Punjab State Electricity Board & Ors vs Jit Singh

Punjab State Electricity Board & Ors. ..........Appellants

Versus

Jit Singh ........Respondent

ORDER

Leave granted.

2) Punjab State Electricity Board (`Board' in short) is before us in

this appeal, inter alia calling in question the correctness or

otherwise of the judgment and order passed by the High Court of

Punjab and Haryana in Writ Petition No. 7326 of 2005 dated

12.7.2007.

3) The facts in nutshell are, the respondent was appointed as security

guard on ad hoc basis on 27.01.1976 and his services were

regularized with effect from 9.8.1978. He retired from service on

1 attaining the age of superannuation on 31.7.2000. On his

retirement, the respondent has received all the pensionary benefits.

4) The Board has issued a circular dated 23.01.2001, giving certain

benefit of "ad hoc service" to Board employees. In short, in the

circular, it is stated, that, the period of ad hoc service would be

counted towards retirement benefit on regularization, provided the

employees fulfil certain conditions. A clarification is also issued

by the Board, by Memo No. 41614/659 dated 14.2.2001, clarifying

the circular dated 23.1.2001.

5) To take benefit of the circular issued by the Board, the respondent

had made a request to the Board to count his ad hoc service in the

Board before regularization of his service for the purpose of

calculating the pensionary benefits. The said claim is rejected by

the Board vide its order dated 5.10.2004. This issue was agitated

by the respondent by filing a Writ Petition before the High Court

of Punjab and Haryana. The court has granted relief to the

respondent. The findings and the conclusions reached therein is

the subject matter of this civil appeal.

6) The learned counsel for the Board would contend, that, the High

Court was not correct in relying on the full bench decision of the

2 Punjab and Haryana High Court in the case of Kesar Chand vs.

State of Punjab & Others; [AIR, 1988 Punjab and Haryana, 265],

since in that decision the court was concerned with the issue, the

effect of regularization of service of work charge employee for the

purpose of pensionary benefits which are available to the other

public servants. It is further contended, that, the Circular/Memo

dated 23.1.2001 and subsequent Circular/Memo dated 14.2.2001

are only prospective and the benefit cannot be granted to such of

those employees who have retired from service prior to the

issuance of Circular/Memo dated 23.1.2001 and clarificatory

Memo dated 14.2.2001. It is further contended that the reliance

placed by the respondent on Clause 7 of the Finance Circular No.

73/89 issued by the Board is misplaced, since that circular was

made applicable to work-charge employees only. It is also

contended, that, since the respondent has not questioned the

validity or otherwise of the Circular/Memo dated 23.1.2001 and

14.2.2001, he cannot take the benefit of those circulars, since they

are prospective and issued after respondent retired from service on

attaining the age of superannuation.

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7) The learned counsel for the respondent-employee would contend

that there is no essential difference between a `work charge

employee' and an employee appointed on ad hoc basis and,

therefore, the High Court was justified in relying on the full bench

decision of Punjab and Haryana High Court in Kesar Chand's case

and directing the Board to reconsider the case of the respondent in

the light of the said decision.

8) The issue that requires our consideration and decision is, whether

the High Court was justified in relying on the decision of Kesar

Chand's case to annul the order passed by the Board dated

5.10.2004 and secondly, whether the ad hoc service of an

employee of the Board before regularization of his service requires

to be counted while calculating the pensionary benefits of the

respondent.

9) To resolve the controversy, we require to notice Memo/Circulars

issued by the Board dated 23.1.2001 and 14.2.2001. They are :-

(a) "Memo No. 21064/21114/ENG-27(44)LCL 75

Dated 23.1.2001

Subject: COUNTING OF ADHOC SERVICE FOR PENSIONARY BENEFITS ONLY

The matter regarding benefit of Adhoc Service has been under the active consideration of the Board for some time past, the

4 Board in its 11/2000 meeting held on 29.12.2000 has decided that entire adhoc service rendered by the Board employees, shall regularization, provided the employees fulfill the following conditions:-

1) Who fulfilled the condition of minimum prescribed qualifications and experience, if any, for the past at the time of appointment and were recruited by following proper procedure were continuing un-interruptedly till date of regularization.

ii) Who fulfilled condition of minimum qualification and experience at the time of recruitment but were not recruited by following proper procedure and continued in service without any interruption.

iii) This benefit will not be admissible to those who do not fulfill either of the above two conditions. It was specifically decided that this benefit shall not be given to those employees who have either been retired or retired from the service of the Board."

(b) Memo No. 41614/659 ENG-27(44)LCL 75 Dated : 14.2.2001

SUBJECT : COUNTING OF ADHOC SERVICE FOR PENSIONARY BENEFITS ONLY

Part 2 of this office memo No. 21064/21114/ENG-27 (44) LC-75 dated 23.1.2000 vide which instructions were issued on the subject cited is amended and may be substituted as under :-

2) This benefit shall also not be given to these employees who have either retired on attaining the age of superannuation/compulsory retired/taken premature retirement or resigned from the service of the Board."

