Hav. Pharmacist NabinSamanta & anr. vs The Union of India & ors.

Heard Shri M. Rarry, the learned counsel appearing for petitioners and Shri S. Rupachandra, the learned ASG appearing for all the respondents.

By the instant writ petition, the petitioners have prayedfor issuing a writ of Mandamus directing the respondents to upgradeand re-designate the post of Havildar/Pharmacist held by the petitionersin Assam Rifles to that of Warrant Officer in the pre-revised scaleof Rs. 4,500-7000/- with effect from 01-01-1996 by implementing theorder dated 18-10-2015 issued by the Office of the Director General,Assam Rifles, Shillong. 3. 1. According to the petitioners, they are all servingas Havildars/Pharmacist in the Assam Rifles after having obtainededucational qualifications of 10+2, Diploma in Pharmacy and afterhaving completed more than 2 years in the entry grade. The matterrelating to service conditions and pay scale of the Havildar Pharmacistreceived due considerations, from time to time, from different PayCommissions.

3.2. While the petitioners were/are serving as HavildarsPharmacists, the Union of India issued a Notification dated21-02-2013 notifying the rule called " The Assam Rifles, Pharmacist,Group "C" Combatised Post Recruitment Rules, 2013" and in thesaid recruitment rules, the educational qualifications prescribed forappointment as Havildar Pharmacist are as under:-

"(a) Educational Qualifications:

(i) 10th pass from a recognized Board or equivalent;

(ii) Diploma in Pharmacy of two years duration froma recognized University of Institute and havingregistration with State Pharmacy Council."

Being aggrieved by the said recruitment rules, there hasbeen a series of litigations and one of such being W.P. (C) No.820 of 2013 which was allowed by this court vide its judgment and order dated20-08-2014 and the para 9 of the said judgment and order is given asunder:- "[9] Accordingly, we allow this writ petition.

Resultantly, the Recruitment Rules for the postof Havildar (Pharmacist) in the Assam Rifles as notifiedvide notification dated 28-02-2013 (Annexure-A/15) areinterfered and set aside to the extent of stipulation ofeducational qualification only as 10th pass or equivalent,for appointment as Havildar (Pharmacist) in the AssamRifles, which according to us should be 10+2 Examinationpass from a recognized Board or equivalent andaccordingly has to be read as such till appropriateamendment is made by the competent authority.

Secondly, coming to the issue of revision of pay, asthe respondents have failed to prove that the educationqualification required for appointment as Pharmacist in theother central police forces is higher than the Pharmacistsin the Assam Rifles, and there is no other valid reasonsto deny pay parity, the case of the petitioners forup-gradation of the pay on the analogy of CPFs has to bereexamined by the authorities, which we direct to do sonow, which exercise shall be completed within a period ofsix months from today."

In compliance with the said judgment and order, the Officeof the Director General, Assam Rifles, Shillong issued an order dated18-10-2015 conveying the approval of the competent authority forup-gradation and re-designation of the post of Havildar Pharmacist heldby the petitioners therein only.

3.3. The instant writ petition has been filed by the petitionerscontending inter-alia that they are similarly situated with the petitionersin W.P. (C) No. 820 of 2013 and that the benefits of up-gradation/designation of the post of Havildar Pharmacist in the Assam Riflesto that of the Warrant Officers in the pre-revised scale of Rs. 4500-7000/- with effect from 01-01- 1996 vide order dated 18-10-2015, beextended to them. The stand of the respondents as reflected intheir affidavit-inopposition is that since the rank in which thepetitioners are recruited and educational qualifications prescribed inthe recruitment rules, are different from that of the Central Armed PoliceForces, the petitioners cannot be equated with them and that no justicehas been denied to them.

Relying upon the decisions rendered by the Hon''bleSupreme Court in the cases of K.C. Sharma vs. Union of India,reported in 1997 (7) Supreme 40; UP State Sugar Corpn. Ltd Vs.Sant Raj Singh &ors.reported in (2006) 9 SCC 82 and State of UttarPradesh &ors. Vs. Arvind Kumar Srivastava &ors. reported in(2015) 1 SCC 347, Shri A. Mohendro, the learned counsel appearingfor the petitioners has submitted that the benefits granted to thepetitioners in W.P. (C) No. 820 of 2013 be extended to the petitionersherein because the petitioners are similarly situated with them. Therecan be no dispute about the law being laid down by the Hon''ble Supreme Court in these cases. In the case of State of Uttar Pradesh &ors. Vs. Arvind Kumar Srivastava &ors.(supra), the Hon''bleSupreme Court was confronted with a situation where there are two setsof earlier judgments of the Hon''ble Supreme Court - one, by which thebenefit of a particular judicial pronouncement is extended to those whoare identically situated on the principle of equity and two, by which sucha benefit is denied to those who approaches the court afterwards eventhough they are similarly situated. The Hon''bleSupreme Court, afterconsidering the said judgments and laying down clear parameters, held: "22. The legal principles which emerge from thereading of the aforesaid judgments, cited both by theappellants as well as the respondents, can be summedup as under:

22.1 The normal rule is that when a particular setof employees is given relief by the Court, all otheridentically situated persons need to be treated alike byextending that benefit. Not doing so would amount todiscrimination and would be violative of Article 14 of theConstitution of India. This principle needs to be appliedin service matters more emphatically as the servicejurisprudence evolved by this Court from time to timepostulates that all similarly situated persons should betreated similarly. Therefore, the normal rule would bethat merely because other similarly situated persons didnot approach the Court earlier, they are not to betreated differently.

