Sudesh Kumari vs State Of Punjab And Others

CWP No. 12047-2021
1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 12047-2021 (O&M)
Sudesh Kumari ....Petitioner
versus
State of Punjab and ors. ...Respondents
Date of Reserve: 20.08.2026
Date of Pronouncement: 07.09.2026
Uploaded on:- 15.09.2026
Whether only the operative part of the judgment is pronounced? No
Whether full judgment is pronounced? Yes
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present: Mr. H.S. Saini, Advocate
for the petitioner.
Mr. Ravneet Singh Joshi, DAG, Punjab and
Ms. Arundhati Kulshreshtha, AAG, Punjab.

SUDEEPTI SHARMA , J.
1. Challenge in the present writ petition is to order dated 17.12.2019
(Annexure P-10) passed by respondent No. 3 and reply dated 08.01.2020
(Annexure P-11) to the legal demand notice dated 11.11.2019 (Annexure P-9)
sent by respondent No. 4, whereby the claim of the petitioner for grant of
family pension, is rejected. Further prayer of the petitioner (s) is for issuance
of direction to the respondents to consider the claim of the petitioner for grant
of family pension.
BRIEF FACTS
2. Brief facts of the case, as per pleadings are that the husband of the
petitioner joined Ranjit Sagar Dam Project as Beldar on work charge basis on
11.09.1984. He died on 29.07.1993. He worked for 08 years 10 months with
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CWP No. 12047-2021
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the respondents. State of Punjab vide policy/instructions dated 07.05.1993
decided to regularize all work charge employees who have completed 5 years
of service but husband of the petitioner was not regularized. Lateron, another
policy dated 13.03.1996 was issued by State of Punjab to regularise the
services of all work charge employees of Ranjit Sagar Dam Project w.e.f the
said date. After the death of husband of the petitioner, the petitioner was
appointed as Beldar on regular basis on 13.06.1996. Thereafter, she requested
for family pension and her claim was rejected on the ground that the services
of her husband were never regularized and he died as work charge employee.
Therefore, she would not be entitled to family pension. Hence, the present writ
petition.
ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR THE
PARTIES
3. Learned counsel for the petitioner contends that the impugned
order is passed without taking into consideration the decision passed by
Co-ordinate Bench of this Court in “Leela Devi vs. State of Punjab and
others, passed in CWP No. 3932-2002 and Kamlesh Rani vs. State of Punjab
and others, passed in CWP No. 3938-2002, decided on 26.08.2010 and
judgment of Hon’ble the Supreme Court in a case of State of Haryana and
others vs. Ravinder Kumar and others, 2013 (13) SCC 695. He further
contends that though the husband of the petitioner died in the year 1993 and
she approached this Court in the year 2021, still the pension is recurring cause
of action, therefore, no delay is caused in approaching this Court. He has also
relied upon judgment titled as “ Balwinder Kaur vs. State of Punjab and
others”, passed in CWP No. 1169-2011 and connected cases, decided on
16.12.2014 and LPA No. 679-2015 titled as “ State of Punjab and others vs.
Balwinder Kaur” and connected cases, decided on 24.08.2026 to contend
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CWP No. 12047-2021
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that the case of the petitioner is covered by the latest decision of Balwinder
Kaur vs. State of Punjab and others, passed in CWP No. 1169-2011 and
connected cases, decided on 16.12.2014 which is upheld by Division Bench
of this Court in State of Punjab and others vs. Balwinder Kaur and
connected cases, passed in LPA No. 679-2015, decided on 24.08.2026. He,
therefore, prays that the present writ petition be allowed in the same terms.
4. Per contra, learned counsels for the respondents-State contend
that the husband of the petitioner died in the year 1993 and the present writ
petition is filed in the year 2021 after a delay of almost 28 years. They,
therefore, pray that the present writ petition be dismissed on delay itself. On
merits, they argue on the lines of written statement filed by them.
5. I have heard learned counsel for the parties and perused the whole
file of this case with their able assistance.
QUESTION OF LAW INVOLVED IN THE PRESENT WRIT PETITION
6. “ The question of law involved in the present writ petition is as to
whether the petitioner would be entitled to family pension despite the fact
that the services of husband of the petitioner were never regularized .”
7. Before proceeding further, it would be apposite to reproduce
impugned order dated 17.12.2019 (Annexure P-10) passed by respondent No.
3. The same is reproduced as under:-
“No 1130-72 1CC/11-4(UK) Dated 17/12/2019
To
The Executive Engineer,
Store Division,
RSD-Shahpurkandi Township.
Subject:- Legal Notice served by Smt. Sudesh Kumari w/o Late
Sh. Kundan Lal, Beldar.
Ref:- Your office letter No. 6252-53/22-Slated
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CWP No. 12047-2021
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10/12/2019
On the subject cited legal notice as desired by your
office letter under reference, parawise reply of Par No. 5, 6 & 7
is as under:-
Para No. 5 to 7:-That as per letter dated 01/03/2019 of Senior
Manager, Punjab National Bank, Shahpurkandi (Photocopy
attached) Smt. Sudesh Kumari is getting pension from FPFO
office which is admissible to her as Sh. Kundan Lal was working
in work-charge capacity. Certified Standing Orders were
applicable to work-charge staff alongwith Sh. Kundan Lal of
Ranjit Sagar Dam Project before 13/03/1996. The services of all
Ranjit Sagar Dam Project employees were regularized as per
notification of Govt. of Punjab (Photocopy attached) w.e.f.
13/03/1996, who opted for regularization of services. Rest of
regular staff who were working as work charge, daily wages
basis and the Certified Standing Orders are also applicable to
them at present.
Sh. Kundan Lal, Beldar was expired on 29/07/1993,
in view of position explained above his services could not be
regularized and regular family pension is not admissible to Smt.
Sudesh Kumari. The family penzion she is getting from EPFO is
admissible to her. The Service book of Sh. Kundan Lal, Seldar
(Expired) received through your office letter No. 487-88/5-E
dated 24/01/2019 is returned herewith.
This is for your information & further necessary
action please.
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CWP No. 12047-2021
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DA/- As above.
1. Photocopy of letter dt. 1/3/19
2. Service book as received. Executive Engineer,
Personnel Division,
SD Shalipurkandi T/Ship.
CC:-
1. Chief Engineer/RSDC, Water Resources Deptt. Punjab,
Shahpurkandi Township w.r.t. legal notice dated 11/11/2019
from Sh. H.S. Saini, Advocate, Punjab & Haryana High Court,
Room No. 24, New Bar Complex, Chandigarh.
2. Sh. H.S. Saini, Advocate, Punjab & Haryana High Court,
Room No. 24, New Bar Complex, Chandigarh w.r.t. above
quoted legal notice.”
8. It is now necessary to reproduce order dated 04.07.2024 passed
by Co-ordinate Bench of this Court:-
“In para No.14 of the writ petition, it is specifically averred as
under:-
" 14. That since due to non-grant of her family pension
benefits, petitioner was facing severe financial crisis and
unable to maintain her large family and many
representations and personal visits of the petitioner to
the office of respondent No. 2 to 4 time and again did not
elicit any response till date therefore, the petitioner was
left with no other option except to serve the Legal
Demand Notice dated 11.11.2019 upon the respondents
to get release her family pension benefits along with
other due benefits of her late husband and consequently,
release her all due family pension benefits along with
other due benefits of her late husband along with interest
@ 12% per annum on delayed payments, especially
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CWP No. 12047-2021
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keeping in view the decision dated 26.08.2010 of this
Hon'ble High Court in the case of "Leela Devi Vs. State
of Punjab and others, CWP No.3932 of 2002 and
Kamlesh Rani Vs. State of Punjab & Ors. CWP-3938-
2002". The true copy of the Legal Demand Notice dated
11.11.2019 is appended herewith as ANNEXURE/P-9."
2. In response, the respondents have not denied the above
averments; rather their reply is quite evasive and for reference,
para No.14 of affidavit dated 20.09.2021 of Mr. Mukhwinder
Singh Gill, Executive Engineer, Purchase Store & Disposal Dam
Division, Shahpurkandi Township, Tehsil and District Pathankot,
is extracted as under:-
" 14. That the contents of Para No.14 of the writ petition
are replied in the manner that petitioner served Legal
Notice for claiming regular pension and reply of the
Legal Notice was conveyed to the Counsel of the
petitioner which is annexed as Annexure P-11 with the
writ petition."
3. Learned counsel for the petitioner has apprised the Court that
although, LPA Nos.413 & 414 of 2011 have been filed against the
judgment dated 26.08.2010 (P-8), but the Division Bench vide
order dated 13.09.2011 specifically directed that "the appellants
will implement the judgment dated 26.8.2010 passed by the
learned Single Judge and release the family pension to the
respondents subject to filing of undertaking that they will refund
the amount in the event the appellants succeeds in their appeals."
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4. Faced with the above situation, learned State counsel seeks time
to have instructions in the matter.
5. Respondent No.2 is also directed to file an additional affidavit
in the matter.
6. Posted for 31.07.2024.”
9. In compliance of order dated 04.07.2024, the respondents filed
additional affidavit dated 21.09.2024 of Varinder Kumar, Chief
Engineer/Ranjit Sagar Dam Project, Water Resources Department, Punjab,
Shahpurkandi Township i.e respondent No. 2. The same is reproduced as
under:-
“1. That the present writ petition is pending in this Hon'ble Court and is
fixed for hearing on 17-11-2024
2. That the present writ petition last came up for hearing on dated
04.07.2024 and this Hon'ble Court on dated 04.07.2024 passed the
following order :-
“In para No.14 of the writ petition, it is specifically averred as
under:-
"14. That since due to non-grant of her family pension
benefits, petitioner was facing severe financial crisis and
unable to maintain her large family and many
representations and personal visits of the petitioner to
the office of respondent No. 2 to 4 time and again did not
elicit any response till date therefore, the petitioner was
left with no other option except to serve the Legal
Demand Notice dated 11.11.2019 upon the respondents
to get release her family pension benefits along with
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CWP No. 12047-2021
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other due benefits of her late husband and consequently,
release her all due family pension benefits along with
other due benefits of her late husband along with interest
@ 12% per annum on delayed payments, especially
keeping in view the decision dated 26.08.2010 of this
Hon'ble High Court in the case of "Leela Devi Vs. State
of Punjab and others, CWP No.3932 of 2002 and
Kamlesh Rani Vs. State of Punjab & Ors. CWP-3938-
2002". The true copy of the Legal Demand Notice dated
11.11.2019 is appended herewith as ANNEXURE/P-9."
2. In response, the respondents have not denied the above
averments; rather their reply is quite evasive and for reference,
para No.14 of affidavit dated 20.09.2021 of Mr. Mukhwinder
Singh Gill, Executive Engineer, Purchase Store & Disposal Dam
Division, Shahpurkandi Township, Tehsil and District Pathankot,
is extracted as under:-
" 14. That the contents of Para No.14 of the writ petition
are replied in the manner that petitioner served Legal
Notice for claiming regular pension and reply of the
Legal Notice was conveyed to the Counsel of the
petitioner which is annexed as Annexure P-11 with the
writ petition."
3. Learned counsel for the petitioner has apprised the Court that
although, LPA Nos.413 & 414 of 2011 have been filed against the
judgment dated 26.08.2010 (P-8), but the Division Bench vide
order dated 13.09.2011 specifically directed that "the appellants
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CWP No. 12047-2021
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will implement the judgment dated 26.8.2010 passed by the
learned Single Judge and release the family pension to the
respondents subject to filing of undertaking that they will refund
the amount in the event the appellants succeeds in their appeals."
4. Faced with the above situation, learned State counsel seeks time
to have instructions in the matter.
5. Respondent No.2 is also directed to file an additional affidavit
in the matter.
6. Posted for 31.07.2024.
04.07.2024”
3. That the present Additional Affidavit is being filed by the
Respondent No. 2 in pursuance of the aforesaid order dated 04.07.2024
passed by this Hon'ble Court.
4. That in light of the order dated 04.07.2024 passed by this Hon'ble
Court, E-file No. 733316 was sent to the Department of Finance,
Government of Punjab through the Administrative Department for
seeking concurrence for granting regular family pension to the
petitioner.
5. That the Department of Finance, Government of Punjab on dated
12.09.2024 has approved the claim of the petitioner by granting regular
family pension in view of the order dated 26.08.2010 passed in CWP
No. 3932 of 2002 titled as Leela Devi Versus State of Punjab and
others along with other connected matters. However, the same shall be
subject to the final outcome of LPA 413-2011 & LPA 414-2011. Copy of
the approval of the Department of Finance, Government of Punjab
dated 12.09.2024 is annexed as Annexure R-I
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6. That upon receipt of the approval of the Department of Finance,
Government of Punjab, regular family pension case of the petitioner has
been submitted to the O/o Accountant General, Punjab, Chandigarh
vide letter No. 2286-88/PF dated 13.09.2024 for immediately granting
the same. Copy of letter is annexed as Annexure R-II.
7. In view of the aforesaid facts and circumstances, the claim of the
petitioner has been accepted and present writ petition may please be
dismissed having being rendered infructuous.”
10. A perusal of the above reproduced order dated 04.07.2024 passed
by Co-ordinate Bench of this Court as well as affidavit shows that the relief
sought in the present writ petition was already granted to the petitioner by the
respondents because of order dated 04.07.2024 passed by Co-ordinate Bench
of this Court.
11. A perusal of the impugned order dated 17.12.2019 (Annexure
P-10) shows that the claim of the petitioner for family pension was rejected on
the ground that the services of employees of Ranjit Sagar Dam Project who
opted for regularization of their services were regularized as per notification of
Government of Punjab dated 13.03.1996 and since husband of the petitioner
died on 29.07.1993 i.e before coming into force of the policy, therefore, his
services were not regularized. Hence, the petitioner is not eligible for family
pension.
RELEVANT REGULARIZATION POLICIES & THEIR APPLICABILITY
TO THE PRESENT CASE
12. Now, it would be apposite to reproduce policy and instructions of
State of Punjab dated 07.05.1993 and 13.03.1996, respectively. The same are
reproduced as under:-
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CWP No. 12047-2021
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1993 POLICY
“No.11/18/88-4PP-III/7244
Government of Punjab, Department of Personnel and Administrative
Reforms (Personnel Policies 3
Branch)
To
All Heads of Departments Chairman/Managing Directors
of Corporation/Board, Registrar, Punjab and Haryana
High Court, Commissioners of Divisions, All Deputy
Commissioners Sub Divisional Officers (Civil) in the
State.
Dated, Chandigarh the 7th May, 1993,
Subject:-Review of the policy of regularization of adhoc employees/
work-charged employees/casual, daily wages employees.
Sir,
I am directed to refer to the subject cited above and to say
that Division Bench of Punjab and Haryana High Court in
CWP No.72 of 1998Piar Singh and Others Vs. State of
Haryana and Others inter-alia, held that the services of
any person who had worked for one wear whether adhoc,
casual, labour, daily wages or against the work-charged
establishment or against the projects or seasonal work,
should be seemed to be regularized. The High Court in the
above mentioned C.W.P also gave directions that no
person who has put in one year's etc. shall be thrown out of
job. As a consequence of this judgement, dated 26th
September, 1988, various writ petitions were filed from
time to time with the result that many persons who had
completed 240 days or about a year's service, were
allowed to continue in service. An appeal against the
judgement of the High Court referred to above, was filed in
the Supreme Court of India. The State Government of
Punjab also filed affidavits in the Apex Court on its
directions for framing of the scheme for::-.
(i) regularization of adhoc employees who had
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CWP No. 12047-2021
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completed one year service on a specific date:
(ii) regularization work-charged establishment
contingent establishment and casual labour: and
(iii) the scheme for regularization of the services of
Class-III adhoc employees, issued by the Haryana
Government, --vide notification dated 28th February,
1991 shall be mutatis mutandis adopted by the Punjab
Government.
2. The Supreme Court of India has accepted the appeals of the
State Government and other and has set aside the judgement of the
Punjab and Haryana High Court dated 26th September, 1988,
-vide their judgement dated 12th August, 1992 and commended the
scheme filed by the State Government. In view of the affidavits
filed by the State Governments, the details instructions for
regularation of the ad hoc employees were issued, -vide Punjab
Government circular letter No. 11/18/91-4PPIII/13098, dated 6th
September, 1991 and subsequent circular letter No. 11/18/91-
4PPIII/5244, dated the 22nd April, 1992.
It is hoped that all ad hoc employees, in the various the
departments of the States, who are covered under instructions
referred to above, would have been regularized by now. However,
efforts shall be 10 made to complete this process as early as
possible, but not later than 4 months henceforth.
3. The Statutory/Public Corporations/Boards in the State
shall also follow the orders contained in the Punjab Government
circular letter No. 11/18/91-4PPIII/13098 dated 6th September,
1991 and subsequent circular letter No. 11/18/91-4PPIII/5244,
dated 22nd April, 1992. in the matter of regularizing their ad hoc
employees in accordance with these instructions within a period of
4 months, as per the directions of the Supreme Court of India in
their decision referred to in para 2 above.
4. No appointment shall be made on ad hoc basis on such a
post on which an ad hoc employee is already working.
5. So far as filling up of Class-I and II posts on ad hoc basis in
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CWP No. 12047-2021
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case of dire necessity, instructions Issued by this department,--vide
I.D. No. 14/10/92-4PPIII/, dated 20th July, 1992, may please be
followed.
6. Government have also decided to regularize the services of
work-charged employees/casual daily wages for which the
following conditions/procedure has been laid down:-
For Work-charged emplovees.
