Punjab-Haryana High Court
Gopal Singh And Others vs The Bhakra Beas Management Board ... on 15 November, 2023
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CWP-9237-2023 & Connected Cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
266 (3 Cases)+270+271+275+249
1) CWP-9237-2023
Date of Decision: 15.11.2023
Gopal Singh and Others ...Petitioners
Versus
The Bhakra Beas Management Board and Others ...Respondents
With
2) CWP-5165-2022
Jagtar Singh and Others ...Petitioners
Versus
State of Punjab and Others ...Respondents
With
3) CWP-12589-2023
Jarnail Singh and Others ...Petitioners
Versus
Bhakra Beas Management Board and Others ...Respondents
With
4) CWP-20305-2022
Sunil Dutt and Others ...Petitioners
Versus
Bhakra Beas Management Board and Another ...Respondents
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With
5) CWP-29111-2022
Kirandeep Singh and Others ...Petitioners
Versus
Bhakra Beas Management Board and Another ...Respondents
With
6) CWP-11413-2023 (O&M)
Arun Singh and Others ...Petitioners
Versus
Bhakra Beas Management Board and Others ...Respondents
And
7) CWP-6119-2021
Jagseer Ram and Others ...Petitioners
Versus
State of Punjab and Others ...Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present:- Mr. R.K. Arora, Advocate with
Mr. Jugam Arora, Advocate and
Ms. Saguna Arora, Advocate for the petitioners
(in CWP-9237-2023)
Mr. R.S. Bains, Senior Advocate with
Mr. Amarjeet, Advocate for petitioners
(in CWP-5165-2022)
Mr. B.D. Rana, Advocate for the petitioners
(in CWP-12589-2023)
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Mr. Varun Sharma, Advocate for the petitioners
(in CWP-20305-2022, CWP-29111-2022 & CWP-11413-2023)
Mr. Rajesh Garg, Senior Advocate with
Ms. Neha Matharoo Advocate and
Ms. Mandeep Singh, Advocate for BBMB
Mr. Ramesh Chand Sharma, Senior Panel Counsel,
for Union of India-respondent
Mr. Deepanjay Sharma, DAG, Punjab
Mr. Raman Sharma, Addl. A.G. Haryana
***
JAGMOHAN BANSAL, J. (Oral)
1. As the issue involved is common, with the consent of contesting
parties, all the captioned petitions are disposed of by this common order. For
the sake of brevity and convenience, facts are borrowed from CWP No.9237
of 2023.
2. The petitioners through instant petition under Articles 226/227 of
the Constitution of India is seeking setting aside of orders dated 10.03.2023
(Annexure P-21), 15.03.2023 (Annexure P-22) and 21.03.2023 (Annexure P-
23) whereby representations of the petitioners for regularization of their
service have been rejected.
3. The Bhakra Beas Management Board (for short 'Board') through
its Centralized Staff Selection Committee vide Advertisement No.2/2014
invited applications for the recruitment of various posts of Fireman, Electrical
Mistri/Electrician, Hoist Operator, Drivers etc. All these posts fall in the
category of Class III & IV employees. The petitioners pursuant to aforesaid
advertisement applied for the posts of Fireman and Electrical
Mistri/Electrician. The petitioners came to be selected after following due
procedure i.e. the procedure which is followed for recruitment of regular
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employees. In the advertisement as well as appointment letter, it was jotted
down that appointment is for one year on contract basis and contract would be
extended from time to time, if necessary. The petitioners joined as contractual
employees and their contract was extended from time to time. The petitioners
are performing technical job. It is apt to mention here that there are different
States which are partner of the Board. Every State is having representation in
the Board apart from representative of Govt. of India. The Board is making
direct appointment of 33% employees and remaining employees come from
partner States i.e. Punjab, Haryana, Himachal Pradesh and Rajasthan.
