Jharkhand High Court
Most. Sukri Devi @ Hiria Devi Aged About ... vs The State Of Jharkhand on 12 September, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No.268 of 2024
With
I.A. No. 4806 of 2024
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Most. Sukri Devi @ Hiria Devi aged about 63 years, w/o Late Mathur Ram,
Resident of Village- Dumri, P.O. & P.S.- Dumri, District- Giridih,
Jharkhand.
... ... Appellant
Versus
1. The State of Jharkhand
2. Engineer in Chief-cum Addl. Commissioner-cum-Special Secretary,
R.W. Department, P.O. & P.S. Dhurwa, Ranchi, State of Jharkhand,
Ranchi
3. Superintending Engineer, Rural Work Department Work Division,
Bokaro, P.O. & P.S.- Bokaro, District- Bokaro.
4. Executive Engineer, Rural Works Department, Work Division, Bokaro,
P.O. & P.S.- Bokaro, District- Bokaro.
5. Deputy Commissioner, Bokaro, P.O. & P.S.- Bokaro, District- Bokaro.
6. Accountant General, A&E, Jharkhand, P.O. & P.S.- Doranda, District-
Ranchi, Jharkhand. ... ... ... Respondents
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CORAM: HON'BLETHE ACTING CHIEF JUSTICE
HON'BLEMR. JUSTICE ARUN KUMAR RAI
-------
For the Appellant :Mr.Binod Kumar, Advocate
:Mr. Murari Kr. Singh, Advocate
For the Respondents :Mr. Mrinal Kanti Roy, G.A.-I
:Mr. Chandan Tiwari, AC to G.A.-I
------
th
Order No.07/Dated12 September, 2024
I.A. No.4806 of 2024:
1. The instant interlocutory application has been filed for condonation of
delay of 175 days which has occurred in filing the instant appeal.
2. Learned counsel for the appellant has submitted that the instant
interlocutory application may be allowed by condoning the delay of
175 days which has occurred in filing the instant appeal.
3. There is no objection on behalf of the respondents to the delay
condonation application.
4. This Court, considering the statement so made in the instant
interlocutory application, is of the view that the delay which has
occurred in filing the appeal needs to be condoned.
5. Accordingly, the delay of 175 days is hereby, condoned and the
instant interlocutory application being I.A. No. 4806 of 2024 stands
allowed, as such, disposed of.
LPA No. 268 of 2024:
Prayer:
6. The appeal filed under clause 10 of Letters Patent Appeal is directed
against the order dated 19.12.2023, passed by the learned Single
Judge of this Court in W.P.(S). No. 6496 of 2022 by which prayer
made by the petitioner for grant of family pension has been refused
by dismissing the writ petition.
Facts:
7. The briefs facts of the case as per the pleadings made in the writ
petition is required to be enumerated reads under as:
The appellant/writ petitioner's husband was a roller driver (work-
charge) in Rural works Department under muster roll from 01.06.1981
to 25.12.1982 and thereafter re-joined in Rural works Department on
04.11.1988 in pay of Rs. 480 vide letter no. 1979 dated 01.11.1988
issued by Superintendent Engineer, REO Hazaribagh and after pay
revision he was placed in the scale of Rs. 985-1500/-. He died on
10.08.1998 while in service.
After the death of her husband the appellant/writ petitioner made an
application for grant of pension but the concerned respondents stood
silent over the matter for long period. Even though the similar situated
persons had already been regularized in their service from work
charge to regular establishment in view of memo no. 1241 dated
22.07.2009 issued by Engineer in chief-cum-special Commissioner-
cum-special Secretary Rural works Department vide order no. 6 dated
05.08.2009 from work charge but the claim of the appellant/writ
petitioner has not been considered on the same and similar ground and
delay caused due to conduct of respondents, who sit tight over for
several years. Thereafter appellant/writ petitioner's son applied for
compassionate employment in view of Government memo no. 1241
dated 22.07.2009.
The appellant/writ petitioner is aggrieved by memo no. 431 dated
2nd July, 2010. The appellant/writ petitioner's son, namely Dilip
Kumar Mandal, was dismissed based on the same grounds outlined in
the aforementioned memo in W.P.(S) No. 4397 of 2010, with the
order being issued on 4th January, 2019. The appellant/writ petitioner
contends that this dismissal, as well as the actions taken by the
respondent authorities, resulted in significant injustice to their family.
