Punjab-Haryana High Court
Union Of India And Others vs Central Administrative Tribunal And ... on 25 February, 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 6430-CAT of 1998
Date of Decision: February 25, 2009
Union of India and others
...Petitioners
Versus
Central Administrative Tribunal and others
... Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. N.S. Bawa, Advocate,
for the petitioners.
Mr. R.K. Sharma, Advocate,
for the respondents.
1. Whether Reporters of local papers may be Yes
allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
Through the instant petition filed under Article 226 of the Constitution, the Union of India and its Officer have prayed for quashing order dated 6.11.1997 (P-8) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, 'the Tribunal')-respondent No. 1 extending the benefit of military service under the Punjab Government National Emergency (Concession) Rules, 1965 (for brevity, 'the 1965 Rules') to the Original Applicants-respondent Nos. 2 to 7. C.W.P. No. 6430-CAT of 1998 2
2. Brief facts of the case may first be noticed. Respondent Nos. 2 to 7 are ex-servicemen and have served the Armed Forces under different divisions. They also rendered service during National Emergency and are covered under the definition of 'military service'. The Beas Project-Unit No. 2, which was under the overall control of petitioner Nos. 1 to 3, had invited applications on 11.2.1970 for appointment of Morse-On-Wireless Trained Telegraphists in the pay scale of Rs. 150-300 (P-2). In the advertisement (P-2) it was mentioned that preference would be given to ex- servicemen. The appointment was initially in work-charged capacity. Respondents Nos. 2 to 7, who were fully eligible as per the conditions of advertisement applied. After interview they were selected and appointed on various dates. They were appointed in Beas Construction Board (for brevity, 'BCB') on work charged basis and rendered continuous service without any break in the regular pay scale of the post and earned all annual increments like regular employees. The 'BCB' has been following the Punjab pay scales as revised from time to time as Project pay scales, which were continued up to 31.12.1985. On completion of the Beas Project, the components were to be transferred to the Bhakra Beas Management Board (for brevity, 'BBMB') under the Punjab Reorganization Act and the staff rendered surplus was to be redeployed either in the Central Government departments or Central Surplus Staff Cell or were to be absorbed in the 'BBMB'. On completion of work at Talwara, all the Original Applicants- respondents were transferred to 'BBMB' from 'BCB' w.e.f. 1.6.1983, except Som Nath, respondent No. 6, who was transferred on 11.4.1979 in the same capacity. They continued working with 'BBMB' as such till the C.W.P. No. 6430-CAT of 1998 3 filing of Original Application before the Tribunal. Their pay for the period they served under the 'BCB' project was protected and carried forward to 'BBMB'. Despite their continuous service earlier in 'BCB' and subsequently in 'BBMB', their formal orders of regularisation were issued by the 'BBMB' in the year 1988 and all the work charged employees who had joined 'BCB' or 'BBMB' were enblock declared regular w.e.f. 1.4.1988.
3. On 30.6.1965, the Punjab Government had issued a notification enforcing the 1965 Rules whereby benefit of military service was extended to all servicemen under Rule 4 thereof irrespective of whether they were temporary, regular, ad hoc or work-charged or in any other capacities. The 'BBMB' adopted the said Rules on 31.8.1989 wherein the words "regular basis" were incorporated by the 'BBMB' on its own. As per the the Rules the benefit of military service was to be granted on the first appointment, which in the case of Original Applicants-respondent Nos. 2 to 7 was 'BCB'. The Original Applicants-respondent Nos. 2 to 7 through their union represented for grant of this benefit. However, their request was declined.
