Mukesh Kumar Gupta, Member (J)
1. Since both these O.As. are overlapping in nature, they are being disposed of by a common order.
2. The short but interesting question of vital ramification raised in the present set of proceedings is as to whether a casual labourer with temporary status is entitled to the benefit of leave encashment and pensionary benefit under the provisions of Central Civil Services (Leave) Rules, 1972 & Central Civil Services (Pension) Rules, 1972 respectively?
3. The facts of the case are: The applicant who was granted temporary status with effect from 29.11.1989 by an order dated 26.7.1994 passed by the Senior Superintendent of Post Offices, Bangalore South Division. Bangalore in terms of the instructions contained in the Directorate letters dated 12.4.1991 and 30.11.1992, retired on attaining the age of superannuation w.e.f. 31st July, 2002, was later on allowed pension. By communication dated 16.7.2002 Pension Payment Order in No. 9650/LPS/BG for Rs. 1275 per month with effect from 1.8.2002 was issued in his favour. Simultaneously, a sanction of Rs. 60,038/-, being the commuted value of pension, was issued vide communication dated 16.7.2002. By another communication dated 31st July, 2002 a sanction of Rs. 18,125 towards retirement gratuity was also issued. The applicant filed O.A. No. 1017 of 2002 seeking direction to the respondents to release leave encashment benefit in terms of Rule 39(2)(a) of the Central Civil Services (Leave) Rules, 1972 and also sought a declaration that he is entitled to the said benefit under the aforesaid provisions of Rules.
During the pendency of aforementioned O.A., the respondents issued order dated 23.1.2003 communicating that applicant's pension sanctioned vide communication dated 16.7.2002 has been stopped forthwith as the pension was not admissible to him and accordingly he was advised to surrender the pension payment order. The said order dated 23.1.2003 has been impugned in O.A. No. 56 of 2003 on the ground that once he had been granted pension, there is no provision under the Rules under which the said benefit of pension once granted to the applicant could be withdrawn.
4. The respondents have filed reply to O.A. No. 1017 of 2002 and stated that the applicant retired as casual labourer with temporary status w.e.f. 31.7.2002 before regularising him as civil servant-Group-D. Since the applicant was not in the zone of consideration till his retirement on 31.7.2002, he retired as temporary status casual labourer and did not become a 'civil servant' within the scope of Central Civil Services (Pension) Rules, 1972 and Central Civil Services (Leave) Rules, 1972 and, therefore, the provisions of the aforesaid Rules are not applicable to him. Further, as per the Directorate's communication dated 12th April, 1991, the applicant is not entitled to leave encashment. The pension and other benefits erroneously granted to the applicant can always be stopped and recovered. The basic contention raised is that the applicant is not a civil servant and it is not the case of the applicant that he is seeking regularisation as Group-D and, therefore, neither the provisions of the Pension Rules nor the Leave Rules are applicable to him.
In O.A. No. 56 of 2003 no notice had been issued by this Tribunal and the said case is being disposed of at the admission stage itself.
5. Brief history regarding conferment of temporary status--The Hon'ble Supreme Court 1988(1) SCC 122=1988(2) SLJ 31 (SC), Daily Rated Casual Labour Employed under P &T Deptt. through Bhartiya Dak Tar Mazdoor Manch v. Union of India and Ors. cases, directed Union of India and respondents therein to "prepare a scheme on a rationale basis for absorbing as far as possible the casual labourers who have been continuously working for more than one year in the Posts and Telegraphs Department." Later in Jagrit Mazdoor Union and Ors. v. Mahanagar Telephone Nigam Limited and Anr. and other connected cases including All India Postal Employees' Union Class III, Bombay etc. decided on 29.11.1989 and reported in 1990 Suppl. SCC 133 : 1990(1) SLR 839, the Hon'ble Supreme Court noted the contents of the scheme known as Casual Labourers (Grant of Temporary Status in Regularisation) Scheme & put into operation from October 1, 1989 in relation to Deptt. of Communication & observed that: "We find that the scheme is comprehensive and apart from provision for conferment of temporary status, it also specifies the benefit available on conferment of such status" (emphasis supplied). The Hon'ble Court also noted that pursuant to Daily Rated Casual Labourer's case (supra). Deptt. of Post has already formulated the Scheme & as per existing Recruitment Rules. Extra Departmental Agents are given preference in the matter of absorption as Group 'D' postmen. Since the said tentative Scheme did not take into account the several specific claims like House Rent Allowance, City (Compensatory) Allowance, Maternity Leave, Bonus, Earned Leave, etc., the Hon'ble Supreme Court considered the said aspects & in para 12 of the said judgment observed as under; "12. As regard House Rent Allowance, City Compensatory and Maternity Leave, we see no justification for treating the employees of the Postal Department differently from those covered under the Regularisation Rules in the Telecommunications Department. Temporary status would be available to the casual labourers in the Postal Department on completion of one year of continuous service with at least 240 days of work (206 days in the case of officers observing five days' week) and on conferment of temporary status. House Rent Allowance and City Compensatory Allowance shall be admissible. There would be no justification to withhold maternity leave as that is an obligation of the employer under the law and the State as an ideal employer fulfilling the Directive Principles of State Policy envisaged in Part-IV of the Constitution should provide the same. After rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Grade 'D' employees of the Department of Posts and would thereby be entitled to such benefits as are admissible of Group 'D' employees on regular basis."
