Allahabad High Court
Prem Pal Singh And 187 Others vs State Of U.P. And 5 Others on 4 January, 2017
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 27 Case :- WRIT - A No. - 12923 of 2014 Petitioner :- Prem Pal Singh And 187 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- M.C. Chaturvedi Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
1. Heard Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Suresh C. Dwivedi, learned counsel for the petitioners as well as learned Standing Counsel appearing for the respondents and perused the record.
2. Counter and rejoinder affidavits have been exchanged between the parties and with their consent, the present petition is being disposed of finally at the admission stage itself.
3. The present petition has been filed with a prayer to issue a writ, order or direction in the nature of mandamus directing the respondents to consider and extend the benefit of increments and time scale in terms of the judgement and order dated 5.7.2009 passed by this Hon'ble Court at Lucknow Bench in Special Appeal No. 303 of 2009 (State of UP and others vs. Jagdish Singh and others).
4. The sole submission made by Sri M.C. Chaturvedi, learned Senior Advocate for the petitioners is that once on the basis of the decision in Special Appeal No. 303 of 2009 (State of UP and others vs. Jagdish Singh and others), the writ petitioners i.e. Jagdish and others (in the aforesaid case) have been granted relief by the concerned authority i.e. Superintending Engineer, Barabanki vide order dated 7.12.2011, the petitioners herein are also entitled for the same relief. No other submission was made.
5. The State has filed counter affidavit and relying upon various provisions including paras 667, 668 and 669 of the Financial Handbook, Vol. 6 Part I; Rule 3(8) of the U.P. Sewa Nivratt Labh Niyamawali, 1961; Regulations 361,370,474-A, 474-B of Civil Service Regulations; and Government Order dated 1.7.1989 & Government Order dated 14.2.1983 and also on the strength of various judgements of Hon'ble Apex Court, it was submitted that the service rendered as daily wage employee or work charged employee cannot be considered as regular service and no parity can be claimed by the petitioners. It was further submitted that even though Special Leave Petitions filed before the Hon'ble Apex Court were dismissed but the question of law raised in the appeals was kept open, therefore, the judgements that were rendered without considering the provisions of Civil Service Regulations and Financial Handbook as well as judgements of Hon'ble Apex Court whereby it has been settled that daily wage service or work charged service cannot be considered as regular service and as such are not binding precedent and cannot operate as res judicata. Submission therefore, is that the petitioners are not entitled for any writ of mandamus as they have failed to establish any legal fundamental/statutory rights for extension of benefit of increments and time scale in terms of the judgement and order dated 5.7.2009 passed by this Hon'ble Court at Lucknow Bench in Special Appeal No. 303 of 2009 (State of UP and others vs. Jagdish Singh and others). It was also submitted that stale claim of the petitioner cannot be revived by directing the State to decide representation of the petitioner.
6. I have considered the rival submissions and have perused the record.
7. The writ petition no. 534 (S/S) of 2009 (Jagdish Singh and others vs. State of UP and others) had been filed by the petitioners therein initially engaged on daily wage basis and were subsequently regularised when their claim for service benefits and additional increment on completion of 8, 14 and 20 years of continuous service was not considered, which was disposed of finally by directing the respondents to decide their claim.
8. The special appeal no. 303 of 2009 (State of UP and others vs. Jagdish Singh and others) challenging the aforesaid judgement was dismissed vide order dated 7.5.2009. Against the aforesaid judgement, Special Leave Petition No. 18381 of 2009 was filed by the State of UP, which too was dismissed in limine vide order dated 20.9.2010.
9. At the very outset, the order dated 20.9.2010 passed by the Hon'ble Apex Court rejecting Special Leave Petition No. 18381 of 2009 filed by the State of U.P. challenging the order dated 7.5.2009 is quoted as under:
"Delay condoned.
The special leave petitions are dismissed.
However, the question of law is kept open."
