Punjab-Haryana High Court
Gian Chand Goel And Ors vs Dakshin Haryana Bijli Vitran Nigam Ltd. ... on 12 December, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
CWP No. 25512 of 2014 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 25512 of 2014 (O&M)
Date of Decision: 12.12.2014
Sh. Gian Chand Goel and others
....Petitioners
Versus
Dakshin Haryana Bijli Vitran Nigam Ltd and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Mr. B.S.Mittal, Advocate
for the petitioners.
****
RAMESHWAR SINGH MALIK J. (Oral)
Present writ petition is directed against the order dated 17.6.2014 (Annexure P-3) passed by respondent No.3, whereby claim of the petitioners for fixation of their pay w.e.f. 1.4.1979 at par with their alleged junior was rejected. Petitioners also seek a writ in the nature of Mandamus directing the respondents to re-fix their basic pay w.e.f. 1.4.1979 alongwith consequential benefits.
Learned counsel for the petitioners submits that Sh. Ashok Kumar Dhamija joined as Junior Engineer on promotion w.e.f. 5.11.1982 and retired from service on 30.7.2003 as Junior Engineer- I. He further submits that petitioners joined as Junior Engineers in the year 1973. Since Sh. Ashok Kumar Dhamija was junior to the petitioners, he could not have been granted higher basic pay than the petitioners. He also submits that the observations made AMIT KUMAR by 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 2 respondent No.3 in the impugned order that Sh. Ashok Kumar Dhamija was getting more pay than the petitioners by virtue of his length of service, was of no consequence. Similarly, the fact that the petitioners had opted for revised pay scale w.e.f 1.4.1979 and accordingly, their pay was fixed at `700/- in the pay scale of Junior Engineer, i.e. 700-30-850/900-40-1100/50-1250 whereas Sh. Ashok Kumar Dhamija had opted for the revised pay scale w.e.f. 1.9.1979 from the date of his increment and accordingly, his pay was fixed at `750/- in the pay scale of AFM i.e. 570-15-600-20-700/750-30- 900/940-40-1020, would also be totally insignificant.
Explaining the delay in coming to the Court, learned counsel for the petitioners places reliance on a Division Bench judgment of this Court in Balwant Singh Vs. State of Haryana and others, 2011 (2) RSJ 397, to contend that since the petitioners were having continuing cause of action, principle of delay and laches would not be attracted in the present case. On the issue that junior cannot be paid more salary than senior, learned counsel for the petitioner places reliance on a judgment of the Hon'ble Supreme Court in Gurcharan Singh Grewal Vs. Punjab State Electricity Board, (2009) 3 SCC 94, to contend that petitioners were entitled for re-fixation of their pay at par with their abovesaid junior Sh. Ashok Kumar Dhamija w.e.f 1.4.1979 with consequential benefits. He prays for setting aside the impugned order, by allowing the present writ petition.
Having heard the learned counsel for the petitioner at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, thisAMITCourt KUMAR is 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 3 of the considered opinion that present one is not a fit case for exercising its writ jurisdiction under Articles 226/227 of the Constitution of India, at the hands of this Court. To say so, reasons are more than one, which are being recorded hereinafter.
It is a matter of record and not in dispute that Sh. Ashok Kumar Dhamija inititally joined service as LM-II w.e.f 16.3.1965 whereas all the petitioners joined service in the year 1970, 1972 and 1973 on their respective posts of LM, SA, JE, ASSA. It is also a matter of record that at the time of revision of pay scale w.e.f. 1.4.1979, petitioners were granted the opportunity and availing the same, they took a conscious decision to opt for the revised pay scale w.e.f. 1.4.1979 itself, because it was most beneficial for them at that point of time. Accordingly, their pay was fixed at `700/- in the pay scale of JE, i.e. 700-30-850/900-40-1100/50-1250/-. On the other hand, Sh. Ashok Kumar Dhamija was admittedly having more length of service than the petitioners and by virtue of that, he was getting more salary than the petitioners.
Further, at the time of revision of pay scale w.e.f 1.4.1979. Sh. Ashok Kumar Dhamija exercised his option for the revised pay scale w.e.f. 1.9.1979 i.e. from the date of his increment. Accordingly, pay of Sh. Ashok Kumar Dhamija was fixed at `750-/- in the pay scale of AFM i.e. 570-15-600-20-700/750-30-900/940-40-1020. There were two obvious reasons for fixing the pay of Sh. Ashok Kumar Dhamija at `750/-. Firstly, he had much more length of service than the petitioners because he has already earned number of at `700/-
annual increments and his basic pay has already reached AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 4 before the revision of pay scales w.e.f.1.4.1979.