Pursuant to the aforementioned judgment of the Hon'ble Supreme Court, the Department of Posts issued circular dated 12th April, 1991, which came into force with effect from 29.11.1989 i.e., the date of judgment in Jagrit Mazdoor Union's case. As per the said scheme, temporary status was required to be conferred on all the casual labourers in employment as on 29.11.1989 and who continue to be currently employed and had rendered continuous service of at least one year of 240/206 days as the case may be. It would be relevant at this stage to reproduce the said scheme in its entirety:
1. Temporary Status' would be conferred on the casual labourers in employment as on 29.11.1989 and who continue to be currently employed and have rendered continuous service of at least one year; during the year they must have been engaged for a period of 240 days (206 days in the case of offices observing five days week).
2. Such casual workers engaged for full working hours viz., 8 hours including 1/2 hour's lunch time will be paid at daily rates on the basis of the minimum of the pay scale for a regular Group 'D' official including DA, HRA & CCA.
3. Benefit of increment at the same rate as applicable to Group 'D' employee would be taken into account for calculating per month rate wages, after completion of one year of service from the date of conferment of Temporary Status. Such increment will be taken into account after every one year of service subject to performance of duty for at least 240 days (206 days in establishments observing five days week) in the year.
4. Leave entitlement will be one day for every 10 days of work. Casual leave or any other kind of leave, except maternity leave, will not be admissible. No encashment of leave is permissible on termination of services for any reason or on the casual labourers quitting service.
5. Maternity leave to lady full time casual labourers will be allowed as admissible to regular Group 'D' employees.
6. 50% of the service rendered under Temporary status would be counted for the purpose of retirement benefits after regularisation as a regular Group 'D' official.
7. Conferment of Temporary Status does not automatically imply that the casual labourers would be appointed as a regular Group 'D' employee within any fixed time frame. Appointment to Group 'D' vacancies will continue to be done as. per the extant recruitment rules, which stipulate preference to eligible ED employees.
8. After rendering three years' continuous Service after conferment of temporary status, the casual labourers would be treated at par with temporary Group D employees for the purpose of contribution to General Provident Fund. They would also further be eligible for the grant of Festival Advance/Flood Advance on the same conditions as are applicable to temporary Group D employees, provided they furnish two sureties from permanent Government Servants of this Department.
9. Their entitlement to Productivity-Linked Bonus will continue to be at the rate applicable to casual labourers.
10. Temporary status does not debar dispensing with the services of a casual labourer after following the due procedure.
11. If a labourer with temporary status commits a misconduct and the same is proved in an enquiry after giving him reasonable opportunity, his services will be dispensed with.
12. Casual labourers maybe regularised in units other than recruiting units also, subject to availability of vacancies.
13. For purpose of appointment as a regular Group D official, the casual labourers will be allowed age relaxation to the extent of service rendered by them as casual labourers.
14. The casual labourers can be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
15. The engagement of the casual labourers will continue to be on daily rates of pay on need basis.
16. The conferment of temporary status has no relation to availability of sanctioned regular Group-D posts.
17. No recruitment from open market for Group-D posts except compassionate appointments will be done till casual labourers with the requisite qualification are available to fill up the posts in question."
Later on, the Department of Posts issued another O.M. No. 66-9/91-SPB-I dated 30.11.1992 wherein certain more benefits were granted to the casual labourers with temporary status on completion of 3 years of service after being conferred with the said status. At this stage, it would be relevant to reproduce the said circular dated 30.11.1992 which reads as under;
1. Benefits to casual labourers on completion of three years service in temporary status--In their judgment, dated 29.11.1989, the Hon'ble Supreme Court have held that after rendering three years of continuous service with temporary status, the casual labourers shall be treated at par with temporary Group 'D' employees of the department of Posts and would thereby be entitled to such benefits as are admissible to Group 'D' employees on regular basis.
