Allahabad High Court
State Of U.P. Thru. Addl. Chief Secy. ... vs Mohammad Saleem And Others on 5 January, 2023
Bench: Devendra Kumar Upadhyaya, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 23.12.2022 Delivered on 05.01.2023 Court No. - 9 Case :- CIVIL MISC REVIEW APPLICATION DEFECTIVE No. - 152 of 2022 Applicant :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Social Welfare Govt. U.P. Civil Secrt. Lko. And Ors Opposite Party :- Mohammad Saleem And Others Counsel for Applicant :- C.S.C. Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Lavania,J.
(Per Saurabh Lavania,J.) Heard Sri A.N. Trivedi, learned Chief Standing Counsel assisted by Sri Amitabh Rai, learned Additional Chief Standing Counsel appearing for the State-review applicants and Dr. L.P. Mishra, learned Senior Advocate assisted by Sri Pankaj Kumar Mishra, learned counsel appearing for the private oppoiste parties.
Order on C.M. Application No. 1 of 2022 (Application for condonation of delay).
Having heard the learned counsel for the parties and considering the averments made in the affidavit filed in support of the application seeking condonation of delay as also noticing that no objection has been filed to the said application, we find that the reasons indicated in the affidavit are sufficient to condone the delay.
Accordingly, the delay in filing the review application is hereby condoned.
Order on review application.
The present review application under Chapter V Rule 12 of the Allahabad High Court Rules, 1952 has been filed seeking review of the judgment and order dated 18.12.2019 passed on the Review Application No. 117997 of 2017, which was filed in respect judgment and order dated 02.09.2017 passed in Special Appeal Defective No. 553 of 2010 (State of U.P. v. Mohammad Saleem And Others) and other connected matters.
Before coming to the issue involved in the present review application, this Court finds it appropriate to refer to the facts in brief. A bunch of writ petitions {leading Writ Petition No. 88 (S/S) of 2007, Anirudh Prakash Pandey and others v. State of U.P. and others} was decided by the learned Single Judge of this Court vide judgment and order dated 24.07.2009 against which the Special Appeal Defective No. 553 of 2010 and other appeals were filed by the State which were decided vide order dated 02.03.2017 and thereafter, the Review Application No. 117997 of 2017 was filed by the private opposite parties, which was decided vide order dated 18.12.2019. The State against the order dated 18.12.2019 filed a Special Leave to Appeal No(s). 10327 of 2022, which was dismissed on 25.07.2022 by the following order:-
"The special leave petitions are dismissed.
Pending application(s), if any, stands disposed of."
After the order of Hon'ble Apex Court dated 25.07.2022, the present review application has been filed, which in our opinion is maintainable in view of taking the judgment of the Hon'ble Apex Court passed in Khoday Distilleries Ltd. (Khoday India Ltd.) and others v. Sri Mahadeshwara Sahakara Sakhar Karkhana Ltd. reported in [2019 (200) AIC 148 (S.C.)].
On 02.12.1994, an advertisement was published inviting the applications for recruitment on vacant Class IV posts of Rasoiya (cook), Kahar (waterman), Chaprasi (peon) and Chaukidar (watchman) in the pay-scale of Rs. 750-940. The selection undisputedly was held as per the procedure prescribed at the relevant time. A select list dated 22.07.1995 of 365 candidates was published. The candidates placed at serial Nos. 1 to 103 were given regular employment in the pay-scale of Rs. 750-940 whereas, the candidates placed at serial Nos. 104 to 293 were appointed on a fixed pay-scale of Rs. 750/- and these appointments were made between 22.07.1995 and 26.12.1995.
It further transpires from the records that the posts on which the appointments were made on consolidated pay were sanctioned vide Government Order dated 22.03.1995 upto 29.02.1996. All the appointees, who were appointed pursuant to the selection process carried out pursuant to the advertisement dated 02.12.1994 were continuing at the time of filing of bunch of writ petitions decided by the common order dated 24.07.2009.
A claim petition No. 1167 of 1996 was filed by one employee namely Kundan Singh Yadav, who was appointed from the same select list on consolidated pay of Rs. 750/-, before the U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal") which was allowed on 27.09.2002 directing the State authorities to grant him regular pay-scale of Rs. 750-940 w.e.f. 10.12.1996.
