Bhanu Pratap Singh vs State Of U.P. Thru. Secy. Revenue ...
2022 Latest Caselaw 4705 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 09.02.2022
 
Delivered on 31. 05.2022
 

 
Case :- SPECIAL APPEAL No. - 448 of 2019
 
Appellant :- Bhanu Pratap Singh
 
Respondent :- State Of U.P. Thru. Secy. Revenue Lko. And Anr.
 
Counsel for Appellant :- Sharad Pathak,Alok Kirti Mishra
 
Counsel for Respondent :- C.S.C. 
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Mohd. Faiz Alam Khan,J

1. This Special Appeal has been filed by the Appellant Bhanu Pratap Singh against the judgement and order dated 13.09.2019 passed by the learned Single Judge rejecting his prayer for mandamus to be issued to the respondents to treat the petitioner as a regular Collection Amin from June, 1986 and to pay him salary/wages along with interest for the said period. The case set forth by the learned counsel for the appellant is that he was initially appointed as Seasonal Collection Amin at Tehsil Amethi, District Sultanpur. A selection was held for the post of regular Collection Amin in 1986 where the petitioner as well as others participated and the result was declared. The name of the petitioner was found at serial No.33 in the Select list. Despite the petitioner and others having been selected as regular Collection Amins they were not given appointment as a regular Collection Amin but were continued as Seasonal Collection Amin. When the service of the petitioner was not regularised, he filed Writ Petition No.287 (S/S) of 2002 for regularisation. The petition was disposed of on 15.01.2002 with a direction to the respondents to consider the case of the petitioner for regularisation on the post of Collection Amin. When the order was not complied with the petitioner preferred a Contempt Petition. The respondents becoming annoyed passed an order on 19.02.2006 rejecting the claim for regularisation.

2. In the meantime one of the several persons who were selected by the same selection as the petitioner as Collection Amin approached this court in Writ Petition No.10539 (S/S) of 1990, Pratap Narain Pandey versus State of U.P. and others, wherein the respondents were directed by an interim order dated 24.05.2000 to consider the writ petitioner for regularisation as Collection Amin in accordance with rules and relevant Government Orders. Pratap Narayan Pandey made a representation which was rejected. Pratap Narayan Pandey thereafter filed Writ Petition No.4031 (S/S) 2001 praying for issuance of a writ in the nature of Certiorari for quashing the order dated 19.09.2000 by which his prayer for regularisation had been rejected. A prayer for was also made for directing the opposite parties to treat the petitioner has regular Collection Amin with effect from 5.06.1986, and to pay him all salary/wages and other benefits for the period when the petitioners' service was wrongly treated as that of Seasonal Collection Amin.

A Single Judge of this court considered both petitions together and called for the records as it it was the case of the writ petitioner therein that selection held in June, 1986 was for the post of regular Collection Amin and not for Seasonal Collection Amin only. From the perusal of the record the learned Single Judge came to the conclusion that a regular selection was held for the post of regular Collection Amin and the petitioner as well as others were selected but they were not granted regular appointment but continued to be engaged as Seasonal Collection Amins. Accordingly, both the Writ Petitions were allowed and the State respondents were issued a mandamus to allow the Writ Petitioner to work as regular Collection Amin as he was duly selected under the U.P. Collection Amin Service Rules 1974 and to be treated as such with effect from 5.06.1986 for the purpose of seniority etc except for salary during the period for which he did not work.