4. Feeling aggrieved the Original Applicants-respondent Nos. 2 to 7 approached the Tribunal and challenged order dated 31.7.1989 (31.8.1989?, P-4) and order dated 19.4.1990 (P-7). The order dated 31.7.1989 has been passed by the 'BCB'. According to the aforesaid letter, 59th meeting of the Standing Committee of the 'BCB' is stated to have been held on 22.7.1989 and its minutes were approved by the Standing Committee of the Board. The net result is that the 1965 Rules granting benefit of emergency service read with subsequent circular dated 29.9.1971 and 12.2.1982 were adopted. It has further been stated that the 1965 Rules C.W.P. No. 6430-CAT of 1998 4 would be applicable to the ex-servicemen employed on class I, II, III and IV posts on regular basis in the 'BCB' on the same terms and conditions as per the orders of the Punjab Government. It is further pertinent to notice that the 1965 Rules had extended the emergency service benefits to such ex- servicemen who had joined Government service, as is evident from the perusal of the 1965 Rules (P-5). According to Rule 4 of the 1965 Rules, the benefits towards increment, seniority and pension were made available to the extent of military service rendered by such incumbent. On 29.9.1971, some clarification has been issued which is not material for deciding the controversy raised in the instant petition. It is further pertinent to notice that on 12.2.1982, the Punjab Recruitment of Ex-Servicemen Rules, 1982 (for brevity, 'the 1982 Rules') were promulgated and the 1965 Rules were repealed. However, Rule 9(3) of the 1982 Rules clarified that those persons who are governed by the 1982 Rules were not to be deprived of any right which had accrued to them under the rules, notifications or orders in force immediately before the commencement of 1982 Rules. The Tribunal also considered the letter dated 19.4.1990 (P-7) declining the request of the Original Applicants-respondent Nos. 2 to 7 for grant of military service benefits towards fixation of their pay, who were recruited by 'BCB' in work charged capacity.
5. The main features of the order passed by the Tribunal are that 'BCB' and 'BBMB' were constituted with one object of executing Hydro Electric Projects in the erstwhile State of Punjab, which were under the same Department of Power, Ministry of Energy, Union Government. The Tribunal also took the view that all assets of 'BCB' were to be transferred to 'BBMB' and that the Original Applicants-respondent Nos. 2 to 7 although C.W.P. No. 6430-CAT of 1998 5 were work charged employees but for all intents and purposes they were treated at par with regular employees as they were given regular pay scales, increments and their recruitment and selection was also in pursuance of advertisement. The Tribunal also recorded a finding that the benefits of the 1965 Rules were extended to all the employees in the State of Punjab and Union Territory, Chandigarh and there was no reason for carving out an exception in the case of the work charged employees of the 'BCB'. On the aforesaid premises, the Tribunal quashed order dated 31.7.1989 (31.8.1989?) and order dated 19.4.1990. The Tribunal while allowing the application has concluded as under:
" In view of the above discussion, the present OA is allowed and the order Annexure P.1 dated 31.7.89 and order Annexure P.2 dated 19.4.1990 are quashed and set aside to the extent these deny the benefits of military service to the applicants and to the extent these adversely affect the applicants for extension of the benefits claimed in the OA. We further direct that the respondents shall extend to the applicants the benefit of military service as claimed in the OA with all consequently benefits."
6. The Union of India, 'BCB' and 'BBMB' have challenged the order passed by the Tribunal being unconstitutional alleging that the order suffers from material irregularities and errors apparent on the face of the order. It is averred that denial of military service benefits to Original Applicants-respondent Nos. 2 to 7 was strictly in accordance with the Rules. It is also stated that Original Applicants-respondent Nos. 2 to 7 were working on work charge basis and were not holding any post nor were they C.W.P. No. 6430-CAT of 1998 6 member of the service before regularisation. Moreover, the 1965 Rules were repealed w.e.f. 12.2.1982 and Original Applicants-respondent Nos. 2 to 7 were reguarlised in service w.e.f. 1.4.1988, which is much after the repealing of the 1965 Rules. Therefore the benefit of repealed 1965 Rules cannot be given to them. It is further averred that petitioner Nos. 2 and 4 are separate, independent and different organizations, having distinct functions and constitution as per the provisions of the Punjab Reorganization Act, 1966. Both these organisations work independently of each other and decisions taken by one are not binding on the other. The petitioners have also taken the stand that benefit of military service can be given once only at the time of initial appointment and the Tribunal has wrongly allowed the Original Application of respondent Nos. 2 to 7 by granting them benefit of military service despite the fact that they were working in work charge capacity at the time of initial appointment.
7. In para 6 of the written statement filed by the Original Applicants-respondent Nos. 2 to 7, it has been submitted that the nomenclature and functions of 'BCB' and 'BBMB' i.e. petitioner Nos. 3 and 4 are/were separate although they were under the same Ministry, under the same Department and as such they are having independent entity. There is no perpetual succession and they are part and parcel of the department of Government of India and, therefore, for all intents and purposes, no discriminatory terms and conditions of the employees of the two Boards can be laid down. They have claimed that the Financial Advisor of both the petitioners is common and the constitution of both the Boards show that they have no separate legal entity.
