Himachal Pradesh High Court
Dhanveer Singh vs State Of H.P. & Others on 29 August, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No. 5741 of 2020.
Reserved on: 17.08.2023 .
Date of Decision: 29.08.2023
Dhanveer Singh .....Petitioner.
Versus
State of H.P. & Others .....Respondents.
Coram
of
Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Hon'ble Mr. Justice Bipin Chander Negi, Judge.
Whether approved for reporting?1 Yes rt For the petitioner: Ms. Babita, Advocate, vice Mr. A.K.Gupta, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General with Mr. Baldev Singh Negi, Additional Advocate General Bipin Chander Negi, Judge The petitioner initially appointed a daily wage worker, had been regularized during December, 2006 from a prospective date as per the policy of the Government. Thereafter, in terms of judgment passed by this Court, in CWP No. 2735 of 2010 titled Rakesh Kumar vs. State of H.P. alongwith connected matters decided on 28.07.2010, the petitioner was conferred a work charge status with effect from 01.01.2003. The petitioner had previously filed CWP No. 2357 of 2015. The petitioner in pursuance to the aforesaid Writ Petition was held eligible for arrears of three 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/08/2023 20:34:27 :::CIS 2years before filing of CWP No. 2007 of 2015. Arrears calculated therein had been paid to the petitioner. A perusal of Annexure R1 .
reflects that the arrears in the case of petitioner had been paid on actual basis w.e.f. 18.04.2012 and arrears on notional basis w.e.f.
01.01.2003 to 17.04.2012.
2. In the aforesaid backdrop, the petitioner has filed of the present petition seeking following substantive relief: "(a) That the respondents may be ordered to pay rt the arrears to the applicant in view of the notification issued in the year 2016 with all the benefits incidental thereof."
3. In the aforesaid facts and attending circumstances, in terms of judgment reported in 1996 (5) SCC 54 titled as Shangrila Food Products Limited and another vs. Life Insurance Corporation of India and another, in order to do complete and substantial justice inter se the parties while exercising writ jurisdiction, the benefit of Rakesh Kumar's stated supra needs to be extended to the petitioner for the reasons stated herein below: "11. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete ::: Downloaded on - 29/08/2023 20:34:27 :::CIS 3 and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote .
honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. ...
of ... ..."
4. A perusal of Rakesh Kumar's case stated supra rt reflects that the same is a decision, which touches upon a policy matter, scheme of regularization. Rakesh Kumar's case is a judgment in rem with intention to give benefits to all similarly situated persons, whether they approached the Court or not. The same casts an obligation upon the authorities to themselves extend the benefits thereof to all similarly situated persons. Even otherwise, the respondents authorities of their own had also decided to extend the benefits of Rakesh Kumar's case supra though limiting the financial benefits.
5. In Rakesh Kumar's case, there is no direction of the Court to restrict the consequential benefits, including monetary benefits, for three years prior to filing of the ::: Downloaded on - 29/08/2023 20:34:27 :::CIS 4 petition. It has been observed in Rakesh Kumar's case that for delay in approaching the Court, the petitioner, at the .
most, can be denied interest on delayed payment, but shall not be denied arrears of wages and other financial benefits for which he is entitled, like others, from the date of regularization/ conferment of Work Charge status. Therefore, of restriction of payment of consequential benefits for only three rt years prior to filing of the Writ Petition is not sustainable.
6. Even otherwise, when a particular set of employees is given relief by the Court, other identical situated persons need to be treated alike by extending that benefit and not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. The distinction between operation of delay and laches to judgments delivered in rem and in personam is lucidly captured in State of UP Vs. Arvind Kumar Shrivastva 2015 (8) SCC Page 347 followed in 2021 Vol. 13 SCC Page
225. Relevant extract wherein is being reproduced herein below: "22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically ::: Downloaded on - 29/08/2023 20:34:27 :::CIS 5 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 this 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.
22.2. However, this principle is subject to wellrecognised of exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the rt court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fencesitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subjectmatter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India, (1997) 6 SCC
721). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." (Emphasis supplied) ::: Downloaded on - 29/08/2023 20:34:27 :::CIS 6
7. Present case is covered by Paras 22.1 and 22.3 of Arvind Kumar Shrivastva's case supra and, therefore, claim of the .
petitioner does not suffer either from delay and laches or acquiescence.
8. Where the Court has not restricted the benefits for specific period, any guidelines, instructions, circular etc issued by of Department or executive decision of any other authority cannot restrict such benefit as it would amount to modification of order of rt Court by an authority having no jurisdiction to do so.
9. Accordingly, the respondents authorities are directed to grant all the consequential benefits actual basis including salary, seniority, pay fixation, pensionary benefits, if any, to the petitioner in terms of Rakesh Kumar's case stated supra, from due date, within three months today.
Petition is allowed in aforesaid terms. Pending application(s), if any, also stands disposed of.
(Vivek Singh Thakur) Judge (Bipin Chander Negi) Judge ______, 2023 (Nisha) ::: Downloaded on - 29/08/2023 20:34:27 :::CIS