Jharkhand High Court

The State Of Jharkhand Through The ... vs Sanjay Kumar on 4 February, 2021

                           1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No. 477 of 2018
                       With
                I.A. No. 7994 of 2018
                       With
                I.A. No. 7995 of 2018

                       ------

1.The State of Jharkhand through the Principal Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, Ranchi, P.O & P.S. Doranda, District Ranchi;

2.The Deputy Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, Ranchi, P.O & P.S. Doranda, District Ranchi

3.The Chief Engineer, Water Resources Department, Deoghar, P.O., P.S. & District Deoghar;

4.The Executive Engineer, Water Resources Department, Deoghar, P.O., P.S. & District Deoghar

Versus

1.Sanjay Kumar, S/o-Late Ramesh Chandra Ghosh, Resident of Professor Colony, Bilasi Town, Deoghar, P.O. & P.S. Deoghar, District Deoghar;

...Respondent/Writ Petitioner

2.The State of Bihar through the Secretary, Water Resources Department, Govt. of Bihar, Sichai Bhawan, Patna, P.O. & P.S. Secretariat, District Patna;

... Performa Respondent No. 1/Respondent No. 2

3.The Deputy Secretary, Water Resources Department, Govt. of Bihar, Sichai Bhawan, Patna, P.O. & P.S. Secretariat, District Patna;

... Performa Respondent No. 2/Respondent No. 4 [Respondent No. 7 to 15 were deleted with the permission of the Hon'ble Court granted vide order dated 28.08.2017]

4.The Secretary, Personnel and Administrative Department, Govt. of Bihar, Secretariat Bihar, Patna, P.O & P.S. Secretariat, District Patna;

... Performa Respondent No. 3/Respondent No. 16

5.The Secretary, Personnel and Administrative Department, Govt. of Jharkhand, Project Building, P.O & P.S. Dhurwa, District Ranchi;

... Performa Respondent No. 4/Respondent No. 17

----

CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

-----

For the Appellants : Mr. Ashutosh Anand, A.A.G III For the Resp.-Writ Petitioner : Mr. Vineet Prakash, Advocate For the Resp.-State of Bihar : Mr. S.P. Roy, Advocate.

-------

Oral Judgment Order No. 15 : Dated 4th February, 2021:

With consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

I.A. No. 7994 of 2018

2. This Interlocutory Application has been filed for

condoning the delay of 383 days, which has occurred in

preferring this appeal.

3. Heard learned counsel appearing for the appellants.

4. Having regard to the averments made in this

application, we are of the view that the appellants were

prevented by sufficient cause from preferring the appeal

within the period of limitation.

5. Accordingly, I.A. No. 7994 of 2018 is allowed and

delay of 383 days in preferring the appeal is condoned.

L.P.A. No. 477 of 2018

6. This intra-court appeal is preferred against the

order/judgment dated 18.01.2018 passed by learned

Single Judge in W.P. (S) No. 2598 of 2015, by which the

writ petition was allowed, quashing and setting aside the

part of order dated 29.10.2015 as contained in Memo No.

5503 dated 29.10.2015 by which the application filed by

the writ petitioner for treating him Bill Clerk with

retrospective effect and for extending all benefits attached

to the said post was denied, and the writ petitioner was

held entitled for perks and salary attached to the post of

Bill Clerk and further the entire exercise was directed to

be completed within a stipulated period of eight weeks

from the date of receipt/production of copy of the order.

7. The brief facts of the case, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

The writ petitioner and fifteen others were

appointed on compassionate ground to the post of Bill

Clerk in the pay-scale of Rs. 1200-30-1800 vide Memo

No. 6020 dated 12.12.1995 issued under the signature of

Secretary, Water Resources Department, Government of

Bihar, Patna in pursuance to the decision as contained in

letter no. 10375 dated 15.11.1995 issued by Personnel

and Administrative Reforms Department, Government of

Bihar, Patna. Accordingly, writ petitioner joined on the

same day i.e. on 12.12.1995 in Secretariat of Bihar,

Patna, but after discharging duty for 81 days, services of

the writ petitioner along with six others were shifted to

the post of Store Keeper vide letter no. 1138 dated

28.02.1996, issued under the signature of Secretary,

Water Resources Department, Bihar, without taking prior

approval of Department of Personnel and Administrative

Reforms, however, other nine persons were continued to

work to the post of Bill Clerk.

