Supreme Court of India
UNION OF INDIA AND OTHERSversusMUNSHI RAM
- Citation
- 2022 INSC 1141
- Decided
- 31 October 2022
- Disposal
- Dismissed
- Bench
- M R SHAH
Holding
Commission vendors/bearers of the Northern Railway are entitled to have 50% of their service rendered prior to regularisation counted for pensionary benefits, the same as vendors in other railway zones.
Summary
The case concerned commission vendors of the Northern Railway who, after being absorbed into regular railway service, sought to have 50% of their pre‑absorption service counted as qualifying service for pension benefits, as had been granted to similarly situated vendors in other railway zones. The Union of India appealed the Delhi High Court order that allowed the claim, arguing financial burden and that the vendors were not entitled under the pension rules. The Supreme Court examined the applicability of Articles 14 and 16 of the Constitution, the Railway Services (Pension) Rules, 1993, and the principle of parity among employees of the same employer (Railway Board). Relying on earlier judgments granting the same benefit to vendors in the Western, Eastern, Southern and South‑Eastern Railways, the Court held that denying the benefit to Northern Railway vendors would be discriminatory. Consequently, the appeals were dismissed and the vendors were entitled to the 50% service credit for pensionary benefits.
Issues considered
- Whether commission vendors absorbed in the Northern Railway are entitled to count 50% of their pre‑regularisation service for pensionary benefits.
- Whether denial of such benefit violates Articles 14 and 16 of the Constitution.
- Whether the Railway Services (Pension) Rules, 1993 (Rule 14, Rule 24, Rule 31) and the Indian Railway Establishment Manual, 1991 (Rule 2005) apply to commission vendors.
- Whether the projected financial burden on the Railways can justify a denial of parity.
Legislation cited
- Constitution of Indias. Arts.14, s. Arts.16
- Indian Railway Establishment Manual, Vol. II, 1991s. Rule 2005
- Railway Services (Pension) Rules, 1993s. Rule 14, s. Rule 24, s. Rule 31
Subjects
pensionary benefitsservice regularisationcommission vendorsrailway employeesequalityArticles 14 and 16parityservice lawretirement benefits
Judgment
[2022] 10 S.C.R. 1135 1135
UNION OF INDIA AND OTHERS A
v.
MUNSHI RAM
(Civil Appeal No. 2811 of 2022)
OCTOBER 31, 2022 B
[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
C
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 D
vendors – Held: Commission vendors/bearers working in the
Western Railway, Eastern Railway, Southern Railway and South-
Eastern 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
E
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 F
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.
G
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 H
1135
1136 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B – 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
C 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
D 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]
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
F
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-F-
H]
Saital Singh v. Union of India Writ Petition (C) No.
G 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
H 783; Haryana State Electricity Board v. Gulshan Lal
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1137
(2009) 12 SCC 231 : [2009] 8 SCR 950; Uttar Pradesh A
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
B
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 C
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)
D
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
E
[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
F
(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 G
[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.
H
1138 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B 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,
C 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
D
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
E 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
F 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
G 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
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1139
[M. R. SHAH, J.]
disposed of Writ Petition (Civil) No. 6804-05/1982 (Saital Singh v. Union A
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,
B
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 C
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
D
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’ E
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 F
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 G
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
H
1140 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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
D 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 –
E 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
F 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,
G 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
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1141
[M. R. SHAH, J.]
Parikh, learned Senior Advocate has appeared on behalf of the original A
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 B
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 C
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; D
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 E
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 F
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. G
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
H
1142 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B contractual agreement entered into with the Commission Vendors are
as follows:
C
D
E
F
i. Clause 1: Commission vendors shall work on commission basis
[@Pg. 34 in Application for Addl. Docs. i.e. IA No. 137388/
2021].
xxx xxx xxx
G 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
H Application for Addl. Docs. i.e. IA No. 137388/2021].
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1143
[M. R. SHAH, J.]
xxx xxx xxx A
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].
xxx xxx xxx B
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 C
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 D
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]:
E
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
F
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 G
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
H
1144 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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”.
C 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.
D
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…
E (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?
F (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.
