Punjab-Haryana High Court
Jasdeep Singh Aulakh vs State Of Punjab And Others on 24 April, 2024
Neutral Citation No:=2024:PHHC:055494
CWP-3638-2023 -1- 2024:PHHC:055494
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
116+256 CWP-3638-2023
Date of decision: 24.04.2024
JASDEEP SINGH AULAKH ....PETITIONER
Vs.
STATE OF PUNJAB AND OTHERS ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Brijesh Khosla, Advocate and
Ms. Shreya Kaushik, Advocate
for the petitioner.
Mr. Pawan Kumar, DAG, Punjab.
****
JAGMOHAN BANSAL, J (ORAL)
1. The petitioner through instant petition under Articles 226/227 of the
Constitution of India is seeking setting aside of order dated 31.01.2023
(Annexure P-17) whereby respondent has rejected claim of the petitioner
seeking counting of service rendered from 13.06.1996 to 30.06.2004 with
Punjab State Electricity Board (for short 'PSEB') as Assistant Engineer
(Electrical).
2. The petitioner on 13.06.1996 joined Punjab State Electricity Board
as Assistant Engineer (Electrical). The respondent-State advertised posts of Civil
Servants (Executive Branch). The petitioner applied for the post and came to be
selected in PCS (Executive Branch). He made multiple representations to
respondents to the effect that his service period with PSEB may be counted for
pensionary benefits. The respondent by order dated 31.01.2023 (Annexure P-17)
has rejected his claim. It is apt to mention here that respondent did not pass a
reasoned order. For the ready reference, the said order is reproduced as below:-
"Subject: Grant of benefit of Old Pension Scheme after
counting service rendered in the Punjab State Electricity Board
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With reference to your Representations dated 15.07.2022,
16.08.2022 and 17.11.2022 on the subject cited above.
After considering your Representations submitted under
reference for covering the service rendered by you in the Punjab
State Electricity Board under Old Pension Scheme, the same have
been filed in the Office at the level of the Competent Authority."
3. Mr. Rajiv Atma Ram, Senior Advocate submits that petitioner
submitted technical resignation and it was duly accepted by Competent
Authority. He vide communication dated 29.06.2004 (Annexure P-3) was
permitted to join Punjab Civil Services (Executive Branch). The respondent has
rejected his claim without adverting with Rule 3.17-A of Punjab Civil Services
Rules, Volume-II, Chapter-3 as well Rule 7.5(2) of Volume-I Part-I of Punjab
Civil Services Rules (for short 'PCS Rules'). The respondent is relying upon
instructions dated 18.04.2016 and 25.04.2017 which are inapplicable to
petitioner because instructions cannot override rules and further instructions
were issued post joining of petitioner as PCS Officer. The respondent has
counted service of similarly situated employees for the purpose of qualifying
service.
4. Per contra, Mr. Pawan Kumar, DAG, Punjab submits that
instructions of 2016 and 2017 are very much clear. Service rendered in a PSU
may be counted for qualifying service if an employee has joined government
service on account of winding up of PSU or absorption in government
department. The petitioner voluntarily resigned from his parent department and
thereafter joined PCS (Executive Branch) after cracking direct recruitment test.
He concedes that benefit of counting of previous service period has
been extended to other officers. He further concedes that pay of the petitioner
has been protected.
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5. I have heard the arguments of learned counsel for the parties and
perused the record.
6. The conceded position emerging from the record is that the
petitioner from 1996 to 2004 worked as Assistant Engineer with PSEB. He
participated in the direct recruitment process of PCS (Executive Branch). He
came to be selected in 2004 and joined PCS (Executive Branch). He submitted
resignation to his parent department i.e. PSEB which accepted his resignation.
The respondent has protected pay of the petitioner and granted claimed benefit
to identically placed officers.
7. As per respondent, the service rendered by petitioner with PSEB
cannot be counted because of instructions dated 18.04.2016 and 25.04.2017. The
petitioner is relying upon Rules which have been framed by Governor in
exercise of power conferred by proviso to Article 309 of the Constitution of
India. It is a settled proposition of law that Rules framed by Governor in
exercise of power conferred by Article 309 are plenary in nature. These rules are
not a piece of delegated legislation. The Supreme Court time and again has
reminded that circular/instructions/notifications cannot flow contrary to river of
legislative provisions either plenary or delegated.