(Emphasis supplied)
10. The question as to whether the service rendered as daily wage employee and work charged employee can be treated as regular service for the purpose of counting ten years service as qualifying service for grant of pension, was considered by me in Bandhu Prasad vs. State of UP & others, 2015 (8) ADJ 560 and the claim of the petitioner therein was rejected. The relevant paragraphs 7, 10, 12, 13 and 14 of the said judgement are quoted as under:
"7. He further placed reliance on decision of Hon'ble Division Bench in Special Appeal No.1891 of 2013, Parmatma Ram Vs. State of U.P. and other against which Special Leave Petition (C) No.2255 of 2015, State of U.P. Vs. Parmatma Ram, was dismissed on 30.2.2015 with the following order:-
"Delay condoned.
The special leave petition is dismissed.
The question of law is kept open."
10. However, in the judgement rendered by Hon'ble Division Bench of this Court in Jai Prakash Vs. State of U.P, 2014 (ADJ) 382 (DB), wherein the judgement of Hon'ble Single Bench, whereby the writ petition which was filed for quashing the order denying the benefit of service rendered by the appellant in a work charge establishment for computing the qualifying service for grant of pension was dismissed, was under challenge. While dismissing the special appeal the Hon'ble Division Bench observed as under:-
''It, therefore, follows from the aforesaid judgements of the Supreme Court that the work charged employees constitute a distinct class and they cannot be equated with regular employees and that the work charged employees are not entitled to the services benefits which are admissible to regular employees under the relevant rules. .''
12. The aforesaid judgement was challenged by the appellant Jai Prakash before Hon'ble the Apex Court by means of filing Special Leave to Appeal (C) No.12648 of 2014, Jay Prakash Vs. State of U.P and others which was dismissed with the following order dated 5.9.2014.
'There is nothing on the record to suggest that any Rule or Scheme framed by the State to count the work-charge period for the purpose of pension in the regular establishment. In absence of any such Rule or Scheme, we find no merit to interfere with the impugned judgement.
The special leave petition is dismissed.'
13. In view of the aforesaid decision of the Division Bench in the case of Jai Prakash (Supra) wherein it has been categorically held that the work- charge employees are not entitled to the benefit which are permissible to regular employee under the Rules, which was further affirmed by Hon'ble the Apex Court holding that there is nothing on record to suggest any rule or scheme framed by the State to count the work charge period for the purpose in the regular establishment. In absence of any such Rules or Scheme the Hon'ble Apex Court did not find any merit to interfere with the impugned judgement and the Special Leave Petition was dismissed. In the present case also there are no Rules or Scheme providing for grant of pension in work charge establishment.
14. The other two decisions of Hon'ble Apex Court, simply dismissing the Special Leave Petition against the judgements of this Court leaving this question of law open, are of no help to the petitioner in as much as this question as to whether work charge period for the purpose of pension in regular establishment as on date stood affirmed by Hon'ble Division Bench in the case of Jai Prakash ( Supra) and S.L.P.-C No.12648 of 2014, Jai Prakash Vs. State of U.P. as noted above."
(Emphasis supplied)
11. Challenging the order dated 13.7.2015 passed in Bandhu Prasad (supra), Special Appeal Defective No. 101 of 2016 was filed, which too was dismissed.
12. A Full Bench of this Court in Babu @ Babu Ram vs. State of U.P. and others, 2016 (3) ADJ 149 (FB) has also considered this question and after considering the various judgements of Hon'ble Apex Court was of the opinion that the service rendered as daily wage employee or work charged employee cannot be considered as regular service for the purpose of pensionary benefits, Therefore, now it is clear that the service rendered of such nature cannot be treated as regular service. The relevant paragraphs 2 and 4 of the said judgement are quoted as under:
"A. STATUS OF A WORK CHARGED EMPLOYEE
2. The concept of a work charged employee, of service rendered in a work charged establishment and the distinction between regular service and service rendered in a work charge establishment has never really been in doubt in service jurisprudence. A Bench of three learned Judges of the Supreme Court in Jaswant Singh And Others Vs. Union of India And Others5. The Supreme Court explained the service rendered in a work charged establishment and its status in the following terms:
"A work-charged establishment broadly means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work.