G
(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
H Labour.—Casual Labour are not eligible for any entitlement and
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1145
[M. R. SHAH, J.]
privileges other than those statutorily admissible under the various A
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]: B
xxx xxx xxx
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 C
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 D
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 E
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 F
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 G
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]: H
1146 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B
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
C 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
D 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,
E 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
F
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
G 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:
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1147
[M. R. SHAH, J.]
Provided that the weightage for past service paid from A
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. B
(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.
C
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.
D
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. E
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 F
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
G
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 H
1148 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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.
B
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.
C
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
D 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
E 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.
F
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
G 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
H Court in the aforesaid decisions that unequals cannot be treated as equals.
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1149
[M. R. SHAH, J.]
3.15 Now so far as the reliance placed upon the dismissal of the A
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
B
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 C
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 D
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 E
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: F
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. G
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
H
1150 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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
C 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/-
D 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
E 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
F 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
G
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: -
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1151
[M. R. SHAH, J.]
A
B
C
D
E
F
G
H
1152 SUPREME COURT REPORTS [2022] 10 S.C.R.
A
B
C
D
3.18 Making the above submissions, it is prayed to allow the present
E 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 –
F
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
G 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
H of India – Railways has repeated the very same arguments, which were
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1153
[M. R. SHAH, J.]
earlier raised before various Tribunals, High Courts and before this Court A
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 B
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 C
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 D
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 E
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. F
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
G
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 H
1154 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 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
B 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.
C 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
D to the letters dated 20.08.1996 and 06.11.2000 which were written to
expedite the process of absorption. In the letter dated 31.07.2001, the
Railway Board had written to all the General Managers to absorb the
Commission Vendors/Bearers “in the Commercial Department as well
as in other departments”, in view of the fact that catering department on
E zonal railways had been frozen resulting in very few vacancies arising
therein.
4.9 That the Railway Board issued another letter dated 02.08.2005
whereby it was decided that “all Commission Vendors/Bearers to be
absorbed, subject to medical fitness with age cut off as 59 years as on
F 01.04.2005 with education qualifications as read and write only”. It is
submitted that due to delay in absorption of the Commission Bearers/
Vendors, the Railway Board provided that even if the Commission
Bearers/Vendors have attained the age of 59 years but had not
superannuated, they will be absorbed.
G 4.10 It is contended that from the aforesaid facts and the various
orders passed by the Railway Board and this Court, it would show that
the Commission Vendors/Bearers were taken in the Railway services
by way of absorption in view of the facts and circumstances prevailing
then and these Commission Bearers/Vendors were discharging duties
similar to those discharged by the vendors/bearers of the Railway
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1155
[M. R. SHAH, J.]
canteen. It is submitted that as such the delay in absorption by different A
zones/divisions of Railway was in violation of this Court’s orders.
4.11 That in view of the delay and negligence of the Northern
Railway in not implementing the Railway Board’s Order dated 13.12.1976
and the orders passed by this Court, a number of Writ Petitions were
filed by the Commission Vendors/Bearers, which can be seen from the B
Judgment given by the Delhi High Court dated 05.11.2012 inGurdas
Ram & Others Vs. UOI & OthersinW.P. (C) No.5175 of 1998 & CM
No.14513 of 2010. It is submitted that it is pursuant to the judgment of
the Delhi High Court in the case of Gurdas Ram & Others (supra)
that the respondents herein were absorbed in Class III.
C
4.12 It is submitted that the learned Single Judge in the case of
Gurdas Ram & Others (supra) issued a madamus to the respondents
(Northern Railway) to absorb eligible petitioners who have not crossed
age of 59 years in ‘Group C’ posts against vacant posts of this category
after such eligible petitioners formally make an application to seek
absorption in ‘Group C’ posts. It is submitted that the judgment of the D
learned Single Judge in Gurdas Ram & Others (supra)was accepted
by the Northern Railway and the appointments were given to the
respondents herein as well as to the others in the post of “Catering
Waiter” in Grade Pay of Rs.5200-20200+GP 1800/-.