The second reason was that when his increment was due on 1.9.1979, he opted for the revised pay scale at that point of time and thus, his pay was fixed at `750/- in the abovesaid pay scale of AFM. Thus, the basic reason was that Sh. Ashok Kumar Dhamija was having more length of service than the petitioners. Since these reasons have been specifically mentioned by respondent No.3 in his order, while denying the claim of the petitioners, the impugned order has not been found to be suffering from any patent illegality and the same deserves to be upheld.
A bare reading of the impugned order shows that respondent No.3 duly considered the matter, while passing the impugned order. Relevant facts and figures with cogent reasons given by respondent No.3, while passing the impugned order, read as under:-
"The service particulars of the petitioners and Sh. Ashok Kumar Dhamija are given as under in tabulated form:-
Sr. No. Name & DOB of DOJ the DOJ as JE Sty. No as JE in DOJ as the official Board/Niga the seniority list of JE-I (S/Sh.) m with the Jes circulated vide capacity EIC/OP Zone-III, HSEB, Hisar vide memo No. Ch.
66/CEN-20 dated 3.1.1994 Gian Chand Goel 10.12.70 as 10.4.1973 1173 04.09.02 1 (DOB: 8.3.1948) SA Mani Ram 19.9.72 as 03.04.1973 1099 10.05.85 2 (DOB: 6.6.1949) LM Jai Gopal Narang 07.04.73 as 07.04.1973 1025 14.06.96 3 (DOB:8.8.1951) JE Sunder Lal 15.9.70 as SA 09.04.1973 1173/A 27.02.01 Mehta 4 (DOB: 6.9.1949) AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 5 Sr. No. Name & DOB of DOJ the DOJ as JE Sty. No as JE in DOJ as the official Board/Niga the seniority list of JE-I (S/Sh.) m with the Jes circulated vide capacity EIC/OP Zone-III, HSEB, Hisar vide memo No. Ch.
66/CEN-20 dated 3.1.1994 Hari Chand Saini 18.09.72 as 19.07.1973 1096 22.02.96 5 (DOB: 1.6.1950) LM Krishan Chand 21.9.72 as 09/04/73 1174 27.01.06 Bishnoi ASSA 6 (DOB:15.12.49) Ashok Kumar 16.03.65 as 05/11/82 1471 30.07.03.
Dhamija LM-II
7 (DOB: 10.07.45)
In view of the aforementioned direction, the competent authority has gone through the legal notice dated 15.11.2013 (Annexure P/1) and observed that no doubt the petitioners (Sr. No.1 to 6) are administratively senior to Sh. Ashok Kumar Dhamija (Sr. No. 7) in the capacity of JE as per seniority list of JE circulated vide EIC/OP Zone-III, HSEB, Hisar vide memo No. Ch.66/CEN-20 dated 3.1.1994 but Sh. Ashok Kumar Dhamija was getting more pay than petitioners by virtue of his length of service. At the same time, it is also observed that on revision of pay scale w.e.f. 1.4.1979, the petitioners had opted revised pay scale w.e.f. 1.4.1979& accordingly their pay was fixed at Rs. 700/- in the pay scale of JE i.e. 700-30-850/900-40-1100/50-1250 whereas Sh. Ashok Kumar Dhamija (Junior) had opted the revised scale w.e.f. 1.9.1979 from the date of his increment & accordingly his pay was fixed at Rs. 750/- in AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 6 the pay scale of AFM i.e. 570-15-600-20-700/750-30-
900/940-40-1020. In view of the aforementioned series of events, Sh. Ashok Kumar Dhamija was getting more pay as on 5.11.1982, i.e. the date on which he was promoted as JE.
Accordingly, the claim of the petitioners as put- forth in the legal notice for fixation of their pay at par with their junior Sh. Ashok Kumar Dhamija has not been found feasible for acceptance and hence, rejected." In fact, the petitioners are now trying to take a complete somersault going more than 35 years back, with a view to change their option from 1.4.1979 to the date of their next increment like that of Sh. Ashok Kumar Dhamija. Learned counsel for the petitioners wanted this Court to completely ignore the basic fact situation of the case that Sh. Ashok Kumar Dhamija was drawing more pay than the petitioners by virtue of his more length of service. However, it is not permissible in law to ignore such an important and material aspect of the matter, which was based on official record and has never been disputed by the petitioners, as well.
Once the petitioners have exercised their option with open eyes and also knowing fully well the implications thereof, they cannot be permitted to turn around and that too, when they wrongly exercised their option, which was ultimately found not suitable to them in the long run. In view of the peculiar fact situation of the present case, noticed hereinabove, it cannot be said to be a case where seniors were being paid less salary then their junior. It is so AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 7 said, because there is an unambiguous and clear distinction from the general rule owing to the peculiar situation of the case. Having said that, this Court feels no hesitation to conclude that the petitioners have no case either on facts or in law. Respondent No.3 committed no error of law, while passing the impugned order and the same deserve to be upheld, for this reason also.
