PUNJAB STATE ELECTRICITY BOARD & ANR.versusNARATA SINGH & ANR.

                     [2010] 3 S.C.R. 27


      PUNJAB STATE ELECTRICITY BOARD & ANR.                     A
                              v.
                  NARATA SINGH & ANR.
              (Civil Appeal No. 2384 of 2007)

                    FEBRUARY 23, 2010
                                                                B
   [J.M. PANCHAL AND K.S. RADHAKRISHNAN, JJ.]

     Service Law:

     Punjab Civil Services Rules - Rule 3. 17(ii) - Employee c
working on different departments and projects of State
Government on work-charged basis - Superannuated from the
service under Electricity Board, where initially employed on
work-charged basis and later regularized - Demanding
pensionary benefits after taking into account the entire service 0
rendered by him on work-charged basis under the State
Government - Held: The entire service rendered by the
employee was qualified for grant of pension under the rules
- Policy decision of the Board indicates that the benefit of
policy decision of the State Government whereby liability of E
pension was allocated in respect of temporary service
rendered under the State Government, was to be available to
an employee of the Board.

     Responaent No. 1 worked with Irrigation and Power
Department of the State of Punjab on work-charged basis F
for a period of about 1 % years. Thereafter he worked as
work-charged employee with the Bhakra Dam Project.
Resigning therefrom he joined the Beas Dam Project and
worked at the said project as work-charged employee. He
was retrenched from the project on payment of G
retrenchment compensation. Thereafter he was
employed on work-charged basis as a fresh appointee
with appellant- Electricity Board. Later, he was
regularized. He retired on attaining the age of
                             27                                 H
    28     SUPREME COURT REPORTS              [2010] 3 S.C.R.


A   superannuation. He moved a representation requesting
    the Board to grant him pension and other retiral benefits
    after taking into account the entire. service rendered by
    him on work-charged basis under the State Government.
    The representation was rejected by the Board .. Thereupon
B   he filed writ petition. The High Court allowed the writ
    petition, directing the Board to include work-charged
    service rendered by him with the State, for the purpose
    of determining qualifying service for grant of pension.
    The Board had thereafter issued a Finance .Circular No.
c   24/92 dated 29.5.1992 deciding to include the period of
    work-charged service of an employee with the Board for
    the purpose of grant of pensionary benefits as well as for
    counting the said period for determining qualifying
    service for grant of pension. Respondent No. 1 filed
    Special Leave Petition against the order of High Court.
0
    The Supreme Court remitted the matter to High Court for
    reconsidering the matter. On remand, Single Judge of
    High Court dismissed the petition. In writ appeal
    respondent No. 1 filed applications for bringing on record
    certain documents in support of his claim. Division
E   Benc.h directed the Board to consider the case of
    respondent No. 1 in the light of the new documents. The
    Board after reconsidering the matter rejected the claim
    on the ground that the claim of respondent No. 1 was not
    covered by Regulation Circular No .. 54 of 1985 bearing
F   Memo No. 257861/REG. 6/Vol. 5 dated 25.11.1985
    because he had rendered service in the work-charged
    capacity outside the Board which service was non-
    pensionable so far as the State Government was
    concerned. The Division Bench. after considering the
G   order of the Board as well as Rule 3.17 (ii) of the Punjab
    Civil Services Rules and a decision of High Court in
    Kesar Chand's case concluded that the Rule which
    excluded the counting of work-charged service, which
    were regularised subsequently, was bad in law and,
H   therefore, the case of respondent No. 1 was not covered
   PUNJAB STATE ELECTRICITY BOARD & ANR. v.            29
            . NARATA SINGH & ANR.
by Circular No. 54 of 1985. Thus the Division Bench         A
allowed the claim of respondent No. 1.

    The ques~ion for consideration before this Court was
whether the work-charged service rendered by
respondent No. 1 under the State Government prior to        8
securing employment with the Board, would qualify for
grant of pension under the Punjab Civil Services Rules.

    Dismissing the appeal, the Court

      HELD: 1. By Memo dated 25.11.1985, the Board c
 adopted letter dated 20.5.1982 of the Department of
 Finance, Government of Punjab, in order to allocate
 liability of pension in respect of temporary service
 rendered under the State Government. A bare glance at
 letter dated 20.5.1982 makes it very clear that allocation 0
 of pensionary liability in respect of temporary service
 rendered under the Government of India and the State
 Government was agreed upon on certain conditions
 being fulfilled, one of which was that the period of
 temporary service rendered under the Central/State E
Government should be such which could be .taken into
consideration for determining qualifying service for grant
of pension under the Rules of respective Government. In
order to determine whether work-charged service
rendered by respondent No.1 under the State
Government could have been taken into consideration F
for the purpose· of calculating qualifying service, one has
to refer to definition of "temporary post" as defined in
Punjab Civil Services Rules and not to the Rule referred
to by the Board. [Para 5] [41-H; 42-A-C]
                                                             G
      2. The decision of High Court in Kesar Chand's case
that Rule 3.17(ii) of the Punjab Civil Services Rules was
violative of Article 14 of the Constitution of India was not
disturbed by Supreme Court. The distinction made
between an employee who was in temporary or officiating H
        ,. ,.,.
    30      SUPREME COURT REPORTS              [2010] 3 S.C.R.