4.13 On the issue whether the Commission Vendors/Bearers after E
their absorption on a permanent sanctioned post in the Railways are
entitled for pension, Shri Sanjay Parikh, learned Senior Advocate has
made the following submissions: -
(i) Initially, these Commission Vendors/Bearers were working
on contractual basis and thereafter they were absorbed and F
became permanent Railway employees on different dates.
That Rule 14 of the Railway Services (Pension) Rules, 1993
provides that periods of employment in the capacities
mentioned from (i) to (xiv) shall not constitute service for
pensionary benefits. That clause (xiv) of Rule 14 contains G
an exception, namely, that “when employment on contract
basis is followed by confirmation”. That the meaning of
confirmation will be absorption in Railway service or taking
them permanently in Railway service or confirmation in
Railway service by absorption/appointment etc. It is
H
1156 SUPREME COURT REPORTS [2022] 10 S.C.R.
A submitted that the nomenclature may not be relevant. That
the respondents’ case is covered by the said provision
because their contractual period was followed by their
confirmation/ absorption in the Railway services. That Rule
24 clarifies the situation further as it provides that if a person
is initially engaged by Railways on a contract (as
B
Commission Vendor/Bearer) and subsequently appointed
to the same or another post in a substantive capacity (as
Catering Waiter) in the present case, such contractual period
of service shall be treated like any other permanent service
in the Railway and be taken into account for calculating the
C pensionary benefits.
(ii) That the said Rules were considered by the Kerala High
Court and by other High Courts in several Judgments and
the SLPS filed by the Railway Departments were dismissed,
even on merits. Therefore, various Tribunals/High Courts
D have accepted 50% of the service rendered on contractual
basis before absorption for grant of pension. That the said
issue has attained finality as on this legal basis and the
Railways have implemented it.
(iii) Reliance is placed on the decision of this Court in the case
E of Rakesh Kumar’s case (supra). It is submitted that in
the said judgment, this Hon’ble Court had considered the
grant of pension to the casual labours who were granted
temporary status and subsequently regularized for
determining the qualifying service and for grant of pension.
Reliance is placed on the final conclusion in paragraph 53.
F
(iv) Thus, according to the said judgment, a casual worker is
entitled to reckon 50% of causal service before obtaining
temporary status. That however, the Railway Board is
taking a contrary position and they are asserting that “only
50% of temporary status service would be counted for
G pensionary service after regularization” and that the period
prior to temporary status would not be counted for pensionary
benefits.
(v) That various orders passed by the respective High Courts/
Tribunals with respect to the Western Railway, Eastern
H
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1157
[M. R. SHAH, J.]
Railway, Southern Railway taking the view that the A
Commission Vendors/Bearers are entitled for counting 50%
of the period for the purpose of pensionary benefits.
4.14 It is also submitted that therefore to deny the benefit of 50%
of earlier service rendered as Commission Vendors/Bearers for the
purpose of pensionary benefits only in one zone of the Railways namely, B
Northern Railway, would be discriminatory and violative of Articles 14
and 16 of the Constitution.
4.15 It is further submitted that even on the Doctrine of Stare
Decisis, the respondents are entitled to the benefit of counting of their
50% service/period rendered as Commission Vendors/Bearers for the C
purpose of pensionary benefits. Reliance is placed on the decision of
this Court in Waman Rao and Ors. Vs. Union of India and Ors.,
(1981) 2 SCC 362 (para 40); Narinder Singh and Ors. Vs. State of
Punjab and Anr., (2014) 6 SCC 466 (para 22).
4.16 Now, so far as the submission on behalf of the Railways on D
the financial liability/implication is concerned, it is submitted that the said
plea would violate Articles 14, 16 and 21 of the Constitution besides the
Rule of Law. It is submitted that the argument of financial implication
which is primarily been raised to deny equal treatment to the Commission
Vendors/Bearers now Catering Waiters may not be accepted as the
same is wholly unsustainable. E
4.17 It is submitted that in the case of All India Judges’
Association and Ors. Vs. Union of India and Ors., (1993) 4 SCC
288 (para 16), this Court had considered the uniformity in the service
conditions of judicial officers and the question of financial burden raised
by Union of India was rejected as being misconceived. That in the said F
decision, this Court has said that if a decision has financial implications,
the Government is obligated to loosen its purse.
