# UNION OF INDIA AND OTHERS v. MUNSHI RAM

- **Citation:** [2022] 10 S.C.R. 1135
- **Court:** Supreme Court of India
- **Decided:** 2022-10-31
- **Case number:** Civil Appeal No. 2811 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-and-others-v-munshi-ram-35494
- **Pages:** 28

## Headnote

Constitution of India: Arts.14 and 16 - Regularisation -
Parity - In the instant case, the departmental catering and vending
services were started by Northern Railways for which the staff of
the private contractors was taken as commission vendors - The
commission vendors were paid commission on sales turnover
achieved by them instead of paying regular salaries - Thereafter,
pursuant to the memorandum issued by the Railway Board, the
commission vendors/bearers were absorbed in regular vacancies -
Claim for grant of pensionary/retirement benefits by commission
vendors - Held: Commission vendors/bearers working in the
Western Railway, Eastern Railway, Southern Railway and SouthEastern Railway were held to be entitled to 50% of the services
rendered prior to their regularization to be counted for pensionary
benefits - Since employees working in different divisions/zones in
the Railways are under the very same employer i.e. Railway Board
which is under the Ministry of Railways, therefore, the employees
working under the same employer are required to be treated similarly
and equally and are entitled to similar benefits and are entitled to
the same treatment - There cannot be different criteria/parameters
with respect to similarly situated employees working in different
Zones/Divisions, but working under the same employer and to deny
similar benefits would tantamount to discrimination and in violation
of Arts.14 and 16 of the Constitution - No reason to deny the similar
benefits to the respondents-commission vendors/bearers working
in the Northern Railway being similarly situated - Service law.
Dismissing the appeals, the Court
HELD: 1. It can be seen that with respect to Commission
Vendors/bearers working in the Western Railway, Eastern
Railway, Southern Railway and South-Eastern Railway, they are
held to be entitled to 50% of the services rendered prior to their
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[2022] 10 S.C.R.
regularization to be counted for pensionary benefits and all those
Commission Vendors/bearers are granted such benefits. [Para
6][1160-G-H]
2. It cannot be disputed that employees working in different
divisions/zones in the Railways are under the very same employer
- Railway Board which is under the Ministry of Railways. There
are 16 Zones and 68 Divisions in the Railways. Therefore, the
employees working under the same employer - Railway Board
working in different Zones/Divisions are required to be treated
similarly and equally and are entitled to similar benefits and are
entitled to the same treatment. There cannot be any
discrimination inter se. Under the circumstances, on the ground
of parity, the Commission Vendors/bearers working in the
Northern Railway are entitled to the same benefits which are
held to be entitled to all the similarly situated Commission
Vendors/Bearers working under different Zones/Divisions. There
cannot be different criteria/parameters with respect to similarly
situated employees - Commission Vendors/bearers working in
different Zones/Divisions, but working under the same employer.
To deny similar benefits would tantamount to discrimination and
in violation of Articles 14 and 16 of the Constitution of India.
[Paras 7, 8][1161-A-D, E]
3. Once it is found that the respondents-Commission
Vendors/bearers working in the Northern Railway are also entitled
to similar benefits which are given to the similarly situated
Commission Vendors/bearers working in different zones/divisions
and since they are already being paid the pensionary benefits by
counting the benefit of 50% of their services rendered prior to
their regularization, there is no reason to deny the similar benefits
to the respondents - Commission Vendors/bearers working in
the Northern Railway being similarly situated. [Para 9][1161-FH]
Saital Singh v. Union of India Writ Petition (C) No.
6804-05 of 1982; T.L Madhavan, General Secretary,
AIRCS Workers Union v. Union of India 1988 Supp
SCC 437; Gurdas Ram & Others v. Union of India Wr

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 [2022] 10 S.C.R. 1135
1135
UNION OF INDIA AND OTHERS
v.
MUNSHI RAM
(Civil Appeal No. 2811 of 2022)
OCTOBER 31, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India: Arts.14 and 16 - Regularisation -
Parity - In the instant case, the departmental catering and vending
services were started by Northern Railways for which the staff of
the private contractors was taken as commission vendors - The
commission vendors were paid commission on sales turnover
achieved by them instead of paying regular salaries - Thereafter,
pursuant to the memorandum issued by the Railway Board, the
commission vendors/bearers were absorbed in regular vacancies -
Claim for grant of pensionary/retirement benefits by commission
vendors - Held: Commission vendors/bearers working in the
Western Railway, Eastern Railway, Southern Railway and SouthEastern Railway were held to be entitled to 50% of the services
rendered prior to their regularization to be counted for pensionary
benefits - Since employees working in different divisions/zones in
the Railways are under the very same employer i.e. Railway Board
which is under the Ministry of Railways, therefore, the employees
working under the same employer are required to be treated similarly
and equally and are entitled to similar benefits and are entitled to
the same treatment - There cannot be different criteria/parameters
with respect to similarly situated employees working in different
Zones/Divisions, but working under the same employer and to deny
similar benefits would tantamount to discrimination and in violation
of Arts.14 and 16 of the Constitution - No reason to deny the similar
benefits to the respondents-commission vendors/bearers working
in the Northern Railway being similarly situated - Service law.
