Allahabad High Court
Executive Engineer, Electricity ... vs Amar Nath And 3 Others on 7 August, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:127023-DB Judgement reserved on 04.07.2024 Judgement delivered on 07.08.2024 1. Case :- SPECIAL APPEAL No. - 593 of 2023 Appellant :- Executive Engineer, Electricity Transmission Division And Another Respondent :- Amar Nath And 3 Others Counsel for Appellant :- Rajesh Kumar Srivastava Counsel for Respondent :- B.S. Pandey,Sundeep Agarwal Connected with 2. Case :- SPECIAL APPEAL DEFECTIVE No. - 484 of 2023 Appellant :- Executive Engineer, Electricity Transmission Division Respondent :- Harish Chand And 5 Others Counsel for Appellant :- Rajesh Kumar Srivastava Counsel for Respondent :- Siddharth Khare 3. Case :- SPECIAL APPEAL DEFECTIVE No. - 464 of 2023 Appellant :- Executive Engineer, Electricity Transmission Division Respondent :- Satish Kumar And 11 Others Counsel for Appellant :- Rajesh Kumar Srivastava Counsel for Respondent :- B.S. Pandey Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
Re: Civil Misc. Delay Condonation Applications filed in Special Appeal Defective Nos.464 of 2023 and 484 of 2023
1. Learned counsel for the opposite party-petitioners states that he is not inclined to file any objection to the delay condonation application and he has no objection in case delay condonation applications are allowed.
2. For the reasons stated in affidavit filed in support of delay condonation applications, as the same constitutes sufficient cause for condoning delay in filing Special Appeals, the delay condonation applications are allowed. Both the appeals are treated to have been filed well within time.
RE: MEMO OF SPECIAL APPEALS
1. Heard Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Rajesh Kumar Srivastava, learned counsel for the appellant and Sri Ashok Khare, learned Senior Advocate assisted by Sri B.S. Pandey, Sri Sundeep Agarwal and Sri Siddharth Khare, learned counsels for the respondents - petitioners.
2. These Special Appeals under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 have been preferred against the common judgment and order dated 28.3.2023 passed by learned Single Judge of this Court in Writ A No.6069 of 2019 (Amar Nath and 3 others vs. U.P. Power Corporation Ltd., Lucknow and 4 others) connected with Writ A Nos.6084 of 2019 and 9211 of 2019. Hence they are being heard together and decided by a common order under the Rules of this Court.
FACTURAL BACKGROUND
3. The facts, which are emerging from the record in a nutshell, are that the petitioners were engaged as labourers in U.P. Power Corporation Ltd.1 in 1988-89. They were working as muster roll Class-IV employees continuously but the Corporation retrenched 93 muster roll employees including all the petitioners. The State Electricity Service Commission2 had published an advertisement no.3 of 1998 to fill up backlog quota of SC/ST and OBC category against Class IV employee. The departmental letters were issued on 19.01.2001 and 21.01.2001 calling the petitioners to appear in the interview on 12.12.2002. Pursuant to the aforesaid letters, the petitioners had appeared in the interview on 12.12.2002. On the same date i.e. 12.12.2002 the Commission had released a list of 93 successful candidates, wherein the names of petitioners were not shown.
4. Similarly situated incumbent namely Om Prakash had filed Civil Misc. Writ Petition No.13402 of 2003 (Om Prakash vs. Uttar Pradesh Power Corporation Limited) assailing the validity of the order/selection list dated 12.12.2002 and the same was allowed by learned Single Judge vide an order dated 08.01.2004. For ready referency relevant portion of the judgment is extracted as below:-
"8. I have considered the respective submissions. Before proceeding to discuss them. I find that Commission has not taken into account the fact that this was a recruitment by absorption of retrenched muster-roll employees falling in reserved category. The consideration made by the Commission in respect of age are wholly arbitrary and cannot be sustained. There is no age limit fixed for employment as a muster roll employee and that after rendering long period of service a muster roll employee cannot be denied absorption on the ground that they were no 18 years of age at the time when they were taken in employment on muster roll. Such a consideration is wholly arbitrary and unreasonable. The first ground of rejection of some of the petitioners is, therefore, had to be invalid.
9. The second ground of rejection namely that some of the petitioner have attained the age of 37 years is also not sustainable, in Government of Tamil Nadu and Anr. v. G. Mohammed Ammenuddeen and Ors. 1999 (3) SSC 2439 Supreme Court was considering the absorption of retrenchment of Census Organisation, where the respondents allowed only three years relaxation in age. A direction was issued by the Supreme Court to the State Government to modify the scheme with regard to exclusion of three years from the age. In case where the retrenched employees are to be absorbed, his condition for relaxation of only three years was not found to be fair and reasonable. Following the dictum, I hold that the rejection on the ground of maximum age of 37 years, is also arbitrary and unreasonable. This was a special recruitment with relaxation of age for Scheduled Castes, Scheduled Tribes and Backward Class candidates. These petitioners have rendered long services is muster roll employees. They did not fall in the same class as direct recruits and that denial of age relaxation for the period they were in employment was arbitrary and violative of Articles 14 and 16 of the Constitution of India.
10. Coming to the third ground of rejection namely that some of the petitioners did not have the knowledge of work in the department is also found to be arbitrary and unreasonable. No expert knowledge or framing is required or is provided under Rules of 1995 for direct recruitment as Class IV Employees in the Corporation. The respondents have not given any details in the counter-affidavit with regard to the questions put to the petitioners with regard to the knowledge of work in the department. The petitioners, were working as muster roll employees as Coolies, Khalasi, Helper, Cleaner, Beldar, Jamadar and Mate. No special knowledge, expertise or training is required for such work. In the facts and circumstances of the case. I find that the rejection of some of the petitioners, on this ground is also not sustainable.