22.2 However, this principle is subject to wellrecognizedexceptions in the form of laches and delaysas well as acquiescence. Those persons who did notchallenge the wrongful action in their cases andacquiesced into the same and woke up after long delayonly because of the reason that their counterparts whohad approached the Court earlier in time succeeded intheir efforts, then such employees cannot claim that thebenefit of the judgment rendered in the case of similarlysituated persons be extended to them. They would betreated as fence-sitters and laches and delays, and/orthe acquiescence, would be a valid ground to dismisstheir claim.

22.3 However, this exception may not apply in thosecases where the judgment pronounced by the Courtwas judgment in rem with intention to give benefit to allsimilarly situated persons, whether they approachedthe Court or not. With such a pronouncement theobligation is cast upon the authorities to itself extendthe benefit thereof to all similarly situated person. Sucha situation can occur when the subject-matter of thedecision touches upon the policy matters, like schemeof regularisation and the like (see K.C. Sharma &ors. v.Union of India). On the other hand, if the judgment ofthe Court was in personam holding that benefit of thesaid judgment shall accrue to the parties before theCourt and such an intention is stated expressly in thejudgment or it can be impliedly found out from the tenorand language of the judgment, those who want to getthe benefit of the said judgment extended to them shallhave to satisfy that their petition does not suffer fromeither laches and delays or acquiescence."

On perusal of the judgment and order dated 20-08- 2014passed by this court, it is seen that the facts and circumstances ofthe present case are almost identical to that of the writ petition beingW.P. (C) No. 820 of 2014 wherein the petitioners were also serving,at the relevant time, as Havildars/ Pharmacist in the Assam Rifles andwhen they questioned the validity of the new Recruitment Rulescalled "The Assam Rifles, Pharmacist, Group "C" Combatised PostRecruitment Rules, 2013", the said judgment and order was passedby this court. The petitioners herein are also serving as HavildarPharmacists in the Assam Rifles and the said recruitment rules areapplicable to both of them and therefore, it can be easily inferred thatboth the petitioners in the present case and the petitioners in W.P. (C)No. 820 of 2014 are similarly situated. Moreover, there is no specificaverment in the affidavit-in-opposition filed on behalf of the respondentsthat the petitioners herein are not similarly situated with the petitioners inW.P. (C) No. 820 of 2014 nor are the petitioners entitled to the benefitsextended to them and all that has been submitted by the respondents isthat since the rank in which the petitioners are recruited and educationalqualifications prescribed in the recruitment rules, are different from thatof the Central Armed Police Forces, the petitioners cannot be equatedwith them and that justice has not been denied to them. But thiscontention is no longer available with the respondents, as the same hadbeen considered by this court in W.P. (C) No. 820 of 2014 but had notbeen countenanced at all. As has been held in State of Uttar Pradesh&ors. Vs. Arvind Kumar Srivastava &ors. (supra), the law is nowwell settled and the short question that arises for consideration by thiscourt in the present case is as to whether the petitioners are entitled tothe benefits which have been granted to the petitioners in W.P. (C) No.820 of 2014 vide order dated 18-10-2015 issued by the Office of theDirectorate General, Assam Rifles, Shillong in compliance with thiscourt''s order. As has been stated herein above, the petitioners hereinand the petitioners in W.P. (C) No. 820 of 2014 are similarly situatedand the recruitment rules which are applicable to both of them, havebeen interfered with by this court. It may be noted that the saidrecruitment rules were made by the Central Government by way of apolicy decision and since the said recruitment rules as regards theeducational qualification, have been set aside by this court, it does notlie in the mouth of the respondents to contend that the said portion ofthe recruitment rules, even after the same having been set aside, willcontinue to apply to the petitioners herein. The recruitment rules cannotbe applied differently to persons who are similarly situated and are in thesame footing. This court, while passing the said judgment and orderdated 20-08-2013, has not specifically observed that the reliefs grantedtherein shall be confined to the petitioners therein only and not to anypersons nor is there any indication thereof in it. In other words, the saidjudgment and order dated 20-08-2014 passed by this court can be saidto be a judgment in rem. Moreover, the instant case is not the onewhere the principle of delay and laches would apply. The Notification inrespect of the recruitment rules was issued on 21-02-2013 which cameto be challenged in the same year by way of a writ petition being W.P.(C) No. 820 of 2013 which was allowed on 20-08-2014 by this court. Incompliance with the judgment and order dated 20-08-2014, the orderdated 18-10- 2015 was issued by the Office of the Directorate General,Assam Rifles, Shillong conveying the approval of the competentauthority and hardly a month''s later, the instant writ petition was filedpraying for grant of similar relief by implementing the order dated18-10-2015. Thus, it cannot be held that there is a delay or for thatmatter, the laches in approaching the court by the petitioners to ventilatetheir grievances. Considering the facts and circumstances of the presentcase, this court is of the view that there is no valid reason for denial ofsuch benefits, being granted to the petitioners in W.P. (C) No. 820 of2013 vide order dated 18- 10-2015, to the petitioners herein and thedenial of such benefits to the petitioners will be violative of Article 14 ofthe Constitution of India.

For the reasons stated herein above, the instant writ petitionis allowed with the following directions: a) The benefits of the order dated 18-10-2015, issued by theOffice of the Directorate General, Assam Rifles, Shillong,shall be extended to the petitioners herein;

b) The respondents and in particular, the respondent No. 3shall issue an appropriate order in respect of direction (a)above, within a period of thirty days from the date of receiptof a copy of this judgment and order. There shall be noorder as to costs.