8. The pivotal question which needs determination is whether the C.W.P. No. 6430-CAT of 1998 7 Original Applicants-respondent Nos. 2 to 7 could be considered as regular employees of the 'BCB' and/or 'BBMB'. It has remained undisputed that their services have been regularized w.e.f. 1.4.1988 by the orders passed by the 'BBMB' where they were transferred w.e.f. 1.6.1983 (except one Som Nath, Original Applicant-respondent No. 6, who was transferred on 11.4.1979). It has further come on record that the Original Applicants- respondent Nos. 2 to 7 had applied for appointment to the post of Morse- On-Wireless Trained Telegraphists in pursuance to an advertisement issued in 'The Tribune' on 11.2.1970. The Original Applicants-respondent Nos. 2 to 7 were appointed in the year 1970. The following table would show the details of everyone of them:-
Sr. Name Designatio Name of Date of Date of Date of Date of No. n office Birth Enrol-ment Discharge appoint-
where in Military from ment in
employed Military 'BCB'
1. Mohinder Chargeman O/o Senior 1.6.1943 23.4.1956 23.6.1970 9.7.1970
Singh Spl. Gr. I Design (with 16
Saini (Wireless Engr. days
Operator) Water leave)
Regulation
BBMB,
Talwara
Township
Distt.
Hoshiarpu
r
2. Chaman -do- -do- 12.2.1942 22.1.1962 29.1.1968 25.8.1970
Lal
3. Arjan -do- -do- 17.2.1944 16.6.1961 8.12.1966 25.6.1970
Singh
4. Karan Lal -do- -do- 2.7.1945 18.11.196 17.11.196 18.8.1970
3 9
5. Som Nath -do- -do- 1.4.1940 15.2.1958 10.4.1968 10.3.1970
6. Mohinder -do- -do- 20.11.194 22.9.1959 31.12.197 3.12.1976
Singh 3 5
9. Therefore, it cannot be concluded that their appointment was in C.W.P. No. 6430-CAT of 1998 8 any way a back-door entry or it was in violation of Article 14 or 16(1) of the Constitution. Their appointments have been made after due consideration of competing claims of various other applicants. It is in this context that the view taken by the Tribunal to that extent deserves to be approved when it observed thus:-
"......Both had adopted similar pay scales from time to time. On completion of the project under BCB, all the components were to be transferred to BBMB under the Punjab Reorganisation Act, and staff rendered surplus was also to be redeployed either in the Central Govt. departments or was to be absorbed in BBMB. Applicants, in fact, were transferred to BBMB from the Beas Project with effect from 1.6.83 (except respondent No. 5, who was transferred on 11.4.79). It is also not disputed that benefits of the said rules have been extended to various departments under the Punjab govt. and also to the UT administration employees. It is further not in dispute that the benefits of the said National Emergency (Concession) Rules have been extended to the employees of BBMB which has been under the control of the same department and has been in fact utilised for absorption of the surplus employees of BMB. We cannot shut our eyes to the fact that if the employees of BCB like the applicants were to be treated differently than regular employees, the Govt. need not have considered them for reabsorption either in BBMB or through the surplus cell under the Central Govt. From the treatment meted out to them for this purpose, they have been given treatment at par with regular C.W.P. No. 6430-CAT of 1998 9 employees absorbed after being rendered surplus and that indicates that they were not treated like casual employees or employees whose services ought to have come to an end on completion of the Project. .......... It is not disputed by any one that employees of BBMB have been given the benefits of the 1965 Concession Rules aforesaid irrespective of the fact whether the employees were regular or not regular. To us, this appears to be in consonance with the intention of the legislature, which while enacting the said rules intended to give the benefit of the same to one and all who had rendered service during the national emergency in the Army. The intention of the legislature being clear, the different departments adopted the same as the rules existed. ......"
10. Once we find that these employees have been selected and appointed by following the due process of law it would not be fair to conclude that their service was not regular, especially when they have been treated equivalent to regular employee in the matter of payment of salary, increments and other things. They were also absorbed in the 'BBMB', which have extended the benefit of 1965 Rules to all its employees, who were eligible. It is well settled that if the procedure for making appointment has been followed and the competing claims of all eligible persons by issuing advertisement have been considered then the nature of appointment cannot simply be regarded as ad hoc or temporary. In that regard reliance may be placed on the judgment of Hon'ble the Supreme Court in the case of State of West Bengal v. Aghore Nath Dey, (1993) 3 SCC 371. It was laid C.W.P. No. 6430-CAT of 1998 10 down in that case, on the basis of the earlier Constitution Bench judgment rendered in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715, that if an officiating service is followed by regularization and it is shown that the recruitment on officiating basis was made in accordance with the rules and procedure then even seniority could be given to an employee. Therefore, reliance on these judgments could be placed for a limited purpose of granting the benefit of military service to the Original Applicants- respondent Nos. 2 to 7 for the purposes of pension.
