Haryana Bijli Vitran Nigam & Ors. Vs. Bachan Singh  INSC 1331 (30
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4903 OF
2009 (Arising out of SLP (Civil) No.23708 of 2005) Dakshin Haryana Bijli Vitran
Nigam & Others .. Appellants Versus Bachan Singh ..Respondent WITH CIVIL
APPEAL Nos.__4904-4913_______OF 2009 arising out of SLP (C) Nos.5787, 7284,
8267, 8986, 10462, 12856, 12354, 17243, 16411, 16580 OF 2006, CIVIL APPEAL
Nos.4914-4937___OF 2009 arising out of SLP (c) Nos.1241, 1786, 3882, 3194,
3680, 3710, 4879, 4075, 6863, 7003, 9388, 8236, 7502, 7572, 7606, 7614, 8235,
12454, 12253, 19184, 18120 19301, 7930 & 24583 OF 2007, CIVIL APPEAL
Nos.4938-4941__OF 2009 arising out of SLP (c) Nos.14935, 17910, 27760 &
20584 of 2008 AND CIVIL APPEAL Nos._4942-4944___OF 2009 (Arising out of SLP (c)
Nos.3766, 3889 & 6240 of 2009.
Leave granted in all the special leave petitions.
These appeals are directed against the judgments and orders of the
High Court of Punjab and Haryana at Chandigarh.
Basic controversy involved in all these appeals is of similar
nature. Therefore, we deem it appropriate to recapitulate the facts
incorporated in Civil Appeal No.__________ of 2009 arising out of SLP (Civil)
No.23708 of 2005 filed against the impugned judgment delivered by the High
Court of Punjab & Haryana in Civil Writ Petition No.3729 of 2004 on dated
The respondents herein has joined the services of the appellant as
Laboratory Attendant in work-charge capacity on 16.5.1963 and continued to
perform his duties on work-charge basis on different posts until he was
regularized as Head Mistry w.e.f. 14.10.1981. The respondent was a member of
the Employees Provident Fund Scheme (for short `EPF Scheme'). During the period
he remained a work-charge employee, the respondent had attained the age of
superannuation and retired from the service on 28.2.2001. The appellants
computed respondent's pensionary benefits by taking into account only the
services rendered by him on regular basis and he was denied benefits of the services
rendered by him w.e.f. 16.5.1963 to 13.10.1981 on work- charge basis.
The appellants had issued instructions dated 6.8.1993 for the
grant of benefit of work-charge service towards pensionary benefits. The said
letter of 6.8.1993 is reproduced as under:- "From :
Additional Secretary, Haryana State Electricity Board (HSEB), Panchkula Memo
No. Ch.9/Pen/G-G-43(93) Dated 6.8.93 Sub: Amendment in the Punjab CSR
Vol.II-Adoption of State Govt. Notification The Haryana State Electricity Board
in its meeting held on 23.6.1993 has approved the adoption of Haryana Govt.
Notification No.1/2 (55)-88-2 FR-II dated 4.2.92 (copy enclosed for ready
reference) with regard to the counting of service rendered by the workers in
the work charged capacity towards pensionary benefit scheme.
However, most of the Board's workcharged employees are members of Employees
Provident Fund (EPF). As such, the pensionary benefit would be subject to the
following conditions:- i) On regularization from workcharged to regular
employee, the employee has to submit an option within a period of 3 months from
the date of regularization or from the date of issue of this circular,
whichever is later as to whether he/she intends to count the period of
workcharged service rendered by him/her towards pensionary benefits or intends
to continue to be a member of EPF. The option is required to be furnished in
writing to his drawing & Disbursing Officer who will authenticate and
record its entry in the service book of the employee and also paste the same in
the service book so as to form a permanent record for future reference. The
Drawing & Disbursing Officer will also inform about his/her option to the
appointing authority immediately.
option once exercised will be final and not to be allowed to be changed in any
circumstances. In case option is not given within the stipulated period of
three months, it will be presumed that he/she intends to continue to be a
member of EPF.
case, he/she opts for pensionary benefits, he/she has to refund the entire
amount of employee's contribution along with interest thereon, towards their
EPF in lumpsum for crediting to the Board's account, Employee's contribution
alongwith interest is to be deposited with the Board for crediting to his/her
Similarly, the above benefit will also be available to the
pensioners/recipients of family pension of the Board on the same terms and
conditions with the exception that they will have to deposit the amount
contributed by the Board as Employee's contribution towards EPF alongwith
interest thereon, in lumpsum. The pensioners/recipients of family pension will
have to give an Affidavit to the fact that he/she will not claim any interest
on the arrear of pensionary benefits which become payable due to adoption of
the State Govt.
