Allahabad High Court

State Of Uttar Pradesh Through The ... vs Kalpana Verma And Another on 6 September, 2017

Bench: Sudhir Agarwal, Ravindra Nath Mishra-Ii




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 
Case :- SERVICE BENCH No. - 11004 of 2017
 
Petitioner :- State of Uttar Pradesh Through the Principal Secretary and others
 
Respondent :- Kalpana Verma and another
 
Counsel for Petitioner :- Standing Counsel
 
Counsel for Respondent :- C.S.C.,Ratnesh Chandra
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Sri R.K. Singh, Additional Advocate General assisted by Sri Ashotosh Singh, Advocate for petitioners and Sri Ratnesh Chandra, learned counsel for respondent-1.

2. This writ petition filed under Article 226 of the Constitution of India is directed against the judgment and order dated 01.04.2009 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 690 of 2004 directing petitioners to count service rendered by Claimant-respondent-1 i.e Kalpana Verma in Integrated Area Development Agency (hereinafter referred to as " IADA") after absorption in the Government service as per Government Order dated 11.08.2008 treating it to be service rendered in the Government department, with all consequential benefits. Petitioners have also challenged order dated 18.04.2017 passed by Tribunal in Contempt Case No. 276 of 2009 issuing Bailable Warrant to Petitioner- 2 for non compliance of directions contained in Tribunal's judgment dated 01.04.2009.

3. It is contended that IADA was a society, registered under Societies Registration Act, 1860 (hereinafter referred to as "Act 1860") and, therefore, service rendered under said Society would not count for any purpose after absorption of Claimant-respondent in Government Service and Government Order dated 11.08.2008 is not applicable for this purpose.

4. Sri Ratnesh Chandra, learned counsel for Claimant-respondent on the contrary submitted that after judgment rendered by Tribunal, contempt proceedings were initiated and those proceedings were challenged by petitioner before this Court wherein writ petition has been dismissed. Hence, this writ petition challenging judgment of Tribunal in Claim Petition No. 690 of 2004 is barred by Order 2, Rule 2 of Code of Civil Procedure (hereinafter referred to as "CPC") and for this purpose he has relied on the judgment of this Court in Project Manager, Construction and Design Service U.P. Jal Nigam Vs. Ajay Kumar Maurya and others, 2003 (52) ALR 298.

5. Facts in brief, giving rise to present dispute are as under.

6. Secretary to Government of U.P, Lucknow issued a Government Order dated 10.11.1954, to assist and accelerate planned development of State by means of discovery, testing and adaptation of new ideas,techniques and methods through observation, pilot experimentation, evaluation of field work and investigation into the extent and causes of significant successes, failures and difficulties encountered by the field staff in rural areas and for that purpose approved a three years scheme for establishment of a Rural Research-Cum-Action Institute with Headquarters at Lucknow. The institute was to be an independent body under direct control of Chief Minister. It,however, for practical purposes, was linked with Planning and Development Organization and it was provided that it will be a branch of "Planning Department". Consequently, w.e.f 01.04.1954 certain posts of staff were sanctioned by aforesaid Government Order. Thereafter, Planning Department's Orders dated 26.07.1976 and 26.03.1977 sought to create IADA for districts Ghazipur and Baliia, as a registered body at district level. It also provided that after establishment of District Rural Development Authority (hereinafter referred to as " DRDA"), the IADA, Ghazipur/Baliia shall automatically seize. Consequently, IADA was constituted and registered under Act, 1860. Vide Government Order dated 26.07.1976 , planning department also sanctioned following posts on temporary basis for each IADA:-

dz-l

in uke

inksa dh la[;k

osru dze (Revised scale)

3000-4500

IzkstsDV ,MfefuLVszVj

: 800&1450

eq[; fyfid ,oa ys[kkdkj

: 280&460

lka[dh; lgk;d

: 350&700

vkys[ku izys[ku

: 280&460

vk'kqfyfid

: 300&500

[ktkaph ,oa Vadd

: 230&320

eslstj

165&215

;ksx

SS.No

Name of post

Numbers of post

Pay Scale (Revised scale)

