UNION OF INDIA AND OTHERS versus MUNSHI RAM

[2022] 10 S.C.R. 1135

UNION OF INDIA AND OTHERS

MUNSHI RAM

(Civil Appeal No. 2811 of 2022)

OCTOBER 31, 2022

[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 vendingservices were started by Northern Railways for which the staff ofthe private contractors was taken as commission vendors – Thecommission vendors were paid commission on sales turnoverachieved by them instead of paying regular salaries – Thereafter,pursuant to the memorandum issued by the Railway Board, thecommission vendors/bearers were absorbed in regular vacancies –Claim for grant of pensionary/retirement benefits by commissionvendors – Held: Commission vendors/bearers working in theWestern Railway, Eastern Railway, Southern Railway and South-Eastern Railway were held to be entitled to 50% of the servicesrendered prior to their regularization to be counted for pensionarybenefits – Since employees working in different divisions/zones inthe Railways are under the very same employer i.e. Railway Boardwhich is under the Ministry of Railways, therefore, the employeesworking under the same employer are required to be treated similarlyand equally and are entitled to similar benefits and are entitled tothe same treatment – There cannot be different criteria/parameterswith respect to similarly situated employees working in differentZones/Divisions, but working under the same employer and to denysimilar benefits would tantamount to discrimination and in violationof Arts.14 and 16 of the Constitution – No reason to deny the similarbenefits to the respondents-commission vendors/bearers workingin the Northern Railway being similarly situated – Service law.

Dismissing the appeals, the Court

HELD: 1. It can be seen that with respect to CommissionVendors/bearers working in the Western Railway, EasternRailway, Southern Railway and South-Eastern Railway, they areheld to be entitled to 50% of the services rendered prior to their

CDEFG

[2022] 10 S.C.R.

Aregularization to be counted for pensionary benefits and all thoseCommission Vendors/bearers are granted such benefits. [Para6][1160-G-H]

2. It cannot be disputed that employees working in differentdivisions/zones in the Railways are under the very same employerB– Railway Board which is under the Ministry of Railways. Thereare 16 Zones and 68 Divisions in the Railways. Therefore, theemployees working under the same employer – Railway Boardworking in different Zones/Divisions are required to be treatedsimilarly and equally and are entitled to similar benefits and areentitled to the same treatment. There cannot be anyCdiscrimination inter se. Under the circumstances, on the groundof parity, the Commission Vendors/bearers working in theNorthern Railway are entitled to the same benefits which areheld to be entitled to all the similarly situated CommissionVendors/Bearers working under different Zones/Divisions. Therecannot be different criteria/parameters with respect to similarlyDsituated employees – Commission Vendors/bearers working indifferent Zones/Divisions, but working under the same employer.To deny similar benefits would tantamount to discrimination andin violation of Articles 14 and 16 of the Constitution of India.[Paras 7, 8][1161-A-D, E]

E3. Once it is found that the respondents-CommissionVendors/bearers working in the Northern Railway are also entitledto similar benefits which are given to the similarly situatedCommission Vendors/bearers working in different zones/divisionsand since they are already being paid the pensionary benefits bycounting the benefit of 50% of their services rendered prior toFtheir regularization, there is no reason to deny the similar benefitsto the respondents – Commission Vendors/bearers working inthe Northern Railway being similarly situated. [Para 9][1161-F-

Saital Singh v. Union of India Writ Petition (C) No.G6804-05 of 1982; T.L Madhavan, General Secretary,AIRCS Workers Union v. Union of India 1988 SuppSCC 437; Gurdas Ram & Others v. Union of India WritPetition (Civil) No. 5175/1998; Union of India v.Rakesh Kumar (2017) 13 SCC 388 : [2017] 3 SCR783; Haryana State Electricity Board v. Gulshan LalH

(2009) 12 SCC 231 : [2009] 8 SCR 950; Uttar PradeshPower Corporation Ltd. v. Ayodhya Prasad Mishra(2008) 10 SCC 139 : [2008] 13 SCR 373; Union ofIndia 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 Odishav. Anup Kumar Senapati (2019) 19 SCC 626; GurdasRam & Others Vs. UOI & Others W.P. (C) No.5175 of1998 & CM No.14513 of 2010; Waman Rao and Ors.v. Union of India and Ors.(1981) 2 SCC 362 : [1981] 2SCR 1; Narinder Singh and Ors. v. State of Punjaband Anr. (2014) 6 SCC 466 : [2014] 4 SCR 1012; AllIndia Judges’ Association and Ors. v. Union of Indiaand Ors. (1993) 4 SCC 288 : [1993] 1 Suppl. SCR749; Ashoka Kumar Thakur v. Union of India andOthers (2008) 6 SCC 1 : [2008] 4 SCR 1; G.C. Ghoshand Ors. v. Union of India and Ors. 1991 Supp (2)SCC 497 – referred to.

Case Law Reference

AFrom the Judgment and Order dated 21.11.2019 of the High Courtof Delhi at New Delhi in WP (C) No.4535 of 2019.

With

Civil Appeal Nos.2812, 2813, 2814-2815 of 2022.BMs. Madhavi Divan, ASG, Rajan Kumar Chourasia, Ms. VaishaliVerma, B. K. Satija, Anukalp Jain, Amrish Kumar, Raj Bahadur Yadav,Advs. for the Appellants.

