide order dated 25
November 1985. The employee died on 12
July
1988.
On
the
death,
the
widow/original applicant came to be
engaged as fresh casual labour, vide order
dated 22 August 1988. In 2012, she
approached the Tribunal by filing OA
seeking family pension for herself and for
her minor son under the pension Rules
applicable to the employees of the
Railways. The OA was contested by the
petitioners/respondents,
inter
alia,
contending that for entitlement of pension
minimum 10 years of employment is
mandated under the Rules. The husband of
the respondent was engaged as a casual
labour from 29 August 1979 to 1
September 1980, and thereafter with breaks
until his death, according to the petitioner
the total length of service rendered by the
deceased employee was 8 years 9 months
and 9 days. In other words, having rendered
less than 10 years of service, family
pension
was
not
admissible
to
the
respondent, since the deceased employee
was a casual labour.

5. The learned Tribunal relying on
Rule 18 of the Railway Service (Pension)
Rules, 1993 (for short ''Pension Rules') in
particular sub-Rule (3) of Rule 18, allowed
the OA. The petitioner/respondents were
directed to grant family pension to the
respondent/original applicant from the date
of eligibility and also to pay arrears.

6. Learned counsel appearing for the
petitioner submits that the Pension Rules,
in particular Rule 18, would not apply in
the case of casual labour, therefore, the
respondent/original
applicant
was
not
entitled to family pension. It is further
submitted that at no point of time the
262 INDIAN LAW REPORTS ALLAHABAD SERIES
husband
of
the
respondent-original
applicant came to be appointed as a
temporary railway servant, nor, was he
regularized on a regular Group D post,
accordingly, as per Pension Rules a casual
labour is not entitled to pension.

7. Per contra, the learned counsel
appearing
for
the
respondent/original
applicant submits that the employee,
admittedly, came to be engaged as a casual
labour
but
subsequently,
was
given
temporary status w.e.f. 1 January 1985,
after granting age relaxation of 1 year 3
months and 16 days. Accordingly, it is
urged that the employee was conferred
temporary
status/regularized
against
a
Group D post. It is further submitted that it
is noted in the impugned judgment of the
learned
Tribunal
that
the
respondent/original applicant came to be
given compassionate appointment on the
death of the employee, meaning thereby,
that had the employee not been a temporary
railway servant or a regular employee,
compassionate appointment would not have
been given to the respondent.

8. Further, it is submitted that the case
of the respondent/original applicant would
be governed as per Section (a) non-gazetted
staff (1) Temporary Railway Servants Rule
2301 under Chapter XXIII of the Railway
Establishment
Manual,
which
was
applicable on the date of death of employee
i.e. 1988. He further submits that the Rule
defining
''temporary
railway
servant'
subsequently,
came
to
be
amended/modified, as reflected in Chapter
XV Volume (1) (revised addition 1989)
and in the terms and conditions applicable
to railway servants and substitutes in
temporary servants non-gazetted staff Rule
(1501). It is sought to be urged that the
expression ''casual labour with temporary
status', was subsequently incorporated in
the defination in 1989, which was not
excluded in the earlier Rule. It is, therefore,
submitted that earlier ''casual labour' was
excluded from the definition of ''temporary
railway servant', and since the employee
was
conferred
''casual
labour
with
temporary status', prior to 1989, his
spouse/widow would be entitled to family
pension. In other words, it is sought to be
urged that the Rule excluding ''casual
labour with temporary status', which came
to be incorporated in 1989 cannot be given
effect retrospectively so as to non-suit the
respondent and deprive her family pension.

9. It is urged that the learned Tribunal
has not committed any illegality or
perversity in granting family pension, the
writ petition being devoid of merit is liable
to be dismissed.

10. Rival submissions fall for
consideration.

11. The sole question that arises for
consideration is, as to whether, the
respondent/original applicant was eligible
and entitled to family pension under the
Pension Rules, or in the alternative is
''casual labour with temporary status'
entitled to pension.

12. Rule 18(1) of Pension Rules
provides
for
pension,
inter
alia,
to
temporary railway servant. The Rule reads
thus:

Rule-18: Pensionary, terminal or
death
benefits
to
temporary
railway
servant. -

(1) A temporary railway servant
who retires on superannuation or on being
declared permanently incapacitated for
further railway service by the appropriate
4 All. Union of India & Ors. Vs. Smt. Kamla Pandey & Anr.
263
medical authority after having rendered
temporary service not less than ten years
shall
be
eligible
for
grant
of
superannuation, invalid pension, retirement
gratuity and family pension at the same
scale as admissible to permanent railway
servant under these rules.