8. Rule 3.17-A of Punjab Civil Services Rules provides for counting
of service rendered in an establishment. It clearly provides that service rendered
in an establishment would be counted as qualifying service if the employee has
submitted resignation for taking up another appointment and said resignation has
been accepted. The Rule 3.17-A is reproduced as below:-
"Rule 3.17-A. (1) Subject to the provisions of rule 4.23 and
other rules and except in the cases mentioned below, all service
rendered on establishment, interrupted or continuous, shall count
as qualifying service:-
(i) Omitted.
(ii) Omitted.
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(iii) Casual or daily rated service.
(iv) Suspension adjudged as a specific penalty.
Note.- In cases where an officer dies or is permitted to retire while
under suspension will not be treated as an interruption.
(v) Service preceding resignation except where such
resignation is allowed to be withdrawn in public
interest by the appointing authority as provided in the
relevant rules or where such resignation has been
submitted to take up, with proper permission, another
appointment whether temporary or permanent under
the Government where service qualifies for pension.
(vi) Joining time for which no allowances are admissible
under rules 9.1 and 9.15 of C.S.R., Volume I, Part I.
(vii) If any unauthorised leave of absence occurs in
continuation of authorized leave of absence and if the
post of the absentee has been substantively filled up,
the past service of the absentee is forfeited.
(viii) Transfer to a non-qualifying service in an
establishment not under Government control or if such
transfer is not made by the competent authority and
transfer to service in a grant-inaid school.
(A Government employee, who voluntarily resigns
qualifying service, cannot claim the benefit under this
clause.)
(ix) Removal from public service for misconduct,
insolvency, inefficiency not due to age, or failure to
pass an examination will entail forfeiture of the past
service.
(x) Service rendered beyond the date of retirement on
superannuation in terms of rule 3.26 of Punjab Civil
Services Rules, Volume I, Part I.
(2) An interruption in the service of a Government
employee caused by wilful absence from duty or unathorised
absence without leave, shall entail forfeiture of the past
service.
(3) Wilful abstinence from performing duties by a
Government employee by resort to pen down strike shall be
deemed to be wilful absence from duty and shall also entail
forfeiture of the past service.
Note.- In the case of a Central Government employee who is
permanently transferred to the Punjab Government and
becomes subject to these rules, the pensionary benefits
admissible for service under Central Government would be
that admissible under the Government of India rules and the
liability for such benefits shall be allocated in accordance
with the prevalent orders.
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Clarification (1).-Even after the introduction of rule
3.17(A) and deletion of rule 4.21 the following cases do not
entail forfeiture of past service:-
(a) authorised leave of absence;
(b) abolition of post or loss of appointment owing to
reduction in establishment.
("Post" or "appointment" means a post or
appointment service in which qualifies for pension).
(2) While counting such qualifying service for working out
aggregate service, the period of break in service shall be
omitted."."
[Emphasis Supplied]
9. Sub-Rule (2) of Rule 7.5 of PCS Rules provides that resignation
submitted for taking up another appointment with Government, shall not entail
forfeiture of past service, if there is permission by Competent Authority. Sub-
Rule (2) of Rule 7.5 of PCS Rules is reproduced as below:-
"A resignation shall not entail forfeiture of past service if it has
been submitted to take up, with proper permission, another
appointment, whether temporary or permanent, under the
Government where service qualifies for pension."
10. From the perusal of above quoted Rules 3.17-A and 7.5 (2) of PCS
Rules, it is quite evident that service rendered with an establishment is counted
for qualifying service if an employee resigns with the permission of Competent
Authority and for the purpose of taking up employment with Government. The
respondent has failed to controvert applicability of aforesaid Rule to petitioner
except pleading that instructions do not provide for counting previous service.
11. It is settled proposition of law that instructions can supplement
statutory provisions but cannot supplant the statutory provisions. The
instructions cannot be contrary to mandate of Rules. The said instructions are
not under challenge, however, being contrary to statutory provisions as well as
intent of beneficial scheme cannot detain this Court.
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12. The Supreme Court in Shree Bhagwati Steel Rolling Mills v.
Commissioner of Central Excise and another, (2016) 3 SCC 643, has observed
that Rules or Regulations which are ultra vires though not challenged may be
ignored. The relevant extracts of the judgment read as:
"28. Shri Aggarwal in order to buttress his submission that he
ought to be allowed to raise a pure question of law going to the
very jurisdiction to levy interest, cited before us the judgment in
Bharathidasan University v. All-India Council for Technical
Education [Bharathidasan University v. All-India Council for
Technical Education, (2001) 8 SCC 676 : 1 SCEC 924] and in
particular para 14 thereof which reads as follow: (SCC pp. 688-
89)
"14. The fact that the Regulations may have the force of law
or when made have to be laid down before the legislature
concerned does not confer any more sanctity or immunity as
though they are statutory provisions themselves.
