Punjab State
Electricity Board & Ors. Vs. Jagjiwan Ram and Ors. [2009] INSC 299 (12
February 2009)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.890 OF 2009 (Arising out of S.L.P. (C) No.22843 of
2005) Punjab State Electricity Board and others ... Appellants Versus Jagjiwan
Ram and others ... Respondents WITH
Civil Appeal No.891 of 2009 (Arising out of S.L.P. (C) No.22989 of 2005)
G.S. Singhvi, J.
1.
Leave
granted.
2.
With
a view to give relief to the employees who were stagnating in particular
positions for a long period of time, the Punjab State Electricity Board [for
short, "the Board"] introduced a scheme for giving time bound
promotional scales/increments on completion of 9/16/23 years of regular
service. The same was circulated vide office order dated 23rd April, 1990, the
relevant portions of which are extracted below:- "In continuation consolidation
and supersession of instructions contained in this office order
No.174/PRC/Fin-1988 dated 17.07.1989, Memo
No.11163/11863/PRC/Fin-I/1988/L-VI/(Prop) dated 19.1.1990 and O/o
No.194/PRC/Fin-1988, dated 30.03.1990.
The Punjab State
Electricity Board have been seized of the problems of stagnation prevailing
amongst the various cadres of regular employees and its consequent effect on
their efficiency, is felt that an employee should, under ideal service
conditions get normally two promotions from his initial recruitment level
during his service. However, this is not always possible owing to
non-availability of promotional posts. The aspiration of the employees, can,
however be met to a great extent by allowing time bound higher scales to the
employees at two stages in their service career. The Punjab State Electricity
Board has therefore, decided to introduce a scheme to allow time bound benefit
of promotional scales after the completion of 9/16 years of regular service in
the PSEB, provided the maximum benefit on being placed in the time bound
promotional scale does not exceed five increments including promotional
increment(s) to the subordinate employee having a maximum scale upto Rs.3500/-
except the categories where the benefit of time bound placement to higher scale
is applicable on the Punjab Govt. pattern as in the case of teachers etc.
When the benefit so
exceeds five increments, the time bound promotional scale will be so revised
that the minimum benefit on being placed in the time bound promotional scale is
five increments including promotional increment(s). It is clarified that in
devising the scale, the case of a direct recruit will be taken, who presumably
enters service on minimum of the scale on 1.1.1986. A promotee employee will be
fixed at the minimum of this promotional revised time bound scale and in case
he has already crossed the minimum of time bound promotional scale or revised
higher time bound scale, as the case may be, his pay will be fixed as if he has
been promoted in the ordinary course i.e., by allowing promotional
increment(s). Likewise a direct recruit on completion of nine years regular
service will draw minimum of the promotional time bound revised scale
irrespective of difference of more than five increments between the pay drawn
by him on completion of 9 years service and the minimum of this promotional
revised time bound scale and in the event of his pay having already crossed the
minimum of this promotional revised time bound scale or promotional time bound
scale, as the case may be, his pay will be fixed as he has promoted in the
ordinary course i.e. by allowing promotional increment(s).
The scheme to allow
`Time Bound benefit of Promotional Scale' will take effect from 1.1.1986.
However, the payment of arrears would be spread over to two years i.e. arrears
from 1.1.1986 to 28.2.89 and 1989-90 would be paid in 1990-91 and 1991-92,
respectively.
Features of the
Scheme:-
1. The benefit of
first time bound placement into promotional/revised promotional scale, as
determined and notified on the basis of principles enunciated above, would
become available to an employee on completion of 9 (Nine) years of regular
service on a post and the second time bound Promotional/Revised Promotional
Scale would become available after completion of 16 (sixteen) years of service.
If an employee gets normal promotion to the next higher post before completion
of 9 years service from the date of direct recruitment then he will not be
given first time bound Promotional/Revised Promotional scale. He will be
eligible to get second time bound Promotional/Revised Promotional Scale after
the completion of 16 years of service counted from the date of direct
recruitment provided he does not earn second normal promotion before the
completion of the above said 16 years of service. Further, an employee placed
into the first Promotional/Revised Promotional Scale on account of high length
of service will not be placed into the second Promotional/Revised Promotional
Scale before completion of at least three years from the date of his placement
into the first promotional revised promotional scale.