11. So far as the fourth ground of rejection namely the knowledge of reading and writing in Dev Nagari script is concerned, I find that by order, dated 13.11.1997 (Annexure-9 to the writ petition) the Chairman of the erstwhile Board had given exemption to the Safai Karmcharies who were working on muster roll. He exercised the power under Rule 45(ii) of the Rules, 1995 for relaxation of condition. The work of the Corporation has been modernized and that even Class IV Employees is required to have knowledge of reading and writing in Dev Nagari script. This Court does not approve that a totally illiterate person be recruited as Class IV Employee in U.P. Power Corporation. This condition, therefore, cannot be held to be invalid. The Court however finds that the petitioners have worked as muster roll employees for long periods and deserve some special consideration. The Union and the State Government have taken up adult literacy as National Programme to eradicate illiteracy. It will be must to deprive these petitioners an opportunity to be literate, to seek the benefit of absorption. These petitioners, therefore, are entitled to and shall be given opportunity to avail benefit of adult literacy programme. For this purpose, I find that they must be given at least three months time to attain literacy in Dev Nagari script and thereafter receive due consideration for absorption.
12 . In reaching the aforesaid conclusion I am also supported by the decision in Inderpal Yadav and Ors. v. Union of India and Ors. 1985 (2) SLR 248 and a 'Single Judge judgment of this Court in Ved Prakash Sharma v. State of U.P. and Ors., 1995 (II) AL J 1553, to which it was held that in case of re-employment or recruitment of those employees who have been working in the department as temporary or muster-roll employees, the department should not make any discrimination inter se between these employees and also employees to be taken from open market.
13. So far as the vacancies is concerned, I find that for 333 reserved vacancies only 41 retrenched employees were found fit for absorption. The Corporation, therefore, is sufficient number of vacancies to consider petitioner for absorption.
14. For the aforesaid reasons, the writ petition is allowed. The impugned order dated 12.12.2002, passed by the Electricity Service Commission, Lucknow rejecting petitioners candidature is set-aside. The Electricity Service Commission is directed to reconsider the absorption of all the petitioners in permanent employment in reserved categories in U.P. Power Corporation, afresh it accordance with directions given in the judgment. The petitioners, who have been declared unfit on the ground of illiteracy, shall be given three months notice to receive benefits of adult literacy programme and to attain the pro-efficiency in reading and writing Dev Nagari script. The required consideration for all the employees shall be made by the Electricity Service Commission within next four motnhs."
5. The Corporation had preferred Special Appeal No.175 of 2004 (U.P. Power Corporation Limited through its Chairman and Managing Director, U.P. Lucknow and another vs. Om Prakash and others) against the aforesaid judgement and order dated 8.1.2004 and a Division Bench of this Court had proceeded to dispose of the appeal on 20.11.2004 with following observations:-
"We, however, dispose of this Special Appeal with a slight modification of the judgement and order of the learned Single Judge to the extent that at the time of reconsideration of absorption of the employees, it should be seen whether they were overage in terms of the legal statutory provisions applicable in the Corporation at the time of their initial recruitment and we further declare that the judgement and order of the learned Judge shall not be treated as a precedent in future for any other employee. The time given by the learned Single Judge is also extended for a further period of three months. The appellants shall undertake the exercise to enforce and the judgement and other of the learned Single Judge within the said time as modificed by us."
6. Thereafter the petitioners-respondents had filed Writ A No.41910 of 2005 (Harish Chand Ram & ors vs. U.P. Power Corporation Ltd and others), which was disposed of vide an order dated 16.05.2006 in terms of the direction issued by this Court in Writ Petition No.13402 of 2003 as modified by the Division Bench in Special Appeal No.175 of 2004, which have been quoted above. Once the Corporation did not pass any order of absorption/appointment then the petitioners filed Contempt Application (Civil) No.4380 of 2006 in which notices were issued to the opposite parties on 18.10.2006.
7. Meanwhile, the Corporation had challenged the judgement and order dated 20.11.2004 before Apex Court by preferring Civil Appeal No.3885 of 2006 arising out of SLP (C) No.7236 of 2005 (Uttar Pradesh Power Corporation Ltd. & ors vs. Om Prakash & ors). Finally, the Apex Court vide order dated 01.09.2006 had allowed the appeal and remanded the matter back to the Division Bench to decide all the issues raised by the appellant on merit. For ready reference the order dated 01.09.2006 is reproduced herein below:-
"The challenge in this appeal is to the order dated 20.11.2004 passed by the Division Bench of the High Court. It is contended by the appellant that in the appeal memo as well as at the time of arguments the counsel for the appellant have raised a large number of issues pointing out the illegality in the order of the learned Single Judge. However, the Division Bench without going into all those contentions disposed of the appeal by directing that the time given by the learned Single Judge is extended for a further period of three months and the appellant was directed to undertake the exercise to enforce the judgement of the learned Single Judge within the time extended. This would show that the Division Bench has not entered into the contentions raised by the appellant. In this view of the matter, the order of the Division Bench is set aside and Special Appeal No.175 of 2004 is restored to the file of the High Court and the matter is remitted back to the Division Bench to decide on all the issues raised by the appellant on merit. The parties are at liberty to mention before the High Court.
The appeal is allowed. No costs."
8. On remand, the Division Bench had considered the case of the Corporation in the light of the observations made by the Apex Court in the order dated 01.09.2006 and dismissed the Special Appeal on 11.9.2009 with following observations:-
"We have carefully considered the submissions advanced by learned counsel for the parties.
A perusal of the notification dated 15th March, 1999 issued by the Board shows that a policy decision had been taken by the Board on 28th November, 1996 to absorb all such muster-roll/daily wages employees who were working and who had been engaged by the Board prior to 4th May, 1990 and pursuant to this policy decision a list of 1133 such muster-roll/daily wage employees category wise was prepared but even after absorption of such employees, the quota for SC/ST and OBC was not satisfied inasmuch as 97 vacancies of OBC and 236 vacancies of SC/ST still remained to be filled up by employees belonging to these categories. It is for this reason that the subsequent notice dated 15th March, 1999 issued by the Board provided that the respective Chief Engineers should send forms of all such ex-muster roll/daily wage employees for filling up these vacancies for OBC and SC/ST. The petitioner-respondents who belong to the SC/ST Category have not been absorbed by the order dated 12th February, 2002 and only 41 retrenched employees have been absorbed.