3000-4500

Project Administrator

Rs. 800&1450

Head Clerk and accountant

Rs. 280&460

Statistics Assistant

Rs.350&700

Noting and drafting

Rs. 280&460

Stenographer

Rs.300&500

Accountant and Typist

Rs.230&320

Messenger

Rs. 165&215

Total

(English Translation by Court)

7. Claimant-respondent Smt. Kalpana Verma was appointed on adhoc basis as Assistant Development Officer in IADA, Ghazipur vide order dated 31.07.1980. IADA ceased to have any work and, therefore, vide Government order dated 28.02.1997 its winding up was directed and it was also provided that existing 13 class-III employee of IADA may be absorbed in Planning, Research and Action Division of State Planing Institute, U.P, Lucknow.

8. Consequently, Claimant-respondent was absorbed on the post of Research Assistant vide order dated 24.04.1998 in the aforesaid Institute. She filed Clam Petition No. 690 of 2004, for claiming benefit of selection grade and promotional scale by counting her services rendered in IADA and prayed for setting aside order dated 21.03.2003 and 18.08.2003 whereby aforesaid benefits were denied on the ground that services rendered by Claimant-respondent in IADA cannot be taken as service rendered in the Government department since IADA was a society.

9. Claim of claimant-respondent was contested by petitioners by filing written statement pointing out that services rendered in Society cannot count as service rendered in a Government department.

10. Tribunal, however, vide judgment dated 01.04.2009, impugned in this writ petition, has allowed claim petition, set aside orders dated 21.03.2003 and 18..08.2003 and directed petitioners to take a decision for grant of selection grade and promotional scale from due date to Claimant-respondent in the light of Government Orders dated 02.12.2000 and 11.08.2008, by giving credit to services rendered by her in IADA, in view of Government order dated 11.08.2008. It is this judgment and order passed by Tribunal which has been challenged in this writ petition.

11. It appears that after the judgment dated 01.04.2009, petitioners passed an order holding that service rendered in IADA was not service rendered in a Government Department, therefore, Claimant-respondent is not entitled for any benefit. Claimant-respondent filed a contempt petition before Tribunal stating that petitioners have deliberately disobeyed judgment of Tribunal passed on 1.4.2009 whereupon petitioners were directed to comply with judgment, strictly, and file compliance report. This order dated 12.7.2010 of Tribunal was challenged before this Court in Writ Petition No. 1396 (S/B) of 2010. This Court held that writ petition is premature and dismissed the same on 04.11.2015. Thereafter the petitioners passed a fresh order on 01.03.2016 and placed the same before Tribunal stating that judgment has been complied with but Tribunal prima facie found that the order was in the teeth of Tribunal's judgment dated 1.4.2009 and hence issued Bailable Warrant to petitioner no.2. It is this order which has also been challenged in this writ petition.

12. Learned counsel for claimant-respondent stated that the judgment dated 01.04.2009 passed by Tribunal, for the first time, has been challenged by filing this writ petition in 2010 and, therefore, this writ petition suffers the vice of undue delay and laches. He also urged that so far as order dated 18.4.2017 is concerned, with regard to order dated 12.7.2010 passed in contempt matter, earlier writ petition has already been dismissed and hence this writ petition is barred by order 2 Rule 2 and it should be dismissed in its entirety.

13. It is in this backdrop, we have to examine the entire matter. Admittedly, Claimant-respondent was an employee of IADA which was a Society registered under Act, 1860. Neither ''Society,' even if founded by Government can be treated to be a department of Government nor employees o.f said ''Society' can be said to be holders of civil post and Government servants. In our view this position is well established.

14. In the context of employees of DRDA, which is also a Society registered under Act, 1860, this issue has already been considered by a Division Bench of this Court in Special Appeal No. 687 of 2010 (State of U.P Vs. Pitamber). Court formulated following question:

"Whether employees of DRDA are Government employee and are holding civil post in the civil service of State to make applicable Fundamental Rule 56."

