IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15725-CAT of 2007 Date of Decision: June 13, 2011 Chandigarh Administration ...Petitioner Versus Urmil Kanta and others ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MR JUSTICE T.P.S. MANN Present: Mr. P.K. Mutneja, Advocate, with Mr. Vishal Sodhi, Advocate, and Mr. Rohit Kumar, Advocate, for the petitioner. Mr. Amit Chopra, Advocate, for respondent No. 1. Mr. Sanjiv Ghai, Advocate, for respondent No. 3. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The short question involved in the instant petition, filed under Article 226 of the Constitution, is whether the widow of a work charged employee could claim family pension and other pensionary benefits as well as compassionate appointment on account of death of her husband in harness. The Chandigarh Administration- petitioner has challenged order dated 17.10.2006 (P-1) passed by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') allowing the original applications filed by the applicant-respondent No. 1 and directing it to settle her claim for family pension and other retiral benefits. They have been further C.W.P. No. 15725-CAT of 2007 directed to consider her case for compassionate appointment against any available vacancy under 5% quota meant for the purpose. 2. Brief facts of the case are that Shri Devinder Kumar, husband of the applicant-respondent No. 1 was appointed as a Fitter on daily wage basis through Employment Exchange after interview which was held on 25.9.1984 (A-1). On 12.4.1985 (A-2) an appointment letter was issued. He was offered the post of Fitter on purely temporary/work charged basis upto 28.2.1986 in the pay scale of `400-600. As per condition No. 1 of the appointment order he was to be governed by paras 10 and 11 of the Central Public Works Department Code (Revised Edition) 1959 (for brevity, 'CPWD Code') and Section 25-F of the Industrial Disputes Act, 1997 (A-2). On 15.4.1985, he was directed to undergo medical examination for first entry into Government service (A-3). Accordingly he joined. In the year 1996, he was transferred to the Municipal Corporation, Chandigarh. On 17.12.1999, a Government accommodation bearing House No. 6A, Type-II, W/Works, Sector 39, Chandigarh, out of the Chandigarh Pool, was also allotted in his favour (A-5). In pursuance of an order dated 9.11.2002 passed by the Tribunal in OA No. 488/CH/1996, which was upheld by this Court on 11.4.2002, the petitioner-Chandigarh Administration granted an opportunity to the husband of the applicant-respondent No. 1 to exercise fresh option for permanent transfer and absorption in the Municipal Corporation, Chandigarh, vide letter dated 4.7.2003 (A-6). 3. Unfortunately, on 10.11.2004, Shri Devinder Kumar expired in harness (A-7). Thereafter, the applicant-respondent No. 1 applied for grant of family pension, gratuity and other pensionary benefits. She also sought compassionate appointment as per 2 C.W.P. No. 15725-CAT of 2007 instructions dated 9.10.1998 issued by the Government of India. Her request for compassionate appointment was rejected vide order dated 27.1.2005. On 29.7.2005, her claim for grant of pensionary benefits was also rejected on the ground that purely work charged employee is not eligible for pensionary benefits. 4. Against the aforesaid orders dated 27.1.2005 and 29.7.2005, the applicant-respondent No. 1 filed two separate original applications before the Tribunal claiming that her husband was working on regular basis and was entitled to all the benefits as are admissible to regular employees. In support of this submission, she has placed reliance on the fact of allotment of Government accommodation which is allotted only to an employee working on regular basis provided he is eligible officer of the Government of Punjab, Government of Haryana, Chandigarh Administration or of Punjab and Haryana High Court. However, the petitioner- Chandigarh Administration contested the original applications and specifically stated that the husband of the applicant-respondent No. 1 was not appointed on regular basis and his services were never regularised. It was also stated before the Tribunal that the employees who continue to discharge their duties on work charge basis and never brought on regular establishment are not entitled to pensionary benefits. Only the work charge service preceding the date of regularisation could be counted towards qualifying service for grant of pension. With regard to allotment of Government accommodation to the husband of the applicant-respondent No. 1 it was pointed out that the same was wrongly allotted and merely allotment of Government accommodation does not mean that her husband was a regular employee. 