Learned counsel for the appellants submitted that as the petitioners were not working on the date of issuance of the order dated 28th November, 1996, which was a necessary condition for absorption, they could not have been considered for absorption and according to him their cases were considered only because of the interim order of this Court.
This contention cannot be permitted to be raised by the appellants as such a ground was not even taken by the Commission in the order dated 12th December, 2002. This apart, the contention advanced by learned counsel for the appellants fails to take into consideration the subsequent notification dated 15th March, 1999 wherein the requirement of actually being engaged on the date of issue of the notification is not mentioned. What we find is that as the quota for OBC and SC/ST candidates was not filled up even after absorption of 1133 muster-roll/daily wages employees, the Board itself did not mention this condition in its order dated 15th March, 1999 and on the contrary directed that all the retrenched employees belonging to OBC and SC/ST categories could be considered for absorption. It appears that it is for this reason that such a ground was not taken by the Commission in the order dated 12th February, 2002.
As noticed hereinabove, learned counsel for the appellants has not raised any submission with regard to ground No. 1 regarding non-absorption of such muster-roll/daily wage employees who were below eighteen years of age. Thus, the appellants do not dispute the absorption of petitioner Nos. 1 to 20 (except petitioner Nos. 13 and 15).
In so far as the knowledge of work in the department is concerned, learned counsel for the parties have stated that the eligibility requirement for direct recruits, as translated in English, is as follows:-
"The candidate should be physically and mentally fit and should be able to read and write in Devanagari script and should be able to ride a bicycle."
We find that no expert knowledge or training is required under the relevant Rules and all that the Rule requires is that the candidates should be physically and mentally healthy and that they should be able to ride a bicycle and even learned counsel for the appellants has not been able to point out any other requirement.
In this view of the matter the learned Judge was justified in holding that non-absorption on this ground could not be sustained. There is, therefore, no error in the impugned judgment in so far as petitioner Nos. 13, 15 & 20 to 27 are concerned.
This brings us to the cases of petitioner No. 28 who was not absorbed on the ground that he had no knowledge of reading and writing in Devanagari Script. In this connection the learned Judge observed as follows:-
"So far as the fourth ground of rejection namely the knowledge of reading and writing in Dev Nagari script is concerned, I find that by order dated 13.11.1997 (annexure-9 to the writ petition) the Chairman of the erstwhile Board had given exemption to those safai karmcharies who were working on muster roll. He exercised the power under Rule 45(ii) of the Rules, 1995 for relaxation of condition. The work of the Corporation has been modernized and that even Class IV employees is required to have knowledge of reading and writing in Dev Nagari script. This Court does not approve that a totally illiterate person be recruited as Class IV employee in U.P. Power Corporation. This condition, therefore, cannot be said to be invalid. The Court, however, finds that the petitioners have worked as muster roll employees for long periods and deserve some special consideration. The Union and the State Government have taken up adult literacy as national programme to eradicate illiteracy. It will be unjust to deprive these petitioners an opportunity to be literate, to seek the benefit of absorption. These petitioners, therefore, are entitled to and shall be given opportunity to avail benefit of adult literacy programme. For this purpose, I find that they must be given at least three months time to attain literacy in Dev Nagari script and thereafter receive due consideration for absorption."
Thus, the requirement of reading and writing in Dev Nagari Script has been adequately taken care of by the learned Judge. We see no good reason to interfere with the reasons given by the learned Judge.
In so far as the petitioner No. 29 is concerned, his case has not been considered on the ground that he was above 37 years of age on 1st January, 1999. The learned Judge, in view of the decision of the Supreme Court in Government of Tamil Nadu & Anr. Vs. G. Mohamed Ammenudeen & Ors., 1999 (3) SCC 2439, found such rejection to be untenable and the observations are as follows:-
"Following the dictum, I hold that the rejection on the ground of maximum age of 37 years, is also arbitrary and unreasonable. This was a special recruitment with relaxation of age for Scheduled Castes/Scheduled Tribes and Backward Class candidates. These petitioners have rendered long services as muster roll employees. They did not fall in the same class as direct recruits and that denial of age relaxation for the period they were in employment was arbitrary and violative of Article 14 and 16 of the Constitution of India."
The maximum age requirement of 37 years is for direct recruits. The department has issued a circular for absorption of retrenched employees and the circular does not contain any age requirement. In such circumstances, the Commission was not justified in importing the principles of age requirement relating to direct recruitments while considering the case of the said petitioners for absorption.
Thus, for all the reasons stated above, there is no merit in this Special Appeal. It is, accordingly, dismissed."
9. The Corporation had challenged the judgement and order dated 11.09.2009 in Special Leave to Appeal (Civil) No.(S) 4977 of 2010 wherein the contempt proceeding pending before this Court in Om Prakash's case was stayed on 16.04.2010. Thereafter said Special Leave to Appeal was converted to Civil Appeal No.6655 of 2015 in which the petitioners had also filed I.A. No.5 of 2017 as intervener. After hearing learned counsel for the parties, the Apex Court had declined to interfere with the impugned judgement and order passed by this Court and dismissed the Civil Appeal vide an order dated 22.11.2017.
10. It also appears from the record that the petitioners preferred Contempt Application (Civil) No.4380 of 2006, which was later on disposed of on 03.04.2018. In the said proceeding, an undertaking was given by the Corporation that they will comply with the judgement and order passed by learned Single Judge dated 16.05.2006 passed in Writ A No.41910 of 2005 filed by Harish Chand Ram & ors. In response thereof, the appellant Corporation had considered the claim of the petitioners for regular appointment and issued appointment letter to the petitioners on 22.09.2018 and 28.09.2018. Accordingly, the petitioners submitted their joining and are working on their respective posts.