4. The petitioners, after completing 3 years of service, requested the
Board to consider their case for regularization. The Board in its different
meetings considered case of the petitioners for regularization. In every
meeting, it was noticed that petitioners are trained employees and they have
been appointed after following procedure prescribed for regular appointment
and there is no irregularity in their appointment. On account of objection of
one or another member, the matter was deferred, however, it was resolved that
emoluments of the contractual employees shall be increased. The petitioners
on account of non-regularization of their service approached this Court by
way of CWP No.27886 of 2022 which came to be disposed of vide order dated
05.12.2022 (Annexure P-20). The respondent-Board was directed to look into
grievance of the petitioners by passing a speaking order. In compliance of
order of this Court, the respondent-Board has passed order dated 10.03.2023
(P-21) whereby request of the petitioners has been declined.
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5. Learned counsels for the petitioners inter alia submit that from
the perusal of the minutes of the Board's meeting, it is quite evident that
Board was always of the opinion that service of petitioners should be
regularized, however, final decision was deferred on account of objection
raised by one or another member. In the agenda put up before the Board, it has
been considered that petitioners are trained employees and they have been
appointed after following due process. There is no irregularity in their
appointment, thus, they may be considered for regularization. The respondent-
Board is following rules and regulations framed by State of Punjab as well as
Punjab State Power Corporation Limited (for short 'PSPCL'), governing
recruitment and pay scale of their employees. The State of Punjab and PSPCL
has regularized their employees on completion of 3 years contractual period.
The petitioners, on the ground of parity, deserve to be regularized. The
petitioners have been appointed after following procedure meant for the
appointment of regular employees. Like the petitioners, appointments were
made by respondents in 2019 and from the perusal of advertisement of 2019
as well as appointment letters, it is evident that except writing expression
'contract' in the case of petitioners, there is no dichotomy between
appointment of the petitioner and regular employees. The regular employees
were also initially appointed on temporary basis. The judgment of Hon'ble
Supreme Court in State of Karnataka and Others v. Umadevi and Others,
(2006) 4 SCC 1 supports case of the petitioners because appointment of the
petitioners was made following regular process. The petitioners were not
appointed by back door entry. The relevant extract of the said judgment read
as:-
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"43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing
an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution. Therefore,
consistent with the scheme for public employment, this Court
while laying down the law, has necessarily to hold that unless
the appointment is in terms of the relevant rules and after a
proper competition among qualified persons, the same would
not confer any right on the appointee. If it is a contractual
appointment, the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on daily
wages or casual basis, the same would come to an end when it
is discontinued. Similarly, a temporary employee could not
claim to be made permanent on the expiry of his term of
appointment. It has also to be clarified that merely because a
temporary employee or a casual wage worker is continued for
a time beyond the term of his appointment, he would not be
entitled to be absorbed in regular service or made permanent,
merely on the strength of such continuance, if the original
appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not open to
the court to prevent regular recruitment at the instance of
temporary employees whose period of employment has come to
an end or of ad hoc employees who by the very nature of their
appointment, do not acquire any right. The High Courts acting
under Article 226 of the Constitution, should not ordinarily
issue directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made regularly
and in terms of the constitutional scheme. Merely because an
employee had continued under cover of an order of the court,
which we have described as "litigious employment" in the
earlier part of the judgment, he would not be entitled to any
right to be absorbed or made permanent in the service. In fact,
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in such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the employee
approaching it is found entitled to relief, it may be possible for
it to mould the relief in such a manner that ultimately no
prejudice will be caused to him, whereas an interim direction
to continue his employment would hold up the regular
procedure for selection or impose on the State the burden of
paying an employee who is really not required. The courts must
be careful in ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory
mandates."
6. Per contra, learned Senior counsel for respondent-Board submits
that it is factually correct that petitioners were appointed following regular
process and there was no irregularity in their appointment, however, they
cannot be regularized on the basis of regularization of employees of PSPCL
and State of Punjab because respondent-Board is an autonomous body and it
is not bound by rules and regulations framed or followed by State of Punjab or
PSPCL. The Board is competent to make appointment of its employees on
contract as well as regular basis. The matter of the petitioners, from time to
time, was considered by Board, however, on account of lack of consensus
between the members of the Board, the petitioners were not regularized.
7. I have heard the arguments of learned counsels for the parties and
perused the record with their able assistance.