The abovesaid Sh. Ashok Kumar Dhamija retired from service as far back as on 30.7.2003 whereas petitioner No.1-Gian Chand Goel retired on 30.3.2006, petitioner No.2-Mani Ram retired on 30.6.2007, petitioner No.3-Jai Gopal Narang retired on 31.8.2009, petitioner No.4-Hari Chand Saini retired on 31.5.2008 and petitioner No.5-Krishan Lal Bishnoi retired on 31.12.2007. Thus, petitioners had retired from service long back after attaining the age of superannuation.
There is not even a passing reference in the writ petition nor it is pleaded or argued case on behalf of the petitioners as to when and how they came to know about the cause of action in their favour. Petitioners are conveniently silent in their pleadings as to why they could not come to know about the cause of action while in service and why they took these long 35 years to come to know in this regard. When a pointed question was put to the learned counsel for the petitioners as to how he explains this inordinate long delay of more than 35 years, he had no answer and rightly so, because it was a matter of record.
In view of the peculiar fact situation of the case, noticed hereinabove, the important question that falls for consideration of this AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 8 Court is whether in such a given fact situation, principle of delay and laches is to be ignored outrightly. After due consideration of the matter, this Court has come to the conclusion that answer to the abovesaid question is and has to be an emphatic no. It is so said, because if the principle of delay and laches is to be ignored even after a long and unexplained delay of 35 years, then even the next generations of the petitioners can come to the court for the similar relief. In fact, petitioners have not made even the slightest effort to explain this long delay of more than 35 years in coming to the Court, particularly when the petitioners themselves were responsible for this situation, because they opted for the revised pay scale w.e.f . 1.4.1979. Petitioners were not illiterate or rustic villagers to claim innocence in this regard.
In fact, the petitioners opted for revision of pay w.e.f. 1.4.1979 taking it to be the most suitable and beneficial to them. Not only this, even they kept on getting the said financial benefit during their entire service for more than 25 years and never raised any protest in this regard. Thereafter, they attained the age of superannuation and retired from service. However, now the petitioners have woken up from the slumber after a long period of 35 years with a view to find fault with exercise of their option for revised pay scale w.e.f. 1.4.1979. In these circumstances, it can be safely concluded that the petitioners have got no bonafide cause of action and the impugned order deserves to be upheld, for this reason as well.
Coming to the judgments relied upon by the learnedAMITcounsel KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 9 for the petitioners, there is no dispute about the law laid down therein. However, on close perusal of the said judgments, none has been found to be of any help to the petitioners, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
The abovesaid view taken by this Court also finds support from the judgments of the Hon'ble Supreme Court in Chairman, U.P.Jal Nigam and another Vs. Jaswant Singh and another, 2007 AIR (SC) 924; B.S.Bajwa and another Vs. State of Punjab and others, (1998) 2 SCC 523; Union of India and others Vs. A. Durairaj (dead) by Lrs, (2010) 14 SCC 389; Londhe Prakash Bhagwan Vs. Dattatraya Eknath Mane and others, 2013 (10) SCC 627; Government of India and another Vs. George Philip (2006) 13 SCC 1; Chennai Metropolitan Water Supply and Sewerage Board and others Vs. T.T.Murali Babu, 2014 (4) SCC 108 and order dated 1.7.2014 passed by this Court in CWP No. 15463 of 2012 (Dr. Varinder Garg and others Vs. State of Punjab and others). The Relevant observations made by the Hon'ble Supreme Court in para 4 to 6 and 15 of the judgment in Jaswant Singh's case (supra), which can be gainfully followed in the present case, read as AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 10 under:-
"It appears that during the pendency of the appeals and writ petitions before this Court and after disposal of the same by this Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Number of writ petitions were filed in the High Court in 2005 on various dates after the judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in the case of Harwindra Kumar (supra) and relief was given to them for continuing in service up to the age of 60 years. Hence, all these appeals arise against various orders passed by the High Court from time to time.
So far as the principal issue is concerned, that has been settled by this Court. Therefore, there is no quarrel over the legal proposition. But the only question is grant of relief to such other persons who were not vigilant and did not wake up to challenge their retirement and accepted the same but filed writ petitions after the judgment of AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 11 this Court in the case of Harwindra Kumar (supra). Whether they are entitled to same relief or not ? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this Court ?
The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 12 Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not?"
xx xx xx Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the Court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the Court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others.
Smilarly, the law laid down by the Hon'ble Supreme Court in para 16 of the judgment in T.T. Murali Babu's case (supra), which AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 13 aptly applies in the present case, read as under:-
"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent- employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document CWP No. 25512 of 2014 (O&M) 14 on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view present writ petition is misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, instant writ petition stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE 12.12.2014 AK Sharma AMIT KUMAR 2014.12.19 10:24 I attest to the accuracy and authenticity of this document