The aforesaid order of the Tribunal dated 27.09.2002 was challenged by means of Writ Petition No. 15314 (S/B) of 2004 (State of U.P. v. Kundan Singh Yadav), which was disposed of on 15.04.2004 with a direction to the State to file a review petition and in compliance thereof, the review petition was filed which was dismissed and against the said order, the State filed Writ Petition No. 165 (SB) of 2005 (State of U.P. v. Kundan Singh Yadav), which was disposed of on 27.01.2005 with directions to the Tribunal to decide all the issues within three months and in compliance thereof, the review petition was heard and dismissed by the Tribunal vide order dated 26.04.2005. Challenging the order dated 26.04.2005, the State again filed a Writ Petition No. 1394 (SB) of 2005 (State of U.P. v. Kundan Singh Yadav).
Another Writ Petition No. 6798 (SS) of 2006 (Mohammad Saleem And Others v. State of U.P.) was filed by the selectees of the same selection challenging the advertisement dated 25.01.2006 which was issued for making appointment against the vacancies which were occupied by those who were appointed on consolidated pay in pursuance of the selection conducted on the basis of advertisement dated 02.12.1994. The learned Single Judge vide order dated 22.08.2006, after observing that "since the petitioners were selected in pursuance of advertisement, in which the pay scales were notified, though due to non-availability of vacancies, they were given appointment on consolidated pay, but against the sanctioned posts, it is not open to the respondents to proceed for fresh selection against those vacancies", quashed the advertisement dated 25.01.2006.
After considering the aforesaid facts as also the facts pertaining to the selectees of the same selection including their regularization, learned Single Judge allowed the bunch of petitions {leading Writ Petition No. 88 (S/S) of 2007} vide order dated 24.07.2009 with following observations and directions:-
"In the facts and circumstances brought on the record, the Court must presume that since 1996 there must have been sanction of posts and several posts may have been fallen vacant in the department and thus all the writ petitions are allowed with directions that the petitioners, who are appointed on consolidated pay on the posts sanctioned by the State Government by orders dated 19.12.1995 and 29.2.1996 shall be allowed to continue in service. They shall be placed in the regular pay scale with effect from the date of their appointment on consolidated pay with all benefits of increments and allowances and shall be adjusted as and when the posts are sanctioned in the department. If the posts have not been sanctioned so far, the respondents are directed to sanction of posts and to adjust the petitioners on such posts as and when they are sanctioned. The services shall not be dispensed with except on the ground of misconduct. There shall be no orders as to costs."
Thereafter, Special Appeal Defective No. 553 of 2010 filed by the State of U.P. and other connected appeals challenging the judgment and order dated 24.07.2009 passed by the learned Single Judge were finally decided by a co-ordinate Bench of this Court vide order dated 02.03.2017. The order dated 02.03.2017 reads as under:-
"Heard learned Standing counsel for the State as well as Shri Arvind Kumar Sinha, learned counsel for the respondents.
There are two Special Appeal Nos. 553 of 2010 and 126 of 2010, since both special appeals heard together and decided accordingly.
The special appeals have been filed against the order dated 24.07.2009 in Writ Petition Nos. 88(SS) of 2007, 883(SS) of 2008, 884(SS) of 2008, 316(SS) of 2007, 6798(SS) of 2006, 1924(SS) of 2007, 346(SS) of 2007, 52(SS) of 2007, 5173(SS) of 2007, 5172(SS) of 2007, 1132(SS) of 2007, 89(SS) of 2007, 276(SS) of 2007, 1287(SS) of 2007, 1366(SS) of 2007 and 472(SS) of 2007. By this order, the operative portion of the order is quoted herein below;-
"The Court is not much concerned here with the regularization of each persons under the Rules of 1979 or the U. P. Regularization of Daily Wages Appointment on Group 'D' Post Rules, 2001 as all the petitioners of Writ Petition No. 50312 of 2008 are included in the select list of 1995-96 and were appointed on temporary basis on the posts sanctioned on consolidated pay upto 29.2.1996.
The department has accepted the orders of grant of regular pay to all 154 persons appointed on fixed pay on 19.12.1995 and 29.2.1996 and have carried them out, out of these two lists. There is no mention in these lists that the regular pay has been granted to them awarding sanction of regular posts.
In the facts and circumstances brought on the record, the Court must presume that since 1996 there must have been sanction of posts and several posts may have been fallen vacant in the department and thus all the writ petitions are allowed with directions that the petitioners, who are appointed on consolidated pay on the posts sanctioned by the State Government by orders dated 19.12.1995 and 29.2.1996 shall be allowed to continue in service. They shall be placed in the regular pay scale with effect from the date of their appointment on consolidated pay with all benefits of increments and allowances and shall be adjusted as and when the posts are sanctioned in the department. If the posts have not been sanctioned so far, the respondents are directed to sanction of posts and to adjust the petitioners on such posts as and when they are sanctioned. The services shall not be dispensed with except on the ground of misconduct. There shall be no orders as to costs."
Learned Standing counsel is let much emphasis on that portion of the order of Hon'ble Single Judge by which the Court has directed the opposite party to create the post and adjust the petitioners on a regular basis. Secondly, the appellants have also emphasized that the date of regularization of all 265 incumbents could not have been from the date of their appointment unconsolidated posts.
Some admitted position should be brought on record, it is admitted that an advertisement was made initially on 02.12.1994 against which 102 persons were appointed on regular basis. Thereafter, the opposite parties kept on appointee 265 persons on consolidated pay from time to time. As second advertisement for regular appointment was issued on 25.01.2006, the number of vacancy shown in this advertisement was 132. The writ petition was filed by the persons who working on consolidated pay to the effect that they may be considered a first while making the selection, the Hon'ble Single Judge directed them to file a representation which was to be decided by the opposite parties. The writ petition was rejected and another writ petition issued. In this petition an interim order was granted to appoint the petitioner and make payment of salary. When the order was not complied with, contempt petition was filed, subsequently, the opposite parties regularized the service to all 265 persons and made a statement to this effect before the contempt Court. Simultaneously, the present special appeals have been filed.
We are of the firm view that the Hon'ble Single Judge could not have given the direction for creation of posts and thereby directing for appointment of regular basis of the petitioners. Though this legal preposition is clear but we hasten to act that when this judgment was passed the petitioners' service has already been regularized by the opposite parties, hence, they could not be any impact upon rights of the opposite parties by the order dated 24.07.2009 which was subsequent to the regularization which had already been made. In our opinion, setting aside of this part of the order will only be a academic exercises, we, therefore, leave it as it is with our observations.
Another important argument raised by learned counsel for the appellants is with regard to the date of regularization of the appellants, we observed that the service of 132 petitioners to be taken as to be regularized from the date of regularization. So far the regularization is concerned, we have no hesitation in holding that the date of regularization of 265 appellants shall relate to the date of order by which the service has been regularized. From the respective dates of their regularization orders.
With these observations, the special appeals are disposed of.
Interim order granted earlier by this Court is vacated.
It is needless to say that the appellants shall get arrear of salary from the date of their regularization."
Thereafter, the review application No. 117997 of 2017 was filed, which was disposed of by the following order on 18.12.2019:-
"Heard Dr. L. P. Misra, learned counsel for the review-applicants as well as learned Standing counsel, who has obtained written instructions from the Director, Samaj Kalyan, Uttar Pradesh vide his letter dated December 17, 2019, which is taken on record.
Specific query was put to the Standing counsel to seek instructions whether other similarly situated persons have been given the benefit of being paid regular pay from the date of their initial appointment or not.
We find in para 7 of the instructions that State Government has given benefit of the payment of salary to the similarly situated persons and only the review applicants/private respondents in the special appeal are not being given this benefit. They are being discriminated. Learned Standing counsel has submitted that there is no discrimination, only because of pendency of the special appeal, the benefit was not given to the review-applicants.
Dr. L. P. Misra has forcefully argued that in view of the statement of the Standing counsel and the written instructions, the benefit should be given to the review applicants/private respondents in the special appeal.
This argument carries weight. It is, therefore, provided that the benefits of judgment and order dated 27.09.2002 passed by U.P. State Public Services Tribunal, Lucknow in Claim Petition No.1167/1996 (KUndan Singh Yadav Versus State of U.P. and others), against which Writ Petition No.1394 (S/S) of 2005 filed by State of U.P. which was dismissed by a Division Bench of this Hon'ble Court vide judgment and order dated 17.11.2014, and various writ petitions such as writ petition No.s 4036 (S/S) of 2015, 50312 (S/S) of 2008 and writ petition No.52803 (S/S) of 1999 etc. be made available to these review petitioners/private respondents in the Special Appeal. Accordingly, they also be given regular scale of pay from the date of their initial appointment with consequential service benefits.
The review-application is, thus, partly allowed."
As already observed above, Special Leave to Appeal filed by the State against the order dated 18.12.2019 was dismissed in limine by the Hon'ble Apex Court vide order dated 25.07.2022, whereafter the present review-application has been filed.
