Bhikhani Devi and Etc. vs Union of India and Others

Held: A temporary status casual labourer would be entitled to pensionary benefits on superannuation even in the absence of regularization – The submission advanced on behalf of the Respondents is that under the Scheme the employees continue merely as temporary status casual labourers and are distinct from the temporary Government servants, and so would be the pensionary framework applicable – At first blush, this contention appears to be correct to an extent however, on due consideration and deliberation of the Scheme and its various clauses as a whole, the submission is misplaced – Although, it may be correct to say that conferment of temporary status on a casual labourer under the Scheme does not ipso facto transform such employee into a temporary Government servant, however, what falls short from the aforesaid submission is that while the status of such employee continues unchanged i.e., of a ‘temporary status casual labourers’, the Scheme consciously and specifically extends to such employees benefits admissible to temporary Group ‘D’ employees upon completion of three years of continuous service under temporary status – The service conditions, at this juncture, of the casual temporary status employee under the Scheme gets substantially changed and carries all the benefits that are available to temporary government employees – Therefore, while the nomenclature and category of their service status remain unchanged, the nature and extent of benefits now available to them stand significantly enlarged and aligned with those admissible to temporary Government employees, blurring the distinction between both categories as far as benefits available to them are concerned – The distinction that remains is one relating to nomenclature, formal status and mode of regularisation but not to the nature of extended benefits – When the statutory framework including CCS (Temporary Service) Rules, 1965 is read in conjunction with the Scheme and the circular dtd.30.11.1992, the inescapable conclusion which emerges is that a casual labour, on being conferred the temporary status, upon completion of three years of continuous service as temporary status casual labourer becomes entitled to benefits admissible to temporary Group ‘D’ employees, which necessarily includes pensionary benefits available u/r.10(1-B) of the CCS (Temporary Service) Rules, 1965 subject to fulfilling the eligibility criteria provided therein – This right is not dependent on regularization – Impugned judgments proceeded on an erroneous interpretation of the Scheme and the circular dated 30.11.1992, set aside – Appellants entitled to pensionary and consequential retiral benefits in accordance with law – Constitution of India – Arts.14, 300A. [Paras 66, 67, 75, 76, 84]

Constitution of India – Art.300A – Pension is not a bounty but a vested and enforceable constitutional right: Held: Pension is a hard-earned benefit amassed by an employee by virtue of long and continuous service and is in the nature of “property” within the meaning of Art.300A of the Constitution of India – Once pension is recognised as a constitutional right in the nature of property, it cannot be taken away except by authority of law – A statutory right cannot be rendered illusory on account of inaction of the employer, and such inaction cannot defeat or deny a constitutional right. [Paras 41, 42]

Service Law – In furtherance of the “Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1991” (Scheme), circular dtd.30.11.1992 provided that the casual labourers conferred with temporary status as per the Scheme be treated at par with temporary Group ‘D’ employees with effect from the date of completion of three years of service in the temporary status – The benefits listed in the circular dtd. 30.11.1992 included leave, holidays, GPF, medical facilities, LTC, bonus, and other service benefits admissible to Temporary Group ‘D’ employees – Plea of the Respondents that temporary status casual labourers are extended only the benefits that are specified in the Scheme and Circular dtd.30.11.1992 and are not entitled for pensionary benefits: Held: Said submission is misconceived – The enumeration of benefits listed in the circular dtd.30.11.1992, includes leave, holidays, GPF, medical facilities, LTC, bonus, and other service benefits admissible to Temporary Group ‘D’ employees, clearly demonstrates that temporary status employees are to be functionally assimilated into the service framework of Temporary Group ‘D’ employees – The expression “benefits admissible to temporary Group ‘D’ employees such as”, made use of in the circular is of considerable importance – The utilisation of the words “such as” clearly indicates that the benefits enumerated therein are illustrative and neither restrictive nor exhaustive – The circular, being a beneficial legislation, cannot be read and understood in a restrictive manner rather the correct approach of interpretation would be to analyse it in the letter and spirit of the legislative and administrative intent i.e. to extend all benefits as are available to temporary Group ‘D’ employees, to temporary status casual labourers including pensionary benefits. [Paras 54, 55] CCS (Temporary Service) Rules, 1965 – r.10(1-B) – CCS (Pension) Rules, 1972 – Plea of the Respondents that the Appellants were paid out of contingencies and therefore stood excluded from the purview of the CCS (Temporary Service) Rules, 1965:

Held: Said contention cannot be accepted in the particular facts of the present case – Such exclusion may have relevance at the stage of initial engagement as casual labourers – However, the service conditions of the Appellants underwent a substantial transformation upon extension of benefits admissible to temporary Group ‘D’ employees – The continued reliance by the Respondents upon the original mode of engagement, while simultaneously extending pay parity, increments, GPF facilities, leave benefits and other service entitlements akin to temporary Group ‘D’ employees, would amount to selectively accepting one part of the Scheme while disregarding the other – Such an approach would defeat the very object underlying the Scheme and the circular dtd.30.11.1992 – Once parity in service benefits with temporary Group ‘D’ employees is consciously extended under the Scheme, pensionary benefits flowing u/r.10(1-B) of the Rules of 1965 cannot be selectively denied by ignoring or overlooking the statutory right – The argument founded upon financial burden is equally untenable – Pension is not a matter of grace dependent upon the financial convenience of the employer, but a deferred wage earned through long years of service – Pension is recognised as a constitutional right in the nature of property protected u/Art.300A of the Constitution of India and, therefore, it cannot be denied on the plea of financial burden. [Para 73]