5. After extracting the observations made by a Division 3 C.W.P. No. 15725-CAT of 2007 Bench of this Court in the case of Arsan and others v. Union of India and others (CWP No. 17193 of 1997, decided on 10.8.2001, Annexure A-4), the Tribunal treated the husband of the applicant- respondent No. 1 as a regular employee of the Chandigarh Administration and allowed the original application. The observations which are germane to the issue have been made by the Tribunal in paras 11 to 14, which read thus: "11. After perusal of judgment in the case of Arsan (supra), I find that the facts of that case are almost similar to the facts of the present case. Like the applicants in the case of Arsan, the husband of the applicant was also a work charged fitter in regular scale of Rs. 400-600 since 1985. Though his services were also transferred along with other employees to Municipal Corporation, Chandigarh (Respondent No. 4) in the year 1996, yet, he continued to be the employee of the Chandigarh Administration which is evident from Annexure A-5, vide which he was allotted Govt. accommodation by Chandigarh Administration in the year 1999. The Hon'ble High Court has held in the case of Arsan (Supra), that the transfer of service of the petitioners to Respondent No. 4 (Municipal Corporation, Chandigarh) is void abinitio and the same cannot adversely affect their right to be brought on work charged establishment of Chandigarh Administration and the respondents were directed to give to one of the petitioners pensionary benefits keeping in view the revised fixation of his pay. Thus, the applicant also deserves to get the relief to that extent as her husband 4 C.W.P. No. 15725-CAT of 2007 has too rendered almost twenty year's service in the Department concerned as work-charged employee. 12. So far as claim of the applicant for offering her appointment on compassionate grounds is concerned, I have perused Govt. of India instructions dated 9.10.1998 (Annexure A-8) and find that spouse or son/daughter etc. of a regular Govt. servant including confirmed work charged staff who dies while in service, can be given compassionate appointment. The respondents have also not filed satisfactory reply as to why her claim has been rejected while passing non-speaking order (A-9), thus, the same is held to be not sustainable. 13. Thus, for the foregoing reasons, keeping in view that the husband of the applicant had rendered almost 20 years of service on the post of Fitter as work- charge in the Respondent Department, I am of the considered view that applicant is entitled to payment of pensionary benefits as well as for consideration of her case for appointment on compassionate grounds while quashing impugned order dated 31.12.04 of rejection of her case, not supported with reasons. 14. In view of what has been said and discussed above, Respondents No. 2 and 3 are hereby directed to settle the claim of the applicant for family pension and other retiral benefits as permissible under the rules. No orders are required to be passed for payment of interest as the same is neither directed to be paid in Arsan's case (supra) nor has the applicant prayed for the same in the O.A. They are further directed to consider the case of the 5 C.W.P. No. 15725-CAT of 2007 applicant for compassionate appointment against any available vacancy under 5% quota meant for the purpose of sending it to the Common Committee and pass a reasoned and speaking order duly communicated to her. The respondents shall comply with the above directions within a period of three months from the date of receipt/production of copy of this order." 6. Mr. P.K. Mutneja, learned counsel for the petitioner has vehemently argued that the Family Pension Scheme was applicable only to regular employees and not to ad hoc or employees of work charge establishment and, therefore, the widows of ad hoc or employees of work-charge establishment would not be entitled to family pension and the Tribunal has committed grave error in law by granting the relief to the original applicant-respondent. In support of his submission, learned counsel has placed reliance on the judgments of Hon'ble the Supreme Court rendered in the cases of State of Haryana v. Shakuntala Devi, (2008) 15 SCC 380; General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, (2009) 7 SCC 205; and Punjab State Electricity Board v. Jagjiwan Ram, (2009) 3 SCC 661. 7. Mr. Amit Chopra, learned counsel for the original applicant-respondent has, however, submitted that for all intents and purposes the husband of the original applicant-respondent Urmil Kanta was a regular employee and even the petitioner have always treated him to be so. According to the learned counsel he was appointed through Employment Exchange as a Fitter in the year 1984, as is evident from the perusal of letter dated 13.12.1984 (A- 1). It was the prevalent practice for making regular recruitment at that time and the requisition used to be sent to Employment 6 C.W.P. No. 15725-CAT of 2007 Exchange for recommending the names of suitable candidates. According to the learned counsel, his services were merely given the name of work-charged service, which is equivalent to a regular appointment, as has been held in Arsan's case (supra). Mr. Chopra has maintained that there is clear cut reflection on the part of the petitioner to treat the husband of the original applicant-respondent as regular because Government accommodation was allotted to him and even his option was asked to go to the Municipal Corporation. 