For example an
employee who has completed 17 years of service in an induction post and was not
promoted upto 1.1.1986, will be allowed 1st time bound Promotional/Revised
Promotional Scale on 1.1.1985 and the 2nd time bound Promotional/Revised
Promotional Scale will be admissible on 1.1.1989 i.e. after completion of three
years service in the first time bound Promotional/Revised Promotional Scale.
2. For granting the
time bound Promotional/Revised Promotional Scale to each employee in any cadre,
the prescribed period will be counted from the date of commencement of service
on the lowest post on which regular appointment has been made through direct
recruitment in the concerned cadre.
3. At the time of
placement in the time bound Promotional/Revised Promotional Scale, the employee
will be allowed promotional increment(s), as are admissible on promotion under
the provisions of Regulation 8 of PSEB (Revised Pay) Regulations, 1988 and as
amended from time to time.
4. If an employee
already in the service of the Board is directly appointed to a higher post
through open selection then for the purpose of grant of time bound
Promotional/Revised Promotional Scale in that cadre counting of the period of
service will commence from the date of joining the above post by direct
recruitment.
5. The Board shall
draw up schedule(s) indicating the lowest post(s) for direct recruitment in
respect of various cadres for the purpose of this order, separately.
Xx xx xx xx xx i) The
Punjab State Elecy. Board has further decided to allow benefit of promotional
increment(s) to an employee on completion of 23 years of regular service
provided:- ii) He has not been benefited by the scheme of 9/16 years time bound
promotional scale.
iii) He has not
earned three regular promotions in his career.
iv) He has not earned
third promotion in his regular service between 16th and 23rd years of service.
v) The increments
referred to in para-2 above are in the nature of advance promotional benefit to
be absorbed in next regular promotion.
Sd/- Deputy
Secretary/Finance."
(Emphasis added)
3.
The
respondents, who were engaged as work charged employees in the service of the
Board between 18.11.1971 and 23.10.1993 and were appointed on regular basis on
different dates between 7.11.1979 and 26.5.1999, filed writ petitions for issue
of a direction to the Board and its officers to count their work charged
service for the purpose of grant of time bound promotional scales/promotional
increments from the date of completion of 9/16/23 years service.
4.
The
appellants contested the claim of the respondents by asserting that benefit of
time bound promotional scales can be given only from the date of completion of
9/16 years regular service and promotional increments can be given on
completion of 23 years regular service and that work charged service cannot be
equated with regular service for the said purpose. In the counter-affidavit
filed on behalf of the appellants, reliance was placed upon the judgments of
this Court in State of Haryana v. Haryana Veterinary & AHTS Association and
another [(2000) 8 SCC 4] and State of Punjab and others v. Gurdeep Kumar Uppal
and others [(2003) 11 SCC 732] and it was averred that work charged service
rendered by the writ- petitioners (respondents herein) cannot be counted for
extending them the benefit of time bound promotional scales and /or promotional
increments.
5.
The
Division Bench of the High Court did not advert to the rival pleadings and
contentions but granted relief to the writ petitioners by simply relying upon
order dated 31.10.2000 passed in Civil Appeal Nos. 5740-5741/1997, State of
Haryana and ors. v. Ravinder Kumar & ors.
6.
Learned
counsel for the appellants argued that work charged service cannot be treated
as regular service for the purpose of the scheme framed by the Board for grant
of time bound promotional scales on completion of 9/16 years of regular service
or promotional increments on completion of 23 years of regular service because
the work charged employees are not appointed after following the procedure
prescribed for regular appointment. He further argued that work charged
employees constitute a separate class and they cannot claim parity with regular
employees in the matter of seniority, pay fixation, promotion, etc. Learned
counsel for the respondents argued that even though the work charged service is
not synonymous with regular service, the High Court did not commit any error by
directing grant of benefit of the scheme to respondents because their services
were subsequently regularized. They strongly relied on instructions issued by
the State Government vide circular No.100012/39/2002-5 P-22/9406 dated 17th July,
2002 and argued that after having implemented the order passed by the High
Court in Civil Writ Petition No.4382 of 2002, Satbir Singh and others v. State
of Haryana, the appellants cannot deny them benefit of time bound promotional
scales/ promotional increments on the spacious ground that work charged service
cannot be clubbed with regular service.
