Allahabad High Court
Robin Singh And 4 Others vs State Of U.P. And 5 Others on 20 December, 2023
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:241173
Court No. - 34
Case :- WRIT - A No. - 21019 of 2023
Petitioner :- Robin Singh And 4 Others
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Prabhakar Awasthi,Vinod Kumar Yadav
Counsel for Respondent :- CSC
Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. Petitioners are aggrieved by the order dated 08.11.2023 passed by Director, Homeopathic Medicine, U.P., Lucknow for taking action in respect of those paramedical staff who were not party to the writ petition being Writ - A No. 12236 of 2021 and connected writ petitions which were allowed by judgment and order dated 31.03.2022 with a direction that they shall be permitted to work in their respective Colleges and post. The matter, therefore, related to all the State Homeopathic Medical Colleges where such paramedical staffs were employed.
3. The State preferred an intra court appeal being Special Appeal (Defective) No. 227 of 2022 which also came to be dismissed by division bench on 02.03.2023 against which State successfully appealed before the Supreme Court vide Special Leave to Appeal (C) No. 15092 of 2023 which was dismissed vide order dated 28.07.2023. It appears that after the dismissal of special leave petition, all such paramedical staff were restored in their position in the State Homeopathic Medical Colleges and so also the petitioners. However, it appears upon some legal advise obtained from the Additional Chief Standing Counsel on the panel of State at Lucknow bench of this Court who gave said advise on 13.09.2023, reproducing the same order came to be passed by the State Government on 12.10.2023 not to permit such paramedical staff/ employees who were not parties to the writ petition to work because it was judgment in personam and not in rem. The consequential directions have been issued by the Director, Homeopathic Medicine, U.P., Lucknow to all the Principals of Homeopathic Medical Colleges in the State of U.P. on 08.11.2023 and consequently such employees including the petitioners' services have been dispensed with vide order dated 23.11.2023 separately passed in their respect and have been brought on record as Annexure Nos. 16, 17, 18 & 19 to the writ petition.
4. Prima facie the Court is of the view that merely on the basis of legal advised tendered by the Additional Chief Standing Counsel, the authority ought not to have acted upon in reproducing such legal advise in the order itself without rendering due application of mind. Secondly I find that the Supreme Court in the case of State of U.P. v. Arvind Kumar Srivastava, (2015) 1 SCC 347 has very clearly held vide paragraph no. 22 in identical set of facts if the parties approached to the Court that should be allowed similar benefits. The relevant observations made by the Supreme Court in paras 22.1 and 22.2 of the judgment are reiterated:
"22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim."
5. The only question could be of delay. it is to be noticed here that the order was passed by the writ Court on 31.03.2022 in respect of the action taken against such similarly placed employees. This writ petition although was allowed but got appealed against and intra court appeal and the Special Leave Petition came to be dismissed on 22.03.2023 and 28.07.2023 respectively. It is thereafter, the paramedical staff employees came to be restored in service. This one or two years' delay in identical set of facts may not be such so as to empower the government or the State to take such impugned action in the matter which is otherwise in law stands concluded as to the controversy, by judicial pronouncements of the Constitutional law Courts. There could be situation that an employee for financial reasons may not approach the Court but if he approaches the Court within a reasonable time, more especially when the State has although complied the order of Supreme Court in restoring the position of such employees like the petitioners in this case who got reinstated by the letter of Director under the order of State Government dated 28.08.2023 and the consequential order passed by the Director on 21.08.2023 as paramedical employee of Homeopathic Medical College, the respondent State is not justified in directing to dispense with the services of such employees merely on the basis of legal advise obtained in the matter.
6. Prima facie argument advanced by learned counsel for the petitioner appears to have substance.
7. Matter requires consideration.
8. Respondents are directed to file counter affidavit within a period of four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
9. List on 02.02.2024.
10. In the meanwhile until further orders of this Court, the effect and operation of the order dated 17.11.2023, 23.11.2023 and 30.11.2023 respectively passed in respect of the petitioners discharging them from service shall remain stayed. Petitioners shall be continued as such and be paid salary.
Order Date :- 20.12.2023
IrfanUddin
