Delhi High Court
Uoi And Anr. vs Bahgwan Shahai And Ors on 11 November, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: November 11, 2014
+ W.P.(C) 2314/2011 & CM. Nos. 4947/2011 and 4948/2011
UOI AND ANR. ..... Petitioners
Represented by: Mr. Jayendra, Advocate.
Versus
BAHGWAN SHAHAI AND ORS ..... Respondents
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 2315/2011
UOI AND ANR. ..... Petitioners
Represented by: Mr. Jayendra, Advocate.
Versus
MAHAVIR SINGH AND ORS ..... Respondents
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 2830/2011 & CM. Nos. 6013/2011 and 15009/2013
UOI ..... Petitioner
Represented by: Mr. Jayendra, Advocate.
Versus
JITENDER ..... Respondent
W.P (C) No. 2314/2011 Page 1 of 20
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 7002/2011
THE SUPERINTENDING ENGINEER & ANR. ..... Petitioners
Represented by: Mr. Saqib, Advocate.
Versus
AMAR SINGH ..... Respondent
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 7003/2011
THE SUPERINTENDING ENGINEER & ANR. ..... Petitioners
Represented by: Mr. Saqib, Advocate.
Versus
GIRISH CHAND ..... Respondent
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 7738/2011 & CM. NO. 17532/2011
UNION OF INDIA (CPWD) ..... Petitioner
Represented by: Mr. Anuj Aggarwal and
Mr. Gaurav Khanna,
Advocates.
Versus
KHACHERU KHAN ..... Respondent
W.P (C) No. 2314/2011 Page 2 of 20
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
AND
+ W.P.(C) 3229/2012
THE EXECUTIVE ENGINEER ..... Petitioner
Represented by: Mr. Saqib, Advocate.
Versus
SH. HARI HAR PRASAD ..... Respondent
Represented by: Ms. Amita Kalkal
Chaudhary and Ms. Aditi
Gupta, Advocates.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
CM No. 4948 & 4950 of 2011 (for delay) in W.P.(C) Nos. 2314 &
2315 of 2011
1. Vide the instant applications; the applicants/petitioners are
seeking condonation of delay of 546 days in filing the same.
2. Notice was issued in these applications vide order dated
06.04.2011, however, till date no reply has been filed by the
respondents.
3. It is stated in the instant applications that after the award dated
30.10.2009, the Director General of Works CPWD, requested the
respective field units to obtain the legal opinion of the Government
Counsel and furnish the same to them. The legal opinion received
from separate Government Counsels revealed divergent views on the
feasibility of challenging the award. In a similar case of Subhash
Ranjeet Chauhan and Ram Chandra Malviya for counting the service
of the MR period for the purpose of the pensionary benefit etc. was
with CA Section (Ministry of Law) in which the learned ASG had
advised filing of SLP against the order of the Madhya Pradesh High
Court. Accordingly, on 24.05.2010, it was decided to wait for the
return of the file and prepare the grounds of appeal in the meantime.
4. The said files were received on 09.06.2010 and 10.06.2010,
wherein it was advised that the case is fit for challenging the order in
the Apex Court. For the said purpose, a draft SLP was prepared and it
was decided that on the same ground, the impugned order may be
challenged. Thereafter, the file was transferred to the Ministry of
Urban Development for onward transmission to the Department of
Legal Affairs, Ministry of Law & Justice to obtain their view.
5. Finally, on 21.12.2010 the matter was handed over to the
counsel for filing the writ petition, who requested the CPWD to
provide the files in this regard, accordingly, the record was provided to
him on 24.12.2010.
6. Mr. Jayendra, learned counsel appearing on behalf of the
applicants/petitioners submitted that delay has been caused due to the
reasons mentioned above and the same was neither intentional nor
wilful. He prayed that keeping in view the issue involved in these
petitions, the delay may be condoned.
