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2015 DIGILAW 1941 (PNJ)

Lakha Singh v. State of Punjab

2015-10-21

HEMANT GUPTA, RAJ RAHUL GARG, RITU BAHRI

body2015
JUDGMENT Mr. Hemant Gupta, J.:- All the aforementioned four writ petitions placed before this Bench consequent to the following order passed by the Division Bench of this Court on 20.01.1995 in CWP No.7072 of 1994 doubting the correctness of Division Bench judgment reported as Smt. Sarbati Devi Vs. State of Punjab & others 1991 (1) SLR 225: “Learned counsel for the petitioner has relied on a D.B. judgment of this Court reported as 1991 (1) S.L.R. 225 to contend that if family pension can be granted to the family of a work-charged employee, there is no reason to deny the pension to such an employee who might have superannuated as a work-charged employee. Rule 6.17 of Punjab Civil Services Rules Volume – II which specifically negatives the claim of family pension of a work-charged employee, was not considered in the above mentioned judgment of the D.B. We have reservations about the correctness of the above said judgment in which the above rule was not considered at all. Even in the Full Bench judgment in Kesar Chand’s case reported as 1988 Punjab & Haryana 265, the Full Bench laid down that if work-charged service is followed by a regular service, then 4 the work-charged period shall be counted for reckoning pension. In these circumstances, we admit the case to Full Bench.” 2. For facility of reference, the facts are being taken from Lakha Singh’s case. The petitioner was appointed on work-charged basis and was discharged on attaining the age of superannuation i.e. at the age of 60 years. It is averred that as per the Circular issued on 19.11.1992, the services of all those work-charged employees, who have completed 5 years of service, were to be regularized consequent to sanction of 4037 regular posts in lieu of work-charged posts. In view of the said Circular, the petitioner claims that his services were liable to be regularized. Still further, the petitioner refers to a Circular dated 06.02.1991 to claim pension after taking into consideration work-charged service. 3. In the written statement, the stand of the respondents is that the State had sanctioned 4037 regular posts for various Departments of Irrigation of Punjab Government, out of which 212 regular posts were for Shah Nehar Headworks Division, Talwara i.e. the project against which the petitioner was appointed on work-charged basis. In the said posts, there were 4 posts of Drivers. In the said posts, there were 4 posts of Drivers. Since the petitioner stands at Sr. No.9 of the Seniority List, the services of 4 Drivers, who were senior to the petitioner, were regularized. As no regular post was available, the petitioner could not be regularized. Thus, the petitioner is not entitled to pension. 4. The writ petition in Smt. Sarbati Devi’s case (supra) was allowed in view of the Full Bench judgment of this Court reported as Kesar Chand Vs. State of Punjab AIR 1988 Punjab & Haryana 265, but such order does not deal with the question as to whether a work-charged employee would be entitled to pension even if the services of such work-charged employee were not regularized. 5. Mr. Kaushal, learned Amicus Curiae submitted that the persons, who have worked for long number of years, would be entitled to pension by treating them as deemed regular employee. Thus, the work-charged period is to be counted for grant of pension in view of Full Bench judgment in Kesar Chand’s case (supra). 6. Mr. Dadwal, learned counsel appearing for the petitioner in CWP No.9639 of 1994, has vehemently argued that since the petitioner has worked for sufficiently long period, the State Government was bound to create post for the petitioner. He relies upon the judgment of Hon’ble Supreme Court in Nihal Singh & others Vs. State of Punjab & others (2013) 14 SCC 65, wherein after relying upon the judgment in Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 , the State was directed to create posts for the petitioner. 7. On the other hand, learned counsel appearing on behalf of the State referred to a Full Bench judgment of this Court reported as Sita Devi Vs. State of Haryana, [2013(4) Law Herald (P&H) 3317 (FB) : 2013(6) Law Herald (SC) 4466 (P&H) (FB)] : 2013 (4) PLR 499, wherein the claim of the writ petitioner for family pension after the death of her daughter (Inder Kaur) was declined. The Full Bench has returned a finding that the petitioner, as a legal heir of her deceased daughter, would not be entitled to family pension since the services of the deceased were never regularized. Mr. The Full Bench has returned a finding that the petitioner, as a legal heir of her deceased daughter, would not be entitled to family pension since the services of the deceased were never regularized. Mr. Bajaj also pointed out that there cannot be any deemed regularization for the reason that the posts are created by the State keeping in view its financial position and the work available. Since the State has not created any post, this Court will not issue any direction for creation of the posts. It is further pointed out that in Nihal Singh’s case (supra), the Hon’ble Supreme Court has issued directions after returning a finding that initial appointment of the appellant was not irregular appointment, but was made in accordance with the