13. On plain reading of rule it
provides that a temporary railway servant,
who retires on superannuation or being
declared permanently incapacitated for
further
railway
service
after
having
rendered temporary service not less than 10
years, shall be eligible for grant of
superannuation, retirement gratuity and
family pension, as admissible to permanent
railway servant. In other words, the rule
mandates two conditions for earning family
pension: (i) the employee must have been a
''temporary railway servant'; (ii) must have
rendered service for not less than 10 years.

14. Sub-rule (3) of Rule 18 provides
for family pension in the event of death in
harness of a temporary railway servant.
Sub-rule (3) of Rule 18 is extracted:

In the event of death in harness of
a temporary railway servant his family
shall be eligible to family pension and
death gratuity on the same scale as
admissible to families to permanent railway
servants under these rules

15. In other words, the rule mandates
that in the event of death of a ''temporary
railway servant', his family shall be eligible
for the family pension as admissible to
families of permanent railway servant
under the Rules. It does not mandate 10
years of service, which is required to be
satisfied in respect of temporary railway
servant, who retires on attaining the age of
superannuation
or
being
declared
permanently incapacitated. The Rule does
not employ the expression, ''casual labour
with temporary status'.

16. The entitlement to family pension
to the respondent/original applicant is
dependent upon the fact that whether the
employee
was
conferred/appointed
''temporary railway servant'. It is not being
disputed that the employee came to be
appointed as a casual labour and on having
put in the requisite number of days/ years,
mandated in terms of Railway Board
Circular dated 1 June 1985, temporary
status would be conferred upon the casual
labour. The employee was conferred the
status of ''casual labour with temporary
status', w.e.f. 1 January 1985 vide order
dated 25 November 1985. The order reads
''...... under noted project casual labour
working on this sub-division, having more
than 3 years but less than 5 years (1551
days)
service
including
360
days
continuous working days as on 1.1.84 on
being declared medically fit in classes as
shown against each are are being given
temporary status w.e.f. 1.1.84 in grade and
scale indicated against each: .....' It appears
that the employee was granted age
relaxation while conferring upon him status
of ''casual labour with temporary status'.
The employee thereafter died in 1988.
Admittedly, on the death of the employee
he was not working/engaged as ''temporary
railway servant'. Rule 18 of Pension Rules
was, therefore, not applicable upon him.

17. Under Railway Establishment
Manual Rule 2301, a casual labour has
been excluded from the definition of
temporary railway servant. The rule reads
thus:

''Temporary
Railway
Servant'
means a railway servant without a lien on a
264 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent post on a Railway or any other
administration or office under the Railway
Board. The term does not include ''casual
labour', a ''contract' or ''part time'
employee or an ''apprentice'.

18. The question that arises is as to
whether ''casual labour with temporary
status' is entitled to pension/family pension.

19. Subsequently, it appears that the
Rule came to be amended/modified being
Rule 1501 in the Railway Establishment
Manual (revised addition 1989) which is
extracted:

''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 ''parttime' employee or an ''apprentice'.

20. The Rule is pari materia with the
earlier Rule, except the expression "casual
labour with temporary status" was added
excluding such category/class of casual
labour from the definition of ''temporary
railway servant'. The modification was
incorporated by Railways after the decision
rendered by the Supreme Court in Inder
Pal Yadav and others vs. Union of India
and others. It is thereafter category of
''casual labour with temporary status' was
created from amongst the casual labour. It
would be relevant at this stage to notice the
definition of ''casual labour'. Rule 2501 is
extracted:

Casual labour refers to labour
whose
employment
is
seasonal,
intermittent, sporadic or extends over short
period. Labour of this kind is normally
recruited form the nearest available source.
It is not liable to transfer, and the
conditions applicable to permanent and
temporary staff do not apply to such labour.

21. The submission of the learned
counsel
appearing
for
the
respondent/original applicant is that since
the
expression
''casual
labour
with
temporary status', was not part and parcel
of the earlier definition of ''temporary
railway servant', therefore, the same would
not be applicable in the case of respondent
as the employee had died in 1988 prior to
the amendment. The temporary status was
conferred upon the employee prior to the
amendment
which
cannot
be
read
retrospectively to have been excluded in
the earlier definition of ''temporary railway
servant', therefore, it is urged that the
respondent/original applicant is entitled to
family pension being admissible to her
under the Rules on the death of the
employee.

