Bachan Singh vs State of J&K and others

The second round of litigation was held to be barred by the principles contained in Order 2 Rule 2 of the Code of Civil Procedure. Writ petition

stands dismissed. Now the present appeal has been preferred.

Before noticing the controversy which has arisen in this appeal, it would be apt to notice a few facts.

The appellant sought a writ of mandamus to the effect that he should be allowed to continue on the post of Chargeman in the pay scale of Rs.

12002040 for a further period of two years. This was on the basis of some recommendations made by the Power Development Commissioner

and the Chief Engineer Systems and Operation Wing. His contention was that he cannot be made to superannuate on 31.1.1997. It was submitted

that his case had been recommended for extension. He was of the view that the direction given by the respondents referred to above asking him to

superannuate w.e.f. 31.1.1997 is contrary to Rule 10 of the J and K Work Charge Employees Service Rules of 1972. This prayer of his was

made in a writ petition bearing SWP No. 108/1997. This was declined. The writ petition was dismissed. In the above writ petition, as indicated

above, the prayers made were :

i) That the attempt on the part of the respondents to superannuate the appellant w.e.f 31.1.1997 is illegal;

ii) That the writ of Madamus be issued to let the appellant continue in service for a period of two years;

This prayer, as indicated above, was ' declined. This prayer of his was declined on 30.1.1997. After the writ petition was dismissed, the

appellant preferred a second petition. By that time the appellant stood superannuated. He submitted that the order 31.1.1997 by which he had

been ordered to superannuate is contrary to article 226 of the Jammu and Kashmir CSR Volumel. His plea was that he is a member of inferior

service. . He also stated that he was entitled to pensionary benefits, particularly he claimed leave encashment salary, benefit of gratuity and pension.

This prayer of his was declined. The writ petition came to be dismissed. This was on the ground that he had claimed the same relief in SWP No.

108/ 1997 and therefore, on account of the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure 1997, a second petition on the

same cause of action would not be maintainable. This order passed on 29.4.1997 is subject matter of challenge in this appeal.

A fine distinction is sought to be made by the appellant. This is to the effect that earlier he came with a plea that he should be permitted to

continue for a period of two years expiring on 31.1.1997. This prayer was declined on 30.1.1997. In the present petition, he is challenging the

actual termination arid is also claiming pensionary benefits.

We are of the opinion that so far as relief of pensionary benefits and post retirement benefits are concerned, this was and could not be a subject

matter of challenge in the earlier petition because on the date he filed the earlier petition i.e. 2511997 he was still in service. His petition came to be

dismissed on 30.1.1997 i.e. before his date of retirement, therefore, when he preferred a second petition, he was filing the same challenging the

factum of retirement and at the same time, he was claiming pensionary benefits. We are of the view, that so far as pensionary benefits are

concerned, this was not the subject matter of challenge in the earlier writ petition and therefore, the provisions and principles Laid down in Order 2

Rule 2 of the Civil Procedure Code would not be attracted. To repeat, the cause of action qua claim regarding pension arose only after 31.1.1997.

The earlier writ petition was filed before the date of superannuation. It was decided earlier. As such so far relief of pension is concerned, this

would not be barred by the principles of constructive resjudicata contained in Order 2 Rule 2.

The question arises as to whether the merit of the controversy can be gone into in this appeal or whether this is a case where the issue to be

settled is required to be sent back to the Learned Single Judge of this Court for redeciding the writ petition. If there is sufficient material available

on the record and on that basis, judgment can be pronounced, then there is no necessity to remand the matter. The subject of remand is dealt with

in Order 21 Rule 23 of the Civil Procedure Code. The factor which should be present necessitating an order of remand have been stated therein.