statutory procedure contemplated under the Police Act, 1861. Therefore, the said judgment does not support the proposition that a work-charged employee is entitled to pension for the reason that he has put large numbers of years in that capacity or that the State is bound to create posts for them. 8. We have heard learned counsel for the parties at length. We find that the issue placed before this Bench stands concluded by the earlier Full Bench judgment of this Court in Sita Devi’s case (supra). The Punjab Civil Services Rules, which were considered in Kesar Chand’s case (supra), are applicable to an employee in regular employment. The relevant provisions read as under: “VOLUME – I PART – I CHAPTER – I” xx xx 1.2 (1) Except as otherwise provided in rule 1.4 infra or in any other rule or rules these rules shall apply to all Government employees belonging to the categories mentioned below, who are under the administrative control of Punjab Government and whose pay is debt able to the Consolidated Fund of the State of Punjab: (1) Members of State Service (Group A & B); (2) Members of State Service (Group C); (3) Members of State Service (Group D); (4) Holders of Special Posts; and (5) Any other Government employee or classes of Government employees to whom the competent authority may, by general or special order, make them applicable. (2) Government employees to whom these rules apply shall continue to be governed by these rules while on temporary transfer to another State Government or Central Government or while on Foreign Service within India, unless it be otherwise provided in these rules. (2) Government employees to whom these rules apply shall continue to be governed by these rules while on temporary transfer to another State Government or Central Government or while on Foreign Service within India, unless it be otherwise provided in these rules. In the case of Government employees on foreign service outside India (including services with the United Nations Agencies within or outside India) or on temporary transfer to the Armed forces of the Union, these rules shall apply only to the extent provided in the terms and conditions of foreign service or temporary transfer, as the case may be. xx xx 1.4 These rules shall not apply to:- (i) any Government employee between whom and the Government, a specific contract or agreement subsists in respect of any matter dealt with herein to the extent up to which specific provision is made in the contract or agreement; (ii) any person for whose appointment and conditions of service special provision is made by or under any law for the time being in force; and (iii) Any Government employee or class of Government employees to whom the competent authority may, by general or special order, direct that they shall not apply in whole or in part. One of such classes of Government employees is that employed only occasionally or which is subject to discharge at one month’s notice or less. A list of such employees is given in appendix 2.” [Appendix 2 contains List of Government employees employed occasionally or who are liable to discharged at one month’s notice or less. Such List includes the department of Public Works Department (Irrigation Branch). The said Department has two Establishments i.e. (i) Superior Work-Charged Establishment consisting of 40 categories of employees including Drivers, Ist Class and Drivers, 2nd Class; & (ii) Class IV Work-Charged Establishment consisting of 40 categories of employees including Drivers, Malis, Sweepers etc.] “Chapter III Section II Conditions of Qualification” A – General 3.12 The service of a Government employee does not qualify for pension unless it confirms the following three conditions: First:- The service must be under Government; Second:- The employment must be substantive and permanent; Third:- The service must be paid by Government. These three conditions are fully explained in the following rules. These three conditions are fully explained in the following rules. xx xx 3.17 If an employee was holding substantively a permanent post on the date of his retirement, his temporary or officiating service under the State Government followed without interruption by confirmation in the same or another post, shall count in full as qualifying service except in respect of:- (i) Period of temporary or officiating service in non-pensionable establishment. (ii) Period of Service in Work Charged establishment; and (iii) Periods of service paid from contingencies.” 9. A perusal of the abovementioned Rules shows that the Punjab Civil Services Rules are applicable only to the Members of the State Services (Group A, B, C & D) and Holders of Special posts as well as any other Government employees or classes of Government employees, when the Rules are specifically made applicable to them. It does not cover the work-charged employees. In fact, Rule 1.4 specifically deals with employees, who are employed on work-charged establishments including Public Works Department (Irrigation Branch) having two Establishments i.e. (i) Superior Work-Charged Establishment; & (ii) Class IV Work-Charged Establishment. The Superior Work-Charged Establishment consists of 40 categories includes Blacksmiths, Ist Class; Blacksmiths, 2nd Class; Linemen; Mistries; Drivers, Ist Class; Drivers, 2nd Class etc., whereas Class IV Work- Charged Establishment consists of 40 categories includes Attendants Pumps; Beldars Garden; Beldars Plantation; Bhishties; Drivers etc. Therefore, the work-charged employees are not employed on substantive and permanent posts, which fact alone will entitle them for pension in terms of Rules 3.12 & 3.17 of the Punjab Civil Services Rules Volume II, Chapter - III, as reproduced above. 