8. Mr. Chopra, learned counsel for the original applicant- respondent has further submitted that the appointment of her husband was made in the year 1984 and his services were governed by the CPWD Code as well as the C.P.W.D. Manual, Volume-III (Work Charged Establishment), 1984 Edition (for brevity, 'CPWD Manual'), which has been published under the authority of the Director General of Works, C.P.W.D., New Delhi. His specific reliance is on para 24.04 under the heading 'Pension and Gratuity (under the Liberalised Pension Rules of 1950). Accordingly, it has been argued that the original applicant-respondent would be entitled to family pension admissible under the Liberalised Pension Rules, 1950. 9. Having heard learned counsel for the parties at some length we are of the considered view that this petition is liable to be dismissed. It has come on record that the husband of the original applicant-respondent was appointed on the post of Fitter through Employment Exchange after he was duly interviewed on 25.9.1984 (A-1). It hardly makes any significant difference if he was given the nomenclature of work-charged. Thereafter an appointment letter was issued on 12.4.1985 (A-2), clarifying that his services were to be governed by paras 10 and 11 of the CPWD Code and the provisions of Section 25-F of the Industrial Disputes Act, 1947. It 7 C.W.P. No. 15725-CAT of 2007 would be profitable to read the contents of the appointment letter dated 12.4.1985, which reads as under:- "To Davinder Kumar S/o Sh. Raj Kumar C/o SDE, W/S Sub Divn. No. 7 (mtc) Chandigarh. Memo No. PH5/85/3301 Dated: Chandigarh the, 12.4.85 Subject: Establishment work charged. You are hereby offered an post of Fitter in purely temporary/work charged basis upto 28.2.1986 in the pay scale of Rs. 400-600 at a initial start of Rs. 400 plus usual allowances as sanctioned by the Chandigarh Administration from time to time, chargeable to the work of Mtc. of W/Supply subject to the following terms and conditions:- 1. You will be governed by rules 10 and 11 of the CPWD Code revised edition in 1959 and provision of section 25(F) of Industrial Disputes Act, 1997. 2. If you have to resign the post, you will have to give one months notice in writing to the Department, if you intend to do so, or forfeit one months pay in lieu thereof. 3. You are declared medically fit for appointment in Govt. service by the competent medical authority prescribed by the Govt. 4. Your character and antecedents are certified to be good. 8 C.W.P. No. 15725-CAT of 2007 5. You will have to take an oath of alegiance to the Indian Republic. 6. In case, you are married, you have only one living wife. 7. T.A. will be given to you joining this appointment. If you are willing to accept this offer, you are requested to report for duty to the Sub Divisional Engineer immediately but not later than 22.4.1985. Sd/- Executive Engineer, Project P.H. Divn. 5, Chandigarh." 10. A perusal of the aforesaid letter would show that the service conditions of the husband of the original applicant- respondent were to be governed by paras 10 and 11 of the CPWD Code and that he was appointed on purely temporary/work-charged basis. According to the view expressed by Hon'ble the Supreme Court in Shakuntala Devi's case (supra) the conditions of service of a temporary government servant may either be regulated by the stipulations incorporated in the offer of appointment and/or under the rules operating in the field. In para 4 of the judgment following observations, which are germane to the controversy raised in the instant petition, have been made: "4. Temporary servants may be appointed by the State for satisfying the needs of a particular contingency. Con- ditions of service of the temporary servants may be regu- lated either by laying down the conditions therefore in the offer of appointment and/or the rules operating in the 9 C.W.P. No. 15725-CAT of 2007 field. If an appointment, it is trite, is made to a tempo- rary post, there can be no permanent appointment therein. He would be deemed to be in temporary service only. Even where a temporary post is made permanent, the same by itself does not render the employment per- manent and, thus, temporary employee continues to re- main on temporary service. Until a declaration is made under the relevant rules, he cannot be deemed to be in a quasi permanent service or absorbed permanently in Government service. [See Arundhati Ajit Pargaonkar (Dr.) v. State of Maharashtra, 1994 Supp (3) SCC 380]" (em- phasis added) 11. It has also remained undisputed that he continued on the aforesaid post after he had undergone medical examination prescribed for first entry into government service. He joined his services in the year 1984. The petitioner-Chandigarh Administration also allotted him official accommodation. He was also given an option for permanent transfer and absorption in the Municipal Corporation on 4.7.2003 (A-6). However, he expired on 10.11.2004 (A-7). The aforesaid narration would show that all the attributes for appointment on regular basis have been fulfilled by him. It also satisfies the test of Article 14 and 16(1) of the Constitution because by no stretch of imagination it could be regarded as backdoor entry. 