Again Order 21 Rule 24 lays down in clear terms that the Appellate Court can dispose of a case finally without a remand if there is sufficient

material on the record to do so. We are of the opinion that this appeal can be disposed of without remitting the same. This is because the question

involved in this case is as to whether the appellant is entitled to pensionary benefits or not is purely legal. No doubt, it would indirectly lead to

determination of the question as to what should have been his date of retirement but as indicated above, this is being done only to determine the

pensionary benefits. The legal position as to pensionary benefits be examined. 8. Pension is payable under Regulation 177 and 177(A) of the Civil

Services Regulation. Age of retirement is fixed under Regulation 226. These Regulations are relevant and are being noticed:

177 Service does not qualify unless the Officer holds substantive office on a permanent establishment:

Provided that in case of a Government servant retiring from service on or after 1st of January 1962. if he was holding a substantive office on a

permanent establishment on the date of his retirement temporary, officiating including temporary service contemporary establishment / Department,

S.P.T. or quasi permanent service followed with out interruption by confirmation in the same or another post shall count in full as qualifying service

except in respect of:

(i)periods of service paid on work charge establishment an

(ii) periods of service paid from contingencies;

Provided further that in case of continuous quasipermanent service of 5 years or more, a government servant who may not have been confirmed on

any post before the date of his retirement (including retirement on invalid pension) shall be entitled to count the entire period of quasi permanent

service and the continuous temporary service whether on pensionable or temporary establishments/ Department (exeluding nonpensionable

establishments mentioned above) preceding his quasipermanency towards service qualifying for pension and he shall be eligible for pensionary

benefits as if the entire period of temporary service and the quasipensionable.

(i) Provided also that a temporary Government servant who on his retirement from service on his being declared permanently incapacitated for

further Government services by the appropriate medical authority or who on his death while in service has rendered temporary service or not less

than 20 years, shall for purposes of all pensionary benefits, be treated to have held a permanent pensionable post in a substantive capacity

immediately before his retirement or death as the case may be.

Pending cases if any shall be regulated accordingly.

177A Notwithstanding anything contained in article 177A workcharged employees who is brought on regular establishment and retire without

having been declared substantive or quasipermanent, shall be allowed to count 50% of his work charged service as qualifying for pension together

with the period of service rendered on regular establishment If the total of the two spells is 20 years or more, he will be eligible for pension under

preceding provision.""'

226(i) An officer shall retire compulsorily on his attaining the age of 55 years unless the competent authority considers him efficient and permit him

to remain in service. He may, however, be retained in service after the date of compulsory retirement with the sanction of the Government on

public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances:

Provided that the Government servants who were in service on 10.10.1966 and were treated inferior as per Schedule II will retire on attaining the

age of 60 years.

Provided further that a Government servant in service on 1.1.1987 or appointed on or after that date shall retire on his attaining the age of 58 years

Provided further that the retirement of a Government employee in service on 2.1.1976 or appointed on or after that date shall take effect from the

afternoon of last year of month in which the employee concerned attains the age of superannuation instead of the actual date of his superannuation.

Retiral benefits which are admissible to work charge employees are mentioned in Rule 15 of the Jammu and Kashmir Work Charged

Employees Service Rules 1972 This Rule reads as under:

Retirement Benefits: An employee of work charged establishment will not be entitled to any superannuation, invalid, retirement and

compensation etc pension. Such of the employees who have permanent status shall be entitled to retirement gratuity at the rate of 1/4 month's pay

in each completed period of six months subject to the maximum of (16 months) pay at the time of retirement. The retirement gratuity admissible

under these rules will not in any way debare the employees from their entitlement to compensation admissible under the workmen's Compensation

Act in the event of death/ injury/disability while in service.

Classification under 8(iii) of the family pensioncumgratuity Rules.

In the case of death of work charged employee with permanent status while in service, death gratuity shall be payable to the beneficiary calculated

at the rates indicated in Rule 15 subject to a minimum of 12 times the pay of the employee at the time of death. The provisions of article 240B to

240G of the Jammu and Kashmir Civil Service Regulation I in Respect of Rules of procedure etc. will apply mutatus mutadis in the case.

The facts in brief be noticed:

The appellant was in service of the respondents. He initially joined the Kalakote Thermal Power Project in the year 1964. This Thermal Power

Project is now a part and parcel of Power Development Department of Jammu and Kashmir. The appellant later on worked in the Chenani Hydel

Project with effect from 1st of May, 1969 on work charge establishment. In this project he continued till 31st of Jan., 1997. The fact that he came

to be so appointed is sought to be projected by placing reliance on various orders including an order dated 16th of Jan., 1997, by which the

appellant was ordered to be superannuated. A recommendation was made for extending his tenure for a period of two years. The recommendation

made by the concerned officer has been placed on the record as Annexure'A6', for facility of reference this is being reproduced below:

Subject: Extension of 2 years of service in favour of Sh. Bachan Singh Chargeman on work charge establishment of TLMD Udhampur in terms of

SRO31 of 20.1.1992 inserted in the J and K Workcharge employees service rule 1972.