5 10) In our view, before we advert to the issues canvassed, it would be

useful to extract the decision of the Board on the claim made by

the respondent. It is as under :-

"Memo No. 12958/SGE-740 Dated: 5.10.04 Subject: In response to the legal notice given under Section 80 CPC by Shri Jit Singh, ASI, retired, on 31.7.2000.

In response to the above, it is being intimated to you that as per the instructions of Board, you are not entitled to the benefit of ad hoc service for pensionary benefits."

11) The facts which are not disputed and which cannot be disputed

also are, that, the respondent was appointed as a security guard on

ad hoc basis on 27.1.1976 and his services were regularized as

security guard with effect from 9.8.1978. The respondent retired

from service on attaining the age of superannuation on 31.7.2000.

The Board has issued a circular dated 23.1.2001 for the purpose of

counting of ad hoc service rendered by the Board employees for

the purpose of quantifying the pensionary benefits after their

services are regularized in the Board, if they satisfies the

conditions envisaged in the circular. By yet another

Circular/Memo dated 14.2.2001 the Board has clarified its earlier

circular that the benefit of the circular dated 23.1.2000 shall not be

6 given to those employees who have either retired on attaining the

age of superannuation/compulsorily retired/take premature

retirement or resigned from the service of the Board before

issuance of the Board's circular dated 23.1.2000. That only means

the circulars are given prospective effect. The respondent in the

writ petition filed does not question the validity or otherwise of

the circular issued on the ground that they are violative of any

Constitutional provisions, including Article 14 of the Constitution

of India. It is not even the case of the respondent that the circulars

issued by the Board is arbitrary, since it treats employees retired

from service prior to and after issuance of the circular of the

Board. Therefore, it may not be proper for us to take up an issue

which is not pleaded or urged either before this Court or before the

High Court by the respondent-employee of the Board.

12) A retired employee of the Board being of the view that he is

entitled for the benefit of the Circulars issued by the Board dated

23.01.2001 and 14.02.2001, has approached the Board to count his

service when he worked as adhoc employee till the date of

regularization of his service for the purpose of calculating his

pensionary benefits. This request is rejected by the Board by its

7 cryptic and non-speaking order. The order so made was the

subject matter of the writ petition. The court following the

decision in Kesar Chand's case (supra) has allowed the petition on

the ground that in the said decision, it has been held "that once

service of work charge employee is regularized, there is no logic

to deprive him of the pensionary benefits available to other public

servants. Even the temporary or officiating service of the

government has to be reckoned in determining the qualifying

service."

13) In Kesar Chand's case, the facts were, the employee had joined as

Beldar on August 1, 1951 as a work charge employee in the office

of the Sub-Divisional Officer, Pathankot. He had regular service

without any break till the date of retirement from service on

attaining the age of superannuation. While claiming pensionary

benefits at least from the date, he is deemed to have been

regularized in service, he had relied on the award passed by the

Industrial Tribunal, and further had questioned the vires of Rule

3.12 and Rule 1.2 of the Punjab Civil Services Rules, which had

been relied on by the respondents to deprive the pensionary

benefits. It was his further case that he was a government servant

8 and was paid from the government revenue and, therefore, could

not be excluded from the purview of Punjab Civil Services Rules

in relation to pension. In the back drop of the aforesaid fact

scenario, the Punjab and Haryana High Court granted relief to the

work charge employee, who had put in continuous service till the

date of retirement on attaining the age of superannuation.

14) In the instant case, the facts are not identical. The respondent is an

employee of Punjab State Electricity Board and not an employee

of the State Government. He is not claiming any benefit under

Punjab Civil Services Rules, but claiming benefit in view of the

circulars issued by the Board. He has not even questioned the

vires of the circular issued by the Board, wherein a cut off date is

prescribed by limiting to those ad hoc employees who are still in

service and whose services have been regularized etc. Therefore,

in our opinion, the High Court by placing reliance on a decision

which does not have any bearing on the fact situation pleaded by

the petitioner ought not to have observed that the principles

enunciated in Kesar Chand's case will apply to the case of the

respondent and, therefore, authorities of the Board should

reconsider the claim of the respondent-employee in the light of the

9 principles enunciated in the said case. Therefore, we cannot

sustain this portion of the order passed by the High Court.

15) Now, we come to the order passed by the Board dated 5.10.2004.

In our view, it is suffice to state, that, the order is a non-speaking

order in the sense, it does not contain any reasons much less

cogent reason so fair play requires recording precise and cogent

reasons when an order affects the right of citizen. In the impugned

order, we do not see any reason in the order passed by the

authorities of the Board. Therefore, in our view, the High Court

ought to have set aside the order and remitted the matter to the

authorities of the Board, to reconsider the claim of the respondent

in accordance with law. That only means the order should have

been an open remand, instead of asking the Board to reconsider

the claim with reference to a particular principle laid down by the

High Court in a different factual scenario. Since, we are

remanding the matter, we have not answered the second issue.

16) In the result we allow this appeal and set aside the impugned order

and direct the authorities of the Board to reconsider the claim of

the respondent in accordance with law.

17) The appeal is disposed of accordingly.

.......................................J.

10 [ TARUN CHATTERJEE ]

.......................................J. [ H.L. DATTU ] New Delhi, March 23, 2009.

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