7.
We
have considered the respective submissions. Generally speaking, a work charged
establishment is an establishment of which the expenses are chargeable to
works. The pay and allowances of the employees who are engaged on a work
charged establishment are usually shown under a specified sub-head of the
estimated cost of works. The work charged employees are engaged for execution
of a specified work or project and their engagement comes to an end on
completion of the work or project. The source and mode of
engagement/recruitment of work charged employees, their pay and conditions of
employment are altogether different from the persons appointed in the regular
establishment against sanctioned posts after following the procedure prescribed
under the relevant Act or rules and their duties and responsibilities are also
substantially different than those of regular employees.
The work charged
employees can claim protection under the Industrial Disputes Act or the rights
flowing from any particular statute but they cannot be treated at par with the
employees of regular establishment. They can neither claim regularization of
service as of right nor they can claim pay scales and other financial benefits
at par with regular employees. If the service of a work charged employee is
regularized under any statute or a scheme framed by the employer, then he
becomes member of regular establishment from the date of regularization. His
service in the work charged establishment cannot be clubbed with service in a
regular establishment unless a specific provision to that effect is made either
in the relevant statute or the scheme of regularization. In other words, if the
statute or scheme under which service of work charged employee is regularized
does not provide for counting of past service, the work charged employee cannot
claim benefit of such service for the purpose of fixation of seniority in the
regular cadre, promotion to the higher posts, fixation of pay in the higher
scales, grant of increments etc.
8.
In
Jaswant Singh and others vs. Union of India and others [(1979) 4 SCC 440], this
Court considered the issue relating to nature of work charged establishment,
status of work charged employees and held that the employees appointed on work
charged establishment are not entitled to service benefits available to regular
employees.
9.
In
State of Rajasthan v. Kunji Raman [(1997) 2 SCC 517], the Court considered the
questions whether principle of equal pay for equal work can be invoked for
granting parity to the work charged employees with regular employees and
whether the provisions of the Rajasthan Service (Concessions on Project) Rules,
1962 and Rajasthan Service Rules, 1951 are violative of Articles 14 and 16 of
the Constitution of India inasmuch as the same do not treat employees of the
work charged establishment at par with regular employees. After noticing the
earlier judgment in Jaswant Singh's case, the Court held:
"A work-charged
establishment thus differs from a regular establishment which is permanent in
nature. Setting up and continuance of a work-charged establishment is dependent
upon the Government undertaking a project or a scheme or a "work" and
availability of funds for executing it. So far as employees engaged in
work-charged establishments are concerned, not only their recruitment and
service conditions but the nature of work and duties to be performed by them
are not the same as those of the employees of the regular establishment. A
regular establishment and a work- charged establishment are two separate types
of establishments and the persons employed on those establishments thus form
two separate and distinct classes. For that reason, if a separate set of rules
are framed for the persons engaged in the work-charged establishment and the
general rules applicable to persons working on the regular establishment are
not made applicable to them, it cannot be said that they are treated in an
arbitrary and discriminatory manner by the Government. It is well settled that
the Government has the power to frame different rules for different classes of
employees. We, therefore, reject the contention raised on behalf of the
appellant in Civil Appeal No. 653 of 1993 that clauses (g), (h) and (i) of Rule
2 of RSR are violative of Articles 14 and 16 of the Constitution and uphold the
view taken by the High Court.
The Project Rules
have been framed by the Government in exercise of the power available to it
under Rule 42 of the RSR. They are subsidiary rules made for the purpose of
granting special concessions and allowances to government servants working on
projects. When non-application of the main rules, namely, RSR to work-charged
employees is not found to be violative of Articles 14 and 16 by the High Court
it is difficult to appreciate how the subsidiary rules for that reason only can
be held to be violative of those articles. The High Court failed to consider
this aspect and in our opinion, erroneously struck down Rules 2(b) and (d) of
the 1962 Project Rules and Rules 4(2) and (4) of the 1975 Project Rules.