8. The conceded position emerging from the record is that the
petitioners were appointed pursuant to Advertisement No.2 of 2014 of
subsequent advertisements. The respondent-Board before making appointment
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of petitioners followed all the rules and regulations which are meant for
appointment of regular employees. There was no irregularity in the
appointment of the petitioners. In the advertisement as well as appointment
letter, it was specifically mentioned that appointment is on contract basis for
one year, extendable as per requirement. The appointment of the petitioners
and other employees on temporary basis against Advertisement No.1 of 2019
was made following same process. The matter of the petitioners was
repeatedly taken up by Board in its meeting, however, final decision could not
be arrived at due to lack of consensus. The Board though did not finally
decide the question of regularization, however, salary of the petitioners has
been substantially increased. The respondent-Board is following rules and
regulations framed by State of Punjab as well as PSPCL, however, Board
being autonomous body is not bound to follow all the rules and regulation
framed by State of Punjab as well as PSPCL. The State of Punjab as well as
PSPCL, from time to time, has regularized their employees who were initially
appointed on contract basis. The respondent is having 1922 vacant posts.
9. The petitioners were appointed during 2015-18. All the eligible
candidates were free to participate in the selection process. A Selection
Committee of the Board recommended appointment of all the petitioners after
following due procedure prescribed for appointment of regular employees. In
the appointment letter, it was specifically mentioned that the employee shall
be governed by Bhakra Beas Management Board Class-III & Class-IV
Employees' (Recruitment & Conditions of Service), Regulations, 1994 (for
short '1994 Regulations') as well as other rules and regulations introduced
and opted by Board. The petitioners were initially appointed for one year on
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contract basis and their contract has been extended from time to time. The
petitioners are working with respondent-Board since 2015 and no
irregularity/dereliction either in their appointment or their act and conduct has
been noticed. The respondent-Board is competent to make contractual as well
as regular appointments. The Board in its meetings, from time to time, has
considered agenda with respect to regularization of petitioners. Though the
question of regularization has been considered in different Board meetings,
however, for the sake of brevity, agenda and minutes of meeting dated
20.12.2019 are reproduced as below:-
" Note on Item No.233.18 of the Agenda for the 233rd Meeting of the
Bhakra Beas Management Board.
(Deferred Item No.231.09 of Board's 231st Meeting)
Item No.233.18
Regularisation of services of employees working on
contractual basis in BBMB
An Agenda Note on the subject was placed before the Board
in its 231st meeting held on 20.02.2019 as item no.231.09. The
decision taken under item No.231.09 is as under.
"Special Secretary, briefed about the agenda,
initiating the discussion, Member (HP) suggested that
it would be better to discuss this issue in the presence
of Member (Govt. of India-Power) and other
members of the partner states. Accordingly, it was
decided to defer the agenda to next Board Meeting."
(Copy of Minutes of item No. 231.09 of 231st meeting held on
20.02.2019, issued Vide Secretary BBMB letter No. 981-97/B-
9/231/1-M/Admn Dated 26.02.2019 is at (Appendix-Q-1).
Accordingly the Agenda Note was placed before Board in its
nd
232 meeting held on 17.08 2019. The decision taken under item
No. 232.10 (Appendix-Q-2) is as under:
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"Member (Punjab) desired that a comprehensive
Agenda be put up before the Board showing the
position of sanctioned strength employees in position,
vacant posts, shares of each partner State in vacant
posts and no. of employees to be regularized."
"Further Member (Haryana) wanted to know the exact
decision of the 219th meeting of Board."
After deliberations, it was decided to put up the
comprehensive proposal as desired by Member (Punjab)
along with the decision of 219th meeting of Board.
In view of the decision taken in 232nd Board meeting as
above, the Agenda is again presented as under:-
Background
In the matter of shortage of manpower for critical
posts as identified by BBMB were discussed in BBMB 218th and
219th Board meeting held on 09.07.2014 & 25.08.2014 respectively.
In these meeting deliberations were held w.r.t. retirement of
personnel in forthcoming years, time taken to train newly inducted
employee for learning the O&M procedures of Power Houses, Sub
Stations, Dams etc. special emphasizes on filling up of critical posts
identified by BBMB. Further, it was mentioned in the agenda that it
takes about 4 to 5 year training to employees for learning O&M of
Power Houses, Sub-Stations, & Dams and Appurtenant works and
BBMB cannot allow at any cost to run the power houses, sub
stations and Dams etc by raw hands.