11. In the present case, the Original Applicants-respondent Nos. 2 to 7 have attained the age of superannuation and have retired as all of them were born between 1940 to 1945. The aforesaid factual position is evident from the perusal of their particulars in the table extracted above. We are merely drawing an analogy from the judgment of Hon'ble the Supreme Court in Aghore Nath Dey's case (supra) for one purpose only that once the initial appointment of an employee is not violative of rules or regulations or Articles 14 and 16(1) of the Constitution then it may not be unsafe to consider such an appointment as regular, especially when the question of granting benefit of military service that too for the limited purpose of pension, has to be considered. Similar view has been expressed by another Full Bench of Hon'ble the Supreme Court in the case of Secretary, State of Karnataka v. Umadevi, (2006) 4 SCC 1. Therefore, we are inclined to uphold the view taken by the Tribunal.
12. The 1965 Rules grants the benefit of military service rendered during emergency period commencing from 26.10.1962 to 9.1.1968. C.W.P. No. 6430-CAT of 1998 11 According to rule 4 of the 1965 Rules, the period of military service is to count for increments, seniority and pension and the same reads as under:-
"4. Increments, seniority and pension.- Period of military service shall count for increments, seniority and pension as under :
(i) Increments - The period, spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post, to which be is appointed, shall count for increments. Where no such minimum age is prescribed the minimum age shall be as laid down in Rules 3.9.
3.10 and 3.11 of the Punjab Civil Services Rules, Volume II. This concession shall, however, be admissible only on first appointment.
(ii) Seniority - The period of military service mentioned in clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service.
(iii) Pension - The period of military service mentioned in clause (i) shall count towards pension only in the case of appointments to permanent services or posts under the Government subject to the following conditions :
(1) The person concerned should have earned a pension under military rules in respect of the military service in question.
(2) Any bonus or gratuity paid in respect of military service by the defence authorities shall have to be C.W.P. No. 6430-CAT of 1998 12 refunded to the State Government.
(3) The period, if any, between the date of discharge from military service and the date of appointment to any service or post under the Government shall count for pension, provided such period does not exceed one year. Any period exceeding one year but not exceeding three years may also be allowed to count for pension in exceptional cases under the orders of the Government."
13. A perusal of the aforesaid Rules shows that the period spent by a person on military service is to count for increments, seniority and pension. The increments are to be given for the period spent by such a person on military service after attaining the minimum age prescribed for appointment of any service or post to which he has been appointed and where no such minimum age is prescribed then the minimum age would be as per Rule 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume-II. The concession of increment is admissible on first appointment. The question of seniority would not arise in the present case. In so far as the pension is concerned, the period of military service is to count towards pension, if the appointment has been made to permanent service or post under the Government subject to various conditions. Therefore, the Original Applicants-respondent Nos. 2 to 7 would be entitled to the benefit of military service as defined under Rule 2 of the 1965 Rules subject to further conditions prescribed in Rule 3 of the 1965 Rules.
14. As a sequel to the above discussion we uphold the order passed by the Tribunal. However, upholding the order of the Tribunal passed in the C.W.P. No. 6430-CAT of 1998 13 instant case shall not be considered as approval of the whole reasoning given by the Tribunal in its order. One part of the reasoning of the Tribunal is not acceptable to us, where it has been observed that the employees of the 'BCB' and 'BBMB' are employees of the same Department of Power, Ministry of Energy, Union Government and all the employees have to be regarded as the employees of the Union of India. Such a reasoning loses sight of the fact that every agency of the Union of India have to act within its own sphere but merely because they are ultimately under the control of one department of the Union Government would not mean that its employees become employees of the Union of India. Such reasoning does not commend itself to us and we are unable to approve the same. Subject to the aforesaid observation, the writ petition fails and the same is dismissed.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
February 25, 2009 JUDGE
okg/Pkapoor