- (1.) Whether the work charge service of the respondents can be treated as regular service for the purpose of grant of benefit under the Haryana Civil Services (Assured Career Progression) Rules, 1998 (for short, 'the 1998 Rules') is the question which arises for consideration in these appeals filed against the orders passed by the Division Benches of the Punjab and Haryana High Court.
(2.) The respondents in all the appeals except Civil Appeal No.5544 of 2009, which has been filed by Haryana Urban Development Authority, were engaged as work charge employees in different branches of the Public Works Department of the Government of Haryana between 1966 and 1984. Their conditions of employment were governed by the provisions contained in PWD Code, paragraphs 1.129 and 1.132 of which are reproduced below: 'II-Work-Charged Establishment 1.129. Works establishment will include such establishment as is employed upon the actual execution, as distinct from the general supervision, of a specific work, of or sub-works of a specific project, or upon the subordinate supervision of departmental labour, stores and machinery in connection with such work or sub-works, provided that as an exception to the above, mistries and mates employed in the interests of Government on the technical supervision of contractors work and khalasis attached to subordinates for assisting them on works will be treated a work-charged establishment. When employees borne on the temporary-establishment are employed on work of this nature, their pay should, for the time being be charged direct, to the work. (2) Works establishment does not include Clerks, Draftsman, Subordinate or extra establishment of any kind for the Divisional or Sub-Divisional Offices, such being properly chargeable to Temporary Establishment, but where Dak Runners are employed solely for a particular work of a temporary nature, for a period not exceeding six months, they may be treated as work-charged establishment. (3) The Chief Engineer and Superintending Engineers are empowered to classify as 'Works' or 'Temporary' those classes of establishment about whose correct definition there is doubt, subject to the concurrence of the Audit Officer and to the proviso the general principles for entertainment of such establishment are not infringed. (4) Chief and Superintending Engineer are authorized to waive the rule which requires that works establishments must be employed on a specific work and to determine, in such cases the properties in which the cost of such establishment shall be allocated between the works concerned. Note - As an exception to the general rule, the cost of Khalasis attached to subordinate may be charged to annual maintenance and Repairs and other estimates in such provision for it has been made with the sanction of the Superintending Engineer, or the Chief Engineer, Electricity Branch, as the case may be. (5) The cost of the works establishment must be shown as a separate sub-head of the estimate for a work. (6) All pay bill for work-charged establishment shall be pre-audited by the Divisional Accountant and approved by the Divisional Officer before payment. Before a member of the work-charged establishment, whose services have been dispensed with, is settled up under paragraph 303 of the Pubic Works Account code, the Sub- Divisional Officer should invariably ascertain from the Divisional Office if there are any out standings against the man. (7) Members of the work-charged establishment, other than Road Inspectors, who are engaged on the footing of monthly services will be subject to discharge at 10 days' notice except in the case of serious misconduct or gross inefficiency (when no notice will be given) or on payment of pay for 10 days or for such period up to this extent as may be due to them in lieu of notice. Should they desire to resign will be required to give 10 days notice or forfeit pay for this period or for such period up to this extent as may be due to them in lieu of notice. 1.130 to 1.131 xxx xxx xxx 1.132. A work-charged employee is not entitled to any pension, leave or travelling or other allowances except in the following cases: (i) (a) Short casual leave upto a limit not exceeding 15 days in calendar year, subject to a maximum of 10 days at any one time, on full pay at the discretion of the Sub-Divisional Officer and under ordinary rules for casual leave to ordinary-establishment. This leaves will not be cumulative and will not be given in combination with leave without pay. This leave will be calculated on basis of the calendar year, but where an appointment is made during the course of a year, the amount of leave admissible will be calculated proportionately for the broken period. (b) Holidays to the community for whom a particular day is held sacred, restricted to five days, in a calendar year in the case of each community, the employees concerned being allowed to select the religious festivals on which they would like to enjoy the concession; provided that not more than half of gang employed on roads should be absent at one time. (c) Alternate Sundays not more than half of the establishment to be absent on any one Sunday. The above concessions do not apply to casual labour on daily wages. (ii) At the discretion of the Divisional Officer, actual travelling expenses not exceeding a single railway fare of the class, to which regular Government servants drawing the same pay are entitled, in case of places connected by rail and actual travelling expenses duly supported by original bus tickets, in case in places not connected by rail, for journeys, performed within the Punjab or to a bordering State or settlement in the interest of the work on which he is employed. 