2. In compliance with the above-said directive of the Hon'ble Supreme Court it has been decided that the casual labourers of this department conferred with temporary status as per the scheme circulated in the above said circular No. 45/95-17-SPB.I, dated 12.4.1991, be treated at par with temporary Group 'D' employees with effect from the date they complete three years of service in the newly acquired temporary status as per the above said scheme. From that date they will be entitled to benefits admissible to temporary Group 'D' employees such as-
(1) All kinds of leave admissible to temporary employees;
(2) Holidays as admissible to regular employees;
(3) Counting of service for the purpose of pension and terminal benefits as in the case of temporary employees appointed on regular basis for those temporary employees who are given temporary status and who complete three years of service in that status while granting them pension and retirement benefits after their regularisation;
(4) Central Government Employees' Insurance Scheme;
(5) General Provident Fund:
(6) Medical Aid;
(7) Leave Travel Concession;
(8) All advances admissible to temporary Group 'D' employees:
3. Further action may be taken accordingly and proper service record of such employees may also be maintained. (Emphasis supplied)
The order dated 26.7.1994 granting temporary status to the applicant had been issued in accordance with the aforesaid OMs/instructions dated 12.4.1991 and 30.11.1992. The benefits so indicated in the aforementioned circulars have been reproduced in the said order dated 26.7.1994. It would be relevant at this stage to point out that on earlier occasion, the orders dated 1.9.1993 (Annexure-A2) and 19.4.1994 had been issued which were cancelled vide order dated 26.7.1994 (Annexure-A3).
On grant of said status known as temporary status to the casual labourers certain financial benefits were extended to them like daily rates on the basis of minimum of the pay scale of a regular Group 'D' official including DA, HRA and CCA, leave entitlement-one day for every 10 days of work without admissibility of casual or any other kind of leave etc. as noted hereinabove.
In O.A. No. 1017 of 2002 the applicant's prayer is that he is entitled leave encashment benefit in terms of Rule 39(2) of the Central Civil Services (Leave) Rules, 1972. Before proceeding further, it would be relevant to note the said provision, which reads as under:
"39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service.
(1) No leave shall be granted to a Government servant beyond-
(a) the date of his retirement or
(b) the date of his final cessation of duties or
(c) the date on which he retires by giving notice to Government or he is retired by Government by giving him notice or pay and allowances in lieu of such notice. In accordance with the terms and conditions of his service, or
(d) the date of his resignation from service.
(2) (a) Where a Government servant retires on attaining the normal age prescribed for retirement under the terms and conditions governing his service, the authority competent to grant leave shall suo motu issue an order granting cash equivalent of leave salary for earned leave, if any, at the credit of the Government servant on the date of his retirement, subject to a maximum of 240 days.
(b) The cash equivalent under Clause (a) shall be calculated as follows and shall be payable in one lump sum as a one time settlement.
No House Rent Allowance or Compensatory (City) Allowance shall be pay-able-
xxx xxx xxx
The said Rules are applicable to "Government servants appointed to the civil services and posts in connection with the affairs of the Union". As per Rule 2 of the said Rules, the Rules are not applicable to various classes of employees including persons in casual or daily rated or part time employment. For this purpose, reference may be had to Rule 2(b) of Central Civil Services (Leave) Rules, 1972. As noted hereinabove, para 4 of Circular dated 12th April, 1991 specifically contains a clause which prohibits encashment of leave. It states that no encashment of leave is permissible on termination of services for any reason or on the casual labourers quitting service.
