IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 189 of 2004 and connected appeals/petitions Date of Decision: April 19, 2011 State of Punjab and others ...Appellants Versus Mukhtiar Singh ...Respondent CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MR JUSTICE T.P.S. MANN Present: Mr. Piyush Kant Jain, Addl. AG, Punjab, for the appellants (in LPA Nos. 1040 of 2002, 189 of 2004 & 90 of 2005) and for the respondents in CWP Nos. 13059, 14091, 16119 of 2003; 4502 and 7209 of 2004) Mr. Tushar Deep Garg, Advocate, for the respondent (in LPA No. 1040 of 2002) Mr. Manjit Singh, Advocate, for the respondents (in LPA No. 189 of 2004) Mr. P.S. Sekhon, Advocate, for the respondent (in LPA No. 90 of 2005) Mr. Madan Mohan, Advocate, for the petitioner (in CWP No. 13059 of 2003) Mr. M.S. Uppal, Advocate, Mr. Amarjeet Markan, Advocate, and Mr. Madan Gopal, Advocate for the petitioner(s) (in CWP Nos. 14091, 16119 of 2003 and 7209 of 2004) Mr. Ritesh Kumar Bansal, Advocate, for Mr. P.S. Khurana, Advocate, for the petitioner (in CWP No. 4502 of 2004) Mr. K.L. Arora, Advocate, as an Intervener. 1. To be referred to the Reporters or not? Yes L.P.A. No. 189 of 2004 & connected appeals/petitions 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. 1. This judgment shall dispose of a bunch of three appeals* and five writ petitions*, which have been remitted back for fresh decision in pursuance of order dated 10.12.2009, passed by Hon’ble the Supreme Court in the case of Bhakra Beas Management Board through its Chairman and others v. Hari Chand (Civil Appeal No. 8306 of 2009. For ready reference, the aforementioned order dated 10.12.2009 is reproduced as under: “1. Leave granted. 2. The Bhakra Beas Management Board has come against the Judgment and order passed by the High Court of Punjab and Haryana, whereby the respondent has been held entitled to the pensionary benefits on the basis of the service that he has rendered as a daily rated employee. It as an admitted position that if that service is not counted, then the employee would not be entitled to pension since his qualifying service in that case would be lesser than ten years which is minimum qualifying service under the Rules. While allowing the writ petition, the Punjab and Haryana High Court had relied on the Full Bench Judgment in Kesar Chand vs. State of Punjab reported in AIR 1988 Punj. 265. We have carefully considered that Judgment. However, in that Judgment Rule 3.17 of the Punjab Civil Services Rules is considered and sub rule (ii) of Rule 3.17 is held as unconstitutional and has been struck off. Mr. Dhruv Mehta, learned 2 L.P.A. No. 189 of 2004 & connected appeals/petitions counsel for the appellant argues that besides Rule 3.17 there is a specific Rule 3.17-A and subsequent code of sub-rule which runs as under. 3. 3.17-A(1) Subject to the provision of Rule 4.23 and other rules are except in the cases mentioned below, all service rendered on establishment, interrupted or continuous, shall count as qualifying service. 4. Our attention was drawn through (i) Service rendered in work-charged establishment. 5. Further sub-rule (iii) provides casual or daily rated service. 6. From this learned counsel submits that even if the Judgment rendered in Kesar Chand’s case is held to be a correct law, it would only help the work-charged establishment employee but it may not be helpful to the casual or daily rated employee. He points out that respondent in that case was not a daily rated employee, but a work charged employee. He further submits that this question has not been considered by the High Court. Our attention was invited to the fact that though these rules have been adopted now by the State of Haryana and State of Haryana has also amended Rule 3.17-A(iii) by deleting the words “daily rated service” therefrom. Such amendment has not been effected in Punjab and the Rule continues as it was. Our attention was also invited to the Government instructions: 1. Ad-hod service is countable towards 3 L.P.A. No. 189 of 2004 & connected appeals/petitions pensionary benefits subject to the conditions that (i) such service is followed by regular employment (ii) interruption falls within condonable limit (iii) service shall be full time (iv) recruitment should be through prescribed channel (v) employment against a regular vacancy (vi) condition for eligibility should be fulfilled. {Letter dated 26/10/95 (See Page No. 890)} 7. Learned counsel points out that those questions have not been considered by the High Court which has merely proceeded on the basis of law laid down in Kesar Chand vs. State of Punjab (supra). In spite of the repeated calls, nobody appears on the other side to dispute those questions. Threfore, we