15. Two more questions were formulated by Court, as under:

"(1) Considering the Bye-laws of the Society and more specifically Bye-laws 19 and 20 (h) read with Government Notification dated March 17, 1994, was it open to the State Government to have issued the Government Order dated 09.03.2004 fixing the age of retirement of the employees of DRDA as 58 years?

(2) Whether the employees of DRDA are holding civil posts and/or are Government employees of the State, in order to make applicable Rule 56 of the Fundamental Rules and, consequently,would they be governed by Government Notification dated 28.11.2001, whereby the age of retirement of the government servants has been fixed as 60 years under Rule 56 of the Fundamental Rules?"

16. Answering the above questions, in paras 16 and 17, Division Bench said in its judgment dated 19.08.2010 as under:

"16. Considering the above referred judgments and the material on .record, it will be clear that firstly the DRDA is a Society registered under the Societies Registration Act. Its funding is 70 percent from the Central Government and 30 percent from the State Government. The members of the Society and also the Working Committee are basically persons holding the posts in government service, mostly in the State Government and some in the CentralGovernment, as the object is of rural development. Bye-law 20 (h) recognizes that the staff are to be appointed by the Governing Body. Th.e accounts are to be approved by the Governing Body in its annual general meeting. Suits are to be filed against the Society. Thus, though there may be funding by the Central/State Governments and control by the State Government, nonetheless they are employees of the Society. Some posts are filled up on transfer by the Governor and in respect of others, appointments are to be made by the Chief Executive Officer, who is the District Magistrate. Considering the tests laid down in Kanik Chandra Dutta (supra), we are clearly of the opinion that the tests laid down in the judgment of the Supreme Court are not satisfied. Once it is held that they are the employees of DRDA and are not holding civil posts in the service of State, Rule 56 of the Fundamental Rule would not apply to them.

17. In the light of that, we are clearly of the opinion that the appeal filed by the State will have to be allowed. The employees of DRDA after 09.03.2004 will have to retire at the age of 58 years. Consequently, we hold that the view taken by the learned Single Judge in the case of Kalika Prasad (supra) that Rule 56 of the Fundamental Rules would apply so far as the employees of DRDA are concerned, does not lay down the correct law and, hence, we overrule the judgment in Kalika Prasad (supra) and all other judgment which have taken a similar view."

17. Initially a similar issue was raised in Heavy Engineering Mazdoor Union Vs. State of Bihar and ors 1969 1 SCC 765 it was argued that the entire shares were held by Central Government; Board of Directors as well as Chairman and Managing Director were appointed by Central Government and in all matters of importance,. power to take decision was reserved to the President of India, therefore company should be treated to be an 'industry' carried on under the authority of Central Government. A three Judges Bench considered the matter and observed " A commercial corporation acting on its own behalf, even though it is controlled wholly or partly by Government department, will be ordinarily presume not to be a servant or agent of State.

18. Matter again came up for consideration before a Constitution Bench in Steel Authority of India and others Vs. National Union Water Front Workers and ors 2001 7SCC 1 Court said:

" There can not be any dispute that all the Central Government companies with which we are dealing here or not and can not be equated to the Central Government though they may be "State" within the meaning Article 12 of the Constitution".

19. An Argument was advanced that Kanpur Jal Sansthan is a Government department in Kanpur Jal Sansthan and another Vs. Bapu Construction 2015 5SCC 267 but it was negatived by observing

"The submission of learned counsel for appellant that the appellant being a Jal Sansthan it would come within the extended wing of the Government does not commend acceptance".

20. In State of Punjab and others Vs. Raja Ram and others 1981 2SCC 66, Court followed and referred, with approval, following passage from Ramana Dayaram Shetty Vs. International Airport Authority of India and others 1979 3SCC 489

" Even the conclusion, however that the corporation is an agency or instrumentality of Central Government does not lead to the further inference that the corporation is a Government Department".