3. One Dinesh Pratap Singh filed Writ Petition No.9482 (SS) 2006 praying for a similar direction as was issued by judgement and order dated 19.08.2006 in the case of Prathap Narayan Pandey. A Learned Single Judge however was of the opinion that benefit of a Select list allegedly made in June 1986 could not be granted to Dinesh Pratap Singh as the Supreme Court had held in several cases that a waiting list/Select list is valid for a period of one year and cannot be extended beyond that period for grant of appointment to persons allegedly selected therein. The Single Judge therefore observed that the judgement and order dated 19.08.2006 passed in Writ Petition of Pratap Narayan Pandey required reconsideration by a Larger Bench. The matter was placed before the Larger Bench i.e. the Division Bench which examined the contents of Writ Petition No.4031 (S/S) 2001, and the judgement and order dated 19.08.2006 rendered therein and observed that the Single Judge on examination of records had found that the petitioner Pratap Narayan Pandey, was not selected on the post of Seasonal Collection, Amin. He had applied in pursuance of an advertisement for the post of regular Collection Amin through direct recruitment and was selected after written examination and interview. He was wrongly given appointment as Seasonal Collection Amin. The question of the validity of the Select list was not in issue and was not decided by the court in the case of Pratap Narain Pandey. The judgement of the Single Judge in Pratap Narayan Pandey was also not challenged in Special Appeal by the State Respondents and it attained finality. Such a judgement therefore could not be re-considered and reversed in a collateral proceedings in some other Writ Petition. The reference was rejected by the Division Bench by its order dated 9.02.2010. Writ Petition filed by Dinesh Pratap Singh was remanded to the Single Judge to decide afresh. Against the judgement and order dated 09.02.2010 passed by the Division Bench the State Government preferred Special Leave Petition which was dismissed on 13.12.2010.

4. Thereafter, a number of persons who were selected in the year 1986 alongwith Pratap Narain Pandey agitated their grievance before this court praying for giving them similar treatment. The court granted benefit of judgement rendered in the case of Pratap Narayan Pandey to a number of persons i.e. to Ram Milan Dubey and others in Writ Petition No.784 (S/S) 2011 connected with Writ Petition No.1235 (S/S) 2011 Mohammed Usman Ansari versus State of U.P. and others, decided on 06.09.2011, against which two Special Appeals were filed by the State of U.P. and both were dismissed by the Division Bench of this Court on grounds of delay.

Prem Chand Gupta filed Writ Petition No.7575 (S/S) 2011 which was allowed on 17.10.2011.

Deependra Prakash Tiwari filed Writ Petition No.8362 (SS) 2011 which was allowed on 21.11.2011.

Parshuram and others filed Writ Petition No.2715 (SS) 2012 which was decided on 29.05.2012.

Jagadamba Prakash Yadav filed Writ Petition No.2731 (S/S) of 2012 which was allowed on 29.05.2012.

Against the judgements in these four petitions which granted parity to the Writ Petitioners with Pratap Narain Pandey, no Special Appeals were filed by the State Government. The orders were presumably also complied with.

5. One Arun Kumar filed Writ Petition No.28946 (S/S) 2012 which was decided on 31.05.2012, Arun Kumar Upadhyay filed Writ Petition No.4061 (S/S) 2012 which was decided on 01.08.2012. Chandrabhan Singh and others filed Writ Petition No.4587 (S/S) 1991 which was decided on 28.10.2010. Yamuna Prasad Gupta filed Writ Petition No.2189 (S/S) of 2016 which was decided on 26.09.2012. Ram Naresh Mishra filed Writ Petition No.1437 (S/S) of 2014 which was disposed of on 25.03.2019 while making detailed observations with regard to benefit being given to other similarly situated persons as Pratap Narayan Pandey and Rajendra Prasad Tiwari.

6. Chakravarti Sharan Pandey filed Writ Petition No.828 (S/S) 1993 which was decided on 18.10.2012. Against the said judgement the State filed Special Appeal No.187 of 2013: State of U.P. Vs. Chakravarti Sharon Pandey, which was dismissed on 08.04.2013.

Against the judgements rendered in the cases of Mohammed Usman Ansari, Chandrabhan Singh, Bindeshwari Prasad and another, Arun Kumar Upadhyay, and Bhuvnesh Kumar Tiwari, the State Government filed several Special Appeals, the leading case being Special Appeal No.110 of 2012. All such Special Appeals were dismissed by a Division Bench on 08.08.2014.

7. Rajendra Prasad Tiwari filed Writ Petition No.5646 (S/S) 2012 which was allowed on 19.08.2014. The State Government filed Special Appeal No.196 of 2018 which was dismissed by detailed judgment on 02.05.2018.

8. Against the judgement rendered in Yamuna Prasad Gupta Special Appeal No.208 of 2016 was filed which was dismissed on grounds of delay on 13.08.2019.

Against the judgement in the case of Ram Milan Dubey and others, the State Government filed Special Appeal No.205 of 2016 which was dismissed again on grounds of delay by Division Bench on 17.09.2019.