have seen the counter filed by the respondent. The counter does not take the case of the respondent any further. We are, therefore, of the opinion that this case should be remanded for reconsideration to the High Court in the light of the observations made by us, but without being influenced by any of the observations made by us. 8. The High Court is requested to go into the Rules as well as the amendments afresh and decide the questions involved. Since the question relates to the employees who are old and retired, the High Court shall give fresh notice to the parties and dispose of the matters within a period of six months from the date of communication of this order. The appeal is disposed of. No costs.” 4 L.P.A. No. 189 of 2004 & connected appeals/petitions 2. It is pertinent to mention here that various other appeals were also disposed of in terms of the order dated 10.12.2009 passed by Hon’ble the Supreme Court. 3. At the outset we deem it appropriate to notice broad factual position of each case, which is as under: LPA No. 1040 of 2002: 4. The petitioner-respondent Paras Ram was appointed as Pump Operator on 16.10.1980 on muster roll/daily wage basis. He continued to work for more than a decade without any break. His request for regularisation was initially declined. However, in pursuance of directions issued by this Court in CWP No. 1318 of 1997, his services were regularised w.e.f. 1.9.1992 in the pay scale of `950-1800. He retired from service w.e.f. 28.2.2001 on attaining the age of superannuation. He was paid the dues on account of Death-cum-Retirement Gratuity but pension was declined on the ground that he had completed only 8½ years of service after regularisation. He then filed C.W.P. No. 7063 of 2001, which was allowed by the learned Single Judge vide order dated 30.5.2002, in the light of the Full Bench judgment of this Court in Kesar Chand’s case (supra). The appellant-State of Punjab then filed LPA No. 1040 of 2002, which was dismissed by the Letters Patent Bench vide order dated 10.12.2002. LPA No. 189 of 2004: 5. In this case, on 1.2.1979 the petitioner-respondent Mukhtiar Singh (since deceased) was appointed as daily wager on the post of Mali-cum-Chowkidar at Polytechnic College, Bathinda. Vide order dated 1/29.11.1995, his services were regularised w.e.f. 5 L.P.A. No. 189 of 2004 & connected appeals/petitions 1.9.1992 on the post of Mali-cum-Chowkidar. On 30.6.2002, he retired from service on attaining the age of superannuation. He filed CWP No. 17985 of 2002 seeking the relief of release of pensionary benefits under the Punjab Civil Services Rules by counting the pre-regularisation period of service rendered by him. Before the learned Single Judge, it was conceded by the State counsel that the case of the petitioner-respondent was covered by the judgment dated 24.1.2002 rendered in CWP No. 6178 of 2001 (Sher Singh v. State of Punjab and others) in which reliance was placed on the Full Bench judgment of this Court in the case of Kesar Chand (supra). On 16.1.2004, learned Single Judge allowed the said petition. On 7.2.2005, the Letters Patent Bench dismissed the appeal, namely, LPA No. 189 of 2004, filed by the State of Punjab by observing that the Full Bench judgment in Kesar Chand’s case (supra) is binding because the SLP against the said judgment was dismissed. It is pertinent to mention here that the writ petitioner Mukhtiar Singh expired on 17.5.2010 and his legal heirs have been brought on record. LPA No. 90 of 2005: 6. On 1.5.1981 the petitioner-respondent Sher Singh was appointed as daily wager on the post of Mali-cum-Chowkidar at I.T.I. Sunam. Vide order dated 1/29.11.1995, his services were regularised w.e.f. 1.9.1992 on the post of Mali-cum-Chowkidar. On 31.5.2000, he retired from service on attaining the age of superannuation. The Accountant General, Punjab, opined that he was not entitled to pension because he has not rendered qualifying service for pension after his regularisation. Feeling aggrieved, he 6 L.P.A. No. 189 of 2004 & connected appeals/petitions filed CWP No. 6178 of 2001. On 24.1.2002, the learned Single Judge allowed the said petition in the light of the Full Bench judgment of this Court rendered in the case of Kesar Chand (supra). On 13.9.2005, the Letters Patent Bench without condoning the huge delay of 1033 days in filing the appeal (LPA No. 90 of 2005), dismissed the same. CWP No. 13059 of 2003: 7. On 3.1.1986 the petitioner Jeet Ram joined service as daily wage Mali-cum-Chowkida. Vide order dated 18.5.2001, his services were regularised on the post of Mali-cum-Chowkidar in the pay scale of `2520-4140. On 30.11.2000, he retired from service on attaining the age of superannuation. He was