(i) All the work establishment (excluding office ministerial clerical
and drawing cadres below the level of junior engineer engaged
construction, Junior execution of maintenance of work, as called,
'Work Force', shall further comprise of the following two
categories: -
(a) Project Force and
(b) Non-project force which includes, buildings, public health
activities, canals, drainage, Government building works etc. In the
case of project force, a project (as in Irrigation and Power) will be
a unit of employment. There will be a separate cadre and seniority
list for each category in the project. In the case of Non-Project
force a "Works Division" will be unit for casual or daily wage
work force and a 'circle for work-charged establishment. Here
also, separate cadre and seniority list for each category will be
maintained in the Division and Circle, as the case may be.
(ii) Workers engaged on jobs, which are likely to be of a short
duration i.e. less then 240 days in a year, will be terminated on
completion of work. No seniority list of such worker will be
required to be maintained.
(iii) Workers of non-project work-charged establishment, who
have completed five years service as on 31st August, 1992 will be
made regular if they were recruited before 3rd September, 1980.
The services of such non-project work-charged employees will be
regularized without any further screening about justification of
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CWP No. 12047-2021
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continuance of these posts.
(iv) Since a complete ban on recruitment of work-charged staff
was imposed by the State Government, those recruited in
contravention of this policy decision after this date i.e. 3rd
September, 1980 will be regularized only after screening by a
committee against assessed requirement for each category on the
projects on which they were appointed or on assessment of
justification of such posts on the basis of norms approved for the
continued nature of work In case of non-project work. Those found
surplus to the needs will be declared surplus and procedure laid
down u/s 25-F of the chapter A of the Industrial Disputes Act 1947
will be applicable to them.
For Casual/Dally wages employees.
(iv) Workers working as king as casual labour or work-charged in
projects which have more or less fixed period of completion will be
eligible for payment of benefits as indicated in the above
paragraphs. However, there will be no system of automatic
regularization in the cases as their requirement has to be
reassessed after commissioning of project. Thus the project force
will be liable to be retrenched on completion of project except
categories in limited numbers who are required for the operation
and maintenance of the project. Of course, retrenchment benefits
will be provided and retrenchment will be made on the basis of
seniority and suitability in each trade/category on the project on
the basis of the rule 'Last come first go.'
(vi) Daily wages employees who have completed 10 years or more
service as on 31st August, 1992, shall be considered by screening
review committee to be constituted by Head of Department, for
regularization with effect from the Ist September, 1992, on the
availability of posts. Such employees shall be entitled for minimum
of the pay scale with effect from the date of their regularation i.e.
Ist September, 1992. On regularation, these employees shall be
liable for transfer anywhere in the State.
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(vii) In respect of all such daily wages employees, who have not
yet completed 10 years service, a special review should be carried
out at the level of Head of Department regarding the requirement
of their continuance or retrenchment as the case may be.
(viii) In the case of those employees where services are no longer
required, they may be relieved of their duties at the earliest
possible.
(ix) The employees, who are within the definition of "Workmen"
under the Industrial disputes Act, 1947 shall be entitled to the
benefits under the Act ibid and their services should be dispensed
with only after following the procedure laid down in the Act ibid
and after granting requisite retrenchment benefits.
(x) These instructions will also cover the contingent-paid-
temporary staff, on part-time basis, in the police Battalion of the
Police Department, such as Cooks. Dhobies, Barbers, Mochies,
Tailors and Carpenters, masons, sweepers, water carries only
after the of the modalities before-hand like (a) completion
conversion/creation of the part-time posts to regular posts within
specified pay scales for each of them and (b) declaring these part
time temporary incumbents as daily wages workers.
These decisions of the Government and decisions contained in the
Instructions issued from time to time, on the subject, may please be
kept in view, while regularizing the service of the staff mentioned
above.
These instructions may please be brought to the notice of all
concerned for strict compliance.
Yours faithfully,
Sd/- P.S. Chalokia
Under Secretary Personnel”
13. Admittedly, the husband of the petitioner was a work charge
employee and was a project worker. As per above referred to policy, as
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applicable to work charge employees, since there was complete ban on
recruitment of work charge staff, the employees recruited in contravention of
the policy decision after 03.07.1980 were to be regularised only after
screening by a committee against assessed requirement for each category on
the projects on which they were appointed or on assessment of justification of
such posts on the basis of norms approved for the continued nature of work.
Further as per written statement filed by the respondent when the policy dated
07.05.1993 came into force, approximately 13000 work charge employees
were working at Ranjit Sagar Dam Project and not even a single work charge
employee was regularized, as per policy dated 07.05.1993. Whereas for
regularization of services of work charge employees of Ranjit Sagar Dam
Project only, policy was framed in the year 1996, which came into force on
13.03.1996. Therefore, under 1993 policy, no employee was regularized.
1996 POLICY
“No.9-23/96-IPP-3(5)4954 dated 13.3.96
Government of Punjab,
Department of Irrigation and Power
(Irrigation Personnel III)
To
The General Manager,
Ranjit Sagar Dam,
Shahpurkandi.
Government had decided that in relaxation of the
Government policy contained in the letter no.
11/18/88-4PPIII/7244 dated 7.5.93, the services of work-charge
staff of Ranjit Sagar Dam may be regularized on the following
conditions: -
a) The past service rendered by the employee on work
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CWP No. 12047-2021
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charge/daily basis will be treated as qualifying service for
pensionary and all other consequential benefits.
b) No employee will be retired/retrenched in before the age of
superannuation except on premature retirement under the rules.
c) The employees will become Punjab Govt. employees in the
Irrigation department. Accordingly, Civil Service Rules will
become applicable to them in place of certified standing orders
which govern them at present.
d) The regularized employees will be liable to posted anywhere
under the under the Govt. on any project to be executed by, or on
behalf of Punjab Govt.
e) Each employee will be given the option to accept or reject
regularization.
If necessary, and agreement under Labour Laws
Incorporating the above decision may be entered into between
workers and the Irrigation department. The agreement will also
total commitment of employees to the timely completion of the
R.S.D. Project.
2 You may initiate immediate necessary action of the
Implementation of the Government orders. If considered
necessary, an agreement under the Labour Laws with all the
parties concerned may be executed by the specific condition be
put in the agreement, the Government will be free to execute the
Shahpurkandi Project and all others Hydel Projects,
departmentally or through private parties or by any other mode. If
any such any agreement is to signed, the draft of the agreement
may be sent for the approval of the Government immediately.
Sd/-
Under Secretary Irrigation & Power
13.3.96”
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14. A perusal of the above referred to policy shows that each
employee was to give his option to accept or reject regularization. It is further
part of the policy that if necessary, agreement under the Labour Laws
incorporating the decision referred to in the policy may be entered into
between workers and the Irrigation department, which would also incorporate
the commitment of the employees to the timely completion of the Ranjit Sagar
Dam Project. Admittedly, in the present case, the husband of the petitioner
expired on 29.07.1993 i.e before the coming into force of 1996 policy,
therefore, neither could he opt for the policy nor the same could be made
applicable in the case of the husband of the petitioner.
STAND OF THE RESPONDENTS-STATE IN THEIR
WRITTEN STATEMENT
15. Now coming to the stand taken by the respondents-State in their
written statement in the present case. Admittedly, the petitioner was appointed
as Beldar on 11.09.1984 on work charge basis and he died on 29.07.1993
while in service on work charge basis only after completion of 08 years 10
months of service. Employees Provident Fund Scheme was introduced during
the year 1987 for the work charge staff and the husband of the petitioner was
allocated EPF Account. Accordingly, all the service benefits admissible to the
husband of the petitioner being a work charge employee were released to the
petitioner. The petitioner was also appointed on compassionate grounds in
1994, following the death of her husband while in service and thereafter, her
services were regularized in the year 1996. She retired on 31.05.2024 and is
already getting pension against PPO No. 4033. The Punjab Government on
13.03.1996 issued instructions to regularize service of all the work
charge/daily wage employees working at Ranjit Sagar Dam Project, who were
on rolls on dated 13.03.1996. Since the husband of the petitioner died on
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29.07.1993 while in work charge service, therefore, he could not be
regularized. Since the husband of the petitioner could not be regularized, the
petitioner could not be granted family pension. Once the husband of the
petitioner was not alive and policy dated 13.03.1996 was not in existence at
the time of death of husband of the petitioner, therefore, the husband of the
petitioner could not be granted the benefit of policy dated 13.03.1996, which
is relied upon by the petitioner. Further stand has been taken by the
respondents is that the husband of the petitioner died in the year 1993 and the
present writ petition is filed in the year 2021 i.e after a gap of almost 28 years.
FAMILY PENSION SCHEME
16. It would be apposite here to reproduce the relevant rule of Family
Pension Scheme i.e Rule 6.17 of Chapter 6, Volume II, Punjab Civil Services
Rules, 1953. The same is reproduced as under:-
FAMILY PENSION SCHEME
xxx xxx xxx
6.17. The provisions of this rule shall apply:
(a) to a regular employee of Punjab Government in a pensionable
establishment on or after the 1st July, 1964 ; and
(b) to a Punjab Government employee who was in service on the
30th June, 1964 and came to be governed by the provisions of
Family Pension Scheme, 1964, for Punjab Government employees.
Note. In the case of a Government employee who retired from
service or died at any time before the publication of this rule, the
provisions of Family Pension Scheme, 1964 as in force on the date
that Government employee retired or died shall apply.
(1) The rate of family pension in respect of a Government employee
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who dies after retirement shall be as under:
(a) forty per cent of the pay subject to a minimum of three
thousand and five hundred rupees if the pay of the deceased on the
date of his retirement does not exceed ten thousand rupees.
(b) thirty per cent of the pay subject to a minimum of four thousand
rupees, if the pay of the deceased on the date of retirement exceeds
ten thousand rupees.
Note:- The above rates are effective from the 1 st day of January,
2006
Note 1. . ‘pay’ for this purpose means the pay as defined in rule
2.44 of the Punjab Civil Services Rules, Volume I, Part I, which the
person was drawing on the date of his death while in service or
immediately before his retirement. If on the date of his death while
in service or immediately before his retirement, a person has been
absent from duty on leave, including extraordinary leave, aws
immediately before proceeding on such leave or such suspension
and the include dearness pay.
Note 2. The amount of family pension shall be fixed at monthly
rates and be expressed in whole rupees and where the pension
contains a fraction of a rupee it shall be rounded off to the next
higher rupee:
Provided that in no case a family pension in excess of the maximum
determined under this rule shall be allowed.
(2) The Scheme will be administered as below:
(i) The family pension will be admissible in case of death while in
service or after retirement if at the time of death the retired
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Government employee was in receipt of a compensation, invalid,
retiring or superannuation pension.
In case of death while in service, the Government employee
should have completed a minimum period of one year of continuous
service, without break. The family pension will not be admissible in
cases of death after retirement, if the retired employee at the time
of death was in receipt of gratuity only:
Provided that the condition of completing a minimum
period of one year of continuous service will not be applicable in
the case of Government employee who has been medically
examined and declared fit for entry into Government service.
(ii) The term “one year continuous service” used in clause (i) is
inclusive of permanent and temporary service in a pensionable
establishment and any period of leave including extraordinary
leave but does not include Boy Service and suspension period
unless that is regularised by the competent authority.
(iii) In the cases of persons who are transferred to Punjab State
from the Central Government or other State Governments and in
whose case it has been agreed to count their previous service for
pension the Family Pension Scheme would be applicable in the
event of their death/retirement without putting in one year
continuous service under the State Government, if their total
service at the time of death (inclusive of service rendered under the
previous Government) exceeds one year.
(3) “Family” for purpose of this Scheme will include the following
relatives of the Government employee:
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(a) wife in the case of a male Government employee and husband
in the case of a female Government employee;
(b) a judicially separated wife or husband, such separation not
being granted on the ground of adultery and the person surviving
was not held guilty of committing adultery;
(c) sons upto the age of twenty-five years;
(d) daughters upto the age of twenty-five years irrespective of their
marriage but unmarried daughters shall be included in the family
irrespective of their age; and
(e) parents who were wholly dependent on the Government
employee, when he/she was alive provided the deceased employee
had left behind neither a widow nor a child.
Note 1. (c) and (d) will include children adopted legally before
retirement.
Note 2. Marriage after retirement shall be recognised for purposes
of this Scheme.
(4) The pension will be admissible
(i) (a) in the case of widow or widower up to the date of death or
remarriage whichever is earlier;
(b) in the case of a son until he attains the age of twenty-five years
or till he starts earning his livelihood, whichever is earlier; and
(c) to a daughter upto the age of twenty-five years irrespective of
her marriage. However, an unmarried daughter shall be entitled to
family pension irrespective of her age. But, family pension shall not
be admissible to a daughter, if she starts earning her livelihood:
Provided that if the son or daughter of a Government
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employee is suffering from any disorder or disability of mind or is
physically crippled or disabled so as to render him or her unable to
earn a living even after becoming ineligible for family pension
under sub-clauses (b) and (c), the family pension shall be payable
to such son or daughter for life subject, to the following conditions,
namely:
(i) if such son or daughter is one among two or more children of
the Government employee, the family pension shall be initially
payable to the children in the order set out in the sub-rule (3) until
the last child becomes ineligible for family pension under sub-
clauses (b) and (c) and thereafter the family pension shall be
resumed in favour of the son or daughter suffering from disorder or
disability of mind or who is physically crippled or disabled and
shall be payable to him or her as the case may be, for life;
(ii) if there are more than one such son or daughter suffering from
disorder or disability of mind or they are physically crippled or
disabled, the family pension shall be paid in the following order,
namely:
(a) firstly to the son, and if there are more than one son, the
younger of them will get the family pension only after the life time
of the elder;
(b) secondly, to the daughter, and if there are more than one
daughter, the younger of them will get the family pension only after
the life time of the elder;
(iii) the family pension shall be paid to such son or daughter
through the guardian as if he or she were a minor;
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(iv) before allowing the family pension for life to any such son or
daughter, the sanctioning authority shall satisfy that the handicap
is of such a nature as to prevent him or her from earning his or her
livelihood and the same shall be evidenced by a certificate obtained
from a medical officer not below the rank of a Civil Surgeon setting
out as far as possible, the exact mental or physical condition of the
child;
(v) the person receiving the family pension as guardian of such son
or daughter shall produce every three years a certificate from a
medical officer not below the rank of a Civil Surgeon to the effect
that he or she continued to suffer disorder or disability of mind or
continues to be physically crippled or disabled.
Explanations, (a) The disability which manifests itself before or
after the retirement or death of the Government employee shall be
taken into account for the purpose of grant of family pension under
this rule.
(b) Omitted.
(c) The family pension payable to such a son or daughter shall be
stopped if he or she starts earning his/her livelihood.
(d) In such cases it shall be the duty of the guardian to furnish a
certificate to the Treasury or Bank , as the case may be, every
month that (i) he or she has not started earning his/her livelihood;
(ii) Omitted.
Explanation (2). A son or a daughter shall be deemed to be earning
his/her livelihood if his/her monthly income is equal to the
prescribed minimum family pension of Rs. 3500 plus dearness
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relief thereon. Similarly, parents whose total monthly income from
all sources is equal to or more than the prescribed minimum
pension of Rs. 3500 plus dearness relief thereon, shall not be
considered to be dependent upon the deceased Government
employee and no family pension shall be admissible to them.
Note 1. When a Government employee is survived by more than one
widow, the pension will be paid to them in equal shares. On the
death of a widow, her share of the pension will become payable to
her eligible minor child, if at the time of her death, a widow leaves
no eligible minor child, the payment of her share of the pension
will cease.
Note 2. Where a Government employee is survived by a widow but
has left behind an eligible minor child from another wife, the
eligible minor child will be paid the share of pension which the
mother would have received if she had been alive at the time of the
death of the Government employee.
Note 3. Except as provided in Note 1, pension awarded under this
scheme will not be payable to more than one member of the family
of a Government employee at the same time. It will first be
admissible to the widow or widower and thereafter to the eligible
minor children.
Note 4. In the event of remarriage or death of the widow or
widower, the pension will be granted to the minor children
including the posthumous child through their natural guardian, if
any, otherwise through their natural de fact guardian on
production of indemnity bond in Form ‘A’. In disputed cases,
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however payment will be made through a legal guardian(i.e.
guardian, appointed by a court of law).
Note 5. The ad hoc increase in pension will not be admissible on
the family pension granted under this scheme.
(5) Omitted.
( 6) Omitted.
( 7) Omitted.
(8) Widows or widower of such Government employees as are
governed by this Scheme will not be entitled to family pension
under any other rules.
(9) This scheme is not applicable to
(a) Staff paid from contingencies;
(b) Work-charged staff;
(c) Casual labour;
(d) Contract employees; and
(e) Employees without a minimum service of one year.
(10) The commutation of pension has no effect on the quantum of
family pension as the rate of family pension is based on the pay
which the Government employee was drawing immediately before
his retirement and not on the pension sanctioned to him.
(11) In case both the wife and the husband are Government
employees and are governed by the provisions of this scheme and
one of them dies while in service or after retirement, the family
pension in respect of the deceased Government employee shall
become payable to the surviving husband or wife, as the case may
be, and in the event of the death of the surviving husband or wife,
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the surviving child or children shall be granted two family pensions
in respect of the deceased parents.
(12) Where a female Government employee or a male Government
employee dies leaving behind a judicially separated husband or
wife and no child, the family pension in respect of the deceased
employee shall be payable to the surviving person.
(13) (a) Where a female Government employee or a male
Government employee dies leaving behind a judicially separated
husband or wife with a child or children, the family pension
payable in respect of the deceased employee shall be payable to the
surviving person provided he or she is the guardian of such a child
or children.