Sanjay Parikh, Sr. Adv., Pukhramban Ramesh Kumar, SatwikParikh, Karun Sharma, U. Srivastava, M. K. Gaur, Anoop Chauhan,CSaurabh Sharma, Ms. Neelema, Ranbir Singh Yadav, Kasoju MaheshChary, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonDjudgment and order dated 21.11.2019 passed by the High Court of Delhiat New Delhi in Writ Petition (Civil) No. 4535/2019 and other allied writpetitions, by which the High Court has allowed the said writ petitionspreferred by the respective private respondents herein and has set asidethe orders passed by the Central Administrative Tribunal and thereafterEdirected the appellants – Northern Railway to count 50% of their serviceas 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 beingFmanaged through private contractors. Subsequently, the departmentalcatering and vending services were started and the erstwhile staff ofthe private contractors was taken as Commission Vendors. AllCommission Vendors were paid commission on sales turn over achievedby them instead of paying regular salaries. Thereafter, memorandumdated 13.12.1976 was issued by the Railway Board suggesting that theGCommission Vendors may be absorbed as Railway Employees. It wasstated therein that action would be taken to progressively absorb theCommission Vendors/Bearers in regular vacancies.

2.1 There have been series of litigations on the issue of absorptionof the Commission Vendors in the Railways. On 13.12.1983, this CourtH

disposed of Writ Petition (Civil) No. 6804-05/1982 (Saital Singh v. Unionof India) wherein direction was issued for progressive absorption ofthe Commission Bearers/Vendors in term of para 3 of Memorandumdated 13.12.1976. Subsequently, in an order dated 8.9.1987 passed inCriminal Miscellaneous Petition No. 1670/1987 in Writ Petition No. 31364of 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, further direction was issuedregarding the progressive absorption of all persons working as CommissionBearers/Vendors on various railway platforms belonging to the CentralRailway and South-Central Railway in terms of the same memorandumdated 13.12.1976 “as and when vacancies to the posts of bearers in theRailway Catering Service occur”. It was further reiterated that as alreadydirected the Railways would first absorb all the Bearers registered inaccordance with the aforesaid memorandum and thereafter the Vendorswho are registered and until all the Bearers and Vendors are accordinglyabsorbed, the Railway Administration shall not recruit or appoint anyperson either as Bearer or Vendor on permanent basis in the RailwayCatering 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 dealingwith batch of writ petitions by Commission Vendors, who sought therelief of regularization, and in the alternative, absorption in Group ‘C’posts. By judgment and order dated 5.11.2012, the learned Single Judgenegatived the plea of regularization, however, the other relief, viz.,absorption against vacant Group ‘C’ posts was allowed, provided theyhad not crossed the age of 59 years. The respective original writpetitioners – respondents herein all were absorbed pursuant to the aboveorder of the learned Single Judge in Group ‘C’ posts in 2015.

2.3 They then approached the Central Administrative Tribunalwith O.A. No. 219/2016 praying for further consequential relief of grantof pensionary/retirement benefits. It was their case before the CAT thatthe total service of each of the applicants rendered prior to their absorptionin the Railways should be counted towards “qualifying service” for thepurpose of such retirement/pensionary benefits. By judgment and orderdated 12.02.2016, the CAT dismissed the said OA by holding that sincethe earlier judgment of the learned Single Judge declined the prayer ofregularization, it was not possible to entertain the plea for counting the

Apast service without questioning the absorption orders, even forpensionary benefits.

2.4 However, thereafter another Bench of the Tribunal in O.A.No. 4079/2016 filed by one Munshi Ram (respondent in Civil AppealNo. 2811/2022), after following the decision of the Ernakulam Bench ofBthe CAT dated 4.6.2014 in OA No. 417/2013 and one other decision ofthe same Bench, where identically situated applicants were granted therelief of pensionary benefits, allowed the said OA 4079/2016. Thejudgment and order passed by the CAT dismissing the OA and refusingto grant any pensionary benefits to the Commission Vendors who weresubsequently absorbed by treating their earlier service rendered asCCommission Vendors, the original applicants filed the present Writ PetitionNos. 12073/2016 and Writ Petition No. 3307/2017 before the High Court.2.5 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned CAT passed in OA No. 4079/2016 granting therelief of pensionary benefits by counting their service rendered asDCommission Vendors, prior to their absorption, the Union of India preferredthe present Writ Petition No. 4535/2019 before the High Court. All theaforesaid three writ petitions came to be heard together by the HighCourt. By the impugned common judgment and order, the High Courthas allowed the writ petitions preferred by the original writ petitions –ECommission Vendors who were subsequently absorbed and has dismissedthe writ petition preferred by the Northern Railways on the ground thatso far as in the other Railways, namely, Southern Railways and CentralRailways pursuant to the various orders passed by the different HighCourts/Tribunals, their past service rendered as Commission Vendorshave been counted for the purpose of pensionary benefits, there is noFreason to deny such relief to the Commission Vendors/Bearers in theNorthern Railways.

2.6 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court holding that the servicesrendered by the Commission Vendors/Bearers in the Northern Railways,Gprior to their absorption, should be counted for the purposes of pensionarybenefits, the Union of India (Northern Railways) have preferred thepresent appeals.

3. Ms. Madhavi Divan, learned Additional Solicitor General hasappeared on behalf of the appellants – Northern Railway and Shri SanjayH

Parikh, learned Senior Advocate has appeared on behalf of the originalapplicants – private respondents herein.

3.1 Ms. Madhavi Divan, learned ASG has submitted that the shortissue in the present case is, whether Commission Vendors who wereabsorbed into regular service are entitled to reckon 50% of the period ofservice as Commission Vendors, prior to their absorption, as “qualifyingservice” for grant of pensionary benefits. It is submitted, in other words,whether Commission Vendors who are subsequently absorbed are entitledto seek parity with regularised casual labourers, who by virtue of Rule2005 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 casuallabourers while computing qualifying service for grant of pensionarybenefits.

3.2 It is submitted that as such the Commission Vendors havebeen absorbed into regular service in the Indian Railways pursuant to (i)Memorandum No. 76 dated 13.12.1976 issued by the Railway Board;and (ii) the orders passed by this Court in various writ petitioners, referredto hereinabove.

3.3 It is submitted that it is an admitted position that the CommissionVendors in the present case have not completed 10 years of serviceafter absorption and before retirement, which is mandatory for receivingpensionary benefits. In the submitted that in fact in the case of one ofthe appellants/petitioners – Munshi Ram, he has served only for periodof three and half months approximately between his absorption on16.07.2015 and superannuation on 31.10.2015.