denied gratuity for the period from 3.1.1986 to 17.5.2001 as also the pensionary benefits for not rendering regular service for a period of 10 years. Feeling aggrieved, he filed CWP No. 13059 of 2003. On 20.5.2004, a Division Bench of this Court allowed the writ petition in terms of the judgments rendered in the cases of Sher Singh v. State of Punjab and others (CWP No. 6178 of 2001, dated 24.1.2002) and Dhan Kaur v. State of Haryana and others (CWP No. 4223 of 2002, decided on 21.7.2003). In the said cases reliance was placed on the Full Bench judgment of this Court in Kesar Chand’s case (supra). CWP No. 14091 of 2003: 8. In this case, the petitioner Desh Raj worked as a Pump Operator from 3.7.1969 to 5.8.1970 on work charge bases. Thereafter he left the job. In para 4 of the petition, the petitioner has claimed that he was re-employed as Pump Operator on daily wage basis w.e.f. 10.4.1987 and continued as such till 5.9.1987 at 7 L.P.A. No. 189 of 2004 & connected appeals/petitions Bathinda. Thereafter he was transferred to Mansa Division and worked there without any break till the date of his retirement i.e. 28.2.2003. However, in reply to para 4, in the written statement filed by respondent Nos. 1 and 3 to 6, it has been stated that he was engaged on daily wages w.e.f. 10.4.1997 and he worked as such upto 17.5.2001. His services were regularised w.e.f. 18.5.2001. According to the respondents he has rendered only 1 year 9 months and 14 days regular service w.e.f. 18.5.2001 to 28.2.2003. On the other hand, the claim of the petitioner is that he has rendered 16 years un-interrupted service apart from his previous service from 3.7.1969 to 5.8.1970. On 14.10.2002 (P-4), the respondents rejected his claim for pension and other monetary benefits. Feeling aggrieved, he filed CWP No. 14091 of 2003. On 20.7.2004, a Division Bench of this Court allowed the writ petition in terms of the judgment rendered in the case of Joginder Singh v. State of Haryana, 1998 (1) SCT 795, wherein it has been held that the period of ad hoc service rendered by an employee would count for computation of pensionary benefits. CWP No. 16119 of 2003: 9. On 10.9.1986 the petitioner Amarjeet Ram joined service as daily wager on the post of Fitter. Vide order dated 18.5.2001, his services were regularised in the pay scale of `3120-5160. On 31.5.2002, he retired from service on attaining the age of superannuation. He was denied pensionary benefits for not rendering regular service for a period of 10 years. Feeling aggrieved, he filed CWP No. 16119 of 2003. On 20.5.2004, a Division Bench of this Court allowed the writ petition in terms of the 8 L.P.A. No. 189 of 2004 & connected appeals/petitions judgments rendered in the cases of Sher Singh v. State of Punjab and others (CWP No. 6178 of 2001, dated 24.1.2002) and Dhan Kaur v. State of Haryana and others (CWP No. 4223 of 2002, decided on 21.7.2003) [Annexures P-7 & P-8]. In the said cases reliance was placed on the Full Bench judgment of this Court in Kesar Chand’s case (supra). CWP No. 4502 of 2004: 10. In this case, the petitioner Ram Parkash has claimed that on 16.9.1985 he was appointed as Chowkidar on daily wage basis (DC rates) in SCD Government College for Boys, Ludhiana. On 2.5.1997, his services were regularised. On 30.11.2002, he retired from service after attaining the age of superannuation. In pursuance to the direction issued by this Court in CWP No. 11310 of 2003, the respondents passed an order dated 1.12.2003 (P-7), rejecting his claim for pension on the ground that he was appointed as Beldar and after regularisation his qualifying service comes to 5 years 6 months and 28 days, which is less than 10 years qualifying service. On 23.8.2004, a Division Bench of this Court dismissed the writ petition on the ground that disputed questions of fact arise in the writ petition. However, the petitioner was relegated to his remedy by way of a civil suit. The said order was challenged by the petitioner before Hon’ble the Supreme Court in Civil Appeal No. 367 of 2007. On 25.1.2007, their Lordships’ of Hon’ble the Supreme Court passed the following order: “ Heard learned counsel for the parties. Delay condoned. Leave granted. 