11. It is relevant to point out that one similarly situated Class-IV employee in the same department namely Shobha Ram Yadav had challenged the rejection order dated 12.12.2002 in Writ A No.10207 of 2003 (Shobha Ram Yadav vs. Sachiv, Vidyut Seva Ayog, Uttar Pradesh, Power Corporation Ltd. And others) and the same was allowed on 24.5.2010 with following observations/directions:-
"66. Since I have decided the questions formulated herein before independently which are not connected with each other, therefore, in given facts and circumstances of the case it would be appropriate to harmonize them so that the directions given in the judgment should be carried out by the respondents without any confusion and clarification. Accordingly the same are summarised as under:-
(i). The petitioner shall be treated to be regularised in service on Class IV post of respondents' establishment since 1977 and since then he will be treated to be in regular service of respondents only for the purpose of his length of service, seniority and other consequential benefits of service indicated hereinafter, since when his juniors mentioned in para 13 of the writ petition have been given straightway regular appointment without reference to any rules of recruitment and/or have been regularised in service by-passing the claim of regularization of the petitioner in service while he was continuing in the establishment in question as daily wage muster roll employee.
(ii). The petitioner shall be treated to be appointed on the post of Mali on Class IV post in the establishment in question in pursuance of letter of appointment of Executive Engineer dated 6.03.1991 w.e.f. 20.11.1992 in regular and substantive capacity and he is entitled for payment of salary along with admissible allowances on said post w.e.f. 20.11.1992 till date as revised from time to time. If any amount has already been paid to him during the period w.e.f. 20.11.1992 till date as daily wage muster roll employee in the establishment in question, the said amount shall be deducted therefrom while computing arrears of salary payable to the petitioner. Such payment of arrears of salary shall be made to the petitioner along with 9% simple annual interest thereon within a period of two months from the date of production of certified copy of the order passed by this Court before the respondents no.3 and 4 of the writ petition.
(iii). If the petitioner has not attained the age of superannuation by now, he shall be paid his current salary on the post of Mali/Class IV post along with admissible allowances regularly month to month.
(iv). It is made clear that since 1972 the petitioner was permitted to continue as daily wage muster roll employee in the establishment till March, 1983 and thereafter he was given appointment as seasonal waterman for a period of six months each in four consecutive years w.e.f. 1.4.1988 to 30.9.1991 and thereafter he was given regular appointment vide letter of Executive Engineer dated 6.3.1991 on the post of Mali and he joined the said post in pursuant thereto on 20.11.1992 and is continuously treated to be working on the said post till date, therefore, during this period when he was out of employment should be excluded from the length of his service for the purpose of determination of his seniority and other consequential benefits of service including post retiral dues. Thus, the period running from April, 1983 upto March, 1988 shall be excluded from the length of service of the petitioner and thereafter the other breaks in service while working as seasonal waterman w.e.f. 1.4.1988 to 30.09.1991 shall also be excluded from the length of his service for the purpose of seniority and other consequential benefits of service including the post retiral dues. But after 20.11.1992 till date the petitioner shall be treated to be in continuous service for all practical purposes including the seniority, post retiral dues and other consequential benefits of service by adding the earlier period right from 1977 after excluding the aforesaid breaks in service.
(v). The petitioner shall not be paid any arrears of salary between the period 1977 till 20.11.1992, any amount paid to him during this period as muster-roll employee and and seasonal waterman shall be treated to be sufficient payment for the said period. However, for other purposes the aforesaid period as indicated herein before shall also be treated to be regular service rendered by the petitioner from 1977 till date, for other service benefits as indicated herein before.
(vi). A sum of Rs.50,000/- cost shall be paid to the petitioner by the respondents within a period of two months from the date of production of certified copy of the order passed by this Court before respondents no.3 and 4.
67. With the aforesaid observations and directions, writ petition succeeds and is allowed to the extent indicated herein above"
12. The Corporation had filed Special Appeal No.1359 of 2010 (Vidyut Seva Ayog, U.P. Power Corporation and ors vs. Sobha Ram Yadav) challenging the aforesaid judgement and order dated 24.05.2010. The Division Bench had proceeded to allow the appeal on 27.8.2010 and set aside the judgment dated 24.5.2010 as well as the order dated 12.12.2002, insofar as the petitioner is concerned, declaring him to be unfit for regular appointment on the ground of being overage. Relevant portion of the judgment is reproduced herein below:-
"28. In absence of any such material to conclude that the petitioner was not qualified or not possessed of the said eligibility, the stand of the appellants to that extent, cannot be accepted by us at this stage. However, we find that in the event, the petitioner is entitled for being regularized otherwise then he has to be extended the benefit simultaneously along with such other employees who were given the benefit of regularization in terms of the circular dated 15.3.1999.
29. Accordingly, in view of the discussions aforesaid and the conclusions drawn hereinabove, the judgment of the learned Single Judge cannot be sustained in its entirety. We, accordingly, set aside the judgment dated 24.5.2010 as also the order passed by the appellants dated 12.12.2002, insofar as the petitioner is concerned, declaring him to be unfit for regular appointment on the ground of being overage.
30. The appellants, ignoring the age of the petitioner, shall proceed to pass a fresh order with regard to his regular appointment which should not be a mere formality and should be with an approach keeping in view the long years of service rendered by the petitioner and the fact that the post of gardener is also a Class-IV post which does not require any exceptional qualifications and work knowledge. The petitioner has spent his life time with the appellants and it is expected that he shall be extended the relief of regular appointment without unnecessary impediments.