7. As noted above, reply has not been filed by the respondents to
the applications seeking condonation of delay. Thus, it can be safely
presumed that the respondents have nothing to say on these
applications.
8. Keeping in view the averments made in the instant applications
and the submissions made by the learned counsel for the applicants;
and considering the issue involved in these writ petitions, the delay in
filing these applications is condoned.
9. Consequently, these applications are allowed.
W.P.(C) Nos. 2314, 2315, 2830, 7002, 7003, 7738 of 2011 and 3229
of 2012
1. Vide these petitions, the petitioner C.P.W.D., a Central
Government Department, has assailed order dated 30.10.2009 passed
by the Central Government Industrial Tribunal-cum-Labour Court No.I
in I.D. No.15/2007.
2. In W.P.(C) No. 2314/2011, there are thirty
respondents/workmen, the details of whom are as under:
Sl. No. Name of workman Date of joining Date of
of service regularization
1. Bhagwan Sahai 07.09.1979 04.03.1980
2. Satish Kumar 22.12.1980 20.06.1988
3. Tirpal 01.12.1981 15.04.1991
4. Raj Pal 21.04.1981 05.07.1991
5. Babu Lal 09.11.1982 24.12.1992
6. Shiv Kumar 16.06.1983 16.02.1993
7. Gangesh Chand Tiwari 02.05.1982 12.02.1993
8. Bihari Lal 22.08.1982 16.01.1993
9. Mohan 03.12.1979 05.02.1993
10. Bishamber 22.07.1983 16.02.1993
11. Kalicharan 21.09.1983 16.02.1993
12. Suresh Chand 25.01.1986 01.06.1996
13. Ram Pal 21.10.1984 10.06.1993
14. Birpal 12.10.1981 01.05.1991
15. Tejpal 01.01.1981 04.07.1989
16. Manohar Lal 21.09.1983 02.04.1993
17. Batan Singh 03.12.1979 17.06.1987
18. Nanak Chand 01.10.1979 05.03.1986
19. Shanti 08.04.1976 05.01.1985
20. Om Prakash 13.01.1983 10.12.1992
21. Hari Singh 01.06.1981 18.06.1991
22. Kanwar Pal Singh 22.03.1979 19.04.1991
23. Jai Kishan 29.05.1984 21.04.1991
24. Bhogi Ram 25.10.1979 18.03.1986
25. Dayal Singh 19.09.1979 01.03.1986
26. Jagpal 02.07.1982 07.01.1993
27. Krishan Pal 22.06.1978 13.05.1982
28. Vinod Kumar 23.02.1982 23.09.1986
29. Chet Ram 24.06.1981 09.02.1987
30. Baleshwar Mishra 16.06.1982 11.12.1992
3. In W.P.(C) No. 2315/2011,there are six respondents/workmen,
the details of whom are as under:
Sl. No. Name of workman Date of joining of Date of
service regularization
1. Mahavir Singh 01.01.1979 31.03.1986
2. Jeet Singh 05.06.1979 15.11.1984
3. Rajvir Singh 04.01.1983 20.11.1992
4. Sohan Lal 20.09.1981 26.02.1986
5. Surender Singh 15.01.1983 18.12.1992
6. Chander Bhan 12.10.1982 01.12.1992
4. However, W.P.(C) Nos. 2830/2011, 7002/2011, 7003/2011,
7738/2011 and 3229/2012 have been filed individually, the respective
details of the respondents/workmen are as under: -
Sl. No. Name of workman Date of joining of Date of
service regularization
1. Jitender 20.04.1982 02.04.1993
2. Amar Singh 20.01.1981 06.01.1986
3. Girish Chand 14.06.1984 25.04.1995
4. Khacheru Khan 17.02.1982 26.05.1990
5. Hari Har Prasad 03.09.1979 11.08.1996
5. The question of law involved to be considered in these writ
petitions, is whether the period of services rendered by the workmen,
which was paid from contingency, can be counted towards pension?