Dismissing the appeals, the Court
HELD: 1. It can be seen that with respect to Commission
Vendors/bearers working in the Western Railway, Eastern
Railway, Southern Railway and South-Eastern Railway, they are
held to be entitled to 50% of the services rendered prior to their
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[2022] 10 S.C.R.
regularization to be counted for pensionary benefits and all those
Commission Vendors/bearers are granted such benefits. [Para
6][1160-G-H]
2. It cannot be disputed that employees working in different
divisions/zones in the Railways are under the very same employer
- Railway Board which is under the Ministry of Railways. There
are 16 Zones and 68 Divisions in the Railways. Therefore, the
employees working under the same employer - Railway Board
working in different Zones/Divisions are required to be treated
similarly and equally and are entitled to similar benefits and are
entitled to the same treatment. There cannot be any
discrimination inter se. Under the circumstances, on the ground
of parity, the Commission Vendors/bearers working in the
Northern Railway are entitled to the same benefits which are
held to be entitled to all the similarly situated Commission
Vendors/Bearers working under different Zones/Divisions. There
cannot be different criteria/parameters with respect to similarly
situated employees - Commission Vendors/bearers working in
different Zones/Divisions, but working under the same employer.
To deny similar benefits would tantamount to discrimination and
in violation of Articles 14 and 16 of the Constitution of India.
[Paras 7, 8][1161-A-D, E]
3. Once it is found that the respondents-Commission
Vendors/bearers working in the Northern Railway are also entitled
to similar benefits which are given to the similarly situated
Commission Vendors/bearers working in different zones/divisions
and since they are already being paid the pensionary benefits by
counting the benefit of 50% of their services rendered prior to
their regularization, there is no reason to deny the similar benefits
to the respondents - Commission Vendors/bearers working in
the Northern Railway being similarly situated. [Para 9][1161-FH]
Saital Singh v. Union of India Writ Petition (C) No.
6804-05 of 1982; T.L Madhavan, General Secretary,
AIRCS Workers Union v. Union of India 1988 Supp
SCC 437; Gurdas Ram & Others v. Union of India Writ
Petition (Civil) No. 5175/1998; Union of India v.
Rakesh Kumar (2017) 13 SCC 388 : [2017] 3 SCR
783; Haryana State Electricity Board v. Gulshan Lal
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(2009) 12 SCC 231 : [2009] 8 SCR 950; Uttar Pradesh
Power Corporation Ltd. v. Ayodhya Prasad Mishra
(2008) 10 SCC 139 : [2008] 13 SCR 373; Union of
India v. Muralidhara Menon (2009) 9 SCC 304 : [2009]
12 SCR 540; Union of India v. M.V. Mohanan Nair
(2020) 5 SCC 421 : [2020] 7 SCR 851; State of Odisha
v. Anup Kumar Senapati (2019) 19 SCC 626; Gurdas
Ram & Others Vs. UOI & Others W.P. (C) No.5175 of
1998 & CM No.14513 of 2010; Waman Rao and Ors.
v. Union of India and Ors.(1981) 2 SCC 362 : [1981] 2
SCR 1; Narinder Singh and Ors. v. State of Punjab
and Anr. (2014) 6 SCC 466 : [2014] 4 SCR 1012; All
India Judges' Association and Ors. v. Union of India
and Ors. (1993) 4 SCC 288 : [1993] 1 Suppl. SCR
749; Ashoka Kumar Thakur v. Union of India and
Others (2008) 6 SCC 1 : [2008] 4 SCR 1; G.C. Ghosh
and Ors. v. Union of India and Ors. 1991 Supp (2)
SCC 497 - referred to.
Case Law Reference
1988 Supp SCC 437
referred to
Para 2.1
[2017] 3 SCR 783
referred to
Para 3.8
[2009] 8 SCR 950
referred to
Para 3.14
[2008] 13 SCR 373
referred to
Para 3.14
[2009] 12 SCR 540
referred to
Para 3.14
[2020] 7 SCR 851
referred to
Para 3.15
(2019) 19 SCC 626
referred to
Para 3.16
[1981] 2 SCR 1
referred to
Para 4.15
[2014] 4 SCR 1012
referred to
Para 4.15
[1993] 1 Suppl. SCR 749
referred to
Para 4.17
[2008] 4 SCR 1
referred to
Para 4.18
1991 Supp (2) SCC 497
referred to
Para 4.19
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2811 of
2022.