The appellant/writ petitioner submitted a claim regarding the
entitlement to family pension benefits following the death of deceased
employee who was inactive service at the time of his passing. The
appellant/writ petitioner contends that the provisions surrounding
family pensions should be interpreted broadly to fulfill the intended
purpose of providing social and economic security to the family of
deceased employee, thereby ensuring that the benefits are accessible
to the rightful beneficiaries and fulfill their intended purpose of
providing necessary security to the family affected by the loss of
breadwinner, who died in harness.
Being aggrieved, she filed a writ petition which was dismissed by
the learned Single Judge in W.P.(S) No. 6496 of 2022 on the ground
of huge delay of more than 24 years and on the basis of judgment
passed by Full bench of this Court in Ram Prasad Singh & Ors.
(Supra). Hence, the present intra court appeal against the order passed
in the writ petition.
8. It is evident from the factual aspect that the husband of the
appellant/writ petitioner had inducted to discharge his duty under the
work-charged establishment as Roller Driver (Work-charged) in
Rural Works Department, Works Division, Bokaro on 04th
November, 1988 in a specific pay scale and died in harness on
10.08.1998 i.e., after rendering service of 9 years and 10 months.
9. After the death of the employee the son, namely, Dilip Kumar
Mandal had made an application for consideration of his case for
appointment on compassionate ground, but the same was rejected
vide order dated 02nd July, 2010, based upon the ratio laid down by
the full Bench of this Court in the case of Ram Prasad Singh &Ors.
Vs. State of Jharkhand &Ors, reported in 2005 (3) JLJR 38(FB).
10. The present appellant, the widow of the employee, namely, Most.
Sukri Devi @ Hiria Devi has ventilated her grievance for release of
family pension but the same having not been released, as such, the
writ petition being W.P.(S) No. 6496 of 2022 was filed.
11. The ground was taken by putting reliance upon the judgment passed
by full Bench of this Court in the case of Ram Prasad Singh
&Ors.(supra)wherein the question of entitlement with respect to the
pension/family pension has been decided.
12. The learned Single Judge has called upon the State wherein the plea
was taken that the judgment in the case of Ram Prasad Singh
(supra)has been rendered sometime in year 2005, i.e. on 16th May,
2005while the husband of the appellant/writ petitioner had died in
harness on 10.08.1998 hence the judgment passed by the full Bench
of this Court, since, is subsequent to the death and, as such, whatever
proposition has been laid down, there cannot be any relief on the
simple principle that any judgment passed by any court of law will
have the prospective applicability not retrospective. The said order is
under challenge in the present memo of appeal.
Arguments on behalf of the Appellant-writ petitioner :
13. Mr. Binod Kumar, learned counsel appearing for the appellant/writ
petitioner has taken the ground that even accepting the judgment of
the full Bench of this Court rendered in the case of Ram Prasad Singh
&Ors. Vs. State of Jharkhand &Ors.(supra)is subsequent to the death,
but if the aforesaid judgment will be taken into consideration which
has not laid down any new rule or a new law rather the law already
was in vogue in pursuance to the Finance Department memo no. 1344
dated 04th February, 1949 wherein the provision has been made with
respect to regularization of the service of the employee working
under the work-charged establishment.
14. The ground, therefore, has been taken that even accepting that the
judgment rendered in the case of Ram Prasad Singh &Ors. Vs. State
of Jharkhand &Ors.(supra) is subsequent but when the Rule 1949 was
in operation since 04th February, 1949 vide the memo issued by the
Finance Department and as such the rule was there, but even then
there was no consideration of the case of the husband of the
appellant/writ petitioner for taking him under the regular
establishment since he was found to be working for last nine years
and ten months the day when he died while in service in a specific
pay scale.
15. It has been submitted that the learned Single Judge has agreed to the
ground taken on behalf of the State that the appellant/writ petitioner,
the widow, has approached the Court of law after lapse of 20 years
from the date of death of her husband and as such, the same is barred
with a principle of delay and latches but the said principle will not be
applicable for the reason that it is the latches committed on the part of
the State in not taking decision in terms of the memo dated
04thFebruary, 1949 which has been held to be constitutionally valid
after enactment of the Constitution of India by considering the same
to be rule framed under the proviso to Article 309 of the Constitution
of India.