6. The contention raised by the learned Counsel for the applicant is that the applicant was working as Chowkidar at Wilsongarden Post Office at the time of his retirement on 31st July, 2002 and he was conferred with the temporary status vide order dated 26.7.1994. Since he was granted the said status with effect from 29.11.1989, there is no question of his remaining as a temporary status employee. It is further contended that the respondents have not discharged the burden that the applicant was required to continue with temporary status till his regularisation. Looking from either angle whether he remained as casual labourer with temporary status or without it, he is entitled to pension under the Rules and, therefore, withdrawal of pension during the pendency of O.A. No. 1017 of 2002 is unsustainable. The applicant's contention is that for 13 long years, he could not be allowed to remain with temporary status, as sought to be projected by the respondents. Reliance has been placed on P & T Manual, Vol. 4, Chapter-1 particularly page 21 to contend that Chowkidars and Watchmen are classified as Group 'D' posts and have the sanctioned strength in the post offices. It is urged that once a person continues in the Government service for three years, he acquires a quasi permanent status and the temporary status is nothing but it is analogous to a situation where the provisions of Central Civil Services (Temporary Service) Rules, 1965 are applicable. The applicant's contention is that the person working on casual basis with temporary status for three years, and above is to be treated as temporary services and, therefore the provisions of Central Civil Service (Temporary Service) Rules, 1965 are to be made applicable. The word 'temporary service' has been defined under Rule 2(d) of the Central Civil Services (Temporary Service) Rules, 1965, which reads as under:- "(d) "temporary service" means the service of a temporary Government servant in a temporary post or officiating service in a permanent post, under the Government of India." (Emphasis supplied)
A perusal of the above mentioned definition of "temporary service" itself would show that when the services of a temporary servant is taken in a temporary post or officiating service in a permanent post. It is called and termed as a temporary service. As such the condition precedent is that there must be a post either of temporary or permanent in nature. A casual labourer holds neither regular nor temporary post. The term "temporary service" has no similarity with the term and concept of "temporary status". The term "temporary status" has been used for the first time by the aforementioned scheme dated 12.4.1991. The said scheme as noted hereinabove had been prepared on the directions issued by the Hon'ble Supreme Court and is not a piece of legislation framed under the proviso to Article 309 of the Constitution of India. The learned Counsel for the applicant has also invited our attention to Rule 3 of the said Rules to contend that a Government servant shall be deemed to be in quasi permanent service on completion of 3 years of service. Rule 3 of the said Rules reads as under:
"3. A Government servant shall be deemed to be in quasi permanent service-
(i) if he has been in continuous temporary service for more than three years; and
(ii) if the appointing authority, being satisfied having regard to the quality of his work, conduct and character as to his suitability for employment in a quasi permanent capacity under the Government of India, has made a declaration to that effect."
Before the provisions of the said Rules could be invoked & made applicable, the minimum requirement to be satisfied is that an employee should be a "Government servant". The word 'Government servant' has not been defined in any Rules like Central Civil Services (Temporary Service) Rules, 1965. Central Civil Services (Pension) Rules, 1972 or Central Civil Services (Leave) Rules, 1972. Similarly neither the provisions of Fundamental Rules, 1922 nor Central Civil Services (Classification, Control and Appeal) Rules, 1965 defines the said term 'Government servant'. The basic question which arises for consideration is whether a person in casual service or a daily rated or part time employment with or without conferment of temporary status as provided in the Scheme dated 12.4.1991 could be termed as a 'Government servant'. As we have already noted, the Central Civil Services (Leave) Rules, 1972 are applicable only to Government servants appointed to the civil services and posts in connection with the affairs of the Union. The said Rules specifically exclude persons in casual or daily rated or part time employment. Similarly, the provisions of Central Civil Service (Temporary Service) Rules, 1965 are applicable to person a who holds a civil post. The provisions of Central Civil Services (Pension) Rules, 1972 are also applicable to Government servants including civilian Government servants in the Defence services appointed "substantively to civil services and posts in connection with the affairs of the Union". The said Pension Rules are riot applicable to persons in casual and daily rated employment'. If we had regard to the aforesaid Rules, whether it is pension rules or leave rules, one factor is common i.e., the official should be appointed to civil services and posts in connection with the affairs of the Union. We may at this stage refer to the provisions of Constitution particularly Articles 309 and 311 under Part XIV of the Constitution dealing with the services under the Union and the States. Under the aforesaid Articles also, the word "post" in connection with the affairs of the Union or of any State as well as civil posts has been used. As such, the question falls back as to whether a casual labourer could be holding a civil post or could be said to be in employment in connection with the affairs of the Union. It is known fact that the casual labourer is not holding any post much less a civil post. He is not employed against any sanctioned post, he is not paid from the allocations made against sanctioned strength. The nomenclature itself shows, that he remains a casual labourer. Mere grant of temporary status under the aforementioned scheme prepared and notified on the directions issued by the Hon'ble Supreme Court do not change the colour and status of a casual labourer & clothed him as "Government servant".