UNION OF INDIA AND OTHERS v. MUNSHI RAM
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From the Judgment and Order dated 21.11.2019 of the High Court
of Delhi at New Delhi in WP (C) No.4535 of 2019.
With
Civil Appeal Nos.2812, 2813, 2814-2815 of 2022.
Ms. Madhavi Divan, ASG, Rajan Kumar Chourasia, Ms. Vaishali
Verma, B. K. Satija, Anukalp Jain, Amrish Kumar, Raj Bahadur Yadav,
Advs. for the Appellants.
Sanjay Parikh, Sr. Adv., Pukhramban Ramesh Kumar, Satwik
Parikh, Karun Sharma, U. Srivastava, M. K. Gaur, Anoop Chauhan,
Saurabh Sharma, Ms. Neelema, Ranbir Singh Yadav, Kasoju Mahesh
Chary, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 21.11.2019 passed by the High Court of Delhi
at New Delhi in Writ Petition (Civil) No. 4535/2019 and other allied writ
petitions, by which the High Court has allowed the said writ petitions
preferred by the respective private respondents herein and has set aside
the orders passed by the Central Administrative Tribunal and thereafter
directed the appellants - Northern Railway to count 50% of their service
as Commission Vendors, prior to their absorption, as "qualifying service"
for grant of pensionary benefits, the Union of India (Northern Railway)
and others have preferred the present appeals.
2. Catering service in Northern Railways prior to 1955 were being
managed through private contractors. Subsequently, the departmental
catering and vending services were started and the erstwhile staff of
the private contractors was taken as Commission Vendors. All
Commission Vendors were paid commission on sales turn over achieved
by them instead of paying regular salaries. Thereafter, a memorandum
dated 13.12.1976 was issued by the Railway Board suggesting that the
Commission Vendors may be absorbed as Railway Employees. It was
stated therein that action would be taken to progressively absorb the
Commission Vendors/Bearers in regular vacancies.
2.1 There have been a series of litigations on the issue of absorption
of the Commission Vendors in the Railways. On 13.12.1983, this Court
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disposed of Writ Petition (Civil) No. 6804-05/1982 (Saital Singh v. Union
of India) wherein a direction was issued for progressive absorption of
the Commission Bearers/Vendors in term of para 3 of Memorandum
dated 13.12.1976. Subsequently, in an order dated 8.9.1987 passed in
Criminal Miscellaneous Petition No. 1670/1987 in Writ Petition No. 31364
of 1986 and other allied writ petitions in the case of T.L Madhavan,
General Secretary, AIRCS Workers Union v. Union of India,
reported in 1988 Supp SCC 437, a further direction was issued
regarding the progressive absorption of all persons working as Commission
Bearers/Vendors on various railway platforms belonging to the Central
Railway and South-Central Railway in terms of the same memorandum
dated 13.12.1976 "as and when vacancies to the posts of bearers in the
Railway Catering Service occur". It was further reiterated that as already
directed the Railways would first absorb all the Bearers registered in
accordance with the aforesaid memorandum and thereafter the Vendors
who are registered and until all the Bearers and Vendors are accordingly
absorbed, the Railway Administration shall not recruit or appoint any
person either as a Bearer or Vendor on permanent basis in the Railway
Catering Service from any other source.
2.2 Learned Single Judge of the High Court in Writ Petition (Civil)
No. 5175/1998 (Gurdas Ram & Others v. Union of India) was dealing
with a batch of writ petitions by Commission Vendors, who sought the
relief of regularization, and in the alternative, absorption in Group 'C'
posts. By judgment and order dated 5.11.2012, the learned Single Judge
negatived the plea of regularization, however, the other relief, viz.,
absorption against vacant Group 'C' posts was allowed, provided they
had not crossed the age of 59 years. The respective original writ
petitioners - respondents herein all were absorbed pursuant to the above
order of the learned Single Judge in Group 'C' posts in 2015.
2.3 They then approached the Central Administrative Tribunal
with O.A. No. 219/2016 praying for further consequential relief of grant
of pensionary/retirement benefits. It was their case before the CAT that
the total service of each of the applicants rendered prior to their absorption
in the Railways should be counted towards "qualifying service" for the
purpose of such retirement/pensionary benefits. By judgment and order
dated 12.02.2016, the CAT dismissed the said OA by holding that since
the earlier judgment of the learned Single Judge declined the prayer of
regularization, it was not possible to entertain the plea for counting the
UNION OF INDIA AND OTHERS v. MUNSHI RAM
[M. R. SHAH, J.]
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past service without questioning the absorption orders, even for
pensionary benefits.