A   service and who was in work-charged service as
    mentioned in Rule 3.17(ii) disappeared when the said rule
    was struck down. The effect was that an employee
    holding substantively a permanent post on the date of his
    retirement was entitled to count in full a·s qualifying
B   service the periods of service in work -charged
    establishments. In view of this settled position, there is
    no manner of doubt that the work-charged service
    rendered by the respondent No.1 under the Government
    of Punjab was qualified for grant of pension under the
c   rules of Government of Punjab and, therefore, the Board
    was not correct in rejecting the claim of the respondent
    for inclusion of period of work-charged service rendered
    by him with the State Government for grant of pension,
    on the ground that service rendered by him in the work-
D   charged capacity outside the Board and in the
    departments of the State Government was a non-
    pensionable service. [Para 5] [42-G-H; 43-A-B]

         Kesar Chand vs. State of Punjab and Ors. 1988 (5) SLR
    27, affirmed.
E
         3. The apprehension that acceptance of the case of
    respondent No.1 would result into conferring a status on
    them as that of employees of the State of Punjab has no
    factual basis. The Board, on its own free volition, had
p   issued letter adopting the policy of the State Government.
    Merely because the employees of the Board like
    respondent No.1 are entitled to count period of duty
    performed by them as work-charged employees in the
    State Government for the purposes of pension etc., it
G   would not be proper to conclude that they became the
    employees of the State of Punjab. In fact, having larger
    interest of the employees, the Board had decided to adopt
    the policy decision of the State Government which can
    never be termed as arbitrary or irrational. [Para 6] [43-F-
    H; 44-A-C]
H
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.              31
            NARATA SINGH & ANR.
     4. It is not correct to say that the two Circulars, A
namely, one dated March 31, 1982 and another dated May
20, 1982 cover only the employees of the State~
Government and the Central Government and that the
Board, which is a distinct legal entity from the State of
Punjab, is not covered by the same. The effect of B
adoption of the two Circulars, i.e., one of the Central
Government and another of the State Government is that
a work-charged employee who has rendered services
either. under the Central Government or the State
Government would be entitled to count the period of c
service so rendered by him for the purpose of claiming
pensionary benefits as an employee of the Board. [Para
7] (43-F-H; 44-A-C]

     5. It is wrong to say that adoption of Circulars by the
Board does not create a reciprocal arrangement between D
the Board and the State of Punjab and/or Central
Government. The language of the three Circulars is clear
and unambiguous and, therefore, those Circulars will
have to be interpreted plainly. The conjoint and
meaningful reading of the two Circulars dated March 31, E
1982 and May 20, 1982 with Circular dated November 25,
1985 of the Board unequivocally and clearly creates an
arrangement between the Central Government, State
Government and the Board under which an employee of
the Board who had earlier occasion to render service as F
a work -charged employee either in the Central
Government or in the State Government would be entitled
to count the period of service so rendered, when the
question arises as to whether he has put in qualifying
service for grant of pension by the Board arises. [Para .G
8] [44-G-H; 45-A-C]

    6. It is not correct to say that the respondent No.1 is
already given the benefit of his previous service rendered
as work-charged employee under the Board while
                                                              H
         32      SUPREME COURT REPORTS              [2010] 3 S.C.R.


    .A   counting qualifying service for the purpose of pension
         and would not be entitled to benefit of Memo dated
         November 25, 1985 adopting policy decisions of the
         Government of Punjab because the same was
         subsequently cancelled. It is true that the policy decision
    B    mehtioned in Memo dated t:4ovember 25, 1985 was
         rescinded by the Board in th.e year 2004. However, the
-        Resolution of the year 2004 does not indicate at all, that
         it is retrospective in nature nor it is the case of the
         appellants that the Resolution of the year 2004 has
    c    retrospective effect. Therefore, on the basis of the
         Resolution of the year 2004, the respondent No.1 cannot
         be denied the benefit of counting of previous service
         rendered by him as work-charged employee under the
         Government of Punjab for the purpose of determining
         qualifying service under the Board for grant of pension.
    0
         [Para 10] [44-G-H; 45-A-C]

              7. The policy decision of the Board indicates that the
         benefit of policy decision of the State Government was
         to be available to an employee of the Board w.e.f. March
    E    31, 1982. A conjoint and meaningf~I reading of the Memo
         dated November 25, 1985 issued by the Board and the
         policy decision of the State Government as reflected in
         letter dated May 20, 1982 of the ,Department of Finance
         makes it more than clear that the benefit would be
    F    admissible -fo one who having been retrenched from the
         service of the State Government, secured on his own,
         employment under the Board either with or without
         interruption between the date of retrenchment and date
         of new appointment. There is no manner of doubt that
    G    respondent No.1 was retrenched from the service of the
         State Government. The record shows that on his own,
         respondent No.1 secured. employment under the Board
         with interruption between the date of retrenchment and
         date of new appointment. Therefore, it is wrong to say
    H    that respondent No.1 having joined service of the Board
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.              33
            NARA"T:A SINGH & ANR.