The writ petitioner, in compliance of letter dated

28.02.1996 joined in the office of Chief Engineer, Water

Resources Department, Deoghar on 02.03.1996.

Thereafter, the petitioner was transferred to the

Department of Aayojan-cum-Niyantran and Monitoring

Pramandal, Deoghar as Store Keeper, where he joined as

Store Keeper on 27.03.1996 and on the date of filing of

the writ petition, he continued to discharge his duties as

Store Keeper in the said department.

It is further case of the writ petitioner that similarly

situated persons, who remained to work to the post of Bill

Clerk, were promoted on a much higher pay-scale of Rs.

9300-34,800 but the writ petitioner is still working on the

pay-scale of Rs. 5200-20,200, which is much less in

comparison to the pay-scale of similarly situated persons.

The writ petitioner, being aggrieved with the aforesaid

action of the respondents-authorities made series of

representations before the department but to no effect.

It is further case of the writ petitioner that a

condition was imposed by the respondents that Store

Keeper has to clear Departmental Accounts Examination

for getting the benefits of Assured Career Progression (in

short 'ACP') but passing of such departmental

examination is not applicable with respect to promotion

for Bill Clerks. According to the writ petitioner similarly

situated persons, who remained to the post of Bill Clerk,

got up-gradation in their pay-scale by virtue of first ACP

in the year 2007 and their pay-scales were up-graded

from Rs. 4000-6000 to Rs. 6500-10,500 but arbitrarily

the writ petitioner was denied similar benefit. Though,

after passing of Departmental Accounts Examination the

writ petitioner was granted first Modified Assured Career

Progression (in short 'MACP') in the year 2012 but his

pay-scale was up-graded from Rs. 4000-6000 to Rs.

5200-20,200/- only, on the other hand similarly situated

persons, who remained on the post of Bill Clerks, were

granted much higher pay-scale of Rs. 9300-34,800.

Being aggrieved, the writ petitioner submitted an

application on 09.02.2012 requesting the department to

reinstate him to his original post of Bill Clerk and further

grant him promotion and other monetary benefits from

retrospective effect but after keeping his representation

pending for three years and without taking prior approval

of Department of Personnel and Administrative Reforms,

the respondent-authority rejected his claim vide letter

dated 5503 dated 29.10.2015, which was impugned in

the writ petition.

The respondents-State of Jharkhand has contested

the case and denied the claim of the writ petitioner, inter

alia, on the ground that initial appointment letter dated

12.12.1995 was modified vide order as contained in

Memo No.1138 dated 28.02.1996 and thereafter, his

services along with six other persons were placed under

the Chief Engineer, Water Resources Department,

Deoghar, where the writ petitioner joined as Store Keeper

on 02.03.1996 and wherefrom he was posted in the

Department of Aayojan-cum-Niyantran and Monitoring

Pramandal, Deoghar as Store Keeper and after completion

of three years of service, his service was confirmed.

It was further case of the State-respondents that

after clearing the Departmental Accounts Examination on

25.08.2011, writ petitioner was granted benefits of first

MACP, which was also accepted by the writ petitioner

without any objection and after lapse of about 20 years,

he has raised the issue of conversion of his service as Bill

Clerk, the post on which he initially joined and for

disbursement of salary attached to the said post, which

cannot be allowed to be agitated at this belated stage.

The writ Court, after hearing learned counsel for

the parties quashed and set aside the decision taken vide

letter no. 5503 dated 29.10.2015, whereby the claim of

the writ petitioner entitling him the benefit attached to

the post of Bill Clerk was negated, and directed the

respondents to extend all the benefits attached to the

post of Bill Clerk within a stipulated period of time, which

is the subject matter of present intra-court appeal by the

State of Jharkhand.