2.4 However, thereafter another Bench of the Tribunal in O.A.
No. 4079/2016 filed by one Munshi Ram (respondent in Civil Appeal
No. 2811/2022), after following the decision of the Ernakulam Bench of
the CAT dated 4.6.2014 in OA No. 417/2013 and one other decision of
the same Bench, where identically situated applicants were granted the
relief of pensionary benefits, allowed the said OA 4079/2016. The
judgment and order passed by the CAT dismissing the OA and refusing
to grant any pensionary benefits to the Commission Vendors who were
subsequently absorbed by treating their earlier service rendered as
Commission Vendors, the original applicants filed the present Writ Petition
Nos. 12073/2016 and Writ Petition No. 3307/2017 before the High Court.
2.5 Feeling aggrieved and dissatisfied with the judgment and order
passed by the learned CAT passed in OA No. 4079/2016 granting the
relief of pensionary benefits by counting their service rendered as
Commission Vendors, prior to their absorption, the Union of India preferred
the present Writ Petition No. 4535/2019 before the High Court. All the
aforesaid three writ petitions came to be heard together by the High
Court. By the impugned common judgment and order, the High Court
has allowed the writ petitions preferred by the original writ petitions -
Commission Vendors who were subsequently absorbed and has dismissed
the writ petition preferred by the Northern Railways on the ground that
so far as in the other Railways, namely, Southern Railways and Central
Railways pursuant to the various orders passed by the different High
Courts/Tribunals, their past service rendered as Commission Vendors
have been counted for the purpose of pensionary benefits, there is no
reason to deny such relief to the Commission Vendors/Bearers in the
Northern Railways.
2.6 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court holding that the services
rendered by the Commission Vendors/Bearers in the Northern Railways,
prior to their absorption, should be counted for the purposes of pensionary
benefits, the Union of India (Northern Railways) have preferred the
present appeals.
3. Ms. Madhavi Divan, learned Additional Solicitor General has
appeared on behalf of the appellants - Northern Railway and Shri Sanjay
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Parikh, learned Senior Advocate has appeared on behalf of the original
applicants - private respondents herein.
3.1 Ms. Madhavi Divan, learned ASG has submitted that the short
issue in the present case is, whether Commission Vendors who were
absorbed into regular service are entitled to reckon 50% of the period of
service as Commission Vendors, prior to their absorption, as "qualifying
service" for grant of pensionary benefits. It is submitted, in other words,
whether Commission Vendors who are subsequently absorbed are entitled
to seek parity with regularised casual labourers, who by virtue of Rule
2005 of the Indian Railway Establishment Manual, Vol. II, 1991 (IREM)
r/w Rule 31 of the Railway Services (Pension) Rules, 1993 (for short,
'1993 Rules'), are entitled to include 50% of their service as casual
labourers while computing qualifying service for grant of pensionary
benefits.
3.2 It is submitted that as such the Commission Vendors have
been absorbed into regular service in the Indian Railways pursuant to (i)
Memorandum No. 76 dated 13.12.1976 issued by the Railway Board;
and (ii) the orders passed by this Court in various writ petitioners, referred
to hereinabove.
3.3 It is submitted that it is an admitted position that the Commission
Vendors in the present case have not completed 10 years of service
after absorption and before retirement, which is mandatory for receiving
pensionary benefits. In the submitted that in fact in the case of one of
the appellants/petitioners - Munshi Ram, he has served only for a period
of three and half months approximately between his absorption on
16.07.2015 and superannuation on 31.10.2015.
3.4 It is submitted that as such the respective Commission Vendors
who are subsequently absorbed in the Railways are claiming parity with
Casual Labourers and accordingly are claiming that 50% of their service
rendered as Commission Vendors prior to their absorption is to be counted
for qualifying service for pensionary benefits which is being provided to
the Casual Labourers.
3.5 It is submitted that therefore the question which is required to
be considered is, whether can the Commission vendors claim the benefit
of their past service at par with the Casual Labourers? It is submitted
that to appreciate the above, the difference between the status of
Commission vendors and the Casual Labourers is required to be
UNION OF INDIA AND OTHERS v. MUNSHI RAM
[M. R. SHAH, J.]
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[2022] 10 S.C.R.
considered. The fundamental difference between the status of
Commission Vendors and Casual Labourers is explained by Ms. Madhavi
Divan in the chart which is as under:
3.6 It is further submitted that the Commission Vendors were
engaged on a purely contractual basis. The relevant terms of the proforma
contractual agreement entered into with the Commission Vendors are
as follows:
i. Clause 1: Commission vendors shall work on commission basis
[@Pg. 34 in Application for Addl. Docs. i.e. IA No. 137388/
2021].
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ii. Clause 8: Open to either party to determine this agreement by
giving one month's notice without assigning any reason and without
any compensation [@Pg. 35 in Application for Addl. Docs.
i.e. IA No. 137388/2021].
iii. Clause 9: Commission vendors are not entitled to any
remuneration except commission on sale of articles [@Pg. 35 in
Application for Addl. Docs. i.e. IA No. 137388/2021].