3.4 It is submitted that as such the respective Commission Vendorswho are subsequently absorbed in the Railways are claiming parity withCasual Labourers and accordingly are claiming that 50% of their servicerendered as Commission Vendors prior to their absorption is to be countedfor qualifying service for pensionary benefits which is being provided tothe Casual Labourers.

3.5 It is submitted that therefore the question which is required tobe considered is, whether can the Commission vendors claim the benefitof their past service at par with the Casual Labourers? It is submittedthat to appreciate the above, the difference between the status ofCommission vendors and the Casual Labourers is required to be

Aconsidered. The fundamental difference between the status ofCommission Vendors and Casual Labourers is explained by Ms. MadhaviDivan in the chart which is as under:

3.6 It is further submitted that the Commission Vendors wereengaged on purely contractual basis. The relevant terms of the proformaBcontractual agreement entered into with the Commission Vendors areas follows:

i. Clause 1: Commission vendors shall work on commission basis[@Pg. 34 in Application for Addl. Docs. i.e. IA No. 137388/2021].

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Gii. Clause 8: Open to either party to determine this agreement bygiving one month’s notice without assigning any reason and withoutany compensation [@Pg. 35 in Application for Addl. Docs.i.e. IA No. 137388/2021].

iii. Clause 9: Commission vendors are not entitled to anyremuneration except commission on sale of articles [@Pg. 35 inHApplication for Addl. Docs. i.e. IA No. 137388/2021].

xxxxxx

iv. Clause 13: Administration/Railways shall supply the articles tobe sold by commission vendors to the public travelling by train[@Pg. 35 in Application for Addl. Docs. i.e. IA No. 137388/2021].

xxxxxx

v. Clause 16: Commission vendors shall not be treated as Railwayservant 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 wasno master-servant relationship contemplated between CommissionVendor and the employer – Northern Railways. The remuneration wasonly in the form of commission and further on no count was CommissionVendor was treated as railway servant.

3.7 It is submitted that on the other hand, the Casual Labourersstood on different footing. The provisions relating to Casual Labourersfound in separate Chapter XX in the Railway Manual (IREM) showthe difference in status, which are as under:

i) Rule 2001 [@page 30 in Application for Addl. Docs. i.e. IANo. 137388/2021]:

2001: (I) Definition of Casual labour - Casual labour refers tolabour whose employment is intermittent, Sporadic or extends overshort period or continued from one work to another. Labour ofthis kind is normally recruited from the nearest available source.They are not ordinarily liable to transfer. The conditions applicableto permanent and temporary staff do not apply to casual labour.

Casual labour on Railway should ordinarily be employed only inthe following types of cases.

(a) Casual Labour (Open Line).- Casual labour are primarilyengaged to supplement the regular staff in work of seasonal orsporadic nature, which arises in the day to day working of theRailway system. This includes labour required for unloading andloading of materials, special repair and maintenance of tracks andother structures, supplying drinking water to passengers duringsummer months, (recoupment of man-days lost on account of

absenteeism) patrolling of tracks, etc. casual labour so engagedin the operation and maintenance of railway system is referred toas open line casual labour, as distinct from project Casual Labour,described in para (b) infra.

(b) Casual Labour (Project)- Casual Labour are also engaged onRailways for execution of Railway projects, such as new lines,doubling, conversion, construction of building, track Renewals,Route Relay interlocking Railway Electrification, Setting up ofnew units etc. Casual Labour so engaged are referred to as “ProjectCasual Labour”.

Such of those casual Labour engaged on open line (revenue)works, who continue to do the same work for which they wereengaged or other work of the same type for more than 120days without break will be treated as temporary (i.e. given“temporary status”) on completion of 120 days continuousemployment.

Casual Labour on projects who have put in 180 days ofcontinuous employment on works of the same type are entitledfor 1/30th of the minimum of the appropriate scale of pay plusDearness allowance…

(ii) Grant of temporary status to project casual labour is regulatedby instructions separately issued by the Railway Board. As far aspossible, casual labourers required for new projects must be takenfrom amongst those casual labourers. Who have worked on theopen line/projects in the past in preference to outsiders?

(ii) Seasonal labour sanctioned for specific works of less than 120days duration. If such labour is shifted from one work to anotherof the same type and the total continuous period of such work atany time is more than 120 days duration, they should be treated astemporary (i.e. granted “temporary status” after the expiry of120 days continuous employment.

(emphasis supplied)

ii. Rule 2002 [@page 31 in Application for Addl. Docs. i.e. IANo. 137388/2021]:

2002. Entitlements and privileges admissible to CasualLabour.—Casual Labour are not eligible for any entitlement and

privileges other than those statutorily admissible under the variousActs, such as. Minimum Wage Act, Workmen’s CompensationAct, etc. or those specifically sanctioned by the Railway Boardfrom time to time.

iii. Rule 2005 [@page 32 in Application for Addl. Docs. i.e. IANo. 137388/2021]:

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2005. Entitlements and Privileges admissible to CasualLabour who are treated as temporary (i.e. given temporarystatus) after the completion of 120 day or 360 days ofcontinuous employment (as the case may be).— (a) Casuallabour treated as temporary are entitled to the rights and benefitsadmissible to temporary railway servants as laid down in ‘ChapterXXIII of this Manual. The rights and privileges admissible to suchlabour also include the benefit of D&A Rules. However, theirservice prior to absorption in temporary/permanent/regular cadreafter the required selection/ screening will not count for the purposeof seniority and the date of their regular appointment afterscreening/selection shall determine their seniority vis-a-vis otherregular/temporary employees. This is however, subject to theprovision that if the seniority of certain individual employees hasalready been determined in any other manner, either in pursuanceof judicial decisions or otherwise, the seniority so determined shallnot be altered.