after a lapse of more than four years from the date on        A
which he was retrenched by the State Government would
not be entitled to the benefit of the Memo dated November
25, 1985. [Para 11) [46-0-H; 47-A-B]

    8. It is true that the documents which were sought        8
to be relied upon at the appellate stage were not
produced by respondent No.1 before the Single Judge
who had decided the writ petition filed by him. However,
there is no manner of doubt that those documents were
brought on record by filing applications which were           C
allowed. The order allowing the applications was never
challenged by the appellants before the higher forum. The
appellants, by their conduct, had permitted the said order
to attain finality. The appellants were given sufficient
opportunity to meet with the case of respondent No.1
based on new documents. The existence of the                  D
documents relied upon by respondent No.1 at the
appellate stage was never disputed by the appellants. On
the facts and in the circumstances of the case,
consideration of new documents by the Court does not
have any vitiating effect on the ultimate decision of the     E
Court. [Para 12) [47-C-H; 48-A]
     9. It is not correct to say that the High Court
judgment should not be construed to mean as giving
direction to the appellant to.· include previous service      F
rendered by respondent No. 1 as work-charged employee
of the State Government, as the High Court has
expressed the opinion that the work-charged service of
the appellant with the Board must be counted for
determining qualifying service for the purpose of             G
pension. The reference to Rule 3.17(ii) of the Punjab Civil
Services Rules as well as the decision in Kesar Chand's
case and the order passed by the Board rejecting the
claim of respondent No.1 makes it abundantly clear that
the High Court has directed the appellants to count the       H
-
        34      SUPREME COURT REPORTS                [2010] 3 S.C.R.


    A period of service rendered by respondent No.1 in work-
      c ha rg ed capacity with the State Government for
      determining qualifying service for the purpose of pension.
      Further, respondent No.1 has been directed to deposit the
      amount of Employee's Contributory Fund which he had
    B received from the appellants along with interest as per the
      directions of the Board before the pension is released to
      him. All these directions indicate that the High Court had
      come to the conclusion that the period of service
      rendered by respondent No.1 in work-charged capacity
    c under the State Government should be taken into
      consideration for determining qualifying service for the
      purpose of pension. Non-mention of such direction in the
      impugned judgment is merely a slip and the appellants
      cannot derive any advantage from this. [Para 13) [48-8-
    D HJ
                             Case Law Reference:
             1988 (5) SLR 27         Affirmed.            Para 5
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2384
    E of 2007.

            From the Judgment & Order dated 25.01.2006 of the High
        Court of Punjab and Haryana at Chandigarh in LP.A. No. 674
        of 1995 in C.W.P. No. 10911of1991.
    F
              Satinder Gulati, Kamaldeep Gulati and Dr. Kailash Chand
        for the Appellants.

          P.S. Patwalia, Aman Preet Singh Rahi, K.G. Bhagat, Ajay,
      Tushar Bakshi, Saswat Acharya and Debasis Misra for the
    G Respondents.

             The Judgment of the Court was delivered by

             J.M. PANCHAL, J. 1. This appeal by special leave is
    H
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.                  35
    NARATA SINGH & ANR. [J.M. PANCHAL, J.]
directed against judgment dated January 25, 2006 by the           A
Division Bench of the High Court of Punjab and Haryana at
Chandigarh in LPA No.694 of 1995 by which the appellants
have been directed to count previous service rendered by
respondent No.1, Narata Singh, in the Departments of Punjab
State as work charged employee for the purpose of determining     B
qualifying service for pension payable to him as an employee
of the Punjab State Electricity Board (for short, the 'Board').