....

The Chief Engineer System and Operation Wing vide his letter No: CE/ SCLO/C/641415 dated 21.11.96, has stated that Shri Bachan Singh,

chargeman (12002040) work charge is due for retirement on a superannuation on 31.1.1997. The concerned Executive Engineer, has

recommended the two years extension may be granted in favour of workcharge official on the plea that official is a dedicated worker and well with

the pneumatic apparatus and handlip heavy machineries in the Grid Station. He is also rich technical hand with lot of experience which are very

useful for the department, which are required by the department.

In this context it is submitted that as Rule 10 of the J and K Workcharge rules, a workcharge incumbent can be retained in the Govt. service

after compulsory retirement on the grounds that his service are required in the public interest, as a special case and circumstances, but cannot be

retained after attaining the age of 60 years.

Shri Bachan Singh chargeman will retire on 21.1.1997, after attaining the age of 58 years. The department intend to utilize his experience in

handling the machines etc. in Grid Station for another two years i.e. upto the date he will attain the age of 60 years as a special case. It may also be

pointed on here that the official belongs to the outside the State and as such is not also entitled for pensionary benefits, as per rules.

If approved, may approach Administrative for accord of sanction to the pretension of Shri Bachan Singh, chargeman (workcharge) in the

service for two years w.e.f. 1.2.1999 of course after his compulsory retirement due on 31.1.1997 A.N. on public ground, as a special case.

Sd/

S/O

Paras 14 may please be perused. Keeping in view the recommendation of CE Sto for extension of 2 years service in favour of Sh. Bachan Singh

chargemen (on work charge establishment) retiring on superannuation on 31.1.1997, if approved may refer the case to Adm. Deptt. Needless to

mention that CE/Sto has stated that the official is a dedicated worker and is well vested with the pneumatic apparatus and handling of heavy

machinery in the Grid Station and his service are required in the vital.

Submitted for orders Sd/

If approved we may take up the case with the Adm. Deptt. for obtaining sanction of extension of two years service w.e.f. 1.2.1997 to

31.1.1999 in favour of Sh. Bachan Singh workcharge establishment as recommended by the CE SXO Wing vide his communication No.

CE/SXO/C/6414 dated 21.11.96.

Submitted for orders Sd/Since the rules.... provided for extension of a w/charged employee upto attaining of the age of 60 years, as given at para

(2). we may if approved, agree the proposal of CE S and O Wing.

Sd/

The appellant further submits that some other employees who were similarly situated were allowed to work. Reference in this regard is being

made to paragraphs 6 and 7 of the petition. His case is that he was entitled to continue up to the age of 60 years, and he also claims pensionary

benefits. He submits that he is a member of the WorkchargeEstablishment since 1964 and therefore, he is entitled to all other benefits under the

Rules. He also submits that another person by name of Kartar Singh has been given the benefit and therefore, there is no justification in denying him

the said benefit.

A perusal of the facts on the file in the present case does indicate that the appellant could continue up to the age of 60 years, but he was

superannuated earlier to that. Therefore for giving pensionary benefits his age of retirement has to be 60 years.

Reference in this regard be made to the decision reported as S.P. Dubbey V.M.P.S.R.T. Corpn. and another, AIR 1991 SC 276. The facts

were that the State of Madhya Pradesh was reorganised under the States Reorganisation Act 1956. The Central Government by a notification

dated February 28, 1961, extended the provisions of Road (hereinafter called the Act) to the State of Madhya Pradesh with effect from April,

1961. There after the Madhya Pradesh Government acting under S.2 of the Act established the Madhya Pradesh State Road Transport

Corporation (hereinafter called Corporation) with effect from May 21, 1962. The Madhya Pradesh Government issued two memorandum on May

4, 1962. By one memorandum the services of the concerned employees including Sh. Dubey were transferred to the Corporation and by the

second it was clarified that the said transfer was subject to the conditions that their service would be treated I as uninterrupted and their pay scales

and I conditions of service would not be affected.