Casual labour including Project casual labour shall be eligible tocount only half the period of service rendered by them afterattaining temporary status on completion of prescribed days ofcontinuous employment and before regular absorption, asqualifying service for the purpose of pensionary benefits. Thisbenefit will be admissible only after their absorption in regularemployment. Such casual labour, who have attained temporarystatus, will also be entitled to carry forward the leave at theircredit to new post on absorption in regular service. Daily ratedcasual labour will not be entitled to these benefits.

(emphasis supplied)

iv. Rule 2006 [@page 32 in Application for Addl. Docs. i.e. IANo. 137388/2021]:

A2006. Absorption of Casual Labour in regular vacancies.— Absorption of casual labour in regular Group ‘D’ employmentmay be considered in ‘accordance with instructions issued by theRailway Board from time to time. Such absorption is, however,not automatic but is subject, inter-alia, to availability of vacanciesand suitability and eligibility of individual casual labour and rulesBregarding seniority unit method of absorption etc. decided by theRailway Administration.

It is submitted that therefore the Commission Vendors cannot claimthe benefits at par with the absorbed Casual Labourers.

3.8 It is further urged that the Casual Labourers are being grantedCthe benefits pursuant to the decision of this Court in the case of Unionof India v. Rakesh Kumar, (2017) 13 SCC 388. That on aninterpretation of concerning Rule 31 of the 1993 Rules which providesfor counting of service paid from contingencies, this Court held thatperiod of Casual Labourers prior to grant of temporary status by virtueDof note on Rule 31 has to be counted to the extent of 50% for pensionarybenefits. It is submitted that Rule 31 which fell for consideration beforethis Court reads as under:

31. Counting of service paid from contingencies.—In respectof railway servant, in service on or after the 22nd day of August,1968, half the service paid from contingencies shall be taken intoEaccount for calculating pensionary benefits on absorption in regularemployment, subject to the following condition, namely—

(a) the service paid from contingencies has been in job involvingwhole-time employment;

(b) the service paid from contingencies should be in type ofFwork or job for which regular posts could have been sanctionedsuch as posts of malis, chowkidars and khalasis;

(c) the service should have been such for which payment hasbeen made either on monthly rate basis or on daily rates computedand paid on monthly basis and which, though not analogous toGthe regular scales of pay, borne some relation in the matter of payto those being paid for similar jobs being performed at the relevantperiod by staff in regular establishments;

(d) the service paid from contingencies has been continuous andfollowed by absorption in regular employment without break:

Provided that the weightage for past service paid fromcontingencies shall be limited to the period after 1-1-1961 subjectto 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 casuallabour paid from contingencies.

(2) The expression “absorption in regular employment” meansabsorption against regular post.”

It is submitted that insofar as the Commission Vendors areconcerned, Rule 31 of the 1993 Rules shall not be applicable at all.

3.9 It is further submitted that so far as the Commission Vendorsare concerned, there are no commensurate rules and therefore, Rule 31of the 1993 Rules which formed the basis of the judgment in RakeshKumar’s case (supra) cannot be applied to the Commission Vendorswho occupy an altogether different status.

3.10 It is submitted that as such Rule 14 of the 1993 Rules providesthe 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 undera covenant or contract which does not specifically provide for grant ofpensionary benefits and/or the period on contract basis except whenfollowed by confirmation are not to be counted for pensionary benefits.It is submitted that the respective Commission Vendors have beenrendering service under the contract which do not provide for grant ofpensionary benefits. They are not even paid regular salaries and theywere paid on the basis of the commission. It is submitted therefore byapplying Rule 14(v) of the 1993 Rules, service rendered as CommissionVendors which are rendered under the contract and which do not providefor grant of pensionary benefits, prior to their absorption, cannot becounted for the pensionary benefits, otherwise the same shall be hit byand/or contrary to Rule 14(v) of the 1993 Rules.3.11 It is submitted that insofar as Rule 14(xiv) is concerned, theexpression “confirmation” indicates beyond any manner of doubt thatthe said sub-rule applies only in cases where there was substantivepost in which contractual employee was confirmed at later stage. Itis submitted that however, this is not the case insofar as the CommissionVendors are concerned. It is submitted that upon harmonious interpretationof Rule 14(v) and Rule 24 it becomes clear that period of employment

Aas 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 passedby the Tribunals or the High Courts in its correct perspective. It issubmitted that the contractual terms between Commission Vendors andthe Railways specifically omits to mention any entitlement to pension.B

3.12 It is submitted that the aforesaid fundamental differencesbetween Casual Labourers and Commission Vendors which relate tothe mode of appointment, nature of work, conditions of service, theapplicable law, the disciplinary proceedings etc. show that there can beno parity between the two.C

3.13. It is further submitted by Ms. Madhavi Divan, learned ASGthat it is required to be noted that some of the Commission Vendorsinsisted for being absorbed in Group ‘C’ posts, rather than Group ‘D’posts. Even, these persons in particular including the respondents hereinare seeking selective parity with casual labourers as and when it suitsDtheir convenience. Such Commission Vendors were granted Group ‘C’posts, pursuant to the order passed by the learned Single Judge. Suchabsorption was not matter of right, but rather concession granted tothem which cannot be used as platform to seek benefits which werenever intended to be extended to them. It is submitted that this was theEprecise basis for the learned CAT Delhi’s order dated 12.02.2016 inanother case concerning similarly situated Commission Vendors whereinit was held that the Commission Vendors absorbed prospectively pursuantto the High Court’s order dated 05.11.2012 were not entitled to seekconsideration of past service because seeking such relief amounts toseeking review of the High Court’s order directing their absorption.F

3.14 It is vehemently submitted by Ms. Madhavi Divan, learnedASG that in none of the judgments of the High Courts and the Tribunalswhich have held against the Railways, considered the aforesaid differentiabetween the casual labourers and the commission vendors and the lawon unequals not being treated equally. Ms. Madhavi Divan, learned ASGGhas relied upon the decisions of this Court in the cases of HaryanaState Electricity Board v. Gulshan Lal, (2009) 12 SCC 231; UttarPradesh Power Corporation Ltd. v. Ayodhya Prasad Mishra, (2008)10 SCC 139; and Union of India v. Muralidhara Menon, (2009) 9SCC 304 in support of her submission that as observed and held by thisHCourt in the aforesaid decisions that unequals cannot be treated as equals.