4.18 It is submitted that in the case of Ashoka Kumar Thakur
Vs. Union of India and Others, (2008) 6 SCC 1, it is observed and
held by this Court that the State cannot avoid constitutional obligation on G
the ground of financial inabilities.
4.19 It is further submitted by Shri Sanjay Parikh, learned Senior
Advocate that the concept of negative equality raised by learned ASG
shall not be applicable in the present case. It is submitted that the judgment
of this Court in the case of Anup Kumar Senapati (supra) relied upon H
1158 SUPREME COURT REPORTS [2022] 10 S.C.R.
A by the appellants is not applicable to the facts of the present case. It is
submitted that facts of the present case clearly establish the right for
being absorbed on the vacant posts and that the High Courts have granted
relief on the basis of the provisions of the Rules, 1993, which has been
confirmed by this Court. It is submitted that there are admissions/
concessions of the Railway Board and acceptance of the series of
B
judgments that the Commission Vendors/Bearers are entitled to claim
50% of their service for the purpose of pension. That this is not a case
of either the decisions being wrong or there being any illegality or fraud
or that it is not even a case where the relief/benefit has been granted
inadvertently or by mistake. It is a case where different zones and
C divisions under the Railway Board are granting pension whereas it has
been denied to other similarly situated persons in violation of Articles 14,
16 and 21 of the Constitution. It is submitted that therefore, the present
case is clearly covered by the decision of this Court in the case of G.C.
Ghosh and Ors. Vs. Union of India and Ors., 1991 Supp (2) SCC
497.
D
4.20 Making above submissions and relying upon above decisions,
it is prayed to dismiss the present appeals.
5. We have heard learned Additional Solicitor General of India
appearing on behalf of the Union of India and others and Shri Sanjay
E Parikh, learned Senior Advocate appearing on behalf of the respondents.
At the outset, it is required to be noted that the issue in the present
case is with respect to Commission Vendors working in the Northern
Railway and the issue is whether the Commission Vendors who were
absorbed in the regular service are entitled to reckon 50% of the period
F of service as Commission Vendors, prior to their absorption, as qualifying
service for grant of pensionary benefits, at par with the casual labourers
whose services were regularized 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.
G At the outset, it is required to be noted that so far as the
Commission Vendors working in the Western Railway, Eastern Railway,
Southern Railway and South-Eastern Railway are concerned, pursuant
to different orders passed by the Central Administrative Tribunals and
High Courts, which have been confirmed by this Court, the issue is held
against the Union of India/Railways, the particulars of which are as
H under:
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1159
[M. R. SHAH, J.]
i) By a detailed judgment and order in OA No. 238/2004, the A
Central Administrative Tribunal allowed the said OA filed
by the Association/Trade Union of the employees of the
Railways filed on behalf of the Commission Vendors/bearers
working in the Western Railway, relying upon the earlier
order passed by the CAT in OA No. 538/1996 and the order
B
passed by the Bombay High Court in Writ Petition No. 499/
2002, and held that the Commission Vendors/bearers are
entitled to 50% of the services rendered by them as
Commission Vendors/bearers for the purpose of pension
along with the services rendered by them as regular
employees of the railways. The judgment and order passed C
by the Tribunal in OA No. 538/1996 came to be confirmed
by the Bombay High Court, by judgment and order dated
21.04.2008 passed in Writ Petition No. 190/2006. The said
judgment and order dated 21.04.2008 passed by the High
Court was the subject matter of the special leave petition
D
before this Court. This Court initially issued notice in the
special leave petition and thereafter by order dated
14.03.2011 passed in SLP(Civil) No. 24166/2009, dismissed
the special leave petition on the ground of delay as well as
on merits;
ii) With respect to the Commission Vendors/bearers working E
in the Eastern Railway, there was a decision against the
Railways by the Calcutta High Court, which was the subject
matter of Special Leave Petition before this Court being
Special Leave Petition (Civil) No. 25730/2009. In the case
of eastern railway, the CAT, Calcutta Bench held in favour F
of the Commission Vendors/bearers. The writ petition filed
by the Railways came to be dismissed by the Calcutta High
Court against which the aforesaid special leave petition came
to be filed before this Court, which was dismissed by order
dated 14.03.2011;
G
iii) With respect to Commission Vendors/bearers working in
the Southern Railway, the High Court of Kerala at
Ernakulam held in favour of the similarly situated
Commission Vendors/bearers. In the case of Southern
Railway, the CAT, Ernakulam Bench vide order in OA No.
