TaxTMI 
TaxTMI 
1998 (4) TMI 580
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....and other retiral benefits. 3. In sub-para (a) of Para 2501 of the Indian Railway Establishment Manual [hereinafter referred to as 'the Manual'], as it stood at the relevant time, the expression 'Casual Labour' was defined in these terms :- "Casual labour refers to labour whose employment is seasonal, intermittent, sporadic or extends over short periods. Labour of this kind is normally recruited from the nearest available source. It is not liable to transfer, and the conditions applicable to permanent and temporary staff do not apply to such labour." 4. In sub-para (b) of Para 2501 of the Manual casual labour wad divided into three categories, namely, (i) staff paid from contingencies except those retained for more than six months continuously, known as Open Casual Labour; (ii) labour on projects, irrespective of duration, known as Project Casual Labour; and (iii) seasonal labour who are sanctioned for specific works of less than six months duration. Persons falling in category (i) who continued to do the same work or other work of the same type for more than six months without a break were to be treated as temporary after the expiry of the period of ....
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....o provision for grant of temporary status to project Casual Labour. Project Casual Labour had a grievance that, though very large in number, they had no security of service and no protection whatsoever. The said grievance of the project Casual Labour was raised before this Court in Writ Petitions Nos. 147, 320-69,459,4335 of 1985 etc. filed under Article 32 of the Constitution. During the pendency of the said writ petitions before this Court, the Railway Ministry framed a scheme making provision for grant of temporary status to project Casual Labour on completion of 360 days of continuous service. The said scheme provided as follows:- "5.1 As a result of such deliberations, the Ministry of Railways have now decided in principle that casual labour employed on projects (also know as 'project casual labour') may be treated as temporary on completion of 360 days of continuous employment. The Ministry have decided further as under: (a) These orders will cover : ) (i) Casual labour on projects who are in service as on 1.1.84; and (ii) Casual labour on projects who, though not in service on 1.1.84, had been in service on Railways earlier and had....
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....ated February 8, 1991. Before the Tribunal it was contended that the respondents having continuously worked as casual labour without any break followed by regularisation their entire service as casual labour should be counted for the purpose of retiral benefits and that in any event at least half of their service as casual labour after the initial period of six months should be taken into account as qualifying service for retiral benefits. It was also urged that while granting retiral benefits not only the Open Line Casual Labour but also Project Casual Labour who had joined later than the respondents and had acquired temporary status after 1.1.1981 have been given pensionary benefit but the denial of similar benefit to the respondents amounted to illegal discrimination and was violative of the provisions of Article 14. of the Constitution. By its judgment dated February 8, 1991 the Tribunal has accepted the said contention of the respondents and has held that unfair treatment would be meted out to the respondents if the entire period of their continuous service as casual labour is ignored for the purpose of retiral benefits whereas such service is taken into account in respect of ....
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....9. At the out set, it may stated that in the railways a distinction has been made between 'temporary status' and 'temporary employment'. Open Line Casual Labours who were treated temporary after the expiry of six months of continuous employment under para 2501(b) (i) of the Manual were only entitled to the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Manual. But such temporary status did not entitle the casual labour to the benefit of the period of service rendered after attaining temporary status being treated as qualifying service for the purpose of retiral benefits. For the purpose of computing the qualifying service for retiral benefits the service after absorption on a regular temporary/permanent post after requisite selection only could be taken into consideration. Provision in this regard was contained in para 2511 of the Manual which provided as follows:- "2511. Rights and Privileges admissible to Casual Labour who are treated as temporary after completion of six months' continuous service :- (a) Casual labour treated as temporary are entitled to all the rights and privileges admiss....
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....benefit of temporary status was available to Open the Casual Labour only and it was not available to Project Casual Labour till the decision of this Court in Inder Pal Yadav whereby the scheme for grant of temporary status to Project Casual Labour was approved. Under the scheme temporary status was given from 1.1.1981 to those who had completed five years service as Project Casual Labour as on 1.1.1981, those who had completed three years service as Project Casual Labour as on 1.1.1981 were given the temporary status from 1.1.1982, those who had completed 360 days but less than three years of service as Project Casual Labour as on 1.1.1981 were given temporary status from 1.1.1983 and those who completed 360 days as Project Casual Labour after 1.1.1981 were given the temporary status from 1.1.1984 or on the date on which 360 days are completed whichever is later. Project Casual Labour could claim the benefit of the order dated October 14, 1980 only after they could be treated as temporary as per the scheme accepted by this Court in case of Inder Pal Yadav. The respondents in the appeals filed by the Railway Administration and the appellants in the other two appeals were employed as....
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...., that retiral advantage is not available to casual labour acquiring temporary status. We have been shown the different provisions in the Railway Establishment Manual as also the different orders and directions issued by the Administration. We agree with the learned Additional solicitor General that retiral benefit of pension is not admissible to either category of employees." [p. 144] Ms. Chandan Ramamurthi, the learned counsel for the appellants in Civil Appeal arising out of special Leave Petition (c) No. 26790 of 1995, has submitted that before the decision for this Court in Inder Pal Yadav project Casual Labour were treated as temporary after completion of 120 days but after the approval of the scheme in Inder Pal Yadav they became entitled to be treated as temporary on the completion of 360 days continuous employment and she has invited our attention to the following passage in Ram Kurriar:- "Learned Additional Solicitor General states that petitioners are project employees and do not belong to the open line. According to him employees in the open line acquire temporary status on completion of 120 days of service as against 180 days which was the previous requirem....
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....The said finding of the Tribunal is based on the decision of this Court in D.S. Nakara. In this regard, it may be stated that the Tribunal was in error in invoking the principle laid down in D.S. Nakara in the present case. The decision in D.S. Nakara has been considered by this Court in subsequent decisions and it has been laid down that the principle laid down in D.S. Nakara can have application only in those cases where there is discrimination in the matter of existing benefit between similar set of employees and the said principle has no application where a new benefit is being conferred with effect from a particular date. In such a case the conferment of the benefit with effect from a particular date cannot be held to be violative of Article 14 of the Constitution on the basis that such a benefit has been conferred of certain categories of employees on the basis of particular date. See: Krishena Kumar v. Union of India & Ors,, (1991)ILLJ191SC ; State of West Bengal v. Ratan Behari Dev, (1993)IILLJ741SC and State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti, [1995]1SCR8 . In the present case, the benefit of counting of service prior to regular employment as qualifying ....