3.15 Now so far as the reliance placed upon the dismissal of thespecial leave petitions by this Court on earlier occasions, it is submittedthat the orders of dismissal passed by this Court on earlier occasions areeither on delay or are in any event summary dismissals. These are notreasoned orders which tantamount to precedents under Article 141 ofthe Constitution. In this regard, reliance is placed upon the decision ofthis 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 thatorders in some cases have become final insofar as the Southern Railwayand Central Railway are concerned, it is submitted that merely becauseorders in some cases have become final is no ground for seeking parityin the present case. It is submitted that an illegality cannot be compoundedor perpetuated merely because it has been condoned or committed inother cases. It is not open to the respondents to seek misplaced parityby seeking perpetuation of an erroneous position in law as laid downby the Tribunals and upheld by the High Courts. It is submitted that thereexists no right to negative equality. Reliance is placed on the decision ofthis Court in the case of Gulshan Lal (supra) (paras 31 to 35 and 43to 47). Reliance is also placed on the decision of this Court in the caseof State of Odisha v. Anup Kumar Senapati, (2019) 19 SCC 626(para 39).

3.17 Ms. Madhavi Divan, learned ASG has further submitted thatif the impugned judgment and order passed by the High Court is notinterfered with, there shall be huge financial liability upon the Railways.On the huge financial burden, Ms. Madhavi Divan, learned ASG hastaken us to the relevant paragraphs in IA No. 137388/2021, which areas under:

Financial implications

15. If the 50% of past service rendered as commission vendor/bearers were to be counted for computing the qualifying servicefor grant of pensionary benefits, huge financial burden would fallupon the shoulders of the public exchequer.

16. For Delhi Division alone, where only 57 commission vendors/bearers are there at present, the financial burden would be morethan Rupees 10 crores approx. For instance one Mr. Om Prakash(Respondent party in SLP (C) Diary No. 27616/2020) was engagedas Commission Vendor on commission basis on 17.02.1977 whose

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 basicpay 18000 in Level 1 of 7th CPC.

As per the impugned Order, 50% of period from 17.02.1977 to26.07.2015 comes to 19 years 02 months and 19 days if computedin compliance of the judgment and order impugned in the presentSLP. So the total qualifying service would be 19 Years 8 monthsand 23 days. His total pension would be Rs. 9000/- per monthwith admissible DA and Rs. 5000/- family pension per month afterdemise of the retired employee. Furthermore, the persons, soabsorbed in regular service, who have already retired withoutcompleting 10 years of service after their absorption would alsonow become eligible for pensionary benefits which lead to hugemonetary expenditure to the public exchequer. It is therefore clearthat an employee who rendered only 6 months service afterabsorption is to be paid Rs. 1,76,940/- lump sum and Rs. 9000/-

per month as pension for at-least 15 years (considering the lifespan of retiree as 75 years). As per this illustration, Rs.16,20,000as on average excluding Dearness relief has to be paid to anemployee who rendered only about 6 months service afterabsorption.

17. In southern Railway itself, 1265 Commission Vendors/BearersEhave been regularized on the basis of direction issued by thisHon’ble Court till 2004. The Commission Vendors/Bearers, whoare still in service after their absorption into regular service, ifgiven benefit of counting 50% pre absorption service, wouldbecome entitled for MACP benefits which will result in the pensionFand allied benefits also.

This financial impact shall be huge as it will apply to suchCommission Vendors/Bearers in all zones of Indian Railway acrossthe country. There are more than 1000 of such CommissionVendors/Bearers covered under absorption scheme excludingthose who had already retired from service without completingG10 years of minimum qualifying service.

18. Zone wise status of the Commission Vendors/Bearers, numberof cases (pending and disposed) involving issues regardingcomputation of 50 % past service and its financial implication arebeing given below: -

ABCDEFGH

1152SUPREME COURT REPORTS[2022] 10 S.C.R.ABCD

3.18 Making the above submissions, it is prayed to allow the presentEappeals by reiterating and emphasising that the Commission Vendorsare not entitled to seek parity of treatment with Casual Labourers insofaras counting their past service before absorption is concerned for grantof pensionary benefits.

4. All these appeals are opposed by Shri Sanjay Parikh, learnedSenior Advocate appearing on behalf of the respective employees –FCommission Vendors.

4.1 Shri Sanjay Parikh, learned Senior Advocate appearing onbehalf of the contesting respondents – respective Commission Vendorshas submitted that the employer in this case is the Railway Board underthe Ministry of Railways. There are 16 zones and 68 divisions in theGRailways. Employees working in different zones/divisions being underthe same employer - Railway Board, ought to be treated similarly. Therecannot be any discrimination, inter se, as it will violate Articles 14 and16 of the Constitution.

4.2 It is submitted that in the present case, the appellant – UnionHof India – Railways has repeated the very same arguments, which were

earlier raised before various Tribunals, High Courts and before this Courtand which have been rejected. It is submitted that therefore it is not fairand permissible in law to raise and repeat the same arguments everytime in pending litigations, when it has been given quietus having attainedfinality up to this Court.

4.3 It is submitted that the respective respondents were recruitedas Commission Vendors on different dates between 1970-1989 in Delhibased on non-statutory canteens after completion of all the requiredformalities.

