Punjab-Haryana High Court
Kanwaljit Singh Bakshi vs State Of Punjab And Another on 31 May, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
CWP No. 7078 of 2002 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 7078 of 2002 (O&M)
Date of decision : 21.05.2012
Kanwaljit Singh Bakshi .....Petitioner
versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. Puneet Gupta, Advocate
for the petitioner.
Ms. Gagan Mohini, A.A.G Punjab
****
RITU BAHRI, J.
This petition under Articles 226/227 of the Constitution of India is for issuance of a writ of certiorari for quashing para-2 of the appointment letter dated 21.04.1997 (Annexure P-1) of the petitioner as Assistant Advocate General and for quashing clause (iii) and (v) and para- 2 of the appointment letter dated 04.06.1997 (Annexure P-2) in respect of the petitioner's appointment as Assistant Advocate General Punjab and also for setting aside and quashing the letter dated 17.04.2002 (Annexure P-4).
CWP No. 7078 of 2002 (O&M) -2-
Brief facts of the case are that the petitioner (since deceased) did his professional degree course in Law i.e L.L.B from Kurukshetra University, Kurukshetra in the year 1977. After completing his professional course he started his practice as an Advocate at Chandigarh. He initially practiced for some time at the District Courts, Chandigarh. Thereafter, he started his private practice. After having put in about 20 years of practice at the Bar, the petitioner (since deceased) was appointed as Assistant Advocate General, Punjab in the office of Advocate General Punjab on 21.04.1997 (Annexure P-1). As per this letter, the name of the petitioner figures at Sr. No. 11 of the Assistant Advocates General, Punjab. Sub para
(iii) of the appointment letter depicts that appointment/service was on contractual basis and purely temporary in nature. Subsequently, State government issued one memo dated 04.06.1997 (Annexure P-2). As per this memo, the Assistant Advocate General would be in running pay scales and would be whole time Government employees. In the matter of leave and travelling allowances, they would be governed by the Punjab Civil Services Rules and their appointments would be subject to medical fitness by the Medical Board. The appointments/services are contractual and purely temporary in nature. Their appointments will be against the non- pensionable posts.
Reference has been made to a judgment passed by this Court CWP No. 7078 of 2002 (O&M) -3- in a case of Dr. Mrs. S.K. Bhatia., Deputy Advocate General, Punjab vs. State of Punjab passed in C.W.P No. 9139 of 1993 decided on 30.05.1997 reported in 1998(1) All Instant Judgment Page 69. Vide order dated 11.04.1991, she was appointed as Deputy Advocate General, Punjab in the pay scale of 4500-6100/- After she had worked as Deputy Advocate General for about 2 years and 03 months, the Governor of Punjab terminated his services. She filed the aforesaid writ petition challenging the order of termination, vide judgment dated 30.05.1997 (Annexure P-5). This petition was allowed and order terminating the service of Dr. Mrs. S.K. Bhatia was quashed and it was ordered that the petitioner shall get all the consequential benefits. LPA was filed against this judgment, which was dismissed on 05.02.1998 (Annexure P-6). The respondents filed SLP in Hon'ble the Supreme Court in which no leave to appeal has been granted. The judgment of Dr.Mrs. S.K. Bhatia case (supra) has been subsequently followed in many cases.
Learned counsel for the petitioner has referred to a judgment of Hon'ble the Supreme Court in a case of State of Punjab and another vs. Suresh Kumar Sharma, 2010(4) SCT 490, where the respondent was appointed as Advocate General and thereafter he was appointed as Deputy Advocate General and Senior Deputy Advocate General in the State of Punjab. He continued to work and after retirement he was denied CWP No. 7078 of 2002 (O&M) -4- the benefit of regular service on the ground that his services were contractual in nature. The respondent submitted that some similarly placed persons were also denied pensionary benefits after their supperanuation and in the writ petitions of V.P. Parashar, D.N. Rampal and S.K. Bhatia, this Court had allowed their writ petitions and directed the State of Punjab to give them pensionary benefits. Hon'ble the Supreme Court while dismissing the SLP on 17.03.2009 in a case of State of Punjab and another vs. S.K. Bhatia and others has held that once the State Government had accepted the judgment in the case of S.K. Bhatia and in the case of G.S. Cheema, it has to adopt the same yardstick in this case also, unless there are any distinguishing factors or circumstances. The SLP was dismissed with costs of Rs. 25000/- to be deposited by the State of Punjab to the respondent on account of the fact that the State of Punjab could not distinguish the case of the respondent with the case of Dr. S.K. Bhatia and others.
Ms. Gagan Mohini, A.A.G Punjab, has not been able to point out any fact which distinguishes the case of the petitioner with the case of Dr. S.K. Bhatia and others. Dr. S.K. Bhatia as well as the present petitioner were appointed on contractual basis. In the matter of leave and travelling allowances, they would be governed by the Punjab Civil Services Rules. They were to be treated as whole time government employee. CWP No. 7078 of 2002 (O&M) -5-
After hearing learned counsel for the parties and after going through the records, this Court is of the view that ratio of the judgment of S.K. Bhatia's case is fully applicable to the facts of the present case. The petitioner was appointed and was terminated on the ground that the services were contractual in nature. As mentioned above, the Assistant Advocate General are appointed in running pay scales and are whole time Government employees. In the matter of leave and travelling allowances, they are governed by the Punjab Civil Services Rules and their appointments are subject to medical fitness by the Medical Board. The appointments/services are contractual and purely temporary in nature. Their appointments will be against the non-pensionable posts.
Learned counsel for the petitioner has further contended that during the pendency of the writ petition, the petitioner expired and his legal heirs (Updesh Kaur-wife, Bikramjot Singh Bakshi-son and Mir Manjot Singh Bakshi (minor)-son) were brought on record, vide Civil Misc. No. 14669 of 2003. The petitioner had served from 1997 till 2002 i.e for almost 5 years.
For the reasons mentioned above, the present writ petition is allowed. Order dated 17.04.2002 (Annexure P-4), para-2 of the appointment letter dated 21.04.1997 (Annexure P-1) & clause (iii) and (v) and para-2 of the appointment letter dated 04.06.1997 (Annexure P-2) are CWP No. 7078 of 2002 (O&M) -6- quashed. The legal heirs of the petitioner are held entitled to full salary till the date of his death i.e 17.06.2003, as per death certificate, which is part of the application i.e Civil Misc. No. 14669 of 2003. Thereafter, the legal heirs of the petitioner will given the benefits as applicable to the family members i.e family pension on the death of regular employee. It is further directed that the above said exercise shall be completed, within a period of four months from the date of receipt of certified copy of this order.
21.05.2012 (RITU BAHRI) G.Arora JUDGE