31. The appeal is accordingly allowed subject to the directions contained hereinabove."
13. The Corporation had preferred Special Leave to Appeal (Civil) No.35325 of 2010 challenging the judgement and order dated 27.8.2010 but the same was withdrawn on 24.01.2011. The Corporation had complied with the judgement and order dated 27.08.2010 and extended the benefit to Shobha Ram Yadav. Meanwhile, Sobha Ram Yadav retired from service on 31.03.2011. Thereafter, the Corporation had regularized him with effect from 12.12.2002 vide order dated 22.02.2014 and paid him the arrears of salary since 12.12.2002 to 31.03.2011 vide order dated 01.03.2014.
14. It is claimed that the petitioners are entitled for service benefits treating their regular selection with effect from 12.12.2002 in the light of judgement and order dated 27.08.2010 passed in Special Appeal No.1359 of 2010, which was affirmed by the Apex Court on 24.01.2011. Consequently, the petitioners submitted a representation on 01.01.2019 for according the benefit of the judgement passed in Sobha Ram Yadav's case (supra) treating their appointment in permanent employement with effect from 12.12.2002 and grant them consequential benefits at par with Shobha Ram Yadav, who was similarly situated Class-IV employee. The Under Secretary of the Corporation has referred the petitioners' representation to the respondent no.5 on 24.1.2019 for considering their grievance but the respondents did not entertain the petitioners' representation.
15. Consequently, the petitioners have preferred Writ A Nos. 6069 of 2019 (Amar Nath and 3 others vs. U.P. Power Corporation Ltd., Lucknow and 4 others) connected with Writ A No.6084 of 2019 (Harish Chand and 5 others vs. U.P. Power Corporation Ltd., Lucknow and 4 others) and Writ A No.9211 of 2019 (Satish Kumar and 11 others vs. U.P. Power Corporation Ltd., Lucknow through its M.D. and 6 others) seeking direction to the respondents to consider the petitioners' appointment with effect from 12.12.2002 at par with Sobha Ram Yadav and grant all consequential benefits including arrears of salary, earned leave, deduction of G.P.F., group insurance, gratuity, bonus etc. JUDGEMENT PASSED BY LEARNED SINGLE JUDGE
16. The case has been set before learned Single Judge that without any fault on behalf of the petitioners they were being unnecessary harassed and punished by the respondent Corporation and they were dragged into litigation twice upto the Apex Court. It was also pressed that the petitioners are also entitled for the similar relief, as has been extended by the Division Bench vide judgement and order dated 27.8.2010 passed in Special Appeal No.1359 of 2010 (Vidyut Seva Ayog and others vs. Sobha Ram Yadav). Said relief has been pressed before learned Single Judge that Sobha Ram Yadav (supra) a similarly situated Class-IV employee was held entitled to regular appointment and in pursuance thereof, the respondents passed an order on 22.02.2014 appointing Sobha Ram Yadav with effect from 12.12.2002. Reliance has also been placed upon the judgment of Apex Court in Apex Court in Prem Singh vs. State of U.P. and others (2019) 10 SCC 516 and the judgment and order dated 17.02.2023 passed in Writ A No.8968 of 2022 (Dr. Shyam Kumar vs. State of UP and others).
17. The objection was raised before learned Single Judge by the appellant-Corporation that the present matter is distingishable qua Sobha Ram Yadav (supra) on the ground that Sobha Ram was issued appointment letter in pursuance of the mandate of this Court in favour of Sobha Ram Yadav (supra) and the similar benefits cannot be extended to the petitioners since their appointment was after the date of judgment in Harish Chand (Supra) as their initial engagement was as muster roll employees and as per pension rules, muster roll employees are not entitled for any pensionary benefit.
18. After hearing learned counsel for the parties, learned Single Judge vide impugned common judgement and order dated 28.3.2023, relying upon the judgment in Prem Singh (supra) had proceeded to allow these writ petitions and extended the benefits in favour of the respondents-petitioners on the ground of parity and held that the petitioners are also held entitled to the same benefit as provided in Sobha Ram Yadav (supra) and the Corporation was directed to treat the petitioners' appointment with enforcement from 12.12.2002 and to ensure all consequential benefits. Relevant portion of the judgement is reproduced hereinafter:-
"The aforesaid facts itself show that the petitioners have spent their entire life working in the respondent-Corporation, but were regularized only after the order of this Court in the contempt case of Harish Chand (supra). It is sad to note that the respondents have continued to take work from the petitioners throughout their entire working life and only regularised their services when they were on the verge of superannuation.
The Supreme Court has repeatedly held that the State cannot be involved in exploitative labour practice. It cannot engage persons on temporary basis for long periods refusing to grant them benefits of regular employees. Suffice would be to refer to the judgment in case of Prem Singh (Supra). The Supreme Court in the said judgment, held:
"31. In the aforesaid facts and circumstances, it was unfair on the part of the State Government and its officials to take work from the employees on the work-charged basis. They ought to have resorted to an appointment on regular basis. The taking of work on the work-charged basis for long amounts to adopting the exploitative device. Later on, though their services have been regularised. However, the period spent by them in the work-charged establishment has not been counted towards the qualifying service. Thus, they have not only been deprived of their due emoluments during the period they served on less salary in work-charged establishment but have also been deprived of counting of the period for pensionary benefits as if no services had been rendered by them. The State has been benefitted by the services rendered by them in the heydays of their life on less salary in work-charged establishment.
.....
36. There are some of the employees who have not been regularised in spite of having rendered the services for 30-40 or more years whereas they have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularised under the Government instructions and even as per the decision of this Court in State of Karnataka v. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] . This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one-time measure, the services be regularised of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularised. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one. However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension."
This Court in the case of Dr. Shyam Kumar (Supra) has held that services rendered on daily wager/muster roll post before regularization has to be included towards counting of qualifying service for pensionary benefits. Relevant paragraph of the same reads;
"14. It is settled since long that daily wager employees are entitled to pensionary benefits counting their services from the date of their initial appointment and not from the date of their regularization. Suffice would be to refer to the judgment in cases of Hari Shankar Asopa vs. State of U.P. and another, 1989(1) UPLBEC 501; Yashwant Hari Katakkar vs. Union of India and others, 1996 (7) SCC 113; and Prem Singh (supra). In fact earlier they were covered by Rule 2 of U.P. Retirement Benefit Rules, 1961 and other Civil Services Regulations.
