# 11 S.C.R. 529 STATE OF HARYANA AND ORS v. SITA RAM AND ORS

- **Citation:** [2013] 11 S.C.R. 529
- **Court:** Supreme Court of India
- **Decided:** 2013-10-29
- **Case number:** Civil Appeal Nos. 5411-5430 of 2009
- **Bench:** Civil Appeal Nos. 5411-5430 of 2009) OCTOBER 29, 2013 . [G.S. Singhvi, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-529-state-of-haryana-and-ors-v-sita-ram-and-ors-28696
- **Pages:** 28

## Headnote

Service Law:
A
B
Haryana Civil Services (Assured Career Progression) c
Rules, 1998 - r.5(1) and (2) - Benefit under - Whether can
be granted by treating the work charge service as regular
service - Held: Cannot be granted, because as per rules, a
service can be treated as regular service only if there is
regular recruitment in accordance with the prescribed D
procedure or rules - This is in total contrast with work-charge
service.
The respondent-employees of the appellant-State
approached the High Court seeking benefit under
Haryana Civil Servlces (Assured Career Progression)
E
Rules, 1998, by counting their work charge service as
regular service. The same was granted by High Court.
Hence the present appeals by the State.
Allowing the appeals, the Court
F
HELD: The Division Benches of the High Court
committed an error by directing the appellants to treat
work charge service of the respondents as part of regular
service for the purpose of Rule 5(1) and (2) of the Haryana
Civil Services (Assured Career Progression) Rules, 1998.
G
The reasons recorded by the Division Bench of the High
Court for granting relief to the respondents are legally
untenable, and the same are based on erroneous
529
H
530
SUPREME COURT REPORTS
(2013] 11 S.C.R.
A interpretation of the expression "regular satisfactory
service" used in Rule 5(1) and (2) of the 1998 Rules. The
note appearing below Rule 5(2) makes it clear that the
expression "regular satisfactory service" means
continuous service counting towards seniority under
B Haryana Government, including continuous service in
Punjab Government, before reorganization, commencing
from the date on which the Government servant joins
service after being recruited through the prescribed
procedure or rules, etc., for regular recruitment in the
c particular cadre. It is, thus, evident that the rule making
authority has laid emphasis on regular recruitment in
accordance with the prescribed procedure or rules as a
condition for treating the particular service as regular
service. This is in total contrast to work charge service
0 which is always in work charge establishment and is not
preceded by regular selection made in accordance with
any set of rules framed under proviso to Article 309 of the
Constitution or executive instructions. It is also not
incumbent upon the competent authority to advertise the
E availability of work/post in the work charge establishment
or send requisition to the employment exchange as per
the requirement of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Not
only this, the conditions of appointment of work charge
employees are altogether different from those who are
F regularly recruited in accordance with the rules framed
under proviso to Article 309 or executive instructions
issued by the State under Article 162 of the Constitution
and whose service is treated as regular service. [Paras
G
11 and 18] [545-H; 546-A-G]
State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517:
1996 (10) Suppl. SCR 255; State of Haryana vs. Haryana
Veterinary and AHTS Association (2000) 8 SCC 4: 2000 (3)
Suppl. SCR 322; Punjab State Electricity Board vs. Jagjiwan
H Ram (2009) 3 SCC 661: 2009 (3) SCR 209; Kesar Chand
STATE OF HARYANA v. SITA RAM
531
vs. State of Punjab, Recent Service Judgments (1950-1988)
A
Vol.1 433 - relied on.
Jaswant Singh vs. Union of India (1979) 4 SCC 440:
1980 (1) SCR 420; State of Punjab vs. lshar Singh (2002)
10 sec 674 - referred to.
Case Law Reference:
1996 (10) Suppl. SCR 255 relied on
Para 7
2000 (3) Suppl. SCR 322
relied on
Para 7
2009 (3) SCR 209
relied on
Para 7
(1950-1988) Vol.1 433
relied on
Para 8
1980 (1) SCR 420
referred to
Para 13
(2002) 10 sec 674
referred to
Para 16

## Text

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[2013) 11 S.C.R. 529
STATE OF HARYANA AND ORS.
v.
SITA RAM AND ORS.