4.4 Referring to the earlier D.O. letter dated 16.02.1974 from theRailway Board, it is submitted that the names of the Commission Bearersand Vendors should be registered in order of the length of their servicefor their absorption in the permanent vacancies of bearers and vendorsin various departmental catering units to afford the main avenue forabsorption in the permanent order. It is submitted that in addition, it wasalso mentioned in the D.O. letter dated 16.02.1974 that if there are casuallabourers/substitutes to be considered for regular absorption in otherClass IV categories, the Commission Bearers / Vendors should also beconsidered along with them.

4.5 It is submitted that as there was delay in absorption, byletter dated 13.07.1976 in paragraph 3, it was directed that action shouldbe taken to absorb progressively the Commission Bearers/Vendors inregular vacancies. It is submitted that both expressions “regularization”and “absorption” have been used in paragraph 3. It is urged that thereforeit was decided by the Railway Board to give the Commission Bearers/Vendors the status of Railway employees by taking /absorbing them onpermanent vacancies.

4.6 It is submitted that when the above D.O. letter dated 16.02.1974read with letter of 13.07.1976 were not given effect to, Writ Petition(C) No.6804 of 1982 was filed before this Court under Article 32 of theConstitution. It is submitted that the said writ petition came to be allowedby this Court vide judgment and order dated 13.12.1983 and it wasdirected that until all the bearers and vendors are absorbed as per D.O.letter dated 13.07.1976, “the Railway cannot appoint any person eitheras bearer or vendor on permanent basis in Railway service from anyother source”. It is submitted that this Court expressed hope that stepsto absorb bearers/vendors would be taken as early as possible. It issubmitted that the meaning and purport of the order was that all vacancies

Aof bearers/vendors in Railway shall be allocated for absorption ofCommission Bearers/Vendors and till that process is completed, noappointment on permanent basis from any other source shall be carriedout.

4.7 It is submitted that the issue again came up before this CourtBin the case of T.L. Madhavan (supra). That this Court again reiteratedwhat was stated in the earlier order in Writ Petition (C) No.6804 of1982. That in paragraph 3, it was also clarified that the vendors andbearers so absorbed in the “Railway Catering Service” shall be entitledto salary from the date of their absorption.

C4.8 It is submitted that however, the process of absorption wasinordinately delayed and therefore, the Member Staff – Railway Boardwrote letter dated 12.01.2004 to the General Manager - NorthernRailway about inordinate delay in absorption of Commission Vendors/Bearers. The attention of the General Manager, Northern Railway wasalso drawn to the Orders passed by this Court. The Board also referredDto the letters dated 20.08.1996 and 06.11.2000 which were written toexpedite the process of absorption. In the letter dated 31.07.2001, theRailway Board had written to all the General Managers to absorb theCommission Vendors/Bearers “in the Commercial Department as wellas in other departments”, in view of the fact that catering department onEzonal railways had been frozen resulting in very few vacancies arisingtherein.

4.9 That the Railway Board issued another letter dated 02.08.2005whereby it was decided that “all Commission Vendors/Bearers to beabsorbed, subject to medical fitness with age cut off as 59 years as onF01.04.2005 with education qualifications as read and write only”. It issubmitted that due to delay in absorption of the Commission Bearers/Vendors, the Railway Board provided that even if the CommissionBearers/Vendors have attained the age of 59 years but had notsuperannuated, they will be absorbed.

4.10 It is contended that from the aforesaid facts and the variousGorders passed by the Railway Board and this Court, it would show thatthe Commission Vendors/Bearers were taken in the Railway servicesby way of absorption in view of the facts and circumstances prevailingthen and these Commission Bearers/Vendors were discharging dutiessimilar to those discharged by the vendors/bearers of the RailwayH

canteen. It is submitted that as such the delay in absorption by differentzones/divisions of Railway was in violation of this Court’s orders.

4.11 That in view of the delay and negligence of the NorthernRailway in not implementing the Railway Board’s Order dated 13.12.1976and the orders passed by this Court, number of Writ Petitions werefiled by the Commission Vendors/Bearers, which can be seen from theJudgment given by the Delhi High Court dated 05.11.2012 inGurdasRam & Others Vs. UOI & OthersinW.P. (C) No.5175 of 1998 & CMNo.14513 of 2010. It is submitted that it is pursuant to the judgment ofthe Delhi High Court in the case of Gurdas Ram & Others (supra)that the respondents herein were absorbed in Class III.

4.12 It is submitted that the learned Single Judge in the case ofGurdas Ram & Others (supra) issued madamus to the respondents(Northern Railway) to absorb eligible petitioners who have not crossedage of 59 years in ‘Group C’ posts against vacant posts of this categoryafter such eligible petitioners formally make an application to seekabsorption in ‘Group C’ posts. It is submitted that the judgment of thelearned Single Judge in Gurdas Ram & Others (supra)was acceptedby the Northern Railway and the appointments were given to therespondents herein as well as to the others in the post of “CateringWaiter” in Grade Pay of Rs.5200-20200+GP 1800/-.

4.13 On the issue whether the Commission Vendors/Bearers aftertheir absorption on permanent sanctioned post in the Railways areentitled for pension, Shri Sanjay Parikh, learned Senior Advocate hasmade the following submissions: -

(i)Initially, these Commission Vendors/Bearers were workingon contractual basis and thereafter they were absorbed andbecame permanent Railway employees on different dates.That Rule 14 of the Railway Services (Pension) Rules, 1993provides that periods of employment in the capacitiesmentioned from (i) to (xiv) shall not constitute service forpensionary benefits. That clause (xiv) of Rule 14 containsan exception, namely, that “when employment on contractbasis is followed by confirmation”. That the meaning ofconfirmation will be absorption in Railway service or takingthem permanently in Railway service or confirmation inRailway service by absorption/appointment etc. It is

[2022] 10 S.C.R.