16. Learned counsel for the appellant/writ petitioner has submitted that
the learned Single Judge ought to have taken into consideration the
said part of the issue, but without considering the same only on the
ground of delay and latches as one of the grounds, the claim of the
appellant/writ petitioner has been rejected.
17. The second ground upon which the learned Single Judge has not
passed the positive direction is of non-availability of the foundational
fact.
The argument has been advanced that so far as the issue of
foundational fact that can only be construed to be that the husband of
the appellant/writ petitioner was not in the regular establishment but
even accepting the same to be correct without then the question is that
who is at fault, i.e., fault lies with the State in not taking decision of
regularization of the deceased husband of the appellant/writ petitioner
for which the appellant/writ petitioner cannot be deprived from the
benefit of the family pension.
18. Learned counsel, based upon the aforesaid ground, has submitted that
the impugned order therefore, needs to be interfered with.
Arguments on behalf of the State:
19. Mr. Mrinal Kanti Roy, G.A.-I assisted by Chandan Tiwari, A.C. to
G.A.-I has taken following grounds in defending the impugned order:
(i) It has been contended that the learned Single Judge since has
taken into consideration the grievance having been raised after
lapse of 20 years with respect to the disbursement of the family
pension which cannot be said to suffer from an error due to
applicability of the delay and latches.
(ii) It has been contended that the appellant/writ petitioner was
conscious with her rights with respect to the consideration of
issue of family pension but even then she had not rushed to the
court of law after death of her husband rather she had come
after the lapse of 20 years, therefore, learned Single Judge if
has taken into consideration the aforesaid aspect of the matter
while dismissing the writ petition by taking it as one of the
grounds, the same cannot be said to suffer from an error.
(iii) So far as the second consideration of non-availability of the
foundational fact is concerned, it has been submitted that the
same cannot be said to be without any basis in view of the
admitted fact that the day when the husband of the
appellant/writ petitioner had died, he was not under the regular
establishment.
(iv) It has further been submitted that under the Pension Rule/
Liberalized Pension Scheme, 1964, the pensionary benefits or
the family pension is only to be paid to the dependent of the
deceased employee, if such employee is under the regular
establishment. Therefore, the right of the appellant/writ
petitioner cannot be said to be in her favour even though the
statutory provision for the purpose of grant to family pension is
to be taken into consideration.
20. Learned counsel for the State, based upon the aforesaid grounds, has
submitted that the learned Single Judge if has taken the view based
upon the aforesaid consideration the same cannot be said to suffer
from an error.
Analysis:
21. Heard learned counsel for the parties, gone across the findings
recorded by the learned Single Judge in the impugned order and also
the factual aspect as pleaded in the writ petition.
22. This Court, on appreciation of the rival submission, is of the view
that following the issues require to be considered:
(i) Whether the latches if lies on the part of the State on account of
availability of the policy decision of the rule, can it be available
to the State Authority to take the ground of delay and latches?
(ii) Whether the law if already available and the Court of law has
interpreted the same, can it be taken as a ground that merely
because the judgment has been passed interpreting the law
already available, the concerned will be given benefit on the
basis of the judgment passed by Court of law in moving the
law already available?
23. Since both the issues are interlinked, as such, the same are taken
together for its consideration.
24. This Court, before considering the aforesaid issues,deems it fit and
proper to refer certain foundational fact which has got bearing in
consideration of both the issues.
25. The question herein is of the grant of family pension which has been
raised by the widow of the deceased employee said to have worked
under the work-charged establishment and while working as such, he
died on 10.08.1998.
26. The 'work-charged establishment' has been defined under the P.W.D.
code. The 'work-charged establishment' as per the definition in the
P.W.D. code stipulates that if a work under a project is perennial or
continuous in nature and the employees are to be inducted for
completion of the said work and if it is found that said work will
continue for more than the period of 12 months or even more, then
the such establishment is said to be work-charged establishment and
the employee inducted to discharge the said duty will be said to be an
employee working under the work-charged establishment. For ready
reference, the 'work-charged establishment' as defined under the
P.W.D. Code is being referred herein which reads as under:
"59. Works establishment will include such establishment as is
employed upon the actual execution, as distinct from the general
supervision of a specific work or of sub-works of a specific project
or upon the subordinate supervision of departmental labour, stores
and machinery in connection with such work or sub-work. When
employees borne on the temporary establishment are employed on
work of this nature their pay should, for the time being, be charged
direct to works."