After deliberations, the following decision was taken in 219th
meeting dated 25.08.2014 (219.07) by the Board:-
"BBMB shall engage employees on contract basis on
identified critical post(s) through the selection process
conforming to the provisions of BBMB Regulations , 1994 for
a period of one year on a fixed salary with a provision of
extension as per requirement. However, the States shall
provide regular staff within this period of one year. The posts
filled up on contractual basis shall be given lump sum
payment/fixed emoluments on the basis of initial pay + grade
pay + DA as on 01.01.2014."
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(Copy of Minutes of item No. 219.07 of 219th meeting held on
25.08.2014 issued vide Secretary BBMB letter No.9399-9415/B-
9/219/1-M/Admn. Dated 27.08.2014 is at (Appendix-Q-3)
As per approval accorded by Board, Centralized Staff
Selection Committee (CSSC) of BBMB recruited the manpower
against the critical post(s) of various categories on fixed salary for a
one year on contractual basis, in accordance to provisions of BBMB
Class III & IV employees Regulations 1994 for recruitment, through
open competition by wide advertisement and after observing all
procedures & usual formalities as per rules.
It is pertinent to mention that rules for recruitment of regular
employees were followed/observed for this recruitment.
Subsequently, as per work requirement and
recommendations of Head of Departments regarding their work &
conduct/ efficiency, their services have been extended further form
time to time & are continuing till date.
The various categories of employees recruited through
Centralized Staff Selection Committee (CSSC) is placed as
Appendix-Q-4.
Many of these employees have almost completed 3 years of
service as per Appendix-Q-5 ending FY 2018-19. It is brought to the
notice of the members that most of these employees are working on
critical posts on contract basis and have recruited through
transparent recruitment process and playing important role in O&M
and other areas of the projects. However, in view of uncertainty
about their future these employees are getting restless and are
looking for other professional opportunities. Since these employees
have become trained over for past 2-3 years and have created useful
manpower resource in BBMB, it would be prudent if these
employees are regularized in BBMB. It is also brought to the notice
of members that their retention in BBMB becomes more significant
in view of 1922 critical posts (952 existing + 970 due to retirement)
falling vacant by the year 2023 (details as per Appendix-Q-6). As
such, the services of contractual employees recruited by following
proper procedure for recruitment and qualification etc. as per
BBMB Regulations, 1994 may be regularised on completion of 3
years' of their service in BBMB.
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As desired by Member (Punjab) during 232nd meeting
held on 17.08.2019, the position of sanctioned strength, employees
in position, posts, shares of each partner State in vacant posts and
no. of employees to be regularised (recruited on Contract basis) is
placed at Appendix Q-7 & Q-8.
In addition to this it is also submitted that Govt. of Himachal
Pradesh, Deptt. of Personnel (AP-III) is regularizing the services of
contractual appointees as per letter No. PER (AP) C-B (2)-1/2019
dated 21.02.2019 (Appendix-Q-9).
Recently, PSPCL vide its order dated 11.12.2019 (Appendix-
Q-10) has also accorded approval, to regularise the services of
contract based Lineman, who were recruited under CRA No. 281/13,
from the date of completion of contract period of three years.
Proposal
Keeping in view the issue of retaining young and trained
manpower resource recruited through proper recruitment procedure
after observing all usual formalities, fair/transparent method by
BBMB, and future retirement scenario, as well as policy of Govt. of
Himachal Pradesh for regularization of Contractual appointees,
Board may kindly consider and deliberate for formulating the policy
for regularisation of services of contractual employees on their
completion of 3 years in respective Financial year as mentioned
above.
Submitted for consideration & approval please.
XXXX XXXX XXXX
Minutes of Meeting
Item No.233.18
Regularization of services of employees working on
contractual basis in BBMB.
Special Secretary briefly explained the Agenda and informed
that the replies to the queries raised in the previous Board Meeting
have been given.
