State Of U.P.Through ... vs Rajendra Prasad Tiwari
2018 Latest Caselaw 305 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 1
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 196 of 2018
 

 
Appellant :- State Of U.P.Through Secy.Revenue Govt.Of U.P.Lko.& Ors.
 
Respondent :- Rajendra Prasad Tiwari
 
Counsel for Appellant :- C.S.C.
 
Counsel for Respondent :- Rama Kant Dixit
 

 
Hon'ble Vikram Nath,J.

Hon'ble Abdul Moin,J.

(Per Hon'ble Justice Abdul Moin, J.)

C.M. Application No.49206 of 2018.

Heard Sri Sanjay Sarin, learned Standing Counsel for the applicants and Sri Rama Kant Dixit, learned counsel representing the sole respondent.

The appeal has been filed beyond time by 7 months and 22 days.

As the delay has been satisfactorily explained, the application for condonation of delay is allowed and the delay in filing the appeal is condoned.

Let the appeal be treated to be within time.

Order on Special Appeal.

1. Heard Sri Sanjay Sarin, learned Standing Counsel for the appellants and Sri Rama Kant Dixit, learned counsel representing the sole respondent.

2. The instant appeal has been preferred challenging the judgment and order dated 3.8.2017 passed by the learned Single Judge in Writ Petition (S/S) No.4963 of 2015 In re: Rajendra Prasad Tiwari vs. State of U.P. and others by which the learned Single Judge has held the petitioner/respondent herein (hereinafter referred to as the petitioner) as entitled to similar benefits in view of the earlier judgment passed by this Court on 19.8.2014 in Writ Petition (S/S) No.4031 of 2001 In re: Pratap Narain Pandey vs. State of U.P. and others. Learned Single Judge also held that the petitioner would not be entitled to any salary for the past period, but would be entitled to continuity of service in terms of the order passed in Pratap Narain Pandey's case (supra) and would also be entitled to work till he attains the age of superannuation and thereafter shall be entitled to retiral benefits by granting benefit of service with effect from 5th June, 1986 till the age of superannuation, however, without any salary for the intervening period.

3. The case set forth before the learned Single Judge by the petitioner was that sometimes in the year 1986 applications were invited for the post of Collection Amin in District Sultanpur. The petitioner had applied and after the written examination he was declared passed and after physical test and interview a select list of 186 candidates was prepared in which the name of the petitioner found place at Serial No.179. However, instead of appointing the petitioner as Collection Amin, he was only allowed to work as Seasonal Collection Amin in 1986 and continued to work in the said capacity till the year 2000. The petitioner being aggrieved against not being permitted to work as a regular Collection Amin, filed Writ Petition (S/S) No.2354 of 2002 claiming regular appointment on the post of Collection Amin. Earlier, another selected candidate similar to the petitioner namely Pratap Narain Pandey had filed Writ Petition (S/S) No.10539 of 1990 claiming regular appointment wherein an interim order was passed requiring the appellants to consider the claim of Pratap Narain Pandey. However, the claim of Pratap Narain Pandey came to be rejected. Pratap Narain Pandey thereafter filed Writ Petition (S/S) No.4031 of 2001 challenging the order whereby his claim was rejected. The said writ petition was decided on 19.8.2006 by this Court allowing him to work as regular Collection Amin and treating him as regular Collection Amin since 5.6.1986. Likewise, other candidates also preferred writ petition claiming parity of the order passed in the case of Pratap Narain Pandey (supra) which was also allowed. A special leave petition also came to be filed against the orders passed by this Court but the same was also dismissed. In the meanwhile, the petitioner coming to know about the order dated 19.8.2006 moved an application in his earlier pending Writ Petition (S/S) No.2354 of 2002 claiming the benefit of the order dated 19.8.2006 and his writ petition was disposed of on 18th May, 2012 with a direction to the District Magistrate, Sultanpur to decide his representation in the light of the judgment of this Court dated 19.8.2006. Subsequent thereto, the claim of the petitioner was rejected vide order dated 27.8.2012 on various grounds. The said order was again challenged by the petitioner by filing Writ Petition (S/S) No.6646 of 2012 which petition was disposed of on 19.8.2014 by this Court by which the State Government was directed to verify the petitioner's status in comparison to the facts of the Pratap Narayan Pandey's case (supra) and take a decision in his matter. Again the claim of the petitioner was considered but was rejected vide order dated 15.9.2014 passed by the District Magistrate, Sultanpur which was again challenged by the petitioner by filing Writ Petition (S/S) No.4963 of 2015.