22. In our opinion the submission of
the
learned
counsel
for
the
respondent/original
applicant
is
misconceived and based upon misreading
of the Rule.

23. The definition of ''temporary
railway servant' excludes, casual labour,
Railways in compliance of the decision of
the Supreme Court in Inder Pal Yadav
(supra) upgraded the status of casual
labour, who had put in a requisite number
of days/years of service with the Railways.
The category being ''casual labour with
temporary status', were conferred higher
wages in the pay-scale and was also
entitled to gratuity. But the ordinary ''casual
labour', as well as, ''casual labour with
temporary status', i.e. a class within a class
of casual labour continued to be excluded
4 All. Union of India & Ors. Vs. Smt. Kamla Pandey & Anr.
265
from the definition of ''temporary railway
servant'. By no stretch of imagination, it
can be said that the definition of
''temporary railway servant' as defined
earlier did not exclude ''casual labour with
temporary status', therefore, a casual labour
with temporary status is entitled to pension.
The occasion to exclude ''casual labour
with temporary status' from the definition
of ''temporary railway servant' arose after
such a class came to be created after the
decision in Inder Pal Yadav (supra).
Accordingly, Railways, in their wisdom,
clarified by amending the definition of
''temporary railway servant' to exclude the
''casual labour with temporary status'.

24. On reading of the definitions of
''temporary railway servant', as it stood
earlier and prior to amendment, casual
labour, be it ordinary casual labour or with
temporary status, are excluded from the
definition of ''temporary railway servant'.
The submission of the learned counsel for
the respondent/original applicant that since
the authorities had granted age relaxation
while conferring the ''temporary status'
upon the casual employee, it would be
deemed that the employee came to be
regularized on the establishment of the
Railways. Further, on the death of the
employee
the
Railways
had
given
respondent/original
applicant
compassionate appointment which could
not have been given in the case had the
deceased employee been of a casual labour.
The argument is misconceived and not
borne from the material placed on record.
Age relaxation while conferring temporary
status on a casual labour would not
tantamount to regularization as the order
nowhere states that the deceased employee
came to be conferred status of a ''temporary
railway servant'.

25. The order dated 25 November
1985, clearly notes that the casual labour
working in the sub division and having
completed
the
requisite
number
of
years/days of service or continuous work,
as on 1 January 1984, are being given
temporary status. The order dated 22
August 1988, relied upon by the respondent
while
conferring
compassionate
appointment to the respondent/original
applicant reads as follows:

"GM has accorded his approval
for the engagement of Smt. Kamla Pandey
widow of Late Ram Raj Pandey, Ex.
Casual Record Sorter as a fresh Casual
Labour
under
F.A.
&
C.A.O./CORE/Allahabad."

26. From bare perusal of the order, it
is evident that the respondent/original
applicant came to be engaged as a casual
labour.
It
is
not
a
compassionate
appointment on the regular establishment
of the Railways against any post. The status
of the respondent/original applicant and her
husband was that of a casual labour or
casual labour with temporary status.

27. Such casual labour who acquire
temporary status, will not, however, be
brought on the permanent or regular
establishment
or
treated
in
regular
employment of Railways until and unless
they are selected through regular Selection
Board for Group D Posts in the manner laid
down from time to time.

28. On specific query, it is informed
that
the
respondent/original
applicant
subsequently came to be regularized on a
Group-D Post in 2005 by the Railways.
Until then, she worked as a ''casual labour
with temporary status'.
266 INDIAN LAW REPORTS ALLAHABAD SERIES

29. In the backdrop of the facts
noted herein above, it is categorically
evident that at no stage the deceased
employee was engaged or appointed as
''temporary railway servant', nor, was he
regularized against the post on the
regular establishment by the Railways.
In the circumstances, having regard to
Rule 18 of Pension Rules, the deceased
employee was not entitled to pension
being
ineligible
under
the
Rules.
Accordingly,
the
respondent/original
applicant was not entitled to pension on
the
death
of
her
husband
being
ineligible.

30.

The
learned
Tribunal
misdirected itself without adverting to
the categorical stand taken by the
petitioners before the Tribunal that the
deceased employee was neither eligible
nor entitled to pension. The learned
Tribunal committed an error in relying
on Section 18 of the Pension Rules to
direct grant of family pension merely for
the reason that the employee had put in
10 years of temporary service since
1977, further, in the opinion of the
Tribunal, as per sub-Rule (3) of Rule 18,
in the case of death in harness the
mandate of 10 years is not provided
under the Rules. The opinion so formed
is on misreading of Rule 18 as a whole.