The pensioners/recipient of family pension will submit their option within 3
months from the date of issue of this circular, for availing pensionary
benefits, to the Head of the office last attended. The option once exercised
will be final. In case, option is not given within the stipulated period of 3
months, it will be presumed that he/she intends to continue to be a member of
instructions may please be got noted from all the employees and acknowledge and
receipt of the letter.
Under Secretary (PW) For Additional Secretary, HSEB, Panchkula"
The work-charge employees were given three months time to submit
an option to the appellants. The appellants issued another circular dated 9.8.1994
allowing the said employees who could not exercise their option in response to
the circular dated 6.8.1993 to opt for pensionary benefits. Circular dated
9.8.1994 reads as under:- HARYANA STATE ELECTRICITY BOARD "From :
Additional Secretary, Haryana State Electricity Board (HSEB), Panchkula Memo
No. Ch.30/Pen/G-43(93) Dated 9.8.94 Sub: Amendment in the Punjab CSR Vol.II
regarding counting of workcharged service towards pensionary benefits -
Haryana State Electricity Board in its meeting held on 23.6.1993 had approved
the adoption of Haryana Govt. Notification No.1/2(55)-86-2 FR-II dated 4.2.92
and the same was circulated vide Board's Memo No.
issue of above Board's circular following issues/queries were raised by the
different field officers/officials effected/Workers Unions. The issues/queries
were considered by the Executive meeting held on 27.7.94 and necessary
clarifications have been approved as under:- 6 a) The time limit of three That
a period of three months fixed by the Board months from the date of for
submitting the option issue of the clarification expired on 5.11.93. There may
be allowed to is a demand for the exercise option for extension of time limit
for availing the pensionary exercising the option. benefits to those who could
not avail this opportunity earlier.
is an ambiguity That the workcharged as to whether such employees who were in
employees who after service of the Board as regularization of their regular
employee on services continued to be the 9.1.74 (i.e. the deemed member of EPF
scheme are date of adoption of covered under the circular circular) or got or
not. regularization thereafter, could exercise their option for availing the
pensionary benefits by counting of their work-charged service even if they
continued to be the member of EPF after issue of the Board's instructions dt.
6.8.93, if they exercise the option to join the pension scheme.
c) A point
has been raised That the interest in that what will be rate of such like cases
would interest payable by the be payable from the date employees/ pensioners/
of option for pensionary family pensioners to refund benefits to the date of
the amount of EPF and the actual refund of the period for which the
employer's/employeee's interest is to be charged. contribution alongwith the
interest thereon to the Board. The rate of interst would be the same which is
applicable for GPF subscription.
7 d) A
question has been That the Board has raised as to whether the adopted the
Haryana total workcharged service is Government Notification to be reckoned
towards dated 4.2.92 w.e.f. pensionary benefits in 9.1.74 as provided terms of
para `g' of the therein. Therefore, the Haryana Government total workcharged
notification dt.4.2.92 from service of all those 9.1.74. employees would be
countable towards pensionary benefits who were in service of the Board as
regular employee on 9.1.74 or got regularization thereafter.
is demand from That employer's/ the Workers Union that the employee's
contribution recovery of EPF amount alongwith interest alongwith the interest
thereon may be should be made in refunded to the Board in instalments instead
of suitable instalments at lumpsum on the pattern of the employee's option
BBMB. within his remaming period of service, subject to maximum of 24 monthly
instalments. In case of those, who have already retired the employee's
contribution alongwith interest thereon will be refunded to the Board in
instructions may please be got noted from all the employees and acknowledge the
receipt of the letter.
Additional Secretary Haryana State Electricity Board Panchkula"
The only condition for opting the pensionary benefits was that the
concerned employee would refund the amount of employer's share received by
him/her under the EPF Scheme along with interest accrued thereon.
It was pleased by the respondent that he had no knowledge about
the aforesaid instructions issued by the appellants nor were the same got noted
from him and as such, he could not exercise his option for grant of pensionary
benefits within the prescribed time-limit.
