State Of Punjab & Anr vs Suresh Kumar Sharma on 23 September, 2010

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                      IN THE SUPREME COURT OF INDIA

                       CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.7872 OF 2004

STATE OF PUNJAB & ANR.                         ... APPELLANT(S)

               VERSUS

SURESH KUMAR SHARMA                            ... RESPONDENT(S)

                             J U D G M E N T

DALVEER BHANDARI, J.

This appeal is directed against the judgment delivered by

the High Court of Punjab and Haryana at Chandigarh in Civil Writ

Petition No.662/2004 dated July 12, 2004. The respondent herein-

Suresh Kumar Sharma was appointed as Assistant Advocate General,

Punjab by the order dated 28th April, 1986 of the Government of

Punjab. The order reads as under :

“GOVERNMENT OF PUNJAB
DEPARTMENT OF HOME AFFAIRS AND JUSTICE
(JUDICIAL BRANCH)

The Governor of Punjab is pleased to appoint the
following Advocate as Assistant Advocates General,
Punjab in the scale of Rs.2000-2300 plus usual
allowances attached to these posts, from the date
they assume charge :-

1. Shri Suresh Kumar Sharma

2. Shri Ranjit Singh Gill

3. Ms.Sukhcharan Kaur Bhatia

2. The terms and conditions of their appointment
will be as under :-

“(i) They will be whole time Government
employees and will do all criminal and miscellaneous
work entrusted to them by the Advocate General,
Punjab,

(ii) Their appointment is purely temporary
and services are terminable without assigning any
reason and without notice,

(iii)For conducting civil cases only, they
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will be paid two third of the prescribed fee,

(iv) If on any particular day they have no
criminal case to conduct in the High Court, fees
payable to them in civil cases will be reduced by the
amount of their salary for that day,

(v) In the matter of leave and traveling
allowances, they will be governed by the Punjab Civil
Services Rules,

(vi) House Rent Allowance will be
admissible to them,

(vii) Their services are contractual in
nature and, as such, they will not be entitled to any
other benefit viz. Pension, gratuity and encashment
of leave etc.

(viii) Their appointment would be against a
non-pensionable post.

            Dated Chandigarh
            the 28th April, 1986     Sd/-
                                     (R.P.OJHA)
                                     Financial Commissioner
                                     & Secretary to Government
                                               of Punjab
                                     Department of Home Affairs
                                     and Justice.
            No.1/5/86-4 Judl./1111....."

It may be pertinent to mention that Ms.S.K.Bhatia was also appointed

along with the respondent herein. According to Mr.P.S.Patwala,

learned senior counsel appearing for the respondent, this case is

covered by the judgment of this Court in Civil Appeal No.5810/2000,

State of Punjab & Anr. Vs.S.K.Bhatia & Ors.

The brief facts of this case, which are relevant to

dispose of the appeal are recapitulated as under :

The respondent was appointed as Assistant Advocate General

and thereafter he was appointed as Deputy Advocate General and

Senior Deputy Advocate General in the State of Punjab. The

respondent superannuated on 31.03.2003. The pensionary benefits were

denied to the respondent, then he approached the High Court and made

grievance that the respondent was wrongly denied pensionary
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benefits. It may be pertinent to mention that some similarly placed

persons were also denied pensionary benefits after their

superannuation and in the Writ Petitions of V.P.Parashar, D.N.Rampal

and S.K.Bhatia the High Court allowed their writ petitions and

directed the State of Punjab to give them pensionary benefits.

Mr.Patwalia has particularly referred to the judgment of S.K.Bhatia

who was appointed along with the respondent herein.

The learned single Judge has also quoted the terms and conditions of

the appointment of S.K.Bhatia, which would also be the same in the

case of respondent herein. The terms and conditions of the

appointment reads as under :

“(i) They will be wholetime Government
employees and will do all criminal and miscellaneous
work entrusted to them by the Advocate General,
Punjab,

(ii) Their appointment is purely temporary
and services are terminable without assigning any
reason and without notice,

(iii)For conducting civil cases only, they
will be paid two third of the prescribed fee,

(iv) If on any particular day they have no
criminal case to conduct in the High Court, fees
payable to them in civil cases will be reduced by the
amount of their salary for that day,

(v) In the matter of leave and travelling
allowances, they will be governed by the Punjab Civil
Services Rules,

(vi) House Rent Allowance will be
admissible to them,

(vii) Their services are contractual in
nature and, as such, they will not be entitled to any
other benefit viz. Pension, gratuity and encashment
of leave etc.

(viii) Their appointment would be against a
non-pensionable post.”

The learned single Judge, after elaborately dealing with the

arguments of learned counsel for the parties, clearly came to the

conclusion that appointment of S.K.Bhatia was not in the nature of
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contract of personal service but as a regular government employee.

The learned single Judge has held :

“…I hold that the appointment of the petitioner was
not in the nature of contract of personal service,
but as a regular Government employee.”