15. Now learned Standing Counsel submits that in view of Section 2 of the Act of 2021, since petitioners were not appointed on a temporary or permanent post initially, therefore, benefit of said services cannot be granted to them.
16. The said aspect of the matter is already discussed above at length. Section 2 of the Act of 2021 is already read down and it is held that the word 'post' used in Section 2 of the Act of 2021, be it temporary or permanent, has to be read down as 'services rendered by a government employee, be it of temporary or permanent nature'.
17. In view thereof, the petitioners are also covered by the aforesaid interpretation of Section 2 of the Act of 2021 as given inthe present judgment. Orders impugned in different writ petitions on the grounds stated above are covered by the earlier judgments as well as by findings given above in this judgment and, hence, petitioners are held to be entitled for counting of their services rendered as daily wagers for pensionary benefits. All impugned orders are set aside."
In light of the aforesaid, case for parity is made out, petitioners are also held entitled to the same benefit as provided in Sobha Ram (Supra). Respondents are directed to treat petitioners appointment with enforcement from 12.12.2002 and to ensure regular payment of pensionary and other retiral benefits to the petitioners by counting past services rendered by petitioners before thier respective appointment/absorption orders were passed.
With the aforesaid direction, writ petitions are allowed."
SUBMISSION ON BEHALF OF THE APPELLANTS
19. Sri M.C. Chaturvedi, learned Senior Advocate vehemently submitted and placed reliance on the appointment letter issued in favour of Amarnath dated 24.9.2018, wherein in Clause-5 of the said appointment letter categorical stipultion was made to the effect that no pension will be payable to him. The appointment letter dated 24.9.2018 is reproduced below:-
"कार्यालय ज्ञापन दिनांक 24.09.2018 एतद द्वारा निदेशक (कार्मिक प्रबन्धन एवं प्रशासन) उ०प्र०पा०ट्रा०का०लि० लखनऊ के कार्यालय ज्ञापन संख्या 1151-पारे०अनु०-16(ए)/पा०ट्रा०का०लि०-2018-10/2018 दिनांक 31.08.2018, मुख्य अभियन्ता पारेषण (उ०पू०) गोरखपुर के पत्रांक संख्या-2276-मु०अ०(पा०उ०पू०) दिनांक 13.09.2018 एवं अधीक्षण अभियन्ता विद्युत प्रेषण मण्डल गाजीपुर के कार्यालय ज्ञापन संख्या 1176-वि०प्र०म०(गा०/ई०-1 दिनांक 17.09.2018 के अनुपालन में श्री अमरनाथ पुत्र स्व० जंग बहादुर चौहान ग्रा० मझौली पोस्ट हलधरपुर तहसील सदर जिला मऊ कि नियुक्ति श्रमिक के पद पर(5200-20200 ग्रेड वेतन 1900 लेवल-1के साथ समय-समय पर देय अन्य भत्तों सहित) इस खण्ड के अन्तर्गत विद्युत प्रेषण उपखण्ड द्वितीय के अधीन 132 के०वी० उपकेंद्र सेमरी जमालपुर पर पद भार ग्रहण की तिथि से निम्न वर्णित शर्तों एवं प्रतिबन्धों के अधीन नियुक्ति की जाती है।
संबंधित उपखण्ड अधिकारी का यह उत्तरदायित्व होगा कि कार्यभार ग्रहण करने से पूर्व यह सुनिश्चित कर लें कि-
1. आवेदन पत्र पर लगे फोटो, हस्ताक्षर एवं अगुठा निशान, प्रवेश पत्र पर लगे फोटो, हस्ताक्षर एवं अगुठा निशान आदि आपस में मेल खाते हो।
2. यह नियुक्ति अस्थाई है तथा उसकी सेवाएं कभी भी बिना कारण बताये अथवा बिना पूर्व नोटिस दिये समाप्त की जा सकती है।
3. कार्यभार ग्रहण करते समय निम्न औपचारिकतायें पूर्ण करनी होगीः-
(क) अभ्यर्थी का फोटो युक्त पहचान प्रमाण पत्र।
(ख) दो राजपत्रित अधिकारियों द्वारा प्रदत्त चरित्र प्रमाण पत्र जो अभ्यर्थी के सगे-सम्बन्धी न हों।
(ग) किसी भी राजनैतिक दल से सम्बन्ध न रखने का घोषणा पत्र।
(घ) यदि अभ्यर्थी विवाहित है तो एक ही जीवित पत्नी को रखने हेतु घोषणा पत्र।
(ङ) जाति सम्बन्धी प्रमाण पत्र (यदि आरक्षित वर्ग में हो)।
(च) स्वास्थ्य सम्बन्धी प्रमाण पत्र जो मुख्य चिकित्सा अधिकारी द्वारा प्रदत्त हो।
(छ) चल-अचल सम्पत्ति का घोषणा पत्र।
4- अभ्यर्थी सी०पी०एफ० योजना का पात्र होगा।
5. अभ्यर्थी को उ०प्र०पा०का०लि० के नियमानुसार पेंशन देय नहीं होगा।
6. अभ्यर्थी का इस नियुक्ति पत्र के निर्गमन के एक माह के अन्दर अपनी योगदान आख्या आवश्यक प्रमाण पत्रों एवं अभिलेखों सहित सम्बन्धित उपखण्ड अधिकारी कार्यालय में प्रस्तुत करनी होगी। निर्धारित अवधि में योगदान आख्या प्रस्तुत न करने पर यह आदेश स्वतः निरस्त माना जायेगा।
एस०पी० गुप्ता अधिशासी अभियन्ता दिनांक"
20. Sri M.C. Chaturvedi further submitted that in response to the order dated 24.9.2018 the petitioner accepted the appointment and joined the Corporation without any objection and therefore, on the principle of acquiscence no benefit can be extended to the petitioners. He submitted that in similar facts and circumstances, one Rama Shanker filed Writ A No.9633 of 2021, wherein he had prayed for pensionary benefits and learned Single Judge vide judgement and order dated 10.08.2021 had dismissed the said writ petition on the ground that the petitioner was regularized vide order dated 03.03.2014. Neither he had challenged the regularization order nor there was any effort to this effect and therefore, he cannot get any benefits retrospectively. The aforesaid judgement had been affirmed by the Division Bench vide judgement and order dated 28.09.2021 passed in Special Appeal No.221 of 2021 (Rama Shankar vs. State of UP and 7 others) with following observations:-
"By this appeal, a challenge is made to the judgment dated 10th August, 2021 whereby the writ petition preferred by the petitioner-appellant to claim pensionary benefits was dismissed.