(Civil Appeal Nos. 5411-5430 of 2009)
OCTOBER 29, 2013
. [G.S. SINGHVI AND C. NAGAPPAN, JJ.]
Service Law:
A
B
Haryana Civil Services (Assured Career Progression) c
Rules, 1998 - r.5(1) and (2) - Benefit under - Whether can
be granted by treating the work charge service as regular
service - Held: Cannot be granted, because as per rules, a
service can be treated as regular service only if there is
regular recruitment in accordance with the prescribed D
procedure or rules - This is in total contrast with work-charge
service.
The respondent-employees of the appellant-State
approached the High Court seeking benefit under
Haryana Civil Servlces (Assured Career Progression)
E
Rules, 1998, by counting their work charge service as
regular service. The same was granted by High Court.
Hence the present appeals by the State.
Allowing the appeals, the Court
F
HELD: The Division Benches of the High Court
committed an error by directing the appellants to treat
work charge service of the respondents as part of regular
service for the purpose of Rule 5(1) and (2) of the Haryana
Civil Services (Assured Career Progression) Rules, 1998.
G
The reasons recorded by the Division Bench of the High
Court for granting relief to the respondents are legally
untenable, and the same are based on erroneous
529
H
530
SUPREME COURT REPORTS
(2013] 11 S.C.R.
A interpretation of the expression "regular satisfactory
service" used in Rule 5(1) and (2) of the 1998 Rules. The
note appearing below Rule 5(2) makes it clear that the
expression "regular satisfactory service" means
continuous service counting towards seniority under
B Haryana Government, including continuous service in
Punjab Government, before reorganization, commencing
from the date on which the Government servant joins
service after being recruited through the prescribed
procedure or rules, etc., for regular recruitment in the
c particular cadre. It is, thus, evident that the rule making
authority has laid emphasis on regular recruitment in
accordance with the prescribed procedure or rules as a
condition for treating the particular service as regular
service. This is in total contrast to work charge service
0 which is always in work charge establishment and is not
preceded by regular selection made in accordance with
any set of rules framed under proviso to Article 309 of the
Constitution or executive instructions. It is also not
incumbent upon the competent authority to advertise the
E availability of work/post in the work charge establishment
or send requisition to the employment exchange as per
the requirement of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Not
only this, the conditions of appointment of work charge
employees are altogether different from those who are
F regularly recruited in accordance with the rules framed
under proviso to Article 309 or executive instructions
issued by the State under Article 162 of the Constitution
and whose service is treated as regular service. [Paras
G
11 and 18] [545-H; 546-A-G]
State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517:
1996 (10) Suppl. SCR 255; State of Haryana vs. Haryana
Veterinary and AHTS Association (2000) 8 SCC 4: 2000 (3)
Suppl. SCR 322; Punjab State Electricity Board vs. Jagjiwan
H Ram (2009) 3 SCC 661: 2009 (3) SCR 209; Kesar Chand
STATE OF HARYANA v. SITA RAM
531
vs. State of Punjab, Recent Service Judgments (1950-1988)
A
Vol.1 433 - relied on.
Jaswant Singh vs. Union of India (1979) 4 SCC 440:
1980 (1) SCR 420; State of Punjab vs. lshar Singh (2002)
10 sec 674 - referred to.
Case Law Reference:
1996 (10) Suppl. SCR 255 relied on
Para 7
2000 (3) Suppl. SCR 322
relied on
Para 7
2009 (3) SCR 209
relied on
Para 7
(1950-1988) Vol.1 433
relied on
Para 8
1980 (1) SCR 420
referred to
Para 13
(2002) 10 sec 674
referred to
Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5411-5430 of 2009.
·
B
c
D
From the Judgment & Order dated 08.07.2004 of the High
E
Court of Punjab & Haryana at Chandigarh in C.W.P. Nos.
12497, 13299, 17222, 17525, 17526, 17527, 18096, 153f8,
15330, 15517, 15563, 16354, 16317, 16316, 16121, 12702
of 2002, 3157, 3442, 3564 & 4266 of 2003 .
. WITH
C.A. Nos. 5431-5441, 5442-5459, 5460-5479, 5480-5499,
5500-5516, 5517, 5518-5537, 5538, 5539, 5541, 5543, 5544,
5545 of 2009 & 912 of 2010.