(b) Where the surviving person has ceased to be the guardian of
such a child or children, such family pension shall be payable to
the person who is the actual guardian of such a child or children:
Provided that where in a case the judicial separation is granted on
the ground of adultery and the death of the Government employee
takes place during the period of such judicial separation, the family
pension shall not be payable to the person surviving.
(13-a) If a person who in the event of death of a Government
employee while in service, is eligible to receive family pension
under this rule, is charged with the offence of murdering the
Government employee or for abetting the commission of such an
offence, the claim of such a person, including that of other
members of the family eligible to receive the family pension shall
remain suspended till the conclusion of the criminal proceedings
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instituted against him.
(13-b) If on the conclusion of the criminal proceedings referred to
in sub-rule (13-a), the person concerned
(i) is convicted for the murder or for abetting the murder of the
Government employee, such a person shall be debarred from
receiving the family pension which shall be payable to other
eligible members of the family, from the date of death of the
Government employee.
(ii) is acquitted of the charge of murder or for abetting the murder
of the Government employee, the family pension shall be payable to
such a person from the date of death of the Government employee.
(13-c) The provisions of sub-rules (13-a) and (13-b) shall also
apply for the family pension becoming due on the death of a
Government employee after his retirement.
(14) Omitted.”
17. A bare reading of Rule 6.17 (a) of the above referred to scheme
shows that Rule shall apply to regular employee in pensionable establishment
on or after 01.07.1964. Further Rule 6.17 (b) reads that it would apply to
Punjab government employee, who was in service on 30.06.1964 and came to
be governed by the provisions of Family Pension Scheme, 1964 of Punjab
Government employee. There is further Note under Rule 6.17 (a & b) that in
the case of the government employee, who retired from service or died at any
time before publication of rule 6.17, provisions of family pension scheme,
1964 as in force on the date that government employee retired or died shall
apply.
18. Meaning thereby, Rule 6.17 would apply to regular employee of
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Punjab Government after 01.07.1964.
19. In the present case, the husband of the petitioner was engaged as
work charge employee in Ranjit Sagar Dam Project on 11.09.1984 and Family
Pension Scheme, 1964 was applicable to the employees, who were in service
on 30.06.1964 and the above Rule 6.17 came into force on 01.07.1964,
therefore, family pension scheme, 1964 for Punjab Government employees
would not be applicable to the petitioner and even Rule 6.17 of Chapter 6,
Volume II, Punjab Civil Services Rules, 1953 would not be applicable to the
petitioner. It would be further pertinent to mention here that language used in
the above referred to rule with respect to “1 year of continuous service” is
regarding the regular government employee of Punjab Government in a
Pensionable Establishment on or after 01.07.1964 . Further Rule 6.17 (a)
specifically reads about the non-applicability of the rule, which reads that Rule
6.17 would not be applicable to
(a) Staff paid from contingencies;
(b) Work-charged staff;
(c) Casual labour;
(d) Contract employees and
(e) Employees without a minimum service of one year.
20. Therefore, a bare reading of the above referred to rules show that
Family Pension Scheme would be applicable to regular employee of Punjab
Government in a Pensionable Establishment and the same would not apply to
work charge employees. The deceased-husband of the petitioner in the present
case was work charge employee, therefore, the above referred to Family
Pension Scheme would not be applicable to him.
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ANALYSIS OF THE JUDGMENTS RELIED UPON BY LEARNED
COUNSEL FOR THE PETITIONER
21. Now coming to the judgments relied upon by learned counsel for
the petitioner for grant of relief in the same terms. Learned counsel for the
petitioner has relied upon judgment of this Court in cases of “Leela Devi vs.
State of Punjab and others, passed in CWP No. 3932-2002 and Kamlesh
Rani vs. State of Punjab and others, passed in CWP No. 3938-2002, decided
on 26.08.2010, wherein the petitioners filed the writ petitions by relying upon
instructions dated 07.05.1993 issued by the Government of Punjab to contend
that their husbands were entitled to regularisation in view of the policy
decision taken by the Government. Further contention in the writ petitions was
that even if the husbands of the petitioners were not regularized still they were
entitled for grant of family pension, in view of law laid down by Division
Bench of this Court ‘ Usha Rani vs. State of Haryana and others, 2005 (1)
SCT 410’ . Therefore, both CWP No. 3932 and 3938 of 2002 were allowed on
26.08.2010 in terms of Usha Rani vs. State of Haryana and others, 2005 (1)
SCT 410.
22. In Usha Rani’s case (supra), the facts of the case were that the
petitioner was granted the relief in view of Family Pension Scheme, 1964. In
that case, the husband of the petitioner was working as Mali-cum-Chowkidar
in Public Health Department on work charge/daily wage basis w.e.f March,
1994. While in service, the husband of the petitioner died on 20.08.1999 after
rendering service of more than 5 years. The stand of the State was that the
husband of the petitioner was working as Daily Wager for 5 years but in the
absence of Rules, family pension could not be granted to the petitioner. The
case of the petitioner was considered as per Family Pension Scheme, 1964 and
the petitioner therein was held entitled for Family Pension under Family
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Pension Scheme, 1964.
23. The petitioner has further relied upon judgment passed by
Hon’ble the Supreme Court of India in a case of State of Haryana and others
vs. Ravinder Kumar and others, 2013 (6) SCC 695 wherein Hon’ble the
Supreme Court held that Work Charge Employees are entitled to additional
increment after regularisation since period of service rendered on work charge
basis is to be counted for additional increment and qualifying service for
pension.
24. The above judgments would be of no help to the petitioner, since
the facts in the present case are distinguishable. And, admittedly, the husband
of the petitioner was never regularized.
25. Now coming to the facts of Balwinder Kaur vs. State of Punjab
and others, passed in CWP No. 1169-2011 and connected cases, decided on
16.12.2014.
The petitioners therein were widows of the employees whose
services were not regularized and widows were asking for family pension after
the death of their husbands. Their cases for family pension were
rejected/declined on the ground that the deceased-employee(s) were not
regular, therefore, Family Pension cannot be granted to the petitioners. When
the husbands of the petitioners were alive, the State of Punjab introduced the
policy dated 23.01.2001 intending to offer the benefit of regularization of
services of work charge/daily wage and other categories of workers engaged
in various departments of State in connection with the ongoing projects, works
of perennial nature.
26. It would be apposite here to reproduce the relevant portion of the
policy dated 23.01.2001. The same reads as under:-
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“(i) No new posts are ordinarily to be created to absorb and
regularize existing work charged/daily wage and other categories of
workers. Wherever the full circumstances of the particular situation
warrant that new posts may be created, the case should be
thoroughly examined, Finance Department should be consulted and
approval of the CMM should be obtained.
(ii) Each Department may prepare a list of work-charged, daily
wage and other categories of workers who have completed 3 years
service and those lists may be up- dated from time to time. The lists
should be prepared strictly as per seniority.
(iii) Out of the lists prepared thus, workers should be
absorbed/regularized only against regular posts existing in each
department. In the first instance work charged workers should be
regularized in the order of seniority. Only when all eligible persons
of this category have been accommodated cases of daily wage and
other category of workers who have completed 3 years of service in
the department may be taken up. The basic idea is that workers
belonging to a particular department should be considered for
regularization only against available regular vacancies in that
department. The claim of work charged/daily wage/other categories
of workers for regularization will extend only against available
vacancies in the department to which these workers belong.
(iv) For accommodating work charged/daily wage/other category
workers as per the above policy against the existing vacancies the
existing instructions requiring permission of the DOP and FD for
filling up the vacancies would not apply. Whenever for the
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absorption/regularisation of workers as per the above policy any
department's own recruitment Rules come in the way, such
provisions, of the Recruitment Rules will stand relaxed.”
27. In view of the above referred to policy, the cases of all the
employees were recommended for regularization but before decision on their
regularization, all of them expired.
28. The learned Single Judge allowed all the writ petitions on the
ground that the husbands of the petitioners were exploited and despite
recommendation of their cases for regularization, because of non-availability
of posts/vacancies, their services were not regularized by the respondents. It is
further observed by learned Single Judge that it is not fault of the employee(s)
that process kept in abeyance as long as for 8-9 years to deprive them of
benefit of regularization and such action of the respondents would result in the
virtual negation of the policy itself, since the policy talks of regularization on
completion of 3 years of service. And it contemplates the process to be
completed within four months, therefore, there was no justification in
lingering the process for 8-9 years thereafter.
29. Now coming to judgment passed by Division Bench judgment
passed in LPA No. 679-2015 titled as “State of Punjab and others vs.
Balwinder Kaur” and connected cases, decided on 24.08.2026. After
considering the contention of the appellant-State therein that since no posts
were available for regularization, therefore, the services of the husbands of the
petitioners in CWP No. 1169-2011 titled as “Balwinder Kaur vs. State of
Punjab and others” and connected cases were not regularized. And the
concession was made by the respondents-widows before LPA Bench therein
that apart from family pension, the respondents would not claim any other
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benefit qua services rendered by their deceased-husbands.
The relevant portion of the judgment passed in LPA No. 679-
2015 titled as “State of Punjab and others vs. Balwinder Kaur” is reproduced
as under:-
“10. It may be noticed that keeping in view the different
judgments rendered from time to time, certain views were taken that
regularisation could be granted only where the employee had been
properly recruited, having the requisite minimum qualification
coupled with the fact that the post was available for regularisation.
11. Lately, the Hon’ble Supreme Court of India has taken a view that
where an employee has been allowed to continue in service for a long
duration and the benefit of regularisation is thereafter denied only on
the ground that no post was available, the same cannot be accepted,
as, the creation of posts is within the jurisdiction of the employer and
not the employee and therefore, non creation of such post cannot go
against employee concerned to deny him/ her the benefit of
regularisation.
12. Further, the same issue with regard to the regularization of
various ad-hoc employees as well as temporary employees, who had
sufficiently long period of service to their credit came up for
consideration before the Hon’ble Supreme Court of India in Civil
Appeal No. 14831 of 2024 titled ‘Jaggo Vs. Union of India’, decided
on 20.12.2024 wherein by placing reliance upon the judgment in
Secretary, State of Karnataka and others versus Uma Devi and
others, AIR 2006 SC 1806, the Hon’ble Supreme Court of India has
held that in those cases where an employee has 10 years of service in
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their credit, his/her services should be regularized so as to avoid any
prejudice to the workman. The relevant paragraph of the said
judgment is as under:
“xxx 20. It is well established that the decision in Uma Devi
(supra) does not intend to penalize employees who have
rendered long years of service fulfilling ongoing and
necessary functions of the State or its instrumentalities. The
said judgment sought to prevent backdoor entries and illegal
appointments that circumvent constitutional requirements.
However, where appointments were not illegal but possibly
“irregular,” and where employees had served continuously
against the backdrop of sanctioned functions for a
considerable period, the need for a fair and humane
resolution becomes paramount. Prolonged, continuous, and
unblemished service performing tasks inherently required on a
regular basis can, over the time, transform what was initially
ad-hoc or temporary into a scenario demanding fair
regularization. In a recent judgement of this Court in Vinod
Kumar and Ors. Etc. Vs. Union of India & Ors. 5, it was held
that held that procedural formalities cannot be used to deny
regularization of service to an employee whose appointment
was termed "temporary" but has performed the same duties as
performed by the regular employee over a considerable
period in the capacity of the regular employee. The relevant
paras of this judgement have been reproduced below:
“6. The application of the judgment in Uma Devi (supra)
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by the High Court does not fit squarely with the facts at
hand, given the specific circumstances under which the
appellants were employed and have continued their
service. The reliance on procedural formalities at the
outset cannot be used to perpetually deny substantive
rights that have accrued over a considerable period
through continuous service. Their promotion was based
on a specific notification for vacancies and a subsequent
circular, followed by a selection process involving
written tests and interviews, which distinguishes their
case from the appointments through back door entry as
discussed in the case of Uma Devi (supra) .
7. The judgement in the case Uma Devi (supra) also
distinguished between “irregular” and “illegal”
appointments underscoring the importance of
considering certain appointments [ 2024] 1 S.C.R. 1230
even if were not made strictly in accordance with the
prescribed Rules and Procedure, cannot be said to have
been made illegally if they had followed the procedures
of regular appointments such as conduct of written
examinations or interviews as in the present case...” xxx
26. While the judgment in Uma Devi (supra) sought to curtail the
practice of backdoor entries and ensure appointments adhered to
constitutional principles, it is regrettable that its principles are often
misinterpreted or misapplied to deny legitimate claims of long-
serving employees. This judgment aimed to distinguish between
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“illegal” and “irregular” appointments. It categorically held that
employees in irregular appointments, who were engaged in duly
sanctioned posts and had served continuously for more than ten
years, should be considered for regularization as a one-time
measure. However, the laudable intent of the judgment is being
subverted when institutions rely on its dicta to indiscriminately reject
the claims of employees, even in cases where their appointments are
not illegal, but merely lack adherence to procedural formalities.
Government departments often cite the judgment in Uma Devi
(supra) to argue that no vested right to regularization exists for
temporary employees, overlooking the judgment's explicit
acknowledgment of cases where regularization is appropriate. This
selective application distorts the judgment's spirit and purpose,
effectively weaponizing it against employees who have rendered
indispensable services over decades.
27. In light of these considerations, in our opinion, it is imperative
for government departments to lead by example in providing fair and
stable employment. Engaging workers on a temporary basis for
extended periods, especially when their roles are integral to the
organization's functioning, not only contravenes international labour
standards but also exposes the organization to legal challenges and
undermines employee morale. By ensuring fair employment
practices, government institutions can reduce the burden of
unnecessary litigation, promote job security, and uphold the
principles of justice and fairness that they are meant to embody. This
approach aligns with international standards and sets a positive
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precedent for the private sector to follow, thereby contributing to the
overall betterment of labour practices in the country.”
13. The said question of regularization of the services of an
employee who has rendered service for long period of his life as is in
the present case, again came up for consideration before the Hon’ble
Supreme Court of India in C ivil Appeal No. 8157 of 2024 titled as
Shripal and another Vs. Nagar Nigam, Ghaziabad, decided on
31.01.2025, and in Civil Appeal No. 8558 of 2018 titled as Dharam
Singh and others versus State of U. P.and another decided on
19.08.2025 , wherein it has been held that where an employee has
discharged the duties assigned to him/her for more than 10 years, all
the efforts should be made to regularize the services of such
employee, even if, posts are to be created for fulfilment of the said
purpose.
The relevant paragraphs of the judgment passed in
Shripal’s case (supra) judgment are as under :
“ xxx 18. The impugned order of the High Court, to the extent
they confine the Appellant Workmen to future daily-wage
engagement without continuity or meaningful back wages, is
hereby set aside with the following directions:
I. The discontinuation of the Appellant Workmen’s services,
effected without compliance with Section 6E and Section 6N
of the U.P. Industrial Disputes Act, 1947, is declared illegal.
All orders or communications terminating their services are
quashed. In consequence, the Appellant Workmen shall be
treated as continuing in service from the date of their
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termination, for all purposes, including seniority and
continuity in service.
II. The Respondent Employer shall reinstate the Appellant
Workmen in their respective posts (or posts akin to the duties
they previously performed) within four weeks from the date of
this judgment. Their entire period of absence (from the date
of termination until actual reinstatement) shall be counted for
continuity of service and all consequential benefits, such as
seniority and eligibility for promotions, if any.
III. Considering the length of service, the Appellant Workmen
shall be entitled to 50% of the back wages from the date of
their discontinuation until their actual reinstatement. The
Respondent Employer shall clear the aforesaid dues within
three months from the date of their reinstatement.
IV. The Respondent Employer is directed to initiate a fair
and transparent process for regularizing the Appellant
Workmen within six months from the date of reinstatement,
duly considering the fact that they have performed perennial
municipal duties akin to permanent posts. In assessing
regularization, the Employer shall not impose educational or
procedural criteria retroactively if such requirements were
never applied to the Appellant Workmen or to similarly
situated regular employees in the past. To the extent that
sanctioned vacancies for such duties exist or are required,
the Respondent Employer shall expedite all necessary
administrative processes to ensure these longtime employees
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are not indefinitely retained on daily wages contrary to
statutory and equitable norms.”
14. A bare perusal of the above cited judgments would points that the
Hon’ble Supreme Court of India goes to the extent of holding that
even where, in case, at the time of initial recruitment, the employee
did not fulfil the requisite then also the question of regularisation can
be considered keeping in view the long duration of service rendered
by such employee including non-availability of regular posts.
15. In the present case, the late husbands of the respondents had
rendered sufficiently long service and the learned Single Judge has
directed the authorities to consider and regularise their services as
on the date of their respective deaths, only for the purpose of
extending the benefit of family pension to the families of such
deceased employees who died before the benefit of regularisation
granted to them.
16. The only argument raised by learned counsel for the appellants
is that no post was available for regularisation and, therefore,
regularisation could not have been ordered.
17. It may be noticed that in the present case, however, the
availability of a post will not matter, as the deceased-employees are
required to be treated as regular employees only on the date of their
deaths rather than giving them the benefit of regularisation for the
period thereafter and there is no question of their continuing against
a regular post after the date of regularisation, as the employees had
unfortunately already died.
18. Once there was no question of continuation against the post
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after the date of death and the deceased employees are to be treated
as regular employees only on the date of their respective deaths
only for the purpose of grant the family pension to the family of the
deceased employees, the objections so raised that there was no post
available, cannot be made operational so as to deny the benefit of
family pension to the family of the deceased-employee especially
when the deceased employees had rendered sufficiently long service
with the appellants.