9. One Jyoti Kumar Lal filed Writ Petition No.3912 (S/S) 2012 which was allowed by the learned Single Judge on 26.07.2012. The State Government filed Special Appeal No.336 of 2016, State of U.P. vs. Jyoti Kumar Lal, wherein the Division Bench observed that the Writ Petition was filed with a huge delay of twenty six years and no explanation for such delay was given by the respondent and learned Single Judge granted the benefit of judgment in the case of Pratap Narayan Pandey without considering the question of huge delay. The Court noticed that in a similar case Special Appeal No.17 of 2016, State of U.P. versus Dan Bahadur Singh was allowed where a person similarly situated as the petitioner, Jyoti Kumar Lal had also filed a petition for giving of benefit of judgement rendered in the case of Pratap Narayan Pandey. The Division Bench allowed the Special Appeal in the case of Dan Bahadur Singh on 19.01.2016, by observing that the petitioner therein could not be compared to Pratap Narayan Pandey as there was a huge delay and no adequate explanation was given for such delay of nearly twenty six years in filing the petition. Merely because certain other writ petitioners had been granted the benefit of the judgement rendered in Pratap Narayan Pandey in the meantime, would not justify the Writ Petition to have been entertained after a lapse of 26 years.

10. It has been argued by the learned counsel for the appellant Shri Sharad Pathak that Dan Bahadur Singh had never agitated his matter before and had approached this Court for the first time by filing Writ Petition No.680 (S/S) of 2015 which was allowed by the Single Judge on 22.02.2015 giving the benefit of judgement rendered in Pratap Narayan Pandey. When the Special Appeal was filed it was allowed only on the ground that Dan Bahadur Singh had approached the High Court for the first time in 2015, after his alleged selection in 1986, and after decision in the case of Pratap Narayan Pandey was rendered on 19.08.2006, he had waited for nearly ten years.

11. It has been argued that Jyoti Kumar Lal had also filed Writ Petition for the first time only in 2012 and he was given the benefit of Pratap Narain Pandey's judgement. He was given a regular appointment and was continuing in service at the time when the Special Appeal was filed and allowed. Jyoti Kumar Lal approached the Supreme Court by filing Special Leave Petition against the judgement by the Division Bench. The Supreme Court entertained the Special Leave Petition No.26787 of 2018, and has stayed the operation of the judgement of the Division Bench, consequently Jyoti Kumar Lal was allowed to work on the basis of judgement rendered by the Single Judge in his favour.

12. It has been argued by the learned counsel for the appellant that in so far as the petitioner-appellant is concerned, he had been agitating his case since 2002, when he filed the first Petition No.287 (S/S) 2002 which was disposed of with a direction to the respondents to consider his regularisation. His regularisation was rejected on 19.02.2006. He filed the second Writ Petition No.4581 (S/S) 2012 thereafter claiming benefit of judgement rendered in Pratap Narain Pandey on 12.08.2006, against which reference was rejected by the Division Bench on 19 February 2010. It has been argued that Dan Bahadur Singh filed the first Writ Petition in the year 2015. Jyoti Kumar Lal approached this court for the first time in the year 2012. Even so, the Supreme Court has stayed the operation of the judgement rendered by the Division Bench in Special Appeal No.336 of 2016 dated August, 2018.

13. It has also been argued that the appellants' case is similar to that of Rajendra Prasad Tiwari Special Appeal No.196 of 2018, where the Division Bench had recorded a specific finding that :-"...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 judgement passed in the case of Pratap Narayan Pandey (supra). We are the least impressed with the said argument in as much as it is an admitted fact that the petitioner had qualified in the selection held for the post of Collection 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 benefits 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 regular 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 had preferred a petition in the year 2002 itself, and thereafter on coming to know about the order passed in the case of Pratap Narain Pandey (supra), moved an application in his pending case claiming the benefit of judgement and order dated 19.08.2006 which petition was also decided by this court on 18.05.2012. 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 vigilant of his rights or that he was not pursuing the matter vigilantly. Consequently, we reject this ground taken by the appellants."