Service Law – Constitution of India – Arts.14; 38, 39, 43 – State, a model employer – Long-serving employees, casual or temporary, if conferred a recognised status and extended benefits akin to regular employees, cannot be denied corresponding benefits including social security and pensionary benefits:

Held: Long-serving employees, whether casual or temporary, particularly those who have been conferred a recognised status and extended benefits akin to regular employees, cannot be denied corresponding benefits including social security and pensionary benefits – The emphasis must be on ensuring that the State does not retain such employees in a precarious condition while extracting services identical to those performed by regular employees – This approach is firmly rooted in the constitutional mandate of equality enshrined u/Art.14 – Any classification, resulting in denial of any benefits to a class of employees who are otherwise similarly situated in terms of duties and responsibilities would fall foul of constitutional ethos – Further, the Directive Principles of State Policy, particularly Arts.38, 39 and 43, cast a positive obligation upon the State to ensure social and economic justice, fair conditions of work, and a decent standard of life for labourers – Pension, in this context, is not a gratuitous benefit but a facet of social welfare and economic justice – State as a model employer, read in conjunction with the aforesaid constitutional mandate, reinforces the obligation upon the State to extend fair and equitable treatment to employees who have rendered long and continuous service and the State cannot extract services of a permanent nature while denying corresponding benefits. [Paras 38-40]

Service Law – Pensionary benefits – Delay and laches: Held: Pensionary benefits constitute a continuing cause of action, and a claim for pension cannot be defeated solely on the ground of delay – At the same time, the claim for arrears is required to be balanced with settled principles governing limitation – In the present case, nothing has been brought on record to indicate that the Appellants had raised any claim for pensionary benefits prior to filing of the respective Original Applications before the Tribunal – In such circumstances, while the entitlement of the Appellants to pensionary and consequential retiral benefits stands established, the arrears thereof, wherever applicable, shall remain confined to the period of three years and two months preceding the date of filing of the respective Original Applications before the Tribunal, consistent with settled principles governing service jurisprudence. [Para 81]

Service Law – Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1991” – Different categories of employees engaged within the service framework in the Department of Posts viz., Casual labourers; Temporary status casual labourers; Temporary Government employees; and Regular Government employees – Distinction between, stated – CCS (Temporary Service) Rules, 1965. [Paras 59-65] Service Law – Parity in service benefits vis-à-vis identity of service status:

Held: The Scheme in question nowhere provides that upon completion of three years’ service under temporary status, the employee becomes a temporary Government servant – What it specifically provides is that such employee shall be treated at par with temporary Group ‘D’ employees for purposes of extension of admissible benefits – The parity contemplated under the Scheme is thus parity in service benefits and not identity of service status – Once the Scheme and the circular dtd.30.11.1992 consciously extend benefits admissible to temporary Group ‘D’ employees, the Respondents cannot rely solely upon the nomenclature of ‘temporary status casual labourer’ to deny those very benefits – The entire framework of the Scheme proceeds upon extension of substantive service benefits despite continuance of the original nomenclature as temporary status casual labourer. [Para 68] Service Law – Plea of the Respondents that Clause 6 of the “Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1991” (Scheme) contemplates counting of 50% service rendered under temporary status towards retirement benefits only after formal regularisation as Group ‘D’ employee and, therefore, in the absence of regularisation, no pensionary benefits can be granted: Held: Said submission cannot be accepted – Clause 6 cannot be read in isolation divorced from the principles and purpose underlying the Scheme and the circular dtd.30.11.1992 – The judgment of this Court in Jagrit Mazdoor Union, which forms the basis of the Scheme itself, categorically directed that upon completion of three years of continuous service under temporary status, casual labourers ‘would thereby be entitled to benefits as are admissible to Group ‘D’ employees on regular basis’ – The circular dtd.30.11.1992 further clarifies that such employees would be entitled to counting of service for pension and terminal benefits as admissible to temporary Group ‘D’ employees – The expression “after regularisation” occurring in Clause 6 cannot be construed in a narrow or restrictive manner so as to defeat the beneficial object underlying the Scheme and must be construed in its proper context – Clause 6 has to be interpreted harmoniously and would construe to mean that in cases where formal orders of regularisation are passed, 50% of the service rendered under temporary status would be liable to be counted towards retirement and pensionary benefits as additional benefit apart from the benefits as available under the rules which become applicable to a regular government employee – Consequently, while Clause 6 may operate to confer an additional advantage in cases where regularisation takes place, the absence of formal regularisation cannot be construed as extinguishing or defeating the underlying entitlement to pensionary benefits. [Paras 56, 57]