The facts available on record shows appellant's initial engagement as daily wager. His services was thereupon regularized in the year 2014 pursuant to the Government Order dated 8th September, 2010. The order for regularization of service of the petitioner-appellant was by the order dated 3rd March, 2014 after the judgment in the writ petition earlier preferred by the petitioner-appellant followed by the contempt.
The regularization of service was made on certain terms and conditions which includes acceptance of CPF scheme instead GPF to become entitled for the pensionary benefits. After acceptance of the order of regularization, petitioner-appellant preferred a writ petition bearing no. 10806 of 2018 for preparation of service book. The said writ petition was disposed of by the order dated 30th April, 2018 with a direction to the petitioner-appellant to make a representation to be decided by the respondents within one month.
The petitioner-appellant thereupon preferred writ petition, bearing Writ-A No. 5191 of 2019, alleging that petitioner-appellant was superannuated on 31st January, 2019 but he has not paid retiral dues as well as pension. The said writ petition was decided by the order dated 5th April, 2019 with a direction to the respondent to decide the claim made by the petitioner-appellant. The impugned order was passed pursuance to it denying the pension. It was taking note of the policy decision dated 8th September, 2010 and that pension scheme was introduced since 14th January, 2000. The petitioner-appellant joined the service after regularization on 11th March, 2014. He was thus not entitled for the pensionary benefit.
The learned Single Judge dismissed the writ petition finding no protest to the order of regularization where it was made clear that petitioner-appellant would be a member of CPS scheme and accordingly, benefit of CPF scheme were extended to the petitioner-appellant on his retirement in the year 2019. The writ petition was otherwise found to be delayed for challenge to the order dated 3rd March, 2014.
We do not find any error in the judgment of the learned Single Judge though learned counsel for the appellant has made reference of the rules to claim pensionary benefits. Learned counsel for the appellant could not refer to resolution of the respondent-Corporation to adopt the rules applicable to the government employee. Even if it is there, no one restrained to make a protest to the terms and conditions of the order of regularization after joining the service or to assail it immediately thereupon when an employee was made entitled only to the CPF scheme. It is clarified that even if pension Rules exist and applies, an employee can still be member of CPF on his option instead of GPF. Thus, for all the reasons given above, we do not find any reason to cause interference in the judgment of the learned Single Judge. Appeal is accordingly dismissed."
21. Sri Chaturvedi further submitted that learned Single Judge in arbitrary manner had extended the benefits to the respondents-petitioners in the light of the jugement passed in Shobha Ram's case (supra). He submitted that so far as the judgement of the Apex Court in Prem Singh's case (supra) is concerned, the same is elaborately dealt with by the Apex Court. Article 368 of the CSR clearly postulates that service does not qualify unless the officer holds a substantive post on a permanent establishment. The word "qualifying service" means service, which qualifies for pension in accordance with the provisions of Article 368 of the CSR. It means that the employment must be substantive and permanent for qualifying service and the period of appointment cannot be counted for grant of pensionary benefits unless it is substantive and permanent. In this backdrop he submitted that the petitioner is not entitled to get the benefit of the judgement of the Apex Court in Prem Singh (supra).
22. Learned Senior Counsel for the appellant further submitted that the judgment in case of Prem Singh (supra) is passed on the basis of Civil Services Regulation (CSR) as existed at that time. The same stands superseded by the U.P. Ordinance No.19 of 2020 (The U.P. Qualifying Services for Pension and Validation Ordinance, 2020) published in extraordinary Gazette of Government of U.P. on 21.10.2020 followed by the U.P. Qualifying Service for Pension and Validation Act, 2021 (for short 'the Act of 2021'). As per Section 2 of the Act of 2021, the term 'qualifying service' means services rendered by an officer appointed on temporary or permanent post in accordance with the service Rules prescribed for the post.
SUBMISSION ON BEHALF OF PETITIONERS-RESPONDENTS
23. Per contra, Sri Ashok Khare, learned Senior Advocate has vehemently opposed the appeals and placed reliance on the array of parties in Writ Petition No.41910 of 2005 (Harish Chand & 30 others vs. U.P. Power Corporation Ltd and others), wherein the respondents-petitioner Amar Nath was placed at serial no.5 and learned Single Judge vide judgement and order dated 16.5.2006 had disposed of the writ petition in terms of the judgement and order dated 08.01.2004 passed in Writ A No.13402 of 2003, wherein the Corporation had conceded to the extent that the writ petition may be disposed of in terms of the order dated 08.01.2004 passed in the aforesaid Writ A No.13402 of 2003 and consequently, the writ petition was disposed of vide order dated 16.05.2006 with following observations:-
"Having heard learned counsel for the parties and considering the aforesaid submission of the learned counsel for the parties, this writ petition is also disposed of in terms of direction issued by this Court in Writ Petition No.13402 of 2003 as modified by the Division Bench in Special Appeal No.175 of 2004, which have been quoted above.