The respondent submitted that immediately after acquiring the
knowledge of the circular he exercised his option for being governed under the
pension scheme on 20.12.1994. The respondent submitted that he was ready to
deposit the requisite amount received by him under the EPF Scheme. The
appellants did not give any response and after the retirement of the respondent
calculated his pension and other retiral benefits with effect from the date of
his regularization i.e. 14.10.1981.
respondent issued reminders dated 2.9.2002 and 16.4.2003, but did not receive
any response from the 9 appellants. Ultimately, the respondent issued a legal
notice to the appellants on 10.11.2003 calling upon the appellants to consider
his pension case in the light of the instructions issued in the circulars of
the appellants dated 6.8.1993 and 9.8.1994. Since no response was received by
the respondent, therefore, he was compelled to file a writ petition before the
Punjab and Haryana High Court.
The appellants' main plank of argument was that the said circulars
were issued twice inviting options from the desirous employees for being
governed under the pension scheme. Even the said circulars were also put on the
Notice Board and copies thereof were endorsed to the Secretary, Workers' Union,
but the respondent failed to exercise his option within the time prescribed
and, therefore, his case for counting work-charge services towards pensionary
benefits has rightly not been considered by the appellants.
It was submitted by the respondent before the High Court that he
was always desirous and willing to opt for the pension scheme by counting the
work-charge service 10 and he was prepared to refund the amount of employer's
share with interest under the EPF Scheme. The respondent further submitted that
immediately after he learnt about the circulars, he exercised his option for
pension scheme and in fact he has been consistently requesting the appellants
to consider his case for grant of pension but the grievance of the respondent
has not been redressed. The respondent was compelled to approach the Punjab
& Haryana High Court.
The Division Bench of the Punjab and Haryana High Court, after
hearing the learned counsel for the parties at length, came to the definite
conclusion that the appellants had failed to produce any record showing that
the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing
from the respondent. The High Court further observed that in the absence of any
such material, it can well be inferred that the respondent had no knowledge
about the options called by the appellants vide circulars dated 6.8.1993 and
Court also observed that it would be unreasonable to deny pensionary benefits
to the respondent despite the said circulars issued by the 11 appellants. The
High Court allowed the writ petition filed by the respondent and directed the
appellants to permit the respondent to exercise his option in accordance with
the circulars dated 6.8.1993 and 9.8.1994 within a period of one month from the
date of receipt of a certified copy of the order and thereafter give him the
consequential benefits subject to his fulfilling the conditions of eligibility
for being governed under the pension scheme. The appellants aggrieved by the
said judgment of the Punjab and Haryana High Court have approached this court.
The appellants submitted that the respondent did not comply with
the instructions dated 6.8.1993 and 9.8.1994 within the prescribed period and
as such was not entitled for benefits in terms of these circulars.
The High Court in its impugned judgment had categorically observed
that the appellants had failed to produce any record showing that the
instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing
from the respondent. The appellants had also failed to produce such material
from which it can be inferred that 12 the respondent had any knowledge about
the options called by the appellants vide instructions dated 6.8.1993 and
9.8.1994. The High Court also observed that in this view of the matter it would
be unreasonable to deny pensionary benefits to the respondent and the similarly
It may be pertinent to mention that the Full Bench of the Punjab
and Haryana High Court in Kesar Chand v. State of Punjab AIR 1988 (Punjab) 265
(FB) after examining the entire case observed that once the services of
work-charged employee are regularized, he will be deemed to be entitled to the
benefit under rule 3.17 (ii) of the Punjab Civil Service Rules Vol.2. Rule 3.17
(ii) reads as under:- "If any 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
services except in respect of :- (i) periods of temporary or officiating
service in non- pensionable establishment;
periods of services in work-charged establishment;
The court in the said judgment held that the period of service spent
by an employee on work charge basis prior to his regularization, should be
taken into consideration for determining his qualifying service. This part is
contained in para 19 of the judgment and reads thus:- "19...It looks to be
illogical that the period of service spent by an employee in a work- charged
establishment before his regularisation has not been taken into consideration
for determining his qualifying service. The classification which is sought to
be made among Government servants who eligible for pension and those who
started work-charged employees and their services regularised subsequently, and
the others is based on any intelligible criteria and, before, is not
sustainable at law. After the services of a work-charged employee have been regularised,
he is a public servant like other servant. To deprive him of the pension is not
only unjust and inequitable is hit by the vice of arbitrariness, and for se
reasons the provisions of sub-rule (ii) of Rule 3.17 of the Rules have to be
struck down being violative of Article 14 of the Constitution."
Full Bench judgment of the Punjab & Haryana High Court in
Kesar Chand's case (supra) was carried before this court by way of filing a
special leave petition. This court dismissed the said special leave petition.