F
G/
Neeraj Jain, Anubha Agarwal, Ambuj Agarwal for the
· Appellants.
Dinesh Kumar Garg, Ajay K. Singh, Sanjeev K. Saroha,
Vikas Batra, R.C. Kaushik, Naresh Kaushik, Lalita Kaushik,
Varinder Kumar Sharma for the Respondents.
H
532
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 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
8
(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
C 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
D provisions contained in PWD Code, paragraphs 1.129 and
E
F
G
H
1.132 of which are reproduced below:
"I I-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
STATE OF HARYANA v. SITA RAM
533
[G.S. SINGHVI, J.]
for the Divisional or Sub-Divisional Offices, such being
A
properly chargeable to Temporary Establishment, but
where Oak 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.
B
(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
C
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,
D
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
E
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.
F
(6) All pay bill for work-charged establishment shall be preaudited by the Divisional Accountant and approved by the
G
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
H
534
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 11 S.C.R.
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
)()()(
)()()(
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
STATE OF HARYANA v. SITA RAM
[G.S. SINGHVI, J.]
535
establishment to be absent on any one Sunday. The above
A
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
8
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.
C
"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
D
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
E
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: -
F
(a) the limits of travelling allowances relating to the cost of
carriage of personal effects and the class of railway
G
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;
H
A
B
c
D
E
F
G
H
536
SUPREME COURT REPORTS
[2013] 11 S.C.R.
(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 riot 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 workcharged 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
STATE OF HARYANA v. SITA RAM
537
[G.S. SINGHVI, J.]
of 8 and 18 years servit;e. Yet another scheme was
A
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,
B
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
C
(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.
D
(3) The objective of the.se 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,
E
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 -
F
(b) "direct recruited fresh entrant" with reference to a
G
post or a Government servant means the post on which
such Government servant was recruited as a regular arid
direct recruitee in the Government service and is in
continuous employment of Government since such
recruitment;
H
538
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 11 S.C.R.
(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 subclause (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-1 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
STATE OF HARYANA v. SITA RAM
539
[G.S. SINGHVI, J.]
the name of post(s) in column 2 of part I of schedule
A
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 sub8
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
C
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
D
ACP scale or ACP-11 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;
E
F
5. Eligibility for Grant of ACP Scales:- (1) Every
Government seNant who, after a regular satisfactory
service for a minimum period of 10 years, if the minimum
G
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
H
540
SUPREME COURT REPORTS
[2013] 11 S.C.R.
A
prescribed for the post as on 31.12.1995, on which he was
recruited as a direct recruited fresh entrant:-
B
c
D
E
F
G
H
(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
differeat 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,
STATE OF HARYANA v. SITA RAM
541
[G.S. SINGHVI, J.]
shall for the purposes of drawal of pay, be eligible
A
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
8
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,
C
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
D
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
E
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
F
1st ACP, the employee has already got at least one
financial upgradation or within 20 years of service, as the
G
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, IJenefit
of these rules will not be extended to such employees save
if otherwise provided in these rules.
H
542
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2013] 11 S.C.R.
(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
STATE OF HARYANA v .. SITA RAM
543
[G.S. SINGHVI, J.]
sub-rule (1) of rule 4 shall be limited to 20% of the
A
total posts in the cadre."
4. Since there was a lot of confusion on the issue of
counting of work charge I ad-hoc service of the employees for
the purpose of grant of ACP scales, increments, etc., the State
B
Government issued office memorandums dated 15.3.2002 and
27.6.2002 and clarified that the ad-hoc and r'ork charge service
cannot be equated with regular service for the purpose of grant
of additional increments or benefit of ACP scales.
5. Some of the work charge employees filed writ petitions
C
before the High Court for grant of benefit under the 1998 Rules.
The Division Bench of the Punjab and Haryana High Court
dismissed CWP Nos. 18444/2002 Prem Chand and others v.
