Punjab-Haryana High Court
Sohan Singh And Others vs Bhakra Beas Management Board on 26 November, 2010
Author: Ritu Bahri
Bench: Ritu Bahri
C.W.P.No. 6823-A of 1989 1
In the High Court for the states of Punjab and Haryan
at Chandigarh
C.W.P.No. 6823-A of 1989
Date of Decision:26.11.2010
Sohan Singh and others
Petitioners
Versus
Bhakra Beas Management Board
and another Respondents
Coram: Hon'ble Ms.Justice Ritu Bahri
Present: Mr. Ashwani Bakshi, Advocate,
for the petitioners.
Mr. Arun Nehra, Advocate, for
the respondents.
1 To be referred to the Reporters or not?
2. Whether the judgment should be reported
in the Digest?
Ritu Bahri, J.
This petition has been filed under Articles 226/227 of the Constitution of India for issuance of direction to respondents to consider their names for promotion to the posts of Chargeman Grade II and Chargeman Grade I, out of the promotion quota reserved on roster points, on the basis of instructions for C.W.P.No. 6823-A of 1989 2 reservation on promotion.
All the petitioners are working in the Bhakra Electrical Division, Nagal. Initially, the petitioners were employees of the Irrigation Department in State of Punjab. Before re-origination of the State of Punjab in 1966, they were governed by rules and regulations and service conditions applicable in the state of Punjab. They claim their promotion being Scheduled Castes on the basis of reservation policy of the State of Punjab. Under Section 79 of the Punjab Reorganization Act, 1966 (hereinafter referred to "1966 Act"), the petitioners have been absorbed in the Bhakra Beas Management Board ( for short "BBMB") which is an independent statutory authority created under the 1966 Act. The petitioners claim that Punjab Government Instructions are applicable to the BBMB for the purpose of reservation in promotion. In State of Punjab, reservation in promotion for Scheduled Castes is 25% in Class II and Class IV as per instructions dated 17.6.1983 (Annexure P-1). After these, instructions were issued time to time giving the benefit of reservation at the time of promotion. The petitioners have placed reliance on Section 79(4) of the 1966 Act, which reads as follows:-
" 79(4) The Bhakra Management Board may C.W.P.No. 6823-A of 1989 3 employ such staff as it may consider necessary for the efficient discharge of its function under this Act:
Provided that every person who immediately before the constitution of the said Board was engaged in the construction, maintenance or operation of the works in sub-section (1) shall continue to be so employed under the Board in connection with the said works on the same terms and conditions or service as were applicable to him before such constitution until the Central Government by order directs otherwise;
Provided further that the said Board may at any time in consultation with State Government or the Electricity Board concerned and with the previous approval of the Central Government return such person for service under that Government or Board."
The petitioners claim that as per Section 79(4) they are entitled to be promoted out of the reserved quota for Scheduled Caste. The BBMB has informed the petitioners that vide instructions dated 21.11.1986 C.W.P.No. 6823-A of 1989 4 (Annexure P-12), the reservation is to be made for the purpose of recruitment and not for the purpose of promotion.
Written statement has been filed by the BBMB and a specific stand has been taken that as per instructions dated 21.11.1986 (Annexure P-12), the reservation for Scheduled Caste etc. is to be followed only at the stage of recruitment and not for subsequent promotion. BBMB is an independent body and has been given power to employ the staff for efficient discharge of its function under Section 79(4) of the Act. It frames its own rules and regulations/instructions for appointment and promotion etc. Section 79 (9) of the Punjab Recruitment Act provides as under:-
"79(9) The Bhakra Management Board may, with the previous approval of the Central Government and by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder, to provide for -
(a) -
(b) -
C.W.P.No. 6823-A of 1989 5
(c) the appointment, and the regulation of the conditions of service, of the officers and other staff of the Board;
(d) -"
As per Section 79(9) of the Act, the BBMB has issued instructions dated 21.11.1986(Annexure P-12), where a specific decision has been taken that reservation policy is to be followed only at the initial stage of recruitment and not at the stage of promotion. In paragraph 3 of the instructions, it is high-lighted that benefit of reservation will be made in respect of recruitment both regular and work charge category reserved in lot of 100 vacancies has been specified in these instructions.
The BBMB is not bound to follow reservation policy which is applicable in the State of Punjab for the purpose of recruitment and promotion.