6. Accordingly, all the petitions noted above are being decided by
this common judgment.
7. The respondents/workmen claimed regularization of their
services from the date of their initial employment. When their demand
was not accepted by the Management, they raised an industrial dispute
before the Conciliation Officer. Since conciliation proceedings came
to an end as a failure, the appropriate Government referred the dispute
to the Tribunal vide its order dated 19.02.2007 with following terms:-
"Whether the demand of All India CPWD (M.R.M.)
Karamchari Sangathan for regularization of services of
the respondents workmen from the date of their initial
employment of muster roll is legal and justified? If yes, to
what relief the concerned workmen are entitled to?"
8. The respondents/workmen pleaded in their statement of claims
that they were employed as daily rated workmen from the dates as
mentioned above. Their services were regularized from the
aforementioned dates. They rendered 240 days continuous service in
every calendar year with the Management from the date of their
employment till the date of their regularization. There are three Wings
under CPWD, viz., Electrical, Civil and Horticulture, where several
daily rated workmen are employed by the Management.
9. To strengthen their claims, the respondents/workmen have taken
the shelter of a Supreme Court judgment delivered in Surinder Singh
and Anr.Vs. Engineer-in-chief, C.P.W.D. and Ors., 1986 (1) SCC 639,
whereby the Apex Court directed the Management to regularize the
services of its daily rated workmen, from the date of their initial
appointment, who have put in six months of continuous service.
Accordingly, the Director General (Works), CPWD, issued order dated
25.08.1988 for regularization of muster roll employees. The
Horticulture Wing of the Management regularized services of its daily
rated workmen with effect from 07.12.1988, while Electrical and Civil
Wings did not take any action in this behalf.
10. The, claim of the workmen is that they are covered under the
provisions of The Payment of Gratuity Act, 1972 (in short 'the Act')
and orders were issued in that regard by the Management on
26.06.2006. One Shri Ram Khilari, a similarly situated workman,
raised an industrial dispute and the Industrial Tribunal, Government of
NCT, Delhi, gave an award for regularization of his services from the
date of his initial appointment. Thus, workmen in the present petitions
are also eligible for regularization of services from the date of their
initial appointment.
11. The case of the petitioner Management was that the workmen
were working on muster roll and their services were regularized from
the dates mentioned above. Their contention before the Tribunal, that
they were eligible for regularization of their services from the date of
their initial engagement, is false.
12. To strengthen the stand taken by the petitioner Management,
while relying upon the case of Surender Singh's (supra), learned
counsel submitted that by the aforesaid case, the Apex Court never
directed the Management to regularize the services of muster roll
employees from the date of the initial appointment. In compliance of
order of the Apex Court, posts in number 8982, were created in
September, 1992, and thereafter, all workers were regularized in
service from respective dates and not from the date of their initial
engagement. The employees selected on daily wages do not
automatically become regular from the date of their initial
employment, even if they perform duties similar to the regular
employees. Thus, the workmen cannot claim regularization from the
back date.
13. It is pertinent to mention here that during course of adjudication
before the Tribunal, Shri Satish Kumar Sharma, General Secretary of
All India CPWD (M.R.M.) Karamchari Sangathan, who was
Authorised Representative of the workmen, made a statement on their
behalf that the workmen do not press their claim for regularization in
the services from the date of their initial employment. Consequently,
the workmen gave up the contest of their demand for regularization of
their services from the date of their initial employment.
14. Issue to be considered before this Court is that whether services
rendered by the workmen on muster roll, which was paid from
contingencies, can be counted towards pension?