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iv. Clause 13: Administration/Railways shall supply the articles to
be sold by commission vendors to the public travelling by train
[@Pg. 35 in Application for Addl. Docs. i.e. IA No. 137388/
2021].
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v. Clause 16: Commission vendors shall not be treated as Railway
servant for any purpose [@Pg. 36 in Application for Addl. Docs.
i.e. IA No. 137388/2021].
It is submitted that from the above, it can be seen that there was
no master-servant relationship contemplated between a Commission
Vendor and the employer - Northern Railways. The remuneration was
only in the form of commission and further on no count was a Commission
Vendor was treated as a railway servant.
3.7 It is submitted that on the other hand, the Casual Labourers
stood on different footing. The provisions relating to Casual Labourers
found in a separate Chapter XX in the Railway Manual (IREM) show
the difference in status, which are as under:
i) Rule 2001 [@page 30 in Application for Addl. Docs. i.e. IA
No. 137388/2021]:
2001: (I) Definition of Casual labour - Casual labour refers to
labour whose employment is intermittent, Sporadic or extends over
short period or continued from one work to another. Labour of
this kind is normally recruited from the nearest available source.
They are not ordinarily liable to transfer. The conditions applicable
to permanent and temporary staff do not apply to casual labour.
Casual labour on Railway should ordinarily be employed only in
the following types of cases.
(a) Casual Labour (Open Line).- Casual labour are primarily
engaged to supplement the regular staff in work of seasonal or
sporadic nature, which arises in the day to day working of the
Railway system. This includes labour required for unloading and
loading of materials, special repair and maintenance of tracks and
other structures, supplying drinking water to passengers during
summer months, (recoupment of man-days lost on account of
UNION OF INDIA AND OTHERS v. MUNSHI RAM
[M. R. SHAH, J.]
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absenteeism) patrolling of tracks, etc. casual labour so engaged
in the operation and maintenance of railway system is referred to
as open line casual labour, as distinct from project Casual Labour,
described in para (b) infra.
(b) Casual Labour (Project)- Casual Labour are also engaged on
Railways for execution of Railway projects, such as new lines,
doubling, conversion, construction of building, track Renewals,
Route Relay interlocking Railway Electrification, Setting up of
new units etc. Casual Labour so engaged are referred to as "Project
Casual Labour".
Such of those casual Labour engaged on open line (revenue)
works, who continue to do the same work for which they were
engaged or other work of the same type for more than 120
days without a break will be treated as temporary (i.e. given
"temporary status") on completion of 120 days continuous
employment.
Casual Labour on projects who have put in 180 days of
continuous employment on works of the same type are entitled
for 1/30th of the minimum of the appropriate scale of pay plus
Dearness allowance...
(ii) Grant of temporary status to project casual labour is regulated
by instructions separately issued by the Railway Board. As far as
possible, casual labourers required for new projects must be taken
from amongst those casual labourers. Who have worked on the
open line/projects in the past in preference to outsiders?
(ii) Seasonal labour sanctioned for specific works of less than 120
days duration. If such labour is shifted from one work to another
of the same type and the total continuous period of such work at
any time is more than 120 days duration, they should be treated as
temporary (i.e. granted "temporary status" after the expiry of
120 days continuous employment.
(emphasis supplied)
ii. Rule 2002 [@page 31 in Application for Addl. Docs. i.e. IA
No. 137388/2021]:
2002. Entitlements and privileges admissible to Casual
Labour.-Casual Labour are not eligible for any entitlement and
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privileges other than those statutorily admissible under the various
Acts, such as. Minimum Wage Act, Workmen's Compensation
Act, etc. or those specifically sanctioned by the Railway Board
from time to time.
iii. Rule 2005 [@page 32 in Application for Addl. Docs. i.e. IA
No. 137388/2021]:
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2005. Entitlements and Privileges admissible to Casual
Labour who are treated as temporary (i.e. given temporary
status) after the completion of 120 day or 360 days of
continuous employment (as the case may be).- (a) Casual
labour treated as temporary are entitled to the rights and benefits
admissible to temporary railway servants as laid down in 'Chapter
XXIII of this Manual. The rights and privileges admissible to such
labour also include the benefit of D&A Rules. However, their
service prior to absorption in temporary/permanent/regular cadre
after the required selection/ screening will not count for the purpose
of seniority and the date of their regular appointment after
screening/selection shall determine their seniority vis-a-vis other
regular/temporary employees. This is however, subject to the
provision that if the seniority of certain individual employees has
already been determined in any other manner, either in pursuance
of judicial decisions or otherwise, the seniority so determined shall
not be altered.
Casual labour including Project casual labour 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. Such casual labour, who have attained temporary
status, will also be entitled to carry forward the leave at their
credit to new post on absorption in regular service. Daily rated
casual labour will not be entitled to these benefits.