'Halting allowance should be allowed to work-charged Establishment at the same rates as are admissible to his counterpart in the regular establishment when a, person spends the night away from his headquarters. No daily allowance will be admissible in case the person returns to his headquarters and does not spend the night out.' (iii) Transfer travelling allowance, i.e., single railway fare or actual travelling including the cost of carriage of personal effects to Road Inspectors, Road Roller Drivers and Fireman, Mistries (including Electric Mistries), Electric Mechanics and employees on the work-charged establishment in the Public Health Circle for themselves and dependent members of their families who are not males of over 18 years of age on the occasion of their transfer in cases of sheer necessity in the public interest, subject to the following conditions: (a) the limits of travelling allowances relating to the cost of carriage of personal effects and the class of railway accommodation admissible to regular Government servants of the same grades are not exceeded; (b) the grant of travelling allowance will be at the discretion of the Divisional Officer; (c) the transfer is from one place to another, except in the case of Road Roller Drivers and Firemen when travelling allowance will only be allowed for transfer from one division to another; (d) the journey performed is in the interest of work on which the man is employed and not as a disciplinary measure. (iv) Wound and other extraordinary pensions and gratuities in certain cases; (v) Grain compensation allowance; (vi) Compensation under Workmen's Compensation Act, 1923 and ex-gratia payment of the amount which would have been statutorily payable if the accident had occurred in British India in respect of accidents which happen to the Punjab Public Works Department employees of the Irrigation and Buildings and Roads Branches in the tracts to which the Act has not yet been-applicable. Note (1) - This rule does not apply to members of the temporary establishment whose pay is charged to works under paragraph 1.131 of this Code. The leave salaries, travelling and other allowances of such establishment are regulated by the rules applicable to temporary establishment. Note (2) - Rules for the recovery of rent from work-charged establishment are contained in paragraph 3.28.'
(3.) With a view to give relief to the employees, who were stagnating on their posts due to non-availability of promotional avenues, the Government of Haryana framed scheme dated 14.5.1991 for grant of additional increments to all Grade 'C' and 'D' employees on completion of 10 and 20 years service. Another scheme was introduced on 7.8.1992 for grant of additional increments to Group 'C' and 'D' employees on completion of 8 and 18 years service. Yet another scheme was introduced by the State Government on 8.2.1994 for grant of higher standard pay scales to Group 'C' and 'D' employees on completion of 10 years or more and 20 years or more regular satisfactory service. After 4 years, the Governor of Haryana framed the 1998 Rules. Rules 1, 3(b), 3(d), 3(e), 3(q), 3(r) and 5 of those rules read as under: '1. Short title, commencement and objective:- (1) These rules may be called the Haryana Civil Services (Assured Career Progression) Rules 1998. (2) They shall be deemed to have come into force on the first day of January, 1996, unless otherwise provided by the Government for any class or category of persons. (3) The objective of these rules is to provide such of Government servants who fall within the scope of these rules, at least two financial upgradations, including the financial upgradation, if any, availed by such Government servants as a consequence of the functional promotion, within the corresponding prescribed period of length of service during his entire career, as may be specified under these rules or by the Government from time to time within these rules, with reference to the functional pay scale of the post on which he joined the Government service as a direct recruited fresh entrant. 3. DEFINITIONS:- In these rules, unless the context otherwise requires- (b) 'direct recruited fresh entrant' with reference to a post or a Government servant means the post on which such Government servant was recruited as a regular and direct recruitee in the Government service and is in continuous employment of Government since such recruitment; (d) 'functional pay scale' in relation to a Government servant means the pay scale which is prescribed for the post held by the Government servant. It does not mean any other pay scale in which the Government servant is drawing his pay as a personal measure to him with any other justification like based on length of service, or on higher/additional qualification or on upgradation of pay scale due to any other reason. (e) 'first assured career progression scale' with reference to- (i) Government servant means the revised scale as mentioned in column 3 of Part I of Schedule I against the name of post(s) in column 2 of Part I of Schedule I, on which the Government servant was recruited as a direct recruited fresh entrant in the Government service, (ii) all other Government servants not covered in sub-clause (i) above but on whom these rules apply, the pay scale as mentioned in column 3 of Part II of Schedule I against the pay scale mentioned in column 2 of Part II of Schedule I, as the corresponding existing scale prescribed for the post against which such Government servant was recruited as a direct recruited fresh entrant in the Government service. Provided that the First Assured Career Progression scale may also be referred to as 1st ACP scale or ACP-I scale. (q) 'second assured career progression scale' with reference to- (i) Government servant means the revised scale as mentioned in column 4 of Part I of schedule I against the name of post(s) in column 2 of part I of schedule I, on which the Government servant was recruited as a direct recruited fresh entrant in the Government service; (ii) all other Government servants not covered in sub-clause (i) above but on whom these rules apply, the pay scale as mentioned