Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1103

SUPREME COURT OF INDIA
M.R. SHAH, B.V. NAGARATHNA, JJ.
Union of India and others – Appellants
Versus
Munshi Ram – Respondent
Civil Appeal No. 2811 of 2022 (Arising from S.L.P. (Civil) No. 6526/2022 @ Diary No. 27620/2020) with Civil Appeal No. 2812 of 2022 (Arising from S.L.P (Civil) No. 6530/2022 @ Diary No. 27618/2020), Civil Appeal No. 2813 of 2022 (Arising from S.L.P(Civil) No.6531/2022 @ Diary No. 27616/2020), Civil Appeal Nos. 2814-2815 of 2022 (Arising from S.L.P(Civil) Nos. 5043-5044/2022)
Decided On : 31-10-2022

Advocates appeared:
For the Appellant(s) : Ms. Madhavi Divan, ASG Mr. Rajan Kumar Chourasia, Adv. Mr. Sahil Monga, Adv. Ms. Vaishali Verma, Adv. Mr. Raj Bahadur Yadav, Adv. Mr. Amrish Kumar, AOR
For the Respondent(s): Mr. Sanjay Parikh, Sr. Adv. Mr. Pukhrambam Ramesh Kumar, AOR Mr. Karun Sharma, Adv. Ms. Anupam Ngangom, Adv. Mr. Wahengbam Immanuel Meitei, Adv. Mr. Satwik Parikh, Adv Mr. Ranbir Singh Yadav, AOR Mr. Prateek Yadav, Adv. Mr. Puran Mal Saini, Adv. Ms. Anzu K. Varkey, Adv. Mr. Pati Raj Yadav, Adv. Mr. Ritesh Patil, Adv. Mr. Yogesh Yadav, Adv. Mr.Asit Kumar Rari,Adv Mr.Ujjawal Banerjee, Adv Mr.Chand Qureshi AOR

IMPORTANT POINTS
(1) Commission Vendors/bearers working in Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits like other office bearers/Vendors working under Railway Board, working in different zones/divisions.
(2) There cannot be any discrimination inter se – There cannot be different criteria/parameters with respect to similarly situated employees.

Headnote:
Service Law – Pension – [Rule 2005 of Indian Railway Establishment Manual, Vol. II, 1991 (IREM) r/w Rule 31 of Railway Services (Pension) Rules, 1993] – Absorption of Commission Vendors in Railways – Employees working in different divisions/zones in Railways are under very same employer – Railway Board which is under Ministry of Railways – There cannot be any discrimination inter se – On the ground of parity, Commission Vendors/bearers working in Northern Railway are entitled to same benefits which are held to be entitled to all 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 same employer – To deny similar benefits would tantamount to discrimination and in violation of Articles 14 and 16 of Constitution of India – Respondents – Commission Vendors/bearers working in Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits like other office bearers/Vendors working under Railway Board, working in different zones/divisions. (Paras 7, 8, 9, 10 and 11)
Facts of the case:
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 writ petitions preferred by the respective private respondents herein and has set aside 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, Union of India (Northern Railway) and others have preferred the present appeals.
Findings of Court:
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.
Result : Appeals dismissed.

JUDGMENT

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 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 ord