Asubmitted that the nomenclature may not be relevant. Thatthe respondents’ case is covered by the said provisionbecause their contractual period was followed by theirconfirmation/ absorption in the Railway services. That Rule24 clarifies the situation further as it provides that if personis initially engaged by Railways on contract (asBCommission Vendor/Bearer) and subsequently appointedto the same or another post in substantive capacity (asCatering Waiter) in the present case, such contractual periodof service shall be treated like any other permanent servicein the Railway and be taken into account for calculating theCpensionary benefits.

(ii)That the said Rules were considered by the Kerala HighCourt and by other High Courts in several Judgments andthe SLPS filed by the Railway Departments were dismissed,even on merits. Therefore, various Tribunals/High Courtshave accepted 50% of the service rendered on contractualbasis before absorption for grant of pension. That the saidissue has attained finality as on this legal basis and theRailways have implemented it.

(iii)Reliance is placed on the decision of this Court in the caseEof Rakesh Kumar’s case (supra). It is submitted that inthe said judgment, this Hon’ble Court had considered thegrant of pension to the casual labours who were grantedtemporary status and subsequently regularized fordetermining the qualifying service and for grant of pension.Reliance is placed on the final conclusion in paragraph 53.

(iv)Thus, according to the said judgment, casual worker isentitled to reckon 50% of causal service before obtainingtemporary status. That however, the Railway Board istaking contrary position and they are asserting that “only50% of temporary status service would be counted forGpensionary service after regularization” and that the periodprior to temporary status would not be counted for pensionarybenefits.

(v)That various orders passed by the respective High Courts/Tribunals with respect to the Western Railway, EasternH

Railway, Southern Railway taking the view that theCommission 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 thepurpose of pensionary benefits only in one zone of the Railways namely,Northern Railway, would be discriminatory and violative of Articles 14and 16 of the Constitution.

4.15 It is further submitted that even on the Doctrine of StareDecisis, the respondents are entitled to the benefit of counting of their50% service/period rendered as Commission Vendors/Bearers for thepurpose of pensionary benefits. Reliance is placed on the decision ofthis Court in Waman Rao and Ors. Vs. Union of India and Ors.,(1981) 2 SCC 362 (para 40); Narinder Singh and Ors. Vs. State ofPunjab and Anr., (2014) 6 SCC 466 (para 22).

4.16 Now, so far as the submission on behalf of the Railways onthe financial liability/implication is concerned, it is submitted that the saidplea would violate Articles 14, 16 and 21 of the Constitution besides theRule of Law. It is submitted that the argument of financial implicationwhich is primarily been raised to deny equal treatment to the CommissionVendors/Bearers now Catering Waiters may not be accepted as thesame is wholly unsustainable.

4.17 It is submitted that in the case of All India Judges’Association and Ors. Vs. Union of India and Ors., (1993) 4 SCC288 (para 16), this Court had considered the uniformity in the serviceconditions of judicial officers and the question of financial burden raisedby Union of India was rejected as being misconceived. That in the saiddecision, this Court has said that if decision has financial implications,the Government is obligated to loosen its purse.

4.18 It is submitted that in the case of Ashoka Kumar ThakurVs. Union of India and Others, (2008) 6 SCC 1, it is observed andheld by this Court that the State cannot avoid constitutional obligation onthe ground of financial inabilities.

4.19 It is further submitted by Shri Sanjay Parikh, learned SeniorAdvocate that the concept of negative equality raised by learned ASGshall not be applicable in the present case. It is submitted that the judgmentof this Court in the case of Anup Kumar Senapati (supra) relied upon

Aby the appellants is not applicable to the facts of the present case. It issubmitted that facts of the present case clearly establish the right forbeing absorbed on the vacant posts and that the High Courts have grantedrelief on the basis of the provisions of the Rules, 1993, which has beenconfirmed by this Court. It is submitted that there are admissions/concessions of the Railway Board and acceptance of the series ofBjudgments that the Commission Vendors/Bearers are entitled to claim50% of their service for the purpose of pension. That this is not caseof either the decisions being wrong or there being any illegality or fraudor that it is not even case where the relief/benefit has been grantedinadvertently or by mistake. It is case where different zones andCdivisions under the Railway Board are granting pension whereas it hasbeen denied to other similarly situated persons in violation of Articles 14,16 and 21 of the Constitution. It is submitted that therefore, the presentcase 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) SCC497.D4.20 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 Indiaappearing on behalf of the Union of India and others and Shri SanjayEParikh, learned Senior Advocate appearing on behalf of the respondents.

At the outset, it is required to be noted that the issue in the presentcase is with respect to Commission Vendors working in the NorthernRailway and the issue is whether the Commission Vendors who wereabsorbed in the regular service are entitled to reckon 50% of the periodFof service as Commission Vendors, prior to their absorption, as qualifyingservice for grant of pensionary benefits, at par with the casual labourerswhose services were regularized by virtue of Rule 2005 of the IndianRailway Establishment Manual, Vol. II, 1991 (IREM) r/w Rule 31 of theRailway Services (Pension) Rules, 1993.GAt the outset, it is required to be noted that so far as theCommission Vendors working in the Western Railway, Eastern Railway,Southern Railway and South-Eastern Railway are concerned, pursuantto different orders passed by the Central Administrative Tribunals andHigh Courts, which have been confirmed by this Court, the issue is heldagainst the Union of India/Railways, the particulars of which are asHunder:

i)By detailed judgment and order in OA No. 238/2004, theCentral Administrative Tribunal allowed the said OA filedby the Association/Trade Union of the employees of theRailways filed on behalf of the Commission Vendors/bearersworking in the Western Railway, relying upon the earlierorder passed by the CAT in OA No. 538/1996 and the orderpassed by the Bombay High Court in Writ Petition No. 499/2002, and held that the Commission Vendors/bearers areentitled to 50% of the services rendered by them asCommission Vendors/bearers for the purpose of pensionalong with the services rendered by them as regularemployees of the railways. The judgment and order passedby the Tribunal in OA No. 538/1996 came to be confirmedby the Bombay High Court, by judgment and order dated21.04.2008 passed in Writ Petition No. 190/2006. The saidjudgment and order dated 21.04.2008 passed by the HighCourt was the subject matter of the special leave petitionbefore this Court. This Court initially issued notice in thespecial leave petition and thereafter by order dated14.03.2011 passed in SLP(Civil) No. 24166/2009, dismissedthe special leave petition on the ground of delay as well ason merits;