(emphasis supplied)
iv. Rule 2006 [@page 32 in Application for Addl. Docs. i.e. IA
No. 137388/2021]:
UNION OF INDIA AND OTHERS v. MUNSHI RAM
[M. R. SHAH, J.]
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2006. Absorption of Casual Labour in regular vacancies.
- Absorption of casual labour in regular Group 'D' employment
may be considered in 'accordance with instructions issued by the
Railway Board from time to time. Such absorption is, however,
not automatic but is subject, inter-alia, to availability of vacancies
and suitability and eligibility of individual casual labour and rules
regarding seniority unit method of absorption etc. decided by the
Railway Administration.
It is submitted that therefore the Commission Vendors cannot claim
the benefits at par with the absorbed Casual Labourers.
3.8 It is further urged that the Casual Labourers are being granted
the benefits pursuant to the decision of this Court in the case of Union
of India v. Rakesh Kumar, (2017) 13 SCC 388. That on an
interpretation of concerning Rule 31 of the 1993 Rules which provides
for counting of service paid from contingencies, this Court held that
period of Casual Labourers prior to grant of temporary status by virtue
of note on Rule 31 has to be counted to the extent of 50% for pensionary
benefits. It is submitted that Rule 31 which fell for consideration before
this Court reads as under:
31. Counting of service paid from contingencies.-In respect
of a railway servant, in service on or after the 22nd day of August,
1968, half the service paid from contingencies shall be taken into
account for calculating pensionary benefits on absorption in regular
employment, subject to the following condition, namely-
(a) the service paid from contingencies has been in a job involving
whole-time employment;
(b) the service paid from contingencies should be in a type of
work or job for which regular posts could have been sanctioned
such as posts of malis, chowkidars and khalasis;
(c) the service should have been such for which payment has
been made either on monthly rate basis or on daily rates computed
and paid on a monthly basis and which, though not analogous to
the regular scales of pay, borne some relation in the matter of pay
to those being paid for similar jobs being performed at the relevant
period by staff in regular establishments;
(d) the service paid from contingencies has been continuous and
followed by absorption in regular employment without a break:
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Provided that the weightage for past service paid from
contingencies shall be limited to the period after 1-1-1961 subject
to the condition that authentic records of service such as pay bill,
leave record or service book is available.
Note.-(1) The provisions of this Rule shall also apply to casual
labour paid from contingencies.
(2) The expression "absorption in regular employment" means
absorption against a regular post."
It is submitted that insofar as the Commission Vendors are
concerned, Rule 31 of the 1993 Rules shall not be applicable at all.
3.9 It is further submitted that so far as the Commission Vendors
are concerned, there are no commensurate rules and therefore, Rule 31
of the 1993 Rules which formed the basis of the judgment in Rakesh
Kumar's case (supra) cannot be applied to the Commission Vendors
who occupy an altogether different status.
3.10 It is submitted that as such Rule 14 of the 1993 Rules provides
the period which shall not be treated as service for pensionary benefits.
It is submitted that as per Rule 14(v) of the 1993 Rules, the period under
a covenant or a contract which does not specifically provide for grant of
pensionary benefits and/or the period on contract basis except when
followed by confirmation are not to be counted for pensionary benefits.
It is submitted that the respective Commission Vendors have been
rendering service under the contract which do not provide for grant of
pensionary benefits. They are not even paid regular salaries and they
were paid on the basis of the commission. It is submitted therefore by
applying Rule 14(v) of the 1993 Rules, service rendered as Commission
Vendors which are rendered under the contract and which do not provide
for grant of pensionary benefits, prior to their absorption, cannot be
counted for the pensionary benefits, otherwise the same shall be hit by
and/or contrary to Rule 14(v) of the 1993 Rules.
3.11 It is submitted that insofar as Rule 14(xiv) is concerned, the
expression "confirmation" indicates beyond any manner of doubt that
the said sub-rule applies only in cases where there was a substantive
post in which a contractual employee was confirmed at a later stage. It
is submitted that however, this is not the case insofar as the Commission
Vendors are concerned. It is submitted that upon harmonious interpretation
of Rule 14(v) and Rule 24 it becomes clear that period of employment
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as Commission Vendors will not constitute service for pensionary benefits.
It is submitted that the aforesaid Rules, namely, Rule 14(v) and 14(xiv)
have not been considered in any of the judgments that have been passed
by the Tribunals or the High Courts in its correct perspective. It is
submitted that the contractual terms between Commission Vendors and
the Railways specifically omits to mention any entitlement to pension.
3.12 It is submitted that the aforesaid fundamental differences
between Casual Labourers and Commission Vendors which relate to
the mode of appointment, nature of work, conditions of service, the
applicable law, the disciplinary proceedings etc. show that there can be
no parity between the two.