14. The Division Bench also considered the argument raised by the learned counsel for the State appellants that by the time the Writ Petition was decided, Rajendra Prasad Tiwari had already reached the age of superannuation but rejected such ground also by observing:- "...As regards the grounds taken by the learned Standing Counsel that the petitioner has already retired on attaining the age of superannuation on 31.01.2017 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 Judge and it has been provided that the petitioner shall be entitled to retirement benefits by granting him benefit of service with effect from 05.02.1986 till the age of superannuation, in this case 31.01.2017.."

15. It has been argued by the learned counsel for the petitioner appellant that he is the only person left out of the entire Select list who has not been granted the benefit of selection held on 05.06.1986. All his colleagues who had approached this Court have been granted such benefit either on the basis of judgement rendered by honourable Single Judges of this Court or by the Division Bench in Appeal.

16. Having heard the learned counsel for the appellant, this court has perused the judgement under challenge in this Appeal. The learned Single Judge noted the facts as mentioned in the Writ Petition and the explanation given for delay in approaching the Court after 19.08.2006. The petitioner-Appellant came to know of the judgement rendered on 19.08.2006 only in 2011, when the respondents had issued a list, a copy of which was filed as an Annexure-3 to the petition, indicating various Writ Petitions that had been filed before this court for regularisation and he preferred a representation on 15.11.2011 before the respondents for grant of same benefit as given to Pratap Narayan Pandey. The learned Single Judge while dealing with the case of the Petitioner-Appellant relied upon the judgement rendered by the Division Bench in the case of Dan Bahadur Singh wherein the Court observed that all the judgements that had been cited by the learned counsel for the respondent in the said Special Appeal related to persons who had come before the court initially in the year 1990-1991. Also, judgement rendered by the Division Bench in the case of Mohammed Usman Ansari had proceeded entirely on a concession which was made by the Standing Counsel, and it appeared that no effort was made on the part of the State even to submit before the Division Bench that there was a factual difference between the case at hand in Mohd. Usman Ansari, and in the case of Pratap Narain Pandey. The judgement in the case of Mohammed Usman Ansari did not lay down the principle that a Writ Petition which had been filed without any cogent explanation for delay, must still be entertained merely on the ground of the decision in Pratap Narayan Pandey. It had been observed by the Division Bench in the case of Daan Bahadur Singh that if delay was properly explained it was open for the High Court to entertain the petition. The learned Single Judge thereafter made certain observations on the basis of judgement rendered in the case of State of U.P. and others vs Arvind Kumar Srivastava, by the Supreme Court reported in 2015 (1) SCC 347 wherein the Supreme Court had held that though the normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons needed to be treated alike by extending that benefit but the principle is subject to the well recognised exceptions in the form of laches and delay as well as acquiescence, in as much as those persons who did not challenge the wrongful actions in their cases and agreed to the same and woke up after long delay only because of the reason that their counterparts who approached the court earlier in time succeeded in their efforts, then such employees cannot claim the benefit of the judgement rendered in the case of similarly situated persons be extended to them as they would be treated as fence sitters and laches and delay and acquiescence would be a valid ground to dismiss their claims. The Single Judge has quoted paragraph 22.1 and 22.2 of the judgement rendered in Arvind Kumar Srivastava (supra) and thereafter distinguished the judgement rendered in Rajendra Prasad Tiwari (supra) by observing that Rajendra Prasad Tiwari had approached the court by filing a Writ Petition in the year 2002 itself, that is even prior to the judgement of this Court in the case of Pratap Narayan Pandey (supra). During the pendency of the said petition he came to know of the judgement rendered in the case of Pratap Narayan Pandey on 19.08.2006 and therefore moved an application in his pending Writ Petition claiming benefit of the judgement. His petition was disposed off initially by this court by directing the authorities to decide his representation. His claim was rejected. Rajendra Prasad Tiwari thereafter filed a third writ petition in the year 2015 which was decided on 03.08.2017 giving him the benefit of judgement rendered in the case of Pratap Narayan Pandey. Based on such facts, learned Single Judge observed that it is clear from the facts of the case of Rajendra Prasad Tiwari, that he had approached the Court as early as in the year 2002, whereas in the case of the petitioner he had approached the court for the first time after 26 years in 2012. The learned Single Judge has distinguished judgements dismissing various Special Appeals filed by the State of U.P. in similar cases by observing that in all such cases the respondents therein had approached the court much earlier than the Writ Petitioner Bhanu Pratap Singh.