      2. The admitted facts which emerge from the record of the
case are as under: The respondent No.1 worked with Irrigation
and Power Department of the State of Punjab on work charged C
basis from February 1, 1952 to September 18, 1953. From
September 25, 1953, he worked as work charged employee
with the Bhakra Dam Project and resigned therefrom on January
27, 1962. He thereafter joined the Beas Dam Project on
February 1, 1962 and worked at the said project till April 15, D
1978 as work charged employee. He was retrenched from the
said project with effect from April 15, 1978 and was paid
retrenchment compensation of Rs.11,803.20 and gratuity of
Rs.8559/- by the competent authority of the project. Bhakra
Dam Project and Beas Dam Project are under the Department E
of Irrigation and Power, State of Punjab and, thus, even as per
the appellants, the services rendered by the respondent No.1
as work charged employee in the two projects was, in fact,
service under the State of Punjab.
                                                                  F
     The appellant No. 1, i.e., Punjab State Electricity Board is
a statutory body constituted under Section 5 of the Electricity
(Supply) Act, 1948. The respondent No.1 was employed on work
charged basis as a special foreman by the Board as a fresh
appointee. He worked in the same capacity from August 6, G
1982 to January 5, 1984. With effect from January 6, 1984, he
was appointed on regular basis. He retired from the service of
the Board with effect from July 31, 1990 on attaining the age
of superannuation. The respondent No.1 thereafter moved a
representation requesting the Board to grant him pension and
                                                                  H
    36      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A  other retiral benefits after taking into account the entire service
   rendered by him on work charged basis under the State
   Government. By an order dated January 25, 1991, the
   respondent No.1 was paid a sum of Rs.29,250/- being the
   amount payable to him as death-cum- retirement gratuity. The
B relevant regulation framed by the Board provides that an
   employee who has served for a minimum period of qualifying
   service of 10 years would\ be entitled
                                       .
                                             to pension. The claim of
   the Board is that the respondent No.1 had served the Board
   for 7 years, 11 months and 25 days including the work charged
C service in the Board and was, therefore, not qualified for grant
   of pension. The claim of the respondent No.1 was that service
   rendered by him in the State of Punjab as work charged
   employee should be counted for determining qualifying service
   for the purpose of pension. Therefore, he instituted C.W.P.
   No.10911 of 1991 before the High Court of Punjab and
D Haryana seeking inclusion of work charged service for the
 · purpose of determining qualifying service. A Division Bench
   of the Punjab and Haryana High Court at Chandigarh, vide
   order dated January 28, 1992, allowed the writ petition of the
   respondent No.1 and directed the Board to include work
E charged service rendered by the respondent No.1 with the
   State of Punjab for the purpose of determining qualifying
   service for grant of.pension to him. It may be mentioned that
   the Board had issued a Finance Circular No.24/92 dated May
   29, 1992 deciding to include the period of work charged
F service of an employee with the Board for the purpose of grant
   of pensionary benefits as well as for counting the said period
   for determining qualifying service for grant of pension.

        Feeling aggrieved by the said decision, the appellants
G filed special leave petition (C) No.7515 of 1992 before this
  Court. The said petition was allowed by an order dated October
  12, 1992 in the following terms :

         "Special Leave granted.

H        Heard counsel on both sides. The question which is
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.                37
    NARATA SINGH & ANR. [J.M. PANCHAL, J.]

      required to be considered is in regard to the service A
      rendered by the respondent No.1 Narata Singh with the
      Bhakra Management Board and later the Beas
      Management Board. The question to be considered is
      whether that service was regulated by the Contributory
      Provident Fund Scheme and Gratuity Scheme and whether B
      the respondent No.1 had already taken benefit thereof. If
      so, the effect of that benefit received by the respondent
      No.1 would have to be considered. It appears that the
    · matter had not been considered from that angle by the High
      Court. We, therefore, set aside the impugned order of the C
      High Court and remit the matter to the High Court for
      reconsideration on merit. The appeal is disposed of
      accordingly. There will be no order as to costs.

                                         Sd/- (A.M. Ahmadi)    D

                                         Sd/- (M.M. Punchhi)

    October 12, 1992

    New Delhi."
                                                               E
      After remand, the case was heard by a learned Single
Judge of Punjab and Haryana High Court. The learned Single
Judge by order dated March, 10, 1995 dismissed the petition
filed by the respondent No.1. Thereupon the respondent No.1
challenged the said judgment by filing a Letters Patent Appeal F
No.674 of 1995. During the pendency of the appeal,
respondent No.1 filed an application on August 27, 2004 under
Section 151 of the Code of Civil Procedure for bringing on
record certain documents in support of his claim that service
rendered by him in the State of Punjab should be taken into G
consideration for the purpose of determining qualifying service
rendered by him in the Board. The record further shows that
he filed another application for bringing on record certain
documents in support of his claim. The Division Bench of the
High Court noticed that those documents were neither H
-
        38       SUPREME COURT REPORTS                   [2010] 3 S.C.R.