10. In Full Bench judgment of this Court reported as Kesar Chand’s case (supra), the services of the work-charged employees were regularized before his or her superannuation. In Uttar Haryana Bijli Vitran Nigam Ltd. & others Vs. Surji Devi, [2008(2) Law Herald (SC) 877] : (2008) 2 SCC 310 , the Hon’ble Supreme Court dealt with the question as to whether family members of a deceased employee who was appointed on a work-charge basis would be entitled to family pension. The Hon’ble Supreme Court was considering a situation where the services were not regularized and the work-charged employee died. The claim of family pension was declined by the Hon’ble Supreme Court for the reason that services of the work-charged employee were not regularized. The Hon’ble Supreme Court was considering a situation where the services were not regularized and the work-charged employee died. The claim of family pension was declined by the Hon’ble Supreme Court for the reason that services of the work-charged employee were not regularized. The Court in Surji Devi’s case (supra) held to the following effect: “16. The Scheme relating to grant of family pension was made under a statute. A person would be entitled to the benefit thereof subject to the statutory interdicts. From a bare perusal of the provisions contained in the Punjab Civil Services Rules, Vol. 2 vis-àvis the Family Pension Scheme, it would be evident that the respondent was not entitled to the grant of any family pension. The husband of the respondent was a work-charged employee. His services had never been regularised. It may be unfortunate that he had worked for 11 years. He expired before he could get the benefit of the regularisation scheme but sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law. (See Maruti Udyog Ltd. vs. Ram Lal (2005) 2 SCC 638 , State of Bihar vs. Amrendra Kumar Mishra (2006) 12 SCC 561 , SBI vs. Mahatma Mishra (2006) 13 SCC 727, State of Karnataka vs. Ameerbi (2007) 11 SCC 681 and State of M.P. vs. Sanjay Kumar Pathak, 2007(5) Law Herald (SC) 3491] : (2008) 1 SCC 456 .) 17. The statutory provisions, as noticed hereinbefore, debar grant of family pension in favour of the family members as the deceased employee was a work-charged employee and not a permanent employee or temporary employee. The period during which an employee worked as a work-charged employee could be taken into consideration only when his services are regularised and he becomes permanent and not otherwise.” 11. In Sita Devi’s case (supra), the Full Bench was examining the scope of the second condition of Rule 3.12 of the Punjab Civil Service Rules, which required that ‘employment must be substantive and permanent’. The Bench also examined the question; whether the deceased would have been eligible for regularization on 01.10.2003 as per the policy of the respondents subject to fulfillment of all other conditions. The Full Bench held as under: “7. The Bench also examined the question; whether the deceased would have been eligible for regularization on 01.10.2003 as per the policy of the respondents subject to fulfillment of all other conditions. The Full Bench held as under: “7. A reference is also made to the judgement in Uttar Haryana Bijli Vitran Nigam Ltd. vs. Surji Devi, [2008(2) Law Herald (SC) 877] : (2008) 2 SCC 310 , where the same rule was in question as in the present case. The deceased had been appointed on a work-charge basis with services not being regularized. It was held that the statutory provisions debarred grant of family pension in favour of the family members as the deceased employee was not a permanent or temporary employee. It was further observed that sentiments and sympathy alone cannot be aground for taking a view different from what is permissible in law and the period during which an employee worked as a work-charge employee could be taken into consideration only when his services are regularized and he becomes permanent and not otherwise. 8. In our view, the issue is no more res-integra in view of the various judicial pronouncements and, thus, it certainly cannot be said that the petitioner as a legal heir of her deceased daughter would be entitled to family pension since the services of the petitioner (sic) were never regularized. We answer the reference accordingly.” 