19 . Further, it has been held that even where creation of a post is
required, the same has to be created by the employer and the
benefit of regularisation cannot be denied to an employee merely
because the requisite post was not created. The creation of a post is
not within the jurisdiction of the employee, and non-creation of
such post cannot cause harm to claim particular benefits.
20. Hence, the judgments passed by the Hon’ble Supreme Court of
India in Jaggo’s case (supra) Shripal’s case (supra), Uma Devi’s
case (supra) and Dharam Singh’s case (supra) are very much
clear qua the present issue in hand and learned counsel for the
appellants has not been able to rebut the said judgments.
21. Keeping in view the totality of the facts and circumstances of
the present bunch of appeals, it is a conceded fact that the
husbands of the respondents had died while performing their
duties and that the writ petitions were filed by the respondents
herein only for the purpose of claiming family pension so that, on
the date of death of their respective husbands, they be treated as
regular employees so as to enable their families to claim
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pensionary benefits under the 1964 Scheme. Hence, the benefit
granted by the learned Single Judge, in the peculiar facts and
circumstances of the present cases, cannot be said to be arbitrary,
illegal or perverse either.
22. It may be noticed that, in view of the interim orders passed in
the present appeals, the benefit of family pension has not been
extended to the respondents, hence, the appellants are directed to
consider the claim of all the respondents for grant of family
pension by treating the deceased employees as regular employees
on the date of their respective deaths.
23. It is made clear that learned counsel for the respondents has
conceded before this Court that, apart from the family pension,
the respondents will not claim any other benefit qua the services
rendered by the deceased employees. Hence, the family pension
will be granted in accordance with the 1964 Scheme. It is noticed
that only one year service is required under the 1964 Scheme for
the grant of Family Pension, which the concerned employee had
completed before their death, hence, the admissible family pension
be released in favour of the respondents alongwith arrears within
the said period of two months itself.
24. It is made clear that the total service rendered by the
deceased employee up to the date of his or her death will be taken
into consideration for the purpose of fixing the pension and,
consequently, the family pension. As the employee is to be treated
as a regular employee only on the date of his/her death, no
pensionary benefit will be payable to the deceased employee and
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only the family pension, as admissible under the 1964 Scheme,
will be payable to the respondents as undertaken by the
respondents before this Court.
25. Accordingly, the present appeals are disposed of in above
terms.”
BALWINDER KAUR’S CASE: SCOPE, RELEVANCE AND
APPLICABILITY TO THE PRESENT CASE
30. Now coming to the conclusion as to whether the case of the
petitioner in the present case is covered by the judgment passed in CWP No.
1169-2011 and connected cases titled as “ Balwinder Kaur vs. State of
Punjab and others”, decided on 16.12.2014 and LPA No. 679-2015 and
connected cases titled as “State of Punjab and others vs. Balwinder Kaur”,
decided on 24.08.2026.
31. The distinction between Balwinder Kaur’s case (supra) and the
present case is important because the basic facts giving rise to the claim for
regularisation are different. In Balwinder Kaur’s case (supra) , the employees
were covered by the regularisation policy dated 23.01.2001. They had
completed the required period of service and were eligible to be considered for
regularisation during their lifetime. Their cases were recommended, and the
process of regularisation had already been initiated but was later kept in
abeyance. The Court found that the delay in completing the process was due to
administrative inaction on the part of the State. In these special circumstances,
the Court granted notional/retrospective regularisation for the limited purpose
of granting family pension and held that the non-availability of posts could not
defeat such relief.
32. The facts of the present case are distinguishable. The employee
died before coming into force of regularisation policy (1996). Therefore, no
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right or eligibility to regularisation had arisen in his favour during his lifetime.
Unlike Balwinder Kaur’s case (supra) , there was no recommendation for
regularisation and no regularisation process had been initiated which was later
delayed or stopped by the State. Hence, there is no basis to say that the State
was responsible for any delay in granting regularisation.
33. The circumstances which led to the relief in Balwinder Kaur’s
case (supra) were an existing regularisation policy, eligibility under that
policy, completion of the required service, and an already initiated process
which was delayed due to administrative inaction are absent in the present
case. Therefore, the decision in Balwinder Kaur’s case (supra) cannot be
applied to the present case.
34. In Balwinder Kaur’s case (supra) , the Court gave effect to an
entitlement which had already arisen under an existing policy but had not been
implemented due to administrative delay. In the present case, however, no
such entitlement had arisen during lifetime of the employees because the
relevant policy (1996) itself came into force only after his death.
35. After introduction of the policy dated 07.05.1993, complete ban
on recruitment of work charge staff was imposed by State Government and the
employees who were recruited in contravention of the policy decision after
03.09.1980 were to be regularized only after screening by a committee against
assessed requirement for each category on the projects on which they were
appointed or on assessment of justification of such posts on the basis of norms
approved for the continued nature of work. Therefore, in fact under policy
dated 07.05.1993 not even a single work charge employee was regularized as
per written statement filed by the respondents. And for regularization of
service of work charge employees of Ranjit Sagar Dam Project only, the
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policy was framed in the year 1996 which came into force on 13.03.1996. And
admittedly, the husband of petitioner expired on 29.07.1993, before
enforcement of the policy dated 13.03.1996, therefore, he could not be
considered under policy dated 13.03.1996. More-so, as per policy of
13.03.1996, each employee was to give option regarding acceptance or
rejection of regularization. And in the present case, husband of the petitioner
expired in the year 1993 before coming into force of the policy dated
13.03.1996 whereas in Balwinder Kaur’s case (supra) and connected cases,
the policy was of the year 2001 and husbands of the petitioners therein were
recommended for regularization and after almost a decade i.e 9-10 years, the
government could not decide the recommendations of the husbands of the
petitioners therein for regularization. Further one of the reason for not
regularizing the services of the petitioners therein was non-availability of
posts. Therefore, the facts of the present case are distinguishable from the facts
of Balwinder Kaur’s case (supra).
SETTLED LAW ON FAMILY PENSION
36. Hon’ble the Supreme Court in a case of UHBVNL and others vs.
Surji Devi, 2008 (1) SCT 656 held that the statutory provisions debar grant of
family pension in favour of the family members since deceased employee was
a work-charge employee and his services were never regularized.
The relevant portion of Surji Devi’s case (supra) is reproduced as
under:-
“14. The scheme relating to grant of Family Pension was made
under a statute. A person would be entitled to the benefit thereof
subject to the statutory interdicts. From a bare perusal of the
provisions contained in the Punjab Civil Services Rules, Volume 2
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vis-a-vis the Family Pension Scheme, it would be evident that the
respondent was not entitled to the grant of any family pension.
Husband of the respondent was a work-charge employee. His
services had never been regularized. It may be unfortunate that he
had worked for 11 years. He expired before he could get the benefit
of the regularisation scheme but sentiments and sympathy alone
cannot be a ground for taking a view different from what is
permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and Others,
2005(1) SCT 771 : (2005)2 SCC 638 , State of Bihar & Ors. v.
Amrendra Kumar Mishra, 2006(4) SCT 497 : 2006(9) SCALE 549 ,
Regional Manager, SBI v. Mahatma Mishra, 2007(1) SCT 67 :
2006(11) SCALE 258 , State of Karnataka v. Ameerbi & Ors.,
2007(1) SCT 601 : 2006(13) SCALE 319 and State of M.P. and
Ors. v. Sanjay Kumar Pathak and Ors., 2007(4) SCT 616 :
[2007(12) SCALE 72]
The statutory provisions, as noticed hereinbefore, debar
grant of family pension in favour of the family members as the
deceased employee if was a work-charge employee and not a
permanent employee or temporary employee. The period during
which an employee worked as a work-charge employee could be
taken into consideration only when his services are regularised and
he becomes permanent and not otherwise.
Furthermore, there exists a distinction between a
pensionable and non-pensionable establishment. Shri Krishan being
a member of a non-pensionable establishment, Family Pension was
not admissible. It is not a case where an employee had been given
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an option to opt for one or the other schemes. Once a person had
opted for non-pensionable scheme, the question of his being entitled
to pension or for that matter his family members becoming entitled
to family pension did not and could not arise. The High Court only
followed Kanta Devi (supra) without noticing the distinctive features
thereof. As it is not necessary, we have not gone into the question as
to whether Kanta Devi (supra) was correctly decided. Apart from
the fact that the fact therein was different, evidently the questions
which have been raised before us were not raised therein. The High
Court, therefore, committed a serious error in applying Kanta Devi
(supra) to the fact of the present case.
15. Mr. Malik contended that it has wrongly been stated in the list
of dates that the appeal against Kanta Devi (supra) has remained
pending before this Court and, thus,it being a mis-statement, the
leave granted should be revoked. It may be so but in a case of this
nature this Court is required to lay down the law. We do not, thus,
intend to revoke the leave. However, we direct that any benefit paid
to the respondent should not be recovered.
16. For the reasons aforementioned, the appeal is allowed with the
aforementioned directions. However, in the facts and circumstances
of this case, there shall be no order as to costs.”
37. The question involved before Hon’ble the Supreme Court in a
case of State of Haryana and others vs. Shakuntala Devi, 2009 AIR SC 869,
was as to whether the respondent being dependent of deceased ad hoc
appointee, is entitled to grant of family pension in terms of Punjab Civil
Services Rules Volume II Part I (for short, ‘the Rules’) and Family Pension
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Scheme, 1964. Hon’ble the Supreme Court explained the conditions of family
pension scheme and held that scheme would be applicable to all regular
employees in Pensionable Establishment (temporary/permanent) who are in
service, and just because services of ad hoc employees were continued, the
same would not mean that thereby his status has been changed.
The relevant portion of Shakuntala Devi’s case (supra) is
reproduced below:-
“9. The matter relating to grant of family pension is
covered by the Punjab Civil Services Rules Volume II Part I (for
short, ‘the Rules’). In terms of the Rules, Family Pension Scheme,
1964 was framed. The Rules which are relevant for this case, are
as under :
“2.4. In the following cases no claim to pension is admitted:-
(a) When a Government employee is appointed for a limited
time only, or for a specified duty, on the completion of which
he is to be discharged.
(b) When a person is employed temporarily on monthly
wages without specified limit of time or duty; but a month’s
notice of discharge should be given to such a person and his
wages must be paid for any period by which such notice falls
short of a month.
(c) When a person’s whole-time is not retained for the public
service, but he is merely paid for work done, such as
Government Pleaders and Law Officers not debarred from
private practice.
(d) When a public servant holds some other pensionable
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office, he earns no pension in respect of an office of the kind
mentioned in clause (c) or in respect of duties paid for by a
compensatory allowances.
(e) When a Government employee serves under an
agreement which contains no stipulation regarding pension,
unless the competent authority specially authorizes him to
count such service towards pension.
Note:- The agreements should be so worded as to preserve
the inviolate and indefeasible right of Government to modify
the rules from time to time, at their discretion, so that no
claim may arise to the benefit of the rules as they stood at
the date when the agreement was executed.
3.12 The service of a Government employee does not qualify
for pension unless it conforms to the following three
conditions:-
First – The service must be under Government.
Second – The employment must be substantive and
permanent
Third – The service must be paid by Government.
These three conditions are fully explained in the following
rules.
Note. - The question whether service in a particular office or
department qualifies for pension or not is determined by
rules which were in force at the time such service was
rendered; orders subsequently issued declaring the service
to be non-qualifying, are not applicable with retrospective
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effect.
XXX XXX XXX
3.17 . In the case of an officer retiring on or after 5th January,
1961, if he was holding substantively a permanent post on the
date of his retirement, his temporary or officiating service under
the State Government, followed without interruption by
confirmation in the same or another post, shall count in full as
qualifying service except in respect of :-
( i) Period of temporary or officiating service in non-pensionable
establishment.
(ii) Deleted.
( iii) Period of service paid from contingencies.”
Rule 6.16A(2)(b) of the Rules (as applicable to Haryana) reads as
under :
“ Rule 6.16(2)(b) : The family of a pensionable employee who dies
before completing five years of qualifying service shall also be
eligible for the gratuity equal to six months employments of a
Government employee at the time of his death except in cases in
which death occurs in the first year of service where the gratuity
admissible shall be equal to two months emoluments.”
Rule 12.2 of the C.S.R. Vol.I, Part I is reproduced hereunder :
Rule 12.2: A service book in the form prescribed by the
Comptroller and Auditor-General in Article 188 of Audit Code
(reproduced in Part 11 of Appendix 11) must be maintained for
every employee at the time of First Entry into Government service
has to get himself medically examined. The only exception provided
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is under Rule 3.3.(3) of C.S.R. Vol.No.1, Part I there is no
requirement of medical certificate for those employees who are
appointed on six months basis.”
10. The 1964 Scheme was formulated to afford further reliefs
stipulated therein to the family of the deceased employees. The said
scheme came into force with effect from 1st July, 1964 and was
applicable to all regular employees on pensionable establishments.
Para 4 and Note 1 of the 1964 Scheme read as under :
“ 4. This scheme is administered as below:-
(i) The family pension is admissible in case of death while in service
or after retirement on or after the 1st July, 1964, if at the time of
death, the retired officer was in receipt of a compensation, invalid,
retiring or superannuation pension. The Family Pension will not be
admissible in case of death after retirement if the retired employee
at the time of death was in receipt of gratuity only. In case of death
while in service a Government employee should have completed a
minimum period of one year of continuous service without break.
Note 1. - The term one year continuous service used in para-4(i)
above is inclusive of permanent/temporary service in a pensionable
establishment but does not include periods of extraordinary leaves,
boy service and suspension period unless that is regularized by the
competent authority or before completion of one year continuous
service provided the deceased Government employee concerned
immediately prior to his recruitment to the service or post was
examined by the appropriate Medical Authority and declared fit by
that authority for Government service.”
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11. The High Court delivered the main judgment in Rama Devi’s
case. It noticed the relevant dates, the terms of appointment as also
the relevant rules. It, in its judgment, took into consideration the
decision of this Court in S.K. Mastan Bee. v. The General
Manager, South Central Railway & Anr. [(2003) 1 SCC 184] as
also the decisions of the High Court of Punjab and Haryana
including the decision of Kanta Devi v. State of Haryana [2000 (2)
SCT 32]. The High Court opined that having regard to the
paragraph 4 of the Scheme (wrongly stated to be Rule 4) as also
Note 1 appended thereto, any employee who has completed more
than one year’s service would become eligible for grant of family
pension. In arriving at the said decision, it furthermore took into
consideration the fact that for the said purpose, it was not
necessary that the concerned employees should have been
appointed on a permanent or a temporary post.
12. Mr. Patwalia, learned senior counsel appearing on behalf of the
appellant, would submit that the High Court committed a serious
error in arriving at the said finding insofar as it failed to take into
consideration the import and purport of the rules vis-à-vis the
scheme. It was contended that in terms of Rule 3.12, for becoming
eligible for grant of family pension, it was necessary that the
employment was to be substantive and permanent in nature as
explained in Rule 3.17, which means that the employee should be
holding substantively a permanent post on the date of his
retirement, temporary or officiating service under the State
Government, followed without interruption by confirmation in the
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same or another post and in view of the fact that the employees
were not appointed on a substantive basis, the claim for grant of
family pension could not have been allowed. It was furthermore
urged that in any event as the concerned employees were appointed
for a limited period as envisaged under clause (a) of Rule 2.4, the
impugned judgments cannot be sustained.
13. Ms. Shikha Roy, Pabbi and Mr. Prem Malhotra, learned
counsel appearing on behalf of Shankuntla Devi and Rama Devi, on
the other hand, would contend that for the purpose of grant of
family pension in terms of the scheme, it was not essential that the
appointees should have been regularized in their respective
services.. Drawing our attention to the terms of appointment, it was
contended that as the employees were appointed on temporary basis
and they having been in service admittedly for a period of more
than one year, payment of family pension was legally permissible.
What was only necessary, according to the learned counsel, was
one year’s service without break as would appear from paragraph
4 of the Scheme read with note thereto. It was urged that Rule 3.17
of the Rules would apply only in a case of retirement and not in a
case of death. It was furthermore contended that as the service
records of the concerned employees were being maintained and
they have been asked to file medical certificate(s) at the time of
appointment, they were in effect and substance appointed against a
permanent vacancy on a temporary basis and not on an ad hoc
basis for a period of six months as contended by the appellant The
Rules, as applicable to the State of Haryana, were framed in terms
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of the ‘Proviso’ appended to Article 309 of the Constitution of
India.
12 Volume I, Part I of the said Rules provides for the main rules
whereas Part II thereof contains appendices and forms. Volume II
of the Rules relate to ‘Pension and Provident Fund’. The said Rules
having been framed under ‘Proviso’ to Article 309 of the
Constitution of India evidently apply to the Government employees.
The Government employees having regard to the said
Constitutional provision enjoy a ‘status’. Their appointment must
be made in terms of appropriate recruitment rules and upon
compliance of the equality clauses contained in Articles 14 and 16
of the Constitution of India.
14. The provisions contained in Volume II of the Rules apply to
those Government employees to whom the Rules in Volume I thereof
apply. Rule 1.2 read as under :
“ 1.2. Except as otherwise provided in rule 1.4 Infra or in any other
rule or rules, these rules shall apply to all Government employees
belonging to the categories mentioned below, who are under the
administrative control of the Haryana Government and whose pay
is debitable to the Consolidated Fund of the State of Haryana :-
(1) Members of State Services, Classes I and II;
(2) Members of State Services, Class III;
(3) Members of State Services, Class IV;
(4) Holders of Special Posts; and
(5) Any other Government employee or lass of Government
employees to whom the competent authority may, by general or
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special order, make them applicable.”
15. We may, therefore, at the outset, notice the definitions contained
in the Rules.