    A    considered by the learned Single Judge nor by the Board and,
        therefore, the Division Bench, by an order dated August 24,
         2005, directed the Board to consider the case of the
         respondent No.1 for the grant of pensionary benefits, in the light
        of new documents filed in the appeal within four months from
    B   the date of the order. After passing the said order, the hearing
        of the appeal was adjourned. Pursuant to the directions given
        by the High Court, the Board reconsidered the case of the
        respondent No.1 for grant of pensionary benefits in the light of
        the documents produced by him on the record of the appeal
    c   and rejected the said claim by a speaking order dated
         November 16, 2005. The order passed by the Board was
        produced before the Court hearing LPA No.674 of 1995. The
        main ground on which the claim of the respondent No.1 for grant
        of pensionary benefits in the light of the new documents was
    D   rejected was that the case of the respondent No.1 was not
        covered by Regulation Circular No.54 of 1985 bearing Memo
        No.257861/REG.6Nol.5 dated November 25, 1985 because
        he had rendered service in the work charged capacity outside
        the Board, i.e., in the Departments of the State Government,
        namely, Bhakra Management Board and Beas Management
    E   Board and that the said service was a non-pensionable service
        so far as the State Government was concerned. The Division
        Bench considered the order dated November 16, 2005 passed
        by the Board rejecting the claim of the respondent No.1 as well
        as Rule 3.17(ii) of the Punjab Civil Services Rules and the Full
    F   Bench decision of the Punjab and Haryana High Court
        rendered in Kesar Chand vs. State of Punjab & Ors. [1988 (5)
        SLR 27]. The Division Bench noticed that the Full Bench of the
        Punjab and Haryana High Court had struck down Rule 3.17 (ii)
        of the Punjab Civil Services Rules which, inter alia, provided
    G   that period of service in work charged establishments shall not
        be counted as qualifying service. After noticing the ratio laid
        down by the Full Bench, the Division Bench concluded that Rule
        which excluded the counting of work charged service of an
        employee whose services were regularized subsequently was
    H   bad in law and, therefore, the conclusion of the Board that the
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.                    39
    NARATA SINGH & ANR. [J.M. PANCHAL, J.]
case of the respondent No.1 was not. covered by Circular dated      A
November 25, 1985 because services rendered by him as work
charged employee in the departments of the State Government
was non-pensionable service so far as the Government of
Punjab was concerned, was wrong. In view of the said
conclusion, the Division Bench by the impugned judgment has         B
allowed the claim of the respondent No.1 to include work
charged service rendered by him with the State of Punjab for
grant of pension and directed the Board to count the said
period for determining qualifying service for the purpose of
pension, giving rise to the instant appeal.                         c
      3. This Court has heard the learned counsel for the parties
 at length and in great detail. This Court has also considered
the documents forming part of the appeal. The argument that
the respondent No.1 had served the Board for 7 years, 11
months and 25 days and was, therefore, not qualified for grant      D
of pension as· he had not put in minimum qualifying service of
 10 years, is devoid of merits. It is true that the Board is a
statutory body constituted under Section 5 of the Electricity
(Supply) Act, 1948 and entitled to make regulations in exercise
of power conferred by Section 79 of the said Act. It is also true   E
that the regulation relating to pension requires that an employee
of the Board must serve for a minimum period of 1O years so
as to claim pensionary benefits and that the total service of the
respondent No.1 with the Board is of 7 years, 11 months and
25 days. However, the claim made by the respondent No.1 that        F
previous service rendered by him in work charged capacity with
the State Government should be taken into consideration for
the purpose of determining qualifying service for grant of
pension is rightly upheld by High Court. It is relevant to notice
that there were many cases where employees who had                  G
rendered temporary service under the State Government were
retrenched but later on had secured employment under the
Central Government and claimed pensionary benefits from the
Central Government wherefrom eventually they had retired.
There were also cases where employees who had rendered              H
     40      SUPREME COURT REPORTS                    [2010] 3 S.C.R.


 A    temporary service under the Central Government had secured
      employment under the State Government and were claiming
       pensionary benefits from the State Government wherefrom
      eventually they had retired. Therefore, the question of allocation
      of pensionary liability in respect of temporary service rendered
  B under the Government of India and State Governments was
       considered by the Central Government. The Central
       Government consulted the State Governments and it was
       decided that as proportionate pensionary liability in respect of
      temporary service rendered under the Central Government or
  c the State Governments to the extent of such service could have
      qualified for grant of pension under the Rules of the respective
      Government, will be shared by the governments concerned on
      a service share basis, so that the Government servants are
      allowed the benefit of counting their qualifying service both
  D under the Central Government and the State Governments for
      grant of pension by the Government from where they eventually
      retire. This decision was reflected in letter dated March 31,
       1982 addressed by the Under Secretary to Government of
      India to the Secretary to Government of all the States Finance
      Department (except Government of Jammu and Kashmir and
  E Nagaland). The abovementioned policy decision taken by the
      Central Government was considered by the finance Department
   .· of Government of Punjab. It was decided by the Government
··    of Punjab that proportionate pensionary liability in respect of
      temporary service rendered under the Central Government/
  F State Government to the extent such service could have
      qualified for grant of pension under the rules of respective
      Government will be shared by the Government concerned on
      a service share basis, so that the Government servants are
      allowed the benefit of counting their qualifying service both
 G under the Central Government and the State Government for
      grant of pension by the Government from where they eventually
      retire. This policy decision taken by the Government of Punjab
      is reflected in a letter dated May 20, 1982 addressed to all the
      Heads of Departments, Registrar, Punjab and Haryana High
  H Court, Commissioner of Divisions, District and Sessions Judge
   PUNJAB STATE ELECTRICITY BOARD & ANR. v.                    41
     NARATA SINGH & ANR. [J.M. PANCHAL, J.]
and Deputy Commissioners in the State. The abovementioned            A
policy decisions taken by the Central Government and the
Government of Punjab were taken into consideration by the
Board which issued a Memo dated November 25, 1985 with
reference to the subject of allocation of pensionary liability in
respect of temporary service rendered in the Government of           B
India and State Government and adopted the policy decision
reflected in the letter dated May 20, 1982 of the Government
of Punjab, with effect from March, 31, 1982 as per the
instructions and conditions stipulated in the said letter. This is
quite evident from Memo No.257861/8761/REG.GN.5 dated                c
November 25, 1985 issued by the under Secretary/P&R/ for
Secretary,PSEB, Patiala.