It was also contended
on behalf of the State that the High Court having held that the workmen working
on the regular establishment and the employees working on a work-charged
establishment belong to two separate categories and, therefore, separate
classification made by the Government in that behalf is reasonable, committed a
grave error in striking down Rules 2(b) and (d) of the 1962 Project Rules and
Rules 4(2) and (4) of the 1975 Project Rules by invoking the principle of equal
pay for equal work. The reason given by the High Court for taking that view is
that the project allowance is compensatory in nature and, therefore, the
classification made between the work-charged employees and the employees of the
regular establishment has no rational nexus with the object sought to be
achieved by those Rules. What the High Court failed to appreciate is that when
an employee working in the regular establishment is transferred to a project he
has to leave his ordinary place of residence and service and go and reside
within the project area. That is not the position in the case of an employee
who is engaged in the work-charged establishment for executing that work.
Respondent Kunji
Raman and other employees on whose behalf he had filed the petition were all
engaged for execution of the Mahi Project and thus they became a part of the
work-charged establishment of Mahi Project. They were not required to shift
from their regular place of service. The High Court also failed to consider
that for such employees the pay scales under the Pay Scale Rules are also
different. The material produced by the State goes to show that while fixing
the pay scales of employees of the work-charged establishment of Mahi Project
the element of project allowance was also included therein and for that reason
their pay scales were higher than the pay scales of general category
work-charged employees, some of whom were transferred and posted on the Mahi Project.
Except a general
denial in the rejoinder-affidavit by Kunji Raman no other material has been
produced to point out that the said claim of the Government is not correct.
The order dated 30-4-1981 annexed with the rejoinder-affidavit of Kunji Raman is
with respect to those work-charged employees who were absorbed on 43 regular
posts were newly created. They thus ceased to be work-charged employees
employed on a project and became general category work-charged employees whose
pay scales were different and were, therefore, paid the project allowance. Thus
the claim made by respondent Kunji Raman and other similarly situated employees
for granting them project allowance was really misconceived. From what is now
stated by them in the counter-affidavit, it appears that what they really want
is parity in all respects with the employees of the regular establishment. In
other words, what they want is that they should be treated as regular employees
of the Public Works Department of the Rajasthan Government and should be given
all benefits which are made available under the RSR and the Project Rules. Such
a claim is not justified and, therefore, the contention raised in that behalf
cannot be accepted."
10.
The
ratio of the above mentioned judgments is that work charged employees
constitute a distinct class and they cannot be equated with any other category
or class of employees much less regular employees and further that the work
charged employees are not entitled to the service benefits which are admissible
to regular employees under the relevant rules or policy framed by the employer.
11.
What
to say of work charged employees even those appointed on ad hoc basis cannot
claim parity with regular employees in the matter of pay fixation, grant of
higher scales of pay, promotion etc. In State of Haryana vs. Haryana Veterinary
& AHTS Association and another (supra), a three-Judge Bench considered the
question whether service of an employee appointed on adhoc basis can be equated
with that of regular employee for the purpose of grant of selection grade in
terms of the policy contained in circulars dated 2nd June, 1989 and 16th May,
1990 issued by the Government of Haryana and answered the same in negative. The
facts of that case were that one Rakesh Kumar Singla who joined service as
Assistant Engineer on adhoc basis on 4.1.1980 was appointed on regular basis
with effect from 29.8.1982 after selection by the Public Service Commission. He
represented to the government for grant of selection grade on completion of 12 years
service commencing from 4.1.1980.