It is trite that each Government employee should be borne in their
respective cadre, ‘Cadre’ having been defined to mean the strength
of a service or a part of service sanctioned as a separate unit.
‘Active service’ has been defined in Rule 2.3 to mean:
“ 2.3. Active Service, for the purpose of pension, includes besides
time spent on duty in India :-
(i) Leave of all kinds except extraordinary leave not counting
towards increment under rule 4.9(b)
(ii);
(ii) Time spent on the voyage to India by a Government employee
who is recalled to duty before the expiry of any recognized leave
out of India : provides his return to duty is compulsory.
(iii) The period of absence from India of a Government employee
deputed or detained out of India on duty.”
16. In terms of Rule 1.3 of Volume II of the Rules, the terms defined
in Chapter II of Volume I of the rules have, unless there is anything
repugnant in the subject or context, the same meaning and
implications ,when used in Chapter II Volume I.
17. Rule 2.1 states that every pension shall be held to have been
granted subject to the conditions contained in Chapter VII of the
rules. Clause 2.6 provides for claims of widows or heirs, stating:
“If a Government employee dies before actually retiring or
being discharged, his heirs have no claim to anything in
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respect of his pension except as provided in rules 6.16-A to
6.16-C.”
18. Clause 3.12 occurring in Chapter III provides for ‘Conditions
of Qualifications’ which are; firstly, the service must be under
Government; secondly, the employment must be substantive and
permanent; and thirdly, the service must be paid by the
Government.
19. The second qualification, namely, what would be meant by
substantive and permanent employment has been explained in Rule
3.17 which, as noticed hereinbefore, means that the employee must
be holding substantively a permanent post on the date of his
retirement, his temporary or officiating service under the State
Government.
20. Family Pension Scheme was formulated to afford further relief
to the family of the deceased Government employees, i.e. something
more than what was contemplated in the Rules. The same, however,
would not mean that the dependents of those employees who were
otherwise not eligible in terms of the Rules would get the benefit
thereunder. In other words, the eligibility clause must be satisfied
so as to enable the dependent of a Government employee to obtain
the said benefit. The 1964 Scheme is subject to Part II of the Rules.
Rules contained in Part II are subject to Part I, which in turn would
be subject to the constitutional provisions. Thus, before a person
can be said to have been acquired a right to obtain the benefits of
1964 Family Pension Scheme must satisfy the eligibility as
envisaged under the Rules. Family pension can be granted to the
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dependent of the deceased Government employee under the Family
Pension Scheme only by way of a further relief and not by
independent of the main Pension Rules. In other words, if a person
was not a Government employee, the question of his dependent
becoming entitled to the benefits of family pension scheme would
not arise.
21. The primary question, therefore, is who would be a Government
employee within the meaning of the said scheme. We will advert to
this a little later. The second question would be, can the scheme be
read independent of the Rules. Answer thereto must be rendered in
the negative. We say so because in terms of the Rules, the following
conditions precedent must be fulfilled before the benefit of family
pension can be extended:
1. The employee must be a Government employee.
2. He must be employed in a pensionable establishment.
3. He must have become eligible to derive the benefit thereof.
Chapter II of Volume II of the Rules provides for different
provisions relating to grant of pension. The distinction between a
pensionable establishment and a provident fund establishment must,
therefore, be borne in mind. Pension although is not a bounty, the
entitlement thereto is only under a statute. Only when the conditions
precedent provided for in the statute are fulfilled, an employee
would be entitled thereto.
23. We would begin our discussions with the status of an employee.
A Government employee enjoying a status indisputably must be
recruited in accordance with Rules. The offers of appointment made
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in favour of the employees in no uncertain terms show that they
were appointed on an ad hoc basis. The appointment was not
regular, although in relation to the case of Balwant Singh, the
names were said to have been called for from the Employment
Exchange. Nothing has been placed on record to show as to what
was the cadre strength in the posts to which they were appointed.
No material has been brought on records to show that the equality
clause contained in Articles 14 and 16 had been complied with. Any
recruitment made in violation of the constitutional scheme, as
adumbrated therein as also the recruitment rules framed by the
State would render the same illegal and invalid.
24 . The very fact that a regularization scheme was framed by the
State is a clear pointer to show that the concerned employees were
not regularly employed. They had sought for regularization of their
service and at least in one case, as noticed hereinbefore, for one
reason or the other, the said request was turned down. The validity
thereof was not questioned. It attained finality. In the case of Rama
Devi, a contention was raised in the writ petition that the offer of
appointment in law was not for a period of six months but for an
indefinite period. Such a contention cannot be upheld. If the initial
appointment was for a fixed period and the appointment could be
terminated without any notice and without assigning any reason,
such appointment cannot be said to be an appointment on a
permanent post or a temporary sanctioned post. Unless and until
the post itself is a permanent or a temporary one, the same would
not answer the description of a substantive and permanent
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employment. In this case, it had been shown that the services of
Karan Singh was being renewed for a period of six months on the
expiry of the original or extended tenure.
25. Clause 3.17 of the Rules in no uncertain term explains as to
what is meant by substantive and permanent employment. The
contention of the counsel that it applies only to a person who has
retired is not correct because holding of a substantive permanent
post on the date of retirement is followed by the words his
temporary or officiating service under the State Government.
Confirmation in service, therefore, whether before retirement or
before death must be held to be sine qua non for becoming eligible
for grant of pension. Only when an employee renders service in a
pensionable service, he would be entitled to pension. Only by
reason of fulfillment of the conditions laid down under the contract
of service and/or the statutory rules governing the same, a person
can become a full fledged Government employee. When the terms
and conditions of services are governed by a statute or statutory
rules, no doubt the same would prevail over the contract of
employment but then for the said purpose, the concerned employee
must show that the appointment was regular in nature and on a post
which is a cadre post. The Government employee acquires status
only when he becomes entitled thereto by reason of a statute or by
his employer declaring him to be entitled therefore.
26. When a regularization scheme was framed (assuming that such
a scheme is valid and constitutional) the employee must be
regularized. At least he must acquire a right to be regularized in
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service.
27. In M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board
[(2004) 9 SCC 755] , this Court was considering a case where there
existed a conflict between a statutory regulation made under
Section 79(c) of the Electricity Supply Act, 1948 and Certified
Standing Order or a rule made under the M.P. Industrial
Employment (Standing Order) Act, 1961, to hold :
“ 42. It is one thing to say that when there exists a conflict
between a regulation made under Section 79(c) of the Act and
a certified standing order or a rule made under the 1961 Act,
the latter shall prevail; but it is another thing to say that in
absence of any statutory provision governing the age of
retirement, the statutory regulations framed by the
respondent Board shall have no application. It is not in
dispute that the impugned notification dated 26.12.2000 had
been issued by the Board in exercise of its power under
Section 79(c) of Electricity Supply Act. Section 15 of the Act
empowers the Board to appoint a Secretary and such other
officers as may be required to enable the Board to carry out
its functions. Section 79(c) empowers the Board to make
regulations inter alia as regard the duties of officers and
other employees of the Board, and their salaries, allowances
and other conditions of service. The Board, therefore, was
empowered to make regulations which are not inconsistent
with the provisions of the Act and the Rules providing for the
duties of officers, their salaries, allowances and other
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conditions of service.
43. The power of the Board, therefore, to lay down the
conditions of service of its employees either in terms of
regulation or otherwise would be subject only to any valid law
to the contrary operating in the field. Agreement within the
meaning of proviso appended to Rule 14A is not a law and,
thus, the regulations made by the Board shall prevail
thereover.”
Yet again in Mahendra L. Jain & Ors. v. Indore
Development Authority & Ors. [(2005) 1 SCC 639] , it was held :
“ 33 . For the purpose of this matter, we would proceed on the
basis that the 1961 Act is a special statute. Vis-àvis the 1973
Act and the rules framed thereunder. But in absence of any
conflict in the provisions of the said Act, the conditions of
service including those relating to recruitment as provided for
in the 1973 Act and the 1987 Rules would apply. If by reason
of the latter, the appointment is invalid, the same cannot be
validated by taking recourse to regularization. For the
purpose of regularization which would confer on the
concerned employee a permanent status, there must exist a
post. However, we may hasten to add that regularization itself
does not imply permanency. We have used the term keeping in
view the provisions of 1963 Rules.” It was also held therein
that :
“38. In A Umarani (supra) , this Court held that once the
employees are employed for the purpose of the scheme,
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they do not acquire any vested right to continue after the
project is over [See paras 41 and 43]. [ See also Karnataka
State Coop. Apex Bank Ltd. Vs. Y.S. Shetty and Others,
(2000) 10 SCC 179 and M.D. U.P. Land Development
Corporation and Another Vs. Amar Singh and Others,
(2003) 5 SCC 388]. ”
In M.P. Housing Board & Anr. v. Manoj Shrivastava
[(2006) 2 SCC 702] this Court followed the decision in M.P.
Electricity Board to hold :
“15. A daily-wager does not hold a post unless he is
appointed in terms of the Act and the rules framed
thereunder. He does not derive any legal right in relation
thereto. It was furthermore opined :
“19. The appointment made by a person who has no
authority therefor would be void. A fortiori an
appointment made in violation of the mandatory
provisions of the statute or constitutional obligation
shall also be void. If no appointment could be made
in terms of the statute, such appointment being not
within the purview of the provisions of the Act would
be void; he cannot be brought within the cadre of
permanent employees. The definitions of ‘permanent
employee’ and ‘temporary employee’ as contained in
the rules must, thus, be construed having regard to
the object and purport sought to be achieved by the
Act.”
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28. With the aforementioned legal principles in mind, we may
analyse the provisions of the scheme. The scheme in terms of
paragraph 3 is applicable to all regular employees in pensionable
establishment, temporary or permanent who were in service. Thus,
whether temporary or permanent, the employee must be regular
employee which would mean employee appointed on a regular
basis, i.e., in accordance with Rules. Only because services of ad
hoc employees were continued, the same would not mean that
thereby his status has been changed. It will bear repetition to state
that status of an employee can change either by reason of a
contract or by reason of a statute. Nothing has been shown to us
that the concerned employees either under the contracts of service
or under any statute or statutory rules became regular employees of
the State. If the scheme did not apply to the respondents, the
provisions as to how the scheme would be administered are not of
any significance.
29. The contention that the family of an employee would be entitled
to the benefit of family pension in the case of the death of
Government employee, if he had completed a minimum period of
one year continuous service without break cannot be accepted. As
stated hereinbefore, an employee must be a Government employee
at the first instance. He must be working in a pensionable scheme.
He, only in that capacity, should have completed a minimum period
of one year of continuous service without break which would mean
that he must be a temporary or permanent employee.
30. It is one thing to say that a person was appointed on a
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temporary post on a regular basis but it is another thing to say that
an appointment was ad hoc in nature on a temporary basis.
Whereas in the former case, the appointment must be carried out in
accordance with law, in the later, it may not be.
From a perusal of the offers of appointment, as noticed
hereinbefore, it is evident that the appointments of the concerned
employees were made for a period of six months or till a regular
appointment was made. The very fact that the posts were to be filled
up on regular basis by the competent authority clearly goes to show
that the nature of appointment of the said persons was ad hoc one.
31. It may be that on the expiry of six months, the services were
allowed to continue but the same would not, in absence of any
statutory interdict, mean that the ad hoc employee ceased to be so
and acquired the status of a permanent or temporary employee.
Reliance placed on Note 1 of paragraph 4 is not apposite. What is
sought to be explained by Note 1 is the exclusion of the periods
which shall not be counted towards one year’s continuous service.
It by itself does not create any new right.
In Punjab State Electricity Board Ltd. v. Zora Singh and Others
[(2005) 6 SCC 776] , this Court held:
“22. The administrative circulars as thence existed as also the
regulations indisputably require supply of electrical energy to the
agriculturists within a period of two months from the date of receipt
of the amount asked for in terms of the demand notice. It may be
true that the note appended thereto provides that the period
specified therein shall be subject to availability of requisite material
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but the same does not absolve the appellant from performing its
statutory duties.
23. In A.P. SRTC v. STAT a Full Bench of the Andhra Pradesh
High Court has noticed thus: (An LT p.544, para 31)
“31[24]. The meaning of ‘note’ as per P. Ramanatha Aiyar’s Law
Lexicon, 1997 Edn. is ‘a brief statement of particulars of some
fact’, a passage or explanation.” 24. The note, therefore, was
merely explanatory in nature and thereby the rigour of the main
provision was not diluted.” Therefore, reliance on paragraph 4 of
the scheme and Note 1 appended thereto by the High Court, in our
opinion is misplaced.
32. Submission of the learned counsel that the names of the
concerned employees were being maintained in the records of the
State are not denied and disputed may now be examined. The same,
in our opinion, in the facts and circumstances of this case, are
wholly immaterial. Even assuming for the sake of argument that
they are correct, the same would not confer any legal right on him
thereby, to which he was not otherwise entitled to.
33. It has categorically been stated that husbands of the respective
respondents were not a regular Government employees till their
death and, thus, the Family Pension Scheme was not applicable in
their cases.
34. The question although not directly but to some extent has been
considered in Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. vs.
Surji Devi [2008 (1) SCALE 570] wherein it was held :
“14. The scheme relating to grant of Family Pension was made
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under a statute. A person would be entitled to the benefit thereof
subject to the statutory interdicts. From a bare perusal of the
provisions contained in the Punjab Civil Services Rules, Volume 2
vis-à-vis the Family Pension Scheme, it would be evident that the
respondent was not entitled to the grant of any family pension.
Husband of the respondent was a work-charge employee. His
services had never been regularized. It may be unfortunate that he
had worked for 11 years. He expired before he could get the benefit
of the regularization scheme but sentiments and sympathy alone
cannot be a ground for taking a view different from what is
permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and
Others, (2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra
Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v.
Mahatma Mishra, 2006 (11) SCALE 258, State of Karnataka v.
Ameerbi & Ors. 2006 (13) SCALE 319 and State of M.P. and Ors.
v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] They
statutory provisions, as noticed hereinbefore, debar grant of family
pension in favour of the family members as the deceased employee
if was a work-charge employee and not a permanent employee or
temporary employee. The period during which an employee worked
as a work-charge employee could be taken into consideration only
when his services are regularized and he becomes permanent and
not otherwise.”
The observations made therein apply to the facts of the present case
also.
35. For the reasons aforementioned, the impugned judgments
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cannot be sustained. The same are set aside accordingly. Appeals
are allowed. However, in the facts and circumstances of the case,
there shall be no order as to costs.”
38. Full Bench of this Court in a case of Lakha Singh vs. State of
Punjab and others and connected cases, 2016 (1) SCT 179 held that work
charge employee cannot get pension unless his or her services were
regularized. Similarly, legal heirs of the deceased also cannot get family
pension unless the services of work charge employee were regularized.
The relevant portion of Lakha Singh’s case (supra) is reproduced
as under:-
“1. All the aforementioned four writ petitions placed
before this Bench consequent to the following order passed by the
Division Bench of this Court on 20.01.1995 in CWP No. 7072 of
1994 doubting the correctness of Division Bench judgment reported
as Smt. Sarbati Devi v. State of Punjab & others 1991(1) S.C.T
155 : 1991 (1) SLR 225 :
"Learned counsel for the petitioner has relied on a D.B.
judgment of this Court reported as 1991 (1) S.L.R. 225 to
contend that if family pension can be granted to the family of a
work-charged employee, there is no reason to deny the pension
to such an employee who might have superannuated as a work-
charged employee. Rule 6.17 of Punjab Civil Services Rules
Volume - II which specifically negatives the claim of family
pension of a workcharged employee, was not considered in the
above mentioned judgment of the D.B. We have reservations
about the correctness of the above said judgment in which the
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above rule was not considered at all. Even in the Full Bench
judgment in Kesar Chand's case reported as 1988 Punjab &
Haryana 265 , the Full Bench laid down that if work-charged
service is followed by a regular service, then the work-charged
period shall be counted for reckoning pension.
In these circumstances, we admit the case to Full Bench."
2 xxx xxx xxx
3 xxx xxx xxx
4. The writ petition in Smt. Sarbati Devi's case (supra) was allowed
in view of the Full Bench judgment of this Court reported as Kesar
Chand v. State of Punjab, AIR 1988 Punjab & Haryana 265 , but
such order does not deal with the question as to whether a work-
charged employee would be entitled to pension even if the services
of such work-charged employee were not regularized.
5 xxx xxx xxx
6 xxx xxx xxx
7 xxx xxx xxx
8. We have heard learned counsel for the parties at length. We find
that the issue placed before this Bench stands concluded by the
earlier Full Bench judgment of this Court in Sita Devi's case
(supra).
9. The Punjab Civil Services Rules, which were considered in Kesar
Chand's case (supra), are applicable to an employee in regular
employment. The relevant provisions read as under :
"VOLUME - I PART - I CHAPTER - I"
xx xx
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1.2 (1) Except as otherwise provided in rule 1.4 infra or in any
other rule or rules these rules shall apply to all Government
employees belonging to the categories mentioned below, who are
under the administrative control of Punjab Government and whose
pay is debt able to the Consolidated Fund of the State of
Punjab:
(1) Members of State Service (Group A & B);
(2) Members of State Service (Group C);
(3) Members of State Service (Group D);
(4) Holders of Special Posts; and
(5) Any other Government employee or classes of Government
employees to whom the competent authority may, by general or
special order, make them applicable.