15. While dealing with the aforesaid issue, the learned Tribunal
considered the provisions of The Central Civil Services Pension Rules,
1972, (in short 'the Pension Rules'). Rule 14 of the said Pension Rules
prescribes that period of service paid from contingency do not count as
qualifying service for pension. However, relied upon a Government of
India decision taken in May, 1968, whereby an Office Memorandum
was issued on 14.05.1968, wherein detailed that in some cases,
employees paid from contingencies; employed in types of work
requiring services of whole time workers and; are paid on monthly
rates of pay or daily rates computed and; paid on monthly basis and on
being found fit brought on to regular establishment. Accordingly,
decided that half of the service paid from contingencies will be allowed
to count towards pension at the time of absorption in regular
employment subject to the following conditions:-
"(a) Service paid from contingencies should have been,
in a job involving whole time employment (and not part-
time for a portion of the day).
(b) Service paid from contingencies in a type of work
or job for which regular posts could have been
sanctioned, e.g., Malis, Chowkidars, Khalasis etc.
(c) The services should have been one for which the
payment is made either on monthly or daily rates
computed and paid on a monthly basis and which though
not analogues to the regular scale of pay should bear
some relation in the matter of pay to those being paid for
similar jobs being performed by staffs in regular
establishments.
(d) The services paid from contingencies should have
been continuous and fallen by absorption in regular
employment without a break.
(e) Subject to the above conditions being fulfilled, the
weightage for past service paid from contingencies will
be limited to the period after 01.01.1961 for which
authentic records of service may be available. Reference
can be made to Office Memorandum No.G.I.,M.F.,
O.M.No.12(1)-EV/68 dated the 14th May,1968."
16. The learned Tribunal relied upon the aforesaid Office
Memorandum dated 14.05.1968 and opined that the
respondent/workmen performed functions analogous to regular
employees till the date of their regularization. Their services with the
Management were continuous without any break. Thus, they satisfied
all the conditions laid down in the aforesaid Memorandum issued by
the Government of India. Hence, the petitioner Management is under
an obligation to comply with the aforesaid Office Memorandum and
count services of the workmen for the purpose of pension.
17. Mr. Jayendra, learned counsel appearing on behalf of the
petitioner Management submitted that the respondents/workmen were
appointed on muster roll from 1979 onwards. The Pension Rules came
into force with effect from 01.04.1972. Since the respondents/
workmen were appointed on the muster roll after enforcement of the
aforesaid Pension Rules, thus, the said Rules are applicable on the
respondents whereas, the learned Tribunal has ignored these Rules.
18. Rule 2 of the Pension Rules prescribes as under:-
"Save as otherwise provided in these rules, these rules
shall apply to Government servants appointed on or
before the 31st day of December, 2003 including civilian
Government servants in the Defence Services, appointed
substantively to civil services and posts in connection
with the affairs of the Union which are borne on
pensionable establishments, but shall not apply to:-
(a) ........
(b) persons in casual and daily-rated employment.
(c) ........
(d) ........
(e) ........
(f) ........
(g) ........
(h) ........
19. Rule 14 of the Pension Rules prescribes as under:-
"14. Conditions subject to which service qualifies:-
(1) The service of a Government servant shall not
qualify unless his duties and pay are regulated by the
Government, or under conditions determined by the
Government.
(2) For the purposes of sub-rule (1), the expression
"Service" means service under the Government and paid
by that Government from the Consolidated Fund of India
or a Local Fund administered by that Government but
does not include service in a non-pensionable
establishment unless such service is treated as qualifying
service by that government.
(3)..................."
20. Learned counsel for the petitioner further submitted that Rule 89
(1) of the Pension Rules prescribes as under:-
"89. Repeal and Saving:-
(1) On the commencement of these rules, every
rule, regulation or order including Office Memorandum
(hereinafter referred to in this rule as the old rule) in
force immediately before such commencement shall, in so
far as it provides for any of the matters contained in
these rules, ceased to operate."
21. Learned counsel for the petitioner submitted that the Office
Memorandum of 1968 has become redundant and the Pension Rules,
1972 prevails over any previous Rule or Office Memorandum, whereas
the learned Tribunal wrongly relied upon the Memorandum of 1968
which was not in force when the respondents/workmen were born in
the employment.
