C.W.P. No.4394 of 1989 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.4394 of 1989 Date of Decision. 15.09.2011 Shri Ram Kishan Singh s/o Sh. Jamait Singh, resident of G-35, Bhakra Beas Management Board, Nangal Township, District Ropar .....Petitioner Versus State of Punjab through its Commissioner and Secretary, Irrigation and Power Department, Chandigarh and others .....Respondents Present: Mr. S.P. Thukral, Advocate for the petitioner. Ms. Anu Paul, AAG, Punjab for respondent Nos.1 and 2. None for respondent Nos.3 and 4. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. 1. The petitioner had been working in the Irrigation Works of Punjab since the year 1952 and assigned to the project at Nangal as a work-charged employee and the execution of the civil work at Bhakra Nangal Project. The petitioner's claim is on the basis that after the formation of new States of Punjab, Himachal Pradesh and Haryana as per the provisions of Punjab Reorganization Act, 1966, the petitioner's services had been placed under the disposal of Bhakra Beas Management Board (BBMB). But he had not been allocated specifically to the services of Punjab as he was entitled to. At the time of filing of the petition, admittedly the petitioner was working in Mechanical Sub Division at the C.W.P. No.4394 of 1989 -2- Nangal Workshop under the control of BBMB. 2. The grievance of the petitioner is that respondent Nos.3 and 4, which is BBMB, through its Chairman and the Chief Engineer respectively have recruited several other work-charged employees for execution of civil works and after the completion of the works, they had also allocated services to the partner States namely in the State of Punjab, Haryana, PSEB, HSEB etc but the petitioner had not been repatriated as an employee under the Punjab Government in spite of numerous representations and thus deprived of the State's benefits which had been made available to his counter-parts, whose services had been allocated to the State of Punjab. The matter appears to have been taken up at different levels and the petitioner refers to certain deliberations where demands of several persons were being considered but still a decision was not forthcoming. The petitioner would make pointed reference to Section 82(1) of Punjab Reorganization Act, 1966 that provided for allocation to the State in which the person was previously working with the affairs of that particular State and Section 83, which declare that every person who immediately before the appointed day was holding any duty in connection with the affairs of the particular State shall continue to hold the same post in the successor State. The writ petition came to be filed on 27.03.1989 seeking for the relief that he should be directed to be allocated to the services to the State of Punjab. The written statement has been filed by both respondent Nos.1 and 2 on the one hand and respondent Nos.3 and 4 on the other. The State would contend that the applicable provisions should be Section 79(1) read with Section 75 of the Punjab Reorganization Act, 1966 that declared that the BBMB might C.W.P. No.4394 of 1989 -3- employ such staff as it considered necessary for the efficient discharge of its functions. The work-charged employees engaged on temporary basis were required to be terminated by the very nature of their work and completion of the work and they do not constitute any cadre in the Punjab Government to be reabsorbed in the Government. The pay and allowances were themselves chargeable to the estimated cost of work and the entire work-charged employees were taken over by the BBMB on 01.11.1966 in view of Section 79(1) & (4) of the Punjab Reorganization Act. The petitioner, therefore, became the employee of BBMB only and he cannot be treated as the employee of the State of Punjab. BBMB has also filed the reply making reference to the fact that governing provisions will be Section 79 and 75 of the State Reorganization Act, 1966 and they could not have been allocated to the successor State. Para IX of the Act contained provisions for All India Services and State Services and the Work-Charged workmen itself did not constitute a cadre of services defined under Part IX. 3. The other contention also is that the petition is grossly delayed in that the State Reorganization that came about in the year 1966 would not admit of claim by a person in the year 1989 for allocation to the State of Punjab. 4. The claim in the writ petition is clearly mis-conceived. A Work- Charged employee cannot treatment himself to be in the State cadre to be allocated to the participant State. Provisions of Section 81 or 82 cannot apply as canvassed by the petitioner. I find that the governing provisions shall only be Section 79 and 75 as pointed out by the respondents in reply. Learned counsel for the petitioner has relied on C.W.P. No.4394 of 1989 -4- several decisions referred to the situations when Section 82 and 83 of the Punjab Reorganization Act were applied. The decisions underscore the legal position that persons, who had been engaged in the construction work in the Bhakra Nangal before the Act would not be treated in foreign service or on deputation. The position is well established but none of the decisions which the learned counsel relies refers to a situation of a Work- Charged employee claiming a right of allocation to State. The Government employees engaged in the construction work in BBMB immediately before the Act could claim to be allocated to the State in reorganization but a work-charged employee is not entitled to such a status for it is only to cover the situation that the Act itself provided specific instances where employees could be absorbed in BBMB itself. However, in Gulzar Singh and others Vs. State of Punjab and others 1988(3) SLR 249, this Court was considering the case of persons, who were work-charted employees working on Sukhna Choe Dam at Chandigarh under the control of the Punjab Government. Sukhna Choe Dam itself was transferred to the control of U.T., Chandigarh subsequent upon the reorganization of the State of Punjab. The petitioner continued working there for 11 years before they were reverted to the State of Punjab. The Government decided to regularize the work-charged employees, who had completed 5 years of service. Petitioners had not been regularized by the State of Punjab on the plea that they stood absorbed in U.T., Chandigarh where they continued to work after reorganization and was held by this Court that it had no consequence to their eligibility and entitlement to the befits of regularization. The Bench was considering the situation of a particular scheme relating to regularization of services on the completion C.W.P. No.4394 of 1989 -5- of the period of 5 years and how the non-absorption by the State of Punjab as giving right to the petitioner to demand such a course. The High Court was not considering the effect of Section 75 and 79. I cannot, therefore, derive any benefit for the petitioner that he was entitled to be allocated to the State of Punjab. 5. The more fundamental objection is seen from the context of how the petitioner has approached this Court nearly 23 years after the alleged cause of action had occurred to him. Learned counsel appearing for the State relies on the judgment in Ghulam Rasool Lone Vs. State of Jammu and Kashmir and another (2009) 15 SCC 321 that held that a writ petitioner delaying his claim by sitting and watching others/juniors claiming such reliefs and getting them, cannot have the benefit of intervention under Article 226. The Hon'ble Supreme Court was laying down the law in the context of a person claiming a promotion on the basis of parity complaining that other persons had been granted such promotion and denied the same to the petitioner. In terms of Articles 14 and 16 while the precept of equality was firmly unchanged, the remedy under Article 226 itself is a discretionary one. A person, who claims equality must enforce his right within reasonable time and the discretionary jurisdiction could be denied on the ground of delay and laches. A person claiming parity in promotion citing the instances of a promotion granted to yet another person address the situation of one person getting the promotion in the year 1987 and yet another person approaching the court in the year 1997 for the relief. The delay of 10 years was found to be a justifying circumstance in denying to such a person the relief. In this case, there is no mitigating circumstance that can explain the delay. The C.W.P. No.4394 of 1989 -6- petitioner, who has literally served the major portion of his career after his absorption in BBMB cannot be heard to say that he should be reallocated to the services of the State of Punjab. 6. The petitioner is not, therefore, entitled to the reliefs as sought for and hence, the writ petition is dismissed. (K. KANNAN) JUDGE September 15, 2011 Pankaj*