Rajnish Kumar Jasra vs State Of Punjab & Ors.

Sandeep Moudgil, J

The instant application has been moved under Section 151 CPC on behalf of the applicant/petitioner for substitution /correction of Annexure P-10 (wrongly filed) by placing on record the correct Annexure P-10 (order dated 17.10.2019 in CM-4901-CWP-2019 in/and CWP-11469-2007) and be exempted from filing the certified/typed copy thereof.

Notice in the application.

Since the State/respondents were served with an advance copy of the petition, Mr. Satnam Preet Singh Chauhan, DAG Punjab has put in appearance and submits his no objection.

For the reasons stated in the application and in view of no objection submitted by learned State counsel, the same is allowed and wrongly filed Annexure P-10 is substituted/corrected by taking on record the correct Annexure P-10 (order dated 17.10.2019 in CM-4901-CWP-2019 in/and CWP-11469-2007. Exemption from filing the certified/typed copy thereof is also granted.

CM stands disposed of.

The jurisdiction of this Court has been invoked under Articles 226/227 of the Constitution of India for issuance of a writ of Certiorari seeking quashing of the impugned order dated 29.04.2021 (Annexure P-17) passed by respondent No.1, whereby the claim of the petitioner for counting the service rendered with Punjab Women Child and Welfare Corporation (PUNWAC) towards pension and pensionary benefits, increments and other consequential benefits, as also claim for arrears of the regular pay scale, has been rejected. A Further prayer for issuance of a writ of in the nature of Mandamus has also been sought to direct the respondents to count the entire service rendered by the petitioner with PUNWAC for the purpose of pension and pensionary benefits, including the benefit of 49½ years of service and other consequential benefits, and to grant the regular pay scale to which he claims entitlement, together with the consequential arrears and interest.

The brief facts of the present case is that the petitioner was appointed as Field Officer with Punjab Women Child Development and Welfare Corporation (PUNWAC) on 15.07.1983 and promoted as Project Officer in 1993. Upon winding up of PUNWAC on 14.10.2000, while 27 employees were absorbed, the petitioner and another employee were given retrenchment benefits, leading them to file CWP No.14483 of 2000. Pursuant to the Government meeting dated 26.04.2000 (Annexure P-1), this Court, vide order dated 06.05.2004, directed the Government to take a decision, which resulted in rejection of the claim on 02.09.2004. The petitioner thereafter filed CWP No.15472 of 2006.

During the pendency thereof, a D.O. letter dated 23.05.2006 (Annexure P-2) was issued proposing accommodation of the petitioner and his co-employee, followed by the Chief Secretary's order dated 26.06.2007 (Annexure P-3). The petitioner was thereafter appointed/adjusted as Deputy Director in the Department of Women and Child Development vide order dated 13.07.2007 (Annexure P-4), against a post created w.e.f 20.08.2007. The matter was also considered by the Council of Ministers, whose decision is placed on record as Annexure P-5.

Vide order dated 21.07.2008 (Annexure P-6), a regular post of Deputy Director in the pay scale of Rs.7,880-11,660 was created and the petitioner was adjusted against the said post w.e.f. 20.08.2007, subject to the outcome of CWP No.11469 of 2007. During the pendency of the said writ petition, this Court, vide interim order dated 03.07.2008, directed that the petitioner would continue in service and his status would not be changed. The relevant proceedings and reply of the State are annexed as Annexures P-8 and P-9.

The petitioner continued in service, was given additional charge of Additional Director in 2016, and superannuated on 30.06.2018 after availing one year extension. CWP No.11469 of 2007 was disposed of as infructuous on 17.10.2019 (Annexure P-10).

Thereafter, the petitioner submitted representations dated 03.02.2020 and 10.03.2020 (Annexures P-11 and P-12) seeking service and pensionary benefits, including counting of his previous service rendered in PUNWAC. Upon failure of the respondents to decide the claim, he filed CWP No.8335 of 2020, which was disposed of on 19.06.2020 with a direction to pass a speaking order within three months (Annexure P-13). Since the respondents failed to comply with the afore-said directions, the petitioner filed COCP No.418 of 2021, wherein, vide order dated 17.02.2021 (Annexure P-14), a directions was issued to respondent No.1, to decide the representation within two weeks. The petitioner also sought information regarding an earlier recommendation in his favour under the RTI Act (Annexure P-15).

