Punjab-Haryana High Court
Punjab State Electricity Board And ... vs Bhim Sain And Another on 5 September, 2011
L.P.A. No. 418 of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
L.P.A. No. 418 of 2011 (O&M)
Date of Decision: September 05, 2011
Punjab State Electricity Board and another
---Appellants
versus
Bhim Sain and another
---Respondents
Coram: HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE GURDEV SINGH
***
Present: Mr. Sukhbir Singh, Advocate,
for the appellants
Mr. Baljit Puri, Advocate,
for respondent No. 1
Mr. Suvir Sehgal, Addl. Advocate General, Punjab
for respondent No. 2
***
1. To be referred to the Reporter or not?
2. Whether the judgment should be reported in the Digest?
M.M.Kumar, J.
The instant appeal under Clause X of the Letters Patent is directed against judgment dated 19.11.2009 rendered by learned Single Judge holding that the writ-petitioner-respondent No. 1 is entitled to two years more service as his date of retirement is deemed to be 60 years as against 58 years at which L.P.A. No. 418 of 2011 -2- age he was retired.
Brief facts of the case are that the writ-petitioner-respondent No. 1 joined the service in Pepsu State as Lineman on work charge basis in PWD (B & R) Department on 16.8.1956. His services were regularized on 1.8.1954. The State of Pepsu was merged with the State of Punjab in 1956 under the provisions of State Re-organisation Act, 1956(for brevity 'the 1956 Act'). The service conditions of the employees working under the Pepsu State were protected under Section 115(7) of the 1956 Act. The services of the writ petitioner-respondent No. 1 were absorbed by the appellant-Punjab State Electricity Board on the post of Lineman. On 12.10.1976 he was promoted on the post of Foreman and retired as such on 31.8.1991 on attaining the age of superannuation. A writ petition relatable to the instant appeal was filed in 1993 challenging that his age of retirement has to be regarded as 60 years because in the State of Pepsu he would have retired on the post of Lineman on attaining the age of 60 years.
The learned Single Judge upheld the claim made by the writ petitioner-respondent No. 1 accepting that the age of retirement of inferior employee working in the erstwhile State of Pepsu was 60 years. In that regard reliance has been placed on judgment dated 1.2.1993 rendered in CWP No. 5605 of 1992 wherein the following decisions were also followed:-
1. R.S.A. No. 902 of 1965-State of Punjab v. Bachan Singh driver-decided on 30.11.1965
2. R.S.A. No. 1355 of 1974-State of Punjab v. Atma Singh
-decided on 10.2.1981
3. C.W.P. No. 6541 of 1986-Niranjan Singh v. State of Punjab-
decided on 27.11.1989
4. C.W.P. No. 3162 of 1987-Bakhtawar Ram v. State of Punjab- L.P.A. No. 418 of 2011 -3-
decided on 5.10.1987
5. C.W.P. No.4329 of 1976-decided on 3.3.1983
6. R.S.A. No. 2163 of 1988 Punjab State v. Raghbir Chand Carpenter-decided on 13.9.1988"
Holding that the writ petition relatable to the instant appeal was covered by the above decisions, the learned Single Judge issued directions to the appellant-Board to treat the writ petitioner-respondent No. 1 to have retired at the age of 60 years and to grant him the benefit of two years more service.
We have heard learned counsel for the parties and are of the view that the writ petitioner-respondent No. 1 was promoted to the post of Foreman on 12.10.1976 which is a Class-III post. He rendered about 15 years service on Class-III post. Under the Pepsu Service Regulations, it was only for Class IV posts like Lineman that the age of retirement was 60 years whereas for Class III posts no such age was prescribed. Learned Single Judge appears to have fallen in an error by accepting the claim of the writ -petitioner- respondent No. 1 that the post of Foreman was also a Class IV post. The aforesaid factum of promotion, in fact, has not been adverted to by the learned Single Judge and as a result, the view has been taken as if the writ petitioner-respondent No. 1was working on a class IV post. The aforesaid view is supported by a Division Bench judgment of this Court rendered in the case of Krishan Lal Aggarwal v. State of Punjab,1995(2) RSJ 160. The Division Bench has held that once a person is promoted to Class III post then he cannot claim that his condition of service with regard to age of retirement when he was working on Class IV post should be protected. The aforesaid argument has been specifically repelled in para Nos. 17 and 18 of the above said judgment which reads thus:-L.P.A. No. 418 of 2011 -4-
"After a consideration of the matter, we are of the considered view that even if an employee initially joins a post in a Class IV service, he cannot continue till the age of 60 years if at the time of retirement, he is holding a Class III post for which the age of retirement is admittedly 58 years. Consequently, we answer the first question posed at the outset in the negative.
In view of our conclusion, the second question relating to the violation of the provisions of the State Reorganisation Act, 1957 and the Punjab Reorganisation Act, 1966, does not really arise. However, even otherwise, we do not find any merit in the contention raised on behalf of the petitioners. In this behalf, it deserves mention that under Article 309 of the Constitution, the Sate Government is competent to amend the rules relating to the conditions of service. It has been held by their Lordships of the Supreme Court in D.S.Vadhera vs. Union of India, 1969 S.L.R. That the rules framed under Article 309 of the Constitution are legislative in character. These can be enforced prospectively as well as retrospectively. This principle of law was reiterated in K.Nagraj vs. State of U.P. AIR 1985 SC 551. The conditions of service relating to the petitioners in the erstwhile State of Pepsu were contained in the Pepsu Service Regulations. As noticed above, these rules were modified vide notification dated February 7, 1964 with effect from March 28, 1963. Under the Pepsu Service Regulations, the employees holding Class III posts were liable to be retired at the age of 55 years. By the above- mentioned notification, the age of superannuation was raised to 58 years. That being so, even in the erstwhile State of Pepsu, the L.P.A. No. 418 of 2011 -5- Class III employees were liable to be retired at the age of 58 years. Consequently, no change in the conditions of service relating to the petitioners has occurred. Even otherwise, it has been held by their Lordships of the Supreme Court in N.Raghavendra Rao vs. Dy. Comm. South Kanora Managalore, AIR 1964 SCR 549 that a general approval granted by the Government of India is sufficient compliance with the provisions of Section 115(7) of the State Reorganisation Act. This view was reiterated by their Lordships of the Supreme Court in Mohd. Shujat Alis's case 1974(2) SLR
508."
When the facts of the present case are examined in the light of the aforesaid principles of law laid down by he Division Bench, we are left with no doubt that the view of the learned Single Judge is not sustainable in the eyes of law because the factum of promotion of the writ-petitioner-respondent No. 1 to a Class III post cannot be ignored.
In view of the above, the appeal is allowed. The judgment of the learned Single Judge is set aside and the order of retirement of the writ petitioner-respondent No. 1 at the age of 58 years is upheld.
(M.M.KUMAR) JUDGE (GURDEV SINGH) JUDGE September 05, 2011 PARAMJIT