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2016 Supreme(P&H) 1237
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Rajesh Bindal and Harinder Singh Sidhu, JJ.
Sachida Nand and others - Petitioners
Versus
State of Punjab and others - Respondents
CWP No.4708 of 2016 (O&M)
Decided On : 03-08-2016
For the Petitioners:Mr. Anand Chhibbar, Sr. Advocate with Mr. Deepanjay Sharma, Advocate.
Mr. Inder Pal Goyat, Addl. A.G., Punjab.
For the Respondents:Mr. A.K. Chopra, Sr. Advocate with Mr. Akshit Chaudhary, Advocate.
The main legal point established in the judgment is that the Regulations were validly framed and notified, and there was no requirement to re-publish the draft regulations after changes were made by the Government. Additionally, the court emphasized the importance of considering the past services of the petitioners in line with the assertions made by the respondents.
Headnote:
Electricity Regulatory Commission - Framing of Regulations - Section 181, Section 91 - The court considered the challenge to the Regulations primarily on the ground of alleged non-compliance with the procedural pre-requisites for framing of the Regulations as mandated under the 2003 Act and the Rules framed thereunder. The court held that there is no requirement under the 2005 Rules to again resort to the previous publication procedure because the draft regulations have been approved by the Government with changes. The court also found that the regulations were notified by the Secretary with the approval of the Chairperson of the Commission, and there was no irregularity on this count.
Fact of the Case:
The petitioners, ex-servicemen, sought to quash the Punjab State Electricity Regulatory Commission (Appointment & Service Conditions of Employees) Regulations 2015 and to be considered for regularization of their services as drivers. The impugned Regulations required the services of drivers to be outsourced at approved rates.
Finding of the Court:
The court dismissed the petition, finding no merit in the contentions that the regulations were illegal for non-compliance with the requirement of previous publication or for being notified by the Secretary without the approval of the Commission. The court also refrained from opining on the regularization issue as the petitioners had not challenged the previous order declining their claim.
Issues: The main issues were the compliance with procedural pre-requisites for framing the Regulations and the legality of the notification of the Regulations by the Secretary without the approval of the Commission.
Ratio Decidendi: The court held that there is no requirement under the 2005 Rules to again resort to the previous publication procedure because the draft regulations have been approved by the Government with changes. The court also found that the regulations were notified by the Secretary with the approval of the Chairperson of the Commission, and there was no irregularity on this count.
Final Decision: The petition was dismissed, and the court hoped that the respondents would sympathetically consider the petitioners' case in line with their past services.
HARINDER SINGH SIDHU, J.
This writ petition has been filed praying for quashing the Punjab State Electricity Regulatory Commission (Appointment & Service Conditions of Employees) Regulations 2015 notified on 24.12.2015 (Annexure P-10) (for short `2015 Regulations') to the extent it is specified in Regulation 4(a) read with Sr. No. 18 of Annexure B and footnote of Sr. No. 24 of Annexure `C' that the services of Drivers are to be outsourced as per rates approved by the Deputy Commissioner.
It is also prayed that the respondents be directed to consider the claim of the petitioners for regularization of their services on the post of drivers.
2. The respondent Punjab State Electricity Regulatory Commission (for short `the Commission') was initially constituted under the Electricity Regulatory Commission Act, 1998. Thereafter, it has been continued as per the provisions of Section 82 of the Electricity Act, 2003.
3. The Government sanctioned various posts for its functioning. It decided to engage ex-servicemen on the posts of driver. In this regard it entered into an agreement with the Punjab Ex-Servicemen Corporation (for short `PESCO') to provide drivers to the Commission.
4. The petitioners are ex-servicemen who have retired after putting in about 17 to 20 years of military service. It is their case that initially they were appointed as drivers between the years 2002 to 2004 on contract basis through PESCO. Later they were given appointment on re-employment basis considering the fact that they had retired from the Indian Army. They filed CWP No 20749 of 2014 Sachidanada and others Vs. State of Punjab and others and CWP No. 20233 of 2015 Jinder Singh and another Vs. State of Punjab and others praying for regularization of their services in view of their having rendered twelve to thirteen years of service. During the pendency of the petition the impugned Regulations were notified where-under the posts of drivers and peons are required to be filled up on contract through outsourcing agency. Accordingly the petitions were dismissed as withdrawn with liberty to challenge the impugned Regulations.
5. Hence the present petition.
6. The impugned Regulations have been framed in exercise of the powers conferred under sub-section (2) (zk) of Section 181 read with sub-section (2) and (3) of Section 91 of the Electricity Act, 2003 (for short `2003 Act'). These Regulations are applicable to all employees of the Commission whether regular, contractual or on deputation. Even the staff appointed in the Commission before the commencement of the Regulations would be governed as per the provisions of these Regulations.
7. The challenge to the Regulations is primarily on the ground of alleged non- compliance with the procedural pre-requisites for framing of the Regulations as mandated under the 2003 Act and the Rules framed thereunder.
8. Assailing the notification Sh. Anand Chibber Ld. Senior Counsel for the petitioners has raised the following arguments.
i. The Regulations have been notified by the Secretary of the Commission who does not have the power to do so under the 2003 Act.
ii. The previous publication procedure as required under the Electricity (Procedure for Previous Publication) Rules, 2005 (for short `2005 Rules') has not been followed.
9. Elaborating his arguments Ld. Counsel stated that as per sub-section (3) of Section 181 of the 2003 Act all the Regulations made by the State Commission are subject to the condition of previous publication. The 2005 Rules prescribe the procedure for previous publication for framing Regulations under sub-section (3) of Section 177, sub-section (3) of Section 178 and sub-section (3) of Section 181. Hence, for framing of the impugned Regulations the procedure of previous publication specified in the 2005 Rules was to be complied with. The 2005 Rules require that before making the regulations the Commission shall publish a draft of the regulations for the information of persons likely to be affected thereby