The petitioner, thereafter, served a legal notice dated 12.05.2021 (Annexure P-16). However, respondent No.1 rejected his claim vide order dated 29.04.2021 (Annexure P-17), principally treating him as a contractual employee on the basis of the interim order dated 03.07.2008 and relying upon Rules 6.10-A and 6.16-AA of the Punjab Civil Services Rules, Vol. II. Hence, the present petition.

Learned counsel for the petitioner submits that the impugned order dated 29.04.2021 (Annexure P-17) is unsustainable as respondent No.1 wrongly treated the petitioner as a contractual employee by relying upon the interim order dated 03.07.2008, while ignoring the subsequent order dated 21.07.2008 (Annexure P-6), whereby a regular post of Deputy Director was created and the petitioner was adjusted against the said post

It is contended that the interim order dated 03.07.2008 only protected the petitioner's continuation in service during the pendency of CWP No.11469 of 2007 and ceased to operate upon the writ petition being disposed of as infructuous on 17.10.2019 (Annexure P-10). Reliance is placed upon Sachin Ahlawat v. Chairman, Combined Entrance Examination, 2002(1) SCT 284 and Rana Pratap Singh v. Vittiya Evam Lekha Adhikari, District Basic Education Officer and others.

Learned counsel further relies upon Didar Singh v. State of Punjab and others, 2015(29) SCT 900, to contend that previous service rendered with PUNWAC is liable to be counted for pensionary benefits. It is argued that Rules 6.10-A and 6.16-AA of the Punjab Civil Services Rules, Vol. II, are inapplicable as the petitioner stood adjusted against a regular post.

It is also submitted that the respondents themselves had defended the petitioner's continuation and adjustment in the proceedings reflected in Annexures P-8 and P-9 and, therefore, could not subsequently disregard the same. The petitioner is stated to be similarly situated to other PUNWAC employees whose service was counted for pensionary benefits, and denial of such benefits is alleged to be discriminatory.

As regards monetary benefits, learned counsel submits that the petitioner was appointed as Deputy Director in the applicable pay scale and was subsequently denied the benefit of revised pay scales, for which he claims consequential arrears.

On these grounds, learned counsel submits that the order dated 29.04.2021 (Annexure P-17) has been passed without proper consideration of order dated 21.07.2008 (Annexure P-6), the outcome of CWP No. 11469 of 2007, the respondents’ own position in the matter, and the judgment in Didar Singh ‘s case supra and therefore deserves to be quashed with consequential service, pensionary and monetary benefits.

Learned State counsel, while opposing the writ petition, submits that the petitioner continued to serve as Deputy Director only on contractual basis and was never finally regularized. It is contended that although the Government order dated 21.07.2008 initially regularized the petitioner against the post of Deputy Director, the said order was subsequently withdrawn/revised vide order dated 11.09.2008 (Annexure R-1), whereby his engagement was restored to contractual basis in view of the interim order dated 03.07.2008 passed in CWP No.11469 of 2007. The petitioner thereafter continued on contract till his retirement on 30.06.2018.

It is further submitted that the disposal of CWP No.11469 of 2007 as infructuous on 17.10.2019 did not confer any right of regularization upon the petitioner, as the said petition was rendered infructuous on account of retirement/death of the concerned parties and there was no adjudication granting regular status. According to the respondents, the petitioner's service thus remained contractual throughout and the benefits claimed by him were rightly rejected.

Learned State counsel further submits that the claim for counting the period of service rendered with PUNWAC towards pensionary benefits is misconceived, as pension can be granted only in accordance with the applicable Punjab Civil Services Rules and the petitioner did not hold a qualifying Government service post during the relevant period. Reliance is accordingly placed upon Rules 6.10-A and 6.16-AA of the Punjab Civil Services Rules, Vol. II. It is contended that a contractual employee is not entitled to pensionary benefits or the regular pay scale merely by virtue of having continued in service for a long period.