The entire strength of labour employed for the purposes of the Beas Project was work-charged. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. They do not get any relief under the Payment of Gratuity Act nor do they receive any retrenchment benefits or any benefits under the Employees State Insurance Schemes."
Jaswant Singh and the principles laid down therein came to be reiterated by the Supreme Court in State of Rajasthan Vs. Kunji Raman6. Their Lordships held:
"6. A work-charged establishment as pointed out by this Court in Jaswant Singh v. Union of India broadly means an establishment of which the expenses, including the wages and allowances of the staff, fare chargeable to "works". The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the works. The work-charged employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. Thus a work-charged establishment is materially and qualitatively different from a regular establishment.
8. A work-charged establishment thus differs from a regular establishment which is permanent in nature. Setting up and continuance of a work-charged establishment is dependent upon the Government undertaking a project or a scheme or a 'work' and availability of fund for executing it. So far as employees engaged on work-charged establishments are concerned, not only their recruitment and service conditions but the nature of work and duties to be performed by them are not the same as those of the employees of the regular establishment. A regular establishment and a work-charged establishment are two separate types of establishments and the persons employed on those establishments thus form two separate and distinct classes. For that reason, if a separate set of rules are framed for the persons engaged on the work-charged establishment and the general rules applicable to persons working on the regular establishment are not made applicable to them, it cannot be said that they are treated in an arbitrary and discriminatory manner by the Government. It is well-settled that the Government has the power to frame different rules for different classes of employees. We, therefore, reject the contention raised on behalf of the appellant in Civil Appeal No. 653 of 1993 that Clauses (g), (h) and (i) of Rule of RSR are violative of Articles 14 and 16 of the Constitution and uphold the view taken by the High Court."
(Emphasis supplied) B. ARTICLE 370 AND THE ENTITLMENT TO PENSION
4. Article 370 of the Civil Service Regulations provides that continuous, temporary or officiating service under the Government of Uttar Pradesh followed without interruption with confirmation in the same or any other post shall qualify for pension with the following exceptions: -
(i) Period of temporary or officiating service in non-pensionable establishment
(ii) Periods of service rendered in a work charged establishment; and
(iii) Periods of service in a post paid out of contingencies.
From a plain reading of the provision it is apparent that service rendered in a work charged establishment is not liable to be counted while computing qualifying service for the purposes of pension.
As far as this Court is concerned, the issue of a muster roll employee and his entitlement to pension with reference to the provisions of Regulation 370 fell for consideration before a Division Bench of the Court in Bansh Gopal Versus State of U.P. & Ors.9. Answering the said issue the Division Bench held:
"17. The Regulation 370 as quoted above expressly excluded the services rendered in work-charged establishment for purposes of pension. Fundamental Rule 56(e) on which reliance has been placed by counsel for the appellant does not help the appellant in the present case. Rule 56(6) requires retiring pension to be paid in accordance with and subject to the provisions of the relevant rules. Fundamental Rule 56(e) is quoted as below:
"56(e) A retiring pension shall be payable and other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules to every Government servant who retires or is required or allowed to retire under this rule.
18. The relevant rules for payment of pension are contained in Civil Services Regulation. There is nothing inconsistent between Fundamental Rule 56 and Regulation 370 so as to not follow Regulation 370. According to Regulation 370, the services rendered by appellant in work charge establishment does not qualify for purposes of pension."
13. Testing the case of the present petitioners on the aforesaid parameters, the petitioners have failed to establish their prima facie right to claim a writ of mandamus.
