- (1.) This judgment shall dispose of a bunch of three appeals* and two writ petitions*. LPA No. 1619 of 2011 has been filed against the judgment dated 6.12.2010 and LPA Nos. 1589 and 1594 of 2011 have been filed against a common judgment dated 22.3.2011 rendered by the learned Single Judge. A Division Bench disposed of CWP No. 267 of 2008, vide order dated 18.9.2008, in light of the Full Bench judgment of this Court rendered in the case of Kesar Chand v. State of Punjab, Punjab, 1988 94 PunLR 223 and a Division Bench judgment of this Court rendered in the case of Hari Chand v. Bhakra Beas Management Board and others, 2005 2 SCT 95. The order dated 18.9.2008 was challenged by the Municipal Council, Nabha before Hon'ble the Supreme Court in S.L.P. (Civil) No. 26657 of 2009. On 5.5.2011, their Lordships' set aside the order dated 18.9.2008 and remanded the matter back to this Court for decision afresh by observing as under:- " In light of the decision of this Court dated December 10, 2009 in 'Bhakra Beas Management Board through its Chairman and Others vs. Hari Chand' (Civil Appeal No. 8306 of 2009 arising out of SLP (C) No. 8584 of 2005), the impugned order is set aside and the writ petition filed by the respondent-employee is remitted for a fresh consideration of his claim for taking into account the period of service rendered by him on daily wages for computing the qualifying service for pension in light of Rule 3.17A of the Punjab Civil Services Rules. In the impugned judgment, reliance is placed on a Full Bench decision of the Punjab and Haryana High Court in Kesar Chand vs. State of Punjab, 1988 94 PunLR 223, and on a Division Bench decision in 'Hari Chand vs. Bhakra Beas Management Board and Others, 2005 2 SCT 95' following the decision in Kesar Chand . This Court in Bhakra Beas Management Board set arise the decision in Hari Chand and remitted the case of Hari Chand to the High Court. In Bhakra Beas Management Board, this Court pointed out that the Full Bench decision of the High Court in Kesar Chand was rendered under Rule 3.17 and not under Rule 3.17A of the Punjab Civil Services Rules. The High Court shall now consider the case of the respondent-employee in light of Rule 3.17A. Since, it is a pensionary matter, this court hopes and expects that the High Court shall pass the final order in the matter without any undue delay and preferably within four months from the date of receipt/production of a copy of this order." The special leave petition is disposed of."
(2.) In the other petition, namely, CWP No. 484 of 2004 challenge has been made to clause 3.17-A(1)(iii) of the Punjab Civil Services Rules Vol. II Part-I being ultra vires Articles 14 and 16(1) of the Constitution because the period from 1.7.1987 till his regularisation vide order dated 7.3.2002, during which the petitioner rendered the service on daily wage basis has not been counted for pensionary benefits. The aforementioned writ petition has been ordered to be listed along with CWP No. 267 of 2008, vide order dated 6.9.2011, passed by the learned Single Judge.
(3.) It is also apposite to read order dated 10.12.2009, passed by Hon'ble the Supreme Court in the case of Bhakra Beas Management Board through its Chairman and others v. Hari Chand (Civil Appeal No. 8306 of 2009, 2009, which is as under: "1. Leave granted. 2. The Bhakra Beas Management Board has come against the Judgment and order passed by the High Court of Punjab and Haryana, whereby the respondent has been held entitled to the pensionary benefits on the basis of the service that he has rendered as a daily rated employee. It as an admitted position that if that service is not counted, then the employee would not be entitled to pension since his qualifying service in that case would be lesser than ten years which is minimum qualifying service under the Rules. While allowing the writ petition, the Punjab and Haryana High Court had relied on the Full Bench Judgment in Kesar Chand vs. State of Punjab, 1988 AIR(P&H) 265. We have carefully considered that Judgment. However, in that Judgment Rule 3.17 of the Punjab Civil Services Rules is considered and sub rule (ii) of Rule 3.17 is held as unconstitutional and has been struck off. Mr. Dhruv Mehta, learned counsel for the appellant argues that besides Rule 3.17 there is a specific Rule 3.17-A and subsequent code of sub-rule which runs as under. 3. 3.17-A(1) Subject to the provision of Rule 4.23 and other rules are except in the cases mentioned below, all service rendered on establishment, interrupted or continuous, shall count as qualifying service. 4. Our attention was drawn through (i) Service rendered in work-charged establishment. 5. Further sub-rule (iii) provides casual or daily rated service. 6. From this learned counsel submits that even if the Judgment rendered in Kesar Chand's case is held to be a correct law, it would only help the work-charged establishment employee but it may not be helpful to the casual or daily rated employee. He points out that respondent in that case was not a daily rated employee, but a work charged employee. He further submits that this question has not been considered by the High Court. Our attention was invited to the fact that though these rules have been adopted now by the State of Haryana and State of Haryana has also amended Rule 3.17-A(iii) by deleting the words "daily rated service" therefrom. Such amendment has not been effected in Punjab and the Rule continues as it was. Our attention was also invited to the Government instructions: 1. Ad-hod service is countable towards pensionary benefits subject to the conditions that - (i) such service is followed by regular employment (ii) interruption falls within condonable limit (iii) service shall be full time (iv) recruitment should be through prescribed channel (v) employment against a regular vacancy (vi) condition for eligibility should be fulfilled. {Letter dated 26/10/95 (See Page No. 890)} 7. Learned counsel points out that those questions have not been considered by the High Court which has merely proceeded on the basis of law laid down in Kesar Chand vs. State of Punjab . In spite of the repeated calls, nobody appears on the other side to dispute those questions. Threfore, we have seen the counter filed by the respondent. The counter does not take the case of the respondent any further. We are, therefore, of the opinion that this case should be remanded for reconsideration to the High Court in the light of the observations made by us, but without being influenced by any of the observations made by us. 8. The High Court is requested to go into the Rules as well as the amendments afresh and decide the questions involved. Since the question relates to the employees who are old and retired, the High Court shall give fresh notice to the parties and dispose of the matters within a period of six months from the date of communication of this order. The appeal is disposed of. No costs.";