22. Further submitted, that the Apex Court decided in case of
Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors
(2006) 4 SCC 1, that no one can claim regularization from his initial
appointment. However, in these petitions, the respondents/workmen
had given up their case for regularization.
23. Mr. Jayendra and Mr. Saqib, Ltd. counsels for petitioners,
submitted the work charge employees and the employees paid from
contingencies are different. The General Clauses Act is applicable
only where there is an ambiguity in the Rules. If any Department of
the petitioner has illegally complied with the Office Memorandum of
1968, in that eventuality, illegality crept in is not to be perpetuated.
Once the Pension Rules, 1972, came into force, then Office
Memorandum of 1968 stands superseded for all purposes unless stated,
therein, otherwise. Therefore, reasoning given by the learned Tribunal
in para-7 of the impugned award is perverse and without application of
mind.
24. To strengthen his arguments, learned counsel for the petitioner
relied upon case of Mahadeo Bhau Khilare (Mane) and Others Vs.
State of Maharashtra and Others, 2007 (5) SCC 524, whereby the
Apex Court has held as under:-
"7. Indisputably, the State of Maharashtra has framed
recruitment rules. Any scheme by way of an executive
instruction in terms of Article 162 of the Constitution of
India, if violative of such statutory rules would not be
legally sustainable. [See A. Umarani v. Registrar,
Cooperative Societies and Ors. (2004) 7 SCC 112].
8. The question in regard to the existence of any
vested legal right, inter alia is such by above appointees
and/or daily wagers, to be absorbed / regularized in the
State Services came up for consideration before a
Constitution Bench of this Court in Secretary, State of
Karnataka and Ors. v. Umadevi (3) and Ors (2006) 4
SCC 1.
9. It was categorically held therein that
regularisation in service, in cases where the
appointments were void ab initio, having been made in
utter disregard of the existing recruitment rules and/or
constitutional scheme adumbrated under Article 14 and
16 of the Constitution of India would be wholly illegal
and thus the direction in this behalf can be issued. [See
also Punjab Water Supply & Sewerage Board v. Ranjodh
Singh and Ors. (2007) 2 SCC 491 and Punjab State
Warehousing Corporation Chandigarh v. Manmohan
Singh and Anr. (2007) 9 SCC 337."
25. Also relied upon case of State of Orissa and Others Vs.
Prasana Kumar Sahoo, AIR 2007 Supreme Court 2588, whereby the
Apex Court has held as under:-
"14. Even a policy decision taken by the State in
exercise of its jurisdiction under Article 162 of the
Constitution of India would be subservient to the
recruitment rules framed by the State either in terms of a
legislative act or the proviso appended to Article 309 of
the Constitution of India. A purported policy decision
issued by way of an executive instruction cannot override
the statute or statutory rules far less the constitutional
provisions.
15..........................
16..........................
17..........................
18..........................
19. Regularization as is well known is not a mode of
recruitment. A policy decision to absorb a person who is
not in employment of the State without following the
recruitment rules, would not confer any legal right on
him. A Constitution Bench of this Court in Secretary,
State of Karnataka and Others v. Umadevi (3) and
Others (2006) 4 SCC 11, categorically held that any
appointment made in violation of the constitutional
provisions would be a nullity.
See also Gurbachan Lal v. Regional Engineering
College, Kurukshetra & Ors. [2007 (4) Scale 1]
20..........................
21..........................
22. It may be that some other persons similarly
situated have been appointed. But Article 14 as is well
known contains a positive concept. A Writ of Mandamus
can be issued by the High Court only when there exists a
legal right in the Writ Petitioner and corresponding legal
obligation in the State. Only because an illegality has
been committed, the same cannot be directed to be
perpetuated by a court of law."
26. On the other hand, Ms.Amita Kalkal Chaudhary, Advocate
appearing on behalf of the respondents/workmen submitted that the
respondents/workmen were casual workers but thereafter regularized
on different dates as mentioned above. As per Rule 14(2) of the
Pension Rules, half of the service rendered on muster roll has to be
counted for pension purposes. The respondents being Government
servants are governed by the Pension Rules as on date.
