Jammu & Kashmir High Court
Union Of India & Ors vs Union Of India & Ors. Dated 04.02.2011 ... on 20 September, 2016
Bench: R. Sudhakar, B. S. Walia
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU SWP No. 1857 OF 2016 Union of India & ors. Petitioners Romesh Chander & anr. Respondent !Mr. Sumeet Bhatia, CGSC ^ Honble Mr. Justice R. Sudhakar, Judge Honble Mr. Justice B. S. Walia, Judge Date: 20.09.2016 :J U D G M E N T :
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.
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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 = 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