8. Mr. Ashutosh Anand, learned A.A.G III appearing

for the appellants-State of Jharkhand has vehemently

argued the case by questioning the order passed by

learned Single Judge on the ground that once the joining

to the post of Store Keeper has been accepted by the writ

petitioner fairly for a period of 20 years approximately,

thereafter he cannot be allowed to agitate the issue of

getting monetary benefits attached to the post of Bill

Clerk.

According to him, the aforesaid issue having been

raised after lapse of 20 years itself is not fit to be accepted

on the principle of estoppel, waiver and acquiescence but

the learned Single Judge has not appreciated this aspect

of the matter and, therefore, the order passed by the

learned Single Judge is not sustainable in the eyes of law.

9. Per contra, Mr. Vineet Prakash, learned counsel for

the writ petitioner has submitted that there is no

question of applicability of principle of estoppel, waiver

and acquiescence as it is the fault on the part of the

appellants-authorities in taking contrary decision to the

decision taken by Central Compassionate Committee,

which had recommended the case of the writ petitioner

for appointment to the post of Bill Clerk and basing upon

which, the Personnel and Administrative Reforms

Department, State of Bihar has appointed the writ

petitioner to the post of Bill Clerk in the establishment of

Water Resources Department.

It has further been submitted that the respondents

in a very arbitrary and illegal manner made partial

amendment in Memo No. 6020 dated 12.12.1995 and

after working for 81 days, the services of the petitioner

was shifted from the post of Bill Clerk to Store Keeper,

without taking prior approval of the Personnel and

Administrative Reforms Department, which cannot be

said to be justified one.

So far as the principles of estoppel, waiver and

acquiescence is concerned, it has been submitted that it

only comes in the way of the writ petitioner when there is

any laches on the part of the writ petitioner. In the case

at hand, the respondents-authorities without having any

jurisdiction has taken a contrary decision to the decision

taken by the Central Compassionate Committee by

shifting the service of the writ petitioner to the post of

Store Keeper from the post of Bill Clerk without taking

prior approval of the Personnel and Administrative

Reforms Department.

According to him, since the issue of jurisdiction is

involved in this case, the principle of delay and laches will

not be applicable and as such learned Single Judge,

taking into consideration these aspects of the matter, is

correct in quashing the impugned decision of the

concerned authority, which according to him requires no

interference by this Court.

10. We have heard learned counsel for the parties and

perused the documents available on record as also the

findings recorded by learned Single Judge.

Before entering into the legality and propriety of the

impugned order, it requires to refer herein few admitted

facts for better appreciation of the factual aspect of the

matter:

The writ petitioner admittedly had made application

for consideration of his case for appointment on

compassionate ground after death of bread earner in

harness. His application was placed before the Central

Compassionate Committee, in which, he was

recommended to be appointed as Bill Clerk. The aforesaid

recommendation was forwarded before the Personnel and

Administrative Reforms Department, State of Bihar,

which was accepted and thereafter, offer of appointment

was issued placing his service to the Water Resource

Department as Bill Clerk.

Pursuant thereto, the writ petitioner joined to the

post of Bill Clerk in the pay-scale of Rs. 1200-30-1800

and continued to discharge his duty for 81 days as Bill

Clerk, but, thereafter unilaterally services of writ

petitioner along with six others were shifted to the post of

Store Keeper vide letter no. 1138 dated 28.02.1996,

issued under the signature of Secretary, Water Resources

Department, Bihar. The writ petitioner, however, joined to

the said post of Store Keeper and started discharging his

duties but admittedly after lapse of about 20 years has

raised the issue of difference of pay-scale holding himself

entitle to get the pay-scale attached to the post of Bill

Clerk.

Since the writ petitioner was working as Store

Keeper in the pay-scale of Rs. 5200-20,200, he agitated

the grievance to extend of getting the monetary benefits

along with all consequential promotion/up-gradation in

pay-scale attached to the post of Bill Clerk by way of

submitting an application but the same has been negated

by passing the impugned order dated 29.10.2015, which

has been quashed and set aside by the learned Single

Judge.