14. There is another reason to refuse the relief as prayed for. At the best, the petitioners were sitting on fence waiting for outcome of such litigation, which continued from 2006 till 2011 and they never came forward to assert the claim till 2013. As per para 10 of the writ petition, they raised their claim for the first time by filing representation on 15.3.2013 and present petition was filed in the year 2014. As such in the light of the observations of Hon'ble Apex Court in the case of State of Orissa and Anr. vs. Mamata Mohanti, 2011 (3) SCC 436, no such relief can be granted to the petitioners. The relevant paragraphs 52, 53 and 54 of Mamata Mohanti (supra) are quoted as under:
"52. In the very first appeal, the respondent filed writ petition on 11-11-2005 claiming relief under the Notification dated 6-10-1989 w.e.f 1-1-1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the suit of appeal if made after the prescribed period even though the limitation is not set up as a defense and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter.
53. Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petition are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1-1-1986 by filing a petition on 11-11-2005 but the High Court for some unexplained reason granted the relief w.e.f. 1-6-1984, though even the Notification dated 6-10-1989 makes it applicable w.e.f. 1-1-1986.
54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."
(Emphasis supplied)
15. In State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, Hon'ble Apex Court has rejected the claim of promotion on the ground of delay and has clearly held that "delay defeats equity." This concept of equity applies in this case also.
16. In C. Jacob vs. Director of Geology and Mining and Another, (2008) 10 SCC 115, in paragraphs 10, 11 and 14 following observations have been made:
10. Every representation to the Goverment for relief, may not be replied on merits. Representation relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish afresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a Court/tribunal to consider or deal with the representations, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the Court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgment of a jural relationship" to give rise to a fresh cause of action.
14. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for "consideration". If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing "consideration" of such claims."
(Emphasis supplied)
17. In Haryana State Electricity Board and Another vs. Gulshan Lal and Others, (2009) 12 SCC 231, the Hon'ble Apex Court rejected the claim based on parity as juniors have been promoted and may have also getting a higher pay-scale. The relevant paragraphs no. 42 to 47 are quoted as under:
"42. From the averments made in the plaint, it is evident that the premise on which they could claim a higher designation had not been specified. Respondents herein in their respective plaints admit that they have been working on a much lower grade than the post of Senior Technician or Technician. Furthermore, neither the learned Trial Judges nor the High Court considered the effect of abolition of certain posts as also re-designation thereof. It is furthermore evident that Gulshan Lal and others having been working in Technician Grade - II could not have claimed parity with those who had been occupying the post of Senior Technician.
43. It may be true that this Court has dismissed the special leave petition on the ground of delay. The same, however, does not preclude us from considering the matter on merit. We would therefor assume that even no appeal was filed. Even in such a situation, this Court in State of Maharashtra v. Digambar, (1995) 4 SCC 683 considered the following contention:
"9. Shri Ashok Desai, in his reply to the submissions made on behalf of the respondent and others who had obtained judgments in their favour from the High Court on the basis of the judgment impugned in this appeal, did not dispute the position that certain judgments of the High Court in similar matters had not been appealed against by the State in this Court. But, according to him such a thing had happened obviously under an impression that they were stray cases and not fit enough to be appealed against before this Court, having regard to smallness of the amounts involved. When the High Court allowed certain other writ petitions based on its earlier judgments in similar matters, the State, according to him, inevitably filed SLPs in this Court in respect of latter judgments, but, unfortunately those SLPs had come to be dismissed. But, when the High Court allowed the writ petition by the judgment under appeal and when that judgment was followed in allowing other 191 writ petitions and when innumerable persons were trying to take advantage of the said judgments of the High Court to file further writ petitions which was estimated to involve an expenditure of about 400 crores of rupees for the State of Maharashtra, there was no escape from filing the special leave petition out of which the present appeal has arisen and other SLP/SLPs to wriggle out of the unanticipated situation. It was his submission that in the peculiar facts and circumstances adverted to by him, the earlier non-questioning of certain judgments of the High Court in this Court and the dismissal of SLPs in limine by a Division Bench of this Court filed against a few judgments of the High Court, cannot be a bar against the State filing this appeal against the judgment concerned seeking a decision of this Court on merits, when the judgment impugned was wholly unsustainable and called for interference so that the State Government may be saved from the calamitous situation which it had to face otherwise on account of 191 judgments rendered by the High Court by following it and when innumerable persons were waiting to take advantage of the judgment by filing fresh writ petitions in the High Court."