Sri Abhinav Narayan Trivedi, learned Chief Standing Counsel while pressing the review application contended that there was no post available with the department when the selection was made though, in the advertisement dated 02.12.1994, it was indicated that the selection would be made against the vacant posts. The posts were sanctioned subsequently on consolidated pay till February, 1996. However, in compliance of the judgment of learned Single Judge dated 24.07.2009, the petitioners were adjusted against the posts sanctioned vide orders dated 15.12.2006 and 05.02.2007. As such, the private opposite parties can not be treated to have been appointed pursuant to the selection held in the year 1994 for the purposes of service benefits including the old pension scheme. In these circumstances, Sri Trivedi's submission is that the expression "consequential service benefits" in the judgment dated 18.12.2019, which is under review herein, is required to be clarified in the instant review-application.
Opposing the review application on merits, Dr. L.P. Mishra, representing the opposite parties has argued that the contention of the learned Chief Standing counsel is liable to be rejected in the peculiar facts and circumstances of the case.
Elaborating his submissions, he stated that selection process was initiated against the existing vacant Class-IV posts and some persons were appointed on regular basis from the same select list and some were appointed on consolidated pay. One of the persons appointed namely Kundan Singh Yadav approached the Tribunal by a filing Claim Petition No. 1167 of 1996, which was allowed vide order dated 27.09.2002 and the order of the Tribunal directing the State to provide regular pay-scale has been complied with.
He further stated that another Writ Petition No. 6798 (S/S) of 2006 filed challenging the advertisement dated 25.01.2006, which was issued for recruitment on Class-IV posts was interfered with by this Court after taking note of the fact that private opposite parties (petitioners in the writ petition) were appointed after adopting due procedure against the sanctioned posts.
It is also submitted by Dr. Mishra that some persons from the same select list were also given regular appointment prior to the order of learned Single Judge passed in bunch of petitions, dated 24.07.2009 and as the private opposite parties herein were discriminated by the State authorities, as such, they approached this Court by means of Writ Petition No. 88 (S/S) of 2007 and other connected writ petitions, which were decided by the common judgement and order dated 24.07.2009, whereby the learned Single Judge, after considering the fact that the private opposite parties were appointed after adopting due procedure allowed the bunch of writ petitions and directed the State authorities to allow the private opposite parties to continue in service on the posts sanctioned by the State Government vide order dated 19.12.1995 and place them in regular pay scale w.e.f. the date of their appointment on consolidated pay with all benefits of increments and allowances. His submission further is that the direction regarding adjustment on availability of posts in the department made in the order dated 24.07.2009, is required to be construed in the light of the observation made in the order itself which is to the effect that "if posts have not been sanctioned so far".
On behalf of the private opposite parties further submission is that the judgment and order dated 02.03.2017 passed in Special Appeal Defective No. 553 of 2010 and other connected Special Appeals is liable to be taken note of in the light of the order dated 18.12.2019 passed on the Review Application No. 117997 of 2017, which says that "the benefits of judgment and order dated 27.09.2002 passed by U.P. State Public Services Tribunal, Lucknow in Claim Petition No.1167/1996 (Kundan Singh Yadav Versus State of U.P. and others), against which Writ Petition No.1394 (S/S) of 2005 filed by State of U.P. was dismissed by a Division Bench of this Hon'ble Court vide judgment and order dated 17.11.2014, and various writ petitions such as writ petition Nos. 4036 (S/S) of 2015, 50312 (S/S) of 2008 and writ petition No.52803 (S/S) of 1999 etc., be made available to these review petitioners/private respondents. Accordingly, they also be given regular scale of pay from the date of their initial appointment with consequential service benefits".
Dr. Mishra further stated that private opposite parties were appointed after adopting due process of selection pursuant to the advertisement dated 02.12.1994 and from the select list of 365 candidates, some were appointed on regular pay scale of Rs. 750-940 whereas, some were appointed on consolidated pay of Rs. 750/- per month. He aruged that considering their bargaining capacity, the candidates so appointed on consolidated pay agreed to the dictates of the State authorities to join on the consolidated pay and thereafter one Kundan Singh Yadav approached the Tribunal by preferring a claim petition in which a direction was issued by the Tribunal vide order dated 27.09.2002 and in compliance whereof, Kundan Singh Yadav was appointed on the regular pay-scale. In some other cases, the candidates of the select list published on 22.07.1995, were regularized and they are entitled to the benefit of old pension scheme.
He further stated that the adjustment of the private opposite parties on the sanctioned posts vide orders dated 15.12.2006 and 05.02.2007 can not wash out their earlier services rendered. He also stated that the State authorities-appellants have already provided the pecuniary benefits to the private opposite parties including the benefit of A.C.P., which can only be provided to a regularly appointed employee and in this view of the matter, they have already counted the past services rendered by the private opposite parties.