27. I have heard Ld. Counsels for the parties.
28. Article 368 of Civil Service Regulations and The Liberalized
Pension Rules of 1950 describes as under:-
"368. Service does not qualify unless the officer holds a
substantive office on a permanent establishment.
Provided that in the case of an officer retiring
from service on or after the 22nd April, 1960; if he was
holding a substantive office on a permanent
establishment on the date of his retirement, temporary or
officiating service under the Government of India,
followed without interruption by confirmation in the
same or another post, shall count in full as qualifying
service except in respect of-
(i) Periods of temporary or officiating service in non-
pensionable establishment;
(ii) Periods of casual or daily rated service and
(iii) Periods of service paid from contingencies."
29. The petitioners have heavily relied upon Rule 14 of the Pension
Rules, which is reproduced as under:-
"14. Conditions subject to which service qualifies
(1) The service of a Government servant shall not
qualify, unless his duties and pay are regulated by the
Government, or under conditions determined by the
Government.
(2) For the purposes of sub-rule (1), the expression
"Service" means service under the Government and paid
by that Government from the Consolidated Fund of India
or a Local Fund administered by that Government but
does not include service in a non-pensionable
establishment unless such service is treated as qualifying
service by that Government.
(3) In the case of a Government servant belonging to a
State Government, who is permanently transferred to a
service or post to which these rules apply, the continuous
service rendered under the State Government in an
officiating or temporary capacity, if any, followed
without interruption by substantive appointment, or the
continuous service rendered under that Government in
an officiating or temporary capacity, as the case may be,
shall qualify:
Provided that nothing contained in this sub-rule shall
apply to any such Government servant who is appointed
otherwise than by deputation to a service or post to
which these rules apply."
30. Aforenoted Rule 14 of the Pension Rules is para materia to
Article 368 of Civil Service Regulations and The Liberalized Pension
Rules of 1950, whereby it is specifically prescribes that period of
service paid from contingencies do not count as qualifying service for
pension. In some cases, employees paid from contingencies are
employed in types of work requiring services of whole-time workers
and are paid on monthly rates of pay or daily rates computed and paid
on monthly basis and on being found fit brought on to regular
establishment.
31. As per Rule 2 of the Pension Rules, these rules are applicable to
the Government servants appointed on or before the 31 st Day of
December, 2003, but shall not apply to persons in casual and daily
rated employment and persons paid from contingencies. The
respondents/workmen in these petitions were in Central Government
Departments and also regularized on different dates as mentioned
above. They performed functions analogous to regular employees till
the date of their regularization. They were performing whole-time job
with the petitioner management and their services with the
management were continued without any break. It is not the case of
the petitioners that the respondents/workmen are still on muster roll or
are being paid from contingencies. Thus, they satisfied all the
conditions laid down in the Office Memorandum dated 14.05.1968 and
Rule 14 of the Pension Rules, 1972.
32. In addition, the workmen were paid from the contingency fund;
therefore, the question arises for the consideration whether such period
can be taken into account for the purposes of granting pension. The
contingency fund has been established under Article 267 of the
Constitution of India in order to meet the unforeseen expenditure. The
advances from the fund are made for the purposes of meeting
unforeseen expenditure which are resumed to the Fund to the full
extent as soon as Parliament authorizes additional expenditure. Thus,
this fund acts more or less like an imprest account of Government of
India. In the present case, the petitioner does not have a case that the
expenditure incurred on account of the payment made to the workmen
had not authorised by the parliament. Therefore, it is clear that the
workmen were paid from the consolidated fund of India.
33. Accordingly, the petitions are dismissed with no order as to
costs.
SURESH KAIT
(JUDGE)
NOVEMBER 11, 2014
Sb/RS
