INDIAN COUNCIL OF AGRICULTURAL RESEARCH AND ANR.versusSAN TOSH

      INDIAN COUNCIL OF AG RI CULTURAL RESEARCH AND ANR.                        A
                                      v.
                                 SAN TOSH

                            OCTOBER 16, 2006

        [ARIJIT PASA VAT AND LOKESHWAR SINGH PANTA, JJ.]                        B


      Service Law:

       Pension-Family Pension-Entitlement to-To the legal heir of deceased
temporary employee-Deceased employee, a casual labourer holding C
temporary status in view of a scheme-On his death claim for family pension
made by his widow-Denied-Application-Allowed by Tribunal holding the
legal heir entitled to the pension directing regularization of the deceased
employee on the date of his death-Order upheld by High Court on ground
that the legal heir was given compassionate appointment-On appeal, held: D
In view of the provisions of the Scheme, the legal heir of the deceased
employee was not entitled to family pension-Direction of Tribunal for
regularisation of the deceased employee not correct-Mere grant of
compassionate appointment to the legal heir cannot alter the status of the
deceased employee in service-Casual Labourers (Grant of Temporary Status
and Regularisation) Scheme of Government of India, 1993-Clauses 4, 5 and E
6.

      Respondent was denied family pension and other terminal benefits by
the appellant on the ground that her deceased husband was not holding
permanent status in service. She filed application seeking the reliefs, and     F
the same was allowed by Central Administrative Tribunal holding that though
her deceased husband was not holding permanent status in service, yet she
was entitled to the family pension and other benefits by treating him to have
been regularized on the date of his death. Writ Petition against the order of
the Tribunal was also dismissed holding that since the respondent had been
given compassionate appointment, there was no merit in the Writ Petition.       G
      In appeal to this Court appellant contended that respondent was not
entitled to the reliefs sough as her deceased husband was only a casual
labourer who had acquired temporary status in view of Casual Labourers
(Grant of Temporary Status and Regularization) Scheme of Government of
                                    ~5                                          H
    256                      SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A   India, 1993, and that the Tribunal could not have directed regularization and
    grant of family pension.

          Allowing the appeal, the Court

          HELD: I. A bare reading of the provisions of the Casual Labourers
B   (Grant of Temporary Status and Regularization) Scheme of Government of
    India, 1993 makes it clear that the wife of the deceased employee was not
    entitled to any family pension. The direction given by the Tribunal for
    regularization is contrary to the ruling of this Court. (258-H(

          Secretary, State of Karnatka and Ors. v. Umadevi (3) and Ors., (2006]
C 4 SCC I, relied on.
           2. Merely because compassionate appointment has been granted to the
    legal heir of the deceased employee, that does not in any way improve the
    situation so far as the respondent is concerned. That is an appointment given
D   to a legal heir even if it is accepted to be a regular, subsequent to the death of
    the employee and such appointment cannot alter the status of the deceased
    employee in service. (260-AI

          Gita Rani Santra v. Union of India and Ors., reported in 1997-2001 At
    Full Bench Judgment p.295, referred to.

E         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4499 of2006.

          From the Final Judgment and Order dated 21.2.2005 of the High Court
    Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No. I 038 of
    2005.
F         A. Sharan, A.S.G., L.B. Gaur, S.S. Nehra, Dipali Tandon and Gargi Khanna
    for the Appellants.

          Jitendra Shanna, B.K. Pal and P.N. Jha for the Respondent.

          The Judgment of the Court was delivered by
G
          ARIJIT PASA YAT, J. Leave granted.

          Challenge in this appeal is to the judgment rendered by a Division
    Bench of the Rajasthan High Court at Jodhpur dismissing the writ petition
H   filed by the present appellants questioning correctness of the order passed
       IN DIAN COUNCIL OF AGRICULTURALRESEARCHv SANTOSH [PASA YAT,J]    257

by the Central Administrative Tribunal, Jodhpur Bench (in short 'CAT').        A
      The controversy lies within a very narrow compass.

       Respondent filed O.A.No.291 of2003 before the CAT making a grievance
that family pension and other terminal benefits were being denied to her by
the present appellant on the ground that her deceased husband was not          B
holding permanent status in service. CAT held that though her deceased
husband Durga Lal was not holding a permanent status in service, yet
respondent was entitled to the family pension and other benefits by treating
him to have been regularized on the date of his death.

      The High Court dismissed the writ petition holding that since the        C
respondent has been given compassionate appointment, there was no merit
in the writ petition.

       In support of the appeal, learned counsel submitted that there was a
scheme in operation and late Durga Lal was not holding permanent status and    D
was only a casual labourer who had acquired temporary status in view of the
scheme. Placing reliance on a Constitution Bench decision of this Court in
Secretry, State of Karnataka and Ors. v. Umadevi (3) and Ors., (2006) 4 SCC
1), it was held that CAT could not have directed regularization and in any
event directed grant of family pension.
                                                                               E
       In response, learned counsel for the respondent submitted that the
deceased late Durga Lal had worked for nearly 20 years and merely because
there was no formal order granting him permanent status, it had to be deemed
as if late Durga Lal was in regular service. CAT proceeded on the basis that
the respondent's claim was acceptable with reference to certain circulars
applicable to Railways employees and Full Bench decision of the Tribunal in    F
Gita Rani Santra v. Union of India and Ors., (reported in 1997-2001 at Full
Bench Judgment page 295) .