4. This Court vide judgment and order dated 3.8.2017, taking into consideration the entire facts and circumstances of the case and the fact that the earlier judgment on similar facts and circumstances pertaining to the same selection, had already been affirmed by the Hon'ble Supreme Court and also that the petitioner had successfully qualified the selection for the post of Collection Amin and his name found place in the select list in which the name of other successful candidates including Pratap Narain Pandey were found, arrived at a specific finding that the action of the respondents (appellants herein) in denying benefit of his selection on the ground that he was engaged as Seasonal Collection Amin could not be sustained and that the respondents (appellant herein) were not justified in treating the petitioner to be a Seasonal Collection Amin and thus set-aside the order passed by the District Magistrate and issued a mandamus to the respondents-State to pass a fresh order extending same benefit to the petitioner as has been granted by this Court in Pratap Narain Pandey's case (supra). The learned Single Judge has also held, as already indicated above, that the petitioner would not be entitled to any salary for the past period, but would be entitled to continuity of service in terms of the order passed in Pratap Narain Pandey's case (supra) and would also be entitled to work till he attains the age of superannuation and thereafter shall be entitled to retiral benefits by granting benefit of service with effect from 5th June, 1986 till the age of superannuation, however, without any salary for the intervening period. It is this order of learned Single Judge that has been challenged in this special appeal.

5. The learned Standing Counsel appearing for the appellants has contended that because the petitioner had approached this Court only in the year 2012 i.e. after a period of more than 6 years of passing of the order in the case of Pratap Narayan Pandey (supra), consequently the learned Single Judge was not justified in extending the benefit of the said judgment to the petitioner. It has also been contended that as the petitioner was working as Seasonal Collection Amin and recovery percentage of the petitioner in 4 Fasli years was not as per the standard prescribed under the U.P. Collection Amin Rules, 1974, he was not entitled for regular appointment and further it has been contended that the petitioner has already attained the age of superannuation of 60 years on 31.1.2017 and consequently would not be entitled to any benefit.

6. Thus the main ground of challenge on the part of the appellants appears to be the delay on the part of the petitioner in filing the writ petition seeking parity of the judgment passed in the case of Pratap Narayan Pandey (supra). We are the least impressed with the said argument inasmuch as it is an admitted fact that the petitioner had qualified in the selection held for the post of Selection Amin in the year 1986 and his name found place in the final select list. Once the learned Single Judge in the case of Pratap Narayan Pandey (supra) held the selected candidate to be entitled for being appointed with all consequential benefits then the State, as a model employer, should have extended the said benefit suo moto to all similarly situated persons and all the similarly situated persons should not have been compelled to approach this Court for similar relief. Even otherwise, as soon as the petitioner came to know that one of the selected candidate has been granted benefit of his appointment by this Court, consequently he approached this Court and the State instead of accepting the claim of the petitioner at the first instance, continued to contest the matter on various grounds. It is not the case here that the petitioner was sitting idle, rather he has preferred a petition in the \year 2002 itself and thereafter on coming to know about the order passed in the case of Pratap Narayan Pandey (supra), moved an application in his pending case claiming the benefit of the judgment and order dated 19.8.2006 which petition was also decided by this Court on 18th May, 2012. Thus the contention on the part of the appellants that the petitioner has approached this Court for the first time only in the year 2012 is not borne out from the record and consequently it cannot be said that the petitioner was not vigilante of his rights or that he was not pursuing his matter vigilantly. Consequently, we reject this ground taken by the appellants.

