UNION OF INDIA AND ANR. v. DR. S. BALIAR SINGH

The Judgment of the Court was delivered by

H MRS. SUJAT AV. MANO HAR, J. Delay Condoned.

U.0.1. v. S. 13ALIAR SINGH fSU.IATA V. MANOIIAR . .I.] 435 Leave granted. A The respondent initially served under the Government of Orissa from 14.4.1962 to l l .5. l 972. Thereafter he served with the Government of Chandigarh from 15.5.1972 to 29.12.75. The respondent joined the railways and was appointed as plastic surgeon at Byculla Hospital, Central Railway, on 3 l.12.1975. He sought voluntary retirement and was allowed to voluntarily B retire from his service with the Central Railway on 1.4.1987. He would have retired on superannuation on 26.11.1991. The respondent thus served as followed: /

SL No. SERVICE RENDERED WITH YEARS MONTHS DAYS c I. Service rendered in Government 10 years G 28 of Orissa

2Copy pinpoint2. Service rendered in the 3 years 7 14 Government of Chandigarh D

3Copy pinpoint3. Service rendered in the Railways 11 years 2 9

Total 24 10 21

Prior to his voluntary retirement, he had sought a clarification as to whether his past services with the Government of Orissa and the Government of Chandigarh would count for the purpose of pensionary benefits. By order dated 29.5.1985, the appellants informed the respondent that his past services with the Governments of Orissa and Chandigarh Jould count as qualifying service for pensionary benefits. He would also get an additional five year's service on account of voluntary retirement : and as a result his total service for pensionary benefits would be 29 years, 11 months and 9 days.

The respondent was accordingly granted retirement benefits. He has, however, been denied complimentary railway passes on retirement on the ground that his service with the railways was of less than 20 years and hence he was not eligible for complimentary railway passes on retirement. The respondent moved the Central Administrative Tribunal by filing O.A. No. 530 of 1996 claiming a right to complimentary railway passes. His application has been allowed by the Central Administrative Tribunal, Bombay Bench. Hence, the Union of lnd!a through the General Manager, Central Railway, has filed the present appeal. H

p. 436

A Under Railway Services Pension Rules, Chapter III deals with q11alifying service. Under Rule 22, the service of a railway servant which shall qualify for pensionary benefits includes, inter a/ia, service rendered under the Central Gove.rnment in a Civil Ministry or Department or a civilian employee under the Ministry of Defence including the Ordinance Factories, or a State Government before transfer to railways. In accordance with the provisions of B Rule 27, such service will count fpr the purpose of pension. Rule 27 prescribes the details of such counting of service for various kinds of pensionary benefits. The respondent has been given the benefit of counting his previous service with the State of Orissa and with the Government of Chandigarh as qualifying service for the purposes of his retirement benefits under the said C Pension Rules. Under the scheme of Voluntary Retirement for railway employees which has been set out in the Railway Board's letter dated 9.11.1977 it is provided .that in respect of those employees who are allowed to retire voluntarily under the terms of that scheme, weightage of upto five years would be given as an addition to the qualifying service in the case of those who are governed by Railway Pension Rules. Accordingly, the respondent has also been given an addition of five years' service for the purpose of his retirement benefits.

It is the contention of the respondent that the service which has been counted as a part of his qualifying service and the weightage of five years' service which has been given to him on account of his voluntary retirement, should also be taken into account for the purpose of giving him complimentary railway passes after retirement. The Rules for grant of complimentary railway passes are however, a completely different set of Rules unconnected with the Rules relating to pension or voluntary retirement. Railway Servant (Pass) Rules, 1986, have been framed in exercise of power conferred by the proviso to Article 309 of the Constitution and they were in force at the time when the respondent retired. These Rules have undergone several amendments. At the time when the respondent retired the relevant provisions of Railway Servant (Pass) Rules, 1986 were as follows : "Rule 8 : Post-retirement pass :- (I) A post-retirement pass may be issued to a railway servant after retirement or after he ceases to be a railway servant. (2) The category of railway servants, the circumstances and the conditions subject to which a pass under sub rule ( 1) may be issued shall be as specified in Schedule IV."