The petitioners work-charged employees are industrial workers and were governed by the provisions of Industrial Employment (Standing Order) Act, 1946. Reservation instructions issued by the State of Punjab pertain to Class III and Class IV Regular Employees, which are not applicable to work charge employees. The BBMB had issued instructions dated 24.3.1977 C.W.P.No. 6823-A of 1989 6 (Annexure R-1) providing reservation while making ad hoc appointment, vide instructions dated 19.12.1979 (Annexure R-2) for Scheduled Caste, Scheduled Tribes work charged establishment was also to be followed. Subsequently, by instructions dated 21.11.1986 (Annexure P-12) it was clarified that the reservation shall be only at the initial stage of recruitment and not at the stage of promotion. It has been clarified that prior to 1979, there were no instructions regarding reservation for Scheduled Castes and Scheduled Tribes for work charged employees in BBMB and petitioners are liable to be promoted as per seniority on their own terms.
I have heard Mr. Ashwani Bakshi learned counsel for the petitioners and Mr. Arun Nehra, learned counsel for the respondents.
Learned counsel for the petitioners has vehemently argued that all the petitioners were employees of the Irrigation Department before they were appointed in BBMB. They were governed by the Punjab Rules and hence all the instructions are being followed by State of Punjab in the matter of reservation for recruitment and promotion should be made applicable to the petitioners. Mr. Bakshi has placed reliance on C.W.P.No. 6823-A of 1989 7 Annexure P-5 dated 5.4.1982 and argued that the BBMB had adopted the final rules and instructions for the purpose of reservation. Annexure P-6 is the letter dated 24.3.1977 issued by the Board adopting the Punjab Electricity Board instructions for making reservation for members of Scheduled Castes and Scheduled Tribes in the matter of their recruitment/promotion. Learned counsel for the petitioners further alleged that instructions dated 21,11,1986 (Annexure P-12) are against the Government of India letters dated 27.11.1972 (Annexure P-13) and 30.9.1974 (Annexure P-
14). The BBMB is duty bound to comply with the instructions of the Central Government. As per Section 79(4) of 1966 Act, the Central Government instructions were applicable to all the employees who were absorbed in the Board but will continue on the old service condition until the Central Government directs otherwise. Mr. Bakshi contends that all the instructions issued by the State of Punjab are applicable and to be adopted by the BBMB.
Mr. Arun Nehra appearing for the respondents has placed strong reliance on Section 79(9) of the Punjab Reorganization Act which clearly provides that the BBMB has absolute power to make Regulation/Rules C.W.P.No. 6823-A of 1989 8 for appointment and conditions of service. The Board is not to follow all the instructions of the State of Punjab for the purpose of providing reservation for recruitment and promotion. He has placed reliance on instructions Annexures R-1 and R-2, whereby the BBMB has given benefit for reservation for an ad hoc and work charged employees respectively. Vide instructions dated 21,11,1986 (Annexure P-12), it has been clarified that reservation shall not be at the stage of promotion and it shall only be at the stage of recruitment. He has argued that prior to 1979, there was no instruction regarding reservation for Scheduled Castes and Scheduled Tribes for work charged employees in the matter of appointment in BBMB. Mr. Arun Nehra has argued that the petitioners were not the regular employees of the Punjab Government. They were work charged employees. The instructions of State of Punjab were applicable for members of Class I, II, III and IV of Government Service as is evident from instructions Annexures P-1 to P-3. The work charged employees are industrial worker and are governed by the provisions of Industrial Employment (Standing Order) Act, 1946. Reliance has been placed on a judgment in Kunji Ram Vs. Kunji Raman, 1977 (1) Recent Services Judgment C.W.P.No. 6823-A of 1989 9 617 the Supreme Court has categorically held in this judgment that regular establishment and work charged employees are two separate types of establishments and the persons employed on those establishments are from two separate and distinct classes. Both are governed by separate set of rules and it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. A Division Bench of this Court in Sukhdev Rai Vs. Bhakra Beas Management Board, 1994(4) Recent Services Judgment 352 has held that the service of work charged employees rendered by an employee cannot be tagged with the period of service under the Bhakra Beas Management Board for the purpose of reorganization of their services and consequential benefits.
Mr. Nehra has argued that after being absored in the BBMB, the petitioners are governed by the policy/instructions issued by the BBMB. They cannot claim any benefit from the instructions issued by the State of Punjab, which are not adopted by BBMB for the purposes of reservation in promotion.
