STATE OF PUNJAB Vs. MEHANGA RAM

JUDGEMENT

(1.) THIS judgment will dispose of Letters Patent Appeals No. 510, 633, 740 to 755, 778, 779 and 780 of 1986 and Civil Writ Petitions No. 2389, 4122, 4941 and 5034 of 1986, and 208, 490, 2505 and 3892 of 1987 and 1787 of 1988. Letters Patent Appeals No. 510 and 740 to ,755 of 1986 have been preferred by the State against the judgment of the learned Single Judge dated May 30,1986 whereby a writ of mandamus was issued to implement the policy decision adopted in the meeting dated December 17 1974 appended as Annexure P. 2 to the Civil Writ Petition No. 718 of 1986. Letters Patent Appeals No. 633, 778, 779 and 780 of 1986 have been preferred by the workers against the same judgment of the learned Single Judge whereby their writ petitions were dismissed. The other civil writ petitions have been filed by the workers for issuance of writ of mandamus to implement the policy decision adopted in the meeting dated December 17, 1974. The pleadings in all these appeals and the petitions are substantially on the same pattern. We have treated Civil Writ Petition No. 718 of 1986 as the main writ petition. Therefore, for the sake of convenience, we will refer to the pleadings and the Annexures in Civil Writ Petition No. 718 of 1986 and whatever we say in regard to this writ petition (L. P. A. No. 740 of 1986) would apply to all other appeals and writ petitions.

(2.) THE writ petitioners were working in various capacities in the Anandpur Sahib Hydel Project. They were appointed as work charged employees. A policy decision was taken which was incorporated in the Minutes of the Meeting held on December 17, 1974 (Annexure P. 2 ). It was decided in the meeting that the work-charged employees in all three branches of the Public Works Department who have completed five years' service or more and are working against the Government Posts of regular nature of maintenance works should be made regular. The decision was to take effect with effect from April 1, 1975 Communications were addressed by the Chief Engineer, Irrigation Works, Punjab to all the Superintending Engineers conveying to regularise the services of work charged employees who completed five years' service as work-charged employee on government post of regular nature. On February 9, 1984, a meeting was held between the chairman of Punjab State Electricity Board, Chief Engineer and the representatives of the Workers in which it is stated that the Chairman of the Punjab State Electricity Board gave an assurance that no worker is to be retrenched from Anandpur Sahib Hydel Project and on the completion of this Project, the surplus workers will be transferred to Mukerian Hydel Project On the completion of Anandpur Sahib Hydel Project. Nargal, various categories of staff became sub plus and their services were terminated giving rise to this writ petition. The writ petitioners maintained that in view of the policy decision taken in the meeting presided over by the Finance Minister, Punjab, held on December 17, 1974 and subsequent communications addressed by the Chief Engineer to the Superintending Engineers, their services ought to be regularised and the termination is without any legal sanction. The State in its reply inter alia pleaded that no termination notice has been issued to any workman working on the Anandpur Sahib Hydel Project with effect from 27-2-1986 including the writ petitioners. The writ petitioners were engaged on Aanandpur Sahib Hydel Project on purely temporary basis as work-charged employees. The Project was completed in January, 1985 and services of surplus work charged employees were no longer required. Their services were terminable as per Rule 20 (1) read with Rule 3 (a) of the certified standing orders for work-charged staff on Anandpur Sahib Hydel Project on the completion of the Project. The services of the writ petitioners are regulated by the certified standing orders for work-charged staff. The policy decision adopted in the meeting held on December 17,1974 is not applicable to the writ petitioners since they were not engaged as work-charged employees against the government posts of regular nature of maintenance Works in any of the three branches of the Public Works Department The other communications addressed by the Chief Engineer to the Superintending Engineers are also not applicable to the writ petitioners. The learned Single Judge issued the following directions : " (1) to abide by the Government policy decision adopted in the meeting dated 17-12 -1974 presided over by the Finance Minister, Punjab Annexure P-2, and treat the service of the petitioners as on regular basis with effect from 1st of April of the particular year following the date on which each of the petitioners completed continuous service of five years on the post that he is holding; (ii) to work out seniority list of all the employees holding posts on work charge basis who are made regular as directed above for the entire department of Public Works, Irrigation, Branch and to absorb them on maintenance jobs on completion of the project concerned on the basis of the seniority. (iii) after such absorption, to transfer employees. who are found surplus to other projects which are in progress against existing vacancies or against posts manned by those who are junior to them i e. whose continuous length of service is less; (iv) to treat the service of those employees who are transferred to other projects as continous to make it more explict, the service rendered by them on the Anandpur Hydel Project shall count towards pay, seniority and other admissible benefit as regular employees (v) Only those employees who stand junior most in the overall seniority of the Punjab P W. D. Irrigation Branch, shall be retrenched from No. 1804 of 1986 and the petitioners in C. W. P. Nos 896, 1354, 1489, 1781 and 1888 of 1985 have admittedly less than five years service to their credit. As such no relief can be granted to them. " 2. The learned Single Judge understood the Minutes of the Meeting as policy decision enforceable under Article 226 of the Constitution of India by issuance of a writ of mandamus. The learned Single Judge was of the opinion that the executive instructions of the Government, in the absence of statutory rules could be enforced by way of writ petition and he relied upon two decisions namely Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. , 1975 S. L. J. 220. and Union of India v. K. P. , Joseph, and Ors. , 1973 (1) S. L. R. 910. In Dr. Amarjit Singh Ahluwalia's case (supra); the Supreme Court has only held that in the absence of statutory rules, regulating recruitment or conditions of service, the State Government can in the executive power issue administrative instructions providing for recruitment and laying down conditions of service; In K. P. Joseph's case (supra), the Government of India, Ministry of Defence, issued a general order providing for certain benefits to ex-military personnel on re-employment on basis of their length of actual military service. The Apex Court observed that the benefits accruing to ex military personnel on re-employment relates to conditions of service of the employees and could be enforced.

(3.) IT is difficult to appreciate how the ratio of these two judgments is applicable to the present case. Article 162 of the Constitution provides that executive power of a State "shall extend to the matters with respect to which the legislature of the State has the power to make laws". This article merely indicates the scope of executive power of the State; it does not confer any Rule making power on the State Government. The State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under this authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor This matter came up for consideration before the Apex Court in a judgment G. J. Fernandez v. State of Mysore, A, I. R. (1967) S. C. 1753. under the following circumstances "'tenders were called for construction of right bank masonry dam called 'hidkal Dam' by the Public Works Department, Irrigation Projects, of the State of Mysore G. J. Fernandez also submitted his tender to the Chief Engineer of the Department. Respondent No. 3 before the Apex Court was another tenderer. The contract was granted by the Major Irrigation Projects Control Board to respondent No. 3. The appellant G. J. Fernandez challenged the grant of contract to respondent No. 3 on two grounds, namely (1) that the rules in the Mysore Public Works Department Cede were no followed; and (2) that there was unequal treatment between the various tenderers which was in Violation of Article 14 of the Constitution. "