(2) Government employees to whom these rules apply shall continue
to be governed by these rules while on temporary transfer to
another State Government or Central Government or while on
Foreign Service within India, unless it be otherwise provided in
these rules. In the case of Government employees on foreign service
outside India (including services with the United Nations Agencies
within or outside India) or on temporary transfer to the Armed
forces of the Union, these rules shall apply only to the extent
provided in the terms and conditions of foreign service or
temporary transfer, as the case may be.
xx xx
1.4 These rules shall not apply to :-
(i) any Government employee between whom and the Government,
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a specific contract or agreement subsists in respect of any matter
dealt with herein to the extent up to which specific provision is
made in the contract or agreement;
(ii) any person for whose appointment and conditions of service
special provision is made by or under any law for the time being in
force; and
(iii) Any Government employee or class of Government employees
to whom the competent authority may, by general or special order,
direct that they shall not apply in whole or in part. One of such
classes of Government employees is that employed only
occasionally or which is subject to discharge at one month's notice
or less. A list of such employees is given in appendix 2." [Appendix
2 contains List of Government employees employed occasionally or
who are liable to discharged at one month's notice or less. Such List
includes the department of Public Works Department (Irrigation
Branch). The said Department has two Establishments i.e. (i)
Superior Work-Charged Establishment consisting of 40 categories
of employees including Drivers, Ist Class and Drivers, 2nd Class;
& (ii) Class IV Work-Charged Establishment consisting of 40
categories of employees including Drivers, Malis, Sweepers etc.]
"Chapter III Section II Conditions of Qualification" A - General
3.12 The service of a Government employee does not qualify for
pension unless it
confirms the following three conditions:
First :- The service must be under Government;
Second :- The employment must be substantive and permanent;
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Third :- The service must be paid by Government.
These three conditions are fully explained in the following rules.
xx xx
3.17 If an employee was holding substantively a permanent post on
the date of his retirement, his temporary or officiating service under
the State Government followed without interruption by confirmation
in the same or another post, shall
count in full as qualifying service except in respect of:-
(i) Period of temporary or officiating service in non pensionable
establishment.
(ii) Period of Service in Work Charged establishment; and
(iii) Periods of service paid from contingencies."
A perusal of the above mentioned Rules shows that the
Punjab Civil Services Rules are applicable only to the Members of
the State Services (Group A, B, C & D) and Holders of Special
posts as well as any other Government employees or classes of
Government employees, when the Rules are specifically made
applicable to them. It does not cover the work-charged employees.
In fact, Rule 1.4 specifically deals with employees, who are
employed on work-charged establishments including Public Works
Department (Irrigation Branch) having two Establishments i.e. (i)
Superior Work-Charged Establishment; & (ii) Class IV Work-
Charged Establishment. The Superior Work-Charged Establishment
consists of categories includes Blacksmiths, Ist Class; Blacksmiths,
nd
2nd Class; Linemen; Mistries; Drivers, Ist Class; Drivers, 2 Class
etc., whereas Class IV Work- Charged Establishment consists of 40
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categories includes Attendants Pumps; Beldars Garden; Beldars
Plantation; Bhishties; Drivers etc. Therefore, the work-charged
employees are not employed on substantive and permanent posts,
which fact alone will entitle them for pension in terms of Rules 3.12
& 3.17 of the Punjab Civil Services Rules Volume II, Chapter - III,
as reproduced above.
10. In Full Bench judgment of this Court reported as Kesar Chand's
case (supra), the services of the work-charged employees were
regularised before his or her superannuation. In Uttar Haryana
Bijli Vitran Nigam Ltd. & others v. Surji Devi, 2008(1) S.C.T.
656 : (2008) 2 SCC 310 , the Hon'ble Supreme Court dealt with the
question as to whether family members of a deceased employee who
was appointed on a work-charge basis would be entitled to family
pension. The Hon'ble Supreme Court was considering a situation
where the services were not regularised and the work-charged
employee died. The claim of family pension was declined by the
Hon'ble Supreme Court for the reason that services of the work-
charged employee were not regularized. The Court in Surji Devi's
case (supra) held to the following effect :
" 16. The Scheme relating to grant of family pension was made
under a statute. A person would be entitled to the benefit
thereof subject to the statutory interdicts. From a bare perusal
of the provisions contained in the Punjab Civil Services Rules,
Vol. 2 vis-a-vis the Family Pension Scheme, it would be evident
that the respondent was not entitled to the grant of any family
pension. The husband of the respondent was a work-charged
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employee. His services had never been regularised. It may be
unfortunate that he had worked for 11 years. He expired before
he could get the benefit of the regularisation scheme but
sentiments and sympathy alone cannot be a ground for taking a
view different from what is permissible in law. (See Maruti
Udyog Ltd. v. Ram Lal 2005(1) S.C.T. 771 : (2005) 2 SCC 638 ,
State of Bihar v. Amrendra Kumar Mishra 2006(4) S.C.T. 497
: (2006) 12 SCC 561 , SBI v. Mahatma Mishra 2007(1) S.C.T.
67 : (2006) 13 SCC 727 , State of Karnataka v. Ameerbi
2007(1) S.C.T. 601 : (2007) 11 SCC 681 and State of M.P. v.
Sanjay Kumar Pathak 2007(4) S.C.T. 616 : (2008) 1 SCC
456.)
17. The statutory provisions, as noticed hereinbefore, debar
grant of family pension in favour of the family members as the
deceased employee was a workcharged employee and not a
permanent employee or temporary employee. The period during
which an employee worked as a work-charged employee could
be taken into consideration only when his services are
regularised and he becomes permanent and not otherwise."
11. In Sita Devi's case (supra) , the Full Bench was examining the
scope of the second condition of Rule 3.12 of the Punjab Civil
Service Rules, which required that employment must be substantive
and permanent'. The Bench also examined the question; whether
the deceased would have been eligible for regularisation on
01.10.2003 as per the policy of the respondents subject to
fulfillment of all other conditions. The Full Bench held as under:
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"7. A reference is also made to the judgement in Uttar Haryana
Bijli Vitran Nigam Ltd. v. Surji Devi (2008) 2 SCC 310 , where the
same rule was in question as in the present case. The deceased had
been appointed on a work-charge basis with services not being
regularized. It was held that the statutory provisions debarred grant
of family pension in favour of the family members as the deceased
employee was not a permanent or temporary employee. It was
further observed that sentiments and sympathy alone cannot be
aground for taking a view different from what is permissible in law
and the period during which an employee worked as a work-charge
employee could be taken into consideration only when his services
are regularised and he becomes permanent and not otherwise.
8. In our view, the issue is no more res-integra in view of the
various judicial pronouncements and, thus, it certainly cannot be
said that the petitioner as a legal heir of her deceased daughter
would be entitled to family pension since the services of the
petitioner (sic) were never regularized. We answer the reference
accordingly."
12. The judgment in Nihal Singh's case (supra) , arises out of the
fact where the appointment was made in terms of the Standing
Order issued by the Director General of Police under Section 17 of
the Police Act, 1861. The appellant continued to work for number of
years. The Court has found that the appointment was not irregular,
but was made after following the procedure contemplated under the
Act. It was, in these circumstances, the Court directed for creation
of the posts in view of the Constitution Bench judgment in Uma
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Devi's case (supra). However, in the present case, the State has
created regular posts to adjust the work-charged employees, but the
petitioner-Lakha Singh could not be regularised for the reason that
he was down below in the seniority list.
13. The creation of post is an executive function. The Hon'ble
Supreme Court in Indian Council of Medical Research & others v.
K. Rajyalakshmi 2007(2) S.C.T. 450 : (2007) 2 SCC 332 has set
aside the order of Central Administrative Tribunal for
regularisation of the employees working on a project. The Court
held as under :
"10. It has not been denied or disputed that the project
being on an yearly basis, post could not have been
sanctioned on a regular basis. Having regard to the fact
that the appellant herein was bound to implement the
project of the Central Government in terms of the grant-
in-aid scheme, it could not have taken a decision on its
own for making the project a permanent one. In absence
of the Union of India, therefore, in our opinion, the
Tribunal and consequently the High Court committed a
manifest error in entertaining the question as to whether
the project should have been made a permanent one or
not.
11. Keeping in view the fact that the project could not
have been directed to be made a permanent one at the
instance of the appellant, the question of invoking the
doctrine of fairness, in our opinion, did not arise. In
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service jurisprudence, it is well known, that creation or
sanction of a post is essentially an executive function."
14. The somewhat similar issue has been examined by another Full
Bench of this Court in Union of India & another v. Ram Pal &
others 2013(3) S.C.T. 220 : (2013) 1 ILR P&H 943 , wherein the
regularisation of the employees engaged by the contractor under
the Contract Labour (Regulation and Abolition) Act, 1970 was
considered. The Bench held that the direction to regularise the
employees is not tenable, as the High Court will not give any
direction for creation of posts or to frame a scheme for
regularization. It has been held to the following effect :
13. There is yet another reason for setting aside the
order of the Tribunal, following the decision in Kiran
Pal & others v. Union of India & others OA No.
800/CH/2001 (which was upheld by this Court on
24.05.2003 and thereafter by the Supreme Court on
20.04.2010), the direction given is to regularise the
respondents herein. Even if we presume that introducing
the contractor in between is a camouflage (though such
aspect can be raised only by means of industrial dispute
and can be adjudicated upon by the Industrial Tribunal,
at the most) it would mean that respondents are
employees of the petitioners. However, they are engaged
only on daily-wage basis. It would not follow
automatically that they are entitled to regularisation as
well. These directions are impermissible. It is not
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permissible for this Court or for the CAT to either give
directions for framing of scheme for regularisation or to
create supernumerary posts. The law in this regard
stands settled by the 7- Member Bench of the Supreme
Court in Uma Devi's case (supra). Again, in a recent
judgment in the case of State of Rajasthan & others v.
Daya Lal & others 2011(1) S.C.T. 795 : (2011) 2 SCC
429 , the Supreme Court has reemphasized that the High
Courts will not give any direction for creation of posts
or to frame a scheme for regularisation and such a
direction can only be given by the Supreme Court in its
powers under Articles 142 of the Constitution. This is so
declared in the following manner by the Supreme Court
in that case :
"8. We may at the outset refer to the following well
settled principles relating to regularisation and
parity in pay, relevant in the context of these
appeals :
(i) High Courts, in exercising power under Article 226
of the Constitution will not issue directions for
regularization, absorption or permanent continuance,
unless the employees claiming regularisation had been
appointed in pursuance of a regular recruitment in
accordance with relevant rules in an open competitive
process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be
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scrupulously followed and courts should not issue a
direction for regularisation of services of an employee
which would be violative of constitutional scheme.
While something that is irregular for want of
compliance with one of the elements in the process of
selection which does not go to the root of the process,
can be regularized, back door entries, appointments
contrary to the constitutional scheme and/or
appointment of ineligible candidates cannot be
regularized.
(ii) Mere continuation of service by an temporary or ad
hoc or daily-wage employee, under cover of some
interim orders of the court, would not confer upon him
any right to be absorbed into service, as such service
would be litigious employment'. Even temporary, ad hoc
or daily wage service for a long number of years, let
alone service for one or two years, will not entitle such
employee to claim regularization, if he is not working
against a sanctioned post. Sympathy and sentiment
cannot be grounds for passing any order of
regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for
regularisation with a cut off date (that is a scheme
providing that persons who had put in a specified
number of years of service and continuing in
employment as on the cut off date), it is not possible to
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others who were appointed subsequent to the cut off
date, to claim or contend that the scheme should be
applied to them by extending the cut off date or seek a
direction for framing of fresh schemes providing for
successive cut off dates.
(iv) Part-time employees are not entitled to seek
regularisation as they are not working against any
sanctioned posts. There cannot be a direction for
absorption, regularisation or permanent continuance of
part time temporary employees.
(v) Part time temporary employees in Government run
institutions cannot claim parity in salary with regular
employees of the Government on the principle of equal
pay for equal work. Nor can employees in private
employment, even if serving full time, seek parity in
salary with Government employees. The right to claim a
particular salary against the State must arise under a
contract or under a statute."
The nature of binding precedent of Uma Devi's case (supra) is
impressed upon by the Supreme Court much strongly in the
subsequent judgment in the case of Official Liquidator v.
Dayanand & others (2008) 10 SCC 1 , in the following words :
xx xx xx"
Thus, we find that a work-charged employee is not entitled to be
regularised by creating posts for him and that without
regularization, a work charged employee would not be entitled to
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pension or his legal heirs, the family pension.
15. A work-charged employee subscribes to the Employees'
Provident Fund Scheme, 1952 framed under the Employees'
Provident Funds and Miscellaneous Provisions Act, 1952. Since the
engagement of the work-charged employees is governed by a
different Statute i.e. the Employees' Provident Funds and
Miscellaneous Provisions Act, 1952, the petitioner cannot claim the
benefit of a regular employee unless there is a regular post
available and is regularised as per the policy decision of the State
Government.
16. Consequently, we hold that the work-charged employee cannot
get pension unless his or her services were regularized. Similarly,
the legal heirs of a deceased also cannot get family pension unless
the services of the work-charged employee were regularized. In
view of the decision on the question of law, we order that the writ
petitions be placed before an appropriate Bench as per roster.
39. Further State of Nagaland filed appeal before Hon’ble the
Supreme Court in case titled as State of Nagaland vs Nishevi Achumi, passed
in Civil Appeal No. 4223-2022, decided on 11.07.2022 against the judgment
rendered by Division Bench whereby the judgment rendered by learned Single
Judge directing the State to regularize the service of the deceased-husband of
the respondent from one date earlier to his death and thereafter to pay the
family pension to the respondent, was affirmed. As per facts of this case, the
husband of respondent who was working as work charge employee, died in
harness on 28.08.2005, as workcharge employee. In the year 2017, after a
period of twelve years from the death of the deceased employee, the
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respondent (widow/wife) of the deceased employee filed a writ petition before
the learned Single Judge claiming that the services of her late husband ought
to have been regularized and therefore, she would be entitled for family
pension. The learned Single Judge allowed the same and directed the appellant
– State to regularize the services of her husband from one day prior to the date
of his demise so that the respondent is entitled to pensionary benefits. The
State filed appeal before Division Bench against the judgment learned Single
Judge but the same was dismissed. The State preferred appeal before Hon’ble
the Supreme Court against the judgment dated 19.04.2021 of Division Bench
and Hon’ble the Supreme Court held that the deceased employee died in the
year 2005 and during his lifetime he never claimed any regularization. The
wife of the deceased employee claimed regularization after a period of twelve
years from the death of the deceased employee. And at the time of the death of
the deceased employee, he was not entitled to regularization as he was much
below in the list of the worked charge employees whose services were to be
regularized. Under the Regularization Policy, the services of the workcharge
employees were required to be regularized as per the seniority and as and
when the vacancy arises. Even the services of the other workcharge employees
who were senior to the deceased employees were regularized in the year 2009
i.e. after the death of the deceased employee. Hon’ble the Supreme Court by
holding that despite these facts, the High Court has directed the State to
regularize the services of the deceased employee one day prior to his death,
which otherwise could not be done, since he was much below in the seniority
list, quashed/set aside the judgment of the Division bench.
The relevant portion of Nishevi Achumi’s case (supra) is
reproduced as under:-
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“4. Having heard learned counsel for the State and
considering the submissions made on behalf of the State and having
gone through the judgment and order passed by the learned Single
Judge confirmed by the Division Bench, we are of the firm opinion
that the High Court has committed a grave error in directing the
appellant to regularize the services of the deceased employee one
day prior to his death.
4.1 It is required to be noted that the deceased employee
died in the year 2005. During his lifetime he never claimed any
regularization. That the respondent herein – original writ petitioner
wife of the deceased employee claimed the regularization after a
period of twelve years from the death of the deceased employee. At
the time of the death of the deceased employee he was not entitled
to regularization as he was much below in the list of the worked
charge employees whose services were to be regularized. Under the
Regularization Policy the services of the workcharge employees
were required to be regularized as per the seniority and as and
when the vacancy arises. The services of the other workcharge
employees even who were senior to the deceased employees were
regularized in the year 2009 i.e. after the death of the deceased
employee. Despite the above, the High Court has directed the State
to regularize the services of the deceased employee one day prior to
his death, which otherwise his services were not required to be
regularized as his turn had not come and he was much below in the
seniority list.
4.2 Considering the aforesaid facts and circumstances, the
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impugned judgment and order passed by the High Court is
unsustainable and the same deserves to be quashed and set aside.
5. In view of the above and for the reason stated above
present appeal is allowed. The impugned judgment and order
passed by the Division Bench of the High Court as well as the
learned Single Judge is hereby quashed and set aside.
Consequently, the original writ petition filed by respondent wife
herein stands dismissed. However, in the facts and circumstances of
the case there shall be no order as to costs.”
40. As per the law laid down by Full Bench of this Court as well as
Hon’ble the Supreme Court referred to above, the work charge/adhoc
employees, whose services are not regularized, are not entitled to pension and
dependents/family members of the work charge/adhoc employees, who were
not regularized, are not entitled to family pension.
ANALYSIS AND FINDINGS IN THE PRESENT CASE
41. Now coming to the facts of the present case. The question of law
involved in the present writ petition is as to whether the petitioner would be
entitled to family pension despite the fact that the services of husband of the
petitioner were never regularized .
In view of the law laid down by Full Bench of this Court as well
as Hon’ble the Supreme Court referred to above, the answer to the same would
be in negative .
42. It would be relevant here to mention the chronological date wise
decision on the question of law in hand.
(a) Surji Devi’s case (supra) was decided by Hon’ble the Supreme Court
on 22.01.2008.
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(b) Shakuntala Devi’s case (supra) was decided by Hon’ble the Supreme
Court on 24.10.2008,
(c) Balwinder Kaur’s case (supra) was decided by learned Single Judge of
this Court in CWP No. 1169-2011 and connected cases on 16.12.2014.