"Note 3. Posts borne on work-charged establishments which are
required throughout the year for maintenance works, etc., or for a
long and indefinite period should be made permanent and included
in the permanent establishment with the approval of Government.
27. It needs to refer herein that in order to carry out the principle of work-
charged, the Finance Department had issued a memo being Memo
No. 1344 dated 04th February, 1949. The same is being referred
herein as under:
"Subject--Revised conditions of service of work-charged
establishment.
The existing distinction between work-charged establishment
temporary and permanent establishment and dally labour as given
in the P.W. Code and P.W.D. Accounts Code will be maintained
but the conditions of service of work-charged establishment will
hence forth be identical with those of temporary Government
servants.
The posts in work-charged establishment which are of
permanent nature, that is required for 12 months in the year and
for long and indefinite period will be made permanent and
included in permanent establishment and the men employed on
these posts, having one year's approved service will be included
amongst permanent Government employees. Deaths in this
connection are being worked out and till this is done the conditions
of service applicable to temporary Government servants will apply
to all work-charged posts.
Vide F.D. Memo No. 1344, dated 4.2.1949."
28. It is evident that while issuing the Memo dated 04th February, 1949,
the consideration was given by the State with respect to the
distinction between work-charged establishment temporary and
permanent establishment and daily labour as given in the P.W. Code
and P.W.D. Accounts Code. The conditions of service of work-
charged establishment has been held to be identical with those of
temporary Government servants.
It has further been decided by way of the said policy decision
that the post in work-charged by way of permanent nature, that is
required for 12 months in the year and for long and indefinite period
will be made permanent and included in permanent establishment and
the men employed on these posts, having one year's approved service,
will be included amongst permanent Government employees.
29. It is, thus, evident from the said policy decision of the State as
contained in Memo No. 1344 dated 4th February, 1949 that the
Government has taken a policy decision to take the services of the
employee working in the Work Charge Establishment under the
permanent establishment subject to the condition that such employee
has performed his/her duty for 12 months in the year and for long and
indefinite period.
30. The State has again come out with another policy decision, i.e., on
21stOctober, 1984 whereby and whereunder, it was decided by laying
down the qualifying period of five years of continuous service against
one post in work-charged establishment for taking over services in
the permanent/regular establishment.
31. It is evident that the law was there as has been formulated by way of
policy decision by the State for consideration of cases of one or the
other employees working under the work-charged establishment way
back from the 4th February, 1949 and again the reiterated on 22nd
October, 1984.
32. It is the undisputed fact that the husband of the appellant/writ
petitioner was inducted in service on 04th November, 1988 and after
rendering the service for nine years and ten months, he died in
harness on 10.08.1988.
Therefore, this Court is of the view that when the factual aspect
regarding the continuity in service of the deceased husband of the
appellant/writ petitioner is not in dispute, then the question will be
that why the State has sat upon the issues with respect to taking the
services of the husband of the appellant/writ petitioner in the
permanent establishment, there is no explanation by the State to that
effect.
33. It is also admitted fact that the Rule of 4th February, 1949 was the
subject matter of the judgment passed by the Full Bench of this Court
in the case of Ram Prasad Singh (supra) and that is the basis upon
which the claim of the appellant/writ petitioner has been rejected,
since the ground has been taken by the State that the said judgment is
subsequent to the death of the husband of the appellant/writ
petitioner.
34. This Court, in order to appreciate the fact as to whether the judgment
passed by the Full Bench of this Court has laid down an independent
law or it is only the reiteration/consideration of the Rule of 4th
February, 1949.
35. It is evident from paragraph-4 of the judgment rendered by the Full
Bench of this Court in the case of Ram Prasad Singh & Ors. (supra)
wherein three issues were framed for ready reference issues are
quoted herein under:
"4"(a) Whether a work-charged employee of the State of
Jharkhand can claim for consideration of his case for taking
over his services in the permanent (regular) establishment? If
so, is it applicable only to those, who have been appointed prior
to 21st October, 1984 and completed more than five years of
service in the work-charged establishment or to any work-
charged employee, who has completed five years of service in
the work-charged establishment and is otherwise eligible and fit,
irrespective of a cut-off date of appointment?