9 L.P.A. No. 189 of 2004 & connected appeals/petitions This Appeal is directed against the order passed by the Division Bench dated 23.8.2004 whereby the High Court has summarily rejected the petition that the disputed question of facts are involved, therefore, petitioner was relegated to the remedy of civil suit. Our attention was invited to the Rule 3.17-A(1) but this Rule has not been brought to the notice of the High Court. Therefore, the High Court could not apply its mind on the question of counting the period of service of the incumbent from 85-97 for the purpose of pension. We deem it just and proper to set aside the order of the High Court and remit the matter back to the High Court to consider the implication of Rule 3.17A(1) and any other Rules on the subject. The appeal is allowed. The order of the Division Bench is set aside and the matter is remitted back to the High Court for deciding the matter on merits.” In this backdrop of the matter, this petition has been listed before us. CWP No. 7209 of 2004: 11. In this case, the petitioner Sewa Singh joined as a Mali in the Chhatbir Zoo in February 1984 on daily wage basis. On 7.4.1998 (P-6) his services were regularised as a Beldar. On 30.6.2003, he retired on attaining the age of superannuation. His claim of pension has been declined vide orders dated 2.7.2003 (P-7), 7.10.2003 (P-10) and 20.11.2003 (P-11) on the ground that he had less than 10 years of qualifying service. On 24.8.2004, a 10 L.P.A. No. 189 of 2004 & connected appeals/petitions Division Bench of this Court allowed the writ petition in the light of the judgments of this Court rendered in the cases of Nasib Singh v. State of Punjab, 1999 (4) RSJ 244 and Baldev Singh v. The State of Punjab and others (CWP No. 17686 of 2001, decided on 5.12.2002) wherein it has been held that daily wage service which was followed by regular service was to be counted for the purpose of pension. 12. We have heard learned counsel for the parties at length and perused the paper books of these appeals/petitions with their able assistance. 13. The only question referred by Hon’ble the Supreme Court for detailed consideration of this Court is whether daily wager employee would be entitled to reckon their service as qualifying service for the purposes of pension if it is followed by regularisation. It appears that on behalf of the appellant State specific attention of Hon’ble the Supreme Court was drawn to Rule 3.17-A(1)(iii) of the Punjab Civil Services Rules, Volume-II (for brevity, ‘the Rules’) for the purposes of excluding the service rendered on daily wage basis, as qualifying service for pension. However, a careful perusal of Rule 3.17-A of the Rules would clearly show that the rule principally is aimed at counting of that period of service which is interrupted. It would, thus, be necessary to read the aforesaid rule, which is as under: “3.17-A (1) Subject to the provision of rule 4.23 and other rules and except in the cases mentioned below, all service rendered on establishment, interrupted or con- tinuous, shall count as qualifying service:- 11 L.P.A. No. 189 of 2004 & connected appeals/petitions (i) Service rendered in work-charged establish- ment. (ii) Service paid from contingencies : Provided that after the Ist January, 1973 half of the service paid from contingencies will be allowed to count towards pension at the time of absorption in regular em- ployment subject to the following conditions:- (a) Service paid from contingencies should have been in a job involving whole time employment (and not part-time or for a portion of the day). (b) Service paid from contingencies should have in a type of work or job for which regular post could have been sanctioned e.g. Malis, Chowkidars, Khalasis, etc. (c) The service should have been one for which the payment is made either on monthly or daily rates computed and paid on a monthly basis and which though not analogous to the regular scale of pay should bear some relation in the matter of pay to those being paid for similar jobs being perform by staff in regular establish- ment. (d) The service paid from contingencies should have been continuous and followed by absorption in regular employment without a break. (iii) Casual or daily rated service. (iv) Suspension adjusting as a specific penalty. Note.– In case where an officer dies or is permitted to retire while under suspension will not be treated as an 12 L.P.A. No. 189 of 2004 & connected appeals/petitions interruption.” 14. Sub-rule (1) of Rule 3.17-A categorically declare that all service rendered on establishment, interrupted or continuous shall count as qualifying service subject to the conditions contemplated by Rule 4.23 or any other Rule. The other condition laid in sub-rule (1) is that it should not fall in exceptions mentioned in clause (i) to (iv) if whole service is to count as qualifying service for pension. According to Rule 3.17-A(1)(i) of the Rules, the first exception is that the service rendered in work-charged establishment is not to count as a qualifying service. However, that exception would not survive any longer because Rule 3.17(ii) of the Rules has been struck down as ultra vires of Articles 14 and 16(1) of the Constitution in Kesar Chand’s case (supra). The second exception is provided by Clause (ii) of sub-rule (1) of Rule 3.17-A which deals with service paid from contingencies. However, that has further been subjected to various conditions. The third exception has been provided by Clause (iii), which deals with casual or daily rated service. 