Jammu & Kashmir High Court
Uoi.Th.Ministry Of Youth Affairs And ... vs Romesh Chander And Anr. on 20 September, 2016
Bench: R. Sudhakar, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SWP No. 1857/2016
MP No. 1/2016
Dated: 20.09.2016
______________________________________________________
Union of India & ors. Vs. Romesh Chander & anr.
Coram:
Hon'ble Mr. Justice R. Sudhakar, Judge
Hon'ble Mr. Justice B. S. Walia, Judge
Appearing counsel:
For petitioner (s) : Mr. Sumeet Bhatia, CGSC
For respondent (s) :
i) Whether to be reported in
Digest/Journal Yes
ii) Whether approved for reporting
in Press/Media Yes
1. The Union of India has filed this appeal challenging the order of
the Tribunal dated 09.03.2012 which followed the earlier order in
case titled "Parshotam Lal & ors. Vs. Union of India & ors. dated
04.02.2011 passed in O.A. No. 675/PB/2009" and confirmed by
the High Court of Punjab and Haryana vide order dated
08.02.2012.
2. The short issue which arises for consideration, is whether the
respondents who are working under a Scheme known as Nehru
Yuva Kendra Sangathan (for short „NYKS‟) which was formed in
the year 1972, an autonomous body are entitled to pensionery
benefits. The respondents in this case were appointed in different
categories and consequent upon their retirement, they sought
certain retiral benefits which came to be denied.
3. Therefore, in the case titled "Parshotam Lal & ors. Vs. Union of
India & ors.", the plea for grant of retiral benefits including
pensionary benefits was considered by the Tribunal in its order
dated 04.02.2011. The Tribunal granted the benefits to the
applicants/petitioners in Parshotam Lal‟s case by placing reliance
upon a decision of the Kerala High Court on the identical facts.
The Tribunal directed that the benefits to be granted to the
parties namely Parshotam Lal & ors. as was given to the similarly
placed employees in the decision of the Kerala High Court in
case titled "N.G. Narayanan Nair & anr. Vs. Union of India &
ors." In that case, a specific order dated 22.07.2009 was passed
by the Director (Pers.) NYKS, granting the following benefits.
"Compliance of the judgment dated 5th September, 2008
delivered by Hon‟ble High Court of Kerala at Ernakulam
in WP(C) No. 20986 of 2006(W) in the case of Shri N.G.
Narayanan Nair & others Vs the Union of India & others
and order dated 18th December 1995, issued by the
Department of Youth Affairs & Sports under Ministry of
HRD, Govt. of India, approval the Competent Authority
of NYKS is hereby conveyed, i.r.o. 13 petitioners as
mentioned below for grant of all service benefits
including retirement benefits as applicable to Group D
employees working under Government of India.
It is further conveyed that these Group D employees are
governed by Rules and Regulations applicable to Group
D employees of Govt. of India, as admissible from time
to time".
4. Since the applicants in the earlier case titled Parshotam Lal & ors.
Vs. Union of India & ors. were on the same parameters as in the
case of similarly placed employees of Kerala. The Tribunal by
placing reliance on decision of Hon‟ble Supreme Court in case
titled Union of India & anr. Vs. Lalita S. Rao & ors. reported as AIR
(2001) SC 1792 and in case titled E.S.P. Rajaram & ors. Union of
India & ors. reported as AIR (2001) SC 581, came to hold that
similarly placed persons cannot be discriminated and it will be in
violation of Article 14 & 16 of Constitution of India. The relevant
portion of the order of the Tribunal in Parshotam Lal‟s case is
reproduced hereunder:
"......the applicants in this case are seeking the benefit
of the order dated 22.07.2009 (Annexure A-6), whereby
13 persons have all been granted "all service benefits
including retirement benefits as applicable to Group „D‟
employees working under Government of India,
purportedly in compliance with judgment of High Court
of Kerala at Ernakulam. The said order further stipulates
that "these Group D employees are governed by Rules
and Regulations as applicable to Group D employees of
Govt. on India, as admissible from time to time. It is not
denied that the so called 13 employees have been
working applicants No. 1 to 12 are also working as
Group D employees. Once the respondents have
decided to extend service and other pensionary benefits
to similarly situated employees working in the same
organization, applicants No. 1 to 12 cannot be denied
the same relief. In Union of India & another etc. etc. vs.