The respondents-State of Jharkhand has raised the

issue of estoppel, waiver and acquiescence on the ground

that such plea of extending benefit attached to the post of

Bill Clerk has been agitated by the writ petitioner after

lapse of 20 years and, therefore, the writ petition ought to

have been rejected at the threshold by the writ Court.

11. There is no denial of the fact that fence-sitter

cannot be allowed to get the benefit of laws laid down by

the Hon'ble Supreme Court by invoking the jurisdiction of

the Court of law after lapse of long delay but

simultaneously it is also settled that when a particular

set of employee is given relief by the Court, all other

identical set of persons need to be treated alike by

extending the benefit, not doing so would amount to

discrimination and would be violative to Article 14 of the

Constitution of India. This principle needs to be applied

in service matter more emphatically as the service

jurisprudence 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.

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. However, this

exception may not apply in those cases where the

judgment pronounced by the Court was judgment in rem

with intention to give benefit to all similarly situated

persons, whether they approached the Court or not. With

such a pronouncement the obligation is cast upon the

authorities to itself extend the benefit thereof to all

similarly situated person. Such a situation can occur

when the subject matter of the decision touches upon the

policy matters, like scheme of regularisation and the like.

On the other hand, if the judgment of the Court was in

personam holding that benefit of the said judgment shall

accrue to the parties before the Court and such an

intention is stated expressly in the judgment or it can be

impliedly found out from the tenor and language of the

judgment, those who want to get the benefit of the said

judgment extended to them shall have to satisfy that their

petition does not suffer from either laches and delays or

acquiescence, reliance in this regard may be made to the

judgment rendered by Hon'ble Apex Court in the case of

State of Uttar Pradesh & Ors. vs. Arvind Kumar

Srivastava & Ors. [(2015) 1 SCC 347].

12. In the light of the aforesaid settled position, we

have scrutinized the factual aspects involved in the case

at hand, wherefrom it is evident that as per the scheme of

compassionate appointment, the government has taken

decision to constitute compassionate committee at the

Headquarter Level (Central Level) and in the District Level

for consideration of cases for compassionate appointment

of one or the other candidates, who have made

application for consideration of their candidature for

appointment on compassionate ground due to death of

the employees in harness. It has also been formulated in

the said scheme that the appointment is to be on the

basis of recommendation made by concerned committee.

Herein, the petitioner had made application for

consideration of his candidature for appointment on

compassionate ground as his father died in harness.

Accordingly, his case was placed before the Central

Compassionate Committee i.e. at Headquarter Level, in

which, the case of the writ petitioner along with others

was considered and he was recommended to be appointed

as Bill Clerk under the establishment of the Water

Resources Department.

In pursuance to the said recommendation, the

committee forwarded said recommendation before the

Personnel and Administrative Reforms Department,

Government of Bihar, wherein the aforesaid

recommendation was accepted. Accordingly, the

Personnel and Administrative Reforms Department

decided to issue appointment letter in favour of writ

petitioner for appointment to the post of Bill Clerk in the

pay-scale of Rs. 1200-30-1800. The Personnel and

Administrative Reforms Department while taking such

decision had placed his services to the Water Resource

Department, in the erstwhile State of Bihar, where the

writ petitioner has joined on 12.12.1995, which was

accepted and he continued to discharge his duties for 81

days. Thereafter, the Water Resources Department

unilaterally, without seeking any option from the writ

petitioner and without taking prior approval of the

Personnel and Administrative Reforms Department

shifted the service of writ petitioner and other six other

co-employees to the post of Store Keeper vide order dated

28.02.1996, accordingly, the petitioner joined the office

of Chief Engineer, Water Resources Department, Deoghar

but it is evident from the materials available on record

that rest of the employees have been allowed to continue

as Bill Clerk.

From the documents available on record, it appears

that after rendering 20 years of service writ petitioner was

getting lower pay-scale in comparison to similarly

situated persons, who joined along with the petitioner in

the establishment of Water Resources Department as Bill

Clerk vide Memo No. 6020 dated 12.12.1995, by virtue of

promotion and/or up-gradation in pay-scale by way of

ACP/MACP, therefore, the writ petitioner made a request

to the concerned authority to extend him the benefit of

pay-scale as also other consequential benefit attached to

the post of Bill Clerk.