(b) Whether a dependant of a deceased work-charged employee
can claim consideration of his claim for appointment in the
services of the State on compassionate ground in terms of the
policy/scheme, framed by the State Government? and
(c) Whether a work-charged employee or his nominee or heir is
entitled to the death-cum-retiral benefits, such as,
pension/family pension, gratuity, leave encashment, provident
fund, group insurance amount etc. to which a temporary
Government employee is entitled?"
(Emphasis supplied).
36. The first issue i.e., 4(a) is with respect to the consideration of taking
over the services in the permanent establishment and whether the cut-
off date can be fixed.
The second issue i.e., 4(b) is with respect to consideration of
appointment on compassionate ground if the employees who have
been inducted in the permanent establishment died in harness and the
third issue i.e., 4(c) is with respect to the entitlement to the death-
cum- retiral benefit, such as, pension/family pension, gratuity, leave
encashment, provident fund, group insurance, etc.
37. The Rule dated 4th February, 1944 was the basis of the aforesaid Full
Bench's judgment. For answering the aforesaid issue as to what
would be the implication of the said rule in all the three issues
independently, the consideration of Rule dated 4th February, 1949
has been given at paragraph-40 of the aforesaid judgment and
thereafter, at paragraph-51 and 52, for the purpose of answering the
issue no.1. For ready reference, paragraph-40, 51 and 52 of the
judgment rendered in Full Bench by this Court in Ram Prasad Singh
& Ors. (supra) are being referred herein as under:-
"40. So far as the State of Bihar (now successor States of Bihar
and Jharkhand) is concerned, the State Government has laid down
"condition of service of the work-charged employees", circulated
vice Finance Department's Memo No. 1344, dated 4th February,
1949, as quoted hereunder:--
"Subject--Revised conditions of service of work-charged
establishment.
The existing distinction between work-charged establishment
temporary and permanent establishment and dally labour as
given in the P.W. Code and P.W.D. Accounts Code will be
maintained but the conditions of service of work-charged
establishment will hence forth be identical with those of
temporary Government servants.
The posts in work-charged establishment which are of
permanent nature, that is required for 12 months in the year and
for long and indefinite period will be made permanent and
included in permanent establishment and the men employed on
these posts, having one year's approved service will be included
amongst permanent Government employees. Deaths in this
connection are being worked out and till this is done the
conditions of service applicable to temporary Government
servants will apply to all work-charged posts. Vide F.D. Memo
No. 1344, dated 4.2.1949."
51. In the statutory 1949 Rule dated 4th February, 1949, there is
no cut-off date, fixed for consideration of the cases of work-
charged employees for taking over their services in the permanent
(regular) estab-Ushment. No minimum qualifying period of service
was laid down under the said Rule 1949. In some of the
departments, on completion of ten years of service their cases used
to be considered for taking over their services, in permanent
(regular) establishment. In some departments, such cases used to
be considered on completion of five years of service in the work-
charged establishment. The State Government for the first time vide
its Memo No. PC 2-29-02/84-3058-B, dated 22nd October, 1984,
laid down the qualifying period of "five years of continuous service
against one post in work-charged establishment" for taking over
services in the permanent (regular) establishment, but no cut-off
date was fixed therein. It is only by a subsequent Resolution No.
3/PAR-03/51/88-5074, dated 20th September, 1990 while
constituting a Selection Board, it was ordered to take over the
services of only those, who were appointed in the work-charged
establishment, prior to 21st October, 1984, meaning thereby not to
take over the services of those, appointed after 21st October, 1984.