H
1160 SUPREME COURT REPORTS [2022] 10 S.C.R.
A 440/2003 decided in favour of the Commission Vendors/
bearers. The Railway Board and others filed a writ petition
before the High Court being Writ Petition No. 15756/2006.
The High Court affirmed the order passed by the tribunal
directing that the 50% of the services rendered on contract
basis be counted for pension. Against the order passed by
B
the Kerala High Court, the Railways filed a special leave
petition before this Court, which came to be dismissed on
the ground of delay;
a. By another judgment, similar order was passed by
the High Court of Kerala, confirming the judgment
C and order passed by the CAT, Ernakulam Bench,
which was decided in favour of the Commission
Vendors/bearers. The said judgment and order passed
by the High Court has attained finality.
b. There were similar judgment(s) and order(s) passed
D by the CAT, Ernakulam Bench which were in favour
of the Commission Vendors/bearers, which have
attained finality.
iv) With respect to the Commission Vendors/bearers working
in the South-Eastern Railway, the CAT, Calcutta Bench vide
E order dated 06.12.2010 in OA No. 758/2007 declined the
claim of the Commission Vendors/bearers. However, by a
detailed judgment and order dated 30.08.2012 in Writ
Petition No. 28/2011, the High Court of Calcutta held that
the Commission Vendors/bearers are entitled to 50% of the
F services rendered prior to their regularization to be counted
for pensionary benefits. The special leave petition against
the judgment and order passed by the High Court of
Calcutta came to be dismissed by this Court being Special
Leave Petition No. 25019/2013.
G 6. From the aforesaid, 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 regularization
to be counted for pensionary benefits and all those Commission Vendors/
bearers are granted such benefits. Now the dispute is with respect to
H Commission Vendors/bearers working in the Northern Railway.
UNION OF INDIA AND OTHERS v. MUNSHI RAM 1161
[M. R. SHAH, J.]
7. It cannot be disputed that employees working in different A
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
B
entitled to similar benefits and are entitled to the same treatment. As
rightly submitted on behalf of the respondents, 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 C
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.
8. The Railways/UOI/Railway Board cannot be permitted to repeat D
the same arguments which were raised before different Tribunals, High
Courts and also before this Court. Under the circumstances, the
respondents – Commission Vendors/bearers working in the Northern
Railway shall also be entitled to the same benefits which the other
Commission Vendors/bearers working in different Zones/Divisions are
held to be entitled to. There cannot be discrimination among the similarly E
situated Commission Vendors/bearers. To deny similar benefits would
tantamount to discrimination and in violation of Articles 14 and 16 of the
Constitution of India.
9. Now so far as the submission on behalf of the appellants -
UOI/Railways that there shall be huge financial burden on the Railways F
is concerned, it is required to be noted that the issue is with respect to
pensionary benefits. 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 G
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.
10. Even the concept of negative equality submitted on behalf of
the appellants also shall not be applicable in the facts and circumstances H
1162 SUPREME COURT REPORTS [2022] 10 S.C.R.
A of the case, more particularly when the decisions of different High Courts
which are held against the appellants have been confirmed by this Court
and the special leave petitions have been dismissed on the ground of
delay as well as on merits.
11. In view of the above and for the reasons stated above and
B even applying the doctrine of stare decisis, on the aforesaid ground
alone, the present appeals deserve to be dismissed and are accordingly
dismissed, by holding that the respondents – Commission Vendors/bearers
working in the 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 the Railway Board,
C working in different zones/divisions, namely, Western Railway, Eastern
Railway, Southern Railway and South-Eastern Railway.
12. All these appeals are accordingly dismissed. No costs.
Devika Gujral Appeals dismissed.
D (Assisted by : Mahendra Yadav, LCRA)
E
F
G
H
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