Consequently, when the power to make Regulations is
confined to certain limits and made to flow in a well-defined
canal within stipulated banks, those actually made or shown
and found to be not made within its confines but outside
them, the courts are bound to ignore them when the question
of their enforcement arises and the mere fact that there was
no specific relief sought for to strike down or declare them
ultra vires, particularly when the party in sufferance is a
respondent to the lis or proceedings cannot confer any
further sanctity or authority and validity which it is shown
and found to obviously and patently lack. It would, therefore,
be a myth to state that the Regulations made under Section
23 of the Act have 'constitutional' and legal status, even
unmindful of the fact that any one or more of them are found
to be not consistent with specific provisions of the Act itself.
Thus, the Regulations in question, which AICTE could not
have made so as to bind universities/UGC within the
confines of the powers conferred upon it, cannot be enforced
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against or bind a university in the matter of any necessity to
seek prior approval to commence a new department or
course and programme in technical education in any
university or any of its departments and constituent
institutions."
29. It would be seen that Shri Aggarwal is on firm ground
because this Court has specifically stated that rules or regulations
which are in the nature of subordinate legislation which are ultra
vires are bound to be ignored by the courts when the question of
their enforcement arises and the mere fact that there is no specific
relief sought for to strike down or declare them ultra vires would
not stand in the court's way of not enforcing them. We also feel that
since this is a question of the very jurisdiction to levy interest and is
otherwise covered by a Constitution Bench decision of this Court, it
would be a travesty of justice if we would not allow Shri Aggarwal
to make this submission."
13. A three Judge Bench of Supreme Court in State of Haryana Vs.
Shamsher Jang Bahadur, 1972(2) SCC 188, while relying upon Constitution
Bench judgment in Sant Ram Sharma Vs. State of Rajasthan and another, AIR
1967 Supreme Court 1910 has held that Government is not Competent to alter
the Rules framed under Article 309 by means of administrative instructions. The
relevant extracts of the judgment reads as:
"7. It may be noted that herein we are dealing only with those who
were promoted from the cadre of clerks in the Secretariat. The first
question arising for decision is whether the Government was
competent to add by means of administrative instructions to the
qualifications prescribed under the Rules framed under Article 309.
The High Court and the courts below have come to the conclusion
that the Government was incompetent to do so. This Court has
ruled in Sant Ram Shama v. State of Rajasthan [(1968) 1 SCR 111]
that while the Government cannot amend or supersede the statutory
rules by administrative instructions, if the rules are silent on any
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particular point, the Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent with the
rules already framed. Hence we have to see whether the
instructions with which we are concerned, so far as relate to the
clerks in the Secretariat amend or they alter the conditions of
service prescribed by the rules framed under Article 309.
Undoubtedly the instructions issued by the Government add to
those qualifications. By adding to the qualifications already
prescribed by the rules, the Government has really altered the
existing conditions of service. The instructions issued by the
Government undoubtedly affects the promotion of concerned
officials and therefore they relate to their conditions of service. The
Government is not competent to alter the rules framed under Article
309 by means of administrative instructions. We are unable to agree
with the contention of the State that by issuing the instructions in
question, the Government had merely filled up a gap in the rules.
The rules can be implemented without any difficulty. We see no gap
in the rules."
14. A rule cannot operate contrary to a statutory provision whereunder
said rule has been made. Rules cannot be contrary to statutory provisions.
Similarly, neither instructions can be contrary to statutory provisions nor rules.
The instructions cannot override or flow beyond the banks of river of rules. The
instructions, which are contrary to Rules, need to be ignored.
15. In the case in hand, the case of petitioner is squarely covered by
afore-stated Rules, however, his claim has been rejected on account of
instructions which are contrary to Rules framed under proviso to Article 309 of
the Constitution. In view of afore-stated legal position, the instructions need to
be ignored. It is apt to notice here that respondent has granted similar benefit to
identically placed other employees.
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16. In the wake of above discussion and findings, the present petition
deserves to be allowed and accordingly allowed. The impugned order dated
31.01.2023 (Annexure P-17) is hereby quashed.
24.04.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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