13. In the background of these factual aspects, the

question that has arisen for determination is as to:

"Whether the Water Resources Department had got power to shift services of the writ petitioner from the post of Bill Clerk to Store Keeper and without acceptance/approval by the Personnel and Administrative Reforms Department, the nodal department can make appointment of the writ petitioner and if that be so whether such issue can be raised after lapse of 20 years?

The answer to this question would be that the

action of the Water Resources Department in shifting the

services of the writ petitioner from the post of Bill Clerk to

Store Keeper cannot be held to be proper. It is for the

reason that writ petitioner has been recommended to be

appointed to the post of Bill Clerk, which has been

accepted by the Personnel and Administrative Reforms

Department of the erstwhile State of Bihar and in

pursuance thereto, the writ petitioner was appointed as

Bill Clerk by placing his service to the Water Resource

Department, meaning thereby the Personnel and

Administrative Reforms Department, which was the nodal

Department to make appointment. Further, the Water

Resources Department has allowed the writ petitioner to

perform the duty in the capacity of Bill Clerk but

subsequently, contrary to the recommendation, his

service was shifted to the post of Store Keeper by the

Water Resources Department, without approval of the

Personnel and Administrative Reforms Department, the

nodal department to make appointment. The water

Resource Department, not being the appointee authority

rather the appointing authority was the Personnel and

Administrative Reforms Department on the basis of

recommendation made by the Central Compassionate

Committee, has exceeded to its jurisdiction in shifting

the services of the writ petitioner from the post of Bill

Clerk to the post of Store Keeper.

14. In this factual background, if there is jurisdictional

error in shifting of services of the writ petitioner from the

post of Bill Clerk to Store Keeper, the post which has

been accepted by the writ petitioner and worked for a

period of 81 days, can it be said merely because the writ

petitioner worked for a period of 20 years to the post of

Store Keeper, he will not be allowed to question the issue

of jurisdiction of the Water Resources Department due to

lapse of period as has been argued by learned counsel for

the appellants-State of Jharkhand ?

15. It is not in dispute that delay and laches is one of

the primary thing to be seen by the writ Court but

simultaneously, as has been held in the case of Arvind

Kumar Srivastava (supra), action of the State

Government or its functionary is also to be looked into

and if impugned action of the State functionary is without

jurisdiction, since jurisdiction goes to the root of the

issue, the same can be raised even after lapse of 20 years.

When the government itself has committed wrong, it

cannot be allowed to take the plea of delay and laches as

also the principle of fence-sitter.

The aforesaid principle of estoppels, waiver and

acquiescence will only be allowed to be agitated if there

are no laches on the part of the State authority. However,

when there are laches on the part of the State authority,

the said plea cannot be allowed to be agitated.

16. Further, even accepting that the writ petitioner has

continued to discharge as Store Keeper for a period of 20

years that does not mean that illegality committed since

inception will not be rectified due to lapse of time, rather

if the order is wrong since its inception subsequent

action/development cannot validate the action which was

not lawful at its inception.

Reference in this regard is made to a decision of the

Hon'ble Apex Court rendered in Upen Chandra Gogoi

vs. State of Assam & Ors [AIR 1998 SC 1289].

Admittedly, in the case in hand, the appointing

authority was the Personnel and Administrative Reforms

Department after the recommendation of the

Compassionate Committee. In that view of the matter,

any decision adverse to the interest to the writ petitioner

taken by the Water Resources Department will be said to

be a nullity in the eyes of law being without jurisdiction.

16. We have gone through the impugned order passed

by the learned Single Judge. The learned Single Judge,

after deliberating upon the issues, has passed the order

deprecating the action of the State authority by putting

reliance upon the judgment rendered in State of Bihar

& Ors vs. Kameshwar Prasad Singh [2000(3) PLJR

(SC) 81], in particular paragraph 10, which is quoted as

under:

"10.Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector Land Acquition, Anantnag & Anr. Vs. Mst. Katiji & Ors. [1987 (2) SCR 387] held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realised that:

"1.Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2.Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3.'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4.When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.

