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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