Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1793 OF 2009
(Arising out of SLP(C) No. 22469 of 2007)
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.
3
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.
11