Learned counsel appearing for respondent No.5 submits that the Accountant General (Punjab and U.T.) has only an ancillary role in the matter, namely, authorization of pension, gratuity and other retiral benefits on the basis of sanction and recommendation made by the competent pension-sanctioning authority. It is submitted that respondent No.5 has not passed or challenged any order affecting the petitioner's rights and, therefore, no independent cause of action arises against it. Since the petitioner's claim was rejected by respondent No.1 vide order dated 29.04.2021 (Annexure P-17) on the ground that his service was contractual, respondent No.5 has no role in granting the benefits claimed. The writ petition is, therefore, sought to be dismissed qua respondent No.5.

Having considered the rival submissions and the material on record, the principal issue is whether the petitioner’s service after adjustment in the Department of Women and Child Development, including his earlier service with PUNWAC, qualifies for pensionary and other retiral benefits. The petitioner relies upon the order dated 21.07.2008 (Annexure P-6), whereby a regular post of Deputy Director was created and he was adjusted against it. However, his appointment was already under challenge in CWP No.11469 of 2007. By interim order dated 03.07.2008, this Court directed continuation of the petitioner without change in his status. Thereafter, vide order dated 11.09.2008, he was continued on contractual basis. Thus, the order dated 21.07.2008 cannot, by itself, establish an indefeasible right to regular appointment.

The disposal of CWP No.11469 of 2007 as infructuous on 17.10.2019 did not revive the earlier order or confer regular status retrospectively. No final judicial determination was made declaring the petitioner a regular employee or treating his contractual service as regular service.

The judgments relied upon by the petitioner regarding cessation of interim orders, including Sachin Ahlawat and Rana Pratap Singh, do not assist him. Even if the interim order ceased upon disposal of the writ petition, it did not create a substantive right to regular appointment.

Likewise, Didar Singh v. State of Punjab and others, 2015(29) SCT 900, does not automatically entitle the petitioner to count his PUNWAC service. Such entitlement depends upon the nature of appointment, terms of absorption and applicable service rules. No order has been shown treating the petitioner’s entire PUNWAC service as qualifying Government service.

The petitioner retired on 30.06.2018 while his regular status had not been finally recognized. The subsequent disposal of the earlier writ petition in 2019 could not retrospectively alter the nature of his service. Consequently, pensionary benefits cannot be claimed on the basis of an assumed regular status. In these circumstances, reliance by respondent No.1 upon Rules 6.10-A and 6.16-AA of the Punjab Civil Services Rules, Vol. II, cannot be faulted. Mere length of contractual service does not confer a right to regularization or pension in the absence of statutory or governmental recognition.

The earlier stand of the State supporting the petitioner’s continuation also does not amount to a final order of regular appointment. Pleadings or administrative arrangements made during pending litigation cannot confer regular status contrary to the applicable rules.

The plea of discrimination also fails, as the petitioner has not established that the employees with whom parity is claimed were similarly situated regarding absorption, appointment, continuity of service and pension rules. Article 14 cannot be invoked without establishing such parity.

The claim for regular pay scale and consequential arrears is likewise dependent upon proof of regular appointment. Since no such right has been established, the petitioner cannot claim monetary benefits merely because he performed the duties of Deputy Director.

Accordingly, the impugned order dated 29.04.2021 (Annexure P-17), rejecting the petitioner’s claim on the ground that he remained a contractual employee, cannot be termed arbitrary or perverse. No ground is made out for interference under Article 226 of the Constitution of India.

In view of the foregoing discussion, this Court finds no illegality or perversity in the impugned order dated 29.04.2021 (Annexure P-17). The petitioner has failed to establish any enforceable right to regular status, counting of his service with PUNWAC for pensionary purposes, or grant of consequential pay and retiral benefits.

Consequently, the present writ petition is dismissed, being devoid of merit. The impugned order dated 29.04.2021 (Annexure P-17) is upheld.

29.. All pending miscellaneous application(s), if any, also stand disposed of.