7. A Constitution Bench of the Hon'ble Supreme Court in State of Gujarat v. Raman Lal Soni, (1983) 2 SCC 331=1983(1) SLJ 268 (SC), considered the question as to whether the panchayat service constituted under Section 203 of the Gujarat Panchayat Act, 1962 was a civil service of the State and the members of the service were Government servants. The Hon'ble Court after due consideration enumerated the following indicia for deciding whether a particular person is a member of civil service of the State and a Government servant in para 27, which reads as under: "We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when an person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor maybe considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not." (Emphasis supplied)
The aforesaid judgment has been considered and followed by the Hon'ble Supreme Court in a recent case of State of U.P. and Ors. v. Chandra Prakash Pande and Ors., (2001) 4 SCC 78. Besides the aforesaid Constitution Bench judgment, other cases on the same aspect which have been considered by the Hon'ble Court are State of Assam v. Kanak Chandra Dutta, AIR 1967 SC 884 (Constitution Bench decision) and Superintendent of Post Offices v. P.K. Rajamma, (1977) 3 SCC 94=1977 SLJ 532 (SC). In the case of P.K. Rajamma (supra) the Hon'ble Supreme Court considered whether extra departmental agent holds a civil post and his dismissal or removal would be invalid if there was infraction of the provisions of Article 311(2) of the Constitution, as it then stood. It was held therein that extra departmental agent was not a casual worker but he held a post under the administrative control of the State and the relationship between the postal authorities and the extra departmental agent was that of a master and servant. In the case of Chandra Prakash Pandey (supra) the Hon'ble Supreme Court was considering whether Kurk Amins appointed on commission basis by different District Magistrates/Collectors in UP for realising outstanding dues of the Cooperative Societies were Government servants holding civil posts or not. The Allahabad High Court on 16.11.1985 had held that Kurk Amins appointed in different districts of the State were Government servants and quashed the orders of their terminations for non-observance of legal procedure. Subsequently, the High Court following the first decision held that the Kurk Amins to be entitled to parity in pay scale with their counterparts in the Revenue Deptt. This judgment was challenged by the State Government in Civil Appeals Nos. 8467-69 of 1995 before the Hon'ble Supreme Court. Thereafter, in a third case, the High Court held that Kurk Amins appointed on commission basis were also to be governed by the principles laid down in the first judgment. The Hon'ble Supreme Court remanded the matter (2nd case) to the High Court for considering the question as to whether the cases of Kurk Amins appointed on a commission basis could be treated on a par with the cases of Kurk Amins appointed on salary basis and attracted the ratio of the decision in the first case. The High Court answered that question in the affirmative and held that the Kurk Amins appointed on commission basis also held civil posts like Kurk Amins appointed on salary basis. This decision gave rise to State's Civil Appeal No. 6075 of 1997. The Hon'ble Supreme Court dismissed these State's appeal by holding that since the correctness of judgment of the Allahabad High Court holding that Kurk Amins appointed on salary basis are holding civil posts had not been challenged and as such has attained the finality. Rather the said judgment got its approval as the matter was remanded to the High Court for considering the question whether cases of Kurk Amins appointed on commission basis stood on the same basis as that of Kurk Amins appointed on salary basis. It needs to be noticed at this stage that since the principle laid down in the first case decided by the Allahabad High Court remained unchallenged and subsequently following the said judgment the Kurk Amins appointed on commission basis were granted the benefit of the said judgment and were brought at par with the cases of Kurk Amins appointed on salary basis, the Hon'ble Supreme Court declined to interfere with the findings recorded in the later cases.
8. There cannot be a civil post unless there is some post. Casual employees are not holding any post, which are created, sanctioned or regulated in accordance with any statutory Rules. As the nomenclature itself denotes, their engagement is of pure casual in nature. Their engagement continues to be on daily rates of pay on "need basis", which is evident from para 15 of the O.M. dated 12th April, 1991, which has already been extracted hereinabove. As we have noted that the casual worker's engagement is based on need basis. It cannot be assumed under any circumstances that he is discharging the functions of a regular post. On the other hand, he is engaged and continues to be engaged based on "need" basis. As and when there is a necessity to discharge certain work, engagement of casual labourer is made. Casual labourer does not hold any post, which is either sanctioned under any statutory rule or is of regular in nature. He is not appointed by observing any regular method of selection. On the other hand para 7 of O.M. dated 12.4.1991 provides that conferment of temporary status does not automatically imply that casual labourers would be appointed as a regular Group-D employee within any fixed time frame. It also states that appointment to Group-D vacancies will continue to be done as per the extant recruitment rules, which stipulate preference to eligible ED employees. Similarly para 16 states that the conferment of temporary status has no relation of availability of sanctioned regular Group-D posts. Even the nature of duties performed by the casual labourers could not be taken & treated as akin to the duties discharged & performed by regular/temporary Government servant. The nature of duties and degree of responsibility discharged are different. Both the categories are governed by different set of rules.