Thus, the contention is that the private opposite parties herein can not be discriminated in any manner including in respect of benefit of old pension scheme and the expression "consequential service benefits" indicated in the order, under review has to be read accordingly and not otherwise, as argued by learned Chief Standing counsel appearing for the State.
In addition to above submission, it has been submitted that it is not the case of the State that the private opposite parties are backdoor employees and in this view of the matter also, they are entitled to all service benefits including their appointment on regular basis w.e.f. the date of their initial appointment.
In support of his submission, Dr. Mishra placed reliance on the judgments of the Hon'ble Apex Court passed in the case of Sheo Narain Nagar & Ors. vs. State of Uttar Pradesh & Ors. reported in (2018) 13 SCC 432 and Somesh Thapliyal And Another vs. Vice Chancellor, H.N.B. Garhwal University And Another reported in (2021) 10 SCC 116.
Considered the submissions advanced by the learned counsel for the parties and perused the record.
From the record and the argument advanced by the learned State counsel, it transpires that the present review application has been filed to clarify the expression "consequential service benefits", mentioned in the order, under review, dated 18.12.2019, as before the learned contempt Judge, the petitioners of the writ petitions i.e. private opposite parties herein are pressing to treat them to have been regularly appointed on the respective dates on which they were appointed on consolidated pay i.e. prior to 01.04.2005 which is the date on which New Pension Scheme came into force.
It is admitted to the parties that on 02.12.1994, an advertisement was published inviting the applications for recruitment on the posts of Class IV employees i.e. Rasoiya (cook), Kahar (waterman), Chaprasi (peon) and Chaukidar (watchman) in the pay-scale of Rs. 750-940. After subjecting the candidates to selection, a select list of 365 candidates was published on 22.07.1995. In the select list, the candidates mentioned at serial Nos. 1 to 103 were appointed in regular pay-scale of Rs. 750-940. Between the period 22.07.1995 to 26.12.1995, the candidates mentioned at serial Nos. 104 to 293 were appointed on consolidated pay of Rs. 750/- per month. In the case of Kundan Singh Yadav, he was provided regular pay-scale in compliance of the of the Tribunal dated 27.09.2002. As per the case of State, the posts were sanctioned vide order dated 19.12.2005. However the advertisement dated 25.01.2006 issued for recruitment on said sanctioned Class IV posts was interfered with by this Court after taking note of the fact that the private opposite parties were selected after adopting due procedure. Some candidates of the same select list were regularized prior to the order of learned Single Judge passed in a bunch of petitions on 24.07.2009 against which a bunch of special appeals (leading Special Appeal Defective No. 553 of 2010) were filed, which were decided vide order dated 02.03.2017 and this order was reviewed by a order under review dated 18.12.2019.
It is not the case of the State-review applicants that the private opposite parties were appointed without having been subjected to due procedure or dehors the rules. The State-review applicants have already provided the pecuniary benefits including that of A.C.P., which can be provided only to a regularly appointed employee after considering the past satisfactory regular services. The Hon'ble Apex Court in the case of Sheo Narain Nagar (supra) and Somesh Thapliyal (supra) in almost similar circumstances has provided the benefits including the pensionary benefits. In our opinion, State cannot be permitted to count the past services of the private-respondents w.e.f. their initial appointment for one service benefit (such as the benefit of A.C.P.) and deny the said period of service rendered by them for grant of the other service benefit such as benefit of pension treating them to have been appointed prior to 01.04.2005 w.e.f. which the New Pension Scheme has been introduced.
The same period of service, thus, cannot be permitted to be treated as regular for some service benefit and non-regular for some other service benefit. If State is permitted to do so, it shall be extremely anamolous. As already noted above, State has treated the entire period of service w.e.f. the initial appointment of the private respondents to be regular for grant of A.C.P. hence the same period of service has to be treated to be regular for other service benefits available to a regularly appointed employee, including the benefit of pension (in this case Old Pension).
For the reasons given above, we are of the view that the adjustment of the private opposite parties vide orders dated 15.12.2006 and 05.02.2007 would not come in the way of the private-respondents for the purposes of treating them to have been appointed on regular basis on the date on which they were initially appointed for the purposes of "consequential service benefits", the expression occurring in the order under review.
Thus, no clarification regarding the expression "consequential service benefits" is required under this review application. This review application is accordingly rejected.
Order Date :- 05.01.2023 Arun/-