      4. The effect of adoption of the policy decisions of the
Central Government and the State Government was that a
temporary employee, who had been retrenched from the D
service of Central/State Government and had secured
employment with the Punjab State Electricity Board, was
entitled to count temporary service rendered by him under the
Central/State Government to the extent such service was
qualified for grant of pension under the Rules of the Central/ E
State Government.

       5. The short question which arises for determination of this
  Cpurt is whether the work charged service rendered by the
  r,espondent No.1 under the Government of Punjab prior to F
  securing employment with the Board would qualify for grant of
· pension under the Punjab Civil Services Rules. This dispute
  deserves to be determined because the contention of the
  appellant is that the High Court was neither justified in referring
  to the definition of "temporary post" as given in Regulation G
 3.17(ii) of Punjab Civil Services Rules nor the Full Bench
 decision in Kesar Chand (supra) but the High Court should
 have taken into consideration the definition of "temporary post"
  as per Regulation 2.58 of PSEB MSR Vol.I Part-I, 1972. As
 noticed earlier, by memo dated 25.11.1985, the Board
                                                                      H
    42        SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A   adopted letter dated 20.5.1982 of the Department of Finance,
    Government of Punjab in order to allocate liability of pension in
    respect of temporary service rendered under the $tate
    Government. A bare glance at letter dated 20.5.1982 makes it
    very clear that allocation of pensionary liability in respect of
B   temporary service rendered under the Government of India and
    the State Government was agreed upon on certain conditions
    being fulfilled, one of which was that the period of temporary
    service rendered under the Central/State Government should
    be such which could be taken into consideration for determining
c   qualifying service for grant of pens-ran under the Rules of
    respective government. In order to determine whether work
    charged service rendered by the respondent No.1 under the
    State Government could have been taken into consideration for
    the purpose of calculating qualifying service, one has to refer
    to definition of "temporary postl'. as defined in Punjab Civil
0
    Services Rules and not to the Rule referred to by the Board.
    Rule 3.17(ii) of the Punjab Civil Services Rules reads as under:

         "If an employee was holding substantively a permanent
         post on the date of his retirement, his temporary or
E        officiating service under the State Government, followed
         without interruption by confirmation in the same or another
         post, shall count in Full as qualifying service except in
         respect of :-

F        (i) ........... .

         (ii) periods of service in work-charged establishment; and"

       A bare reading of the above-quoted rule makes it clear that
  periods of service in work charged establishments were not
G counted as qualifying service. Therefore, the work charged
  employees had challenged validity of the said Rule. The matter
  was considered by the full Bench of Punjab and Haryana High
  Court. In Kesar Chand vs. State of Punjab & Ors. [1988 (5)
  ·SLR 27], the Full Bench held that Rule 3.17(ii) of the Punjab Civil
H Services Rules was violative of Article 14 of the Constitution of
   PUNJAB STATE ELECTRICITY BOARD & ANR. v.                   43
     NARATA SINGH & ANR. [J.M. PANCHAL, J.]
 India. The Full Bench decision was challenged before this Court     A
 by filing a special leave petition which was dismissed. Thus,
 the ratio laid down by the Full Bench judgment that any rule
which excludes the counting of work charged service of an
 employee whose services have been regularized subsequently,
 must be held to be bad in law was not disturbed by this Court.      B
 The distinction made between an employee who was in
 temporary or officiating service and who was in work charged
 service as mentioned in Rule 3.17(ii) of the Punjab Civil
 Services Rules disappeared when the said rule was struck
down by the Full Bench. The effect was that an employee              c
holding substantively a permanent post on the date of his
retirement was entitled to count in full as qualifying service the
periods of service in work charged establishments. In view of
this settled position, there is no manner of doubt that the work
charged service rendered by the respondent No.1 under the
                                                                     0
Government of Punjab was qualified for grant of pension under
the rules of Government of Punjab and, therefore, t.he Board was
not correct in rejecting the claim of the respondent for inclusion
of period of work charged service rendered by him with the
State Government for grant of pension, on the ground that
service rendered by him in the work charged capacity outside         E
PSEB and in the departments of the State Government was a
non-pensionable service.