12. The judgment in Nihal Singh’s case (supra), arises out of the fact where the appointment was made in terms of the Standing Order issued by the Director General of Police under Section 17 of the Police Act, 1861. The appellant continued to work for number of years. The Court has found that the appointment was not irregular, but was made after following the procedure contemplated under the Act. It was, in these circumstances, the Court directed for creation of the posts in view of the Constitution Bench judgment in Uma Devi’s case (supra). However, in the present case, the State has created regular posts to adjust the work-charged employees, but the petitioner – Lakha Singh could not be regularized for the reason that he was down below in the seniority list. 13. The creation of post is an executive function. The Hon’ble Supreme Court in Indian Council of Medical Research & others Vs. However, in the present case, the State has created regular posts to adjust the work-charged employees, but the petitioner – Lakha Singh could not be regularized for the reason that he was down below in the seniority list. 13. The creation of post is an executive function. The Hon’ble Supreme Court in Indian Council of Medical Research & others Vs. K. Rajyalakshmi, [2007(1) Law Herald (SC) 629] : (2007) 2 SCC 332 has set aside the order of Central Administrative Tribunal for regularization of the employees working on a project. The Court held as under: “10. It has not been denied or disputed that the project being on an yearly basis, post could not have been sanctioned on a regular basis. Having regard to the fact that the appellant herein was bound to implement the project of the Central Government in terms of the grant-in-aid scheme, it could not have taken a decision on its own for making the project a permanent one. In absence of the Union of India, therefore, in our opinion, the Tribunal and consequently the High Court committed a manifest error in entertaining the question as to whether the project should have been made a permanent one or not. 11. Keeping in view the fact that the project could not have been directed to be made a permanent one at the instance of the appellant, the question of invoking the doctrine of fairness, in our opinion, did not arise. In service jurisprudence, it is well known, that creation or sanction of a post is essentially an executive function.” 14. The somewhat similar issue has been examined by another Full Bench of this Court in Union of India & another Vs. Ram Pal & others (2013) 1 ILR P&H 943, wherein the regularization of the employees engaged by the contractor under the Contract Labour (Regulation and Abolition) Act, 1970 was considered. The Bench held that the direction to regularize the employees is not tenable, as the High Court will not give any direction for creation of posts or to frame a scheme for regularization. It has been held to the following effect: 13. There is yet another reason for setting aside the order of the Tribunal, following the decision in Kiran Pal & others Vs. It has been held to the following effect: 13. There is yet another reason for setting aside the order of the Tribunal, following the decision in Kiran Pal & others Vs. Union of India & others OA No.800/CH/2001 (which was upheld by this Court on 24.05.2003 and thereafter by the Supreme Court on 20.04.2010), the direction given is to regularise the respondents herein. Even if we presume that introducing the contractor in between is a camouflage (though such aspect can be raised only by means of industrial dispute and can be adjudicated upon by the Industrial Tribunal, at the most) it would mean that respondents are employees of the petitioners. However, they are engaged only on daily-wage basis. It would not follow automatically that they are entitled to regularisation as well. These directions are impermissible. It is not permissible for this Court or for the CAT to either give directions for framing of scheme for regularization or to create supernumerary posts. The law in this regard stands settled by the 7- Member Bench of the Supreme Court in Uma Devi’s case (supra). Again, in a recent judgment in the case of State of Rajasthan & others vs. Daya Lal & others, [2011(2) Law Herald (SC) 847] : (2011) 2 SCC 429 , the Supreme Court has reemphasized that the High Courts will not give any direction for creation of posts or to frame a scheme for regularization and such a direction can only be given by the Supreme Court in its powers under Articles 142 of the Constitution. This is so declared in the following manner by the Supreme Court in that case: “8. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals: (i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be ‘litigious employment’. Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” The nature of binding precedent of Uma Devi’s case (supra) is impressed upon by the Supreme Court much strongly in the subsequent judgment in the case of Official Liquidator vs. Dayanand & others (2008) 10 SCC 1 , in the following words: xx xx xx” 15. Thus, we find that a work-charged employee is not entitled to be regularized by creating posts for him and that without regularization, a work charged employee would not be entitled to pension or his legal heirs, the family pension. 16. A work-charged employee subscribes to the Employees’ Provident Fund Scheme, 1952 framed under the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952. Since the engagement of the work-charged employees is governed by a different Statute i.e. the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952, the petitioner cannot claim the benefit of a regular employee unless there is a regular post available and is regularized as per the policy decision of the State Government. 17. Consequently, we hold that the work-charged employee cannot get pension unless his or her services were regularized. Similarly, the legal heirs of a deceased also cannot get family pension unless the services of the work-charged employee were regularized. 18. In view of the decision on the question of law, we order that the writ petitions be placed before an appropriate Bench as per roster.