9. From this analysis of case law, it is quite evident that casual labourer with or without the grant of temporary status, cannot be treated as a Government servant and is not holding a civil post. His engagement is not "in connection with the affairs of the Union or of any State". The application of Rules like Central Civil Services (Pension) Rules, 1972 and Central Civil Services (Leave) Rules, 1972 besides other Rules, presupposes that one should be a Government servant before the said Rules could be applied to him. In our considered view casual labourer is neither holder of a civil post nor appointed to public services. His engagement remains on need basis. Unless a casual labourer is regularised in a regular establishment of the Government, he does not attain the status of a Government servant & none of the aforesaid Rules become applicable to him. Therefore, a casual labourer with or without temporary status is not eligible for the benefits enumerated under the Central Civil Services (Leave) Rules, Central Civil Services (Pension) Rules and like so. The scheme notified by the Department on 12th April, 1991 as well as 31.11.1992 in our considered view is complete code in itself. All the benefits which are available to a casual labourer with temporary status are enumerated therein. Under the aforesaid scheme and the O.M./Circular issued by the Government, a casual labourer on grant of temporary status becomes entitled to certain monetary benefits which are enumerated in the said Scheme/order/circular in itself. The said scheme/order had the approval of the Hon'ble Supreme Court. It is not in the nature of subordinate legislation nor it could be termed as Recruitment Rules, but it constitutes a totally different category in itself and, therefore, the provisions of CCS (CCA) Rules, CCS (Pension) Rules, CCS (Leave) Rules, etc. which are applicable to a Government servant are not applicable to casual labourer with temporary status. It is well settled rule of construction that the function of the Court is to interpret a statute to ascertain the intent of the legislature Parliament. Where any of the statute is clear and explicit, the Court must give effect to it because words of the statute unequivocally speak the intention of the legislature. As we have noted above, the Scheme/Circular/ OM issued by the Department of Posts, which had the approval of the Hon'ble Supreme Court though is not a statute, and even if it is taken as akin to a statute, for the sake of argument, even then some thing more which is not prescribed therein could not be added to it. If the intention of the department as well as the Hon' ble Supreme Court was to treat the casual labourer at par with the Government servant holding civil post under the Union or State, nothing prevented it to incorporate such a clause/provision therein. We have to read the said circulars dated 12.4.1991 & 30.11.1992 as it is, without adding anything more into it. OM dated 30.11.1992 in specific term states that the service rendered by casual labourer conferred with temporary status, who complete 3 years service in that status is entitled to count his service for pension and terminal benefits after "regularisation". The specific wording & requirement of the said OM dated 30.11.1991 "after their regularisation" speaks in itself the object of the same. This part of the Scheme has to be given its literal & natural interpretation. As such, unless and until a casual labourer with temporary status is "regularised", the service rendered after the grant of Temporary Status cannot be counted for the purpose of pension & terminal benefits/Therefore, regularisation in Group 'D' is a condition precedent to count casual temporary status services towards pension and terminal benefits.
In the present cases, the applicant has neither made a prayer nor seeking a declaration that as he had rendered more than 3 years of service after being conferred Temporary Status he ought to be declared as regular Group 'D' employee. It is noted that none of the applicant's junior has been regularised as Group 'D' employee. As such mere raising of contention in this regard without seeking specific relief, is of no help to the applicant. In our view merely because the applicant was discharging the function of Chowkidar at the time of his retirement would not make change to his temporary character & status.
10. In view of the findings recorded hereinabove, we hold that the applicant who was a casual labourer with temporary status is not governed by the provisions of the Central Civil Services (Pension) Rules, 1972 and accordingly he is not entitled to pension. The respondents are well within their power to rectify their mistake. Accordingly, the respondents are justified in directing the applicant to surrender pension payment order vide communication dated 23rd January, 2003. Similarly, the provisions of Central Civil Services (Leave) Rules, 1972 are not applicable to a person who was casual labourer with temporary status and as such is not entitled to leave encashment benefit.
11. O.A. No. 1017 of 2002 as well as O.A. No. 56 of 2003, are benefit of any merits and are accordingly dismissed. However, in the circumstances there will be no order as to costs.