Commission Bearers/Vendors in Railways entitled to count 50% pre-absorption service as qualifying for pensionary benefits on parity across all Zones under Articles 14/16, as affirmed by Supreme Court rejecting discrimination among similarly situated employees.

ORDER

(Pronounced by Hon'ble Mr. M. Swaminathan, Member(J))

The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:

"To call for the records relating to the impugned order issued by the 3^rd Respondent bearing No.P(S)353/III/SCB/OA 142/2015 dated 13.03.2017 and quash the same and consequently direct the respondents to count the service of the applicants from their initial engagement as temporary vendors for the purpose of reckoning the total service for the calculation of retiral benefits namely, Gratuity and Pension within a time frame and pass such other order or direction as this Hon. Tribunal may deem fit and proper in the circumstances of the case and thus render justice."

2. The brief facts of the case as stated by the applicant are as follows:

The applicants were initially appointed as Commission Bearers in the Southern Railway Catering Establishment as per order dated 11.03.1971, 27.09.1977, 25.01.1977, 05.11.1997, 10.4.1976 & 02.12.1978. respectively, all the applicants joined duty after paying the security deposit of Rs.250/- after proper selection and medical examination. Thereafter their services have been regularly absorbed as Railway employees w.e.f. 1989, 1989, 23.02.1989, 10.08.1989, 11.07.2000 & 08.07.1999, respectively. The dates of retirement of the applicants are 30.06.2006, 31.01.2008, 30.10.2013, 31.12.2013, 30.06.2007 & 30.06.2010, respectively. The grievance of the applicants is that they are entitled for counting 50% of the past services rendered by them in catering establishment as server along with railway service till their retirement to reckon the total qualifying service for the purpose of pensionary benefits, but their said claim has been rejected by the respondents. They have earlier filed representations and when the same was not considered, they filed OA 933 of 2014 wherein this Tribunal directed the respondents to consider and dispose of the representation of the applicants and accordingly the respondents passed orders rejecting the claim of the applicants. Again they filed OA 142/2015 wherein this Tribunal again disposed of the said OA directing the applicants to make fresh representation and the respondents to consider and pass orders in accordance with law and as per rules. In compliance of the same, the respondents, vide order dated 13.03.2017 again rejected the claim of the applicants. Being aggrieved the applicants have filed the present OA challenging the same.

3. After notice, the respondents have entered appearance through their counsel and filed their counter and raised objections over the claim of the applicant and contended that the provision as per Para 11.2(c) of the Master Circular No.48 on Casual labour for counting half of the service rendered towards qualifying service for pensionary benefits on their eventual absorption in a regular post, is not applicable for those employees who were appointed as Commission Bearers. They further submitted that as per the terms and conditions laid down in the agreement for engagement as Commission Bearers, there were no statutory obligations to absorb them in the Railway service and as per condition no.16 of the said agreement the Commission Bearers/Vendors shall not be treated as Railway servants for any purpose. However, they were absorbed in regular Group D posts only on the basis of the orders of the Hon. Supreme court dated 08.09.1987 in WP No.191/86. They further submitted that with respect to the order of the Ernakulam Bench of this Tribunal in OA 440/2003 relied upon by the applican