3.13. It is further submitted by Ms. Madhavi Divan, learned ASG
that it is required to be noted that some of the Commission Vendors
insisted for being absorbed in Group 'C' posts, rather than Group 'D'
posts. Even, these persons in particular including the respondents herein
are seeking selective parity with casual labourers as and when it suits
their convenience. Such Commission Vendors were granted Group 'C'
posts, pursuant to the order passed by the learned Single Judge. Such
absorption was not a matter of right, but rather a concession granted to
them which cannot be used as a platform to seek benefits which were
never intended to be extended to them. It is submitted that this was the
precise basis for the learned CAT Delhi's order dated 12.02.2016 in
another case concerning similarly situated Commission Vendors wherein
it was held that the Commission Vendors absorbed prospectively pursuant
to the High Court's order dated 05.11.2012 were not entitled to seek
consideration of past service because seeking such a relief amounts to
seeking review of the High Court's order directing their absorption.
3.14 It is vehemently submitted by Ms. Madhavi Divan, learned
ASG that in none of the judgments of the High Courts and the Tribunals
which have held against the Railways, considered the aforesaid differentia
between the casual labourers and the commission vendors and the law
on unequals not being treated equally. Ms. Madhavi Divan, learned ASG
has relied upon the decisions of this Court in the cases of Haryana
State Electricity Board v. Gulshan Lal, (2009) 12 SCC 231; Uttar
Pradesh Power Corporation Ltd. v. Ayodhya Prasad Mishra, (2008)
10 SCC 139; and Union of India v. Muralidhara Menon, (2009) 9
SCC 304 in support of her submission that as observed and held by this
Court in the aforesaid decisions that unequals cannot be treated as equals.
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3.15 Now so far as the reliance placed upon the dismissal of the
special leave petitions by this Court on earlier occasions, it is submitted
that the orders of dismissal passed by this Court on earlier occasions are
either on delay or are in any event summary dismissals. These are not
reasoned orders which tantamount to precedents under Article 141 of
the Constitution. In this regard, reliance is placed upon the decision of
this Court in the case of Union of India v. M.V. Mohanan Nair, (2020)
5 SCC 421 (paras 48 & 49).
3.16 Now so far as the findings recorded by the High Court that
orders in some cases have become final insofar as the Southern Railway
and Central Railway are concerned, it is submitted that merely because
orders in some cases have become final is no ground for seeking parity
in the present case. It is submitted that an illegality cannot be compounded
or perpetuated merely because it has been condoned or committed in
other cases. It is not open to the respondents to seek a misplaced parity
by seeking a perpetuation of an erroneous position in law as laid down
by the Tribunals and upheld by the High Courts. It is submitted that there
exists no right to negative equality. Reliance is placed on the decision of
this Court in the case of Gulshan Lal (supra) (paras 31 to 35 and 43
to 47). Reliance is also placed on the decision of this Court in the case
of State of Odisha v. Anup Kumar Senapati, (2019) 19 SCC 626
(para 39).
3.17 Ms. Madhavi Divan, learned ASG has further submitted that
if the impugned judgment and order passed by the High Court is not
interfered with, there shall be huge financial liability upon the Railways.
On the huge financial burden, Ms. Madhavi Divan, learned ASG has
taken us to the relevant paragraphs in IA No. 137388/2021, which are
as under:
Financial implications
15. If the 50% of past service rendered as commission vendor/
bearers were to be counted for computing the qualifying service
for grant of pensionary benefits, huge financial burden would fall
upon the shoulders of the public exchequer.
16. For Delhi Division alone, where only 57 commission vendors/
bearers are there at present, the financial burden would be more
than Rupees 10 crores approx. For instance one Mr. Om Prakash
(Respondent party in SLP (C) Diary No. 27616/2020) was engaged
as Commission Vendor on commission basis on 17.02.1977 whose
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date of birth is 12.01.1956 and absorbed in Railway on 27.07.2015.
He was superannuated on 31.01.2016 when was drawing basic
pay 18000 in Level 1 of 7th CPC.
As per the impugned Order, 50% of period from 17.02.1977 to
26.07.2015 comes to 19 years 02 months and 19 days if computed
in compliance of the judgment and order impugned in the present
SLP. So the total qualifying service would be 19 Years 8 months
and 23 days. His total pension would be Rs. 9000/- per month
with admissible DA and Rs. 5000/- family pension per month after
demise of the retired employee. Furthermore, the persons, so
absorbed in regular service, who have already retired without
completing 10 years of service after their absorption would also
now become eligible for pensionary benefits which lead to huge
monetary expenditure to the public exchequer. It is therefore clear
that an employee who rendered only 6 months service after
absorption is to be paid Rs. 1,76,940/- lump sum and Rs. 9000/-
per month as pension for at-least 15 years (considering the life
span of retiree as 75 years). As per this illustration, Rs.16,20,000
as on average excluding Dearness relief has to be paid to an
employee who rendered only about 6 months service after
absorption.