(d) Lakha Singh’s case (supra) was decided by Full Bench of this Court
on 21.10.2015.
(e) Nishevi Achumi’s case (supra) was decided by Hon’ble the Supreme
Court on 11.07.2022
(f) Balwinder Kaur’s case (supra) was decided by learned Division Bench
of this Court in LPA No. 679-2015 and connected cases on 24.08.2026 .
43. The learned Single Judge in CWP No. 1169-2011 and connected
cases titled as “ Balwinder Kaur vs. State of Punjab and others”, decided on
16.12.2014 though referred to judgments passed by Hon’ble the Supreme
Court in “ UHBVNL and others vs. Surji Devi”, 2008 (1) SCT 656 and “ State
of Haryana and others vs. Shakuntala Devi”, 2009 AIR SC 869, but did not
consider the ratio of law laid down by Hon’ble the Supreme Court in both the
above cases { Surji Devi’s case} (supra) and {Shakuntala Devi’s case} (supra)
44. The Division Bench of this Court in Balwinder Kaur’s case
(supra) in LPA No. 679-2015 and connected cases, did not even consider the
law on family pension laid down by Hon’ble the Supreme Court in Surji
Devi’s case (supra) on 22.01.2008, in Shakuntala Devi’s case (supra) on
24.10.2008, Full Bench of this Court in a case of Lakha Singh’s case (supra),
decided on 21.10.2015 and Nishevi Achumi’s case (supra) decided on
11.07.2022 .
45. Balwinder Kaur’s case (supra) in LPA No. 679-2015 and
connected cases pertains to widows who were asking for family pension and
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law regarding grant of family pension is settled by Hon’ble the Supreme Court
in Surji Devi’s case (supra) on 22.01.2008, in Shakuntala Devi’s case
(supra) on 24.10.2008, Full Bench of this Court in a case of Lakha Singh’s
case (supra), decided on 21.10.2015 and Nishevi Achumi’s case (supra)
decided on 11.07.2022 .
46. The Division Bench of this Court in Balwinder Kaur’s case
(supra) in LPA No. 679-2015 and connected cases relied upon Jaggo vs.
Union of India, passed in Civil Appeal No. 14831-2024, decided on
20.12.2024 , wherein employees filed petitioners for regularization of their
services whereas in Balwinder Kaur’s case (supra) , the widows filed
petitioners for grant of family pension.
LAW ON PER INCURIAM
47. Hon’ble the Supreme in a case of State of U.P and anr. vs.
Synthetics and chemicals Ltd and anr, 1991(4) SCC 139 explained the
doctrine of per incuriam and held that decision not express, nor founded on
reasons nor proceeding on consideration of the issue, cannot be deemed as a
‘law declared’.
The relevant portion of the judgement is reproduced as under:-
“36. The High Court, in our view, was clearly in error in
striking down the impugned provision which undoubtedly falls
within the legislative competence of the State, being referrable to
Entry 54 of List II. We are firmly of the view that the decision of this
Court in Synthetics, [1990] 1 SCC 109 is not an authority for the
proposition canvassed by the assessee in challenging the provision.
This Court has not, and could not have, intended to say that the
Price Control Orders made by the Central Government under the
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IDR Act imposed a fetter on the legislative power of the State under
Entry 54 of List II to levy taxes on the sale or purchase of goods.
The reference to sales tax in paragraph 86 of that judgment was
merely accidental or per incurium and has, therefore no effect on
the impugned levy.
R.M. SAHAI, J. (concurring)- I have, carefully, gone through the
judgment of brother Thommen, J. I agree with every word that has
been said by him. But considering the importance of issues involved
I would like to add few words of my own.
38. The dispute is about levy of purchase tax on industrial
alcohol. The High Court held that the State legislature was
competent to enact a law imposing purchase tax on it in exercise of
power under Entry 54 of List II. But it struck down the levy as it
would disturb price structure regulated by Central Government. It
was held that control of alcohol industry having been taken over by
the Parliament, for purpose of regulation and development the State
stood denuded of its taxing power under Entry 54 of List II to the
extent the field of price fixation was covered by the price control
order issued by the Government. And the purchase price being
component of price fixation which squarely fell within the power of
Central Government the imposition of purchase tax amounted to
intrusion into the forbidden area of price fixation by Central
Government. Support for this was drawn, principally, from the two
Constitution Bench decision in Indian Cement Ltd. v. State of
Tamil Nadu , [1990] 1 SCC 12 and Synthetic and Chemicals v.
State of U.P., [1990] 1 SCC 1091 . The first was relied for the
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principle that even a taxing legislation by the State could be invalid
to the extent it trenched on Central legislation on the same subject.
And the latter for the conclusion that, 'however, sales tax cannot be
charged on industrial alcohol in the present case, because under
the Ethyl Alcohol (Price Control) Orders sales tax cannot be
charged by the State on industrial alcohol'. Reliance on Indian
Cement Ltd. (supra) was under complete misapprehension. The
State in that case attempted to levy cess on royalty. It was held to be
in- valid. To save it the State attempted to justify it as a tax in
exercise of power under Entry 50 of List II. The submission was
negatived as the legislative power of State under Entry 50 of List II
was 'subject to any limitation imposed by the Parliament by law
relating to mineral development'. The Bench held that in view of the
Parliamentary legislation under Entry 54 of List 'I and the
declaration made under Section 2 and provisions of Section 9 of the
Act the State legislation was overridden to that extent. No such
restriction or limitation is placed under Entry 54 of List II except
that the exercise of power has been made subject to the provisions
of Entry 92 of List I.
39. But the problem has arisen due to the conclusion in
the case of Synthetic and Chemicals (supra). The question was if
the State legislature could levy vend fee or excise duty on industrial
alcohol. The Bench answered the question in the negative as
industrial alcohol being unfit for human con- sumption the State
legislation was incompetent to levy any duty of excise either under
Entry 51 or Entry 8 of List II of the VIIth Schedule. While doing so
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the Bench recorded the conclusion extracted earlier. It was not
preceded by any discussion. No reason or rationale could be found
in the order. This gives rise to an important question if the
conclusion is law declared under Article 141 of the Consti- tution
or it is per incuriurn and is liable to be ignored.
40. 'Incuria' literally means 'carelessness'. In practice
per incurium appears to mean per ignoratium.' English Courts have
developed this principle in relaxation of the rule of stare decisis.
The 'quotable in law' is avoided and ignored if it is rendered, 'in
ignoratium of a statute or other binding authority'. (1944 IKB 718
Young v. Bristol Aeroplane Ltd. Same has been accepted, approved
and adopted by this Court while interpreting Article 141 of the
Constitution which embodies the doctrine of precedents as a matter
of law. In Jaisri Sahu v. Rajdewan Dubey , [1962] 2 SCR 558 this
Court while pointing out the procedure to be followed when
conflicting decisions are placed before a Bench extracted a passage
from Halsbury Laws of England incorprating one of the exceptions
when the decision of an Appellate Court is not binding.
41. Does this principle extend and apply to a conclusion of
law, which was neither raised nor preceded by any consideration.
In other words can such conclusions be considered as declaration
of law? Here again the English Courts and ju rists have carved out
an exception to the rule of precedents. It has been explained as rule
of sub-silentio. A decision passed sub-silentio, in the technical sense
that has come to be attached to that phrase, when the particular'
point of law involved in the decision is not perceived by the Court
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or present to its mind' (Salmond 12th Edition). In Lancaster Motor
Company (London) Ltd. v. Bremith Ltd. , [1941] IKB 675 the Court
did not feel bound by earlier decision as it was rendered 'wit- hout
any argument, without reference to the crucial words of the rule
and without any citation of the authority'. It was approved by this
Court in Municipal Corporation of Delhi v. Gumam Kaur , [1989] 1
SCC 101. The Bench held that, 'prece- dents sub-silentio and
without argument are of no moment'. The Courts thus have taken
recourse to this principle for relieving from injustice perperated by
unjust precedents. A decision which is not express and is not
founded on reasons nor it proceeds on consideration of issue
cannot be deemed to be a law declared to have a binding effect as is
contemplated by Article 141. Uniformity and consistency are core
of judicial discipline. But that which escapes in the judgment
without any occasion is not ratio decedendi. In B. Shama Rao v.
State of Pondicherry , AIR 1967 SC 1680 it was ob- served, 'it is
trite to say that a decision is binding not because of its conclusions
but in regard to its ratio and the principles, laid down therein'. Any
declaration or conclusion arrived without application of mind or
preceded without any reason cannot be deemed to be declaration of
law or authority of a general nature binding as a precedent.
Restraint in dissenting or overruling is for sake of stabil- ity and
uniformity but rigidity beyond reasonable limits is inimical to the
growth of law.
42. Effort was made to support the conclusion,
indirectly, by urging that the State having raised same objections by
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way of review petition and the same having been rejected it
amounted impliedly as providing reason for conclusion. Law
declared is not that can be culled out but that which is stated as law
to be accepted and applied. A conclusion without reference to
relevant provision of law is weaker than even casual observation. In
the order of brother Thommen, the extracts from the judgment of
the Constitution Bench quoted in extenso demonstrate that the
question of validity of levy of sales and purchase tax was neither in
issue nor was it raised nor is there any discussion in the judgment
except of course the stray argument advanced by the learned
Attorney General to the following effect.
"But alcohol not fit for human consumption are not luxury and
as such the State Legislatures according to Attorney General
will have no power to levy tax on such alcohol."
Sales tax or purchase tax under Entry 54 is levied on sale or
purchase of goods. It does not contemplate any distinc- tion
between luxury and necessity. Luxuries are separately taxable
under Entry 62. But that has nothing to do with Entry 54. What
prompted this submission is not clear. Neither there was any
occasion nor there is any constitutional inhibition or statutory
restric- tion under the legislative Entry nor does the taxing statute
make any distinction between luxuries and necessities for levying
tax. In any case the Bench did not examine it nor did it base its
conclusions on it. In absence Of any discus- sion or any argument
the order was founded on a mistake of fact and, therefore, it could
not be held to be law declared. The Bench further was not apprised
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of earlier Constitution Bench decisions in Hoechst Chemicals v.
State of Bihar, AIR 1983 SC 1019 and Ganga Sugar Mill v. State
of U.P., [1980] 1 SCR 769 which specifically dealt with the
legislative competence of levying sales tax in respect of any
industry which had been declared to be of public importance.
Therefore, the conclusion of law by the Constitution Bench that no
sales or purchase tax could be levied on industrial alcohol with
utmost respect fell in both the exceptions, namely, rule of sub-
silentio and being in per incurium, to the binding authority of the
precedents.”
48. Hon’ble the Supreme in a case of Parveen Kumar @ Parveen
Chauhan vs. State of Haryana and ors, 2026 INSC 667 explained the
doctrine of per incuriam.
The relevant portion of Parveen Kumar @ Parveen Chauhan’s
case (supra) is reproduced:-
“14 . We have to specifically deal with a submission on behalf of the
appellant that the judgment in Rajkumar supra does not have value
as precedent. When ‘does’ or ‘does not’ in a decision become per
incuriam, is a question that has been discussed in various
judgments. Certain facets emerge from these discussions as follows:
14.1 It is an exception to the rule of stare decisis and must be
applied sparingly;
14.2 A judgment is per incuriam:
(a) when its ratio is not reconcilable with an earlier decision
rendered by a Bench of equal or higher strength; or
(b) when a particular provision or a statute or a rule or a
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regulation has not been brought to the attention of the Court;
14.3 It applies only to the ratio decidendi of a judgment and not to
obiter dicta;
14.4 Judicial discipline requires that if a bench disagrees with
another bench of co-equal strength the matter should be referred
to a bench of three judges to decide the issue;
14.5 The decision rendered by the Bench of largest strength binds
any subsequent Bench of co-equal or lesser strength. A Bench of
lesser strength cannot dissent from the view already taken by a
Bench of larger strength;
14.6 A judgment cannot be said to be per incuriam:
(a) if it makes reference to an earlier decision and then
concludes correctly or incorrectly; or
(b) if the ordinary reading of the judgment does not on the face
of it show it to be in conflict with earlier decisions, the court
should refrain adopting such an interpretation.
14.7 It is not the numerical strength of judges taking a particular
view that is relevant but it is instead the strength of the Bench,
which is the determinative factor of the binding nature of a
particular view.”
49. The learned Single Judge in “ Balwinder Kaur vs. State of Punjab
and others”, passed in CWP No. 1169-2011 and connected cases, decided on
16.12.2014 though considered the judgments passed by Hon’ble the Supreme
Court in “ UHBVNL and others vs. Surji Devi”, 2008 (1) SCT 656 and “ State
of Haryana and others vs. Shakuntala Devi”, 2009 AIR SC 869, but totally
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ignored the law laid down by Hon’ble the Supreme Court in both the above
cases { Surji Devi’s case} (supra) and {Shakuntala Devi’s case} (supra)
regarding the grant of family pension to the widows of employees, who were
not regularized. In Surji Devi’s case (supra), the husband of the petitioner
worked for 11 years and Hon’ble the Supreme Court in para No. 14 observed
as under:-
“14. The scheme relating to grant of Family Pension was made
under a statute. A person would be entitled to the benefit thereof
subject to the statutory interdicts. From a bare perusal of the
provisions contained in the Punjab Civil Services Rules, Volume 2
vis-a-vis the Family Pension Scheme, it would be evident that the
respondent was not entitled to the grant of any family pension.
Husband of the respondent was a work-charge employee. His
services had never been regularized. It may be unfortunate that he
had worked for 11 years. He expired before he could get the
benefit of the regularisation scheme but sentiments and sympathy
alone cannot be a ground for taking a view different from what is
permissible in law. [See Maruti Udyod Ltd. v. Ram Lal and
Others, 2005(1) SCT 771 : (2005)2 SCC 638 , State of Bihar &
Ors. v. Amrendra Kumar Mishra, 2006(4) SCT 497 : 2006(9)
SCALE 549 , Regional Manager, SBI v. Mahatma Mishra,
2007(1) SCT 67 : 2006(11) SCALE 258 , State of Karnataka v.
Ameerbi & Ors., 2007(1) SCT 601 : 2006(13) SCALE 319 and
State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors.,
2007(4) SCT 616 : [2007(12) SCALE 72].”
50. Therefore, the judgment of the learned Single Judge in
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“ Balwinder Kaur vs. State of Punjab and others”, passed in CWP No. 1169-
2011 and connected cases, decided on 16.12.2014, is per incuriam .
51. With due respect to the Division Bench of this Court, a bare
reading of LPA No. 679-2015 titled as “ State of Punjab and others vs.
Balwinder Kaur” and connected cases, decided on 24.08.2026 shows that the
same is per incuriam , since the settled law on the grant of family pension is
totally ignored by the Division Bench.
DECISION OF THE PRESENT CASE ON MERITS
52. Since the husband of the petitioner was never regularized and was
not entitled for pension, therefore, the petitioner cannot be granted family
pension
In view of the law laid down by Full Bench of this Court and
Hon’ble the Supreme Court in the judgment referred to above, the present writ
petition is dismissed on merits.
53. The petitioner was granted job on compassionate ground due to
death of her husband while in service in 1994 and thereafter her services were
regularized in the year 1996 and she retired on 31.05.2024 and is already
getting pension against PPO No. 4033.
Since the petitioner was already granted family pension because
of order dated 04.07.2024 passed by Co-ordinate Bench of this Court,
therefore, the respondents are directed not to recover any amount already paid
to the petitioner as family pension.
DECISION ON DELAY AND LATCHES
54. In the present case, the husband of the petitioner died in the year
1993 after rendering 08 years 10 months of service and the present writ
petition is filed in the year 2024 i.e after a gap of almost 28 years. The
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contention of learned counsel for the petitioner that pension is recurring cause
of action and there is no delay in filing of the writ petition, cannot be accepted,
since the question involved in the present writ petition is regarding entitlement
of grant of family pension to the petitioner.
55. On delay and latches, this Court in CWP No. 4516-2019 titled as
Vijay Kumar vs. Punjab and Haryana High Court, decided on 04.08.2026
has observed as under:-
“ Hon’ble the Supreme Court in Mrinmoy Maity Vs. Chhanda
Koley and others, 2024(15) SCC 215 held as under:-
“ 9. Having heard rival contentions raised and on
perusal of the facts obtained in the present case, we are of
the considered view that writ petitioner ought to have been
non-suited or in other words writ petition ought to have
been dismissed on the ground of delay and latches itself.
An applicant who approaches the court belatedly or in
other words sleeps over his rights for a considerable
period of time, wakes up from his deep slumber ought not
to be granted the extraordinary relief by the writ courts.
This Court time and again has held that delay defeats
equity. Delay or latches is one of the factors which should
be born in mind by the High Court while exercising
discretionary powers under Article 226 of the Constitution
of India. In a given case, the High Court may refuse to
invoke its extraordinary powers if laxity on the part of the
applicant to assert his right has allowed the cause of action
to drift away and attempts are made subsequently to
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rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care
and caution. If the delay which has occasioned in
approaching the writ court is explained which would
appeal to the conscience of the court, in such
circumstances it cannot be gainsaid by the contesting party
that for all times to come the delay is not to be condoned.
There may be myriad circumstances which gives rise to the
invoking of the extraordinary jurisdiction and it all
depends on facts and circumstances of each case, same
cannot be described in a straight jacket formula with
mathematical precision. The ultimate discretion to be
exercised by the writ court depends upon the facts that it
has to travel or the terrain in which the facts have
travelled.