21. In Food Corporation of India Vs. Municipal Committee, Jalalabad AIR 1999 SC 2573, in the context of imposition of House Tax under Punjab Municipality Act, 1911, Court held that Food Corporation of India was a Government company but not a 'Government department' and, therefore, a distinct entity from Central Government. Similar view was taken in the context of M/s Electronics Corporation of India Ltd which is also a Government company in M/s Electronics Corporation of India Ltd etc Vs. Secretary Revenue Department, Government of Andhra Pradesh AIR 1999 SC 1734.

22. In A.K.Bindal and anothers Vs. Union of India and others 2003 5SCC 163, Court said:

" The legal position is that identity of Government company remains distinct from the Government. The Government company is not identified with the union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of Companies Act. Merely because the entire shareholding is owned by Central Government will not make the incorporated company as Central Government".

23. In Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others 2002 5SCC 111, Court said that a company may be an agency or instrumentality of Government for limited purpose may be "State" within the ambit of Article 12 of the Constitution but it can not be said to be a Government or department of Government.

24. In the context of "National Textile Corporation Ltd", Court in its judgment in National Textile Corporation Ltd Vs Naresh kumar Badri Kumar Jagad and others AIR 2012 SC 264 said that it is neither Government nor department of Government but a 'Government company'. It cannot identify itself within Central Government.

25. Applicability of Article 311(1) in respect of employees of State Bank of Patiala came to be considered in Satinder Singh Arora Vs. State Bank of Patiala and others 1992 Supp (2) SCC 224. Court held that employees of Bank do not belong to such category to which Article 311(1) applies. Relevant observations made in para 8 of judgment read as under:-

"8. Mr. Garg then submitted that the Regulation 67(g) read with Regulation 68(1)(ii) permits hostile discrimination, in that, while in the case of employees governed by Article 311(1) only the authority which had actually appointed the officer can terminate his service whereas under the Regulation any officer even lower than the one who initially appointed him could be designated as the appointing authority and once so designated he can visit the employee with an order of major punishment. We do not think that the submission is well founded. Article 311(1) governs those belonging to certain stated services to which employees - the petitioner does not belong. The petitioner clearly belongs to a different class whose terms and conditions of employment are governed by a different set of regulations. The petitioner is, therefore, governed by the Regulations and as the Regulations stood at the date of the passing of the impugned order the Managing Director was clearly competent to pass the impugned order of removal." (emphasis added)

26. Similar issue in the context of employees of State Bank of India came up for consideration in State Bank of India Vs. S. Vijaya Kumar (1990) 4 SCC 481 where Court held:-

"The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution." (emphasis added)

27. In Rajasthan State Road Transport Corporation Ltd. and others Vs. Gurudas Singh (2004) 13 SCC 418, an argument was advanced that Rajasthan State Road Transport Corporation being an authority under Article 12, employees would be entitled for protection under Article 311 of Constitution of India. Repelling it, Court in paras 7-10, said:-

"7. A bare reading of the aforesaid provision in the Constitution shows that it is applicable only to a member of civil service or the Union or all-India service or civil service of a State or a person holding civil post under the Union or a State.

8. For the purpose of Article 12 the Corporation may be treated as an "authority" for the purpose of being subject to Part III of the Constitution.

9. In Som Prakash Rekhi Vs. Union of India this Court categorically observed that Bharat Petroleum Corporation Ltd. was a limb of Government, an agency of the State, a vicarious creature of the statute working on the wheels of the Acquisition Act. It was however held that the conclusion does not mean that for the purpose of Article 309 or otherwise, the aforesaid government company is a State and it was limited to Article 12 and Part III of the Constitution.