15. In all the cases in hand, the employees have rendered before their regularisation more than 10 years service as daily wager on the posts like Mali-cum-Chowkidar, Pump Operator and Fitter etc. A perusal of clause (ii) of sub-rule (1) of Rule 3.17-A of the Rules, which deals with service paid from contingencies, would show that after 1.1.1973 half of the service paid from contingencies would be counted towards pension at the time of absorption in regular employment subject to four conditions, namely, (a) Service paid from contingency should have been in a job involving whole time employment as against part-time or for a portion of the day; 13 L.P.A. No. 189 of 2004 & connected appeals/petitions (b) Service should have been in a type of work or job for which regular post could have been sanctioned e.g. Malis, Chowkidars, Khalasis, etc.; (c) The service should have been one for which the payment is made either on monthly basis or daily rates computed and paid on a monthly basis. It should bear some relation in the matter of pay to those being paid for similar jobs being perform by staff in regular establishment; (d) The service should have been continuous and followed by absorption in regular employment without a break. 16. It has not been disputed that an employee on a casual or daily rate basis is employed and paid by the Government. In none of these cases their service has been part time or seasonal etc. All of them have been rendering service, which are perennial in nature, un-interrupted without any break. In fact, their job is similar to the one being performed by the staff in regular establishment like Mali- cum-Chowkidar, Pump Operator, Fitter etc. These are regular cadres of employees comprising those posts of Malis, Chowkidar, Pump Operator, Fitter etc. All of them have been regularised many years before the judgment rendered by the Constitution Bench in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1, which is prospective in its operation because it was held that cases where order of regularisation had been issued, were not to re- open. Moreover, in most of these cases the procedure, which was prevalent at the time of their induction in service even on daily wage basis, was followed by sending requisition soliciting their names from Employment Exchange. It was only after the due process consistent with Articles 14 and 16(1) of the Constitution 14 L.P.A. No. 189 of 2004 & connected appeals/petitions that they were appointed even on daily wage basis. Therefore, the service rendered by them in substance was against a permanent post and they were being paid salary, which is computed on monthly basis. 17. The question then is what is substantive difference between a ‘work-charged’ employee and a ‘daily rated’ employee, who have rendered 10 years or more than 10 years of service without interruption and which is followed by regularisation. It appears to us that there is no substantive difference between a work-charged and a daily rated employee in the facts and circumstances of these cases. If we examine the facts obtaining in the instant cases then no doubt is left that these employees, who are called daily wage employee, have better legal rights than their counterparts working on work-charged establishment. A work- charged employee, as is commonly understood, work on a project for a limited period and when the work comes to an end, his services would also come to an end. However, a work-charged employee who have rendered long un-interrupted service, which has been followed by regularisation, has been given the benefit of counting his pre-regularisation service for the purposes of pension, as has been held by the Full Bench of this Court in Kesar Chand’s case (supra). Once a work-charged employee is given the benefit of pre-regularisation service then it stands recognised that the nature of his job is perennial in character and the title given to his job as work-charged or for that matter even daily rated employee, would be completely misnomer and would lose its significance. In fact, by using these expressions for an employee, a regime of exploitation 15 L.P.A. No. 189 of 2004 & connected appeals/petitions has been created. It is not unknown that these daily rated employees or work-charged employees are kept on the tender- hooks as against their counterparts working on confirm and regular basis. All these employees live under