52. It is a settled law that the State Government has power to issue
administrative instructions by way of supplementing the rules; the
Government has power to fill up the gaps in the rules, by issuing
administrative instructions, if the rules are silent on the subject,
provided the same is not inconsistent with the statutory rules,
already framed. In the present case, the appointment and condition
of service of work-charged employees are governed by rule dated
4th February, 1949, commonly known as 1949 Rule, a rule deemed
to have been framed under proviso to Article 309 of the
Constitution of India. No cut-off date of appointment and minimum
period of continuous service in the work-charged establishment has
been fixed therein. In the circumstances, it was open to the State
Government to prescribe the minimum qualifying period of five
years of continuous service in the work-charged establishment, as
was made vide Memo No. PC II 29-02/84-3058-B, dated 22nd
October, 1984. So far as work-charged employees appointed prior
to 20th September, 1990 are concerned, they have acquired a right
of consideration of their cases for taking over their services in the
permanent (regular) establishment on completion of five years of
continuous services in the work charged establishment in terms of
1949 Rules read with Circular No. 3058-B, dated 22nd October,
1984. Such right cannot be taken away by issuing an administrative
instruction. Resolution No. 3/PAR-03/51/88-5074, dated 20th
September, 1990 being in conflict with 1949 Rule, cannot be
upheld. Further, the cut-off date i.e. 21st October, 1984, as
prescribed vide Memo dated 20th September, 1990, for
consideration of the casest of work-charged employees for taking
over their services in the permanent (regular) establishment,
having no nexus with the object to achieve is also to be declared
arbitrary, unreasonable and illegal. It is declared accordingly.
38. The Full Bench of this Court has answered the issue of
permanency/regularization by inducting under the permanent
establishment and the second issue under 4(a) regarding the
applicability of cut-off date has been negated as would appear from
paragraph-52 of the aforesaid judgment as quoted and referred
hereinabove.
39. Since, we are concerned only with respect to the issue no 4(a) and
4(c), therefore, the consideration of the issue as under 4(b) which
pertains to the appointment on compassionate ground is not been
discussed. Further, for the reason that appointment on compassionate
ground which was claim by the son of the deceased employee has
already been dismissed by the writ
Court in W.P. (S) No. 4397 of 2010.
40. The issue herein only is with respect to the entitlement of family
pension of the widow of the deceased husband. Therefore, the issue
no. 4(a) and 4(c) will be said to be interlinked reason being that if the
issue no.4(a) has been answered in favour of the concerned employee
for regularization then, the concerned person will be entitled to get
the pensionary benefits to the dependent i.e. the widow for family
pension, but, herein another issue rendered by the Full Bench of this
Court Ram Prasad Singh &Ors. Vs. State of Jharkhand
&Ors.(supra) is subsequent to the death of the husband of the
appellant/wit petitioner, based upon that the claim of the writ
petitioner for family pension has been rejected on the premise that the
husband had never been inducted under the regular establishment.
41. Learned Single Judge has accepted the said view and assigning the
reason of absence of foundational fact, the foundational facts, so far
as the issue of pension/family pension is concerned, a person
concerned is to be under the substantive service as per the pension
rule or so far as the family pension is concerned, under the
Liberalized Pension Scheme, 1964.
42. The Liberalized Pension Scheme, 1964 refers with respect to the
entitlement of the family pension of such dependent of the pensioner
who has already got the pension and in course if it, he has died.
43. But, the question herein is that which the learned Single Judge has
considered by taking the ground of lapse of 20 years. There is no
dispute that in the matter of writ jurisdiction, the delay and laches has
got more bearing due to the principle that the Court, under the writ
jurisdiction, is not to exercise its extraordinary jurisdiction after
considerable delay if without any sufficient explanation, but question
of delay and latches, can be said to be the sole ground without
weighing the attributability that for whose fault the delay has been
caused and if even accepting that the litigant has caused the delay in
approaching the Court of law then the further question will be arised
that why the State has not taken any action, if they have already taken
a policy decision.