H Schedule IV which deals with Post retirement compliinentary pass is as

lJ.0.1. v. S. BALIAR SINGH [SU.IA TA V. MANOHAR, .I.] 437

follows: A Category Number of passes Conditions for Other admissible in one issue of post Facilities year retirement com- plimentary pass Groups: B A&B (a) With 20 years service 2 sets .... .... on Railways and above but less than 25 years. (b) With 25 years service 3 sets .... ... . on Railways and above c c (a) With 20 years service I set .... .... in the Railways and abo·:e but less than 25 years. (b) With 25 years service 2 set .... .... D with Railways and above D (a) With 25 years service I set in alternate in Railways and above year (b) Less than 25 years service NIL .... .... Under Schedule IV the category of persons who are eligible for post- retirement complimentary pass consists of those with 20 years of service on railways and above but less than 25 years or with 25 years of service on railways and above. Each of the categories must have the specified number of years' service on railways. There is no provision in the Railway Servant (Pass) Rules, 1986 for counting service in any other organisation, the State Government or the Central Government for the purpose of railway passes.] A .• "railway servant" under the Railway Servant (Pass) Rules, 1986 is defined under Rule 2 (h) to mean "a person who is a member of the service or holds G a post under the administrative control of Railway Board and includes a person who holds a post in the Railway Board. Persons lent from a service or a post which is not under the administrative control of the Railway Board to a service of post which is under such administrative control do not come within the scope of this definition ... ". Under the Railway Servant (Pass) Rules, I 986 the service which is counted for the purpose of grant of complimentary H.

438 SUPREME COURT REPORTS 11997] SUPP. 5 S.C.R.

A passes on retirement of a railway servant is service on the railways alone. The respondent who had sei"ved in the railways only for 11 years, 2 months and 9 days, therefore, does not qualify for complimentary railway passes on retirement since he has to his credit railway service of less than 20 years.

The respondent contended that the weightage of five years' service given to persons retiring voluntarily shou Id also be given for the purposes of complimentary railway passes after retirement. He has drawn our attention to Clause 9 of the Railway Board letter of 9.11.1977 Which provides that the weightage of five years given under the voluntary retirement scheme will count towards post-retirement passes. Unfortunately for the respondent, even if)ie is given weightage of five years, his 11 years' service with the railways becomes sixteen years' service. He still falls short of 20 years' service which is required before he can obtain complimentary railway passes after retirement.

The Tribunal has relied heavily upon a judgment of Central Administrative Tribunal, Jodhpur Bench in the case of Jagdishwer Bhatt v. D Union of India, (I 996) 34 ATC 92 which was a similar case of a Divisional Medical Officer in the railways who retired without completing 20 years of service in the railways: While the Tribunal had granted him the benefit of ,omplimentary passes after retirement, in appeal, this Court by its judgment and order dated 24.2.1997 (S.L.P.(C) No. 21339/96, Union ofIndia v. Jagdishwar Bhatt, has set aside the order of the Tribunal. Th is Court had held that it is necessary to have a minimum 20 years of actual service in the railways before a person qualifies for complimentary passes on retirement. It has held that the extension of length of service on the basis of Rule 2423-A (C.S.R. 404-P) for the purpose of superannuation pension is not available for counting service in the railways for obtaining complimentary passes after retirement. What is required to be counted is actual service in the railways. Far from helping the respondent th.is judgment supports the view which we have taken. The provisions of other Rules cannot be imported into Railway Servant (Pass) Rules, 1986 unless these Rules so provide or unless any of the other Rules so provide. •.

It was also contended by the respondent that Railway Servant (Pass) G Rules, 1986 were not in existence when he joined the railways and therefore, these Rules cannot be applied to him. However, when a person joins a Government service such as the railways, he knows that his service conditions are liable to change either by amendment or addition of statutory Rules and other administrative instructions. He will be governed by the Rules in force H ~t the time when he retires. He acquires no vested rights by reason of the

U.0.1. v. S. BJ\LIAR SINGH [SU.IATJ\ Y. MJ\NOHJ\R • .I.] 439 Rules which were in force at the time when he joined the Government service. A

The respondent also contended that in the case of other officers who have retired with less then 20 years of railway service, the Railway Board had relaxed the Rules in order to grant complimentary railway passes to these officers after retirement. His case was also similarly recommended but the Railway Board has declined to relax the Rules in his favour. Looking to the B Railway Servant (Pass) Rules, 1986 and the actual years of service rendered by the respondent with the railways, this is not a fit case where one can recommend any relaxation of Rules by the Railway Board assuming that the

- Railway Board has such power to relax the Rules. Learned counsel for the appellants has stated before us that in view of the fact that the respondent took voluntary retirement and the railways lost many years of service of the respondent, the Railway Board did not consider th is a fit case for relaxation · of Rules. The respondent who retired voluntarily on 1. 4. 1987 would have otherwise retired in the year 1991. The Railway Board applied its mind to the request and has refused to exercise its discretion, even if we assume that the Railway Board had the power to relax the Rules. Hence this submission also has no merit.

The appeal is, therefore, allowed and the impugned order of the Tribunal is"set aside. The application filed by the respondent before the Tribunal is dismissed. There will, however, be no order as to costs. E M.P. Appeal allowed.