State of Haryana and others and CWP No.18578/2002 Ved
Pal and others v. State of Haryana by observing that Rule 5(1)
D
of the 1998 Rules talks of regular satisfactory service which
cannot possibly include work charge service. However, another
Division Bench of the High Court allowed a batch of writ
petitions vide order dated 8.7.2004, the operative portion of
which reads as under:
E
"For the reasons afore-stated we allow these Writ Petitions
and.direct the State Government to consider the cases of
the Petitioners in CWP Nos. 14400 of 2001, 1235 of 2002
F
and 13749 of 2003 for payment of additional increments
under public policies of 1992 and 1994. Further, we also
direct the State Government to consider and grant to the
petitioners in other Writ Petitions the ACP first and second
scales in accordance with Rules and after counting the
services rendered by them on work charge basis. Thus,
we also quash the show cal\8e notices issued by the
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Respondents for reduction of scales of the Petitioners and/
or the orders passed after service of show cause notice
reducing the pay scales ofthe Petitioners as well as the
recoveries made in furtherance thereto."
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6. By relying upon the aforesaid order, other Division
Benches of the High Court allowed similar petitions vide orders
dated 28.4.2005, 25.8.2005, 13.9.2005, 29.11.2005 and
7.12.2006.
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7. Shri Neeraj Jain, learned senior counsel for the
appellants argued that the impugned orders are liable to be set
aside because the same are contrary to the law laid down by
this Court in State of Rajasthan v. Kunji Raman (1997) 2 SCC
517, State of Haryana v. Haryana Veterinary and AHTS
C Association (2000) 8 SCC 4 and Punjab State Electricity
Board v. Jagjiwan Ram (2009) 3 SCC 661. Learned senior
counsel argued that work charge service cannot be treated as
part of regular service because there is a marked distinction
between appointments made on work charge basis and regular
basis. He pointed out that work charge employee is engaged
D without any selection whereas regular appointment is always
preceded by regular selection made in accordance with the
relevant rules or administrative instructions after issuing
appropriate advertisement and sending requisition to the
employment exchange. Shri Jain submitted that the directions
E given by the Division Benches of the High Court ar.e legally
unsustainable because while entertaining the claim of work
charge employees for grant of benefit under the 1998 Rules,
they completely overlooked the distinction between two types
of services. Learned senior counsel distinguished order dated
F 31.10.2000 passed by this Court in Civil Appeal Nos.57405741/1997 State of Haryana and others v. Ravinder Kumar and
others by pointing out that the said order was not based on the
interpretation of Rule 5 of the 1998 Rules.
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8. Shri Dinesh Kumar Garg, learned counsel for the
respondents argued that the order passed in Ravinder Kumar's
case has direct bearing on the respondents' case and the High
Court rightly relied upon the same for declaring that work charge
service should be treated as regular service for the purpose of
ACP scales. Shri Garg also relied upon Rule 3.17 (ii) of the
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· STATE OF HARYANA v .. SITA RAM
545
[G.S. SINGHVI, J.]
Punjab Civil Services Rules Vol.II, the judgment of the Full
A
Bench of the High Court in Kesar Chand v. State of Punjab,
Recent Service Judgments (1950-1988) Vol.I, 433 and argued
that once work charge service is treated as part of qualifying
service for the purpose of grant of retiral benefits, there can be
no rationale or justification not to count that service for the
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purpose of grant of ACP scales.
9. We have considered the respective arguments. A
careful reading of order dated 8.7.2004, which is under
challenge in Civil Appeal Nos.5411-5430/2009 and batch
shows that after taking cognizance of the judgment of the Full
C
Bench in Kesar Chand's case, the Division Bench observed
as under:
"In the light of the above observations of the Full Bench of
this Court we are of the considered view that these work
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charged employees have been serving for a considerable
period in their respective departments. They were getting
the regular pay scales as provided under the Rules. This
class of employees was also exposed to hostility of
stagnation. Thus, to decline the benefit of providing
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increments under the schemes would patently be unfair and
unjust. The physical reality that emerges in the recent time
is that these employees are also the regular emp.loyees
of the State of Haryana and have been continuously
serving the State for more than the prescribed period. The
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mere fact that some part of their service is on workcharged basis, though under the conditions stipulated in
the code~ would not divest them of a legitimate right which
otherwise accrues in their favour."
10. The Division Bench then relied upon the order passed
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by this Court in Ravinder Kumar's case and held that the writ
petitioners are entitled to relief in similar terms.