12. It is settled principle of law that nomenclature of an appointment would not deprive an employee his legitimate dues if he otherwise fulfills the mandatory requirement of Articles 14 and 16(1) of the Constitution. In the case of Direct Recruit Class-II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, Hon'ble the Supreme Court has declared the law relating 10 C.W.P. No. 15725-CAT of 2007 to reckoning officiating service in computing seniority in the following propositions: "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop- gap arrangement, the officiation in such post can- not be taken into account for considering the sen- iority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the ap- pointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." 13. Propositions (A) and (B) extracted from the Direct Re- cruits case (supra) discloses an attempt on the part of a five-Judge Bench of Hon'ble the Supreme Court to reconcile the apparent in- consistencies in the earlier judgments of the Court and seeks to en- capsulate in clear and specific terms the rules for taking into ac- count the officiating services in computing the length of service. A cursory look at the decisions prior to the Direct Recruits case will elucidate the position. 14. Accordingly, it is crystal clear that the conditions of serv- ice of the husband of the original applicant-respondent would be governed by paras 10 and 11 of the CPWD Code, which has been in- corporated in his letter of appointment. These are averments made 11 C.W.P. No. 15725-CAT of 2007 by the petitioner in para 4 of the writ petition. Once CPWD Code is applicable then there is no doubt left that the provisions of CPWD Manual would also be applicable. 15. It is further pertinent to mention that the CPWD Manual- III (Work Charged Manual) makes a specific provision for pension and gratuity under the Liberalised Pension Rules, 1950, which have been made applicable to the work-charged staff who retired/expired on or after 18.11.1960. The following para of the CPWD Manual is germane to the controversy raised: "24.04 Pension & Gratuity (Old Pension Rules) xxx xxx xxx Pension & gratuity (under the liberalised pension Rules of 1950) The liberalised pension Rules of 1950 (with limited benefits of Family Pension) were made applicable to the workcharged staff who retired/died on or after 18.11.1960. The workers who were permanent at that time were given option to effect the Liberalised Pension Rules or to retain the old Pension Rules. The temporary employees who were in service on 18.11.60 were also given option to elect the Liberalised Pension Rules or to retain Contributory Provident Fund benefits at the time of their confirmation. However, if no option was exercised with in 6 months, the workers were deemed to have opted for Libralised Pension Rules 1950. Workers ap- pointed in service on or after 18.11.1960 were to be gov- erned by the Liberalised Pension Rules after their confir- mation automatically." 16. A bare reading of the aforesaid para would show that the 12 C.W.P. No. 15725-CAT of 2007 Liberalised Pension Rules, 1950, with benefits of family pension have been made applicable to the work-charged staff. If such provision has been made for temporary/work-charged staff in the CPWD Manual then there is no embargo on the part of the petitioner to consider the case of the widows of its employees for grant of family pension as well as appointment on compassionate basis. Therefore, the view taken by the Tribunal has to be accepted although for different reasons. 17. We are not impressed with the argument raised by Mr. P.K. Mutneja, learned counsel for the petitioner when he submitted that the Punjab Civil Services Rules have been made applicable vide notification dated 13.1.1992 and, therefore, Family Pension Scheme, 1964 would be applicable. In the case of Shakuntala Devi (supra), on which reliance has been placed, it was clearly pointed out in para 28 that there was no material placed on record to show that the equality clause enshrined under Articles 14 and 16 had been complied with while making recruitment to service whereas in the present case the material on record would suggest that the appointment of the husband of the original applicant-respondent was made after considering the competing claims of other candidates and it was not a backdoor entry. In Shakuntala Devi's case (supra), Hon'ble the Supreme Court was considering the case of an ad hoc employee who appears to have entered into service without following the procedure satisfying the requirement of Articles 14 and 16(1) of the Constitution. Therefore, we find that the judgments in Shakuntala Devi's case (supra) or in the cases of Laxmi Devi (supra) and jagjiwan Ram (supra) have no application to the case in hand. Moreover, in the present case the service conditions were regulated by paras 10 and 11 of the CPWD Code as 13 C.W.P. No. 15725-CAT of 2007 noticed above. Accordingly, we have no hesitation to reject the submissions made by learned counsel for the petitioner. 18. As a sequel to the above discussion, this petition fails and the same is accordingly dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) June 13, 2011 JUDGE Pkapoor 14