10. Judged in the light of the decisions of the two Constitution Bench decisions referred to above, the inevitable conclusion is that the respondent was not entitled to protection under Article 311 of the Constitution. Article 311 occurs in Part XIV of the Constitution which deals with "Services under the Union and the States" and more specifically in Chapter I of that part which deals with "Services". The head of the article reads "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State". The text of the article refers to members of civil services of the Union or State". The text of the article refers to members of civil services of the Union or an all-India service or a civil service or a civil post under the Union or a State. A Constitution Bench of this Court in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. considered as to who are the persons entitled to the protection of Article 311. In State of Assam Vs. Kanak Chandra Dutta also applicable tests were indicated by a Constitution Bench." (emphasis added)

28. In Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Ltd. Haldia and others (2005) 7 SCC 764 relying on Constitution Bench judgment in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. (1970) 1 SCC 177, Court held that "an employee of a Corporation cannot be said to have held a "civil post" and, therefore, not entitled to protection of Article 311. According to Court, Corporation could not be said to be a "Department of Government" and employees of such Corporation were not "employees under Union". Corporation has an independent existence and appellant was not entitled to invoke Article 311.

29. Society, therefore, cannot be said to be a department of Government or part and parcel of the "Government" though it may be a 'State' within the ambit of Article 12 of Constitution of India for different purposes.

30. Tribunal has also misread and misapplied decision in K. Madhwan Vs. Union of India 1987 4SCC 566 wherein question was, when a person is transferred from one Government department to another, whether service in the earlier Government department should be counted or not but that decision have no application to the case in hand since it is not a case of transfer from one Government department to another or absorption of service from one Government department to another Government department but here Claimant-respondent was an employee of a 'Society' and after winding up of 'Society', when Claimant-respondent had become surplus, instead of rendering unemployed, she was absorbed in Government service, hence it is not a case of shifting of Claimant-respondent from a Government department to another.

31. Tribunal has referred to a Government order dated 11.08.2008 which also talks of service rendered on the post of same designation and pay scale in two different departments of the Government. It is thus clear that aforesaid Government order talks of department of State Government and not autonomous body or society etc. The aforesaid Government order reads as under:-

"le;eku osrueku dh O;oLFkk ds laca/k esa fuxZr Li"Vhdj.k fo"k;d 'kklukns'k la[;k&os0vk0&2&[email protected] 10&2004&45¼,e½@99 Vh0lh0 fnukad 20 vxLr] 2004 ds layXud ds fcUnq la[;k&5 esa ,d in dk vk'k; Li"V djrs gq, ,d gh inuke vFkok leku osrueku okys in ij nks foHkkxksa esa dh x;h lsok dks x.kuk esa u ysus rFkk ,d gh fOkHkkx ds ,sls in tks ,d laoxZ ds gSa vkSj vkil esa LFkkukUrj.kh; gSa rFkk ofj"Brk lwph ,d gS dks NksM+dj ,d gh fOkHkkx eas leku osrueku esa fHkUu&fHkUu inksa ij dh x;h lsok dks x.kuk esa u fy;s tkus dh O;oLFkk dh x;h gSA ,sls ekeyksa esa tgka fdlh laoxZ esa leku osrueku ds in ls inksUufr gksrh gS vFkok leku osrueku ds nks inksa dks lafoyhu fd;k tkrk gS ogk¡ lacaaf/kr in/kkjd dk osru fu/kkZj.k iwoZ in ij vkgfjr ewy osru ds leku Lrj ij gh gksrk gS rFkk le;eku osrukeku esa iwoZ in dh lsok,a u tksM+s tkus ls mUgsa gkfu gksrh gSA

2&mi;qZDr fLFkfr ij lE;d fopkjksijkUr ;g fu.kZ; fy;k x;k gS fd leku osrueku ds in ij [email protected];u ds QyLo:i lacaf/kr in/kkjd dks x;s /kkfjr in ij le;eku osrueku dh vuqeU;rk gsrq lsokof/k dh x.kuk es iwoZ in dh lsokvksa dks tksM+k tk;sxkA

3&'kklukns'k la[;k&os0vk0&2&[email protected]&2004&45¼,e½@ 99 Vh0lh0 fnuakd 20 vxLr 2004 ds Li"Vhdj.k fo"k;d layXud ds foUnq la[;k&5 dks mDr lhek rd la'kksf/kr le>k tk;A