11. In our opinion, the reasons recorded by the Division
Bench of the High Court for granting relief to the respondents
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[2013] 11 S.C.R.
A are legally untenable and the impugned orders are liable to be
set aside because the same are based on erroneous
interpretation of the expression "regular satisfactory service"
used in Rule 5(1) and (2) of the 1998 Rules. The note
appearing below Rule 5(2) makes it clear that the expression
B "regular satisfactory service" means continuous service
counting towards seniority under Haryana Government,
including continuous service in Punjab Government, before
reorganization, commencing from the date on which the
Government servant joins service after being recruited through
C the prescribed procedure or rules, etc., for regular recruitment
in the particular cadre. It is, thus, evident that the rule making
authority has laid emphasis on regular recruitment in
accordance with the prescribed procedure or rules as a
condition for treating the particular service as regular service.
0
This is in total contrast to work charge service which is always
in work charge establishment and is not preceded by regular
selection made in accordance with any set of rules framed
under proviso to Article 309 of the Constitution or executive
instructions. It is also not incumbent upon the competent
authority to advertise the availability of work/post in the work
E charge establishment or send requisition to the employment
exchange as per the requirement of the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Not only this,
the conditions of appointment of work charge employees are
altogether different from those who are regularly recruited in
F accordance with the rules framed under proviso to Article 309
or executive instructions issued by the State under Article 162
of the Constitution and whose service is treated as regular
service.
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12. The distinction between work charge establishment
and regular establishment was aptly highlighted in Kunji
Raman's case in the following words:
"A work-charged establishment as pointed out by this
Court in Jaswant Singh v. Union of India (1979) 4 SCC
STATE OF HARYANA v. SITA RAM
547
[G.S. SINGHVI, J.]
440 broadly means an establishment of which the
A
expenses, including the wages and allowances of the staff,
are chargeable to "works". The pay and allowances of
employees who are borne on a work-charged
establishment are generally shown as a separate subhead of the estimated cost of the works. The work-charged
B
employees are engaged on a temporary basis and their
appointments are made for the execution of a specified
work. From the very nature of their employment. their
services automatically come to an end on the completion
of the works for the sole purpose of which they are c
employed. Thus a work-charged establishment is
materially and qualitatively different from a regular
establishment.
A work-charged establishment thus differs from a regular
establishment which is permanent in nature. Setting up and
D
continuance of a work-charged establishment is dependent
upon the Government undertaking a project or a scheme
or a "work" and availability of funds for executing it. So far
as employees engaged in work-charged establishments
are concerned. not only their recruitment and service
E
conditions but the nature of work and duties to be
performed by them are not the same as those of the
employees of the regular establishment. A regular
establishment and a work-charged establishment are two
separate types of establishments and the persons
F
employed on those establishments thus form two separate
and distinct classes. For that reason, if a separate set of
rules are framed for the persons engaged in the workcharged establishment and the general rules applicable to
persons working on the regular establishment are not
G
made applicable to them, it cannot be said that they are
treated in an arbitrary and discriminatory manner by the
Government."
(emphasis added}
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[2013] 11 S.C.R.
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13. In Punjab State Electricity Board v. Jagjiwan Ram
(supra), this Court considered whether work charge service is
synonymous with regular service and whether two services can
be clubbed for grant of time bound promotional scale/increment
etc., referred to the judgments in Jaswant Singh v. Union of
B India (1979) 4 sec 440, Kunji Raman's case and observed:
c
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"Generally speaking, a work-charged establishment is an
establishment of which the expenses are chargeable to
works. The pay and allowances of the employees who are
engaged on a work-charged establishment are usually
shown under a specified sub-head of the estimated cost
of works. The work-charged employees are engaged for
execution of a specified work or project and their
engagement comes to an end on completion of the work
or project. The source and mode of engagement/
recruitment of work-charged employees.· their pay and
conditions of employment are altogether different from the
persons appointed in the regular establishment against
sanctioned posts after following the procedure prescribed
under the relevant Act or rules and their duties and
responsibilities are also substantially different than those
of regular employees.