      In order to appreciate rival submissions a few provisions need to be
noted.
                                                                               G
      The scheme applicable to employees of appellant No. I is very specific
m its scope of operation. The scheme was issued by the Department of
Personnel and Training and the scheme is called "Casual Labourers (Grant of
Temporary Status and Regularisation) Scheme of Government of India, 1993"
(in short the 'Scheme')". The said scheme is applicable with effect from H
    258                      SUPREME COURT REPORTS [2006] SUPP. 7 S.C.R.

A 1.9.1993. Clause 4 reads <lS follows:
           "4. Te1i1porary status:

           (i) Temporary status would be conferred on all casual labourers who
           are in employments on the date of issue of this OM and who have
           rendered a continuous service of at least one year which indicates any
B
           must have been engaged for. a period of at least 240 days (206 days
           in the case of offices observing 5-day week)

           (ii) Such conferment of temporary status would be without reference
           to the creation/availability of regular group 'D' posts.                  ....
c          (iii) Conferment of temporary status on a casual labourer would not
           involve any change in his duties and responsibilities. The engagement
           will be on daily r11tes of pay on need basis. He may be deployed
           anywhere within the recruitment unit/territorial circle on the basis of
           availability of work.
D          (iv) Such casual labourers who acquire temporary status will not,
           however, be brought on to the permanent establishment unless they
           are selected through regular selection process for group 'D' posts".

            Similarly, Clause 5 so far as relevant reads as follows:

E          "xx     xx   xx     xx
           (v) 50% of the service rendered under temporary status would be
               counted for the purpose of retirement benefits after their
               regularization".

p         Clause 6 makes the position clear that no benefits other than those
    specified earlier in the scheme shall be admissible to casual labourers with
    temporary status. The relevant clause reads as follows:

               "No benefits other than those specified above will be admissible
           to casual labourers with temporary status. However, if any additional
G          benefits are admissible to casual workers working in Industrial
           establishments in view of provisions of Industrial Disputes Act, they
           shall continue to be admissible to such casual labourers."

          A bare reading of the provisions makes it clear that late Durga Lal was
    not entitled to any family pension. The direction given by CAT for
H   regularization is contrary to what has been stated in Uma Devi's case (supra).
        INDIANCOUNCILOFAGRICULTURALRESEARCHv.SANTOSH[PASAYAT,J]          259
At para 45 of the judgment it was noted as follows:                            A
        45. While directing that appointments, temporary or casual, be regularised
 or made permanent, the courts are swayed by the fact that the person
 concerned has worked for some time and in some cases for a considerable
  length of time. It is not as if the person who accepts an engagement either
  temporary or casual in nature, is not aware of the nature of his employment. B
  He accepts the employment with open eyes. It may be true that he is not in
 a position to bargain-not at am1 's length-since he might have been searching
 for some employment so as to eke out his livelihood and accepts whatever
 he gets. But on that ground alone, it would not be appropriate to jettison the
 constitutional scheme of appointment and to take the view that a person who C
 has temporarily or casually got employed should be directed to be continued
 permanently. By doing so, it will be creating another mode of public
 appointment which is not permissible. If the court were to void a contractual
 employment of this nature on the ground that the parties were not having
 equal bargaining power, that too would not enable the court to grant any relief
 to that employee. A total embargo on such casual or temporary employment D
 is not possible, given the exigencies of administration and if imposed, would
 only mean that some people who at least get employment temporarily,
 contractually or casually, would not be getting even that employment when
 securing of such employment brings at least some succour to them. After all,
 innumerable citizens of our vast country are in search of employment and one E
 is not compelled to accept a casual or temporary employment if one is not
 inclined to go in for such an employment. It is in that context that one has
 to proceed on the basis that the employment was accepted fully knowing the
 nature of it and the consequences flowing from it. In other words, even while
accepting the employment, the person concerned knows the nature of his
employment. It is not an appointment to a post in the real sense of the term. F
The claim acquired by him in the post in which he is temporarily employed
or the interest in that post cannot be considered to be of such a magnitude
as to enable the giving up of the procedure established, for making regular
appointments to available posts in the services of the State. The argument
that since one has been working for some time in the post, it will not be just G
to discontinue him, even though he was aware of the nature of the employment
when he first took it up, is not (sic) one that would enable the jettisoning of
the procedure established by law for public employment and would have to
fail when tested on the touchstone of constitutionality and equality of
opportunity enshrined in Article 14 of the Constitution".
                                                                               H
    260                     SUPREME COURT REPORTS (2006] SUPP. 7 S.C.R.

A          Merely because compassionate appointment has been granted to the
    legal heir of late Durga Lal that does not in any way improve the situation
    so far as the respondent is concerned. That is an appointment given to a legal
    heir even if it is accepted to be a regular, subsequent to the death of Durga
    Lal and such appointment cannot alter the status of late Durga Lal in service.
B   The impugned judgment of the High Court confirming that of the CAT cannot
    be sustained. Both the CA T's order and judgment of the High Court stand
    set aside. The appeal is allowed but without any order as to costs.

    K.K.T.                                                     Appeal allowed.