5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical

grounds but because it is capable of removing injustice and is expected to do so."

Reliance has further been placed on the judgment

rendered in Dr. Paras Nath Prasad & Ors. Vs. State of

Bihar & Ors [(1990) 1 BLJR 648], in particular

paragraphs 19 and 20, which read as under:

"19.The other contentions of the learned Counsel for the respondents that Rule 58 of the Bihar Service Code shall prohibits any grant of pay and allowances to the petitioner on a fictional and notional promotion granted to him is in my view misconceived. A notional promotion has to be as if, for service benefit, he had been given due promotion. A person, who is entitled to promotion arid is not promoted, can always invoke the jurisdiction of this Court under Article 226 of the Constitution for a mandamus to the employer-State to consider his case for such promotion. Such due promotion is not a claim of anything notional but it is something that is really attached to the status and the service contract of the employee concerned. In the case of Alappat Narayana Menon v. State of Kerala (1977 Volume II SLR 656) the Supreme Court has stated:

The foregoing discussion with reference to the pronouncement of the Supreme Court and the Gujarat, Allahabad and Mysore High Court clearly establish that a Government servant cannot be said to have forefitted his claims for arrears of salary when he did not get his due promotion for no fault of his, the Government's plea that the Petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as 'notional' in the context of the peculiar facts and circumstances of this case The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the

petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears of salary and other material benefit cannot be denied to him on the plea that what was given to him as only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioner's claim. I, therefore, hold that the petitioner is entitled to succeed.

20. The proposition of law in the above case of the Supreme Court in my view fully applies in the instant case. I have already noticed that the respondents never considered the case of the petitioner for promotion. While this juniors were considered and promoted, he was at every time superseded without there being any disqualification ever found. He has been entitled to be considered for promotion is, therefore, not in issue. He cannot refused consideration for promotion for the reasons that may of those who had superseded him have superannuated. A direction to consider the case of the petitioners promotion in such a situation, shall only mean to take at each level of promotion, consideration whether the petitioner, at the relevant time, by dint of seniority, was fit to be promoted or not. The respondents have nowhere pleaded that any of the promotions claimed by the petitioner depended on consideration of merit-cum-seniority. Perhaps, in such a case they could suggest that they would consider the case of the petitioner at each level and decide whether to promote him or not. The Respondents have also not alleged that there was disqualification of "any kind other than the mistake of giving him the proper place in the gradation list for which the petitioner would not have been denied his promotion. That being the position this by itself is a fit case in which a direction may be issued to the respondents to remote the petitioner with effect from due date and, accordingly, fix his salary, allowances and other benefit and finally fix his position in the service at the end of his service tenure so that the consequential retirement benefit may also be given to him. It is obvious that as a consequence of a re-fixation of emoluments of the petitioner at each stage of the promotion in

the service, pension, gratuity and other benefit to which the petitioner may be entitled alter his retirement shall be paid. The respondents shall accordingly be liable to pay such amount of the difference of pay etc. to the petitioner including the difference in the gratuity amount, pension and other allowances payable to him.

Reliance has further been placed on the judgment

rendered in Vinod Kumar Sharma Vs. State of U.P. &

Anr. [(2001) 4 SCC 675] and submitted that illegality

cannot be allowed to be perpetuated even at the hands of

the respondents-State. Relevant paragraph 11 of the said

judgment is quoted hereunder as:

"11.Further, the High Court materially erred in holding that the ratio of Shrotriya case [(1998) 3 SCC 397 : 1998 SCC (L&S) 886] was not applicable to the facts of the present case for the reason that it was not the case of the appellants that they were selected by the Public Service Commission in the combined test. It appears that the High Court overlooked the documents produced on record which establishes that the Combined Competitive Examination was conducted by the Public Service Commission, U.P. in 1968 and 1971 for recruitment to Government Engineering Services for the post of Assistant Engineers in various departments. Similarly, the letter by which the appellants were posted in the Irrigation Department, specifically reveals that their past services will be counted towards their service in the Irrigation Department. The High Court also materially erred in not referring to the ratio laid down by this Court in Shrotriya case [(1998) 3 SCC 397 : 1998 SCC (L&S) 886] wherein it is held that: (SCC p. 403, para 11) "A person even appointed on a substantive vacancy on a temporary post after due approval by the Public Service Commission if fulfils all other essential criteria

as prescribed he shall be deemed to be borne in service from such date of his appointment. In other words his entire length of service from that date should be reckoned in computing seniority." Thereafter this Court held that the services rendered by the appellant in that case should be counted from the year 1962, that is, on the date when he was appointed on a temporary basis. Further, the High Court ought to have considered the GO dated 19-10-1968 entirely, which specifically provides that "such officers are deemed to have been transferred from one department to another after the reallocation in accordance with the aforesaid GO". Thereafter it also provides for fixation of pay in identical scale of pay in that department. It appears that the High Court has overlooked the first part which provides that such officers are transferred from one department to another. If the High Court had referred to para 13 of Shrotriya case [(1998) 3 SCC 397 : 1998 SCC (L&S) 886] , it would have been clear that the stand and the policy of the State Government was also to the effect that the appellants' services were required to be counted for the purpose of seniority.

17. We, after going through the factual aspect as

referred herein above, have found that the writ petitioner

admittedly was appointed as Bill Clerk in Water

Resources Department by the competent authority on

compassionate ground on due recommendation by the

compassionate committee and thereafter he continued to

discharge his duty as Bill Clerk for a period of 81 days in

Water Resources Department where his services was

placed. However, the Secretary, Water Resources

Department had shifted his services from Bill Clerk to

Store Keeper, which according to us was completely

illegal because of lack of authority.

Reference in this regard is made to the judgment

rendered by Hon'ble Supreme Court in Balvant N.

Viswamitra & Ors Vs. Yadav Sadashiv Mule (Dead)

through LRs [(2004) 8 SCC 706], in particular

paragraph 9, which reads as under:

9.The main question which arises for our consideration

is whether the decree passed by the trial court can be

said to be "null" and "void". In our opinion, the law on

the point is well settled. The distinction between a

decree which is void and a decree which is wrong,

incorrect, irregular or not in accordance with law cannot

be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and

void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or

order can be challenged at any stage, even in

execution or collateral proceedings."

(Own emphasis)

However, this judgment is rendered in the case of

jurisdictional issue of Court but the principle being the

same, we are applying this principle in the case at hand.

In view thereof, since the order passed by the

respondents-authorities suffers from inherent

jurisdictional error it has no force in the eyes of law as

the same goes to the root of the matter and questions the

very authority of the concerned respondent-authority.

18. We, on appreciation of the findings recorded by the

learned Single Judge and on the basis of discussions

made herein above, are of the view that there is no reason

to differ with the view/opinion of the learned Single

Judge.

Before parting with the order it requires to deal

with the judgment relied upon by the learned counsel for

the State rendered in New Delhi Municipal Council vs.

Pan Singh & Ors [(2007) 9 SCC 278] wherein it has

been held that although, there is no period of limitation

provided for filing a writ petition under Article 226 of the

Constitution of India but ordinarily writ petition should

be filed within a reasonable time. In the said case, the

writ petitioner appeared the writ Court after lapse of 17

years for revision of pay-scale and in that view of the

matter the aforesaid position of law has been laid down.

However, it is settled proposition of law that the

applicability of the judgment depends upon the facts and

circumstances of each and every case and there cannot

be any universal application of the judgment, as has been

held in the case of Dr. Subramanian Swamy vs. State

of Tamil Nadu & Ors reported in (2014) 5 SCC 75, in

particular at paragraph 47, which reads as under:

"47.It is a settled legal proposition that the ratio of any

decision must be understood in the background of the

facts of that case and the case is only an authority for

what it actually decides, and not what logically follows

from it. "The court should not place reliance on decisions

without discussing as to how the factual situation fits in

with the fact situation of the decision on which reliance

is placed."