ii)With respect to the Commission Vendors/bearers workingin the Eastern Railway, there was decision against theRailways by the Calcutta High Court, which was the subjectmatter of Special Leave Petition before this Court beingSpecial Leave Petition (Civil) No. 25730/2009. In the caseof eastern railway, the CAT, Calcutta Bench held in favourof the Commission Vendors/bearers. The writ petition filedby the Railways came to be dismissed by the Calcutta HighCourt against which the aforesaid special leave petition cameto be filed before this Court, which was dismissed by orderdated 14.03.2011;

iii)With respect to Commission Vendors/bearers working inthe Southern Railway, the High Court of Kerala atErnakulam held in favour of the similarly situatedCommission Vendors/bearers. In the case of SouthernRailway, the CAT, Ernakulam Bench vide order in OA No.

A440/2003 decided in favour of the Commission Vendors/bearers. The Railway Board and others filed writ petitionbefore the High Court being Writ Petition No. 15756/2006.The High Court affirmed the order passed by the tribunaldirecting that the 50% of the services rendered on contractbasis be counted for pension. Against the order passed byBthe Kerala High Court, the Railways filed special leavepetition before this Court, which came to be dismissed onthe ground of delay;

a.By another judgment, similar order was passed bythe High Court of Kerala, confirming the judgmentCand order passed by the CAT, Ernakulam Bench,which was decided in favour of the CommissionVendors/bearers. The said judgment and order passedby the High Court has attained finality.

b.There were similar judgment(s) and order(s) passedDby the CAT, Ernakulam Bench which were in favourof the Commission Vendors/bearers, which haveattained finality.

iv)With respect to the Commission Vendors/bearers workingin the South-Eastern Railway, the CAT, Calcutta Bench videEorder dated 06.12.2010 in OA No. 758/2007 declined theclaim of the Commission Vendors/bearers. However, by adetailed judgment and order dated 30.08.2012 in WritPetition No. 28/2011, the High Court of Calcutta held thatthe Commission Vendors/bearers are entitled to 50% of theFservices rendered prior to their regularization to be countedfor pensionary benefits. The special leave petition againstthe judgment and order passed by the High Court ofCalcutta came to be dismissed by this Court being SpecialLeave Petition No. 25019/2013.

G6. From the aforesaid, it can be seen that with respect toCommission Vendors/bearers working in the Western Railway, EasternRailway, Southern Railway and South-Eastern Railway, they are held tobe entitled to 50% of the services rendered prior to their regularizationto be counted for pensionary benefits and all those Commission Vendors/bearers are granted such benefits. Now the dispute is with respect toHCommission Vendors/bearers working in the Northern Railway.

7. It cannot be disputed that employees working in differentdivisions/zones in the Railways are under the very same employer –Railway Board which is under the Ministry of Railways. There are 16Zones and 68 Divisions in the Railways. Therefore, the employeesworking under the same employer – Railway Board working in differentZones/Divisions are required to be treated similarly and equally and areentitled to similar benefits and are entitled to the same treatment. Asrightly submitted on behalf of the respondents, there cannot be anydiscrimination inter se. Under the circumstances, on the ground of parity,the Commission Vendors/bearers working in the Northern Railway areentitled to the same benefits which are held to be entitled to all thesimilarly situated Commission Vendors/Bearers working under differentZones/Divisions. There cannot be different criteria/parameters withrespect to similarly situated employees – Commission Vendors/bearersworking in different Zones/Divisions, but working under the sameemployer.

8. The Railways/UOI/Railway Board cannot be permitted to repeatthe same arguments which were raised before different Tribunals, HighCourts and also before this Court. Under the circumstances, therespondents – Commission Vendors/bearers working in the NorthernRailway shall also be entitled to the same benefits which the otherCommission Vendors/bearers working in different Zones/Divisions areheld to be entitled to. There cannot be discrimination among the similarlysituated Commission Vendors/bearers. To deny similar benefits wouldtantamount to discrimination and in violation of Articles 14 and 16 of theConstitution 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 Railwaysis concerned, it is required to be noted that the issue is with respect topensionary benefits. Once it is found that the respondents – CommissionVendors/bearers working in the Northern Railway are also entitled tosimilar benefits which are given to the similarly situated CommissionVendors/bearers working in different zones/divisions and since they arealready being paid the pensionary benefits by counting the benefit of50% of their services rendered prior to their regularization, there is noreason to deny the similar benefits to the respondents – CommissionVendors/bearers working in the Northern Railway being similarly situated.10. Even the concept of negative equality submitted on behalf ofthe appellants also shall not be applicable in the facts and circumstances

Aof the case, more particularly when the decisions of different High Courtswhich are held against the appellants have been confirmed by this Courtand the special leave petitions have been dismissed on the ground ofdelay as well as on merits.

11. In view of the above and for the reasons stated above andBeven applying the doctrine of stare decisis, on the aforesaid groundalone, the present appeals deserve to be dismissed and are accordinglydismissed, by holding that the respondents – Commission Vendors/bearersworking in the Northern Railway are entitled to have 50% of their servicesrendered prior to their regularization to be counted for pensionary benefitslike other office bearers/Vendors working under the Railway Board,Cworking in different zones/divisions, namely, Western Railway, EasternRailway, Southern Railway and South-Eastern Railway.

12. All these appeals are accordingly dismissed. No costs.

DDevika Gujral(Assisted by : Mahendra Yadav, LCRA)

Appeals dismissed.