This writ petition is accordingly disposed of. No order as to costs."
24. Sri Ashok Khare, learned Senior Advocate further submitted that eventually, the said judgement and order dated 16.05.2006 was approved by the Division Bench and affirmed by the Apex Court. Since the petitioners have already retired, after issuance of the appointment letter dated 24.9.2018 they have preferred the aforesaid writ petitions and asked similar benefits as provided in Sobha Ram's case (supra). Therefore, at this stage, it cannot be argued that the petitioners-respondents were not similarly situated employees and in most arbitrary manner, the rightful claim of the petitioners cannot be denied. He lastly submitted that the learned Single judge has rightly appreciated the facts, which warrants no interference in the matter.
ANALYSIS BY THE COURT
25. The petitioners-respondents were engaged as muster roll Class-IV employees in the Corporation in 1988-89. Subsequently, the Commission published the advertisement in the year 1998 for filling up backlog Class-IV vacancies of SC/ST and OBC category. The petitioners alongwith similarly situated muster roll employees applied for regular selection on Class IV post and appeared in the interview before the Commission. The Commission had published the result on 12.12.2022, wherein they were declared unsuccessful. Shobha Ram Yadav, another unsuccessful candidate, promptly approached this Court by filing writ petition which was allowed on 24.05.2010. The learned Single Judge categorically observed that he shall be treated to be regularised in service on Class IV post since 1977 and since then he will be treated to be in regular service of respondents only for the purpose of his length of service, seniority and other consequential benefits of service from the date when his juniors were given straightway regular appointment. The Corporation unsuccessfully filed an intra-court appeal, and thereafter approached the Apex Court by way of Special Leave to Appeal (Civil) No.35325 of 2010, which was withdrawn on 24.01.2011. The Corporation vide an order dated 22.02.2014 complied with the judgement of learned Single Judge dated 27.08.2010. Meanwhile, Shobha Ram Yadav had retired from service on 31.03.2011. Thereafter, the Corporation vide order dated 22.02.2014 had regularized his services with effect from 12.12.2002 and paid the arrears of his salary for the period from 12.12.2002 to 31.03.2011.
26. The Corporation had issued appointment letters in favour of the petitioners on 22.09.2018 and 28.09.2018. They had joined on the said post and retired after attaining the age of superannuation. The petitioners-respondents are claiming that they are entitled for service benefits treating their regular selection with effect from 12.12.2002 in the light of judgement and order dated 24.5.2010 passed in Writ A No.10207 of 2003 filed by Shobha Ram Yadav as well as the judgement and order dated 27.08.2010 passed in Special Appeal No.1359 of 2010 filed by the Corporation, which was affirmed by the Apex Court on 24.01.2011. Once the Corporation did not entertain the petitioners' representation then they preferred Writ A Nos.6069 of 2019, 6084 of 2019 and 9211 of 2019. Learned Single Judge vide impugned jugdment and order dated 28.3.2023 had allowed these writ petitions on the ground of parity and the petitioners-respondents are also held entitled to the same benefit as provided in Sobha Ram Yadav's case (supra). The respondents Corporation have been directed to treat the petitioners' appointment with effect from 12.12.2002 and to ensure regular payment of pensionary and other retiral benefits to the petitioners by counting past services rendered by petitioners before their respective appointment/absorporation orders were passed.
27. The learned Senior Counsel for the Corporation has heavily relied upon the appointment letter dated 24.9.2018, wherein it was a categorical pre-condition enumerated to the effect that the appointees will not be given benefit of pension. The same was accepted by the applicants. The said argument is not sustainable inasmuch as the relief was pressed by the similarly situated other employees of the Corporation. The said demand was accepted by learned Single Judge and the said judgement has been approved upto the Apex Court. In this backdrop, we find that once qua the same department the matter has been settled upto Apex Court, in such situation the rightful claim of other similarly situated employees cannot be denied mainly on the ground of stipulation of a contrary condition in the appointment letter, particularly in the fact when the appointment is on Class-IV post namely Mali etc. and the incumbents are not so well educated.
POSITION OF LAW
28. The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Apex Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
29. The Apex court in Union of India (UOI) and Ors. Vs. Munshi Ram3 held that the Railway employees working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. The relevant portion of the judgement is reproduced herein below:-
"It cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer - Railway Board which is under the Ministry of Railways. There are 16 Zones and 68 Divisions in the Railways. Therefore, the employees working under the same employer - Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment. As rightly submitted on behalf of the respondents, there cannot be any discrimination inter se. Under the circumstances, on the ground of parity, the Commission Vendors/bearers working in the Northern Railway are entitled to the same benefits which are held to be entitled to all the similarly situated Commission Vendors/Bearers working under different Zones/Divisions. There cannot be different criteria/parameters with respect to similarly situated employees - Commission Vendors/bearers working in different Zones/Divisions, but working under the same employer."
30. In State of Haryana and Ors. vs. Ram Kumar Mann4 the Apex court held :-
"The doctrine of discrimination is found upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination."
CONCLUSION
31. The case of the petitioners-respondents that they are the Class-IV employee in the same department and their case is squarely covered by the dictum passed in Shobha Ram Yadav case , whose services had been regularized by the Corporation vide its order dated 22.02.2014 with effect from 12.12.2002 in compliance of the judgement and order dated 27.08.2010 passed in Special Appeal No.1359 of 2010 filed by the Corporation and he has been paid arrears of salary from 12.12.2002 to 31.03.2011 vide order dated 03.03.2014. Therefore, learned Single Judge has rightly extended the parity of the aforesaid judgment and order to the petitioners-respondents while allowing the Writ Petitions vide impugned judgement and order dated 28.3.2023. In Intra-Court Special Appeals, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.
32. In view of above, all the special appeals san merit and are, accordingly, dismissed.
Order Date :-07.08.2024 RKP