The judgment of the learned single Judge in the case of

S.K.Bhatia was challenged before the Division Bench of the High

Court of Punjab and Haryana. The judgment of the Single Judge was

upheld by the Division Bench. The order of the Division Bench reads

as under :

“Heard Learned Single Judge has held, inter
alia, on the basis of the notification dated 3rd
March, 1980, as also the view taken in D.N.Rampal
Case and in V.P.Parashar’s case that the appointment
of the petitioner was not in the nature of contract
of personal service but as regular government
employee. The learned Single Judge has also held
that stipulation of the condition that the employment
is contractual was wholly arbitrary, unjust and
unconstitutional.

Further, the learned Single Judge has
applied the ratio of the decision of the Supreme
Court in Shrilekha Vidyarthi Versus State of
U.P.,J.T.1990 (4) S.C.211 and distinguished the
decision in State of U.P. & others Vs. U.P.State Law
Officers Association & Ors., J.T. 1994(1) S.C.225, on
the basis of mode of initial appointment of the
respondent as Assistant Advocate General and
therefore her appointment as Deputy Advocate General.

Dismissed.

         6-2-1998                    Sd/-Arun B.Saharya
                                     Chief Justice

                                     Sd/-Swatanter Kumar
                                     Judge"

The State of Punjab challenged the judgment of the

Division Bench before this Court. This Court, in appeal, passed the
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following order :

“IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5810 OF 2000

State of Punjab & Anr. …Appellants
Vs.

S.K.Bhatia & Ors. …Respondents
ORDER

The matter relates to termination of the first
respondent as Dy.Advocate General by State of Punjab.
The respondent challenged the termination order dated
19.7.1993 as illegal on the ground her appointment
was as a regular government servant and not a
contractual engagement as counsel. The learned Single
Judge, by judgment dated 30.5.1997. upheld her
contention and allowed her writ petition, declared
the termination order dated 19.7.1993 as illegal and
quashed it. He also held that the first respondent
was entitled to all consequential benefits. The
intra-court appeal filed by the appellants was
dismissed by the Division Bench on 6.2.1998. The said
judgment is under challenge.

2. The impugned judgment of the High Court dated
6.2.1998 in the case of the first respondent was
followed by the High Court in a subsequent siilar
case relating to termination of a Sr.Dy.Advocate
General -G.S.Cheema Vs. State of Punjab (Judgment
dated 22.4.2004 in C.W.P.No.8273/1999). The state
challenged the decisions of the High Court in the
case of the first respondent (in this appeal) and in
the case of Shri G.S.Cheema (in C.A.No.6057/2004).
Both appeals were being listed together for final
hearing.

3. When the appeals came up on 29.1.2009, the
learned counsel for the state submitted that the
state government has taken a decision to implement
the order of the High Court in the case of Shri
G.S.Cheema and absorb him in service. Recording the
said submission, C.A.No.6057/2004 was dismissed.

4. With reference to this appeal (relating to
Ms.S.K.Bhatia), the learned counsel for the state
sought time to secure specific instructions.
Thereafter, the matter was adjourned to 19.2.2009 at
the request of the counsel for the state and again
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adjourned at his request today. When the matter came
up today, learned counsel for the state submitted
that he has not received any instructions from the
state.

5. When the state government has accepted the
decision rendered by the High Court in case of
G.S.Cheema, which followed the impugned judgment, the
state government has to adopt the same yardstick in
this case also, unless there are any distinguishing
factors or circumstances. The learned counsel for
the appellant has not been able to show any
difference between the facts of this case, and the
facts in the case of G.S.Cheema.

6. We are also informed that during the pendency of
the proceedings, the first respondent has attained
the age of superannuation and all that therefore
remains to be done is to process and disburse the
terminal/retiral benefits.

7. In view of the above we dismiss this appeal.
Needless to say that the retiral benefits due to the
respondent in accordance with law, will have to be
processed expeditiously that is within four months.

………………….J.

(R.V.Raveendran)

………………….J.

(Markandey Katju)
New Delhi,
March 17,2009.”

Mr.Patwalia submits that the case of the respondent is

squarely covered by the case of S.K.Bhatia because she was also

appointed on the same day by the same order in the same position and

the benefits which were extended to S.K.Bhatia should also be given

to the respondent herein.

We have heard learned counsel for the parties.

Learned counsel appearing for the State of Punjab could

not distinguish the case of the respondent with the case of
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S.K.Bhatia and other cases. Consequently, the respondent herein,

who has already attained superannuation from service would also be

entitled to get pensionary and other benefits due to him in

accordance with law. We direct that all the pensionary and other

benefits, if any, be given to the respondent within four months from

the date of communication of this order. In the special facts and

circumstances of the case, we deem it appropriate to direct the

State of Punjab to pay costs of Rs.25,000/- to the respondent. Let

the costs be paid within four weeks from the date of communication

of this order. The appeal is, accordingly, allowed and disposed of.

……………….J.

(DALVEER BHANDARI)

……………….J.

(DEEPAK VERMA)

NEW DELHI;

23RD SEPTEMBER, 2010