      6. The apprehension that acceptance of the case of the
respondent No.1 would result into conferring a status on them F
as that of employees of the State of Punjab has no factual basis.
It is true that the State Government has power to frame rules
governing services of its employees under Article 309 of the
Constitution whereas the Board has power to prescribe
conditions of service by framing regulations under Section 79(c) G'
of the Electricity (Supply) Act, 1948. However, governance of
a particular institution and issuance of instructions to fill up the
gap in the fields where statutory provisions do not operate, is
recognised as a valid mode of administration in modern times.
It is not the case of the Board that it was compelled to adopt H



                                                                         11
    44       SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A   the policy of the State Government. The Board, on its own free
    volition, had issued letter adopting the policy of the State
    Government. Merely because the employees of the Board like
    respondent No.1 are entitled to count period of duty performed
    by theru_ as work charged employees in the State Government
B   for the -purposes of pension etc., it would not be proper to
    conclude that they became the employees of the State of
    Punjab. In fact, having larger interest of the employees, the
    Board had decided to adopt the policy decision of the ~tate
    Government which can never be termed as arbitrary or
c   irrational.

       7. The contention, that the two circulars, namely, one dated
   March 31, 1982 and another dated May 20, 1982 cover only
   the employees of the State Government and the Central
   Government and the Board, which is a distinct legal entity from
D the State of Punjab, is not covered by the same, is merely stated
  to be rejected. It is neither the case of the respondent No.1 nor
  the case of the State Government that employees of the Board
  are covered by the circulars dated March 31, 1982 and May
  20, 1982. However, it is their case that the employees of the
E Board were entitled to benefit contemplated by those two
  circulars as soon as the policy laid down in those two circulars
  was adopted by the Board vide letter dated November 25,
  1985. The effect of adoption of the two circulars, i.e., one of
  the Central Government and another of the State Government
F is that a work charged employee who has rendered services
  either under the Central Government or the State Government
  would be entitled to count the period of service so rendered
  by him for the purpose of claiming pensionary benefits as an
  employee of the Board.
G
         8. It is wrong to argue that adoption of circulars by the
    Board does not create a reciprocal arrangement between the
    Board and the State of Punjab and/or Central Government. The
    language of the three circulars is clear and unambiguous and,
    therefore, those circulars will have to be interpreted plainly. The
H
   PUNJAB STATE ELECTRfCITY BOARD & ANR. v.                      45
     NARATA SINGH & ANR. [J.M. PANCHAL, J.]

conjoint and meaningful reading of the tw0 circulars dated             A
March 31, 1982 and May 20, 1982 with circular dated
November 25, 1985 of the Board unequivocally and clearly
creates an arrangement between the Central Government,
State Government and the Board under which an employee of
the Board who had earlier occasion to render service as a work         B.
charged employee either in the Central Government or in the
State Government would be entitled to count the period of
service so rendered, when the question arises as to whether
he has put in qualifying service for grant of pension by the
Board arises. The respondent No.1 has never requested the              c
Board to consider his case for promotion de hors the circular
dated November 25, 1985. Having regard to the facts of the
case, this Court is of the opinion that the High Court was justified
in issuing mandamus as prayed for by the respondent No.1.

        9. The plea that case of the respondent No.1 should have       D
been rejected because it has financial repercussions is totally
devoid of merits. Before adopting the policy underlying two
circulars, the Board must have taken into consideration the
financial implications as well as demands of the employe }S and
thereafter must have resolved to adopt those circulars. It has         E
been brought to the notice of the Court that subsequently
circular dated November 25, 1985 was rescinded by the Board.
However, there is no manner of doubt that those employees
who were covered by the circular dated November 25, 1985
till it was in force would be entitled to claim benefits under the     F
same.

     10. The argument that the respondent No.1 is already
given the benefit of his previous service rendered as work
charged employee under the Board while counting qualifying             G
service for the purpose of pension and .would not be entitled to
benefit of memo dated November 25, 1985 adopting policy
decisions of the Government of Punjab because the same was
subsequently cancelled, has no force. It is true that the policy
decision mentioned in memo dated November 25, 1985 was                 H
    46       SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A rescinded by the Board in the year 2064. However, the
  Resolution of the year 2004 does not indicate at all, that it is
  retrospective in nature nor it is the case of the learned counsel
  for the appellants that the Resolution of the year 2004 has
  retrospective effect. Therefore, on the basis of the Resolutiofl
B of the year 2004, the respondent No.1 cannot be denied the
  benefit of counting of previous service rendered by him as work
  charged employee under the Government of Punjab for. the
  purpose of determining qualifying service under the Board for
  grant of pension.
c        11. It was stressed that the service of the respondent No.1
    with the Government of Punjab came to an end on April 15,
     1978 when he was retrenched whereas after a lapse of more
    than four years, he joined the services of the Board on August
    6, 1982 and, therefore, the gap being not condonable under
D   Rule 4.23 of the Punjab Civil Services Rules, the claim of the
    respondent No.1 should have been rejected, has no substance.
    The policy decision of the Board indicates that the benefit of
    policy decision of the Government of Punjab was to be available
    to an employee of the Board with effect from March 31, 1982.
E   A conjoint and meaningful reading of the memo dated
    November 25, 1985 issued by the Board and the policy
    decision of the Government of Punjab as reflected in letter
    dated May 20, 1982 of the Department of Finance makes it
    more than clear that the benefit would be admissible to one who
F   having been retrenched from the service of the State
    Government, secured on his own, employment under the Board
    either with or without interruption between the date of
    retrenchment and date of new appointment. There is no manner
    of doubt that the respondent No.1 was retrenched from the
G   service of the State Government. This fact is not only admitted
    in the list of events supplied by the learned counsel for the
    appellant but is also mentioned in the impugned judgment. The
    record shows that on his own, the respondent No.1 secured
    employment under the Board with interruption between the date
H   of retrenchment and date of new appointment. Therefore, it is
                                                                       /

                                                                       \.