in column 4 of Part II of Schedule I against the pay scale mentioned in column 2 of Part II of Schedule I, as the corresponding existing pay scale prescribed for the post against which such Government servant was recruited as a direct recruited fresh entrant in the Government service: Provided that the Second Assured Career Progression Scale may also be referred to as 2nd ACP scale or ACP-II scale. (r) 'standard pay scale' (as it is or with the prefix 'First' or 'Second', as the case may be) with respect to any Government servant means the scale of pay, other than the existing pay-scale prescribed for the post on which such Government servant is working, in which the Government servant was drawing his pay prior to 31.12.1995 and also any pay scale granted to him for the purposes of drawing his pay as 'pay scale as a personal measure to him' as defined under these rules through any other order/notification of the Government or with any other reason; 5. Eligibility for Grant of ACP Scales:- (1) Every Government servant who, after a regular satisfactory service for a minimum period of 10 years, if the minimum period is not otherwise prescribed to be different than 10 years either in these rules or by the Government for any class or categories of Government servant from time to time, has not got any financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995, on which he was recruited as a direct recruited fresh entrant: (a) either as a consequence of his functional promotion in the hierarchy, or (b) as a consequence of the revision of pay scale for the same post, or (c) as a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the First ACP scale with reference to him. (2) Every Government servant who, after a regular satisfactory service for a minimum period of 20 years, if the minimum period is not otherwise prescribed to be different than 20 years either in these rules or by the Government for any class or categories of Government servant from time to time, has not got more than one financial upgradation in terms of grant of a pay scale higher than the functional pay scale prescribed for the post as on 31.12.1995 on which he was recruited as a direct recruited fresh entrant: (a) either as a consequence of his functional promotion in the hierarchy, or (b) as a consequence of the revision of pay scale for the same post, or (c) as a consequence of any other event through which the functional pay scale of the post has been upgraded, with respect to the functional pay scale prescribed for the post as on 31.12.1995, shall for the purposes of drawal of pay, be eligible for placement into the Second ACP scale with reference to him; Provided that grant of ACP scale shall also be considered financial upgradation for the purposes of this rule. Note: For the purposes of these rules, 'regular satisfactory service' would mean continuous service counting towards seniority under Haryana Government, including continuous service in Punjab Government before re-organisation, commencing from the date on which the Government servant joined his service after being recruited through the prescribed procedure or rules etc. for regular recruitment, in the cadre in which he is working at the time of being considered his eligibility for grant of ACP scales under these rules and further fulfilling all the requirements prescribed for determining the suitability of grant of ACP scales. EXPLANATION: The ACP scale upgradation will come into play only if due to functional promotion or upgradation of scale for the same post as specified above, the Government servant has not got the benefit of at least one pay scale upgradation within the prescribed period of 10 years or any other prescribed period for the grant of 1st ACP scale or two such financial upgradations within a period of 20 years or within the period otherwise specified for grant of second ACP scale. If within 10 years of service or within the prescribed period of service for the grant of 1st ACP, the employee has already got at least one financial upgradation or within 20 years of service, as the case may be, or otherwise prescribed period of service for the grant of second ACP scale, the Government servant has already got at least two financial upgradations, benefit of these rules will not be extended to such employees save if otherwise provided in these rules. (3) For determining the eligibility of grant of ACP Scale, following conditions must also be fulfilled by the Government servant: (a) After completing the respective prescribed period for eligibility for the grant of ACP scales the Government servant should be fit to be promoted to the next higher post in the functional hierarchy in his cadre, but could not be functionally promoted due to lack of vacancy in the promotional post in the hierarchy to which he is eligible to be promoted; (b) If such promotion involves test of any departmental post or other test etc. such condition should also be fulfilled by such Government servant. (4) The eligibility for grant of the ACP scales shall further be subject to any other restriction as may be prescribed by the Government from time to time including the restriction of the number of Government servant to be granted the respective ACP scales in terms of percentage of posts in the cadre to which such ACP placements shall be limited; Provided that till the time such restrictions are not imposed by the Government- (a) there shall be no restriction on the number of Government servants to be granted the first or second ACP scales with reference to the Government servants covered in sub-rule (2) of rule 4. (b) for the Government servants covered in sub-rule (1) of rule 4, there shall be no restriction on the number of Government servants for grant of first ACP scale. However, the grant of the second ACP scale for such Government servants as covered in sub-rule (1) of rule 4 shall be limited to 20% of the total posts in the cadre.';