Under the Regulations of the Corporation the appellant was sought to be retired at the age of 58 years. Allowing the appeal the Supreme Court of

India said:

The appellant was in service of the Company from 1947 to August 3Q, 1955. Admittedly, the age of superannuation of the Company employees

was 60 years. The Government of Madhya Pradesh took over the company with effect from August 31,1995 by a notification specifically stated

that the existing staff of the company would not be adversely affected with regard to their conditions of service. It is no doubt correct that on

August 31,1995 rules were operating in respect of the State Government employees according to which the age of superannuation was 58 years,

but the persons who were serving with the company were taken into Government service with a specific assurance that their conditions of service

were not to be adversely affected. When the State Government taken over a private company and gives an assurance of the type it is but fair that

the State Government should honour the same. Thus, the State service rules which fixed the age of superannuation at 58 years could not be made

applicable to the appellant and other employees of the taken over company. We therefore, do not agree with reasoning of the High Court.

15, The above observations do help the appellant.

With regard to period of service beyond 31.1.1997, it would be apt to notice that was said in case reported as Nand Kishore Nayak V. State

of Orissa and another, AIR 1991 Supreme Court 1724. is being quoted:

The appellant has claimed two relief. One for payment of salary for the two years period second for refixation of his pension. So far as the first

relief is concerned, even from the order of the High Court, which we have extracted above. ii is obvious that salary was directed to be paid to only

those who had actually served and not to others. It is true that this observation was in respect of those who had served beyond their regular

superannuation period but the concept is clearly to pay for work actually done, Cases of the present type where the employee accepted his

retirement at the age of 58 years and is now seeking the benefit of the High Court's order stand on a different footing from those whose services

were wrongly terminated. In our view such employees would not be entitled to salary for the idle period but the relief for refixation of pension by

extending the date of superannuation by two years can be granted to them. We. therefore, direct the State Government to grant the benefit of the

judgment to all those employees including the appellant herein who would have otherwise retired at the age of 60 years on the interpretation placed

on the relevant provisions of the Act and the Rules by the High Court. In the present case, we, therefore, direct the State Government to extend

the benefit of the judgment to the appellant, refix his date of superannuation add two years to his qualifying service and refix his pension and grant

the same from the deemed date of superannuation. The arrears of pension within a reasonable time not exceeding three months.

Regulation 177 makes it apparent that every Government employees retiring with effect from 1st of January 1962, if he is holding a substantive

office on permanent establishment on the date of his retirement temporary establishment/Department without interruption by confirmation in the

same or another post shall be eligible for pension. Only exception is that period of service on work charge establishment and period of services

paid from contingencies is to be excluded. Two exceptions referred to above are to be read only where a person is working on the post which has

been described as:

or quasipermanent service followed without interruption by confirmation in the same or another post shall count in full as qualifying service, except

in respect of.

These exceptions are not to be read when a person is holding substantive office on a permanent establishment on his date of retirement or is

temporary officiating or is holding officiating including temporary service.

19 Thus the plain meaning on the reading of article 177 and 177 (A) quoted above is that an employee who is holding a substantive post on

permanent establishment on the date of his retirement or is holding temporary officiating including temporary service he becomes entitled to

pension. Thus on the true interpretation of Regulation of article 177 and 177A and 226 of Civil Service Regulation it is concluded:

(i) that an employee can be permitted to continue in service till the age of sixty years (See article 226 h(i)).

(ii) if service is rendered by an employee upto the age of 60 years then the State Government is bound to pass an order within a view to regularise

the same.

(iii) the service so rendered under article 226 (I) enables an employer to get this period counted towards qualifying service for pension purpose.

(iv) once an employee who is working on a work charged establishment becomes permanent he becomes entitled to pension in terms of the

opening lines contained in Regulation 177.

(v) would apply to that category which is mentioned last of all i e. after the word 'or'

(vi) in any case 50% of service rendered as work charged employee is to be counted towards the qualifying service.

(vii) the service mentioned at serial no. (vi) is to be added to that service which is rendered on regular basis.

In the present case, the appellant had been working since 1964. If this date of retirement is 60 years then it would be deemed to have

completed 35 years of service. In this situation the appellant would be entitled to the benefit of pension regulations noticed above.