7. Needless to mention that this aspect of the matter of grant of benefit of the similar judgment is no longer res integra. The Hon'ble Supreme Court in the Constitution Bench Judgment in the case of K.C. Sharma vs. Union of India and others reported in (1997)6 SCC 721 held as under:-

"4 The validity of the retrospective amendments introduced by the impugned notifications dated 5.12.1988 had been considered by the Full Bench of the Tribunal in its Judgement dated 16.12.1993 in O.A. No. 395-403 of 1993 and connected matters and the said notifications in so far as they gave retrospective effect to the amendments were held to be invalid as being violative of Articles 14 and 16 of the Constitution. Since the appellants were adversely affected by the impugned amendments, they sought the benefit of the said decision of the Full Bench of the Tribunal by filing representations before the Railway Administration. Since they failed to obtain redress, they filed the application (O.A. No. 774 of 1994) seeking relief before the Tribunal in April, 1994. The said application of the appellants was dismissed by the Tribunal by the impugned Judgement on the view that the application was barred by limitation. The Tribunal refused to condone the delay in the filing of the said applications.

5 The correctness of the decision of the Full Bench of the Tribunal has been affirmed by this Court in Chairman, Railway Board V/s. C. R. Rangadhamaiah, Civil Appeals Nos. 4174-4182 of 1995 and connected matters decided today.

6 Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned Judgement of the Tribunal is set aside, the delay in filing of O.A. No. 774 of 1994 is condoned and the said application is allowed. The appellant would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its Judgement dated 16.12.1993 in O.A. Nos. 395-403 of 1993 and connected matters."

8. Similarly the Hon'ble Supreme Court in the case of K.I. Shephard vs. Union of India reported in (1987)4 SCC 431 has held as under:-

"19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to moratorium. The employee would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to Court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. Ordinarily the successful parties should have been entitled to costs but in view of the fact that they are going back to employment, we do not propose to make orders of costs against their employers. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves alive to the human problem involved in it."

9. Likewise, the Hon'ble Supreme Court in the case of Amrit Lal Berry vs. Collector of Central Excise, New Delhi and others reported in (1975)4 SCC 714 has held as under-

25. ....... We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court.........."

10. Further, the Hon'ble Supreme Court in the case of Inder Pal Yadav vs. Union of India and others reported in (1985)2 SCC 648 held as under:-

5. ........ There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1(a) (i) by modifying the date from 1.1.1984 to 1.1.1981. With this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re-casting the stages consistent with the change in the date as herein directed."

11. From a perusal of the aforesaid judgments it clearly comes out that it is the settled proposition of law that the State should act as a model employer and not compel each and every similarly situated individual to approach the Court for redressal of his grievance, rather the benefit of a judgment in-rem should be given to all.

12. As regards the ground of the petitioner not fulfilling the recovery percentage in 4 Fasli years, suffice to state that the petitioner was not claiming regularisation of his services after having worked as Seasonal Collection Amin, rather was claiming benefit of selection on the post of Collection Amin which he successfully qualified, hence even this ground has no merit and is rejected.

13. As regards the ground taken by the learned Standing Counsel that the petitioner has already retired on attaining the age of superannuation on 31.1.2017 and consequently, he would not be entitled to any benefit, needless to mention that this aspect of the matter has also been considered by the learned Single Judge and it has been provided that the petitioner shall be entitled to retiral benefits by granting him benefit of service with effect from 5th June, 1986 till the age of superannuation, in this case 31.1.2017.

14. No other ground has been raised during the course of argument.

15. Accordingly, keeping in view the aforesaid discussions, there is no merit in this special appeal and the same is dismissed.

 
Order Date :- 2.5.2018
 
Rakesh
 
(Abdul Moin, J)     (Vikram Nath, J)