44. The said contention was negatived, holding:
"Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter/s where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.
It was observed :
"17............Therefore, the fact that the State has failed to file appeals in similar matters or this Court has rejected SLPs in similar matters, cannot be held to be a total bar or a fetter for this Court to entertain appeals under Article 136 of the Constitution against similar judgments of the High Court where need to entertain such appeals is found necessary to meet the ends of justice, in that, the ambit of power invested in this Court under Article 136 allows its exercise, wherever and whenever, justice of the matter demands it for redressal of manifest injustice."
45. Yet again in Coromandel Fertilizers Ltd. v. Union of India, (1984) (Supp) SCC 457, it was held:
"13. Mr Setalvad made a grievance that the authorities concerned had allowed the benefit of the notification under similar circumstances to a rival company. If the grievance of the appellant is true, the appellant may no doubt have reasons to feel sore about it. We have, however, to point out that the grievance of the appellant even if it is well founded, does not entitle the appellant to claim the benefit of the notification. A wrong decision in favour of any particular party does not entitle any other party to claim the benefit on the basis of the wrong decision. We are, therefore, clearly of the opinion that the fertilizer manufactured by the appellant in respect of which claim for exemption under the notification is made is not a mixed fertilizer within the meaning and scope of the notification and we have no hesitation in rejecting the case of the appellant, expressing our agreement with the reasons stated in the judgment of the High Court."
46. We are not oblivious of the fact that anomalous situation would be created in the sense that juniors of the respondents may be getting a higher pay but things as they stand cannot be allowed to continue. It has a cascading effect, viz., those employees who are junior to the respondents and/ or even Anil Kapoor and others would be entitled to claim parity in the scale of pay as also in designation.
47. It is now a well-settled principle of law that nobody should suffer owing to the mistake on the part of the court in view of the maxim actus curiae neminem gravabit. We, therefore, are of the opinion that the impugned judgments cannot be sustained which are set aside accordingly. The appeals are allowed. However, in the facts and circumstances, there shall be no order as to costs."
(Emphasis supplied)
18. A reference may also be made to the observations made by Hon'ble Apex Court in paragraphs 10, 11 and 12 of State of Uttar Pradesh and others vs. Rekha Rani, (2011) 11 SCC 441, which are quoted as under:
10. We have perused the order of this Court dated 19-2-1996 passed in SLP filed against the judgment and order of the High Court in Writ Petition No. 4886 of 1990 and we find that there is no discussion on the merits of the case. Thus, the aforesaid decision of this Court does not amount to a precedent and the respondent can take no benefit from the same.
11. A regular appointment can only be made after selection by the U.P. Public Service Commission. Also, admittedly, the respondent was only a temporary employee and had not worked after 16-4-1991.
12. It has been held in a recent decision of this Court in State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 following the Constitution Bench decision of this Court in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularise an employee. Merely because some others had been regularised does not give any right to the respondent. An illegality cannot be perpetuated."
(Emphasis supplied)
19. In the opinion of the Court, grant of benefit of regular service to the work charged employees would also run contrary to the spirit of the Constitutional Bench judgement in Uma Devi (3) (supra).
20. Thus, a stale claim cannot be made even on the basis of parity and no writ of mandamus can be issued to revive such claim, that too when this Court is of the opinion that the petitioners have failed to establish their prima facie right.
21. The present petition lacks merit and is accordingly dismissed.
22. There shall be no order as to costs.
Order Date :- 4.1.2017 Abhishek