It be seen that in the year 1994 SRO 64 of 1994 came into force. The services of appellant if not regularised are required to be regularised in

terms of SRO 64 of 1994. this SRO confers a right on an employee. If hr has rendered seven years of service then he has to be necessarily

regularised. This aspect be also considered, as in terms of article 177(A) benefit is to be given to the work charged employee who is brought on

the regular establishment, even if no declaration has been made that he is a substantive or;, permanent employee.

As a matter of fact, observations made by the Division Bench in LPA No: 438/98 decided on 16.8.1999 (Daya Krishan and others Vs. State

of J and K and others) would also be attracted. What was stated by the Division Bench qua the workcharge employees is being reproduced

below:

These rules indicate that where an employee has completed seven years service or completes such service in a subsequent financial year, then he

or she is entitled to seek regularisation. Rule 7 and 8 are being noticed. These read as under:

Rule7, Restriction on engagement of Daily Rated Workers/ Work charged Employee:

(1) with effect from the commencement of these Rules, no filed/subordinate officer shall have the power for engagement of Daily Rated workers or

work charged employees in the Department and the existing delegation, if any, in this regard is withdrawn.

Provided that the Competent Authority may engage casual labour or seasonal labour in any of the Department to be specified by Notification from

time to time by the Government and such payment of wages and no engagement or appointment order shall be issued.

(2) After the commencement of these Rules the work charged posts shall be created only by the Administrative Departments in consultation with

the Finance and Planning Department.'

Rule8 Application for Rule to existing Daily Rated Worker and Work charged employees:

The policy of absorption of Daily Rated workers and work charged employees shall also apply to such of the existing Daily Rated Workers and

work charged employees who may not have completed seven years on 31.3.1994 but may complete by the end of subsequent financial years and

their absorption shall be considered in that financial year in accordance with these Rules.

Thus the rules provided for the policy of absorption of Daily Rated Workers and Work charged Employees. Employees who may have

completed seven years are entitled to regularisation. These employees who have not completed seven years of service, but may complete their

seven years by the end of subsequent financial year can also be regularised. Rule 8 taken care of those Daily Rated Workers who are working

with true; employee but have not completed seven years tenure. The only exception which has been carved out is that they could be entitled to

absorption only on the completion of seven years of service. It be seen that the words used in Rule 8 are:

.... seven years on 31.3.1994 but may complete by the end of subsequent financial year....

The words the 'subsequent financial years' has to be given full meaning The Rule cannot be ignored. The intention of rule marking authority is let

an employee continue and then regularise the services of an employee who is working as a Daily Rated Worker or Work charged Employee and

has not completed seven years of service. He is to be permitted to continue to work as such but his services are to be regularised only when he

completes seven years of service.

The respondents would also take note of art 240 AAAA(1)(b) which reads as under:

(b) Pension for twenty completed six monthly periods of qualifying services or more: 50% of average emoluments in all cases. The amount of

pension so arrived at will be related to the maximum qualifying service of 33 years. For Government servants who at the time of retirement have

rendered qualifying service of ten years or more but less than 33 years, the amount of pension will be such proportion of maximum admissible

pension as the qualifying service rendered by them bears to the maximum qualifying service of 33 years. The pension under this rule shall be subject

to a minimum of Rs. 325/and maximum of Rs. 2850/.

To some extent this regulation also applies the appellant.

The respondents would consider the impact of the regulation quoted above. His service tenure would be determined and the pensionary

benefits would be calculated accordingly. The appellant be provided an opportunity to put across his point of view visavis service tenure.

The above aspect are required to be taken note of. The claim of the appellant for regularization should be considered and his pensionary

benefits are required to be fixed accordingly.

This appeal is accordingly disposed of with a direction that the respondents would examine the question of the retrial benefit i.e. pension,

gratuity, etc., and take a decision within a period of three months from the date copy of the order passed by this Court today is made available to

the respondentauthorities. The appellant to do the needful. Claim for regularisation has also to be dealt with. This be also decided. In case a

decision is not taken and ultimately it is found that something is due then the appellant would be entitled to interest at the rate of 12%. This interest

would be payable by the person on whose account delay occurs. Disposed off accordingly.