Therefore, if the policy decision is already there and State has
failed in settling the claim of the concerned litigant, then it is not
available for the State to take the ground of applicability of principle
of delay and laches on the principle that a wrong doer cannot be
allowed to take advantage of its own wrong. Reference in this regard
be made to the judgment rendered by the Hon'ble Apex Court in the
case of Kusheshwar Prasad Singh v. State of Bihar and Others
reported in (2007) 11 SCC 447 has held that a man cannot be
permitted to take undue and unfair advantage of his own wrong to
gain favourable interpretation of law. It is sound principle that he who
prevents a thing from being done shall not avail himself of the non-
performance he has occasioned. To put it differently, "a wrongdoer
ought not to be permitted to make a profit out of his own wrong. For
ready reference paragraphs 15 and 16 are being quoted hereunder as:-
"15. In Union of India v. Major General Madan Lal Yadav
[(1996) 4 SCC 127] the accused army personnel himself was
responsible for delay as he escaped from detention. Then he
raised an objection against initiation of proceedings on the
ground that such proceedings ought to have been initiated within
six months under the Army Act, 1950. Referring to the above
maxim, this Court held that the accused could not take undue
advantage of his own wrong. Considering the relevant provisions
of the Act, the Court held that presence of the accused was an
essential condition for the commencement of trial and when the
accused did not make himself available, he could not be allowed
to raise a contention that proceedings were time barred. This
Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims
(10th Edn.), p. 191 wherein it was stated: "It is a maxim of law,
recognised and established, that no man shall take advantage of
his own wrong; andthis maxim, which is based on elementary
principles, is fully recognised in courts of law and of equity, and,
indeed, admits of illustration from every branch of legal
procedure."
16. It is settled principle of law that a man cannot be permitted to
take undue and unfair advantage of his own wrong to gain
favourable interpretation of law. It is sound principle that he who
prevents a thing from being done shall not avail himself of the
non-performance he has occasioned. To put it differently, "a
wrongdoer ought not to be permitted to make a profit out of his
own wrong".
44. Similar view has been reiterated by Hon'ble Apex Court in the case of
Indore Development Authority v. Shailendra (Dead) through legal
representatives and others reported in (2018) 3 SCC 412 at
paragraph 143 which is being quoted hereunder as:-
"143. When once the court has restrained the State authorities to
take possession, or to maintain status quo they cannot pay the
amount or do anything further, as such the consequences of interim
orders cannot be used against the State. It is basic principle that
when a party is disabled to perform a duty and it is not possible for
him to perform a duty, is a good excuse. It is a settled proposition
that one cannot be permitted to take advantage of his own wrong.
The doctrine commodum ex injuria sua nemo habere debet means
convenience cannot accrue to a party from his own wrong. No
person ought to have advantage of his own wrong. A litigant may
be right or wrong. Normally merit of lis is to be seen on date of
institution. One cannot be permitted to obtain unjust injunction or
stay orders and take advantage of own actions. Law intends to give
redress to the just causes; at the same time, it is not its policy to
foment litigation and enable to reap the fruits owing to the delay
caused by unscrupulous persons by their own actions by misusing
the process of law anddilatory tactics."
45. It is not in dispute that the appellant-writ petitioner has committed
delay but the question is that for what reason, he is forgetting the
family pension and hence, further question would be that in the
matter of consideration of family pension can the principle of delay
and laches will apply if the pension and family pension, has been
considered to have the recurring cause of action.
46. The recurring cause of action has been defined by Hon'ble Apex
Court and by laying down the position of law in the matter of pension
and family pension, the delay and laches will not apply because the
cause of action is recurring day-by-day since it is a question of family
pension which is to be paid month wise. Reference in this regard be
made to judgment rendered by the Hon'ble Apex Court in the case of
M. R. Gupta vs. Union of India and Ors., (1995) 5 SCC 628,
wherein at para-5 it has been laid down which reads as hereunder:
"5. Having heard both sides, we are satisfied that the Tribunal has
missed the real point and overlooked the crux of the matter. The
appellant's grievance that his pay fixation was not in accordance
with the rules, was the assertion of a continuing wrong against him
which gave rise to a recurring cause of action each time he was
paid a salary which was not computed in accordance with the
rules. So long as the appellant is in service, a fresh cause of action
arises every month when he is paid his monthly salary on the basis
of a wrong computation made contrary to rules. It is no doubt true
that if the appellant's claim is found correct on merits, he would be
entitled to be paid according to the properly fixed pay scale in the
future and the question of limitation would arise for recovery of the
arrears for the past period. In other words, the appellant's claim, if
any, for recovery of arrears calculated on the basis of difference in
the pay which has become time barred would not be recoverable,
but he would be entitled to proper fixation of his pay in accordance
with rules and to cessation of a continuing wrong if on merits his
claim is justified. Similarly, any other consequential relief claimed
by him, such as, promotion etc. would also be subject to the
defence of laches etc. to disentitle him to those reliefs. The pay
fixation can be made only on the basis of the situation existing on
1-8-1978 without taking into account any other consequential relief
which may be barred by his laches and the bar of limitation. It is to
this limited extent of proper pay fixation the application cannot be
treated as time barred since it is based on a recurring cause of
action."