"In Point Number-5 of the Annexure of the Clarification Government Order Number-Ve.Aa.-2-257/10-2004-45(M)/99 T.C., dated 20.08.2004 issued regarding the arrangement (provision) of time- scale,explaining the meaning of one/same post, an arrangement (provision) has been made to not count the services rendered in two departments on the posts having same name or having same pay-scale and to not count the services rendered in the same department on different posts having same pay-scales except the services rendered in the same department on such posts which are of same cadre and mutually transferable and their seniority list is common (one). In such matters where promotions are made in any cadre from the post of same pay-scale or two posts of same pay-scale are merged, there the fixation of the pay of concerned incumbent is made at the same level of basic pay drawn for earlier held post and loss is caused to them due to not counting/adding the services rendered on the earlier (held) post for the purpose of granting time-scale.

2- After due consideration of above situation, this decision has been taken that in consequence of promotion to the posts of same pay-scale/ merger, the services rendered on earlier post shall becounted/added in calculation of (qualifying) service period for the purpose of granting time-scale to such concerned incumbent on the new held post.

3-The Point Number-5 of the Annexure regarding explanation of Government Order Number- Ve.Aa.-2-257/10-2004-45(M)/99 T.C., dated 20.08.2004 shall be deemed amended upto aforesaid extent. (English Translation by Court)

32. Without appreciating this distinction that the said Government order talks of the service rendered on posts with same designation or pay scale in two different departments of Government, Tribunal has misconstrued and misapplied the same to IADA which was a 'society' registered under Act, 1860 and not a department of Government.

33. Learned counsel for claimant-respondent submitted that petitioners are guilty of laches inasmuch as judgment was passed by Tribunal on 01.04.2009 but the same was not challenged before this Court in appropriate proceedings. It is only when an order was passed on 12.07.2010 in contempt proceedings, writ petition no. 1396 of 2010 was filed but the same was dismissed on 04.11.2015 and, therefore, fresh writ petition challenging the order passed in contempt proceedings subsequently is not maintainable.

34. We find that in writ petition no. 1396 of 2010, petitioners have not challenged validity of judgment and order dated 01.04.2009 passed in Claim Petition No. 690 of 2004. Earlier writ petition was confined in its challenge to the order dated 12.07.2010 passed by Tribunal in contempt proceedings. Said writ petition was dismissed observing that petitioners have approached this court at pre-mature stage. Order dated 04.11.2015 reads as under:-

"Heard learned counsel for the petitioner-State and learned counsel for the respondent.

This writ petition has been filed challenging the order dated 12.07.2010 passed by the State Public Services Tribunal, Lucknow.

By means of the aforesaid order, the petitioners have been asked to file a fresh compliance report in the light of the direction given by the Tribunal. In the meantime, the petitioners have rushed to this Court by filing the present writ petition.

Fresh compliance report has not been filed up till now. It appears that the petitioners have approached this Court at a premature stage. Fresh compliance report was still awaited before the Tribunal.

We, therefore, do not find any merit in this petition. It is accordingly dismissed.

35. It is submitted by learned counsel for petitioners that thereafter an order was passed on 01.03.2016 by petitioners and compliance report was submitted alongwith said order, still Tribunal has proceeded further holding that judgment and order dated 01.04.2009 has not been complied with.

36. We find that case set up by petitioners is that Tribunal only directed competent authority to take a decision for grant of selection grade and promotional scale to Claimant-respondent and, therefore, it was open to authority concerned to deny her benefit by holding that Government order dated 11.08.2008 was not applicable to her but this assumption or understanding on the part of the petitioner was erroneous and clear misconception. Tribunal in para-7 and 8 of judgment has categorically observed that Government order dated 11.08.2008 shall apply to Claimant-respondent and she is entitled to count her previous service as per said Government order. Since this declaration was already made by Tribunal, it was not open to Petitioner-2 to take a different view and as such an attempt and endevour on its part to over-reach amounts to sitting over judgment of Tribunal which cannot be appreciated and commended.