Member/HP informed that all employees in HP are recruited
on contractual basis and then regularized subsequently.
Member/Rajasthan during discussions, opined that since
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these appointments were on contractual basis (initially for one year
and likely to continue) so competent candidates might not have
applied for the same and further wanted to know whether proper
selection process was adhered to during the selection process.
Director/Security, BBMB informed that proper recruitment
procedure, as applicable for recruitment of regular employees, was
followed for selection of these contractual employees and it has been
observed that the performance of these employees is satisfactory.
Member/ Haryana desired to know if there is any difference
in remuneration of contractual and regular employees to which
Director/Security replied that the remunerations are different for
contractual and regular employees.
Accordingly, after detailed deliberations, it was decided that
the financial implications in regularizing these contractual
employees be put up for examination in the next Board meeting."
10. In the agenda of 235th Meeting of the Board, it was noticed that
huge number of vacancies have fallen vacant. In the agenda, it was proposed
that salary of the employees may be increased. The relevant extracts of the
agenda and minutes of meeting read as:
"Item 235.15
Regularization of service of employees working on
contractual basis in BBMB
XXXX XXXX XXXX
Agenda
"Punjab CSR as well as Rules & Regulations of
Punjab Govt. are applicable in BBMB and the services
of employees are regulated accordingly. Punjab Govt.
vide its letter dated 02.03.2020, adopted vide this office
letter dated 03.03.2020 (Appendix-P-6), has withdrawn
the policy regarding extension in services beyond 58
years/60 years of age w.e.f. 31.03.2020. Resulting which
huge No. of vacancies have fallen vacant. As such, pace
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of posting of staff by partner states being very slow, the
gap between sanction and vacant posts is widening with
each passing month and is already at an alarming stage.
These contractual employees are suffering at both
ends, as being contractual employees working on fixed
emoluments on the basis of (Initial Pay plus Grade Pay
plus DA as on 01.01.2014) for past 6 years (Appendix-
P-7) and still not regularised. These contractual
employees working in BBMB have represented seeking
salary hike as salary given to them is very much on
lower side i.e. fix rates with Initial Pay plus Grade Pay
and DA as on 01.01.2014 whereas, the present rate of
DA is 164% as on 01.07.2019 (Appendix-P-8). It is
pertinent to mention here that most of these employees
have become ineligible/overage to apply for any other
Govt. job. These contractual employees have become
expert in their respective and specific technical fields of
BBMB projects, it would be prudent to utilise their
services in BBMB and to increase their salaries as per
prevailing DA w.e.f. date of issuing order till decision
their regularisation is taken by Board.
Proposal
Keeping in view the facts explained above, it
is proposed as under:-
1. To increase the salary of these employees by
fixing emoluments as per prevailing DA on the
basis of (Initial Pay plus Grade Pay plus DA as
per prevailing rate) till decision on their
regularization is taken by the Board.
2. Subsequent DA as granted from time to time by
the Government shall also be admissible to these
employees and order shall be prospectively
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implemented from the date of issue of office
order in this regard.
Note: DA as on date of issue of office order shall be
paid and no arrear on this account shall be
admissible."
Minutes of Meeting
" XXXX XXXX XXXX
After discussions, Board agreed to enhance
the emoluments of the employees working on
contractual basis hired as per Board's decision
taken in 219th meeting by 64% (Initial Pay plus
Grade Pay) of the post on which they are working
with immediate effect as a one-time measure. This
enhancement, however, will not provide any right to
these employees for regularization. It was further
decided to change the nomenclature of this agenda
to be read as "Enhancement of emoluments of
employees working on contractual basis in BBMB."
11. From the perusal of minutes of Board meetings, it is quite evident
that Board has repeatedly accepted that a huge number of posts are lying
vacant; the petitioners are trained employees and they have been appointed
after following rules and regulations; many of the employees have become
over-age and they cannot apply anywhere else and there is restlessness among
the employees on account of uncertainty of job and lesser emoluments than
regular employees though they are performing same duties.