47. Since the law has already been settled that in the matter of
pension/family pension, the principle of delay and laches will not be
applicable, therefore, this Court is of the view that the first reason
upon which the learned Single Judge has declined to pass positive
direction of approaching the Court of law after 20 years, needs to be
interfered with.
48. The second ground of non-availability of the foundational fact is
concerned, since, the discussion has been made regarding the
applicability of the Memo dated 4th February, 1949 creating a legal
vested right upon the employee who has been inducted to discharge
his duty under the work-charged establishment to which the State was
fully conscious and not only that in the year 1984 also, the said policy
decision has been reiterated, but even then, the State has not taken
any action for settling the claim of regularization of the husband of
the writ petitioner.
49. It has been informed by the learned counsel for the appellant-writ
petitioner that identically placed employee under the work-charged
establishment had been regularized, but in the year 2009.It is
misfortune that by that time, the husband of the writ petitioner had
already been died.
50. The question of misfortune of death can be taken as a ground by the
State that is the different question, since we are living in the welfare
State. In the welfare State, it is the prime duty of the State to think
about the predicament of the person and in present case i.e. widow
who is dependent upon the deceased employee who had performed
his duty for a period of about 10 years in the hope of a policy decision
which was taken way back on 4th November, 1949 and reiterated in
the year 1984, but how can the State be said to be so unconcerned in
not taking any decision in terms of the Rule 1949, wherein the
specific stipulation is to regularize the services of the worked as
employee by taking them under the permanent establishment and not
only that it has been clarified and fortified in the year 1984 by giving
the specific period of 5 years that if an employee who has been
inducted and found to be continuously working for five years, has to
be inducted under the regular establishment.
But, the State has taken no action now, the State is taking the
plea that since the husband of the appellant/writ petitioner has died
and as such, she cannot be held entitled for the family pension,
therefore, the State when remained inactive and now the State wants
to take aid of its own inaction, the same cannot be said to be
permissible and it is not permissible.
51. Therefore, the question of foundational, fact as has been taken as a
ground by learned Single Judge, ought to have been appreciated by
the learned Single Judge for whose fault that foundational fact is in
absence.
52. Further, the argument has been advanced on behalf of the learned
counsel appearing for the State that the judgment passed in the case
of Ram Prasad Singh &Ors. Vs. State of Jharkhand &Ors.(supra)is
subsequent to the death and as such, there cannot be any
consideration of the claim of the writ petitioner.
But, this Court is not in agreement with the said submission due
to the reason that the judgment passed by the Full Bench of this Court
in the case of Ram Prasad Singh &Ors. Vs. State of Jharkhand
&Ors.(supra)is only the clarification of the decision taken way back
on 4th November, 1949 and 22nd October, 1984, as such, merely
because the clarification of these two policies decision have come in
the judgment passed by the Full Bench of this Court in Ram Prasad
Singh & Ors. (supra), then, it is not available for the State to take the
ground that the judgment since has come subsequent to the death, so
no consideration is to be given.
But, the Rule was already there said to be notified under the
proviso to Article 309 of the Constitution.
53. This Court in view of the aforesaid discussion is of the view that the
learned Single Judge since has not considered all these factual as also
legal aspects, hence, the impugned order needs to interfered with.
54. Accordingly, the impugned order dated 19.12.2023 passed in
W.P.(S). No. 6496 of 2022 is hereby quashed and set aside.
55. The State is directed to consider the case of the appellant/writ
petitioner for her entitlement for family pension by taking into
consideration the liberalized Pension Scheme/ Family Pension, as
applicable. Such decision be taken within a period of two months
from the date of copy of this order. The consequence will follow.
56. In the result, the instant intra-court i.e. Letters Patent Appeal No. 268
of 2024 stands disposed of.
57. In consequence thereof, pending interlocutory application(s), if any,
also stands disposed of.
(Sujit Narayan Prasad, ACJ.)
(Arun Kumar Rai, J.)
Abhishek-Suman
A.F.R.
