C.W.P. No. 13630 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 13630 of 1993 Date of decision: 30.11.2009 Kasturi Lal and others ....Petitioners Versus Punjab State Electricity Board and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. J.S. Maanipur, Advocate, for the petitioners. Ms. Alka Chatrath, Advocate, for the respondents. ***** VINOD K. SHARMA, J (ORAL) The petitioners have invoked the writ jurisdiction of this Court to challenge the order Annexure P-12 dated 29.6.1993, vide which the petitioners were directed to fill up acceptance letters, stipulating therein, that the petitioners would have no objection if they were appointed as peons/chowkidars against available posts in Punjab State Electricity Board as fresh appointees by way of fresh appointment letters. The acceptance letters further stipulated that the employees shall not claim any benefit of any kind for the services rendered by them earlier in the Irrigation Department. Facts of the case are, that the petitioners are the Class IV employees of the Punjab State Electricity Board and posted in MHC Division No. III Talwara Township, Talwara. The petitioners were appointed as Class IV employees by the Executive Engineer between the C.W.P. No. 13630 of 1993 -2- years 1981 and 1988. The dates of joining of the petitioners are mentioned in Annexure P-1. In order to resolve the controversy raised in this writ petition, it would be appropriate to reproduce the terms of letter of appointment Annexure P-2. The appointment letter issued to the petitioners reads as under: - “With reference to your application for employment the employment exchange under Registration No. 3526/77, in this office, you are hereby offered the post of Peon on adhoc basis in the scale of Rs.300-430 P.M. for three months you will be entitled to get other allowances as admissible to the employment of the Board of your category from time to time. 2. It should be clearly understood that the appointment is on adhoc basis and that your services will be terminated without any notice. On the arrival of regular employees even before three months of the offer of appointment is being made to you on the distant understanding that: - i) You are not a dismissed Govt/Board employee or a person convicted of an offence involving moral turpitude. ii) You have not got more than one living wife or you are not married to a woman who has got already a living husband. iii) You should produce medical certificate from Principal Medical Officer Talwara at your own cost. iv) You are not less than 17 years of age and on the date of joining the service of the Board and not more than 35 years. v) If you are at present employed in central/State C.W.P. No. 13630 of 1993 -3- Govt./Semi Govt. autonomous body etc. you will have to resign your present post before you are allowed to join the Board's service. It should be clearly understood that you will be treated an new entrant in the service of the Board for all intents and purposes and you can be posted anywhere in Punjab. 4. If you are prepared to accept the post offered to you the above conditions please signify your acceptance to the Executive Engineer, MHC Division No. III, Talwara. The following particulars concerning yourself should also be supplied at the time of joining of duty. i) All the original certificates in support of your educational qualifications. ii) University Matriculation/Higher Sec./Middle/School leave certificate in support of your date of birth alongwith two spare attested copies thereof. iii) Medical certificate of fitness required as per para 3(iii) above. In case of your being a bonafide member of SC/ST/BC notified by the Govt. certificate from the member of Parliament, MLA/MLC or a gazetted officer (with a seal of Court of State of His office) on the following manner shall be produced by you.” According to the petitioners, this appointment was made in pursuance to the office order No. 313/1(21) FB-79-80 dated 14.1.1980 (Annexure P-3), vide which the officers belonging to PWD and Irrigation Branch engaged in hydel projects financed by the Punjab State Electricity Board were authorised to exercise the powers which were delegated to the Chief Engineers, Superintending Engineers, Executive Engineers and Sub Divisional Officers of the Punjab State Electricity C.W.P. No. 13630 of 1993 -4- Board. Office order Annexure P-3 reads as under: - “The Punjab State Electricity Board is pleased to order that the Chief Engineers, Superintending Engineers, Executive Engineers and Sub Divisional Officers of the Punjab P.W.D. Irrigation Branch engaged on the Hydel Projects financed by the Punjab State Elecy. Board shall exercise the same powers as have been delegated to the Chief Engineers, Superintending Engineers, Executive Engineers and Sub Divisional Officers respectively of the Punjab State Electricity Board engaged on the Projects as contained in the P.S.E.B's Delegation of Powers, as may be amended from time to time.” It is the case of the petitioners, that on completion of hidel projects, petitioners were suddenly asked to fill the acceptance forms in pursuance to the impugned order Annexure P-12 issued by the Chief Engineer/M&MHP, Establishment Section, PSEB, Patiala. The petitioners challenged the impugned order, on the ground that the order Annexure P-12 could not be applied to the case of the petitioners as they were not employees of the Irrigation Department or PWD Department, but were appointed as employees of the Board, by the officer who was delegated powers in pursuance to office order Annexure P-3, reproduced above. The contention of the learned counsel for the petitioners is, that not only the petitioners were appointed as employees of the board, their seniority was also maintained with other employees of the board, who were posted at other places. Notice of the writ petition was issued, the rights of the C.W.P. No. 13630 of 1993 -5- petitioners were protected by ordering that the acceptance letters filled in by the petitioners, shall be subject to final decision of writ petition. Writ petition is contested by the respondents, wherein a plea has been taken that the petitioners were, in fact, employees of the Irrigation Department, as they were appointed by the Executive Engineer, who belonged to Irrigation Department, and was not employee of the Board. No fault, therefore, can be found with the order Annexure P-12, as it is for the benefit of the employees, who have been declared surplus. It is also the contention of the learned counsel for the respondents, that it was always open to the petitioners to accept or not accept the offer as they had no right to continue on the job after they were declared surplus on completion of the hydel projects. The learned counsel for the respondents also contended, that the appointment of the petitioners could not be said to be with the board in view of the circular issued by the Punjab State Electricity Board, imposing ban on appointment of regular/work charge in the board. The learned counsel for the respondents placed reliance on the Hon'ble Division Bench judgment of this Court in State of Punjab and others Vs. Mehanga Ram and others, 1989(2) Services Law Reporter 56, to contend that in view of the decision of the Hon'ble Division Bench of this Court, the petitioners were required to be treated as fresh appointees, from the year 1993 when they were appointed in the board. The Hon'ble Division Bench in State of Punjab and others Vs. Mehanga Ram and others (supra) was pleased to lay down as under: “We do not find that the Minutes of the meeting held on C.W.P. No. 13630 of 1993 -6- December 17, 1974 and the communications addressed by the Chief Engineer to the Superintending Engineer are in the nature of executive instructions falling within the ambit of Article 162 of the Constitution and this no writ of mandamus can be issued to the State. No right accrues to the writ petitioners to enforce it. Since the entire case of the writ petitioners hinges upon the alleged policy decision and on the communications addressed by the Chief Engineer to the Superintending Engineers and this having been held by us to be not justiciable, the writ petitioners' case must fail. They have no right much less legal right for the enforcement of which they can maintain these writ petitions. Following the decision, we direct the respondents to take the retrenched employees in other projects or in service of the Government according to the qualification of each of the employees and their fitness. Such absorption of the retrenched employees shall be done within a period of six months from this day. If any relaxation of the age limit is necessary, that shall also have to be done before appointments. The retrenched employees also will be entitled to take into account the service rendered in the Anandpur Sahib Hydel Project in case they are appointed in pensionable jobs for the purpose of pension and other retirement benefits. However, it is made clear that any appointment made under this order shall be treated as new appointment for the purpose of seniority among the employees. This relief given is also without prejudice to the retrenchment and any other compensation, they may be entitled to under the provisions of the Industrial Disputes Act, 1947.” On consideration, I find force in the contentions raised by the learned counsel for the petitioners. Reading of the appointment letter C.W.P. No. 13630 of 1993 -7- Annexures P-1 and P-2 would show that the petitioners were appointed as employees of the board by the Executive Engineer, who was vested with such powers in pursuance to Order Annexure P-3. The ban imposed by the Electricity Board also did not come in they way as the petitioners admittedly were not appointed either on work charge or regular basis, but were appointed on the terms and conditions stipulated in the letter of appointment. Once the petitioners were appointed by the board on the terms and conditions contained in Annexure P-2, it was wrong on the part of the respondents to claim that the petitioners were, in fact, employees of the State Government, who were declared surplus and, therefore, were required to be offered fresh appointments. If the matter is considered in depth, it would be noticed that the petitioners can have no objection to order Annexure P-12, as it relates to the employees who were State Government employees, and were declared surplus and not to the board employees, whether appointed on ad hoc or temporary basis. The board was to deal with its employees in accordance with law. The petitioners, therefore, cannot be asked to submit option in pursuance to the order Annexure P-12 by treating them to be Government employees. The contention of the learned counsel for the respondents that Executive Engineer, of Irrigation Department, had appointed the petitioners, therefore, they are to be treated as the employees of the Irrigation Department, on the face of it is mis-conceived. The order of appointment clearly shows that the petitioners were appointed as board employees and their services were also ordered to be governed by the C.W.P. No. 13630 of 1993 -8- board rules and regulations and not that of Government. The appointment by Executive Engineer of Irrigation Department was justified in view of the order Annexure P-3, as specific order was passed by the board giving powers of the officers of the board to the officers posted to the hydel projects. The project was being financed by the PSEB. The petitioners throughout had been paid by the Punjab State Electricity Board, therefore, it cannot be said that petitioners were employees of the State Government, to ask them to give option of fresh appointment. The judgment of the Hon'ble Division Bench of this Court in State of Punjab and others Vs. Mehanga Ram and others (supra) also has no application to the case, as the petitioners were not surplus employees of State Government. This writ petition is accordingly allowed. The letter of option given to the petitioners to opt for fresh appointment is ordered to be quashed. No costs. (Vinod K. Sharma) Judge November 30, 2009 R.S.