This court has taken the view that pension is reward for long
service rendered by the employee and not a bounty. The Supreme Court in the
case of Subrata Sen & Others v. Union of India & Others reported as
2001(8) SCC 71 held that:- "14....As observed in Nakara's case, pension is
neither a bounty, not a matter of grace depending upon the sweet will of the
employer, nor an ex gratia payment. It is a payment for the past services
rendered. It is a social welfare measure rendering socio-economic to those who
in the day-day of their life ceaselessly toiled for the employer on an
assurance that in their old age they would not be left in lurch..."
The appellants had issued circulars dated 6.8.1993 and 9.8.1994
for giving pensionary benefits to the respondent and similarly placed
This court time and again had observed that the principle
underlying the guarantee of Article 14 of the Constitution is that all persons
similarly placed shall be treated alike, both in privileges conferred and
liabilities imposed. Equal laws would have to be applied to all in the same
situation without any discrimination.
In E.P. Royappa v. State of Tamil Nadu & Anr.
SCC 3, this court observed as under:- "From a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while the other, to
the whim and caprice of an absolute monarchy. Where an act is arbitrary it is
implicit in it that it is unequal both according to political logic and
Constitutional law and is therefore violative of Article 14, and if it affects
any matter relating to public employment, it is also violative of Article
14 and 16 strike at arbitrariness in State action and ensure fairness and
equality of treatment."
In Mrs. Maneka Gandhi v. Union of India & Anr.
SCC 248, this court observed as under:- "Equality is a dynamic concept
with many aspects and dimensions and it cannot be imprisoned within traditional
and doctrinaire limits. .........Article 14 strikes at arbitrariness in State
action and ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an essential
element of equality or non-arbitrariness pervades Article 14 like a brooding
In D.S. Nakara & Ors. v. Union of India (1983) 1 SCC 305, this
court observed as under:- "The thrust of Article 14 is that the citizen is
entitled to equality before law and equal 16 protection of laws. In the very
nature of things the society being composed of unequals a welfare state will
have to strive by both executive and legislative action to help the less
fortunate in the society to ameliorate their condition so that the social and
economic inequality in the society may be bridged. This would necessitate a
legislation applicable to a group of citizens otherwise unequal and
amelioration of whose lot is the object of state affirmative action. In the
absence of doctrine of classification such legislation is likely to flounder on
the bed rock of equality enshrined in Article 14. The court realistically
appraising the social stratification and economic inequality and keeping in
view the guidelines on which the State action must move as constitutionally
laid down in part IV of the Constitution, evolved the doctrine of
classification. The doctrine was evolved to sustain a legislation or State
action designed to help weaker sections of the society or some such segments of
the society in need of succor.
and executive action may accordingly be sustained if it satisfies the twin
tests of reasonable classification and the rational principle correlated to the
object sought to be achieved. The State, therefore, would have to affirmatively
satisfy the Court that the twin tests have been satisfied. It can only be
satisfied if the State establishes not only the rational principle on which
classification is founded but correlate if to the objects sought to be
In Ajay Hasia & Others .v. Khalid Mujib Sehravardi &
Others (1981) 1 SCC 722 this court observed as under:- "That is must,
therefore, now be taken to be well settled that what Article 14 strikes at is
17 arbitrariness because any action that is arbitrary must necessarily involve
negation of equality. The court made it explicit that where an act is arbitrary
it is implicit in it that it is unequal both according to political logic and
constitutional law, and is, therefore, violative of Article 14."
In Ramana Dayaram Shetty v. International Airport Authority of
India & Ors. (1979) 3 SCC 489 again this court observed that a
discriminatory action of the Government is liable to be struck down, unless it
can be shown by the Government that the departure was not arbitrary, but was
based on some valid principle which in itself was not irrational, unreasonable
In view of the law as has been articulated in a large number of
cases where this court has observed that any discriminatory action on the part
of the Government would be liable to be struck down. Hence, in this case, it
would be totally unreasonable and irrational to deny the respondent the
pensionary benefits under the scheme particularly when the appellants have
failed to produce any record showing that the instructions dated 6.8.1993 and
9.8.1994 were actually got noted in writing by the respondent. In the absence
of any such material it can 18 well be inferred that the respondent had no
knowledge about the options called by the appellants.
In our considered opinion, the view taken by the Division Bench of
the High Court in the impugned judgment is indeed a rational, just and fair
view and no interference is called for.
These appeals are devoid of any merit and are accordingly
dismissed leaving the parties to bear their own costs.
........................................J. (Dalveer Bhandari)
.........................................J. (Dr. Mukundakam