  PUNJAB STATE ELECTRICITY BOARD & ANR. v.                   47
    NARATA SINGH & ANR. [J.M. PANCHAL, J.]
wrong to argue that the respondent No.1 having joined service      A
of the Board after a lapse of more than four years from the date
on which he was retrenched by the State Government would
not be entitled to the benefit of the memo dated November 25,
1985.
                                                                   B
       12. It was contended that the additional documents
 produced by the respondent No.1 before the court in appeal
 could not have been taken into consideration and, therefore,
 the impugned judgment should be set aside. It is true that the
 documents which were sought to be relied upon at the appellate    C
 stage were not produced by the respondent No.1 before the
 learned Single Judge who had decided the writ petition filed
 by him. However, there is no manner of doubt that those
 documents were brought on record by filing applications which
 w~re allowed. The order allowing the applications was never
 challenged by the appellants before the higher forum. The         D
 appellants, by their conduct, had permitted the said order to
 attain finality. As those documents were neither considered by
 the learned Single Judge nor by the Board, the Division Bench
 had directed the Board to reconsider the claim of the
 respondent for pension by inclusion of service rendered by him    E
 as work charged employee under the State Government. That
direction was accepted and implemented by the appellants by
considering the case of the respondent No.1 in the light of new
documents. Thereafter, the claim of the respondent No.1 was
rejected by a speaking order and the speaking order was            F
produced before the Court. The Court had thereafter heard the
learned counsel for the parties and, thus, the appellants were
given sufficient opportunity to meet with the case of the
respondent No.1 based on new documents. The existence of
the documents relied upon by the respondent No.1 at the            G
appellate stage was never disputed by the appellants. On the
facts and in the circumstances of the case, this Court is of the
firm opinion that neither the appellants were taken by surprise
when the respondent No.1 produced new documents which
were considered by the Court nor any prejudice was caused          H
r

        48      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


    A   to them. Therefore, consideration of new documents by the
        Court does not have any vitiating effect on the ultimate decision
        of the Court.

            13. The learned counsel for the appellants pointed out the
    B finding recorded by the Division Bench in the impugned
      judgment to the effect that "we are, therefore, clearly of the
       opinion that the work charged service of the appellant wJth the
       Board must be counted for determining qualifying service for
       the purpose of pension" and argued that the judgment of the
       High Court should not be construed to mean as giving direction
    C to the appellant to include previous service rendered by the
       respondent No.1 as work charged employee of the State
      Government for pension purposes. So far as this argument is
      concerned, it is true that the Division Bench of the High Court
       has expressed the above opinion in the impugned judgment.
    D However, the reference to Rule 3.17(ii) of the Punjab Civil
      Services Rules as well as the Full Bench decision of the Punjab
      and Haryana High Court in Kesar Chand vs. State of Punjab
      & Ors. [1988 (5) SLR 27] and speaking order dated November
       16, 2005 passed by the Board rejecting the claim of respondent
    E No.1 makes it abundantly clear that the High Court has directed
      the appellants to count the period of service rendered by the
      respondent No.1 in work charged capacity with the State
      Government for determining qualifying service for the purpose
      of pension. Further, the respondent No.1 has been directed to
    F deposit the amount of Employee's Contributory Fund which he
      had received from the appellants along with interest as per the
      directions of the Board before the pension is released to him.
      All these directions indicate that the High Court had come to
      the conclusion that the period of service rehdered by the
    G respondent No.1 in work charged capacity under the State
      Government should be taken into consideration for determining
      qualifying service for the purpose of pension. Non-mention of
      such direction in the impugned judgment is merely a slip and
      the appellants cannot derive any advantage from this.
    H
  PUNJAB STATE ELECTRICITY BOARD & ANR. v.                   49
    NARATA SINGH & ANR. [J.M. PANCHAL, J.]
     14. The net result of the above discussion is that this Court A
does not find substance in any of the arguments advanced on
behalf of the appellants. The appeal lacks merit and, therefore,
deserves to be dismissed. Therefore, the appeal fails and is
dismissed. There shall be no order as to costs.
                                                                   B
     15. The appellants are directed to implement the directions
given by the High Court in the impugned judgment as early as
possible and not later than three months from the date of
receipt of the writ of this Court.

K.K.T.                                     Appeal dismissed.      C