Eligibility for pension calculation includes 50% of pre-regularization service as per Supreme Court rulings.

Judgment Sushrut Arvind Dharmadhikari, J.

The present Original Petition under Article 227 of the Constitution of India challenges the order dated 18.01.2023 in O.A.No.180/00782/2018 passed by the Central Administrative Tribunal, Ernakulam Bench whereby the petition filed by the respondents herein has been allowed.

Facts

2. The brief facts of the case are that the first respondent, a retired Track Maintainer-III of the Southern Railway, was superannuated on 31.10.2016 after serving for 19.5 years. Initially he joined the service on 11.02.1976 as a Blacksmith on casual basis. Thereafter he was granted temporary status on 12.02.1997. The first respondent was regularized on 07.05.1997. During the pendency of the Original Application, the first respondent passed away and that is how the respondents 2 to 4 are before us being legal representatives of the first respondent deceased.

2.1 The grievance of the respondents is that 50% of casual labour service of the first respondent before regularization has not been reckoned for the purpose of pension and other benefits.

Petitioners’ Contentions

3. The learned counsel for the petitioner, Union of India, opposed the prayer and submitted that they have already extended the benefit of temporary status, however, the first respondent would not be eligible to count 50% of the services prior to grant of temporary status for the purpose of pension. The learned Tribunal erred in granting the relief in accordance with clause-ii of Rakesh Kumar (Supra). Therefore, this Original Petition deserves to be allowed.

Respondent’s contention

4. Learned counsel for the respondents opposed the prayer and submitted that there is no provision under the Rules to the effect that an employee ought to have rendered continuous service so as to count the period for the purpose of pension in as much as the first respondent was initially appointed in the year 1976 and had been working since then. The Apex Court inUnion of India and others vRakesh Kumar and others , [AIR 2017 SC 1691] in paragraph-55(ii) has clearly held that a casual worker before obtaining temporary status is also entitled to reckon 50% of the casual service for the purpose of pension. The learned Tribunal has not committed any error in allowing the O.A. and the Original Petition deserves to be dismissed.

5. The respondents had placed reliance on the Supreme Court Judgement in the case of Rakesh Kumar (Supra) wherein in Paragraph 55 of the judgment, the Supreme Court has laid down as under:

55. In view of foregoing discussion, we hold :

i) the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised on a regular/temporary post for the purposes of calculation of pension.

ii) the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purposes of pension.

iii) Those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of Rules, 1993.

iv) It is open to Pension Sanctioning Authority to recommend for relaxation in deserving case to the Railway Board for dispensing with or relaxing requirement of any rule with regard to those casual workers who have been subsequently absorbed against the post and do not fulfil the requirement of existing rule for grant of pension, in deserving cases. On a request made in writing, the Pension Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of Rules, 1993.

6. The petitioners herein had filed a counter affidavit before the Tribunal taking objection that the O.A. is premature since the first respondent had not approached the authoritie