37. The judgment and order of Tribunal dated 01.04.2009 if otherwise would have been valid, we would have no hesitation in holding that petitioners have clearly misdirected themselves by taking a decision that Government order dated 11.08.2008 is not applicable to claimant respondents when Tribunal had already made declaration otherwise and such endevour on the part of petitioners is nothing but a blatant disregard and disobedience of order of Tribunal and would have justified contempt proceedings against them. It is also true that petitioners are guilty of laches in challenging the order dated 01.04.2009 passed by Tribunal by challenging the same in this writ petition filed in 2017 i.e after almost eight years. However, since the judgment of Tribunal is patently illegal and has resulted in a blatant breach of settled law, we have proceeded to condone laches and delay and decide the matter on merits.

38. However, we find it reasonable to place on record our strongest disapproval to the conduct shown by petitioners in reading and understanding the judgment, and thereafter the manner in which they acted, after passing judgment by a judicial or quasi judicial statutory body, directing Government and its authorities to take a decision in the light of observations made therein. It is really surprising that authorities instead of taking care of declaration and findings recorded by adjudicating body, simply ignore the same and read only the last two lines of operative part and proceed to take upon themselves the task of re-examining the matter, which had already been examined and adjudicated by adjudicatory forum in a particular manner.

39. In the present case also, instead of caring of going through entire judgment, petitioners competent authority only looked into operative part of judgment, took a decision on its own and felt satisfied that it has complied with judgment of Tribunal though it was not. It shows not only a sheer negligence and carelessness on the part of competent authority but also an illustration of incompetence on the part of authority concerned that it passed an order without caring to go through the entire judgment of Tribunal.

40. Thus, considering the fact that judgment and order dated 01.04.2009 passed by Tribunal is patently illegal and in the teeth of well settled law that ''Society' registered under Act, 1860, even if constituted or promoted by Government and funds are made available by Government, cannot be treated to be a department of Government and employees of "Society" cannot be treated to be employees of State Government or holders of civil post, we do not find it a fit case to decline exercise of our jurisdiction under Article 226 on delay and laches.

41. Coming to second aspect, we find it difficult to subscribe to the submission of learned counsel for Claimant-respondent that this writ petition is barred by Order 2 Rule 2. The argument advanced by learned counsel for claimant-respondent that present writ petition against judgment and order of Tribunal passed in contempt matter is barred by Order 2 Rule 2 is misconceived. Earlier writ petition has been dismissed as premature, hence, Order 2 Rule 2 has no application.

42. Now coming to laches, we find that it is a self imposed restriction on the part of Courts not to entertain a petition when petitioners are guilty of unexplained delay and laches but when this Court finds that a patently illegal order has been passed by a subordinate adjudicatory forum and is likely to perpetuate illegality, this restriction is not considered an absolute bar to prevent this Court from interfering so as to put the things straight, correct and remove the cause of injustice by setting aside patently illegal order. The judgment of Division Bench of this Court in Project Manager, Construction and Design service U.P. Jal Nigam Vs. Ajay Kumar Maurya (supra) relied by learned counsel for claimant-respondent has no application to this present case.

43. In the result, writ petition is allowed. Tribunal's judgment and order dated 01.04.2009 passed in claim petition no. 690 of 2004 is hereby set aside. Further, subsequent contempt proceeding and all orders passed therein for alleged non compliance of aforesaid judgment, also become illegal, and same are also set aside.

44. Parties shall bear their own cost.

Order Date :- 6.9.2017

Pachhere/-

Case :- SERVICE BENCH No. - 11004 of 2017

Petitioner :- State of Uttar Pradesh Through the Principal Secretary and others

Respondent :- Kalpana Verma and another

Counsel for Petitioner :- Standing Counsel

Counsel for Respondent :- C.S.C.,Ratnesh Chandra

Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

Allowed.

For details see our judgment of date