17. The learned Single Judge has also made observations with regard to the contention of the learned counsel for the petitioner that he had approached this Court in 2002 itself. The learned Single Judge has observed that the Writ Petition that was filed in 2002 was for consideration for regularisation, the Writ Petitioner had not come before this court seeking appointment on the basis of Select list of June, 1986. This Writ was disposed off with a direction to the respondents to consider his regularisation. His regularisation having been rejected on 19.02.2006, the petitioner did not file any fresh petition challenging such decision on regularisation.

18. The learned Single Judge has also made certain observations with regard to Annexure 3 to the petition, which according to the petitioner/ Appellant was a list of persons who had been granted benefit of judgement rendered in the case of Pratap Narayan Pandey. The learned Single Judge observed that a perusal of the list indicated the names of various persons including the Writ Petitions filed by them wherein certain persons were found eligible/in eligible for regularisation from the said list. It was not evident that all those persons had been given appointment by the respondents as was being sought to be made out by the petitioner.

19. This court has also carefully perused Annexure 3 to the Writ Petition which is in the form of a collective decision on cases relating to similarly situated persons where Writ Petitions were disposed off by this court directing the authorities to consider the case of the Writ Petitioner therein for regularisation. Such decision is also dated 19.02.2006, and it is evident from a perusal of the first few paragraphs of this order dated 19.02.2006 that it was in pursuance of a Government order dated 25.01.2006, and the Board of Revenue's Circular dated 10.02.2006, that Seasonal Collection Amins were being considered for promotion as a Regular Collection Amins in the 35% quota reserved for them. The order dated 19.02.2006 had found 29 Seasonal Collection Amins were eligible for being considered for regularisation and only four posts being available on which recommendations for regularisation were made accordingly in order of seniority of candidates and on the basis of reservation to be applied therein.

20. Having considered the judgment of the learned Single Judge, which is extremely thorough in its analysis of facts relating to the cases of similarly situated persons, this Court finds that there is an error apparent in the appreciation of facts in so far as they relate to the appellant. The learned Single Judge has failed to appreciate that the petitioner-appellant had approached this Court earlier in 2002 and not for the first time in 2012. It is another thing that by the time his writ petition could be taken up and decided, he had already retired as a Seasonal Collection Amin. Also, the learned Single Judge failed to notice that in almost all cases before this Court, the writ petitioners were granted relief either by learned Single Judges or by the Division Benches in Special Appeals. Only in two cases, that is in Dan Bahadur Singh and Jyoti Kumar Lal, this Court had rejected the writ petitioners prayer on the ground of laches but the Supreme Court admitted the S.L.P. filed by Jyoti Kumar Lal and has allowed him to work.

21. In ordinary course, we could have remanded the matter to the learned Single Judge to consider afresh but in the case of Asha Devi Vs. Dukhi Sao and another, 1974 (2) SCC 492, the Supreme Court while considering the powers of the Division Bench in a Letter Patent Apeal has observed that the Division Bench exercises concurrent powers as are exercised by the learned Single Judge. The learned Single Judge is not a Court subordinate to the Division Bench of the High Court and in appropriate cases a Division Bench sitting in Appeal is entitled to review findings of fact.

22. The Supreme Court in Baddula Lakshmaiah and others Vs Anjaneya Swami Temple and others, 1996 (3) SCC 52, considered the nature and scope of power of Letters Patent Bench in appeal against the order of learned Single Judge of the High Court. It observed that it is the internal working of the High Court which splits into different "Benches" and yet the Court remains one. A Letters Patent Appeal is an intra Court Appeal where the Division Bench sits as a "Court of Correction", and corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a Subordinate Court. In such appellate jurisdition the High Court exercises the powers of a Court of Errors and the Division Bench would be justified in exercise of its powers to undertake a correctional approach and re-appreciate both facts and law to come to its own conclusion as to what would be just in the facts and circumstances of a case. This Court therefore set asides the order impugned dated 13.09.2019 and allows the writ petition partly only to the extent that the petitioner appellant would be given the benefit of the order in the case of Pratap Narain Pandey (supra) in so far as his retiral benefits are concerned.

Order Date :- 31 /05/2022

Rahul