12. A two Judge Bench of Hon'ble Supreme Court in Arjun Singh &
Others v. State of Himachal Pradesh and Others, (2015) 15 SCC 713, while
dealing with appointment of contractual employees despite availability of
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regular posts has observed that State being model employer should not make
appointment on contract basis as it amounts to unfair employment practice as
well as violation of Article 14 of the Constitution of India. The Supreme
Court in Uma Devi (supra) has deprecated practice of appointment of
contractual employees by back door entry on the ground of violation of
Article 14 of the Constitution of India. The relevant extracts of the judgment
in Arjun Singh (supra) read as:
"14. From the facts as noticed above, we find that the
Electricity Board was in need of regular Assistant
Account Officers Class I and there being 14 posts
vacant, they made requisition to fill up all the 14 posts
on regular basis. The respondents have failed to disclose
the circumstances in which the advertisement was
published by the Public Service Commission, the scale
of pay was shown @ 50% of the regular pay and the
nature of appointment on contract basis.
15. In fact in the said advertisement for the post of
Assistant Accounts Officer Class I, the posts reserved for
different categories were shown i.e. Gen.-09, SC-01, ST-
01, OBC-01, Ex-Servicemen Gen.-01, Disabled person
(Low Vision)-01 (Total-14 posts). Thus, we find even the
rule of reservation was also followed.
16. The action on the part of the respondent State
authorities including the Public Service Commission
prescribing 50% of the regular pay of Rs 7750+DP on
contract basis initially for one year, extendable on year-
to-year basis is against the requisition and the decision
taken by the Electricity Board. Such action on the part
of the authorities not only amounts to unfair employment
practice but also arbitrary and violative of Article 14 of
the Constitution of India.
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17. It is clear that the terms of conditions of payment
@ 50% of regular pay and nature of appointment on
contract basis was inserted in the advertisement by the
State authorities and the H.P. Public Service
Commission at a later stage just to deprive the
candidates from their regular pay and their right to
continue in the service. The High Court failed to notice
the aforesaid fact and erred in holding that the
regularisation of service is not permissible. In fact it
was not a case of regularisation of service of the
appellants but is a case wherein direction ought to have
been issued on the respondents to provide the appellants
with orders of regular appointment from the date of
their initial appointment and to treat the initial period of
two years as probation and to provide them with other
consequential benefits."
[Emphasis Supplied]
13. The petitioners were indubitably appointed following regular
process i.e. rules and regulations meant for the appointment of regular
employees. The petitioners are working with respondent since 2015 and they
are getting consolidated remuneration instead of salary payable to regular
employees. The Board in its meeting has repeatedly recognized that number
of posts are lying vacant, petitioners are eligible for regularization because
they were appointed after following due procedure and they are trained
employees. The petitioners despite performing same duties and subjected to
same rules and regulations as are applicable to regular employees, are getting
lesser pay than regular employees. The State being model employer is
supposed to treat employees equally who are performing same set of duties.
The Board has not regularized petitioners because there was objection by one
or another member of the Board on the ground of financial implications. The
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respondent-Board is having quite huge number of vacant posts and petitioners
can very well be adjusted against those posts. The judgment of Supreme Court
in Uma Devi (supra) in not coming in the way of respondent-Board rather as
per said judgment, the case of the petitioners could be considered for
regularization because they were not appointed by back door entry. The
appointment of petitioners was admittedly made after following due procedure
as well as rules and regulations. The respondent-Board being autonomous
body is not bound to follow rules and regulations followed by State of Punjab
and PSPCL, however, there is persuasive value of rules framed by PSPCL
because respondent-Board is following most of rules and regulations framed
or followed by PSPCL.
14. In the wake of above discussion, findings and judgments of
Supreme Court, this Court is of the considered opinion that petitions deserve
to be allowed and accordingly allowed. The impugned orders are hereby set
aside. The respondent-Board is directed to regularize all the employees from
today and their seniority would be from the date of their
appointment/recruitment as contractual employee. The petitioners shall be
entitled to all consequential benefits from today and they shall not be entitled
to any financial benefit for the past period.
Pending application(s), if any, also stands disposed of.
(JAGMOHAN BANSAL)
JUDGE
15.11.2023
Mohit Kumar
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:145165
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