17. In southern Railway itself, 1265 Commission Vendors/Bearers
have been regularized on the basis of direction issued by this
Hon'ble Court till 2004. The Commission Vendors/Bearers, who
are still in service after their absorption into regular service, if
given benefit of counting 50% pre absorption service, would
become entitled for MACP benefits which will result in the pension
and allied benefits also.
This financial impact shall be huge as it will apply to such
Commission Vendors/Bearers in all zones of Indian Railway across
the country. There are more than 1000 of such Commission
Vendors/Bearers covered under absorption scheme excluding
those who had already retired from service without completing
10 years of minimum qualifying service.
18. Zone wise status of the Commission Vendors/Bearers, number
of cases (pending and disposed) involving issues regarding
computation of 50 % past service and its financial implication are
being given below: -
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3.18 Making the above submissions, it is prayed to allow the present
appeals by reiterating and emphasising that the Commission Vendors
are not entitled to seek parity of treatment with Casual Labourers insofar
as counting their past service before absorption is concerned for grant
of pensionary benefits.
4. All these appeals are opposed by Shri Sanjay Parikh, learned
Senior Advocate appearing on behalf of the respective employees -
Commission Vendors.
4.1 Shri Sanjay Parikh, learned Senior Advocate appearing on
behalf of the contesting respondents - respective Commission Vendors
has submitted that the employer in this case is the Railway Board under
the Ministry of Railways. There are 16 zones and 68 divisions in the
Railways. Employees working in different zones/divisions being under
the same employer - Railway Board, ought to be treated similarly. There
cannot be any discrimination, inter se, as it will violate Articles 14 and
16 of the Constitution.
4.2 It is submitted that in the present case, the appellant - Union
of India - Railways has repeated the very same arguments, which were
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earlier raised before various Tribunals, High Courts and before this Court
and which have been rejected. It is submitted that therefore it is not fair
and permissible in law to raise and repeat the same arguments every
time in pending litigations, when it has been given a quietus having attained
finality up to this Court.
4.3 It is submitted that the respective respondents were recruited
as Commission Vendors on different dates between 1970-1989 in Delhi
based on non-statutory canteens after completion of all the required
formalities.
4.4 Referring to the earlier D.O. letter dated 16.02.1974 from the
Railway Board, it is submitted that the names of the Commission Bearers
and Vendors should be registered in order of the length of their service
for their absorption in the permanent vacancies of bearers and vendors
in various departmental catering units to afford the main avenue for
absorption in the permanent order. It is submitted that in addition, it was
also mentioned in the D.O. letter dated 16.02.1974 that if there are casual
labourers/substitutes to be considered for regular absorption in other
Class IV categories, the Commission Bearers / Vendors should also be
considered along with them.
4.5 It is submitted that as there was a delay in absorption, by
letter dated 13.07.1976 in paragraph 3, it was directed that action should
be taken to absorb progressively the Commission Bearers/Vendors in
regular vacancies. It is submitted that both expressions "regularization"
and "absorption" have been used in paragraph 3. It is urged that therefore
it was decided by the Railway Board to give the Commission Bearers/
Vendors the status of Railway employees by taking /absorbing them on
permanent vacancies.
4.6 It is submitted that when the above D.O. letter dated 16.02.1974
read with letter of 13.07.1976 were not given effect to, a Writ Petition
(C) No.6804 of 1982 was filed before this Court under Article 32 of the
Constitution. It is submitted that the said writ petition came to be allowed
by this Court vide judgment and order dated 13.12.1983 and it was
directed that until all the bearers and vendors are absorbed as per D.O.
letter dated 13.07.1976, "the Railway cannot appoint any person either
as bearer or vendor on permanent basis in Railway service from any
other source". It is submitted that this Court expressed hope that steps
to absorb bearers/vendors would be taken as early as possible. It is
submitted that the meaning and purport of the order was that all vacancies
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of bearers/vendors in Railway shall be allocated for absorption of
Commission Bearers/Vendors and till that process is completed, no
appointment on permanent basis from any other source shall be carried
out.
4.7 It is submitted that the issue again came up before this Court
in the case of T.L. Madhavan (supra). That this Court again reiterated
what was stated in the earlier order in Writ Petition (C) No.6804 of
1982. That in paragraph 3, it was also clarified that the vendors and
bearers so absorbed in the "Railway Catering Service" shall be entitled
to salary from the date of their absorption.
4.8 It is submitted that however, the process of absorption was
inordinately delayed and therefore, the Member Staff - Railway Board
wrote a letter dated 12.01.2004 to the General Manager - Northern
Railway about inordinate delay in absorption of Commission Vendors/
Bearers. The attention of the General Manager, Northern Railway was
also drawn to the Orders passed by this Court. The Board also referred
to the letters dated 20.08.1996 and 06.11.2000 which were written to
expedite the process of absorption.