As the government did
not accede to his request, Rakesh Kumar Singla filed writ petition in the High
Court. On a reference made by the Division Bench, the matter was placed before
a bench of three-Judges. By majority judgment, the larger bench held that the
service rendered by an employee on the basis of adhoc appointment must be
clubbed with his regular service for the purpose of grant of selection grade in
terms of the policy framed by the State Government. This Court reversed the
judgment of the High Court and held:
"Coming to the
circular dated 2-6-1989, issued by the Financial Commissioner and Secretary to
the Government of Haryana, Finance Department, it appears that the aforesaid
circular had been issued for removal of anomalies in the pay scale of Doctors,
Deputy Superintendents and Engineers, and so far as Engineers are concerned,
which are in Class I and Class II, it was unequivocally indicated that the
revised pay scale of Rs.3000 to Rs.4500 can be given after completion of 5
years of regular service and Rs.4100 to Rs.5300 after completion of 12 years of
regular service. The said Financial Commissioner had issued yet another
circular dated 16-5- 1990, in view of certain demands made by officers of
different departments. The aforesaid circular was issued after reconsideration
by the Government modifying to some extent the earlier circular of 2-6-1989,
and even in this circular it was categorically indicated that so far as
Engineers are concerned, they would get Rs.3000 to 4500 after 5 years of
regular and satisfactory service and selection grade in the scale of pay of
Rs.4100 to Rs.5300, which is limited to the extent of 20% of the cadre post
should be given after 12 years of regular and satisfactory service.
The aforesaid two
circulars are unambiguous and unequivocally indicate that a government servant
would be entitled to the higher scale indicated therein only on completion of 5
years or 12 years of regular service and further the number of persons to be entitled
to get the selection grade is limited to 20% of the cadre post. This being the
position, we fail to understand how services rendered by Rakesh Kumar from 1980
to 1982, which was purely on ad hoc basis, and was not in accordance with the
statutory rules can be taken into account for computation of the period of 12
years indicated in the circular. The majority judgment of the High Court
committed serious error by equating expression "regular service" with
"continuous service". In our considered opinion under the terms and
conditions of the circulars dated 2-6-1989 and 16-5- 1990, the respondent
Rakesh Kumar would be entitled for being considered to have the selection grade
on completion of 12 years from 29-1-1982 on which date he was duly appointed against
a temporary post of Assistant Engineer on being selected by the Public Service
Commission and not from any earlier point of time.
The conclusion of the
majority judgment in favour of Rakesh Kumar, therefore, cannot be
sustained." The Court then referred to the provisions contained in the
Haryana Service of Engineers, Class-II, Public Works Department (Irrigation
Branch) Rules, 1970 and held:- "A combined reading of the aforesaid
provisions of the Recruitment Rules puts the controversy beyond any doubt and
the only conclusion which could be drawn from the aforesaid Rules is that the
services rendered either on an ad hoc basis or as a stopgap arrangement, as in
the case in hand from 1980 to 1982 cannot be held to be regular service for
getting the benefits of the revised scale of pay or of the selection grade
under the government memorandum dated 2-6-1989 and 16-5-1990, and therefore,
the majority judgment of the High Court must be held to be contrary to the
aforesaid provisions of the Recruitment Rules, consequently cannot be
sustained. The initial letter of appointment dated 6-12-1979 pursuance to which
respondent Rakesh Kumar joined as an Assistant Engineer on an ad hoc basis in
1980 was also placed before us. The said appointment letter unequivocally indicates
that the offer of appointment as Assistant Engineer was on ad hoc basis and
clauses 1 to 4 of the said letter further provides that the appointment will be
on an ad hoc basis for a period of 6 months from the date of joining and the
salary was a fixed salary of Rs.400 p.m. in the scale of Rs.400 to Rs.1100 and
the services were liable to be terminated without any notice and at any time
without assigning any reason and that the appointment will not enable the
appointee any seniority or any other benefit under the Service Rules for the
time being in force and will not count towards increment in the time scale. In
view of the aforesaid stipulations in the offer of appointment itself we really
fail to understand as to how the aforesaid period of service rendered on ad hoc
basis can be held to be service on regular basis. The conclusion of the High
Court is contrary to the very terms and conditions stipulated in the offer of
appointment and, therefore, the same cannot be sustained. The regular letter of
appointment dated 29-1-1982 in favour of Rakesh Kumar was also produced before
us and that letter indicates that the respondent Rakesh Kumar along with others
had applied to the Secretary, Haryana Public Service Commission for being
appointed as an Assistant Engineer and the Service Commission after selecting
the number of persons prepared a list and appointment letters were issued by
the Government from the said list on the basis of the merit position of
different candidates.