The work-charged employees can claim protection under
the Industrial Disputes Act or the rights flowing from any
particular statute but they cannot be treated on a par with
the employees of regular establishment. They can neither
claim regularisation of service as of right nor can they claim
pay scales and other financial benefits on a par with regular
employees. If the service of a work-charged employee is
regularised under any statute or a scheme framed by the
employer. then he becomes member of regular
establishment from the date of regularisation. His service
in the work-charged establishment cannot be clubbed with
service in a regular establishment unless a specific
provision to that effect is made either in the relevant
STATE OF HARYANA v. SITA RAM
549
[G.S. SINGHVI, J.]
statute or the scheme of regularisation. In other words. if A
the statute or scheme under which service of workccharged
employee is regularised does not provide for counting of
past service. the work-charged employee cannot claim
benefit of such service for the purpose of fixation of
seniority in the regular cadre. promotion to the higher
B
posts, fixation of pay in the higher scales. grant of
increments, etc."
(emphasis added)
14. We may now advert to the judgment in State of C
Haryana v. Haryana Veterinary and AHTS Association
(supra). The facts of that case were that one Rakesh Kumar
Singla, who joined service as Assistant Engineer on ad-hoc
basis on 4.1.1980, was appointed on regular basis with effect
from 29.8.1982 after selection by the Public Service
D
Commission. He represented to the Government for grant of
selection grade on completion of 12 years' service
commencing from 4.1.1980. Having failed to convince the
competent authority to accept his plea, Rakesh Kumar Singla
filed a writ petition in the High Court. The Division Bench, which
E
heard the matter was of the view that the service rendered by
the appellant on the basis of an ad-hoc appointment cannot be
counted as part of regular service. However, keeping in view
an earlier judgment in which a contrary view was expressed,
the Division Bench made a reference to a three Judge Bench.
F
By a majority judgment, the larger Bench held that the service
rendered by an employee on the basis of ad-hoc appointment
must be clubbed with his regular service for the purpose of
grant of selection grade in terms of the policy framed by the
State Government. This Court reversed the judgment of the
G
majority and observed:
"Coming to the Circular dated 2-6-1989, issued by the
Financial Commissioner and Secretary to the Government
of Haryana, Finance Department, it appears that the
aforesaid circular had been issued for removal of H
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SUPREME COURT REPORTS
[2013] 11 S.C.R.
anomalies in the pay scale of Doctors, Deputy
Superintendents and Engineers, and so far as Engineers
are concerned, which are in Class I and Class II, it was
unequivocally indicated that the revised pay scale of Rs
3000 to Rs 4500 can be given after completion of 5 years
of regular service and Rs 4100 to Rs 5300 after
completion of 12 years of regular service. The said
Financial Commissioner had issued yet another Circular
dated 16-5-1990, in view of certain demands made by
officers of different departments. The aforesaid circular
was issued after reconsideration by the Government
modifying to some extent the earlier Circular of 2-6-1989,
and even in this circular it was categorically indicated that
so far as Engineers are concerned, they would get Rs
3000 to Rs 4500 after 5 years of regular and satisfactory
service and selection grade in the scale of pay of Rs 4100
to Rs 5300, which is limited to the extent of 20% of the
cadre post should be given after 12 years of regular and
satisfactory service. The aforesaid two circulars are
unambiguous and unequivocally indicate that a government
servant would be entitled to the higher scale indicated
therein only on completion of 5 years or 12 years of regular
service and further the number of persons to be entitled
to get the selection grade is limited to 20% of the cadre
post. This being the position, we fail to understand how
services rendered by Rakesh Kumar from 1980 to 1982,
which was purely on ad hoc basis, and was not in
accordance with the statutory rules can be taken into
account for computation of the period of 12 years indicated
in the circular. The majority judgment of the High Court
committed serious error by equating expression 'regular
service' with 'continuous service'. In our considered opinion
under the terms and conditions of the Circulars dated 26-1989 and 16-5-1990. the respondent Rakesh Kumar
would be entitled for being considered to have the
selection grade on completion of 12 years from 29-1-1982
on which date he was duly appointed against a temporary
STATE OF HARYANA v. SITA RAM
551
[G.S. SINGHVI, J.]
post of Assistant Engineer on being selected by the Public
A
Service Commission and not from any earlier point of time.
The conclusion of the majority judgment in favour of
Rakesh Kumar. therefore.