31. Casual labour as per circular
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.

32. In our opinion, the reasoning
assigned by the learned Tribunal is on a
wrong premise based on an assumption
that the deceased employee was a
''temporary railway servant', whereas,
under the Pension Rules ''casual labour
with temporary status', is ineligible and
excluded
from
the
definition
of
''temporary railway servant'.

33. The Supreme Court in General
Manager, North West Railway and
others vs. Chanda Devi, held that the
Railway
Rules
made
a
distinction
between casual labour having temporary
status and temporary railway servant.
The Pension Rules under which Railway
employees are granted pension do not
apply to casual employees conferred
with temporary status which merely
protects a casual employee's service. In
the given facts, the employee, therein,
came to expire on 29 December 1988,
prior to his death the employee was
conferred substitute temporary status,
the claim of the widow of the employee
for family pension came to be rejected as
it was not admissible to substitute
employees. Para-32 is extracted:

"What
was
protected
by
conferring temporary status upon a
casual employee was his service and by
reason thereof the pension rules were not
made applicable. A workman had not
been and could not have been given a
status to which he was not entitled to."

34. In the circumstances, the writ
petition is allowed. The impugned order
dated 22 May 2012, passed by the
Central
Administrative
Tribunal,
Allahabad Bench, Allahabad, is hereby
set aside and quashed.
----------
4 All. Sahajanand Rai Vs. Union of India & Ors.
267
(2023) 4 ILRA 267
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.03.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ-A No. 53237 of 2014

Sahajanand Rai ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Rai, Sri Ashok Khare (Sr.
Advocate)

Counsel for the Respondents:
A.S.G.I. Sri C.S. Chaturvedi, S.C. Sri
Sanjeev Singh, Ms. Vatsala
A. Civil Law - Bank Clerk-cum-Cashier -
Pension - Memorandum of Settlement
dated
10.04.2002
-
Clause
6(b)
of
Settlement,
2002
provided
that
an
employee
found
guilty
of
gross
misconduct may be removed from service
with superannuation benefits, i.e., Pension
and/or Provident Fund and Gratuity, and
without
disqualification
from
future
employment - On 27.04.2010, another
Memorandum of Settlement, 2010 was
arrived at with regard to introducing the
Pension Scheme - Under the Settlement,
2010, an option was made available for
opting for the Pension Scheme - Later, a
circular letter dated 24.08.2010 was
issued by the Bank, which provided that
employees who have ceased to be in the
service of the Bank on account of penalty
proceedings are not eligible to opt for
joining the pension scheme - Held: once a
settlement has been arrived at between
the parties on 27.04.2010, which provides
pensionary benefits to all categories of
employees whose services were ceased,
they cannot be deprived by a circular that
creates a clause between the employees
whose services are ceased for different
reasons - any provision contrary to the
Settlement, 2010, cannot be inserted by
way of a circular, which is against the
employees (Para 12).
B. Petitioner was removed from service in
terms of Clause 6(b) of the Settlement,
2002,
which
provides
removal
from
service with superannuation benefits, i.e.,
Pension
and/or
Provident
Fund
and
Gratuity - Petitioner submitted his option
for the Pension Scheme in terms of the
Settlement, 2010, which was denied -
Held - In light of Clause 6(b) of the
Settlement, 2002, as well as the judgment
of the Apex Court in the case of Bank of
Baroda, the petitioner is fully entitled to
retiral benefits, and the same cannot be
taken away by way of a circular, which is
in violation of the Settlement, 2010 (Para
14).

Allowed. (E-5)

List of Cases cited:

Bank of Baroda Vs S.K. Kool (Dead) through
Legal Representatives & anr.; (2014) 2 SCC 715
2. S.B.I. Vs Golam Jilani M.A.T. -1053 of 2018

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Sanjay
Kumar Rai, learned counsel for petitioner
and Ms. Vatsala, learned counsel for
respondent Nos. 2 to 5 (respondent-Bank).

2. By way of present petition,
petitioner is challenging the orders dated
13.10.2010 and 11.08.2014 passed by
Deputy Regional Manager, Bank of India,
Regional Office, Varanasi, by which,
petitioner has been denied the pension and
leave encashment as well as para 3 of
circular dated 24.08.2010.

3. Learned Senior Counsel submitted
that petitioner was appointed on 13.08.1988