11. For filing of a writ petition, there is no doubt that no
fixed period of limitation is prescribed. However, when the
extraordinary jurisdiction of the writ court is invoked, it
has to be seen as to whether within a reasonable time same
has been invoked and even submitting of memorials would
not revive the dead cause of action or resurrect the cause
of action which has had a natural death. In such
circumstances on the ground of delay and latches alone,
the appeal ought to be dismissed or the applicant ought to
be non-suited. If it is found that the writ petitioner is guilty
of delay and latches, the High Court ought to dismiss the
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petition on that sole ground itself, in as much as the writ
courts are not to indulge in permitting such indolent
litigant to take advantage of his own wrong. It is true that
there cannot be any waiver of fundamental right but while
exercising discretionary jurisdiction under Article 226, the
High Court will have to necessarily take into consideration
the delay and latches on the part of the applicant in
approaching a writ court. This Court in the case of  Tridip
Kumar Dingal and others v. State of W.B and others.,
(2009) 1 SCC 768  has held to the following effect:
"56.  We are unable to uphold  the contention. It is no
doubt true that there can be no waiver of
fundamental right. But while exercising
discretionary jurisdiction under Articles 32, 226,
227 or 136 of the Constitution, this Court takes into
account certain factors and one of such
considerations is delay and laches on the part of the
applicant in approaching a writ court. It is well
settled that power to issue a writ is discretionary.
One of the grounds for refusing reliefs under Article
32 or 226 of the Constitution is that the petitioner is
guilty of delay and laches.
57 . If the petitioner wants to invoke jurisdiction of a
writ court, he should come to the Court at the
earliest reasonably possible opportunity. Inordinate
delay in making the motion for a writ will indeed be
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a good ground for refusing to exercise such
discretionary jurisdiction. The underlying object of
this principle is not to encourage agitation of stale
claims and exhume matters which have already been
disposed of or settled or where the rights of third
parties have accrued in the meantime (vide  State of
M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6
SCR 261] ,  Moon Mills Ltd. v. Industrial Court
[AIR 1967 SC 1450]  and  Bhoop Singh v. Union of
India [(1992) 3 SCC 136 : (1992) 21 ATC 675 :
(1992) 2 SCR 969] ) . This principle applies even in
case of an infringement of fundamental right
(vide  Tilokchand Motichand v. H.B. Munshi
[(1969) 1 SCC 110] ,  Durga Prashad v. Chief
Controller of Imports & Exports [(1969) 1 SCC
185]  and  Rabindranath Bose v. Union of India
[(1970) 1 SCC 84] ) .
58. There is no upper limit and there is no lower
limit as to when a person can approach a court. The
question is one of discretion and has to be decided
on the basis of facts before the court depending on
and varying from case to case. It will depend upon
what the breach of fundamental right and the remedy
claimed are and when and how the delay arose."
12. It is apposite to take note of the dicta laid down by
this Court in  Karnataka Power Corporation Ltd. and
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another v. K. Thangappan and another, (2006) 4 SCC
322  whereunder it has been held that the High Court may
refuse to exercise extraordinary jurisdiction if there is
negligence or omissions on the part of the applicant to
assert his right. It has been further held thereunder:
"6. Delay or laches is one of the factors which is to
be borne in mind by the High Court when they
exercise their discretionary powers under Article
226 of the Constitution. In an appropriate case the
High Court may refuse to invoke its extraordinary
powers if there is such negligence or omission on the
part of the applicant to assert his right as taken in
conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite
party. Even where fundamental right is involved the
matter is still within the discretion of the Court as
pointed out in  Durga Prashad v. Chief Controller of
Imports and Exports [(1969) 1 SCC 185 : AIR 1970
SC 769]  . Of course, the discretion has to be
exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes
Peacock in  Lindsay Petroleum Co. v. Prosper
Armstrong Hurd [(1874) 5 PC 221 : 22 WR
492]  (PC at p. 239) was approved by this Court
in  Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC
1450]  and  Maharashtra SRTC v. Shri Balwant
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Regular Motor Service [(1969) 1 SCR 808 : AIR
1969 SC 329]  . Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is
not an arbitrary or a technical doctrine. Where it
would be practically unjust to give a remedy either
because the party has, by his conduct done that
which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he
has though perhaps not waiving that remedy, yet put
the other party in a situation in which it would not
be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay,
that delay of course not amounting to a bar by any
statute of limitation, the validity of that defence must
be tried upon principles substantially equitable. Two
circumstances always important in such cases are,
the length of the delay and the nature of the acts
done during the interval which might affect either
party and cause a balance of justice or injustice in
taking the one course or the other, so far as it relates
to the remedy."
8. It would be appropriate to note certain decisions
of this Court in which this aspect has been dealt with
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in relation to Article 32 of the Constitution. It is
apparent that what has been stated as regards that
article would apply, a fortiori, to Article 226. It was
observed in  Rabindranath Bose v. Union of India
[(1970) 1 SCC 84 : AIR 1970 SC 470]  that no relief
can be given to the petitioner who without any
reasonable explanation approaches this Court under
Article 32 after inordinate delay. It was stated that
though Article 32 is itself a guaranteed right, it does
not follow from this that it was the intention of the
Constitution-makers that this Court should disregard
all principles and grant relief in petitions filed after
inordinate delay.
9. It was stated in  State of M.P. v. Nandlal Jaiswal
[(1986) 4 SCC 566 : AIR 1987 SC 251]  that the
High Court in exercise of its discretion does not
ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is inordinate
delay on the part of the petitioner and such delay is
not satisfactorily explained, the High Court may
decline to intervene and grant relief in exercise of its
writ jurisdiction. It was stated that this rule is
premised on a number of factors. The High Court
does not ordinarily permit a belated resort to the
extraordinary remedy because it is likely to cause
confusion and public inconvenience and bring, in its
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train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may have the
effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It
was pointed out that when writ jurisdiction is
invoked, unexplained delay coupled with the
creation of third-party rights in the meantime is an
important factor which also weighs with the High
Court in deciding whether or not to exercise such
jurisdiction."
13. Reiterating the aspect of delay and latches would
disentitle the discretionary relief being granted, this Court
in the case of  Chennai Metropolitan Water Supply &
Sewerage Board and others v. T.T. Murali Babu, (2014) 4
SCC 108  has held:
" 16. Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the explanation
offered and the acceptability of the same. The court should bear in
mind that it is exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to keep itself alive to the
primary principle that when an aggrieved person, without adequate
reason, approaches the court at his own leisure or pleasure, the
court would be under legal obligation to scrutinize whether the lis at
a belated stage should be entertained or not. Be it noted, delay
comes in the way of equity. In certain circumstances delay and
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laches may not be fatal but in most circumstances inordinate delay
would only invite disaster for the litigant who knocks at the doors of
the court. Delay reflects inactivity and inaction on the part of a
litigant - a litigant who has forgotten the basic norms, namely,
"procrastination is the greatest thief of time" and second, law does
not permit one to sleep and rise like a phoenix. Delay does bring in
hazard and causes injury to the lis.””
56. On delay and latches, Hon’ble the Supreme Court in a case of
Bichitrananda Behera vs. State of Orissa and others, 2023 AIR 5064
observed as under:-
“21. Profitably, we may reproduce relevant passages from certain
decisions of this Court:
(A) Union of India v. Tarsem Singh, (2008) 8 SCC 648 :
"To summarise, normally, a belated service related claim will
be rejected on the ground of delay and laches (where remedy is
sought by filing a writ petition) or limitation (where remedy is
sought by an application to the Administrative Tribunal). One
of the exceptions to the said rule is cases relating to a
continuing wrong. Where a service related claim is based on a
continuing wrong, relief can be granted even if there is a long
delay in seeking remedy, with reference to the date on which
the continuing wrong commenced, if such continuing wrong
creates a continuing source of injury. But there is an exception
to the exception. If the grievance is in respect of any order or
administrative decision which related to or affected several
others also, and if the reopening of the issue would affect the
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settled rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment or
refixation of pay or pension, relief may be granted in spite of
delay as it does not affect the rights of third parties. But if the
claim involved issues relating to seniority or promotion, etc.,
affecting others, delay would render the claim stale and
doctrine of laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past period is
concerned, the principles relating to recurring/successive
wrongs will apply. As a consequence, the High Courts will
restrict the consequential relief relating to arrears normally to
a period of three years prior to the date of filing of the writ
petition."
(emphasis supplied)
(B) Union of India v. N Murugesan, (2022) 2 SCC 25 :
"Delay, laches and acquiescence
20. The principles governing delay, laches, and acquiescence
are overlapping and interconnected on many occasions.
However, they have their distinct characters and distinct
elements. One can say that delay is the genus to which laches
and acquiescence are species. Similarly, laches might be called
a genus to a species by name acquiescence. However, there
may be a case where acquiescence is involved, but not laches.
These principles are common law principles, and perhaps one
could identify that these principles find place in various
statutes which restrict the period of limitation and create non-
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consideration of condonation in certain circumstances. They
are bound to be applied by way of practice requiring prudence
of the court than of a strict application of law. The underlying
principle governing these concepts would be one of estoppel.
The question of prejudice is also an important issue to be taken
note of by the court.
Laches
21. The word "laches" is derived from the French language
meaning "remissness and slackness". It thus involves
unreasonable delay or negligence in pursuing a claim
involving an equitable relief while causing prejudice to the
other party. It is neglect on the part of a party to do an act
which law requires while asserting a right, and therefore, must
stand in the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of the delay
and the nature of acts done during the interval. As stated, it
would also involve acquiescence on the part of the party
approaching the court apart from the change in position in the
interregnum. Therefore, it would be unjustifiable for a Court
of Equity to confer a remedy on a party who knocks its doors
when his acts would indicate a waiver of such a right. By his
conduct, he has put the other party in a particular position,
and therefore, it would be unreasonable to facilitate a
challenge before the court. Thus, a man responsible for his
conduct on equity is not expected to be allowed to avail a
remedy.
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23. A defence of laches can only be allowed when there is no
statutory bar. The question as to whether there exists a clear
case of laches on the part of a person seeking a remedy is one
of fact and so also that of prejudice. The said principle may not
have any application when the existence of fraud is pleaded
and proved by the other side. To determine the difference
between the concept of laches and acquiescence is that, in a
case involving mere laches, the principle of estoppel would
apply to all the defences that are available to a party.
Therefore, a defendant can succeed on the various grounds
raised by the plaintiff, while an issue concerned alone would be
amenable to acquiescence.
Acquiescence
24. We have already discussed the relationship between
acquiescence on the one hand and delay and laches on the
other.
25. Acquiescence would mean a tacit or passive acceptance. It
is implied and reluctant consent to an act. In other words, such
an action would qualify a passive assent. Thus, when
acquiescence takes place, it presupposes knowledge against a
particular act. From the knowledge comes passive acceptance,
therefore instead of taking any action against any alleged
refusal to perform the original contract, despite adequate
knowledge of its terms, and instead being allowed to continue
by consciously ignoring it and thereafter proceeding further,
acquiescence does take place. As a consequence, it
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reintroduces a new implied agreement between the parties.
Once such a situation arises, it is not open to the party that
acquiesced itself to insist upon the compliance of the original
terms. Hence, what is essential, is the conduct of the parties.
We only dealt with the distinction involving a mere
acquiescence. When acquiescence is followed by delay, it may
become laches. Here again, we are inclined to hold that the
concept of acquiescence is to be seen on a case-to-case basis."
(emphasis supplied)
(C) Chairman, State Bank of India v. M J James, (2022) 2 SCC 301 :
" 36 . What is a reasonable time is not to be put in a straitjacket
formula or judicially codified in the form of days, etc. as it
depends upon the facts and circumstances of each case. A right
not exercised for a long time is nonexistent. Doctrine of delay
and laches as well as acquiescence are applied to non-suit the
litigants who approach the court/appellate authorities belatedly
without any justifiable explanation for bringing action after
unreasonable delay. In the present case, challenge to the order
of dismissal from service by way of appeal was after four years
and five months, which is certainly highly belated and beyond
justifiable time. Without satisfactory explanation justifying the
delay, it is difficult to hold that the appeal was preferred within
a reasonable time. Pertinently, the challenge was primarily on
the ground that the respondent was not allowed to be
represented by a representative of his choice. The respondent
knew that even if he were to succeed on this ground, as has
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happened in the writ proceedings, fresh inquiry would not be
prohibited as finality is not attached unless there is a legal or
statutory bar, an aspect which has been also noticed in the
impugned judgment. This is highlighted to show the prejudice
caused to the appellants by the delayed challenge. We would,
subsequently, examine the question of acquiescence and its
judicial effect in the context of the present case.
Xxx
38. In Ram Chand v. Union of India [Ram Chand v. Union of
India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of
U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if
the statutory authority has not performed its duty within a
reasonable time, it cannot justify the same by taking the plea that
the person who has been deprived of his rights has not
approached the appropriate forum for relief. If a statutory
authority does not pass any orders and thereby fails to comply
with the statutory mandate within reasonable time, they normally
should not be permitted to take the defence of laches and delay. If
at all, in such cases, the delay furnishes a cause of action, which
in some cases as elucidated in Union of India v. Tarsem Singh
[Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2
SCC (L&S) 765] may be continuing cause of action. The State
being a virtuous litigant should meet the genuine claims and not
deny them for want of action on their part. However, this general
principle would not apply when, on consideration of the facts, the
court concludes that the respondent had abandoned his rights,
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which may be either express or implied from his conduct.
Abandonment implies intentional act to acknowledge, as has
been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v.
State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of
U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this
principle of acquiescence to the precept of delay and laches, this
Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v.
Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500]
after referring to several judgments, has accepted the following
elucidation in Halsbury's Laws of England : ( Jaswant Singh
case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 :
(2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 12-13)
"12. The statement of law has also been summarised in
Halsbury's Laws of England, Para 911, p. 395 as follows:
In determining whether there has been such delay as to
amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the
defendant's part. Acquiescence in this sense does not mean
standing by while the violation of a right is in progress, but
assent after the violation has been completed and the
claimant has become aware of it. It is unjust to give the
claimant a remedy where, by his conduct, he has done that
which might fairly be regarded as equivalent to a waiver of
it; or where by his conduct and neglect, though not waiving
the remedy, he has put the other party in a position in
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which it would not be reasonable to place him if the remedy
were afterwards to be asserted. In such cases lapse of time
and delay are most material. Upon these considerations
rests the doctrine of laches.'
13. In view of the statement of law as summarised above, the
respondents are guilty since the respondents have acquiesced in
accepting the retirement and did not challenge the same in time.
If they would have been vigilant enough, they could have filed
writ petitions as others did in the matter. Therefore, whenever it
appears that the claimants lost time or whiled it away and did
not rise to the occasion in time for filing the writ petitions, then
in such cases, the court should be very slow in granting the relief
to the incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver on the part
of the incumbent whether other parties are going to be
prejudiced if the relief is granted. In the present case, if the
respondents would have challenged their retirement being
violative of the provisions of the Act, perhaps the Nigam could
have taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents have
allowed time to pass and after a lapse of couple of years, they
have filed writ petitions claiming the benefit for two years. That
will definitely require the Nigam to raise funds which is going to
have serious financial repercussions on the financial
management of the Nigam. Why should the court come to the
rescue of such persons when they themselves are guilty of waiver
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and acquiescence?"
39. Before proceeding further, it is important to clarify distinction
between "acquiescence" and "delay and laches". Doctrine of
acquiescence is an equitabledoctrine which applies when a party
having a right stands by and sees another dealing in a manner
inconsistent with that right, while the act is in progress and after
violation is completed, which conduct reflects his assent or accord.
He cannot afterwards complain. [See Prabhakar v. Sericulture
Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149 . Also, see
Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC
OnLine Cal 30 : AIR 1925 Cal 1107] In literal sense, the term
acquiescence means silent assent, tacit consent, concurrence, or
acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC
OnLine Kar 331 : (1992) 194 ITR 584 ] which denotes conduct that
is evidence of an intention of a party to abandon an equitable right
and also to denote conduct from which another party will be
justified in inferring such an intention. [See Krishan Dev v. Ram
Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34 ] Acquiescence
can be either direct with full knowledge and express approbation, or
indirect where a person having the right to set aside the action
stands by and sees another dealing in a manner inconsistent with
that right and in spite of the infringement takes no action mirroring
acceptance. [See "Introduction", U.N. Mitra, Tagore Law Lectures-
Law of Limitation and Prescription, Vol. I, 14th Edn., 2016.]
However, acquiescence will not apply if lapse of time is of no
importance or consequence.
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40. Laches unlike limitation is flexible. However, both limitation and
laches destroy the remedy but not the right. Laches like acquiescence
is based upon equitable considerations, but laches unlike
acquiescence imports even simple passivity. On the other hand,
acquiescence implies active assent and is based upon the rule of
estoppel i n pais. As a form of estoppel, it bars a party afterwards
from complaining of the violation of the right. Even indirect
acquiescence implies almost active consent, which is not to be
inferred by mere silence or inaction which is involved in laches.
Acquiescence in this manner is quite distinct from delay.
Acquiescence virtually destroys the right of the person. [See
Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 :
(1992) 194 ITR 584 ] Given the aforesaid legal position, inactive
acquiescence on the part of the respondent can be inferred till the
filing of the appeal, and not for the period post filing of the appeal.
Nevertheless, this acquiescence being in the nature of estoppel bars
the respondent from claiming violation of the right of fair
representation."
57. In view of the above referred to judgments, the present writ
petition is dismissed on delay and latches as well.
58 . Accordingly, the present writ petition is dismissed on merits as
well as on delay and latches.
59. Pending application (s) if any also stands disposed of.
07.09.2026 (SUDEEPTI SHARMA)
Gaurav Arora JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
GAURAV ARORA
2026.09.15 10:54
I attest to the accuracy and
integrity of this document