Thus the appointment
of respondent Rakesh Kumar was a fresh appointment in accordance with the
statutory rules after the Public Service Commission adjudged their suitability
and the regular service of the respondent Rakesh Kumar must be counted from the
date he joined the post pursuant to the offer of appointment dated 29-1-1982
and the prior service rendered by him on ad hoc basis cannot be held to be
regular service nor can it be tagged on to the later service for earning the
benefit under the government circular dated 2-6-1989 as well as the
clarificatory circular dated 16-5-1990.
The conclusion of the
majority judgment of the High Court, therefore, is wholly erroneous and cannot
be sustained."
12.
In
State of Punjab and others v. Ishar Singh and others [(2002) 10 SCC 674] and
State of Punjab and others v. Gurdeep Kumar Uppal and others [(2003) 11 SCC
732], the two-Judge Benches referred to the judgment in State of Haryana v. Haryana
Veterinary & AHTS Association (supra) and held that adhoc service rendered
by the respondents cannot be clubbed with their regular service for the purpose
of grant of revised pay scales, senior/selection grade, proficiency step-up and
for fixation of seniority.
13.
A
reading of the scheme framed by the Board makes it clear that the benefit of
time bound promotional scales was to be given to the employees only on their
completing 9/16 years regular service. Likewise, the benefit of promotional
increments could be given only on completion of 23 years regular service. The
use of the term `regular service' in various paragraphs of the scheme shows
that service rendered by an employee after regular appointment could only be
counted for computation of 9/16/23 years service and the service of a
temporary, adhoc or work charged employee cannot be counted for extending the
benefit of time bound promotional scales or promotional increments. If the
Board intended that total service rendered by the employees irrespective of
their mode of recruitment and status should be counted for the purpose of grant
of time bound promotional scales or promotional increments, then instead of
using the expression `9/16 years regular service' or `23 years regular
service', the concerned authority would have used the expression `9/16 years
service' or `23 years service'. However, the fact of the matter is that the
scheme in its plainest term embodies the requirement of 9/16 years regular
service or 23 years regular service as a condition for grant of time bound
promotional scales or promotional increments as the case may be. For the reasons
mentioned above, we hold that the respondents were not entitled to the benefit
of time bound promotional scales / promotional increments on a date prior to
completion of 9/16/23 years regular service and the High Court committed
serious error by directing the appellants to give them benefit of the scheme by
counting their work charged service.
14.
The
order passed by this Court in Ravinder Kumar's case is clearly distinguishable.
In that case, counsel appearing for the State had conceded that period during
which an employee had worked on work charged basis is counted for the purpose
of grant of increment as well as for computation of qualifying service for
pension. In view of his statement, the Court held that there is no reason why
such service should not be counted for the purpose of giving additional
increment on completion of 8/12 years service and higher scale on completion of
10/20 years service.
The order does not
contain any discussion on the issue whether the work charged service can be
equated or clubbed with regular service for grant of service benefits
admissible to regular employees. Therefore, the same cannot be treated as
laying down any proposition of law which can be treated as precedent for other
cases.
15.
The
instructions issued by the State Government on 17th July, 2002 for
implementation of the order passed in C.W.P. No.4382 of 2002, Satbir Singh and others
v. State of Haryana are also of no help to the respondents' cause. The order
passed by the High Court was binding and the same had to be given effect to and
in the absence of any stay by this Court, the Government was bound to give
effect to the same. Even if the benefit of that order was extended to some
other employees, the same cannot be relied upon for interpreting the scheme
framed by the Board. In any case, the view expressed by the High Court in
Satbir Singh's case (supra) cannot be made basis for granting relief to the
respondents by ignoring the law laid down by this Court in the judgments
referred to herein above.
16.
In
the result, the appeals are allowed, the impugned orders are set aside and the
writ petitions filed by the respondents are dismissed. However, the parties are
left to bear their own costs.
......................J.
[B.N. AGRAWAL]
......................J.
[G.S. SINGHVI]
New
Delhi,
February
12, 2009.
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