Reliance has been placed on a judgment of Supreme Court in Indra Sawhney and others Vs. Union of India and others, 1993(1) Recent Services Judgments (Volume II) 1, while interpreting Article 16(4) of the C.W.P.No. 6823-A of 1989 10 Constitution, the Apex Court has held that Article 16(4) has an overriding effect on Articles 16(1) and (2). The power conferred in reservation of classes of citizen not adequately represented in the service under the State is one coupled with a duty- State has to exercise that power for benefit of all those for whom it is intended. Once such classes are to be identified then the reserved post are offered to those classes. While reservation is impermissible for appointment to higher posts by promotion from lower posts, any other legitimate affirmative action in favour of disadvantage classes of citizens by means of valid classification is perfectly in accordance with the mandate of Article 16(1). It is within the discretion of the State to extend to all disadvantageous groups, including any backward class or candidates, preference or concession such as longer period of minimum time to pass qualifying tests etc. The Hon'ble Supreme Court in paragraph 315 reads thus:-
" Reservation affords backward classes of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. But it is wrong to see it as a mere weapon to capture power, as C.W.P.No. 6823-A of 1989 11 suggested at the bar. In a democracy, real power lies in the ballot and it is exercised by the majority. Any attempt to project the concept of reservation under clause (4) as a weapon of aggrandisement to gain power will result in the creation of a meaningless myth and a dangerous illusion which will ultimately distort the constitutional values."
As per the majority view, the Hon'ble Supreme Court in Indra Sawhney's case (supra), has held that reservation in promotion would be in the discretion of the State and to claim it as a matter of right for further promotion is impermissible. Any deviation from the golden rule and justice is unconstitutional.
After going through the entire file, I have come to the conclusion that the petitioners were working as work charged employees in Irrigation Department in the State of Punjab before being absorbed in the BBMB. They were not governed by any reservation policy being work charged employees in the State of Punjab. After being absorbed in the BBMB, the service condition was governed by Section 79(9) of the 1966 Act. The BBMB is an independent statutory authority under the 1966 Act. It has been given power to employ the staff, frame its C.W.P.No. 6823-A of 1989 12 own Rules and Regulations/instructions for appointment or promotion etc. The Board exercising such power had issued instructions dated 24.3.1977 (Annexure R-1) providing reservation from making adhoc appointment. Vide instructions dated 19.12.1979 (Annexure R-2) reservation for the members of Scheduled Castes/Scheduled Tribes in workcharged establishment has been followed. Subsequently, by instructions dated 21.11.1986 (Annexure P-12), it was clarified that reservation shall be only at the initial stage of recruitment and not at the stage of promotion. It has also been clarified that prior to 1979, there were no instructions regarding reservation for Scheduled Castes/ Scheduled Tribes for workcharged employees in the BBMB. Applying the ratio in Indra Sawhney's case (supra), the decision of the BBMB as per Annexure P-12 not to extend benefit of reservation of promotion is valid and as per law.
The Supreme Court in a recent judgment in M.Nagaraj and others Vs. Union of India and others, (2006) 8 Supreme Court Cases 212 had an occasion to examine the validity of the Constitutional amendment of Articles 16(4-A) & (4-B). These amendments do not alter the structure of Article 16(4). These amendments are C.W.P.No. 6823-A of 1989 13 creative by nature. Articles16 (4-A) & (4-B) are inspired enshrined in Indra Sawhney's case (supra), They leave it to the State to provide for reservation. The State is not bound for reservation for Scheduled Castes/ Scheduled Tribes in the matter of promotion. However, if they wish to exercise their discretion and make reservation in promotion, the State have to collect the quantifiable data that there exists backwardness of a class and inadequacy of representation in employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. Keeping in mind maintenance of efficiency as indicated under Article 335 of the Constitution, the Supreme Court has observed in paragraph 123 which reproduces as below:-
" However, in this case, as stated above, the main issue concerns the "extent of reservation". In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The C.W.P.No. 6823-A of 1989 14 State is not bound to make reservation for Scs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely."
In view of the above, the writ petition is dismissed with no order as to costs.
26.11.2010 ( RITU BAHRI)
Anoop JUDGE
C.W.P.No. 6823-A of 1989 15