Lalita S. Rao and others - AIR (2001) SC 1792, the Apex
court has ruled that the orders issued by the Court in
earlier cases should be applied and enforced
irrespective of the fact whether some are parties to the
proceeding or not.
In E.S.P. Rajaram and others vs. Union of India & others,
AIR 2001 sc page 581, the controversy related to the
scale of pay admissible for Traffic apprentices in the
Railway appointed prior to the cut off date. It was
observed that the controversy in its very nature is one
which applies to all such employees of the Railways; it
is not a controversy which is confined to some
individual employees or a section of the employees. If
the judgment of the Tribunal which had taken a view
contrary to the ratio laid down by Supreme Court
judgment 1996 (4) SCC 416 was allowed to stand, then
the resultant position would have been that some Traffic
Apprentices who were parties in those cases would
have granted an unfair and understood advantage over
other employees who are holding the same posts. Such
enviable position would not only have been per- se
discriminatory but could have resulted in a situation
which is undesirable for a cadre of large number of
employees in a big establishment like that of the Indian
Railways. To avoid such a situated the direction
impugned was passed. It was absolutely necessary for
the same of maintaining quality and fair-play with the
other similarly placed employees.
......................
......................
Since respondents No. 13 and 14 are also working in the same department, where such benefits have been granted to other category of employees, they cannot certainly be treated differently nor deprived of service and other retiral benefits, which have been attended to similarly situated other Group „D‟ employees. Since the respondents have granted relief to some of the employees, pursuant to an order of the Kerala High Court, which has attained finality, having been implemented and not challenged before the superior court, the action of the respondents to deny the same relief to the similarly situated persons is per se illegal, arbitrary and in defiance of Article 14 and 16 of the Constitution of India.............."
5. Accordingly, benefits were granted to the applicants in Parshotam Lal & others case. That order was challenged before the Punjab & Haryana High Court by the Union and the same was rejected.
6. In the light of the factual scenario, the present case of the respondents were taken up by the same Tribunal. The counsel for the Union fairly stated that the decision in Parshotam Lal‟s case (Supra) would apply as the respondents herein fall under the same category of employees under NYKS. Factually there is no differentiation between the respondents in the present case and the applicants in Parshotam Lal‟s case. There is no dispute that the decision of the Tribunal has been confirmed by the Punjab and Haryana High Court. Hence, the Tribunal was justified in allowing the claim of the respondents herein as they are similarly placed employees working in the State of Jammu and Kashmir. A new plea is taken that pensionary benefits will not be applicable to the respondents. As to how it is inapplicable, is not explained or seriously canvassed. The only argument is that the counsel had no right to concede if the Union has accepted the decision of the Kerala High Court and that of High Court of Punjab and Haryana. We fail to understand how the said position will change for the same set of employees of ( NYKS) who were and are working in the State of J&K. The contention is untenable.
7. The common factor is that respondents herein as well as the applicants in Parshotam Lal‟s case and N.G. Narayanan Nair‟s case (Supra) fall under the same category. The Union having accepted these two orders of the Kerala High Court and Punjab and Haryana High Court cannot take a different stand and it will be arbitrary.
8. Having accepted the decision and implemented the same in respect of some employees, we find no reason for the Union to take a different stand in the present case. Even otherwise, the plea of no pensionary benefits should have been raised and adjudicated before the Tribunal and pursued to its logical conclusion in the earlier cases. It appears that has not been done.
9. One other reason for which we are not inclined to interfere, is on account of inordinate delay and laches. The impugned order was passed on 09.03.2012. There is absolutely no reason given as to why there is such a long delay in challenging the order. The Union should have explained the delay of more than 4 ½ years and they failed to do so. The inordinate and unexplained delay cannot be brushed aside.
10. Writ petition is, accordingly, dismissed.
( B. S. Walia ) ( R. Sudhakar )
Judge Judge
Jammu :
20.09.2016
RSB. Secy